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Item 9A. Controls and Procedures

2023-03-02 compared with 2022-03-03 · 53 added, 58 removed, 150 unchanged (43% of the section changed)

1 unchanged sentence

Evaluation of Disclosure Controls and Procedures

We have established disclosure controls and procedures (as defined in Rules 13a-15e) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are designed to provide reasonable assurance that information required to be disclosed in our reports filed or submitted under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the Securities and Exchange Commission, and that information relating to the Company is accumulated and communicated to management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

We have established disclosure controls and procedures (as defined in Rules 13a-15e) of the Exchange Act, that are designed to provide reasonable assurance that information required to be disclosed in our reports filed or submitted under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that information relating to the Company is accumulated and communicated to management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

Based on that evaluation, the Chief Executive Officer and Chief Financial Officer have concluded that our current disclosure controls and procedures are effective at a level of reasonable assurance.

10 unchanged sentences

The effectiveness of the Company’s internal control over financial reporting as of January 1, 2023 has been audited by Grant Thornton LLP, an independent registered public accounting firm, as stated in their report included herein.

Remediation of Material Weakness in Internal Control over Financial Reporting

A material weakness is a deficiency, or a combination of deficiencies, in internal control over reporting, such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or deleted on a timely basis.

As previously disclosed in our January 3, 2021 10-K/A, our management concluded that there was a material weakness in our internal controls over financing reporting as we did not maintain effective internal control in the design and operating effectiveness of certain financial reporting related controls over the correct application of generally accepted accounting principles in the Unites States of America for stock warrants.

Specifically, we determined that we had control deficiencies related to our accounting function’s failure to timely identify adjustments for stock warrants, and we did not adequately review or oversee the work of external specialists to assist us in the preparation of our financial statements and in our compliance with SEC reporting obligations.

During the year ended January 2, 2022 we took the following steps to remediate this material weakness:

• standardized our controls and procedures over accounting and financial reporting as part of our preparation for management’s initial report under section 404(a) of the Sarbanes-Oxley Act of 2002

• formalized our internal review process related to non-routine transactions;

• enhanced our reviews of accounting estimates performed by external specialists.

As of January 2, 2022, we concluded that the material weakness was sufficiently remediated.

Attestation Report of the Registered Public Accounting Firm

The Company's internal control over financial reporting as of January 1, 2023 has been audited by Grant Thornton LLP, an independent registered public accounting firm, as stated in their report which is included in Item 8 of this Annual Report on Form 10-K.

Changes in Internal Control Over Financial Reporting

Other than the remediation discussed above, there was no other change in the Company’s internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) during its most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, its internal control over financial reporting.

There was no other change in the Company’s internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) during its most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, its internal control over financial reporting.

Other Information

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The information required by this item with respect to our executive officers and directors is provided below.

Other information required by this item will be set forth in our definitive Proxy Statement for our 2021 Annual Meeting of Stockholders under the captions “ Executive Officers of Utz Brands, Inc.

― Corporate Governance ” and “ Delinquent Section 16(a) Reports ” to be filed within 120 days after the end of the fiscal year covered by this Annual Report on Form 10-K, and is incorporated herein by reference to our Proxy Statement, which is to be filed within 120 days after the end of the fiscal year covered by this Annual Report on Form 10-K.

The information regarding executive officers of the Company required by Item 401 of SEC Regulation S-K is incorporated herein by reference from the disclosure included under the caption “S upplemental Item.

Information About Out Executive Officers ” at the end of Part I of this Annual Report on Form 10-K.

The information required by Item 401 of SEC Regulation S-K concerning the directors and nominees for director of the Company, together with a discussion of the specific experience, qualifications, attributes and skills that led the Board to conclude that the director or nominee should serve as a director at this time, will be located in the Proxy Statement in the section entitled “ Proposal No.

Other information required by this item will be set forth in our definitive Proxy Statement for our 2023 Annual Meeting of Stockholders (our “2023 Proxy Statement”) under the captions “ Executive Officers of Utz Brands, Inc.” “Corporate Governance ” and " Delinquent Section 16(a) Reports ” to be filed within 120 days after the end of the fiscal year covered by this Annual Report on Form 10-K, and is incorporated herein by reference to our 2023 Proxy Statement, which is to be filed within 120 days after the end of the fiscal year covered by this Annual Report on Form 10-K.

The information regarding executive officers of the Company required by Item 401 of SEC Regulation S-K will be located in our 2023 Proxy Statement in the section entitled “ Executive Officers of Utz Brands, Inc.

” which information is incorporated herein by reference

The information required by Item 401 of SEC Regulation S-K concerning the directors and nominees for director of the Company, together with a discussion of the specific experience, qualifications, attributes and skills that led the Board to conclude that the director or nominee should serve as a director at this time, will be located in our 2023 Proxy Statement in the section entitled “ Proposal No.

1 – Election of Directors ,” which information is incorporated herein by reference.

Information regarding the identification of the Audit Committee as a separately-designated standing committee of the Board and information regarding the status of one or more members of the Audit Committee as an “audit committee financial expert” will be located in the Proxy Statement in the section entitled “ Committees and Meetings of the Board – Board Committees ,” which information is incorporated herein by reference.

Information regarding our Code of Conduct applicable to our directors, officers and employees is located in Part I of this Annual Report on Form 10-K, under the heading “Available Information.”

Information regarding the identification of the Audit Committee as a separately-designated standing committee of the Board and information regarding the status of one or more members of the Audit Committee as an “audit committee financial expert” will be located in our 2023 Proxy Statement in the section entitled " Committees and Meetings of the Board – Board Committees ,” which information is incorporated herein by reference.

Information regarding our Business Code of Conduct and Ethics applicable to our directors, officers and associates will be located in our 2023 Proxy Statement in the Section entitled “ Corporate Governance―Corporate Governance Policies―Code of Ethics ,”) which information is incorporated herein by reference.

Executive Compensation

Information concerning ownership of our voting securities by certain beneficial owners, individual nominees for director, the named executive officers, including persons serving as our Chief Executive Officer and Chief Financial Officer, and directors and executive officers as a group, will be located in the Proxy Statement in the section entitled “ Security Ownership of Certain Beneficial Owners and Management, ” which information is incorporated herein by reference.

Information regarding all of the Company’s equity compensation plans will be located in the Proxy Statement in the section entitled “ Equity Compensation Plan Information ,” which information is incorporated herein by reference to be filed within 120 days after the end of the fiscal year covered by this Annual Report on Form 10-K, and is incorporated herein by reference to our Proxy Statement, which is to be filed within 120 days after the end of the fiscal year covered by this Annual Report on Form 10-K.

Information concerning executive compensation will be located in our 2023 Proxy Statement in the section entitled, “ Executive and Director Compensation, ” which information is incorporated herein by reference.

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

Information concerning ownership of our voting securities by certain beneficial owners, individual nominees for director, the named executive officers, including persons serving as our Chief Executive Officer and Chief Financial Officer, and directors and executive officers as a group, will be located in the Proxy Statement in the section entitled “ Share Ownership of Certain Beneficial Owners and Management ,” which information is incorporated herein by reference.

Other information required by this Item 12 will be included under the heading “ Executive and Director Compensation - Equity Compensation Plan Information ” in our 2022 Proxy Statement, which is to be filed within 120 days after the end of the fiscal year covered by this Annual Report on Form 10-K.

This information is incorporated by reference into this Annual Report on Form 10-K.

Information concerning ownership of our voting securities by certain beneficial owners, individual nominees for director, the named executive officers, including persons serving as our Chief Executive Officer and Chief Financial Officer, and directors and executive officers as a group, will be located in our 2023 Proxy Statement in the section entitled " Security Ownership of Certain Beneficial Owners and Management, ” which information is incorporated herein by reference.

Information regarding all of the Company’s equity compensation plans will be located in our 2023 Proxy Statement in the section entitled “ Executive and Director Compensation ― Equity Compensation Plan Information ,” which information is incorporated herein by reference to our 2023 Proxy Statement, which is to be filed within 120 days after the end of the fiscal year covered by this Annual Report on Form 10-K.

Certain Relationships and Related Transactions, and Director Independence

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The following Consolidated Financial Statements of Utz Brands, Inc.

and the Reports of the Independent Registered Public Accounting Firm are included in Part II, Item 8 of this report.

and the Reports of the Independent Registered Public Accounting Firm are included in Part II, Item 8 of this Annual Report on Form 10-K.

Index to the Financial Statements Page

2 unchanged sentences

Consolidated Balance Sheets as of January 1, 2023 and January 2, 2022

Consolidated Statements of Operations And Comprehensive Income (Loss) for the year ended January 2, 2022, fiscal periods ended January 3, 2021 and August 28, 2020, and year ended December 29, 2019

Consolidated Statements of Stockholders' Equity (Deficit) for the year ended January 2, 2022, fiscal periods ended January 3, 2021 and August 28, 2020, and year ended December 29, 2019

Consolidated Statements of Cash Flows for the year ended January 2, 2022, fiscal periods ended January 3, 2021 and August 28, 2020, and year ended December 29, 2019

Consolidated Statements of Operations And Comprehensive Income (Loss) for the year s ended January 1, 2023 and January 2, 2022, and fiscal periods ended January 3, 2021 and August 28, 2020

Consolidated Statements of Stockholders' Equity (Deficit) for the year s ended January 1, 2023 and January 2, 2022, and fiscal periods ended January 3, 2021 and August 28, 2020

Consolidated Statements of Cash Flows for the year s ended January 1, 2023 and January 2, 2022, and fiscal periods ended January 3, 2021 and August 28, 2020

Notes to Consolidated Financial Statements

18 unchanged sentences

001-38686), filed with the Commission on October 10, 2018).

Assignment and Assumption Agreement dated February 22, 2022 by and among the Company, Continental Stock Transfer & Trust Company, and Equinity Trust Company.

Description of Securities

Assignment and Assumption Agreement dated February 22, 2022 by and among the Company, Continental Stock Transfer & Trust Company, and Equinity Trust Company (incorporated by reference to Exhibit 4.

3 to Utz Brands, Inc.'s Annual Report on Form 10-K (File No.

001-38686), filed with the Commission on March 3, 2022 .

Description of Securities (incorporated by reference to Exhibit 4.4 of Utz Brands, Inc's Annual Report on Form 10-K (File No.

001-38686), filed with the Commission on March 3, 2022).

Form of Registration Rights Agreement dated April 28, 2022, by and among Utz Brands, Inc.

and the purchasers of the shares party thereto (incorporated by reference to Exhibit 4.1 of Utz Brand, Inc.’s Current Report on Form 8-K (File No.

001-38686), filed with the Commission on April 28, 2022.

Third Amended and Restated Limited Liability Company Agreement of Utz Brands Holdings, LLC, dated as of August 28, 2020, by and among Utz Brands Holdings, LLC, Utz Brands, Inc., Series U of UM Partners, LLC, Series R of UM Partners, LLC and each other person who is or at any time becomes a member of Utz Brands Holdings, LLC, incorporated by reference to Exhibit 10.1 to Utz Brands, Inc.’s Current Report on Form 8-K (File No.

4 unchanged sentences

001-38686), filed with the Commission on September 3, 2020).

Standstill Agreement, dated as of August 28, 2020, by and among Utz Brands, Inc., Series U of UM Partners, LLC, Series R of UM Partners, LLC, Collier Creek Partners LLC, certain founder holders and certain beneficial owners and related parties of Series U of UM Partners, LLC and Series R of UM Partners, LLC (incorporate by reference to Exhibit 10.4 to Utz Brands, Inc.’s Current Report on Form 8-K (File No.

Amendment to Investor Rights Agreement dated October 21, 2021.

Standstill Agreement, dated as of August 28, 2020, by and among Utz Brands, Inc., Series U of UM Partners, LLC, Series R of UM Partners, LLC, Collier Creek Partners LLC, certain founder holders and certain beneficial owners and related parties of Series U of UM Partners, LLC and Series R of UM Partners, LLC (incorporated by reference to Exhibit 10.4 to Utz Brands, Inc.’s Current Report on Form 8-K (File No.

001-38686), filed with the Commission on September 3, 2020).

6 unchanged sentences

Form of Forward Purchase Agreement between the Company and the investor named therein (incorporated by reference to Exhibit 10.9 of Collier Creek’s Form S-1 (File No.

333-227295), filed with the SEC on September 12, 2018).

First Lien Term Loan Credit Agreement, dated November 21, 2017, entered into by and among Utz Quality Foods, LLC, Bank of America, N.A.

and the other parties thereto as amended July 23, 2020 (incorporated by reference to Exhibit 10.10 of Collier Creek’s Registration Statement on Form S-4 (File No.

333-239151), filed with the Commission on August 3, 2020).

ABL Credit Agreement, dated November 21, 2017, entered into by and among Utz Quality Foods, LLC, Bank of America, N.A.

and the other parties thereto as amended September 3, 2019, April 1, 2020, and July 23, 2020 (incorporated by reference to Exhibit 10.11 to Collier Creek’s Registration Statement on Form S-4 (File No.

333-239151), filed with the Commission on August 3, 2020).

333-227295), filed with the Commission on September 12, 2018).

Amendment No.

4, dated September 22, 2022, to the First Lien Credit Agreement, dated as of November 21, 2017 (as amended by that certain Amendment No.

1 to Credit Agreement, dated as of July 23, 2020, that certain Amendment No.

2 to Credit Agreement, dated as of January 20, 2021, that certain Amendment No.

3 to Credit Agreement, dated as of June 22, 2021) among Utz Quality Foods, LLC, Utz Brands Holdings, LLC, Bank of America, N.A., as Administrative Agent and Collateral Agent and each lender from time to time party thereto (incorporated by reference to Exhibit 10.2 to Utz Brands, Inc.’s Quarterly Report on Form 10-Q (File No.

001-38686), filed with the Commission on November 10, 2022).

Amendment No.

7, dated as of September 22, 2022, to the ABL Credit Agreement dated as of November 21, 2017 (as amended, restated, amended and restated, supplemented, or otherwise modified prior to the date hereof), among Utz Quality Foods, LLC, Golden Flake Snack Foods, Inc., Utz Brands Holdings, LLC, Bank of America, N.A., as administrative agent and collateral agent, and each Lender party thereto (incorporated by reference to Exhibit 10.1 to Utz Brands, Inc.’s Quarterly Report on Form 10-Q (File No.

001-38686), filed with the Commission on November 10, 2022).

Offer Letter dated August 28, 2020 by and between the Company and Dylan Lissette (incorporated by reference to Exhibit 10.10 to Utz Brands, Inc.’s Current Report on Form 8-K (File No.

3 unchanged sentences

Utz Brands, Inc.

2020 Omnibus Equity Incentive Plan and forms of award agreements thereunder (incorporated by reference to Exhibit 10.12 to Utz Brands, Inc.’s Current Report on Form 8-K (File No.

001-38686), filed with the Commission on September 3, 2020).

Utz Quality Foods, LLC 2020 Long-Term Incentive Plan and form of award agreement thereunder (incorporated by reference to Exhibit 10.13 to Utz Brands, Inc.’s Current Report on Form 8-K (File No.

001-38686), filed with the Commission on September 3, 2020) .

2020 Omnibus Equity Incentive Plan, as amended, and the forms of award agreements thereunder.

Utz Brands, Inc.

12 unchanged sentences

001-38686) dated December 14, 2020 filed with the Commission on December 14, 2020.

Offer Letter, dated April 11, 2017, entered into by and between Utz Quality Foods, LLC and Mark Schreiber (incorporated by reference to Exhibit 10.19 to Utz Bran ds, Inc.'s Annual Report on Form 10 - K (File No.

001-3 868 ), with the Commission on March 18, 2021 .

Amendment No.

2 to Credit Agreement, dated as of January 20, 2021, to the First Lien Credit Agreement, dated November 21, 2017, as amended, among Utz Quality Foods, LLC, Utz Brands Holdings, LLC, Bank of America, N.A., as Administrative Agent and Collateral Agent, and each lender from time to time party thereto (incorporated by reference from the Company’s Form 8-K (File No.

001-38686), filed with the Commission on January 20, 2021) (incorporated by reference to Exhibit 10.1 to Utz Brands, Inc.’s Quarterly Report on Form 10-Q (File No.

001-38686) dated May 13, 2021.

Amendment No.

3 to Credit Agreement, dated as of June 22, 2021, to the First Lien Term Loan Credit Agreement, dated as of November 21, 2017 (as amended by that certain Amendment No.

1 to Credit Agreement, dated as of July 23, 2020, by that certain Amendment No.

2 to Credit Agreement, dated as of January 20, 2021 among Utz Quality Foods, LLC, Utz Brands Holdings, LLC, Bank of America, N.A., as Administrative Agent and Collateral Agent and each lender from time to time party thereto.(incorporated by reference to Exhibit 10.1 to Utz Brands, Inc.’s Quarterly Report on Form 10-Q (File No.

001-38686) dated August 12, 2021.

Offer Letter dated June 7, 2021 by and between the Company and Shane Chambers.

001-38686), filed with the Commission on March 18, 2021.

Loan Agreement dated as of October 12, 2022 by and among Utz Quality Foods, LLC, Kennedy Endeavors, LLC, Condor Snack Foods, LLC, the Lenders from time to time party thereto and City National Bank, a national banking association, as administrative agent (incorporated by reference to Exhibit 10.1 to Utz Brands, Inc.’s Current Report on Form 8-K (File No.

001-38686), filed with the Commission on October 12, 2022).

Offer Letter dated September 30, 2022, issued by Utz Brands, Inc.

Friedman (incorporated by reference to Exhibit 10.1 of Utz Brands, Inc.’s Current Report on Form 8-K dated September 30, 2022 (File No.

001-38686), filed with the Commission on October 3, 2022).

Offer Letter dated May 10, 2021 by and between the Company and Theresa R.

Shea (incorporated by reference to Exhibit 10.23 to Utz Brands, Inc.'s Annual Report on Form 10-K (File No.

001-38686), filed with the Commission on March 3, 2022.

Code of Ethics (incorporated by reference to Exhibit 14.1 to Utz Brands, Inc.’s Current Report on Form 8-K (File No.

25 unchanged sentences

Executive Vice President, Chief Financial Officer

Each person whose individual signature appears below hereby authorizes and appoints Dylan B.

Lissette and Ajay Kataria, and each of them, with full power of substitution and resubstitution and full power to act without the other, as his or her true and lawful attorney-in-fact and agent to act in his or her name, place and stead and to execute in the name and on behalf of each person, individually and in each capacity stated below, and to file any and all amendments to this annual report on Form 10-K and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing, ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue thereof.

Each person whose individual signature appears below hereby authorizes and appoints Howard Friedman, Ajay Kataria, and Theresa Shea, and each of them, with full power of substitution and resubstitution and full power to act without the other, as his or her true and lawful attorney-in-fact and agent to act in his or her name, place and stead and to execute in the name and on behalf of each person, individually and in each capacity stated below, and to file any and all amendments to this annual report on Form 10-K and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing, ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue thereof.

Pursuant to the requirements of Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.

Signature Title Date

Lissette Director and Chief Executive Officer March 3, 2022

Lissette (Principal Executive Officer) Date

/s/ Howard Friedman Director and Chief Executive Officer March 2, 2023

Howard Friedman (Principal Executive Officer) Date

/s/ Ajay Kataria Executive Vice President, Chief Financial Officer March 2, 2023

2 unchanged sentences

Aumen (Principal Accounting Officer) Date

Deromedi Chairman;

Lissette Executive Chairman;

Director March 2, 2023

Lissette Date

Deromedi Lead Independent Director March 2, 2023

Deromedi Date

24 unchanged sentences

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures