PROPOSAL IV
of outstanding shares” standard is most appropriate for the company and its shareholders, will enhance corporate governance and will enable our board of directors to pursue long-term corporate strategies for the benefit of its shareholders overall, as compared to a simple majority of votes cast standard.
In addition to these modifications to the provisions that include a66-2/3% vote requirement, the proposed amendments would also substantially reduce the current supermajority 75% ownership threshold to call a special meeting to 25% of outstanding shares, provided that the shares of common stock are determined to be “Net Long Shares” (as defined in the proposed amendments to the bylaws) that have been held continuously for at least one year prior to the special meeting request, along with specified procedural requirements and limitations.
The board of directors recognizes that the ability of shareholders to call special meetings at a lesser percentage threshold is increasingly considered an important aspect of good corporate governance. Nevertheless, special meetings are expensive, time-consuming and potentially disruptive to the company. Based on feedback from our shareholders, the board of directors believes that a 25% threshold for the right to call special meetings, which is below the simple majority requested in the shareholder proposal approved at the 2019 annual meeting of shareholders, strikes a reasonable and appropriate balance between enhancing shareholder rights and protecting against the risk that a small group of shareholders, including shareholders with special interests, could call special meetings to promote agenda items relevant to particular constituencies as opposed to shareholders generally.
The board of directors and management also carefully considered the ownership threshold for a shareholders’ right to act by written consent as a part of the engagement and outreach discussed above. In particular, following our discussions with shareholders, the company believes that shareholder meetings provide an important forum for shareholders to present, discuss and vote on proposals on an informed basis. Reducing the current 75% ownership threshold to shareholders’ right to act by written consent to a majority of outstanding shares would allow just 51% of outstanding shares to take significant corporate action without any prior notice to the company, and without giving all of our shareholders an opportunity to consider, deliberate and vote on shareholder actions that may have important ramifications for both the company and our shareholders. In addition, we would note that more than 30% and 25% of all S&P 500 and Russell 3000 companies, respectively, do not have any right to act by written consent, let alone a right to act by written consent by a majority of outstanding shares. Based on feedback received from shareholders during the engagement process, we believe the current 75% ownership threshold for shareholders’ right to act by written consent is in the best interests of our company and our shareholders given our current governance practices and the proposed amendments discussed in this Proposal IV.
This summary of the proposed amendments is qualified in its entirety by reference to the text of the proposed amendments to the articles and bylaws attached as Appendix B and Appendix C, respectively, to this proxy statement, with deletions indicated by strike outs and additions indicated by double underlining.
Vote Required
Proposal IV requires the affirmative vote of the holders of a majority66-2/3% of the shares of our outstanding common stock present at the annual meeting in person or by proxy.stock.
Recommendation of the Board
Your board of directors unanimously recommends that you vote “FOR” Proposal IV.
FLOWERS FOODS, INC. - 2015 Proxy Statement 51
SHAREHOLDER PROPOSALS
We periodically receive suggestions from our shareholders, some as formal shareholder proposals. We give careful consideration to all suggestions, and assess whether they promote the best long-term interests of the company and its shareholders.
We expect Proposals V and VI to be presented by shareholders at the meeting. Following SEC rules, we are reprinting the proposals and supporting statements as they were submitted to us, other than minor formatting changes. We take no responsibility for them. On request to the Secretary at the address listed under “Questions and Answers about the Annual Meeting and Voting — How can I obtain an Annual
Report on Form 10-K,” we will provide information about the sponsors’ shareholdings, as well as the names, addresses and shareholdings of any co-sponsors. Approval of each of these two proposals requires the affirmative vote of the holders of at least a majority of the shares of our common stock present at the meeting in person or by proxy.
THE BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE AGAINST PROPOSALS V AND VI FOR THE REASONS WE GIVE AFTER EACH ONE.
52 FLOWERS FOODS, INC. - 2015 Proxy Statement
PROPOSAL V | SHAREHOLDER PROPOSAL REGARDING DOUBLE TRIGGER AND PRO-RATA VESTING OF EQUITY AWARDS |
RESOLVED: The shareholders ask the board of directors of Flowers Foods, Inc. to adopt a policy that in the event of a change of control (as defined under any applicable employment agreement, equity incentive plan or other plan), there shall be no acceleration of vesting of any equity award granted to any senior executive officer, provided, however, that the board’s Compensation Committee may provide in an applicable grant or purchase agreement that any unvested award will vest on a partial,pro rata basis up to the time of the named executive officer’s termination, with such qualifications for an award as the Committee may determine.
For purposes of this Policy, “equity award” means an award granted under an equity incentive plan as defined in Item 402 of the SEC’s Regulation S-K, which addresses elements of executive compensation to be disclosed to shareholders. This resolution shall be implemented so as not affect any contractual rights in existence on the date this proposal is adopted, and it shall apply only to equity awards made under equity incentive plans or plan amendments that shareholders approve after the date of the 2015 annual meeting.
Supporting Statement
Flowers Foods, Inc. (“Company”) allows senior executives to receive an accelerated award of unearned equity under certain conditions after a change of control of the Company. We do not question that some form of severance payments may be appropriate in that situation. We are concerned, however, that current practices at the Company may permit windfall awards that have nothing to do with an executive’s performance.
According to last year’s proxy statement, a change of control as of Dec. 27, 2013 could have accelerated the vesting of $28.5 million worth of long-term equity to the Company’s five senior executives, with the former CEO, entitled to $13.6 million.
We are unpersuaded by the argument that executives somehow “deserve” to receive unvested awards. To accelerate the vesting of unearned equity on the theory that an executive was denied the opportunity to earn those shares seems inconsistent with a “pay for performance” philosophy worthy of the name.
We do believe, however, that an affected executive should be eligible to receive an accelerated vesting of equity awards on a pro rata basis as of his or her termination date, with the details of any pro rata award to be determined by the Compensation Committee.
Other major corporations, including Apple, Chevron, ExxonMobil, IBM, Intel, Microsoft, and Occidental Petroleum, have limitations on accelerated vesting of unearned equity, such as providing pro rata awards or simply forfeiting unearned awards. Research from James Reda & Associates found that over one third of the largest 200 companies now pro rate, forfeit, or only partially vest performance shares upon a change of control.
We urge you to vote FOR this proposal.
Board of Directors Statement in Opposition of Proposal V
The board of directors unanimously recommends that you vote “AGAINST” Proposal V because the Omnibus Plan, under which equity grants are currently being made, already prohibits automatic acceleration of equity awards upon a change of control. Under the Omnibus Plan, vesting of an executive’s equity award upon a change of control requires either failure of the successor to assume the award or a qualifying termination of employment within a specified period of time following such change of control. The board of directors believes double-trigger vesting upon a change of control is appropriate and in the best interests of the company and its stockholders.
The proposal would substitute a more restrictive definition of double-trigger vesting and require pro-rata vesting of equity awards up to the time of a senior executive’s termination of employment upon a change of control. Under this type of pro rata vesting, our senior executives would not recognize the full value of equity awards. These equity awards are a part of an executive compensation program that has been consistently approved by more than 94% of the company’s shareholders. The risk of job loss coupled with the loss of significant
equity awards may present an unnecessary distraction for our senior executive officers and could lead them to seek new employment while a change of control transaction is being negotiated or is pending. Without the ability to retain senior executives during a potential change of control, our ability to deliver maximum shareholder value in the transaction could be impaired and, should the transaction not be completed, disrupt our operations.
We believe that our existing double-trigger vesting practice will motivate our employees, including our senior executive officers, to continue to work for us, even if they perceive that a change of control is imminent, preventing the potential loss of key personnel at a time when retaining such employees could have a critical impact on the successful execution of a change of control transaction that would benefit our shareholders. The adoption of pro-rata vesting, which is not market practice, would place the company, especially given its size and the nature of its industry, at a competitive disadvantage in retaining, attracting and motivating talented executives and would impose a restrictive, untested structure on our compensation practices.
FLOWERS FOODS, INC. - 2015 Proxy Statement 53
SHAREHOLDER PROPOSAL REGARDING DOUBLE TRIGGER AND PRO-RATA VESTING OF EQUITY AWARDS
We note that the companies cited by the proponent in the supporting statement (e.g., Apple, Chevron, ExxonMobil and IBM) are considerably larger than the company, as such do not have the same risk of a change of control, and do not compete for executive talent in the same manner as the company.
The board of directors believes the current provision for the double-trigger vesting of executive officer equity awards is appropriate and effective, is consistent with the company’s compensation philosophy and is in the best interests of the company and its shareholders.
Recommendation of the Board
Your board of directors unanimously recommends that you vote “AGAINST” Proposal V.
54 FLOWERS FOODS, INC. - 20152020 Proxy Statement
PROPOSAL VI | SHAREHOLDER APPROVAL OF FUTURE SEVERANCE AGREEMENTS |
RESOLVED: That the shareholders of Flowers Foods, Inc. (“the Company”) urge the Board of Directors to seek shareholder approval of future severance agreements with senior executives that provide benefits in an amount exceeding 2.99 times the sum of the executives’ base salary plus bonus.
“Future severance agreements” include, employment agreements containing severance provisions, special retirement provisions and agreements renewing, modifying or extending existing agreements.
“Benefits” include lump-sum cash payments (including payments in lieu of medical and other benefits); the payment of any “gross-up” tax liability; the estimated present value of special retirement provisions; any stock or option awards that are awarded under any severance agreement; any prior stock or option awards as to which the executive’s access is accelerated under the severance agreement; fringe benefits; and, consulting fees (including reimbursable expenses) to be paid to the executive.
Supporting Statement
We believe that requiring shareholder ratification of “golden parachute” severance packages with a total cost exceeding 2.99 times an executive’s base salary plus bonus, will provide valuable feedback, encourage restraint, and strengthen the hand of the Board’s compensation committee.
According to the Summary of Potential Payments Upon Termination or Change in Control on page 40 of the Company’s 2014 Proxy Statement, if there is a change of control and the chief executive officer is terminated, he will receive three times the sum of his base salary and three times his target award under the Bonus Plan. According to the Company’s 2014 Proxy Statement, if there had been a change of
control and termination on December 27, 2013, the CEO would have received a cash severance of $4.7 million, in addition to payments for equity awards and other benefits. In the CEO’s case, he would receive $6.2 million in unearned accelerated equity as part of his total benefits in a change of control and termination scenario.
We urge shareholders to vote FOR this proposal to urge the board to seek shareholder ratification of severance packages with a total cost exceeding 2.99 times an executive’s base salary plus bonus.
Board of Directors Statement in Opposition of Proposal VI
The board of directors unanimously recommends that you vote “AGAINST” Proposal VI because it believes its adoption is unnecessary and unwarranted for reasons discussed below.
Under the Omnibus Plan, there is no automatic acceleration of vesting upon a change of control. Rather, vesting of an executive’s equity award after a change of control requires either failure of the successor to assume the award or a qualifying termination of employment within a specified period of time following such change of control.
Further, the compensation committee already supports reasonable and appropriate limits on severance payments and thus limits the costs associated with change of control severance arrangements. For example, the company’s Change of Control Plan does not include excise tax gross ups, consulting fees, additional equity grants or special retirement provisions.
In addition, SEC rules already enable the Company’s stockholders to vote to approve, on an advisory basis, the compensation of our named executive officers (including severance arrangements) as disclosed in this proxy statement. The company’s severance agreements are part of an executive compensation program that has consistently been approved by more than 94% of the company’s shareholders. SEC rules further require a separate approval of golden parachute compensation agreements or understandings payable to named executive officers in connection with a sale, merger or related transaction.
The board of directors also disagrees with the proponent’s characterization of amounts payable under outstanding equity awards after a qualifying termination of employment connected with a change of
control as severance payments. In the board of directors’ view, it would be inappropriate to include an estimated value of these amounts in the severance calculation because they are earned by executives during the course of their employment. Long-term equity-based incentive awards represent 65% of our chief executive officer’s annual compensation opportunity and more than 50% of our other named executive officer’s annual compensation opportunities. Currently, these awards consist of ROIC-based and TSR-based performance contingent restricted stock units that are granted under the Omnibus Plan. Because in a change of control many of these employees would lose their positions, be assigned diminished responsibilities or transferred, the company wants to provide these already partially earned benefits to employees. These benefits are important so that while a change of control is pending, employees promote decisions in the best interests of shareholders, remain focused on the operations of the business and continue to create shareholder value.
The board of directors believes the compensation committee is in the best position to establish senior executive compensation arrangements in a manner it believes will allow the company to attract and retain the best possible executive talent and to motivate executives to maximize shareholder returns. The compensation committee believes that adopting the proposed severance approval policy would frustrate two primary goals of its executive compensation program — to attract and retain highly qualified executives. For these reasons, the board of directors believes that Proposal VI is not in the best interests of the company and its shareholders.
FLOWERS FOODS, INC. - 2015 Proxy Statement 55
2016 SHAREHOLDER PROPOSALS
Recommendation of the Board
Your board of directors unanimously recommends that you vote “AGAINST” Proposal VI.
20162021 SHAREHOLDER PROPOSALS
In order to properly submit a proposal for inclusion in the proxy statement for the 20162021 annual meeting of shareholders, you must follow the procedures outlined in Rule14a-8 of the Exchange Act. To be eligible for inclusion, we must receive your shareholder proposal at our principal corporate offices in Thomasville, Georgia as set forth below no later than December [•], 2015.2020.
If you wish to present a proposal before the 20162021 annual meeting of shareholders, but do not wish to have the proposal considered for inclusion in the proxy statement and proxy card, you must follow the procedures outlined in our amended and restated bylaws. We must receive your shareholder proposal at the address noted below no earlier than February 6, 2016January 21, 2021 and no later than March 7, 2016.February 20, 2021. If your
brought before the 2021 annual meeting of shareholders in accordance with our amended and restated bylaws, the chairman of the board of directors may declare such proposal not properly brought before the 2021 annual meeting of shareholders, and it will not be acted upon.
Any proposals or notices should be sent to:
Stephen R. AveraStephanie B. Tillman
Executive Vice President, Secretary and GeneralChief Legal Counsel
Flowers Foods, Inc.
1919 Flowers Circle
Thomasville, Georgia 31757
DELIVERY OF PROXY MATERIALS TO HOUSEHOLDS
56 Under the rules of the SEC, the company is permitted to use a method of delivery, often referred to as “householding.” Householding permits the company to mail a single set of proxy materials to any household in which two or more different shareholders reside and are members of the same household or in which one shareholder has multiple accounts. The company did not household materials for the 2020 annual meeting of shareholders. If the company households materials for future meetings, then only one copy of the company’s annual report and proxy statement will be sent to multiple shareholders of the company who share the same address and last name, unless the company has received contrary instructions from one or more of those shareholders. In addition, the company has been notified that certain intermediaries (i.e., banks, brokers or other nominees) will household proxy materials for the 2020 annual meeting of shareholders. For voting purposes, a separate proxy card will be
included for each account at the shared address. The company will deliver promptly, upon oral or written request, a separate copy of the annual report and proxy statement to any shareholder at the same address. If you wish to receive a separate copy of the annual report and proxy statement, you may contact the company’s Investor Relations Department (a) by mail at 1919 Flowers Circle, Thomasville, GA 31757, (b) by telephone at (229)226-9110, or (c) bye-mail at lhay@flowersfoods.com. You may also contact your bank, broker or other nominee to make a similar request. Shareholders sharing an address who now receive multiple copies of the company’s annual report and proxy statement may request delivery of a single copy by contacting the company as indicated above, or by contacting their bank, broker or other nominee, provided the broker, bank or other nominee has elected to household proxy materials.
FLOWERS FOODS, INC. - 20152020 Proxy Statement 55
ANNEXAPPENDIX A (NON-GAAP(NON-GAAP FINANCIAL MEASURES)
Information RegardingNon-GAAP Financial Measures
The company prepares its consolidated financial statements in accordance with U.S. Generally Accepted Accounting Principles (GAAP)generally accepted accounting principles (“GAAP”). However, from time to time, the company may present in its public statements, press releases and SEC filings with the Securities and Exchange Commission,non-GAAP financial measures such as EBITDA, adjusted EBITDA, adjusted EBITDA margin adjusted net income, adjusted net income margin and adjusted net income per diluted common share to measure the performance of the company and its operating divisions (collectively, the “Non-GAAP“Non-GAAP Measures”). EBITDA is used as the primary performance measure in the company’s Annual Executive Bonus Plan.annual executive bonus plan. The company defines EBITDA as earnings from continuing operations before interest, income taxes, depreciation, amortization and income attributable tonon-controlling interest. The company believes that EBITDA is a useful tool for managing the operations of its business and is an indicator of the company’s ability to incur and service indebtedness and generate free cash flow. Furthermore, pursuant to the terms of our credit facility, EBITDA is used to determine the company’s compliance with certain financial covenants. The company also believes that EBITDA measures are commonly reported and widely used by investors and other interested parties as measures of a company’s operating performance and debt servicing ability because EBITDA measures assist in comparing performance on a consistent basis without regard to depreciation or amortization, which can vary significantly depending upon accounting methods andnon-operating factors (such as historical cost). EBITDA is also a widely-accepted financial indicator of a company’s ability to incur and service indebtedness.
indebtedness. The Non-GAAP Measurescompany defines adjusted EBITDA, adjusted EBITDA margin and adjusted net income per diluted share, respectively, to exclude additional costs that we consider important to present to investors. These costs include, but are not limited to, the costs of closing a plant or costs associated with acquisition-related activities, certain impairment charges, legal settlements and othernon-recurring expenses. We believe that financial information excluding certain transactions not considered to be part of the ongoing business improves the comparability of earnings results. We believe investors will be able to better understand our earnings results if these transactions are excluded from the results.
These non-GAAP financial measuresNon-GAAP Measures are measures of performance not defined by accounting principles generally accepted in the United StatesGAAP and should be considered in addition to, not in lieu of, GAAP reported measures. The TheseNon-GAAP measures Measures should not be considered an alternative to (a) income from operations or net income (loss) as a measure of operating performance; (b) cash flows provided by operating, investing and financing activities (as determined in accordance with GAAP) as a measure of the company’s ability to meet its cash needs; or (c) any other indicator of performance or liquidity that has been determined in accordance with GAAP. Our method of calculating the theseNon-GAAP measures Measures may differ from the methods used by other companies, and, accordingly, may not be comparable to similarly titled measures used by other companies. The reconciliations below provide a reconciliation of our net income,theNon-GAAP Measures used in this proxy statement to the most comparable GAAP financial measure to adjusted EBITDA and adjusted net income and a reconciliation of earnings per diluted share to adjusted earnings per diluted share.measure.
Net Income to Adjusted EBITDA
| | | | |
| (Dollars in Thousands) | | 2019 | |
Net income | | $ | 164,538 | |
Income tax expense | | $ | 47,545 | |
Interest expense, net | | $ | 11,097 | |
Depreciation and amortization | | $ | 144,228 | |
| | | | |
EBITDA | | $ | 367,408 | |
Restructuring and related impairment charges | | $ | 23,524 | |
Executive retirement agreement | | $ | 763 | |
(Recovery) on inferior ingredients | | $ | (37 | ) |
Project Centennial consulting costs | | $ | 784 | |
Legal settlements | | $ | 28,014 | |
Other pension costs | | $ | 2,248 | |
Acquisition-related costs | | $ | 22 | |
| | | | |
Adjusted EBITDA | | $ | 422,726 | |
MARGIN | | | 10.3% | |
A-1 FLOWERS FOODS, INC. - 2020 Proxy Statement
APPENDIX A(NON-GAAP FINANCIAL MEASURES)
Net Income to Adjusted EBITDA
| | (Dollars in Thousands) | | 2014 | | | 2018 | |
Net income | | $ | 175,739 | | | $ | 157,160 | |
Income tax expense | | $ | 92,315 | | | $ | 40,001 | |
Interest expense, net | | $ | 7,341 | | | $ | 7,931 | |
Depreciation and amortization | | $ | 128,961 | | | $ | 144,124 | |
| | | | |
EBITDA | | $ | 404,356 | | | $ | 349,216 | |
Asset impairment/Leo’s divestiture | | $ | 9,301 | | |
Restructuring and related impairment charges | | | $ | 9,767 | |
Pension plan settlement loss | | $ | 15,387 | | | $ | 7,781 | |
Loss on inferior ingredients | | | $ | 3,212 | |
Project Centennial consulting costs | | | $ | 9,723 | |
Legal settlements | | | $ | 21,452 | |
Acquisition-related costs | | | $ | 4,476 | |
Non-restructuring impairment costs | | | $ | 3,516 | |
Multi-employer pension plan withdrawal costs | | | $ | 2,322 | |
| | | | |
Adjusted EBITDA | | $ | 429,044 | | | $ | 411,465 | |
MARGIN | | | 11.4% | | | | 10.4% | |
Net Income Per Diluted Common Share to Adjusted Net Income Per Diluted Common Share
| | | | |
| | | 2019 | |
Earnings per diluted common share | | $ | 0.78 | |
Restructuring and related impairment charges | | $ | 0.08 | |
Executive retirement agreement | | $ | NM | |
(Recovery) on inferior ingredients | | $ | NM | |
Project Centennial consulting costs | | $ | NM | |
Legal settlements | | $ | 0.10 | |
Acquisition-related costs | | $ | NM | |
Adjusted earnings per diluted share | | $ | 0.96 | |
NM – Not meaningful.
Net Income Per Diluted Common Share to Adjusted Net Income Per Diluted Common Share
| | | | |
| | | 2018 | |
Earnings per diluted common share | | $ | 0.74 | |
Restructuring and related impairment charges | | $ | 0.03 | |
Pension plan settlement loss | | $ | 0.03 | |
Loss on inferior ingredients | | $ | 0.01 | |
Project Centennial consulting costs | | $ | 0.03 | |
Legal settlements | | $ | 0.08 | |
Acquisition-related costs | | $ | 0.02 | |
Non-restructuring impairment costs | | $ | 0.01 | |
Multi-employer pension plan withdrawal costs | | $ | 0.01 | |
Impact of the Tax Cuts and Jobs Act | | $ | (0.03 | ) |
Adjusted earnings per diluted share | | $ | 0.94 | |
Certain amounts may not compute due to rounding.
FLOWERS FOODS, INC. - 20152020 Proxy Statement A-1A-2
ANNEXAPPENDIX A (NON-GAAP(NON-GAAP FINANCIAL MEASURES)
Net Income to Adjusted Net Income
| | | | |
| (Dollars in Thousands) | | 2019 | |
Net income | | $ | 164,538 | |
Restructuring and related impairment charges | | $ | 17,584 | |
Executive retirement agreement | | $ | 570 | |
(Recovery) on inferior ingredients | | $ | (28 | ) |
Project Centennial consulting costs | | $ | 586 | |
Legal settlements | | $ | 21,063 | |
Acquisition-related costs | | $ | 16 | |
Adjusted net income | | $ | 204,329 | |
Net Income to Adjusted Net Income
| | | | |
| (Dollars in Thousands) | | 2014 | |
Net income | | $ | 175,739 | |
Asset impairment/Leo’s divestiture | | $ | 6,452 | |
Pension plan settlement loss | | $ | 9,910 | |
Adjusted net income | | $ | 192,101 | |
MARGIN | | | 5.1% | |
Earnings Per Diluted Share to Adjusted Earnings Per Diluted Share
| | | | |
| (Dollars in Thousands) | | 2018 | |
Net income | | $ | 157,160 | |
Restructuring and related impairment charges | | $ | 7,301 | |
Pension plan settlement loss | | $ | 5,816 | |
Loss on inferior ingredients | | $ | 2,401 | |
Project Centennial consulting costs | | $ | 7,268 | |
Legal settlements | | $ | 16,035 | |
Acquisition-related costs | | $ | 3,346 | |
Non-restructuring impairment costs | | $ | 2,628 | |
Multi-employer pension plan withdrawal costs | | $ | 1,736 | |
Impact of the Tax Cuts and Jobs Act | | $ | (5,575 | ) |
Adjusted net income | | $ | 198,116 | |
| | | | |
| | | 2014 | |
Earnings per diluted share | | $ | 0.82 | |
Asset impairment/Leo’s divestiture | | $ | 0.03 | |
Pension plan settlement loss | | $ | 0.05 | |
Adjusted earnings per diluted share | | $ | 0.90 | |
A-2A-3 FLOWERS FOODS, INC. - 20152020 Proxy Statement
ANNEXAPPENDIX B (PROPOSED AMENDMENTS TOAMENDED AND RESTATED ARTICLES OF INCORPORATION)
Attached as Appendix B is the text of the Company’s Amended and Restated Articles of Incorporation as proposed by Proposal IV. Proposed additions are indicated by double underlining, and proposed deletions are indicated by strike-outs.
AMENDED AND RESTATED ARTICLES OF INCORPORATION AND
OF
FLOWERS FOODS, INC.,
(As amended throughJune 5[•],20152020)
I.
The name of the corporation is Flowers Foods, Inc. (the “Corporation”).
II.
SECTION 1.Authorized Capital Stock. The Corporation shall have the authority to issue not more than five hundred one million (501,000,000) shares of capital stock consisting of five hundred million (500,000,000) shares of Common Stock having a par value of $.01 per share, and one million (1,000,000) shares of Preferred Stock of which: (i) two hundred thousand (200,000) shares shall be designated Series A Junior Participating Preferred Stock, having a par value per share of $100 (the “Series A Preferred Stock”) and (ii) eight hundred thousand (800,000) shares of preferred stock, having a par value per share of $0.01 (the “Preferred Stock”) to be issued in one or more series, in the manner provided below.
The Board of Directors is hereby authorized to issue the shares of undesignated Preferred Stock in such series and to fix from time to time before issuance the number of shares to be included in any series and the designation, relative powers, preferences and rights and qualifications, limitations or restrictions of all shares of such series. The authority of the Board of Directors with respect to each series shall include, without limiting the generality of the foregoing, the determination of any or all of the following:
(a) the number of shares of any series and the designation to distinguish the shares of such series from the shares of all other series;
(b) the voting powers, if any, and whether such voting powers are full or limited in such series;
(c) the redemption provisions, if any, applicable to such series, including the redemption price or prices to be paid;
(d) whether dividends, if any, shall be cumulative or noncumulative, the dividend rate of such series, and the dates and preferences of dividends on such series;
(e) the rights of such series upon the voluntary or involuntary dissolution of, or upon any distribution of the assets of, the Corporation;
(f) the provisions, if any, pursuant to which the shares of such series are convertible into, or exchangeable for, shares of any other class or classes or of any other series of the same or any other class or classes of stock of the Corporation or any other corporation, and the price or prices or the rates of exchange applicable thereto;
(g) the right, if any, to subscribe for or to purchase any securities of the Corporation or any other corporation;
(h) the provisions, if any, of a sinking fund applicable to such series; and
(i) any other relative, participating, optional or other special powers, preferences, rights, qualifications, limitations or restrictions thereof;
all as shall be determined from time to time by the Board of Directors and stated in the resolution or resolutions providing for the issuance of such Preferred Stock (a “Preferred Stock Designation”).
SECTION 2.Voting Entitlement. A holder of Common Stock shall be entitled to one (1) vote on each matter submitted to a vote at a meeting of shareholders for each share of the Common Stock held of record by such holder as of the record date for such meeting. Except as may be provided by applicable law, in these Articles of Incorporation or by the Board of Directors in a Preferred Stock Designation, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes, and holders of Preferred Stock shall not be entitled to receive notice of any meeting of shareholders at which they are not entitled to vote or consent.
SECTION 3.Preemptive Rights. No holder of shares of any class of stock shall have preemptive rights, and the Corporation shall have the right to issue and to sell any shares of its Common Stock without first offering such shares to any holder of shares of Common Stock of the Corporation.
FLOWERS FOODS, INC. - 2020 Proxy Statement B-1
APPENDIX B (PROPOSED AMENDED AND RESTATED BYLAWS)ARTICLES OF INCORPORATION)
III.
SECTION 1.Designation and Amount. There shall be a series designated as “Series A Junior Participating Preferred Stock” (the “Series A Preferred Stock”). The number of shares constituting such series shall be 200,000 and such series shall have the rights and preferences and limitations set forth below.
SECTION 2.Dividends and Distributions.
(a) The holders of shares of Series A Preferred Stock, in preference to the holders of Common Stock and of any other junior stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the payment date of any quarterly dividend for the Common Stock, or if there should be no such payment date, then on the 45th day after the end of each fiscal quarter (each such date being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (i) $50 or (ii) subject to the provision for adjustment hereinafter set forth, 1,000 times the aggregate per share amount of all cash dividends, and 1,000 times the aggregate per share amount (payable in kind) of allnon-cash dividends or other distributions other than a dividend payable in shares of Common Stock of the Corporation or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A Preferred Stock. In the event the Corporation shall at any time after the date hereof declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be automatically adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the Series A Preferred Stock as provided in subparagraph (a) of this Section 2 immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $50 per share on the Series A Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Series A Preferred Stock, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on ashare-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series A Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be not more than 60 days prior to the date fixed for the payment thereof.
SECTION 3.Voting Rights. The holders of shares of Series A Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each share of Series A Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters submitted to a vote of the shareholders of the Corporation. In the event the Corporation shall at any time after the date hereof declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the number of votes per share to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event shall be automatically adjusted by multiplying such number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by law, the holders of shares of Series A Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Corporation having general voting rights shall vote together as one voting group on all matters submitted to a vote of shareholders of the Corporation.
(c) Except as set forth herein, holders of Series A Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock and any other capital stock of the Corporation having general voting rights as set forth herein) for taking any corporate action.
B-2 FLOWERS FOODS, INC. - 2020 Proxy Statement
APPENDIX B (PROPOSED AMENDED AND RESTATED ARTICLES OF INCORPORATION)
SECTION 4.Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions payable on the Series A Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Preferred Stock outstanding shall have been paid in full, the Corporation shall not:
(1) declare or pay dividends on, or make any other distributions on, any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock;
(2) declare or pay dividends on or make any other distributions on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except dividends paid ratably on the Series A Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled;
(3) redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of any stock of the Corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Preferred Stock; or
(4) purchase or otherwise acquire for consideration any shares of Series A Preferred Stock, or any shares of stock ranking on a parity with the Series A Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes.
(b) The proposed Declassification Amendments would amend ourCorporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation could, under subsection (a) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner.
SECTION 5.Reacquired Shares. Any shares of Series A Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth herein.
SECTION 6.Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution or winding up of the Corporation, no distribution shall be made (a) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock unless, prior thereto, the holders of shares of Series A Preferred Stock shall have received $1,000 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, provided that the holders of shares of Series A Preferred Stock shall be entitled to receive an aggregate amount per share, subject to the provision for adjustment hereinafter set forth, equal to 1,000 times the aggregate amount to be distributed per share to holders of Common Stock, or (b) to the holders of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except distributions made ratably on the Series A Preferred Stock and all other such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In the event the Corporation shall at any time after the date hereof declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the aggregate amount to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event under the proviso in clause (a) of the preceding sentence shall be automatically adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
SECTION 7.Consolidation, Merger etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of Series A Preferred Stock shall at the same time be similarly exchanged or changed in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to 1,000 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time after the date hereof declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series A Preferred Stock shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
SECTION 8.No Redemption. The shares of Series A Preferred Stock shall not be redeemable.
SECTION 9.Rank. The Series A Preferred Stock shall rank junior with respect to payment of dividends and on liquidation to all other series of the Corporation‘s Preferred Stock outstanding on the date hereof and to all such other series that specifically provide that they shall rank senior to the Series A Preferred Stock.
FLOWERS FOODS, INC. - 2020 Proxy Statement B-3
APPENDIX B (PROPOSED AMENDED AND RESTATED ARTICLES OF INCORPORATION)
SECTION 10.Amendment. The Articles of Incorporation of the Corporation shall not be amended in any manner that would materially alter or change the powers, preferences or special rights of the Series A Preferred Stock so as to affect them adversely without the affirmative vote of the holders oftwo-thirds of the outstanding shares of Series A Preferred Stock, voting together as a single class.
IV.
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the Georgia Business Corporation Code.
V.
The Board of Directors shall have the power to make, amend and repeal the Bylaws of the Corporation. Any Bylaws made by amendingthe Board of Directors under the powers conferred hereby may be amended or repealed by the Board of Directors (except as specified in any such Bylaw so made or amended) or by the shareholders in the manner provided in the Bylaws of the Corporation.or by applicable law. The Corporation may in its Bylaws confer powers upon its Board of Directors in addition to the foregoing and restating SECTIONS 1, 3in addition to the powers and 4authorities expressly conferred upon the Board of ARTICLE VIIDirectors by applicable law. Notwithstanding anything contained in their entiretythese Articles of Incorporation to the contrary, unless otherwise required by applicable law, the affirmative vote of the holders of at least66-2/3%a majority of the voting power of the then outstanding shares of Common Stock shall be required to amend or repeal, or to adopt any provisions inconsistent with, this Article V.
VI.
Any action required or permitted to be taken by the shareholders of the Corporationmustmay be effected at a duly called annual or special meeting of shareholders of the Corporation or by the consent in writing of the holders of at least 75% of the voting power of the then outstanding shares of Common Stock entitled to vote on the action. Special meetings of shareholders of the Corporation may be called onlybyin theChairman of the Board of Directors, or by the Chairman of the Board of Directors or the Secretary within 10 days after receipt of the written request of a majority of the total number of Directors which the Corporation would have if there were no vacancies or upon receipt of the written request of the holders of at least 75% of the voting power of the then outstanding shares of Common Stockmanner provided for in the Bylaws. At any annual meeting or special meeting of shareholders of the Corporation, only such business shall be conducted or considered as follows:shall have been brought before such meeting in the manner provided inthese Articles of Incorporation or the Bylaws of the Corporation.Notwithstanding anything contained in these Articles of Incorporation to the contrary, unless otherwise required by applicable law, the affirmative vote of at least66-2/3% of the voting power of the then outstanding shares of Common Stock shall be required to amend or repeal, or adopt any provision inconsistent with this Article VI.
“VII.
SECTION 1.Number, Election and Terms of Directors. The number of the Directors of the Corporation shall not be less than 3 nor more than 16 and shall be fixed from time to time in the manner described in the Bylaws.
The Directors shall be classified with respect toBeginning at the time for which they severally hold office into three classes, as nearly equal in number as possible, designated Class I, Class II and Class III. The Directors first appointed to Class I shall hold office for a term expiring at the2015 annual meeting of shareholders, to be held in 2002, Directors first appointed to Class II shall hold office for a term expiring at the annual meeting of shareholders to be held in 2003 and the Directors first appointed to Class III shall hold office for a term expiring at the annual meeting of shareholders to be held in 2004 with the members of each class to hold office until their successors are elected and qualified. Unless otherwise required by applicable law, at each succeeding annual meeting of the shareholders of the Corporation, the successors of the class of Directors whose term expires at that meeting shall be elected, in accordance with the last two sentences of this Section 1 of Article VII, to hold office for a term expiring at the annual meeting of shareholders held in the third year following the year of their election. Notwithstanding the foregoing, if at the time of anyBeginning at the 2015 annual meeting of shareholders, theCorporation is prohibited by applicable law from having a classified Board ofDirectors, all of thewhose terms expire at that meeting (or such Directors’successors) shall be electedat such annual meeting for a one year term only. If at the time of any subsequent annual meeting of shareholders the Corporation is no longer prohibited by applicable law from having a classified Board of Directors, the Board of Directors shall again be classified in accordance with the first sentence of this paragraph, and at such annual meeting Directors initially shall be elected to serve in either Class I, Class II or Class IIIto hold office for aone-year term expiring at thefirst, second or third succeeding2016 annual meeting oftheshareholders; at the 2016 annual meeting of shareholders,respectively; thereafterDirectors’ successorsDirectors’ to each Class)successors) shall be electedin accordance with the third sentence of this paragraph; such classified Board of Directors at all times being subject to the immediately preceding sentence of this paragraph.’ successors) shall be elected to hold office for aone-year term expiring at the 2017 annual meeting of shareholders; and at the 2017 annual meeting of shareholders andAt each annual meeting of shareholders thereafter, all Directors shall be elected to hold office for aone-year term expiring at the next annual meeting of shareholders and until such Director’s successor shall have been elected and qualified.
Elections of Directors need not be by written ballot unless requested by the Chairman of the Board of Directors or by the holders of a majority of the voting power of the then outstanding shares of Common Stock present in person or represented by proxy at a meeting of the shareholders at which Directors are to be elected.Eachto succeed aof the Class of Directors whose term expires at that meetingtheof such Classfor such Class of Directorof such Classdirectors
SECTION 2.Nomination of Director Candidates. Advance notice of shareholder nominations for the election of Directors shall be given in the manner provided in the Bylaws of the Corporation.
SECTION 3.Newly Created Directorships and Vacancies. Unless otherwise required by applicable law, newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled solely by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining Director. Any Director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of Directors in which the new directorship was created or the vacancy occurred
B-4 FLOWERS FOODS, INC. - 2020 Proxy Statement
APPENDIX B (PROPOSED AMENDED AND RESTATED ARTICLES OF INCORPORATION)
a term of office continuing until the next election of Directors by the shareholders and untilthe election and qualification of such Director’s successor shall have been elected and qualified.successor. Any Director elected to fill a vacancy not resulting from an increase in the number of Directors shall have the same remaining term as that of his or her predecessor.predecessor. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of an incumbent Director.
SECTION 4.Removal. Unless otherwise required by applicable law, any Directormay be removed from office by the, andonly in the manner provided in this Section 4 of Article VIIcause.cause. At any annual meeting or special meeting of the shareholders of the Corporation, the notice of which shall state that the removal of a Director or Directors is among the purposes of the meeting, unless otherwise required by applicable law, the affirmative vote of the holders ofat least66-2/3%a majority of the voting power of the then outstanding Common StockmayDirectorsDirectors.
SECTION 5.Amendment, Repeal, Etc. Notwithstanding anything contained in these Articles of Incorporation to the contrary, unless otherwise required by applicable law, the affirmative vote of at least for66-2/3%cause. a majority of the voting power of the then outstanding Common Stock shall be required to amend or repeal, or adopt any provision inconsistent with, this Article VII.
VIII.
In discharging the duties of their respective positions and in determining what is believed to be in the best interests of the Corporation, the Board of Directors, committees ofthe Board of Directors, and individual Directors, in addition to considering the effects of any action on the Corporation or its shareholders, may
FLOWERS FOODS, INC. - 2015 Proxy Statement B-1
consider the interests of employees, customers, suppliers and creditors of the Corporation and its subsidiaries, the communities in which offices or other establishments of the Corporation and its subsidiaries are located, and all other factors such Directors deem pertinent; provided, however, that this Article VIII shall be deemed solely to grant discretionary authority to the Directors and shall not be deemed to provide to any constituency any right to be considered.
IX.
A Director of the Corporation shall not be liable to the Corporation or its shareholders for or with respect to any acts or omissions in the performance of his duties as a Director, except to the extent such exemption from liability or limitation thereof is not permitted under the Georgia Business Corporation Code as currently in effect or as the same may be hereafter amended or under any other applicable law currently or hereafter in effect. No amendment, modification or repeal of this ArticleIX shall adversely affect any right or protection of a Director that exists at the time of such amendment, modification, or repeal.
X.
Each person who is or was or had agreed to become a Director or officer of the Corporation, or each such person who is or was serving or who had agreed to serve at the request of the Board of Directors or an officer of the Corporation as an employee or agent of the Corporation or as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including the heirs, executors, administrators or estate of such person), shall be indemnified by the Corporation to the fullest extent permitted by the Georgia Business Corporation Code or any other applicable laws as presently or hereafter in effect. The right to indemnification granted by this Article X shall include the right to be paid in advance expenses incurred in defending a proceeding. The Corporation may, by action of the Board of Directors, provide indemnification to other employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of Directors and officers. The right of indemnification provided in this Article X shall not be exclusive of any other rights to which any person seeking indemnification may otherwise be entitled, and shall be applicable to matters otherwise within its scope irrespective of whether such matters arose or arise before or after the adoption of this Article X. Without limiting the generality or the effect of the foregoing, the Corporation may adopt Bylaws, or enter into one or more agreements with any person, which provide for indemnification greater or different than that provided in this Article X. No amendment, modification or repeal of this ArticleX shall adversely affect any right or protection of a Director, officer, employee or agent that exists at the time of such amendment, modification or repeal.
XI.
Any issued and outstanding shares of stock of the Corporation which are repurchased by the Corporation shall become treasury shares which shall be held in treasury by the Corporation until resold or retired and canceled in the discretion of the Board of Directors. Any treasury shares which are retired and canceled shall constitute authorized but unissued shares.
FLOWERS FOODS, INC. - 2020 Proxy Statement B-5
APPENDIX C (PROPOSED AMENDED AND RESTATED BYLAWS)
Attached as Appendix C is the text of the Company’s Amended and Restated Bylaws as proposed by Proposal IV. Proposed additions are indicated by double underlining, and proposed deletions are indicated by strike-outs.
AMENDED AND RESTATED BYLAWS
OF
FLOWERS FOODS, INC.
(As amended throughJune 5[●],20152020)
ARTICLE 1.
OFFICES
Flowers Foods, Inc. (the “Corporation”) shall maintain at all times a registered office in the State of Georgia and a registered agent at that address, but may have other offices located within or without cause.the State of Georgia as the Board of Directors may determine.
ARTICLE 2.
MEETINGS OF SHAREHOLDERS
2.1Place and Time of Meetings. All meetings of the shareholders shall be held at such time and at such place, within or without the State of Georgia, as may be designated by the Board of Directors or, in the absence of a designation by the Board of Directors, by the Chairman of the Board of Directors, the President or the Secretary, and stated in the notice of the meeting. The Chairman of the Board of Directors may postpone and reschedule any previously scheduled annual or special meeting of the shareholders of the Corporation.
2.2Annual Meeting. An annual meeting of the shareholders shall be held at such date, time and place as shall be designated from time to time by the Board of Directors, at which meeting the shareholders shall elect, in accordance with the Articles of Incorporation, the Directors to succeed those whose terms expire and shall transact such other business as may be properly brought before the meeting in accordance with Section 2.10 of these Bylaws.
2.3Special Meetings.
(a) Special meetings of the shareholders may be called only as provided inthis Section 2.3these Bylaws or the Articles of Incorporation. Special meetings may be called by the Chairman of the Board of Directors, and shall be called by the Chairman of the Board of Directors or the Secretary within 10 days after receipt of the written request of a majority of the total number of Directors which the Corporation would have if there were no vacancies (the “Whole Board”) or upon receipt of the written request of the holders(each, a “Requesting Shareholder”) of at least7525% ofthe voting power ofthe then outstanding shares of Common Stock(the “Requisite Percentage”); provided that the shares constituting the Requisite Percentage are determined to be Net Long Shares (as defined in Section 2.3(c)) that have been held continuously for at least one year prior to the date the request for a special meeting is submitted by the Requesting Shareholders (the“One-Year Period”). Any such request by a majority of the Whole Boardor the holders of at least 75% of the voting power of the then outstanding shares of Common Stockshall be sent to the Chairman of the Board of Directors and the Secretary and shall state the purpose or purposes of the proposed Declassification Amendmentsmeeting.Any such request by a Requesting Shareholder shall comply with the requirements set forth in these Bylaws. At a special meeting of shareholders, only such business shall be conducted or considered as shall have been stated in the notice of the meeting given by or at the direction of the Board of Directors.If the request for the meeting is received from shareholders pursuant to this Section 2.3, the Board of Directors shall have the authority to submit additional matters to the shareholders and to cause other business to be transacted.
(b) Notwithstanding the provisions of Section 2.3(a), a special meeting shall not be held if requested by the shareholders and (i) the written request does not comply with these Bylaws, (ii) the business specified in the written request is not a proper subject for shareholder action under applicable law, (iii) the Board of Directors has called or calls for an annual or special meeting of shareholders to be held within 60 days after the Secretary receives the written request and the Board of Directors determines that the business of such meeting includes (among any other matters properly brought before the annual or special meeting) the business specified in the written request, (iv) the written request is received by the Secretary during the period commencing 90 days prior to the anniversary date of the prior year’s annual meeting of shareholders and ending on the date of the final adjournment of the next annual meeting of shareholders, (v) an identical or substantially similar item (a “Similar Item”) was presented at any meeting of shareholders held within 60 days prior to receipt by the Secretary of the written request (and, for purposes of this clause (v), the nomination, election or removal of Directors shall be deemed a “Similar Item” with respect to all items of business involving the nomination, election or removal of Directors, the changing of the size of the Board of Directors and the filling of vacancies or newly created Directorships), or (vi) the written request was made in a manner that involved a violation of applicable law. If none of the Requesting Shareholders appear or send a qualified representative to present the item of business for consideration at the special meeting, such item of business shall not be submitted for vote of the shareholders at
C-1 FLOWERS FOODS, INC. - 2020 Proxy Statement
APPENDIX C (PROPOSED AMENDED AND RESTATED BYLAWS)
such special meeting. Whether the Requesting Shareholders have complied with the requirements of this Section 2.3 and related provisions of these Bylaws shall be determined in good faith by the Board of Directors, which determination shall be exclusive and binding on the Corporation and the shareholders of the Corporation.
(c) For purposes of determining the Requisite Percentage, “Net Long Shares” shall be determined with respect to each Requesting Shareholder in accordance with the definition of “net long position” set forth in Rule14e-4 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (as so amended and inclusive of such rules and regulations, the “Exchange Act”); provided that (i) for purposes of such definition, (A) “the date that a tender offer is first publicly announced or otherwise made known by the bidder to the holders of the security to be acquired” shall be the date of the relevant request for a special meeting submitted by the Requesting Shareholders, (B) the “highest tender offer price or stated amount of the consideration offered for the subject security” shall refer to the closing sales price of Common Stock on the NYSE (or any successor thereto) on such date (or, if such date is not a trading day, the next succeeding trading day), (C) the “person whose securities are the subject of the offer” shall refer to the Corporation, and (D) a “subject security” shall refer to the outstanding Common Stock; and (ii) the net long position of such holder shall be reduced by the number of shares of Common Stock as to which such holder does not, or will not, have the right to vote or direct the vote at the requested special meeting or as to which such holder has, at any time during theOne-Year Period, entered into any derivative or other agreement, arrangement or understanding that hedges or transfers, in whole or in part, directly or indirectly, any of the economic consequences of ownership of such shares and which derivative or other agreement, arrangement or understanding remains in effect. Whether shares constitute “Net Long Shares” shall be decided in good faith by the Board of Directors.
2.4Notice of Meeting. Written notice of every meeting of the shareholders, stating the place, day, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be givenby the Corporation not fewer than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder of record entitled to vote at such meeting. Within thirty (30) days of receipt from the shareholders of the Corporation of sufficient written demands for a special meeting which comply with and satisfy the requirements of Section 2.3, Section 2.10(e) and Section 3.5 for the call of a special meeting, the Secretary of the Corporation will issue notice calling for a special meeting of the shareholders to be held within sixty (60) days of such notice. Written notice shall be given personally, by mail, by private courier,by facsimile transmission, or by telegraph, teletype or other form of wire or wireless communicationor by electronic transmission. If mailed, notice shall be deemed to be delivered when deposited in the United States mail with first-class postage thereon prepaid, addressed to the shareholder at his address as it appears on the stock transfer books of the Corporation. When a meeting of the shareholders is adjourned to another place, date or time, by the holders of a majority of the voting power of the voting shares represented at a meeting, whether or not a quorum is present, notice need not be given of the adjourned meeting if the date, time, and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken; provided, however, if the Board is required to fix a new record date pursuant to Section 7.5(a) of these Bylaws, notice must be given to persons who are shareholders as of the new record date entitled to vote as such meeting. At an adjourned meeting at which a quorum is present or represented, any business that could have been transacted at the meeting originally called may be transacted.
2.5Waiver of Notice. Notice of a meeting need not be given to any shareholder who signs a waiver of notice, in person or by proxy, either before or after the date and time stated in the notice. Waiver must be in writing and delivered to the Corporation for inclusion in the minutes or for filing with the corporate records. Attendance of a shareholder at a meeting, either in person or by proxy, shall of itself constitute waiver of notice and waiver of any and all objections to: (1) lack of notice or defective notice of a meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting; and (2) consideration at the meeting of a particular matter that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. Neither the business transacted nor the purpose of the meeting need be specified in the waiver, except that any waiver by a shareholder of the notice of a meeting of shareholders with respect to an amendment of the Articles of Incorporation, a plan of merger or share exchange, a sale of assets, or any other action which would entitle the shareholder to dissent and obtain payment for his shares shall not be effective unless: (a) prior to execution of the waiver, the shareholder is furnished with the same material required to be sent to the shareholder in a notice of the meeting, including notice of any applicable dissenters‘ rights; or (b) the waiver expressly waives the right to receive the materials required to be furnished.
2.6Inspectors. The Board of Directors shall appoint one or more inspectors of election to act as judges of the voting and to determine those entitled to vote at any meeting of the shareholders, or any adjournment thereof, in advance of such meeting, but if the Board of Directors fails to make such appointment(s) or if an appointee fails to serve, the presiding officer of the meeting of the shareholders may appoint one or more inspectors (or substitute inspectors) to act at the meeting.
2.7Quorum. Except as may be provided in the Articles of Incorporation, a majority of the votes entitled to be cast on a matter by the voting group, represented in person or by proxy, shall constitute a quorum of that voting group for action on that matter. Once a share is represented at a meeting for any purpose, other than solely to object to holding the meeting or transacting business at the meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for the adjourned meeting.
2.8Voting. Except as provided in the Articles of Incorporation or as otherwise provided by law, each outstanding share shall be entitled to one vote on each matter submitted to a vote at a meeting of the shareholders. The vote upon any question brought before a meeting of the shareholders may be by voice vote, unless otherwise required by the Articles of Incorporation or these Bylaws or unless the presiding officer or the holders of a majority of the voting power of the then outstanding shares of all classes of stock entitled to vote thereon present in person or by proxy at such meeting shall determine otherwise. Every vote taken by written ballot shall be counted by the inspector(s) of election. Except as provided in these Bylaws, the Articles of Incorporation or by law, if a quorum exists, action on a matter (other than the election of Directors) by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action. Directors shall be elected at the annual meeting in accordance with the Articles of Incorporation.
2.9Proxies. A shareholder may vote his shares in person or by proxy. A shareholder may appoint a proxy by executing a writing which authorizes another person or persons to vote or otherwise act on the shareholder‘s behalf. Execution may be accomplished by any reasonable means,
FLOWERS FOODS, INC. - 2020 Proxy Statement C-2
APPENDIX C (PROPOSED AMENDED AND RESTATED BYLAWS)
including facsimile transmission. A proxy is effective when received by the inspector of elections and is valid for eleven (11) months from the date of its execution, unless a longer period is expressly provided in the appointment form. An appointment of proxy is revocable by a shareholder unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest.
2.10Order of Business.
(a) The Chairman of the Board of Directors, or such officer of the Corporation designated by a majority of the Whole Board (as such term is defined in Section 2.3 of these Bylaws), shall call meetings of the shareholders of the Corporation to order and shall act as presiding officer thereof. Unless otherwise determined by the Board of Directors prior to the meeting, the presiding officer of the meeting of the shareholders shall determine the order of business and shall have the authority in his discretion to regulate the conduct of any such meeting, including, without limitation, by imposing restrictions on the persons (other than shareholders of the Corporation or their duly appointed proxies) who may attend any such shareholders‘ meeting; by excluding any shareholder or his proxy from any such meeting based upon the determination by the presiding officer, in his sole discretion, that any such person has unduly disrupted or is likely to disrupt the proceedings thereat; and by determining the circumstances in which any person may make a statement or ask questions at any such meeting.
(b) At an annual meeting of the shareholders, only such business shall be conducted or considered as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (ii) otherwise properly brought before the meeting by or at the direction of a majority of the Whole Board, or (iii) otherwise properly requested to be brought before the meeting by a shareholder of the Corporation.
(c) For business to be properly requested to be brought beforeaan annual meeting by a shareholder of the Corporation, the shareholder (i) must be a shareholder of record at the time of the giving of the notice for such annual meeting provided for in the Bylaws of this Corporation, (ii) must be entitled to vote at such meeting, and (iii) must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a shareholder‘s notice must be delivered to or mailed and received at the principal executive offices of the Corporation not less than 90 days nor more than 120 days prior to the first anniversary of the date on which the preceding year’s annual meeting of shareholders took place; provided, however, that in the event that the date of the annual meeting is changed by more than 30 days before or more than 60 days after such anniversary date, notice by the shareholder to be timely must be so received not earlier than the close of business on the 120th day prior to the date of such annual meeting and not later than the 90th day prior to the date of such annual meeting, or if the public announcement of the date of the annual meeting is less than 100 days prior to the date of such meeting, the 10th day following the day on which public announcement is first made of the changed date of the meeting.
(d) Ashareholder‘sshareholder’s notice to the Secretary shall set forth as to each matter the shareholder proposes to bring before the meeting (i) a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting, (ii) the name and address, as they appear on the Corporation’s books, of the shareholder and any Shareholder Associated Person (as defined herein) proposing such business, (iii) the class and number of shares of the Corporation that are owned beneficially and of record by the shareholder and any Shareholder Associated Person, (iv) any derivative positions related to any class or series of securities of the Corporation held or beneficially held by the shareholder and any Shareholder Associated Person, and (v) whether and the extent to which any hedging, swap or other transaction or series of transactions has been entered into by or on behalf of, or any other agreement, arrangement or understanding (including any short position or any borrowing or lending of shares of stock) has been made, the effect or intent of which is to mitigate loss to, or manage risk of share price changes for, or to increase the voting power of, the shareholder or any Shareholder Associated Person with respect to any shares of stock of the Corporation (all of which information in this Section 2.10(d) shall be supplemented by such shareholder if any of the facts set forth in this notice change during the period between the date such notice is sent and the date of the meeting, not later than five days after the event giving rise to such change). For the avoidance of doubt, this Section 2.10(d) shall be the exclusive means for a shareholder to submit business (other than business included in theCorporation‘sCorporation’s notice of meeting pursuant to Rule14a-8 under theSecuritiesExchange Act of 1934, as amended (the“Exchange Act”)) before an annual or special meeting of shareholders.
(e) For business to be properly requested to be brought before a special meeting by a shareholderor shareholders of the Corporation, theshareholder (i) must be a shareholder of record at the time of the giving of the notice for such special meeting provided for in the Bylaws of this Corporation, (ii) must be entitled to vote at such meeting, and (iii) must have given timely notice thereof in writing to theSecretary of the Corporation, and such notice shall comply with the notice procedures set forth in Section 2.10(d). To be timely, a shareholder‘s notice must be delivered to or mailed and received at the principal executive offices of the Corporation not later than theclose of business on the 90th day nor earlier than the close of business on the 120th day prior to the date of the special meeting (or if the first public announcement of the date of such special meeting is less than 100 days prior to the date of such special meeting, the 10th day following the day on which public announcement of the date of such special meeting is first made by the Corporation).Requesting Shareholder(s) must provide documentary evidence to the Secretary that the Requisite Percentage of Net Long Shares have been held continuously for theOne-Year Period by each Requesting Shareholder. Further, the Requesting Shareholder(s)’s written request for a special meeting shall contain the information required to be included in a shareholder’s notice pursuant to clauses (i) – (v) of Section 2.10(d), including the requirement that such information be supplemented. In addition to the information required by clauses (i) – (v) of Section 2.10(d), the Requesting Shareholder(s)’s written request for a special meeting must (i) set forth the text of the proposal or business (including the text of any resolutions proposed for consideration) and, if the business includes a proposal to amend ourthe Bylaws or Articles of Incorporation, the language of the proposed amendment, (ii) provide a representation that at least one of the Requesting Shareholders will appear to present the item of business at the special meeting, (iii) include an acknowledgement by amendingeach Requesting Shareholder that any decrease after the date on which the special meeting request is delivered to the Chairman of the Board of Directors or the Secretary in the number of Net Long Shares held by each Requesting Shareholder shall be deemed a revocation of the special meeting request with respect to such shares and restatingthat such shares will no longer be included in determining whether the Requisite Percentage has been satisfied, and (iv) provide a description of all arrangements or understandings between each Requesting Shareholder and any Shareholder Associated Persons or other persons, including their names, in connection with the proposed business of the special meeting and any material interest of each Requesting Shareholder and Shareholder Associated Person in such proposed business.
C-3 FLOWERS FOODS, INC. - 2020 Proxy Statement
APPENDIX C (PROPOSED AMENDED AND RESTATED BYLAWS)
(f) For purposes of Section 2.10 “business” shall mean all matters other than nomination of candidates for, and the election of, directors. Shareholder nominations of directors for election is governed solely by Section 3.5 of these Bylaws. Notwithstanding anything in this Section 2.10 to the contrary, no business shall be conducted at any shareholders meeting except in accordance with the procedures set forth in this Section 2.10. The presiding officer of the meeting shall, if the facts warrant, determine that business was not properly brought before the meeting in accordance with the procedures prescribed in this Section 2.10 and, if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Notwithstanding the foregoing provisions of this Section 2.10, a shareholder shall also comply with all applicable requirements of the Exchange Act, and the rules and regulations thereunder with respect to the matters set forth in this Section 2.10; provided, however, that any references in these Bylaws to the Exchange Act, or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to shareholder proposals. Nothing in this Bylaw shall be deemed to apply to or affect any rights of shareholders to request inclusion of proposals in theCorporation‘sCorporation’s proxy statement pursuant to Rule14a-8 under the Exchange Act by satisfying the notice and other requirements of Rule14a-8 in lieu of satisfying the requirements of this Bylaw. For purposes of Section 2.10 and Section 3.5 of these Bylaws, a “Shareholder Associated Person” of any shareholder shall mean (A) any person controlling, directly or indirectly, or acting in concert with, such shareholder, (B) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such shareholder and (C) any person controlling, controlled by or under common control with such Shareholder Associated Person. For purposes of Section 2.10 and Section 3.5 of these Bylaws, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service, in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 3.2, 3.313, 14 or 15(d) of the Exchange Act, or in shareholder correspondence or a shareholder report.
ARTICLE 3.
DIRECTORS
3.1Powers. The business and 3.4 in their entiretyaffairs of the Corporation shall be managed under the direction of its Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as follows:are not by law or by the Articles of Incorporation directed or required to be exercised or done by the shareholders.
3.2Number, Qualification and Term of Office. The authorized number of Directors may be determined from time to time only by a vote of a majority of the Whole Board (as defined in Section 2.3 of these Bylaws) or by the affirmative vote of the holders ofat least66-2/3%a majority of the voting power of the then outstanding shares ofcapitalall classes of stockof the Corporationentitled to vote generally in the election of Directors, voting together as a single class, but in no case shall the number of Directors be fewer than 3 or more than 16. The Directors shall be natural persons of the age of eighteen (18) years or older, but need not be residents of the State of Georgia or hold shares of stock in the Corporation.The Directors shall be classified with respect to the time for which they severally hold office into three classes, as nearly equal in number as possible, designated Class I, Class II and Class III. The Directors first appointed to Class I shall hold office for a term expiring at theto be held in 2002; the Directors first appointed to Class II shall hold office for a term expiring at the annual meeting of shareholders to be held in 2003; and the Directors first appointed to Class III shall hold office for a term expiring at the annual meeting of shareholders, to be held in 2004, with the members of each class to hold office until their successors are elected and qualified. At each succeeding annual meeting of the shareholders of the Corporation, the successors of the Class of,Directorswhose terms expire at that meeting(or (or such Directors’Directors’successors) shall be elected in accordance with the Articles of Incorporationfor aone-year term. Accordingly, at the 2015 annual meeting of shareholders, the Directors whose terms expire at that meeting (or such Directors’Directors’ successors) shall be elected to hold office for aone-year term expiring at the2016 annual meeting of shareholders; at the 2016 annual meeting of shareholders, held in the third year following the year of their election., the Directors whose terms expire at that meeting (or such Directors’Directors’ successors) shall be elected to hold office for aone-year term expiring at the 2017 annual meeting of shareholders; and at the 2017 annual meeting of shareholders and each annual meeting of shareholders thereafter, all Directors shall be elected to hold office for aone-year term expiring at the next annual meeting of shareholders.shareholders or until such Director’s successor shall have been elected and qualified.
3.3Vacancies and Newly Created Directorships. Newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled solely by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining Director. Any Director electedto fill a vacancy shall be elected for the unexpired term of the class of Directors in which the vacancy occurred. Any Director electeddirectorsdirectorssuccessor.successor. Any Director elected to fill a vacancy not resulting from an increase in the number of Directors shall have the same remaining term as that of his or her predecessor.predecessor. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of an incumbent Director. A vacancy that will occur at a specific date (including but not limited to a resignation that specifies a later date) may be filled before the vacancy occurs, but the new Director may not take office until the vacancy occurs.
3.4Removal of Directors. Any Directoror all of the Directors of the Corporation may be removed with cause byDirector serving for a term expiring at the third annual meeting of shareholders following the election of such Director shall be removable only for cause, and all other Directors, including all Directors elected at the 2017 annual meeting of shareholders and thereafter, shallshall be removable either with or without cause. The removal of any Director, whether with or without cause, shall require the affirmative vote of the holders ofat least66-2/3%a majority of the voting power of the then outstanding shares ofcapitalall classes of stockof the Corporationentitled to vote generally in the election of Directors, voting together as a single class. A Director may be removed by the shareholders only at a meeting called for the purpose of removing him, and the meeting notice must state that the purpose, or one of the purposes, of the meeting is removal of the Director.
3.5Nominations of Directors; Election.
(a) Only persons who are nominated in accordance with the following procedures shall be eligible for election as Directors of the Corporation. Nominations of persons for election as Directors of the Corporation may be made by (i) the Board of Directors or a committee appointed by the Board of Directors, or (ii) any person who is a shareholder of record at the time of giving of notice for the meeting provided for in these Bylaws, who is entitled to vote for the election of Directors and who complies with the procedures set forth in this Section 3.5. All nominations by shareholders shall be made pursuant to timely notice in proper written form to the Secretary of the Corporation. To be timely, a shareholder‘s notice shall be delivered to or mailed and received at the principal executive offices of the Corporation: (i) in the case of an annual meeting, not less than 90 days nor more than 120 days prior to the first anniversary of the date on which the preceding year’s annual meeting of shareholders took place; provided, however,
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APPENDIX C (PROPOSED AMENDED AND RESTATED BYLAWS)
that in the event that the date of the annual meeting is changed by more than 30 days before or more than 60 days after such anniversary date, notice by the shareholder to be timely must be so received not earlier than the close of business on the 120th day prior to the date of such annual meeting and not later than the 90th day prior to the date of such annual meeting, or if the public announcement of the date of the annual meeting is less than 100 days prior to the date of such meeting, the 10th day following the day on which public announcement is first made of the changed date of the meeting; and (ii) in the case of a special meeting at which Directors are to be elected, not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the date of the special meeting (or if the first public announcement of the date of such special meeting is less than 100 days prior to the date of such special meeting, the 10th day following the day on which public announcement of the date of such special meeting and of the nominees proposed by the Board of Directors is first made by the Corporation). To be in proper written form, such shareholder‘s notice shall set forth or include (i) the name and address, as they appear on the Corporation’s books, of the shareholder and any such Shareholder Associated Person giving the notice; (ii) a representation that the shareholder and any Shareholder Associated Person giving the notice is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (iii) the class and number of shares of stock of the Corporation owned beneficially and of record by the shareholder and any Shareholder Associated Person; (iv) a description of all arrangements or understandings between or among any of (A) the shareholder giving the notice, (B) any Shareholder Associated Person, (C) each nominee, and (D) any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the shareholder giving the notice; (v) any derivative positions related to any class or series of securities of the Corporation held or beneficially held by the shareholder and any Shareholder Associated Person; (vi) whether and the extent to which any hedging, swap or other transaction or series of transactions has been entered into by or on behalf of, or any other agreement, arrangement or understanding (including any short position or any borrowing or lending of shares of stock) has been made, the effect or intent of which is to mitigate loss to, or manage risk of share price changes for, or to increase the voting power of, the shareholder, any Shareholder Associated Person, or nominee with respect to any shares of stock of the Corporation; (vii) such other information regarding each nominee proposed by the shareholder giving the notice as would be required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission, had the nominee been nominated, or intended to be nominated, by the Board of Directors; and (viii) the signed consent of each nominee to serve as a Director of the Corporation if so elected. At the request of the Board of Directors, any person nominated by the Board of Directors for election as a Director shall furnish to the Secretary of the Corporation that information required to be set forth in a shareholder‘s notice of nomination which pertains to the nominee (all of which information in this Section 3.5(a) shall be supplemented by such shareholder if any of the facts set forth in this notice change during the period between the date such notice is sent and the date of the meeting, not later than five days after the event giving rise to such change). For the avoidance of doubt, the foregoing provisions of this Section 3.5(a) shall be the exclusive means for a shareholder to make nominations (other than business included in the Corporation‘s notice of meeting pursuant to Rule14a-8 under the Exchange Act) before an annual or special meeting of shareholders. The presiding officer of the meeting for election of Directors shall, if the facts warrant, determine that a nomination was not made in accordance with the procedures prescribed by this Section 3.5, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. Notwithstanding the foregoing provisions of this Section 3.5, a shareholder shall also comply with all applicable requirements of the Exchange Act, and the rules and regulations thereunder with respect to the matters set forth in this Section 3.5; provided, however, that any references in these Bylaws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to shareholder nominations. Nothing in this Bylaw shall be deemed to apply to or affect any rights of shareholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule14a-8 under the Exchange Act by satisfying the notice and other requirements of Rule14a-8 in lieu of satisfying the requirements of this Bylaw.
(b) In addition, to be eligible to be a nominee for election or reelection as a director of the Corporation, a person must deliver (in accordance with the time periods prescribed for delivery of notice under Section 3.5(a)) to the Secretary at the principal executive offices of the Corporation a written representation and agreement (in the form provided by the Secretary upon written request) that such person (A) is not and will not become a party to (1) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (2) any Voting Commitment that could limit or interfere with such person‘s ability to comply, if elected as a director of the Corporation, with such person’s fiduciary duties under applicable law, (B) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed therein, and (C) in such person‘s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a director of the Corporation, and will comply, with all applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation.
3.6Resignation. Any Director may resign at any time by giving written notice of his resignation to the Board of Directors, the Chairman of the Board of Directors or the Corporation.
3.7Compensation. The Board of Directors may establish the compensation for, and reimbursement of the expenses of, Directors for membership on the Board of Directors and on committees of the Board of Directors, attendance at meetings of the Board of Directors or committees of the Board of Directors, and for other services by Directors to the Corporation.
3.8Interested Director Transactions. An interested Director is one who is a party to a contract or transaction with the Corporation or who is an officer or Director of, or has a financial interest in, another corporation, partnership, association, or other entity which is a party to a contract or transaction with the Corporation. Transactions involving such a Director shall be governed bySection 14-2-860, et seq., of the Georgia Business Corporation Code, as the same may hereinafter be amended.
C-5 FLOWERS FOODS, INC. - 2020 Proxy Statement
APPENDIX C (PROPOSED AMENDED AND RESTATED BYLAWS)
ARTICLE 4.
MEETINGS OF THE BOARD
4.1Regular Meetings. Regular meetings of the Board of Directors may be held without notice immediately after the annual meeting of the shareholders and at such other time and place either within or without the State of Georgia as shall from time to time be determined by the Board of Directors.
4.2Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors or the President, on one day‘s written notice to each Director by whom such notice is not waived. Notice shall be given personally, by mail, by private courier,by facsimile transmission, or by telegraph, teletype or other form of wire or wireless communicationor by electronic transmission, and need not describe the business to be transacted at, or the purpose of, the special meeting. Special meetings of the Board of Directors may be held at such time and place either within or without the State of Georgia as is determined by the Board of Directors or specified in the notice of any such meeting.
4.3Waiver of Notice. A Director may waive any notice either before or after the date and time stated in the notice. Such a waiver must be in writing, signed by the Director and delivered to the Corporation for inclusion in the minutes or filing with the corporate records. Attendance of a Director at a meeting shall constitute a waiver of notice of that meeting unless the Director at the beginning of the meeting (or promptly upon arrival) objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.
4.4Quorum. A quorum of the Board of Directors consists of a majority of the number of Directors then in office. If a quorum is present, the acts of a majority of the Directors in attendance shall be the acts of the Board of Directors. A Director who is present at a meeting of the Board of Directors when corporate action is taken is deemed to have assented to the action taken unless: (a) that Director objects at the beginning of the meeting (or promptly upon arrival) to holding the meeting or to transacting business at the meeting; (b) the dissent or abstention of that Director from the action taken is entered into the minutes of the meeting; or (c) that Director delivers written notice of dissent or abstention to the presiding officer of the meeting before, or to the Corporation immediately after, adjournment of the meeting. The right of dissent is not available to a Director who votes in favor of an action taken.
4.5Adjournment. A meeting of the Board of Directors may be adjourned by a majority of the Directors present, whether or not a quorum exists. Notice of the time and the place of the adjourned meeting and of the business to be transacted thereat, other than by announcement at the meeting at which the adjournment is taken, shall not be necessary. At an adjourned meeting at which a quorum is present, any business may be transacted which could have been transacted at the meeting originally called.
4.6Participation in Meetings Other Than in Person. Members of the Board of Directors may participate in a meeting of the Board by any means of communication by which all persons participating in the meeting can hear each other. Participation in a meeting in such manner shall constitute presence in person at such meeting.
4.7Rules. The Board of Directors may adopt rules and regulations that are not inconsistent with law or these Bylaws for the conduct of their meetings and the management of the affairs of the Corporation.
ARTICLE 5.
COMMITTEES
5.1Formation and Powers. The Board of Directors, by resolution passed by a majority of the Whole Board (as defined in Section 2.3 of these Bylaws), may create one or more committees and appoint members of the Board of Directors to serve thereon. Each committee shall have such lawfully delegable powers and duties as the Board of Directors may confer. However, a committee shall not have the power to: (i) approve or propose to shareholders action that the Georgia Business Corporation Code requires to be approved by shareholders; (ii) fill vacancies on the Board of Directors or on any of its committees; (iii) amend the Articles of Incorporation pursuant toSection 14-2-1002 of the Georgia Business Corporation Code, as it may hereafter be amended; (iv) adopt, amend or repeal these Bylaws; or (v) approve a plan of merger not requiring shareholder approval. Any committee or committees so designated by the Board of Directors shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Unless otherwise prescribed by the Board of Directors, a majority of the members of the committee shall constitute a quorum for the transaction of business, and the act of a majority of the members present at a meeting at which there is a quorum shall be the act of such committee. Each committee shall prescribe its own rules for calling and holding meetings and its method of procedure, subject to any rules prescribed by the Board of Directors or by applicable law, and shall keep a written record of all actions taken by it.
5.2Removal. The Board of Directors shall have power at any time to remove any member of any committee, with or without cause, to fill vacancies on any committee, and to dissolve any committee.
ARTICLE 6.
OFFICERS
6.1Generally. The officers of the Company shall be elected by the Board of Directors and shall consist of a Chief Executive Officer, a President, a Secretary, and a Treasurer. The Board of Directors may also choose any or all of the following: a Controller, one or more Vice Presidents (who may be given particular designations with respect to authority, function, or seniority), and such other officers as the Board of Directors may from time to
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APPENDIX C (PROPOSED AMENDED AND RESTATED BYLAWS)
time determine. Notwithstanding the foregoing, by specific action the Board of Directors may authorize the Chairman of the Board of Directors to appoint any person to any office of the Corporation other than the Chief Executive Officer, who shall be elected by the Board of Directors. Any number of offices may be held by the same person. Any of the offices may be left vacant from time to time as the Board of Directors may determine. In the case of the absence or disability of any officer of the Company or for any other reason deemed sufficient by a majority of the Board of Directors, the Board of Directors may delegate the absent or disabled officer‘s powers or duties to any other officer or to any Director.
6.2Compensation. The compensation of all officers and agents of the Company who are also Directors of the Company shall be fixed by the Board of Directors or by a committee of the Board of Directors. The Board of Directors may fix the compensation of other officers and agents of the Company or delegate the power to fix such compensation to an officer of the Company.
6.3Succession. The officers of the Company will hold office until their successors are elected and qualified. Any officer may be removed at any time by the affirmative vote of a majority of the Whole Board. Any vacancy occurring in any office of the Company may be filled by the Board of Directors or by the Chairman of the Board of Directors as provided in Section 6.1 of these Bylaws.
6.4Authority and Duties. Each of the officers of the Corporation shall have such authority and shall perform such duties as are customarily incident to their respective offices, or as may be specified from time to time by the Board of Directors.
6.5Interested Officer Transactions. An interested officer is one who is a party to a contract or transaction with the Corporation or who is an officer or Director of, or has a financial interest in, another corporation, partnership, association, or other entity which is a party to a contract or transaction with the Corporation. Transactions involving such an officer shall be governed bySection 14-2-864 of the Georgia Business Corporation Code, as the same may hereinafter be amended.
ARTICLE 7.
CAPITAL STOCK
7.1Certificates. The interest of each shareholder may be evidenced by a certificate or certificates representing shares of stock of the Corporation, which shall be in such form as the Board of Directors may from time to time adopt, shall be numbered and shall be entered in the books of the Corporation as they are issued. Each share certificate shall state, on its face, the name of the Corporation and that it is organized under the laws of Georgia, the name of the person to whom it is issued, and the number and class of shares and the designation of the series, if any, that the certificate represents. Also, each certificate may bear the seal of the Corporation or a facsimile thereof and shall be signed, either manually or in facsimile, by any one of the following: the President, the Secretary or an Assistant Secretary, or other officer designated by the Board of Directors for such purpose. If the certificate is signed in facsimile, it must be countersigned by a transfer agent or registered by a registrar other than the Corporation itself or an employee of the Corporation. The transfer agent or registrar may sign either manually or by facsimile.
7.2Transfers. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue, or to cause its transfer agent to issue, a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.
7.3Lost, Stolen or Destroyed Certificates. The Secretary may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact, satisfactory to the Secretary, by the person claiming the certificate of stock to be lost, stolen or destroyed. As a condition precedent to the issuance of a new certificate or certificates, the Secretary may require the owners of such lost, stolen or destroyed certificate or certificates to give the Corporation a bond in such sum and with such surety or sureties as the Secretary may direct as indemnity against any claims that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed or the issuance of the new certificate.
7.4Certificateless Shares. The Board of Directors of the Corporation may authorize the issuance of some or all of the shares of stock, of any or all of its classes or series, without certificates. Within a reasonable time after the issue or transfer of the shares without certificates, the Corporation shall send the shareholder to whom a share is to be issued a written statement specifying the name of the Corporation, that the Corporation is organized under the laws of Georgia, the name of the person to whom the shares are issued or transferred, the number and class of shares and the designation of the series, if any, that the certificate represents, and any applicable restriction on the transfer of such shares.
7.5Record Dates.
(a) In order that the Corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to take any other action, the Board of Directors shall in advance fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than 70 days before the date of such meeting. If no record date is fixed, the record date for determining shareholders entitled to notice of or to vote at any meeting of shareholders shall be the close of business on the day before the first notice is delivered to shareholders. A determination of shareholders of record entitled to notice of or to vote at a meeting of the shareholders shall apply to any adjournment of the meeting; provided, however, if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting, the Board of Directors shall fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the shareholders entitled to receive payment of any dividend or other distribution, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall not be more than 70 days prior to such payment. If no record date is fixed, the record date for determining shareholders for any such purpose shall be at the close of business on the day on which the Board of Directors authorizes the distribution.
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APPENDIX C (PROPOSED AMENDED AND RESTATED BYLAWS)
(c) The Corporation shall be entitled to treat the person in whose name any share of its stock is registered as the owner thereof for all purposes, and shall not be bound to recognize any equitable or other claim to, or interest in, such share on the part of any other person, whether or not the Corporation shall have notice thereof, except as expressly provided by applicable law.
ARTICLE 8.
MISCELLANEOUS
8.1Amendments. Notwithstanding anything contained in the Corporation‘s Articles of Incorporation to the contrary, unless otherwise required by applicable law, Sections 2.3 (Special Meetings), 2.10 (Order of Business), 3.2 (Number, Qualification and Term of Office), 3.3 (Vacancies and Newly Created Directorships), 3.4 (Removal of Directors), 3.5 (Nominations of Directors; Election), 8.8 (Fair Price Requirements) and 8.9 (Business Combinations with Interested Shareholders) of these Bylaws shall not be amended or repealed by the shareholders, and no provision inconsistent therewith shall be adopted by the shareholders, without the affirmative vote of the holders ofat least 66 2/3%a majority of the voting power of the then outstanding shares of Common Stock and outstanding shares of preferred stock voting together, to the extent the outstanding shares of preferred stock are afforded voting rights and powers generally equal to the voting rights and powers of shares of Common Stock.
8.2Inspection of Books.
(a) A shareholder may inspect and copy, during regular business hours at the Corporation‘s principal office, the following if he gives the Corporation written notice of his demand at least five (5) business days prior to the requested date of inspection: (1) the Corporation’s Articles of Incorporation and all amendments to them currently in effect; (2) the Corporation‘s Bylaws and all amendments to them currently in effect; (3) resolutions adopted by either the shareholders or Board of Directors increasing or decreasing the number of Directors, the classification of Directors, if any, and the names and residence addresses of all members of the Board of Directors; (4) resolutions adopted by the Board of Directors creating one or more classes or series of shares, and fixing their relative rights, preferences, and limitations, if shares issued pursuant to those resolutions are outstanding, and any resolutions adopted by the Board of Directors that affect the size of the board of Directors; (5) the minutes of all shareholders‘ meetings, executed waivers of notice of meetings, and executed written consents evidencing all action taken by shareholders without a meeting, for the previous three years; (6) all written communications to shareholders generally within the previous three years and the financial statements required to be made available to the shareholders for the previous three years underSection 14-2-1620 of the Georgia Business Corporation Code as it may hereinafter be amended; (7) a list of the names and business addresses of its current Directors and officers; and (8) the Corporation’s most recent annual registration delivered to the Secretary of State underSection 14-2-1622 of the Georgia Business Corporation Code.
(b) A shareholder may inspect and copy, during regular business hours at a reasonable location specified by the Corporation (1) excerpts from minutes of any meeting of the Board of Directors, records of any action of a committee of the Board of Directors while acting in place of the Board of Directors on behalf of the Corporation, minutes of any meeting of the shareholders, and records of action taken by the shareholders or Board of Directors without a meeting, to the extent not subject to inspection under Section8.18.2(a); (2) accounting records of the Corporation; and (3) the record of shareholders. A shareholder may inspect these records of the Corporation only if: (i) his demand is made in good faith and for a proper purpose that is reasonably relevant to his legitimate interest as a shareholder; (ii) he describes with reasonable particularity his purpose and the records he desires to inspect; (iii) the records are directly connected with his purpose; (iv) the records are to be used only for the stated purpose; and (v) the shareholder owns more than two percent (2%) of the outstanding shares of the Corporation at the date of his request.
8.3Seal. The corporate seal shall be in such form as the Board of Directors may from time to time determine. In the event that it is inconvenient at any time to use the corporate seal of the Corporation, the words “Seal” or “Corporate Seal” enclosed in parentheses or scroll shall be deemed the corporate seal of the Corporation.
8.4Checks, Notes, Drafts, Etc. Checks, notes, drafts, acceptances, bills of exchange, and other orders or obligations for the payment of money shall be signed by such officer or officers or person or persons as the Board of Directors by resolution shall from time to time designate.
8.5Fiscal Year. The fiscal year of the Corporation shall be fixed from time to time by the Board of Directors.
8.6Reliance upon Books, Reports and Records. Each Director, each member of a committee designated by the Board of Directors, and each officer of the Corporation shall, in the performance of his or her duties, be fully protected in relying in good faith upon such information, opinions, reports or statements, including financial statements and other financial data, prepared or presented to the Corporation by: (i) any of the Corporation‘s officers or employees who the Director reasonably believes to be reliable and competent in the matters presented; (ii) legal counsel, public accountants, investment bankers or other persons engaged by the Corporation as to matters the Director reasonably believes are within the person’s professional or expert competence; or (iii) committees of the Board of Directors of which he is not a member if the Director reasonably believes the committee merits confidence.
8.7Time Periods. In applying any provision of these Bylaws that requires that an act be done or not be done a specified number of days prior to an event, or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
8.8Fair Price Requirements. The Corporation shall be governed by all of the requirements of Part 2 of Article 11 of the Georgia Business Corporation Code, as amended.
8.9Business Combinations with Interested Shareholders. The Corporation shall be governed by all of the requirements of Part 3 of Article 11 of the Georgia Business Corporation Code, as amended.
FLOWERS FOODS, INC. - 2020 Proxy Statement C-8
APPENDIX C (PROPOSED AMENDED AND RESTATED BYLAWS)
8.10Indemnification. Each person who is or was or had agreed to become a Director or officer of the Corporation, or each such person who is or was serving or who had agreed to serve at the request of the Board of Directors or an officer of the Corporation as an employee or agent of the Corporation or as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including the heirs, executors, administrators or estate of such person), shall be indemnified by the Corporation to the fullest extent permitted by the Georgia Business Corporation Code or any other applicable laws as presently or hereafter in effect. The right to indemnification granted by this Section 8.10 shall include the right to be paid in advance expenses incurred in defending a proceeding. The Corporation may, by action of the Board of Directors, provide indemnification to other employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of Directors and officers. The right of indemnification provided in this Section 8.10 shall not be exclusive of any other rights to which any person seeking indemnification may otherwise be entitled, and shall be applicable to matters otherwise within its scope irrespective of whether such matters arose or arise before or after the adoption of this Section 8.10. Without limiting the generality or the effect of the foregoing, the Corporation may enter into one or more agreements with any person, which provide for indemnification greater or different than that provided in this Section 8.10. No amendment, modification or repeal of this Article shall adversely affect any right or protection of a Director, officer, employee or agent that exists at the time of such amendment, modification or repeal.
C-9 FLOWERS FOODS, INC. - 2020 Proxy Statement
FLOWERS FOODS, INC.
SHAREHOLDER RELATIONS DEPT.
1919 FLOWERS CIRCLE
THOMASVILLE, GA 31757
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FLOWERS FOODS, INC.
SHAREHOLDER RELATIONS DEPT.
1919 FLOWERS CIRCLE
THOMASVILLE, GA 31757
| | VOTE BY INTERNET -www.proxyvote.com Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 P.M. Eastern Time on June 4, 2015 (June 3, 2015May 20, 2020 (May 19, 2020 for 401(k) plan participants). Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form. |
| ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALS If you would like to reduce the costs incurred by Flowers Foods, Inc. in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports electronically via e-mail or the Internet. To sign up for electronic delivery, please follow the instructions above to vote usingby the Internet and, when prompted, indicate that you agree to receive or access proxy materials electronically in future years. |
| VOTE BY PHONE - 1-800-690-6903 Use any touch-tone telephone to transmit your voting instructions up until 11:59 P.M. Eastern Time on June 4, 2015 (June 3, 2015May 20, 2020 (May 19, 2020 for 401(k) plan participants). Have your proxy card in hand when you call and then follow the simple instructions the Vote Voice provides you. |
| VOTE BY MAIL Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Flowers Foods, Inc., c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717. |
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TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: | | |
M85290-P62932 | | D00129-P33899 | | KEEP THIS PORTION FOR YOUR RECORDS |
DETACH AND RETURN THIS PORTION ONLY— — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — |
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THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED. | | DETACH AND RETURN THIS PORTION ONLY |
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| FLOWERS FOODS, INC. | | | | | | | | |
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| | THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” ALL THE DIRECTOR-NOMINEES: | | | | | | | | |
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| | 1. | | To elect as directors of the company the eight nominees identified in the proxy statement, each to serve for a term of one year: | | | | For | | Against | | Abstain |
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| | | | 1a. | | George E. Deese | | | | ☐ | | ☐ | | ☐ |
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| | | | 1b. | | Rhonda Gass | | | | ☐ | | ☐ | | ☐ |
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| | | | 1c. | | Benjamin H. Griswold, IV | | | | ☐ | | ☐ | | ☐ |
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| | | | 1d. | | Margaret G. Lewis | | | | ☐ | | ☐ | | ☐ |
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| | | | 1e. | | A. Ryals McMullian | | | | ☐ | | ☐ | | ☐ |
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| | | | 1f. | | James T. Spear | | | | ☐ | | ☐ | | ☐ |
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| | | | 1g. | | Melvin T. Stith, Ph.D. | | | | ☐ | | ☐ | | ☐ |
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| | | | 1h. | | C. Martin Wood III | | | | ☐ | | ☐ | | ☐ |
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FLOWERS FOODS, INC. | | | | | | | | | | | | | | | | | | | | |
| | | THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE FOLLOWING PROPOSAL: | | For | | Against | | Abstain | | | | | | | | | | | | | | | | | | | | |
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| | | 1. | | To approve the Declassification Amendments to provide that, beginning in 2017, all directors will be elected on an annual basis for a term of one year; | | ¨ | | ¨ | | ¨ | | | | | | | | | | | | | | | | | | | | |
| | | THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” ALL THE DIRECTOR-NOMINEES: | | | | | | | | THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE FOLLOWING PROPOSALS: | | For | | Against | | Abstain | | |
| | | 2. | | | | To elect as directors of the company the five nominees identified in this proxy statement, each to serve for a term of one year (or, if the Declassification Amendments are not approved, four nominees as Class II directors until the annual meeting of shareholders for 2018 and, one nominee as a Class III director until the annual meeting of shareholders for 2016); | | For | | Against | | Abstain | | 3. | | To approve by advisory vote the compensation of the company’s named executive officers; | | ¨ | | ¨ | | ¨ | | |
| | | | | | | | | | | 4. | | To ratify the appointment of PricewaterhouseCoopers LLP as the independent registered public accounting firm for Flowers Foods, Inc. for the fiscal year ending January 2, 2016; | | ¨ | | ¨ | | ¨ | | |
| | | | | | | 2a. Joe E. Beverly 2b. Amos R. McMullian 2c. J. V. Shields, Jr. 2d. David V. Singer | | | | | | ¨ ¨ ¨ ¨ | | ¨ ¨ ¨ ¨ | | ¨ ¨ ¨ ¨ | | THE BOARD OF DIRECTORS RECOMMENDS A VOTE “AGAINST” THE FOLLOWING PROPOSALS: 5. Shareholder proposal regarding the vesting of equity awards of executive officers upon a change of control, if properly presented at the annual meeting; and | | For ¨ | | Against ¨ | | Abstain ¨ | | |
| | | | | | | 2e. James T. Spear | | | | | | ¨ | | ¨ | | ¨ | | 6. Shareholder proposal regarding shareholder approval of certain future severance agreements for senior executives, if properly presented at the annual meeting. | | ¨ | | ¨ | | ¨ | | |
| | | | | Please date this Proxy and sign it exactly as your name or names appear(s) on the stock certificates or on a label affixed hereto. When shares are held jointly, EACH joint owner should sign. When signing as attorney, executor, administrator, trustee, guardian, corporate officer, etc., give full title as such. If shares are held by a corporation, please sign in full the corporate name by its president or other authorized officer. If shares are held by a partnership, please sign in the partnership name by an authorized person. | | NOTE:In their discretion, the proxies are authorized to vote on any other matters that may properly come before the annual meeting or any adjournment thereof. | | | | | | | | |
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| | | | | Signature [PLEASE SIGN WITHIN BOX] | | Date | | | | Signature (Joint Owners) | | | | | | | | | | Date | | | | |
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| THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE FOLLOWING PROPOSALS: | | For | | Against | | Abstain |
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| 2. | | To approve by advisory vote the compensation of the company’s named executive officers; | | ☐ | | ☐ | | ☐ |
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| 3. | | To ratify the appointment of PricewaterhouseCoopers LLP as the independent registered public accounting firm for Flowers Foods, Inc. for the fiscal year ending January 2, 2021; and | | | | ☐ | | ☐ | | ☐ |
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| 4. | | A management proposal to amend the company’s restated articles of incorporation and amended and restated bylaws to reduce supermajority voting requirements, including the supermajority threshold required to call a special meeting. | | | | ☐ | | ☐ | | ☐ |
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| NOTE: In their discretion, the proxies are authorized to vote on any other matters that may properly come before the annual meeting or any adjournment or postponement thereof. | | | | | | | | |
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| | Please date this Proxy and sign it exactly as your name or names appear(s) on the stock certificates or on a label affixed hereto. When shares are held jointly, EACH joint owner should sign. When signing as attorney, executor, administrator, trustee, guardian, corporate officer, etc., give full title as such. If shares are held by a corporation, please sign in full the corporate name by its president or other authorized officer. If shares are held by a partnership, please sign in the partnership name by an authorized person. | | |
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| Signature [PLEASE SIGN WITHIN BOX] | | Date | | |
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| Signature (Joint Owners) | | Date | | |
FLOWERS FOODS, INC.
Dear Shareholder,
Please take note of the important information enclosed with this Proxy. Your vote is important, and we encourage you to exercise your right to vote these shares. Please mark the boxes on the reverse side of this proxy card to indicate your vote. Then sign the card and return it in the enclosed postage-paid envelope, or follow the instructions on the reverse side of this proxy card for Internet or telephone voting. Your vote must be received prior to the Annual Meeting of Shareholders on June 5, 2015.May 21, 2020.
If you are a participant in the Flowers Foods, Inc. 401(k) Retirement Savings Plan, you have the right to direct Great-West Trust Company, LLC, the Trustee of the 401(k) plan, how to vote the Flowers Foods, Inc. common shares allocated to the account. Any unvoted or unallocated shares will be voted by the Trustee in the same proportion on each proposal as the Trustee votes the shares of stock credited to the 401(k) plan participants’ accounts for which the Trustee receives voting directions from the 401(k) plan participants. The number of shares that are eligible to vote is based on the balance in the 401(k) plan on April 2, 2015,March 19, 2020, the record date for the Annual Meeting. Because all of the shares in the 401(k) plan are registered in the name of Great-West Trust Company, LLC, as Trustee, you will not be able to vote these shares in the 401(k) plan in person at the Annual Meeting on June 5, 2015.May 21, 2020.
If you own stock is owned directly in your own name as well as in the 401(k) plan, separate share totals are indicated on the reverse side of this voting instruction form. If you own stock indirectly through a bank or broker, as well as in the 401(k) plan, you will receive a separate voting instruction form from the bank or broker.
Thank you.
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| | Thank you. |
| | Flowers Foods, Inc. |
Flowers Foods, Inc.
Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting:
The Notice and Proxy Statement and Annual Report are available at www.proxyvote.com.
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M85291-P62932
FLOWERS FOODS, INC.
1919 Flowers CircleD00130-P33899
Thomasville, Georgia 31757
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS FOR THE
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| | FLOWERS FOODS, INC. 1919 Flowers Circle Thomasville, Georgia 31757 THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS FOR THE ANNUAL MEETING OF SHAREHOLDERS TO BE HELD ON MAY 21, 2020 The undersigned hereby appoints A. Ryals McMullian, R. Steve Kinsey and Stephanie B. Tillman as proxies, with power to act without the other, and with full power of substitution, and hereby authorizes them to represent and vote, as designated on the reverse side, all the shares of common stock of Flowers Foods, Inc. held of record on March 19, 2020, by the undersigned at the Annual Meeting of Shareholders to be held on May 21, 2020, and at any adjournment or postponement thereof. The above-named proxies of the undersigned are authorized to vote, in their discretion, upon such other matters as may properly come before the Annual Meeting or any adjournment or postponement thereof. If you are a participant in the Flowers Foods, Inc. 401(k) Retirement Savings Plan, you have the right to direct Great-West Trust Company, LLC, the Trustee of the 401(k) plan, how to vote the Flowers Foods, Inc. common shares allocated to the account. This proxy card also acts as a voting instruction form to provide voting directions to the Trustee. The proxies will vote on the proposals set forth in the Notice of Annual Meeting and Proxy Statement as specified on the reverse side and are authorized to vote, in their discretion, on any other matters that may properly come before the Annual Meeting or any adjournment or postponement thereof. | | |
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| | WHEN PROPERLY EXECUTED, THIS PROXY WILL BE VOTED IN ACCORDANCE WITH THE INSTRUCTIONS INDICATED ON THE REVERSE SIDE. IF NO INDICATION IS MADE, ANY EXECUTED PROXY WILL BE VOTED “FOR” THE ELECTION OF ALL OF THE DIRECTOR-NOMINEES LISTED ON THE REVERSE SIDE, “FOR” PROPOSALS 2, 3 AND 4, AND IN THE DISCRETION OF THE PROXIES AS TO ANY OTHER MATTERS THAT MAY PROPERLY COME BEFORE THE ANNUAL MEETING OR ANY ADJOURNMENT OR POSTPONEMENT THEREOF. PLEASE VOTE, DATE AND SIGN ON THE REVERSE SIDE AND RETURN THE PROXY | | |
ANNUAL MEETING OF SHAREHOLDERS TO BE HELD ON JUNE 5, 2015
The undersigned hereby appoints George E. Deese, Allen L. Shiver, R. Steve Kinsey and Stephen R. Avera as proxies, with power to act without the other, and with full power of substitution, and hereby authorizes them to represent and vote, as designated on the reverse side, all the shares of common stock of Flowers Foods, Inc. held of record on April 2, 2015, by the undersigned at the Annual Meeting of Shareholders to be held on June 5, 2015, and at any adjournment or postponement thereof. The above-named proxies of the undersigned are authorized to vote, in their discretion, upon such other matters as may properly come before the Annual Meeting and any adjournment or postponement thereof.
If you are a participant in the Flowers Foods, Inc. 401(k) Retirement Savings Plan, you have the right to direct Great-West Trust Company, LLC the Trustee of the 401(k) plan, how to vote the Flowers Foods, Inc. common shares allocated to this account. This proxy card also acts as a voting instruction form to provide voting directions to the Trustee.
The proxies will vote on the proposals set forth in the Notice of Annual Meeting and Proxy Statement as specified on the reverse side and are authorized to vote, in their discretion, on any other business that may properly come before the Annual Meeting.
WHEN PROPERLY EXECUTED, THIS PROXY WILL BE VOTED IN ACCORDANCE WITH THE INSTRUCTIONS INDICATED ON THE REVERSE SIDE. IF NO INDICATION IS MADE, ANY EXECUTED PROXY WILL BE VOTED “FOR” PROPOSAL 1, “FOR” THE ELECTION OF THE DIRECTOR-NOMINEES LISTED ON THE REVERSE SIDE, “FOR” PROPOSALS 3 AND 4 AND “AGAINST” PROPOSALS 5 AND 6, AND IN THE DISCRETION OF THE PROXIES AS TO ANY OTHER MATTERS THAT MAY PROPERLY COME BEFORE THE ANNUAL MEETING OR ANY ADJOURNMENT THEREOF.
PLEASE VOTE, DATE AND SIGN ON THE REVERSE SIDE AND RETURN THE PROXY
