INTERNATIONAL FLAVORS & FRAGRANCES INC. Item 1.01. Entry into a Material Definitive Agreement.
Transaction Documents
In connection with the Transactions, on the Closing Date, IFF, DuPont and N&B entered into additional agreements, including, among others:
• a Tax Matters Agreement (the "Tax Matters Agreement") among IFF, DuPont
and N&B, to govern the parties' respective rights, responsibilities, and
obligations with respect to taxes, including taxes arising in the
ordinary course of business, taxes, if any, incurred as a result of any
failure of the Distribution, the Mergers (as defined in the Merger
Agreement) or certain related transactions to qualify as tax-free for
U.S. federal income tax purposes, and the apportionment of tax
attributes. The Tax Matters Agreement also sets forth the respective
obligations of the parties with respect to the filing of tax returns, the
administration of tax contests and assistance and cooperation on tax
matters; and
• an Intellectual Property Cross-License Agreement (the "IP Cross-License
Agreement") between N&B, DuPont and certain of their subsidiaries, which
sets forth the terms and conditions under which the applicable parties
may use in their respective businesses certain know-how (including trade
secrets), copyrights, design rights, software, and patents, allocated to
another party pursuant to the Separation Agreement, and pursuant to which
N&B may use certain standards retained by DuPont. All licenses under the
IP Cross-License Agreement are non-exclusive, worldwide and royalty-free.
Each of the foregoing descriptions does not purport to be complete and is
qualified in its entirety by reference to each of the Tax Matters Agreement and
the IP Cross-License Agreement, respectively, copies of which are attached
hereto as Exhibits 10.1 and 10.2 and each of which is incorporated by reference
into this Item 1.01. A summary of the material terms of each of the agreements
described above is also contained in IFF's Registration Statement on Form S-4,
as amended (Registration No. 333-238072), which was declared effective by the
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Financing Matters
N&B Term Loan Credit Agreement
As previously disclosed, on
On
On the Closing Date, N&B borrowed
The descriptions of the N&B Term Loan Credit Agreement and N&B Term Loan Amendment contained in this Item 1.01 do not purport to be complete and are subject to, and qualified in their entirety by, the full text of the N&B Term Loan Credit Agreement and N&B Term Loan Amendment filed as Exhibits 10.3 and 10.4, respectively, hereto and incorporated herein by reference.
IFF Credit Agreement Guarantees
As previously disclosed, on
Item 2.01. Completion of Acquisition or Disposition of Assets.
On the Closing Date, the Merger was consummated pursuant to the Merger Agreement
and the Separation Agreement. At the effective time of the Merger, each issued
and outstanding share of N&B Common Stock (except for shares of N&B Common Stock
held by N&B as treasury stock or by DuPont, which were canceled and ceased to
exist and no consideration was delivered in exchange therefor) was converted
into the right to receive one share of common stock, par value
Accordingly, as a result of the Merger, holders of DuPont Common Stock (or, if such holders exchanged all of their shares of DuPont Common Stock in the Exchange Offer, also former holders) that received shares of N&B Common Stock in the Exchange Offer are entitled to receive 141,740,461 shares of IFF Common Stock, resulting in pre-Transactions holders of DuPont Common Stock holding approximately 55.4% of the outstanding IFF Common Stock on a fully-diluted basis and IFF equityholders prior to the Merger holding approximately 44.6% of the outstanding IFF Common Stock on a fully-diluted basis.
In connection with the Transactions, IFF, DuPont, N&B and certain of their affiliates entered into certain additional agreements relating to, among other things, certain tax matters and the use of certain intellectual property following the consummation of the Merger. The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.01.
The IFF Registration Statement sets forth certain additional information regarding N&B and the Transactions. The information contained in Items 1.01 and 5.02 of this Current Report on Form 8-K is incorporated by reference into this Item 2.01. In addition, the foregoing description of the Transactions is qualified in its entirety by reference to the Merger Agreement and the Separation Agreement, copies of which are attached hereto as Exhibits 2.1 and 2.2, respectively, and are incorporated by reference into this Item 2.01.
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Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangements or Registrant.
The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.
Item 5.02. Departure of Directors or Principal Officers; Election of Directors;
Appointment of Principal Officers; Compensatory Arrangements of
Certain Officers.
Departure of Certain Directors and Officers
As previously disclosed in IFF's Current Report on Form 8-K filed with the
Election of Directors
Effective as of the Closing Date, the Board increased the size of the Board to
thirteen directors and elected
Biographical information, committee appointments and other arrangements of the
newly elected directors are included in IFF's Current Report on Form 8-K filed
with the
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On the Closing Date, IFF amended and restated its by-laws to, among other things, (i) ratify the increase the size of the Board from eleven to thirteen directors and (ii) detail, in accordance with the Merger Agreement, the nomination, appointment and replacement of the members of the Board designated by each of IFF and DuPont.
The foregoing description of the amended by-laws is qualified in its entirety by reference to the full text of the by-laws, attached hereto as Exhibit 3.1 and is incorporated by reference into this Item 5.03.
Item 8.01. Other Events. Consummation of the Closing
The matters set forth in Item 2.01 are incorporated herein by reference.
Annual Shareholders' Meeting Date
IFF intends to hold its 2021 Annual Shareholders' Meeting (the "2021 Annual
Meeting") on
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Solicitation of Proxies
IFF intends to file a proxy statement and white proxy card with the
Item 9.01 Financial Statements and Exhibits.
(a) Financial statements of business acquired.
The financial statements required by this item will be filed by amendment to this Current Report on Form 8-K no later than 71 calendar days after the date on which this Current Report on Form 8-K must be filed.
(b) Pro forma financial information.
The financial statements required by this item will be filed by amendment to this Current Report on Form 8-K no later than 71 calendar days after the date on which this Current Report on Form 8-K must be filed.
(d) Exhibits. Number Description 2.1 Agreement and Plan of Merger, datedDecember 15, 2019 , by and among DuPont de Nemours, Inc.,Nutrition & Biosciences, Inc. ,International Flavors & Fragrances Inc. andNeptune Merger Sub I Inc. , incorporated by reference to Exhibit 2.1 ofInternational Flavors & Fragrances Inc.'s Current Report on Form 8-K filed onDecember 18, 2019 .* 2.2 Separation and Distribution Agreement, dated as ofDecember 15, 2019 , by and among DuPont de Nemours, Inc.,Nutrition & Biosciences, Inc. andInternational Flavors & Fragrances Inc. , incorporated by reference to Exhibit 2.2 ofInternational Flavors & Fragrances Inc.'s Current Report on Form 8-K filed onDecember 18, 2019 .* 2.3 Amendment No. 1 to the Separation and Distribution Agreement, datedJanuary 22, 2021 , by and among DuPont de Nemours, Inc.,Nutrition & Biosciences, Inc. ,International Flavors & Fragrances Inc. andNeptune Merger Sub II LLC , incorporated by reference to Exhibit 2.1 toInternational Flavors & Fragrances Inc. Current Report on Form 8-K filedJanuary 25, 2021 . 2.4 Amendment No. 2 to the Separation and Distribution Agreement, datedFebruary 1, 2021 , by and among DuPont de Nemours, Inc.,Nutrition & Biosciences, Inc. ,International Flavors & Fragrances Inc. andNeptune Merger Sub II LLC . 3.1 By-laws ofInternational Flavors & Fragrances Inc. , effective as ofFebruary 1, 2021 , incorporated by reference to Exhibit 4.2 toInternational Flavors & Fragrances Inc. Registration Statement on Form S-8 filedFebruary 2, 2021 . 4.1 Indenture, dated as ofSeptember 16, 2020 , between Nutrition &Bioscience, Inc. andU.S. Bank National Association , as trustee, incorporated by reference to Exhibit 99.16 to IFF's Form S-4 Registration Statement filed with theSEC onOctober 5, 2020 .
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4.2 Supplemental Indenture, dated as ofFebruary 1, 2021 , amongNutrition & Biosciences, Inc. ,International Flavors & Fragrances Inc. andU.S. Bank National Association , as trustee. 10.1 Tax Matters Agreement, dated as ofFebruary 1, 2021 , by and among DuPont de Nemours, Inc.,Nutrition & Biosciences, Inc. andInternational Flavors & Fragrances Inc. * 10.2 Intellectual Property Cross-License Agreement, dated as ofFebruary 1, 2021 , by and betweenNutrition & Biosciences, Inc. and DuPont de Nemours, Inc.* 10.3 Term Loan Credit Agreement, dated as ofJanuary 17, 2020 , by and amongNutrition & Biosciences, Inc. , as borrower, andMorgan Stanley Senior Funding Inc. , as administrative agent, and the other lenders party thereto, incorporated by reference to Exhibit 99.14 to IFF's Form S-4 Registration Statement filed with theSEC onOctober 5, 2020 . 10.4 Amendment No. 1 to Credit Agreement, dated as ofAugust 25, 2020 , by and amongNutrition & Biosciences, Inc. , the lenders signatory thereto andMorgan Stanley Senior Fund, Inc. , as administrative agent, incorporated by reference to Exhibit 99.15 to IFF's Form S-4 Registration Statement filed with theSEC onOctober 5, 2020 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Exhibits and schedules have been omitted pursuant to Item 601(a)(5) of
Regulation S-K and will be supplementally provided to the
A list of the omitted exhibits and schedules to the Merger Agreement follows:
Exhibit A Separation and Distribution Agreement Exhibit D Form of Transition Services Agreement Exhibit F RMT Partner Representation Letter Spinco Disclosure Schedules Section 1.1(a) Knowledge Section 1.1(c) Subsidiaries Section 3.3(b) Exchange Agent Section 5.3 No Conflict Section 5.4 Governmental Consents Section 5.6 Brokers' Fees Section 5.7 Remainco Internal Controls Section 5.8 Conversion Equity Awards Section 6.1Organization of Spinco Section 6.2 Subsidiaries Section 6.4 No Conflict Section 6.5 Governmental Consents Section 6.8 Financial Statements Section 6.9 Litigation and Proceedings Section 6.10 Legal Compliance Section 6.11(a) Material Contracts Section 6.11(b) Vendors and Customers Section 6.13 Spinco Benefit Plans Section 6.14 Labor Matters Section 6.15 Tax Matters Section 6.16 Brokers' Fees Section 6.18 Regulatory Matters Section 6.19 Real Property
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Section 6.20 Intellectual Property Section 6.21 Environmental Matters Section 6.22 Absence of Changes Section 6.23 Affiliate Matters Section 6.26 Board and Shareholder Approval Section 6.27 RMT Partner Common Stock Section 6.28 Sufficiency of the Spinco Assets Section 8.2 Conduct of Business bySpinco and Remainco Pending the Closing Section 8.20(b) Certain Obligations with Respect to the Corteva Letter Agreement and Certain Obligations with Respect to Legal Entities that have Manufactured, Distributed, Sold, Stored, Handled, Tested, Disposed of or Released any PFAS Substance Section 8.22 Financial Information Section 8.27 Certain Other Ancillary Agreements Section 9.1(a) Conditions to the Obligations ofSpinco , Remainco, RMT Partner and Merger Sub to Effect the Merger Schedule Section 9.1(g) Conditions to the Obligations ofSpinco , Remainco, RMT Partner and Merger Sub to Effect the Merger RMT Partner Disclosure Schedules Section 1.1(a) Knowledge Section 1.1(b) Permitted Liens Section 7.2 Subsidiaries Section 7.4 No Conflict Section 7.6(d) Capital Stock and Other Matters Section 7.7 Capitalization of Subsidiaries Section 7.9 Litigation and Proceedings Section 7.10 Legal Compliance Section 7.11 Material Contracts Section 7.12 Vendors and Customers Section 7.13 RMT Partner Benefit Plans Section 7.14 Labor Matters Section 7.16 Brokers' Fees Section 7.18 Regulatory Matters Section 7.19 Real Property Section 7.20 Intellectual Property Section 7.21 Environmental Matters Section 8.1 Conduct of Business by RMT Partner Pending the Closing Section 8.15(a) Employees and Benefit Matters Section 9.1 Conditions to the Obligations ofSpinco , Remainco, RMT Partner and Merger Sub to Effect the Merger A list of the omitted exhibits and schedules to the Separation and Distribution Agreement follows: Exhibit A Real Property Restrictions Exhibit B FrenchOffer Letter Schedule 1.1(4) Accounting principles Schedule 1.1(48) Distribution Agent Schedule 1.1(116) Lower Working Capital Target Schedule 1.1(130) Non-Shared Contracts Schedule 1.1(166)(b) Remainco Assets Schedule 1.1(166)(d)(i) Remainco Assets Schedule 1.1(166)(d)(ii) Remainco Assets Schedule 1.1(166)(e)(iii) Remainco Assets Schedule 1.1(166)(h) Remainco Assets Schedule 1.1(166)(l) Remainco Assets
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Schedule 1.1(166)(o) Remainco Assets Schedule 1.1(173) Remainco Designated Transaction Expenses Schedule 1.1(176)Remainco Group Schedule 1.1(178)(b) Remainco Liabilities Schedule 1.1(178)(k) Remainco Liabilities Schedule 1.1(182) Remainco Specified DWDP Separation Related Agreements Schedule 1.1(187) Retained Names Schedule 1.1(197) Separation Plan Schedule 1.1(199) Severable DWDP Separation Related Agreements Schedule 1.1(207) Space Leases Schedule 1.1(215)(a) Spinco Assets Schedule 1.1(215)(b) Spinco Assets Schedule 1.1(215)(d)(i) Spinco Assets Schedule 1.1(215)(d)(ii) Spinco Assets Schedule 1.1(215)(e)(iii) Spinco Assets Schedule 1.1(215)(m)(ii) Spinco Assets Schedule 1.1(232)Spinco Group Schedule 1.1(233) Spinco Indebtedness Schedule 1.1(235) Spinco Intellectual Property Schedule 1.1(236) Spinco IT Assets Schedule 1.1(237)(b) Spinco Liabilities Schedule 1.1(237)(i) Spinco Liabilities Schedule 1.1(237)(k)(ii) Spinco Liabilities Schedule 1.1(237)(k)(iii) Spinco Liabilities Schedule 1.1(237)(iv) Spinco Liabilities Schedule 1.1(237)(k)(vii) Spinco Liabilities Schedule 1.1(244) Spinco Specified DWDP Separation Related Agreements Schedule 1.1(262) Transfer Agent Schedule 1.1(273) Upper Working Capital Target Section 2.5(f) Trapped Cash Caps Schedule 2.12 Guarantees Section 2.16 Post-Distribution Separation Steps Schedule 5.5(b) Permits and Financial Assurances Schedule 6.2(b)(ii) Remainco Designated Rights Schedule 8.1(b) Preservation of Corporate Records Schedule 8.8 Conflicts Waiver Schedule 10.8 Certain Matters Related to Organizational Documents
A list of the omitted exhibits to the Tax Matters Agreement follows:
Exhibit A Spinco Taxes Exhibit B Tax Opinions / Rulings Exhibit C Restrictions Related to Internal Separation Transactions Exhibit D Restrictions for Section 368(a)(1)(D) / Section 355 Transactions Exhibit E Specified Tax Matters Exhibit F Financing Transactions Exhibit G 355(b) Trade or Business
A list of the omitted schedules to the Intellectual Property Cross-License Agreement follows:
Schedule A Excluded IP Schedule B Knowledge Schedule C Remainco Licensed Copyrights Schedule D Remainco Licensed Know-How Schedule E Remainco Licensed Patents Schedule F Spinco Licensed Copyrights Schedule G Spinco Licensed Know-How Schedule H Spinco Licensed Patents Schedule I Licensors and Licensees
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