director was adjudged liable on the basis that personal benefit was improperly received by him or her, whether or not involving action in his or her official capacity. Notwithstanding the
foregoing, pursuant to Section 14-2-854 a court may order a corporation to indemnify a director if such court determines the director is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances, whether or not such director met the standard of conduct set forth in Section 14-2-851 of the
GBCC or was adjudged liable as described in subsection (d) of Section 14-2-851 of the GBCC. Article 8.10 of the Registrants Amended and Restated Bylaws
(Bylaws) provides that the Registrant shall indemnify directors and officers to the extent required or permitted by law.
Section 14-2-852 of the GBCC provides that to the extent that a director has been successful, on the merits or otherwise, in the defense of any proceeding to which he was
a party, or in defense of any claim, issue, or matter therein, because he or she is or was a director of the corporation, the corporation shall indemnify the director against reasonable expenses incurred by the director in connection therewith.
Section 14-2-857(c) of the GBCC provides that an officer of the
corporation who is not a director is entitled to mandatory indemnification under Section 14-2-852 and is entitled to apply for court ordered indemnification under Section 14-2-854, in each case to the same extent as a director. In addition,
Section 14-2-857(d) provides that a corporation may also indemnify an employee or agent who is not a director to the extent, consistent with public policy, that may
be provided by its articles of incorporation, bylaws, action of its board of directors or contract.
The Companys Amended and Restated Articles of
Incorporation (Articles of Incorporation) provide that a director of the Company shall not be liable to the Company or its shareholders for or with respect to any acts or omissions in the performance of his or her duties as a director,
except to the extent such exemption from liability or limitation thereof is not permitted under the GBCC as currently in effect or as the same may be amended or under any other applicable law.
The Articles of Incorporation and Bylaws provide that each person who is or was or had agreed to become a director or officer of the Company, or each such
person who is or was serving or who had agreed to serve at the request of the Companys Board of Directors (the Board) or an officer as an employee or agent of the Company or as a director, officer, employee or agent of another
entity, shall be indemnified by the Company to the fullest extent permitted by the GBCC or any other applicable law as presently or hereafter in effect. This right of indemnification includes the advancement of expenses incurred in defending a
proceeding. The Company may, by action of the Board, provide indemnification to other employees and agents of the Company with the same scope and effect as the foregoing indemnification of its directors and officers.
In addition, the Company has entered into indemnification agreements with certain of its executive officers and directors whereby the Company agrees to hold
harmless and indemnify such executive officer or director, to the fullest extent permitted by applicable law, for any and all expenses (including attorneys fees), judgments, penalties, fines and amounts paid in settlement in connection with
any threatened, pending, or completed action, suit, or proceeding.
|
|
|
Exhibit
Number |
|
Description |
|
|
4.1 |
|
Amended and Restated Articles of Incorporation of Flowers Foods, Inc., as amended through May
21, 2020 (Incorporated by reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K, dated May 28, 2020, File No. 1-16247). |
|
|
4.2 |
|
Amended and Restated Bylaws of Flowers Foods, Inc., as amended through May
21, 2020 (Incorporated by reference to Exhibit 3.2 to the Registrants Current Report on Form 8-K, dated May 28, 2020, File No. 1-16247). |
|
|
4.3* |
|
Flowers Foods, Inc. 2014 Omnibus Equity and Incentive Compensation Plan (Amended and Restated Effective May 25, 2023). |
|
|
5.1* |
|
Opinion of Jones Day. |
|
|
23.1* |
|
Consent of Jones Day (included in Exhibit 5.1). |
|
|
23.2* |
|
Consent of Independent Registered Public Accounting Firm, PricewaterhouseCoopers LLP. |
|
|
24.1* |
|
Power of Attorney (included on the signature page of this Registration Statement). |
|
|
107* |
|
Filing Fee Table. |