As filed with the Securities and Exchange Commission
on May 5, 2022
Registration No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Utz
Brands, Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
85-2751850
(I.R.S. Employer Identification Number)
900
High Street
Hanover,
PA17331
(717)
637-6644
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Dylan
B. Lissette
Chief
Executive Officer
Utz
Brands, Inc.
900
High Street
Hanover,
PA17331
(717) 637-6644
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
With copies to:
Larry
P. Laubach, Esq.
Jeremiah
G. Garvey, Esq.
Cozen
O’Connor P.C.
One
Liberty Place
1650
Market Street
Suite
2800
Philadelphia,
Pennsylvania 19103
(215) 665-2000
Approximate date of commencement of proposed
sale to the public: From time to time on or after the effective date of this registration statement.
If the only
securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box: ¨
If any of
the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: x
If this Form
is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form
is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form
is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form
is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities
or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
x |
|
Accelerated filer |
¨ |
Non-accelerated filer |
¨ |
|
Smaller reporting company |
¨ |
|
|
|
Emerging growth company |
¨ |
If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any
new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act. ¨
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that specifically states
that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act, or until the
Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section
8(a), may determine.
The information in this preliminary prospectus is
not complete and may be changed. The securities may not be sold until the registration statement filed with the Securities and Exchange
Commission is effective. This preliminary prospectus is not an offer to sell these securities and is not soliciting an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted.
Subject to Completion, Dated
May 5, 2022.
PRELIMINARY PROSPECTUS
Utz Brands, Inc.
Up to 2,105,373 Shares of Class A Common Stock
This prospectus relates to the offer and sale
from time to time by the selling stockholders (which term as used in this prospectus, includes their respective transferees, pledgees,
distributees, donees, and successors-in-interest) named herein of up to 2,105,373 shares of our Class A Common Stock, par value $0.0001
per share (the “Class A Common Stock”), in one or more offerings.
The selling stockholders may offer, sell or distribute
all or a portion of the securities hereby registered publicly or through private transactions at prevailing market prices or at negotiated
prices. We will not receive any of the proceeds from such sales of the shares of Class A Common Stock. We will bear all costs, expenses
and fees in connection with the registration of these securities, including with regard to compliance with state securities or “blue
sky” laws. The selling stockholders will bear all commissions and discounts, if any, attributable to their sale of shares of Class
A Common Stock. See “Plan of Distribution” beginning on page 8 of this prospectus.
Our registration of the securities covered by
this prospectus does not mean that the selling stockholders will offer or sell any of the securities.
Each time any of the selling stockholders offer
and sell securities, we and such selling stockholders will provide a supplement to this prospectus that contains specific information
about the offering and the selling stockholders as well as the amounts, prices and terms of the securities. The supplement may also add,
update or change information contained in this prospectus with respect to that offering. You should carefully read this prospectus and
the applicable prospectus supplement before you invest in any of our securities.
The selling stockholders may offer and sell our
Class A Common Stock described in this prospectus and any prospectus supplement to or through one or more underwriters, dealers and agents,
or directly to purchasers, or through a combination of these methods. If any underwriters, dealers or agents are involved in the sale
of any of the securities, their names and any applicable purchase price, fee, commission or discount arrangement between or among them
will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. See the sections of
this prospectus entitled “About this Prospectus” and “Plan of Distribution” for more information. No securities
may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms of the offering
of such securities.
Our Class A Common Stock is traded on the New
York Stock Exchange (“NYSE”) under the symbols “UTZ”. On May 4, 2022, the closing price of our Class A Common
Stock was $14.42 per share.
Investing
in our securities involves risks. See “Risk Factors” beginning on page 5 of this prospectus and any
similar section contained in the applicable prospectus supplement concerning factors you should consider before buying our
securities.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is ,
2022.
TABLE OF CONTENTS
Prospectus
You should rely only on the information provided
in this prospectus, as well as the information incorporated by reference into this prospectus and any applicable prospectus supplement.
Neither we nor the selling stockholders have authorized anyone to provide you with different information. Neither we nor the selling stockholders
are making an offer of these securities in any jurisdiction where the offer is not permitted. You should not assume that the information
in this prospectus, any applicable prospectus supplement or any documents incorporated by reference is accurate as of any date other than
the date of the applicable document. Since the date of this prospectus and the documents incorporated by reference into this prospectus,
our business, financial condition, results of operations and prospects may have changed.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC”) using the “shelf” registration
process. Under this shelf registration process, the selling stockholders may, from time to time, sell the securities offered by it described
in this prospectus. We will not receive any proceeds from the sale by any such selling stockholder of the securities offered by it described
in this prospectus.
Neither we nor the selling stockholders have authorized
anyone to provide you with any information or to make any representations other than those contained in this prospectus or any applicable
prospectus supplement prepared by or on behalf of us or to which we have referred you. Neither we nor the selling stockholders take responsibility
for, and can provide no assurance as to the reliability of, any other information that others may give you. Neither we nor the selling
stockholders will make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted.
This prospectus incorporates by reference, and
any prospectus supplement may contain and incorporate by reference, estimates and information concerning our industry, our business, and
the market for our products and solutions, including our general expectations of our market position, market growth forecasts, our market
opportunity, and size of the markets in which we participate, that are based on industry publications, surveys, and reports that have
been prepared by independent third parties. This information involves a number of assumptions and limitations, and you are cautioned not
to give undue weight to these estimates. Although we have not independently verified the accuracy or completeness of the data contained
in these industry publications, surveys, and reports, we believe the publications, surveys, and reports are generally reliable, although
such information is inherently subject to uncertainties and imprecision. The industry in which we operate is subject to a high degree
of uncertainty and risk due to a variety of factors, including those described in the sections titled “Risk Factors” and “Cautionary
Note Regarding Forward-Looking statements” contained in this prospectus, any applicable prospectus supplement, and under similar
headings in other documents that are incorporated by reference into this prospectus. These and other factors could cause results to differ
materially from those expressed in these publications and reports. Certain information that may be included or incorporated by reference
in this prospectus or any prospectus supplement concerning our industry and the markets served by us, including our market share, is also
based on our good-faith estimates derived from management’s knowledge of the industry and other information currently available
to us.
We may also provide a prospectus supplement to
add information to, or update or change information contained in, this prospectus. Any statement contained in this prospectus will be
deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in such prospectus supplement
modifies or supersedes such statement. Any statement so modified will be deemed to constitute a part of this prospectus only as so modified,
and any statement so superseded will be deemed not to constitute a part of this prospectus. You should read both this prospectus and any
applicable prospectus supplement together with the additional information to which we refer you in the sections of this prospectus entitled
“Where You Can Find Additional Information” and “Incorporation of Certain Information by Reference.”
Unless the context indicates otherwise, references
in this prospectus to the “Company,” “Utz,” “we,” “us,” “our” and similar
terms refer to Utz Brands, Inc. and its consolidated subsidiaries.
TRADEMARKS, SERVICE MARKS AND TRADE NAMES
We own or license numerous domestic and foreign
trademarks and other proprietary rights that are important to our businesses. These include the U.S. trademark registrations, which protect
certain rights in the following brands: Utz, ON THE BORDER, Zapp’s, Golden Flake, Good Health, Boulder
Canyon, Hawaiian, TORTIYAHS!, Tim’s Cascade, Snyder of Berlin, “Dirty”, Kitchen Cooked,
Bachman, Jax and R.W. Garcia, among others. We own or have rights to use the trademarks, service marks and trade
names that we use in conjunction with the operation of our business. Some of the more important trademarks that we own or have rights
to use that appear in this prospectus may be registered in the U.S. and other jurisdictions. Each trademark, trade name or service mark
of any other company appearing in this prospectus is owned or used under license by such company.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and any accompanying prospectus
supplement contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities
Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are forward-looking
and as such are not historical facts. These forward-looking statements relate to expectations for future financial performance, business
strategies or expectations for the Company’s business. Specifically, forward-looking statements may include statements relating
to:
| · | The financial position, capital structure, indebtedness, business strategy and plans and objectives of management for future operations; |
| · | The benefits of acquisitions, dispositions and similar transactions; |
| · | The future performance of, and anticipated financial impact on, the Company; |
| · | Expansion plans and opportunities; and |
| · | Other statements preceded by, followed by or that include the words “may,” “can,” “should,” “will,”
“estimate,” “plan,” “project,” “forecast,” “intend,” “expect,”
“anticipate,” “believe,” “seek,” “target” or similar expressions. |
The following factors among others, could cause
actual results and future events to differ materially from those set forth or contemplated in the forward-looking statements:
| · | the risk that we may not recognize the anticipated benefits of recently completed business combinations and acquisitions recently
completed by us (collectively, the “Business Combinations”), which may be affected by, among other things, competition and
our ability to grow and manage growth profitably and retain our key employees; |
| · | our ability to close planned acquisitions; |
| · | changes in applicable law or regulations; |
| · | costs related to the Business Combinations and other planned acquisitions; |
| · | our inability to maintain the listing of our Class A Common Stock on NYSE; |
| · | our inability to develop and maintain effective internal controls; |
| · | the risk that our gross profit margins may be adversely impacted by a variety of factors, including variations in raw materials pricing,
retail customer requirements and mix, sales velocities and required promotional support; changes in consumers’ loyalty to our brands
due to factors beyond our control; |
| · | changes in demand for our products affected by changes in consumer preferences and tastes or if we are unable to innovate or market
its products effectively; |
| · | costs associated with building brand loyalty and interest in our products, which may be affected by our competitors’ actions
that result in our products not being suitably differentiated from the products of competitors; |
| · | fluctuations in our results of operations from quarter to quarter because of changes in promotional activities; and |
| · | the possibility that we may be adversely affected by other economic, business or competitive factors. |
These forward-looking statements are based on
information available as of the date of this prospectus and our management’s current expectations, forecasts and assumptions, and
involve a number of judgments, known and unknown risks and uncertainties and other factors, many of which are outside our control and
the control of our directors, officers and affiliates. Accordingly, forward-looking statements should not be relied upon as representing
our views as of any subsequent date. We do not undertake any obligation to update, add or to otherwise correct any forward-looking statements
contained herein to reflect events or circumstances after the date they were made, whether as a result of new information, future events,
inaccuracies that become apparent after the date hereof or otherwise, except as may be required under applicable securities laws.
As a result of a number of known and unknown risks
and uncertainties, our results or performance may be materially different from those expressed or implied by these forward-looking statements.
Some factors that could cause actual results to differ are set forth under the heading “Risk Factor Summary” below
and those described under the section of this prospectus entitled “Risk Factors” or otherwise disclosed in our SEC
reports, including those set forth in our Annual Report, which is incorporated by reference into this prospectus. We do not undertake
or accept any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements to reflect any
change in its expectations or any change in events, conditions or circumstances on which any such statement is based, except as otherwise
required by law.
PROSPECTUS SUMMARY
This summary of the Company highlights certain
significant aspects of our business and is a summary of information contained elsewhere in this prospectus. This summary is not complete
and does not contain all of the information that you should consider before making your investment decision. You should carefully read
this entire prospectus, including the information presented under the sections titled “Risk Factors,” and “Cautionary
Note Regarding Forward-Looking Statements,” included elsewhere in this prospectus and the information incorporated by reference,
before making an investment decision.
The Company
We are a leading United States manufacturer of
branded salty snacks. We produce a broad offering of salty snacks, including potato chips, tortilla chips, pretzels, cheese snacks, pork
skins, veggie snacks, pub/party mixes, and other snacks. Our iconic portfolio of authentic, craft, and “better-for-you” (“BFY”)
brands, which includes Utz, Zapp’s, ON THE BORDER, Golden Flake, Good Health and Boulder Canyon, among others, enjoys strong
household penetration in the United States, where our products can be found in approximately half of U.S. households. As of January 2,
2022, we operate 17 manufacturing facilities with a broad range of capabilities, and our products are distributed nationally to grocery,
mass, club, convenience, drug and other retailers through direct shipments, distributors, and more than 1,850 direct store delivery (“DSD”)
routes. Our company was founded in 1921 in Hanover, Pennsylvania, and benefits from nearly 100 years of brand awareness and heritage in
the salty snacks industry. We are the second-largest producer of branded salty snacks in our Core Geographies, based on retail sales and
we have historically expanded our geographic reach and product portfolio organically and through acquisitions.
Corporate Information
We
were incorporated under the name “Collier Creek Holdings” on April 30, 2018 as a Cayman Islands exempted company for purposes
of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more
businesses. On August 28, 2020, we domesticated into a Delaware corporation and changed our name to “Utz Brands, Inc.” in
connection with the consummation of a business combination (the “CCH Business Combination”) pursuant to that certain CCH Business
Combination Agreement, dated as of June 5, 2020, among us, Utz Brands Holdings, LLC (“UBH”), Series U of UM Partners, LLC
(“Series U”), and Series R of UM Partners, LLC (“Series R” and together with Series U, the “Continuing
Members”).
Our principal executive offices are located at
900 High Street, Hanover, Pennsylvania, 17331, and our telephone number is (717) 637-6644. Our website is www.utzsnacks.com. The information
found on, or that can be accessed from or that is hyperlinked to, our website is not part of this prospectus.
THE OFFERING
Class A Common Stock offered by the selling stockholders from time to time |
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Up to 2,105,373 shares |
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Use of proceeds |
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We will not receive any proceeds from the sale of shares of Class A Common Stock by the selling stockholders. |
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Risk Factors |
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See “Risk Factors” and other information included in this prospectus for a discussion of factors you should consider before investing in our securities. |
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NYSE Stock Market Symbol |
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“UTZ” |
RISK FACTOR SUMMARY
Our business is subject to numerous risks and
uncertainties, including those described or incorporated by reference in the section titled “Risk Factors” in this
prospectus and any applicable prospectus supplement, that represent challenges that we face in connection with the successful implementation
of our strategy and growth of our business. The occurrence of one or more of the events or circumstances described in the section titled
“Risk Factors” in this prospectus and any applicable prospectus supplement or documents incorporated in this prospectus
or any applicable prospectus supplement, alone or in combination with other events or circumstances, may harm our business. Such risks
include, but are not limited to, the following:
| · | our gross profit margins may be impacted by a variety of factors, including but not limited to variations in raw materials pricing,
retail customer requirements and mix, sales velocities and required promotional support; |
| · | consumers’ loyalty to our brands may change due to factors beyond our control, which could have a material adverse effect on
our business and operating results; |
| · | demand for our products may be adversely affected by changes in consumer preferences and tastes or if we are unable to innovate or
market our products effectively; |
| · | we must expend resources to create consumer awareness, build brand loyalty and generate interest in our products. In addition, competitors
may offer significant price reductions and consumers may not find our products suitably differentiated from products of our competitors; |
| · | fluctuations in our results of operations from quarter to quarter because of changes in our promotional activities may impact, and
may have a disproportionate effect on, our overall financial condition and results of operations; |
| · | our reputation or brand image might be impacted as a result of issues or concerns relating to the quality and safety of our products,
ingredients or packaging, and other environmental, social or governance matters, which in turn could negatively impact our operating results; |
| · | if our products become adulterated or are mislabeled, we might need to recall those items, and we may experience product liability
claims and damage to our reputation; |
| · | slotting fees and customer charges or charge-backs for promotion allowances, cooperative advertising, and product or packaging damages,
as well as undelivered or unsold food products may have a significant impact on our operating results and may disrupt our customer relationships; |
| · | we operate in the highly competitive snack food industry, which may reduce our ability to sell our products to our customers or consumers
if we are unable to compete effectively; |
| · | we face competition in our business from private label, generic or store branded products which may result in price point pressures,
leading to decreased demand for our products; |
| · | changes in retail distribution arrangements can result in the temporary loss of retail shelf space and disrupt sales of food products,
causing our sales to fall; |
| · | our direct-to-warehouse delivery network system relies on a significant number of brokers, wholesalers and logistics companies. Such
reliance could affect our ability to effectively and profitably distribute and market products, maintain existing markets and expand business
into other geographic markets; |
| · | our DSD network system and regional third-party distributor network relies on a significant number of independent operators and third-party
distributors, and such reliance could affect our ability to effectively and profitably distribute and market products, maintain existing
markets and expand business into other geographic markets; |
| · | a disruption in the operation of the DSD network, regional third-party distributor network or direct-to-warehouse system could negatively
affect our results of operations, financial condition and cash flows; |
| · | the evolution of e-commerce sales channels may adversely affect our business, financial condition or results of operations; |
| · | the rapid expansion of hard discounters may adversely affect our business, financial condition or results of operations; |
| · | disruption to our manufacturing operations, supply chain or distribution channels could impair our ability to produce or deliver finished
products and negatively impact our operating results; |
| · | our future results of operations may be adversely affected by input cost inflation; |
| · | our results could be adversely impacted as a result of increased labor and employee-related expenses; |
| · | a continued shortage of qualified labor could negatively affect our business and materially reduce earnings; |
| · | the loss of, or a significant reduction in sales to, any key customer can adversely affect our business, financial condition or results
of operations; |
| · | our business, financial condition or results of operations may be adversely affected by increased costs, disruption of supply or shortages
of raw materials, energy, water and other supplies; |
| · | pandemics, epidemics or other disease outbreaks, such as COVID-19, may change or disrupt consumption and trade patterns, supply chains,
and production processes, which could materially affect our operations and results of operations; |
| · | the recovery from the COVID-19 pandemic and the current economic climate is increasing labor costs, commodity costs and logistical
costs which has adversely affected our business operations and results of operations and may continue to do so in the future. Our efforts
to raise prices may not be successful at offsetting these cost increases and may have other adverse effects; |
| · | our financial position may be adversely affected by an unexpected event carrying an insurance obligation for which we have inadequate
coverage; |
| · | changes in the legal and regulatory environment could limit our business activities, increase our operating costs, reduce demand for
our products or result in litigation; |
| · | as a food manufacturing company, all of our products must be compliant with regulations by, among others, the U.S. Food and Drug Administration
(“FDA”), the Federal Trade Commission, United States Department of Agriculture (“USDA”), and the laws of the various
states and localities where we operate and sell products (“Local Laws”). In addition a number of our products rely on independent
certification that they are non-GMO, gluten-free, organic or Kosher. Any non-compliance with the FDA, or USDA, or the loss of any such
certification could harm our business; |
| · | our future results of operations may be adversely affected by the availability of organic ingredients; |
| · | potential liabilities and costs from litigation, claims, legal or regulatory proceedings, inquiries or investigations can have an
adverse impact on our business, financial condition or results of operations; |
| · | we may be unable to successfully identify and execute or integrate acquisitions; |
| · | the geographic concentration of our markets may adversely impact us if we are unable to effectively diversify the markets in which
we participate; |
| · | we may not be successful in implementing our growth strategy, including without limitation, increasing distribution of our products,
attracting new consumers to our brands, driving repeat purchase of our products, enhancing our brand recognition, and introducing new
products and product extensions, in each case in a cost-effective manner, on a timely basis, or at all; |
| · | resales of shares of our Class A Common Stock could cause the market price of our Class A Common Stock to drop significantly, even
if our business is doing well; |
| · | we are a holding company and our only material asset after the closing of the CCH Business Combination are our interest in UBH, and
we are accordingly dependent upon distributions made by our subsidiaries to pay taxes, make payments under the Tax Receivable Agreement
(the “TRA”) entered into in connection with the CCH Business Combination and pay dividends; |
| · | Pursuant to the TRA, we are required to pay to Continuing Members and/or the exchanging holders of common units of UBH, as applicable,
85% of the tax savings that we realized as a result of increases in tax basis in UBH’s assets as a result of the sale of common
units of UBH for the cash consideration in the CCH Business Combination, the purchase and redemption of the common units and preferred
units in the Continuing Members and the future exchange of the common units of UBH for shares of Class A Common Stock (or cash) pursuant
to UBH’s Third Amended and Restated Limited Liability Company Agreement and certain other tax attributes of UBH and tax benefits
related to entering into the TRA, including tax benefits attributable to payments under the TRA, and those payments may be substantial; |
| · | reports published by analysts, including projections in those reports that differ from our actual results, could adversely affect
the price and trading volume of our Class A Common Stock; |
| · | Delaware law, the Certificate of Incorporation and Bylaws contain certain provisions, including anti-takeover provisions that limit
the ability of stockholders to take certain actions and could delay or discourage takeover attempts that stockholders may consider favorable; |
| · | certain of our significant stockholders and UBH members whose interests may differ from those of our other stockholders will have
the ability to significantly influence our business and management; |
| · | our business and operations could be negatively affected if it becomes subject to any securities litigation or shareholder activism,
which could cause us to incur significant expense, hinder execution of business and growth strategy and impact our stock price; and |
| · | our warrants are required to be accounted for as liabilities rather than as equity and such requirement resulted in a restatement
of our previously issued financial statements. |
RISK FACTORS
Investing in our securities involves a high
degree of risk. You should carefully consider the risks and uncertainties discussed under the section titled “Risk
Factors” contained in our most recent Annual Report on Form 10-K and any subsequently filed Quarterly Reports on Form 10-Q or
Current Reports on Form 8-K, as well as any amendments thereto, which are incorporated by reference into this prospectus and any
applicable prospectus supplement in their entirety, together with other information in this prospectus and any applicable prospectus
supplement, and the documents incorporated by reference herein and therein, before making an investment decision. See
“Where You Can Find Additional Information” and “Incorporation of Certain Information by
Reference.” Our business, financial condition or results of operations could be materially adversely affected by the
materialization of any of these risks. The trading price of our securities could decline due to the materialization of any of these
risks, and you may lose all or part of your investment. This prospectus and the documents incorporated herein by reference also
contain forward-looking statements that involve risks and uncertainties. Actual results could differ materially from those
anticipated in these forward-looking statements as a result of certain factors, including the risks described above.
USE OF PROCEEDS
All of the securities offered by the selling stockholders
pursuant to this prospectus will be sold by the selling stockholders for their respective accounts. We will not receive any of the proceeds
from these sales.
SELLING STOCKHOLDERS
We have prepared this prospectus to allow the
selling stockholders to offer and sell from time to time up to 2,105,373 shares of our Class A Common Stock for their own account.
We are registering the offer and sale of
certain shares of our Class A Common Stock to be issued to the selling stockholders to satisfy certain registration obligations
under that certain Registration Rights Agreement dated April 28, 2022 (the “Rights Agreement”) by and among the
selling stockholders and the Company. Pursuant to the Rights Agreement, we have agreed to keep the registration statement of which
this prospectus forms a part effective until the Purchasers and their affiliates no longer hold any of the shares of our Class A
Common Stock purchased by the Purchasers under the Purchase Agreement nor any other shares of our Class A Common Stock issued as a
dividend or other distribution with respect to, in exchange for or in replacement of such shares (such shares of our Class A Common
Stock, the “Registrable Securities”). Such Registrable Securities shall cease to be Registrable Securities (and we shall
not be required to maintain the effectiveness of any, or file another, registration statement under the Securities Act that covers
the resale of any Registrable Securities pursuant to the provisions of the Rights Agreement) upon the first to occur of (a) the
disposition of such Registrable Securities by the holder thereof in accordance with an effective registration statement or an
exemption from the registration requirements of the Securities Act, other than certain dispositions permitted pursuant to the Rights
Agreement, (b) such securities becoming eligible for resale without volume or manner-of-sale restrictions pursuant to paragraphs (e)
and (f) of Rule 144 promulgated by the SEC pursuant to the Securities Act (“Rule 144), respectively, and without current
public information requirements pursuant to paragraph (c) of Rule 144 and (c) April 28, 2025.
The following table sets forth, as of May 5, 2022,
(i) the names of each selling stockholder, (ii) the number of shares of Class A Common Stock beneficially owned by each selling stockholder,
including the shares over which such selling stockholder has sole or shared voting power or investment power and also any shares that
such selling stockholder has the right to acquire within 60 days of such date through the exercise of any stock options, restricted stock
units or other rights, (iii) the number of shares that may be offered under this prospectus, and (iv) the number of shares of our Class
A Common Stock beneficially owned by each such selling stockholder assuming all of the shares covered hereby are sold. We do not know
how long the selling stockholders will hold the shares before selling them, and we currently have no agreements, arrangements, or understandings
with the selling stockholders regarding the sale or other disposition of any shares. To our knowledge, the selling stockholders listed
in the table below do not have, and during the three years prior to the date of this prospectus has not had, any position, office, or
other material relationships with us or any of our affiliates other than as described in the footnotes.
The information set forth in the table below is
based upon information obtained from the selling stockholders. Beneficial ownership of the selling stockholders is determined in accordance
with Rule 13d-3(d) under the Exchange Act. The percentage of shares beneficially owned prior to, and after, the offering is based on 80,702,548
shares of Class A Common Stock outstanding and 59,349,000 shares of Class V Common Stock outstanding as of April 28, 2022. None of the
selling stockholders hold any Class V Common Stock.
As used in this prospectus, the term “selling
stockholder” includes the selling stockholders listed in the table below and any of their transferees, pledgees, distributees, donees
and successors.
| |
Class A Common Stock Beneficially Owned
Prior to the Offering
| |
Number Registered | | |
Class A Common Stock Beneficially Owned After the Offering | |
Name | |
Number | | |
Percentage | | |
Voting Power** | |
for Sale Hereby | | |
Number | | |
Percentage | | |
Voting Power** | |
The 2006 Hirsch Family Partnership No. 1, Ltd. | |
| 1,052,687 | | |
| 1.3 | % | |
* | |
| 1,052,687 | | |
| — | | |
| — | | |
| — | |
The 2006 Hirsch Family Partnership No. 2, Ltd. | |
| 1,052,686 | | |
| 1.3 | % | |
* | |
| 1,052,686 | | |
| — | | |
| — | | |
| — | |
*Less than 1%.
**Percentage of total voting power
represents voting power with respect to all shares of Class A Common Stock and Class V Common Stock, as a single class. Each share of
Class V Common Stock is entitled to one vote per share and each share of Class A Common Stock is entitled to one vote per share. For more
information about the voting rights of common stock, see the section below titled “Description of Our Capital Stock.”
PLAN OF DISTRIBUTION
The selling stockholders and any of their pledgees,
donees, transferees, assignees or other successors-in-interest may, from time to time, sell, transfer or otherwise dispose of any or all
of their shares of Class A Common Stock or interests in shares of Class A Common Stock on any stock exchange, market or trading facility
on which the shares are traded or in private transactions. These dispositions may be at fixed prices, at prevailing market prices at the
time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices.
The selling stockholders may use one or more of the following methods when disposing of the shares or interests therein:
| · | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| · | block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell
a portion of the block as principal to facilitate the transaction; |
| · | through brokers, dealers or underwriters that may act solely as agents; |
| · | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| · | an exchange distribution in accordance with the rules of the applicable exchange; |
| · | privately negotiated transactions; |
| · | through the writing or settlement of options or other hedging transactions entered into after the effective
date of the registration statement of which this prospectus is a part, whether through an options exchange or otherwise; |
| · | broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated
price per share; |
| · | a combination of any such methods of disposition; and |
| · | any other method permitted pursuant to applicable law. |
The selling stockholders may also sell shares under
Rule 144 or Rule 904 under the Securities Act if available, or Section 4(a)(1) under the Securities Act, rather than under this prospectus.
Broker-dealers engaged by the selling stockholders
may arrange for other broker-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholders
(or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated. The selling stockholders
do not expect these commissions and discounts to exceed what is customary in the types of transactions involved.
The selling stockholders may, from time to time,
pledge or grant a security interest in some or all of the shares of Class A Common Stock owned by them and, if they default in the performance
of their secured obligations, the pledgees or secured parties may offer and sell shares of Class A Common Stock from time to time under
this prospectus, or under a supplement or amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities
Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders
under this prospectus.
Upon being notified in writing by a selling stockholder
that any material arrangement has been entered into with a broker-dealer for the sale of Class A Common Stock through a block trade, special
offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, we will file a supplement to this prospectus,
if required, pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of such selling stockholder and of the participating
broker-dealer(s), (ii) the number of shares involved, (iii) the price at which such shares of Class A Common Stock were sold, (iv) the
commissions paid or discounts or concessions allowed to such broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not
conduct any investigation to verify the information set out or incorporated by reference in this prospectus, and (vi) other facts material
to the transaction. In addition, upon being notified in writing by a selling stockholder that a donee or pledgee intends to sell more
than 500 shares of Class A Common Stock, we will file a supplement to this prospectus if then required in accordance with applicable securities
law.
The selling stockholders also may transfer the shares
of Class A Common Stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling
beneficial owners for purposes of this prospectus.
In connection with the sale of the shares of Class
A Common Stock or interests in shares of Class A Common Stock, the selling stockholders may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the Class A Common Stock in the course of hedging the positions
they assume. The selling stockholders may also sell shares of Class A Common Stock short and deliver these securities to close out their
short positions, or loan or pledge the Class A Common Stock to broker-dealers that in turn may sell these securities. The selling stockholders
may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative
securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which
shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect
such transaction).
Any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales.
In such event, the compensation received by such broker-dealers or agents may be deemed to be underwriting commissions or discounts under
the Securities Act. The maximum commission or discount to be received by any member of the Financial Industry Regulatory Authority (FINRA)
or independent broker-dealer will not be greater than 8% of the initial gross proceeds from the sale of any security being sold.
We have advised the selling stockholders that they
are required to comply with Regulation M promulgated under the Exchange Act, during such time as they may be engaged in a distribution
of the shares. Underwriters and purchasers that are deemed underwriters under the Securities Act may engage in transactions that stabilize,
maintain or otherwise affect the price of the securities, including the entry of stabilizing bids or syndicate covering transactions or
the imposition of penalty bids. The selling stockholders and any other persons participating in the sale or distribution of the shares
will be subject to the applicable provisions of the Exchange Act and the rules and regulations thereunder including, without limitation,
Regulation M. These provisions may restrict certain activities of, and limit the timing of, purchases by the selling stockholders or other
persons or entities. Furthermore, under Regulation M, persons engaged in a distribution of securities are prohibited from simultaneously
engaging in market making and certain other activities with respect to such securities for a specified period of time prior to the commencement
of such distributions, subject to special exceptions or exemptions. Regulation M may restrict the ability of any person engaged in the
distribution of the securities to engage in market-making and certain other activities with respect to those securities. In addition,
the anti-manipulation rules under the Exchange Act may apply to sales of the securities in the market. All of these limitations may affect
the marketability of the shares and the ability of any person to engage in market-making activities with respect to the securities.
The aggregate proceeds to the selling stockholders
from the sale of the Class A Common Stock offered by them will be the purchase price of the Class A Common Stock less discounts or commissions,
if any. Each of the selling stockholders reserves the right to accept and, together with their agents from time to time, to reject, in
whole or in part, any proposed purchase of Class A Common Stock to be made directly or through agents. We will not receive any of the
proceeds from this offering.
We are required to pay all fees and expenses incident
to the registration of the shares. The selling stockholders will bear all discounts, commissions or other amounts payable to underwriters,
dealers or agents, as well as transfer taxes and certain other expenses associated with the sale of shares. We have agreed to indemnify
the selling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act or otherwise.
We may suspend the sale of shares by the selling
stockholders pursuant to this prospectus for certain periods of time for certain reasons, including if the prospectus is required to be
supplemented or amended to include additional material information.
We have agreed with the selling stockholders to keep
the registration statement of which this prospectus constitutes a part effective until the earlier of (a) such time as all of the shares
covered by this prospectus have been disposed of pursuant to and in accordance with the registration statement and (b) such time as none
of the shares covered by this prospectus constitute “registrable securities”, as such term is defined in the registration
rights agreement by and among us and the selling stockholders.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a summary of certain
U.S. federal income tax considerations generally applicable to the ownership and disposition of our Class A Common Stock, which we refer
to collectively as our securities. This summary is based upon U.S. federal income tax law as of the date of this prospectus, which is
subject to change or differing interpretations, possibly with retroactive effect. This summary does not discuss all aspects of U.S. federal
income taxation that may be important to particular investors in light of their individual circumstances, including investors subject
to special tax rules (e.g., financial institutions, insurance companies, broker-dealers, dealers or traders in securities, tax-exempt
organizations (including private foundations), taxpayers that have elected mark-to-market accounting, S corporations, regulated investment
companies, real estate investment trusts, passive foreign investment companies, controlled foreign corporations, U.S. Holders (as defined
below) that will hold Class A Common Stock as part of a straddle, hedge, conversion, or other integrated transaction for U.S. federal
income tax purposes, expatriates or former long-term residents of the United States, or investors that have a functional currency other
than the U.S. dollar), all of whom may be subject to tax rules that differ materially from those summarized below. This summary does not
discuss other U.S. federal tax consequences (e.g., estate or gift tax), any state, local, or non-U.S. tax considerations or the Medicare
tax or alternative minimum tax. In addition, this summary is limited to investors that will hold our securities as “capital assets”
(generally, property held for investment) under the Internal Revenue Code of 1986, as amended (the “Code”), and that acquire
our Class A Common Stock for cash pursuant to this prospectus. No ruling from the IRS has been or will be sought regarding any matter
discussed herein. No assurance can be given that the IRS would not assert, or that a court would not sustain, a position contrary to any
of the tax aspects set forth below.
For purposes of this summary, a “U.S. Holder”
is a beneficial holder of securities who or that, for U.S. federal income tax purposes is:
| • | an individual who is a United States citizen or resident of the United States; |
| • | a corporation or other entity treated as a corporation for United States federal income tax purposes created in, or organized under
the law of, the United States or any state or political subdivision thereof; |
| • | an estate the income of which is includible in gross income for United States federal income tax purposes regardless of its source;
or |
| • | a trust (A) the administration of which is subject to the primary supervision of a United States court and which has one or more United
States persons (within the meaning of the Code) who have the authority to control all substantial decisions of the trust or (B) that has
in effect a valid election under applicable Treasury regulations to be treated as a United States person. |
A “non-U.S. Holder” is a beneficial
holder of securities who or that is neither a U.S. Holder nor an entity or arrangement treated as a partnership for U.S. federal income
tax purposes.
If a partnership (including an entity or arrangement
treated as a partnership for U.S. federal income tax purposes) holds our securities, the tax treatment of a partner, member or other beneficial
owner in such partnership will generally depend upon the status of the partner, member or other beneficial owner, the activities of the
partnership and certain determinations made at the partner, member or other beneficial owner level. If you are a partner, member or other
beneficial owner of a partnership holding our securities, you are urged to consult your tax advisor regarding the tax consequences of
the ownership and disposition of our securities.
THIS DISCUSSION OF U.S. FEDERAL INCOME TAX CONSIDERATIONS
IS FOR GENERAL INFORMATION PURPOSES ONLY AND IS NOT TAX ADVICE. PROSPECTIVE HOLDERS SHOULD CONSULT THEIR TAX ADVISORS CONCERNING THE U.S.
FEDERAL INCOME TAX CONSEQUENCES TO THEM OF OWNING AND DISPOSING OF OUR SECURITIES, AS WELL AS THE APPLICATION OF ANY, STATE, LOCAL AND
NON-U.S. INCOME, ESTATE AND OTHER TAX CONSIDERATIONS.
U.S. Holders
Taxation of Distributions
If we pay distributions (other than certain distributions
of our capital stock or rights to acquire our capital stock) to U.S. Holders of shares of our Class A Common Stock, such distributions
generally will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated earnings and
profits, as determined under U.S. federal income tax principles. Distributions in excess of our current and accumulated earnings and profits
will constitute a return of capital that will be applied against and reduce (but not below zero) the U.S. Holder’s adjusted tax
basis in our Class A Common Stock. Any remaining excess will be treated as gain realized on the sale or other disposition of the Class
A Common Stock and will be treated as described under “U.S. Holders-Gain or Loss on Sale, Taxable Exchange or Other Taxable Disposition
of Class A Common Stock” below.
Dividends we pay to a U.S. Holder that is a taxable
corporation will generally qualify for the dividends received deduction if the requisite holding period is satisfied. With certain exceptions
(including dividends treated as investment income for purposes of investment interest deduction limitations), and provided certain holding
period requirements are met, dividends we pay to a non-corporate U.S. Holder will generally constitute “qualified dividends”
that will be subject to tax at the maximum tax rate accorded to long-term capital gains. If the holding period requirements are not satisfied,
a corporation may not be able to qualify for the dividends received deduction and would have taxable income equal to the entire dividend
amount, and non-corporate holders may be subject to tax on such dividend at ordinary income tax rates instead of the preferential rates
that apply to qualified dividend income.
Gain or Loss on Sale, Taxable Exchange or
Other Taxable Disposition of Class A Common Stock
A U.S. Holder generally will recognize gain or
loss on the sale, taxable exchange or other taxable disposition of our Class A Common Stock. Any such gain or loss will be capital gain
or loss, and will be long-term capital gain or loss if the U.S. Holder’s holding period for the Class A Common Stock so disposed
of exceeds one year. The amount of gain or loss recognized will generally be equal to the difference between (1) the sum of the amount
of cash and the fair market value of any property received in such disposition and (2) the U.S. Holder’s adjusted tax basis in its
Class A Common Stock so disposed of. A U.S. Holder’s adjusted tax basis in its Class A Common Stock will generally equal the U.S.
Holder’s acquisition cost for such Class A Common Stock, less any prior distributions treated as a return of capital. Long-term
capital gains recognized by non-corporate U.S. Holders are generally eligible for reduced rates of tax. If the U.S. Holder’s holding
period for the Class A Common Stock so disposed of is one year or less, any gain on a sale or other taxable disposition of the shares
would be subject to short-term capital gain treatment and would be taxed at ordinary income tax rates. The deductibility of capital losses
is subject to limitations.
Information Reporting and Backup Withholding
In general, information reporting requirements
may apply to dividends paid to a U.S. Holder and to the proceeds of the sale or other disposition of shares of Class A Common Stock, unless
the U.S. Holder is an exempt recipient. Backup withholding may apply to such payments if the U.S. Holder fails to provide a taxpayer identification
number, a certification of exempt status or has been notified by the IRS that it is subject to backup withholding (and such notification
has not been withdrawn).
Backup withholding is not an additional tax. Any
amounts withheld under the backup withholding rules will be allowed as a credit against a U.S. Holder’s U.S. federal income tax
liability and may entitle such holder to a refund, provided the required information is timely furnished to the IRS.
Non-U.S. Holders
Taxation of Distributions
In general, any distributions we make to a non-U.S.
Holder of shares of our Class A Common Stock (other than certain distributions of our capital stock or rights to acquire our capital stock),
to the extent paid out of our current or accumulated earnings and profits (as determined under U.S. federal income tax principles), will
constitute dividends for U.S. federal income tax purposes and, provided such dividends are not effectively connected with the non-U.S.
Holder’s conduct of a trade or business within the United States, we will be required to withhold tax from the gross amount of the
dividend at a rate of 30%, unless such non-U.S. Holder is eligible for a reduced rate of withholding tax under an applicable income tax
treaty and provides proper certification of its eligibility for such reduced rate (usually on an IRS Form W-8BEN or W-8BEN-E, as applicable).
Any distribution not constituting a dividend will be treated first as reducing (but not below zero) the non-U.S. Holder’s adjusted
tax basis in its shares of our Class A Common Stock and, to the extent such distribution exceeds the non-U.S. Holder’s adjusted
tax basis, as gain realized from the sale or other disposition of the Class A Common Stock, which will be treated as described under “Non-U.S.
Holders-Gain on Sale, Taxable Exchange or Other Taxable Disposition of Class A Common Stock” below. In addition, if we determine
that we are likely to be classified as a “United States real property holding corporation” (see “Non-U.S. Holders-Gain
on Sale, Exchange or Other Taxable Disposition of Class A Common Stock” below), we will withhold 15% of any distribution that
exceeds our current and accumulated earnings and profits.
Dividends we pay to a non-U.S. Holder that are
effectively connected with such non-U.S. Holder’s conduct of a trade or business within the United States (or if a tax treaty applies
are attributable to a U.S. permanent establishment or fixed base maintained by the non-U.S. Holder) will generally not be subject to U.S.
withholding tax, provided such non-U.S. Holder complies with certain certification and disclosure requirements (generally by providing
an IRS Form W-8ECI). Instead, such dividends generally will be subject to U.S. federal income tax, net of certain deductions, at the same
individual or corporate rates applicable to U.S. Holders. If the non-U.S. Holder is a corporation, dividends that are effectively connected
income may also be subject to a “branch profits tax” at a rate of 30% (or such lower rate as may be specified by an applicable
income tax treaty).
Gain on Sale, Exchange or Other Taxable
Disposition of Class A Common Stock
A non-U.S. Holder generally will not be subject
to U.S. federal income or withholding tax in respect of gain recognized on a sale, taxable exchange or other taxable disposition of our
Class A Common Stock, unless:
•the gain is effectively connected
with the conduct of a trade or business by the non-U.S. Holder within the United States (and, if an applicable tax treaty so requires,
is attributable to a U.S. permanent establishment or fixed base maintained by the non-U.S. Holder);
•the non-U.S. Holder is an individual
who is present in the United States for 183 days or more in the taxable year of disposition and certain other conditions are met; or
•we are or have been a “United
States real property holding corporation” for U.S. federal income tax purposes at any time during the shorter of the five-year period
ending on the date of disposition or the period that the non-U.S. Holder held our Class A Common Stock and, in the case where shares of
our Class A Common Stock are regularly traded on an established securities market, the non-U.S. Holder has owned, directly or constructively,
more than 5% of our Class A Common Stock at any time within the shorter of the five-year period preceding the disposition or such Non-U.S.
holder’s holding period for the shares of our Class A Common Stock. There can be no assurance that our Class A Common Stock will
be treated as regularly traded on an established securities market for this purpose.
Gain described in the first bullet point above
will be subject to tax at generally applicable U.S. federal income tax rates as if the non-U.S. Holder were a U.S. resident. Any gains
described in the first bullet point above of a non-U.S. Holder that is a foreign corporation may also be subject to an additional “branch
profits tax” at a 30% rate (or lower applicable treaty rate). Gain described in the second bullet point above will generally be
subject to a flat 30% U.S. federal income tax (or lower applicable treaty rate). Non-U.S. Holders are urged to consult their tax advisors
regarding possible eligibility for benefits under income tax treaties.
If the third bullet point above applies to a non-U.S.
Holder and applicable exceptions are not available, gain recognized by such holder on the sale, exchange or other disposition of our Class
A Common Stock will be subject to tax at generally applicable U.S. federal income tax rates. In addition, a buyer of our Class A Common
Stock from such holder may be required to withhold U.S. income tax at a rate of 15% of the amount realized upon such disposition. We will
be classified as a United States real property holding corporation if the fair market value of our “United States real property
interests” equals or exceeds 50% of the sum of the fair market value of our worldwide real property interests plus our other assets
used or held for use in a trade or business, as determined for U.S. federal income tax purposes. We do not believe we currently are or
will become a United States real property holding corporation, however there can be no assurance in this regard. Non-U.S. Holders are
urged to consult their tax advisors regarding the application of these rules.
Foreign Account Tax Compliance Act
Provisions of the Code and Treasury Regulations
and administrative guidance promulgated thereunder commonly referred as the “Foreign Account Tax Compliance Act” (“FATCA”)
generally impose withholding at a rate of 30% in certain circumstances on dividends (including constructive dividends) in respect of our
securities which are held by or through certain foreign financial institutions (including investment funds), unless any such institution
(1) enters into, and complies with, an agreement with the IRS to report, on an annual basis, information with respect to interests in,
and accounts maintained by, the institution that are owned by certain U.S. persons and by certain non-U.S. entities that are wholly or
partially owned by U.S. persons and to withhold on certain payments, or (2) if required under an intergovernmental agreement between the
United States and an applicable foreign country, reports such information to its local tax authority, which will exchange such information
with the U.S. authorities. An intergovernmental agreement between the United States and an applicable foreign country may modify these
requirements. Accordingly, the entity through which our securities are held will affect the determination of whether such withholding
is required. Similarly, dividends in respect of our securities held by an investor that is a non-financial non-U.S. entity that does not
qualify under certain exceptions will generally be subject to withholding at a rate of 30%, unless such entity either (1) certifies to
us or the applicable withholding agent that such entity does not have any “substantial United States owners” or (2) provides
certain information regarding the entity’s “substantial United States owners,” which will in turn be provided to the
U.S. Department of Treasury. Withholding under FATCA was scheduled to apply to payments of gross proceeds from the sale or other disposition
of property that produces U.S.-source interest or dividends, however, the IRS released proposed regulations that, if finalized in their
proposed form, would eliminate the obligation to withhold on such gross proceeds. Although these proposed Treasury Regulations are not
final, taxpayers generally may rely on them until final Treasury Regulations are issued. Prospective investors should consult their tax
advisors regarding the possible implications of FATCA on their investment in our securities.
Information Reporting and Backup Withholding
Information returns will be filed with the IRS
in connection with payments of dividends and the proceeds from a sale or other disposition of shares of Class A Common Stock. A non-U.S.
Holder may have to comply with certification procedures to establish that it is not a United States person in order to avoid information
reporting and backup withholding requirements. The certification procedures required to claim a reduced rate of withholding under a treaty
generally will satisfy the certification requirements necessary to avoid the backup withholding as well. Backup withholding is not an
additional tax. The amount of any backup withholding from a payment to a non-U.S. Holder will be allowed as a credit against such holder’s
U.S. federal income tax liability and may entitle such holder to a refund, provided that the required information is timely furnished
to the IRS.
LEGAL MATTERS
Cozen O’Connor P.C., Philadelphia, Pennsylvania
has passed upon the validity of the Class A Common Stock covered by this prospectus. Any underwriters or agents will be advised about
other issues relating to the offering by counsel to be named in the applicable prospectus supplement.
EXPERTS
The audited consolidated financial statements
of Utz Brands, Inc. incorporated by reference in this prospectus and elsewhere in the registration statement have been so incorporated
by reference in reliance upon the report of Grant Thornton LLP, independent registered public accountants, upon the authority of said
firm as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed with the SEC a registration statement
on Form S-3 under the Securities Act with respect to the shares of Class A Common Stock offered hereby. This prospectus, which constitutes
part of the registration statement, does not contain all of the information set forth in the registration statement and the exhibits and
schedules thereto. For further information with respect to the Company and its Class A Common Stock, reference is made to the registration
statement and the exhibits and any schedules filed therewith. Statements contained in this prospectus as to the contents of any contract
or any other document referred to are not necessarily complete, and in each instance, we refer you to the copy of the contract or other
document filed as an exhibit to the registration statement. Each of these statements is qualified in all respects by this reference.
You can read our SEC filings, including the registration
statement, over the Internet at the SEC’s website at www.sec.gov.
We are subject to the information reporting requirements
of the Exchange Act and we are required to file reports, proxy statements and other information with the SEC. These reports, proxy statements,
and other information are available for inspection and copying at the SEC’s website referred to above. We also maintain a website
at www.utzsnacks.com, at which you may access these materials free of charge as soon as reasonably practicable after they are electronically
filed with, or furnished to, the SEC. Information contained on or accessible through our website is not a part of this prospectus, and
the inclusion of our website address in this prospectus is an inactive textual reference only.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference”
the information from other documents we file with the SEC, which means that we can disclose important information to you by referring
you to those documents instead of having to repeat the information in this prospectus. The information incorporated by reference is considered
to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede this information.
We incorporate by reference the documents listed below and any future filings (including those made after the date of the initial filing
of the registration statement of which this prospectus is a part and prior to the effectiveness of such registration statement) we will
make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act until the termination of the offering of the shares covered
by this prospectus (other than information furnished under Item 2.02 or Item 7.01 of Form 8-K):
| · | All documents filed by Utz under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, that are filed (excluding, however, information
we furnish to the SEC) (i) by us after the date of the initial registration statement and prior to its effectiveness and (ii) by us after
the date of this prospectus and prior to the termination of any offering under this registration statement. |
Any statement contained in this prospectus, or
in a document all or a portion of which is incorporated by reference, shall be modified or superseded for purposes of this prospectus
to the extent that a statement contained in this prospectus, any applicable prospectus supplement or any document incorporated by reference
modifies or supersedes such statement. Any such statement so modified or superseded shall not, except as so modified or superseded, constitute
a part of this prospectus.
Upon request, we will provide, without charge,
to each person, including any beneficial owner, to whom a copy of this prospectus is delivered a copy of the documents incorporated by
reference into this prospectus. You may request a copy of these filings, and any exhibits we have specifically incorporated by reference
as an exhibit in this prospectus, at no cost by writing or telephoning us at the following:
Utz Brands, Inc.
900 High Street
Hanover, PA17331
Attention: Investor Relations
Telephone: (717) 637-6644
You may also access these documents, free of charge
on the SEC’s website at www.sec.gov or on the “Investors” page of our website at www.utzsnacks.com. Information contained
on our website is not incorporated by reference into this prospectus, and you should not consider any information on, or that can be accessed
from, our website as part of this prospectus or any accompanying prospectus supplement.
This prospectus is part of a registration statement
we filed with the SEC. We have incorporated exhibits into this registration statement. You should read the exhibits carefully for provisions
that may be important to you.
We have not authorized anyone to provide you with
information other than what is incorporated by reference or provided in this prospectus or any prospectus supplement. We are not making
an offer of these securities in any state where such offer is not permitted. You should not assume that the information in this prospectus
or in the documents incorporated by reference is accurate as of any date other than the date on the front of this prospectus or those
documents.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is an estimate of the expenses
(all of which are to be paid by the registrant) that we may incur in connection with the securities being registered hereby.
SEC registration fee | |
$ | 2,747.97 | |
Legal fees and expenses | |
| * | |
Accounting fees and expenses | |
| * | |
Miscellaneous | |
| * | |
Total | |
$ | * | |
*These fees are calculated based on
the securities offered and the number of issuances and accordingly cannot be defined at this time.
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation
Law (as amended, the “DGCL”) authorizes us to indemnify any director or officer under certain prescribed circumstances and
subject to certain limitations against certain costs and expenses, including attorney’s fees actually and reasonably incurred in
connection with any action, suit or proceeding, whether civil, criminal, administrative or investigative, to which a person is a party
by reason of being one of our directors or officers if it is determined that such person acted in accordance with the applicable standard
of conduct set forth in such statutory provisions.
The registrant’s Certificate of Incorporation
provides that its officers and directors are indemnified by the registrant to the fullest extent authorized by Delaware law, as it now
exists or may in the future be amended. In addition, the registrant’s Certificate of Incorporation provides that its directors will
not be personally liable for monetary damages to the registrant or its stockholders for breaches of their fiduciary duty as directors,
except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter
be amended.
The registrant’s Bylaws permit it to secure
insurance on behalf of any of its officer, director, employee or agent of for any liability arising out of his or her actions, regardless
of whether Delaware law would permit such indemnification. The registrant has purchased a policy of directors’ and officers’
liability insurance that insures its officers and directors against the cost of defense, settlement or payment of a judgment in some circumstances
and insures the registrant against its obligations to indemnify its officers and directors.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, or otherwise,
we have been advised that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable.
Item 16. Exhibits and Financial Statement Schedules.
Exhibit
No. |
|
Description |
2.1† |
|
Business Combination Agreement,
dated as of June 5, 2020, by and among Collier Creek Holdings, Series U of UM Partners, LLC, Series R of UM Partners, LLC and Utz
Brands Holdings, LLC (incorporated by reference to Exhibit 2.1 of Collier Creek’s Current Report on Form 8-K (File No. 001-38686),
filed with the SEC on June 5, 2020). |
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2.2† |
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Stock Purchase Agreement
by and among Truco Holdco, Inc., Truco Holdings LLC, Utz Quality Foods, LLC and Heron Holding Corporation, dated November 11, 2020
(incorporated by reference to Exhibit 2.1 to Utz Brands, Inc.’s Current Report on Form 8-K (File No. 001-38686) dated November
11, 2020 and filed with the SEC on November 12, 2020). |
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4.1 |
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Certificate of Domestication
of the Company (incorporated by reference to Exhibit 3.1 of Utz Brands Inc.’s Current Report on Form 8-K (File No. 001-38686),
filed with the SEC on September 3, 2020). |
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4.2 |
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Certificate of Incorporation
of the Company (incorporated by reference to Exhibit 3.2 of Utz Brands Inc.’s Current Report on Form 8-K (File No. 001-38686),
filed with the SEC on September 3, 2020). |
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|
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4.3 |
|
Bylaws of the Company (incorporated
by reference to Exhibit 3.3 of Utz Brands Inc.’s Current Report on Form 8-K (File No. 001-38686), filed with the SEC on September
3, 2020). |
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4.4 |
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Specimen Warrant Certificate
of Collier Creek (incorporated by reference to Exhibit 4.3 of Collier Creek’s Registration Statement on Form S-1 (File No.
333-227295), filed with the SEC on September 12, 2018). |
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4.5 |
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Warrant Agreement, dated
October 4, 2018, between Continental Stock Transfer & Trust Company and Collier Creek (incorporated by reference to Exhibit 4.1
of Collier Creek’s Current Report on Form 8-K (File No. 001-38686), filed with the SEC on October 10, 2018). |
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4.6 |
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Assignment and Assumption
Agreement dated February 22, 2022 by and among the Company, Continental Stock Transfer & Trust Company, and Equinity Trust Company
(incorporated by reference to Exhibit 4.3 to Utz Brands Inc.’s Annual Report on Form 10-K (File No. 001-38686), filed with
the SEC on March 3, 2022). |
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|
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4.7 |
|
Form of Registration Rights
Agreement dated April 28, 2022 by and among Utz Brands, Inc. and the purchasers of the shares party thereto (incorporated by reference
to Exhibit 4.1 to Utz Brands Inc.’s Current Report on Form 8-K (File No. 001-38686), filed with the SEC on April 28, 2022). |
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5.1* |
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Opinion of Cozen O’Connor
P.C. |
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23.1* |
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Consent of Grant Thornton
LLP, independent registered accounting firm for Utz Brands, Inc. |
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23.2* |
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Consent of Cozen O’Connor
P.C. (included as part of Exhibit 5.1). |
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24.1* |
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Power of Attorney (contained
on the signature page to this registration statement). |
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107* |
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Filing Fee Disclosure and
Payments Methods |
Item 17. Undertakings.
| (a) | The undersigned registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement; and |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement; |
provided, however, that paragraphs (a)(1)(i), (ii) and (iii) above
do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that
is part of the registration statement.
| (2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering. |
| (4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| (A) | each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of
the date the filed prospectus was deemed part of and included in the registration statement; and |
| (B) | each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such effective date. |
| (5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| (b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. |
| (c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by
the final adjudication of such issue. |
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this registration statement to be signed on behalf by the undersigned, thereunto duly authorized in the City of
Hanover, Commonwealth of Pennsylvania, on May 5, 2022.
|
UTZ BRANDS, INC. |
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By: |
/s/ Dylan B. Lissette |
|
Name: Dylan B. Lissette |
|
Title: Chief Executive Officer |
KNOW ALL PERSONS BY THESE PRESENTS, that each
person whose signature appears below hereby constitutes and appoints Dylan B. Lissette, Ajay Kataria and Cary Devore, and each of them,
as his true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, to this registration
statement, and any registration statement relating to the offering covered by this registration statement and filed pursuant to Rule 462(b)
under the Securities Act of 1933, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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/s/ Dylan B. Lissette |
|
Director and Chief Executive Officer
(Principal Executive Officer) |
|
May 5, 2022 |
Dylan B. Lissette |
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|
/s/ Ajay Kataria |
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Executive Vice President, Chief Financial Officer
(Principal Financial Officer) |
|
May 5, 2022 |
Ajay Kataria |
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/s/ Eric J. Aumen |
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Senior Vice President, Chief Accounting Officer
(Principal Accounting Officer) |
|
May 5, 2022 |
Eric J. Aumen |
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/s/ Roger K. Deromedi |
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Chairman; Director |
|
May 5, 2022 |
Roger K. Deromedi |
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/s/ Michael W. Rice |
|
Director; Chairman Emeritus; Special Adviser |
|
May 5, 2022 |
Michael W. Rice |
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/s/ Craig D. Steeneck |
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Director; Chair, Audit Committee |
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May 5, 2022 |
Craig D. Steeneck |
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/s/ John W. Altmeyer |
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Director; Chair, Nominating and Corporate Governance Committee |
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May 5, 2022 |
John W. Altmeyer |
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/s/ Timothy P. Brown |
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Director |
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May 5, 2022 |
Timothy P. Brown |
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/s/ Christina Choi |
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Director |
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May 5, 2022 |
Christina Choi |
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/s/ Antonio F. Fernandez |
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Director |
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May 5, 2022 |
Antonio F. Fernandez |
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/s/ Jason K. Giordano |
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Director; Chair, Compensation Committee |
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May 5, 2022 |
Jason K. Giordano |
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/s/ B. John Lindeman |
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Director |
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May 5, 2022 |
B. John Lindeman |
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/s/ Pamela Stewart |
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Director |
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May 5, 2022 |
Pamela Stewart |
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