Table of Contents

As filed with the Securities and Exchange Commission on May 10, 2017

Registration No. 333-217325

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

AMENDMENT NO. 1

TO

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

US FOODS HOLDING CORP.

(Exact Name of Registrant as Specified in its Charter)

 

 

 

Delaware		5140		26-0347906
(State or other jurisdiction of incorporation or organization)		(Primary Standard Industrial Classification Code Number)		(I.R.S. Employer Identification No.)

9399 W. Higgins Road, Suite 500

Rosemont, IL 60018

(847) 720-8000

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

 

 

Kristin M. Coleman, Esq.

Executive Vice President, General Counsel and Chief Compliance Officer

US Foods Holding Corp.

9399 W. Higgins Road, Suite 500

Rosemont, IL 60018

(847) 720-8000

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

John P. Kelsh, Esq. Sidley Austin LLP 1 South Dearborn Street Chicago, IL 60603 Telephone: (312) 853-7000		Steven J. Slutzky, Esq. Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 Telephone: (212) 909-6000		Joseph H. Kaufman, Esq. Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, NY 10017 Telephone: (212) 455-2000

 

 

Approximate date of commencement of the proposed sale of the securities to the public: As soon as practicable after the Registration Statement is declared effective.

 

 

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, check the following box.  ☐

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) 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 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 post-effective amendment filed pursuant to Rule 462(d) 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.  ☐

---

Table of Contents

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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		☐		Accelerated filer		☐
Non-accelerated filer		☒  (Do not check if a smaller reporting company)		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 pursuant to Section 7(a)(2)(B) of the Securities Act.   ☐

 

 

CALCULATION OF REGISTRATION FEE

 

Title Of Each Class Of Securities To Be Registered		Amount to be Registered		Proposed Maximum Offering Price Per Share		Proposed Maximum Aggregate Offering Price		Amount of Registration Fee
Common Stock, par value $0.01 per share		40,250,000(1)		$28.35(2)		$1,141,087,500(1)(2)		$132,252.05(3)

(1)	Includes 5,250,000 shares of common stock subject to the underwriters’ option to purchase additional shares of common stock. See “Underwriting (Conflicts of Interest).”

(2)

Estimated solely for the purpose of determining the amount of the registration fee in accordance with Rule 457(c) under the Securities Act of 1933, as amended. The proposed maximum offering price per share and proposed maximum aggregate offering price are based on the average high and low prices of the Registrant’s common stock on May 3, 2017 as reported on the New York Stock Exchange.

(3)	The Registrant paid $11,590 of the registration fee with respect to $100,000,000 of the proposed maximum offering price in connection with the initial filing of this registration statement.

 

 

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 which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

 

---

Table of Contents

The information in this preliminary prospectus is not complete and may be changed. We may not sell these securities 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 it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

 

Subject to Completion Dated May 10, 2017

PRELIMINARY PROSPECTUS

35,000,000 Shares

 

US FOODS HOLDING CORP.

Common Stock

 

 

The selling stockholders named in this prospectus are offering 35,000,000 shares of common stock of US Foods Holding Corp. We will not receive any proceeds from the sale of our common stock by the selling stockholders. The selling stockholders include investment funds associated with Clayton, Dubilier & Rice, LLC and Kohlberg Kravis Roberts & Co. L.P.

Our common stock is listed on the New York Stock Exchange (“NYSE”) under the symbol “USFD.” On May 9, 2017, the closing sales price of our common stock as reported on the NYSE was $28.80 per share.

To the extent the underwriters sell more than 35,000,000 shares of common stock, the underwriters have the option to purchase up to an additional 5,250,000 shares from the selling stockholders that are affiliated with Clayton, Dubilier & Rice, LLC and Kohlberg Kravis Roberts & Co. L.P. at the public offering price less the underwriting discount within 30 days of the date of this prospectus. We will not receive any proceeds from the sale of our common stock by the selling stockholders pursuant to any exercise of the underwriters’ option to purchase additional shares.

 

 

Investing in our common stock involves risk. Before buying shares of our common stock, you should read the discussion of material risks described in the section titled “Risk Factors” beginning on page 22 of this prospectus and beginning on page 10 of our Annual Report on Form 10-K for the fiscal year ended December 31, 2016, as well as the other information included or incorporated by reference in this prospectus.

None of the Securities and Exchange Commission, any state securities commission nor any other regulatory body has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.

 

		Per Share				Total
Public offering price		$				$
Underwriting discounts and commissions (1)		$				$
Proceeds, before expenses, to the selling stockholders		$				$

 

(1)	We have agreed to reimburse the underwriters for certain FINRA-related expenses. See “Underwriting (Conflicts of Interest).”

 

 

Delivery of the shares of common stock against payment is expected to be made on or about             , 2017.

 

 

 

Goldman Sachs & Co. LLC		Morgan Stanley		J.P. Morgan

BofA Merrill Lynch		Citigroup		Credit Suisse

Deutsche Bank Securities		Wells Fargo Securities		KKR

BMO Capital Markets            BTIG           Guggenheim Securities         ING         Rabo Securities        Natixis

Prospectus dated                 , 2017

---

Table of Contents

---

Table of Contents

---

Table of Contents

TABLE OF CONTENTS

 

MARKET AND INDUSTRY DATA			ii
TRADEMARKS, SERVICE MARKS AND TRADE NAMES			ii
BASIS OF PRESENTATION			ii
SUMMARY			1
THE OFFERING			15
SUMMARY HISTORICAL CONSOLIDATED FINANCIAL DATA			17
RISK FACTORS			22
FORWARD-LOOKING STATEMENTS			29
USE OF PROCEEDS			31
DIVIDEND POLICY			32
PRICE RANGE OF COMMON STOCK			33
CAPITALIZATION			34
SELLING STOCKHOLDERS			35
DESCRIPTION OF CAPITAL STOCK			41
MATERIAL U.S. FEDERAL INCOME AND ESTATE TAX CONSEQUENCES TO NON-U.S. HOLDERS OF OUR COMMON STOCK			46
UNDERWRITING (CONFLICTS OF INTEREST)			49
NOTICE TO INVESTORS			52
LEGAL MATTERS			55
EXPERTS			55
INCORPORATION BY REFERENCE			55
WHERE YOU CAN FIND MORE INFORMATION			56

 

 

Neither we, the selling stockholders nor the underwriters have authorized anyone to provide you with information different from that included or incorporated by reference in this prospectus, any amendment or supplement to this prospectus or any free writing prospectus prepared by us or on our behalf. Neither we nor the underwriters take any responsibility for, or can provide any assurance as to the reliability of, any information other than the information included or incorporated by reference in this prospectus, any amendment or supplement to this prospectus or any free writing prospectus prepared by us or on our behalf. We, the selling stockholders and the underwriters are offering to sell, and seeking offers to buy, shares of our common stock only in jurisdictions where offers and sales are permitted. The information in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or any sale of shares of our common stock.

 

i

---

Table of Contents

MARKET AND INDUSTRY DATA

Market data, industry statistics, and forecasts included or incorporated by reference in this prospectus, other than those provided by third party experts, are based on the good faith estimates of management, which in turn are based upon management’s reviews of independent industry publications, reports by market research firms, and other independent and publicly available sources. Unless we indicate otherwise, market data and industry statistics included or incorporated by reference in this prospectus are for the fiscal year ended December 31, 2016. All references to our market share refer to our net sales as compared to aggregate revenues for the U.S. foodservice distribution industry.

Although we are not aware of any misstatements regarding the industry data that we include or incorporate by reference in this prospectus, our estimates involve risks and uncertainties and are subject to change based on various factors, including those discussed under “Risk Factors” and “Forward-Looking Statements” in this prospectus and “Risk Factors,” “Forward-Looking Statements” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2016 and our Quarterly Report on Form 10-Q for the fiscal quarter ended April 1, 2017, which are incorporated by reference in this prospectus.

TRADEMARKS, SERVICE MARKS AND TRADE NAMES

This prospectus includes or incorporates by reference some of our trademarks, trade names, and service marks, including US Foods, Keeping Kitchens Cooking, Cattleman’s Selection, Clean Force, Cross Valley Farms, Chef’s Line, Chef’Store, del Pasado, Devonshire, Food Fanatics, Glenview Farms, Harbor Banks, Harvest Value, Hilltop Hearth, Metro Deli, Molly’s Kitchen, Monarch, Monogram, Optimax Pacific Jade, Patuxent Farms, Rykoff Sexton, Rituals, Roseli, Stock Yards, Superior, Thirster and Valu+Plus. Each one of these trademarks, trade names or service marks is either (i) our registered trademark, (ii) a trademark for which we have a pending application, (iii) a trade name or service mark for which we claim common law rights or (iv) a registered trademark or application for registration which we have been authorized by a third party to use.

Solely for convenience, the trademarks, service marks and trade names included or incorporated by reference in this prospectus are without the ^® and ™ symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the rights of the applicable licensors to these trademarks, service marks and trade names. This prospectus includes or incorporates by reference additional trademarks, service marks and trade names of others, which are the property of their respective owners. All trademarks, service marks and trade names included or incorporated by reference in this prospectus are, to our knowledge, the property of their respective owners.

BASIS OF PRESENTATION

As used in this prospectus, unless otherwise noted or the context otherwise requires, references to: (i) the “Company,” “US Foods,” “we,” “our,” or “us” refer to US Foods Holding Corp. and its consolidated subsidiaries; (ii) “USF” refer to US Foods, Inc., our operating company, and its subsidiaries; (iii) “CD&R” refer to Clayton, Dubilier & Rice, LLC; (iv) “KKR” refer to Kohlberg Kravis Roberts & Co. L.P. and its affiliates; (v) the “Sponsors” refer to investment funds associated with CD&R and KKR; (vi) the “underwriters” refer to the firms listed on the cover page of this prospectus; (vii) the “Acquisition Agreement” refer to the agreement we entered into in December 2013 to merge with Sysco Corporation, which was subsequently terminated in June 2015; (viii) the “Acquisition” refer to the aforementioned proposed merger with Sysco Corporation; (ix) the “ABL Facility” refer to the amended and restated asset-based senior secured revolving loan facility, dated as of October 20, 2015; (x) the “2012 ABS Facility” refer to the accounts receivable financing facility dated as of August 27, 2012, as amended by Amendment No. 1, dated as of August 8, 2014, Amendment No. 2, dated as of April 30, 2015 and Amendment No. 3, dated as of October 19, 2015; (xi) the “CMBS Fixed Facility” refer to the

 

ii

---

Table of Contents

CMBS fixed rate loan dated as of July 3, 2007; (xii) the “Amended and Restated 2016 Term Loan” refer to the senior secured term loan, dated as of May 11, 2011, as amended by the First Amendment dated as of June 7, 2013, amended and restated by the Second Amendment dated as of June 27, 2016, and amended by the Third Amendment dated as of February 17, 2017; (xiii) “2016 Senior Notes” refer to the 5.875% unsecured senior notes due 2024; and (xiv) “IPO” refer to the initial public offering of our common stock, which was completed on June 1, 2016.

References to “fiscal 2017” are to the 52-week period ending December 30, 2017, references to “first quarter of fiscal 2017” are to the 13-week period ended April 1, 2017, references to “fiscal 2016” are to the 52-week period ended December 31, 2016, references to “first quarter of fiscal 2016” are to the 13-week period ended April 2, 2016, references to “fiscal 2015” are to the 53-week period ended January 2, 2016, references to “fiscal 2014” are to the 52-week period ended December 27, 2014, references to “fiscal 2013” are to the 52-week period ended December 28, 2013, and references to “fiscal 2012” are to the 52-week period ended December 29, 2012. Unless otherwise indicated or the context otherwise requires, financial data in this prospectus reflects the consolidated business and operations of US Foods Holding Corp. and its consolidated subsidiaries.

 

iii

---

Table of Contents

 

1

---

Table of Contents

 

2

---

Table of Contents

 

3

---

Table of Contents

 

4

---

Table of Contents

 

5

---

Table of Contents

 

6

---

Table of Contents

 

7

---

Table of Contents

 

8

---

Table of Contents

 

9

---

Table of Contents

 

10

---

Table of Contents

 

11

---

Table of Contents

 

12

---

Table of Contents

 

13

---

Table of Contents

 

14

---

Table of Contents

 

15

---

Table of Contents

 

16

---

Table of Contents

 

17

---

Table of Contents

 

18

---

Table of Contents

 

19

---

Table of Contents

 

20

---

Table of Contents

 

21

---

Table of Contents

RISK FACTORS

Investing in our common stock involves a high degree of risk. You should consider carefully the risks and uncertainties described below, together with all of the other information included or incorporated by reference in this prospectus, including the risks and uncertainties discussed under “Summary Historical Consolidated Financial Data” contained elsewhere in the prospectus and “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our audited and unaudited consolidated financial statements and related notes incorporated by reference in this prospectus, before you decide whether to purchase our common stock. If any of the following risks actually occur, our business, financial position, results of operations, or cash flows could be materially adversely affected. In these circumstances, the market price of our common stock could decline, and you may lose all or part of your investment. The risks described below are not the only ones we face. The occurrence of any of the following risks or future or additional risks and uncertainties not presently known to us or that we currently believe to be immaterial could materially and adversely affect our business, financial position, results of operations, or cash flows.

Risks Related to this Offering and Ownership of Our Common Stock

Our stock price may decline significantly following the offering regardless of our operating performance, and you may not be able to resell your shares of our common stock at or above the price you paid or at all, and you could lose all or part of your investment as a result.

We completed our IPO in June 2016. Since our IPO, the price of our common stock, as reported by the NYSE, has ranged from a low of $22.19 on November 2, 2016 to a high of $29.26 on May 9, 2017. The trading price of our common stock may be adversely affected due to a number of factors, most of which we cannot control, including:

 

•

results of operations that vary from the expectations of securities analysts and investors;

 

•

results of operations that vary from those of our competitors;

 

•

changes in expectations as to our or our industry’s future financial performance, including financial estimates and investment recommendations by securities analysts and investors, and the publication of research reports regarding the same;

 

•

declines in the market prices of stocks, trading volumes and company valuations generally, particularly those of foodservice distribution companies;

 

•

strategic actions by us or our competitors;

 

•

changes in preferences of our customers;

 

•

announcements by us or our competitors of significant contracts, new products, acquisitions, joint marketing relationships, joint ventures, other strategic relationships, or capital commitments;

 

•

changes in general economic or market conditions or trends in our industry or markets;

 

•

changes in business or regulatory conditions;

 

•

future sales of our common stock or other securities;

 

•

investor perceptions or the investment opportunity associated with our common stock relative to other investment alternatives;

 

•

a default on our indebtedness or a downgrade in our or our competitors’ credit ratings;

 

•

the public’s response to press releases or other public announcements by us or third parties, including our filings with the SEC;

 

•

changes in senior management or key personnel;

 

22

---

Table of Contents

•

announcements relating to litigation;

 

•

guidance, if any, that we provide to the public, any changes in this guidance, or our failure to meet this guidance;

 

•

the sustainability of an active trading market for our stock;

 

•

changes in accounting principles;

 

•

occurrences of extreme or inclement weather; and

 

•

other events or factors, including those resulting from natural disasters, war, or acts of terrorism, or responses to these events.

These broad market and industry fluctuations may adversely affect the market price of our common stock, regardless of our actual operating performance. In addition, price volatility may be greater if the public float and trading volume of our common stock is low.

In the past, following periods of market volatility, stockholders have instituted securities class action litigation. If we were involved in securities litigation, it could have a substantial cost and divert resources and the attention of executive management from our business regardless of the outcome of such litigation.

Because we have no current plans to pay cash dividends on our common stock for the foreseeable future, you may not receive any return on investment unless you sell your common stock for a price greater than that which you paid for it.

We intend to retain future earnings, if any, for future operations, expansion, and debt repayment and have no current plans to pay any cash dividends for the foreseeable future. The declaration, amount, and payment of any future dividends on shares of common stock will be at the sole discretion of our Board of Directors. Our Board of Directors may take into account general and economic conditions, our financial condition, and results of operations, our available cash and current and anticipated cash needs, capital requirements, contractual, legal, tax, and regulatory restrictions, implications on the payment of dividends by us to our stockholders or by our subsidiaries to us, and such other factors as our Board of Directors may deem relevant. In addition, our ability to pay dividends is limited by covenants of our existing debt agreements and may be limited by covenants of any future indebtedness we or our subsidiaries incur. As a result, you may not receive any return on an investment in our common stock unless you sell our common stock for a price greater than that which you paid for it.

Maintaining our financial controls and the requirements of being a public company may cause us to incur material additional costs, and any failure to maintain financial controls could result in our financial statements becoming unreliable.

We completed our IPO in June 2016. As a publicly traded company, we are required to comply with governance and SEC reporting requirements, including compliance with the Sarbanes-Oxley Act of 2002 and related rules implemented by the SEC, and with provisions in connection with being listed on the NYSE. The expenses incurred by public companies for reporting and corporate governance purposes have been generally increasing and could have a material impact on our results of operations.

Pursuant to Section 404 of the Sarbanes-Oxley Act of 2002 and related rules and regulations, our management is required to report on the effectiveness of our internal control over financial reporting. Our independent registered public accounting firm will be required to attest to the effectiveness of our internal control over financial reporting in our annual report for fiscal 2017. We will continue to test our internal controls in connection with the Section 404 requirements and could, as part of that documentation and testing, identify material weaknesses, significant deficiencies, or other areas for further attention or improvement. Any failure to maintain the adequacy of internal control over financial reporting, or any consequent inability to produce accurate financial statements on a timely basis, could increase our operating costs and could materially impair

 

23

---

Table of Contents

our ability to operate our business. Moreover, effective internal controls are necessary for us to produce reliable financial reports and are important to assist in detecting fraud. As a result, our failure to satisfy the requirements of Section 404 on a timely basis could result in the loss of investor confidence in the reliability of our financial statements, which in turn could cause the market value of our common stock to decline.

If securities analysts do not publish research or reports about our business, publish inaccurate or unfavorable research, or if they downgrade our stock or our sector, our stock price and trading volume could decline.

The trading market for our common stock relies in part on the research and reports that industry or financial analysts publish about us or our business. We do not control these analysts. Furthermore, if one or more of the analysts who cover us downgrades our stock or our industry, or the stock of any of our competitors, or publishes inaccurate or unfavorable research about our business, the price of our stock could decline. If one or more of these analysts ceases coverage of us or fails to publish reports on us regularly, we could lose visibility in the market, which in turn could cause our stock price or trading volume to decline.

Future sales, or the perception of future sales, by us or our existing stockholders in the public market following this offering could cause the market price for our common stock to decline.

Sales of a substantial number of shares of our common stock in the public market, or the perception that these sales could occur, could substantially decrease the market price of our common stock. After the expiration or earlier waiver or termination of the lock-up periods described below, substantially all of the outstanding shares of our common stock will be available for resale in the public market. Registration of the sale of these shares of our common stock would permit their sale into the market immediately. The market price of our common stock could drop significantly if the holders of these shares sell them or are perceived by the market as intending to sell them.

Prior to this offering, as of May 5, 2017, we had approximately 378.0 million shares of common stock authorized but not outstanding. Our amended and restated certificate of incorporation authorizes us to issue these shares of common stock and options, rights and warrants relating to common stock for the consideration and on the terms and conditions established by our Board of Directors in its sole discretion.

Pursuant to a registration rights agreement, we have granted our Sponsors the right to cause us, in certain instances, at our expense, to file registration statements under the Securities Act of 1933, as amended (the “Securities Act”), covering resales of our common stock held by them. These shares represented approximately 56.4% percent of our outstanding common stock as of May 5, 2017, or approximately 40.9% following this offering (assuming no exercise by the underwriters of their option to purchase up to an additional 5,250,000 shares). These shares also may be sold pursuant to Rule 144 under the Securities Act, depending on their holding period and subject to restrictions in the case of shares held by persons deemed to be our affiliates. As restrictions on resale end or if these stockholders exercise their registration rights, the market price of our stock could decline if the holders of restricted shares sell them or are perceived by the market as intending to sell them. Additionally, pursuant to our management stockholder’s agreements, certain stockholders are eligible to sell shares of our common stock concurrently with a resale of shares of our common stock by the Sponsors pursuant to the registration rights agreement.

In connection with this offering, we and the selling stockholders will sign lock-up agreements with the underwriters of this offering that, subject to certain customary exceptions, restrict the sale of the shares of our remaining common stock held by them for 60 days following the date of the prospectus. Also in connection with this offering, our executive officers and directors not selling shares in this offering will sign lock-up agreements with the underwriters identical to the lock-up agreements signed by the selling stockholders, except such lock-up agreements will, subject to certain customary exceptions, restrict the sale of the shares of our common stock held by them for 45 days (instead of 60 days) following the date of this prospectus. Any two of the representatives of the underwriters may, in their sole discretion, release all or any portion of the shares of common stock subject to such lock-up agreements. Our Sponsors collectively hold approximately 56.4% of our outstanding common stock as of May 5, 2017, or approximately 40.9% following this offering (assuming no exercise by the underwriters of their option to purchase up to an additional 5,250,000 shares).

 

24

---

Table of Contents

In addition, as of May 1, 2017, an aggregate of approximately 9,044,791 shares of common stock are reserved for future issuance under our 2007 Stock Incentive Plan and 2016 Plan, 4,781,560 shares of which will be eligible for sale upon exercise of vested options. We have filed a registration statement on Form S-8 under the Securities Act to register all shares of common stock subject to outstanding stock options and the shares of common stock subject to issuance under the 2007 Stock Incentive Plan, the 2016 Plan, and the Employee Stock Purchase Plan. The Form S-8 registration statement automatically became effective upon filing. The initial registration statement on Form S-8 covered 27,428,139 shares of common stock. These shares can be sold in the public market upon issuance, subject to restrictions under the securities laws applicable to resales by affiliates.

As restrictions on resale end, the market price of our shares of common stock could drop significantly if the holders of these restricted shares sell them or are perceived by the market as intending to sell them. These factors could also make it more difficult for us to raise additional funds through future offerings of our shares of common stock or other securities.

In the future, we may also issue our securities in connection with investments or acquisitions. The amount of shares of our common stock issued in connection with an investment or acquisition could constitute a material portion of then-outstanding shares of our common stock. Any issuance of additional securities in connection with investments or acquisitions may result in additional dilution to you.

Anti-takeover provisions in our organizational documents could delay or prevent a change of control.

Certain provisions of our amended and restated certificate of incorporation and amended and restated bylaws may have an anti-takeover effect and may delay, defer, or prevent a merger, acquisition, tender offer, takeover attempt, or other change of control transaction that a stockholder might consider in its best interest, including those attempts that might result in a premium over the market price for the shares held by our stockholders.

These provisions provide for, among other things:

 

•

a classified Board of Directors, dividing our Board of Directors into three classes, with each class serving for staggered three-year terms, which prevents stockholders from electing an entirely new Board of Directors at a single annual meeting;

 

•

the issuance of one or more series of preferred stock that could be used by our Board of Directors to thwart a takeover attempt;

 

•

an advance notice requirement for nominations of directors by stockholders and for proposing matters that can be acted upon by stockholders at our stockholder meetings;

 

•

a prohibition on stockholders calling special meetings of stockholders if the Sponsors collectively cease to own more than 50% of our outstanding shares of common stock, which we expect to be the case following the completion of this offering;

 

•

subject to any rights of holders of preferred stock and any applicable terms of the Amended and Restated Stockholders Agreement, a limitation on stockholders’ ability to remove directors if the Sponsors collectively cease to own more than 25% of our outstanding shares of common stock;

 

•

subject to any rights of holders of preferred stock and any applicable terms of the Amended and Restated Stockholders Agreement, the filling of vacancies on the Board of Directors, including newly-created directorships, only by a majority vote of directors then in office, even if less than a quorum, or by a sole remaining director;

 

•

a prohibition on stockholder action by written consent, thereby requiring all actions to be taken at a meeting of the stockholders if the Sponsors collectively cease to own more than 50% of our outstanding shares of common stock, which we expect to be the case following the completion of this offering; and

 

25

---

Table of Contents

•

the approval of at least 75% of our outstanding shares of common stock to amend certain provisions of the amended and restated certificate of incorporation and the amended and restated bylaws if the Sponsors collectively cease to own less than 50% of our outstanding shares of common stock, which we expect to be the case following the completion of this offering.

These anti-takeover provisions could make it more difficult for a third party to acquire us, even if the third-party’s offer may be considered beneficial by many of our stockholders. As a result, our stockholders may be limited in their ability to obtain a premium for their shares. Even in the absence of a takeover attempt, the existence of these provisions may adversely affect the prevailing market price of our common stock if the provisions are viewed as discouraging takeover attempts in the future. See “Description of Capital Stock.” Our amended and restated certificate of incorporation and certain provisions of our amended and restated bylaws may also make it difficult for stockholders to replace or remove our management. These provisions may facilitate management entrenchment that may delay, deter, render more difficult or prevent a change in our control, which may not be in the best interests of our stockholders.

Our amended and restated certificate of incorporation designates the Court of Chancery of the State of Delaware as the sole and exclusive forum for certain types of actions and proceedings that may be initiated by our stockholders, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers, employees, or stockholders.

Our amended and restated certificate of incorporation provides that, subject to limited exceptions, the Court of Chancery of the State of Delaware will be the sole and exclusive forum for any (i) derivative action or proceeding brought on behalf of our Company, (ii) action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee, agent, or stockholder of our Company to the Company or the Company’s stockholders, (iii) action asserting a claim against the Company or any director, officer, employee, agent, or stockholder of the Company arising pursuant to any provision of the Delaware General Corporation Law (the “DGCL”) or our amended and restated certificate of incorporation or our amended and restated bylaws, or (iv) action asserting a claim against the Company or any director, officer, employee, agent, or stockholder of the Company governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock shall be deemed to have notice of and to have consented to the provisions of our amended and restated certificate of incorporation described above. This choice of forum provision may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or our directors, officers, or other employees, which may discourage such lawsuits against us and our directors, officers and employees. Alternatively, if a court were to find these provisions of our amended and restated certificate of incorporation inapplicable to, or unenforceable in respect of, one or more of the specified types of actions or proceedings, we may incur additional costs associated with resolving such matters in other jurisdictions, which could adversely affect our business and financial condition.

Our amended and restated certificate of incorporation includes provisions limiting the personal liability of our directors for breaches of fiduciary duty under the DGCL.

Our amended and restated certificate of incorporation contains a provision permitted under the DGCL relating to the liability of directors. This provision eliminates a director’s personal liability to the fullest extent permitted by the DGCL for monetary damages resulting from a breach of fiduciary duty; provided that such provision will not eliminate or limit a director’s liability for:

 

•

any breach of the director’s duty of loyalty;

 

•

acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law;

 

•

Section 174 of the DGCL (unlawful dividends); or

 

•

any transaction from which the director derives an improper personal benefit.

 

26

---

Table of Contents

The principal effect of the limitation on liability provision is that a stockholder will be unable to prosecute an action for monetary damages against a director unless the stockholder can demonstrate a basis for liability for which indemnification is not available under the DGCL. This provision, however, should not limit or eliminate our rights or any stockholder’s rights to seek non-monetary relief, such as an injunction or rescission, in the event of a breach of a director’s fiduciary duty. This provision will not alter a director’s liability under federal securities laws. The inclusion of this provision in our amended and restated certificate of incorporation may discourage or deter stockholders or management from bringing a lawsuit against directors for a breach of their fiduciary duties, even though such an action, if successful, might otherwise have benefited us and our stockholders.

The Sponsors have the ability to exert substantial influence over us and their interests may conflict with ours or yours in the future.

Immediately following the completion of this offering, investment funds associated with CD&R and KKR will beneficially own approximately 20.47% and 20.47% of our common stock, respectively, or approximately 19.29% and 19.29%, respectively, if the underwriters exercise in full their option to purchase additional shares. As a result, the Sponsors will have the ability to exert substantial influence on our policies and operations, including the appointment of management, future issuances of our common stock or other securities, the payment of dividends, if any, on our common stock, the incurrence or modification of debt by us, amendments to our amended and restated certificate of incorporation and amended and restated bylaws, and the entering into of extraordinary transactions, and their interests may not in all cases be aligned with your interests. In addition, the Sponsors may have an interest in pursuing acquisitions, divestitures, and other transactions that, in their respective judgment, could enhance their investment, even though such transactions might involve risks to you. For example, the Sponsors could cause us to make acquisitions that increase our indebtedness or cause us to sell revenue-generating assets. Additionally, in certain circumstances, acquisitions of debt at a discount by purchasers that are related to a debtor can give rise to cancellation of indebtedness income to such debtor for U.S. federal income tax purposes.

Additionally, pursuant to the Amended and Restated Stockholders Agreement, each Sponsor has agreed to vote in favor of nominees to our Board of Directors nominated by the other Sponsor. The Amended and Restated Stockholders Agreement also grants the Sponsors special governance rights, including approval rights over certain corporate and other transactions, and certain rights regarding the appointment and removal of our Chief Executive Officer. The Sponsors will retain these rights so long as the applicable Sponsor maintains certain specified minimum levels of ownership in our Company. See “Selling Stockholders—Transactions with the Selling Stockholders.”

CD&R and KKR are in the business of making investments in companies and may from time to time acquire and hold interests in businesses that compete directly or indirectly with us.

Our amended and restated certificate of incorporation provides that the Company will renounce and waive any interest or expectancy in participating in, directly or indirectly, any potential transaction or business opportunity that is presented to the Sponsors. In addition, none of CD&R, KKR, or any of their affiliates have any duty to refrain from engaging, directly or indirectly, in the same business activities or similar business activities or lines of business in which we operate. The Sponsors also may pursue acquisition opportunities that may be complementary to our business, and, as a result, those acquisition opportunities may not be available to us. In addition, the Sponsors will be able to cause or prevent a change in the composition of our Board of Directors. The concentration of ownership could deprive you of an opportunity to receive a premium for your shares of common stock as part of a sale of the Company and ultimately might affect the market price of our common stock.

 

27

---

Table of Contents

After the completion of this offering, we will no longer qualify as a “controlled company” pursuant to the rules of the NYSE. As a result, we must comply with certain corporate governance requirements within one year or less of the completion of this offering.

After completion of this offering, the Sponsors will no longer control a majority of the voting power of our outstanding common stock. As a result, we will no longer be a “controlled company” within the meaning of the corporate governance standards of the NYSE, and we will be required to comply with certain corporate governance requirements within one year or less of the completion of this offering, including:

 

•

the requirement that a majority of our Board of Directors consist of “independent directors” as defined under the rules of the NYSE;

 

•

the requirement that we have a compensation committee that is composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities;

 

•

the requirement that we have a nominating and corporate governance committee that is composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities; and

 

•

the requirement for an annual performance evaluation of the compensation and nominating and corporate governance committees.

 

28

---

Table of Contents

FORWARD-LOOKING STATEMENTS

This prospectus and the documents incorporated herein by reference contain “forward-looking statements” within the meaning of the federal securities laws. Forward-looking statements include information concerning our liquidity and our possible or assumed future results of operations, including descriptions of our business strategies. These statements often include words such as “believe,” “expect,” “project,” “anticipate,” “intend,” “plan,” “estimate,” “target,” “seek,” “will,” “may,” “would,” “should,” “could,” “forecasts,” “mission,” “strive,” “more,” “goal,” or similar expressions. The statements are based on assumptions that we have made, based on our experience in the industry as well as our perceptions of historical trends, current conditions, expected future developments, and other factors we think are appropriate. We believe these judgments are reasonable. However, you should understand that these statements are not guarantees of performance or results. Our actual results could differ materially from those expressed in the forward-looking statements.

There are a number of risks, uncertainties, and other important factors, many of which are beyond our control, that could cause our actual results to differ materially from the forward-looking statements included or incorporated by reference in this prospectus. Such risks, uncertainties, and other important factors include, among others, the risks, uncertainties, and factors discussed or referred to under “Risk Factors” above and the following risks, uncertainties, and factors:

 

•

Our ability to remain profitable during times of cost inflation/deflation, commodity volatility, and other factors

 

•

Industry competition and our ability to successfully compete

 

•

Our reliance on third-party suppliers, including the impact of any interruption of supplies or increases in product costs

 

•

Risks related to our indebtedness, including our substantial amount of debt, our ability to incur substantially more debt, and increases in interest rates

 

•

Restrictions and limitations placed on us by our agreements and instruments governing our debt

 

•

Any change in our relationships with GPOs

 

•

Any change in our relationships with long-term customers

 

•

Our ability to increase sales to independent restaurant customers

 

•

Our ability to successfully consummate and integrate future acquisitions

 

•

Our ability to achieve the benefits that we expect from our cost savings initiatives

 

•

Shortages of fuel and increases or volatility in fuel costs

 

•

Any declines in the consumption of food prepared away from home, including as a result of changes in the economy or other factors affecting consumer confidence

 

•

Liability claims related to products we distribute

 

•

Our ability to maintain a good reputation

 

•

Costs and risks associated with labor relations and the availability of qualified labor

 

•

Changes in industry pricing practices

 

•

Changes in competitors’ cost structures

 

•

Our ability to retain customers not obligated by long-term contracts to continue purchasing products from us

 

•

Environmental, health, and safety costs

 

29

---

Table of Contents

•

Costs and risks associated with government laws and regulations, including those related to environmental, health, safety, food safety, transportation, labor and employment, and changes in existing laws or regulations

 

•

Technology disruptions and our ability to implement new technologies

 

•

Costs and risks associated with a potential cybersecurity incident

 

•

Our ability to manage future expenses and liabilities associated with our retirement benefits and multiemployer pension plans

 

•

Disruptions to our business caused by extreme weather conditions

 

•

Costs and risks associated with litigation

 

•

Changes in consumer eating habits

 

•

Costs and risks associated with our intellectual property protections

 

•

Risks associated with potential infringements of the intellectual property of others

We urge you to read this prospectus, including the uncertainties and factors discussed or referred to under “Risk Factors,” and the documents incorporated herein by reference completely and with the understanding that actual future results may be materially different from expectations. All forward-looking statements made in this prospectus and documents incorporated herein by reference are qualified by these cautionary statements. Forward-looking statements speak only as of the date they are made. We undertake no obligation, other than as may be required by law, to update or revise any forward-looking or cautionary statements to reflect changes in assumptions, the occurrence of events, unanticipated or otherwise, or changes in future operating results over time or otherwise.

Comparisons of results between current and prior periods are not intended to express any future trends, or indications of future performance, unless expressed as such, and should only be viewed as historical data.

 

30

---

Table of Contents

USE OF PROCEEDS

The selling stockholders will receive all of the net proceeds from the sale of shares of our common stock offered pursuant to this prospectus. We will not receive any proceeds from the sale of shares being sold in this offering, including from any exercise by the underwriters of their option to purchase additional shares. The selling stockholders will bear the underwriting commissions and discounts, if any, attributable to their sale of our common stock, and we will bear the remaining expenses. See “Selling Stockholders.”

 

31

---

Table of Contents

DIVIDEND POLICY

We have no current plans to pay future dividends on our common stock, and we have never paid any dividends on our common stock other than the January 2016 one-time special cash distribution discussed below. Any decision to declare and pay dividends in the future will be made at the sole discretion of our Board of Directors and will depend on, among other things, general and economic conditions, our financial condition, and results of operations, our available cash and current and anticipated cash needs, capital requirements, contractual, legal, tax, and regulatory restrictions, implications on the payment of dividends by us to our stockholders or by our subsidiaries to us, and such other factors as our Board of Directors may deem relevant. Because we are a holding company and have no direct operations, we will only be able to pay dividends from funds we receive from our subsidiaries. In addition, our ability to pay dividends is limited by covenants in our existing debt agreements and may be limited by the agreements governing other indebtedness we or our subsidiaries incur in the future. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Indebtedness” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2016 and our Quarterly Report on Form 10-Q for the fiscal quarter ended April 1, 2017, which are incorporated herein by reference.

In January 2016, we paid a $666.3 million one-time special cash distribution to our stockholders, including the Sponsors.

 

32

---

Table of Contents

PRICE RANGE OF COMMON STOCK

Our common stock began trading publicly on the NYSE under the symbol “USFD” as of May 26, 2016. Prior to that time, there was no public market for our common stock. As of May 5, 2017, there were 24,073 holders of record of our common stock. This stockholder figure does not include a substantially greater number of holders whose shares are held of record by banks, brokers, and other financial institutions. The following table sets forth the high and low intra-day sale prices per share for our common stock as reported on the NYSE for the period indicated:

 

		Stock Price
		High				Low
Fiscal Year Ended December 31, 2016:
Second Quarter ended July 2, 2016 (from May 26, 2016)		$	25.64			$	22.51
Third Quarter ended October 1, 2016		$	25.83			$	22.90
Fourth Quarter ended December 31, 2016		$	27.79			$	22.19
Fiscal Year Ending December 30, 2017:
First Quarter ended April 1, 2017		$	28.14			$	25.50
Second Quarter (through May 9, 2017)		$	29.26			$	27.21

The closing sale price of our common stock, as reported by the NYSE, on May 9, 2017, was $28.80. American Stock Transfer & Trust Company, LLC is the transfer agent and registrar for our common stock.

 

33

---

Table of Contents

CAPITALIZATION

The following table sets forth our consolidated cash and cash equivalents and capitalization as of April 1, 2017.

You should read this table in conjunction with the information contained in “Use of Proceeds” and “Summary Historical Consolidated Financial Data” included elsewhere this prospectus as well “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our unaudited consolidated interim financial statements and the notes thereto incorporated by reference in the prospectus.

 

		As of April 1, 2017
		(In millions, except share data)*
Cash and cash equivalents		$	151.8
Debt:
ABL Facility (1)		$	50.0
2012 ABS Facility			675.0
Amended and Restated 2016 Term Loan			2,170.9
2016 Senior Notes			593.1
Obligations under capital leases			333.0
Other debt			32.6
Total debt (2)			3,854.5
Shareholders’ equity:
Common stock, $0.01 par value, 600,000,000 shares authorized; 220,929,000 shares issued and outstanding			2.2
Additional paid-in capital			2,800.5
Accumulated deficit			(109.6)
Accumulated other comprehensive loss			(118.7)
Total shareholders’ equity			2,574.4
Total capitalization		$	6,428.9

 

(*)	Amounts may not add due to rounding.

(1)

Excludes issued letters of credit totaling $370 million consisting of $61 million issued to secure our obligations related to certain facility leases, $306 million issued in favor of certain commercial insurers securing our obligations related to our self-insurance programs, and $3 million for other obligations of our Company.

(2)	Deferred financing costs of $20 million, as of April 1, 2017 have been netted against the carrying values of certain of our debt obligations.

 

34

---

Table of Contents

SELLING STOCKHOLDERS

The following table and accompanying footnotes set forth information as of May 5, 2017, with respect to the beneficial ownership of our common stock by the selling stockholders. There were 222,156,111 shares of our common stock outstanding as of May 5, 2017.

The amounts and percentages of shares beneficially owned are reported on the basis of SEC regulations governing the determination of beneficial ownership of securities. Under SEC rules, a person is deemed a “beneficial owner” of a security if that person has or shares voting power or investment power, which includes the power to dispose of or to direct the disposition of the security. A person is also deemed a beneficial owner of any securities of which that person has a right to acquire beneficial ownership within 60 days. Securities that can be acquired this way are deemed to be outstanding for purposes of computing a person’s ownership percentage, but not for purposes of computing any other person’s percentage. Under these rules, more than one person may be deemed a beneficial owner of the same securities, and a person may be deemed a beneficial owner of securities to which that person has no economic interest.

Except as otherwise indicated in the footnotes to this table, each of the beneficial owners listed has, to our knowledge, sole voting and investment power for the indicated shares of common stock. Unless otherwise noted, the address for each beneficial owner listed below is c/o US Foods Holding Corp., 9399 W. Higgins Road, Suite 500, Rosemont, IL 60018.

 

										Common Stock to be Sold in this Offering								Common Stock Beneficially Owned After this Offering
		Common Stock Beneficially Owned Prior to this Offering								Assuming the Underwriter’s Option is not Exercised				Assuming the Underwriter’s Option is Exercised in Full (1)				Assuming the Underwriter’s Option is not Exercised								Assuming the Underwriter’s Option is Exercised in Full (1)
Name and Address of Beneficial Holder		Number				Percent				Number				Number				Number				Percentage				Number				Percentage
Investment Funds Associated with or Managed By Clayton, Dubilier & Rice, LLC (2) (3)			62,633,332				28.19	%			17,155,559				19,780,559				45,477,773				20.47	%			42,852,773				19.29	%
Investment Funds Associated with Kohlberg Kravis Roberts & Co., L.P. (4) (5)			62,633,331				28.19	%			17,155,559				19,780,559				45,477,772				20.47	%			42,852,772				19.29	%
John Lederer (6) (7)			2,087,471				*				598,950				598,950				1,488,521				*				1,488,521				*
Pietro Satriano (8) (9)			811,064				*				89,932				89,932				721,132				*				721,132				*

 

*	Less than 1%

(1)	The underwriters have the option to purchase up to an additional 5,250,000 shares from the selling stockholders that are affiliated with CD&R and KKR at the public offering price, less the underwriting discounts and commissions, within 30 days of the date of this prospectus.

(2)

Represents shares held by the following investment funds associated with Clayton, Dubilier & Rice, LLC: a) 33,404,444 shares of common stock held by Clayton, Dubilier & Rice Fund VII, L.P., whose general partner is CD&R Associates VII, Ltd., whose sole stockholder is CD&R Associates VII, L.P., whose general partner is CD&R Investment Associates VII, Ltd.; b) 9,742,963 shares of common stock held by Clayton, Dubilier & Rice Fund VII (Co-Investment), L.P., whose general partner is CD&R Associates VII (Co-Investment), Ltd., whose sole stockholder is CD&R Associates VII, L.P.; c) 237,844 shares of common stock held by CD&R Parallel Fund VII, L.P., whose general partner is CD&R Parallel Fund Associates VII,

 

35

---

Table of Contents

Ltd.; d) 13,680,674 shares of common stock held by CDR USF Co-Investor, L.P., whose general partner is CDR USF Co-Investor GP Limited, whose sole stockholder is Clayton, Dubilier & Rice Fund VII, L.P.; and e) 5,567,407 shares of common stock held by CDR USF Co-Investor No. 2, L.P., whose general partner is CDR USF Co-Investor GP No. 2, Limited, whose sole stockholder is CD&R Associates VII, L.P. CD&R Investment Associates VII, Ltd. and CD&R Parallel Fund Associates VII, Ltd. are each managed by a two-person board of directors. Donald J. Gogel and Kevin J. Conway, as the directors of CD&R Investment Associates VII, Ltd. and CD&R Parallel Fund Associates VII, Ltd., may be deemed to share beneficial ownership of the shares shown as beneficially owned by the funds associated with CD&R. Such persons expressly disclaim such beneficial ownership.

Investment and voting decisions with respect to shares held by CD&R are made by an investment committee of limited partners of CD&R Associates VII, L.P. (the “Investment Committee”). The CD&R investment professionals who have effective voting control of the Investment Committee are Michael G. Babiarz, Vindi Banga, James G. Berges, John C. Compton, Kevin J. Conway, Russell P. Fradin, Thomas C. Franco, Kenneth A. Giuriceo, Donald J. Gogel, Jillian C. Griffiths, Marco Herbst, Sarah Kim, John Krenicki, Jr., David A. Novak, Paul S. Pressler, Roberto Quarta, Christian Rochat, Ravi Sachdev, Richard J. Schnall, Steven W. Shapiro, Nathan K. Sleeper, Derek Strum, Sonja Terraneo, David H. Wasserman and J.L. Zrebiec. All members of the Investment Committee expressly disclaim beneficial ownership of the shares shown as beneficially owned by the funds associated with CD&R. Each of CD&R Associates VII, Ltd., CD&R Associates VII, L.P. and CD&R Investment Associates VII, Ltd. expressly disclaims beneficial ownership of the shares held by Clayton, Dubilier & Rice Fund VII, L.P., as well as the shares held by each of Clayton, Dubilier & Rice Fund VII (Co-Investment), L.P., CD&R Parallel Fund VII, L.P., CDR USF Co-Investor, L.P. and CDR USF Co-Investor No. 2, L.P. Each of CDR USF Co-Investor GP Limited and CDR USF Co-Investor GP No. 2, Limited expressly disclaims beneficial ownership of the shares held by each of CDR USF Co-Investor Limited, CDR USF Co-Investor No. 2, Limited, Clayton, Dubilier & Rice Fund VII, L.P., Clayton, Dubilier & Rice Fund VII (Co-Investment), L.P. and CD&R Parallel Fund VII. CD&R Parallel Fund Associates VII, Ltd. expressly disclaims beneficial ownership of the shares held by each of CD&R Parallel Fund VII, L.P., Clayton, Dubilier & Rice Fund VII, L.P., Clayton, Dubilier & Rice Fund VII (Co-Investment), L.P., CDR USF Co-Investor L.P. and CDR USF Co-Investor No. 2, L.P.

The address for each of Clayton, Dubilier & Rice Fund VII, L.P., CD&R Parallel Fund VII, L.P., Clayton, Dubilier & Rice Fund VII (Co-Investment), L.P., CD&R Associates VII, Ltd., CD&R Associates VII, L.P., CD&R Parallel Fund Associates VII, Ltd., CD&R Associates VII (Co-Investment), Ltd. and CD&R Investment Associates VII, Ltd. is c/o Maples Corporate Services Limited, P.O. Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands. The address for CD&R is 375 Park Avenue, 18th Floor, New York, NY 10152.

(3)

Of the shares being offered by the investment funds associated with or managed by Clayton, Dubilier & Rice, LLC: a) 9,149,631 are being sold in this offering by Clayton, Dubilier & Rice Fund VII, L.P. assuming the underwriters’ option is not exercised and 10,549,631 are being sold in this offering by Clayton, Dubilier & Rice Fund VII, L.P. assuming the underwriters’ option is exercised in full; b) 2,668,643 are being sold in this offering by Clayton, Dubilier & Rice Fund VII (Co-Investment), L.P. assuming the underwriters’ option is not exercised 3,076,976 are being sold in this offering by Clayton, Dubilier & Rice Fund VII (Co-Investment), L.P. assuming the underwriters’ option is exercised in full; c) 65,147 are being sold in this offering by CD&R Parallel Fund VII, L.P. assuming the underwriters’ option is not exercised and 75,115 are being sold in this offering by CD&R Parallel Fund VII, L.P. assuming the underwriters’ option is exercised in full; d) 3,747,200 are being sold in this offering by CDR USF Co-Investor, L.P. assuming the underwriters’ option is not exercised and 4,320,565 are being sold in this offering by CDR USF Co-Investor, L.P. assuming the underwriters’ option is exercised in full; and e) 1,524,938 are being sold in this offering by CDR USF Co-Investor No. 2, L.P. assuming the underwriters’ option is not exercised and 1,758,272 are being sold in this offering by CDR USF Co-Investor No. 2, L.P. assuming the underwriters’ option is exercised in full.

(4)

Represents shares held by the following investment funds associated with KKR: a) 55,543,240 shares of common stock held by KKR 2006 Fund L.P.; b) 4,453,925 shares of common stock held by KKR PEI Food Investments L.P.; c) 1,021,619 shares of common stock held by KKR Partners III, L.P.; d) 501,066 shares of

 

36

---

Table of Contents

common stock held by OPERF Co-Investment LLC; and e) 1,113,481 shares of common stock held by ASF Walter Co-Invest L.P. The sole general partner of the KKR 2006 Fund L.P. is KKR Associates 2006 L.P., and the sole general partner of KKR Associates 2006 L.P. is KKR 2006 GP LLC. The designated member of KKR 2006 GP LLC is KKR Fund Holdings L.P. The sole general partner of KKR PEI Food Investments L.P. is KKR PEI Food Investments GP LLC. The sole member of KKR PEI Food Investments GP LLC is KKR PEI Investments, L.P., whose sole general partner is KKR PEI Associates, L.P., and the sole general partner of KKR PEI Associates, L.P. is KKR PEI GP Limited. The sole shareholder of KKR PEI GP Limited is KKR Fund Holdings L.P. Messrs. Henry Kravis and George Roberts have also been designated as managers of KKR 2006 GP LLC by KKR Fund Holdings L.P. KKR III GP LLC is the sole general partner of KKR Partners III, L.P. The managers of KKR III GP LLC are Messrs. Kravis and Roberts. The manager of OPERF Co-Investment LLC is KKR Associates 2006 L.P. The general partner of ASF Walter Co-Invest L.P. is ASF Walter Co-Invest GP Limited. The sole shareholder of ASF Walter Co-Invest GP Limited is KKR Fund Holdings L.P. The general partners of KKR Fund Holdings L.P. are KKR Fund Holdings GP Limited and KKR Group Holdings L.P. The sole shareholder of KKR Fund Holdings GP Limited is KKR Group Holdings L.P. The sole general partner of KKR Group Holdings L.P. is KKR Group Limited. The sole shareholder of KKR Group Limited is KKR & Co. L.P. The sole general partner of KKR & Co. L.P. is KKR Management LLC. The designated members of KKR Management LLC are Messrs. Kravis and Roberts. Each of the KKR entities and Messrs. Kravis and Roberts may be deemed to share voting and investment power with respect to the shares beneficially owned by KKR, but each has disclaimed beneficial ownership of such shares, except to the extent directly held. The address for all entities noted above and for Mr. Kravis is c/o Kohlberg Kravis Roberts & Co. L.P., 9 West 57th Street, Suite 4200, New York, NY 10019. The address for Mr. Roberts is c/o Kohlberg Kravis Roberts & Co. L.P., 2800 Sand Hill Road, Suite 200, Menlo Park, CA 94025.

(5)

Of the shares being offered by the investment funds associated with KKR: a) 15,213,550 are being sold in this offering by KKR 2006 Fund L.P. assuming the underwriters’ option is not exercised and 17,541,401 are being sold in this offering by KKR 2006 Fund L.P. assuming the underwriters’ option is exercised in full; b) 1,219,951 are being sold in this offering by KKR PEI Food Investments L.P. assuming the underwriters’ option is not exercised and 1,406,617 are being sold in this offering by KKR PEI Food Investments L.P. assuming the underwriters’ option is exercised in full; c) 279,826 are being sold in this offering by KKR Partners III, L.P. assuming the underwriters’ option is not exercised and 322,643 are being sold in this offering by KKR Partners III, L.P. assuming the underwriters’ option is exercised in full; d) 137,244 are being sold in this offering by OPERF Co-Investment LLC assuming the underwriters’ option is not exercised and 158,244 are being sold in this offering by OPERF Co-Investment LLC assuming the underwriters’ option is exercised in full; and e) 304,988 are being sold in this offering by ASF Walter Co-Invest L.P. assuming the underwriters’ option is not exercised and 351,654 are being sold in this offering by ASF Walter Co-Invest L.P. assuming the underwriters’ option is exercised in full.

(6)	Includes 1,583,247 vested options and unvested options exercisable within 60 days and restricted stock units that will vest within 60 days.

(7)	Mr. Lederer is a member of our Board of Directors.

(8)	Includes 360,436 shares underlying vested options and unvested options exercisable within 60 days and restricted stock units that will vest within 60 days.

(9)	Mr. Satriano is our President and Chief Executive Officer and a member of our Board of Directors.

Transactions with the Selling Stockholders

Amended and Restated Stockholders Agreement

We are currently party to a stockholders agreement (the “Amended and Restated Stockholders Agreement”) with the Sponsors. Collectively, prior to this offering, the Sponsors hold 56.4% of our outstanding common stock. The Amended and Restated Stockholders Agreement contains, among other things, agreements with respect to the election of our directors. The Amended and Restated Stockholders Agreement grants each of the Sponsors the right to designate for nomination for election a number of designees equal to: (i) at least 40% of the total number of directors comprising the Board of Directors at such time as long as such Sponsor owns at least 90% of its original shares of common stock; (ii) at least 30% of the total number of directors comprising the

 

37

---

Table of Contents

Board of Directors at such time as long as such Sponsor owns at least 75% but less than 90% of its original shares of common stock; (iii) at least 20% of the total number of directors comprising he Board of Directors at such time as long as such Sponsor owns at least 50% but less than 75% of its original shares of common stock; (iv) at least 10% of the total number of directors comprising the Board of Directors at such time as long as such Sponsor owns at least 25% but less than 50% of its original shares of common stock; and (v) at least 5% of the total number of directors comprising the Board of Directors at such time as long as such Sponsor owns at least 10% but less than 25% of its original shares of common stock. Pursuant to the Amended and Restated Stockholders Agreement, each of the Sponsors agrees to vote, or act by written consent, with respect to any common stock owned by it, to cause each of the Sponsors’ designees and our Chief Executive Officer to be elected to our Board of Directors. So long as each of the Sponsors has the right to designate at least one nominee to the Board of Directors, we will include at least one designee from each of the Sponsors on each of the Audit Committee, Compensation Committee, and the Nominating and Corporate Governance Committee of the Board of Directors, subject to compliance with applicable regulations. We do not currently have any Sponsor designees on the Audit Committee. The Amended and Restated Stockholders Agreement provides that the Board of Directors will be comprised of between two and 15 directors, but the number of directors can only be changed with the consent of the Sponsors for so long as each has the right to designate nominees to the Board of Directors under the Amended and Restated Stockholders Agreement. In addition, the Amended and Restated Stockholders Agreement grants to the Sponsors special governance rights, for as long as the applicable Sponsor maintains ownership of our common stock at a level that would entitle the Sponsor to designate a nominee to our Board of Directors or that is at least 10% of our outstanding common stock, including rights of approval over certain corporate and other transactions such as mergers or other transactions involving a change in control and certain rights regarding the appointment of our Chief Executive Officer.

In addition, all of our executive officers and certain of our other employees entered into agreements with us and the Sponsors in connection with their purchase of shares our common stock and receipt of equity awards under the 2007 Stock Incentive Plan. Such agreements included management stockholder’s agreements and subscription agreements, under which our executives and employees purchased our common stock (and were granted additional equity awards to acquire our common stock). These agreements contained, among other things, restrictions on the transfer of our shares of common stock, rights of the Company to repurchase shares of our common stock and options in certain circumstances, and limited “piggyback” registration rights. On January 20, 2017, the Company and the Sponsors waived the restrictions on the transfer of our shares for employees other than our executive officers. On April 5, 2017, the Company terminated the management stockholder’s agreements for all of our employees, including executive officers, except that our executive officers’ limited piggyback registration rights survive the termination of the agreements.

Amended and Restated Registration Rights Agreements

We are currently a party to an amended and restated registration rights agreement (the “Amended and Restated Registration Rights Agreement”) with the Sponsors holding approximately 56.4% percent of our outstanding common stock as of May 5, 2017, or approximately 40.9% following this offering (assuming no exercise by the underwriters of their option to purchase up to an additional shares). The Amended and Restated Registration Rights Agreement grants to the Sponsors the right to cause us, at our own expense, to use our reasonable best efforts to register shares held by the Sponsors for public resale, subject to certain limitations. In the event we file a registration statement to register any of our common stock, the Sponsors also have the right to require us to use our best efforts to include shares of our common stock held by them, subject to certain limitations, including as determined by the underwriters. The Amended and Restated Registration Rights Agreement also provides for us to indemnify the Sponsors party to such agreement and their affiliates for certain misstatements, omissions, and violations of securities laws in connection with the registration of our common stock. The registration statement of which this prospectus forms a part was filed in connection with our obligations under the Amended and Restated Registration Rights Agreement.

 

38

---

Table of Contents

Consulting Agreements

We were a party to consulting agreements with each of the Sponsors (the “Consulting Agreements”), pursuant to which each Sponsor provided us with ongoing consulting and management advisory services and received fees and reimbursements of related out-of-pocket expenses. Under these agreements, we paid consulting fees, in the aggregate to both Sponsors, of $10 million in each of the fiscal years 2015, 2014, and 2013. We terminated the Consulting Agreements with each of the Sponsors on June 1, 2016 and paid an aggregate termination fee of $30.7 million ($15.3 million to CD&R and $15.3 million to KKR).

Indemnification Agreements

We are a party to indemnification agreements with each of the Sponsors, pursuant to which we indemnify such Sponsors, and their respective affiliates, directors, officers, partners, members, employees, agents, representatives, and controlling persons, against certain liabilities arising out of performance of the Consulting Agreements described above under “—Consulting Agreements” and certain other claims and liabilities, including liabilities arising out of financing arrangements and securities offerings.

We are also a party to indemnification agreements with our directors. The indemnification agreements provide our directors with contractual rights to the indemnification and expense advancement rights. See “Description of Capital Stock—Limitations on Liability and Indemnification.”

Financing Arrangements with Related Parties

In January 2013, we repurchased $355 million in aggregate principal amount of 11.25% / 12% Senior Subordinated Notes due 2017 (the “Senior Subordinated Notes”) from an affiliate of CD&R, at a price equal to 105.625% of the principal amount of the Senior Subordinated Notes, plus accrued and unpaid interest to the purchase date. The repurchase was funded through net proceeds from the issuance of 8.50% unsecured senior notes due 2019 (the “Old Senior Notes”).

In February 2015, we repurchased $2 million of aggregate principal amount of Old Senior Notes held by KKR.

In May 2016, KKR Capital Markets LLC, an affiliate of KKR, received underwriter discounts and commissions of $5 million in connection with the Company’s IPO and received approximately $1 million for services rendered in connection with certain debt refinancing transactions.

In January 2017, KKR Capital Markets LLC acted as an underwriter in connection with a secondary offering of the Company’s stock and received underwriter discounts and commissions of approximately $4 million. In February 2017, KKR Capital Markets LLC received $0.025 million for services rendered in connection with a debt refinancing transaction.

Relationship with KKR Credit

Since 2013, investment vehicles advised by KKR were participating lenders under our Amended and Restated 2016 Term Loan, which was refinanced in 2016. Prior to or in connection with its refinancing, investment funds or accounts managed or advised by KKR had received aggregate principal payments of approximately $154.5 million and interest payments and consent, amendment or extension fees of approximately $47.5 million. Since the refinancing through March 31, 2017, investment funds or accounts managed or advised by KKR had received aggregate principal payments of approximately $75,000 and interest payments of approximately $262,000.

 

39

---

Table of Contents

Since 2013, investment funds or accounts managed or advised by KKR were also holders of our Old Senior Notes, which we redeemed in June 2016 using the net proceeds from our IPO. Prior to such redemption, investment funds or accounts managed or advised by KKR had received interest payments and consent fees of approximately $3.5 million and received approximately $10.3 million in principal amount and early redemption premiums in connection with the redemption.

Relationship with KKR Capstone

We have utilized and may continue to utilize KKR Capstone Americas LLC and/or its affiliates (“KKR Capstone”), a consulting company that works exclusively with KKR’s portfolio companies, for consulting services, and have paid to KKR Capstone related fees and expenses. KKR Capstone is not a subsidiary or affiliate of KKR. KKR Capstone operates under several consulting agreements with KKR and uses the “KKR” name under license from KKR.

Transactions with Other Related Parties

In connection with our business, we procure products from thousands of suppliers, some of which may be affiliated with the Sponsors. We estimate that we purchased food products from a former affiliate of a Sponsor, while we were owned by the Sponsor, for approximately $12 million in fiscal 2013. Management believes these transactions were conducted on an arm’s-length basis at prices that an unrelated third party would have paid for such products.

 

40

---

Table of Contents

DESCRIPTION OF CAPITAL STOCK

The following is a description of the material terms of, and is qualified in its entirety by, our amended and restated certificate of incorporation and amended and restated bylaws, each of which is filed as an exhibit to the registration statement of which this prospectus is a part.

Our purpose is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the DGCL. Our authorized capital stock consists of 600,000,000 shares of common stock, par value $0.01 per share, and 25,000,000 shares of preferred stock, par value $0.01 per share. No shares of preferred stock will be issued or outstanding immediately after the public offering contemplated by this prospectus. Unless our Board of Directors determines otherwise, we will issue all shares of our capital stock in uncertificated form.

Common Stock

Holders of our common stock are entitled:

 

•

to cast one vote for each share held of record on all matters submitted to a vote of the stockholders;

 

•

to receive, on a pro rata basis, dividends and distributions, if any, that the Board of Directors may declare out of legally available funds, subject to preferences that may be applicable to preferred stock, if any, then outstanding; and

 

•

upon our liquidation, dissolution or winding up, to share equally and ratably in any assets remaining after the payment of all debt and other liabilities, subject to the prior rights, if any, of holders of any outstanding shares of preferred stock.

Our ability to pay dividends on our common stock is subject to our subsidiaries’ ability to pay dividends to us, which is, in turn, subject to the restrictions set forth in our existing debt agreements and which may be limited by the agreements governing other indebtedness we or our subsidiaries incur in the future. See “Dividend Policy.”

The holders of our common stock do not have any preemptive, cumulative voting, subscription, conversion, redemption or sinking fund rights. The common stock is not subject to future calls or assessments by us. The rights and privileges of the holders of our common stock are subject to any series of preferred stock that we may issue in the future, as described in “—Preferred Stock” below.

As of May 5, 2017, we had 222,156,111 shares of common stock outstanding and 24,073 holders of record of common stock.

Preferred Stock

Under our amended and restated certificate of incorporation, our Board of Directors has the authority, without further action by our stockholders, to issue up to 25,000,000 shares of preferred stock in one or more series and to fix the voting powers, designations, preferences and the relative participating, optional or other special rights and qualifications, limitations and restrictions of each series, including dividend rights, dividend rates, conversion rights, voting rights, terms of redemption, liquidation preferences and the number of shares constituting any series. No shares of our authorized preferred stock are currently outstanding. Because the Board of Directors has the power to establish the preferences and rights of the shares of any series of preferred stock, it may afford holders of any preferred stock preferences, powers and rights, including voting and dividend rights, senior to the rights of holders of our common stock, which could adversely affect the holders of the common stock and could delay, discourage or prevent a takeover of us even if a change of control of our company would be beneficial to the interests of our stockholders.

 

41

---

Table of Contents

Annual Stockholder Meetings

Our amended and restated bylaws provide that annual stockholder meetings will be held at a date, time, and place, if any, as exclusively selected by our Board of Directors. To the extent permitted under applicable law, we may conduct meetings by remote communications, including by webcast.

Anti-Takeover Effects of Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws and Certain Provisions of Delaware Law

The provisions of our amended and restated certificate of incorporation and amended and restated bylaws and of the DGCL summarized below may have an anti-takeover effect and may delay, defer or prevent a tender offer or takeover attempt that you might consider in your best interest, including an attempt that might result in your receipt of a premium over the market price for your shares. These provisions are also designed, in part, to encourage persons seeking to acquire control of us to first negotiate with our Board of Directors, which could result in an improvement of their terms.

Classified Board of Directors. The terms of our amended and restated certificate of incorporation and amended and restated bylaws provide that our Board of Directors will be divided into three classes, as nearly equal in number as possible, with members of each class serving staggered three-year terms. Our amended and restated certificate of incorporation provides that the number of directors will be between 2 and 15 and the authorized number of directors may be changed only by resolution of the Board of Directors. Any additional directorships resulting from an increase in the number of directors will be distributed among the three classes so that, as nearly as possible, each class will consist of one-third of the directors. Our amended and restated certificate of incorporation also provides that, subject to any rights of holders of preferred stock and any applicable terms of the Amended and Restated Stockholders Agreement, and except as otherwise provided in any bylaw, any vacancy on our Board of Directors, including a vacancy resulting from an enlargement of our Board of Directors, may be filled only by vote of a majority of our directors then in office, except with respect to any vacancy of a Sponsor-designated director, in which case such Sponsor will have the right to designate a new director for election by a majority of the remaining directors then in office, even if less than a quorum, or by the sole remaining director. Our classified Board of Directors could have the effect of delaying or discouraging an acquisition of us or a change in our management.

Special Meetings of Stockholders. Our amended and restated certificate of incorporation provides that, subject to the rights of holders of preferred stock and the requirements of applicable law, a special meeting of stockholders may be called only by or at the direction of our Board of Directors pursuant to a resolution adopted by a majority of our Board of Directors. Special meetings may also be called by our Corporate Secretary at the request of the holders of not less than 50% of the outstanding shares of our common stock so long as the Sponsors collectively beneficially own (directly or indirectly) more than 50% of the outstanding shares of our common stock in the aggregate, which we expect to be the case following the completion of this offering. Thereafter, stockholders will not be permitted to call a special meeting.

No Stockholder Action by Written Consent. Our amended and restated certificate of incorporation provides that stockholder action may be taken only at an annual meeting or special meeting of stockholders and may not be taken by written consent in lieu of a meeting, unless the Sponsors collectively beneficially own (directly or indirectly) more than 50% of the outstanding shares of our common stock in the aggregate, which we do not expect to be the case following the completion of this offering.

Removal of Directors. Our amended and restated certificate of incorporation provides that, subject to any rights of holders of preferred stock and any applicable terms of the Amended and Restated Stockholders Agreement, directors may be removed with or without cause at any time upon the affirmative vote of holders of at least a majority of the votes to which all the stockholders would be entitled to cast in any election of directors until the Sponsors no longer collectively beneficially own (directly or indirectly) more than 25% of the

 

42

---

Table of Contents

outstanding shares of our common stock in the aggregate. After such time, directors may be removed from office only for cause and only upon the affirmative vote of holders of at least 75% of the votes which all the stockholders would be entitled to cast in any election of directors.

Stockholder Advance Notice Procedure. Our amended and restated bylaws establish advance notice procedures for stockholders to make nominations of candidates for election as directors or to bring other business before an annual meeting of our stockholders. The amended and restated bylaws provide that any stockholder wishing to nominate persons for election as directors at, or bring other business before, an annual meeting must deliver to our Corporate Secretary a written notice of the stockholder’s intention to do so. These provisions may have the effect of precluding the conduct of certain business at a meeting if the proper procedures are not followed. We expect that these provisions may also discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting to obtain control of our company. To be timely, the stockholder’s notice must be delivered to our Corporate Secretary at our principal executive offices neither fewer than 90 days nor more than 120 days before the first anniversary date of the annual meeting for the preceding year; provided, however, that in the event that the annual meeting is set for a date that is more than 30 days before or more than 70 days after the first anniversary date of the preceding year’s annual meeting, a stockholder’s notice must be delivered to our Secretary (x) neither earlier than 90 days nor more than 120 days prior to the meeting or (y) neither later than the 10th day following the day on which a public announcement of the date of the such meeting is first made by us nor more than 120 days prior to the meeting.

Amendments to Certificate of Incorporation and Bylaws. The DGCL generally provides that the affirmative vote of a majority of the outstanding stock entitled to vote on any matter is required to amend a corporation’s certificate of incorporation or bylaws, unless either a corporation’s certificate of incorporation or bylaws require a greater percentage. Our amended and restated certificate of incorporation provides that, upon the Sponsors’ ceasing to collectively beneficially own (directly or indirectly) more than 50% of the outstanding shares of our common stock in the aggregate, which is expected to be the case following the completion of this offering, specified provisions of our amended and restated certificate of incorporation may not be amended, altered or repealed unless the amendment is approved by the affirmative vote of the holders of at least 75% of the outstanding shares of our common stock then entitled to vote generally in the election of directors, voting together as a single class, including the provisions governing the liability and indemnification of directors, corporate opportunities, the elimination of stockholder action by written consent and the prohibition on the rights of stockholders to call a special meeting.

In addition, our amended and restated certificate of incorporation and amended and restated bylaws provide that our amended and restated bylaws may be amended, altered or repealed, or new bylaws may be adopted, by the affirmative vote of a majority of the Board of Directors, or by the affirmative vote of the holders of (x) as long as the Sponsors collectively beneficially own (directly or indirectly) more than 50% of the outstanding shares of our common stock in the aggregate, at least a majority, and (y) thereafter, at least 75%, of the outstanding shares of our common stock then entitled to vote at any annual or special meeting of stockholders, voting together as a single class.

These provisions make it more difficult for any person to remove or amend any provisions in our amended and restated certificate of incorporation and amended and restated bylaws that may have an anti-takeover effect.

Section 203 of the Delaware General Corporation Law. In our amended and restated certificate of incorporation, we elect not to be governed by Section 203 of the DGCL, as permitted under and pursuant to subsection (b)(3) of Section 203, until the first date that the Sponsors no longer beneficially own (directly or indirectly) any of our outstanding shares of common stock. After such date, we will be governed by Section 203. Section 203, with specified exceptions, prohibits a Delaware corporation from engaging in any “business

 

43

---

Table of Contents

combination” with any “interested stockholder” for a period of three years following the time that the stockholder became an interested stockholder unless:

 

•

prior to such time, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;

 

•

upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding, but not the outstanding voting stock owned by the interested stockholder, those shares owned (i) by persons who are directors and also officers and (ii) pursuant to employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or

 

•

at or subsequent to such time, the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2⁄3% of the outstanding voting stock that is not owned by the interested stockholder.

Section 203 of the DGCL defines “business combination” to include the following:

 

•

any merger or consolidation of the corporation or any direct or indirect majority-owned subsidiary of the corporation with the interested stockholder, or with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the interested stockholder and certain other conditions are met;

 

•

any sale, lease, exchange, mortgage, transfer, pledge, or other disposition of 10% or more of the assets of the corporation involving the interested stockholder, subject to certain conditions;

 

•

subject to specified exceptions, any transaction that results in the issuance or transfer by the corporation or by any direct or indirect majority-owned subsidiary of the corporation of any stock of the corporation to the interested stockholder;

 

•

any transaction involving the corporation or any direct or indirect majority-owned subsidiary of the corporation that has the effect, directly or indirectly, of increasing the proportionate share of the stock of any class or series of the corporation or any such subsidiary beneficially owned by the interested stockholder; and

 

•

any receipt by the interested stockholder of the benefit, directly or indirectly and subject to certain conditions, of any loans, advances, guarantees, pledges, or other financial benefits provided by or through the corporation.

An “interested stockholder” is any entity or person who, together with affiliates and associates, owns, or within the previous three years owned, 15% or more of the outstanding voting stock of the corporation.

Limitations on Liability and Indemnification

Our amended and restated certificate of incorporation contains a provision permitted under the DGCL relating to the liability of directors. This provision eliminates a director’s personal liability to the fullest extent permitted by the DGCL for monetary damages resulting from a breach of fiduciary duty; provided that such provision will not eliminate or limit a director’s liability for:

 

•

any breach of the director’s duty of loyalty;

 

•

acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law;

 

•

Section 174 of the DGCL (unlawful dividends); or

 

•

any transaction from which the director derives an improper personal benefit.

 

44

---

Table of Contents

The principal effect of the limitation on liability provision is that a stockholder is unable to prosecute an action for monetary damages against a director unless the stockholder can demonstrate a basis for liability for which indemnification is not available under the DGCL. This provision, however, should not limit or eliminate our rights or any stockholder’s rights to seek non-monetary relief, such as an injunction or rescission, in the event of a breach of a director’s fiduciary duty. This provision does not alter a director’s liability under federal securities laws. The inclusion of this provision in our amended and restated certificate of incorporation may discourage or deter stockholders or management from bringing a lawsuit against directors for a breach of their fiduciary duties, even though such an action, if successful, might otherwise have benefited us and our stockholders.

Our amended and restated bylaws provide that we are required to indemnify our directors and officers, to the fullest extent permitted by law, for all judgments, fines, settlements, legal fees and other expenses incurred in connection with pending or threatened legal proceedings because of the director’s or officer’s positions with us or another entity that the director or officer serves at our request, subject to various conditions and exceptions, and to advance funds to our directors and officers to enable them to defend against such proceedings.

We have entered into an indemnification agreement with each of our directors. The indemnification agreements provide our directors with contractual rights to the indemnification and expense advancement rights provided under our amended and restated bylaws, as well as contractual rights to additional indemnification as provided in the indemnification agreements.

Corporate Opportunities

Our amended and restated certificate of incorporation provides that we, on our behalf and on behalf of our subsidiaries, renounce and waive any interest or expectancy in, or in being offered an opportunity to participate in, corporate opportunities, that are from time to time presented to the Sponsors, or their respective officers, directors, agents, stockholders, members, partners, affiliates or subsidiaries, even if the opportunity is one that we or our subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so. None of the Sponsors or their respective agents, stockholders, members, partners, affiliates or subsidiaries will generally be liable to us or any of our subsidiaries for breach of any fiduciary or other duty, as a director or otherwise, by reason of the fact that such person pursues, acquires or participates in such corporate opportunity, directs such corporate opportunity to another person or fails to present such corporate opportunity, or information regarding such corporate opportunity, to us or our subsidiaries. Stockholders are deemed to have notice of and consented to this provision of our amended and restated certificate of incorporation.

Choice of Forum

Our amended and restated certificate of incorporation provides that, unless our Company consents in writing to an alternate forum, the Court of Chancery of the State of Delaware will be the exclusive forum for (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of a fiduciary duty owed to us or our stockholders by our directors, officers, employees, agents or stockholders, (iii) any action asserting a claim against us or any director, officer, employee, agent or stockholder arising under the DGCL, our amended and restated certificate of incorporation and our amended and restated bylaws, or (iv) any action asserting a claim against us or any director, officer, employee, agent or stockholder that is governed by the internal affairs doctrine. It is possible that a court could rule that this provision is not applicable or is unenforceable. We may consent in writing to alternative forums. Stockholders are deemed to have notice of and consented to this provision of our amended and restated certificate of incorporation.

Transfer Agent and Registrar

The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC.

Listing

Our common stock is listed on the NYSE under the symbol “USFD.”

 

45

---

Table of Contents

MATERIAL U.S. FEDERAL INCOME AND ESTATE TAX CONSEQUENCES TO NON-U.S. HOLDERS OF OUR COMMON STOCK

The following is a summary of the material U.S. federal income and estate tax consequences to a non-U.S. holder (as defined below) of the purchase, ownership and disposition of our common stock sold pursuant to this offering as of the date hereof. Except where noted, this summary deals only with common stock that is held as a capital asset.

A “non-U.S. holder” means a person (other than a partnership) that is not for U.S. federal income tax purposes any of the following:

 

•

an individual citizen or resident of the United States;

 

•

a corporation (or any other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia;

 

•

an estate the income of which is subject to U.S. federal income taxation regardless of its source; or

 

•

a trust if it (1) is subject to the primary supervision of a court within the United States and one or more United States persons have the authority to control all substantial decisions of the trust or (2) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a United States person.

This summary is based upon provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and U.S. Treasury regulations, administrative rulings and judicial decisions as of the date hereof, all of which are subject to change and to differing interpretations, possibly with retroactive effect. Any such change could affect the continuing validity of this discussion. This summary does not address all aspects of U.S. federal income and estate taxes that may be relevant to non-U.S. holders in light of their particular circumstances. In addition, it does not represent a detailed description of the U.S. federal income tax consequences applicable to you if you are subject to special treatment under the U.S. federal income tax laws (including if you are a U.S. expatriate, “controlled foreign corporation,” “passive foreign investment company,” a person who holds or receives our common stock pursuant to the exercise of an employee stock option or otherwise as compensation or a partnership or other pass-through entity for U.S. federal income tax purposes).

If a partnership holds our common stock, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. If you are a partner of a partnership holding our common stock, you should consult your tax advisors.

This summary is limited to U.S. federal income and estate tax aspects and does not address the tax consequences under non-U.S., state or local tax laws or any other non-income tax laws (such as gift tax laws). It also does not consider the impact of the alternative minimum tax or the Medicare contribution tax on net investment income.

THIS DISCUSSION IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT TAX ADVICE. ACCORDINGLY, IF YOU ARE CONSIDERING THE PURCHASE OF OUR COMMON STOCK, YOU SHOULD CONSULT YOUR OWN TAX ADVISORS CONCERNING THE PARTICULAR U.S. FEDERAL INCOME AND ESTATE TAX CONSEQUENCES TO YOU OF THE PURCHASE, OWNERSHIP OR DISPOSITION OF OUR COMMON STOCK, AS WELL AS ANY OTHER APPLICABLE FEDERAL, STATE, LOCAL, NON-U.S. AND NON-INCOME TAX CONSEQUENCES.

Dividends

As noted above in the section of this prospectus entitled “Dividend Policy,” we have no current plans to make distributions on our common stock. If this policy were to change, any distributions on our common stock

 

46

---

Table of Contents

will generally constitute dividends for U.S. federal income tax purposes to the extent paid out of our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. Distributions in excess of our current or accumulated earnings and profits will generally constitute a return of capital and will first be applied against and reduce a holder’s adjusted tax basis in the common stock, but not below zero. Distributions not treated as dividends and in excess of a holder’s adjusted basis will generally be treated as capital gain subject to the rules discussed under “—Gain on Disposition of Common Stock.”

Dividends paid to a non-U.S. holder of our common stock will generally be subject to withholding of U.S. federal income tax at a 30% rate or such lower rate as may be specified by an applicable income tax treaty. However, dividends that are effectively connected with the conduct of a trade or business by the non-U.S. holder within the United States (and, if required by an applicable income tax treaty, are attributable to a U.S. permanent establishment of the non-U.S. holder) are not subject to withholding, provided certain certification and disclosure requirements are satisfied. Instead, such dividends are generally subject to U.S. federal income tax on a net income basis in the same manner as if the non-U.S. holder were a United States person as defined under the Code. Any such effectively connected dividends received by a foreign corporation may be subject to an additional “branch profits tax” at a 30% rate or such lower rate as may be specified by an applicable income tax treaty.

A non-U.S. holder of our common stock who wishes to claim the benefit of an applicable income tax treaty and avoid backup withholding, as discussed below, for dividends will be required (a) to complete the applicable Internal Revenue Service (“IRS”) Form W-8BEN or form W-8BEN-E (as applicable) and certify under penalty of perjury that such holder is not a United States person as defined under the Code and is eligible for treaty benefits or (b) if our common stock is held through certain foreign intermediaries, to satisfy the relevant certification requirements of applicable U.S. Treasury regulations. Special certification and other requirements apply to certain non-U.S. holders that are pass-through entities rather than corporations or individuals.

A non-U.S. holder of our common stock eligible for a reduced rate of U.S. withholding tax pursuant to an income tax treaty may obtain a refund of any excess amounts withheld by timely filing an appropriate claim for refund with the IRS.

Gain on Disposition of Common Stock

Any gain realized on the sale, exchange, or other taxable disposition of our common stock generally will not be subject to U.S. federal income tax unless:

 

•

the gain is effectively connected with a trade or business of the non-U.S. holder in the United States (and, if required by an applicable income tax treaty, is attributable to a U.S. permanent establishment of 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 that 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 within the shorter of the five-year period preceding the disposition or the non-U.S. holder’s holding period for our common stock.

A non-U.S. holder described in the first bullet point immediately above will generally be subject to tax on the net gain derived from the sale or other disposition under regular graduated U.S. federal income tax rates applicable to such holder as if it were a United States person as defined under the Code. In addition, if a non-U.S. holder described in the first bullet point immediately above is a corporation for U.S. federal income tax purposes, it may be subject to the branch profits tax equal to 30% of its effectively connected earnings and profits (subject to adjustments) or at such lower rate as may be specified by an applicable income tax treaty.

An individual non-U.S. holder described in the second bullet point immediately above will generally be subject to a flat 30% (or such lower rate as may be specified by an applicable income tax treaty) tax on the gain

 

47

---

Table of Contents

derived from the sale or other disposition, which may be offset by U.S. source capital losses, even though the individual is not considered a resident of the United States, provided such non-U.S. holder has timely filed U.S. federal income tax returns with respect to such losses.

We believe we are not and do not anticipate becoming a “United States real property holding corporation” for U.S. federal income tax purposes. In the event we do become a “United States real property holding corporation,” as long as our common stock is regularly traded on an established securities market, our common stock will be treated as “United States real property interests,” subjecting gain to U.S. federal income tax, only with respect to a non-U.S. holder that actually or constructively holds more than 5% of our common stock at some time during the applicable period.

Federal Estate Tax

Common stock held by an individual non-U.S. holder at the time of death will be included in such holder’s gross estate for U.S. federal estate tax purposes, unless an applicable estate tax treaty provides otherwise.

Information Reporting and Backup Withholding

Information reporting generally will apply to the amount of dividends paid to each non-U.S. holder and any tax withheld with respect to such dividends, regardless of whether withholding was required. Copies of the information returns reporting such dividends and withholding may also be made available to the tax authorities in the country in which the non-U.S. holder resides under the provisions of an applicable income tax treaty.

A non-U.S. holder will be subject to backup withholding for dividends paid to such holder unless such holder certifies under penalty of perjury that it is a non-U.S. holder (and the payor does not have actual knowledge or reason to know that such holder is a United States person as defined under the Code), or such holder otherwise establishes an exemption.

Information reporting and, depending on the circumstances, backup withholding will apply to the proceeds of a sale or other disposition of our common stock within the United States or conducted through certain U.S.-related financial intermediaries, unless the beneficial owner certifies under penalty of perjury that it is a non-U.S. holder (and the payor does not have actual knowledge or reason to know that the beneficial owner is a United States person as defined under the Code), or such owner otherwise establishes an exemption.

Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a non-U.S. holder’s U.S. federal income tax liability provided the required information is timely furnished to the IRS.

Additional Withholding Requirements

Under Sections 1471 through 1474 of the Code (such Sections commonly referred to as “FATCA”), a 30% U.S. federal withholding tax may apply to any dividends paid on our common stock, and, for a disposition of our common stock occurring after December 31, 2018, the gross proceeds from such disposition, in each case paid to (i) a “foreign financial institution” (as specifically defined in the Code) that does not provide sufficient documentation, typically on IRS Form W-8BEN-E, evidencing either (x) an exemption from FATCA or (y) its compliance (or deemed compliance) with FATCA (which may alternatively be in the form of compliance with an intergovernmental agreement with the United States) in a manner that avoids withholding, or (ii) a “non-financial foreign entity” (as specifically defined in the Code) that does not provide sufficient documentation, typically on IRS Form W-8BEN-E, evidencing either (x) an exemption from FATCA or (y) adequate information regarding certain substantial U.S. beneficial owners of such entity (if any). If a dividend payment is both subject to withholding under FATCA and subject to the withholding tax discussed above under “—Dividends,” the withholding under FATCA may be credited against, and therefore reduce, such other withholding tax. You should consult your own tax advisor regarding these requirements and whether they may be relevant to your ownership and disposition of our common stock.

 

48

---

Table of Contents

UNDERWRITING (CONFLICTS OF INTEREST)

Underwriting

We, the selling stockholders, and the underwriters named below have entered into an underwriting agreement with respect to the shares being offered. Subject to certain conditions, each underwriter has severally agreed to purchase the number of shares indicated in the following table. Goldman Sachs & Co. LLC, Morgan Stanley & Co. LLC, and J.P. Morgan Securities LLC are the representatives of the underwriters.

 

Underwriters		Number of Shares
Goldman Sachs & Co. LLC
Morgan Stanley & Co. LLC
J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner & Smith                       Incorporated
Citigroup Global Markets Inc.
Credit Suisse Securities (USA) LLC
Deutsche Bank Securities Inc.
Wells Fargo Securities, LLC
KKR Capital Markets LLC
BMO Capital Markets Corp.
BTIG, LLC
Guggenheim Securities, LLC
ING Financial Markets LLC
Rabo Securities USA, Inc.
Natixis Securities Americas LLC
Total			35,000,000

The underwriters are committed to take and pay for all of the shares being offered, if any are taken, other than the shares covered by the option described below unless and until this option is exercised.

The underwriters have an option to buy up to an additional 5,250,000 shares from the selling stockholders that are affiliated with CD&R and KKR to cover sales by the underwriters of a greater number of shares than the total number set forth in the table above. They may exercise that option for 30 days. If any shares are purchased pursuant to this option, the underwriters will severally purchase shares in approximately the same proportion as set forth in the table above.

The following tables show the per share and total underwriting discounts and commissions to be paid to the underwriters by the selling stockholders. Such amounts are shown assuming both no exercise and full exercise of the underwriters’ option to purchase additional shares.

Paid by the selling stockholders

 

		No Exercise				Full Exercise
Per Share		$				$
Total		$				$

Shares sold by the underwriters to the public will be offered at the public offering price set forth on the cover of this prospectus. Any shares sold by the underwriters to securities dealers may be sold at a discount of up to $        per share from the public offering price. After the initial offering of the shares, the representatives may change the offering price and the other selling terms. The offering of the shares by the underwriters is subject to receipt and acceptance of and subject to the underwriters’ right to reject any order in whole or in part.

 

49

---

Table of Contents

We and the selling stockholders will agree with the underwriters, subject to certain exceptions, not to dispose of or hedge any of our or their common stock or securities convertible into or exchangeable for shares of common stock during the period from the date of this prospectus continuing through the date that is 60 days after the date of the prospectus, except with the prior written consent of any two of the representatives. Additionally, our executive officers and directors not selling shares in this offering will likewise agree with the underwriters, subject to certain exceptions, not to dispose of or hedge any of their common stock or securities convertible into or exchangeable for shares of common stock during the period from the date of this prospectus continuing through the date that is 45 days (instead of 60 days) after the date of the prospectus, except with the prior written consent of any two of the representatives. These agreements will not apply to any existing employee benefit plans.

Our common stock is listed on the NYSE under the symbol “USFD.”

In connection with the offering, the underwriters may purchase and sell shares of common stock in the open market. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of shares than they are required to purchase in the offering, and a short position represents the amount of such sales that have not been covered by subsequent purchases. A “covered short position” is a short position that is not greater than the amount of additional shares for which the underwriters’ option described above may be exercised. The underwriters may cover any covered short position by either exercising their option to purchase additional shares or purchasing shares in the open market. In determining the source of shares to cover the covered short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which they may purchase additional shares pursuant to the option described above. “Naked” short sales are any short sales that create a short position greater than the amount of additional shares for which the option described above may be exercised. The underwriters must cover any such naked short position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the common stock in the open market after pricing that could adversely affect investors who purchase in the offering. Stabilizing transactions consist of various bids for or purchases of common stock made by the underwriters in the open market prior to the completion of the offering.

The underwriters may also impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received by it because the representatives have repurchased shares sold by or for the account of such underwriter in stabilizing or short covering transactions.

Purchases to cover a short position and stabilizing transactions, as well as other purchases by the underwriters for their own accounts, may have the effect of preventing or retarding a decline in the market price of our common stock, and together with the imposition of the penalty bid, may stabilize, maintain or otherwise affect the market price of the common stock. As a result, the price of the common stock may be higher than the price that otherwise might exist in the open market. The underwriters are not required to engage in these activities and may end any of these activities at any time. These transactions may be effected on the NYSE, in the over-the-counter market or otherwise.

We estimate that we will pay total expenses in connection with the offering, excluding underwriting discounts and commissions, for which the selling stockholders are responsible, of approximately $1.4 million.

We have agreed to indemnify the several underwriters against certain liabilities, including liabilities under the Securities Act. We have also agreed to reimburse the underwriters for certain expenses in connection with this offering in the amount of up to $20,000.

Conflicts of Interest and Relationships

The underwriters and their respective affiliates are full service financial institutions engaged in various activities, which may include sales and trading, commercial and investment banking, advisory, investment

 

50

---

Table of Contents

management, investment research, principal investment, hedging, market making, brokerage and other financial and non-financial activities and services. Certain of the underwriters and their respective affiliates have provided, and may in the future provide, a variety of these services to us and to persons and entities with relationships with us, for which they received or will receive customary fees and expenses.

In the ordinary course of their various business activities, the underwriters and their respective affiliates, officers, directors and employees may purchase, sell or hold a broad array of investments and actively trade securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments for their own account and for the accounts of their customers, and such investment and trading activities may involve or relate to our assets, securities and/or instruments (directly, as collateral securing other obligations or otherwise) and/or persons and entities with relationships with us. The underwriters and their respective affiliates may also communicate independent investment recommendations, market color or trading ideas and/or publish or express independent research views in respect of such assets, securities or instruments and may at any time acquire, hold or dispose, or recommend to clients that they should acquire, hold or dispose, long and/or short positions in such assets, securities and instruments.

Affiliates of KKR beneficially own in excess of 10% of our issued and outstanding common stock. In addition, certain affiliates of KKR are selling stockholders in this offering. Because KKR Capital Markets LLC, an affiliate of KKR, is an underwriter, this offering is being made in compliance with the requirements of FINRA Rule 5121. In accordance with that rule, no “qualified independent underwriter” is required, because a bona fide public market exists in the shares, as that term is defined in Rule 5121. KKR Capital Markets LLC will not confirm sales of the securities to any account over which it exercises discretionary authority without the specific written approval of the account holder.

 

51

---

Table of Contents

NOTICE TO INVESTORS

Sales of shares made outside of the United States may be made by affiliates of the underwriters.

Other than in the United States, no action has been taken by us, the selling stockholders, or the underwriters that would permit a public offering of the shares offered by this prospectus in any jurisdiction where action for that purpose is required. The shares offered by this prospectus may not be offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection with the offer and sale of any such shares be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this prospectus comes are advised to inform themselves about and to observe any restrictions relating to the offering and the distribution of this prospectus. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any shares offered by this prospectus in any jurisdiction in which such an offer or a solicitation is unlawful.

A prospectus in electronic format may be made available on the web sites maintained by one or more underwriters, or selling group members, if any, participating in the offering. The underwriters may agree to allocate a number of shares to underwriters and selling group members for sale to their online brokerage account holders. Internet distributions will be allocated by the representatives to underwriters and selling group members that may make Internet distributions on the same basis as other allocations.

European Economic Area

This document and any related free writing prospectus is not a prospectus for the purposes of the Prospectus Directive (as defined below). In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State, no offer of shares which are the subject of the offering contemplated by this document and any related free writing prospectus to the public may be made in that Relevant Member State other than:

 

(a)

to any legal entity which is a qualified investor as defined in the Prospectus Directive;

 

(b)

to fewer than 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the representatives for any such offer; or

 

(c)

in any other circumstances falling within Article 3(2) of the Prospectus Directive,

provided that no such offer of shares shall result in a requirement for the publication of a prospectus pursuant to Article 3 of the Prospectus Directive or any measure implementing the Prospectus Directive in a Relevant Member State and each person who initially acquires any shares or to whom an offer is made will be deemed to have represented, warranted and agreed to and with the underwriters that it is a qualified investor within the meaning of the law in that Relevant Member State implementing Article 2(1)(e) of the Prospectus Directive.

For the purposes of this provision, the expression an “offer of shares to the public” in relation to any shares in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the shares to be offered so as to enable an investor to decide to purchase or subscribe the shares, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State and the expression “Prospectus Directive” means Directive 2003/71/EC (as amended, including by Directive 2010/73/EU) and includes any relevant implementing measure in each Relevant Member State.

In the case of any shares being offered to a financial intermediary as that term is used in Article 3(2) of the Prospectus Directive, such financial intermediary will also be deemed to have represented, acknowledged and agreed that the shares acquired by it in the offer have not been acquired on a non-discretionary basis on behalf of, nor have they been acquired with a view to their offer or resale to, persons in circumstances which may give rise

 

52

---

Table of Contents

to an offer of shares to the public other than their offer or resale in a Relevant Member State to qualified investors as so defined or in circumstances in which the prior consent of the underwriters has been obtained to each such proposed offer or resale.

United Kingdom

The communication of this document, any related free writing prospectus and any other document or materials relating to the sale of the shares offered hereby is not being made, and such documents and/or materials have not been approved, by an authorized person for the purposes of section 21 of the United Kingdom’s Financial Services and Markets Act 2000, as amended (the “FSMA”). Accordingly, such documents and/or materials are not being distributed to, and must not be passed on to, the general public in the United Kingdom. The communication of such documents and/or materials as a financial promotion is only being made to those persons in the United Kingdom who have professional experience in matters relating to investments and who fall within the definition of “investment professionals” (as defined in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended (the “Financial Promotion Order”)), or within Article 49(2)(a) to (d) of the Financial Promotion Order, or to any other persons to whom it may otherwise lawfully be made under the Financial Promotion Order (all such persons together being referred to as “relevant persons”). In the United Kingdom, the shares offered hereby are only available to, and any investment or investment activity to which this document and any related free writing prospectus relates will be engaged in only with, relevant persons. Any person in the United Kingdom that is not a relevant person should not act or rely on this document or any related free writing prospectus or any of their contents.

Any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) in connection with the issue or sale of the shares may only be communicated or caused to be communicated in circumstances in which Section 21(1) of the FSMA does not apply to the Company.

All applicable provisions of the FSMA must be complied with in respect to anything done by any person in relation to the shares in, from or otherwise involving the United Kingdom.

Hong Kong

The shares may not be offered or sold in Hong Kong by means of any document other than (i) to “professional investors” as defined in the Securities and Futures Ordinance (Cap. 571 of the Laws of Hong Kong) (the “SFO”) and any rules made thereunder or (ii) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32 of the Laws of Hong Kong) and which do not constitute an offer to the public within the meaning of that Ordinance; and no advertisement, invitation or document relating to the shares may be issued or may be in the possession of any person for the purposes of issue (in each case whether in Hong Kong or elsewhere) which is directed at, or the contents of which are likely to be accessed or read by, the public of Hong Kong or otherwise is or contains an invitation to the public (except if permitted to do so under the laws of Hong Kong) other than with respect to shares which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” as defined in the SFO and any rules made thereunder.

Singapore

This prospectus has not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, this prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of shares may not be circulated or distributed, nor may the shares be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor (as defined in Section 4A of the Securities and Futures Act, Chapter 289 of Singapore (the “SFA”)) under Section 274 of the SFA, (ii) to a relevant person (as defined in Section 275(2) of the SFA) pursuant to Section 275(1), or any person pursuant to Section 275(1A), and in accordance with the conditions specified in Section 275 of the SFA, or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.

 

53

---

Table of Contents

Where the shares are subscribed or purchased under Section 275 of the SFA by a relevant person which is:

 

(a)

a corporation (which is not an accredited investor (as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or

 

(b)

a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an accredited investor,

securities (as defined in Section 239(1) of the SFA) of that corporation or the beneficiaries’ rights and interest (howsoever described) in that trust shall not be transferred within six months after that corporation or that trust has acquired the shares pursuant to an offer made under Section 275 of the SFA except:

 

(a)

to an institutional investor or to a relevant person defined in Section 275(2) of the SFA, or to any person arising from an offer referred to in Section 275(1A) of the SFA (in the case of a corporation) or Section 276(4)(i)(B) of the SFA (in the case of a trust);

 

(b)

where no consideration is or will be given for the transfer;

 

(c)

where the transfer is by operation of law;

 

(d)

as specified in Section 276(7) of the SFA; or

 

(e)

as specified in Regulation 32 of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations 2005 of Singapore.

Japan

The shares have not been and will not be registered pursuant to Article 4, Paragraph 1 of the Financial Instruments and Exchange Act. Accordingly, none of the shares nor any interest therein may be offered or sold, directly or indirectly, in Japan or to, or for the benefit of, any “resident” of Japan (which term as used herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan), or to others for re-offering or resale, directly or indirectly, in Japan or to or for the benefit of a resident of Japan, except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Financial Instruments and Exchange Act and any other applicable laws, regulations and ministerial guidelines of Japan in effect at the relevant time.

Canada

The shares may be sold only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the shares must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws.

Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus (including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars of these rights or consult with a legal advisor.

Pursuant to section 3A.3 of National Instrument 33-105 Underwriting Conflicts (NI 33-105), the underwriters are not required to comply with the disclosure requirements of NI 33-105 regarding underwriter conflicts of interest in connection with this offering.

 

54

---

Table of Contents

LEGAL MATTERS

The validity of the shares of common stock will be passed upon for us by Sidley Austin LLP, Chicago, Illinois. Certain legal matters in connection with the offering will be passed upon for the underwriters by Simpson Thacher & Bartlett LLP, New York, New York. Certain partners of Simpson Thacher & Bartlett LLP, members of their respective families, related persons, and others have an indirect interest, through limited partnerships that are investors in funds affiliated with KKR, in less than 1% of our common stock. Certain legal matters in connection with the offering will be passed upon for the selling stockholders by Debevoise & Plimpton LLP, New York, New York.

EXPERTS

The consolidated financial statements of the Company, incorporated by reference in this prospectus from the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016, have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such consolidated financial statements have been so incorporated by reference in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.

INCORPORATION BY REFERENCE

The SEC allows us to incorporate by reference into this prospectus the information we file with the SEC. This means that we are disclosing important information to you by referring to other documents. The information incorporated by reference is considered to be part of this prospectus, except for any information superseded by information contained directly in this prospectus. We incorporate by reference the documents listed below (other than any portions thereof, which under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and applicable SEC rules, are not deemed “filed” under the Exchange Act):

 

•

our Annual Report on Form 10-K for the fiscal year ended December 31, 2016 (including those portions of our Definitive Proxy Statement on Schedule 14A filed with the SEC on March 24, 2017 that are incorporated by reference into Part III of such Annual Report on Form 10-K);

 

•

our Quarterly Report on Form 10-Q for the fiscal quarter ended April 1, 2017;

 

•

our Current Reports on Form 8-K filed on January 12, 2017 (as amended by a Form 8-K/A filed on February 1, 2017) (other than with respect to Item 7.01), January 18, 2017 (other than with respect to Item 7.01), January 31, 2017, February 13, 2017 and February 17, 2017; and

 

•

the description of our common stock contained in the Registration Statement on Form 8-A filed on May 23, 2016, including any amendments or reports filed for the purposes of updating such description.

If we have incorporated by reference any statement or information in this prospectus and we subsequently modify that statement or information with information contained in this prospectus, the statement or information previously incorporated in this prospectus is also modified or superseded in the same manner.

We will provide without charge to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon written or oral request of such person, a copy of any or all of the documents referred to above which have been incorporated by reference in this prospectus. You should direct requests for those documents to US Foods Holding Corp., 9399 W. Higgins Road, Suite 500, Rosemont, IL 60018 (telephone: (847) 720-8000).

Exhibits to any documents incorporated by reference in this prospectus will not be sent, however, unless those exhibits have been specifically referenced in this prospectus.

 

55

---

Table of Contents

WHERE YOU CAN FIND MORE INFORMATION

We have filed with the SEC a Registration Statement on Form S-1 under the Securities Act with respect to the common stock offered by this prospectus. This prospectus is a part of the registration statement and does not contain all of the information set forth in the registration statement and its exhibits and schedules, portions of which have been omitted as permitted by the rules and regulations of the SEC. For further information about us and our common stock, you should refer to the registration statement and its exhibits and schedules.

We file annual, quarterly and special reports and other information with the SEC. Our filings with the SEC, including the filings that are incorporated by reference to this prospectus, are available to the public on the SEC’s website at www.sec.gov. Those filings are also available to the public on, or accessible through, our website for free via the “Investors” section at https://ir.usfoods.com/investors by selecting “SEC Filings” under “Financial Information.” The information we file with the SEC or contained on or accessible through our corporate website or any other website that we may maintain is not incorporated by reference herein and is not part of this prospectus.

 

56

---

Table of Contents

---

Table of Contents

 

 

35,000,000 Shares

US FOODS HOLDING CORP.

 

Common Stock

 

 

PROSPECTUS

 

 

 

Goldman Sachs & Co. LLC		Morgan Stanley		J.P. Morgan
BofA Merrill Lynch		Citigroup		Credit Suisse
Deutsche Bank Securities		Wells Fargo Securities		KKR

BMO Capital Markets		BTIG		Guggenheim Securities		ING		Rabo Securities		Natixis

 

 

                , 2017

 

 

 

---

Table of Contents

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

ITEM 13.    OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.

The following table sets forth the expenses payable by the Registrant expected to be incurred in connection with the issuance and distribution of common stock being registered hereby (other than underwriting discounts and commissions). All of such expenses are estimates, except for the Securities and Exchange Commission (the “SEC”) registration fee and the Financial Industry Regulatory Authority Inc. (“FINRA”) filing fee.

 

SEC registration fee		$	132,252
FINRA filing fee		$	171,663
Printing fees and expenses		$	200,000
Legal fees and expenses		$	350,000
Blue sky fees and expenses		$	5,000
Accounting fees and expenses		$	500,000
Miscellaneous expenses		$	15,000
Total		$	1,373,915

ITEM 14.    INDEMNIFICATION OF DIRECTORS AND OFFICERS.

Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”) allows a corporation to provide in its certificate of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Our amended and restated certificate of incorporation provides for this limitation of liability.

Section 145 of the DGCL (“Section 145”), provides, among other things, that a Delaware corporation may indemnify any person who was, is or is threatened to be made, party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful. A Delaware corporation may indemnify any persons who were or are a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests, provided further that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses (including attorneys’ fees) which such officer or director has actually and reasonably incurred. Section 145 further

 

II-1

---

Table of Contents

authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify such person under Section 145.

Our amended and restated bylaws provide that we must indemnify and advance expenses to our directors and officers to the fullest extent authorized by the DGCL.

The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, any provision of our amended and restated certificate of incorporation, our amended and restated bylaws, agreement, vote of stockholders or disinterested directors or otherwise. Notwithstanding the foregoing, we shall not be obligated to indemnify a director or officer in respect of a proceeding (or part thereof) instituted by such director or officer, unless such proceeding (or part thereof) has been authorized by the Board of Directors pursuant to the applicable procedure outlined in the amended and restated bylaws.

Section 174 of the DGCL provides, among other things, that a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held jointly and severally liable for such actions at any time within six years after paying such unlawful dividend or after such unlawful stock purchase or redemption. A director who was either absent when the unlawful actions were approved or dissented at the time may avoid liability by causing his or her dissent to such actions to be entered in the books containing the minutes of the meetings of the Board of Directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.

We maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification payments that we may make to such directors and officers.

The underwriting agreement provides for indemnification by the underwriters of us and our officers and directors, and by us of the underwriters, for certain liabilities arising under the Securities Act or otherwise in connection with this offering.

ITEM 15.    RECENT SALES OF UNREGISTERED SECURITIES.

The following sets forth information regarding all unregistered securities sold by the Registrant since December 28, 2013. All of these shares were issued without registration in reliance on the exemptions afforded by Section 4(a)(2) of the Securities Act and/or Rule 701 promulgated thereunder.

Shares Granted

During the fiscal year ended December 31, 2016, we granted an aggregate of 108,568 shares of our common stock to employees pursuant to our 2007 Stock Incentive Plan.

Shares Sold

During the fiscal year ended December 31, 2016, we sold to certain employees an aggregate of 195,474 shares of our common stock under our 2007 Stock Incentive Plan.

During the fiscal year ended January 2, 2016, we sold to certain employees an aggregate of 30,864 shares of our common stock under our 2007 Stock Incentive Plan.

 

 

II-2

---

Table of Contents

Options Awarded ^*

During the fiscal year ended January 2, 2016, we awarded 111,111 stock options to certain employees pursuant to our 2007 Stock Incentive Plan at an exercise price of $16.20 and 1,661,914 stock options to certain employees pursuant to our 2007 Stock Incentive Plan at an exercise price of $18.23.

Restricted Stock Units (“RSUs”) Awarded

During the fiscal year ended December 31, 2016, we awarded 270,352 RSUs to be settled in shares of our common stock under our 2007 Stock Incentive Plan.

During the fiscal year ended January 2, 2016, we awarded certain employees an aggregate of 723,816 RSUs to be settled in shares of our common stock under our 2007 Stock Incentive Plan.

During the fiscal year ended December 27, 2014, we awarded certain employees an aggregate of 61,728 RSUs to be settled in shares of our common stock under our 2007 Stock Incentive Plan.

ITEM 16.    EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.

 

(a)	Exhibits. See the Exhibit Index immediately following the signature page hereto, which is incorporated by reference as if fully set forth herein.

 

(b)	Financial Statement Schedules. All schedules are omitted because the required information is either not present, not present in material amounts or presented within the audited and unaudited consolidated financial statements incorporated herein by reference.

ITEM 17.    UNDERTAKINGS

(1) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 of 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.

(2) The undersigned registrant hereby undertakes that:

 

(A)

For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

 

(B)

For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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.

  

 

*	On January 8, 2016, the Board of Directors reduced the exercise prices of each of the stock options by $3.65 to adjust for the January special cash distribution to shareholders.

 

II-3

---

Table of Contents

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rosemont, State of Illinois, on the 10^th day of May, 2017.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 1 to the Registration Statement has been signed by the following persons in the capacities indicated on the 10^th day of May, 2017.

 

Signature		Title
* Pietro Satriano		President, Chief Executive Officer and Director (Principal Executive Officer)
* Dirk J. Locascio		Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
* John C. Compton		Chairman of the Board of Directors
* Court D. Carruthers		Director
* Robert Dutkowsky		Director
* Kenneth A. Giuriceo		Director
* John A. Lederer		Director
* Vishal Patel		Director
* Carl Andrew Pforzheimer		Director
* Richard J. Schnall		Director

 

II-4

---

Table of Contents

Signature		Title
* Nathaniel H. Taylor		Director
* David M. Tehle		Director

 

*BY:		/s/ Kristin M. Coleman
		Kristin M. Coleman Attorney-in-Fact

 

II-5

---

Table of Contents

EXHIBIT INDEX

 

Exhibit No.		Description
1.1*		Form of Underwriting Agreement.
3.1		Amended and Restated Certificate of Incorporation of the Company, incorporated herein by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-37786) filed with the SEC on June 1, 2016.
3.2		Amended and Restated Bylaws of the Company, incorporated herein by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K (File No. 001-37786) filed with the SEC on June 1, 2016.
4.1		Indenture, dated as of June 27, 2016, by and among US Foods, Inc., the Subsidiary Guarantors from time to time parties thereto and Wilmington Trust, National Association, incorporated herein by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K (File No. 001-37786) filed with the SEC on June 28, 2016.
4.2		First Supplemental Indenture, dated as of June 27, 2016, by and among US Foods, Inc., the Subsidiary Guarantors under the Indenture and Wilmington Trust, National Association, incorporated herein by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K (File No. 001-37786) filed with the SEC on June 28, 2016.
4.3		Form of 5.875% Senior Note due 2024, incorporated herein by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K (File No. 001-37786) filed with the SEC on June 28, 2016 (included in Exhibit 4.1 thereto).
5.1*		Opinion of Sidley Austin LLP.
10.1		Amended and Restated Stockholders Agreement, incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-37786) filed with the SEC on June 1, 2016.
10.2§		Form of Management Stockholder’s Agreement, by and between USF Holding Corp. (now known as the Company) and the management stockholder party thereto, incorporated herein by reference to Exhibit 10.2 to Amendment No. 5 to the Company’s Registration Statement on Form S-1 (File No. 333-209442) filed with the SEC on May 20, 2016.
10.3§		Form of Amendment No. 1 to the Management Stockholder’s Agreement, by and between US Foods Holding Corp. and the management stockholder party thereto, incorporated herein by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K (File No. 001-37786) filed with the SEC on June 1, 2016.
10.4		Form of Director Indemnification Agreement, by and among the Company, US Foods, Inc. and the indemnitee party thereto, incorporated herein by reference to Exhibit 10.4 to Amendment No. 5 to the Company’s Registration Statement on Form S-1 (File No. 333-209442) filed with the SEC on May 20, 2016.
10.5		Amended and Restated Registration Rights Agreement, dated as of June 1, 2016, by and among the Company and the stockholders party thereto, incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-37786) filed with the SEC on June 1, 2016.
10.6§		Letter Agreement, dated as of November 23, 2009, by Kohlberg Kravis Roberts & Co. L.P. and agreed to and accepted by USF Holding Corp. (now known as the Company) and U.S. Foodservice, Inc. (now known as US Foods, Inc.), incorporated herein by reference to Exhibit 10.2 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on December 28, 2012.

 

II-6

---

Table of Contents

Exhibit No.		Description
10.7§		Letter Agreement, dated as of November 23, 2009, by Clayton, Dubilier & Rice, LLC and agreed to and accepted by USF Holding Corp. (now known as the Company) and U.S. Foodservice, Inc. (now known as US Foods, Inc.), incorporated herein by reference to Exhibit 10.3 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on December 28, 2012.
10.8		Amended and Restated Indemnification Agreement, dated as of November 23, 2009, by and among USF Holding Corp. (now known as the Company), U.S. Foodservice, Inc. (now known as US Foods, Inc.), KKR 2006 Fund, L.P., KKR PEI Investments, L.P., KKR Partners III L.P., OPERF Co-Investment LLC and Kohlberg Kravis Roberts & Co. L.P., incorporated herein by reference to Exhibit 10.4 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on December 28, 2012.
10.9		Amended and Restated Indemnification Agreement, dated as of November 23, 2009, by and among USF Holding Corp. (now known as the Company), U.S. Foodservice, Inc. (now known as US Foods, Inc.), Clayton, Dubilier & Rice Fund VII, L.P., Clayton, Dubilier & Rice Fund VII (Co-Investment), L.P., CD&R Parallel Fund VII, L.P., CDR USF Co-Investor No. 2, L.P., Clayton, Dubilier & Rice, Inc., Clayton, Dubilier & Rice, LLC and Clayton, Dubilier & Rice Holdings, L.P., incorporated herein by reference to Exhibit 10.5 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on December 28, 2012.
10.10		Indemnification Priority and Information Sharing Agreement, dated as of April 15, 2010, by and among the funds managed by Clayton, Dubilier & Rice, LLC party thereto, Clayton, Dubilier & Rice Holdings, L.P., Clayton, Dubilier & Rice, Inc., CDR Manager and U.S. Foodservice, Inc. (now known as US Foods, Inc.), incorporated herein by reference to Exhibit 10.6 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on December 28, 2012.
10.11		Indemnification Priority and Information Sharing Agreement, dated as of April 15, 2010, by and among the funds managed by Kohlberg Kravis Roberts & Co. L.P. party thereto and U.S. Foodservice, Inc. (now known as US Foods, Inc.), incorporated herein by reference to Exhibit 10.7 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on December 28, 2012.
10.12§		Form of Management Stockholder’s Agreement, by and between USF Holding Corp. (now known as the Company) and the management stockholder party thereto, incorporated herein by reference to Exhibit 10.8 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on December 28, 2012.
10.13		Form of Sale Participation Agreement, by USF Holding Corp. (now known as the Company), U.S. Foodservice, Inc. (now known as US Foods, Inc.), KKR 2006 Fund, L.P., KKR PEI Investments, L.P., KKR Partners III, L.P., OPERF Co-Investment LLC, Clayton, Dubilier & Rice Fund VII, L.P., Clayton, Dubilier & Rice Fund VII (Co-Investment), L.P., CD&R Parallel Fund VII, L.P., CDR USF Co-Investor L.P., CDR USF Co-Investor No. 2, L.P. and accepted and agreed to by the person named therein, incorporated herein by reference to Exhibit 10.9 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on December 28, 2012.
10.14§		Form of Subscription Agreement, by and between USF Holding Corp. (now known as the Company) and the management stockholder party thereto, incorporated herein by reference to Exhibit 10.10 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on December 28, 2012.
10.15§		U.S. Foodservice, Inc. (now known as US Foods, Inc.) Annual Incentive Plan, incorporated herein by reference to Exhibit 10.11 to Amendment No. 2 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on March 15, 2013.

 

II-7

---

Table of Contents

Exhibit No.		Description
10.16§		2007 Stock Incentive Plan for Key Employees of USF Holding Corp. (now known as the Company) and its Affiliates, incorporated herein by reference to Exhibit 10.12 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on December 28, 2012.
10.17§		Form of Stock Option Agreement, by and between USF Holding Corp. (now known as the Company) and the individual party thereto, incorporated herein by reference to Exhibit 10.13 to Amendment No. 2 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on March 15, 2013.
10.18§		Form of Restricted Stock Unit Agreement, by and between USF Holding Corp. (now known as the Company) and the individual party thereto, incorporated herein by reference to Exhibit 10.14 to Amendment No. 2 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on March 15, 2013.
10.19§		Form of Restricted Stock Award Agreement, by and between USF Holding Corp. (now known as the Company) and the employee of the Company or of a subsidiary of the Company party thereto, incorporated herein by reference to Exhibit 10.15 to Amendment No. 2 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on March 15, 2013.
10.20§		US Foods, Inc. Annual Incentive Plan restated effective as of January 1, 2013, incorporated herein by reference to Exhibit 10.16 to Amendment No. 2 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on March 15, 2013.
10.21§		Severance Agreement, effective as of September 12, 2010, by and between U.S. Foodservice, Inc. (now known as US Foods, Inc.) and John A. Lederer, incorporated herein by reference to Exhibit 10.17 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on December 28, 2012.
10.22§		Severance Agreement, effective as of August 10, 2009, by and between U.S. Foodservice, Inc. (now known as US Foods, Inc.) and Stuart Schuette, incorporated herein by reference to Exhibit 10.19 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on December 28, 2012.
10.23.1§		Severance Agreement, effective as of April 1, 2011, by and between U.S. Foodservice, Inc. (now known as US Foods, Inc.) and Pietro Satriano, incorporated herein by reference to Exhibit 10.20 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on December 28, 2012.
10.23.2§		Second Amendment to Severance Agreement, effective as of July 16, 2015 by and between US Foods, Inc. and Pietro Satriano, incorporated herein by reference to Exhibit 10.57 to the Quarterly Report on Form 10-Q (File No. 333-185732) of US Foods, Inc. filed with the SEC on August 11, 2015.
10.24		Amendment No. 5 to the Amended and Restated ABL Credit Agreement, dated as of October 20, 2015, by and among US Foods, Inc. as the Parent Borrower, the Lenders party thereto, CitiBank, N.A. as successor Administrative Agent and an Issuing Lender, Citicorp North America, Inc., as resigning Administrative Agent and Collateral Agent, and each Subsidiary of the Parent Borrower party to the ABL Credit Agreement, incorporated herein by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 333-185732) of US Foods, Inc. filed with the SEC on October 26, 2015.

 

II-8

---

Table of Contents

Exhibit No.		Description
10.25.1		ABL Guarantee and Collateral Agreement, dated as of July 3, 2007, made by Restore Acquisition Corp., to be merged with and into U.S. Foodservice, Inc. (now known as US Foods, Inc.), as the Parent Borrower and the several Subsidiary Borrowers signatory thereto, in favor of Citicorp North America, Inc., as Administrative Agent and as ABL Collateral Agent, incorporated herein by reference to Exhibit 10.27 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on December 28, 2012.
10.25.2		Credit Agreement, dated as of May 11, 2011, by and among U.S. Foodservice, Inc. (now known as US Foods, Inc.), as the Borrower, the several Lenders from time to time party thereto and Citicorp North America, Inc., as Administrative Agent and Collateral Agent, incorporated herein by reference to Exhibit 10.28 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on December 28, 2012.
10.25.3		First Amendment, dated as of June 7, 2013, to the Credit Agreement, by and among US Foods, Inc., as the Borrower, the other Loan Parties thereto, Citicorp North America, Inc., as administrative agent and collateral agent and the Lenders and other financial institutions party thereto, incorporated by reference to Exhibit 10.28.2 to Amendment No. 1 to the Registration Statement on Form S-1 (File No. 333-189142) of US Foods, Inc. filed with the SEC on July 12, 2013.
10.25.4		Second Amendment, dated as of June 27, 2016, to the Credit Agreement, by and among US Foods, Inc., as the Borrower, the other Loan Parties party thereto, Citicorp North America, Inc. as administrative agent and collateral agent and the Lenders and other financial institutions party thereto, incorporated by reference to Exhibit 4.4 of the Company’s Current Report on Form 8-K (File No. 001-37786) filed with the SEC on June 28, 2016.
10.25.5		Third Amendment, dated as of February 17, 2017, to the Credit Agreement by and among US Foods, Inc., as the Borrower, the other Loan Parties party thereto, Citicorp North America, Inc. as administrative agent and collateral agent and the Lenders and other financial institutions party thereto, incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K (File No. 001-37786) filed with the SEC on February 17, 2017.
10.26		Guarantee and Collateral Agreement, dated as of May 11, 2011, made by U.S. Foodservice, Inc. (now known as U.S. Foods, Inc.), as Borrower and certain of its Subsidiaries in favor of Citicorp North America, Inc., as Administrative Agent and as Collateral Agent, incorporated herein by reference to Exhibit 10.29 to the Registration Statement on Form S-4 (File No. 333-185732) of US Foods, Inc. filed with the SEC on December 28, 2012.
10.27§		2007 Stock Incentive Plan for Key Employees of USF Holding Corp. (now known as the Company) and its Affiliates, as amended, incorporated herein by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 333-185732) of US Foods, Inc. filed with the SEC on May 31, 2013.
10.28§		Form of Management Stockholder’s Agreement, by and between USF Holding Corp. (now known as the Company) and the management stockholder party thereto, incorporated herein by reference to Exhibit 10.2 to the Current Report on Form 8-K (File No. 333-185732) of US Foods, Inc. filed with the SEC on May 31, 2013.
10.29§		Form of Sale Participation Agreement, by USF Holding Corp. (known known as the Company), US Foods, Inc., KKR 2006 Fund, L.P., KKR PEI Investments, L.P., KKR Partners III, L.P., OPERF Co-Investment LLC, Clayton, Dubilier & Rice Fund VII, L.P., Clayton, Dubilier & Rice Fund VII (Co-Investment), L.P., CD&R Parallel Fund VII, L.P., CDR USF Co-Investor L.P. and CDR USF Co-Investor No. 2, L.P. and accepted and agreed to by the Person named therein, incorporated herein by reference to Exhibit 10.3 to the Current Report on Form 8-K (File No. 333-185732) of US Foods, Inc. filed with the SEC on May 31, 2013.

 

II-9

---

Table of Contents

Exhibit No.		Description
10.30§		Form of Stock Option Agreement, by and between USF Holding Corp. (now known as the Company) and the individual party thereto, incorporated herein by reference to Exhibit 10.4 to the Current Report on Form 8-K (File No. 333-185732) of US Foods, Inc. filed with the SEC on May 31, 2013.
10.31§		Form of Restricted Stock Unit Agreement, by and between USF Holding Corp. (now known as the Company) and the individual party thereto, incorporated herein by reference to Exhibit 10.5 to the Current Report on Form 8-K (File No. 333-185732) of US Foods, Inc. filed with the SEC on May 31, 2013.
10.32§		Form of Restricted Stock Award Agreement, by and between USF Holding Corp. (now known as the Company) and the individual party thereto, incorporated herein by reference to Exhibit 10.6 to the Current Report on Form 8-K (File No. 333-185732) of US Foods, Inc. filed with the SEC on May 31, 2013.
10.33§		Offer Letter, dated as of August 15, 2013, by US Foods, Inc. and accepted by Fareed A. Khan, incorporated herein by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q (File No. 333-185732) of US Foods, Inc. filed with the SEC on November 7, 2013.
10.34§		Restricted Stock Unit Agreement, effective as of October 1, 2013, by and between USF Holding Corp. (now known as the Company) and John A. Lederer, incorporated herein by reference to Exhibit 10.37 to the Annual Report on Form 10-K (File No. 333-185732) of US Foods, Inc. filed with the SEC on March 20, 2014.
10.35§		Severance Agreement, effective as of September 26, 2013, by and between US Foods, Inc. and Fareed A. Khan, incorporated herein by reference to Exhibit 10.38 to the Annual Report on Form 10-K (File No. 333-185732) of US Foods, Inc. filed with the SEC on March 20, 2014.
10.36§		Severance Agreement, effective as of March 22, 2013, by and between US Foods, Inc. and Mark Scharbo, incorporated herein by reference to Exhibit 10.39 to the Annual Report on Form 10-K (File No. 333-185732) of US Foods, Inc. filed with the SEC on March 20, 2014.
10.37§		Form of Amendment to Severance Agreement, effective as of December 20, 2013, by and between US Foods, Inc. and each of Fareed A. Khan, Pietro Satriano, John A. Lederer, Keith D. Rohland, Stuart S. Schuette and Mark Scharbo, incorporated herein by reference to Exhibit 10.40 to the Annual Report on Form 10-K (File No. 333-185732) of US Foods, Inc. filed with the SEC on March 20, 2014.
10.38§		Retention Award Agreement, dated as of February 24, 2014, by US Foods, Inc. and agreed and acknowledged by Fareed Khan as of March 3, 2014, incorporated herein by reference to Exhibit 10.43 to the Quarterly Report on Form 10-Q (File No. 333-185732) of US Foods, Inc. filed with the SEC on May 12, 2014.
10.39§		Retention Award Agreement, dated as of February 24, 2014, by US Foods, Inc. and agreed and acknowledged by Pietro Satriano as of February 25, 2014, incorporated herein by reference to Exhibit 10.47 to the Quarterly Report on Form 10-Q (File No. 333-185732) of US Foods, Inc. filed with the SEC on May 12, 2014.
10.40§		Retention Award Agreement, dated as of February 24, 2014, by US Foods, Inc. and agreed and acknowledged by Mark W. Scharbo as of March 5, 2014, incorporated herein by reference to Exhibit 10.49 to the Quarterly Report on Form 10-Q (File No. 333-185732) of US Foods, Inc. filed with the SEC on May 12, 2014.
10.41§		Restricted Stock Unit Agreement, effective as of December 10, 2014, by and between USF Holding Corp. (now known as the Company) and John A. Lederer, incorporated herein by reference to Exhibit 10.51 to the Annual Report on Form 10-K (File No. 333-185732) of US Foods, Inc. filed with the SEC on March 20, 2015.

 

II-10

---

Table of Contents

Exhibit No.		Description
10.42§		Form of 2015 Retention Award Agreement, dated as of March 19, 2015, by and between US Foods, Inc. and each of Fareed Khan, Pietro Satriano, Stuart S. Schuette and Keith Rohland, incorporated herein by reference to Exhibit 10.52 to the Quarterly Report on Form 10-Q (File No. 333-185732) of US Foods, Inc. filed with the SEC on May 11, 2015.
10.43§		Offer Letter, dated as of July 13, 2015, by US Foods, Inc. and accepted by Pietro Satriano, incorporated herein by reference to Exhibit 10.56 to the Quarterly Report on Form 10-Q (File No. 333-185732) of US Foods, Inc. filed with the SEC on August 11, 2015.
10.44§		Non-Solicitation and Non-Disclosure Agreement, dated as of July 21, 2015, by and between US Foods, Inc. and Pietro Satriano, incorporated herein by reference to Exhibit 10.58 to the Quarterly Report on Form 10-Q (File No. 333-185732) of US Foods, Inc. filed with the SEC on August 11, 2015.
10.45§		2016 US Foods Holding Corp. Omnibus Incentive Plan, including forms of award agreements, incorporated herein by reference to Exhibit 10.6 to the Company’s Current Report on Form 8-K (File No. 001-37786) filed with the SEC on June 1, 2016.
10.46		Termination Agreement, dated as of June 1, 2016, by the Company and US Foods, Inc. and acknowledged and agreed to by Clayton, Dubilier & Rice, LLC, incorporated herein by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K (File No. 001-37786) filed with the SEC on June 1, 2016.
10.47		Termination Agreement, dated as of June 1, 2016, by the Company and US Foods, Inc. and acknowledged and agreed to by Kohlberg Kravis Roberts & Co. L.P., incorporated herein by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K (File No. 001-37786) filed with the SEC on June 1, 2016.
10.48§		US Foods Holding Corp. Amended and Restated Employee Stock Purchase Plan, incorporated herein by reference to Exhibit 10.54 to the Company’s Quarterly Report on Form 10-Q (File No. 001-37786) filed with the SEC on November 8, 2016.
10.49§		Letter Agreement, dated as of July 29, 2016, by US Foods, Inc. and agreed to and accepted by Stuart Schuette as of August 1, 2016, incorporated herein by reference to Exhibit 10.53 to the Company’s Quarterly Report on Form 10-Q (File No. 001-37786) filed with the SEC on August 9, 2016.
10.50§		Form of Omnibus Amendment to Outstanding Stock Option Agreements, effective as of August 25, 2016, incorporated herein by reference to Exhibit 10.55 to the Company’s Quarterly Report on Form 10-Q (File No. 001-37786) filed with the SEC on November 8, 2016.
10.51§		Severance Agreement, effective as of May 26, 2011, by and between U.S. Foodservice, Inc. (now known as US Foods, Inc.) and Keith D. Rohland, incorporated herein by reference to Exhibit 10.51 to the Company’s Registration Statement on Form S-1 (File No. 333-215534) filed with the SEC on January 13, 2017.
10.52§		Offer Letter, dated January 26, 2017, by and between US Foods, Inc. and Dirk J. Locascio, incorporated herein by reference to Exhibit 10.53 to the Company’s Annual Report on Form 10-K (File No. 001-37786) filed with the SEC on February 28, 2017.
10.53§		Severance Agreement, dated February 6, 2017, by and between US Foods, Inc. and Dirk J. Locascio, incorporated herein by reference to Exhibit 10.54 to the Company’s Annual Report on Form 10-K (File No. 001-37786) filed with the SEC on February 28, 2017.
21.1		Subsidiaries of the Company, incorporated herein by reference to Exhibit 21.1 to the Company’s Annual Report on Form 10-K (File No. 001-37786) filed with the SEC on February 28, 2017.

 

II-11

---

Table of Contents

Exhibit No.		Description
23.1*		Consent of Deloitte & Touche LLP.
23.2*		Consent of Sidley Austin LLP (included as part of Exhibit 5.1).
23.3#		Consent of Technomic, Inc.
23.4#		Consent of Datassential, Inc.
24.1#		Power of Attorney (included on signature pages to this Registration Statement).

 

*	Filed herewith.

#	Previously Filed.

§	Identifies exhibits that consist of a management contract or compensatory plan or arrangement.

 

II-12