Sealed v. Sealed et al
Court Docket Sheet

District of Arizona

2:2017-cv-00727 (azd)

STANDARD CIVIL TRACK INITIAL ORDER: IT IS ORDERED, if not already accomplished prior to the date of this Order, that Plaintiff(s) shall effect service of the Complaint and Summons upon all Defendants no later than 90 days after the filing of the Complaint. IT IS FURTHER ORDERED that Plaintiff shall serve Defendant(s) with a copy of this Order [see attached Order for details]. Signed by Senior Judge James A Teilborg on 6/15/17.

Case 2:17-cv-00727-JAT Document 20 Filed 06/15/17 Page 1 of 3 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Hutton, NO. CV-17-00727-PHX-JAT 10 Plaintiff, STANDARD CIVIL TRACK INITIAL ORDER 11 v. 12 Terry McDaniel, et al., 13 Defendants. 14 15 Pursuant to the mandate of the Differentiated Case Management system set forth 16 in Rule 16.2 of the Rules of Practice of the United States District Court for the District of 17 Arizona [hereinafter the "Local Rules"], this action, commenced on March 9, 2017, is 18 designated a STANDARD TRACK case. Accordingly, 19 IT IS ORDERED, if not already accomplished prior to the date of this Order, that 20 Plaintiff(s) shall effect service of the Complaint and Summons upon all Defendants no 21 later than 90 days after the filing of the Complaint. This shall serve as notice to the 22 Plaintiff under Rule 4(m) of the Federal Rules of Civil Procedure that the Court shall 23 dismiss this action without further notice to the Plaintiff with respect to any Defendant 24 named in the Complaint that is not served in accordance with Rule 4 of the Federal Rules 25 of Civil Procedure within that 90-day period. 26 IT IS FURTHER ORDERED that, once service is accomplished upon the 27 Defendant(s) in accordance with Rule 4, counsel for the Plaintiff(s) (or pro se Plaintiff) 28 shall notify the Court in writing when the parties are prepared for a Preliminary Pretrial Case 2:17-cv-00727-JAT Document 20 Filed 06/15/17 Page 2 of 3 1 Conference in accordance with Rule 16(b) of the Federal Rules of Civil Procedure. The 2 Court expects notification as soon as possible and practicable. 3 IT IS FURTHER ORDERED that, upon receipt of notice that the parties are 4 prepared for a Rule 16 Preliminary Pretrial Conference, the Court will issue a separate 5 Order which sets the time and date for the Preliminary Pretrial Conference. Because this 6 Court requires a filing that is broader and more detailed than that proposed in a "Form 35 7 Report of Parties’ Planning Meeting," the Order setting the Rule 16 Preliminary Pretrial 8 Conference will also instruct the parties regarding the specific contents the Court expects 9 in their Proposed Case Management Plan. 10 IT IS FURTHER ORDERED that full compliance with Rule 26(f) is expected 11 prior to the date of the Rule 16 Pretrial Conference. 12 IT IS FURTHER ORDERED that to satisfy the requirements of Federal Rule of 13 Civil Procedure 26(a) the parties shall file with the Clerk of the Court a Notice of Initial 14 Disclosure; copies of the actual disclosures shall therefore not be filed. 15 IT IS FURTHER ORDERED that full compliance with Federal Rule of Civil 16 Procedure 7.1 (filing of a Corporate Disclosure Statement) is required by plaintiff(s) and 17 defendant(s), if applicable. A Corporate Disclosure Statement form is available under 18 Operations and Filings, Forms on the district court website at www.azd.uscourts.gov. 19 THE PARTIES ARE CAUTIONED that it is the practice of this Court to not 20 extend the Dispositive Motion Deadline beyond the two-year anniversary of the case 21 being filed in or removed to Federal Court, nor to allow the Discovery Cut-Off to 22 extend beyond 30 days before the Dispositive Motion Deadline. Accordingly, delays 23 in effectuating service of process, delays in seeking a Rule 16 Scheduling Conference, 24 the filing of or pendency of motions, settlement discussions or mediation, etc., will not be 25 considered as justification to exceed the above-referenced two-year deadline. (Because 26 of these deadlines, the parties may jointly request this Court hold a Rule 16 Scheduling 27 Conference while a motion to dismiss is pending.) Furthermore, it is the practice of this 28 Court to wait until the Final Pretrial Conference to set the trial date. For this reason the-2-Case 2:17-cv-00727-JAT Document 20 Filed 06/15/17 Page 3 of 3 1 Court will set deadlines at the Rule 16 Scheduling Conference for filing motions to 2 amend the pleadings. The parties are admonished that "there is no trial date set" will not 3 be an excuse for late motions to amend the pleadings, failing to complete discovery, or 4 other requests for extensions of deadlines. 5 THE PARTIES ARE FURTHER CAUTIONED that, pursuant to Local Rule of 6 Civil Procedure 7.2(i), their failure to serve and file the required responsive memorandum 7 to a motion "may be deemed a consent to the... granting of the motion and the 8 Court may dispose of the motion summarily." 9 IT IS FURTHER ORDERED that Plaintiff shall serve Defendant(s) with a copy 10 of this Order. 11 Dated this 15th day of June, 2017. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28-3-

STIPULATION Stipulated Protective Order by Ashton D Asensio, Timothy A Cole, Macon Bryce Edmonson, Harold S Edwards, Paul J Lapadat, Terry McDaniel, David L Meyers, Itzhak Reichman, Steve Weinberger.

Case 2:17-cv-00727-JAT Document 21 Filed 06/21/17 Page 1 of 15 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF ARIZONA 11 ROBERT HUTTON, Derivatively on CASE NO.: 2:17-cv-00727 Behalf of INVENTURE FOODS, INC., 12 Plaintiff, 13 STIPULATED PROTECTIVE ORDER v. 14 TERRY MCDANIEL, STEVE 15 WEINBERGER, TIMOTHY A. COLE, (Hon. Judge James A. Teilborg) ASHTON D. ASENSIO, MACON 16 BRYCE EDMONSON, PAUL J. LAPADAT, HAROLD S. EDWARDS, 17 DAVID L. MEYERS, and ITZHAK REICHMAN, 18 Defendants. 19-and-20 INVENTURE FOODS, INC., a 21 Delaware corporation, 22 Nominal Defendant. 23 Plaintiff Robert Hutton together with Nominal Defendant Inventure Foods, Inc. 24 ("Inventure") and Defendants Terry McDaniel, Steve Weinberger, Timothy A. Cole, 25 Ashton D. Asensio, Macon Bryce Edmonson, Paul J. Lapadat, Harold S. Edwards, David 26 L. Meyers, and Itzhak Reichman (collectively, the "Parties"), having stipulated to the 27 entry of a protective order, and good cause appearing therefore, 28 DLA P IPER LLP (US) PHOE NI X Case 2:17-cv-00727-JAT Document 21 Filed 06/21/17 Page 2 of 15 1 IT IS ORDERED: That this Protective Order is entered as to each Party to this 2 Action, and anyone else who may subsequently subscribe to this Protective Order (by 3 execution of the CONFIDENTIALITY UNDERTAKING annexed hereto as Appendix 1). 4 IT IS FURTHER ORDERED THAT: 5 A. This Stipulated Protective Order shall govern the use of all information or 6 documents revealed or produced during the course of discovery in these proceedings by 7 any party or third party and/or that were produced by Inventure pursuant to requests 8 submitted pursuant to Title 8, Section 220 of the Delaware General Corporation Law 9 Code ("Section 220), whether in response to a document request, interrogatory, 10 deposition, subpoena or otherwise (all such materials are collectively referred to 11 hereinafter as "Discovery Materials"), including any information or documents produced 12 in this action prior to the entry of this Order. This Stipulated Protective Order is binding 13 upon the parties to this action and their respective attorneys and agents. 14 B. The following procedures shall be used in this Action for the protection of 15 the parties and third parties against the improper disclosure or use of confidential 16 information produced in discovery and/or that was produced to Plaintiff by Inventure 17 pursuant to Section 220. 18 I. DEFINITIONS. 19 (a) The "Action" shall mean and refer to this civil action, Hutton Derivative 20 Action, Civil Action No. 2:17-cv-00727 in the United States District Court for the District 21 of Arizona. 22 (b) "CONFIDENTIAL" information shall include all Discovery Materials 23 revealed, produced, or disclosed during the course of this Action that are non-public 24 material not generally available, including material of a competitively or commercially 25 sensitive, proprietary, financial, or trade secret nature, or that involves or implicates 26 privacy interests of persons or entities, not included in the definition of ATTORNEYS’ 27 EYES ONLY stated below. Specific categories of "CONFIDENTIAL" information 28 include, but are not limited to: the terms of non-public arrangements and agreements with DLA P IPER LLP (US) PHOE NI X-2-Case 2:17-cv-00727-JAT Document 21 Filed 06/21/17 Page 3 of 15 1 third parties; non-public financial information or data; research and development materials 2 concerning released and/or unreleased products or services; current or future business 3 plans; forecasts and strategies; trade secrets; unreleased product designs and 4 configurations; and information regarding current discussions with third parties 5 concerning potential joint ventures or other strategic collaborations. 6 (c) "ATTORNEYS’ EYES ONLY" information shall include only those 7 Discovery Materials revealed, produced, or disclosed during the course of this Action that 8 contain highly sensitive, proprietary information that a Party in good faith believes is 9 entitled to heightened protection and cannot be disclosed to a competitor or otherwise 10 without incurring serious economic or competitive injury. Specific categories of 11 "ATTORNEYS’ EYES ONLY" information include, but are not limited to: (i) financial 12 information such as margins, revenues, costs, etc.; (ii) information regarding future 13 products or services, including research and development information; (iii) information 14 regarding present and future business and marketing strategies; (iv); names or other 15 information tending to reveal the identities of a party's suppliers, distributors, or strategic 16 partners; (v) confidential third party agreements; (vi) customer lists and documents that 17 reveal a customer’s identity, or that consist of or disclose non-public personal information 18 about the parties’ customers, including but not limited to, credit history, Social Security 19 numbers, or the like; and (vii) any protectable, and actually protected, trade secrets as 20 defined by applicable state law. 21 (d) "Party" or "parties" shall mean and refer to any party in the Action, 22 including a party’s officers, directors, employees, consultants, retained experts, inside and 23 outside counsel, as well as support staff. 24 (e) "Producing Party" shall mean any party or third party producing or 25 providing Discovery Materials that are designated CONFIDENTIAL or ATTORNEYS’ 26 EYES ONLY information under the terms of this Order. 27 28 DLA P IPER LLP (US) PHOE NI X-3-Case 2:17-cv-00727-JAT Document 21 Filed 06/21/17 Page 4 of 15 1 (f) "Receiving Party" shall mean any party receiving Discovery Materials that 2 are designated CONFIDENTIAL or ATTORNEYS’ EYES ONLY information under the 3 terms of this Order. 4 II. DESIGNATION OF DISCOVERY MATERIALS. 5 (a) Any Discovery Materials deemed CONFIDENTIAL or ATTORNEYS’ 6 EYES ONLY by the Producing Party shall be clearly marked by the Producing Party as 7 CONFIDENTIAL or ATTORNEYS’ EYES ONLY. 8 (b) If only a portion or portions of the Discovery Materials qualifies for 9 protection under the standards set forth herein, the Producing Party must, to the extent 10 possible, clearly identify the protected portion(s) (e.g., by making appropriate markings in 11 the margins) and must specify, for each portion, the level of protection being asserted 12 (either "CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY"). 13 (c) Marking material as set forth in subsections (a) and (b) above shall 14 constitute certification by the Producing Party that it reasonably believes good cause 15 exists to so designate the material pursuant to the standards set forth in this Order. 16 III. DESIGNATION OF TESTIMONY. 17 (a) If CONFIDENTIAL or ATTORNEYS’ EYES ONLY information is 18 marked as a deposition exhibit, the exhibit shall retain its designated status. 19 (b) All deposition transcripts and the exhibits thereto shall be treated as 20 confidential until thirty (30) days after receipt of the final certified transcript by the parties 21 unless the parties expressly agree otherwise, subject to the right of the deponent to review, 22 correct, and sign the deposition transcript. Within thirty (30) days after receipt of the final 23 certified transcript, any party may designate portions of a deposition transcript as 24 CONFIDENTIAL or ATTORNEYS’ EYES ONLY. The designation shall be 25 accomplished by a letter to all other parties and the court reporter listing the pages, lines, 26 and exhibits constituting CONFIDENTIAL or ATTORNEYS’ EYES ONLY information. 27 If portions of the testimony had previously been designated as CONFIDENTIAL or 28 ATTORNEYS’ EYES ONLY during the deposition, the party is not required to re-DLA P IPER LLP (US) PHOE NI X-4-Case 2:17-cv-00727-JAT Document 21 Filed 06/21/17 Page 5 of 15 1 designate those portions of the transcript during the thirty (30) day period unless the party 2 wishes to change the designation. 3 IV. ACCESS TO AND USE OF CONFIDENTIAL AND ATTORNEYS’ EYES 4 ONLY INFORMATION. 5 (a) Discovery Materials designated as CONFIDENTIAL shall not be disclosed, 6 except by the prior written consent of the Producing Party or pursuant to further order of 7 this Court, to any person, corporation, or entity other than: 8 (i) Counsel of record for the parties to the Action, including attorneys, 9 paraprofessionals, employees of such law firms, and contractors providing services 10 to such attorneys, such as copying services; 11 (ii) In-house attorneys for any party, as well as paralegals, secretaries, and 12 clerical staff working with such attorneys; 13 (iii) The Court and its personnel; 14 (iv) The parties to the Action; 15 (v) Any employee or representative of the Producing Party; 16 (vi) Deposition, trial or other potential witnesses in the Action and their counsel; 17 and 18 (vii) Independent experts and consultants (and their employees and support staff) 19 retained by the attorneys of record for any party for purposes of assisting in this 20 Action. 21 (viii) Prior to disclosure to an expert or consultant, counsel for the party 22 disclosing shall furnish a copy of this Stipulated Protective Order to such persons 23 and shall obtain the written agreement of such persons to be bound by the terms of 24 this Stipulated Protective Order, in the form of the Undertaking attached hereto as 25 Appendix A. 26 (b) Discovery Materials designated as ATTORNEYS’ EYES ONLY shall not 27 be disclosed, except by the prior written consent of the Producing Party or pursuant to 28 further order of this Court, to any person, corporation, or entity other than: DLA P IPER LLP (US) PHOE NI X-5-Case 2:17-cv-00727-JAT Document 21 Filed 06/21/17 Page 6 of 15 1 (i) Counsel of record for the respective parties to this litigation, including 2 attorneys, paraprofessionals, and employees of such law firms; 3 (ii) In-house attorneys for any party, as well as paralegals, secretaries, and 4 clerical staff working with such attorneys; 5 (iii) The Court and its personnel, but only subject to Section VI below; 6 (iv) Any employee or representative of the Producing Party with knowledge of 7 the ATTORNEYS’ EYES ONLY Discovery Materials; and 8 (v) Independent experts and consultants (and their employees and support staff) 9 retained by the attorneys of record for any party for purposes of assisting in this 10 Action who have signed the Undertaking attached hereto as Appendix A, and who 11 certify that they have procedures and policies in place that comply with Section 12 VIII below. 13 V. SUBMISSION TO THE COURT. 14 (a) Discovery Materials designated as ATTORNEYS’ EYES ONLY may be 15 cited in discovery requests and responses in this Action, and may be used in depositions 16 and marked as deposition exhibits in this Action, provided that the information is 17 maintained as required by this Order. 18 (b) CONFIDENTIAL information designated under the standards set forth in 19 this Order may be cited in discovery requests and responses in the Action, and may be 20 used in depositions and marked as deposition exhibits in this Action, provided that the 21 CONFIDENTIAL information is maintained as required by this Order. 22 (c) This Order authorizes the filing of documents under seal in accordance with 23 Local Rules of Procedure. If Discovery Materials designated CONFIDENTIAL or 24 ATTORNEYS’ EYES ONLY pursuant to this Order are used as an exhibit to any 25 document filed with the Court or used at any deposition, hearing or trial, or if 26 CONFIDENTIAL or ATTORNEYS’ EYES ONLY information is disclosed in any 27 document filed with the Court or in the transcript of any deposition, hearing or trial, the 28 document or transcript attaching or referring to the CONFIDENTIAL or ATTORNEYS’ DLA P IPER LLP (US) PHOE NI X-6-Case 2:17-cv-00727-JAT Document 21 Filed 06/21/17 Page 7 of 15 1 EYES ONLY information, along with the Discovery Materials designated 2 CONFIDENTIAL or ATTORNEYS’ EYES ONLY, shall be filed with the clerk under 3 seal. Materials presented as sealed documents shall be in an envelope which shows the 4 citation of the statute or rule or the filing date of the court order authorizing the sealing, 5 and the name, address and telephone number of the person filing the documents. If the 6 sealing of the document purports to be authorized by Court order, the person filing the 7 documents shall include a copy of the order in the envelope. 8 Any such filing shall be clearly marked as containing materials filed under seal, 9 bearing a statement substantially similar to the following: 10 Hutton v. McDaniel, et al., Case No. 2:17-cv-00727 11 USDC for the District of Arizona. 12 Judge: The Honorable Judge James A. Teilborg 13--This envelope contains documents which are filed in this case by 14 [Defendant or Plaintiff] pursuant to the Stipulated 15 Protective Order entered in this action on [Date] (a copy of which is 16 submitted herein), and is to be filed and maintained under seal, and is not to 17 be opened or the contents thereof to be displayed or revealed except by 18 Order of the Court. 19--SEALED and CONFIDENTIAL: 20 _______________________________ 21 [Signature of Filing Attorney] 22 [Address and Telephone Number] 23 (d) Any Discovery Material designated CONFIDENTIAL or ATTORNEYS’ 24 EYES ONLY that is filed with the Court shall be filed under seal in the manner described 25 above. 26 (e) At trial or in any open hearing, the Producing Party may request that 27 exhibits containing CONFIDENTIAL or ATTORNEYS’ EYES ONLY information be 28 submitted to the Court or otherwise maintained for purposes of the trial or hearing so as to DLA P IPER LLP (US) PHOE NI X-7-Case 2:17-cv-00727-JAT Document 21 Filed 06/21/17 Page 8 of 15 1 maximize safeguards against disclosure of the CONFIDENTIAL or ATTORNEYS’ 2 EYES ONLY information. 3 VI. OBJECTION TO DESIGNATION. 4 Any party, or member of the general public, may challenge the designation of any 5 Discovery Material that is marked as CONFIDENTIAL or ATTORNEYS’ EYES ONLY. 6 If a party makes a challenge, then the parties shall confer in good faith to resolve any such 7 disagreements. If the meet and confer conference does not resolve the objections, then 8 within ten (10) days of reaching an impasse, the designating party may apply to the Court 9 for a ruling on the disputed issue. The non-designating party shall continue to treat the 10 Discovery Material that is the subject of the challenged designation as it has been 11 designated pending a ruling by the Court. 12 VII. DISCLOSURE. 13 (a) Inadvertent Disclosure. If, through inadvertence, the Producing Party 14 provides any Discovery Materials containing CONFIDENTIAL or ATTORNEYS’ EYES 15 ONLY information during the course of the Action without designating the Discovery 16 Materials, the Producing Party may subsequently inform the Receiving Party in writing of 17 the CONFIDENTIAL or ATTORNEYS’ EYES ONLY nature of the Discovery Materials 18 and provide the Receiving Party with appropriately designated Discovery Materials. The 19 Receiving Party shall thereafter treat the disclosed material in accordance with this Order 20 to the extent that the Receiving Party has not already disclosed the material. 21 The inadvertent or unintentional disclosure of any Discovery Materials (including 22 but not limited to any documents or information subject to any evidentiary or legal 23 privilege or immunity or other protection), and regardless of whether the information or 24 materials received any designation at the time of disclosure, shall not be deemed a waiver 25 in whole or in part of any claim by that the materials or information are unrelated to this 26 litigation, irrelevant, privileged, or otherwise protected from production or disclosure, 27 either as to the specific information disclosed, as to any other information disclosed, or as 28 to any other information relating thereto on the same or related subject matter, provided DLA P IPER LLP (US) PHOE NI X-8-Case 2:17-cv-00727-JAT Document 21 Filed 06/21/17 Page 9 of 15 1 that the producing party must claim the privilege or immunity and/or inadvertent 2 disclosure promptly following discovery of the disclosure. The parties agree that any 3 materials or information inadvertently disclosed shall be promptly returned and/or 4 destroyed by the receiving party (and any third party that may have received such 5 materials or information) upon notice of such inadvertent disclosure. 6 The intentional disclosure by any of the parties of certain attorney/client or 7 accountant/client Discovery Materials shall be construed as a limited waiver specific 8 only to those specific documents, pages, or portions thereof, which have been voluntarily 9 and intentionally disclosed. Any such voluntary and intentional disclosure of privileged 10 Discovery Materials shall not constitute a general waiver either as to the document, the 11 subject of the document, or any other documents or information, in whole or in part. 12 If the Receiving Party disclosed undesignated CONFIDENTIAL or ATTORNEYS’ 13 EYES ONLY information to a party or person retained by the party, the Receiving Party 14 shall promptly retrieve and re-designate all CONFIDENTIAL or ATTORNEYS’ EYES 15 ONLY information and have the party or person retained by the party execute the 16 Undertaking attached hereto as Appendix A. If the Receiving Party disclosed 17 undesignated CONFIDENTIAL or ATTORNEYS’ EYES ONLY information to a third 18 party not entitled to receive such CONFIDENTIAL or ATTORNEYS’ EYES ONLY 19 information or access thereto under the terms of this Order, the Receiving Party shall 20 request that the third party return the CONFIDENTIAL or ATTORNEYS’ EYES ONLY 21 information and execute the Undertaking attached hereto as Appendix A. 22 If the third party returns the CONFIDENTIAL or ATTORNEYS’ EYES ONLY 23 information and executes the Undertaking, the Receiving Party shall inform the Producing 24 Party of the same. If the third party fails to either return the CONFIDENTIAL or 25 ATTORNEYS’ EYES ONLY information or to execute the Undertaking, the Receiving 26 Party shall inform the Producing Party of the same, and shall provide the Producing Party 27 with the identity of the third party and the CONFIDENTIAL or ATTORNEYS’ EYES 28 ONLY information disclosed. The Producing Party will thereafter bear the burden of DLA P IPER LLP (US) PHOE NI X-9-Case 2:17-cv-00727-JAT Document 21 Filed 06/21/17 Page 10 of 15 1 taking any further action vis-à-vis the third party regarding the CONFIDENTIAL or 2 ATTORNEYS’ EYES ONLY information. Disclosure of such undesignated 3 CONFIDENTIAL or ATTORNEYS’ EYES ONLY information prior to its designation 4 shall not be deemed a violation of this Order. 5 (c) Required Disclosure. If CONFIDENTIAL or ATTORNEYS’ EYES ONLY 6 information in the possession, custody or control of a Receiving Party is sought by a 7 person or entity not a party to this action by subpoena, request for production of 8 documents, interrogatory, or any other form of discovery request or compulsive process, 9 including any form of discovery request or compulsive process of any court, 10 administrative or legislative body, or any other person or tribunal purporting to have 11 authority to seek such information by compulsory process or discovery request, including 12 private parties, the Receiving Party to whom the process or discovery request is directed 13 shall: (i) promptly give written notice of such process or discovery request, together with 14 a copy thereof, to counsel for the Producing Party, and (ii) permit the Producing Party an 15 opportunity to obtain appropriate judicial relief before production or disclosure. The 16 Producing Party seeking to protect CONFIDENTIAL or ATTORNEYS’ EYES ONLY 17 information from disclosure shall bear the burden and expense of obtaining judicial relief. 18 (d) Unauthorized Disclosure. If CONFIDENTIAL or ATTORNEYS’ EYES 19 ONLY information is disclosed to any person or entity other than in the manner 20 authorized by this Order, the person responsible for the disclosure shall promptly: (1) 21 notify in writing the Producing Party of the disclosure; (2) use its best efforts to retrieve 22 all copies of the CONFIDENTIAL or ATTORNEYS’ EYES ONLY information; (3) 23 request that the person(s) or entity(ies) to whom the disclosure is made execute the 24 Undertaking attached hereto in Appendix A; and (4) without prejudice to other rights and 25 remedies of any party, shall take reasonable steps (if available) to prevent further 26 disclosure. 27 VIII. LIMITATION ON USE AND SURVIVAL. 28 DLA P IPER LLP (US) PHOE NI X-10-Case 2:17-cv-00727-JAT Document 21 Filed 06/21/17 Page 11 of 15 1 (a) Any CONFIDENTIAL or ATTORNEYS’ EYES ONLY documents or 2 information made available during the course of the Action shall be used solely for the 3 purposes of the Action and shall not be disclosed or used by the recipients for any 4 business, commercial, or competitive purpose. 5 (b) All copies, reproductions, summarizations, and abstractions of 6 CONFIDENTIAL or ATTORNEYS’ EYES ONLY information shall be subject to the 7 terms of this Order and labeled in the same manner as the designated material on which 8 they are based. 9 (c) This Order shall remain in full force and effect until modified, superseded, or 10 terminated by the Court or by agreement of the parties with the approval of the Court. 11 The Court retains jurisdiction over the parties respecting any dispute regarding the 12 improper use of information disclosed under protection of this Order. 13 IX. RETURN OR DESTRUCTION. 14 (a) No later than sixty (60) days following conclusion of these proceedings, all 15 CONFIDENTIAL or Attorneys’ EYES ONLY information and all copies thereof, shall be 16 returned to the person that produced the CONFIDENTIAL or Attorneys’ EYES ONLY 17 information, provided, however, that counsel may retain their attorney work product and 18 all filed documents or pleadings, even though they contain CONFIDENTIAL or 19 Attorneys’ EYES ONLY information. Any such retained work product shall remain 20 subject to the terms of this Order. In the alternative, the parties may agree to have any 21 CONFIDENTIAL and Attorneys’ EYES ONLY information destroyed. 22 (b) No later than sixty (60) days following conclusion of these proceedings, all 23 ATTORNEYS’ EYES ONLY information and all copies thereof or references thereto, 24 shall be destroyed. 25 (c) As used in this Section, "conclusion of these proceedings" refers to the 26 exhaustion of available appeals, as provided by applicable law or the settlement of this 27 action. 28 DLA P IPER LLP (US) PHOE NI X-11-Case 2:17-cv-00727-JAT Document 21 Filed 06/21/17 Page 12 of 15 1 X. ADDITIONAL PARTIES. 2 (a) In the event that additional persons or entities become parties to this Action, 3 they shall not have access to CONFIDENTIAL or ATTORNEYS’ EYES ONLY 4 information until this Order has been amended, with the Court’s approval, to govern such 5 additional persons or entities. 6 XI. PROTECTION OF THIRD PARTIES. 7 (a) A person or entity that is not a Party to this Action may take advantage of 8 the protections afforded to CONFIDENTIAL and ATTORNEYS’ EYES ONLY 9 information provided by this Order, and such person or entity shall be entitled to all rights 10 and protections afforded to the Parties under this Order. 11 12 DONE IN OPEN COURT THIS ____ DAY OF _____________, 2017. 13 14 Honorable Judge James A. Teilborg 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA P IPER LLP (US) PHOE NI X-12-Case 2:17-cv-00727-JAT Document 21 Filed 06/21/17 Page 13 of 15 1 APPENDIX A CONFIDENTIAL UNDERTAKING 2 3 I acknowledge that I, _______________________________________ (Name), of 4 _____________________________________________________(Place and Position of 5 Employment), am about to receive CONFIDENTIAL or ATTORNEYS’ EYES ONLY 6 information. I certify that I understand that such CONFIDENTIAL or ATTORNEYS’ 7 EYES ONLY information will be provided to me pursuant to the terms and restrictions of 8 the STIPULATED PROTECTIVE ORDER. I have received a copy of and have read and 9 understand the STIPULATED PROTECTIVE ORDER and that I agree to comply with 10 and to be bound by all of its applicable terms. I also understand that documents and/or 11 information having the CONFIDENTIAL or ATTORNEYS’ EYES ONLY designation, 12 and all copies, summaries, notes and other records that may be made regarding such 13 documents and/or information, shall be disclosed to no one other than persons qualified 14 under the STIPULATED PROTECTIVE ORDER to have access to such information. I 15 further understand that the CONFIDENTIAL or ATTORNEYS’ EYES ONLY 16 information provided to me shall be returned to counsel who provided the information to 17 me, in accordance with the STIPULATED PROTECTIVE ORDER. 18 19 DATED:. 20 21 22 Signature 23 24 25 26 27 28 DLA P IPER LLP (US) PHOE NI X-13-Case 2:17-cv-00727-JAT Document 21 Filed 06/21/17 Page 14 of 15 1 RESPECTFULLY SUBMITTED this 21st day of June, 2017. 2 SCHNEIDER WALLACE COTTRELL DLA PIPER LLP (US) 3 KONECKY WOTKYNS LLP 4 By: s/Laura Sixkiller By: s/Shane Sanders (with permission) 5 Michael McKay, Bar No. 023354 Mark Nadeau, Bar No. 019561 6 mcckay@schneiderwallace.com mark.nadeau@dlapiper.com 8501 North Scottsdale Road, Suite 270 Laura Sixkiller, Bar No. 022014 7 Scottsdale, AZ 85253 laura.sixkiller@dlapiper.com Telephone: 480.428.0144 Cole J. Schlabach, Bar No. 026364 8 Facsimile: 866.505.8036 cole.schlabach@dlapiper.com 2525 East Camelback Road, Suite 1000 9 Brian J. Robbins Phoenix, AZ 85016-4232 Felipe J. Arroyo Telephone: 480.606.5100 10 Shane P. Sanders Facsimile: 480.606.5101 ROBBINS ARROYO LLP 11 600 B Street, Suite 1900 Attorneys for Defendants San Diego, CA 92101 12 Telephone: 619.525.3990 Facsimile: 619.525.3991 13 Attorneys for Plaintiff 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA P IPER LLP (US) PHOE NI X-14-Case 2:17-cv-00727-JAT Document 21 Filed 06/21/17 Page 15 of 15 1 CERTIFICATE OF SERVICE 2 I hereby certify that on June 21, 2017, a true and correct copy of this document was 3 filed electronically with the Court. Notice of this filing will be sent by operation of the 4 Court’s electronic filing system to all parties indicated on the electronic filing receipt. 5 Parties may access this filing through the Court’s system. A copy of the same will also be 6 served by email on: 7 Michael McKay, Bar No. 023354 8 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 9 8501 North Scottsdale Road, Suite 270 10 Scottsdale, AZ 85253 Telephone: 480.428.0144 11 Facsimile: 866.505.8036 mcckay@schneiderwallace.com 12 13 Brian J. Robbins 14 Felipe J. Arroyo 15 Shane P. Sanders ROBBINS ARROYO LLP 16 600 B Street, Suite 1900 San Diego, CA 92101 17 Telephone: 619.525.3990 18 Facsimile: 619.525.3991 brobbins@robbinsarroyo.com 19 farroyo@robbinsarroyo.com 20 ssanders@robbinsarroyo.com 21 Attorneys for Plaintiff 22 23 s/Pat Kelly 24 25 26 27 28 DLA P IPER LLP (US) PHOE NI X-15-

ORDER: IT IS ORDERED that the stipulated protective order (Doc. [21]) is denied, without prejudice [see attached Order for details]. Signed by Senior Judge James A Teilborg on 6/22/17.

Case 2:17-cv-00727-JAT Document 22 Filed 06/22/17 Page 1 of 3 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Hutton, No. CV-17-00727-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 Terry McDaniel, et al., 13 Defendants. 14 15 The parties have filed a "stipulated protective order." Doc. 21. The Court will 16 deny the stipulation without prejudice. 17 First, the Court finds that the parties have failed to show any cause for the need for 18 a protective order in this case. Specifically, global protective orders are not appropriate. 19 See AGA Shareholders, LLC v. CSK Auto, Inc., 2007 WL 4225450, at *1 (D. Ariz. Nov. 20 28, 2007). Rule 26(c) requires a party seeking a protective order to show good cause for 21 issuance of such an order. Fed. R. Civ. P. 26(c)(1). "For good cause to exist under Rule 22 26(c),'the party seeking protection bears the burden of showing specific prejudice or 23 harm will result if no protective order is granted.’" AGA Shareholders, 2007 WL 24 4225450, at *1 (emphasis added) (quoting Phillips v. G.M. Corp., 307 F.3d 1206, 1210-25 11 (9th Cir. 2002)). The party seeking protection "must make a'particularized 26 showing of good cause with respect to [each] individual document.’" Id. (emphasis 27 added) (quoting San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1102 (9th 28 Cir. 1999)). Case 2:17-cv-00727-JAT Document 22 Filed 06/22/17 Page 2 of 3 1 Thus, "[t]he burden is on the party to requesting a protective order to demonstrate 2 that (1) the material in question is a trade secret or other confidential information within 3 the scope of Rule 26(c), and (2) disclosure would cause an identifiable, significant harm." 4 Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1131 (9th Cir. 2003) (quoting 5 Deford v. Schmid Prods. Co., 120 F.R.D. 648, 653 (D. Md. 1987)). 6 Second, the parties state that they will potentially mark confidential, "all 7 information or documents revealed or produced during the course of discovery in these 8 proceedings by any party or third party and/or that were produced by Inventure pursuant 9 to requests submitted pursuant to Title 8, Section 220 of the Delaware General 10 Corporation Law Code ("Section 220["]), whether in response to a document request, 11 interrogatory, deposition, subpoena or otherwise (all such materials are collectively 12 referred to hereinafter as "Discovery Materials"), including any information or 13 documents produced in this action prior to the entry of this Order." Doc. 21 at 2. This 14 request is denied. 15 The Court will not enter into a retroactive protective order that governs this 16 litigation. In other words, to the extent documents were produced prior to this litigation, 17 they are beyond the scope of this Court’s powers to govern discovery (which has not yet 18 begun) in this litigation. Additionally, any protective order in this litigation will be 19 entered into and governed by the Federal Rules of Civil Procedure and the law in the 20 Ninth Circuit. The Court will not look to Delaware state law for purposes of interpreting 21 the scope of a protective order. 22 Third, consistent with Ninth Circuit law, the Court will not give advance 23 permission to file under seal. See Kamakana v. City and County of Honolulu, 447 F.3d 24 1172, 1179-80 (9th Cir. 2006). 25///26///27///28///-2-Case 2:17-cv-00727-JAT Document 22 Filed 06/22/17 Page 3 of 3 1 Accordingly, 2 IT IS ORDERED that the stipulated protective order (Doc. 21) is denied, without 3 prejudice. 4 Dated this 22nd day of June, 2017. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28-3-

STIPULATION Stipulated Protective Order by Ashton D Asensio, Timothy A Cole, Macon Bryce Edmonson, Harold S Edwards, Inventure Foods Incorporated, Paul J Lapadat, Terry McDaniel, David L Meyers, Itzhak Reichman, Steve Weinberger.

Case 2:17-cv-00727-JAT Document 23 Filed 07/05/17 Page 1 of 15 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF ARIZONA 11 ROBERT HUTTON, Derivatively on CASE NO.: 2:17-cv-00727 Behalf of INVENTURE FOODS, INC., 12 Plaintiff, 13 STIPULATED PROTECTIVE ORDER v. 14 TERRY MCDANIEL, STEVE 15 WEINBERGER, TIMOTHY A. COLE, (Hon. Judge James A. Teilborg) ASHTON D. ASENSIO, MACON 16 BRYCE EDMONSON, PAUL J. LAPADAT, HAROLD S. EDWARDS, 17 DAVID L. MEYERS, and ITZHAK REICHMAN, 18 Defendants. 19-and-20 INVENTURE FOODS, INC., a 21 Delaware corporation, 22 Nominal Defendant. 23 Plaintiff Robert Hutton together with Nominal Defendant Inventure Foods, Inc. 24 ("Inventure") and Defendants Terry McDaniel, Steve Weinberger, Timothy A. Cole, 25 Ashton D. Asensio, Macon Bryce Edmonson, Paul J. Lapadat, Harold S. Edwards, David 26 L. Meyers, and Itzhak Reichman (collectively, the "Parties"), hereby request entry of this 27 Stipulated Protective Order. The Parties seek entry of this Protective Order to permit 28 either party to designate certain limited documents containing trade secret and other DLA P IPER LLP (US) PHOE NI X Case 2:17-cv-00727-JAT Document 23 Filed 07/05/17 Page 2 of 15 1 confidential information, the disclosure of which could cause an identifiable, significant 2 harm to the Company. 3 The Parties agree that such provision is necessary in this case because there exist 4 certain documents that may be relevant to the claims and defenses in this matter, which 5 include non-public documents that contain sensitive trade secret and confidential 6 information—harmful to the Company if disclosed. The Parties may make such 7 designations in good faith and on a document by document basis, which may be 8 challenged by the Court or either Party. Upon any challenge, the Party designating the 9 document in question must make a particularized showing of good cause with respect to 10 each individual document designated as containing trade secret or confidential 11 information that could be harmful if disclosed. 12 The Court having reviewed the Parties Stipulated Protective Order (as revised) and 13 good cause appearing therefore, 14 IT IS ORDERED: That this Protective Order is entered as to each Party to this 15 Action, and anyone else who may subsequently subscribe to this Protective Order (by 16 execution of the CONFIDENTIALITY UNDERTAKING annexed hereto as Appendix 1). 17 IT IS FURTHER ORDERED THAT: 18 A. This Stipulated Protective Order shall govern the use of all information or 19 documents revealed or produced during the course of discovery in these proceedings by 20 any party or third party, whether in response to a document request, interrogatory, 21 deposition, subpoena or otherwise (all such materials are collectively referred to 22 hereinafter as "Discovery Materials"), including any information or documents produced 23 in this action prior to the entry of this Order. This Stipulated Protective Order is binding 24 upon the parties to this action and their respective attorneys and agents. 25 B. The following procedures shall be used in this Action for the protection of 26 the Parties and third parties against the improper disclosure or use of confidential 27 information produced in discovery and/or in this case. 28 DLA P IPER LLP (US) PHOE NI X-2-Case 2:17-cv-00727-JAT Document 23 Filed 07/05/17 Page 3 of 15 1 I. DEFINITIONS. 2 (a) The "Action" shall mean and refer to this civil action, Hutton Derivative 3 Action, Civil Action No. 2:17-cv-00727 in the United States District Court for the District 4 of Arizona. 5 (b) "CONFIDENTIAL" information shall include all Discovery Materials 6 revealed, produced, or disclosed during the course of this Action that are non-public 7 material not generally available, including material of a competitively or commercially 8 sensitive, proprietary, financial, or trade secret nature, or that involves or implicates 9 privacy interests of persons or entities, not included in the definition of ATTORNEYS’ 10 EYES ONLY stated below. Specific categories of "CONFIDENTIAL" information 11 include, but are not limited to: the terms of non-public arrangements and agreements with 12 third parties; non-public financial information or data; research and development materials 13 concerning released and/or unreleased products or services; current or future business 14 plans; forecasts and strategies; trade secrets; unreleased product designs and 15 configurations; and information regarding current discussions with third parties 16 concerning potential joint ventures or other strategic collaborations. 17 (c) "ATTORNEYS’ EYES ONLY" information shall include only those 18 Discovery Materials revealed, produced, or disclosed during the course of this Action that 19 contain highly sensitive, proprietary information that a Party in good faith believes is 20 entitled to heightened protection and cannot be disclosed to a competitor or otherwise 21 without incurring serious economic or competitive injury. Specific categories of 22 "ATTORNEYS’ EYES ONLY" information include, but are not limited to: (i) financial 23 information such as margins, revenues, costs, etc.; (ii) information regarding future 24 products or services, including research and development information; (iii) information 25 regarding present and future business and marketing strategies; (iv); names or other 26 information tending to reveal the identities of a party's suppliers, distributors, or strategic 27 partners; (v) confidential third party agreements; (vi) customer lists and documents that 28 reveal a customer’s identity, or that consist of or disclose non-public personal information DLA P IPER LLP (US) PHOE NI X-3-Case 2:17-cv-00727-JAT Document 23 Filed 07/05/17 Page 4 of 15 1 about the parties’ customers, including but not limited to, credit history, Social Security 2 numbers, or the like; and (vii) any protectable, and actually protected, trade secrets as 3 defined by applicable state law. 4 (d) "Party" or "parties" shall mean and refer to any party in the Action, 5 including a party’s officers, directors, employees, consultants, retained experts, inside and 6 outside counsel, as well as support staff. 7 (e) "Producing Party" shall mean any party or third party producing or 8 providing Discovery Materials that are designated CONFIDENTIAL or ATTORNEYS’ 9 EYES ONLY information under the terms of this Order. 10 (f) "Receiving Party" shall mean any party receiving Discovery Materials that 11 are designated CONFIDENTIAL or ATTORNEYS’ EYES ONLY information under the 12 terms of this Order. 13 II. DESIGNATION OF DISCOVERY MATERIALS. 14 (a) Any Discovery Materials deemed CONFIDENTIAL or ATTORNEYS’ 15 EYES ONLY by the Producing Party shall be clearly marked by the Producing Party as 16 CONFIDENTIAL or ATTORNEYS’ EYES ONLY. 17 (b) If only a portion or portions of the Discovery Materials qualifies for 18 protection under the standards set forth herein, the Producing Party must, to the extent 19 possible, clearly identify the protected portion(s) (e.g., by making appropriate markings in 20 the margins) and must specify, for each portion, the level of protection being asserted 21 (either "CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY"). 22 (c) Marking material as set forth in subsections (a) and (b) above shall 23 constitute certification by the Producing Party that it reasonably believes good cause 24 exists to so designate the material pursuant to the standards set forth in this Order. 25 III. DESIGNATION OF TESTIMONY. 26 (a) If CONFIDENTIAL or ATTORNEYS’ EYES ONLY information is 27 marked as a deposition exhibit, the exhibit shall retain its designated status. 28 DLA P IPER LLP (US) PHOE NI X-4-Case 2:17-cv-00727-JAT Document 23 Filed 07/05/17 Page 5 of 15 1 (b) All deposition transcripts and the exhibits thereto shall be treated as 2 confidential until thirty (30) days after receipt of the final certified transcript by the parties 3 unless the parties expressly agree otherwise, subject to the right of the deponent to review, 4 correct, and sign the deposition transcript. Within thirty (30) days after receipt of the final 5 certified transcript, any party may designate portions of a deposition transcript as 6 CONFIDENTIAL or ATTORNEYS’ EYES ONLY. The designation shall be 7 accomplished by a letter to all other parties and the court reporter listing the pages, lines, 8 and exhibits constituting CONFIDENTIAL or ATTORNEYS’ EYES ONLY information. 9 If portions of the testimony had previously been designated as CONFIDENTIAL or 10 ATTORNEYS’ EYES ONLY during the deposition, the party is not required to re-11 designate those portions of the transcript during the thirty (30) day period unless the party 12 wishes to change the designation. 13 IV. ACCESS TO AND USE OF CONFIDENTIAL AND ATTORNEYS’ EYES 14 ONLY INFORMATION. 15 (a) Discovery Materials designated as CONFIDENTIAL shall not be disclosed, 16 except by the prior written consent of the Producing Party or pursuant to further order of 17 this Court, to any person, corporation, or entity other than: 18 (i) Counsel of record for the parties to the Action, including attorneys, 19 paraprofessionals, employees of such law firms, and contractors providing services 20 to such attorneys, such as copying services; 21 (ii) In-house attorneys for any party, as well as paralegals, secretaries, and 22 clerical staff working with such attorneys; 23 (iii) The Court and its personnel; 24 (iv) The parties to the Action; 25 (v) Any employee or representative of the Producing Party; 26 (vi) Deposition, trial or other potential witnesses in the Action and their counsel; 27 and 28 DLA P IPER LLP (US) PHOE NI X-5-Case 2:17-cv-00727-JAT Document 23 Filed 07/05/17 Page 6 of 15 1 (vii) Independent experts and consultants (and their employees and support staff) 2 retained by the attorneys of record for any party for purposes of assisting in this 3 Action. 4 (viii) Prior to disclosure to an expert or consultant, counsel for the party 5 disclosing shall furnish a copy of this Stipulated Protective Order to such persons 6 and shall obtain the written agreement of such persons to be bound by the terms of 7 this Stipulated Protective Order, in the form of the Undertaking attached hereto as 8 Appendix A. 9 (b) Discovery Materials designated as ATTORNEYS’ EYES ONLY shall not 10 be disclosed, except by the prior written consent of the Producing Party or pursuant to 11 further order of this Court, to any person, corporation, or entity other than: 12 (i) Counsel of record for the respective parties to this litigation, including 13 attorneys, paraprofessionals, and employees of such law firms; 14 (ii) In-house attorneys for any party, as well as paralegals, secretaries, and 15 clerical staff working with such attorneys; 16 (iii) The Court and its personnel, but only subject to Section VI below; 17 (iv) Any employee or representative of the Producing Party with knowledge of 18 the ATTORNEYS’ EYES ONLY Discovery Materials; and 19 (v) Independent experts and consultants (and their employees and support staff) 20 retained by the attorneys of record for any party for purposes of assisting in this 21 Action who have signed the Undertaking attached hereto as Appendix A, and who 22 certify that they have procedures and policies in place that comply with Section 23 VIII below. 24 V. SUBMISSION TO THE COURT. 25 (a) Discovery Materials designated as ATTORNEYS’ EYES ONLY may be 26 cited in discovery requests and responses in this Action, and may be used in depositions 27 and marked as deposition exhibits in this Action, provided that the information is 28 maintained as required by this Order. DLA P IPER LLP (US) PHOE NI X-6-Case 2:17-cv-00727-JAT Document 23 Filed 07/05/17 Page 7 of 15 1 (b) CONFIDENTIAL information designated under the standards set forth in 2 this Order may be cited in discovery requests and responses in the Action, and may be 3 used in depositions and marked as deposition exhibits in this Action, provided that the 4 CONFIDENTIAL information is maintained as required by this Order. 5 (c) If Discovery Materials designated CONFIDENTIAL or ATTORNEYS’ 6 EYES ONLY pursuant to this Order are used as an exhibit to any document filed with the 7 Court or used at any deposition, hearing or trial, or if CONFIDENTIAL or 8 ATTORNEYS’ EYES ONLY information is disclosed in any document filed with the 9 Court or in the transcript of any deposition, hearing or trial, the document or transcript 10 attaching or referring to the CONFIDENTIAL or ATTORNEYS’ EYES ONLY 11 information, along with the Discovery Materials designated CONFIDENTIAL or 12 ATTORNEYS’ EYES ONLY, shall, if appropriate, be filed with the clerk together with a 13 Motion to Seal. Such Motion to Seal shall set forth the particularized basis for sealing 14 each document so submitted to the Court. Materials submitted to the Court with a Motion 15 to Seal shall be in an envelope which shows the name, address and telephone number of 16 the person filing the documents.. 17 Any such filing containing documents subject to a Motion to Seal shall be clearly 18 marked as containing materials proposed to be filed under seal, bearing a statement 19 substantially similar to the following: 20 Hutton v. McDaniel, et al., Case No. 2:17-cv-00727 21 USDC for the District of Arizona. 22 Judge: The Honorable Judge James A. Teilborg 23--This envelope contains documents which are filed in this case by 24 [Defendant or Plaintiff] together with a Motion to Seal (a copy of which is 25 submitted herein), and is to be filed and maintained under seal, and is not to 26 be opened or the contents thereof to be displayed or revealed except by 27 Order of the Court. 28--SEALED and CONFIDENTIAL: DLA P IPER LLP (US) PHOE NI X-7-Case 2:17-cv-00727-JAT Document 23 Filed 07/05/17 Page 8 of 15 1 _______________________________ 2 [Signature of Filing Attorney] 3 [Address and Telephone Number] 4 (d) Any Discovery Material designated CONFIDENTIAL or ATTORNEYS’ 5 EYES ONLY that is filed with the Court shall, if appropriate, be filed together with a 6 Motion to Seal in the manner described above. 7 (e) At trial or in any open hearing, the Producing Party may request that 8 exhibits containing CONFIDENTIAL or ATTORNEYS’ EYES ONLY information be 9 submitted to the Court or otherwise maintained for purposes of the trial or hearing so as to 10 maximize safeguards against disclosure of the CONFIDENTIAL or ATTORNEYS’ 11 EYES ONLY information. 12 VI. OBJECTION TO DESIGNATION. 13 Any party, or member of the general public, may challenge the designation of any 14 Discovery Material that is marked as CONFIDENTIAL or ATTORNEYS’ EYES ONLY. 15 If a party makes a challenge, then the parties shall confer in good faith to resolve any such 16 disagreements. If the meet and confer conference does not resolve the objections, then 17 within ten (10) days of reaching an impasse, the designating party may apply to the Court 18 for a ruling on the disputed issue. The non-designating party shall continue to treat the 19 Discovery Material that is the subject of the challenged designation as it has been 20 designated pending a ruling by the Court. 21 VII. DISCLOSURE. 22 (a) Inadvertent Disclosure. If, through inadvertence, the Producing Party 23 provides any Discovery Materials containing CONFIDENTIAL or ATTORNEYS’ EYES 24 ONLY information during the course of the Action without designating the Discovery 25 Materials, the Producing Party may subsequently inform the Receiving Party in writing of 26 the CONFIDENTIAL or ATTORNEYS’ EYES ONLY nature of the Discovery Materials 27 and provide the Receiving Party with appropriately designated Discovery Materials. The 28 DLA P IPER LLP (US) PHOE NI X-8-Case 2:17-cv-00727-JAT Document 23 Filed 07/05/17 Page 9 of 15 1 Receiving Party shall thereafter treat the disclosed material in accordance with this Order 2 to the extent that the Receiving Party has not already disclosed the material. 3 The inadvertent or unintentional disclosure of any Discovery Materials (including 4 but not limited to any documents or information subject to any evidentiary or legal 5 privilege or immunity or other protection), and regardless of whether the information or 6 materials received any designation at the time of disclosure, shall not be deemed a waiver 7 in whole or in part of any claim by that the materials or information are unrelated to this 8 litigation, irrelevant, privileged, or otherwise protected from production or disclosure, 9 either as to the specific information disclosed, as to any other information disclosed, or as 10 to any other information relating thereto on the same or related subject matter, provided 11 that the producing party must claim the privilege or immunity and/or inadvertent 12 disclosure promptly following discovery of the disclosure. The parties agree that any 13 materials or information inadvertently disclosed shall be promptly returned and/or 14 destroyed by the receiving party (and any third party that may have received such 15 materials or information) upon notice of such inadvertent disclosure. 16 The intentional disclosure by any of the parties of certain attorney/client or 17 accountant/client Discovery Materials shall be construed as a limited waiver specific 18 only to those specific documents, pages, or portions thereof, which have been voluntarily 19 and intentionally disclosed. Any such voluntary and intentional disclosure of privileged 20 Discovery Materials shall not constitute a general waiver either as to the document, the 21 subject of the document, or any other documents or information, in whole or in part. 22 If the Receiving Party disclosed undesignated CONFIDENTIAL or ATTORNEYS’ 23 EYES ONLY information to a party or person retained by the party, the Receiving Party 24 shall promptly retrieve and re-designate all CONFIDENTIAL or ATTORNEYS’ EYES 25 ONLY information and have the party or person retained by the party execute the 26 Undertaking attached hereto as Appendix A. If the Receiving Party disclosed 27 undesignated CONFIDENTIAL or ATTORNEYS’ EYES ONLY information to a third 28 party not entitled to receive such CONFIDENTIAL or ATTORNEYS’ EYES ONLY DLA P IPER LLP (US) PHOE NI X-9-Case 2:17-cv-00727-JAT Document 23 Filed 07/05/17 Page 10 of 15 1 information or access thereto under the terms of this Order, the Receiving Party shall 2 request that the third party return the CONFIDENTIAL or ATTORNEYS’ EYES ONLY 3 information and execute the Undertaking attached hereto as Appendix A. 4 If the third party returns the CONFIDENTIAL or ATTORNEYS’ EYES ONLY 5 information and executes the Undertaking, the Receiving Party shall inform the Producing 6 Party of the same. If the third party fails to either return the CONFIDENTIAL or 7 ATTORNEYS’ EYES ONLY information or to execute the Undertaking, the Receiving 8 Party shall inform the Producing Party of the same, and shall provide the Producing Party 9 with the identity of the third party and the CONFIDENTIAL or ATTORNEYS’ EYES 10 ONLY information disclosed. The Producing Party will thereafter bear the burden of 11 taking any further action vis-à-vis the third party regarding the CONFIDENTIAL or 12 ATTORNEYS’ EYES ONLY information. Disclosure of such undesignated 13 CONFIDENTIAL or ATTORNEYS’ EYES ONLY information prior to its designation 14 shall not be deemed a violation of this Order. 15 (c) Required Disclosure. If CONFIDENTIAL or ATTORNEYS’ EYES ONLY 16 information in the possession, custody or control of a Receiving Party is sought by a 17 person or entity not a party to this action by subpoena, request for production of 18 documents, interrogatory, or any other form of discovery request or compulsive process, 19 including any form of discovery request or compulsive process of any court, 20 administrative or legislative body, or any other person or tribunal purporting to have 21 authority to seek such information by compulsory process or discovery request, including 22 private parties, the Receiving Party to whom the process or discovery request is directed 23 shall: (i) promptly give written notice of such process or discovery request, together with 24 a copy thereof, to counsel for the Producing Party, and (ii) permit the Producing Party an 25 opportunity to obtain appropriate judicial relief before production or disclosure. The 26 Producing Party seeking to protect CONFIDENTIAL or ATTORNEYS’ EYES ONLY 27 information from disclosure shall bear the burden and expense of obtaining judicial relief. 28 DLA P IPER LLP (US) PHOE NI X-10-Case 2:17-cv-00727-JAT Document 23 Filed 07/05/17 Page 11 of 15 1 (d) Unauthorized Disclosure. If CONFIDENTIAL or ATTORNEYS’ EYES 2 ONLY information is disclosed to any person or entity other than in the manner 3 authorized by this Order, the person responsible for the disclosure shall promptly: 4 (1) notify in writing the Producing Party of the disclosure; (2) use its best efforts to 5 retrieve all copies of the CONFIDENTIAL or ATTORNEYS’ EYES ONLY information; 6 (3) request that the person(s) or entity(ies) to whom the disclosure is made execute the 7 Undertaking attached hereto in Appendix A; and (4) without prejudice to other rights and 8 remedies of any party, shall take reasonable steps (if available) to prevent further 9 disclosure. 10 VIII. LIMITATION ON USE AND SURVIVAL. 11 (a) Any CONFIDENTIAL or ATTORNEYS’ EYES ONLY documents or 12 information made available during the course of the Action shall be used solely for the 13 purposes of the Action and shall not be disclosed or used by the recipients for any 14 business, commercial, or competitive purpose. 15 (b) All copies, reproductions, summarizations, and abstractions of 16 CONFIDENTIAL or ATTORNEYS’ EYES ONLY information shall be subject to the 17 terms of this Order and labeled in the same manner as the designated material on which 18 they are based. 19 (c) This Order shall remain in full force and effect until modified, superseded, or 20 terminated by the Court or by agreement of the parties with the approval of the Court. 21 The Court retains jurisdiction over the parties respecting any dispute regarding the 22 improper use of information disclosed under protection of this Order. 23 IX. RETURN OR DESTRUCTION. 24 (a) No later than sixty (60) days following conclusion of these proceedings, all 25 CONFIDENTIAL or Attorneys’ EYES ONLY information and all copies thereof, shall be 26 returned to the person that produced the CONFIDENTIAL or Attorneys’ EYES ONLY 27 information, provided, however, that counsel may retain their attorney work product and 28 all filed documents or pleadings, even though they contain CONFIDENTIAL or DLA P IPER LLP (US) PHOE NI X-11-Case 2:17-cv-00727-JAT Document 23 Filed 07/05/17 Page 12 of 15 1 Attorneys’ EYES ONLY information. Any such retained work product shall remain 2 subject to the terms of this Order. In the alternative, the parties may agree to have any 3 CONFIDENTIAL and Attorneys’ EYES ONLY information destroyed. 4 (b) No later than sixty (60) days following conclusion of these proceedings, all 5 ATTORNEYS’ EYES ONLY information and all copies thereof or references thereto, 6 shall be destroyed. 7 (c) As used in this Section, "conclusion of these proceedings" refers to the 8 exhaustion of available appeals, as provided by applicable law or the settlement of this 9 action. 10 X. ADDITIONAL PARTIES. 11 (a) In the event that additional persons or entities become parties to this Action, 12 they shall not have access to CONFIDENTIAL or ATTORNEYS’ EYES ONLY 13 information until this Order has been amended, with the Court’s approval, to govern such 14 additional persons or entities. 15 XI. PROTECTION OF THIRD PARTIES. 16 (a) A person or entity that is not a Party to this Action may take advantage of 17 the protections afforded to CONFIDENTIAL and ATTORNEYS’ EYES ONLY 18 information provided by this Order, and such person or entity shall be entitled to all rights 19 and protections afforded to the Parties under this Order. 20 21 DONE IN OPEN COURT THIS ____ DAY OF _____________, 2017. 22 23 Honorable Judge James A. Teilborg 24 25 26 27 28 DLA P IPER LLP (US) PHOE NI X-12-Case 2:17-cv-00727-JAT Document 23 Filed 07/05/17 Page 13 of 15 1 APPENDIX A CONFIDENTIAL UNDERTAKING 2 3 I acknowledge that I, _______________________________________ (Name), of 4 _____________________________________________________(Place and Position of 5 Employment), am about to receive CONFIDENTIAL or ATTORNEYS’ EYES ONLY 6 information. I certify that I understand that such CONFIDENTIAL or ATTORNEYS’ 7 EYES ONLY information will be provided to me pursuant to the terms and restrictions of 8 the STIPULATED PROTECTIVE ORDER. I have received a copy of and have read and 9 understand the STIPULATED PROTECTIVE ORDER and that I agree to comply with 10 and to be bound by all of its applicable terms. I also understand that documents and/or 11 information having the CONFIDENTIAL or ATTORNEYS’ EYES ONLY designation, 12 and all copies, summaries, notes and other records that may be made regarding such 13 documents and/or information, shall be disclosed to no one other than persons qualified 14 under the STIPULATED PROTECTIVE ORDER to have access to such information. I 15 further understand that the CONFIDENTIAL or ATTORNEYS’ EYES ONLY 16 information provided to me shall be returned to counsel who provided the information to 17 me, in accordance with the STIPULATED PROTECTIVE ORDER. 18 19 DATED:. 20 21 22 Signature 23 24 25 26 27 28 DLA P IPER LLP (US) PHOE NI X-13-Case 2:17-cv-00727-JAT Document 23 Filed 07/05/17 Page 14 of 15 1 RESPECTFULLY SUBMITTED this 3rd day of July, 2017. 2 SCHNEIDER WALLACE COTTRELL DLA PIPER LLP (US) 3 KONECKY WOTKYNS LLP 4 By:/s/Laura Sixkiller By:/s/Shane Sanders (with permission) 5 Michael McKay, Bar No. 023354 Mark Nadeau, Bar No. 019561 6 mcckay@schneiderwallace.com mark.nadeau@dlapiper.com 8501 North Scottsdale Road, Suite 270 Laura Sixkiller, Bar No. 022014 7 Scottsdale, AZ 85253 laura.sixkiller@dlapiper.com Telephone: 480.428.0144 Cole J. Schlabach, Bar No. 026364 8 Facsimile: 866.505.8036 cole.schlabach@dlapiper.com 2525 East Camelback Road, Suite 1000 9 Brian J. Robbins Phoenix, AZ 85016-4232 Felipe J. Arroyo Telephone: 480.606.5100 10 Shane P. Sanders Facsimile: 480.606.5101 ROBBINS ARROYO LLP 11 600 B Street, Suite 1900 Attorneys for Defendants San Diego, CA 92101 12 Telephone: 619.525.3990 Facsimile: 619.525.3991 13 Attorneys for Plaintiff 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA P IPER LLP (US) PHOE NI X-14-Case 2:17-cv-00727-JAT Document 23 Filed 07/05/17 Page 15 of 15 1 CERTIFICATE OF SERVICE 2 I hereby certify that on July 3, 2017, a true and correct copy of this document was 3 filed electronically with the Court. Notice of this filing will be sent by operation of the 4 Court’s electronic filing system to all parties indicated on the electronic filing receipt. 5 Parties may access this filing through the Court’s system. A copy of the same will also be 6 served by email on: 7 Michael McKay, Bar No. 023354 8 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 9 8501 North Scottsdale Road, Suite 270 10 Scottsdale, AZ 85253 Telephone: 480.428.0144 11 Facsimile: 866.505.8036 mcckay@schneiderwallace.com 12 13 Brian J. Robbins 14 Felipe J. Arroyo 15 Shane P. Sanders ROBBINS ARROYO LLP 16 600 B Street, Suite 1900 San Diego, CA 92101 17 Telephone: 619.525.3990 18 Facsimile: 619.525.3991 brobbins@robbinsarroyo.com 19 farroyo@robbinsarroyo.com 20 ssanders@robbinsarroyo.com 21 Attorneys for Plaintiff 22 23/s/Stephanie Havell 24 25 26 27 28 DLA P IPER LLP (US) PHOE NI X-15-

MOTION to Dismiss Case SHAREHOLDER DERIVATIVE COMPLAINT by Ashton D Asensio, Timothy A Cole, Macon Bryce Edmonson, Harold S Edwards, Inventure Foods Incorporated, Paul J Lapadat, Terry McDaniel, David L Meyers, Itzhak Reichman, Steve Weinberger.

Case 2:17-cv-00727-JAT Document 25 Filed 07/06/17 Page 1 of 3 Mark A. Nadeau (Bar No. 011280) mark.nadeau@dlapiper.com 2 Laura Sixkiller (Bar No. 022014) laura.sixkiller@dlapiper.com 3 Cole Schlabach (Bar No. 026364) cole.schlabach@dlapiper.com 4 DLA PIPER LLP (US) 2525 East Camelback Road, Suite 1000 5 Phoenix, AZ 85016-4232 Tel: 480.606.5100 6 Fax: 480.606.5101 dlaphx@dlapiper.com 7 Attorneys for Defendants 8 UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 ROBERT HUTTON, Derivatively on CASE NO.: 2:17-cv-00727 11 Behalf of INVENTURE FOODS, INC., 12 Plaintiff, v. MOTION TO DISMISS 13 SHAREHOLDER DERIVATIVE TERRY MCDANIEL, STEVE 14 WEINBERGER, TIMOTHY A. COLE, COMPLAINT ASHTON D. ASENSIO, MACON BRYCE 15 EDMONSON, PAUL J. LAPADAT, HAROLD S. EDWARDS, DAVID L. 16 MEYERS, and ITZHAK REICHMAN, (Hon. Judge James A. Teilborg) 17 Defendants. 18-and-(ORAL ARGUMENT REQUESTED) 19 INVENTURE FOODS, INC., a Delaware corporation, 20 Nominal Defendant. 21 22 Nominal Defendant Inventure Foods, Inc. ("Inventure") and Defendants Terry 23 McDaniel, Steve Weinberger, Timothy A. Cole, Ashton D. Asensio, Macon Bryce 24 Edmonson, Paul J. Lapadat, Harold S. Edwards, David L. Meyers, and Itzhak Reichman 25 (collectively, the "Individual Defendants"), hereby move to dismiss Plaintiff Robert 26 Hutton’s ("Plaintiff") Shareholder Derivative Complaint. Plaintiff lacks standing to 27 maintain this derivative action. Plaintiff failed to make a pre-suit demand upon 28 Inventure’s Board of Directors, as required by Federal Rule of Civil Procedure 23.1 and DLA P IPER LLP (US) PHOE NI X Case 2:17-cv-00727-JAT Document 25 Filed 07/06/17 Page 2 of 3 1 applicable Delaware and Arizona law. Pre-suit "demand" is a fundamental prerequisite to 2 a derivative action that Plaintiff has simply ignored. Beyond this, Plaintiff failed to plead 3 particularized facts sufficient to show why the required demand should be excused as a 4 matter of futility. 5 Dismissal should be without leave to amend—Plaintiff elected to stand on the 6 allegations in his originally filed Complaint despite: (1) initially communicating to 7 defense counsel and the Court the intent to Amend, and (2) the express intent by defense 8 counsel to challenge the Complaint based on its lack particularized allegations sufficient 9 to demonstrate demand futility. 10 This Motion is supported by the following Memorandum of Points and Authorities, 11 Request for Judicial Notice, and Declaration of Laura Sixkiller, the allegations and 12 documents incorporated by reference into the Complaint, and the entire record herein.1 13 RESPECTFULLY SUBMITTED this 6th day of July, 2017. 14 DLA PIPER LLP (US) 15 16 By: s/Laura Sixkiller 17 Mark A. Nadeau 18 mark.nadeau@dlapiper.com Laura Sixkiller 19 laura.sixkiller@dlapiper.com Cole Schlabach 20 cole.schlabach@dlapiper.com 2525 East Camelback Road 21 Suite 1000 Phoenix, AZ 85016-4232 22 Telephone: 480.606.5100 Facsimile: 480.606.5101 23 Attorneys for Defendants 24 1 Defendants do not here address the failures of Plaintiffs’ various claims. Although this 25 matter should be dismissed for lack of standing—as a threshold matter—if it proceeds 26 further it should be stayed pending resolution of the previously filed class action, Westmoreland Cnty. Emp. Ret. Fund v. Inventure Foods, Inc. et al., Maricopa County 27 Superior Court Case No. CV2016-002718 (the "Westmoreland Class Action"). 28 Defendants reserve their right to challenge Plaintiff’s claims at a later date. DLA P IPER LLP (US) PHOE NI X 2 Case 2:17-cv-00727-JAT Document 25 Filed 07/06/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that on July 6, 2017, a true and correct copy of this document was 3 filed electronically with the Court. Notice of this filing will be sent by operation of the 4 Court’s electronic filing system to all parties indicated on the electronic filing receipt. 5 Parties may access this filing through the Court’s system. A copy of the same will also be 6 served by email on: 7 8 Michael McKay, Bar No. 023354 SCHNEIDER WALLACE COTTRELL 9 KONECKY WOTKYNS LLP 8501 North Scottsdale Road, Suite 270 10 Scottsdale, AZ 85253 11 Telephone: 480.428.0144 Facsimile: 866.505.8036 12 mmckay@schneiderwallace.com 13 Brian J. Robbins 14 Felipe J. Arroyo Shane P. Sanders 15 ROBBINS ARROYO LLP 16 600 B Street, Suite 1900 San Diego, CA 92101 17 Telephone: 619.525.3990 18 Facsimile: 619.525.3991 brobbins@robbinsarroyo.com 19 farroyo@robbinsarroyo.com ssanders@robbinsarroyo.com 20 21 Attorneys for Plaintiff 22 23 s/Stephanie Havell 24 25 26 27 28 DLA P IPER LLP (US) PHOE NI X 3

MEMORANDUM in Support of MOTION TO DISMISS SHAREHOLDER DERIVATIVE COMPLAINT [25] MOTION to Dismiss Case SHAREHOLDER DERIVATIVE COMPLAINT by Defendants Ashton D Asensio, Timothy A Cole, Macon Bryce Edmonson, Harold S Edwards, Inventure Foods Incorporated, Paul J Lapadat, Terry McDaniel, David L Meyers, Itzhak Reichman, Steve Weinberger.

Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 1 of 20 Mark A. Nadeau (Bar No. 011280) mark.nadeau@dlapiper.com 2 Laura Sixkiller (Bar No. 022014) laura.sixkiller@dlapiper.com 3 Cole Schlabach (Bar No. 026364) cole.schlabach@dlapiper.com 4 DLA PIPER LLP (US) 2525 East Camelback Road, Suite 1000 5 Phoenix, AZ 85016-4232 Tel: 480.606.5100 6 Fax: 480.606.5101 dlaphx@dlapiper.com 7 Attorneys for Defendants 8 UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 ROBERT HUTTON, Derivatively on CASE NO.: 2:17-cv-00727 11 Behalf of INVENTURE FOODS, INC., 12 Plaintiff, v. MEMORANDUM IN SUPPORT OF 13 MOTION TO DISMISS TERRY MCDANIEL, STEVE 14 WEINBERGER, TIMOTHY A. COLE, SHAREHOLDER DERIVATIVE ASHTON D. ASENSIO, MACON BRYCE COMPLAINT 15 EDMONSON, PAUL J. LAPADAT, HAROLD S. EDWARDS, DAVID L. 16 MEYERS, and ITZHAK REICHMAN, (Hon. Judge James A. Teilborg) 17 Defendants. 18-and-(ORAL ARGUMENT REQUESTED) 19 INVENTURE FOODS, INC., a Delaware corporation, 20 Nominal Defendant. 21 22 23 24 25 26 27 28 DLA P IPER LLP (US) PHOE NI X Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 2 of 20 This is a putative shareholder derivative action brought against current and former 2 directors and officers of Inventure, a Phoenix-based food manufacturing company that is a 3 Delaware corporation. The Complaint arises from the Company’s acquisition of the assets 4 of Fresh Frozen Foods, LLC ("Fresh Frozen"), and subsequent recall, including 5 allegations that the Company made misleading statements in its 2015 and 2016 Proxy 6 Statements. The Court should dismiss the Complaint because Plaintiff failed to make a 7 demand upon Inventure’s Board of Directors (the "Board" or "Directors") to investigate 8 and, if appropriate, pursue an action on Inventure’s behalf. Federal Rule of Civil 9 Procedure 23.1, and analogous provisions of the Delaware Chancery Rules and Arizona 10 Revised Statutes, requires any shareholder wishing to pursue a derivative action first make 11 a demand upon the Board. Plaintiff admittedly did not make a demand upon Inventure’s 12 Board. Accordingly, this action should be dismissed because Plaintiff lacks standing. 13 It is a bedrock principle of corporate law in Delaware, Arizona, and most other 14 states, that the authority to bring a lawsuit on behalf of a corporation is reserved to its 15 board of directors. In order to protect the authority of boards of directors, the law 16 establishes strict limitations upon the ability of an individual shareholder to bring and 17 maintain a derivative lawsuit on behalf of a corporation. Without these strict limitations, 18 derivative lawsuits like this one would usurp a fundamental corporate right, and transfer 19 the power to sue into the hands of a shareholder. One significant prerequisite to bringing a 20 derivative action is that a shareholder must first demand that a Board consider the 21 shareholder’s allegations, and take action, including, if appropriate, commencing a lawsuit 22 on the corporation’s behalf. A shareholder may proceed with a derivative lawsuit only 23 where such a demand has been made and the demand has been refused, or where demand 24 upon the board is excused due to the existence of unique facts that make demand futile. 25 Plaintiff predictably argues in his Complaint that demand should be excused 26 because demand would be futile. Complaint ¶¶ 75-79. However, the Complaint’s meager 27 "demand futility" allegations are exactly the sort of contentions that courts in this District 28 and throughout the nation have repeatedly found inadequate. It is not legally sufficient to DLA P IPER LLP (US) PHOE NI X 1 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 3 of 20 allege, without specificity, that demand is excused because a majority of the Board faces a 2 substantial likelihood of liability. The theory underpinning all of Plaintiff’s allegations is 3 that the Individual Defendants breached their fiduciary duties by—generally—failing to 4 oversee adequate food safety controls and internal reporting. The Complaint does not 5 allege a single fact describing what role any of the Individual Defendants played in the 6 oversight of food safety or internal controls or why any of the Inventure Directors could 7 not be impartial. The Complaint sets forth vague, conclusory accusations that the 8 "Defendants" failed to properly oversee the individuals at the Company responsible for 9 allowing improper statements in the Company’s press releases and SEC filings. These 10 unsupported allegations fail to meet the particularized pleading standard required to 11 sustain a derivative claim. The Complaint concedes that the Individual Defendant 12 Directors caused the Company to issue a recall. Complaint ¶¶ 49-50, 65. Taking voluntary 13 corrective action to address a potential health risk is not a breach of fiduciary duty, it is 14 the fulfillment of a duty. For all of these reasons, the Complaint should be dismissed. 15 I. RELEVANT BACKGROUND 16 A. Inventure’s Business 17 Inventure is a Delaware corporation with its principal executive offices located in 18 Phoenix, Arizona. Complaint ¶ 16. Inventure is a business involved in the manufacturer 19 and packaging of healthy/natural snack foods. Id. The Inventure products are generally 20 distributed by retail supermarkets throughout the United States. Id. Inventure has plants in 21 Arizona, Indiana, Oregon, and Washington with 1000+ employees. Id. 22 B. Fresh Frozen Foods Acquisition And Sale 23 Fresh Frozen, founded in Jefferson, Georgia in 1975, was a processor and supplier 24 of individually quick frozen or "IQF" vegetables and fruits to retail outlets. Fresh Frozen 25 11/12/13 Closing Press Release, Ex. E to Declaration of Laura Sixkiller ("Sixkiller 26 Decl."). Fresh Frozen was comprised of two facilities: (1) a processing facility in 27 Thomasville, Georgia, and (2) a bulk packaging facility in Jefferson, Georgia (the 28 "Jefferson Plant"). Inventure acquired the assets of Fresh Frozen on November 8, 2013. DLA P IPER LLP (US) PHOE NI X 2 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 4 of 20 Complaint ¶ 39. However, Inventure sold the Fresh Frozen business in March 2017 and, 2 as such, it no longer owns or operates the Jefferson or Thomasville plants referenced in 3 the Complaint. 3/23/2017 Inventure 8-K, Ex. F to Sixkiller Decl. 4 C. Secondary Public Offering 5 On or about September 17, 2014, less than a year after the acquisition (which 6 business accounted for only a portion of the Inventure business enterprise), Inventure 7 conducted a secondary public offering (the "2014 Offering"). Complaint ¶ 54. Inventure 8 filed a Form S-3 Registration Statement (Registration No. 333-196795), Prospectus dated 9 August 28, 2014, and Prospectus Supplement dated September 11, 2014 (collectively, the 10 "2014 Offering Documents") (see Ex. A, B, C and D to Sixkiller Decl.). Complaint ¶ 54. 11 D. The Jefferson Plant Recall 12 Eight months after the SPO, swabs were taken of various areas of the plant, which 13 were positive for Listeria monocytogenes. Id. Complaint ¶¶ 4, 47. Inventure, despite the 14 absence of any illnesses linked to Jefferson Plant products, issued a public notice on April 15 23, 2015, announcing a voluntary recall (the "Recall"). Complaint ¶¶ 49, 50, 65; Recall 16 Notice dated 4/23/15 (Ex. G to Sixkiller Decl.) ("Recall Notice"). The Recall involved 17 certain varieties of the Fresh Frozen™ line of frozen vegetables, as well as select varieties 18 of its Jamba® "At Home" smoothie kits. Complaint ¶¶ 49, 50, 65; Recall Notice. The 19 Recall was a massive undertaking at the Direction of the Board of Directors and the 20 corporate officers of the Company, that was well reported in the press. 21 II. THE PROCEEDINGS 22 Plaintiff’s derivative action is a tag-along proceeding filed on March 9, 2017— 23 nearly two (2) years after Inventure issued the April 2015 Recall. It follows the filing of 24 Westmoreland County Employee Retirement Fund v. Inventure Foods, Inc., et al., in 25 Maricopa County Superior Court, CV2016-002718. Plaintiff’s Complaint lodges four 26 causes of action against Defendants, including: Count I for violation of § Section 14(a) of 27 the Exchange Act (against Defendants McDaniel, Cole, Asensio, Edmonson, Lapadat, 28 Edwards, and Meyers); Count II for Breach of Fiduciary Duty (against the Individual DLA P IPER LLP (US) PHOE NI X 3 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 5 of 20 Defendants); Count III for Corporate Waste (against the Individual Defendants); and, 2 Count IV for Unjust Enrichment (against the Individual Defendants). 3 Plaintiff’s claims rely on representations Inventure made in connection with its 4 2014 Offering, the April 2015 voluntary Recall, and its 2015 and 2016 Proxy Statements. 5 Plaintiff’s claims are premised on his status as a stockholder of Inventure, including his 6 purchase of two tranches of Inventure shares. See Complaint ¶ 15; Plaintiff’s 5/1/2016 7 Brokerage Account Statement (Ex. J to Sixkiller Decl.) ("Statement of Account"). 8 Plaintiff owns a total of 14,000 shares—as provided in his Statement of Account. He 9 purchased 9,000 shares in August 2013 and another 5,000 shares in May 2015. Plaintiff 10 purchased his first tranche of shares before Inventure’s 2014 Offering. Plaintiff then 11 purchased his second tranche of shares after the Inventure announced the Recall and the 12 related FDA press release. Indeed, Plaintiff knowingly increased his holding in 13 Inventure by 55% after Inventure announced the voluntary Recall—seeking to 14 capitalize on the initial drop in share price. The 2014 Offering documents referred to by 15 Plaintiff (Complaint ¶¶ 54-55) could not have been relied on by him with respect to either 16 share purchase—in particular those additional shares purchased after the Recall. 17 Plaintiff’s Complaint alleges the following substantive allegations: 18 • Defendants failed to ensure the Jefferson Plant was safe, sanitary and in 19 compliance with applicable food safety laws/regulations. Complaint ¶¶ 4-6. 20 • Defendants failed to timely address and remedy known food safety concerns at the Jefferson Plant. Complaint ¶¶ 8-9. 21 • Defendants wasted corporate assets and failed to maximize stock value by not 22 ensuring compliance with laws, rules and regulations. Complaint ¶¶ 28, 30. 23 • Defendants failed to remain informed on how Inventure operated the Jefferson Plant. Complaint ¶¶ 28, 77. 24 • Defendants failed to implement an adequate reporting system to ensure 25 information about the Jefferson Plant was timely discussed and adequately addressed. Complaint ¶¶ 43, 77. 26 • Defendants failed to make reasonable inquiry into notice or information received 27 by Inventure concerning imprudent or unsound conditions or practices at the 28 Jefferson Plant. Complaint ¶ 28, 42. DLA P IPER LLP (US) PHOE NI X 4 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 6 of 20 • Defendants failed to take steps to correct imprudent or unsound conditions or 2 practices at the Jefferson Plant. Complaint ¶¶ 28, 43, 50. • Defendants misled the public concerning the substandard operations and 3 improper practices at the Jefferson Plant that wasted Inventure’s assets and 4 caused Inventure to incur substantial damage. Complaint ¶¶ 7, 83. 5 • The Board made misrepresentations in Inventure’s 2015 and 2016 Proxies, in Press Releases, and in SEC Filings. Complaint ¶¶ 10, 83-85. 6 Plaintiff contends that the above actions constitute breaches of Section 14(a) of the 7 Securities Exchange Act and the Individual Defendants’ fiduciary duties, and corporate 8 waste, by all but one of Inventure’s current Directors. Plaintiff further alleges that the 9 Individual Defendants were unjustly enriched by virtue of the compensation and 10 remuneration they received. Complaint ¶¶ 97-99. Notably, other than salaries and the 11 continuation of employment, Plaintiff points to no compensation (stock award or bonus) 12 paid to the corporate officers or directors that would support any suggestion of 13 motivations derived from personal greed, leaving it to pure imagination that these people 14 would deviate from protection of the Company, as would otherwise be in their interests. 15 Critically, nowhere in the 39-page Complaint does Plaintiff allege what role any of 16 the Inventure Directors played in the alleged failure to exercise proper oversight and 17 internal controls. However, Plaintiff does concede that one of the seven directors – Joel 18 Stewart – was not at Inventure at the time of the events in question and is independent (for 19 the purpose of assessing demand futility). Complaint ¶ 74. 20 III. THE COURT SHOULD DISMISS THE COMPLAINT IN ITS ENTIRETY 21 A. Inventure’s Operative Board Was Comprised Almost Entirely of Independent Outside Directors Such That Demand Would Not Be Futile 22 As a threshold matter, when evaluating whether demand upon Inventure’s Board is 23 excused because it would have been "futile," the Court must evaluate whether the Plaintiff 24 has sufficiently alleged facts demonstrating a majority of Inventure’s Board on the date 25 when the Complaint was filed (on March 9, 2017) were incapable of independently 26 considering (i.e., with impartiality) a demand by Plaintiff to investigate the allegations in 27 the Complaint. The Ninth Circuit has explained that "‘futility is gauged by the 28 DLA P IPER LLP (US) PHOE NI X 5 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 7 of 20 circumstances existing at the commencement of a derivative suit’ and concerns the board 2 of directors'sitting at the time the complaint is filed.’" Rosenbloom v. Pyott, 765 F.3d 3 1137, 1148 (9th Cir. 2014) (citations omitted); see also Aronson v. Lewis, 473 A.2d 805, 4 810 (Del. 1984) (same). Plaintiff acknowledges this standard. Complaint ¶ 76. 5 When the Complaint was filed, Inventure’s Board was composed of seven Board 6 members, each a highly regarded business executive with a record of achievement 7 independent of their service on Inventure’s Board: 8 • Joel Stewart, Independent Director (admittedly impartial). Mr. Stewart has served as a Director of the Company since January 31, 2017. Mr. Stewart 9 currently serves as a Vice President of LKCM Headwater Investments, the 10 private equity arm of Luther King Capital Management Corporation, an SEC-registered investment advisory firm (LKCM). Mr. Stewart has been with LKCM 11 since August 2013 and serves as a director and/or advisor to multiple portfolio companies held by LKCM Headwater Investments and other LKCM affiliates. 12 Previously, Mr. Stewart served as a Vice President at The Presidio Group, a San 13 Francisco-based wealth management, investment and advisory firm, a Principal of 6Pacific Partners, LLC, a boutique merchant bank focused on the food, 14 beverage and nutrition industries, and as an investment banker at JPMorgan. Mr. 15 Stewart received his Bachelor of Business Administration in Finance and Economics from Baylor University and his Masters of Business Administration 16 from the McCombs School of Business at the University of Texas. 17 • Ashton D. Asensio, Independent Director. Mr. Asensio has served as a 18 Director of the Company since February 2006 and was appointed Chairman of the Audit Committee in July 2006. Mr. Asensio is a financial and operations 19 consultant. From January 2009 to June 2013, he served as CFO of Security 20 Alarm Financing Enterprises, L.P., a California security alarm account aggregator. From 2003 to January 2009, Mr. Asensio was a financial and 21 operations consultant. From March 2005 to January 2009, Mr. Asensio provided consulting services to American Pacific Financial Corp., a Grand Terrace, 22 California-based asset management firm ("APFC"), and various entities in which 23 APFC had an ownership interest, including Realty Information Systems, Inc., a franchising organization ("RIS"). From August 2005 to February 2006, Mr. 24 Asensio served as CFO of RIS. From 1972 to 1979, Mr. Asensio served as a 25 staff member and then audit manager for Peat Marwick Mitchell. Mr. Asensio received his Bachelor of Science degree in Accounting from Florida Atlantic 26 University and his Master of Accounting degree from Florida State University. 27 • Timothy A. Cole, Independent Director. Mr. Cole has served as a Director of 28 the Company since May 2014. Mr. Cole served as Executive Vice President of DLA P IPER LLP (US) PHOE NI X 6 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 8 of 20 Sales at Del Monte Foods, Inc., a Fortune 500 consumer packaged foods company, from 2004 until his retirement in 2014. From 1979 to 2004, Mr. Cole 2 held a variety of positions with The Quaker Oats Company, now a unit of 3 PepsiCo, Inc., where he became Vice President of National Accounts for the United States. Mr. Cole received his Bachelor of Science degree in Marketing 4 from Florida State University and currently serves on the Board of Governors at 5 Florida State University. 6 • Harold S. Edwards, Independent Director. Mr. Edwards has served as a 7 Director of the Company since May 2014. Mr. Edwards has served as President and CEO of Limoneira Company (NASDAQ: LMNR) since November 2003. 8 Previously, Mr. Edwards was the President of Puritan Medical Products, a division of Airgas, Inc. Prior to such position, Mr. Edwards held management 9 positions with Fisher Scientific International, Inc., Cargill, Inc., Agribrands 10 International and the Ralston Purina Company. Mr. Edwards is currently a member of the board of directors of Limoneira Company, Calavo Growers, Inc. 11 (NASDAQ: CVGW), and Compass Diversified Holdings (NYSE: CODI). Mr. Edwards is a graduate of Lewis and Clark College and the Thunderbird School 12 of Global Management where he earned a Masters of Business Administration. 13 • Paul J. Lapadat, Independent Director. Mr. Lapadat has served as a Director 14 of the Company since May 2013 and was appointed Chairman of the 15 Compensation Committee in September 2013. From 2010 until March 2015, Mr. Lapadat served as CEO of Flagstone Foods, formerly Snacks Holding 16 Corporation. In 2014, Mr. Lapadat successfully sold Flagstone Foods to 17 TreeHouse Foods, Inc., a consumer packaged food and beverage manufacturer headquartered in Chicago, Illinois. In November 2010, Gryphon Investors, a San 18 Francisco-based private equity firm, purchased Ann’s House of Nuts and Amport Foods, and appointed Mr. Lapadat as CEO. Flagstone Foods is the 19 parent company of Ann’s House of Nuts and Amport Foods, both industry 20 leading private label snack food companies competing in the trail mix, dried fruit, snack nuts and wholesome snacks segments. From 2004 to 2010, Mr. 21 Lapadat served as President and Chief Operating Officer of the $2 billion Snack Foods Group for ConAgra Foods, a Fortune 500 consumer packaged goods 22 company whose brands include Orville Redenbacher’s, Slim Jim, DAVID 23 Sunflower Seeds, ACT II, and Crunch'n Munch along with the Store Brands division. Prior to such position, Mr. Lapadat served as General Manager ("GM") 24 of ConAgra’s Store Brands division from 2001 to 2003, where he managed over 25 20 private label categories. Prior to ConAgra, Mr. Lapadat held multiple positions of increasing responsibility in Marketing and Brand Management for 26 The Pillsbury Company and Kraft Foods. Prior to these positions, Mr. Lapadat began his career in Finance at General Mills. Directorships include service on 27 the board of directors of Flagstone Foods from 2010 to July 2014, the Original 28 Cakerie from January 2016 to present, and the Snacks Foods Association in DLA P IPER LLP (US) PHOE NI X 7 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 9 of 20 2009. Mr. Lapadat received his Bachelor of Arts degree in Accounting from the University of St. Thomas and a Masters of Business Administration in 2 Marketing and General Management from UCLA. 3 • Macon Bryce Edmonson, Independent Director. Mr. Edmonson has served as 4 a Director of the Company since July 2006 and was the Chairman of the 5 Compensation Committee from October 2008 until September 2013. From January 2013 until December 2015, Mr. Edmonson was the CEO of Bland 6 Farms, LLC, a large multinational farming and sales operation based in 7 Glennville, Georgia. Mr. Edmonson is currently retained by Bland Farms to serve as a consultant on a part-time basis. Bland Farms is principally engaged in 8 the production and sales of sweet onions. Mr. Edmonson served as a Senior Vice President ("SVP") in charge of the North American business of Del Monte Fresh 9 Produce Company from 1995 to 2005 and, since mid-2005, has been a 10 consultant for the food industry helping companies realign their strategies and position themselves for growth in the North American market. Mr. Edmonson 11 received Bachelor and Master of Science degrees in Entomology from the University of Florida and a Masters of Business Administration in Marketing 12 from the University of Miami. 13 • Terry McDaniel, Director & Chief Executive Officer. Mr. McDaniel has 14 served as a Director and CEO of the Company since May 2008 and as COO 15 from April 2006 to April 2008. Since May 2008, Mr. McDaniel has served on the board of directors of Foster Farms Dairy, the largest privately owned dairy in 16 California, and currently serves as its lead director and chair of its compensation 17 committee. Mr. McDaniel served as Chairman of the Snack Food Association from March 2009 to March 2010, and served on its executive committee from 18 March 2007 to March 2012. Mr. McDaniel has served on the Chairman’s Advisory Committee of the Grocery Manufacturers Association, most recently 19 since 2006. From September 2003 to April 2006, Mr. McDaniel was President 20 and a director of MSLI Worksite Benefits, a company that marketed voluntary benefits through the worksite to Fortune 1000 companies. From 1998 to 2003, 21 Mr. McDaniel served as President, CEO and a director of Wise Foods, Inc. Prior to 1998, Mr. McDaniel served as Vice President of Sales and Marketing for 22 Wise Foods, Inc., and as Vice President of Sales and Distribution for Haagen-23 Dazs Company, Inc. Prior to these positions, he held sales leadership positions for companies such as the Nestle Corporation, Tropicana Products, Inc. and 24 Unilever. Mr. McDaniel received a bachelor’s degree in business and a Masters 25 of Business Administration from Columbus State University. 26 Inventure Schedule 14A Proxy Statement, filed April 11, 2016, at 11-13 (Ex. H to 27 Sixkiller Decl.); Complaint ¶¶ 61-64. Because Joel D. Stewart is disinterested as a matter 28 DLA P IPER LLP (US) PHOE NI X 8 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 10 of 20 of law,1 Plaintiff was obligated to plead facts plausibly demonstrating that four of the 2 remaining six Directors are incapable of being impartial in evaluating the Complaint 3 allegations. Plaintiff failed to make this showing as explained in detail below. 4 B. Plaintiff Does Not Have Standing To Bring A Derivative Action Because He Failed To Make A Pre-Suit Demand 5 Federal Rule of Civil Procedure 23.1 and Delaware Chancery Court Rule 23.1 6 impose on plaintiffs the substantial and difficult burden to plead "with particularity" facts 7 demonstrating why demand would be futile. This particularity requirement is a 8 substantive provision of Delaware law that imposes a more demanding pleading 9 standard than Rules of Civil Procedure 8 or 12(b)(6). Lewis v. Aronson, 466 A.2d 375, 10 380 (Del. Ch. 1983), rev'd, 473 A.2d 805, 8099 (Del. 1984) ("the demand requirement of 11 Rule 23.1 is a rule of substantive right designed to give a corporation the opportunity to 12 rectify an alleged wrong without litigation, and to control any litigation which does 13 arise").2 "Vague or conclusory allegations do not suffice, rather the pleader must set forth 14 particularized factual statements that are essential to the claim." Melbourne Mun. 15 Firefighters' Pension Trust Fund on Behalf of Qualcomm, Inc. v. Jacobs, No. 10872-16 VCMR, 2016 WL 4076369, at *7 (Del. Ch. Aug. 1, 2016), aff'd, No. 444, 2016, 2017 WL 17 836928 (Del. Mar. 3, 2017) (citing Brehm v. Eisner, 746 A.2d 244, 255 (Del. 2000) 18 ("conclusory allegations are not considered"); In re Computer Scis. Corp. Derivative 19 Litig., No. CV 06-05288 MRP (Ex.), 2007 WL 1321715, at *9 (C.D. Cal. Mar. 26, 2007) 20 (a plaintiff may not excuse demand "by merely making conclusory allegations that a 21 22 1 Director Joel Stewart is Independent and impartial as a matter of law. Smilovits v. First 23 Solar Inc., No. CV-12-00555-PHX-DGC, 2016 WL 5682723, at *3 (D. Ariz. Sept. 30, 24 2016) (directors not named as defendants are considered disinterested as a matter of law). 2 See also In re Ezcorp Inc. Consulting Agreement Derivative Litig., No. CV 9962-VCL, 25 2016 WL 301245, at *33 (Del. Ch. Jan. 25, 2016), reconsideration granted in part, (Del. 26 Ch. Feb. 23, 2016), and appeal refused sub nom. MS Pawn Corp. v. Treppel, 133 A.3d 560 (Del. 2016), and appeal refused sub nom. Roberts v. Treppel, 133 A.3d 560 (Del. 27 2016) (stating that the demand requirement "is a basic principle of corporate governance 28 and is a matter of substantive law"). DLA P IPER LLP (US) PHOE NI X 9 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 11 of 20 director disseminated financial statements he knew to be false.") (citing Guttman v. 2 Huang, 823 A.2d 492, 503-07 (Del. Ch. 2003)). A complaint that does not meet this 3 heightened pleading standard should be dismissed. 4 1. Legal Action Is Reserved To The Business Judgment Of The Board 5 The demand requirement for derivative claims is governed by the law of the state 6 in which the corporation at issue is incorporated. See In re Silicon Graphics Sec. Litig., 7 183 F.3d 970, 989-90 (9th Cir. 1999); Arizona Rev. Stat. § 10-747 ("In any derivative 8 proceeding in the right of a foreign corporation, the matters covered by this article are 9 governed by the laws of the jurisdiction of incorporation of the foreign corporation...."). 10 Inventure is a Delaware corporation (see Complaint ¶ 16), so Delaware’s pre-suit demand 11 requirement applies. The requirement that a shareholder make a demand on a 12 corporation’s board of directors before bringing a derivative suit for claims belonging to 13 the corporation is a cornerstone of corporate law in Delaware. It derives from the 14 "cardinal precept... that directors, rather than shareholders, manage the business and 15 affairs of the corporation," including the corporation’s litigation. Aronson, 473 A.2d at 16 811 (citing 8 Del. C. § 141(a)). 17 The demand requirement exists to preserve the primacy of board decision making 18 regarding legal claims belonging to the corporation. Am. Int'l Grp., Inc. v. Greenberg, 965 19 A.2d 763, 808 (Del. Ch. 2009) ("Our law implements this policy objective by establishing 20 the default rule that a derivative plaintiff must make a demand on the board and requiring 21 the plaintiff to prove why demand is excused if she chooses to forego that default route.") 22 (citations omitted). "The demand requirement promotes'the basic principle of corporate 23 governance that the decisions of a corporation – including the decision to initiate litigation 24 – should be made by the board of directors or the majority of shareholders.’" Smilovits v. 25 First Solar Inc., No. CV-12-00555-PHX-DGC, 2016 WL 5682723, at *3 (D. Ariz. Sept. 26 30, 2016) (quoting Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 530 (1984)). 27 In other words, a corporation’s directors, not its shareholders, control the decision 28 of whether or not to initiate litigation. Rosenbloom, 765 F.3d at 1148. Courts in Delaware DLA P IPER LLP (US) PHOE NI X 10 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 12 of 20 (and Arizona) have long recognized that directors have broad management discretion, and 2 courts decline to substitute their judgment for that of a corporation’s board, when the 3 board has acted on an informed basis, in good faith, and in the honest belief that the action 4 taken was in the best interests of the company. Paramount Commc'ns Inc. v. QVC 5 Network Inc., 637 A.2d 34, 45-46 (Del. 1994) ("The board of directors is the corporate 6 decision-making body best equipped to make these judgments..... Thus, courts will not 7 substitute their business judgment for that of the directors, but will determine if the 8 directors’ decision was, on balance, within a range of reasonableness.3) (citation omitted). 9 The Inventure Board (and its Directors) "enjoys a presumption of sound business 10 judgment, and its decisions will not be disturbed if they can be attributed to any rational 11 business purpose." Sinclair Oil Corp. v. Levien, 280 A.2d 717, 720 (Del. 1971) (citation 12 omitted). As such, the "court will not interfere with the judgment of a board of directors 13 unless there is a showing of gross and palpable overreaching." Id. In order to allow 14 directors to exercise that right to control a corporation’s litigation, and to guard against 15 misuse of the derivative lawsuit remedy, all jurisdictions impose threshold preconditions 16 (such as a pre-suit demand) on shareholder derivative suits. See Fed. R. Civ. P. 23.1; Del. 17 Chancery Ct. R. 23.1; A.R.S. § 10-741; Smith ex rel. Apollo Grp., Inc. v. Sperling, No. 18 CV 11-722-PHX-JAT, 2012 WL 3064261, at *4 (D. Ariz. July 26, 2012) (Hon. James A. 19 Teilborg) (acknowledging that plaintiff must make a "written litigation demand" on the 20 Board before he may commence a derivative proceeding). 21 Courts have recognized that the shareholder derivative action "could, if 22 unrestrained, undermine the basic principle of corporate governance that the decisions of a 23 corporation—including the decision to initiate litigation—should be made by the board of 24 3 25 Indeed, it is appropriately reserved to the Company and its Board to consider multiple factors before commencing litigation against any person (entity or individual). The costs 26 of litigation are enormous, and the benefit and prospects of recovery are often remote. 27 ROI on litigation efforts is soundly and reasonably reserved to the Board and the Corporate Officers given the vagaries and uncertainties of litigation. A single shareholder, 28 may not appreciate the impact of any particular claim on the whole of the organization. DLA P IPER LLP (US) PHOE NI X 11 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 13 of 20 directors." Spiegel v. Buntrock, 571 A.2d 767, 773 (Del. 1990) (quoting Daily Income 2 Fund, 464 U.S. at 531). The pre-suit demand requirement gives a board the opportunity, 3 before a shareholder proceeds with litigation, to exercise its business judgment to decide 4 whether pursuing that litigation is in the best interest of the corporation. The only 5 exception to the requirement that a plaintiff shareholder first make a demand upon a board 6 before filing a derivative lawsuit is where the shareholder can demonstrate that making a 7 demand would be a futile act. See, e.g., In re Silicon Graphics Inc. Sec. Litig., 183 F.3d at 8 989-90. If a plaintiff-shareholder files a derivative action without first making a demand 9 upon the board, it bears repeating that Rule 23.1 requires the plaintiff to allege with 10 particularity in the complaint the reasons for failing to make a pre-suit demand. Plaintiff 11 has failed to meet the standards in this case.4 12 2. Plaintiff Must Meet The Standards Articulated In Rales v. Blasband 13 There are two tests for establishing demand futility under Delaware law. 14 Determining which test applies depends upon the type of board conduct that the plaintiff-15 shareholder is challenging. When a plaintiff challenges conscious board conduct, courts 16 employ the long-standing test followed by the Delaware Supreme Court in Aronson. 5 17 However, where there is no allegation of the directors making a "conscious decision" to 18 act or refrain from acting, courts follow the test set forth in Rales v. Blasband, 634 A.2d 19 927, 933 (Del. 1993), and only evaluate the first prong of the Aronson test; i.e., whether 20 the plaintiffs have alleged particularized facts creating a reasonable doubt that 21 directors are disinterested and independent. Rales, 634 A.2d at 933–34. The present 22 Complaint is based upon the Defendants’ alleged failures to act—allegedly failing to 23 4 The demand requirement applies to all of Plaintiff’s claims, including Count I under 24 Section 14 (a) of the Exchange Act. Scimeca v. Kim, No. CV06-0562-PHX-PGR, 2007 WL 7087065, at *11 (D. Ariz. Aug. 29, 2007). 25 5 Under the Aronson test, courts will excuse demand only if the plaintiff adequately pleads 26 particularized facts that "create a reasonable doubt that 1) the directors are disinterested 27 and independent, or [that] 2) the challenged transaction was a valid exercise of business judgment." In re Morgan Stanley Derivative Litig., 542 F. Supp. 2d 317, 321-22 28 (S.D.N.Y. 2008). DLA P IPER LLP (US) PHOE NI X 12 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 14 of 20 mitigate unsanitary conditions at certain facilities and allowing Inventure to disseminate 2 misleading and inaccurate information in its 2015 and 2016 Proxies, press releases and 3 other SEC filings. See, e.g., Complaint ¶¶ 10, 83-85. Thus, the Rales test applies. 4 Reasonable doubt as to disinterestedness may be shown under the Rales test if a 5 plaintiff’s particularized allegations demonstrate a "substantial likelihood" that the 6 directors would (each) be personally liable for the claims. Rales, 634 A.2d at 936. The 7 fundamental question presented is "whether or not the particularized factual allegations of 8 a derivative stockholder complaint create a reasonable doubt that, as of the time the 9 complaint is filed, the board of directors could have properly exercised its independent 10 and disinterested business judgment in responding to a demand." Rales, 634 A.2d at 934; 11 In re infoUSA, Inc. S’holders Litig., 953 A.2d 963, 985 (Del. Ch. 2007). The Complaint 12 fails to support any doubt as to the majority of Inventure’s seven Directors’ ability to 13 consider a pre-suit demand with disinterested business judgment. 14 3. Plaintiff Has Not Alleged Particularized Facts Showing That A Majority Of Inventure’s Current Board Is Personally Interested 15 Plaintiff’s entire "demand futility" argument is found in the Complaint at ¶¶ 75 to 16 79 and boils down to the following arguments: (1) there is a likelihood that each 17 Defendant faces substantial liability because they allowed Inventure to issue allegedly 18 misleading statements in the 2015 and 2016 Proxies, press releases and/or SEC filings, (2) 19 there is a likelihood that each Defendant faces substantial liability because they failed to 20 ensure adequate food safety and internal controls and/or failed to take appropriate 21 remedial action after the April 2015 Recall, and (3) Defendants have not sued themselves 22 or others in any attempt to recover for Inventure any damages suffered as a result of the 23 April 2015 Recall. None of these allegations is pleaded with particularity sufficient to 24 overcome the presumptions that Inventure’s Board acted in good faith and made decisions 25 protected by the Business Judgment Rule. In fact, this last point is simply false, as 26 Inventure absolutely did take steps—recovering $1.375 Million in litigation relating to 27 the contamination that gave rise to the April 2015 Recall. See BSL Investments, II, LLC, 28 DLA P IPER LLP (US) PHOE NI X 13 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 15 of 20 f/k/a Fresh Frozen Foods, LLC v. Fresh Frozen Foods, Inc., 1:15-CV-2136-AT, in the 2 USDC for the Northern District Court of Georgia (affirmed by 11th Circuit, Case No. 16-3 14255) (Ex. I to Sixkiller Decl.). 4 The Directors Do Not Face Substantial Liability 5 Plaintiff argues that he should be excused from making demand because 6 Inventure’s Board faces "substantial liability" by "allowing" the Company to make 7 allegedly misleading disclosures in its 2015 and 2016 Proxies, press releases and/or SEC 8 filings. Plaintiff’s generalized allegations that the Directors likely face substantial 9 personal liability (and, as such, could not have been impartial) are unavailing. While the 10 threat of personal liability theoretically could suffice to create director interest, the threat 11 of liability must be "sufficiently substantial to cast a reasonable doubt over [the director’s] 12 impartiality." Guttman, 823 A.2d at 500. It is not enough for a plaintiff merely to allege, 13 as the Complaint does here, that a director "might" be liable. Rattner v. Bidzos, No. 14 CIV.A. 19700, 2003 WL 22284323, at *9 (Del. Ch. Sept. 30, 2003) ("Except in 15'egregious circumstances,’ the'mere threat’ of personal liability does not constitute a 16 disabling interest for a director considering a derivative plaintiff's demand.") (citations 17 omitted); Aronson, 473 A.2d at 815 (same). 18 Plaintiff Must Demonstrate Sustained Or Systematic Failure 19 Plaintiff’s contentions only allege, generally, that Inventure’s Board failed in its 20 oversight responsibility, which is "possibly the most difficult theory in corporation law 21 upon which a plaintiff might hope to win a judgment." In re Caremark Int’l, Inc. 22 Derivative Litig., 698 A.2d 959, 967 (Del. Ch. 1996). "[O]nly a sustained or systematic 23 failure of the board to exercise oversight—such as an utter failure to attempt to assure a 24 reasonable information and reporting system exits—will establish the lack of good faith 25 that is a necessary condition to liability." Id. at 971. Relevant factors in determining 26 whether the Board failed to exercise sufficient oversight include whether they "devoted 27 patently inadequate time to its work, or that the audit committee had clear notice of 28 serious accounting irregularities and simply chose to ignore them or, even worse, to DLA P IPER LLP (US) PHOE NI X 14 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 16 of 20 encourage their continuation." Guttman, 823 A.2d at 507. Only through this kind of 2 "gross negligence" may a director be found to have breached the duty of care. Plaintiff has 3 not stated any particularized allegations that demonstrate how or why any of the Directors 4 failed in their oversight responsibility, let alone "a sustained systematic failure." 5 Plaintiff also failed to allege any particularized facts that demonstrate any Board 6 member consciously disregarded any known health or safety risk or otherwise acted in 7 bad faith. Under Delaware Law, Inventure’s Board is "fully protected" from liability when 8 they "rely[] in good faith upon" opinions offered by company officers or outside experts, 9 who were selected with reasonable care. 8 Del. Code §141(e). Indeed, the District of 10 Arizona has held that where there is no particularized allegation that the Directors actually 11 learned of any health or safety risk, and/or that any failure to disclose it was not a result of 12 mere negligence, Plaintiff cannot overcome the demand futility requirement. In re First 13 Solar Derivative Litig., No. CV-12-00769-PHX-DGC, 2016 WL 3548758, at *12 (D. 14 Ariz. June 30, 2016), reconsideration denied, No. CV-12-00769-PHX-DGC, 2016 WL 15 4138266 (D. Ariz. Aug. 4, 2016) (Plaintiff’s "allegations do not suggest that the directors 16 actually learned about the defect, much less that they failed to disclose this information as 17 the result of bad faith, rather than simple negligence"). 18 In Jones ex rel. CSK Auto Corp. v. Jenkins, the District of Arizona similarly 19 rejected allegations that demand was excused because an "Audit Committee was apprised 20 of accounting problems within [the company] or ways in which the Audit Committee’s 21 oversight was so deficient that the Committee’s inaction was tantamount to not doing its 22 job at all." 503 F. Supp. 2d 1325, 1334 (2007) (holding that plaintiff’s allegations are 23 conclusory and "do not satisfy the particularity requirements of Delaware law") (emphasis 24 added). "[T]he fact that the Audit Committee reviewed [the company]’s financial 25 statements does not show that its members knew about prior errors in those statements or 26 consciously disregarded the risk that [the company]’s accounting procedures may have 27 created such errors." Id. at 1336. This argument is "especially weak where," as here, 28 "outside directors are involved." Id. at 1337, 1336 (citing In re Forest Labs., Inc. DLA P IPER LLP (US) PHOE NI X 15 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 17 of 20 Derivative Litig., 450 F. Supp. 2d 379, 391 (S.D.N.Y. 2006) (rejecting plaintiff's attempt 2 to impute knowledge of accounting errors to outside directors). 3 The Directors are further exculpated from liability pursuant to 8 Delaware Code 4 Section 102(B)(7) and the Company’s Articles of Incorporation for the type of conduct 5 alleged by Plaintiff. Section 102(B)(7) permits a Delaware corporation to exculpate its 6 directors for liability arising from any alleged breach of fiduciary duty, except those 7 involving a knowing breach of law, disloyalty, or an act in connection with which a 8 director received an improper personal benefit. 8 Del. Code § 102(B)(7). This exculpatory 9 provision effectively negates allegations by Plaintiff that the Directors are not 10 disinterested for the purposes of demand futility merely because they may face liability 11 for fiduciary breaches. In re Baxter Int’l, Inc. Shareholders Litig., 654 A.2d 1268, 1270-12 71 (Del. Ch. 1995); Arnold v. Society for Sav. Bancorp, Inc., 650 A.2d 1270, 1273, 1286-13 87 (Del. 1994). Even recklessness is not enough to trigger director liability in Delaware. 14 See In re Extreme Networks, Inc. S’holder Derivative Litig., 573 F. Supp. 2d 1228, 1239 15 (N.D. Cal. 2008) (demand not excused unless there is evidence directors acted with actual 16 or constructive knowledge that their conduct was legally improper); Zucker v. Andreessen, 17 No. C.A. 6014-VCP, 2012 WL 2366448, at *11 (Del. Ch. June 21, 2012). In sum, the 18 Complaint does not allege particularized facts establishing that any of Inventure’s seven 19 Board members is likely to face substantial liability, much less that a majority of Directors 20 face liability, which is at minimum what Plaintiff must show to excuse demand. 21 Demand Is Not Excused Because Directors May Be Required To Sue Each Other 22 The assertion that demand is futile merely because a majority of a board are 23 putative defendants and would be required to sue each other has been rejected by 24 numerous federal circuits. Were the rule otherwise, "plaintiffs could readily circumvent 25 the demand requirement merely by naming as defendants all members of the derivative 26 corporation’s board. Permitting plaintiffs to employ this tactic would eviscerate [the 27 demand requirement]." Lewis v. Graves, 701 F.2d 245, 249 (2d Cir. 1983); see also Lewis 28 v. Curtis, 671 F.2d 779, 785 (3d Cir. 1982); Heit v. Baird, 567 F.2d 1157, 1162 (1st Cir. DLA P IPER LLP (US) PHOE NI X 16 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 18 of 20 1977); accord Greenspun v. Del E. Webb Corp., 634 F.2d 1204, 1209-10 (9th Cir. 1980). 2 If courts were to accept allegations like this as a basis for demand futility, plaintiffs could 3 bypass the demand requirement simply by naming all of a corporation’s directors as 4 defendants in a suit, thus making a sham of the demand requirement and rendering 5 meaningless the substantive elements of Rule 23.1. 6 The Directors’ Modest Financial Interests Do Not Excuse Demand 7 Under well-settled "Delaware law, merely being employed by a corporation is not, 8 by itself, sufficient to create a reasonable doubt as to the independence of a director." 9 Israni v. Bittman, 473 F. App’x 548, 551 (9th Cir. 2012) (quoting In re NutriSystem, Inc. 10 Derivative Litig., 666 F. Supp. 2d 501, 515 (E.D. Pa. 2009)). Moreover, demand futility 11 "cannot be pled merely on the basis of allegations that directors acted or would act to 12 preserve their positions." Jones, at 1338 n. 5 (citations omitted). Similarly, "[s]tock 13 ownership alone, at least when it amounts to less than a majority, is not sufficient proof of 14 domination or control." Kaplan v. Centex Corp., 284 A.2d 119, 123 (Del. Ch. 1971). To 15 the contrary, a "director’s receipt of compensation alone does not excuse demand" unless 16 a plaintiff can "provide sufficient factual allegations to show the fees here were unusual or 17 uncustomary." Israni, 473 F. App’x at 550 (citing Orman v. Cullman, 794 A.2d 5, 29 n. 18 62 (Del. Ch. 2002)). Accordingly, Plaintiff has not stated any particularized allegations 19 that would overcome the presumptions of good faith and business judgment, with respect 20 to any Director’s interest in the Company or any actions taken. Plaintiff’s conclusory 21 allegations, without any particularized support, fail as a matter of law. 22 IV. CONCLUSION 23 For all of the reasons provided herein, Defendants respectfully request that the 24 Court enter an order dismissing Plaintiff’s Complaint in its entirety and without leave to 25 amend — Plaintiff having elected to stand on the originally filed Complaint and declining 26 the opportunity to amend despite the express intent by Defendants to seek dismissal based 27 on Plaintiff’s failure to sufficiently plead demand futility. 28 DLA P IPER LLP (US) PHOE NI X 17 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 19 of 20 RESPECTFULLY SUBMITTED this 6th day of July, 2017. 2 DLA PIPER LLP (US) 3 By: s/Laura Sixkiller 4 5 Mark A. Nadeau mark.nadeau@dlapiper.com 6 Laura Sixkiller laura.sixkiller@dlapiper.com 7 Cole Schlabach cole.schlabach@dlapiper.com 8 2525 East Camelback Road Suite 1000 9 Phoenix, AZ 85016-4232 Telephone: 480.606.5100 10 Facsimile: 480.606.5101 11 Attorneys for Defendants 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA P IPER LLP (US) PHOE NI X 18 Case 2:17-cv-00727-JAT Document 26 Filed 07/06/17 Page 20 of 20 CERTIFICATE OF SERVICE 2 I hereby certify that on July 6, 2017, a true and correct copy of this document was 3 filed electronically with the Court. Notice of this filing will be sent by operation of the 4 Court’s electronic filing system to all parties indicated on the electronic filing receipt. 5 Parties may access this filing through the Court’s system. A copy of the same will also be 6 served by email on: 7 Michael McKay, Bar No. 023354 8 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 9 8501 North Scottsdale Road, Suite 270 Scottsdale, AZ 85253 10 Telephone: 480.428.0144 11 Facsimile: 866.505.8036 mmckay@schneiderwallace.com 12 13 Brian J. Robbins Felipe J. Arroyo 14 Shane P. Sanders ROBBINS ARROYO LLP 15 600 B Street, Suite 1900 16 San Diego, CA 92101 Telephone: 619.525.3990 17 Facsimile: 619.525.3991 18 brobbins@robbinsarroyo.com farroyo@robbinsarroyo.com 19 ssanders@robbinsarroyo.com 20 Attorneys for Plaintiff 21 22 s/Stephanie Havell 23 24 25 26 27 28 DLA P IPER LLP (US) PHOE NI X 19

DECLARATION of LAURA SIXKILLER IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS SHAREHOLDER DERIVATIVE COMPLAINT re: [26] Memorandum IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS SHAREHOLDER DERIVATIVE COMPLAINT by Defendants Ashton D Asensio, Timothy A Cole, Macon Bryce Edmonson, Harold S Edwards, Inventure Foods Incorporated, Paul J Lapadat, Terry McDaniel, David L Meyers, Itzhak Reichman, Steve Weinberger.

Case 2:17-cv-00727-JAT Document 27 Filed 07/06/17 Page 1 of 4 1 Mark A. Nadeau (Bar No. 011280) mark.nadeau@dlapiper.com 2 Laura Sixkiller (Bar No. 022014) laura.sixkiller@dlapiper.com 3 Cole S. Schlabach (Bar No. 026364) cole.schlabach@dlapiper.com 4 DLA PIPER LLP (US) 2525 East Camelback Road, Suite 1000 5 Phoenix, AZ 85016-4232 Tel: 480.606.5100 6 Fax: 480.606.5101 dlaphx@dlapiper.com 7 Attorneys for Defendants 8 9 UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF ARIZONA 11 Robert Hutton, Derivatively on Behalf CASE NO.: 2:17-cv-00727 of Inventure Foods, Inc., 12 Plaintiff, 13 DECLARATION OF LAURA v. SIXKILLER IN SUPPORT OF MOTION 14 TO DISMISS PLAINTIFF’S Terry McDaniel, Steve Weinberger, SHAREHOLDER DERIVATIVE 15 Timothy A. Cole, Ashton D. Asensio, COMPLAINT Macon Bryce Edmonson, Paul J. 16 Lapadat, Harold S. Edwards, David L. Meyers, and Itzhak Reichman, (Hon. Judge James A. Teilborg) 17 Defendants. 18-and-19 Inventure Foods, Inc., a Delaware 20 corporation, 21 Nominal Defendant. 22 23 DECLARATION OF LAURA SIXKILLER 24 I, Laura Sixkiller, state as follows: 25 1. I am a partner of DLA Piper LLP (US), counsel of record for Nominal 26 Defendant Inventure Foods, Inc. ("Inventure") and Defendants Terry McDaniel, Steve 27 Weinberger, Timothy A. Cole, Ashton D. Asensio, Macon Bryce Edmonson, Paul J. 28 Lapadat, Harold S. Edwards, David L. Meyers, and Itzhak Reichman (collectively, the DLA P IPER LLP (US) PHOE NI X Case 2:17-cv-00727-JAT Document 27 Filed 07/06/17 Page 2 of 4 1 "Defendants"). This declaration is made in support of Defendants’ Motion to Dismiss 2 Plaintiff’s Complaint. 3 2. Attached hereto as Exhibit A is a true and correct copy of Inventure’s 4 Form S-3 Registration Statement filed with the SEC on June 16, 2014. 5 3. Attached hereto as Exhibit B is a true and correct copy of Inventure’s 6 Form S-3 Amended Registration Statement filed with the SEC on August 26, 2014. 7 4. Attached hereto as Exhibit C is a true and correct copy of Inventure’s 8 Prospectus dated August 28, 2014. 9 5. Attached hereto as Exhibit D is a true and correct copy of Inventure’s 10 Prospectus Supplement filed with the SEC on September 11, 2014. 11 6. Attached hereto as Exhibit E is a true and correct copy of the Closing Press 12 Release, Ex. 99.1 to Inventure 8-K, filed with the SEC on Nov. 12, 2013. 13 7. Attached hereto as Exhibit F is a true and correct copy of the Inventure 14 8-K, filed with the SEC on March 23, 2017. 15 8. Attached hereto as Exhibit G is a true and correct copy of the Recall Notice 16 dated 4/23/15, Ex. 99.1 to Inventure 8-K, filed with the SEC on Apr. 24, 2015. 17 9. Attached hereto as Exhibit H is a true and correct copy of the Schedule 14A 18 Proxy Statement, filed with the SEC on April 11, 2016. 19 10. Attached hereto as Exhibit I is a true and correct copy of Orders filed in 20 BSL Investments, II, LLC, f/k/a Fresh Frozen Foods, LLC v. Fresh Frozen Foods, Inc., 21 1:15-CV-2136-AT, in the USDC for the Northern District Court of Georgia (and 22 affirmation by the 11th Circuit, in Case No. 16-14255). 23 11. Attached hereto as Exhibit J is a true and correct copy of Plaintiff’s 24 5/1/2016 Brokerage Account Statement (attached to Section 220 Demand to Inventure). 25 I declare under penalty of perjury under the laws of the United States that the 26 foregoing is true and correct. 27 28 DLA P IPER LLP (US) PHOE NI X-2-Case 2:17-cv-00727-JAT Document 27 Filed 07/06/17 Page 3 of 4 1 Executed this 6th day of July, 2017, at Phoenix, Arizona. 2 3 s/Laura Sixkiller 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA P IPER LLP (US) PHOE NI X-3-Case 2:17-cv-00727-JAT Document 27 Filed 07/06/17 Page 4 of 4 1 CERTIFICATE OF SERVICE 2 I hereby certify that on July 6, 2017, a true and correct copy of this document was 3 filed electronically with the Court. Notice of this filing will be sent by operation of the 4 Court’s electronic filing system to all parties indicated on the electronic filing receipt. 5 Parties may access this filing through the Court’s system. A copy of the same will also be 6 served by email on: 7 Michael McKay, Bar No. 023354 8 SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 9 8501 North Scottsdale Road, Suite 270 Scottsdale, AZ 85253 10 Telephone: 480.428.0144 11 Facsimile: 866.505.8036 mmckay@schneiderwallace.com 12 13 Brian J. Robbins Felipe J. Arroyo 14 Shane P. Sanders ROBBINS ARROYO LLP 15 600 B Street, Suite 1900 16 San Diego, CA 92101 Telephone: 619.525.3990 17 Facsimile: 619.525.3991 18 brobbins@robbinsarroyo.com farroyo@robbinsarroyo.com 19 ssanders@robbinsarroyo.com 20 Attorneys for Plaintiff 21 22 s/Stephanie Havell 23 24 25 26 27 28 DLA P IPER LLP (US) PHOE NI X-4-

Exhibit A

EXHIBIT A Page 1 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 2 of 54 S-3 1 a2220475zs-3.htm S-3 Use these links to rapidly review the document TABLE OF CONTENTS Table of Contents As filed with the Securities and Exchange Commission on June 16, 2014 Registration No. 333-SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-3 Registration Statement Under the Securities Act of 1933 INVENTURE FOODS, INC. (Exact name of registrant as specified in its charter) Delaware 86-0786101 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 5415 East High Street, Suite #350 Phoenix, Arizona 85054 (623) 932-6200 (Address of Principal Executive Offices) (Zip Code) Terry McDaniel Chief Executive Officer Inventure Foods, Inc. 5415 East High Street, Suite #350 Phoenix, Arizona 85054 (623) 932-6200 (Name, address, including zip code and telephone number, including area code, of agent for service) Copy to: Gregory R. Hall, Esq. DLA Piper LLP (US) 2525 East Camelback Road, Suite 1000 Phoenix, Arizona 85016 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 2 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 3 of 54 Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. o 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, please check the following box. ý 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 earlier effective registration statement for the same offering. o 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. o If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. o If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer", "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. Large accelerated Accelerated Non-accelerated filer o Smaller reporting filer o filer ý (Do not check if a smaller reporting company o company) CALCULATION OF REGISTRATION FEE Proposed Maximum Proposed Maximum Title of Each Class of Securities Amount to be Offering Price Per Aggregate Offering Amount of to be Registered Registered Security Price Registration Fee Primary Offering: Common Stock, $0.01 par value Preferred Stock, $100.00 par value Debt Securities $100,000,000.00(1) (1) $100,000,000.00(1)(2) $12,880.00 Secondary Offering: Common Stock, $0.01 par value 5,000,000 shares(3) $13.1305(2) $65,652,500(2) $8,456.04 Total $165,652,500(2) $21,336.04(4) (1) In the primary offering, there is being registered such indeterminate number or amount of common stock, preferred stock, and debt securities as may from time to time be sold at indeterminate prices and as shall have an aggregate initial offering price not to exceed $100,000,000. This Registration Statement also includes such indeterminate amount of common stock, preferred stock and debt securities as may be resold from time to time upon conversion of convertible securities being registered hereunder or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), the securities being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. (2) With respect to securities to be offered for sale by the Registrant in the primary offering, the proposed maximum aggregate offering price has been estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o). With respect to shares of the Registrant's common stock to be offered for resale by the selling stockholders in the secondary offering, the proposed maximum offering price has been estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) based on the average of the high and low prices reported for the Registrant's common stock traded on The NASDAQ Global Select Market on June 10, 2014. (3) In the secondary offering, there is being registered an aggregate of 5,000,000 shares of common stock of the Registrant to be offered for resale by certain selling stockholders to be named in a prospectus supplement. Pursuant to Rule 416, the securities being registered hereunder include such indeterminate number of shares of common stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. (4) The registration fee of $21,336.04 is being paid at the time of this filing. 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 states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 3 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 4 of 54 of the Securities Act, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine. https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 4 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 5 of 54 Table of Contents The information in this prospectus is not complete and may be changed. Neither we nor the selling stockholders may sell these securities pursuant to this prospectus until the registration statement filed with the Securities and Exchange Commission becomes effective. This prospectus is not an offer to sell these securities and neither we nor any selling stockholder is soliciting offers to buy these securities in any state where the offer or sale is not permitted. Subject to completion, dated June 16, 2014 PROSPECTUS $100,000,000 Common Stock, Preferred Stock and Debt Securities, 5,000,000 Shares of Common Stock Offered by the Selling Stockholders We may from time to time offer to sell common stock, preferred stock, or debt securities, in one or more transactions, with a maximum aggregate offering price of $100,000,000. In addition, the selling stockholders to be named in a prospectus supplement, or transferees, pledgees, donees or other successors of the selling stockholders, may sell up to an aggregate of 5,000,000 shares of our common stock, from time to time under this prospectus and any prospectus supplement. We will not receive any proceeds from the sale of our common stock by the selling stockholders. This prospectus describes the general terms of these securities and the general manner in which these securities will be offered. We will provide the specific terms of these securities in supplements to this prospectus. The prospectus supplements will also describe the specific manner in which these securities will be offered and may also supplement, update or amend information contained in this document. You should read this prospectus and any applicable prospectus supplement, as well as the documents incorporated or deemed to be incorporated by reference in this prospectus, before you invest. We may offer these securities in amounts, at prices and on terms determined at the time of offering. The selling stockholders may offer the common stock in amounts, at prices and on terms determined at the time of offering. The securities may be sold directly to you, through agents, or through underwriters and dealers. If agents, underwriters or dealers are used to sell the securities, we will name them and describe their compensation in a prospectus supplement. Our common stock is listed on The NASDAQ Global Select Market under the symbol "SNAK." On June 10, 2014, the closing price of our common stock was $13.18 per share. Investing in these securities involves risks. See "Risk Factors" included in our most recent annual report on Form 10-K, any subsequent quarterly reports on Form 10-Q and current reports on Form 8-K, including any amendments thereto, incorporated herein by reference or https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 5 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 6 of 54 filed by us after the date of this prospectus, that are incorporated by reference into this prospectus. You should also review carefully the risks and uncertainties described under the heading "Risk Factors" contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus. Neither the Securities and Exchange Commission (the "SEC") nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense. The date of this prospectus is, 2014. https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 6 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 7 of 54 Table of Contents TABLE OF CONTENTS About This Prospectus 1 Forward-Looking Statements 2 The Company 4 Risk Factors 4 Use of Proceeds 4 Ratio of Earnings to Fixed Charges 5 Dividend Policy 5 Description of Capital Stock 6 Description of Debt Securities 8 Legal Ownership of Securities 22 Selling Stockholder 25 Plan of Distribution 25 Legal Matters 28 Experts 28 Where You Can Find More Information 28 Incorporation of Certain Documents by Reference 28 You should rely only on the information contained or incorporated by reference in this prospectus and in any supplement to this prospectus. Neither we nor the selling stockholders have authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. You should assume that the information appearing in this prospectus and any accompanying prospectus supplement is accurate as of the date on their respective covers. Our business, financial condition, results of operations and prospects may have changed since that date. i https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 7 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 8 of 54 Table of Contents ABOUT THIS PROSPECTUS This prospectus is part of a registration statement we filed with the SEC using a "shelf" registration process. Under this registration statement, we may sell up to a total of $100,000,000 of any combination of the securities described in this prospectus from time to time in one or more offerings and the selling stockholders may, from time to time, sell up to an aggregate of 5,000,000 shares of common stock in one or more offerings. The types of securities that we may offer and sell from time to time pursuant to this prospectus are: • common stock; • preferred stock; and • debt securities. In addition, the selling stockholders may offer and sell shares of our common stock pursuant to this prospectus. This prospectus provides you with a general description of the securities we or the selling stockholders may offer. Specific information about the terms of an offering will be included in a prospectus or a prospectus supplement relating to each offering of securities. The prospectus supplement may also add, update or change information included in this prospectus. You should read both this prospectus and any applicable prospectus supplement, together with additional information described below under the caption "Where You Can Find More Information." We have not authorized anyone to give you any additional information different from that contained in this prospectus, any accompanying prospectus supplement or any free writing prospectus provided in connection with an offering. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not making an offer to sell these securities in any jurisdiction where the offer is not permitted. The information contained in this prospectus is accurate only as of the date on the front cover of this prospectus, regardless of when this prospectus is delivered or when any sale of our securities occurs. Our business, financial condition, results of operations and prospects may have changed since that date. This prospectus is not an offer to sell or solicitation of an offer to buy our securities in any circumstances under which or jurisdiction in which the offer or solicitation is unlawful. Unless the context otherwise indicates, the terms "Inventure," "Company," "we," "us," and "our" as used in this prospectus refer to Inventure Foods, Inc. and its subsidiaries. The phrase "this prospectus" refers to this prospectus and any applicable prospectus supplement, unless the context otherwise requires. 1 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 8 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 9 of 54 Table of Contents FORWARD-LOOKING STATEMENTS Certain statements contained or incorporated by reference in this prospectus may constitute forward-looking statements, which involve known and unknown risks, uncertainties and other factors, which may cause actual results, performance or achievements of our Company to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. We use the words "may," "will," "believe," "expect," "anticipate," "intend," "future," "plan," "estimate," "potential" and other similar expressions to identify forward-looking statements. These forward-looking statements are subject to a number of risks, uncertainties and assumptions that could cause actual results to differ materially from those in the forward looking statements. Such risks, uncertainties and assumptions are described in the "Risk Factors" section included in Amendment No. 1 to our Annual Report on Form 10-K for the year ended December 28, 2013, and subsequently filed Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any amendments to those filings, and include, among other things: • the market price of our common stock has been and may continue to be volatile and you may lose all or a part of your investment in our securities; • our acquisition strategy may not be successful or we may not be successful in integrating acquisitions; • changes in the legal and regulatory environment could limit our business activities, increase our operating costs, reduce demand for our products or result in litigation; • our operations and financial condition may be negatively impacted by general economic conditions or economic downturns; • we may not be successful in implementing our business strategy or expanding our business and, even if successful, may incur substantial costs; • we may require additional financing that may not be available on terms attractive to us and, even if financing is available, it may have dilutive and other adverse effects on our stockholders; • we are required to maintain certain ongoing financial covenants under our credit facility, and, if we fail to meet those covenants or otherwise default, our lender may accelerate the payment of such indebtedness; • we may incur losses and costs as a result of product recalls or liability claims; • concerns with the safety and quality of our food products and ingredients could negatively impact our brand image and profitability; • a significant portion of our revenues is derived from one product and one customer, the loss of which could have a material adverse effect on our business, financial condition and results of operation; • we depend on a license agreement for the right to sell our T.G.I. Friday's® branded products; our Jamba® branded products; our Seattle's Best Coffee® branded products; our Nathan's Famous branded projects; and our Vidalia branded product; • our business may be adversely affected by an oversupply of snack and frozen products at the wholesale and retail levels and seasonal fluctuations; • we may incur substantial costs to market our products and may not be able to successfully respond to shifting customer preferences; • the loss of certain key employees and the inability to successfully compete in our highly competitive industry could adversely affect our business; 2 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 9 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 10 of 54 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 10 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 11 of 54 Table of Contents • the unavailability of purchased berries and vegetables at reasonable prices could adversely affect our operations; • we do not own the patents for the technology we use to manufacture certain T.G.I. Friday's®, Boulder Canyon® and Tato Skins® brand products, as well as certain private label branded products; • we are subject to risks that affect the agricultural industry generally, including changes in weather conditions and natural disasters; • a disruption in the performance of our suppliers could have an adverse effect on our operations; • we may not be able to adequately protect our intellectual property and other proprietary rights that are material to our business; • a significant amount of our common stock is controlled by a small number of stockholders whose interests may conflict with those of our other stockholders; • provisions of Delaware law and our charter and bylaws may delay or prevent transactions that would benefit shareholders; and • the issuance of any preferred stock as authorized by our Certificate of Incorporation could adversely affect the rights of holders of common stock. You should not place undue reliance on these forward-looking statements, which speak only as of the date of this prospectus. These forward-looking statements are based on our current expectations and are subject to a number of risks and uncertainties, including those set forth above. Although we believe that the expectations reflected in these forward-looking statements are reasonable, our actual results could differ materially from those expressed in these forward-looking statements, and any events anticipated in the forward-looking statements may not actually occur. Except as required by law, we undertake no duty to update any forward-looking statements after the date of this prospectus to conform those statements to actual results or to reflect the occurrence of unanticipated events. We qualify all forward-looking statements contained or incorporated by reference in this prospectus by the foregoing cautionary statements. 3 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 11 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 12 of 54 Table of Contents THE COMPANY We are a leading marketer and manufacturer of healthy/natural and indulgent specialty snack food brands with headquarters in Phoenix, Arizona and plants in Arizona, Georgia, Indiana, Oregon and Washington. We specialize in two primary product categories: (i) healthy/natural food products and (ii) indulgent specialty snack products. Our products in the healthy/natural food category include Rader Farms® frozen berries, Boulder Canyon® Natural Foods brand kettle cooked potato chips, Willamette Valley Fruit Company™ frozen fruit and vegetables, Fresh Frozen™ frozen vegetables and fruit, Jamba® branded blend-and-serve smoothie kits under license from Jamba Juice Company, Seattle's Best Coffee® Frozen Coffee Blends branded blend-and-serve frozen coffee beverage under license from Seattle's Best Coffee, LLC and private label frozen fruit and healthy/natural snacks. Our products in the indulgent specialty snack food category include T.G.I. Friday's® brand snacks under license from T.G.I. Friday's Inc., Nathan's Famous® brand snack products under license from Nathan's Famous Corporation, Vidalia® brand snack products under license from Vidalia Brands, Inc., Poore Brothers® kettle cooked potato chips, Bob's Texas Style® kettle cooked chips, and Tato Skins® brand potato snacks. We also manufacture private label snacks for certain grocery retail chains and co-pack products for other snack and cereal manufacturers. Our common stock is traded on The NASDAQ Global Select Market under the symbol "SNAK." Our principal executive office is located at 5415 East High Street, Suite 350, Phoenix, Arizona 85054 and the phone number for that office is (623) 932-6200. We maintain a website at www.inventurefoods.com, on which we will post free of charge our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and any amendments to these reports under the heading "Investors" as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. We also routinely post important information about the Company on our website under the heading "Investors." We do not incorporate the information on our website into this prospectus and you should not consider any information on, or that can be accessed through, our website as part of this prospectus. You may read and copy any materials we file with the SEC at the Securities and Exchange Commission Public Reference Room at 100 F Street NE Washington, DC 20549. The SEC also maintains a website that contains our reports and other information at www.sec.gov. RISK FACTORS Before you invest in any of our securities, in addition to the other information in this prospectus and the applicable prospectus supplement, you should carefully consider the risk factors under the heading "Risk Factors" in Amendment No. 1 to our Annual Report on Form 10-K for the year ended December 28, 2013, filed with the SEC on March 14, 2014, which are incorporated by reference into this prospectus and the applicable prospectus supplement, as the same may be updated from time to time by our future filings under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Our business, financial position, results of operations, liquidity or prospects could be adversely affected by any of these risks. USE OF PROCEEDS We intend to use the net proceeds we receive from the sale of securities by us as set forth in the applicable prospectus supplement. Unless otherwise specified in the applicable prospectus supplement, we will not receive any proceeds from the sale of securities by selling stockholders. 4 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 12 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 13 of 54 Table of Contents RATIO OF EARNINGS TO FIXED CHARGES Our consolidated ratio of earnings to fixed charges for each of the periods indicated are as follows: (in thousands except ratio data) Fiscal Year Ended Three-Months Ended March 29, December 28, December 29, December 31, December 25, December 26, 2014 2013 2012 2011 2010 2009 Earnings(1): Income before taxes $ 2,495 $ 9,978 $ 11,681 $ 4,325 $ 6,476 $ 6,197 Fixed charges 604 595 715 504 863 867 Amortization of capitalized interest — — — — — — Distributed income of equity investees — — — — — — Interest capitalized — — — — — — Preference security dividend requirements of consolidated subsidiaries — — — — — — Noncontrolling interest in pre-tax income of subsidiaries that have not incurred fixed charges — — — — — — Total Earnings: $ 3,099 $ 10,573 $ 12,396 $ 4,829 $ 7,339 $ 7,064 Fixed Charges (2): Interest expensed and capitalized $ 637 $ 733 $ 739 $ 530 $ 869 $ 873 Amortized (33) (138) (24) (26) (6) (6) premiums, discounts and capitalized expenses https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 13 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 14 of 54 related to indebtedness Interest portion of rental expense — — — — — — Total fixed charges: $ 604 $ 595 $ 715 $ 504 $ 863 $ 867 Ratio of earnings to fixed charges 5.13 17.76 17.33 9.58 8.51 8.15 (1) "Earnings" is calculated by adding (a) pre-tax income from continuing operations; (b) fixed charges (excluding capitalized interest); and (c) amortization of capitalized interest. (2) "Fixed Charges" means the sum of the following: (a) interest expensed and capitalized (excluding interest expense related to uncertain tax positions), (b) amortized premiums, discounts and capitalized expenses related to indebtedness, and (c) an estimate of the interest within rental expense. For the periods indicated above, we had no outstanding shares of preferred stock with required dividend payments. Therefore, the ratios of earnings to fixed charges and preferred stock dividends are identical to the ratios presented in the table above. DIVIDEND POLICY We have never declared or paid dividends on our common stock and we do not anticipate paying any dividends on our common stock in the foreseeable future. We will pay dividends on our common stock only if and when declared by our board of directors. Our board's ability to declare a dividend is subject to limits imposed by our debt agreements and Delaware corporate law. In determining whether to declare dividends, the board will consider these limits, our financial condition, results of operations, working capital requirements, future prospects and other factors it considers relevant. 5 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 14 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 15 of 54 Table of Contents DESCRIPTION OF CAPITAL STOCK Our authorized share capital consists of 50,000,000 shares of common stock, $0.01 par value, and 50,000 shares of preferred stock, $100.00 par value. As of May 2, 2014, there were 19,439,272 shares of common stock outstanding and no shares of preferred stock issued and outstanding. All outstanding shares of common stock are fully paid and non-assessable. The following summary of our capital stock is qualified in its entirety by the description of our common stock contained in Amendment No. 3 to our Registration Statement on Form SB-2, filed with the SEC on December 5, 1996 (File No. 333-5594-LA), as amended, which description has been incorporated by reference in Item 1 of our Registration Statement on Form 8-A/A, filed with the SEC on December 10, 1996 (File No. 001-14556), including all amendments or reports filed for the purpose of updating such descriptions, and to our certificate of incorporation and bylaws, as amended from time to time, all of which are incorporated by reference as exhibits into the registration statement of which this prospectus is a part. See "Where You Can Find More Information." Common Stock All shares of our common stock are equal with respect to voting, liquidation, dividend and other rights. Owners of common stock are entitled to one vote for each share owned at any meeting of the stockholders. Holders of common stock are entitled to receive such dividends as may be declared by our board of directors out of funds legally available therefor; and upon liquidation, are entitled to participate pro rata in a distribution of assets available for such a distribution to stockholders, subject to the prior claims of holders of any outstanding preferred stock. Our common stock does not have cumulative voting rights. We have not paid cash dividends with respect to our common stock in the past and do not anticipate paying any such dividends in the foreseeable future. None of our outstanding shares of common stock are liable to calls or assessment by us. Preferred Stock We may issue shares of our preferred stock from time to time, in one or more series. Under our certificate of incorporation, we are authorized to issue 50,000 shares of preferred stock, par value $100.00 per share. Our preferred stock is entitled to preference over our common stock with respect to the distribution of our assets in the event of liquidation, dissolution, or winding up of the company. Our preferred stock may be issued from time to time and our board of directors shall have the right to fix the rights, preferences, privileges, qualifications and restrictions granted to or imposed upon the preferred stock. As of May 2, 2014, we do not have any outstanding shares of preferred stock. The issuance of preferred stock could adversely affect the voting power of holders of common stock and reduce the likelihood that common stockholders will receive dividend payments and payments upon liquidation. The issuance could have the effect of decreasing the market price of our common stock. The issuance of preferred stock also could have the effect of delaying, deterring or preventing a change in control of our company. Our board of directors will fix the rights, preferences, privileges, qualifications and restrictions of the preferred stock of each series that we issue in the certificate of designation relating to that series. We will incorporate by reference into the registration statement of which this prospectus is a part the form of any certificate of designation that describes the terms of the series of preferred stock to be offered under this prospectus. This description of the preferred stock in the certificate of designation and any applicable prospectus supplement will include: • the title and stated value; • the number of shares being offered; • the liquidation preference per share; 6 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 15 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 16 of 54 Table of Contents • the purchase price per share; • the currency for which the shares may be purchased; • the dividend rate per share, dividend period and payment dates and method of calculation for dividends; • whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; • our right, if any, to defer payment of dividends and the maximum length of any such deferral period; • the procedures for any auction and remarketing, if any; • the provisions for a sinking fund, if any; • the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase rights; • any listing of the preferred stock on any securities exchange or market; • whether the preferred stock will be convertible into our common stock or other securities of ours, and, if applicable, the conversion period, the conversion price, or how it will be calculated, and under what circumstances it may be adjusted; • whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange period, the exchange price, or how it will be calculated, and under what circumstances it may be adjusted; • voting rights, if any, of the preferred stock; • preemption rights, if any; • restrictions on transfer, sale or other assignment, if any; • a discussion of any material or special United States federal income tax considerations applicable to the preferred stock; • the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; • any limitations on issuances of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and • any other specific terms, rights, preferences, privileges, qualifications or restrictions of the preferred stock. When we issue shares of preferred stock, the shares will be fully paid and non-assessable. Certain Anti-Takeover Effects of Delaware Law and Provisions of Our Certificate of Incorporation and Bylaws Our certificate of incorporation and bylaws and the Delaware General Corporation Law contain provisions that may have the effect of delaying, deferring or preventing a change of control of the Company. These provisions, among other things: • authorize our board of directors to set the terms of preferred stock; 7 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 16 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 17 of 54 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 17 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 18 of 54 Table of Contents • restrict our ability to engage in transactions with stockholders with 15% or more of outstanding voting stock; and • authorize the calling of special meetings of stockholders only by the board of directors, not by the stockholders. Because of these provisions, persons considering unsolicited tender offers or other unilateral takeover proposals may be more likely to negotiate with our board of directors rather than pursue non-negotiated takeover attempts. As a result, these provisions may make it more difficult for our stockholders to benefit from transactions that are opposed by an incumbent board of directors. DESCRIPTION OF DEBT SECURITIES General We may issue senior debt securities and/or subordinated debt securities, which in each case will be unsecured, direct, general obligations of Inventure Foods, Inc. The senior debt securities will rank equally with all our other unsecured and unsubordinated debt. The subordinated debt securities will be subordinate and junior in priority of payment to our senior debt securities, as described below under "Ranking—Subordination of Subordinated Debt Securities" and in the prospectus supplement applicable to any subordinated debt securities that we may offer. For purposes of the descriptions in this section, we may refer to the senior debt securities and the subordinated debt securities collectively as the "debt securities." The debt securities will be effectively subordinated to the creditors of our subsidiaries. We will issue senior debt securities under a senior debt indenture and subordinated debt securities under a separate subordinated debt indenture. Provisions relating to the issuance of debt securities may also be set forth in a supplemental indenture to either of the indentures. For purposes of the descriptions in this section, we may refer to the senior debt indenture and the subordinated debt indenture and any related supplemental indentures, as "an indenture" or, collectively, as "the indentures." The indentures will be qualified under and governed by the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). Each indenture will be between us and a trustee that meets the requirements of the Trust Indenture Act. We expect that each indenture will provide that there may be more than one trustee under that indenture, each with respect to one or more series of debt securities. Any trustee under an indenture may resign or be removed with respect to one or more series of debt securities and, in that event, we may appoint a successor trustee. Except as otherwise provided in the indenture or supplemental indenture, any action permitted to be taken by a trustee may be taken by that trustee only with respect to the one or more series of debt securities for which it is trustee under the applicable indenture. The descriptions in this section relating to the debt securities and the indentures are summaries of their provisions. The summaries are not complete and are qualified in their entirety by reference to the actual indentures and debt securities and the further descriptions in the applicable prospectus supplement. A form of the senior debt indenture and a form of the subordinated debt indenture under which we may issue our senior debt securities and subordinated debt securities, respectively, have been filed with the SEC as exhibits to the registration statement that includes this prospectus and will be available as described under the heading "Where You Can Find More Information" below. Whenever we refer in this prospectus or in any prospectus supplement to particular sections or defined terms of an indenture, those sections or defined terms are incorporated by reference in this prospectus or in the prospectus supplement, as applicable. You should refer to the provisions of the indentures for provisions that may be important to you. 8 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 18 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 19 of 54 Table of Contents The terms and conditions described in this section are terms and conditions that apply generally to the debt securities. The particular terms of any series of debt securities will be summarized in the applicable prospectus supplement. Those terms may differ from the terms summarized below. Except as set forth in the applicable indenture or in a supplemental indenture and described in an applicable prospectus supplement, the indentures do not limit the amount of debt securities we may issue under the indentures. We are not required to issue all of the debt securities of one series at the same time and, unless otherwise provided in the applicable indenture or supplemental indenture and described in the applicable prospectus supplement, we may, from time to time, reopen any series and issue additional debt securities under that series without the consent of the holders of the outstanding debt securities of that series. Additional notes issued in this manner will have the same terms and conditions as the outstanding debt securities of that series, except for their original issue date and issue price, and will be consolidated with, and form a single series with, the previously outstanding debt securities of that series. Terms of Debt Securities to be Included in the Prospectus Supplement The prospectus supplement relating to any series of debt securities that we may offer will set forth the price or prices at which the debt securities will be offered, and will contain the specific terms of the debt securities of that series. These terms may include, without limitation, the following: • the title of the debt securities and whether they are senior debt securities or subordinated debt securities; • the amount of debt securities issued and any limit on the amount that may be issued; • the price(s) (expressed as a percentage of the principal amount) at which the debt securities will be issued; • if other than the principal amount of those debt securities, the portion of the principal amount payable upon declaration of acceleration of the maturity of those debt securities; • the maturity date or dates, or the method for determining the maturity date or dates, on which the principal of the debt securities will be payable and any rights of extension; • the rate or rates, which may be fixed or variable, or the method of determining the rate or rates at which the debt securities will bear interest, if any; • the date or dates from which any interest will accrue and the date or dates on which any interest will be payable, the regular related record dates and whether we may elect to extend or defer such interest payment dates; • the place or places where payments will be payable, where the debt securities may be surrendered for registration of transfer or exchange and where notices or demands to or upon us may be served; • the period or periods within which, the price or prices at which and the other terms and conditions upon which the debt securities may be redeemed, in whole or in part, at our option, if we are to have such an option; • our obligation, if any, to redeem, repay or purchase the debt securities pursuant to any sinking fund or analogous provision or at the option of a holder of the debt securities, and the period or periods within which, or the date and dates on which, the price or prices at which and the other terms and conditions upon which the debt securities will be redeemed, repaid or purchased, in whole or in part, pursuant to that obligation; 9 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 19 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 20 of 54 Table of Contents • the currency or currencies in which the debt securities may be purchased, are denominated and are payable, which may be a foreign currency or units of two or more foreign currencies or a composite currency or currencies, and the related terms and conditions, including whether we or the holders of any such debt securities may elect to receive payments in respect of such debt securities in a currency or currency unit other than that in which such debt securities are stated to be payable; • whether the amount of payments of principal of and premium, if any, or interest, if any, on the debt securities may be determined with reference to an index, formula or other method, which index, formula or method may, but need not be, based on a currency, currencies, currency unit or units or composite currency or currencies or with reference to changes in prices of particular securities or commodities, and the manner in which the amounts are to be determined; • any additions to, modifications of or deletions from the terms of the debt securities with respect to events of default, amendments, merger, consolidation and sale or covenants set forth in the applicable indenture; • whether the debt securities will be issued in certificated or book-entry form; • whether the debt securities will be in registered or bearer form or both and, if in registered form, their denominations, if other than $1,000 and any integral multiple thereof, and, if in bearer form, their denominations, if other than $5,000, and the related terms and conditions; • if the debt securities will be issuable only in global form, the depository or its nominee with respect to the debt securities and the circumstances under which the global security may be registered for transfer or exchange in the name of a person other than the depository or its nominee; • the applicability, if any, of the defeasance and covenant defeasance provisions of the indenture and any additional or different terms on which the series of debt securities may be defeased; • whether the debt securities can be converted into or exchanged for our other securities, and the related terms and conditions; • in the case of subordinated debt securities, provisions relating to any modification of the subordination provisions described elsewhere in this prospectus; • any trustee, depositary, authenticating agent, paying agent, transfer agent, registrar or other agent with respect to the debt securities; and • any other terms of the debt securities. Unless otherwise specified in the applicable prospectus supplement, the debt securities will not be listed on any securities exchange. We may offer and sell our debt securities at a substantial discount below their stated principal amount. These debt securities may be original issue discount securities, which means that less than the entire principal amount of the original issue discount securities will be payable upon declaration of acceleration of their maturity. Special federal income tax, accounting and other considerations applicable to original issue discount securities will be described in the applicable prospectus supplement. We may issue debt securities with a fixed interest rate or a floating interest rate. Any material federal income tax considerations applicable to any discounted debt securities or to debt securities issued at par that are treated as having been issued at a discount for federal income tax purposes will be described in the applicable prospectus supplement. 10 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 20 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 21 of 54 Table of Contents Except as set forth in the applicable indenture or in a supplemental indenture, the debt securities will not contain any provisions that would limit our ability to incur indebtedness or that would afford holders of debt securities protection in the event of a highly leveraged or similar transaction involving us. The debt securities may contain provisions that would afford debt security holders protection in the event of a change of control. You should refer to the applicable prospectus supplement for information with respect to any deletions from, modifications of or additions to the events of default or covenants that are described below, including any addition of a covenant or other provision providing event risk or similar protection. For purposes of the descriptions in this section: • "subsidiary" means a corporation or a partnership or a limited liability company a majority of the outstanding voting stock or partnership or membership interests, as the case may be, of which is owned or controlled, directly or indirectly, by us or by one or more of our other subsidiaries. For the purposes of this definition, "voting stock" means stock having voting power for the election of directors, or trustees, as the case may be, whether at all times or only so long as no senior class of stock has voting power by reason of any contingency; and • "significant subsidiary" means any of our subsidiaries that is a "significant subsidiary," within the meaning of Regulation S-X promulgated by the SEC under the Securities Act of 1933, as amended (the "Securities Act"). Ranking Senior Debt Securities Payment of the principal of and premium, if any, and interest on debt securities we issue under the senior debt indenture will rank equally with all of our unsecured and unsubordinated debt. Subordination of Subordinated Debt Securities To the extent provided in the subordinated debt indenture and any supplemental indenture, and as described in the prospectus supplement describing the applicable series of subordinated debt securities, the payment of the principal of and premium, if any, and interest on any subordinated debt securities, including amounts payable on any redemption or repurchase, will be subordinated in right of payment and junior to senior debt, which is defined below. If there is a distribution to our creditors in a liquidation or dissolution of us, or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to us, the holders of senior debt will first be entitled to receive payment in full of all amounts due on the senior debt (or provision shall be made for such payment in cash) before any payments may be made on the subordinated debt securities. Because of this subordination, our general creditors may recover more, ratably, than holders of subordinated debt securities in the event of a distribution of assets upon insolvency. The supplemental indenture will set forth the terms and conditions under which, if any, we will not be permitted to pay principal, premium, if any, or interest on the related subordinated debt securities upon the occurrence of an event of default or other circumstances arising under or with respect to senior debt. The indentures will place no limitation on the amount of senior debt that we may incur. We expect to incur from time to time additional indebtedness constituting senior debt, which may include indebtedness that is senior to the subordinated debt securities but subordinate to our other obligations. "Senior debt" means the principal of, and premium, if any, and interest, including interest accruing after the commencement of any bankruptcy proceeding relating to us, on, or substantially similar 11 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 21 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 22 of 54 Table of Contents payments we will make in respect of the following categories of debt, whether that debt is outstanding at the date of execution of the applicable indenture or thereafter incurred, created or assumed: • our other indebtedness evidenced by notes, debentures, or bonds or other securities issued under the provisions of any indenture, fiscal agency agreement, note purchase agreement or other agreement, including the senior debt securities that may be offered by means of this prospectus and one or more prospectus supplements; • our indebtedness for money borrowed or represented by purchase-money obligations, as defined below; • our obligations as lessee under leases of property either made as part of a sale and leaseback transaction to which we are a party or otherwise; • indebtedness, obligations and liabilities of others in respect of which we are liable contingently or otherwise to pay or advance money or property or as guarantor, endorser or otherwise or which we have agreed to purchase or otherwise acquire and indebtedness of partnerships and joint ventures which is included in the Company's consolidated financial statements; • reimbursement and other obligations relating to letters of credit, bankers' acceptances and similar obligations; • obligations under various hedging arrangements and agreements, including interest rate and currency hedging agreements; • reimbursement and other obligations relating to letters of credit, bankers' acceptances and similar obligations; • all our obligations issued or assumed as the deferred purchase price of property or services, but excluding trade accounts payable and accrued liabilities arising in the ordinary course of business; and • deferrals, renewals or extensions of any of the indebtedness or obligations described above. However, "senior debt" excludes: • any indebtedness, obligation or liability referred to above as to which, in the instrument creating or evidencing that indebtedness, obligation or liability, it is expressly provided that the indebtedness, obligation or liability is not senior in right of payment to the subordinated debt securities or ranks equally with the subordinated debt securities; • any indebtedness, obligation or liability which is subordinated to our indebtedness to substantially the same extent as or to a greater extent than the subordinated debt securities are subordinated, and • unless expressly provided in the terms thereof, any of our other indebtedness to its subsidiaries. As used above, the term "purchase money obligations" means indebtedness, obligations or guarantees evidenced by a note, debenture, bond or other instrument, whether or not secured by a lien or other security interest, and any deferred obligation for the payment of the purchase price of property but excluding indebtedness or obligations for which recourse is limited to the property purchased, issued or assumed as all or a part of the consideration for the acquisition of property or services, whether by purchase, merger, consolidation or otherwise, but does not include any trade accounts payable. There will not be any restrictions in the subordinated indenture relating to subordinated debt securities upon the creation of additional senior debt. The applicable prospectus supplement may further describe the provisions, if any, applicable to the subordination of the subordinated debt securities of a particular series. The applicable prospectus 12 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 22 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 23 of 54 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 23 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 24 of 54 Table of Contents supplement or the information incorporated by reference in the applicable prospectus supplement or in this prospectus will describe as of a recent date the approximate amount of our senior debt outstanding as to which the subordinated debt securities of that series will be subordinated. Structural Subordination The debt securities will be structurally subordinated to all indebtedness and other liabilities of our subsidiaries, since our right to receive any assets of our subsidiaries upon their liquidation or reorganization, and the consequent right of the holders of the debt securities to participate in those assets, will be effectively subordinated to the claims of that subsidiary's creditors. If we are recognized as a creditor of that subsidiary, our claims would still be subordinate to any security interest in the assets of that subsidiary and any indebtedness of that subsidiary senior to that held by us. Conversion or Exchange of Debt Securities The applicable prospectus supplement will set forth the terms, if any, on which a series of debt securities may be converted into or exchanged for our other securities. These terms will include whether conversion or exchange is mandatory, or is at our option or at the option of the holder. We will also describe in the applicable prospectus supplement how we will calculate the number of securities that holders of debt securities would receive if they were to convert or exchange their debt securities, the conversion price and other terms related to conversion and any anti-dilution protections. Redemption of Securities We may redeem the debt securities at any time, in whole or in part, at the prescribed redemption price, at the times and on the terms described in the applicable prospectus supplement. From and after notice has been given as provided in the indentures, if we have made available funds for the redemption of any debt securities called for redemption on the applicable redemption date, the debt securities will cease to bear interest on the date fixed for the redemption specified in the notice, and the only right of the holders of the debt securities will be to receive payment of the redemption price. Notice of any optional redemption by us of any debt securities is required to be given to holders at their addresses, as shown in the security register. The notice of redemption will be required to specify, among other items, the redemption price and the principal amount of the debt securities held by the holder to be redeemed. If we elect to redeem debt securities, we will be required to notify the trustee of the aggregate principal amount of debt securities to be redeemed and the redemption date. If fewer than all the debt securities are to be redeemed, the trustee is required to select the debt securities to be redeemed equally, by lot or in a manner it deems fair and appropriate. Denomination, Interest, Registration and Transfer Unless otherwise specified in the applicable prospectus supplement, we will issue the debt securities (i) in denominations of $1,000 or integral multiples of $1,000 if the debt securities are in registered form, and (ii) in denominations of $5,000 if the debt securities are in bearer form. Unless otherwise specified in the applicable prospectus supplement, we will pay the principal of, and applicable premium, if any, and interest on any series of debt securities at the corporate trust office of the trustee, the address of which will be stated in the applicable prospectus supplement. At our option, we may pay interest by check mailed to the address of the person entitled to the interest payment as it appears in the register for the applicable debt securities or by wire transfer of funds to that person at an account maintained within the United States. 13 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 24 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 25 of 54 Table of Contents Any defaulted interest, which means interest not punctually paid or duly provided for on any interest payment date with respect to a debt security, will immediately cease to be payable to the registered holder on the applicable regular record date by virtue of his having been the registered holder on such date. We may pay defaulted interest either to the person in whose name the debt security is registered at the close of business on a special record date for the payment of the defaulted interest to be fixed by the trustee, notice of which is to be given to the holder of the debt security not less than ten days before the special record date, or at any time in any other lawful manner, all as more completely described in the applicable indenture or supplemental indenture. Subject to limitations imposed upon debt securities issued in book-entry form, the holder may exchange debt securities of any series for other debt securities of the same series and of a like aggregate principal amount and tenor of different authorized denominations upon surrender of the debt securities at the corporate trust office of the applicable trustee. In addition, subject to limitations imposed upon debt securities issued in book-entry form, the holder may surrender debt securities of any series for registration of transfer or exchange at the corporate trust office of the applicable trustee. Every debt security surrendered for registration of transfer or exchange must be duly endorsed or accompanied by a written instrument of transfer. No service charge will be imposed for any registration of transfer or exchange of any debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with any registration of transfer or exchange of any debt securities. If the applicable prospectus supplement refers to any transfer agent, in addition to the applicable trustee, initially designated by us with respect to any series of debt securities, we may at any time rescind the designation of that transfer agent or approve a change in the location through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for that series. We may at any time designate additional transfer agents with respect to any series of debt securities. If we redeem the debt securities of any series, neither we nor any trustee will be required to: • issue, register the transfer of, or exchange debt securities of any series during a period beginning at the opening of business 15 days before any selection of debt securities of that series to be redeemed and ending at the close of business on the day of mailing of the relevant notice of redemption; • register the transfer of, or exchange any debt security, or portion of any debt security, called for redemption, except the unredeemed portion of any debt security being redeemed in part; or • issue, register the transfer of, or exchange any debt security that has been surrendered for repayment at the option of the holder, except the portion, if any, of the debt security not to be repaid. Global Securities We may issue the debt securities of a series in whole or in part in the form of one or more global securities to be deposited with, or on behalf of, a depository or with a nominee for a depository identified in the applicable prospectus supplement relating to that series. We may issue global securities in either registered or bearer form and in either temporary or permanent form. The specific terms of the depository arrangement with respect to a series of debt securities will be described in the prospectus supplement relating to that series. Our obligations with respect to the debt securities, as well as the obligations of the applicable trustee, run only to persons who are registered holders of debt securities. For example, once we make payment to the registered holder, we have no further responsibility for that payment even if the recipient is legally required to pass the payment along to an individual investor but fails to do so. As an indirect holder, an investor's rights relating to a global security will be governed by the account rules of 14 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 25 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 26 of 54 Table of Contents the investor's financial institution and of the depositary, as well as general laws relating to transfers of debt securities. An investor should be aware that when debt securities are issued in the form of global securities: • the investor cannot have debt securities registered in his or her own name; • the investor cannot receive physical certificates for his or her debt securities; • the investor must look to his or her bank or brokerage firm for payments on the debt securities and protection of his or her legal rights relating to the debt securities; • the investor may not be able to sell interests in the debt securities to some insurance or other institutions that are required by law to hold the physical certificates of debt that they own; • the depositary's policies will govern payments, transfers, exchanges and other matters relating to the investor's interest in the global security; and • the depositary will usually require that interests in a global security be purchased or sold within its system using same-day funds. The applicable prospectus supplement for a series of debt securities will list the special situations, if any, in which a global security will terminate and interests in the global security will be exchanged for physical certificates representing debt securities. After that exchange, the investor may choose whether to hold debt securities directly or indirectly through an account at the investor's bank or brokerage firm. In that event, investors must consult their banks or brokers to find out how to have their interests in debt securities transferred to their own names so that they may become direct holders. When a global security terminates, the depositary, and not us or one of the trustees, is responsible for deciding the names of the institutions that will be the initial direct holders. Merger, Consolidation or Sale of Assets We will not be permitted to consolidate with or merge into any other entity, or sell, lease, transfer or convey all or substantially all of our properties and assets, either in one transaction or a series of transactions, to any other entity and no other entity will consolidate with or merge into us, or sell, lease, transfer or convey all or substantially all of its properties and assets to us unless: (1) either: • we are the continuing entity, or • the successor entity, if other than us, formed by or resulting from any consolidation or merger, or which has received the transfer of our assets, expressly assumes payment of the principal of, and premium, if any, and interest on all of the outstanding debt securities and the due and punctual performance and observance of all of the covenants and conditions contained in the indentures, and (2) immediately after giving effect to the transaction and treating any indebtedness that becomes our obligation or the obligation of any of our subsidiaries as a result of that transaction as having been incurred by us or our subsidiary at the time of the transaction, no event of default under the indentures or supplemental indentures, and no event which, after notice or the lapse of time, or both, would become an event of default, will have occurred and be continuing; provided, that the conditions described in (1) and (2) above will not apply to the direct or indirect transfer of the stock, assets or liabilities of any of our subsidiaries to another of our direct or indirect subsidiaries. 15 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 26 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 27 of 54 Table of Contents Except as provided in this prospectus or as may otherwise be provided in the applicable prospectus supplement, the indenture and the terms of the debt securities will not contain any event risks or similar covenants that are intended to afford protection to holders of any debt securities in the event of a merger, a highly leveraged transaction or other significant corporate event involving us or our subsidiaries, whether or not resulting in a change of control, which may adversely affect holders of the debt securities. Additional Covenants and/or Modifications to the Covenant Described Above Any additional covenants and/or modifications to the covenants described above with respect to any series of debt securities, including any covenants relating to limitations on incurrence of indebtedness or other financial covenants, will be set forth in the applicable indenture or supplemental indenture and described in the applicable prospectus supplement relating to that series of debt securities. Unless the applicable prospectus supplement indicates otherwise, the subordinated debt indenture does not contain any other provision which restricts us from, among other things: • incurring or becoming liable on any secured or unsecured senior indebtedness or general obligations; or • paying dividends or making other distributions on our capital stock; or • purchasing or redeeming our capital stock; or • creating any liens on our property for any purpose. Events of Default, Waiver and Notice Events of Default The events of default with respect to any series of debt securities issued under it, subject to any modifications or deletions provided in any supplemental indenture with respect to any specific series of debt securities, include the following events: • failure to pay any installment of interest or any additional amounts payable on any debt security of the series for 30 days; • failure to pay principal of, or premium, if any, on, any debt security of the series when due, whether at maturity, upon redemption, by declaration or acceleration of maturity or otherwise; • default in making any sinking fund payment (if any) when due, for any debt security of the series; • default in the performance or breach of any of our other covenants or warranties contained in the applicable indenture, other than a covenant added to the indenture solely for the benefit of any other series of debt securities issued under that indenture, continued for 90 days after written notice as provided in the applicable indenture; • specific events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of us or any significant subsidiary or either of our property; and • any other event of default provided with respect to a particular series of debt securities. If an event of default under any indenture with respect to debt securities of any series at the time outstanding occurs and is continuing, then in every case other than in the case of specific events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of us or any significant subsidiary or either of our property, in which case acceleration will be automatic, the 16 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 27 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 28 of 54 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 28 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 29 of 54 Table of Contents applicable trustee or the holders of not less than 25% of the principal amount of the outstanding debt securities of that series will have the right to declare the principal amount, or, if the debt securities of that series are original issue discount securities or indexed securities, the portion of the principal amount as may be specified in the terms of that series, of all the debt securities of that series to be due and payable immediately by written notice to us, and to the applicable trustee if given by the holders. At any time after a declaration of acceleration has been made with respect to debt securities of a series, or of all debt securities then outstanding under any indenture, as the case may be, but before a judgment or decree for payment of the money due has been obtained by the applicable trustee, however, the holders of not less than a majority in principal amount of the outstanding debt securities of that series, or of all debt securities then outstanding under the applicable indenture, as the case may be, may annul the declaration of acceleration and waive any default in respect of those debt securities if: • we have deposited with the applicable trustee all required payments due otherwise than by acceleration of the principal of, and premium, if any, and interest on the debt securities of that series, or of all debt securities then outstanding under the applicable indenture, as the case may be, plus specified fees, expenses, disbursements and advances of the applicable trustee, and • all events of default, other than the non-payment of all or a specified portion of the accelerated principal, with respect to debt securities of that series, or of all debt securities then outstanding under the applicable indenture, as the case may be, have been cured or waived as provided in the applicable indenture. Waiver Each indenture also will provide that the holders of not less than a majority in principal amount of the outstanding debt securities of any series, or of all debt securities then outstanding under the applicable indenture, as the case may be, may waive any past default with respect to that series and its consequences, except a default: • in the payment of the principal of, or premium, if any, or interest on any debt security of that series, or • in respect of a covenant or provision contained in the applicable indenture that, by the terms of that indenture, cannot be modified or amended without the consent of each affected holder of an outstanding debt security. Notice Each trustee will be required to give notice to the holders of the applicable debt securities within 90 days of a default under the applicable indenture unless the default has been cured or waived; but the trustee may withhold notice of any default, except a default in the payment of the principal of, or premium, if any, or interest on the debt securities or in the payment of any sinking fund installment in respect of the debt securities, if specified responsible officers of the trustee consider the withholding to be in the interest of the holders. The holders of debt securities of any series may not institute any proceedings, judicial or otherwise, with respect to the indentures or for any remedy under the indentures, except in the case of failure of the applicable trustee, for 60 days, to act after the trustee has received a written request to institute proceedings in respect of an event of default from the holders of not less than 25% in principal amount of the outstanding debt securities of that series, as well as an offer of indemnity reasonably satisfactory to the trustee, and provided that no direction inconsistent with such written request has been given to the trustee during such 60-day period by the holders of a majority of the outstanding debt securities of that series. However, any holder of debt securities is not prohibited from 17 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 29 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 30 of 54 Table of Contents instituting suit for the enforcement of payment of the principal of, and premium, if any, and interest on the debt securities at their respective due dates. Subject to the trustee's duties in case of default, no trustee will be under any obligation to exercise any of its rights or powers under an indenture at the request or direction of any holders of any series of debt securities then outstanding under that indenture, unless the holders offer to the trustee reasonable security or indemnity. Subject to such provisions for the indemnification of the trustee, the holders of not less than a majority in principal amount of the outstanding debt securities of any series, or of all debt securities then outstanding under an indenture, as the case may be, will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable trustee, or of exercising any trust or power conferred upon the trustee. A trustee may refuse, however, to follow any direction that is in conflict with any law or the applicable indenture that may involve the trustee in personal liability or may be unduly prejudicial to the holders of debt securities of that series not joining in the direction. Within 180 days after the end of each fiscal year, we will be required to deliver to each trustee a certificate, signed by one of several specified officers, stating whether or not that officer has knowledge of any default under the applicable indenture and, if so, specifying each default and the nature and status of the default. Modification of the Indentures Except as otherwise specifically provided in the applicable indenture, with the consent of the holders of not less than a majority in principal amount of all outstanding debt securities issued under that indenture that are affected by the modification or amendment, we may enter into supplemental indentures with the trustee for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of such indenture or of modifying in any manner the rights of the holders under debt securities issued under such indenture. However, no modification or amendment may, without the consent of the holder of each debt security affected by the modification or amendment: • except as described in the applicable prospectus supplement relating to such debt security: • extend the stated maturity of the principal of, or any installment of interest or any additional amounts, or the premium, if any, on, any debt security, • reduce the principal amount of, or the rate or amount of interest on, or change the manner of calculating the rate, or any premium payable on redemption of, any debt security, or reduce the amount of principal of an original issue discount security that would be due and payable upon declaration of acceleration of its maturity or would be provable in bankruptcy, or adversely affect any right of repayment of the holder of any debt security, • extend the time of payment of interest on any debt security or any additional amounts, • change any of the conversion, exchange or redemption provisions of any debt security, • change the place of payment, or the coin or currency for payment, of principal, or premium, if any, including any amount in respect of original issue discount or interest on any debt security, • impair the right to institute suit for the enforcement of any payment on or with respect to any debt security or for the conversion or exchange of any debt security in accordance with its terms, and • in the case of subordinated debt securities, modify the ranking or priority of the securities, 18 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 30 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 31 of 54 Table of Contents • reduce the percentage of outstanding debt securities of any series necessary to modify or amend the applicable indenture, to waive compliance with specific provisions of or certain defaults and consequences under the applicable indenture, or to reduce the quorum or voting requirements set forth in the applicable indenture, or • modify any of the provisions relating to the waiver of specific past defaults or specific covenants, except to increase the required percentage to effect that action or to provide that specific other provisions may not be modified or waived without the consent of the holder of that debt security. The holders of not less than a majority in principal amount of the outstanding debt securities of each series affected by the modification or amendment will have the right to waive compliance by us with specific covenants in the indenture. We and the respective trustee may modify and amend an indenture without the consent of any holder of debt securities for any of the following purposes: • to evidence the succession of another person to us as obligor under the indenture or to evidence the addition or release of any guarantor in accordance with the indenture or any supplemental indenture; • to add to our covenants for the benefit of the holders of all or any series of debt securities or to surrender any right or power conferred upon us in the indenture; • to add events of default for the benefit of the holders of all or any series of debt securities; • to add or change any provisions of the indenture to facilitate the issuance of, or to liberalize specific terms of, debt securities in bearer form, or to permit or facilitate the issuance of debt securities in uncertificated form, provided that the action will not adversely affect the interests of the holders of the debt securities of any series in any material respect; • to change or eliminate any provisions of an indenture, if the change or elimination becomes effective only when there are no debt securities outstanding of any series created prior to the change or elimination that are entitled to the benefit of the changed or eliminated provision; • to establish the form or terms of debt securities of any series and any related coupons; • to provide for the acceptance of appointment by a successor trustee or facilitate the administration of the trusts under an indenture by more than one trustee; • to cure any ambiguity or correct any inconsistency in an indenture provided that the cure or correction does not adversely affect the holders of the debt securities; • to supplement any of the provisions of an indenture to the extent necessary to permit or facilitate defeasance and discharge of any series of debt securities, provided that the supplement does not adversely affect the interests of the holders of the debt securities of any series in any material respect; • to make provisions with respect to the conversion or exchange terms and conditions applicable to the debt securities of any series; • to add to, delete from or revise the conditions, limitations or restrictions on issue, authentication and delivery of debt securities; • to conform any provision in an indenture to the requirements of the Trust Indenture Act; or • to make any change that does not adversely affect the legal rights under an indenture of any holder of debt securities of any series issued under that indenture. 19 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 31 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 32 of 54 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 32 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 33 of 54 Table of Contents In determining whether the holders of the requisite principal amount of outstanding debt securities of a series have given any request, demand, authorization, direction, notice, consent or waiver under the indenture or whether a quorum is present at a meeting of holders of debt securities: • the principal amount of an original issue discount security that is deemed to be outstanding will be the amount of the principal of that original issue discount security that would be due and payable as of the date of the determination upon declaration of acceleration of the maturity of that original issue discount security; • the principal amount of any debt security denominated in a foreign currency that is deemed outstanding will be the U.S. dollar equivalent, determined on the issue date for that debt security, of the principal amount, or, in the case of an original issue discount security, the U.S. dollar equivalent on the issue date of that debt security of the amount determined as provided in the immediately preceding bullet point; • the principal amount of an indexed security that is deemed outstanding will be the principal face amount of the indexed security at original issuance, unless otherwise provided with respect to the indexed security under the applicable indenture; and • debt securities owned by us or any other obligor upon the debt securities or any of our affiliates or of any other obligor are to be disregarded. Discharge, Defeasance and Covenant Defeasance Discharge We may be permitted under the applicable indenture to discharge specific obligations to holders of any series of debt securities (1) that have not already been delivered to the applicable trustee for cancellation and (2) that either have become due and payable or will, within one year, become due and payable or scheduled for redemption, by irrevocably depositing with the applicable trustee, in trust, money or funds certified to be sufficient to pay when due, whether at maturity, upon redemption or otherwise, the principal of, and premium, if any, on and interest on the debt securities. Defeasance and Covenant Defeasance If the provisions of the applicable indenture relating to defeasance and covenant defeasance are made applicable to the debt securities of or within any series, we may elect either: • defeasance, which means we elect to defease and be discharged from any and all obligations with respect to the debt securities, except for the obligations to register the transfer or exchange of the debt securities, to replace temporary or mutilated, destroyed, lost or stolen debt securities, to maintain an office or agency in respect of the debt securities and to hold moneys for payment in trust; or • covenant defeasance, which means we elect to be released from our obligations with respect to the debt securities under specified sections of the applicable indenture relating to covenants, as described in the applicable prospectus supplement and any omission to comply with its obligations will not constitute an event of default with respect to the debt securities, in either case upon the irrevocable deposit by us with the applicable trustee, in trust, of an amount, in currency or currencies or government obligations, or both, sufficient without reinvestment to make scheduled payments of the principal of, and premium, if any, and interest on the debt securities, when due, whether at maturity, upon redemption or otherwise, and any mandatory sinking fund or analogous payments. 20 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 33 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 34 of 54 Table of Contents A trust will only be permitted to be established if, among other things: • we have delivered to the applicable trustee an opinion of counsel, as specified in the applicable indenture, to the effect that the holders of the debt securities will not recognize income, gain or loss for federal income tax purposes as a result of the defeasance or covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the defeasance or covenant defeasance had not occurred, and the opinion of counsel, in the case of defeasance, will be required to refer to and be based upon a ruling of the Internal Revenue Service or a change in applicable U.S. federal income tax law occurring after the date of the indenture; • no event of default or any event which after notice or lapse of time or both would be an event of default has occurred; • the defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, the applicable indenture or any other material agreement or instrument to which we are a party or by which we are bound; • certain other provisions set forth in the applicable indenture are met; and • we will have delivered to the trustee an officers' certificate and an opinion of counsel, each stating that all conditions precedent to the defeasance or covenant defeasance have been complied with. In general, if we elect covenant defeasance with respect to any debt securities and payments on those debt securities are declared due and payable because of the occurrence of an event of default, the amount of money and/or government obligations on deposit with the applicable trustee would be sufficient to pay amounts due on those debt securities at the time of their stated maturity, but may not be sufficient to pay amounts due on those debt securities at the time of the acceleration resulting from the event of default. In that case, we would remain liable to make payment of the amounts due on the debt securities at the time of acceleration. The applicable prospectus supplement may further describe the provisions, if any, permitting defeasance or covenant defeasance, including any modifications to the provisions described above, with respect to the debt securities of or within a particular series. Regarding the Trustees We will designate the trustee under the senior and subordinated debt indentures in the applicable prospectus supplement. From time to time, we may enter into banking or other relationships with any of such trustees or their affiliates. There may be more than one trustee under each indenture, each with respect to one or more series of debt securities. Any trustee may resign or be removed with respect to one or more series of debt securities, and a successor trustee may be appointed to act with respect to such series. If two or more persons are acting as trustee with respect to different series of debt securities, each trustee will be a trustee of a trust under the indenture separate from the trust administered by any other such trustee. Except as otherwise indicated in this prospectus, any action to be taken by the trustee may be taken by each such trustee with respect to, and only with respect to, the one or more series of debt securities for which it is trustee under the indenture. Governing Law The senior debt securities, the subordinated debt securities and the related indentures will be governed by, and construed in accordance with, the internal laws of the State of New York. 21 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 34 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 35 of 54 Table of Contents LEGAL OWNERSHIP OF SECURITIES We can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee or depositary or warrant agent maintain for this purpose as the "holders" of those securities. These persons are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as "indirect holders" of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect holders. Book-Entry Holders We may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate in the depositary's book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers. Only the person in whose name a security is registered is recognized as the holder of that security. Global securities will be registered in the name of the depositary. Consequently, for global securities, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities. As a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary's book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not holders, of the securities. Street Name Holders We may terminate global securities or issue securities that are not issued in global form. In these cases, investors may choose to hold their securities in their own names or in "street name." Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution. For securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and we or any such trustee or depositary will make all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities. Legal Holders Our obligations, as well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who 22 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 35 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 36 of 54 Table of Contents hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form. For example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements with its participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with a particular provision of an indenture, or for other purposes. In such an event, we would seek approval only from the holders, and not the indirect holders, of the securities. Whether and how the holders contact the indirect holders is up to the holders. Special Considerations for Indirect Holders If you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are represented by one or more global securities or in street name, you should check with your own institution to find out: • how it handles securities payments and notices; • whether it imposes fees or charges; • how it would handle a request for the holders' consent, if ever required; • whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future; • how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and • if the securities are in book-entry form, how the depositary's rules and procedures will affect these matters. Global Securities A global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms. Each security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known as DTC, will be the depositary for all securities issued in book-entry form. A global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under "—Special Situations When a Global Security Will Be Terminated." As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a holder of the security, but only an indirect holder of a beneficial interest in the global security. 23 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 36 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 37 of 54 Table of Contents If the prospectus supplement for a particular security indicates that the security will be issued as a global security, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system. Special Considerations for Global Securities As an indirect holder, an investor's rights relating to a global security will be governed by the account rules of the investor's financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security. If securities are issued only as global securities, an investor should be aware of the following: • investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below; • an investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe above; • an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form; • an investor may not be able to pledge his or her interest in the global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; • the depositary's policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor's interest in the global security. We and any applicable trustee have no responsibility for any aspect of the depositary's actions or for its records of ownership interests in the global security. We and the trustee also do not supervise the depositary in any way; • the depositary may, and we understand that DTC will, require that those who purchase and sell interests in the global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and • financial institutions that participate in the depositary's book-entry system, and through which an investor holds its interest in the global security, may also have their own policies affecting payments, notices and other matters relating to the securities. There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries. Special Situations When a Global Security Will be Terminated In a few special situations described below, a global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to their own names, so that they will be direct holders. We have described the rights of holders and street name investors above. 24 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 37 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 38 of 54 Table of Contents A global security will terminate when the following special situations occur: • if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days; • if we notify any applicable trustee that we wish to terminate that global security; or • if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived. The prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders. SELLING STOCKHOLDERS We are registering 5,000,000 shares of common stock to permit the stockholders to be named in a prospectus supplement, and their transferees, pledgees, donees or successors, to resell the shares in the manner contemplated under "Plan of Distribution." Certain shares of common stock included in this prospectus for resale by the selling stockholders were initially acquired in connection with our acquisition of Wabash Foods, LLC in October 1999, pursuant to which we issued shares of common stock and warrants, which were subsequently exercised, to the former owners of Wabash Foods, LLC as consideration for all of the membership interests in Wabash Foods, LLC. The remaining shares of common stock that may be offered by the selling stockholders were acquired pursuant to equity awards and open market purchases since January 1, 2010. Information about the selling stockholders will be set forth in an applicable prospectus supplement. The initial purchasers of these securities, as well as their transferees, pledgees, donees or successors, all of whom are referred to herein as "selling stockholders," may from time to time offer and sell such securities pursuant to this prospectus and any applicable prospectus supplement. An applicable prospectus supplement will set forth the name of each selling stockholder, the nature of any position, office, or other material relationship which any selling stockholder has had within the past three years with us or any of our predecessors or affiliates, if any, the amount of our common stock owned by each selling stockholder prior to the offering, the amount of our common stock which may be offered for each selling stockholder's account, and the amount and (if one percent or more) the percentage of our common stock to be owned by each selling stockholder after completion of the offering. The selling stockholders shall not sell any shares of our common stock pursuant to this prospectus until we have identified such selling stockholders and the shares of our common stock which may be offered for resale by such selling stockholders in a subsequent prospectus supplement. However, the selling stockholders may sell or transfer all or a portion of their shares of common stock pursuant to any available exemption from the registration requirements of the Securities Act. PLAN OF DISTRIBUTION The securities being offered by this prospectus may be sold by us or by the selling stockholders (which as used in this prospectus includes donees, pledgees, transferees or other successors-in-interest selling common stock received after the date of this prospectus from a selling stockholder as a gift, pledge, distribution or other transfer): • through agents; • to or through underwriters; 25 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 38 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 39 of 54 Table of Contents • through broker-dealers (acting as agent or principal); • directly by us or a selling stockholder to purchasers, through a specific bidding or auction process or otherwise; • through a combination of any such methods of sale; or • through any other methods described in a prospectus supplement. The distribution of securities may be effected from time to time in one or more transactions, including block transactions and transactions on The NASDAQ Global Select Market or any other organized market where the securities may be traded, in the over-the-counter market, or otherwise, on a continuous or delayed basis. The selling stockholders may act independently of us in making decisions with respect to the timing, manner and size of each sale. The securities may be sold at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices relating to the prevailing market prices or at negotiated prices. The consideration may be cash or another form negotiated by the parties. Agents, underwriters or broker-dealers may be paid compensation for offering and selling the securities. That compensation may be in the form of discounts, concessions or commissions to be received from us or from the purchasers of the securities. The selling stockholders and any dealers and agents participating in the distribution of the securities may be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting discounts. If such selling stockholders, dealers or agents were deemed to be underwriters, they may be subject to statutory liabilities under the Securities Act. Agents may from time to time solicit offers to purchase the securities. If required, we will name in the applicable prospectus supplement any agent involved in the offer or sale of the securities and set forth any compensation payable by us or the selling stockholders to the agent. Unless otherwise indicated in the prospectus supplement, any agent will be acting on a best efforts basis for the period of its appointment. Any agent selling the securities covered by this prospectus may be deemed to be an underwriter, as that term is defined in the Securities Act, of the securities. If underwriters are used in a sale, securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale, or under delayed delivery contracts or other contractual commitments. Securities may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. If an underwriter or underwriters are used in the sale of securities, an underwriting agreement will be executed with the underwriter or underwriters at the time an agreement for the sale is reached. The applicable prospectus supplement will set forth the managing underwriter or underwriters, as well as any other underwriter or underwriters, with respect to a particular underwritten offering of securities, and will set forth the terms of the transactions, including compensation of the underwriters and dealers and the public offering price, if applicable. The prospectus and the applicable prospectus supplement will be used by the underwriters to resell the securities. If a dealer is used in the sale of the securities, we, the selling stockholders, or an underwriter will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. To the extent required, we will set forth in the prospectus supplement the name of the dealer and the terms of the transactions. We or the selling stockholders may directly solicit offers to purchase the securities and we or the selling stockholders may make sales of securities directly to institutional investors or others. These persons may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of the securities. To the extent required, the prospectus supplement will describe the terms of any such sales, including the terms of any bidding or auction process, if used. 26 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 39 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 40 of 54 Table of Contents Agents, underwriters and dealers may be entitled under agreements which may be entered into with us or the selling stockholders to indemnification by us or the selling stockholders against specified liabilities, including liabilities incurred under the Securities Act, or to contribution by us or the selling stockholders to payments they may be required to make in respect of such liabilities. If required, the prospectus supplement will describe the terms and conditions of such indemnification or contribution. Some of the agents, underwriters or dealers, or their affiliates may be customers of, engage in transactions with or perform services for us or our subsidiaries in the ordinary course of business. Under the securities laws of some states, the securities offered by this prospectus may be sold in those states only through registered or licensed brokers or dealers. The selling stockholders may also sell shares in accordance with Rule 144 under the Securities Act, or pursuant to other available exemptions from the registration requirements of the Securities Act, rather than pursuant to this prospectus. In addition, the selling stockholders or their successors in interest may enter into hedging transactions with broker-dealers who may engage in short sales of the shares, short and deliver the shares to close out such short positions, or loan or pledge the shares to broker-dealers that in turn may see such securities. The selling stockholders or their successors in interest may also enter into option or other transactions with broker-dealers that require the delivery by such broker-dealers of the shares, which may be resold thereafter under this prospectus and an accompanying prospectus supplement if the shares are delivered by the selling stockholders. The selling stockholders may not satisfy their obligations in connection with short sale or hedging transactions entered into before the effective date of the registration statement of which this prospectus is a part by delivering securities registered under such registration statement. The selling stockholders or their successors in interest may from time to time pledge or grant a security interest in some or all of the shares and, if the selling stockholders default in the performance of their secured obligation, the pledges or secured parties may offer and sell the shares from time to time under this prospectus and an accompanying prospectus supplement. Any person participating in the distribution of common stock registered under the registration statement that includes this prospectus will be subject to applicable provisions of the Exchange Act, and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit the timing of purchases and sales of any of our common stock by any such person. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of our common stock to engage in market-making activities with respect to our common stock. These restrictions may affect the marketability of our common stock and the ability of any person or entity to engage in market-making activities with respect to our common stock. Certain persons participating in an offering may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act that stabilize, maintain or otherwise affect the price of the offered securities. If any such activities will occur, they will be described in the applicable prospectus supplement. Other than our common stock, which is listed on The NASDAQ Global Select Market, each of the securities issued hereunder will be a new issue of securities, will have no prior trading market, and may or may not be listed on a national securities exchange. Any common stock sold pursuant to a prospectus supplement will be listed on The NASDAQ Global Select Market, subject to official notice of issuance. Any underwriters to whom securities are sold by us or the selling stockholders for public offering and sale may make a market in such securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot assure you that there will be a market for the offered securities. 27 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 40 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 41 of 54 Table of Contents LEGAL MATTERS Unless otherwise specified in a prospectus supplement accompanying this prospectus, the validity of the securities offered hereby will be passed upon by DLA Piper LLP (US), Phoenix, Arizona, and for any underwriters or agents by counsel named in the applicable prospectus supplement. EXPERTS Our consolidated balance sheets as of December 28, 2013 and December 29, 2012, the related consolidated statements of operations, comprehensive income, stockholders' equity, and cash flows for each of the three years in the period ended December 28, 2013, and the effectiveness of Inventure Foods, Inc.'s internal control over financial reporting as of December 28, 2013 have been incorporated by reference herein in reliance upon the report of Moss Adams LLP, an independent registered public accounting firm, given upon the authority of that firm as experts in accounting and auditing. The balance sheets of Fresh Frozen Foods, LLC, as of December 31, 2012 and 2011, and the related statements of income, changes in members' equity, and cash flows for the years then ended have been incorporated by reference herein in reliance upon the report of Nichols, Cauley & Associates, LLC, an independent registered public accounting firm, given upon the authority of that firm as experts in accounting and auditing. WHERE YOU CAN FIND MORE INFORMATION We are currently subject to the information requirements of the Exchange Act and in accordance therewith file periodic reports, proxy statements and other information with the Securities and Exchange Commission. You may read and copy (at prescribed rates) any such reports, proxy statements and other information at the SEC's Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference room. Our SEC filings will also be available to you on the SEC's website at http://www.sec.gov. Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus. If you make a request for such information in writing or by telephone, we will provide you, without charge, a copy of any or all of the information incorporated by reference into this prospectus. Any such request should be directed to: Inventure Foods, Inc. 5415 East High Street, Suite #350 Phoenix, Arizona 85054 (623) 932-6200 Attention: Secretary INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The SEC allows us to "incorporate by reference" certain information into this prospectus, which means that we can disclose important information about us by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be a part of this prospectus. Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included 28 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 41 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 42 of 54 Table of Contents or incorporated in this prospectus. This means that you must carefully review all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. However, we undertake no obligation to update or revise any statements we make, except as required by law. This prospectus incorporates by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (in each case, other than those documents or the portions of those documents not deemed to be filed) until the offering of the securities under the registration statement is terminated or completed: • our Annual Report on Form 10-K for the fiscal year ended December 28, 2013, filed with the SEC on March 13, 2014, as amended by Amendment No. 1 to our Annual Report on Form 10-K/A, filed with the SEC on March 14, 2014; • our Quarterly Report on Form 10-Q for the quarterly period ended March 29, 2014, filed with the SEC on May 6, 2014; • our Current Report on Form 8-K/A filed with the SEC on January 24, 2014 and Current Reports on Form 8-K filed with the SEC on April 21, 2014, May 16, 2014 and June 2, 2014; • our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 14, 2014, to the extent incorporated by reference into our Annual Report on Form 10-K for the year ended December 28, 2013; and • The description of our common stock, par value $0.01 per share, included under the caption "Description of Securities" in the Prospectus forming a part of Amendment No. 3 to the Company's Registration Statement on Form SB-2, filed with the SEC on December 5, 1996 (File No. 333-5594-LA), including exhibits, and as amended, which description has been incorporated by reference in Item 1 of our Registration Statement on Form 8-A/A, filed pursuant to Section 12 of the Exchange Act, on December 10, 1996 (File No. 001-14556). 29 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 42 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 43 of 54 Table of Contents INVENTURE FOODS, INC. PROSPECTUS https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 43 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 44 of 54 Table of Contents PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution The following table sets forth the expenses in connection with the issuance and distribution of the securities covered by this Registration Statement. All such expenses are estimates, other than the registration fee payable to the Securities and Exchange Commission, and will be borne by the Registrant. Registration Fee $ 21,336.04 Fees and expenses of accountants (1) Fees and expenses of counsel to the Registrant (1) Trustee's fees and expenses (1) Miscellaneous (1) Total $ (1) (1) These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time. Item 15. Indemnification of Directors and Officers The Delaware General Corporation Law ("DGCL") authorizes a corporation to indemnify any person who was or is a party or is threatened to be made a 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 a corporation) by reason of the fact that the person 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, partnership, joint venture, trust, or other enterprise against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person. The DGCL also authorizes a corporation to indemnify any person who was or is a party, or was or is threatened to be made 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 the person 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, partnership, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by the person, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. The corporation may only indemnify an officer, director, employee or agent if: (i) the indemnified person acted in good faith and in a manner reasonably believed by the person to be in, or not opposed to, the best interests of the corporation; and (ii) in the case of a criminal proceeding, the indemnified person had no reasonable cause to believe his or her conduct was unlawful. No indemnification may be made if it is determined that the individual did not meet the above listed standards. II-1 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 44 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 45 of 54 Table of Contents A corporation's determination of whether to indemnify someone who is a director or officer at the time of such determination must be made: (i) by a vote of the majority of disinterested directors (even if less than a quorum); (ii) by a committee of disinterested directors designated by the majority vote of the disinterested directors (even if less than a quorum); (iii) by special legal counsel if there are fewer than two disinterested directors or if such disinterested directors so direct; or (iv) by the stockholders, but shares owned by or voted by a director who is not disinterested may not be voted. Where a present or former officer or director of the corporation defends a matter successfully, indemnification for reasonable expenses is mandatory. Officers' and directors' expenses may be paid in advance of final disposition if the person agrees to repay the advances if he or she is later determined not to be entitled to indemnification. To the fullest extent permitted by applicable law, a corporation is authorized to provide indemnification of (and advancement of expenses to) agents of the company (and any other persons to which DGCL permits the company to provide indemnification) through bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the DGCL, subject only to limits created by applicable DGCL (statutory or non-statutory), with respect to actions for breach of duty to the corporation, its stockholders, and others. Our certificate of incorporation provides that no director shall be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duty by such a director as a director, except to the extent (i) for any breach of such director's duty of loyalty to us or our stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which such director derived an improper personal benefit. In addition, our by-laws provide that we shall indemnify any person who was or is a party or is threatened to be made a 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 the Company) by reason of the fact that that person is or was our director or officer, or is or was our director or officer serving at our request as a director or officer, employee, or agent of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by that person in connection with the action, suit, or proceeding if that person acted in good faith and in a manner that person reasonably believed to be in or not opposed to our best interests, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that person's conduct was unlawful. With respect to actions, suits or proceedings by or in the right of the Company, our by-laws provide that we shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the Company to procure a judgment in its favor by reason of the fact that that person is or was our director or officer, or is or was our director or officer serving at our request as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against expenses (including attorneys' fees) actually and reasonably incurred by that person in connection with the defense or settlement of the action or suit if that person acted in good faith and in a manner that person reasonably believed to be in or not opposed to our best interests; except that no indemnification II-2 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 45 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 46 of 54 Table of Contents shall be made in respect of any claim, issue or matter as to which that person shall have been adjudged to be liable to us unless and only to the extent that the Court of Chancery or the court in which the action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, that person is fairly and reasonably entitled to indemnity for those expenses which the Court of Chancery or such other court shall deem proper. We shall only indemnify an officer or director (unless ordered by a court) to the extent authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because the person has met the applicable standard of conduct described above. This determination shall be made by (i) a majority vote of the directors who are not parties to the action, suit, or proceeding, even though less than a quorum, or (ii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that one of our directors or officers has been successful on the merits or otherwise in defense of any action, suit, or proceeding described above, or in defense of any claim, issue, or matter therein, that person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by that person in connection therewith, without the necessity of authorization in the specific case. If we do not authorize the indemnification of an officer or director in a specific case, that officer or director may apply to the Court of Chancery in the State of Delaware for indemnification to the extent otherwise permissible under our by-laws. The basis of such indemnification by a court shall be a determination by the court that indemnification of the director or officer is proper in the circumstances because such person has met the applicable standards of conduct set forth above. Neither our contrary determination in the specific case nor the absence of any determination shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. Our by-laws further provide that we shall pay in advance of final disposition expenses incurred by a director or officer in defending any civil, criminal, administrative, or investigative action, suit, or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay the advanced amount if it shall ultimately be determined that the person is not entitled to be indemnified by us. The rights to indemnification and advancement of expenses described above shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the certificate of incorporation, any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in the person's official capacity and as to action in another capacity while holding such office, it being our policy to indemnify the persons described above to the fullest extent permitted by law. We are not, however, obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by that person unless the proceeding (or part thereof) was authorized or consented to by our board of directors, except in the case of director or officer applications to a court for indemnification as described above. We may purchase and maintain insurance on behalf of any person who is or was our director or officer, or is or was our director or officer serving at our request as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise against any liability asserted against the person and incurred by the person in any such capacity, or arising out of the person's status as such, whether or not we would have the power or the obligation to indemnify the person against such liability under our by-laws. We may also, to the extent authorized from time to time by our board of directors, provide rights to indemnification and to the advancement of expenses to our employees and agents similar to those conferred to our directors and officers as described above. II-3 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 46 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 47 of 54 Table of Contents Item 16. Exhibits The following documents are filed as exhibits to this registration statement: Exhibit No. Description *1.1 Form of Underwriting Agreement. 3.1 Certificate of Incorporation (Filed as Exhibit 3.1 to the Registrant's Current Report on Form 8-K filed on May 26, 2006, and incorporated herein by reference). 3.2 Certificate of Amendment to Certificate of Incorporation (Filed as Exhibit 3.2 to the Registrant's Current Report on Form 8-K filed May 26, 2006, and incorporated herein by reference). 3.3 Certificate of Amendment to Certificate of Incorporation (Filed as Exhibit 3.3 to the Registrant's Current Report on Form 8-K filed May 26, 2006, and incorporated herein by reference). 3.4 Certificate of Amendment to Certificate of Incorporation (Filed as Exhibit 3.4 to the Registrant's Current Report on Form 8-K filed May 26, 2006, and incorporated herein by reference). 3.5 Certificate of Amendment to Certificate of Incorporation (Filed as Exhibit 3.6 to the Registrant's Current Report on Form 8-K filed May 24, 2010, and incorporated herein by reference). 3.6 Amended and Restated Bylaws (Filed as Exhibit 99.1 to the Registrant's Current Report on Form 8-K filed on January 12, 2005, and incorporated herein by reference). 4.1 Specimen Certificate for Shares of Common Stock (Filed as an exhibit to Amendment No. 1 to the Registrant's Registration Statement on Form SB-2, Registration No. 333-5594-LA, and incorporated herein by reference). *4.2 Form of Certificate of Designation. 4.3 Form of Senior Debt Indenture. 4.4 Form of Subordinated Debt Indenture. *4.5 Form of Preferred Stock Certificate. *4.6 Form of Senior Debt Security. *4.7 Form of Subordinated Debt Security. 5.1 Opinion of DLA Piper LLP (US) relating to the validity of the securities being registered. 12.1 Statement of Ratio of Earnings to Fixed Charges. 23.1 Consent of DLA Piper LLP (US) (included as part of Exhibit 5.1). 23.2 Consent of Moss Adams LLP, an independent registered public accounting firm. https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 47 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 48 of 54 23.3 Consent of Nichols, Cauley & Associates, LLC, an independent registered public accounting firm. 24.1 Power of Attorney (included in the signature page to this Registration Statement). *25.1 Form T-1 of Trustee under the Senior Debt Indenture. *25.2 Form T-1 of Trustee under the Subordinated Debt Indenture. * To be filed in connection with the offering of securities registered hereunder. II-4 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 48 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 49 of 54 Table of Contents Item 17. Undertakings. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for the purpose of determining liability under the Securities Act to any purchaser: (i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and (ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a) (1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 49 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 50 of 54 II-5 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 50 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 51 of 54 Table of Contents offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. (5) That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; (ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant; (iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and (iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to any charter provision, bylaw, contract, arrangement, statute, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. 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 against the Registrant by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of 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 and will be governed by the final adjudication of such issue. (d) The undersigned Registrant hereby undertakes to file an application for the purpose of determining the eligibility of the applicable trustee to act under subsection (a) of Section 310 of the Trust Indenture Act of 1939 ("Act") in accordance with the rules and regulations of the SEC under Section 305(b)(2) of the Act. II-6 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 51 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 52 of 54 Table of Contents SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona, on the 16th day of June, 2014. INVENTURE FOODS, INC. By:/s/TERRY MCDANIEL Terry McDaniel Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears below constitutes and appoints each of Terry McDaniel and Steve Weinberger his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Form S-3, and to file the same, with all exhibits thereto and other documents in connection therewith with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act or things requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as he might or could do in person hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Signature Title Date/s/TERRY MCDANIEL Chief Executive Officer and Director (Principal Executive June 16, 2014 Terry McDaniel Officer)/s/STEVE WEINBERGER Chief Financial Officer (Principal June 16, 2014 Steve Weinberger Financial and Accounting Officer)/s/DAVID L. MEYERS Chairman and Director June 16, 2014 David L. Meyers/s/ASHTON D. ASENSIO Director June 16, 2014 Ashton D. Asensio II-7 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 52 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 53 of 54 Table of Contents Signature Title Date/s/PAUL J. LAPADAT Director June 16, 2014 Paul J. Lapadat/s/MACON BRYCE EDMONSON Director June 16, 2014 Macon Bryce Edmonson/s/TIMOTHY A. COLE Director June 16, 2014 Timothy A. Cole/s/HAROLD S. EDWARDS Director June 16, 2014 Harold S. Edwards II-8 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017 Page 53 of 53 Case 2:17-cv-00727-JAT Document 27-1 Filed 07/06/17 Page 54 of 54 https://www.sec.gov/Archives/edgar/data/944508/000104746914005619/a2220475zs-3.htm 7/5/2017

Exhibit B

EXHIBIT B Page 1 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 2 of 54 S-3/A 1 a2221237zs-3a.htm S-3/A Use these links to rapidly review the document TABLE OF CONTENTS Table of Contents As filed with the Securities and Exchange Commission on August 26, 2014 Registration No. 333-196795 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Amendment No. 1 FORM S-3 Registration Statement Under the Securities Act of 1933 INVENTURE FOODS, INC. (Exact name of registrant as specified in its charter) Delaware 86-0786101 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 5415 East High Street, Suite #350 Phoenix, Arizona 85054 (623) 932-6200 (Address of Principal Executive Offices) (Zip Code) Terry McDaniel Chief Executive Officer Inventure Foods, Inc. 5415 East High Street, Suite #350 Phoenix, Arizona 85054 (623) 932-6200 (Name, address, including zip code and telephone number, including area code, of agent for service) Copy to: Gregory R. Hall, Esq. DLA Piper LLP (US) 2525 East Camelback Road, Suite 1000 Phoenix, Arizona 85016 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 2 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 3 of 54 Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. o 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, please check the following box. ý 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 earlier effective registration statement for the same offering. o 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. o If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. o If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer", "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. Large accelerated Accelerated Non-accelerated filer o Smaller reporting filer o filer ý (Do not check if a smaller reporting company o company) CALCULATION OF REGISTRATION FEE Proposed Maximum Proposed Maximum Title of Each Class of Securities Amount to be Offering Price Per Aggregate Offering Amount of to be Registered Registered Security Price Registration Fee Primary Offering: Common Stock, $0.01 par value Preferred Stock, $100.00 par value Debt Securities $100,000,000.00(1) (1) $100,000,000.00(1)(2) $12,880.00 Secondary Offering: Common Stock, $0.01 par value 5,000,000 shares(3) $13.1305(2) $65,652,500(2) $8,456.04 Total $165,652,500(2) $21,336.04(4) (1) In the primary offering, there is being registered such indeterminate number or amount of common stock, preferred stock, and debt securities as may from time to time be sold at indeterminate prices and as shall have an aggregate initial offering price not to exceed $100,000,000. This Registration Statement also includes such indeterminate amount of common stock, preferred stock and debt securities as may be resold from time to time upon conversion of convertible securities being registered hereunder or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), the securities being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. (2) With respect to securities to be offered for sale by the Registrant in the primary offering, the proposed maximum aggregate offering price has been estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o). With respect to shares of the Registrant's common stock to be offered for resale by the selling stockholders in the secondary offering, the proposed maximum offering price has been estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) based on the average of the high and low prices reported for the Registrant's common stock traded on The NASDAQ Global Select Market on June 10, 2014. (3) In the secondary offering, there is being registered an aggregate of 5,000,000 shares of common stock of the Registrant to be offered for resale by certain selling stockholders to be named in a prospectus supplement. Pursuant to Rule 416, the securities being registered hereunder include such indeterminate number of shares of common stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. (4) Previously paid. https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 3 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 4 of 54 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 states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine. https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 4 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 5 of 54 Table of Contents The information in this prospectus is not complete and may be changed. Neither we nor the selling stockholders may sell these securities pursuant to this prospectus until the registration statement filed with the Securities and Exchange Commission becomes effective. This prospectus is not an offer to sell these securities and neither we nor any selling stockholder is soliciting offers to buy these securities in any state where the offer or sale is not permitted. Subject to completion, dated August 26, 2014 PROSPECTUS $100,000,000 Common Stock, Preferred Stock and Debt Securities, 5,000,000 Shares of Common Stock Offered by the Selling Stockholders We may from time to time offer to sell common stock, preferred stock, or debt securities, in one or more transactions, with a maximum aggregate offering price of $100,000,000. In addition, the selling stockholders to be named in a prospectus supplement, or transferees, pledgees, donees or other successors of the selling stockholders, may sell up to an aggregate of 5,000,000 shares of our common stock, from time to time under this prospectus and any prospectus supplement. We will not receive any proceeds from the sale of our common stock by the selling stockholders. This prospectus describes the general terms of these securities and the general manner in which these securities will be offered. We will provide the specific terms of these securities in supplements to this prospectus. The prospectus supplements will also describe the specific manner in which these securities will be offered and may also supplement, update or amend information contained in this document. You should read this prospectus and any applicable prospectus supplement, as well as the documents incorporated or deemed to be incorporated by reference in this prospectus, before you invest. We may offer these securities in amounts, at prices and on terms determined at the time of offering. The selling stockholders may offer the common stock in amounts, at prices and on terms determined at the time of offering. The securities may be sold directly to you, through agents, or through underwriters and dealers. If agents, underwriters or dealers are used to sell the securities, we will name them and describe their compensation in a prospectus supplement. Our common stock is listed on The NASDAQ Global Select Market under the symbol "SNAK." On August 25, 2014, the closing price of our common stock was $11.87 per share. Investing in these securities involves risks. See "Risk Factors" included in our most recent annual report on Form 10-K, any subsequent quarterly reports on Form 10-Q and current reports on Form 8-K, including any amendments thereto, incorporated herein by reference or https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 5 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 6 of 54 filed by us after the date of this prospectus, that are incorporated by reference into this prospectus. You should also review carefully the risks and uncertainties described under the heading "Risk Factors" contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus. Neither the Securities and Exchange Commission (the "SEC") nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense. The date of this prospectus is, 2014. https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 6 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 7 of 54 Table of Contents TABLE OF CONTENTS About This Prospectus 1 Forward-Looking Statements 2 The Company 4 Risk Factors 4 Use of Proceeds 4 Ratio of Earnings to Fixed Charges 5 Dividend Policy 5 Description of Capital Stock 6 Description of Debt Securities 8 Legal Ownership of Securities 22 Selling Stockholder 25 Plan of Distribution 25 Legal Matters 28 Experts 28 Where You Can Find More Information 28 Incorporation of Certain Documents by Reference 28 You should rely only on the information contained or incorporated by reference in this prospectus and in any supplement to this prospectus. Neither we nor the selling stockholders have authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. You should assume that the information appearing in this prospectus and any accompanying prospectus supplement is accurate as of the date on their respective covers. Our business, financial condition, results of operations and prospects may have changed since that date. i https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 7 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 8 of 54 Table of Contents ABOUT THIS PROSPECTUS This prospectus is part of a registration statement we filed with the SEC using a "shelf" registration process. Under this registration statement, we may sell up to a total of $100,000,000 of any combination of the securities described in this prospectus from time to time in one or more offerings and the selling stockholders may, from time to time, sell up to an aggregate of 5,000,000 shares of common stock in one or more offerings. The types of securities that we may offer and sell from time to time pursuant to this prospectus are: • common stock; • preferred stock; and • debt securities. In addition, the selling stockholders may offer and sell shares of our common stock pursuant to this prospectus. This prospectus provides you with a general description of the securities we or the selling stockholders may offer. Specific information about the terms of an offering will be included in a prospectus or a prospectus supplement relating to each offering of securities. The prospectus supplement may also add, update or change information included in this prospectus. You should read both this prospectus and any applicable prospectus supplement, together with additional information described below under the caption "Where You Can Find More Information." We have not authorized anyone to give you any additional information different from that contained in this prospectus, any accompanying prospectus supplement or any free writing prospectus provided in connection with an offering. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not making an offer to sell these securities in any jurisdiction where the offer is not permitted. The information contained in this prospectus is accurate only as of the date on the front cover of this prospectus, regardless of when this prospectus is delivered or when any sale of our securities occurs. Our business, financial condition, results of operations and prospects may have changed since that date. This prospectus is not an offer to sell or solicitation of an offer to buy our securities in any circumstances under which or jurisdiction in which the offer or solicitation is unlawful. Unless the context otherwise indicates, the terms "Inventure," "Company," "we," "us," and "our" as used in this prospectus refer to Inventure Foods, Inc. and its subsidiaries. The phrase "this prospectus" refers to this prospectus and any applicable prospectus supplement, unless the context otherwise requires. 1 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 8 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 9 of 54 Table of Contents FORWARD-LOOKING STATEMENTS Certain statements contained or incorporated by reference in this prospectus may constitute forward-looking statements, which involve known and unknown risks, uncertainties and other factors, which may cause actual results, performance or achievements of our Company to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. We use the words "may," "will," "believe," "expect," "anticipate," "intend," "future," "plan," "estimate," "potential" and other similar expressions to identify forward-looking statements. These forward-looking statements are subject to a number of risks, uncertainties and assumptions that could cause actual results to differ materially from those in the forward looking statements. Such risks, uncertainties and assumptions are described in the "Risk Factors" section included in Amendment No. 1 to our Annual Report on Form 10-K for the year ended December 28, 2013, and subsequently filed Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any amendments to those filings, and include, among other things: • the market price of our common stock has been and may continue to be volatile and you may lose all or a part of your investment in our securities; • our acquisition strategy may not be successful or we may not be successful in integrating acquisitions; • changes in the legal and regulatory environment could limit our business activities, increase our operating costs, reduce demand for our products or result in litigation; • our operations and financial condition may be negatively impacted by general economic conditions or economic downturns; • we may not be successful in implementing our business strategy or expanding our business and, even if successful, may incur substantial costs; • we may require additional financing that may not be available on terms attractive to us and, even if financing is available, it may have dilutive and other adverse effects on our stockholders; • we are required to maintain certain ongoing financial covenants under our credit facility, and, if we fail to meet those covenants or otherwise default, our lender may accelerate the payment of such indebtedness; • we may incur losses and costs as a result of product recalls or liability claims; • concerns with the safety and quality of our food products and ingredients could negatively impact our brand image and profitability; • a significant portion of our revenues is derived from one product and one customer, the loss of which could have a material adverse effect on our business, financial condition and results of operation; • we depend on a license agreement for the right to sell our T.G.I. Friday's® branded products; our Jamba® branded products; our Seattle's Best Coffee® branded products; our Nathan's Famous branded projects; and our Vidalia branded product; • our business may be adversely affected by an oversupply of snack and frozen products at the wholesale and retail levels and seasonal fluctuations; • we may incur substantial costs to market our products and may not be able to successfully respond to shifting customer preferences; • the loss of certain key employees and the inability to successfully compete in our highly competitive industry could adversely affect our business; 2 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 9 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 10 of 54 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 10 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 11 of 54 Table of Contents • the unavailability of purchased berries and vegetables at reasonable prices could adversely affect our operations; • we do not own the patents for the technology we use to manufacture certain T.G.I. Friday's®, Boulder Canyon® and Tato Skins® brand products, as well as certain private label branded products; • we are subject to risks that affect the agricultural industry generally, including changes in weather conditions and natural disasters; • a disruption in the performance of our suppliers could have an adverse effect on our operations; • we may not be able to adequately protect our intellectual property and other proprietary rights that are material to our business; • a significant amount of our common stock is controlled by a small number of stockholders whose interests may conflict with those of our other stockholders; • provisions of Delaware law and our charter and bylaws may delay or prevent transactions that would benefit shareholders; and • the issuance of any preferred stock as authorized by our Certificate of Incorporation could adversely affect the rights of holders of common stock. You should not place undue reliance on these forward-looking statements, which speak only as of the date of this prospectus. These forward-looking statements are based on our current expectations and are subject to a number of risks and uncertainties, including those set forth above. Although we believe that the expectations reflected in these forward-looking statements are reasonable, our actual results could differ materially from those expressed in these forward-looking statements, and any events anticipated in the forward-looking statements may not actually occur. Except as required by law, we undertake no duty to update any forward-looking statements after the date of this prospectus to conform those statements to actual results or to reflect the occurrence of unanticipated events. We qualify all forward-looking statements contained or incorporated by reference in this prospectus by the foregoing cautionary statements. 3 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 11 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 12 of 54 Table of Contents THE COMPANY We are a leading marketer and manufacturer of healthy/natural and indulgent specialty snack food brands with headquarters in Phoenix, Arizona and plants in Arizona, Georgia, Indiana, Oregon and Washington. We specialize in two primary product categories: (i) healthy/natural food products and (ii) indulgent specialty snack products. Our products in the healthy/natural food category include Rader Farms® frozen berries, Boulder Canyon® Natural Foods brand kettle cooked potato chips, Willamette Valley Fruit Company™ frozen fruit and vegetables, Fresh Frozen™ frozen vegetables and fruit, Jamba® branded blend-and-serve smoothie kits under license from Jamba Juice Company, Seattle's Best Coffee® Frozen Coffee Blends branded blend-and-serve frozen coffee beverage under license from Seattle's Best Coffee, LLC and private label frozen fruit and healthy/natural snacks. Our products in the indulgent specialty snack food category include T.G.I. Friday's® brand snacks under license from T.G.I. Friday's Inc., Nathan's Famous® brand snack products under license from Nathan's Famous Corporation, Vidalia® brand snack products under license from Vidalia Brands, Inc., Poore Brothers® kettle cooked potato chips, Bob's Texas Style® kettle cooked chips, and Tato Skins® brand potato snacks. We also manufacture private label snacks for certain grocery retail chains and co-pack products for other snack and cereal manufacturers. Our common stock is traded on The NASDAQ Global Select Market under the symbol "SNAK." Our principal executive office is located at 5415 East High Street, Suite 350, Phoenix, Arizona 85054 and the phone number for that office is (623) 932-6200. We maintain a website at www.inventurefoods.com, on which we will post free of charge our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and any amendments to these reports under the heading "Investors" as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. We also routinely post important information about the Company on our website under the heading "Investors." We do not incorporate the information on our website into this prospectus and you should not consider any information on, or that can be accessed through, our website as part of this prospectus. You may read and copy any materials we file with the SEC at the Securities and Exchange Commission Public Reference Room at 100 F Street NE Washington, DC 20549. The SEC also maintains a website that contains our reports and other information at www.sec.gov. RISK FACTORS Before you invest in any of our securities, in addition to the other information in this prospectus and the applicable prospectus supplement, you should carefully consider the risk factors under the heading "Risk Factors" in Amendment No. 1 to our Annual Report on Form 10-K for the year ended December 28, 2013, filed with the SEC on March 14, 2014, which are incorporated by reference into this prospectus and the applicable prospectus supplement, as the same may be updated from time to time by our future filings under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Our business, financial position, results of operations, liquidity or prospects could be adversely affected by any of these risks. USE OF PROCEEDS We intend to use the net proceeds we receive from the sale of securities by us as set forth in the applicable prospectus supplement. Unless otherwise specified in the applicable prospectus supplement, we will not receive any proceeds from the sale of securities by selling stockholders. 4 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 12 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 13 of 54 Table of Contents RATIO OF EARNINGS TO FIXED CHARGES Our consolidated ratio of earnings to fixed charges for each of the periods indicated are as follows: (in thousands except ratio data) Fiscal Year Ended Six-Months Ended June 28, December 28, December 29, December 31, December 25, December 26, 2014 2013 2012 2011 2010 2009 Earnings(1): Income before taxes $ 6,343 $ 9,978 $ 11,681 $ 4,325 $ 6,476 $ 6,197 Fixed charges 1,254 872 764 885 881 879 Amortization of capitalized interest — — — — — — Distributed income of equity investees — — — — — — Interest capitalized — — — — — — Preference security dividend requirements of consolidated subsidiaries — — — — — — Noncontrolling interest in pre-tax income of subsidiaries that have not incurred fixed charges — — — — — — Total Earnings: $ 7,597 $ 10,850 $ 12,445 $ 5,210 $ 7,357 $ 7,076 Fixed Charges (2): Interest expensed and capitalized $ 1,187 $ 734 $ 740 $ 859 $ 861 $ 859 Amortized premiums, discounts and capitalized expenses related to indebtedness 67 138 24 26 20 20 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 13 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 14 of 54 Interest — — — — — — portion of rental expense Total fixed charges: $ 1,254 $ 872 $ 764 $ 885 $ 881 $ 879 Ratio of earnings to fixed charges 6.06 12.44 16.29 5.89 8.35 8.05 (1) "Earnings" is calculated by adding (a) pre-tax income from continuing operations; (b) fixed charges (excluding capitalized interest); and (c) amortization of capitalized interest. (2) "Fixed Charges" means the sum of the following: (a) interest expensed and capitalized (excluding interest expense related to uncertain tax positions), (b) amortized premiums, discounts and capitalized expenses related to indebtedness, and (c) an estimate of the interest within rental expense. For the periods indicated above, we had no outstanding shares of preferred stock with required dividend payments. Therefore, the ratios of earnings to fixed charges and preferred stock dividends are identical to the ratios presented in the table above. DIVIDEND POLICY We have never declared or paid dividends on our common stock and we do not anticipate paying any dividends on our common stock in the foreseeable future. We will pay dividends on our common stock only if and when declared by our board of directors. Our board's ability to declare a dividend is subject to limits imposed by our debt agreements and Delaware corporate law. In determining whether to declare dividends, the board will consider these limits, our financial condition, results of operations, working capital requirements, future prospects and other factors it considers relevant. 5 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 14 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 15 of 54 Table of Contents DESCRIPTION OF CAPITAL STOCK Our authorized share capital consists of 50,000,000 shares of common stock, $0.01 par value, and 50,000 shares of preferred stock, $100.00 par value. As of August 1, 2014, there were 19,528,802 shares of common stock outstanding and no shares of preferred stock issued and outstanding. All outstanding shares of common stock are fully paid and non-assessable. The following summary of our capital stock is qualified in its entirety by the description of our common stock contained in Amendment No. 3 to our Registration Statement on Form SB-2, filed with the SEC on December 5, 1996 (File No. 333-5594-LA), as amended, which description has been incorporated by reference in Item 1 of our Registration Statement on Form 8-A/A, filed with the SEC on December 10, 1996 (File No. 001-14556), including all amendments or reports filed for the purpose of updating such descriptions, and to our certificate of incorporation and bylaws, as amended from time to time, all of which are incorporated by reference as exhibits into the registration statement of which this prospectus is a part. See "Where You Can Find More Information." Common Stock All shares of our common stock are equal with respect to voting, liquidation, dividend and other rights. Owners of common stock are entitled to one vote for each share owned at any meeting of the stockholders. Holders of common stock are entitled to receive such dividends as may be declared by our board of directors out of funds legally available therefor; and upon liquidation, are entitled to participate pro rata in a distribution of assets available for such a distribution to stockholders, subject to the prior claims of holders of any outstanding preferred stock. Our common stock does not have cumulative voting rights. We have not paid cash dividends with respect to our common stock in the past and do not anticipate paying any such dividends in the foreseeable future. None of our outstanding shares of common stock are liable to calls or assessment by us. Preferred Stock We may issue shares of our preferred stock from time to time, in one or more series. Under our certificate of incorporation, we are authorized to issue 50,000 shares of preferred stock, par value $100.00 per share. Our preferred stock is entitled to preference over our common stock with respect to the distribution of our assets in the event of liquidation, dissolution, or winding up of the company. Our preferred stock may be issued from time to time and our board of directors shall have the right to fix the rights, preferences, privileges, qualifications and restrictions granted to or imposed upon the preferred stock. As of August 1, 2014, we do not have any outstanding shares of preferred stock. The issuance of preferred stock could adversely affect the voting power of holders of common stock and reduce the likelihood that common stockholders will receive dividend payments and payments upon liquidation. The issuance could have the effect of decreasing the market price of our common stock. The issuance of preferred stock also could have the effect of delaying, deterring or preventing a change in control of our company. Our board of directors will fix the rights, preferences, privileges, qualifications and restrictions of the preferred stock of each series that we issue in the certificate of designation relating to that series. We will incorporate by reference into the registration statement of which this prospectus is a part the form of any certificate of designation that describes the terms of the series of preferred stock to be offered under this prospectus. This description of the preferred stock in the certificate of designation and any applicable prospectus supplement will include: • the title and stated value; • the number of shares being offered; • the liquidation preference per share; 6 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 15 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 16 of 54 Table of Contents • the purchase price per share; • the currency for which the shares may be purchased; • the dividend rate per share, dividend period and payment dates and method of calculation for dividends; • whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; • our right, if any, to defer payment of dividends and the maximum length of any such deferral period; • the procedures for any auction and remarketing, if any; • the provisions for a sinking fund, if any; • the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase rights; • any listing of the preferred stock on any securities exchange or market; • whether the preferred stock will be convertible into our common stock or other securities of ours, and, if applicable, the conversion period, the conversion price, or how it will be calculated, and under what circumstances it may be adjusted; • whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange period, the exchange price, or how it will be calculated, and under what circumstances it may be adjusted; • voting rights, if any, of the preferred stock; • preemption rights, if any; • restrictions on transfer, sale or other assignment, if any; • a discussion of any material or special United States federal income tax considerations applicable to the preferred stock; • the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; • any limitations on issuances of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and • any other specific terms, rights, preferences, privileges, qualifications or restrictions of the preferred stock. When we issue shares of preferred stock, the shares will be fully paid and non-assessable. Certain Anti-Takeover Effects of Delaware Law and Provisions of Our Certificate of Incorporation and Bylaws Our certificate of incorporation and bylaws and the Delaware General Corporation Law contain provisions that may have the effect of delaying, deferring or preventing a change of control of the Company. These provisions, among other things: • authorize our board of directors to set the terms of preferred stock; 7 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 16 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 17 of 54 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 17 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 18 of 54 Table of Contents • restrict our ability to engage in transactions with stockholders with 15% or more of outstanding voting stock; and • authorize the calling of special meetings of stockholders only by the board of directors, not by the stockholders. Because of these provisions, persons considering unsolicited tender offers or other unilateral takeover proposals may be more likely to negotiate with our board of directors rather than pursue non-negotiated takeover attempts. As a result, these provisions may make it more difficult for our stockholders to benefit from transactions that are opposed by an incumbent board of directors. DESCRIPTION OF DEBT SECURITIES General We may issue senior debt securities and/or subordinated debt securities, which in each case will be unsecured, direct, general obligations of Inventure Foods, Inc. The senior debt securities will rank equally with all our other unsecured and unsubordinated debt. The subordinated debt securities will be subordinate and junior in priority of payment to our senior debt securities, as described below under "Ranking—Subordination of Subordinated Debt Securities" and in the prospectus supplement applicable to any subordinated debt securities that we may offer. For purposes of the descriptions in this section, we may refer to the senior debt securities and the subordinated debt securities collectively as the "debt securities." The debt securities will be effectively subordinated to the creditors of our subsidiaries. We will issue senior debt securities under a senior debt indenture and subordinated debt securities under a separate subordinated debt indenture. Provisions relating to the issuance of debt securities may also be set forth in a supplemental indenture to either of the indentures. For purposes of the descriptions in this section, we may refer to the senior debt indenture and the subordinated debt indenture and any related supplemental indentures, as "an indenture" or, collectively, as "the indentures." The indentures will be qualified under and governed by the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). Each indenture will be between us and a trustee that meets the requirements of the Trust Indenture Act. We expect that each indenture will provide that there may be more than one trustee under that indenture, each with respect to one or more series of debt securities. Any trustee under an indenture may resign or be removed with respect to one or more series of debt securities and, in that event, we may appoint a successor trustee. Except as otherwise provided in the indenture or supplemental indenture, any action permitted to be taken by a trustee may be taken by that trustee only with respect to the one or more series of debt securities for which it is trustee under the applicable indenture. The descriptions in this section relating to the debt securities and the indentures are summaries of their provisions. The summaries are not complete and are qualified in their entirety by reference to the actual indentures and debt securities and the further descriptions in the applicable prospectus supplement. A form of the senior debt indenture and a form of the subordinated debt indenture under which we may issue our senior debt securities and subordinated debt securities, respectively, have been filed with the SEC as exhibits to the registration statement that includes this prospectus and will be available as described under the heading "Where You Can Find More Information" below. Whenever we refer in this prospectus or in any prospectus supplement to particular sections or defined terms of an indenture, those sections or defined terms are incorporated by reference in this prospectus or in the prospectus supplement, as applicable. You should refer to the provisions of the indentures for provisions that may be important to you. 8 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 18 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 19 of 54 Table of Contents The terms and conditions described in this section are terms and conditions that apply generally to the debt securities. The particular terms of any series of debt securities will be summarized in the applicable prospectus supplement. Those terms may differ from the terms summarized below. Except as set forth in the applicable indenture or in a supplemental indenture and described in an applicable prospectus supplement, the indentures do not limit the amount of debt securities we may issue under the indentures. We are not required to issue all of the debt securities of one series at the same time and, unless otherwise provided in the applicable indenture or supplemental indenture and described in the applicable prospectus supplement, we may, from time to time, reopen any series and issue additional debt securities under that series without the consent of the holders of the outstanding debt securities of that series. Additional notes issued in this manner will have the same terms and conditions as the outstanding debt securities of that series, except for their original issue date and issue price, and will be consolidated with, and form a single series with, the previously outstanding debt securities of that series. Terms of Debt Securities to be Included in the Prospectus Supplement The prospectus supplement relating to any series of debt securities that we may offer will set forth the price or prices at which the debt securities will be offered, and will contain the specific terms of the debt securities of that series. These terms may include, without limitation, the following: • the title of the debt securities and whether they are senior debt securities or subordinated debt securities; • the amount of debt securities issued and any limit on the amount that may be issued; • the price(s) (expressed as a percentage of the principal amount) at which the debt securities will be issued; • if other than the principal amount of those debt securities, the portion of the principal amount payable upon declaration of acceleration of the maturity of those debt securities; • the maturity date or dates, or the method for determining the maturity date or dates, on which the principal of the debt securities will be payable and any rights of extension; • the rate or rates, which may be fixed or variable, or the method of determining the rate or rates at which the debt securities will bear interest, if any; • the date or dates from which any interest will accrue and the date or dates on which any interest will be payable, the regular related record dates and whether we may elect to extend or defer such interest payment dates; • the place or places where payments will be payable, where the debt securities may be surrendered for registration of transfer or exchange and where notices or demands to or upon us may be served; • the period or periods within which, the price or prices at which and the other terms and conditions upon which the debt securities may be redeemed, in whole or in part, at our option, if we are to have such an option; • our obligation, if any, to redeem, repay or purchase the debt securities pursuant to any sinking fund or analogous provision or at the option of a holder of the debt securities, and the period or periods within which, or the date and dates on which, the price or prices at which and the other terms and conditions upon which the debt securities will be redeemed, repaid or purchased, in whole or in part, pursuant to that obligation; 9 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 19 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 20 of 54 Table of Contents • the currency or currencies in which the debt securities may be purchased, are denominated and are payable, which may be a foreign currency or units of two or more foreign currencies or a composite currency or currencies, and the related terms and conditions, including whether we or the holders of any such debt securities may elect to receive payments in respect of such debt securities in a currency or currency unit other than that in which such debt securities are stated to be payable; • whether the amount of payments of principal of and premium, if any, or interest, if any, on the debt securities may be determined with reference to an index, formula or other method, which index, formula or method may, but need not be, based on a currency, currencies, currency unit or units or composite currency or currencies or with reference to changes in prices of particular securities or commodities, and the manner in which the amounts are to be determined; • any additions to, modifications of or deletions from the terms of the debt securities with respect to events of default, amendments, merger, consolidation and sale or covenants set forth in the applicable indenture; • whether the debt securities will be issued in certificated or book-entry form; • whether the debt securities will be in registered or bearer form or both and, if in registered form, their denominations, if other than $1,000 and any integral multiple thereof, and, if in bearer form, their denominations, if other than $5,000, and the related terms and conditions; • if the debt securities will be issuable only in global form, the depository or its nominee with respect to the debt securities and the circumstances under which the global security may be registered for transfer or exchange in the name of a person other than the depository or its nominee; • the applicability, if any, of the defeasance and covenant defeasance provisions of the indenture and any additional or different terms on which the series of debt securities may be defeased; • whether the debt securities can be converted into or exchanged for our other securities, and the related terms and conditions; • in the case of subordinated debt securities, provisions relating to any modification of the subordination provisions described elsewhere in this prospectus; • any trustee, depositary, authenticating agent, paying agent, transfer agent, registrar or other agent with respect to the debt securities; and • any other terms of the debt securities. Unless otherwise specified in the applicable prospectus supplement, the debt securities will not be listed on any securities exchange. We may offer and sell our debt securities at a substantial discount below their stated principal amount. These debt securities may be original issue discount securities, which means that less than the entire principal amount of the original issue discount securities will be payable upon declaration of acceleration of their maturity. Special federal income tax, accounting and other considerations applicable to original issue discount securities will be described in the applicable prospectus supplement. We may issue debt securities with a fixed interest rate or a floating interest rate. Any material federal income tax considerations applicable to any discounted debt securities or to debt securities issued at par that are treated as having been issued at a discount for federal income tax purposes will be described in the applicable prospectus supplement. 10 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 20 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 21 of 54 Table of Contents Except as set forth in the applicable indenture or in a supplemental indenture, the debt securities will not contain any provisions that would limit our ability to incur indebtedness or that would afford holders of debt securities protection in the event of a highly leveraged or similar transaction involving us. The debt securities may contain provisions that would afford debt security holders protection in the event of a change of control. You should refer to the applicable prospectus supplement for information with respect to any deletions from, modifications of or additions to the events of default or covenants that are described below, including any addition of a covenant or other provision providing event risk or similar protection. For purposes of the descriptions in this section: • "subsidiary" means a corporation or a partnership or a limited liability company a majority of the outstanding voting stock or partnership or membership interests, as the case may be, of which is owned or controlled, directly or indirectly, by us or by one or more of our other subsidiaries. For the purposes of this definition, "voting stock" means stock having voting power for the election of directors, or trustees, as the case may be, whether at all times or only so long as no senior class of stock has voting power by reason of any contingency; and • "significant subsidiary" means any of our subsidiaries that is a "significant subsidiary," within the meaning of Regulation S-X promulgated by the SEC under the Securities Act of 1933, as amended (the "Securities Act"). Ranking Senior Debt Securities Payment of the principal of and premium, if any, and interest on debt securities we issue under the senior debt indenture will rank equally with all of our unsecured and unsubordinated debt. Subordination of Subordinated Debt Securities To the extent provided in the subordinated debt indenture and any supplemental indenture, and as described in the prospectus supplement describing the applicable series of subordinated debt securities, the payment of the principal of and premium, if any, and interest on any subordinated debt securities, including amounts payable on any redemption or repurchase, will be subordinated in right of payment and junior to senior debt, which is defined below. If there is a distribution to our creditors in a liquidation or dissolution of us, or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to us, the holders of senior debt will first be entitled to receive payment in full of all amounts due on the senior debt (or provision shall be made for such payment in cash) before any payments may be made on the subordinated debt securities. Because of this subordination, our general creditors may recover more, ratably, than holders of subordinated debt securities in the event of a distribution of assets upon insolvency. The supplemental indenture will set forth the terms and conditions under which, if any, we will not be permitted to pay principal, premium, if any, or interest on the related subordinated debt securities upon the occurrence of an event of default or other circumstances arising under or with respect to senior debt. The indentures will place no limitation on the amount of senior debt that we may incur. We expect to incur from time to time additional indebtedness constituting senior debt, which may include indebtedness that is senior to the subordinated debt securities but subordinate to our other obligations. "Senior debt" means the principal of, and premium, if any, and interest, including interest accruing after the commencement of any bankruptcy proceeding relating to us, on, or substantially similar 11 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 21 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 22 of 54 Table of Contents payments we will make in respect of the following categories of debt, whether that debt is outstanding at the date of execution of the applicable indenture or thereafter incurred, created or assumed: • our other indebtedness evidenced by notes, debentures, or bonds or other securities issued under the provisions of any indenture, fiscal agency agreement, note purchase agreement or other agreement, including the senior debt securities that may be offered by means of this prospectus and one or more prospectus supplements; • our indebtedness for money borrowed or represented by purchase-money obligations, as defined below; • our obligations as lessee under leases of property either made as part of a sale and leaseback transaction to which we are a party or otherwise; • indebtedness, obligations and liabilities of others in respect of which we are liable contingently or otherwise to pay or advance money or property or as guarantor, endorser or otherwise or which we have agreed to purchase or otherwise acquire and indebtedness of partnerships and joint ventures which is included in the Company's consolidated financial statements; • reimbursement and other obligations relating to letters of credit, bankers' acceptances and similar obligations; • obligations under various hedging arrangements and agreements, including interest rate and currency hedging agreements; • reimbursement and other obligations relating to letters of credit, bankers' acceptances and similar obligations; • all our obligations issued or assumed as the deferred purchase price of property or services, but excluding trade accounts payable and accrued liabilities arising in the ordinary course of business; and • deferrals, renewals or extensions of any of the indebtedness or obligations described above. However, "senior debt" excludes: • any indebtedness, obligation or liability referred to above as to which, in the instrument creating or evidencing that indebtedness, obligation or liability, it is expressly provided that the indebtedness, obligation or liability is not senior in right of payment to the subordinated debt securities or ranks equally with the subordinated debt securities; • any indebtedness, obligation or liability which is subordinated to our indebtedness to substantially the same extent as or to a greater extent than the subordinated debt securities are subordinated, and • unless expressly provided in the terms thereof, any of our other indebtedness to its subsidiaries. As used above, the term "purchase money obligations" means indebtedness, obligations or guarantees evidenced by a note, debenture, bond or other instrument, whether or not secured by a lien or other security interest, and any deferred obligation for the payment of the purchase price of property but excluding indebtedness or obligations for which recourse is limited to the property purchased, issued or assumed as all or a part of the consideration for the acquisition of property or services, whether by purchase, merger, consolidation or otherwise, but does not include any trade accounts payable. There will not be any restrictions in the subordinated indenture relating to subordinated debt securities upon the creation of additional senior debt. The applicable prospectus supplement may further describe the provisions, if any, applicable to the subordination of the subordinated debt securities of a particular series. The applicable prospectus 12 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 22 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 23 of 54 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 23 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 24 of 54 Table of Contents supplement or the information incorporated by reference in the applicable prospectus supplement or in this prospectus will describe as of a recent date the approximate amount of our senior debt outstanding as to which the subordinated debt securities of that series will be subordinated. Structural Subordination The debt securities will be structurally subordinated to all indebtedness and other liabilities of our subsidiaries, since our right to receive any assets of our subsidiaries upon their liquidation or reorganization, and the consequent right of the holders of the debt securities to participate in those assets, will be effectively subordinated to the claims of that subsidiary's creditors. If we are recognized as a creditor of that subsidiary, our claims would still be subordinate to any security interest in the assets of that subsidiary and any indebtedness of that subsidiary senior to that held by us. Conversion or Exchange of Debt Securities The applicable prospectus supplement will set forth the terms, if any, on which a series of debt securities may be converted into or exchanged for our other securities. These terms will include whether conversion or exchange is mandatory, or is at our option or at the option of the holder. We will also describe in the applicable prospectus supplement how we will calculate the number of securities that holders of debt securities would receive if they were to convert or exchange their debt securities, the conversion price and other terms related to conversion and any anti-dilution protections. Redemption of Securities We may redeem the debt securities at any time, in whole or in part, at the prescribed redemption price, at the times and on the terms described in the applicable prospectus supplement. From and after notice has been given as provided in the indentures, if we have made available funds for the redemption of any debt securities called for redemption on the applicable redemption date, the debt securities will cease to bear interest on the date fixed for the redemption specified in the notice, and the only right of the holders of the debt securities will be to receive payment of the redemption price. Notice of any optional redemption by us of any debt securities is required to be given to holders at their addresses, as shown in the security register. The notice of redemption will be required to specify, among other items, the redemption price and the principal amount of the debt securities held by the holder to be redeemed. If we elect to redeem debt securities, we will be required to notify the trustee of the aggregate principal amount of debt securities to be redeemed and the redemption date. If fewer than all the debt securities are to be redeemed, the trustee is required to select the debt securities to be redeemed equally, by lot or in a manner it deems fair and appropriate. Denomination, Interest, Registration and Transfer Unless otherwise specified in the applicable prospectus supplement, we will issue the debt securities (i) in denominations of $1,000 or integral multiples of $1,000 if the debt securities are in registered form, and (ii) in denominations of $5,000 if the debt securities are in bearer form. Unless otherwise specified in the applicable prospectus supplement, we will pay the principal of, and applicable premium, if any, and interest on any series of debt securities at the corporate trust office of the trustee, the address of which will be stated in the applicable prospectus supplement. At our option, we may pay interest by check mailed to the address of the person entitled to the interest payment as it appears in the register for the applicable debt securities or by wire transfer of funds to that person at an account maintained within the United States. 13 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 24 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 25 of 54 Table of Contents Any defaulted interest, which means interest not punctually paid or duly provided for on any interest payment date with respect to a debt security, will immediately cease to be payable to the registered holder on the applicable regular record date by virtue of his having been the registered holder on such date. We may pay defaulted interest either to the person in whose name the debt security is registered at the close of business on a special record date for the payment of the defaulted interest to be fixed by the trustee, notice of which is to be given to the holder of the debt security not less than ten days before the special record date, or at any time in any other lawful manner, all as more completely described in the applicable indenture or supplemental indenture. Subject to limitations imposed upon debt securities issued in book-entry form, the holder may exchange debt securities of any series for other debt securities of the same series and of a like aggregate principal amount and tenor of different authorized denominations upon surrender of the debt securities at the corporate trust office of the applicable trustee. In addition, subject to limitations imposed upon debt securities issued in book-entry form, the holder may surrender debt securities of any series for registration of transfer or exchange at the corporate trust office of the applicable trustee. Every debt security surrendered for registration of transfer or exchange must be duly endorsed or accompanied by a written instrument of transfer. No service charge will be imposed for any registration of transfer or exchange of any debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with any registration of transfer or exchange of any debt securities. If the applicable prospectus supplement refers to any transfer agent, in addition to the applicable trustee, initially designated by us with respect to any series of debt securities, we may at any time rescind the designation of that transfer agent or approve a change in the location through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for that series. We may at any time designate additional transfer agents with respect to any series of debt securities. If we redeem the debt securities of any series, neither we nor any trustee will be required to: • issue, register the transfer of, or exchange debt securities of any series during a period beginning at the opening of business 15 days before any selection of debt securities of that series to be redeemed and ending at the close of business on the day of mailing of the relevant notice of redemption; • register the transfer of, or exchange any debt security, or portion of any debt security, called for redemption, except the unredeemed portion of any debt security being redeemed in part; or • issue, register the transfer of, or exchange any debt security that has been surrendered for repayment at the option of the holder, except the portion, if any, of the debt security not to be repaid. Global Securities We may issue the debt securities of a series in whole or in part in the form of one or more global securities to be deposited with, or on behalf of, a depository or with a nominee for a depository identified in the applicable prospectus supplement relating to that series. We may issue global securities in either registered or bearer form and in either temporary or permanent form. The specific terms of the depository arrangement with respect to a series of debt securities will be described in the prospectus supplement relating to that series. Our obligations with respect to the debt securities, as well as the obligations of the applicable trustee, run only to persons who are registered holders of debt securities. For example, once we make payment to the registered holder, we have no further responsibility for that payment even if the recipient is legally required to pass the payment along to an individual investor but fails to do so. As an indirect holder, an investor's rights relating to a global security will be governed by the account rules of 14 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 25 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 26 of 54 Table of Contents the investor's financial institution and of the depositary, as well as general laws relating to transfers of debt securities. An investor should be aware that when debt securities are issued in the form of global securities: • the investor cannot have debt securities registered in his or her own name; • the investor cannot receive physical certificates for his or her debt securities; • the investor must look to his or her bank or brokerage firm for payments on the debt securities and protection of his or her legal rights relating to the debt securities; • the investor may not be able to sell interests in the debt securities to some insurance or other institutions that are required by law to hold the physical certificates of debt that they own; • the depositary's policies will govern payments, transfers, exchanges and other matters relating to the investor's interest in the global security; and • the depositary will usually require that interests in a global security be purchased or sold within its system using same-day funds. The applicable prospectus supplement for a series of debt securities will list the special situations, if any, in which a global security will terminate and interests in the global security will be exchanged for physical certificates representing debt securities. After that exchange, the investor may choose whether to hold debt securities directly or indirectly through an account at the investor's bank or brokerage firm. In that event, investors must consult their banks or brokers to find out how to have their interests in debt securities transferred to their own names so that they may become direct holders. When a global security terminates, the depositary, and not us or one of the trustees, is responsible for deciding the names of the institutions that will be the initial direct holders. Merger, Consolidation or Sale of Assets We will not be permitted to consolidate with or merge into any other entity, or sell, lease, transfer or convey all or substantially all of our properties and assets, either in one transaction or a series of transactions, to any other entity and no other entity will consolidate with or merge into us, or sell, lease, transfer or convey all or substantially all of its properties and assets to us unless: (1) either: • we are the continuing entity, or • the successor entity, if other than us, formed by or resulting from any consolidation or merger, or which has received the transfer of our assets, expressly assumes payment of the principal of, and premium, if any, and interest on all of the outstanding debt securities and the due and punctual performance and observance of all of the covenants and conditions contained in the indentures, and (2) immediately after giving effect to the transaction and treating any indebtedness that becomes our obligation or the obligation of any of our subsidiaries as a result of that transaction as having been incurred by us or our subsidiary at the time of the transaction, no event of default under the indentures or supplemental indentures, and no event which, after notice or the lapse of time, or both, would become an event of default, will have occurred and be continuing; provided, that the conditions described in (1) and (2) above will not apply to the direct or indirect transfer of the stock, assets or liabilities of any of our subsidiaries to another of our direct or indirect subsidiaries. 15 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 26 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 27 of 54 Table of Contents Except as provided in this prospectus or as may otherwise be provided in the applicable prospectus supplement, the indenture and the terms of the debt securities will not contain any event risks or similar covenants that are intended to afford protection to holders of any debt securities in the event of a merger, a highly leveraged transaction or other significant corporate event involving us or our subsidiaries, whether or not resulting in a change of control, which may adversely affect holders of the debt securities. Additional Covenants and/or Modifications to the Covenant Described Above Any additional covenants and/or modifications to the covenants described above with respect to any series of debt securities, including any covenants relating to limitations on incurrence of indebtedness or other financial covenants, will be set forth in the applicable indenture or supplemental indenture and described in the applicable prospectus supplement relating to that series of debt securities. Unless the applicable prospectus supplement indicates otherwise, the subordinated debt indenture does not contain any other provision which restricts us from, among other things: • incurring or becoming liable on any secured or unsecured senior indebtedness or general obligations; or • paying dividends or making other distributions on our capital stock; or • purchasing or redeeming our capital stock; or • creating any liens on our property for any purpose. Events of Default, Waiver and Notice Events of Default The events of default with respect to any series of debt securities issued under it, subject to any modifications or deletions provided in any supplemental indenture with respect to any specific series of debt securities, include the following events: • failure to pay any installment of interest or any additional amounts payable on any debt security of the series for 30 days; • failure to pay principal of, or premium, if any, on, any debt security of the series when due, whether at maturity, upon redemption, by declaration or acceleration of maturity or otherwise; • default in making any sinking fund payment (if any) when due, for any debt security of the series; • default in the performance or breach of any of our other covenants or warranties contained in the applicable indenture, other than a covenant added to the indenture solely for the benefit of any other series of debt securities issued under that indenture, continued for 90 days after written notice as provided in the applicable indenture; • specific events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of us or any significant subsidiary or either of our property; and • any other event of default provided with respect to a particular series of debt securities. If an event of default under any indenture with respect to debt securities of any series at the time outstanding occurs and is continuing, then in every case other than in the case of specific events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of us or any significant subsidiary or either of our property, in which case acceleration will be automatic, the 16 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 27 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 28 of 54 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 28 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 29 of 54 Table of Contents applicable trustee or the holders of not less than 25% of the principal amount of the outstanding debt securities of that series will have the right to declare the principal amount, or, if the debt securities of that series are original issue discount securities or indexed securities, the portion of the principal amount as may be specified in the terms of that series, of all the debt securities of that series to be due and payable immediately by written notice to us, and to the applicable trustee if given by the holders. At any time after a declaration of acceleration has been made with respect to debt securities of a series, or of all debt securities then outstanding under any indenture, as the case may be, but before a judgment or decree for payment of the money due has been obtained by the applicable trustee, however, the holders of not less than a majority in principal amount of the outstanding debt securities of that series, or of all debt securities then outstanding under the applicable indenture, as the case may be, may annul the declaration of acceleration and waive any default in respect of those debt securities if: • we have deposited with the applicable trustee all required payments due otherwise than by acceleration of the principal of, and premium, if any, and interest on the debt securities of that series, or of all debt securities then outstanding under the applicable indenture, as the case may be, plus specified fees, expenses, disbursements and advances of the applicable trustee, and • all events of default, other than the non-payment of all or a specified portion of the accelerated principal, with respect to debt securities of that series, or of all debt securities then outstanding under the applicable indenture, as the case may be, have been cured or waived as provided in the applicable indenture. Waiver Each indenture also will provide that the holders of not less than a majority in principal amount of the outstanding debt securities of any series, or of all debt securities then outstanding under the applicable indenture, as the case may be, may waive any past default with respect to that series and its consequences, except a default: • in the payment of the principal of, or premium, if any, or interest on any debt security of that series, or • in respect of a covenant or provision contained in the applicable indenture that, by the terms of that indenture, cannot be modified or amended without the consent of each affected holder of an outstanding debt security. Notice Each trustee will be required to give notice to the holders of the applicable debt securities within 90 days of a default under the applicable indenture unless the default has been cured or waived; but the trustee may withhold notice of any default, except a default in the payment of the principal of, or premium, if any, or interest on the debt securities or in the payment of any sinking fund installment in respect of the debt securities, if specified responsible officers of the trustee consider the withholding to be in the interest of the holders. The holders of debt securities of any series may not institute any proceedings, judicial or otherwise, with respect to the indentures or for any remedy under the indentures, except in the case of failure of the applicable trustee, for 60 days, to act after the trustee has received a written request to institute proceedings in respect of an event of default from the holders of not less than 25% in principal amount of the outstanding debt securities of that series, as well as an offer of indemnity reasonably satisfactory to the trustee, and provided that no direction inconsistent with such written request has been given to the trustee during such 60-day period by the holders of a majority of the outstanding debt securities of that series. However, any holder of debt securities is not prohibited from 17 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 29 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 30 of 54 Table of Contents instituting suit for the enforcement of payment of the principal of, and premium, if any, and interest on the debt securities at their respective due dates. Subject to the trustee's duties in case of default, no trustee will be under any obligation to exercise any of its rights or powers under an indenture at the request or direction of any holders of any series of debt securities then outstanding under that indenture, unless the holders offer to the trustee reasonable security or indemnity. Subject to such provisions for the indemnification of the trustee, the holders of not less than a majority in principal amount of the outstanding debt securities of any series, or of all debt securities then outstanding under an indenture, as the case may be, will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable trustee, or of exercising any trust or power conferred upon the trustee. A trustee may refuse, however, to follow any direction that is in conflict with any law or the applicable indenture that may involve the trustee in personal liability or may be unduly prejudicial to the holders of debt securities of that series not joining in the direction. Within 180 days after the end of each fiscal year, we will be required to deliver to each trustee a certificate, signed by one of several specified officers, stating whether or not that officer has knowledge of any default under the applicable indenture and, if so, specifying each default and the nature and status of the default. Modification of the Indentures Except as otherwise specifically provided in the applicable indenture, with the consent of the holders of not less than a majority in principal amount of all outstanding debt securities issued under that indenture that are affected by the modification or amendment, we may enter into supplemental indentures with the trustee for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of such indenture or of modifying in any manner the rights of the holders under debt securities issued under such indenture. However, no modification or amendment may, without the consent of the holder of each debt security affected by the modification or amendment: • except as described in the applicable prospectus supplement relating to such debt security: • extend the stated maturity of the principal of, or any installment of interest or any additional amounts, or the premium, if any, on, any debt security, • reduce the principal amount of, or the rate or amount of interest on, or change the manner of calculating the rate, or any premium payable on redemption of, any debt security, or reduce the amount of principal of an original issue discount security that would be due and payable upon declaration of acceleration of its maturity or would be provable in bankruptcy, or adversely affect any right of repayment of the holder of any debt security, • extend the time of payment of interest on any debt security or any additional amounts, • change any of the conversion, exchange or redemption provisions of any debt security, • change the place of payment, or the coin or currency for payment, of principal, or premium, if any, including any amount in respect of original issue discount or interest on any debt security, • impair the right to institute suit for the enforcement of any payment on or with respect to any debt security or for the conversion or exchange of any debt security in accordance with its terms, and • in the case of subordinated debt securities, modify the ranking or priority of the securities, 18 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 30 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 31 of 54 Table of Contents • reduce the percentage of outstanding debt securities of any series necessary to modify or amend the applicable indenture, to waive compliance with specific provisions of or certain defaults and consequences under the applicable indenture, or to reduce the quorum or voting requirements set forth in the applicable indenture, or • modify any of the provisions relating to the waiver of specific past defaults or specific covenants, except to increase the required percentage to effect that action or to provide that specific other provisions may not be modified or waived without the consent of the holder of that debt security. The holders of not less than a majority in principal amount of the outstanding debt securities of each series affected by the modification or amendment will have the right to waive compliance by us with specific covenants in the indenture. We and the respective trustee may modify and amend an indenture without the consent of any holder of debt securities for any of the following purposes: • to evidence the succession of another person to us as obligor under the indenture or to evidence the addition or release of any guarantor in accordance with the indenture or any supplemental indenture; • to add to our covenants for the benefit of the holders of all or any series of debt securities or to surrender any right or power conferred upon us in the indenture; • to add events of default for the benefit of the holders of all or any series of debt securities; • to add or change any provisions of the indenture to facilitate the issuance of, or to liberalize specific terms of, debt securities in bearer form, or to permit or facilitate the issuance of debt securities in uncertificated form, provided that the action will not adversely affect the interests of the holders of the debt securities of any series in any material respect; • to change or eliminate any provisions of an indenture, if the change or elimination becomes effective only when there are no debt securities outstanding of any series created prior to the change or elimination that are entitled to the benefit of the changed or eliminated provision; • to establish the form or terms of debt securities of any series and any related coupons; • to provide for the acceptance of appointment by a successor trustee or facilitate the administration of the trusts under an indenture by more than one trustee; • to cure any ambiguity or correct any inconsistency in an indenture provided that the cure or correction does not adversely affect the holders of the debt securities; • to supplement any of the provisions of an indenture to the extent necessary to permit or facilitate defeasance and discharge of any series of debt securities, provided that the supplement does not adversely affect the interests of the holders of the debt securities of any series in any material respect; • to make provisions with respect to the conversion or exchange terms and conditions applicable to the debt securities of any series; • to add to, delete from or revise the conditions, limitations or restrictions on issue, authentication and delivery of debt securities; • to conform any provision in an indenture to the requirements of the Trust Indenture Act; or • to make any change that does not adversely affect the legal rights under an indenture of any holder of debt securities of any series issued under that indenture. 19 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 31 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 32 of 54 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 32 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 33 of 54 Table of Contents In determining whether the holders of the requisite principal amount of outstanding debt securities of a series have given any request, demand, authorization, direction, notice, consent or waiver under the indenture or whether a quorum is present at a meeting of holders of debt securities: • the principal amount of an original issue discount security that is deemed to be outstanding will be the amount of the principal of that original issue discount security that would be due and payable as of the date of the determination upon declaration of acceleration of the maturity of that original issue discount security; • the principal amount of any debt security denominated in a foreign currency that is deemed outstanding will be the U.S. dollar equivalent, determined on the issue date for that debt security, of the principal amount, or, in the case of an original issue discount security, the U.S. dollar equivalent on the issue date of that debt security of the amount determined as provided in the immediately preceding bullet point; • the principal amount of an indexed security that is deemed outstanding will be the principal face amount of the indexed security at original issuance, unless otherwise provided with respect to the indexed security under the applicable indenture; and • debt securities owned by us or any other obligor upon the debt securities or any of our affiliates or of any other obligor are to be disregarded. Discharge, Defeasance and Covenant Defeasance Discharge We may be permitted under the applicable indenture to discharge specific obligations to holders of any series of debt securities (1) that have not already been delivered to the applicable trustee for cancellation and (2) that either have become due and payable or will, within one year, become due and payable or scheduled for redemption, by irrevocably depositing with the applicable trustee, in trust, money or funds certified to be sufficient to pay when due, whether at maturity, upon redemption or otherwise, the principal of, and premium, if any, on and interest on the debt securities. Defeasance and Covenant Defeasance If the provisions of the applicable indenture relating to defeasance and covenant defeasance are made applicable to the debt securities of or within any series, we may elect either: • defeasance, which means we elect to defease and be discharged from any and all obligations with respect to the debt securities, except for the obligations to register the transfer or exchange of the debt securities, to replace temporary or mutilated, destroyed, lost or stolen debt securities, to maintain an office or agency in respect of the debt securities and to hold moneys for payment in trust; or • covenant defeasance, which means we elect to be released from our obligations with respect to the debt securities under specified sections of the applicable indenture relating to covenants, as described in the applicable prospectus supplement and any omission to comply with its obligations will not constitute an event of default with respect to the debt securities, in either case upon the irrevocable deposit by us with the applicable trustee, in trust, of an amount, in currency or currencies or government obligations, or both, sufficient without reinvestment to make scheduled payments of the principal of, and premium, if any, and interest on the debt securities, when due, whether at maturity, upon redemption or otherwise, and any mandatory sinking fund or analogous payments. 20 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 33 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 34 of 54 Table of Contents A trust will only be permitted to be established if, among other things: • we have delivered to the applicable trustee an opinion of counsel, as specified in the applicable indenture, to the effect that the holders of the debt securities will not recognize income, gain or loss for federal income tax purposes as a result of the defeasance or covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the defeasance or covenant defeasance had not occurred, and the opinion of counsel, in the case of defeasance, will be required to refer to and be based upon a ruling of the Internal Revenue Service or a change in applicable U.S. federal income tax law occurring after the date of the indenture; • no event of default or any event which after notice or lapse of time or both would be an event of default has occurred; • the defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, the applicable indenture or any other material agreement or instrument to which we are a party or by which we are bound; • certain other provisions set forth in the applicable indenture are met; and • we will have delivered to the trustee an officers' certificate and an opinion of counsel, each stating that all conditions precedent to the defeasance or covenant defeasance have been complied with. In general, if we elect covenant defeasance with respect to any debt securities and payments on those debt securities are declared due and payable because of the occurrence of an event of default, the amount of money and/or government obligations on deposit with the applicable trustee would be sufficient to pay amounts due on those debt securities at the time of their stated maturity, but may not be sufficient to pay amounts due on those debt securities at the time of the acceleration resulting from the event of default. In that case, we would remain liable to make payment of the amounts due on the debt securities at the time of acceleration. The applicable prospectus supplement may further describe the provisions, if any, permitting defeasance or covenant defeasance, including any modifications to the provisions described above, with respect to the debt securities of or within a particular series. Regarding the Trustees We will designate the trustee under the senior and subordinated debt indentures in the applicable prospectus supplement. From time to time, we may enter into banking or other relationships with any of such trustees or their affiliates. There may be more than one trustee under each indenture, each with respect to one or more series of debt securities. Any trustee may resign or be removed with respect to one or more series of debt securities, and a successor trustee may be appointed to act with respect to such series. If two or more persons are acting as trustee with respect to different series of debt securities, each trustee will be a trustee of a trust under the indenture separate from the trust administered by any other such trustee. Except as otherwise indicated in this prospectus, any action to be taken by the trustee may be taken by each such trustee with respect to, and only with respect to, the one or more series of debt securities for which it is trustee under the indenture. Governing Law The senior debt securities, the subordinated debt securities and the related indentures will be governed by, and construed in accordance with, the internal laws of the State of New York. 21 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 34 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 35 of 54 Table of Contents LEGAL OWNERSHIP OF SECURITIES We can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee or depositary or warrant agent maintain for this purpose as the "holders" of those securities. These persons are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as "indirect holders" of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect holders. Book-Entry Holders We may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate in the depositary's book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers. Only the person in whose name a security is registered is recognized as the holder of that security. Global securities will be registered in the name of the depositary. Consequently, for global securities, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities. As a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary's book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not holders, of the securities. Street Name Holders We may terminate global securities or issue securities that are not issued in global form. In these cases, investors may choose to hold their securities in their own names or in "street name." Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution. For securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and we or any such trustee or depositary will make all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities. Legal Holders Our obligations, as well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who 22 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 35 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 36 of 54 Table of Contents hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form. For example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements with its participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with a particular provision of an indenture, or for other purposes. In such an event, we would seek approval only from the holders, and not the indirect holders, of the securities. Whether and how the holders contact the indirect holders is up to the holders. Special Considerations for Indirect Holders If you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are represented by one or more global securities or in street name, you should check with your own institution to find out: • how it handles securities payments and notices; • whether it imposes fees or charges; • how it would handle a request for the holders' consent, if ever required; • whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future; • how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and • if the securities are in book-entry form, how the depositary's rules and procedures will affect these matters. Global Securities A global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms. Each security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known as DTC, will be the depositary for all securities issued in book-entry form. A global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under "—Special Situations When a Global Security Will Be Terminated." As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a holder of the security, but only an indirect holder of a beneficial interest in the global security. 23 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 36 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 37 of 54 Table of Contents If the prospectus supplement for a particular security indicates that the security will be issued as a global security, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system. Special Considerations for Global Securities As an indirect holder, an investor's rights relating to a global security will be governed by the account rules of the investor's financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security. If securities are issued only as global securities, an investor should be aware of the following: • investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below; • an investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe above; • an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form; • an investor may not be able to pledge his or her interest in the global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; • the depositary's policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor's interest in the global security. We and any applicable trustee have no responsibility for any aspect of the depositary's actions or for its records of ownership interests in the global security. We and the trustee also do not supervise the depositary in any way; • the depositary may, and we understand that DTC will, require that those who purchase and sell interests in the global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and • financial institutions that participate in the depositary's book-entry system, and through which an investor holds its interest in the global security, may also have their own policies affecting payments, notices and other matters relating to the securities. There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries. Special Situations When a Global Security Will be Terminated In a few special situations described below, a global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to their own names, so that they will be direct holders. We have described the rights of holders and street name investors above. 24 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 37 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 38 of 54 Table of Contents A global security will terminate when the following special situations occur: • if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days; • if we notify any applicable trustee that we wish to terminate that global security; or • if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived. The prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders. SELLING STOCKHOLDERS We are registering 5,000,000 shares of common stock to permit the stockholders to be named in a prospectus supplement, and their transferees, pledgees, donees or successors, to resell the shares in the manner contemplated under "Plan of Distribution." Certain shares of common stock included in this prospectus for resale by the selling stockholders were initially acquired in connection with our acquisition of Wabash Foods, LLC in October 1999, pursuant to which we issued shares of common stock and warrants, which were subsequently exercised, to the former owners of Wabash Foods, LLC as consideration for all of the membership interests in Wabash Foods, LLC. The remaining shares of common stock that may be offered by the selling stockholders were acquired pursuant to equity awards and open market purchases since January 1, 2010. Information about the selling stockholders will be set forth in an applicable prospectus supplement. The initial purchasers of these securities, as well as their transferees, pledgees, donees or successors, all of whom are referred to herein as "selling stockholders," may from time to time offer and sell such securities pursuant to this prospectus and any applicable prospectus supplement. An applicable prospectus supplement will set forth the name of each selling stockholder, the nature of any position, office, or other material relationship which any selling stockholder has had within the past three years with us or any of our predecessors or affiliates, if any, the amount of our common stock owned by each selling stockholder prior to the offering, the amount of our common stock which may be offered for each selling stockholder's account, and the amount and (if one percent or more) the percentage of our common stock to be owned by each selling stockholder after completion of the offering. The selling stockholders shall not sell any shares of our common stock pursuant to this prospectus until we have identified such selling stockholders and the shares of our common stock which may be offered for resale by such selling stockholders in a subsequent prospectus supplement. However, the selling stockholders may sell or transfer all or a portion of their shares of common stock pursuant to any available exemption from the registration requirements of the Securities Act. PLAN OF DISTRIBUTION The securities being offered by this prospectus may be sold by us or by the selling stockholders (which as used in this prospectus includes donees, pledgees, transferees or other successors-in-interest selling common stock received after the date of this prospectus from a selling stockholder as a gift, pledge, distribution or other transfer): • through agents; • to or through underwriters; 25 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 38 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 39 of 54 Table of Contents • through broker-dealers (acting as agent or principal); • directly by us or a selling stockholder to purchasers, through a specific bidding or auction process or otherwise; • through a combination of any such methods of sale; or • through any other methods described in a prospectus supplement. The distribution of securities may be effected from time to time in one or more transactions, including block transactions and transactions on The NASDAQ Global Select Market or any other organized market where the securities may be traded, in the over-the-counter market, or otherwise, on a continuous or delayed basis. The selling stockholders may act independently of us in making decisions with respect to the timing, manner and size of each sale. The securities may be sold at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices relating to the prevailing market prices or at negotiated prices. The consideration may be cash or another form negotiated by the parties. Agents, underwriters or broker-dealers may be paid compensation for offering and selling the securities. That compensation may be in the form of discounts, concessions or commissions to be received from us or from the purchasers of the securities. The selling stockholders and any dealers and agents participating in the distribution of the securities may be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting discounts. If such selling stockholders, dealers or agents were deemed to be underwriters, they may be subject to statutory liabilities under the Securities Act. Agents may from time to time solicit offers to purchase the securities. If required, we will name in the applicable prospectus supplement any agent involved in the offer or sale of the securities and set forth any compensation payable by us or the selling stockholders to the agent. Unless otherwise indicated in the prospectus supplement, any agent will be acting on a best efforts basis for the period of its appointment. Any agent selling the securities covered by this prospectus may be deemed to be an underwriter, as that term is defined in the Securities Act, of the securities. If underwriters are used in a sale, securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale, or under delayed delivery contracts or other contractual commitments. Securities may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. If an underwriter or underwriters are used in the sale of securities, an underwriting agreement will be executed with the underwriter or underwriters at the time an agreement for the sale is reached. The applicable prospectus supplement will set forth the managing underwriter or underwriters, as well as any other underwriter or underwriters, with respect to a particular underwritten offering of securities, and will set forth the terms of the transactions, including compensation of the underwriters and dealers and the public offering price, if applicable. The prospectus and the applicable prospectus supplement will be used by the underwriters to resell the securities. If a dealer is used in the sale of the securities, we, the selling stockholders, or an underwriter will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. To the extent required, we will set forth in the prospectus supplement the name of the dealer and the terms of the transactions. We or the selling stockholders may directly solicit offers to purchase the securities and we or the selling stockholders may make sales of securities directly to institutional investors or others. These persons may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of the securities. To the extent required, the prospectus supplement will describe the terms of any such sales, including the terms of any bidding or auction process, if used. 26 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 39 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 40 of 54 Table of Contents Agents, underwriters and dealers may be entitled under agreements which may be entered into with us or the selling stockholders to indemnification by us or the selling stockholders against specified liabilities, including liabilities incurred under the Securities Act, or to contribution by us or the selling stockholders to payments they may be required to make in respect of such liabilities. If required, the prospectus supplement will describe the terms and conditions of such indemnification or contribution. Some of the agents, underwriters or dealers, or their affiliates may be customers of, engage in transactions with or perform services for us or our subsidiaries in the ordinary course of business. Under the securities laws of some states, the securities offered by this prospectus may be sold in those states only through registered or licensed brokers or dealers. The selling stockholders may also sell shares in accordance with Rule 144 under the Securities Act, or pursuant to other available exemptions from the registration requirements of the Securities Act, rather than pursuant to this prospectus. In addition, the selling stockholders or their successors in interest may enter into hedging transactions with broker-dealers who may engage in short sales of the shares, short and deliver the shares to close out such short positions, or loan or pledge the shares to broker-dealers that in turn may see such securities. The selling stockholders or their successors in interest may also enter into option or other transactions with broker-dealers that require the delivery by such broker-dealers of the shares, which may be resold thereafter under this prospectus and an accompanying prospectus supplement if the shares are delivered by the selling stockholders. The selling stockholders may not satisfy their obligations in connection with short sale or hedging transactions entered into before the effective date of the registration statement of which this prospectus is a part by delivering securities registered under such registration statement. The selling stockholders or their successors in interest may from time to time pledge or grant a security interest in some or all of the shares and, if the selling stockholders default in the performance of their secured obligation, the pledges or secured parties may offer and sell the shares from time to time under this prospectus and an accompanying prospectus supplement. Any person participating in the distribution of common stock registered under the registration statement that includes this prospectus will be subject to applicable provisions of the Exchange Act, and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit the timing of purchases and sales of any of our common stock by any such person. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of our common stock to engage in market-making activities with respect to our common stock. These restrictions may affect the marketability of our common stock and the ability of any person or entity to engage in market-making activities with respect to our common stock. Certain persons participating in an offering may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act that stabilize, maintain or otherwise affect the price of the offered securities. If any such activities will occur, they will be described in the applicable prospectus supplement. Other than our common stock, which is listed on The NASDAQ Global Select Market, each of the securities issued hereunder will be a new issue of securities, will have no prior trading market, and may or may not be listed on a national securities exchange. Any common stock sold pursuant to a prospectus supplement will be listed on The NASDAQ Global Select Market, subject to official notice of issuance. Any underwriters to whom securities are sold by us or the selling stockholders for public offering and sale may make a market in such securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot assure you that there will be a market for the offered securities. 27 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 40 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 41 of 54 Table of Contents LEGAL MATTERS Unless otherwise specified in a prospectus supplement accompanying this prospectus, the validity of the securities offered hereby will be passed upon by DLA Piper LLP (US), Phoenix, Arizona, and for any underwriters or agents by counsel named in the applicable prospectus supplement. EXPERTS Our consolidated balance sheets as of December 28, 2013 and December 29, 2012, the related consolidated statements of operations, comprehensive income, stockholders' equity, and cash flows for each of the three years in the period ended December 28, 2013, and the effectiveness of Inventure Foods, Inc.'s internal control over financial reporting as of December 28, 2013 have been incorporated by reference herein in reliance upon the report of Moss Adams LLP, an independent registered public accounting firm, given upon the authority of that firm as experts in accounting and auditing. The balance sheets of Fresh Frozen Foods, LLC, as of December 31, 2012 and 2011, and the related statements of income, changes in members' equity, and cash flows for the years then ended have been incorporated by reference herein in reliance upon the report of Nichols, Cauley & Associates, LLC, an independent registered public accounting firm, given upon the authority of that firm as experts in accounting and auditing. WHERE YOU CAN FIND MORE INFORMATION We are currently subject to the information requirements of the Exchange Act and in accordance therewith file periodic reports, proxy statements and other information with the Securities and Exchange Commission. You may read and copy (at prescribed rates) any such reports, proxy statements and other information at the SEC's Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference room. Our SEC filings will also be available to you on the SEC's website at http://www.sec.gov. Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus. If you make a request for such information in writing or by telephone, we will provide you, without charge, a copy of any or all of the information incorporated by reference into this prospectus. Any such request should be directed to: Inventure Foods, Inc. 5415 East High Street, Suite #350 Phoenix, Arizona 85054 (623) 932-6200 Attention: Secretary INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The SEC allows us to "incorporate by reference" certain information into this prospectus, which means that we can disclose important information about us by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be a part of this prospectus. Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included 28 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 41 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 42 of 54 Table of Contents or incorporated in this prospectus. This means that you must carefully review all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. However, we undertake no obligation to update or revise any statements we make, except as required by law. This prospectus incorporates by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (in each case, other than those documents or the portions of those documents not deemed to be filed) until the offering of the securities under the registration statement is terminated or completed: • our Annual Report on Form 10-K for the fiscal year ended December 28, 2013, filed with the SEC on March 13, 2014, as amended by Amendment No. 1 to our Annual Report on Form 10-K/A, filed with the SEC on March 14, 2014; • our Quarterly Reports on Form 10-Q for the periods ended March 29, 2014, filed with the SEC on May 6, 2014, and June 28, 2014, filed with the SEC on August 5, 2014; • our Current Report on Form 8-K/A filed with the SEC on January 24, 2014 and Current Reports on Form 8-K filed with the SEC on April 21, 2014, May 16, 2014 and June 2, 2014; • our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 14, 2014, to the extent incorporated by reference into our Annual Report on Form 10-K for the year ended December 28, 2013; and • The description of our common stock, par value $0.01 per share, included under the caption "Description of Securities" in the Prospectus forming a part of Amendment No. 3 to the Company's Registration Statement on Form SB-2, filed with the SEC on December 5, 1996 (File No. 333-5594-LA), including exhibits, and as amended, which description has been incorporated by reference in Item 1 of our Registration Statement on Form 8-A/A, filed pursuant to Section 12 of the Exchange Act, on December 10, 1996 (File No. 001-14556). 29 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 42 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 43 of 54 Table of Contents INVENTURE FOODS, INC. PROSPECTUS https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 43 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 44 of 54 Table of Contents PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution The following table sets forth the expenses in connection with the issuance and distribution of the securities covered by this Registration Statement. All such expenses are estimates, other than the registration fee payable to the Securities and Exchange Commission, and will be borne by the Registrant. Registration Fee $ 21,336.04 Fees and expenses of accountants (1) Fees and expenses of counsel to the Registrant (1) Trustee's fees and expenses (1) Miscellaneous (1) Total $ (1) (1) These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time. Item 15. Indemnification of Directors and Officers The Delaware General Corporation Law ("DGCL") authorizes a corporation to indemnify any person who was or is a party or is threatened to be made a 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 a corporation) by reason of the fact that the person 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, partnership, joint venture, trust, or other enterprise against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person. The DGCL also authorizes a corporation to indemnify any person who was or is a party, or was or is threatened to be made 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 the person 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, partnership, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by the person, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. The corporation may only indemnify an officer, director, employee or agent if: (i) the indemnified person acted in good faith and in a manner reasonably believed by the person to be in, or not opposed to, the best interests of the corporation; and (ii) in the case of a criminal proceeding, the indemnified person had no reasonable cause to believe his or her conduct was unlawful. No indemnification may be made if it is determined that the individual did not meet the above listed standards. II-1 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 44 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 45 of 54 Table of Contents A corporation's determination of whether to indemnify someone who is a director or officer at the time of such determination must be made: (i) by a vote of the majority of disinterested directors (even if less than a quorum); (ii) by a committee of disinterested directors designated by the majority vote of the disinterested directors (even if less than a quorum); (iii) by special legal counsel if there are fewer than two disinterested directors or if such disinterested directors so direct; or (iv) by the stockholders, but shares owned by or voted by a director who is not disinterested may not be voted. Where a present or former officer or director of the corporation defends a matter successfully, indemnification for reasonable expenses is mandatory. Officers' and directors' expenses may be paid in advance of final disposition if the person agrees to repay the advances if he or she is later determined not to be entitled to indemnification. To the fullest extent permitted by applicable law, a corporation is authorized to provide indemnification of (and advancement of expenses to) agents of the company (and any other persons to which DGCL permits the company to provide indemnification) through bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the DGCL, subject only to limits created by applicable DGCL (statutory or non-statutory), with respect to actions for breach of duty to the corporation, its stockholders, and others. Our certificate of incorporation provides that no director shall be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duty by such a director as a director, except to the extent (i) for any breach of such director's duty of loyalty to us or our stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which such director derived an improper personal benefit. In addition, our by-laws provide that we shall indemnify any person who was or is a party or is threatened to be made a 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 the Company) by reason of the fact that that person is or was our director or officer, or is or was our director or officer serving at our request as a director or officer, employee, or agent of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by that person in connection with the action, suit, or proceeding if that person acted in good faith and in a manner that person reasonably believed to be in or not opposed to our best interests, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that person's conduct was unlawful. With respect to actions, suits or proceedings by or in the right of the Company, our by-laws provide that we shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the Company to procure a judgment in its favor by reason of the fact that that person is or was our director or officer, or is or was our director or officer serving at our request as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against expenses (including attorneys' fees) actually and reasonably incurred by that person in connection with the defense or settlement of the action or suit if that person acted in good faith and in a manner that person reasonably believed to be in or not opposed to our best interests; except that no indemnification II-2 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 45 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 46 of 54 Table of Contents shall be made in respect of any claim, issue or matter as to which that person shall have been adjudged to be liable to us unless and only to the extent that the Court of Chancery or the court in which the action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, that person is fairly and reasonably entitled to indemnity for those expenses which the Court of Chancery or such other court shall deem proper. We shall only indemnify an officer or director (unless ordered by a court) to the extent authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because the person has met the applicable standard of conduct described above. This determination shall be made by (i) a majority vote of the directors who are not parties to the action, suit, or proceeding, even though less than a quorum, or (ii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that one of our directors or officers has been successful on the merits or otherwise in defense of any action, suit, or proceeding described above, or in defense of any claim, issue, or matter therein, that person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by that person in connection therewith, without the necessity of authorization in the specific case. If we do not authorize the indemnification of an officer or director in a specific case, that officer or director may apply to the Court of Chancery in the State of Delaware for indemnification to the extent otherwise permissible under our by-laws. The basis of such indemnification by a court shall be a determination by the court that indemnification of the director or officer is proper in the circumstances because such person has met the applicable standards of conduct set forth above. Neither our contrary determination in the specific case nor the absence of any determination shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. Our by-laws further provide that we shall pay in advance of final disposition expenses incurred by a director or officer in defending any civil, criminal, administrative, or investigative action, suit, or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay the advanced amount if it shall ultimately be determined that the person is not entitled to be indemnified by us. The rights to indemnification and advancement of expenses described above shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the certificate of incorporation, any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in the person's official capacity and as to action in another capacity while holding such office, it being our policy to indemnify the persons described above to the fullest extent permitted by law. We are not, however, obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by that person unless the proceeding (or part thereof) was authorized or consented to by our board of directors, except in the case of director or officer applications to a court for indemnification as described above. We may purchase and maintain insurance on behalf of any person who is or was our director or officer, or is or was our director or officer serving at our request as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise against any liability asserted against the person and incurred by the person in any such capacity, or arising out of the person's status as such, whether or not we would have the power or the obligation to indemnify the person against such liability under our by-laws. We may also, to the extent authorized from time to time by our board of directors, provide rights to indemnification and to the advancement of expenses to our employees and agents similar to those conferred to our directors and officers as described above. II-3 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 46 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 47 of 54 Table of Contents Item 16. Exhibits The following documents are filed as exhibits to this registration statement: Exhibit No. Description *1.1 Form of Underwriting Agreement. 3.1 Certificate of Incorporation (Filed as Exhibit 3.1 to the Registrant's Current Report on Form 8-K filed on May 26, 2006, and incorporated herein by reference). 3.2 Certificate of Amendment to Certificate of Incorporation (Filed as Exhibit 3.2 to the Registrant's Current Report on Form 8-K filed May 26, 2006, and incorporated herein by reference). 3.3 Certificate of Amendment to Certificate of Incorporation (Filed as Exhibit 3.3 to the Registrant's Current Report on Form 8-K filed May 26, 2006, and incorporated herein by reference). 3.4 Certificate of Amendment to Certificate of Incorporation (Filed as Exhibit 3.4 to the Registrant's Current Report on Form 8-K filed May 26, 2006, and incorporated herein by reference). 3.5 Certificate of Amendment to Certificate of Incorporation (Filed as Exhibit 3.6 to the Registrant's Current Report on Form 8-K filed May 24, 2010, and incorporated herein by reference). 3.6 Amended and Restated Bylaws (Filed as Exhibit 99.1 to the Registrant's Current Report on Form 8-K filed on January 12, 2005, and incorporated herein by reference). 4.1 Specimen Certificate for Shares of Common Stock (Filed as an exhibit to Amendment No. 1 to the Registrant's Registration Statement on Form SB-2, Registration No. 333-5594-LA, and incorporated herein by reference). *4.2 Form of Certificate of Designation. +4.3 Form of Senior Debt Indenture. +4.4 Form of Subordinated Debt Indenture. *4.5 Form of Preferred Stock Certificate. *4.6 Form of Senior Debt Security. *4.7 Form of Subordinated Debt Security. 5.1 Opinion of DLA Piper LLP (US) relating to the validity of the securities being registered. 12.1 Statement of Ratio of Earnings to Fixed Charges. 23.1 Consent of DLA Piper LLP (US) (included as part of Exhibit 5.1). 23.2 Consent of Moss Adams LLP, an independent registered public accounting firm. https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 47 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 48 of 54 23.3 Consent of Nichols, Cauley & Associates, LLC, an independent registered public accounting firm. +24.1 Power of Attorney (included in the signature page to this Registration Statement). *25.1 Form T-1 of Trustee under the Senior Debt Indenture. *25.2 Form T-1 of Trustee under the Subordinated Debt Indenture. + Previously filed * To be filed in connection with the offering of securities registered hereunder. II-4 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 48 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 49 of 54 Table of Contents Item 17. Undertakings. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for the purpose of determining liability under the Securities Act to any purchaser: (i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and (ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a) (1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 49 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 50 of 54 II-5 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 50 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 51 of 54 Table of Contents offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. (5) That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; (ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant; (iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and (iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to any charter provision, bylaw, contract, arrangement, statute, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. 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 against the Registrant by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of 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 and will be governed by the final adjudication of such issue. (d) The undersigned Registrant hereby undertakes to file an application for the purpose of determining the eligibility of the applicable trustee to act under subsection (a) of Section 310 of the Trust Indenture Act of 1939 ("Act") in accordance with the rules and regulations of the SEC under Section 305(b)(2) of the Act. II-6 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 51 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 52 of 54 Table of Contents SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona, on the 26th day of August, 2014. INVENTURE FOODS, INC. By:/s/TERRY MCDANIEL Terry McDaniel Chief Executive Officer Pursuant to the requirements of the Securities Act, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Signature Title Date/s/TERRY MCDANIEL Chief Executive Officer and Director (Principal Executive August 26, 2014 Terry McDaniel Officer)/s/STEVE WEINBERGER Chief Financial Officer (Principal Steve Weinberger Financial and Accounting August 26, 2014 Officer) * Chairman and Director August 26, 2014 David L. Meyers * Director August 26, 2014 Ashton D. Asensio * Director August 26, 2014 Paul J. Lapadat * Director August 26, 2014 Macon Bryce Edmonson * Director August 26, 2014 Timothy A. Cole II-7 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 52 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 53 of 54 Table of Contents Signature Title Date * Director August 26, 2014 Harold S. Edwards *By:/s/TERRY MCDANIEL Terry McDaniel Attorney-in-Fact II-8 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017 Page 53 of 53 Case 2:17-cv-00727-JAT Document 27-2 Filed 07/06/17 Page 54 of 54 https://www.sec.gov/Archives/edgar/data/944508/000104746914007206/a2221237zs-3a.htm 7/5/2017

Exhibit C

EXHIBIT C Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 2 of 32 Table of Contents PROSPECTUS $100,000,000 Common Stock, Preferred Stock and Debt Securities, 5,000,000 Shares of Common Stock Offered by the Selling Stockholders We may from time to time offer to sell common stock, preferred stock, or debt securities, in one or more transactions, with a maximum aggregate offering price of $100,000,000. In addition, the selling stockholders to be named in a prospectus supplement, or transferees, pledgees, donees or other successors of the selling stockholders, may sell up to an aggregate of 5,000,000 shares of our common stock, from time to time under this prospectus and any prospectus supplement. We will not receive any proceeds from the sale of our common stock by the selling stockholders. This prospectus describes the general terms of these securities and the general manner in which these securities will be offered. We will provide the specific terms of these securities in supplements to this prospectus. The prospectus supplements will also describe the specific manner in which these securities will be offered and may also supplement, update or amend information contained in this document. You should read this prospectus and any applicable prospectus supplement, as well as the documents incorporated or deemed to be incorporated by reference in this prospectus, before you invest. We may offer these securities in amounts, at prices and on terms determined at the time of offering. The selling stockholders may offer the common stock in amounts, at prices and on terms determined at the time of offering. The securities may be sold directly to you, through agents, or through underwriters and dealers. If agents, underwriters or dealers are used to sell the securities, we will name them and describe their compensation in a prospectus supplement. Our common stock is listed on The NASDAQ Global Select Market under the symbol "SNAK." On August 25, 2014, the closing price of our common stock was $11.87 per share. Investing in these securities involves risks. See "Risk Factors" included in our most recent annual report on Form 10-K, any subsequent quarterly reports on Form 10-Q and current reports on Form 8-K, including any amendments thereto, incorporated herein by reference or filed by us after the date of this prospectus, that are incorporated by reference into this prospectus. You should also review carefully the risks and uncertainties described under the heading "Risk Factors" contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus. Neither the Securities and Exchange Commission (the "SEC") nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense. The date of this prospectus is August 28, 2014. Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 3 of 32 Table of Contents TABLE OF CONTENTS About This Prospectus 1 Forward-Looking Statements 2 The Company 4 Risk Factors 4 Use of Proceeds 4 Ratio of Earnings to Fixed Charges 5 Dividend Policy 5 Description of Capital Stock 6 Description of Debt Securities 8 Legal Ownership of Securities 22 Selling Stockholders 25 Plan of Distribution 25 Legal Matters 28 Experts 28 Where You Can Find More Information 28 Incorporation of Certain Documents by Reference 28 You should rely only on the information contained or incorporated by reference in this prospectus and in any supplement to this prospectus. Neither we nor the selling stockholders have authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. You should assume that the information appearing in this prospectus and any accompanying prospectus supplement is accurate as of the date on their respective covers. Our business, financial condition, results of operations and prospects may have changed since that date. i Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 4 of 32 Table of Contents ABOUT THIS PROSPECTUS This prospectus is part of a registration statement we filed with the SEC using a "shelf" registration process. Under this registration statement, we may sell up to a total of $100,000,000 of any combination of the securities described in this prospectus from time to time in one or more offerings and the selling stockholders may, from time to time, sell up to an aggregate of 5,000,000 shares of common stock in one or more offerings. The types of securities that we may offer and sell from time to time pursuant to this prospectus are: • common stock; • preferred stock; and • debt securities. In addition, the selling stockholders may offer and sell shares of our common stock pursuant to this prospectus. This prospectus provides you with a general description of the securities we or the selling stockholders may offer. Specific information about the terms of an offering will be included in a prospectus or a prospectus supplement relating to each offering of securities. The prospectus supplement may also add, update or change information included in this prospectus. You should read both this prospectus and any applicable prospectus supplement, together with additional information described below under the caption "Where You Can Find More Information." We have not authorized anyone to give you any additional information different from that contained in this prospectus, any accompanying prospectus supplement or any free writing prospectus provided in connection with an offering. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not making an offer to sell these securities in any jurisdiction where the offer is not permitted. The information contained in this prospectus is accurate only as of the date on the front cover of this prospectus, regardless of when this prospectus is delivered or when any sale of our securities occurs. Our business, financial condition, results of operations and prospects may have changed since that date. This prospectus is not an offer to sell or solicitation of an offer to buy our securities in any circumstances under which or jurisdiction in which the offer or solicitation is unlawful. Unless the context otherwise indicates, the terms "Inventure," "Company," "we," "us," and "our" as used in this prospectus refer to Inventure Foods, Inc. and its subsidiaries. The phrase "this prospectus" refers to this prospectus and any applicable prospectus supplement, unless the context otherwise requires. 1 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 5 of 32 Table of Contents FORWARD-LOOKING STATEMENTS Certain statements contained or incorporated by reference in this prospectus may constitute forward-looking statements, which involve known and unknown risks, uncertainties and other factors, which may cause actual results, performance or achievements of our Company to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. We use the words "may," "will," "believe," "expect," "anticipate," "intend," "future," "plan," "estimate," "potential" and other similar expressions to identify forward-looking statements. These forward-looking statements are subject to a number of risks, uncertainties and assumptions that could cause actual results to differ materially from those in the forward looking statements. Such risks, uncertainties and assumptions are described in the "Risk Factors" section included in Amendment No. 1 to our Annual Report on Form 10-K for the year ended December 28, 2013, and subsequently filed Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any amendments to those filings, and include, among other things: • the market price of our common stock has been and may continue to be volatile and you may lose all or a part of your investment in our securities; • our acquisition strategy may not be successful or we may not be successful in integrating acquisitions; • changes in the legal and regulatory environment could limit our business activities, increase our operating costs, reduce demand for our products or result in litigation; • our operations and financial condition may be negatively impacted by general economic conditions or economic downturns; • we may not be successful in implementing our business strategy or expanding our business and, even if successful, may incur substantial costs; • we may require additional financing that may not be available on terms attractive to us and, even if financing is available, it may have dilutive and other adverse effects on our stockholders; • we are required to maintain certain ongoing financial covenants under our credit facility, and, if we fail to meet those covenants or otherwise default, our lender may accelerate the payment of such indebtedness; • we may incur losses and costs as a result of product recalls or liability claims; • concerns with the safety and quality of our food products and ingredients could negatively impact our brand image and profitability; • a significant portion of our revenues is derived from one product and one customer, the loss of which could have a material adverse effect on our business, financial condition and results of operation; • we depend on a license agreement for the right to sell our T.G.I. Friday's® branded products; our Jamba® branded products; our Seattle's Best Coffee® branded products; our Nathan's Famous branded projects; and our Vidalia branded product; • our business may be adversely affected by an oversupply of snack and frozen products at the wholesale and retail levels and seasonal fluctuations; • we may incur substantial costs to market our products and may not be able to successfully respond to shifting customer preferences; • the loss of certain key employees and the inability to successfully compete in our highly competitive industry could adversely affect our business; 2 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 6 of 32 Table of Contents • the unavailability of purchased berries and vegetables at reasonable prices could adversely affect our operations; • we do not own the patents for the technology we use to manufacture certain T.G.I. Friday's®, Boulder Canyon® and Tato Skins® brand products, as well as certain private label branded products; • we are subject to risks that affect the agricultural industry generally, including changes in weather conditions and natural disasters; • a disruption in the performance of our suppliers could have an adverse effect on our operations; • we may not be able to adequately protect our intellectual property and other proprietary rights that are material to our business; • a significant amount of our common stock is controlled by a small number of stockholders whose interests may conflict with those of our other stockholders; • provisions of Delaware law and our charter and bylaws may delay or prevent transactions that would benefit shareholders; and • the issuance of any preferred stock as authorized by our Certificate of Incorporation could adversely affect the rights of holders of common stock. You should not place undue reliance on these forward-looking statements, which speak only as of the date of this prospectus. These forward-looking statements are based on our current expectations and are subject to a number of risks and uncertainties, including those set forth above. Although we believe that the expectations reflected in these forward-looking statements are reasonable, our actual results could differ materially from those expressed in these forward-looking statements, and any events anticipated in the forward-looking statements may not actually occur. Except as required by law, we undertake no duty to update any forward-looking statements after the date of this prospectus to conform those statements to actual results or to reflect the occurrence of unanticipated events. We qualify all forward-looking statements contained or incorporated by reference in this prospectus by the foregoing cautionary statements. 3 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 7 of 32 Table of Contents THE COMPANY We are a leading marketer and manufacturer of healthy/natural and indulgent specialty snack food brands with headquarters in Phoenix, Arizona and plants in Arizona, Georgia, Indiana, Oregon and Washington. We specialize in two primary product categories: (i) healthy/natural food products and (ii) indulgent specialty snack products. Our products in the healthy/natural food category include Rader Farms® frozen berries, Boulder Canyon® Natural Foods brand kettle cooked potato chips, Willamette Valley Fruit Company™ frozen fruit and vegetables, Fresh Frozen™ frozen vegetables and fruit, Jamba® branded blend-and-serve smoothie kits under license from Jamba Juice Company, Seattle's Best Coffee® Frozen Coffee Blends branded blend-and-serve frozen coffee beverage under license from Seattle's Best Coffee, LLC and private label frozen fruit and healthy/natural snacks. Our products in the indulgent specialty snack food category include T.G.I. Friday's® brand snacks under license from T.G.I. Friday's Inc., Nathan's Famous® brand snack products under license from Nathan's Famous Corporation, Vidalia® brand snack products under license from Vidalia Brands, Inc., Poore Brothers® kettle cooked potato chips, Bob's Texas Style® kettle cooked chips, and Tato Skins® brand potato snacks. We also manufacture private label snacks for certain grocery retail chains and co-pack products for other snack and cereal manufacturers. Our common stock is traded on The NASDAQ Global Select Market under the symbol "SNAK." Our principal executive office is located at 5415 East High Street, Suite 350, Phoenix, Arizona 85054 and the phone number for that office is (623) 932-6200. We maintain a website at www.inventurefoods.com, on which we will post free of charge our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and any amendments to these reports under the heading "Investors" as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. We also routinely post important information about the Company on our website under the heading "Investors." We do not incorporate the information on our website into this prospectus and you should not consider any information on, or that can be accessed through, our website as part of this prospectus. You may read and copy any materials we file with the SEC at the Securities and Exchange Commission Public Reference Room at 100 F Street NE Washington, DC 20549. The SEC also maintains a website that contains our reports and other information at www.sec.gov. RISK FACTORS Before you invest in any of our securities, in addition to the other information in this prospectus and the applicable prospectus supplement, you should carefully consider the risk factors under the heading "Risk Factors" in Amendment No. 1 to our Annual Report on Form 10-K for the year ended December 28, 2013, filed with the SEC on March 14, 2014, which are incorporated by reference into this prospectus and the applicable prospectus supplement, as the same may be updated from time to time by our future filings under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Our business, financial position, results of operations, liquidity or prospects could be adversely affected by any of these risks. USE OF PROCEEDS We intend to use the net proceeds we receive from the sale of securities by us as set forth in the applicable prospectus supplement. Unless otherwise specified in the applicable prospectus supplement, we will not receive any proceeds from the sale of securities by selling stockholders. 4 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 8 of 32 Table of Contents RATIO OF EARNINGS TO FIXED CHARGES Our consolidated ratio of earnings to fixed charges for each of the periods indicated are as follows: (in thousands except ratio data) Fiscal Year Ended Six-Months Ended June 28, December 28, December 29, December 31, December 25, December 26, 2014 2013 2012 2011 2010 2009 Earnings(1): Income before taxes $ 6,343 $ 9,978 $ 11,681 $ 4,325 $ 6,476 $ 6,197 Fixed charges 1,254 872 764 885 881 879 Amortization of capitalized interest — — — — — — Distributed income of equity investees — — — — — — Interest capitalized — — — — — — Preference security dividend requirements of consolidated subsidiaries — — — — — — Noncontrolling interest in pre-tax income of subsidiaries that have not incurred fixed charges — — — — — — Total Earnings: $ 7,597 $ 10,850 $ 12,445 $ 5,210 $ 7,357 $ 7,076 Fixed Charges(2): Interest expensed and capitalized $ 1,187 $ 734 $ 740 $ 859 $ 861 $ 859 Amortized premiums, discounts and capitalized expenses related to indebtedness 67 138 24 26 20 20 Interest portion of rental expense — — — — — — Total fixed charges: $ 1,254 $ 872 $ 764 $ 885 $ 881 $ 879 Ratio of earnings to fixed charges 6.06 12.44 16.29 5.89 8.35 8.05 (1) "Earnings" is calculated by adding (a) pre-tax income from continuing operations; (b) fixed charges (excluding capitalized interest); and (c) amortization of capitalized interest. (2) "Fixed Charges" means the sum of the following: (a) interest expensed and capitalized (excluding interest expense related to uncertain tax positions), (b) amortized premiums, discounts and capitalized expenses related to indebtedness, and (c) an estimate of the interest within rental expense. For the periods indicated above, we had no outstanding shares of preferred stock with required dividend payments. Therefore, the ratios of earnings to fixed charges and preferred stock dividends are identical to the ratios presented in the table above. DIVIDEND POLICY We have never declared or paid dividends on our common stock and we do not anticipate paying any dividends on our common stock in the foreseeable future. We will pay dividends on our common stock only if and when declared by our board of directors. Our board's ability to declare a dividend is subject to limits imposed by our debt agreements and Delaware corporate law. In determining whether to declare dividends, the board will consider these limits, our financial condition, results of operations, working capital requirements, future prospects and other factors it considers relevant. 5 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 9 of 32 Table of Contents DESCRIPTION OF CAPITAL STOCK Our authorized share capital consists of 50,000,000 shares of common stock, $0.01 par value, and 50,000 shares of preferred stock, $100.00 par value. As of August 1, 2014, there were 19,528,802 shares of common stock outstanding and no shares of preferred stock issued and outstanding. All outstanding shares of common stock are fully paid and non-assessable. The following summary of our capital stock is qualified in its entirety by the description of our common stock contained in Amendment No. 3 to our Registration Statement on Form SB-2, filed with the SEC on December 5, 1996 (File No. 333-5594-LA), as amended, which description has been incorporated by reference in Item 1 of our Registration Statement on Form 8-A/A, filed with the SEC on December 10, 1996 (File No. 001-14556), including all amendments or reports filed for the purpose of updating such descriptions, and to our certificate of incorporation and bylaws, as amended from time to time, all of which are incorporated by reference as exhibits into the registration statement of which this prospectus is a part. See "Where You Can Find More Information." Common Stock All shares of our common stock are equal with respect to voting, liquidation, dividend and other rights. Owners of common stock are entitled to one vote for each share owned at any meeting of the stockholders. Holders of common stock are entitled to receive such dividends as may be declared by our board of directors out of funds legally available therefor; and upon liquidation, are entitled to participate pro rata in a distribution of assets available for such a distribution to stockholders, subject to the prior claims of holders of any outstanding preferred stock. Our common stock does not have cumulative voting rights. We have not paid cash dividends with respect to our common stock in the past and do not anticipate paying any such dividends in the foreseeable future. None of our outstanding shares of common stock are liable to calls or assessment by us. Preferred Stock We may issue shares of our preferred stock from time to time, in one or more series. Under our certificate of incorporation, we are authorized to issue 50,000 shares of preferred stock, par value $100.00 per share. Our preferred stock is entitled to preference over our common stock with respect to the distribution of our assets in the event of liquidation, dissolution, or winding up of the company. Our preferred stock may be issued from time to time and our board of directors shall have the right to fix the rights, preferences, privileges, qualifications and restrictions granted to or imposed upon the preferred stock. As of August 1, 2014, we do not have any outstanding shares of preferred stock. The issuance of preferred stock could adversely affect the voting power of holders of common stock and reduce the likelihood that common stockholders will receive dividend payments and payments upon liquidation. The issuance could have the effect of decreasing the market price of our common stock. The issuance of preferred stock also could have the effect of delaying, deterring or preventing a change in control of our company. Our board of directors will fix the rights, preferences, privileges, qualifications and restrictions of the preferred stock of each series that we issue in the certificate of designation relating to that series. We will incorporate by reference into the registration statement of which this prospectus is a part the form of any certificate of designation that describes the terms of the series of preferred stock to be offered under this prospectus. This description of the preferred stock in the certificate of designation and any applicable prospectus supplement will include: • the title and stated value; • the number of shares being offered; • the liquidation preference per share; 6 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 10 of 32 Table of Contents • the purchase price per share; • the currency for which the shares may be purchased; • the dividend rate per share, dividend period and payment dates and method of calculation for dividends; • whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; • our right, if any, to defer payment of dividends and the maximum length of any such deferral period; • the procedures for any auction and remarketing, if any; • the provisions for a sinking fund, if any; • the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase rights; • any listing of the preferred stock on any securities exchange or market; • whether the preferred stock will be convertible into our common stock or other securities of ours, and, if applicable, the conversion period, the conversion price, or how it will be calculated, and under what circumstances it may be adjusted; • whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange period, the exchange price, or how it will be calculated, and under what circumstances it may be adjusted; • voting rights, if any, of the preferred stock; • preemption rights, if any; • restrictions on transfer, sale or other assignment, if any; • a discussion of any material or special United States federal income tax considerations applicable to the preferred stock; • the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; • any limitations on issuances of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and • any other specific terms, rights, preferences, privileges, qualifications or restrictions of the preferred stock. When we issue shares of preferred stock, the shares will be fully paid and non-assessable. Certain Anti-Takeover Effects of Delaware Law and Provisions of Our Certificate of Incorporation and Bylaws Our certificate of incorporation and bylaws and the Delaware General Corporation Law contain provisions that may have the effect of delaying, deferring or preventing a change of control of the Company. These provisions, among other things: • authorize our board of directors to set the terms of preferred stock; 7 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 11 of 32 Table of Contents • restrict our ability to engage in transactions with stockholders with 15% or more of outstanding voting stock; and • authorize the calling of special meetings of stockholders only by the board of directors, not by the stockholders. Because of these provisions, persons considering unsolicited tender offers or other unilateral takeover proposals may be more likely to negotiate with our board of directors rather than pursue non-negotiated takeover attempts. As a result, these provisions may make it more difficult for our stockholders to benefit from transactions that are opposed by an incumbent board of directors. DESCRIPTION OF DEBT SECURITIES General We may issue senior debt securities and/or subordinated debt securities, which in each case will be unsecured, direct, general obligations of Inventure Foods, Inc. The senior debt securities will rank equally with all our other unsecured and unsubordinated debt. The subordinated debt securities will be subordinate and junior in priority of payment to our senior debt securities, as described below under "Ranking—Subordination of Subordinated Debt Securities" and in the prospectus supplement applicable to any subordinated debt securities that we may offer. For purposes of the descriptions in this section, we may refer to the senior debt securities and the subordinated debt securities collectively as the "debt securities." The debt securities will be effectively subordinated to the creditors of our subsidiaries. We will issue senior debt securities under a senior debt indenture and subordinated debt securities under a separate subordinated debt indenture. Provisions relating to the issuance of debt securities may also be set forth in a supplemental indenture to either of the indentures. For purposes of the descriptions in this section, we may refer to the senior debt indenture and the subordinated debt indenture and any related supplemental indentures, as "an indenture" or, collectively, as "the indentures." The indentures will be qualified under and governed by the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). Each indenture will be between us and a trustee that meets the requirements of the Trust Indenture Act. We expect that each indenture will provide that there may be more than one trustee under that indenture, each with respect to one or more series of debt securities. Any trustee under an indenture may resign or be removed with respect to one or more series of debt securities and, in that event, we may appoint a successor trustee. Except as otherwise provided in the indenture or supplemental indenture, any action permitted to be taken by a trustee may be taken by that trustee only with respect to the one or more series of debt securities for which it is trustee under the applicable indenture. The descriptions in this section relating to the debt securities and the indentures are summaries of their provisions. The summaries are not complete and are qualified in their entirety by reference to the actual indentures and debt securities and the further descriptions in the applicable prospectus supplement. A form of the senior debt indenture and a form of the subordinated debt indenture under which we may issue our senior debt securities and subordinated debt securities, respectively, have been filed with the SEC as exhibits to the registration statement that includes this prospectus and will be available as described under the heading "Where You Can Find More Information" below. Whenever we refer in this prospectus or in any prospectus supplement to particular sections or defined terms of an indenture, those sections or defined terms are incorporated by reference in this prospectus or in the prospectus supplement, as applicable. You should refer to the provisions of the indentures for provisions that may be important to you. 8 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 12 of 32 Table of Contents The terms and conditions described in this section are terms and conditions that apply generally to the debt securities. The particular terms of any series of debt securities will be summarized in the applicable prospectus supplement. Those terms may differ from the terms summarized below. Except as set forth in the applicable indenture or in a supplemental indenture and described in an applicable prospectus supplement, the indentures do not limit the amount of debt securities we may issue under the indentures. We are not required to issue all of the debt securities of one series at the same time and, unless otherwise provided in the applicable indenture or supplemental indenture and described in the applicable prospectus supplement, we may, from time to time, reopen any series and issue additional debt securities under that series without the consent of the holders of the outstanding debt securities of that series. Additional notes issued in this manner will have the same terms and conditions as the outstanding debt securities of that series, except for their original issue date and issue price, and will be consolidated with, and form a single series with, the previously outstanding debt securities of that series. Terms of Debt Securities to be Included in the Prospectus Supplement The prospectus supplement relating to any series of debt securities that we may offer will set forth the price or prices at which the debt securities will be offered, and will contain the specific terms of the debt securities of that series. These terms may include, without limitation, the following: • the title of the debt securities and whether they are senior debt securities or subordinated debt securities; • the amount of debt securities issued and any limit on the amount that may be issued; • the price(s) (expressed as a percentage of the principal amount) at which the debt securities will be issued; • if other than the principal amount of those debt securities, the portion of the principal amount payable upon declaration of acceleration of the maturity of those debt securities; • the maturity date or dates, or the method for determining the maturity date or dates, on which the principal of the debt securities will be payable and any rights of extension; • the rate or rates, which may be fixed or variable, or the method of determining the rate or rates at which the debt securities will bear interest, if any; • the date or dates from which any interest will accrue and the date or dates on which any interest will be payable, the regular related record dates and whether we may elect to extend or defer such interest payment dates; • the place or places where payments will be payable, where the debt securities may be surrendered for registration of transfer or exchange and where notices or demands to or upon us may be served; • the period or periods within which, the price or prices at which and the other terms and conditions upon which the debt securities may be redeemed, in whole or in part, at our option, if we are to have such an option; • our obligation, if any, to redeem, repay or purchase the debt securities pursuant to any sinking fund or analogous provision or at the option of a holder of the debt securities, and the period or periods within which, or the date and dates on which, the price or prices at which and the other terms and conditions upon which the debt securities will be redeemed, repaid or purchased, in whole or in part, pursuant to that obligation; 9 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 13 of 32 Table of Contents • the currency or currencies in which the debt securities may be purchased, are denominated and are payable, which may be a foreign currency or units of two or more foreign currencies or a composite currency or currencies, and the related terms and conditions, including whether we or the holders of any such debt securities may elect to receive payments in respect of such debt securities in a currency or currency unit other than that in which such debt securities are stated to be payable; • whether the amount of payments of principal of and premium, if any, or interest, if any, on the debt securities may be determined with reference to an index, formula or other method, which index, formula or method may, but need not be, based on a currency, currencies, currency unit or units or composite currency or currencies or with reference to changes in prices of particular securities or commodities, and the manner in which the amounts are to be determined; • any additions to, modifications of or deletions from the terms of the debt securities with respect to events of default, amendments, merger, consolidation and sale or covenants set forth in the applicable indenture; • whether the debt securities will be issued in certificated or book-entry form; • whether the debt securities will be in registered or bearer form or both and, if in registered form, their denominations, if other than $1,000 and any integral multiple thereof, and, if in bearer form, their denominations, if other than $5,000, and the related terms and conditions; • if the debt securities will be issuable only in global form, the depository or its nominee with respect to the debt securities and the circumstances under which the global security may be registered for transfer or exchange in the name of a person other than the depository or its nominee; • the applicability, if any, of the defeasance and covenant defeasance provisions of the indenture and any additional or different terms on which the series of debt securities may be defeased; • whether the debt securities can be converted into or exchanged for our other securities, and the related terms and conditions; • in the case of subordinated debt securities, provisions relating to any modification of the subordination provisions described elsewhere in this prospectus; • any trustee, depositary, authenticating agent, paying agent, transfer agent, registrar or other agent with respect to the debt securities; and • any other terms of the debt securities. Unless otherwise specified in the applicable prospectus supplement, the debt securities will not be listed on any securities exchange. We may offer and sell our debt securities at a substantial discount below their stated principal amount. These debt securities may be original issue discount securities, which means that less than the entire principal amount of the original issue discount securities will be payable upon declaration of acceleration of their maturity. Special federal income tax, accounting and other considerations applicable to original issue discount securities will be described in the applicable prospectus supplement. We may issue debt securities with a fixed interest rate or a floating interest rate. Any material federal income tax considerations applicable to any discounted debt securities or to debt securities issued at par that are treated as having been issued at a discount for federal income tax purposes will be described in the applicable prospectus supplement. 10 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 14 of 32 Table of Contents Except as set forth in the applicable indenture or in a supplemental indenture, the debt securities will not contain any provisions that would limit our ability to incur indebtedness or that would afford holders of debt securities protection in the event of a highly leveraged or similar transaction involving us. The debt securities may contain provisions that would afford debt security holders protection in the event of a change of control. You should refer to the applicable prospectus supplement for information with respect to any deletions from, modifications of or additions to the events of default or covenants that are described below, including any addition of a covenant or other provision providing event risk or similar protection. For purposes of the descriptions in this section: • "subsidiary" means a corporation or a partnership or a limited liability company a majority of the outstanding voting stock or partnership or membership interests, as the case may be, of which is owned or controlled, directly or indirectly, by us or by one or more of our other subsidiaries. For the purposes of this definition, "voting stock" means stock having voting power for the election of directors, or trustees, as the case may be, whether at all times or only so long as no senior class of stock has voting power by reason of any contingency; and • "significant subsidiary" means any of our subsidiaries that is a "significant subsidiary," within the meaning of Regulation S-X promulgated by the SEC under the Securities Act of 1933, as amended (the "Securities Act"). Ranking Senior Debt Securities Payment of the principal of and premium, if any, and interest on debt securities we issue under the senior debt indenture will rank equally with all of our unsecured and unsubordinated debt. Subordination of Subordinated Debt Securities To the extent provided in the subordinated debt indenture and any supplemental indenture, and as described in the prospectus supplement describing the applicable series of subordinated debt securities, the payment of the principal of and premium, if any, and interest on any subordinated debt securities, including amounts payable on any redemption or repurchase, will be subordinated in right of payment and junior to senior debt, which is defined below. If there is a distribution to our creditors in a liquidation or dissolution of us, or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to us, the holders of senior debt will first be entitled to receive payment in full of all amounts due on the senior debt (or provision shall be made for such payment in cash) before any payments may be made on the subordinated debt securities. Because of this subordination, our general creditors may recover more, ratably, than holders of subordinated debt securities in the event of a distribution of assets upon insolvency. The supplemental indenture will set forth the terms and conditions under which, if any, we will not be permitted to pay principal, premium, if any, or interest on the related subordinated debt securities upon the occurrence of an event of default or other circumstances arising under or with respect to senior debt. The indentures will place no limitation on the amount of senior debt that we may incur. We expect to incur from time to time additional indebtedness constituting senior debt, which may include indebtedness that is senior to the subordinated debt securities but subordinate to our other obligations. "Senior debt" means the principal of, and premium, if any, and interest, including interest accruing after the commencement of any bankruptcy proceeding relating to us, on, or substantially similar 11 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 15 of 32 Table of Contents payments we will make in respect of the following categories of debt, whether that debt is outstanding at the date of execution of the applicable indenture or thereafter incurred, created or assumed: • our other indebtedness evidenced by notes, debentures, or bonds or other securities issued under the provisions of any indenture, fiscal agency agreement, note purchase agreement or other agreement, including the senior debt securities that may be offered by means of this prospectus and one or more prospectus supplements; • our indebtedness for money borrowed or represented by purchase-money obligations, as defined below; • our obligations as lessee under leases of property either made as part of a sale and leaseback transaction to which we are a party or otherwise; • indebtedness, obligations and liabilities of others in respect of which we are liable contingently or otherwise to pay or advance money or property or as guarantor, endorser or otherwise or which we have agreed to purchase or otherwise acquire and indebtedness of partnerships and joint ventures which is included in the Company's consolidated financial statements; • reimbursement and other obligations relating to letters of credit, bankers' acceptances and similar obligations; • obligations under various hedging arrangements and agreements, including interest rate and currency hedging agreements; • reimbursement and other obligations relating to letters of credit, bankers' acceptances and similar obligations; • all our obligations issued or assumed as the deferred purchase price of property or services, but excluding trade accounts payable and accrued liabilities arising in the ordinary course of business; and • deferrals, renewals or extensions of any of the indebtedness or obligations described above. However, "senior debt" excludes: • any indebtedness, obligation or liability referred to above as to which, in the instrument creating or evidencing that indebtedness, obligation or liability, it is expressly provided that the indebtedness, obligation or liability is not senior in right of payment to the subordinated debt securities or ranks equally with the subordinated debt securities; • any indebtedness, obligation or liability which is subordinated to our indebtedness to substantially the same extent as or to a greater extent than the subordinated debt securities are subordinated, and • unless expressly provided in the terms thereof, any of our other indebtedness to its subsidiaries. As used above, the term "purchase money obligations" means indebtedness, obligations or guarantees evidenced by a note, debenture, bond or other instrument, whether or not secured by a lien or other security interest, and any deferred obligation for the payment of the purchase price of property but excluding indebtedness or obligations for which recourse is limited to the property purchased, issued or assumed as all or a part of the consideration for the acquisition of property or services, whether by purchase, merger, consolidation or otherwise, but does not include any trade accounts payable. There will not be any restrictions in the subordinated indenture relating to subordinated debt securities upon the creation of additional senior debt. The applicable prospectus supplement may further describe the provisions, if any, applicable to the subordination of the subordinated debt securities of a particular series. The applicable prospectus 12 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 16 of 32 Table of Contents supplement or the information incorporated by reference in the applicable prospectus supplement or in this prospectus will describe as of a recent date the approximate amount of our senior debt outstanding as to which the subordinated debt securities of that series will be subordinated. Structural Subordination The debt securities will be structurally subordinated to all indebtedness and other liabilities of our subsidiaries, since our right to receive any assets of our subsidiaries upon their liquidation or reorganization, and the consequent right of the holders of the debt securities to participate in those assets, will be effectively subordinated to the claims of that subsidiary's creditors. If we are recognized as a creditor of that subsidiary, our claims would still be subordinate to any security interest in the assets of that subsidiary and any indebtedness of that subsidiary senior to that held by us. Conversion or Exchange of Debt Securities The applicable prospectus supplement will set forth the terms, if any, on which a series of debt securities may be converted into or exchanged for our other securities. These terms will include whether conversion or exchange is mandatory, or is at our option or at the option of the holder. We will also describe in the applicable prospectus supplement how we will calculate the number of securities that holders of debt securities would receive if they were to convert or exchange their debt securities, the conversion price and other terms related to conversion and any anti-dilution protections. Redemption of Securities We may redeem the debt securities at any time, in whole or in part, at the prescribed redemption price, at the times and on the terms described in the applicable prospectus supplement. From and after notice has been given as provided in the indentures, if we have made available funds for the redemption of any debt securities called for redemption on the applicable redemption date, the debt securities will cease to bear interest on the date fixed for the redemption specified in the notice, and the only right of the holders of the debt securities will be to receive payment of the redemption price. Notice of any optional redemption by us of any debt securities is required to be given to holders at their addresses, as shown in the security register. The notice of redemption will be required to specify, among other items, the redemption price and the principal amount of the debt securities held by the holder to be redeemed. If we elect to redeem debt securities, we will be required to notify the trustee of the aggregate principal amount of debt securities to be redeemed and the redemption date. If fewer than all the debt securities are to be redeemed, the trustee is required to select the debt securities to be redeemed equally, by lot or in a manner it deems fair and appropriate. Denomination, Interest, Registration and Transfer Unless otherwise specified in the applicable prospectus supplement, we will issue the debt securities (i) in denominations of $1,000 or integral multiples of $1,000 if the debt securities are in registered form, and (ii) in denominations of $5,000 if the debt securities are in bearer form. Unless otherwise specified in the applicable prospectus supplement, we will pay the principal of, and applicable premium, if any, and interest on any series of debt securities at the corporate trust office of the trustee, the address of which will be stated in the applicable prospectus supplement. At our option, we may pay interest by check mailed to the address of the person entitled to the interest payment as it appears in the register for the applicable debt securities or by wire transfer of funds to that person at an account maintained within the United States. 13 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 17 of 32 Table of Contents Any defaulted interest, which means interest not punctually paid or duly provided for on any interest payment date with respect to a debt security, will immediately cease to be payable to the registered holder on the applicable regular record date by virtue of his having been the registered holder on such date. We may pay defaulted interest either to the person in whose name the debt security is registered at the close of business on a special record date for the payment of the defaulted interest to be fixed by the trustee, notice of which is to be given to the holder of the debt security not less than ten days before the special record date, or at any time in any other lawful manner, all as more completely described in the applicable indenture or supplemental indenture. Subject to limitations imposed upon debt securities issued in book-entry form, the holder may exchange debt securities of any series for other debt securities of the same series and of a like aggregate principal amount and tenor of different authorized denominations upon surrender of the debt securities at the corporate trust office of the applicable trustee. In addition, subject to limitations imposed upon debt securities issued in book-entry form, the holder may surrender debt securities of any series for registration of transfer or exchange at the corporate trust office of the applicable trustee. Every debt security surrendered for registration of transfer or exchange must be duly endorsed or accompanied by a written instrument of transfer. No service charge will be imposed for any registration of transfer or exchange of any debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with any registration of transfer or exchange of any debt securities. If the applicable prospectus supplement refers to any transfer agent, in addition to the applicable trustee, initially designated by us with respect to any series of debt securities, we may at any time rescind the designation of that transfer agent or approve a change in the location through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for that series. We may at any time designate additional transfer agents with respect to any series of debt securities. If we redeem the debt securities of any series, neither we nor any trustee will be required to: • issue, register the transfer of, or exchange debt securities of any series during a period beginning at the opening of business 15 days before any selection of debt securities of that series to be redeemed and ending at the close of business on the day of mailing of the relevant notice of redemption; • register the transfer of, or exchange any debt security, or portion of any debt security, called for redemption, except the unredeemed portion of any debt security being redeemed in part; or • issue, register the transfer of, or exchange any debt security that has been surrendered for repayment at the option of the holder, except the portion, if any, of the debt security not to be repaid. Global Securities We may issue the debt securities of a series in whole or in part in the form of one or more global securities to be deposited with, or on behalf of, a depository or with a nominee for a depository identified in the applicable prospectus supplement relating to that series. We may issue global securities in either registered or bearer form and in either temporary or permanent form. The specific terms of the depository arrangement with respect to a series of debt securities will be described in the prospectus supplement relating to that series. Our obligations with respect to the debt securities, as well as the obligations of the applicable trustee, run only to persons who are registered holders of debt securities. For example, once we make payment to the registered holder, we have no further responsibility for that payment even if the recipient is legally required to pass the payment along to an individual investor but fails to do so. As an indirect holder, an investor's rights relating to a global security will be governed by the account rules of 14 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 18 of 32 Table of Contents the investor's financial institution and of the depositary, as well as general laws relating to transfers of debt securities. An investor should be aware that when debt securities are issued in the form of global securities: • the investor cannot have debt securities registered in his or her own name; • the investor cannot receive physical certificates for his or her debt securities; • the investor must look to his or her bank or brokerage firm for payments on the debt securities and protection of his or her legal rights relating to the debt securities; • the investor may not be able to sell interests in the debt securities to some insurance or other institutions that are required by law to hold the physical certificates of debt that they own; • the depositary's policies will govern payments, transfers, exchanges and other matters relating to the investor's interest in the global security; and • the depositary will usually require that interests in a global security be purchased or sold within its system using same-day funds. The applicable prospectus supplement for a series of debt securities will list the special situations, if any, in which a global security will terminate and interests in the global security will be exchanged for physical certificates representing debt securities. After that exchange, the investor may choose whether to hold debt securities directly or indirectly through an account at the investor's bank or brokerage firm. In that event, investors must consult their banks or brokers to find out how to have their interests in debt securities transferred to their own names so that they may become direct holders. When a global security terminates, the depositary, and not us or one of the trustees, is responsible for deciding the names of the institutions that will be the initial direct holders. Merger, Consolidation or Sale of Assets We will not be permitted to consolidate with or merge into any other entity, or sell, lease, transfer or convey all or substantially all of our properties and assets, either in one transaction or a series of transactions, to any other entity and no other entity will consolidate with or merge into us, or sell, lease, transfer or convey all or substantially all of its properties and assets to us unless: (1) either: • we are the continuing entity, or • the successor entity, if other than us, formed by or resulting from any consolidation or merger, or which has received the transfer of our assets, expressly assumes payment of the principal of, and premium, if any, and interest on all of the outstanding debt securities and the due and punctual performance and observance of all of the covenants and conditions contained in the indentures, and (2) immediately after giving effect to the transaction and treating any indebtedness that becomes our obligation or the obligation of any of our subsidiaries as a result of that transaction as having been incurred by us or our subsidiary at the time of the transaction, no event of default under the indentures or supplemental indentures, and no event which, after notice or the lapse of time, or both, would become an event of default, will have occurred and be continuing; provided, that the conditions described in (1) and (2) above will not apply to the direct or indirect transfer of the stock, assets or liabilities of any of our subsidiaries to another of our direct or indirect subsidiaries. 15 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 19 of 32 Table of Contents Except as provided in this prospectus or as may otherwise be provided in the applicable prospectus supplement, the indenture and the terms of the debt securities will not contain any event risks or similar covenants that are intended to afford protection to holders of any debt securities in the event of a merger, a highly leveraged transaction or other significant corporate event involving us or our subsidiaries, whether or not resulting in a change of control, which may adversely affect holders of the debt securities. Additional Covenants and/or Modifications to the Covenant Described Above Any additional covenants and/or modifications to the covenants described above with respect to any series of debt securities, including any covenants relating to limitations on incurrence of indebtedness or other financial covenants, will be set forth in the applicable indenture or supplemental indenture and described in the applicable prospectus supplement relating to that series of debt securities. Unless the applicable prospectus supplement indicates otherwise, the subordinated debt indenture does not contain any other provision which restricts us from, among other things: • incurring or becoming liable on any secured or unsecured senior indebtedness or general obligations; or • paying dividends or making other distributions on our capital stock; or • purchasing or redeeming our capital stock; or • creating any liens on our property for any purpose. Events of Default, Waiver and Notice Events of Default The events of default with respect to any series of debt securities issued under it, subject to any modifications or deletions provided in any supplemental indenture with respect to any specific series of debt securities, include the following events: • failure to pay any installment of interest or any additional amounts payable on any debt security of the series for 30 days; • failure to pay principal of, or premium, if any, on, any debt security of the series when due, whether at maturity, upon redemption, by declaration or acceleration of maturity or otherwise; • default in making any sinking fund payment (if any) when due, for any debt security of the series; • default in the performance or breach of any of our other covenants or warranties contained in the applicable indenture, other than a covenant added to the indenture solely for the benefit of any other series of debt securities issued under that indenture, continued for 90 days after written notice as provided in the applicable indenture; • specific events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of us or any significant subsidiary or either of our property; and • any other event of default provided with respect to a particular series of debt securities. If an event of default under any indenture with respect to debt securities of any series at the time outstanding occurs and is continuing, then in every case other than in the case of specific events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of us or any significant subsidiary or either of our property, in which case acceleration will be automatic, the 16 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 20 of 32 Table of Contents applicable trustee or the holders of not less than 25% of the principal amount of the outstanding debt securities of that series will have the right to declare the principal amount, or, if the debt securities of that series are original issue discount securities or indexed securities, the portion of the principal amount as may be specified in the terms of that series, of all the debt securities of that series to be due and payable immediately by written notice to us, and to the applicable trustee if given by the holders. At any time after a declaration of acceleration has been made with respect to debt securities of a series, or of all debt securities then outstanding under any indenture, as the case may be, but before a judgment or decree for payment of the money due has been obtained by the applicable trustee, however, the holders of not less than a majority in principal amount of the outstanding debt securities of that series, or of all debt securities then outstanding under the applicable indenture, as the case may be, may annul the declaration of acceleration and waive any default in respect of those debt securities if: • we have deposited with the applicable trustee all required payments due otherwise than by acceleration of the principal of, and premium, if any, and interest on the debt securities of that series, or of all debt securities then outstanding under the applicable indenture, as the case may be, plus specified fees, expenses, disbursements and advances of the applicable trustee, and • all events of default, other than the non-payment of all or a specified portion of the accelerated principal, with respect to debt securities of that series, or of all debt securities then outstanding under the applicable indenture, as the case may be, have been cured or waived as provided in the applicable indenture. Waiver Each indenture also will provide that the holders of not less than a majority in principal amount of the outstanding debt securities of any series, or of all debt securities then outstanding under the applicable indenture, as the case may be, may waive any past default with respect to that series and its consequences, except a default: • in the payment of the principal of, or premium, if any, or interest on any debt security of that series, or • in respect of a covenant or provision contained in the applicable indenture that, by the terms of that indenture, cannot be modified or amended without the consent of each affected holder of an outstanding debt security. Notice Each trustee will be required to give notice to the holders of the applicable debt securities within 90 days of a default under the applicable indenture unless the default has been cured or waived; but the trustee may withhold notice of any default, except a default in the payment of the principal of, or premium, if any, or interest on the debt securities or in the payment of any sinking fund installment in respect of the debt securities, if specified responsible officers of the trustee consider the withholding to be in the interest of the holders. The holders of debt securities of any series may not institute any proceedings, judicial or otherwise, with respect to the indentures or for any remedy under the indentures, except in the case of failure of the applicable trustee, for 60 days, to act after the trustee has received a written request to institute proceedings in respect of an event of default from the holders of not less than 25% in principal amount of the outstanding debt securities of that series, as well as an offer of indemnity reasonably satisfactory to the trustee, and provided that no direction inconsistent with such written request has been given to the trustee during such 60-day period by the holders of a majority of the outstanding debt securities of that series. However, any holder of debt securities is not prohibited from 17 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 21 of 32 Table of Contents instituting suit for the enforcement of payment of the principal of, and premium, if any, and interest on the debt securities at their respective due dates. Subject to the trustee's duties in case of default, no trustee will be under any obligation to exercise any of its rights or powers under an indenture at the request or direction of any holders of any series of debt securities then outstanding under that indenture, unless the holders offer to the trustee reasonable security or indemnity. Subject to such provisions for the indemnification of the trustee, the holders of not less than a majority in principal amount of the outstanding debt securities of any series, or of all debt securities then outstanding under an indenture, as the case may be, will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable trustee, or of exercising any trust or power conferred upon the trustee. A trustee may refuse, however, to follow any direction that is in conflict with any law or the applicable indenture that may involve the trustee in personal liability or may be unduly prejudicial to the holders of debt securities of that series not joining in the direction. Within 180 days after the end of each fiscal year, we will be required to deliver to each trustee a certificate, signed by one of several specified officers, stating whether or not that officer has knowledge of any default under the applicable indenture and, if so, specifying each default and the nature and status of the default. Modification of the Indentures Except as otherwise specifically provided in the applicable indenture, with the consent of the holders of not less than a majority in principal amount of all outstanding debt securities issued under that indenture that are affected by the modification or amendment, we may enter into supplemental indentures with the trustee for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of such indenture or of modifying in any manner the rights of the holders under debt securities issued under such indenture. However, no modification or amendment may, without the consent of the holder of each debt security affected by the modification or amendment: • except as described in the applicable prospectus supplement relating to such debt security: • extend the stated maturity of the principal of, or any installment of interest or any additional amounts, or the premium, if any, on, any debt security, • reduce the principal amount of, or the rate or amount of interest on, or change the manner of calculating the rate, or any premium payable on redemption of, any debt security, or reduce the amount of principal of an original issue discount security that would be due and payable upon declaration of acceleration of its maturity or would be provable in bankruptcy, or adversely affect any right of repayment of the holder of any debt security, • extend the time of payment of interest on any debt security or any additional amounts, • change any of the conversion, exchange or redemption provisions of any debt security, • change the place of payment, or the coin or currency for payment, of principal, or premium, if any, including any amount in respect of original issue discount or interest on any debt security, • impair the right to institute suit for the enforcement of any payment on or with respect to any debt security or for the conversion or exchange of any debt security in accordance with its terms, and • in the case of subordinated debt securities, modify the ranking or priority of the securities, 18 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 22 of 32 Table of Contents • reduce the percentage of outstanding debt securities of any series necessary to modify or amend the applicable indenture, to waive compliance with specific provisions of or certain defaults and consequences under the applicable indenture, or to reduce the quorum or voting requirements set forth in the applicable indenture, or • modify any of the provisions relating to the waiver of specific past defaults or specific covenants, except to increase the required percentage to effect that action or to provide that specific other provisions may not be modified or waived without the consent of the holder of that debt security. The holders of not less than a majority in principal amount of the outstanding debt securities of each series affected by the modification or amendment will have the right to waive compliance by us with specific covenants in the indenture. We and the respective trustee may modify and amend an indenture without the consent of any holder of debt securities for any of the following purposes: • to evidence the succession of another person to us as obligor under the indenture or to evidence the addition or release of any guarantor in accordance with the indenture or any supplemental indenture; • to add to our covenants for the benefit of the holders of all or any series of debt securities or to surrender any right or power conferred upon us in the indenture; • to add events of default for the benefit of the holders of all or any series of debt securities; • to add or change any provisions of the indenture to facilitate the issuance of, or to liberalize specific terms of, debt securities in bearer form, or to permit or facilitate the issuance of debt securities in uncertificated form, provided that the action will not adversely affect the interests of the holders of the debt securities of any series in any material respect; • to change or eliminate any provisions of an indenture, if the change or elimination becomes effective only when there are no debt securities outstanding of any series created prior to the change or elimination that are entitled to the benefit of the changed or eliminated provision; • to establish the form or terms of debt securities of any series and any related coupons; • to provide for the acceptance of appointment by a successor trustee or facilitate the administration of the trusts under an indenture by more than one trustee; • to cure any ambiguity or correct any inconsistency in an indenture provided that the cure or correction does not adversely affect the holders of the debt securities; • to supplement any of the provisions of an indenture to the extent necessary to permit or facilitate defeasance and discharge of any series of debt securities, provided that the supplement does not adversely affect the interests of the holders of the debt securities of any series in any material respect; • to make provisions with respect to the conversion or exchange terms and conditions applicable to the debt securities of any series; • to add to, delete from or revise the conditions, limitations or restrictions on issue, authentication and delivery of debt securities; • to conform any provision in an indenture to the requirements of the Trust Indenture Act; or • to make any change that does not adversely affect the legal rights under an indenture of any holder of debt securities of any series issued under that indenture. 19 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 23 of 32 Table of Contents In determining whether the holders of the requisite principal amount of outstanding debt securities of a series have given any request, demand, authorization, direction, notice, consent or waiver under the indenture or whether a quorum is present at a meeting of holders of debt securities: • the principal amount of an original issue discount security that is deemed to be outstanding will be the amount of the principal of that original issue discount security that would be due and payable as of the date of the determination upon declaration of acceleration of the maturity of that original issue discount security; • the principal amount of any debt security denominated in a foreign currency that is deemed outstanding will be the U.S. dollar equivalent, determined on the issue date for that debt security, of the principal amount, or, in the case of an original issue discount security, the U.S. dollar equivalent on the issue date of that debt security of the amount determined as provided in the immediately preceding bullet point; • the principal amount of an indexed security that is deemed outstanding will be the principal face amount of the indexed security at original issuance, unless otherwise provided with respect to the indexed security under the applicable indenture; and • debt securities owned by us or any other obligor upon the debt securities or any of our affiliates or of any other obligor are to be disregarded. Discharge, Defeasance and Covenant Defeasance Discharge We may be permitted under the applicable indenture to discharge specific obligations to holders of any series of debt securities (1) that have not already been delivered to the applicable trustee for cancellation and (2) that either have become due and payable or will, within one year, become due and payable or scheduled for redemption, by irrevocably depositing with the applicable trustee, in trust, money or funds certified to be sufficient to pay when due, whether at maturity, upon redemption or otherwise, the principal of, and premium, if any, on and interest on the debt securities. Defeasance and Covenant Defeasance If the provisions of the applicable indenture relating to defeasance and covenant defeasance are made applicable to the debt securities of or within any series, we may elect either: • defeasance, which means we elect to defease and be discharged from any and all obligations with respect to the debt securities, except for the obligations to register the transfer or exchange of the debt securities, to replace temporary or mutilated, destroyed, lost or stolen debt securities, to maintain an office or agency in respect of the debt securities and to hold moneys for payment in trust; or • covenant defeasance, which means we elect to be released from our obligations with respect to the debt securities under specified sections of the applicable indenture relating to covenants, as described in the applicable prospectus supplement and any omission to comply with its obligations will not constitute an event of default with respect to the debt securities, in either case upon the irrevocable deposit by us with the applicable trustee, in trust, of an amount, in currency or currencies or government obligations, or both, sufficient without reinvestment to make scheduled payments of the principal of, and premium, if any, and interest on the debt securities, when due, whether at maturity, upon redemption or otherwise, and any mandatory sinking fund or analogous payments. 20 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 24 of 32 Table of Contents A trust will only be permitted to be established if, among other things: • we have delivered to the applicable trustee an opinion of counsel, as specified in the applicable indenture, to the effect that the holders of the debt securities will not recognize income, gain or loss for federal income tax purposes as a result of the defeasance or covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the defeasance or covenant defeasance had not occurred, and the opinion of counsel, in the case of defeasance, will be required to refer to and be based upon a ruling of the Internal Revenue Service or a change in applicable U.S. federal income tax law occurring after the date of the indenture; • no event of default or any event which after notice or lapse of time or both would be an event of default has occurred; • the defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, the applicable indenture or any other material agreement or instrument to which we are a party or by which we are bound; • certain other provisions set forth in the applicable indenture are met; and • we will have delivered to the trustee an officers' certificate and an opinion of counsel, each stating that all conditions precedent to the defeasance or covenant defeasance have been complied with. In general, if we elect covenant defeasance with respect to any debt securities and payments on those debt securities are declared due and payable because of the occurrence of an event of default, the amount of money and/or government obligations on deposit with the applicable trustee would be sufficient to pay amounts due on those debt securities at the time of their stated maturity, but may not be sufficient to pay amounts due on those debt securities at the time of the acceleration resulting from the event of default. In that case, we would remain liable to make payment of the amounts due on the debt securities at the time of acceleration. The applicable prospectus supplement may further describe the provisions, if any, permitting defeasance or covenant defeasance, including any modifications to the provisions described above, with respect to the debt securities of or within a particular series. Regarding the Trustees We will designate the trustee under the senior and subordinated debt indentures in the applicable prospectus supplement. From time to time, we may enter into banking or other relationships with any of such trustees or their affiliates. There may be more than one trustee under each indenture, each with respect to one or more series of debt securities. Any trustee may resign or be removed with respect to one or more series of debt securities, and a successor trustee may be appointed to act with respect to such series. If two or more persons are acting as trustee with respect to different series of debt securities, each trustee will be a trustee of a trust under the indenture separate from the trust administered by any other such trustee. Except as otherwise indicated in this prospectus, any action to be taken by the trustee may be taken by each such trustee with respect to, and only with respect to, the one or more series of debt securities for which it is trustee under the indenture. Governing Law The senior debt securities, the subordinated debt securities and the related indentures will be governed by, and construed in accordance with, the internal laws of the State of New York. 21 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 25 of 32 Table of Contents LEGAL OWNERSHIP OF SECURITIES We can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee or depositary or warrant agent maintain for this purpose as the "holders" of those securities. These persons are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as "indirect holders" of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect holders. Book-Entry Holders We may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate in the depositary's book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers. Only the person in whose name a security is registered is recognized as the holder of that security. Global securities will be registered in the name of the depositary. Consequently, for global securities, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities. As a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary's book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not holders, of the securities. Street Name Holders We may terminate global securities or issue securities that are not issued in global form. In these cases, investors may choose to hold their securities in their own names or in "street name." Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution. For securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and we or any such trustee or depositary will make all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities. Legal Holders Our obligations, as well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who 22 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 26 of 32 Table of Contents hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form. For example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements with its participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with a particular provision of an indenture, or for other purposes. In such an event, we would seek approval only from the holders, and not the indirect holders, of the securities. Whether and how the holders contact the indirect holders is up to the holders. Special Considerations for Indirect Holders If you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are represented by one or more global securities or in street name, you should check with your own institution to find out: • how it handles securities payments and notices; • whether it imposes fees or charges; • how it would handle a request for the holders' consent, if ever required; • whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future; • how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and • if the securities are in book-entry form, how the depositary's rules and procedures will affect these matters. Global Securities A global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms. Each security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known as DTC, will be the depositary for all securities issued in book-entry form. A global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under "—Special Situations When a Global Security Will Be Terminated." As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a holder of the security, but only an indirect holder of a beneficial interest in the global security. 23 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 27 of 32 Table of Contents If the prospectus supplement for a particular security indicates that the security will be issued as a global security, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system. Special Considerations for Global Securities As an indirect holder, an investor's rights relating to a global security will be governed by the account rules of the investor's financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security. If securities are issued only as global securities, an investor should be aware of the following: • investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below; • an investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe above; • an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form; • an investor may not be able to pledge his or her interest in the global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; • the depositary's policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor's interest in the global security. We and any applicable trustee have no responsibility for any aspect of the depositary's actions or for its records of ownership interests in the global security. We and the trustee also do not supervise the depositary in any way; • the depositary may, and we understand that DTC will, require that those who purchase and sell interests in the global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and • financial institutions that participate in the depositary's book-entry system, and through which an investor holds its interest in the global security, may also have their own policies affecting payments, notices and other matters relating to the securities. There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries. Special Situations When a Global Security Will be Terminated In a few special situations described below, a global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to their own names, so that they will be direct holders. We have described the rights of holders and street name investors above. 24 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 28 of 32 Table of Contents A global security will terminate when the following special situations occur: • if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days; • if we notify any applicable trustee that we wish to terminate that global security; or • if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived. The prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders. SELLING STOCKHOLDERS We are registering 5,000,000 shares of common stock to permit the stockholders to be named in a prospectus supplement, and their transferees, pledgees, donees or successors, to resell the shares in the manner contemplated under "Plan of Distribution." Certain shares of common stock included in this prospectus for resale by the selling stockholders were initially acquired in connection with our acquisition of Wabash Foods, LLC in October 1999, pursuant to which we issued shares of common stock and warrants, which were subsequently exercised, to the former owners of Wabash Foods, LLC as consideration for all of the membership interests in Wabash Foods, LLC. The remaining shares of common stock that may be offered by the selling stockholders were acquired pursuant to equity awards and open market purchases since January 1, 2010. Information about the selling stockholders will be set forth in an applicable prospectus supplement. The initial purchasers of these securities, as well as their transferees, pledgees, donees or successors, all of whom are referred to herein as "selling stockholders," may from time to time offer and sell such securities pursuant to this prospectus and any applicable prospectus supplement. An applicable prospectus supplement will set forth the name of each selling stockholder, the nature of any position, office, or other material relationship which any selling stockholder has had within the past three years with us or any of our predecessors or affiliates, if any, the amount of our common stock owned by each selling stockholder prior to the offering, the amount of our common stock which may be offered for each selling stockholder's account, and the amount and (if one percent or more) the percentage of our common stock to be owned by each selling stockholder after completion of the offering. The selling stockholders shall not sell any shares of our common stock pursuant to this prospectus until we have identified such selling stockholders and the shares of our common stock which may be offered for resale by such selling stockholders in a subsequent prospectus supplement. However, the selling stockholders may sell or transfer all or a portion of their shares of common stock pursuant to any available exemption from the registration requirements of the Securities Act. PLAN OF DISTRIBUTION The securities being offered by this prospectus may be sold by us or by the selling stockholders (which as used in this prospectus includes donees, pledgees, transferees or other successors-in-interest selling common stock received after the date of this prospectus from a selling stockholder as a gift, pledge, distribution or other transfer): • through agents; • to or through underwriters; 25 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 29 of 32 Table of Contents • through broker-dealers (acting as agent or principal); • directly by us or a selling stockholder to purchasers, through a specific bidding or auction process or otherwise; • through a combination of any such methods of sale; or • through any other methods described in a prospectus supplement. The distribution of securities may be effected from time to time in one or more transactions, including block transactions and transactions on The NASDAQ Global Select Market or any other organized market where the securities may be traded, in the over-the-counter market, or otherwise, on a continuous or delayed basis. The selling stockholders may act independently of us in making decisions with respect to the timing, manner and size of each sale. The securities may be sold at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices relating to the prevailing market prices or at negotiated prices. The consideration may be cash or another form negotiated by the parties. Agents, underwriters or broker-dealers may be paid compensation for offering and selling the securities. That compensation may be in the form of discounts, concessions or commissions to be received from us or from the purchasers of the securities. The selling stockholders and any dealers and agents participating in the distribution of the securities may be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting discounts. If such selling stockholders, dealers or agents were deemed to be underwriters, they may be subject to statutory liabilities under the Securities Act. Agents may from time to time solicit offers to purchase the securities. If required, we will name in the applicable prospectus supplement any agent involved in the offer or sale of the securities and set forth any compensation payable by us or the selling stockholders to the agent. Unless otherwise indicated in the prospectus supplement, any agent will be acting on a best efforts basis for the period of its appointment. Any agent selling the securities covered by this prospectus may be deemed to be an underwriter, as that term is defined in the Securities Act, of the securities. If underwriters are used in a sale, securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale, or under delayed delivery contracts or other contractual commitments. Securities may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. If an underwriter or underwriters are used in the sale of securities, an underwriting agreement will be executed with the underwriter or underwriters at the time an agreement for the sale is reached. The applicable prospectus supplement will set forth the managing underwriter or underwriters, as well as any other underwriter or underwriters, with respect to a particular underwritten offering of securities, and will set forth the terms of the transactions, including compensation of the underwriters and dealers and the public offering price, if applicable. The prospectus and the applicable prospectus supplement will be used by the underwriters to resell the securities. If a dealer is used in the sale of the securities, we, the selling stockholders, or an underwriter will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. To the extent required, we will set forth in the prospectus supplement the name of the dealer and the terms of the transactions. We or the selling stockholders may directly solicit offers to purchase the securities and we or the selling stockholders may make sales of securities directly to institutional investors or others. These persons may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of the securities. To the extent required, the prospectus supplement will describe the terms of any such sales, including the terms of any bidding or auction process, if used. 26 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 30 of 32 Table of Contents Agents, underwriters and dealers may be entitled under agreements which may be entered into with us or the selling stockholders to indemnification by us or the selling stockholders against specified liabilities, including liabilities incurred under the Securities Act, or to contribution by us or the selling stockholders to payments they may be required to make in respect of such liabilities. If required, the prospectus supplement will describe the terms and conditions of such indemnification or contribution. Some of the agents, underwriters or dealers, or their affiliates may be customers of, engage in transactions with or perform services for us or our subsidiaries in the ordinary course of business. Under the securities laws of some states, the securities offered by this prospectus may be sold in those states only through registered or licensed brokers or dealers. The selling stockholders may also sell shares in accordance with Rule 144 under the Securities Act, or pursuant to other available exemptions from the registration requirements of the Securities Act, rather than pursuant to this prospectus. In addition, the selling stockholders or their successors in interest may enter into hedging transactions with broker-dealers who may engage in short sales of the shares, short and deliver the shares to close out such short positions, or loan or pledge the shares to broker-dealers that in turn may see such securities. The selling stockholders or their successors in interest may also enter into option or other transactions with broker-dealers that require the delivery by such broker-dealers of the shares, which may be resold thereafter under this prospectus and an accompanying prospectus supplement if the shares are delivered by the selling stockholders. The selling stockholders may not satisfy their obligations in connection with short sale or hedging transactions entered into before the effective date of the registration statement of which this prospectus is a part by delivering securities registered under such registration statement. The selling stockholders or their successors in interest may from time to time pledge or grant a security interest in some or all of the shares and, if the selling stockholders default in the performance of their secured obligation, the pledges or secured parties may offer and sell the shares from time to time under this prospectus and an accompanying prospectus supplement. Any person participating in the distribution of common stock registered under the registration statement that includes this prospectus will be subject to applicable provisions of the Exchange Act, and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit the timing of purchases and sales of any of our common stock by any such person. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of our common stock to engage in market-making activities with respect to our common stock. These restrictions may affect the marketability of our common stock and the ability of any person or entity to engage in market-making activities with respect to our common stock. Certain persons participating in an offering may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act that stabilize, maintain or otherwise affect the price of the offered securities. If any such activities will occur, they will be described in the applicable prospectus supplement. Other than our common stock, which is listed on The NASDAQ Global Select Market, each of the securities issued hereunder will be a new issue of securities, will have no prior trading market, and may or may not be listed on a national securities exchange. Any common stock sold pursuant to a prospectus supplement will be listed on The NASDAQ Global Select Market, subject to official notice of issuance. Any underwriters to whom securities are sold by us or the selling stockholders for public offering and sale may make a market in such securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot assure you that there will be a market for the offered securities. 27 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 31 of 32 Table of Contents LEGAL MATTERS Unless otherwise specified in a prospectus supplement accompanying this prospectus, the validity of the securities offered hereby will be passed upon by DLA Piper LLP (US), Phoenix, Arizona, and for any underwriters or agents by counsel named in the applicable prospectus supplement. EXPERTS Our consolidated balance sheets as of December 28, 2013 and December 29, 2012, the related consolidated statements of operations, comprehensive income, stockholders' equity, and cash flows for each of the three years in the period ended December 28, 2013, and the effectiveness of Inventure Foods, Inc.'s internal control over financial reporting as of December 28, 2013 have been incorporated by reference herein in reliance upon the report of Moss Adams LLP, an independent registered public accounting firm, given upon the authority of that firm as experts in accounting and auditing. The balance sheets of Fresh Frozen Foods, LLC, as of December 31, 2012 and 2011, and the related statements of income, changes in members' equity, and cash flows for the years then ended have been incorporated by reference herein in reliance upon the report of Nichols, Cauley & Associates, LLC, an independent registered public accounting firm, given upon the authority of that firm as experts in accounting and auditing. WHERE YOU CAN FIND MORE INFORMATION We are currently subject to the information requirements of the Exchange Act and in accordance therewith file periodic reports, proxy statements and other information with the Securities and Exchange Commission. You may read and copy (at prescribed rates) any such reports, proxy statements and other information at the SEC's Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference room. Our SEC filings will also be available to you on the SEC's website at http://www.sec.gov. Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus. If you make a request for such information in writing or by telephone, we will provide you, without charge, a copy of any or all of the information incorporated by reference into this prospectus. Any such request should be directed to: Inventure Foods, Inc. 5415 East High Street, Suite #350 Phoenix, Arizona 85054 (623) 932-6200 Attention: Secretary INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The SEC allows us to "incorporate by reference" certain information into this prospectus, which means that we can disclose important information about us by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be a part of this prospectus. Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included 28 Case 2:17-cv-00727-JAT Document 27-3 Filed 07/06/17 Page 32 of 32 Table of Contents or incorporated in this prospectus. This means that you must carefully review all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. However, we undertake no obligation to update or revise any statements we make, except as required by law. This prospectus incorporates by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (in each case, other than those documents or the portions of those documents not deemed to be filed) until the offering of the securities under the registration statement is terminated or completed: • our Annual Report on Form 10-K for the fiscal year ended December 28, 2013, filed with the SEC on March 13, 2014, as amended by Amendment No. 1 to our Annual Report on Form 10-K/A, filed with the SEC on March 14, 2014; • our Quarterly Reports on Form 10-Q for the periods ended March 29, 2014, filed with the SEC on May 6, 2014, and June 28, 2014, filed with the SEC on August 5, 2014; • our Current Report on Form 8-K/A filed with the SEC on January 24, 2014 and Current Reports on Form 8-K filed with the SEC on April 21, 2014, May 16, 2014 and June 2, 2014; • our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 14, 2014, to the extent incorporated by reference into our Annual Report on Form 10-K for the year ended December 28, 2013; and • The description of our common stock, par value $0.01 per share, included under the caption "Description of Securities" in the Prospectus forming a part of Amendment No. 3 to the Company's Registration Statement on Form SB-2, filed with the SEC on December 5, 1996 (File No. 333-5594-LA), including exhibits, and as amended, which description has been incorporated by reference in Item 1 of our Registration Statement on Form 8-A/A, filed pursuant to Section 12 of the Exchange Act, on December 10, 1996 (File No. 001-14556). 29

Exhibit D

EXHIBIT D Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 2 of 86 Use these links to rapidly review the document TABLE OF CONTENTS TABLE OF CONTENTS Table of Contents Filed Pursuant to Rule 424(b)(7) Registration No. 333-196795 Prospectus Supplement (To prospectus dated August 28, 2014) 3,594,518 Shares Common Stock The selling stockholder identified in this prospectus supplement is offering 3,594,518 shares of our common stock pursuant to this prospectus supplement and the accompanying prospectus. We will not receive any proceeds from the shares of our common stock sold by the selling stockholder. Our common stock is traded on the NASDAQ Global Select Market under the symbol "SNAK." On September 11, 2014, the closing price of our common stock on the NASDAQ Global Select Market was $12.98 per share. Investing in our common stock involves a high degree of risk. See "Risk Factors" beginning on page S-9 of this prospectus supplement and in the documents we incorporate by reference into this prospectus supplement and the accompanying prospectus. Per Share Total Public offering price $ 12.8500 $ 46,189,556 Underwriting discounts and commissions(1) $ 0.7388 $ 2,655,630 Proceeds to the selling stockholder before expenses $ 12.1112 $ 43,533,926 (1) See "Underwriting" for additional information regarding underwriting compensation. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus supplement or the accompanying prospectus. Any representation to the contrary is a criminal offense. The selling stockholder has granted the underwriters an option for a period of 30 days to purchase up to an additional 539,177 shares. If the underwriters exercise the option in full, the total public offering price will be $53,117,981 and the total underwriting discounts and commissions will be $3,053,974. Delivery of the shares is expected to be made on or about September 17, 2014. Sole Book-Running Manager William Blair Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 3 Lead Manager of 86 Co-Manager Canaccord Genuity Roth Capital Partners The date of this prospectus supplement is September 11, 2014 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 4 of 86 Table of Contents TABLE OF CONTENTS Prospectus Supplement Page ABOUT THIS PROSPECTUS SUPPLEMENT S-ii WHERE YOU CAN FIND MORE INFORMATION S-ii FORWARD-LOOKING STATEMENTS S-ii PROSPECTUS SUPPLEMENT SUMMARY S-1 THE OFFERING S-5 SUMMARY CONSOLIDATED FINANCIAL DATA S-6 RISK FACTORS S-9 USE OF PROCEEDS S-18 SELECTED FINANCIAL DATA S-19 BUSINESS S-23 SELLING STOCKHOLDER S-34 PRICE RANGE OF COMMON STOCK S-35 U.S. FEDERAL INCOME TAX CONSEQUENCES TO NON-U.S. HOLDERS S-36 UNDERWRITING S-40 LEGAL MATTERS S-45 EXPERTS S-45 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE S-45 Prospectus Page ABOUT THIS PROSPECTUS 1 FORWARD-LOOKING STATEMENTS 2 THE COMPANY 4 RISK FACTORS 4 USE OF PROCEEDS 4 RATIO OF EARNINGS TO FIXED CHARGES 5 DIVIDEND POLICY 5 DESCRIPTION OF CAPITAL STOCK 6 DESCRIPTION OF DEBT SECURITIES 8 LEGAL OWNERSHIP OF SECURITIES 22 SELLING STOCKHOLDERS 25 PLAN OF DISTRIBUTION 25 LEGAL MATTERS 28 EXPERTS 28 WHERE YOU CAN FIND MORE INFORMATION 28 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE 28 Unless we have indicated otherwise, references in this prospectus supplement to "Inventure," the "Company," "we," "us," "our" and similar terms refer to Inventure Foods, Inc. and its subsidiaries. S-i Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 5 of 86 Table of Contents ABOUT THIS PROSPECTUS SUPPLEMENT You should rely only on the information contained, or incorporated by reference, in this prospectus supplement and the accompanying prospectus. Neither we, the selling stockholder, nor the underwriters have authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. The selling stockholder is not, and the underwriters are not, making an offer to sell the securities in any jurisdiction where the offer or sale is not permitted or in which the person making such offer or solicitation is not qualified to do so or to any person to whom it is unlawful to make such offer or solicitation. You should not assume that the information in this prospectus supplement, the accompanying prospectus or any document incorporated by reference is accurate or complete as of any date other than the date of the applicable document. Our business, financial condition, results of operations and prospects may have changed since that date. This document is in two parts. The first part is this prospectus supplement, which describes the specific terms of this offering and also adds to and updates information contained in the accompanying prospectus and the documents incorporated by reference into this prospectus supplement and the accompanying prospectus. The second part, the accompanying prospectus, gives more general information. You should not consider any information in this prospectus supplement or the accompanying prospectus to be investment, legal or tax advice. You should consult your own counsel, accountants and other advisers for legal, tax, business, financial and related advice regarding the purchase of the common stock offered by this prospectus supplement. If the description of the offering varies between this prospectus supplement and the accompanying prospectus, you should rely on the information contained in this prospectus supplement. WHERE YOU CAN FIND MORE INFORMATION We have filed with the SEC a registration statement on Form S-3 under the Securities Act of 1933, as amended (the "Securities Act"), with respect to the common stock offered by this prospectus supplement. This prospectus supplement, filed as part of the registration statement, does not contain all 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, we refer you to the registration statement and to its exhibits and schedules. We file annual, quarterly and current reports and other information with the SEC. You may read and copy any materials we file at the SEC's Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information about the Public Reference Room. The SEC also maintains an internet website at www.sec.gov that contains periodic and current reports, proxy and information statements, and other information regarding registrants that are filed electronically with the SEC. These documents are also available, free of charge, through the Investors section of our website, which is located at www.inventurefoods.com. The reference to our website address does not constitute incorporation by reference of the information contained on our website. FORWARD LOOKING STATEMENTS This prospectus supplement, the accompanying prospectus and the documents incorporated by reference herein and therein contain forward-looking statements that relate to future events or our future financial performance which involve known and unknown risks, uncertainties and other factors, which may cause actual results, performance or achievements of our Company to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. We use the words "may," "will," "believe," "expect," "anticipate," "intend," "future," "plan," "estimate," "potential" and other similar expressions to identify forward-looking statements. These forward-looking statements are subject to a number of risks, uncertainties and S-ii Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 6 of 86 Table of Contents assumptions that could cause actual results to differ materially from those in the forward looking statements, including the factors described under "Risk Factors" beginning on page S-9 of this prospectus supplement, as the same may be updated from time to time by our future filings under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and include, among other things: • our acquisition strategy may not be successful or we may not be successful in integrating acquisitions; • changes in the legal and regulatory environment could limit our business activities, increase our operating costs, reduce demand for our products or result in litigation; • our operations and financial condition may be negatively impacted by general economic conditions or economic downturns; • we may not be successful in implementing our business strategy or expanding our business and, even if successful, may incur substantial costs; • we may require additional financing that may not be available on terms attractive to us and, even if financing is available, it may have dilutive and other adverse effects on our stockholders; • we are required to maintain certain ongoing financial covenants under our credit facility, and, if we fail to meet those covenants or otherwise default, our lender may accelerate the payment of such indebtedness; • we may incur losses and costs as a result of product recalls or liability claims; • concerns with the safety and quality of our food products and ingredients could negatively impact our brand image and profitability; • a significant portion of our revenues is derived from one product and one customer, the loss of which could have a material adverse effect on our business, financial condition and results of operation; • we depend on third party licenses to sell our T.G.I. Friday's® branded products, Jamba® branded products, Seattle's Best Coffee® branded products, Nathan's Famous® branded products, and Vidalia® branded products; • our business may be adversely affected by an oversupply of snack and frozen products at the wholesale and retail levels or seasonal fluctuations; • we may incur substantial costs to market our products and may not be able to successfully respond to shifting customer preferences; • the loss of certain key employees and the inability to successfully compete in our highly competitive industry could adversely affect our business; • the unavailability of purchased berries and vegetables at reasonable prices could adversely affect our operations; • we are subject to risks that affect the agricultural industry generally, including changes in weather conditions and natural disasters; • a disruption in the performance of our suppliers could have an adverse effect on our operations; • we do not own the patents for the technology we use to manufacture certain T.G.I. Friday's®, Boulder Canyon® and Tato Skins® brand products, as well as certain private label branded products; • we may not be able to adequately protect our intellectual property and other proprietary rights that are material to our business; S-iii Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 7 of 86 Table of Contents • substantial sales of our common stock could depress the market price of our common stock; • as a result of this offering, third parties could obtain effective control over the Company; • our stock price has been, and may continue to be, volatile and decline regardless of our financial performance; • provisions in our organizational documents and Delaware law could impair a takeover attempt; and • if securities analysts do not publish research or reports about us, change their recommendations, or if we do not meet expectations, our stock price and trading volume could decline. These forward-looking statements are based on our current expectations and are subject to a number of risks and uncertainties, including those set forth above. Although we believe that the expectations reflected in these forward-looking statements are reasonable, our actual results could differ materially from those expressed in these forward-looking statements, and any events anticipated in the forward-looking statements may not actually occur. Other unknown or unpredictable factors could also harm our results. Consequently, actual results or developments anticipated by us may not be realized or, even if substantially realized, may not have the expected consequences to, or effects on, us. Given these uncertainties, prospective investors are cautioned not to place undue reliance on such forward-looking statements, which speak only as of the date of this prospectus supplement. Except as required by law, we undertake no duty to update any forward-looking statements after the date of this prospectus supplement to conform those statements to actual results or to reflect the occurrence of unanticipated events. We qualify all forward-looking statements contained or incorporated by reference in this prospectus supplement and the accompanying prospectus by the foregoing cautionary statements. S-iv Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 8 of 86 Table of Contents PROSPECTUS SUPPLEMENT SUMMARY This summary highlights certain information about us, this offering and selected information contained elsewhere in or incorporated by reference into this prospectus supplement or the accompanying prospectus. This summary is not complete and does not contain all of the information you should consider before deciding whether to invest in our common stock. You should read carefully this entire prospectus supplement and the accompanying prospectus, including the documents incorporated by reference in this prospectus supplement and the accompanying prospectus, before making an investment decision to purchase our common stock, especially the risks of investing in our common stock discussed in the section entitled "Risk Factors" in this prospectus supplement as well as the consolidated financial statements and notes to those consolidated financial statements incorporated by reference into this prospectus supplement and the accompanying prospectus. Our Company We are a leading marketer and manufacturer of healthy/natural and indulgent specialty snack food brands. Our products are marketed under a strong portfolio of brands, including T.G.I. Friday's®, Rader Farms®, Boulder Canyon®, Poore Brothers®, Willamette Valley Fruit Company™, Fresh Frozen™, Nathan's Famous®, Jamba®, Seattle's Best Coffee®, Bob's Texas Style®, Vidalia® and Tato Skins®. T.G.I. Friday's®, Jamba®, Nathan's Famous® and Vidalia® are licensed brand names. We complement our branded product retail sales with private label retail sales and co-packing agreements. We operate in two segments: frozen products and snack products. The frozen products segment produces frozen fruits, vegetables and beverages for sale primarily to groceries, club stores and mass merchandisers. All products sold under our frozen products segment are considered part of the healthy/natural food category. The snack products segment produces potato chips, kettle chips, potato crisps, potato skins, pellet snacks, sheeted dough products and extruded products for sale primarily to snack food distributors and retailers. The products sold under our snack products segment includes products considered part of the indulgent specialty snack food category, as well as products considered part of the healthy/natural food category. Our Company was formed in 1995 as a holding company to acquire a potato chip manufacturing and distribution business. Since our initial public offering in December 1996, we have significantly expanded our product offering organically and by completing six strategic acquisitions. Fiscal year 2013 was a record volume year with net revenues of $215.6 million, a 16.4% increase over the prior fiscal year, and Adjusted EBITDA of $18.0 million. During the six months ended June 28, 2014, we generated net revenues of $139.4 million and Adjusted EBITDA of $11.5 million. For a discussion of Adjusted EBITDA, including a reconciliation to net income, see the section below entitled "Summary Consolidated Financial Data." Our Products Our products in the healthy/natural food category include Rader Farms® frozen berries, Boulder Canyon® Natural Foods brand kettle cooked potato chips, Willamette Valley Fruit Company™ frozen fruit and vegetables, Fresh Frozen™ frozen vegetables and fruit, Jamba® branded blend-and-serve smoothie kits under license from Jamba Juice Company ("Jamba Juice"), Seattle's Best Coffee® Frozen Coffee Blends branded blend-and-serve frozen coffee beverage under license from Seattle's Best Coffee, LLC and private label frozen fruit and healthy/natural snacks. Our healthy/natural line represented approximately 67% and 81% of our net revenues for fiscal year 2013 and the six months ended June 28, 2014, respectively. Our products in the indulgent specialty snack food category include T.G.I. Friday's® brand snacks under license from T.G.I. Friday's Inc. ("T.G.I. Friday's"), Nathan's Famous® brand snack products under license from Nathan's Famous Corporation, Vidalia® brand snack products under license from S-1 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 9 of 86 Table of Contents Vidalia Brands, Inc., Poore Brothers® kettle cooked potato chips, Bob's Texas Style® kettle cooked chips, and Tato Skins® brand potato snacks. Our indulgent specialty snack food line represented approximately 33% and 19% of our net revenues for fiscal year 2013 and the six months ended June 28, 2014, respectively. During 2013 and 2014, we launched a number of new items under our existing brands. In 2013, in our frozen products segment, new products included Jamba® Green Fusion and Seattle's Best Coffee® Frozen Coffee Blends (Coffee Chiller, Mega Mocha, Creamy Caramel and Very Vanilla). We also added Rader Farms® Organic Blackberries, Organic Mangos and Raspberry to our product line. In our snack products segment, new items included Boulder Canyon® Natural Foods Sweet Potato Fries, Avocado Oil Sea Salt Kettle Chips, Olive Oil Sea Salt & Cracked Pepper Kettle Chips and Organic Sea Salt Kettle Chips, T.G.I. Friday's® Jalapeno Poppers and Extreme Heat Hot Fries, and Nathan's Famous® Bacon & Cheddar. We also launched Vidalia® Sweet Potato Fries and Sweet Onion Petal under our license agreement with Vidalia Brands, Inc. In 2014, in our frozen products segment, new products included Jamba® Orange Dream, Straw Wild Mexico, Blue Fusion, and Red Fusion. We also added Rader Farms® Plus Mixed Berry, Plus Straw/Blue, Summers Peak Blueberry, Fresh Start Morning Vitality, Fresh Start Daily Power and Fresh Start Sunrise Refresh to our product line. In our snack products segment, new items included Boulder Canyon® Natural Foods Asiago Cheese Protein Chip, Chocolate Protein Chip, Chocolate Arise Cereal, and Yogurt Arise Cereal, T.G.I. Friday's® Bacon Ranch, and Nathan's Famous® Bacon & Cheddar. We also launched Vidalia® Sweet Onion BBQ Kettle, Sweet Onion Kettle, and Zesty Ranch Sweet Onion Petal under our license agreement with Vidalia Brands, Inc. We expect to continue brand investments to drive continued sales and earnings growth in the long term. Competitive Strengths We believe the following competitive strengths differentiate us from our competitors and contribute to our continued success: Consistent organic growth in revenue, earnings and stock price. We have been able to demonstrate consistent net revenues, earnings, and stock price growth driven by our unique healthy/natural and indulgent specialty food brands, operational excellence, and strong leadership team. Between fiscal years 2009 and 2013, we have grown each of net revenues and earnings per share at a compounded annual growth rate of 16%. For the six month period ended June 28, 2014 compared to the prior year period, we have increased net revenues and earnings per share by 36% and 54%, respectively. In addition, for the five year period ended August 22, 2014, our stock price has increased by 323%. Innovative marketer of healthy/natural and indulgent specialty food brands with state-of-the-art facilities. We focus on product innovation and constantly strive to identify and develop new products that work with our existing brand portfolio. We are continually creating and evaluating new flavors, products and packaging. In the last three years, we have introduced over 145 new products. We believe that expanding our product portfolio will enable us to take advantage of consumers' desire for frozen fruits, frozen vegetables and snack food products. We believe that our advanced manufacturing capabilities allow us to offer high quality and innovative products. We are an early adopter of new technologies and techniques, and intend to develop new technology to fuel growth in our licensed brands. This allows us to improve the quality of our existing products, introduce new products, enhance margins and meet diverse customer needs. Strong portfolio of national brands making us the food licensee of choice for new market entries. Our portfolio of brands has been recognized by consumers since 1996 and is associated with high-quality, healthy and indulgent products. We believe that our focus on selling branded products allows us to generate greater consumer loyalty for our products, and in turn enables us to obtain higher prices. S-2 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 10 of 86 Table of Contents Further, we believe our platform is attractive for national brands that are seeking a licensee in order to expand, complement and diversify existing offerings. Diversified product portfolio and distribution channels of branded and private label fruit and snacks. Our broad portfolio of healthy/natural and indulgent specialty products include the following brands: Boulder Canyon®, Fresh Frozen™, Rader Farms, Poore Brothers®, Willamette Valley Fruit Company™, T.G.I. Friday's®, Vidalia® brands, Nathan's Famous®, Seattle's Best Coffee®, and Jamba®. These brands are complimented by our premium private label products sold to blue chip retailers across the United States which offer additional sell-through opportunities for our branded products. Our products are sold in a variety of channels, including grocery, natural, mass merchandisers, drug, club, value, vending, food service, and convenience stores and are distributed through Company-owned and satellite warehouses, direct store delivery, distribution centers and other facilities. Successful track record of acquiring and integrating businesses. We have recently completed several strategic acquisitions, including Radar Farms, Inc. ("Radar Farms"), a grower and harvester of berries, in May 2007; Willamette Valley Fruit Company, LLC ("Willamette Valley Fruit Company"), a berry processing provider, in May 2013; and Fresh Frozen Foods, LLC ("Fresh Frozen Foods"), a packager and marketer of frozen vegetables, in November 2013. We have a well-defined strategy for identifying, evaluating and integrating acquisitions that we believe differentiates us from many of our competitors. We believe that our proven acquisition capabilities will allow us to participate successfully in the ongoing consolidation trend among healthy/natural and indulgent specialty food product manufacturers. Seasoned management team with backgrounds at global consumer packaged goods companies. The top four members of our management team and four recent additions to our Board of Directors have on average over twenty-five years of experience in the global consumer packaged goods industry. The senior management team has a demonstrated track record of delivering strong net revenues, profitability, and stock price growth. They are recognized leaders in their respective areas of expertise, as well as highly trained and educated professionals. Their collective experience with leading consumer packaged goods organizations has enabled us to deliver strong performance. Strategy We intend to grow our business profitably through the following strategic initiatives: Develop, Acquire or License Innovative Healthy/Natural and Indulgent Specialty Snack Food Brands. A significant element of our business strategy is to develop, acquire or license new innovative healthy/natural and indulgent specialty snack food brands that provide a strategic fit with our existing business and that have strong national brand recognition in order to expand, complement and diversify our existing business. Broaden Distribution of Existing Brands. We plan to increase distribution and the market share of our existing branded products through selected trade activity in various existing or new markets and channels. Marketing efforts may include, among other things, trade advertising and promotional programs with distributors and retailers, in-store advertisements, in-store displays and limited consumer advertising, public relations and coupon programs. We believe growth opportunities exist to increase distribution of our Boulder Canyon®, Fresh Frozen™ and Radar Farms products in grocery stores, our Boulder Canyon® and Radar Farms products in club stores, and our Boulder Canyon® products in natural, mass merchandise, drug and convenience stores. Broaden Distribution of Private Label. We plan to increase distribution of our private label products to existing and new customers. This will help leverage our infrastructure and capacity and is expected to improve profit margins as there are no related advertising and promotional costs. Our manufacturing and distribution of private label products enhances our ability to partner with key retailers. S-3 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 11 of 86 Table of Contents Develop New Products for Existing Brands. We plan to continue our innovation activities to identify and develop (i) new line extensions for our brands, such as new flavors or products, and (ii) new food segments in which to expand the presence of our brands. Leverage Infrastructure and Capacity. Our Bluffton, Indiana, Goodyear, Arizona, Lynden, Washington, Salem, Oregon, Jefferson, Georgia, and Thomasville, Georgia facilities operated at approximately 60%, 90%, 70%, 33%, 75% and 65% of their respective manufacturing capacities as of August 2014. We intend to continue to expand our branded product lines, as well as secure new manufacturing opportunities in private label and co-packing arrangements. In addition, we plan to continue capital investment in our plants and improve operating efficiencies. Pursue Selective Licenses and Acquisitions. We continue to evaluate acquisition opportunities where we can use our competencies in operations, sales, marketing and distribution in order to drive revenue and profit growth. Improve Profit Margins. We plan to increase our profit margins through increased long-term revenue growth, improved operating efficiencies, higher margin new products and high-growth product categories. For example, we believe the following margin improvement initiatives are important elements of our strategy: rationalization of unprofitable customer accounts, improved product mix and channel flow, expanded sales growth, improved operating efficiencies and leverage and higher margin new product introductions. We believe that improved profit margins are possible with the achievement of the business strategies discussed above. Recent Developments During the third and fourth quarters of fiscal 2014 we anticipate a margin shift in our frozen berry business in comparison to the prior year. Historically, we have processed our higher margin Rader Farms grown berries in the third quarter. In the second and third quarters of 2014 we had the opportunity to purchase frozen raspberries at 2013 contracted prices, which are lower than the current market price. Based on our first in, first out inventory methodology, we will be using the lower margin purchased frozen berries in the third quarter and our higher margin Rader Farms grown berries in the fourth quarter. As a result, we expect a shift in earnings of approximately $0.06 per diluted share from the third quarter to the fourth quarter of 2014. We expect to report financial results for the third quarter of 2014 at the end of October or early November. For fiscal 2015, we expect high single-digit growth in net sales and, given our plan for continued significant investment in our business and our brands, we expect EBITDA margins to be in the high single-digits. Corporate Information We were incorporated in Delaware in 1995. Our principal executive offices are located at 5415 East High Street, Suite 350, Phoenix, Arizona 85054, and our telephone number is (623) 932-6200. Our website address is www.inventurefoods.com. Information contained on, or that can be accessed through, our website is not incorporated by reference into this prospectus supplement or the accompanying prospectus, and should not be considered to be part of this prospectus supplement or the accompanying prospectus, and potential investors should not rely on such information in making a decision to purchase our common stock in this offering. S-4 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 12 of 86 Table of Contents THE OFFERING The following is a brief summary of the terms of the offering. For a more complete description of our common stock, see "Description of Capital Stock" beginning on page 6 of the accompanying prospectus. Issuer Inventure Foods, Inc. Common stock to be offered by the selling stockholder 3,594,518 shares (or 4,133,695 shares if the underwriters exercise their option to purchase additional shares in full). Common stock to be outstanding immediately after this offering 19,531,994 shares Option to purchase additional The selling stockholder has granted an option to the underwriters to purchase up to an additional 539,177 shares of shares common stock within 30 days of the date of this prospectus supplement. Use of proceeds We will not receive any proceeds from the shares sold by the selling stockholder. See "Use of Proceeds." Risk factors Investing in our common stock involves a high degree of risk. See "Risk Factors" beginning on page S-9 of this prospectus supplement for a discussion of factors that you should carefully consider before deciding to invest in shares of our common stock. NASDAQ Global Select Market symbol "SNAK" The number of shares of our common stock to be outstanding after this offering is based upon 19,531,994 shares outstanding as of August 28, 2014. This number does not include, as of such date: • 806,252 shares of common stock issuable upon the exercise of outstanding stock options with a weighted average exercise price of $5.11 per share; • 144,748 shares of common stock issuable upon the vesting of restricted stock units having a weighted average grant date fair value of $13.21 per share; or • 1,000,950 shares of common stock available for future issuance under our Amended and Restated 2005 Equity Incentive Plan. S-5 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 13 of 86 Table of Contents SUMMARY CONSOLIDATED FINANCIAL DATA The following table sets forth a summary of our historical financial data as of the dates and for each of the periods indicated. Some of the information in the table is derived from financial statements that are incorporated by reference into this prospectus supplement. Such information includes historical financial data as of and for the years ended December 29, 2012 and December 28, 2013 and for the year ended December 31, 2011, which is derived from our audited financial statements, and as of June 28, 2014 and for the six months ended June 29, 2013 and June 28, 2014, which is derived from our unaudited financial statements. Some of the information in the table is derived from financial statements that are not incorporated by reference into this prospectus supplement. Such information includes historical financial data as of December 31, 2011, which is derived from our audited financial statements, and as of June 29, 2013, which is derived from our unaudited financial statements. The historical results presented below are not necessarily indicative of results that can be expected for any future period and should be read in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations," appearing in our Annual Reports on Form 10-K and Quarterly Reports on 10-Q for the periods indicated and our audited and unaudited financial statements incorporated by reference herein. See the sections entitled "Where You Can Find Additional Information." S-6 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 14 of 86 Table of Contents Fiscal Year Ended Six Months Ended December 31, December 29, December 28, June 29, June 28, 2011 2012 2013 2013 2014 (unaudited) (in thousands, except per share data) Statement of Operations Net revenues $ 162,232 $ 185,179 $ 215,580 $ 102,214 $ 139,361 Cost of revenues 132,098 148,287 176,694 84,253 114,342 Operating expenses Selling, general and administrative expenses 24,924 25,548 28,036 13,846 17,422 Operating income 5,210 11,344 10,850 4,115 7,597 Non-operating (income) expense: Gain on sale of DSD business — (1,101) — — — Interest expense, net 885 764 872 391 1,254 Income before taxes 4,325 11,681 9,978 3,724 6,343 Income tax provision 1,508 4,232 3,360 1,261 2,274 Net income $ 2,817 $ 7,449 $ 6,618 $ 2,463 $ 4,069 Earnings per common share: Basic $ 0.16 $ 0.40 $ 0.34 $ 0.13 $ 0.21 Diluted $ 0.15 $ 0.38 $ 0.33 $ 0.13 $ 0.20 Weighted average number of common shares: Basic 18,110 18,821 19,360 19,257 19,453 Diluted 19,199 19,574 19,789 19,698 19,942 Balance Sheet Date (at period end) Cash and cash equivalents $ 665 $ 419 $ 910 $ 426 $ 878 Total current assets 50,382 47,390 69,592 51,747 75,486 Total assets 97,975 95,894 170,091 113,684 181,163 Total current liabilities 27,448 22,239 35,611 28,618 37,739 Total liabilities 56,365 44,795 110,938 59,409 116,924 Total stockholders' equity $ 41,610 $ 51,099 $ 59,153 $ 54,275 $ 64,239 S-7 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 15 of 86 Table of Contents Certain Non-GAAP Financial Measures and Reconciliations to Their GAAP Equivalent The Company is providing the below financial measures that are not defined under generally accepted accounting principles in the United States, or GAAP, including earnings before interest, taxes, depreciation and amortization ("EBITDA") and Adjusted EBITDA. EBITDA and Adjusted EBITDA are not measures of our financial performance under GAAP and should not be considered in isolation or as alternatives to net earnings or other performance measures derived in accordance with GAAP. The following table reflects the reconciliation of EBITDA and Adjusted EBITDA to net income, which is the most directly comparable GAAP measure, for the years ended December 31, 2011, December 29, 2012 and December 28, 2013 and the six months ended June 29, 2013 and June 28, 2014. Fiscal Year Ended Six Months Ended December 31, December 29, December 28, June 29, June 28, 2011 2012 2013 2013 2014 (unaudited) Net income $ 2,817 $ 7,449 $ 6,618 $ 2,463 $ 4,069 Interest expense, net 885 764 872 391 1,254 Income tax provision 1,508 4,232 3,360 1,261 2,274 Depreciation 4,601 4,678 5,445 2,544 3,321 Amortization of intangible assets 68 23 288 5 602 EBITDA $ 9,879 $ 17,146 $ 16,583 $ 6,664 $ 11,520 Gain on sale of DSD business — (1,101) — — — Acquisition-related transaction costs — — 1,427 — — Adjusted EBITDA $ 9,879 $ 16,045 $ 18,010 $ 6,664 $ 11,520 Adjusted EBITDA represents EBITDA as adjusted to exclude the gain on the sale of our direct-store-delivery business in the fourth quarter of 2012 and adjusted for acquisition-related transaction costs, which include outside fees and expenses, and to ignore the effect of what we consider transactions or events not related to our core business to arrive at Adjusted EBITDA. We present EBITDA and Adjusted EBITDA because we believe they provide useful information regarding our ability to meet our future debt payment requirements, capital expenditures and working capital requirements and they provide an overall evaluation of our financial condition. We include EBITDA and Adjusted EBITDA to provide transparency to investors and to assist investors in comparing our performance across reporting periods on a consistent basis by excluding items that we do not believe are indicative of our core operating performance. In evaluating EBITDA and Adjusted EBITDA, you should be aware that in the future we may incur expenses similar to the adjustments in this presentation. Our presentation of Adjusted EBITDA should not be construed as an inference that our future results will be unaffected by unusual or non-recurring items. Neither EBITDA nor Adjusted EBITDA is a measurement of our financial performance under GAAP and should not be considered in isolation or as a substitute for net income, cash flows, or other consolidated income or cash flow data prepared in accordance with GAAP or as a measure of our profitability or our liquidity. Further, EBITDA and Adjusted EBITDA may not be comparable to similarly titled measures used by other companies. S-8 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 16 of 86 Table of Contents RISK FACTORS Investing in our common stock involves a high degree of risk. In addition to the other information contained in this prospectus supplement, the accompanying prospectus and in documents that we incorporate by reference, you should carefully consider the risks discussed below before making a decision about investing in our securities. The risks and uncertainties discussed below are not the only ones facing us. Additional risks and uncertainties not presently known to us, or that we currently see as immaterial, may also harm our business. If any of these risks occur, our business, financial condition and operating results could be harmed, the trading price of our common stock could decline and you could lose part or all of your investment. Risks Related to Our Business We expect some of our future growth to be derived in part from acquisitions, but our acquisition strategy may not be successful, or we may not be successful integrating acquisitions. An element of our business strategy is the pursuit of selected strategic acquisition opportunities for the purpose of expanding, complementing and/or diversifying our business. We may not be able to identify, finance and complete successful acquisitions on acceptable terms. Any future acquisitions could divert management's attention from our daily operations and otherwise require additional management, operational and financial resources. Moreover, we may not be able to successfully integrate acquired companies or their management teams into our operating structure, retain management teams of acquired companies on a long-term basis, or operate acquired companies profitably. Acquisitions may also involve a number of other risks, including adverse short-term effects on our operating results, dependence on retaining key personnel and customers, and risks associated with unanticipated liabilities or contingencies. Changes in the legal and regulatory environment could limit our business activities, increase our operating costs, reduce demand for our products or result in litigation. The conduct of our businesses, including the production, storage, distribution, sale, display, advertising, marketing, labeling, health and safety practices, transportation and use of many of our products, are subject to various laws and regulations administered by federal, state and local governmental agencies in the United States, as well as to laws and regulations administered by government entities and agencies outside the United States in markets in which our products are made, manufactured or sold. These laws and regulations and interpretations thereof may change, sometimes dramatically, as a result of a variety of factors, including political, economic or social events. Such changes may include changes in: food and drug laws; laws related to product labeling, advertising and marketing practices; laws regarding the import or export of our products or ingredients used in our products; laws and programs restricting the sale and advertising of certain of our products; laws and programs aimed at reducing, restricting or eliminating ingredients present in certain of our products; laws and programs aimed at discouraging the consumption or altering the package or portion size of certain of our products; increased regulatory scrutiny of, and increased litigation involving, product claims and concerns regarding the effects on health of ingredients in, or attributes of, certain of our products; state consumer protection laws; taxation requirements, including the imposition or proposed imposition of new or increased taxes or other limitations on the sale of our products; competition laws; anti-corruption laws; employment laws; privacy laws; laws regulating the price we may charge for our products; and environmental laws. New laws, regulations or governmental policy and their related interpretations, or changes in any of the foregoing, including taxes or other limitations on the sale of our products, ingredients contained in our products or commodities used in the production of our products, may alter the environment in which we do business and, therefore, may impact our results or increase our costs or liabilities. S-9 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 17 of 86 Table of Contents Our operations and financial conditions may be impacted by general economic conditions and an economic downturn. Recessionary pressures from an overall decline in U.S. economic activity could adversely impact our results of operations. Economic uncertainty may reduce consumer spending and could result in increased pressure from competitors or customers to reduce the prices of our products and/or limit our ability to increase or maintain prices, which could lower revenues and profitability. Instability in the financial markets may impact our ability or increase the cost to enter into new credit agreements in the future. Additionally, it may weaken the ability of customers, suppliers, distributors, banks, insurance companies and other business partners to perform in the normal course of business, which could expose us to losses or disrupt supply of inputs used to conduct our business. If one or more key business partners fail to perform as expected or contracted, our operating results could be negatively impacted. We may incur significant future expenses in connection with the implementation of our business strategy. We strive to achieve our long-term vision of being a leading marketer and manufacturer of healthy/natural and indulgent specialty snack food brands. Our efforts are subject to the substantial risks, expenses and difficulties frequently encountered in the implementation of a business strategy. If we are unsuccessful in developing, acquiring and/or licensing new brands, and increasing distribution and sales volume of our existing products, our operating results could be negatively impacted. Even if we are successful, this business strategy may require us to incur substantial additional expenses, including advertising and promotional costs, "slotting" expenses (i.e., the cost of obtaining shelf or freezer space in certain grocery stores), and integration costs of any future acquisitions. We also may be unsuccessful at integrating any future acquisitions. We may not be able to obtain the additional financing we need to implement our business strategy. A significant element of our business strategy is the development, acquisition and/or licensing of innovative specialty food brands, for the purpose of expanding, complementing and/or diversifying our business. In connection with our previous acquisitions, we borrowed funds or assumed additional indebtedness in order to satisfy a substantial portion of the consideration required to be paid by us. We may, in the future, require additional third-party financing (debt or equity) as a result of any future operating losses, in connection with the expansion of our business through non-acquisition means, in connection with any additional acquisitions completed by us, or to provide working capital for general corporate purposes. Third-party financing may not be available when required or, if available, may not be on terms attractive to us. Any third-party financing obtained by us may result in dilution of the equity interests of our stockholders. We are required to maintain certain ongoing financial covenants under our credit facility, and if we fail to meet those covenants or otherwise suffer a default thereunder, our lender may accelerate the payment of such indebtedness. At June 28, 2014, we had outstanding indebtedness in the aggregate principal amount of $78.4 million. Our credit agreement (the "Credit Agreement") with a syndicate of lenders led by U.S. Bank National Association ("U.S. Bank") is secured by substantially all of our assets. Our obligations under the Credit Agreement are guaranteed by our subsidiaries. We are required to comply with certain financial covenants pursuant to the Credit Agreement so long as borrowings from U.S. Bank remain outstanding. Should we be in default under any of such covenants, U.S. Bank shall have the right, upon written notice and after the expiration of any applicable period during which such default may be cured, to demand immediate payment of all of the then unpaid principal and accrued but unpaid interest under the Credit Agreement. S-10 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 18 of 86 Table of Contents As we execute our business strategy, we may not be able to remain in compliance with our financial covenants. Any acceleration of the borrowings under the Credit Agreement prior to the applicable maturity dates could have a material adverse effect upon our business, financial condition and results of operations. See Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources in our Annual Report on Form 10-K/A for the year ended December 28, 2013. We may incur losses and costs as a result of any product recalls we are required to make or product liability claims that may be brought against us. We may need to recall some of our products if they become adulterated or if they are mislabeled. We may also be liable if the consumption of any of our products causes injury. Such injury could result from tampering by unauthorized third parties; product contamination (such as listeria, e-coli, and salmonella) or spoilage; the presence of foreign objects, substances, chemicals, and other agents; residues introduced during the growing, storage, handling or transportation phases; or improperly formulated products. A widespread product recall could result in significant losses due to the costs of a recall, the destruction of product inventory and lost sales due to the unavailability of product for a period of time. We could also suffer losses from a significant product liability judgment against us. The product liability and product recall insurance maintained by us may not be adequate to cover any loss or exposure for product liability, and such insurance may not continue to be available on terms acceptable to us. Any product liability claim not fully covered by insurance, as well as any adverse publicity resulting from a product liability claim or product recall, could have a material adverse effect on our operating results, and could also result in adverse publicity, damage to our reputation and a loss of consumer confidence in our products. In addition, our results could be adversely affected if consumers lose confidence in the safety and quality of our products, ingredients or packaging, even in the absence of a recall or a product liability case. Concerns with the safety and quality of our food products or ingredients could negatively impact our brand image and profitability. Our success depends on our ability to maintain consumer confidence in the safety and quality of our products or ingredients. Our success also depends on our ability to maintain the brand image of our existing products, build up brand image for new products and brand extensions, and maintain our corporate reputation. We cannot assure you, however, that our commitment to product safety and quality and our continuing investment in advertising and marketing will have the desired impact on our products' brand image and on consumer preferences. Product safety or quality issues, actual or perceived, or allegations of product contamination, even when false or unfounded, could tarnish the image of the affected brands and may cause consumers to choose other products. Allegations of product safety or quality issues or contamination, even if untrue, may require us from time to time to recall a product from all of the markets in which the affected production was distributed. Such issues or recalls could negatively affect our profitability and brand image. A significant portion of our revenues are derived from one product and one customer. For the year ended December 28, 2013, 27% of our net revenues were attributable to Rader Farms®/Kirkland® co-branded frozen berry product sales to Costco. Overall, Costco accounted for 35% of our 2013 net revenues. Taking into account our Willamette Valley Fruit Company and Fresh Frozen Foods acquisitions, Costco accounted for 27% of consolidated 2013 pro forma net revenues (see Note 2 to our consolidated financial statements in Part II, Item 8 of our Annual Report on Form 10-K/A for the year ended December 28, 2013). A decision by any major customer to cease or substantially reduce its purchases, or a decrease in the popularity of frozen berries during any year, could have a material S-11 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 19 of 86 Table of Contents adverse effect on our operating results, and such decision by Costco would have a material adverse effect on our business, financial condition and results of operations. We depend on a license agreement for the right to sell our T.G.I. Friday's® brand. For the year ended December 28, 2013, 18% of our net revenues were attributable to the T.G.I. Friday's® brand products, which are manufactured and sold by us under our license agreement with T.G.I. Friday's that expires in December 2019. The license agreement imposes certain requirements and conditions on us (including, without limitation, minimum sales targets). Our failure to comply with these requirements and conditions could result in the early termination of the license agreement by T.G.I. Friday's. If we are unsuccessful in negotiating an extension of this license agreement, or the license agreement is not renewed at the expiration of its term or is terminated prior thereto, our business, financial condition and results of operations would be materially and adversely affected. Our business may be adversely affected by oversupply of snack and frozen products at the wholesale and retail levels and seasonal fluctuations. Profitability in the food product industry is subject to oversupply of certain snack and frozen products at the wholesale and retail levels, which can result in our products going out of date before they are sold. The snack and frozen products industry is also seasonal. Consumers tend to purchase our snack products at higher levels during the major summer holidays and also at times surrounding the major sporting events throughout the year. Our industrial berry business at Willamette Valley Fruit Company is generally slower during the first quarter of the year. Additionally, we may face seasonal price increases for raw materials. Such seasonal costs could materially and adversely affect our operating results in any given quarter. We may incur substantial costs in order to market our products. Successful marketing of our products generally depends upon obtaining adequate retail shelf space for product display, particularly in supermarkets. Frequently, food manufacturers and distributors such as us, incur additional costs in order to obtain additional shelf space. Whether or not we incur such costs in a particular market is dependent upon a number of factors, including demand for our products, relative availability of shelf space and general competitive conditions. We may incur significant shelf space or other promotional costs as a necessary condition of entering into competition or maintaining market share in particular markets or stores. If incurred, such costs may have a material adverse effect on our operating results. We may not be able to respond successfully to shifting consumer preferences. Consumer preferences evolve over time and are extremely difficult to predict. Our success depends in part on our ability to timely respond to current market trends and anticipate changing consumer tastes and dietary habits and to develop and license new products that appeal to such preferences, including concerns of consumers regarding health and wellness, obesity, product attributes, and ingredients. Introduction of new products and product extensions requires significant development and marketing investment. If our products fail to meet consumer preferences, or we fail to introduce new and improved products on a timely basis, then the return on that investment will be less than anticipated and our strategy to grow sales and profits with investments in marketing and innovation will be less successful. Similarly, demand for our products could be affected by increased attention to nutritional values, such as the sodium, fat, protein, or calorie content of different products, or concerns regarding the health effects of specific ingredients, such as gluten, soybeans, nuts, and oils. If consumer demand for our products declines, our sales volumes and our business could be negatively affected. S-12 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 20 of 86 Table of Contents The loss of certain key employees could adversely affect our business. Our success is dependent in large part upon the abilities of our executive officers, including Terry McDaniel, Chief Executive Officer, and Steve Weinberger, Chief Financial Officer. Our business strategy will challenge our executive officers, and the inability of such officers to perform their duties or our inability to attract and retain other highly qualified personnel could have a material adverse effect upon our operating results. We may not be able to successfully implement our strategy to expand our business internationally. We plan to expand sales to Canadian customers and are exploring other international market opportunities for our brands. Such expansion may require significant management attention and financial resources and may not produce desired levels of revenue. International business is subject to inherent risks, including longer accounts receivable collection cycles, difficulties in managing operations across disparate geographical areas, difficulties enforcing agreements and intellectual property rights, fluctuations in local economic, market and political conditions, compliance requirements with U.S. and foreign export regulations, potential adverse tax consequences and currency exchange rate fluctuations. We rely on information technology in our operations, and any material failure, inadequacy, interruption or breach of security of that technology could harm our ability to effectively operate our business. We rely on information systems across our operations, including for management, sales, and order processing. Our ability to effectively manage our business and coordinate the sales and delivery of our products depends significantly on the reliability and capacity of these systems. Like other companies, our information technology systems may be vulnerable to a variety of interruptions due to events beyond our control, including, but not limited to, natural disasters, terrorist attacks, telecommunications failures, computer viruses, hackers, and other security issues. The failure of these systems to operate effectively, problems with transitioning to upgraded or replacement systems, a material network breach in the security of these systems as a result of cyber-attack, or any other failure to maintain a continuous and secure cyber network could result in substantial harm or inconvenience to us or our customers. This could include the theft of our intellectual property or trade secrets, or the improper use of personal information or other "identity theft." Each of these situations or data privacy breaches may cause delays in customer service, reduce efficiency in our operations, require significant capital investments to remediate the problem, or result in negative publicity that could harm our reputation and results. Risks Related to the Frozen Products Segment Farming is subject to numerous inherent risks including changes in weather conditions or natural disasters that can have an adverse impact on crop production and materially affect our results of operations. We are subject to the risks that generally relate to the agricultural industry. Adverse changes in weather conditions and natural disasters, such as windstorms, floods, earthquakes, droughts, extreme temperatures or pestilence, may affect the crop quality and size. In extreme cases, entire harvests may be lost in some geographic areas. These factors can increase costs, decrease revenues and lead to additional charges to earnings, which may have a material adverse effect on our business, results of operations and financial condition. Fresh berries and vegetables are also vulnerable to crop disease and to pests, which may vary in severity and effect, depending on the stage of production at the time of infection or infestation, the type of treatment applied and climatic conditions. Moreover, there can be no assurance that available technologies to control such infestations will continue to be effective. These infestations can increase costs, decrease revenues and lead to additional charges to earnings, which may have a material adverse effect on our business, results of operations and financial condition. Our S-13 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 21 of 86 Table of Contents competitors may be affected differently by such weather conditions and natural disasters depending on the location of their supplies or operations. Unavailability of purchased berries and vegetables, at reasonable prices, could adversely affect operations. Our manufacturing costs are subject to fluctuations in certain commodity prices. Berries and vegetables are not readily available year-round. Therefore, we use the individually quick frozen ("IQF") technique to freeze the berries and vegetables harvested for use during the year to meet processing demands. In addition to freezing our own home-grown berries, we also purchase a substantial amount of berries from outside suppliers to meet customer demands. We are dependent on our suppliers to provide us with an adequate supply of vegetables and berries on a timely basis. The failure of certain suppliers to meet our performance specifications, quality standards or delivery schedules could have a material adverse effect on our operating results. To the extent that certain types of berries or vegetables become scarce, substantially increase in price, or become unavailable or unavailable on commercially attractive terms, our operating results could be materially and adversely affected. Risks Related to the Snack Product Segment We may not be able to compete successfully in the highly competitive snack food industry. The market for snack foods, such as those sold by us, is large and intensely competitive. Competitive factors in the snack food industry include product quality and taste, brand awareness among consumers, access to supermarket shelf space, price, advertising and promotion, variety of snacks offered, nutritional content, product packaging and package design. We compete in that market principally on the basis of product taste and quality. The snack food industry is dominated by large food companies, including Frito-Lay, Inc., a subsidiary of PepsiCo, Inc., The Kellogg Company, ConAgra Foods, Inc., Diamond Foods, Inc., General Mills, Inc., Snyder's-Lance, Inc. and others which have substantially greater financial and other resources than us and sell brands that are more widely recognized than our products. Numerous other companies that are actual or potential competitors of ours, many with greater financial and other resources (including more employees and more extensive facilities) than us, offer products similar to ours. In addition, many of our competitors offer a wider range of products than that offered by us. Local or regional markets often have significant smaller competitors, many of whom offer products similar to ours. With the expansion of our operations into new markets, we have and will continue to encounter significant competition from national, regional and local competitors that may be greater than that encountered by us in our existing markets. In addition, such competitors may challenge our position in our existing markets. A disruption in the performance of our suppliers could have an adverse effect on our operations. Our manufacturing costs are subject to fluctuations in the prices of potatoes, potato flakes, potato starch, corn and oil, as well as other ingredients used in our products. Potatoes, potato flakes, potato starch and corn are widely available year-round, and we use a variety of oils in the production of our products. Nonetheless, we are dependent on our suppliers to provide us with products and ingredients at an adequate level and on a timely basis. The failure of certain suppliers to meet our performance specifications, quality standards or delivery schedules could have a material adverse effect on our operating results. Changing suppliers can require long lead times. The failure of our suppliers to meet our needs could occur for many reasons, including fires, natural disasters, weather, manufacturing problems, disease, crop failure, strikes, transportation interruption, government regulation, political instability and terrorism. A failure of supply could also occur due to suppliers' financial difficulties, including bankruptcy. Any significant interruption to supply or cost increase could substantially harm our business and financial performance. To the extent that product ingredients become scarce, S-14 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 22 of 86 Table of Contents substantially increase in price, or become unavailable or unavailable on commercially attractive terms, our operating results could be materially and adversely affected. From time to time, we may lock in prices for raw materials, such as oils, as we deem appropriate, and such strategies may result in us paying prices for raw materials that are above market at the time of purchase. We do not own the patents for the technology we use to manufacture certain T.G.I. Friday's®, Boulder Canyon® and Tato Skins® brand products, as well as certain private label branded products. We license technology from a third party in connection with the manufacture of certain T.G.I. Friday's®, Boulder Canyon® and Tato Skins® brand products, as well as certain private label branded products, and have a royalty-bearing, exclusive right license to use the technology necessary to produce these products in the United States, Canada, and Mexico until such time as the parties mutually agree to terminate the agreement. Even though the patents for this technology expired in December 2006, in consideration for the use of this technology, we are required to make royalty payments to the third party on sales of products manufactured utilizing the technology until such termination date. Since these patents have expired, we no longer have exclusive rights to this technology and, as a result, may face additional competition that could adversely affect our revenues. Moreover, our competitors, some of which may have significantly greater resources than us, may utilize different technology in the manufacture of products that are similar to those we currently manufacture, or that we may manufacture in the future. The entry of any such products into the marketplace could have a material adverse effect on our sales of certain T.G.I. Friday's®, Boulder Canyon® and Tato Skins® brand products, certain private label branded products, as well as any such future products. We may not be able to adequately protect our intellectual property and other proprietary rights that are material to our business. Our ability to compete effectively depends in part upon our ability to protect our rights to trademarks, copyrights and other intellectual property we own or license. Our use of contractual provisions, confidentiality procedures and agreements, and trademark, copyright, unfair competition, trade secret and other laws to protect our intellectual property and other proprietary rights may not be adequate. Litigation may be necessary to enforce our intellectual property rights and protect our proprietary information, or to defend against claims by third parties that our services or our use of intellectual property infringe their intellectual property rights. Any litigation or claims brought by or against us could result in substantial costs and diversion of our resources. A successful claim of trademark, copyright or other intellectual property infringement against us could prevent us from providing services, which could harm our business, financial condition or results of operations. In addition, a breakdown in our internal policies and procedures may lead to an unintentional disclosure of our proprietary, confidential or material non-public information, which could in turn harm our business, financial condition or results of operations. Risks Related to the Offering and Our Common Stock Substantial sales of our common stock by our stockholders could depress the market price of our common stock regardless of our operating results. Sales of substantial amounts of our common stock in the public market, or the perception that these sales could occur, could adversely affect the market price of our common stock and impair our ability to raise capital through offerings of our common stock. As of August 28, 2014, we had 19,531,994 shares of our common stock outstanding. In addition, as of August 28, 2014, there were outstanding options to purchase 806,252 shares of our common stock and 144,748 shares of common stock issuable upon the vesting of restricted stock units. Substantially all of our outstanding common stock is eligible for sale, subject to Rule 144 volume limitations for holders affected by such limitations, as are shares of our common stock issuable under vested and exercisable options. If our existing S-15 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 23 of 86 Table of Contents stockholders sell a large number of shares of our common stock or the public market perceives that existing stockholders might sell our common stock, the market price of our common stock could decline significantly. These sales might also make it more difficult for us to sell equity securities at a time and price that we deem appropriate. In connection with this offering, we, the selling stockholder and all of our directors and executive officers have entered into lock-up agreements pursuant to which we and they have agreed not to sell any common stock for 90 days after the date of this prospectus supplement without the written consent of the underwriters, subject to certain exceptions. See "Underwriting." However, the underwriters may release these securities from these restrictions at any time without notice to the public. We cannot predict what effect, if any, market sales of securities held by our stockholders or the availability of these securities for future sale will have on the market price of our common stock. Our stock price has been, and may continue to be, volatile, and may decline regardless of our financial performance. The market price of our common stock has fluctuated and may continue to fluctuate significantly in response to numerous factors, many of which are beyond our control, including: • actual or anticipated fluctuations in our financial results; • announcements relating to our industry or to our own business or prospects; • the failure of securities analysts to initiate or maintain coverage of our company, changes in financial estimates or ratings by any securities analysts who follow our company, or our failure to meet these estimates or the expectations of investors; • changes in operating performance and stock market valuations of other public companies generally, or those in our industry in particular; • price and volume fluctuations in the overall stock market, including as a result of trends in the global economy; • our ability or inability to raise additional capital and the terms on which we raise it; • future sales of common stock or the perception that sales could occur; • failure of suppliers to meet expectations; • the unavailability of berries or vegetables at attractive prices; • any major change in our board of directors or management; • developments relating to litigation, governmental investigation, the legal and regulatory environment, product recalls or changes in competitive conditions; and • other events or factors, including those resulting from war, incidents of terrorism, changes in weather conditions or natural disasters, or responses to these events. In addition, the stock market in general has experienced extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of publicly traded companies. Broad market and industry factors may seriously affect the market price of companies' stock, including ours, regardless of actual operating performance. In addition, in the past, following periods of volatility in the overall market and the market price of a particular company's securities, securities class action litigation has often been instituted against such a company. If securities class action litigation is instituted against us, it could result in substantial costs and a diversion of our management's attention and resources and could materially adversely affect our operating results. S-16 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 24 of 86 Table of Contents Anti-takeover provisions contained in our amended certificate of incorporation and amended and restated bylaws, as well as provisions of Delaware law, could impair a takeover attempt. Our amended certificate of incorporation, amended and restated bylaws and Delaware law contain provisions that could have the effect of delaying, preventing or rendering more difficult an acquisition of us if such acquisition is deemed undesirable by our board of directors, including provisions that: • authorize "blank check" preferred stock, which could be issued by the board of directors without stockholder approval and may contain voting, liquidation, dividend and other rights superior to our common stock; • restrict our ability to engage in transactions with stockholders with 15% or more of outstanding voting stock; and • limit the ability of our stockholders to call special meetings. These provisions, alone or together, could delay or prevent unsolicited takeovers and changes in control or changes in our management. Any provision of our amended certificate of incorporation or amended and restated bylaws or Delaware law that has the effect of delaying or deterring a change in control could limit the opportunity for our stockholders to receive a premium for their shares of our common stock and could also affect the price that some investors are willing to pay for our common stock. If securities or industry analysts do not publish or cease publishing research or reports about us, our business or our market, if they change their recommendations regarding our stock adversely, or if our operating or financial results do not meet expectations, our stock price and trading volume could decline. The trading market for our common stock is influenced by the research and reports that industry or securities analysts may publish about us, our business, our market or our competitors. If any of the analysts who may cover us change their recommendation regarding our stock adversely, or provide more favorable relative recommendations about our competitors, our stock price would likely decline. If any analyst who may cover us were to cease coverage of our company or fail to regularly publish reports on us, we could lose visibility in the financial markets. In addition, if our operating or financial results do not meet analysts' expectations, our stock price or trading volume could decline. Any of these factors could cause you to lose part or all of you investment in our common stock. We do not expect to declare any dividends in the foreseeable future. We do not anticipate declaring any cash dividends to holders of our common stock in the foreseeable future. In addition, certain debt agreements of ours limit our ability to declare and pay cash dividends, and any future financing agreements may prohibit us from paying any type of dividends. Consequently, investors may need to rely on sales of their common stock after price appreciation, which may never occur, as the only way to realize any future gains on their investment. Investors seeking cash dividends should not purchase our common stock. A significant amount of our common stock is controlled by the selling stockholder, and as a result of this offering, third parties could obtain effective control of us. The interests of these parties may conflict with those of other stockholders. As of August 28, 2014, the selling stockholder beneficially owned 21.2% of our outstanding shares. As a result of this offering, pursuant to which the selling stockholder is proposing to sell a majority of its shares of our common stock, one or more parties could obtain effective control of the Company. Such parties may then be able to exercise significant influence over the Company and certain matters requiring approval of its stockholders, including the approval of significant corporate transactions, such as a merger or other sale of the Company or its assets. This could limit the ability of other stockholders of the Company to influence corporate matters and may have the effect of delaying or preventing a third party from acquiring control of the Company. S-17 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 25 of 86 Table of Contents USE OF PROCEEDS The selling stockholder is selling all of the shares of our common stock being sold in this offering, including any shares that may be sold in connection with the exercise of the underwriters' overallotment option. See "Selling Stockholder." We will not receive any proceeds from the sale of shares of common stock by the selling stockholder. S-18 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 26 of 86 Table of Contents SELECTED FINANCIAL DATA The following table sets forth certain of our historical financial data as of the dates and for each of the periods indicated. Some of the information in the table is derived from financial statements that are incorporated by reference into this prospectus supplement. Such information includes historical financial data as of and for the years ended December 29, 2012 and December 28, 2013 and for the year ended December 31, 2011, which is derived from our audited financial statements, and as of June 28, 2014 and for the six months ended June 29, 2013 and June 28, 2014, which is derived from our unaudited financial statements. Other information in the table is derived from financial statements that are not incorporated by reference into this prospectus supplement. Such information includes historical financial data as of December 26, 2009, December 25, 2010, and December 31, 2011 and for the years ended December 26, 2009 and December 25, 2010, which is derived from our audited financial statements, and as of June 29, 2013, which is derived from our unaudited financial statements. The historical results presented below are not necessarily indicative of results that can be expected for any future period and should be read in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations," appearing in our Annual Reports on Form 10-K and Quarterly Reports on 10-Q for the periods indicated and our audited and unaudited financial statements incorporated by reference herein. See the sections entitled "Where You Can Find Additional Information." Fiscal Year Ended December 26, December 25, December 31, December 29, December 28, 2009 2010 2011 2012 2013 (in thousands) Statement of Operations Net revenues $ 121,011 $ 133,987 $ 162,232 $ 185,179 $ 215,580 Cost of Revenues 97,189 104,953 132,098 148,287 176,694 Operating expenses Selling, general and administrative expenses 16,746 21,680 24,924 25,548 28,036 Operating income 7,076 7,354 5,210 11,344 10,850 Non-operating (income) expense: Gain on sale of DSD business — — — (1,101) — Interest expense, net 879 878 885 764 872 Income before taxes 6,197 6,476 4,325 11,681 9,978 Income tax provision 2,416 2,008 1,508 4,232 3,360 Net income $ 3,781 $ 4,468 $ 2,817 $ 7,449 $ 6,618 Balance Sheet Date (at period end) Cash and cash equivalents $ 1,103 $ 981 $ 665 $ 419 $ 910 Total current assets 31,130 36,416 50,382 47,390 69,592 Total assets 69,835 78,821 97,975 95,894 170,091 Total current liabilities 13,270 15,852 27,448 22,239 35,611 Total liabilities 36,928 41,031 56,365 44,795 110,938 Total stockholders' equity $ 32,907 $ 37,790 $ 41,610 $ 51,099 $ 59,153 S-19 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 27 of 86 Table of Contents Certain Non-GAAP Financial Measures and Reconciliations to Their GAAP Equivalent The Company is providing the below financial measures that are not defined under generally accepted accounting principles in the United States, or GAAP, including earnings before interest, taxes, depreciation and amortization, or EBITDA, and Adjusted EBITDA. EBITDA and Adjusted EBITDA are not measures of our financial performance under GAAP and should not be considered in isolation or as alternatives to net earnings or other performance measures derived in accordance with GAAP. The following table reflects the reconciliation of EBITDA and Adjusted EBITDA to net income, which is the most directly comparable GAAP measure, for the years ended December 26, 2009, December 25, 2010, December 31, 2011, December 29, 2012 and December 28, 2013. Fiscal Year Ended December 26, December 25, December 31, December 29, December 28, 2009 2010 2011 2012 2013 (in thousands) Net income $ 3,782 $ 4,469 $ 2,817 $ 7,449 $ 6,618 Interest expense, net 879 877 885 764 872 Income tax provision 2,416 2,008 1,508 4,232 3,360 Depreciation 3,414 3,862 4,601 4,678 5,445 Amortization of intangible assets $ 62 $ 62 $ 68 $ 23 $ 288 Trademark impairment — 640 — — — EBITDA 10,553 11,918 9,879 17,146 16,583 Gain on sale of DSD business — — — (1,101) — Acquisition-related transaction costs — — — — 1,427 Adjusted EBITDA $ 10,553 $ 11,918 $ 9,879 $ 16,045 $ 18,010 Adjusted EBITDA represents EBITDA as adjusted to exclude the gain on the sale of our direct-store-delivery business in the fourth quarter of 2012 and adjusted for acquisition-related transaction costs, which include outside fees and expenses, and to ignore the effect of what we consider transactions or events not related to our core business to arrive at Adjusted EBITDA. We present EBITDA and Adjusted EBITDA because we believe they provide useful information regarding our ability to meet our future debt payment requirements, capital expenditures and working capital requirements and they provide an overall evaluation of our financial condition. We include EBITDA and Adjusted EBITDA to provide transparency to investors and to assist investors in comparing our performance across reporting periods on a consistent basis by excluding items that we do not believe are indicative of our core operating performance. In evaluating EBITDA and Adjusted EBITDA, you should be aware that in the future we may incur expenses similar to the adjustments in this presentation. Our presentation of Adjusted EBITDA should not be construed as an inference that our future results will be unaffected by unusual or non-recurring items. Neither EBITDA nor Adjusted EBITDA is a measurement of our financial performance under GAAP and should not be considered in isolation or as a substitute for net income, cash flows, or other consolidated income or cash flow data prepared in accordance with GAAP or as a measure of our profitability or our liquidity. Further, EBITDA and Adjusted EBITDA may not be comparable to similarly titled measures used by other companies. S-20 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 28 of 86 Table of Contents Six Months Ended June 29, June 28, 2013 2014 (in thousands) (unaudited) Statement of Operations Net revenues $ 102,214 $ 139,361 Cost of revenues 84,253 114,342 Operating expenses Selling, general and administrative expenses 13,846 17,422 Operating income 4,115 7,597 None-operating (income) expense: Gain on sale of DSD business — — Interest expense, net 391 1,254 Income before taxes 3,724 6,343 Income tax provision 1,261 2,274 Net income $ 2,463 $ 4,069 Balance Sheet Date (at period end) Cash and cash equivalents $ 426 $ 878 Total current assets 51,747 75,486 Total assets 113,684 181,163 Total current liabilities 28,618 37,739 Total liabilities 59,409 116,924 Total stockholders' equity $ 54,275 $ 64,239 Non-GAAP Financial Measure and Reconciliations to Its GAAP Equivalents The Company is providing the below financial measure that is not defined under generally accepted accounting principles in the United States, or GAAP, which is earnings before interest, taxes, depreciation and amortization, or EBITDA. EBITDA is not a measure of our financial performance under GAAP and should not be considered in isolation or as an alternative to net earnings or other performance measures derived in accordance with GAAP. The following table reflects the reconciliation of EBITDA to net income calculated in accordance with GAAP for the six months ended June 29, 2013 and June 28, 2014. Six Months Ended June 29, June 28, 2013 2014 (in thousands) (unaudited) Net income $ 2,463 $ 4,069 Interest expense, net 391 1,254 Income tax provision 1,261 2,274 Depreciation 2,544 3,321 Amortization of intangible assets 5 602 EBITDA 6,664 11,520 We present EBITDA because we believe it provides useful information regarding our ability to meet our future debt payment requirements, capital expenditures and working capital requirements and it provides an overall evaluation of our financial condition. We include EBITDA to provide transparency to investors and to assist investors in comparing our performance across reporting periods S-21 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 29 of 86 Table of Contents on a consistent basis by excluding items that we do not believe are indicative of our core operating performance. In evaluating EBITDA, you should be aware that in the future we may incur expenses similar to the adjustments in this presentation. EBITDA is not a measurement of our financial performance under GAAP and should not be considered in isolation or as a substitute for net income, cash flows, or other consolidated income or cash flow data prepared in accordance with GAAP or as a measure of our profitability or our liquidity. Further, EBITDA may not be comparable to similarly titled measures used by other companies. S-22 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 30 of 86 Table of Contents BUSINESS Overview We are a leading marketer and manufacturer of healthy/natural and indulgent specialty snack food brands. Our products are marketed under a strong portfolio of brands, including T.G.I. Friday's®, Rader Farms®, Boulder Canyon®, Poore Brothers®, Willamette Valley Fruit Company™, Fresh Frozen™, Nathan's Famous®, Jamba®, Seattle's Best Coffee®, Bob's Texas Style®, Vidalia® and Tato Skins®. T.G.I. Friday's®, Jamba®, Nathan's Famous® and Vidalia® are licensed brand names. We complement our branded product retail sales with private label retail sales and co-packing agreements. We operate in two segments: frozen products and snack products. The frozen products segment produces frozen fruits, vegetables and beverages for sale primarily to groceries, club stores and mass merchandisers. All products sold under our frozen products segment are considered part of the healthy/natural food category. The snack products segment produces potato chips, kettle chips, potato crisps, potato skins, pellet snacks, sheeted dough products and extruded products for sale primarily to snack food distributors and retailers. The products sold under our snack products segment includes products considered part of the indulgent specialty snack food category, as well as products considered part of the healthy/natural food category. Our Company was formed in 1995 as a holding company to acquire a potato chip manufacturing and distribution business. Since our initial public offering in December 1996, we have significantly expanded our product offering organically and by completing six strategic acquisitions. We have experienced strong net revenues and profit growth over the past few years. Fiscal year 2013 was a record volume year with net revenues of $215.6 million, a 16.4% increase over the prior fiscal year, and Adjusted EBITDA of $18.0 million. During the six months ended June 28, 2014, we generated net revenues of $139.4 million and Adjusted EBITDA of $11.5 million. For a discussion of Adjusted EBITDA, including a reconciliation to net income, see the section above entitled "Selected Financial Data." Segments We operate in two segments: frozen products and snack products. The frozen products segment produces frozen fruits, vegetables and beverages for sale primarily to groceries, club stores and mass merchandisers. All products sold under our frozen products segment are considered part of the healthy/natural food category. The snack products segment produces potato chips, kettle chips, potato crisps, potato skins, pellet snacks, sheeted dough products and extruded products for sale primarily to snack food distributors and retailers. The products sold under our snack products segment includes products considered part of the indulgent specialty snack food category, as well as products considered part of the healthy/natural food category. Products In our healthy/natural food category, products include Rader Farms® frozen berries, Boulder Canyon® Natural Foods brand kettle cooked potato chips, Willamette Valley Fruit CompanyTM frozen fruit and vegetables, Fresh FrozenTM frozen vegetables and fruit, Jamba® branded blend-and-serve smoothie kits under license from Jamba Juice Company, Seattle's Best Coffee® Frozen Coffee Blends branded blend-and-serve frozen coffee beverage under license from Seattle's Best Coffee, LLC and private label frozen fruit and healthy/natural snacks. Our Boulder Canyon® Natural Foods branded products have received increased investment support as we believe Boulder Canyon® is a highly extendable brand that can be leveraged into adjacent product categories. Net revenues of our Boulder Canyon® products increased 50% in the first half of 2014 compared to the prior year, while 2013 net S-23 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 31 of 86 Table of Contents revenues were up 23.5%. For the six months ended June 28, 2014, our healthy/natural foods represented 81% of net sales. In our indulgent specialty snack food category, products include T.G.I. Friday's® brand snacks under license from T.G.I. Friday's, Nathan's Famous® brand snack products under license from Nathan's Famous Corporation, Vidalia® brand snack products under license from Vidalia Brands, Inc., Poore Brothers® kettle cooked potato chips, Bob's Texas Style® kettle cooked chips, and Tato Skins® brand potato snacks. For the six months ended June 28, 2014, our indulgent specialty snack foods represented 19% of net sales. During 2013 and 2014, we launched a number of new items under our existing brands. In 2013, in our frozen products segment, new products included Jamba® Green Fusion and Seattle's Best Coffee® Frozen Coffee Blends (Coffee Chiller, Mega Mocha, Creamy Caramel and Very Vanilla). We also added Rader Farms® Organic Blackberries, Organic Mangos and Raspberry to our product line. In our snack products segment, new items included Boulder Canyon® Natural Foods Sweet Potato Fries, Avocado Oil Sea Salt Kettle Chips, Olive Oil Sea Salt & Cracked Pepper Kettle Chips and Organic Sea Salt Kettle Chips, T.G.I. Friday's® Jalapeno Poppers and Extreme Heat Hot Fries, and Nathan's Famous® Bacon & Cheddar. We also launched Vidalia® Sweet Potato Fries and Sweet Onion Petal under our license agreement with Vidalia Brands, Inc. In 2014, in our frozen products segment, new products included Jamba® Orange Dream, Straw Wild Mexico, Blue Fusion, and Red Fusion. We also added Rader Farms® Plus Mixed Berry, Plus Straw/Blue, Summers Peak Blueberry, Fresh Start Morning Vitality, Fresh Start Daily Power and Fresh Start Sunrise Refresh to our product line. In our snack products segment, new items included Boulder Canyon® Natural Foods Asiago Cheese Protein Chip, Chocolate Protein Chip, Chocolate Arise Cereal, and Yogurt Arise Cereal, T.G.I. Friday's® Bacon Ranch, and Nathan's Famous® Bacon & Cheddar. We also launched Vidalia® Sweet Onion BBQ Kettle, Sweet Onion Kettle, and Zesty Ranch Sweet Onion Petal under our license agreement with Vidalia Brands, Inc. Our History The Company was formed in 1995 as a holding company to acquire a potato chip manufacturing and distribution business that was founded by Donald and James Poore in 1986. In December 1996, we completed an initial public offering of our common stock. In November 1998, we acquired the business and certain assets, including the Bob's Texas Style® potato chip brand, of Tejas Snacks, L.P., a Texas-based potato chip manufacturer. In October 1999, we acquired Wabash Foods, LLC ("Wabash"), including the Tato Skins®, O'Boisies® and Pizzarias® trademarks and the Bluffton, Indiana manufacturing operation, and assumed all of Wabash's liabilities. In June 2000, we acquired Boulder Natural Foods, Inc., including the Boulder Canyon® brand of totally natural potato chips. In May 2006, we changed our name from Poore Brothers, Inc. to The Inventure Group, Inc. In May 2007, we acquired a farming operation and berry processing facility in Lynden, Washington from Rader Farms. In May 2010, we changed our name from The Inventure Group, Inc. to Inventure Foods, Inc. In May 2013, we acquired the berry processing business of Willamette Valley Fruit Company, including the Willamette Valley Fruit CompanyTM frozen fruit and vegetable products. In November 2013, we acquired Fresh Frozen Foods, including the Fresh FrozenTM frozen vegetable and fruit products. We believe our acquisition of Willamette Valley Fruit Company (i) provides us with (a) additional freezing and packaging capabilities, (b) an expanded geographic footprint, and (c) direct access to Oregon berry farmers; (ii) helped us meet growing consumer demand for frozen fruit; (iii) is accretive to earnings; and (iv) with the addition of two new IQF tunnels, will allow us to (a) freeze more fruit leading to increased margin opportunities and (b) be more opportunistic acquirers of inputs like frozen fruits. S-24 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 32 of 86 Table of Contents Fresh Frozen Foods is a full-service processor and supplier of approximately 60 varieties of frozen vegetables and fruits, with year-round freezing operations in the Southeast and increases our ability to freeze blueberries and other fruits. We expect Fresh Frozen Foods to be accretive to earnings in 2014 as we believe we have begun to capitalize on synergy opportunities in sales, operations and logistics. Our Industry We operate primarily in the U.S. food products industry, which includes the healthy/natural and indulgent specialty snack food categories. We believe there is a trend in the U.S. towards healthy eating, as reflected by the following: • U.S. sales of natural and organic foods and beverages are projected to exceed $78 billion by 2015; • for the 52 weeks ended August 10, 2014, the Frozen vegetables category was approximately $4.4 billion; • for the 52 weeks ended August 10, 2014, the natural snack, frozen fruit and frozen vegetable categories grew by 12%, 14.7% and 2.5%, respectively; • for the twelve weeks ended August 10, 2014, the Information Resources, Inc. ("IRI") Frozen Vegetable Category, increased by 2.0%, and, during this period, the market share of our Fresh FrozenTM frozen vegetable products of the IRI Frozen Vegetable Category increased by 22.3%; • for the twelve weeks ended August 10, 2014, the IRI Potato Chip Category, increased 1.5% while the market share of our Boulder Canyon® Natural Foods branded potato chips' of the IRI Potato Chip Category increased by 18.1%; • for the twelve weeks ended August 10, 2014, the SPINS Potato Chip Category, a gauge of the natural potato chip market in the U.S., increased 16.3% while the market share of our Boulder Canyon® Natural Foods branded potato chips' of the SPINS Potato Chip Category increased by 70.0%; • for the year ended December 28, 2013, sales of our healthy/natural private label products increased 5.2%; and • for the six months ended June 28, 2014, sales of our healthy/natural private label products increased 27.8%. For the twelve weeks ended August 10, 2014, our Jamba® and Seattle's Best Coffee® branded products' combined market share of the frozen beverage category was 54%, according to IRI Data for Total US Food. Competitive Strengths We believe the following competitive strengths differentiate us from our competitors and contribute to our continued success: Consistent organic growth in revenue, earnings and stock price. We have been able to demonstrate consistent net revenues, earnings, and stock price growth driven by our unique healthy/natural and indulgent specialty food brands, operational excellence, and strong leadership team. Between fiscal years 2009 and 2013, we have grown each of net revenues and earnings per share at a compounded annual growth rate of 16%. For the six month period ended June 28, 2014 compared to the prior year period, we have increased net revenues and earnings per share by 36% and 54%, respectively. In addition, for the five year period ended August 22, 2014, our stock price has increased by 323%. S-25 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 33 of 86 Table of Contents Innovative marketer of healthy/natural and indulgent specialty food brands with state-of-the-art facilities. We focus on product innovation and constantly strive to identify and develop new products that work with our existing brand portfolio. We are continually creating and evaluating new flavors, products and packaging. In the last three years, we have introduced over 145 new products. We believe that expanding our product portfolio will enable us to take advantage of consumers' desire for frozen fruits, frozen vegetables and snack food products. We believe that our advanced manufacturing capabilities allow us to offer high quality and innovative products. We are an early adopter of new technologies and techniques, and intend to develop new technology to fuel growth in our licensed brands. This allows us to improve the quality of our existing products, introduce new products, enhance margins and meet diverse customer needs. Strong portfolio of national brands making us the food licensee of choice for new market entries. Our portfolio of brands has been recognized by consumers since 1996 and is associated with high-quality, healthy and indulgent products. We believe that our focus on selling branded products allows us to generate greater consumer loyalty for our products, and in turn enables us to obtain higher prices. Further, we believe our platform is attractive for national brands that are seeking a licensee in order to expand, complement and diversify existing offerings. Diversified product portfolio and distribution channels of branded and private label fruit and snacks. Our broad portfolio of healthy/natural and indulgent specialty products include the following brands: Boulder Canyon®, Fresh Frozen™, Rader Farms, Poore Brothers®, Willamette Valley Fruit Company™, T.G.I. Friday's®, Vidalia® brands, Nathan's Famous®, Seattle's Best Coffee®, and Jamba®. These brands are complimented by our premium private label products sold to blue chip retailers across the United States which offer additional sell-through opportunities for our branded products. Our products are sold in a variety of channels, including grocery, natural, mass merchandisers, drug, club, value, vending, food service, and convenience stores and are distributed through Company-owned and satellite warehouses, direct store delivery, distribution centers and other facilities. Successful track record of acquiring and integrating businesses. We have recently completed several strategic acquisitions, including Radar Farms, a grower and harvester of berries, in May 2007; Willamette Valley Fruit Company, a berry processing provider, in May 2013; and Fresh Frozen Foods, a packager and marketer of frozen vegetables, in November 2013. We have a well-defined strategy for identifying, evaluating and integrating acquisitions that we believe differentiates us from many of our competitors. We believe that our proven acquisition capabilities will allow us to participate successfully in the ongoing consolidation trend among healthy/natural and indulgent specialty food product manufacturers. Seasoned management team with backgrounds at global consumer packaged goods companies. The top four members of our management team and four recent additions to our Board of Directors have on average over twenty-five years of experience in the global consumer packaged goods industry. The senior management team has a demonstrated track record of delivering strong net revenues, profitability, and stock price growth. They are recognized leaders in their respective areas of expertise, as well as highly trained and educated professionals. Their collective experience with leading consumer packaged goods organizations has enabled us to deliver strong performance. Strategy We intend to grow our business profitably through the following strategic initiatives: Develop, Acquire or License Innovative Healthy/Natural and Indulgent Specialty Snack Food Brands. A significant element of our business strategy is to develop, acquire or license new innovative healthy/natural and indulgent specialty snack food brands that provide a strategic fit with our existing business S-26 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 34 of 86 Table of Contents and that have strong national brand recognition in order to expand, complement and diversify our existing business. Broaden Distribution of Existing Brands. We plan to increase distribution and the market share of our existing branded products through selected trade activity in various existing or new markets and channels. Marketing efforts may include, among other things, trade advertising and promotional programs with distributors and retailers, in-store advertisements, in-store displays and limited consumer advertising, public relations and coupon programs. We believe growth opportunities exist to increase the distribution of our Boulder Canyon®, Fresh Frozen™ and Radar Farms products in grocery stores, which have all-commodity volumes, or ACVs, in such stores of less than 30% for Boulder Canyon®, less than 20% for Fresh Frozen™ and less than 20% for Radar Farms, our Boulder Canyon® and Fresh FrozenTM products in mass merchandise stores, our Boulder Canyon® and Radar Farms products in club stores, and our Boulder Canyon® products in natural, drug and convenience stores. Our Boulder Canyon® products have an ACV of approximately 77% in natural food stores. Broaden Distribution of Private Label. We plan to increase distribution of our private label products to existing and new customers. This will help leverage our infrastructure and capacity and is expected to improve profit margins as there are no related advertising and promotional costs. Our manufacturing and distribution of private label products enhances our ability to partner with key retailers. Develop New Products for Existing Brands. We plan to continue our innovation activities to identify and develop (i) new line extensions for our brands, such as new flavors or products, and (ii) new food segments in which to expand the presence of our brands. Leverage Infrastructure and Capacity. Our Bluffton, Indiana, Goodyear, Arizona, Lynden, Washington, Salem, Oregon, Jefferson, Georgia, and Thomasville, Georgia facilities operated at approximately 60%, 90%, 70%, 33%, 75% and 65% of their respective manufacturing capacities as of August 2014. We intend to continue to expand our branded product lines, as well as secure new manufacturing opportunities in private label and co-packing arrangements. In addition, we plan to continue capital investment in our plants and improve operating efficiencies. Pursue Selective Licenses and Acquisitions. We continue to evaluate acquisition opportunities where we can use our competencies in operations, sales, marketing and distribution in order to drive revenue and profit growth. Improve Profit Margins. We plan to increase our profit margins through increased long-term revenue growth, improved operating efficiencies, higher margin new products and high-growth product categories. For example, we believe the following margin improvement initiatives are important elements of our strategy: rationalization of unprofitable customer accounts, improved product mix and channel flow, expanded sales growth, improved operating efficiencies and leverage and higher margin new product introductions. We believe that improved profit margins are possible with the achievement of the business strategies discussed above. Manufacturing Our Company-owned manufacturing facility in Bluffton, Indiana produces snack products utilizing a sheeting and frying process with three fryer lines that can produce up to approximately 9,000 pounds per hour and two extruded lines capable of producing up to 4,000 pounds per hour. Previously introduced production capabilities at our Bluffton, Indiana facility allow us to use existing equipment to make additional snacks, including pellet snacks, which are entirely different in appearance and taste from our other product lines. We believe this technology will help expand our product lines and facilitate growth. In 2013, we installed additional packaging capacity to meet increasing demand on S-27 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 35 of 86 Table of Contents branded, licensed and contract manufacturing opportunities. In 2014, we installed additional extrusion capacity to service this growing business segment We also produce snack products for customers under private label and co-packing agreements. Our Indiana facility is operating at approximately 40% of sheeted processing capacity and 60% of extruded capacity as of August 2014. Our Company-owned manufacturing facility in Goodyear, Arizona has the capacity to produce up to approximately 4,600 pounds of potato chips per hour, including 2,500 pounds of batch-fried potato chips per hour and 2,100 pounds of continuous-fried potato chips per hour. Poore Brothers®, Bob's Texas Style®, Boulder Canyon® Natural Foods, co-packing and private label branded potato chips are produced in a variety of flavors utilizing a batch-frying process. While conventional continuous line cooking methods may produce higher production volume, we believe that our batch-frying process is superior and produces premium potato chip products with enhanced crispness and distinctive flavor. Our Arizona facility is operating at approximately 90% of packaging capacity as of August 2014. Our Company-owned Rader Farms farming facility in Lynden, Washington has the capacity to grow up to eight million pounds of raspberries and blueberries per year. Rader Farms grows, processes and markets premium berry blends, raspberries, blueberries, and rhubarb and purchases marionberries, cherries, cranberries, strawberries and other fruits from a select network of fruit growers for resale. The fruit is processed and packaged for sale and distribution nationally to wholesale customers under the Rader Farms® brand, as well as through store brands. We also use third-party processors for certain products. Our individually quick frozen, or IQF, processing facilities located at the same location have the capacity to apply the IQF process to 55 million pounds of berries annually. In 2013, we invested in new processing equipment to more effectively and efficiently cool the fruit after being harvested, thereby increasing quality. Additionally, we added a packaging line to increase capacity. In 2014, additional IQF processing equipment was added for further capacity. Our Washington processing facility is operating at approximately 70% of packaging capacity as of August 2014. In May 2013, we acquired the berry processing business of Willamette Valley Fruit Company. Willamette Valley Fruit Company has two plants in Salem, Oregon. Both plants occupy leased facilities and process and package marionberries, other blackberries, blueberries, strawberries, cranberries, rhubarb, other fruits and vegetables for industrial customers, as well as contract manufacturing and private label brands. The processing facility has four IQF lines capable of freezing 35,000 pounds per hour of fruit during peak production. As this plant is seasonal with the fruit harvests, it operates at approximately 100% of capacity in the peak production months of June through September and at approximately 20% of capacity the remainder of the year. The packaging plant has the ability to package up to approximately 19 million pounds annually and is operating at 33% of capacity as of August 2014. In November 2013, we acquired Fresh Frozen Foods. Fresh Frozen Foods has two plants located in Jefferson, Georgia and Thomasville, Georgia which process and package IQF vegetables, breads and other items sold under the Fresh FrozenTM brand. The plant in Jefferson operates as a packaging facility capable of packaging approximately 80 million pounds of products annually. This plant is operated at approximately 75% of capacity as of August 2014. The Thomasville facility is a processing facility which has one IQF line capable of producing approximately 50 million pounds of IQF carrots, peas, potatoes, onions and other vegetables and fruits annually. This plant is operated at approximately 65% of capacity as of August 2014. Marketing and Distribution We conduct our marketing efforts through three principal sets of activities: (i) consumer marketing in print, outdoor, digital and social media; (ii) consumer incentives such as coupons; and (iii) trade promotions to support price features, displays and other merchandising of our products by our customers. S-28 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 36 of 86 Table of Contents Our products are sold through a number of channels, including: grocery, natural, mass merchandisers, drug, club, value, vending, food service, convenience store, industrial and international. Our products are distributed through Company-owned and satellite warehouses, direct store delivery, distribution centers and other facilities. Suppliers The principal raw materials we utilize are potatoes, potato flakes, potato starch, corn, oils, seasonings, berries and vegetables. We believe that the raw materials we need to produce our products are readily available from numerous suppliers on commercially reasonable terms. Potatoes, potato flakes and corn are widely available year-round, although they are subject to seasonal price fluctuations. We use a variety of oils and seasonings in the production of our snack products and believe that alternative sources for such oils and seasonings, as well as alternative oils and seasonings, are readily abundant and available. We may lock in prices for raw materials, such as oils, as we deem appropriate. We freeze an average of 40% of our total annual berry requirements and 35% of our total annual vegetable requirements in our own processing facilities, and augment that production by purchasing additional frozen berries and vegetables to meet customer demand. We purchase both fresh berries and vegetables from local farmers and already frozen berries and vegetables for our repackaging business, and we purchase yogurt in cube form from a third-party company for use in our at home smoothie kits. We use packaging materials in our snack and frozen business. We choose our suppliers based primarily on price, quality, availability and service. Although we believe that our required products and ingredients are readily available, and that our business success is not dependent on any single supplier, the failure of certain suppliers to meet our performance specifications, quality standards or delivery schedules could have a material adverse effect on our business and results of operations. In particular, a sudden scarcity, a substantial price increase, or an unavailability of product ingredients could materially adversely affect our operations. In such circumstances, alternative ingredients may not be available when needed or, if available, on terms acceptable to the Company. Customers Costco accounted for 35%, 35% and 30% of the Company's 2013, 2012 and 2011 net revenues, respectively. With the addition of our Willamette Valley Fruit Company and Fresh Frozen Foods businesses, Costco accounted for 27% of consolidated 2013 pro forma net revenues (see Note 2 to our Consolidated Financial Statements in Part II, Item 8 of our Annual Report on Form 10-K/A for the year ended December 28, 2013). The remainder of our revenues were derived from sales to customers, grocery chains, club stores, regional distributors and other manufacturers, none of which individually accounted for more than 10% of our net revenues in 2013. A decision by any of our major customers to cease or substantially reduce their purchases could have a material adverse effect on our business. The majority of our revenues are attributable to external customers in the United States. We do sell to Canadian and international customers as well, however, the revenues attributable to these customers are immaterial. All of our assets are located in the United States. Competition Our snack products generally compete against other snack foods, including potato chips, tortilla chips, popcorn, cheese snacks and other specialty snack brands. The snack food industry is large and highly competitive and is dominated by large food companies, including Frito-Lay, Inc., a subsidiary of PepsiCo, Inc., The Kellogg Company, ConAgra Foods, Inc., Diamond Foods, Inc., General Mills, Inc. and Snyder's-Lance, Inc. These companies possess substantially greater financial, production, marketing, distribution and other resources than us, and their brands are more widely recognized than our S-29 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 37 of 86 Table of Contents products. Numerous other companies that are actual or potential competitors offer products similar to ours, and some of these have greater financial and other resources (including more employees and more extensive facilities) than us. In addition, many competitors offer a wider range of products than we offer. Local or regional markets often have significant smaller competitors, many of whom offer products similar to ours. Expansion of our operations into new markets has and will continue to encounter significant competition from national, regional and local competitors that may be greater than that encountered by us in our existing markets. In addition, such competitors may challenge our position in our existing markets. While we believe that we have innovative products and methods of operation that will enable us to compete successfully, no assurance can be given that we will be able to do so when faced with such competition. Our frozen berry products generally compete against other packaged berries on the basis of quality and price. Key competitors include Townsend Farms, Inc., Sunopta Inc., Cascadia Farm of Small Planet Foods, Inc., Wyman's of Maine and Dole Food Company, Inc. Obtaining freezer space at supermarkets and club stores is critical to successfully compete with other berry products, as supermarkets and club stores will frequently only carry one brand of frozen berry products, contrasted to snack products where multiple brands are typically carried. Our frozen vegetable products generally compete against other packaged vegetables on the basis of quality and price. Key competitors include the Birds Eye Frozen division of Pinnacle Foods, Inc., General Mills, Inc., The Pictsweet Company and Hanover Foods Corp. Obtaining freezer space at supermarkets and club stores is critical to successfully compete with other vegetable products, as supermarkets and club stores will frequently only carry a few brands of frozen vegetable products. Our smoothie kits generally compete against other packaged smoothie kits on the basis of quality and price. Key competitors include Yoplait® of General Mills, Inc., Dole Food company, Inc. smoothies and a number of smaller brands. Obtaining freezer space at grocery, mass merchandiser and club stores is critical to successfully compete with other smoothie products, as grocery, mass merchandisers and club stores will frequently only carry two to three brands of frozen smoothie products, contrasted to snack products where multiple brands are typically carried. The principal competitive factors affecting the markets of our products include product quality and taste, brand awareness among consumers, access to shelf or freezer space, price, advertising and promotion, varieties offered, nutritional content, product packaging and package design. We compete in our markets principally on the basis of product quality and taste. Frozen products are produced at our Lynden, Washington; Salem, Oregon and Thomasville, Georgia facilities utilizing IQF technology, which we do not have exclusive rights for. Products produced at our Bluffton, Indiana facility involve the use of unique technology including sheeted dough and pellet snacks. We do not have exclusive rights for this technology. The taste and quality of the products we produce at our Goodyear, Arizona facility are largely attributable to two elements of our manufacturing process: batch-frying and distinctive seasonings to produce a variety of flavors. We do not have exclusive rights to the use of either element. Consequently, competitors may incorporate such elements into their own processes. Government Regulation The manufacture, labeling and distribution of our products are subject to the rules and regulations of a variety of federal, state and other governmental agencies. There can be no assurance that new laws or regulations will not be passed that could require us to alter the taste or composition of our products or impose other obligations on us. New or increased government regulation of the food industry, including, but not limited to, laws or regulations related to food safety, chemical composition, production processes, traceability, product quality, packaging, labeling and product recalls, could adversely impact our results of operations by increasing production costs, or restricting our methods of operation and distribution. Such changes could also affect sales of our products and have a material S-30 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 38 of 86 Table of Contents adverse effect on us. These regulations may address food industry or society factors, such as obesity, nutritional and environmental concerns and diet trends. In addition to laws relating to food products, our operations are governed by laws relating to environmental matters, workplace safety and worker health. We believe that we presently comply in all material respects with such laws and regulations. Employees As of September 3, 2014, we had 1,298 total employees. There are 1,171 employees in manufacturing and distribution, composed of 696 full-time, 602 part-time, and 121 temporary positions. The number of part-time employees as of September 3, 2014 increased from 56 part-time employees as of December 28, 2013 due to temporary workers hired during the harvest season. There are 51 employees in sales and marketing, and 76 in administration and finance. Our employees are not represented by any collective bargaining organization, and we have never experienced a work stoppage. We believe that our relations with our employees are good. Patents, Trademarks and Licenses We own the following trademarks in the United States: Boulder Canyon®, Canyon Cut®, Rader Farms®, Poore Brothers®, Intensely Different®, Texas Style®, Tato Skins®, O'Boisies®, Pizzarias®, Braids®, Willamette Valley Fruit Company™ and Fresh Frozen™. We consider our trademarks to be of significant importance in our business. We are not aware of any circumstances that would have a material adverse effect on our ability to use our trademarks. From time to time, we enter into licenses with owners of distinctive brands to produce branded snack food products. These licenses may require us to make royalty payments on sales and to achieve certain minimum sales levels by certain dates during the contract term. Any termination of any of our license agreements, whether at the expiration of their term or prior thereto, could have a material adverse effect on our financial condition and results of operations. In 2000, we launched our T.G.I. Friday's® brand snack products under a license agreement with T.G.I. Friday's, which expires in December 2019. In July 2009, we entered into a license agreement with Jamba Juice, which expires in 2035, and, in 2010, launched a line of Jamba® branded blend-and-serve smoothie kits. In January 2011, we entered into a license agreement with Nathan's Famous Corporation, which expires in 2031, and launched a line of Crunchy Crinkle Fries. In June 2012, we entered into a license agreement with Vidalia Brands, Inc. to launch a line of onion flavored snacks, which expires in 2019. In November 2012, we entered into a license agreement with Seattle's Best Coffee LLC, and created a line of blend-and-serve frozen coffee drink kits with an initial term expiring in November 2017, which automatically extends for a five-year period upon meeting certain minimum sales targets. We produce T.G.I. Friday's® brand snack products, Tato Skins® brand potato crisps and Boulder Canyon® Natural Foods Rice and Bean, Hummus Chips, Garden Select Vegetable Crisps and Ancient Grains utilizing a sheeting and frying process that includes technology that we license from a third party. Pursuant to such license agreement, we have a royalty-bearing license to use the technology in the United States, Canada and Mexico until such time as the parties mutually agree to terminate the license agreement. Even though the patents for this technology expired in December 2006, in consideration for the use of this technology, we are required to make royalty payments on sales of products manufactured utilizing the technology until such termination date. However, should products substantially similar to Tato Skins®, O'Boisies® and Pizzarias® become available for any reason in the marketplace by any manufacturer other than us which results in a sales decline of 10% or more, any royalty obligation for the respective products shall cease. S-31 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 39 of 86 Table of Contents Seasonality The food products industry is seasonal. Consumers tend to purchase our snack products at higher levels during the major summer holidays and also at times surrounding major sporting events throughout the year. Additionally, smoothie sales tend to peak during the warmer summer months. Our industrial berry business at Willamette Valley Fruit Company is generally slower during the first quarter of the year. Additionally, we may face seasonal price increases for raw materials. Research and Development We incur research and development costs to support growth through the introduction of new products and the improvement in quality of existing products. We recorded $0.3 million, $0.2 million and $0.3 million in fiscal years 2013, 2012 and 2011, respectively, for research and development costs. Legal Proceedings We are periodically a party to various lawsuits arising in the ordinary course of business. Management believes that the resolution of any such lawsuits, individually and in the aggregate, will not have a material adverse effect on our financial position or results of operations. Under our license agreement with Jamba Juice, we are obligated and have agreed to indemnify and defend Jamba Juice in the two matters identified below, and Jamba Juice has tendered defense of these matters to us. In March 2012, we learned that Jamba Juice was named as a defendant in a putative class action filed in the Federal Court for the North District of California and captioned Anderson v. Jamba Juice Company (the "Anderson Matter"). The plaintiff purported to represent a class of individuals who purchased make-at-home smoothie kits from Jamba Juice, and alleged that such smoothie kits contain unnaturally processed, synthetic and/or non-natural ingredients and that use of the words "All Natural" on the labels of these smoothie kits was unfair and fraudulent and violated various false advertising and unfair competition laws. The Anderson Matter is one of a number of "all natural" lawsuits recently brought against various food manufacturers and distributors in California. In an amended complaint, the plaintiff also alleged violations of the federal Magnuson-Moss Warranty Act, but the court dismissed those claims in August 2012. In a second amended complaint filed in September 2012, we were added as a defendant. Pursuant to the parties' stipulation, on September 3, 2013 the court dismissed the Anderson Matter. On June 28, 2013, a class action complaint against Jamba Juice and the Company, captioned Lilly v. Jamba Juice Company et al (the "Lilly Matter"), was filed in the Federal Court for the Northern District of California and makes nearly identical allegations as those made in the Anderson Matter, except that the complaint also alleges that the smoothie kits contain two additional allegedly non-natural ingredients. The plaintiffs in this new action are represented by the same counsel that represented the plaintiff in the Anderson Matter. While we currently believe the "all natural" statement on the smoothie kits are not misleading and in full compliance with FDA guidelines, we are investigating the claims asserted in the Lilly Matter, and intend to vigorously defend against them. On September 17, 2013, we filed a motion to dismiss, seeking to dismiss plaintiffs' claims as to gelatin and the Orange Dream Machine smoothie kit. Our motion was denied in November 2013. On February 3, 2014, the plaintiffs filed a motion to certify a class of all persons in California who bought certain Jamba Juice smoothie kits. The parties held a mediation on March 31, 2014. Although the parties did not reach an agreement, settlement discussions continue. Counsel for the Company and Jamba Juice deposed both plaintiffs on May 6, 2014. The Company and Jamba Juice filed their response to the plaintiffs' motion on June 30, 2014, and oral argument was held on August 21, 2014. The court will hold a case management conference after it has issued a class certification order. S-32 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 40 of 86 Table of Contents On February 13, 2014, the Company was sued in two putative class actions filed by Vanessa Montantes alleging that it recorded telephone calls made to its consumer affairs telephone number without obtaining consent to recording as allegedly required by California law. One of the actions was filed in California State Court and captioned Vanessa Montantes v. Inventure Foods, Inc. doing business as Boulder Canyon Natural Foods, Superior Court for the State of California for the County of Los Angeles Case No. BC536218. This state court action was dismissed by the plaintiff within a few days of its original filing date. The other action was filed in Federal Court and captioned Vanessa Montantes v. Inventure Foods d/b/a Boulder Canyon Natural Foods, United States District Court for the Central District of California Case No. CV14-1128 MWF (RZx). The Company filed a motion to dismiss the complaint on April 21, 2014, which was denied on June 9, 2014. The Company also demanded indemnity from EMS, Inc., the independent contractor that answered the consumer affairs calls, but EMS, Inc. has not agreed to indemnify the Company. On July 15, 2014, plaintiff filed a First Amended Complaint adding EMS, Inc. as a defendant. On August 1, 2014, the Company filed an answer to the First Amended Complaint. S-33 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 41 of 86 Table of Contents SELLING STOCKHOLDER The following information supplements the information set forth under the caption "Selling Stockholders" in the accompanying prospectus to reflect the 3,594,518 shares of our common stock being offered by the selling stockholder in this offering and the grant by the selling stockholder to the underwriters of an option for a period of 30 days from the date of this prospectus supplement to purchase up to 539,177 additional shares of our common stock. The information is based on information provided by the selling stockholder to us and is as of the date of this prospectus supplement. The percentage of shares beneficially owned by the selling stockholder is based on 19,531,994 shares of our common stock outstanding as of August 28, 2014. The following table sets forth the number of shares of common stock owned by the selling stockholder prior to this offering, the number of shares of common stock to be offered for sale by the selling stockholder in this offering, the number of shares of common stock to be owned by the selling stockholder after completion of the offering and the percentage of common stock to be owned by the selling stockholder after giving effect to the completion of the offering as of the date hereof. The beneficial ownership of our common stock by the selling stockholder set forth in the table is determined as of August 28, 2014 in accordance with Rule 13d-3 under the Exchange Act. Assuming the Assuming the Underwriters' Option to Underwriters' Option to Purchase Is Not Purchase Is Exercised in Full(1)(2) Exercised(1)(2) Shares Number of Percentage Offered Shares of Shares Number of Percentage Pursuant Number of Percentage Beneficially Beneficially Number of Shares of Shares to the Shares of Shares Owned Prior Owned Prior Shares Beneficially Beneficially Underwriters' Beneficially Beneficially Name of Selling to the to the Being Owned After Owned After Option to Owned After Owned After Stockholder Offering Offering Offered the Offering the Offering Purchase the Offering the Offering Capital Foods, LLC(3) 4,133,695 21.2% 3,594,518 539,177 2.8% 539,177 0 0% (1) The percentage of shares beneficially owned is based on 19,531,994 shares of common stock outstanding as of August 28, 2014. (2) We have assumed all shares of common stock offered by the selling stockholder under this prospectus supplement have been sold and that no additional shares have been acquired by the selling stockholder. (3) The total number of shares owned is based on the Schedule 13D/A filed by Capital Foods, LLC with the SEC on March 13, 2014, disclosing sole voting power with respect to 4,133,695 shares and sole dispositive power with respect to 4,133,695 shares. Larry R. Polhill is a manager of Capital Foods, LLC, and served as a member of our board of directors from July 2004 to September 2013, as chairman of our board of directors from February 2006 to May 2010 and from May to September 2013, and as a member of our compensation committee from May 2010 to September 2013. Pursuant to a settlement reached with the SEC that does not relate to the Company, Mr. Polhill is barred from acting as a director or officer of any public company. S-34 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 42 of 86 Table of Contents PRICE RANGE OF COMMON STOCK Our common stock is listed on the NASDAQ Global Select Market, under the symbol "SNAK." The following table sets forth for the periods indicated the high and low sales prices per share of our common stock as reported on the NASDAQ Global Select Market during 2014 and the NASDAQ Global Market during 2013 and 2012: High Low For the year ending December 27, 2014: First Quarter $ 14.50 $ 11.14 Second Quarter $ 14.49 $ 11.28 Third Quarter (through September 11, 2014) $ 13.05 $ 10.10 For the year ended December 28, 2013: First Quarter $ 7.85 $ 6.49 Second Quarter $ 8.36 $ 7.11 Third Quarter $ 10.63 $ 8.41 Fourth Quarter $ 13.53 $ 10.33 For the year ending December 29, 2012: First Quarter $ 4.96 $ 3.69 Second Quarter $ 6.67 $ 5.01 Third Quarter $ 7.66 $ 5.69 Fourth Quarter $ 6.60 $ 5.72 On September 11, 2014, the last reported sale price of our common stock on the NASDAQ Global Select Market was $12.98 per share. As of March 7, 2014, we had 170 holders of record of our common stock. The actual number of stockholders is greater than this number of record holders, and includes stockholders who are beneficial owners, but whose shares are held in street name by brokers and other nominees. This number of holders of record also does not include stockholders whose shares may be held in trust by other entities. S-35 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 43 of 86 Table of Contents U.S. FEDERAL INCOME TAX CONSEQUENCES TO NON-U.S. HOLDERS The following is a general discussion of U.S. federal income tax considerations generally applicable with respect to the ownership and disposition of our common stock applicable to non-U.S. Holders. For the purposes of this discussion, the term "Non-U.S. Holder" means a beneficial owner of our common stock that is, for U.S. federal income tax purposes, an individual, corporation, estate or trust, other than: • an individual who is a citizen or resident of the United States; • a corporation, or other entity taxable as a corporation for U.S. federal income tax purposes, created or organized in the United States or under the laws of the United States, any state thereof or the District of Columbia; • an estate, the income of which is includible in gross income for U.S. federal income tax purposes regardless of its source; or • a trust if (1) a court within the United States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons (as defined in the Internal Revenue Code of 1986, as amended, or the Code) have the authority to control all substantial decisions of the trust, or (2) it has a valid election in effect under applicable U.S. Treasury regulations to be treated as a domestic trust. If an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds shares of our common stock, the tax treatment of a person treated as a partner generally will depend on the status of the partner and the activities of the partnership. Persons that, for U.S. federal income tax purposes, are treated as a partner in a partnership holding shares of our common stock should consult their own tax advisors. This discussion is based on current provisions of the Code, existing and proposed U.S. Treasury regulations promulgated thereunder, and administrative rulings and court decisions in effect as of the date hereof, all of which are subject to change at any time, possibly with retroactive effect. No opinion of counsel has been obtained, and we do not intend to seek a ruling from the Internal Revenue Service (the "IRS") as to any of the tax considerations described below. There can be no assurance that the IRS will not challenge one or more of the tax considerations described below. This discussion only addresses beneficial owners of our common stock, and it is assumed for purposes of this discussion that Non-U.S. Holders hold shares of our common stock as capital assets within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all aspects of U.S. federal income taxation that may be important to a Non-U.S. Holder in light of such Non-U.S. Holder's particular circumstances or that may be applicable to Non-U.S. Holders subject to special treatment under U.S. federal income tax law (including, for example, entities or arrangements treated as partnerships for U.S. federal income tax purposes (and investors therein), controlled foreign corporations, passive foreign investment companies, and former citizens or former long-term residents of the United States). In addition, this discussion does not address U.S. federal tax laws other than those pertaining to the U.S. federal income tax (such as U.S. federal estate tax or the Medicare contribution tax on certain net investment income), nor does it address any aspects of U.S. state, local or non-U.S. taxes. Non-U.S. Holder should consult with their own tax advisors regarding the possible application of these taxes. This summary is for general information only and is not intended to constitute a complete description of all tax consequences relating to the ownership and disposition of our common stock. Holders of our common stock should consult with their own tax advisors regarding the tax consequences to them (including the application and effect of other U.S. federal tax laws and any state, local, non-U.S. income and other tax laws) of the ownership and disposition of our common stock. S-36 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 44 of 86 Table of Contents Dividends Although we do not anticipate that we will pay any dividends on our common stock, if dividends are paid to Non-U.S. Holders, such dividends, to the extent paid out of our current or accumulated earnings and profits (as determined under U.S. federal income tax principles) will be subject to U.S. federal income tax withholding at a rate of 30% (or lower rate provided by an applicable income tax treaty). To obtain a reduced rate of withholding under an applicable income tax treaty, a Non-U.S. Holder generally will be required to provide us or our paying agent with a properly completed IRS Form W-8BEN (or other applicable form) certifying the Non-U.S. Holder's entitlement to benefits under that treaty. In certain cases, additional requirements may need to be satisfied to avoid the imposition of U.S. withholding tax. See "—FATCA" below for further details. Because it will generally not be known, at the time a Non-U.S. Holder receives any distribution, whether the distribution will be paid out of our current or accumulated earnings and profits, we expect that a withholding agent will deduct and withhold U.S. tax at the applicable rate on all distributions that you receive on our common stock. If it is later determined that a distribution was not a dividend in whole or in part, you may be entitled to claim a refund of the U.S. federal income tax withheld with respect to that portion of the distribution, provided that the required information is timely furnished to the IRS. To the extent distributions exceed our current and accumulated earnings and profits, the distribution will be treated as a non-taxable return of capital to the extent of the Non-U.S. Holder's tax basis in our common stock and thereafter as capital gain from the sale or exchange of such common stock. See "—Gain on Disposition of our Common Stock" below. If the dividends are effectively connected with the Non-U.S. Holder's conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, are attributable to such Non-U.S. Holder's permanent establishment), withholding should not apply, so long as the appropriate certifications are made by such Non-U.S. Holder. See "—Effectively Connected Income" below for additional information on the U.S. federal income tax considerations applicable with respect to such effectively connected dividends. Gain on Disposition of our Common Stock Subject to the discussion below under "—Information Reporting and Backup Withholding" and "—FATCA," a Non-U.S. Holder generally will not be subject to U.S. federal income tax or withholding tax on any gain realized upon the sale or other taxable disposition of our common stock unless: • the gain is effectively connected with the conduct, by such Non-U.S. Holder, of a trade or business in the United States (and, if required by an applicable income tax treaty, is attributable to such Non-U.S. Holder's permanent establishment), in which case the gain will be subject to tax in the manner described below under "—Effectively Connected Income;" • the Non-U.S. Holder is an individual who is present in the United States for a period or periods aggregating 183 days or more during the calendar year in which the sale or disposition occurs and certain other conditions are met, in which case the gain (generally reduced by any U.S.-source capital losses) will be subject to 30% (or a lower applicable treaty rate) tax; or • we are, or have been, a "United States real property holding corporation," or USRPHC, for U.S. federal income tax purposes, at any time during the shorter of the five-year period preceding such disposition and the Non-U.S. Holder's holding period in our common stock; provided, that so long as our common stock is regularly traded on an established securities market, a Non-U.S. Holder generally would be subject to taxation with respect to a taxable disposition of our common stock, only if at any time during that five-year or shorter period it owned more than 5%, directly, or indirectly by attribution, of our common stock. S-37 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 45 of 86 Table of Contents We believe that we are not currently and will not become a USRPHC during the relevant period described in the third bullet point above. However, because the determination of whether we are a USRPHC depends on the fair market value of our U.S. real property relative to the fair market value of our other business assets, there can be no assurance that we are not, or will not become, a USRPHC in the future. If we were treated as a USRPHC during the relevant period described in the third bullet point above, any taxable gains recognized by a Non-U.S. Holder on the sale or other taxable disposition of our common stock would be subject to tax as if the gain were effectively connected with the conduct of the Non-U.S. Holder's trade or business in the United States (unless our common stock is regularly traded on an established securities market and the Non-U.S. Holder did not hold more than 5% of our common stock as described in the third bullet point above) except the branch profits tax would not apply. See "—Effectively Connected Income." In addition, if our common stock ceases to be traded on an established securities market the transferee of our common stock would generally be required to withhold tax, under U.S. federal income tax laws, in an amount equal to 10% of the amount realized by the Non-U.S. Holder on the sale or other taxable disposition of our common stock. The rules regarding U.S. real property interests are complex, and Non-U.S. Holders are urged to consult with their own tax advisors on the application of these rules based on their particular circumstances. Effectively Connected Income If a dividend received on our common stock, or gain from a sale or other taxable disposition of our common stock, is treated as effectively connected with a Non-U.S. Holder's conduct of a trade or business in the United States, such Non-U.S. Holder will generally be exempt from withholding tax on any such dividend and any gain realized on such a disposition, provided such Non-U.S. Holder complies with certain certification requirements (generally on IRS Form W-8ECI). Instead, such Non-U.S. Holder will generally be subject to U.S. federal income tax on a net income basis on any such gains or dividends in the same manner as if such holder were a U.S. person (as defined in the Code) unless an applicable income tax treaty provides otherwise. In addition, a Non-U.S. Holder that is a foreign corporation may be subject to a branch profits tax at a rate of 30% (or a lower rate provided by an applicable income tax treaty) on such holder's earnings and profits for the taxable year that are effectively connected with such holder's conduct of a trade or business in the United States (and, if required by an applicable income tax treaty, are attributable to such holder's U.S. permanent establishment), subject to adjustments. Information Reporting and Backup Withholding Generally, we must report to our Non-U.S. Holders and the IRS the amount of dividends paid during each calendar year, if any, and the amount of any tax withheld. These information reporting requirements apply even if no withholding is required (e.g., because the distributions are effectively connected with the Non-U.S. Holder's conduct of a United States trade or business, or withholding is eliminated by an applicable income tax treaty). This information also may be made available under a specific treaty or agreement with the tax authorities in the country in which the Non-U.S. Holder resides or is established. Backup withholding generally will not apply to distributions payable to a Non-U.S. Holder on shares of our common stock provided the Non-U.S. Holder furnishes to us or our paying agent the required certification as to its non-U.S. status, such as by providing a valid IRS Form W-8BEN, IRS Form W-8BEN-E, or IRS Form W-8ECI, or certain other requirements are met. Notwithstanding the foregoing, backup withholding may apply if either we or our paying agent has actual knowledge, or reason to know, that the Non-U.S. Holder is a U.S. person (as defined in the Code) that is not an exempt recipient. S-38 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 46 of 86 Table of Contents Payments on the sale or other taxable disposition of our common stock made to or through a foreign office of a foreign broker generally will not be subject to backup withholding or information reporting. However, if such broker is for U.S. federal income tax purposes: a U.S. person, a controlled foreign corporation, a foreign person 50% or more of whose gross income is effectively connected with a U.S. trade or business for a specified three-year period, or a foreign partnership with certain connections to the United States, then information reporting will be required unless the broker has in its records documentary evidence that the Non-U.S. Holder is not a U.S. person (as defined in the Code) and certain other conditions are met or the Non-U.S. Holder otherwise establishes an exemption. Backup withholding may apply to any payment that such broker is required to report if the broker has actual knowledge or reason to know that the payee is a U.S. person. Payments to or through the U.S. office of a broker will be subject to backup withholding and information reporting unless the Non-U.S. Holder certifies, under penalties of perjury, that it is not a U.S. person, or otherwise establishes an exemption. Backup withholding is not an additional tax but merely an advance payment, which may be refunded to the extent it results in an overpayment of tax and the appropriate information is timely supplied by the Non-U.S. Holder to the IRS. FATCA Pursuant to the Foreign Account Tax Compliance Act, or FATCA, foreign financial institutions (which include most foreign hedge funds, private equity funds, mutual funds, securitization vehicles and any other investment vehicles) and certain other foreign entities must comply with new information reporting rules with respect to their U.S. account holders and investors or confront a new withholding tax on U.S. source payments made to them (whether received as a beneficial owner or as an intermediary for another party). More specifically, a foreign financial institution or other foreign entity that does not comply with the FATCA reporting requirements will generally be subject to a new 30% withholding tax with respect to any "withholdable payments." For this purpose, withholdable payments generally include U.S.-source payments otherwise subject to nonresident withholding tax (e.g., U.S.-source dividends) and also include the entire gross proceeds from the sale or other disposition of any stock of U.S. issuers. The new FATCA withholding tax will apply even if the payment would otherwise not be subject to U.S. nonresident withholding tax (e.g., because it is capital gain). An inter-governmental agreement between the United States and an applicable foreign country, or future regulations or other guidance, may modify these requirements. Administrative guidance from the IRS defers this withholding obligation until January 1, 2017 for gross proceeds from dispositions of U.S. common stock. Non-U.S. Holders are urged to consult with their own tax advisors regarding the effect, if any, of the FATCA provisions to them based on their particular circumstances. S-39 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 47 of 86 Table of Contents UNDERWRITING Under the terms and subject to the conditions to be set forth in an underwriting agreement, dated as of September 11, 2014, by and among us, the selling stockholder and William Blair & Company, L.L.C., acting as representative for the underwriters named below, the selling stockholder agreed to sell to the underwriters, and the underwriters have agreed to purchase from the selling stockholder, the following respective number of shares common stock: Number of Underwriter Shares William Blair & Company, L.L.C. 2,606,026 Canaccord Genuity Inc. 629,041 Roth Capital Partners, LLC 359,451 Total 3,594,518 The underwriting agreement provides that the obligations of the underwriters are subject to certain conditions precedent such as the receipt by the underwriters of officers' certificates and legal opinions. The underwriting agreement provides that the underwriters will purchase all of the shares if any of them are purchased. We have agreed to indemnify the underwriters and certain of their controlling persons against certain liabilities, including liabilities under the Securities Act, and to contribute to payments that the underwriters may be required to make in respect of those liabilities. The underwriters are offering the shares subject to their acceptance of the shares from the selling stockholder and subject to prior sale. The underwriters reserve the right to withdraw, cancel or modify offers to the public and to reject orders in whole or in part. Option to Purchase Additional Shares The selling stockholder has granted the underwriters an option, exercisable no later than 30 calendar days after the date of the underwriting agreement, to purchase up to an aggregate of 539,177 additional shares at the public offering price, less the underwriting discounts and commissions set forth on the cover page of this prospectus supplement and as indicated below. The selling stockholder will be obligated to sell these shares to the underwriters to the extent the option is exercised. Commission and Expenses The underwriters have advised us that they propose to offer the shares of common stock directly to the public at the offering price set forth on the cover page of this prospectus supplement and to certain dealers at that price less a concession not in excess of $0.4433 per share. After the offering, the public offering price and the concession to dealers may be reduced by the underwriters. No such reduction will change the amount of proceeds to be received by the selling stockholder as set forth on the cover page of this prospectus supplement. The following table shows the per share and total underwriting discounts and commissions that the selling stockholder will pay to the underwriters and the proceeds the selling stockholder will receive before expenses. These amounts are shown assuming both no exercise and full exercise of the underwriters' option to purchase additional shares. TOTAL WITHOUT TOTAL WITH OVER-ALLOTMENT OVER-ALLOTMENT PER SHARE EXERCISE EXERCISE Public offering price $ 12.8500 $ 46,189,556 $ 53,117,981 Underwriting discounts and commissions $ 0.7388 $ 2,655,630 $ 3,053,974 Proceeds to the selling stockholder, before expenses $ 12.1112 $ 43,533,926 $ 50,064,007 S-40 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 48 of 86 Table of Contents We have also agreed to reimburse the underwriters for certain of their expenses in connection with the this offering. We estimate the total offering expenses of this offering that will be payable by us, excluding the underwriting discounts and commissions, will be approximately $350,000, which includes legal costs and various selling stockholder and other fees. No Sales of Similar Securities We have agreed with the underwriters, subject to specified exceptions, not to (i) offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise transfer or dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any securities of the Company that are substantially similar to the Securities, including but not limited to any options or warrants to purchase shares of Stock or any securities that are convertible into or exchangeable for, or that represent the right to receive, Stock, or any such substantially similar securities, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Stock, or any such other securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Stock or such other securities, in cash or otherwise. The selling stockholder, our directors and certain executive officers have agreed, subject to certain exceptions, with the underwriters not to directly or indirectly (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or otherwise dispose of or transfer any common stock or any securities convertible into or exchangeable or exercisable for common stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or file, make any demand with respect to, cause to be filed, or exercise any right with respect to any registration statement under the Securities Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the common stock, whether any such swap or transaction is to be settled by delivery of common stock or other securities, in cash or otherwise. The lock-up agreements do not prohibit our directors or executive officers from transferring shares of our common stock for bona fide gifts or other estate and tax planning purposes, subject to certain requirements, including that the transferee be subject to the same lock-up terms. The lock-up agreements do not prohibit us from issuing shares of common stock to our executive officers and directors upon exercise of options or vesting and settlement of restricted share units outstanding on the date of this prospectus supplement. These restrictions will apply through and including the date that is 90 days after the date of this prospectus supplement; provided, however, that such 90 day restricted period is subject to extension if (i) during the last 17 days of the restricted period, we issue an earnings release or material news or a material event relating to us occurs or (ii) prior to the expiration of the restricted period, we announce that we will release earnings results or become aware that material news or a material event will occur during the 16-day period beginning on the last day of the restricted period. The underwriters may at their discretion and at any time or from time to time before the termination of the 90-day restricted period, without public notice, release all or any portion of the securities subject to lock up agreements. There are no existing agreements between the underwriters and us, providing consent to the sale of shares prior to the expiration of the lock up period. NASDAQ Global Select Market Listing Our common stock is listed on NASDAQ Global Select Market under the symbol "SNAK". S-41 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 49 of 86 Table of Contents Transfer Agent and Registrar The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC. The transfer agent's address is 6201 15th Avenue, Brooklyn, New York 11219. Price Stabilization and Short Positions Until the distribution of the common stock is completed, SEC rules may limit the underwriters from bidding for and purchasing our common stock. In connection with this offering, the underwriters may engage in transactions that stabilize, maintain or otherwise make short sales of our common stock and may purchase shares of our common stock in the open market 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 this offering. The underwriters may close out any short position by purchasing shares of our common stock in the open market or exercising their option to purchase additional shares. A short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of our common stock in the open market after pricing that could adversely affect investors who purchase in this offering. The underwriters may also engage in "stabilizing bids," which are bids for or the purchase of shares of our common stock on behalf of the underwriters in the open market prior to the completion of this offering for the purpose of fixing or maintaining the price of our common stock. The underwriters' purchases to cover short sales, as well as other purchases by the underwriters for their own account, and stabilizing bids may have the effect of raising or maintaining the market price of our common stock or preventing or retarding a decline in the market price of our common stock. As a result, the price of our common stock may be higher than the price that might otherwise exist in the open market. In connection with this offering, the underwriters may also engage in passive market making transactions in our common stock on the NASDAQ Global Select Market in accordance with Rule 103 of Regulation M during a period before the commencement of offers or sales of shares of our common stock in this offering and extending through the completion of distribution. A passive market maker must display its bid at a price not in excess of the highest independent bid of that security. However, if all independent bids are lowered below the passive market maker's bid, that bid must then be lowered when specified purchase limits are exceeded. Neither we, the selling stockholder nor the underwriters make any representation or prediction as to the direction or magnitude of any effect that the transactions described above may have on the price of our common stock. In addition, neither we, the selling stockholder nor the underwriters make any representation that the underwriters will engage in these transactions or that any transaction, if commenced, will not be discontinued without notice. Affiliations The underwriters and their affiliates are full service financial institutions engaged in various activities, which may include securities trading, commercial and investment banking, financial advisory, investment management, investment research, principal investment, hedging, financing and brokerage activities. The underwriters and their affiliates have, from time to time, performed, and may in the future perform, various financial advisory and investment banking services for 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 affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers, and such investment and securities activities may involve securities and/or S-42 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 50 of 86 Table of Contents instruments of ours. The underwriters and their affiliates may also make investment recommendations and/or publish or express independent research views in respect of such securities or instruments and may at any time hold, or recommend to clients that they acquire, long and/or short position in such securities and instruments. Selling Restrictions Canada The shares of common stock may be sold only to purchasers purchasing as principal that are both "accredited investors" as defined in National Instrument 45-106 Prospectus and Registration Exemptions and "permitted clients" as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the shares of common stock must be made in accordance with an exemption from the prospectus requirements and in compliance with the registration requirements of applicable securities laws. European Economic Area In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a "Relevant Member State") an offer to the public of any shares of our common stock may not be made in that Relevant Member State, except that an offer to the public in that Relevant Member State of any shares of our common stock may be made at any time under the following exemptions under the Prospectus Directive, if they have been implemented in that Relevant Member State: (a) to any legal entity which is a qualified investor as defined in the Prospectus Directive; (b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under 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 of our common stock shall result in a requirement for the publication by us or any underwriter of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an "offer to the public" in relation to any shares of our common stock 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 any shares of our common stock to be offered so as to enable an investor to decide to purchase any shares of our common stock, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression "Prospectus Directive" means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State, and the expression "2010 PD Amending Directive" means Directive 2010/73/EU. United Kingdom Each underwriter has represented and agreed that: (a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the "FSMA")) received by S-43 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 51 of 86 Table of Contents it in connection with the issue or sale of the shares of our common stock in circumstances in which Section 21(1) of the FSMA does not apply to us; and (b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the shares of our common stock in, from or otherwise involving the United Kingdom. S-44 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 52 of 86 Table of Contents LEGAL MATTERS The validity of the shares of common stock offered hereby will be passed upon for us by DLA Piper LLP (US), Phoenix, Arizona. Latham & Watkins LLP, Chicago, Illinois is representing the underwriters in this offering. EXPERTS Our consolidated balance sheets as of December 28, 2013 and December 29, 2012, the related consolidated statements of operations, comprehensive income, stockholders' equity, and cash flows for each of the three years in the period ended December 28, 2013, and the effectiveness of Inventure Foods, Inc.'s internal control over financial reporting as of December 28, 2013 have been incorporated by reference herein in reliance upon the report of Moss Adams LLP, an independent registered public accounting firm, given upon the authority of that firm as experts in accounting and auditing. The balance sheets of Fresh Frozen Foods, LLC, as of December 31, 2012 and 2011, and the related statements of income, changes in members' equity, and cash flows for the years then ended have been incorporated by reference herein in reliance upon the report of Nichols, Cauley & Associates, LLC, an independent registered public accounting firm, given upon the authority of that firm as experts in accounting and auditing. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The rules of the SEC allow us to incorporate by reference information into this prospectus supplement. The information incorporated by reference is considered to be a part of this prospectus supplement, and information that we file later with the SEC will automatically update and supersede this information. This prospectus supplement incorporates by reference the documents listed below that we have previously filed with the SEC (excluding any document, or portion thereof, to the extent disclosure is furnished and not filed): • Our Annual Report on Form 10-K for the fiscal year ended December 28, 2013, filed with the SEC on March 13, 2014, as amended by Amendment No. 1 to our Annual Report on Form 10-K/A, filed with the SEC on March 14, 2014; • Our Quarterly Reports on Form 10-Q for the periods ended March 29, 2014, filed with the SEC on May 6, 2014, and June 28, 2014, filed with the SEC on August 5, 2014; • Our Current Report on Form 8-K/A filed with the SEC on January 24, 2014 and Current Reports on Form 8-K filed with the SEC on April 21, 2014, May 16, 2014, June 2, 2014 and September 5, 2014; • Our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 14, 2014, to the extent incorporated by reference into our Annual Report on Form 10-K for the year ended December 28, 2013; and • The description of our common stock, par value $0.01 per share, included under the caption "Description of Securities" in the Prospectus forming a part of Amendment No. 3 to the Company's Registration Statement on Form SB-2, filed with the SEC on December 5, 1996 (File No. 333-5594-LA), including exhibits, and as amended, which description has been incorporated by reference in Item 1 of our Registration Statement on Form 8-A/A, filed pursuant to Section 12 of the Exchange Act, on December 10, 1996 (File No. 001-14556). All reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this prospectus supplement and prior to the termination of this offering shall be deemed to be incorporated by reference into this prospectus supplement and to be part hereof from the date of filing of such reports and other documents. S-45 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 53 of 86 Table of Contents Notwithstanding the foregoing, we are not incorporating by reference any documents, portions of documents, exhibits or other information that is deemed to have been furnished to, rather than filed with, the SEC. Any statement contained in a document incorporated by reference into this prospectus supplement shall be deemed to be modified or superseded for the purposes of this prospectus supplement to the extent that a statement contained herein or in any subsequently filed document that is also incorporated by reference in this prospectus supplement modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus supplement. We will provide to each person, including any beneficial owners, to whom a prospectus supplement and the accompanying prospectus is delivered, upon written or oral request of any such person, a copy of the reports and documents that have been incorporated by reference into this prospectus supplement, at no cost. Any such request should be directed to: Inventure Foods, Inc. 5415 East High Street, Suite #350 Phoenix, Arizona 85054 (623) 932-6200 Attention: Secretary These documents are also available on the Investor Relations section of our website, which is located at http://www.inventurefoods.com, or as described under "Where You Can Find Additional Information" above. The reference to our website address does not constitute incorporation by reference of the information contained on our website. S-46 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 54 of 86 Table of Contents PROSPECTUS $100,000,000 Common Stock, Preferred Stock and Debt Securities, 5,000,000 Shares of Common Stock Offered by the Selling Stockholders We may from time to time offer to sell common stock, preferred stock, or debt securities, in one or more transactions, with a maximum aggregate offering price of $100,000,000. In addition, the selling stockholders to be named in a prospectus supplement, or transferees, pledgees, donees or other successors of the selling stockholders, may sell up to an aggregate of 5,000,000 shares of our common stock, from time to time under this prospectus and any prospectus supplement. We will not receive any proceeds from the sale of our common stock by the selling stockholders. This prospectus describes the general terms of these securities and the general manner in which these securities will be offered. We will provide the specific terms of these securities in supplements to this prospectus. The prospectus supplements will also describe the specific manner in which these securities will be offered and may also supplement, update or amend information contained in this document. You should read this prospectus and any applicable prospectus supplement, as well as the documents incorporated or deemed to be incorporated by reference in this prospectus, before you invest. We may offer these securities in amounts, at prices and on terms determined at the time of offering. The selling stockholders may offer the common stock in amounts, at prices and on terms determined at the time of offering. The securities may be sold directly to you, through agents, or through underwriters and dealers. If agents, underwriters or dealers are used to sell the securities, we will name them and describe their compensation in a prospectus supplement. Our common stock is listed on The NASDAQ Global Select Market under the symbol "SNAK." On August 25, 2014, the closing price of our common stock was $11.87 per share. Investing in these securities involves risks. See "Risk Factors" included in our most recent annual report on Form 10-K, any subsequent quarterly reports on Form 10-Q and current reports on Form 8-K, including any amendments thereto, incorporated herein by reference or filed by us after the date of this prospectus, that are incorporated by reference into this prospectus. You should also review carefully the risks and uncertainties described under the heading "Risk Factors" contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus. Neither the Securities and Exchange Commission (the "SEC") nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense. The date of this prospectus is August 28, 2014. Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 55 of 86 Table of Contents TABLE OF CONTENTS About This Prospectus 1 Forward-Looking Statements 2 The Company 4 Risk Factors 4 Use of Proceeds 4 Ratio of Earnings to Fixed Charges 5 Dividend Policy 5 Description of Capital Stock 6 Description of Debt Securities 8 Legal Ownership of Securities 22 Selling Stockholders 25 Plan of Distribution 25 Legal Matters 28 Experts 28 Where You Can Find More Information 28 Incorporation of Certain Documents by Reference 28 You should rely only on the information contained or incorporated by reference in this prospectus and in any supplement to this prospectus. Neither we nor the selling stockholders have authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. You should assume that the information appearing in this prospectus and any accompanying prospectus supplement is accurate as of the date on their respective covers. Our business, financial condition, results of operations and prospects may have changed since that date. i Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 56 of 86 Table of Contents ABOUT THIS PROSPECTUS This prospectus is part of a registration statement we filed with the SEC using a "shelf" registration process. Under this registration statement, we may sell up to a total of $100,000,000 of any combination of the securities described in this prospectus from time to time in one or more offerings and the selling stockholders may, from time to time, sell up to an aggregate of 5,000,000 shares of common stock in one or more offerings. The types of securities that we may offer and sell from time to time pursuant to this prospectus are: • common stock; • preferred stock; and • debt securities. In addition, the selling stockholders may offer and sell shares of our common stock pursuant to this prospectus. This prospectus provides you with a general description of the securities we or the selling stockholders may offer. Specific information about the terms of an offering will be included in a prospectus or a prospectus supplement relating to each offering of securities. The prospectus supplement may also add, update or change information included in this prospectus. You should read both this prospectus and any applicable prospectus supplement, together with additional information described below under the caption "Where You Can Find More Information." We have not authorized anyone to give you any additional information different from that contained in this prospectus, any accompanying prospectus supplement or any free writing prospectus provided in connection with an offering. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not making an offer to sell these securities in any jurisdiction where the offer is not permitted. The information contained in this prospectus is accurate only as of the date on the front cover of this prospectus, regardless of when this prospectus is delivered or when any sale of our securities occurs. Our business, financial condition, results of operations and prospects may have changed since that date. This prospectus is not an offer to sell or solicitation of an offer to buy our securities in any circumstances under which or jurisdiction in which the offer or solicitation is unlawful. Unless the context otherwise indicates, the terms "Inventure," "Company," "we," "us," and "our" as used in this prospectus refer to Inventure Foods, Inc. and its subsidiaries. The phrase "this prospectus" refers to this prospectus and any applicable prospectus supplement, unless the context otherwise requires. 1 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 57 of 86 Table of Contents FORWARD-LOOKING STATEMENTS Certain statements contained or incorporated by reference in this prospectus may constitute forward-looking statements, which involve known and unknown risks, uncertainties and other factors, which may cause actual results, performance or achievements of our Company to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. We use the words "may," "will," "believe," "expect," "anticipate," "intend," "future," "plan," "estimate," "potential" and other similar expressions to identify forward-looking statements. These forward-looking statements are subject to a number of risks, uncertainties and assumptions that could cause actual results to differ materially from those in the forward looking statements. Such risks, uncertainties and assumptions are described in the "Risk Factors" section included in Amendment No. 1 to our Annual Report on Form 10-K for the year ended December 28, 2013, and subsequently filed Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any amendments to those filings, and include, among other things: • the market price of our common stock has been and may continue to be volatile and you may lose all or a part of your investment in our securities; • our acquisition strategy may not be successful or we may not be successful in integrating acquisitions; • changes in the legal and regulatory environment could limit our business activities, increase our operating costs, reduce demand for our products or result in litigation; • our operations and financial condition may be negatively impacted by general economic conditions or economic downturns; • we may not be successful in implementing our business strategy or expanding our business and, even if successful, may incur substantial costs; • we may require additional financing that may not be available on terms attractive to us and, even if financing is available, it may have dilutive and other adverse effects on our stockholders; • we are required to maintain certain ongoing financial covenants under our credit facility, and, if we fail to meet those covenants or otherwise default, our lender may accelerate the payment of such indebtedness; • we may incur losses and costs as a result of product recalls or liability claims; • concerns with the safety and quality of our food products and ingredients could negatively impact our brand image and profitability; • a significant portion of our revenues is derived from one product and one customer, the loss of which could have a material adverse effect on our business, financial condition and results of operation; • we depend on a license agreement for the right to sell our T.G.I. Friday's® branded products; our Jamba® branded products; our Seattle's Best Coffee® branded products; our Nathan's Famous branded projects; and our Vidalia branded product; • our business may be adversely affected by an oversupply of snack and frozen products at the wholesale and retail levels and seasonal fluctuations; • we may incur substantial costs to market our products and may not be able to successfully respond to shifting customer preferences; • the loss of certain key employees and the inability to successfully compete in our highly competitive industry could adversely affect our business; 2 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 58 of 86 Table of Contents • the unavailability of purchased berries and vegetables at reasonable prices could adversely affect our operations; • we do not own the patents for the technology we use to manufacture certain T.G.I. Friday's®, Boulder Canyon® and Tato Skins® brand products, as well as certain private label branded products; • we are subject to risks that affect the agricultural industry generally, including changes in weather conditions and natural disasters; • a disruption in the performance of our suppliers could have an adverse effect on our operations; • we may not be able to adequately protect our intellectual property and other proprietary rights that are material to our business; • a significant amount of our common stock is controlled by a small number of stockholders whose interests may conflict with those of our other stockholders; • provisions of Delaware law and our charter and bylaws may delay or prevent transactions that would benefit shareholders; and • the issuance of any preferred stock as authorized by our Certificate of Incorporation could adversely affect the rights of holders of common stock. You should not place undue reliance on these forward-looking statements, which speak only as of the date of this prospectus. These forward-looking statements are based on our current expectations and are subject to a number of risks and uncertainties, including those set forth above. Although we believe that the expectations reflected in these forward-looking statements are reasonable, our actual results could differ materially from those expressed in these forward-looking statements, and any events anticipated in the forward-looking statements may not actually occur. Except as required by law, we undertake no duty to update any forward-looking statements after the date of this prospectus to conform those statements to actual results or to reflect the occurrence of unanticipated events. We qualify all forward-looking statements contained or incorporated by reference in this prospectus by the foregoing cautionary statements. 3 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 59 of 86 Table of Contents THE COMPANY We are a leading marketer and manufacturer of healthy/natural and indulgent specialty snack food brands with headquarters in Phoenix, Arizona and plants in Arizona, Georgia, Indiana, Oregon and Washington. We specialize in two primary product categories: (i) healthy/natural food products and (ii) indulgent specialty snack products. Our products in the healthy/natural food category include Rader Farms® frozen berries, Boulder Canyon® Natural Foods brand kettle cooked potato chips, Willamette Valley Fruit Company™ frozen fruit and vegetables, Fresh Frozen™ frozen vegetables and fruit, Jamba® branded blend-and-serve smoothie kits under license from Jamba Juice Company, Seattle's Best Coffee® Frozen Coffee Blends branded blend-and-serve frozen coffee beverage under license from Seattle's Best Coffee, LLC and private label frozen fruit and healthy/natural snacks. Our products in the indulgent specialty snack food category include T.G.I. Friday's® brand snacks under license from T.G.I. Friday's Inc., Nathan's Famous® brand snack products under license from Nathan's Famous Corporation, Vidalia® brand snack products under license from Vidalia Brands, Inc., Poore Brothers® kettle cooked potato chips, Bob's Texas Style® kettle cooked chips, and Tato Skins® brand potato snacks. We also manufacture private label snacks for certain grocery retail chains and co-pack products for other snack and cereal manufacturers. Our common stock is traded on The NASDAQ Global Select Market under the symbol "SNAK." Our principal executive office is located at 5415 East High Street, Suite 350, Phoenix, Arizona 85054 and the phone number for that office is (623) 932-6200. We maintain a website at www.inventurefoods.com, on which we will post free of charge our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and any amendments to these reports under the heading "Investors" as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. We also routinely post important information about the Company on our website under the heading "Investors." We do not incorporate the information on our website into this prospectus and you should not consider any information on, or that can be accessed through, our website as part of this prospectus. You may read and copy any materials we file with the SEC at the Securities and Exchange Commission Public Reference Room at 100 F Street NE Washington, DC 20549. The SEC also maintains a website that contains our reports and other information at www.sec.gov. RISK FACTORS Before you invest in any of our securities, in addition to the other information in this prospectus and the applicable prospectus supplement, you should carefully consider the risk factors under the heading "Risk Factors" in Amendment No. 1 to our Annual Report on Form 10-K for the year ended December 28, 2013, filed with the SEC on March 14, 2014, which are incorporated by reference into this prospectus and the applicable prospectus supplement, as the same may be updated from time to time by our future filings under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Our business, financial position, results of operations, liquidity or prospects could be adversely affected by any of these risks. USE OF PROCEEDS We intend to use the net proceeds we receive from the sale of securities by us as set forth in the applicable prospectus supplement. Unless otherwise specified in the applicable prospectus supplement, we will not receive any proceeds from the sale of securities by selling stockholders. 4 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 60 of 86 Table of Contents RATIO OF EARNINGS TO FIXED CHARGES Our consolidated ratio of earnings to fixed charges for each of the periods indicated are as follows: (in thousands except ratio data) Fiscal Year Ended Six-Months Ended June 28, December 28, December 29, December 31, December 25, December 26, 2014 2013 2012 2011 2010 2009 Earnings(1): Income before taxes $ 6,343 $ 9,978 $ 11,681 $ 4,325 $ 6,476 $ 6,197 Fixed charges 1,254 872 764 885 881 879 Amortization of capitalized interest — — — — — — Distributed income of equity investees — — — — — — Interest capitalized — — — — — — Preference security dividend requirements of consolidated subsidiaries — — — — — — Noncontrolling interest in pre-tax income of subsidiaries that have not incurred fixed charges — — — — — — Total Earnings: $ 7,597 $ 10,850 $ 12,445 $ 5,210 $ 7,357 $ 7,076 Fixed Charges(2): Interest expensed and capitalized $ 1,187 $ 734 $ 740 $ 859 $ 861 $ 859 Amortized premiums, discounts and capitalized expenses related to indebtedness 67 138 24 26 20 20 Interest portion of rental expense — — — — — — Total fixed charges: $ 1,254 $ 872 $ 764 $ 885 $ 881 $ 879 Ratio of earnings to fixed charges 6.06 12.44 16.29 5.89 8.35 8.05 (1) "Earnings" is calculated by adding (a) pre-tax income from continuing operations; (b) fixed charges (excluding capitalized interest); and (c) amortization of capitalized interest. (2) "Fixed Charges" means the sum of the following: (a) interest expensed and capitalized (excluding interest expense related to uncertain tax positions), (b) amortized premiums, discounts and capitalized expenses related to indebtedness, and (c) an estimate of the interest within rental expense. For the periods indicated above, we had no outstanding shares of preferred stock with required dividend payments. Therefore, the ratios of earnings to fixed charges and preferred stock dividends are identical to the ratios presented in the table above. DIVIDEND POLICY We have never declared or paid dividends on our common stock and we do not anticipate paying any dividends on our common stock in the foreseeable future. We will pay dividends on our common stock only if and when declared by our board of directors. Our board's ability to declare a dividend is subject to limits imposed by our debt agreements and Delaware corporate law. In determining whether to declare dividends, the board will consider these limits, our financial condition, results of operations, working capital requirements, future prospects and other factors it considers relevant. 5 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 61 of 86 Table of Contents DESCRIPTION OF CAPITAL STOCK Our authorized share capital consists of 50,000,000 shares of common stock, $0.01 par value, and 50,000 shares of preferred stock, $100.00 par value. As of August 1, 2014, there were 19,528,802 shares of common stock outstanding and no shares of preferred stock issued and outstanding. All outstanding shares of common stock are fully paid and non-assessable. The following summary of our capital stock is qualified in its entirety by the description of our common stock contained in Amendment No. 3 to our Registration Statement on Form SB-2, filed with the SEC on December 5, 1996 (File No. 333-5594-LA), as amended, which description has been incorporated by reference in Item 1 of our Registration Statement on Form 8-A/A, filed with the SEC on December 10, 1996 (File No. 001-14556), including all amendments or reports filed for the purpose of updating such descriptions, and to our certificate of incorporation and bylaws, as amended from time to time, all of which are incorporated by reference as exhibits into the registration statement of which this prospectus is a part. See "Where You Can Find More Information." Common Stock All shares of our common stock are equal with respect to voting, liquidation, dividend and other rights. Owners of common stock are entitled to one vote for each share owned at any meeting of the stockholders. Holders of common stock are entitled to receive such dividends as may be declared by our board of directors out of funds legally available therefor; and upon liquidation, are entitled to participate pro rata in a distribution of assets available for such a distribution to stockholders, subject to the prior claims of holders of any outstanding preferred stock. Our common stock does not have cumulative voting rights. We have not paid cash dividends with respect to our common stock in the past and do not anticipate paying any such dividends in the foreseeable future. None of our outstanding shares of common stock are liable to calls or assessment by us. Preferred Stock We may issue shares of our preferred stock from time to time, in one or more series. Under our certificate of incorporation, we are authorized to issue 50,000 shares of preferred stock, par value $100.00 per share. Our preferred stock is entitled to preference over our common stock with respect to the distribution of our assets in the event of liquidation, dissolution, or winding up of the company. Our preferred stock may be issued from time to time and our board of directors shall have the right to fix the rights, preferences, privileges, qualifications and restrictions granted to or imposed upon the preferred stock. As of August 1, 2014, we do not have any outstanding shares of preferred stock. The issuance of preferred stock could adversely affect the voting power of holders of common stock and reduce the likelihood that common stockholders will receive dividend payments and payments upon liquidation. The issuance could have the effect of decreasing the market price of our common stock. The issuance of preferred stock also could have the effect of delaying, deterring or preventing a change in control of our company. Our board of directors will fix the rights, preferences, privileges, qualifications and restrictions of the preferred stock of each series that we issue in the certificate of designation relating to that series. We will incorporate by reference into the registration statement of which this prospectus is a part the form of any certificate of designation that describes the terms of the series of preferred stock to be offered under this prospectus. This description of the preferred stock in the certificate of designation and any applicable prospectus supplement will include: • the title and stated value; • the number of shares being offered; • the liquidation preference per share; 6 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 62 of 86 Table of Contents • the purchase price per share; • the currency for which the shares may be purchased; • the dividend rate per share, dividend period and payment dates and method of calculation for dividends; • whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; • our right, if any, to defer payment of dividends and the maximum length of any such deferral period; • the procedures for any auction and remarketing, if any; • the provisions for a sinking fund, if any; • the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase rights; • any listing of the preferred stock on any securities exchange or market; • whether the preferred stock will be convertible into our common stock or other securities of ours, and, if applicable, the conversion period, the conversion price, or how it will be calculated, and under what circumstances it may be adjusted; • whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange period, the exchange price, or how it will be calculated, and under what circumstances it may be adjusted; • voting rights, if any, of the preferred stock; • preemption rights, if any; • restrictions on transfer, sale or other assignment, if any; • a discussion of any material or special United States federal income tax considerations applicable to the preferred stock; • the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; • any limitations on issuances of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and • any other specific terms, rights, preferences, privileges, qualifications or restrictions of the preferred stock. When we issue shares of preferred stock, the shares will be fully paid and non-assessable. Certain Anti-Takeover Effects of Delaware Law and Provisions of Our Certificate of Incorporation and Bylaws Our certificate of incorporation and bylaws and the Delaware General Corporation Law contain provisions that may have the effect of delaying, deferring or preventing a change of control of the Company. These provisions, among other things: • authorize our board of directors to set the terms of preferred stock; 7 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 63 of 86 Table of Contents • restrict our ability to engage in transactions with stockholders with 15% or more of outstanding voting stock; and • authorize the calling of special meetings of stockholders only by the board of directors, not by the stockholders. Because of these provisions, persons considering unsolicited tender offers or other unilateral takeover proposals may be more likely to negotiate with our board of directors rather than pursue non-negotiated takeover attempts. As a result, these provisions may make it more difficult for our stockholders to benefit from transactions that are opposed by an incumbent board of directors. DESCRIPTION OF DEBT SECURITIES General We may issue senior debt securities and/or subordinated debt securities, which in each case will be unsecured, direct, general obligations of Inventure Foods, Inc. The senior debt securities will rank equally with all our other unsecured and unsubordinated debt. The subordinated debt securities will be subordinate and junior in priority of payment to our senior debt securities, as described below under "Ranking—Subordination of Subordinated Debt Securities" and in the prospectus supplement applicable to any subordinated debt securities that we may offer. For purposes of the descriptions in this section, we may refer to the senior debt securities and the subordinated debt securities collectively as the "debt securities." The debt securities will be effectively subordinated to the creditors of our subsidiaries. We will issue senior debt securities under a senior debt indenture and subordinated debt securities under a separate subordinated debt indenture. Provisions relating to the issuance of debt securities may also be set forth in a supplemental indenture to either of the indentures. For purposes of the descriptions in this section, we may refer to the senior debt indenture and the subordinated debt indenture and any related supplemental indentures, as "an indenture" or, collectively, as "the indentures." The indentures will be qualified under and governed by the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). Each indenture will be between us and a trustee that meets the requirements of the Trust Indenture Act. We expect that each indenture will provide that there may be more than one trustee under that indenture, each with respect to one or more series of debt securities. Any trustee under an indenture may resign or be removed with respect to one or more series of debt securities and, in that event, we may appoint a successor trustee. Except as otherwise provided in the indenture or supplemental indenture, any action permitted to be taken by a trustee may be taken by that trustee only with respect to the one or more series of debt securities for which it is trustee under the applicable indenture. The descriptions in this section relating to the debt securities and the indentures are summaries of their provisions. The summaries are not complete and are qualified in their entirety by reference to the actual indentures and debt securities and the further descriptions in the applicable prospectus supplement. A form of the senior debt indenture and a form of the subordinated debt indenture under which we may issue our senior debt securities and subordinated debt securities, respectively, have been filed with the SEC as exhibits to the registration statement that includes this prospectus and will be available as described under the heading "Where You Can Find More Information" below. Whenever we refer in this prospectus or in any prospectus supplement to particular sections or defined terms of an indenture, those sections or defined terms are incorporated by reference in this prospectus or in the prospectus supplement, as applicable. You should refer to the provisions of the indentures for provisions that may be important to you. 8 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 64 of 86 Table of Contents The terms and conditions described in this section are terms and conditions that apply generally to the debt securities. The particular terms of any series of debt securities will be summarized in the applicable prospectus supplement. Those terms may differ from the terms summarized below. Except as set forth in the applicable indenture or in a supplemental indenture and described in an applicable prospectus supplement, the indentures do not limit the amount of debt securities we may issue under the indentures. We are not required to issue all of the debt securities of one series at the same time and, unless otherwise provided in the applicable indenture or supplemental indenture and described in the applicable prospectus supplement, we may, from time to time, reopen any series and issue additional debt securities under that series without the consent of the holders of the outstanding debt securities of that series. Additional notes issued in this manner will have the same terms and conditions as the outstanding debt securities of that series, except for their original issue date and issue price, and will be consolidated with, and form a single series with, the previously outstanding debt securities of that series. Terms of Debt Securities to be Included in the Prospectus Supplement The prospectus supplement relating to any series of debt securities that we may offer will set forth the price or prices at which the debt securities will be offered, and will contain the specific terms of the debt securities of that series. These terms may include, without limitation, the following: • the title of the debt securities and whether they are senior debt securities or subordinated debt securities; • the amount of debt securities issued and any limit on the amount that may be issued; • the price(s) (expressed as a percentage of the principal amount) at which the debt securities will be issued; • if other than the principal amount of those debt securities, the portion of the principal amount payable upon declaration of acceleration of the maturity of those debt securities; • the maturity date or dates, or the method for determining the maturity date or dates, on which the principal of the debt securities will be payable and any rights of extension; • the rate or rates, which may be fixed or variable, or the method of determining the rate or rates at which the debt securities will bear interest, if any; • the date or dates from which any interest will accrue and the date or dates on which any interest will be payable, the regular related record dates and whether we may elect to extend or defer such interest payment dates; • the place or places where payments will be payable, where the debt securities may be surrendered for registration of transfer or exchange and where notices or demands to or upon us may be served; • the period or periods within which, the price or prices at which and the other terms and conditions upon which the debt securities may be redeemed, in whole or in part, at our option, if we are to have such an option; • our obligation, if any, to redeem, repay or purchase the debt securities pursuant to any sinking fund or analogous provision or at the option of a holder of the debt securities, and the period or periods within which, or the date and dates on which, the price or prices at which and the other terms and conditions upon which the debt securities will be redeemed, repaid or purchased, in whole or in part, pursuant to that obligation; 9 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 65 of 86 Table of Contents • the currency or currencies in which the debt securities may be purchased, are denominated and are payable, which may be a foreign currency or units of two or more foreign currencies or a composite currency or currencies, and the related terms and conditions, including whether we or the holders of any such debt securities may elect to receive payments in respect of such debt securities in a currency or currency unit other than that in which such debt securities are stated to be payable; • whether the amount of payments of principal of and premium, if any, or interest, if any, on the debt securities may be determined with reference to an index, formula or other method, which index, formula or method may, but need not be, based on a currency, currencies, currency unit or units or composite currency or currencies or with reference to changes in prices of particular securities or commodities, and the manner in which the amounts are to be determined; • any additions to, modifications of or deletions from the terms of the debt securities with respect to events of default, amendments, merger, consolidation and sale or covenants set forth in the applicable indenture; • whether the debt securities will be issued in certificated or book-entry form; • whether the debt securities will be in registered or bearer form or both and, if in registered form, their denominations, if other than $1,000 and any integral multiple thereof, and, if in bearer form, their denominations, if other than $5,000, and the related terms and conditions; • if the debt securities will be issuable only in global form, the depository or its nominee with respect to the debt securities and the circumstances under which the global security may be registered for transfer or exchange in the name of a person other than the depository or its nominee; • the applicability, if any, of the defeasance and covenant defeasance provisions of the indenture and any additional or different terms on which the series of debt securities may be defeased; • whether the debt securities can be converted into or exchanged for our other securities, and the related terms and conditions; • in the case of subordinated debt securities, provisions relating to any modification of the subordination provisions described elsewhere in this prospectus; • any trustee, depositary, authenticating agent, paying agent, transfer agent, registrar or other agent with respect to the debt securities; and • any other terms of the debt securities. Unless otherwise specified in the applicable prospectus supplement, the debt securities will not be listed on any securities exchange. We may offer and sell our debt securities at a substantial discount below their stated principal amount. These debt securities may be original issue discount securities, which means that less than the entire principal amount of the original issue discount securities will be payable upon declaration of acceleration of their maturity. Special federal income tax, accounting and other considerations applicable to original issue discount securities will be described in the applicable prospectus supplement. We may issue debt securities with a fixed interest rate or a floating interest rate. Any material federal income tax considerations applicable to any discounted debt securities or to debt securities issued at par that are treated as having been issued at a discount for federal income tax purposes will be described in the applicable prospectus supplement. 10 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 66 of 86 Table of Contents Except as set forth in the applicable indenture or in a supplemental indenture, the debt securities will not contain any provisions that would limit our ability to incur indebtedness or that would afford holders of debt securities protection in the event of a highly leveraged or similar transaction involving us. The debt securities may contain provisions that would afford debt security holders protection in the event of a change of control. You should refer to the applicable prospectus supplement for information with respect to any deletions from, modifications of or additions to the events of default or covenants that are described below, including any addition of a covenant or other provision providing event risk or similar protection. For purposes of the descriptions in this section: • "subsidiary" means a corporation or a partnership or a limited liability company a majority of the outstanding voting stock or partnership or membership interests, as the case may be, of which is owned or controlled, directly or indirectly, by us or by one or more of our other subsidiaries. For the purposes of this definition, "voting stock" means stock having voting power for the election of directors, or trustees, as the case may be, whether at all times or only so long as no senior class of stock has voting power by reason of any contingency; and • "significant subsidiary" means any of our subsidiaries that is a "significant subsidiary," within the meaning of Regulation S-X promulgated by the SEC under the Securities Act of 1933, as amended (the "Securities Act"). Ranking Senior Debt Securities Payment of the principal of and premium, if any, and interest on debt securities we issue under the senior debt indenture will rank equally with all of our unsecured and unsubordinated debt. Subordination of Subordinated Debt Securities To the extent provided in the subordinated debt indenture and any supplemental indenture, and as described in the prospectus supplement describing the applicable series of subordinated debt securities, the payment of the principal of and premium, if any, and interest on any subordinated debt securities, including amounts payable on any redemption or repurchase, will be subordinated in right of payment and junior to senior debt, which is defined below. If there is a distribution to our creditors in a liquidation or dissolution of us, or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to us, the holders of senior debt will first be entitled to receive payment in full of all amounts due on the senior debt (or provision shall be made for such payment in cash) before any payments may be made on the subordinated debt securities. Because of this subordination, our general creditors may recover more, ratably, than holders of subordinated debt securities in the event of a distribution of assets upon insolvency. The supplemental indenture will set forth the terms and conditions under which, if any, we will not be permitted to pay principal, premium, if any, or interest on the related subordinated debt securities upon the occurrence of an event of default or other circumstances arising under or with respect to senior debt. The indentures will place no limitation on the amount of senior debt that we may incur. We expect to incur from time to time additional indebtedness constituting senior debt, which may include indebtedness that is senior to the subordinated debt securities but subordinate to our other obligations. "Senior debt" means the principal of, and premium, if any, and interest, including interest accruing after the commencement of any bankruptcy proceeding relating to us, on, or substantially similar 11 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 67 of 86 Table of Contents payments we will make in respect of the following categories of debt, whether that debt is outstanding at the date of execution of the applicable indenture or thereafter incurred, created or assumed: • our other indebtedness evidenced by notes, debentures, or bonds or other securities issued under the provisions of any indenture, fiscal agency agreement, note purchase agreement or other agreement, including the senior debt securities that may be offered by means of this prospectus and one or more prospectus supplements; • our indebtedness for money borrowed or represented by purchase-money obligations, as defined below; • our obligations as lessee under leases of property either made as part of a sale and leaseback transaction to which we are a party or otherwise; • indebtedness, obligations and liabilities of others in respect of which we are liable contingently or otherwise to pay or advance money or property or as guarantor, endorser or otherwise or which we have agreed to purchase or otherwise acquire and indebtedness of partnerships and joint ventures which is included in the Company's consolidated financial statements; • reimbursement and other obligations relating to letters of credit, bankers' acceptances and similar obligations; • obligations under various hedging arrangements and agreements, including interest rate and currency hedging agreements; • reimbursement and other obligations relating to letters of credit, bankers' acceptances and similar obligations; • all our obligations issued or assumed as the deferred purchase price of property or services, but excluding trade accounts payable and accrued liabilities arising in the ordinary course of business; and • deferrals, renewals or extensions of any of the indebtedness or obligations described above. However, "senior debt" excludes: • any indebtedness, obligation or liability referred to above as to which, in the instrument creating or evidencing that indebtedness, obligation or liability, it is expressly provided that the indebtedness, obligation or liability is not senior in right of payment to the subordinated debt securities or ranks equally with the subordinated debt securities; • any indebtedness, obligation or liability which is subordinated to our indebtedness to substantially the same extent as or to a greater extent than the subordinated debt securities are subordinated, and • unless expressly provided in the terms thereof, any of our other indebtedness to its subsidiaries. As used above, the term "purchase money obligations" means indebtedness, obligations or guarantees evidenced by a note, debenture, bond or other instrument, whether or not secured by a lien or other security interest, and any deferred obligation for the payment of the purchase price of property but excluding indebtedness or obligations for which recourse is limited to the property purchased, issued or assumed as all or a part of the consideration for the acquisition of property or services, whether by purchase, merger, consolidation or otherwise, but does not include any trade accounts payable. There will not be any restrictions in the subordinated indenture relating to subordinated debt securities upon the creation of additional senior debt. The applicable prospectus supplement may further describe the provisions, if any, applicable to the subordination of the subordinated debt securities of a particular series. The applicable prospectus 12 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 68 of 86 Table of Contents supplement or the information incorporated by reference in the applicable prospectus supplement or in this prospectus will describe as of a recent date the approximate amount of our senior debt outstanding as to which the subordinated debt securities of that series will be subordinated. Structural Subordination The debt securities will be structurally subordinated to all indebtedness and other liabilities of our subsidiaries, since our right to receive any assets of our subsidiaries upon their liquidation or reorganization, and the consequent right of the holders of the debt securities to participate in those assets, will be effectively subordinated to the claims of that subsidiary's creditors. If we are recognized as a creditor of that subsidiary, our claims would still be subordinate to any security interest in the assets of that subsidiary and any indebtedness of that subsidiary senior to that held by us. Conversion or Exchange of Debt Securities The applicable prospectus supplement will set forth the terms, if any, on which a series of debt securities may be converted into or exchanged for our other securities. These terms will include whether conversion or exchange is mandatory, or is at our option or at the option of the holder. We will also describe in the applicable prospectus supplement how we will calculate the number of securities that holders of debt securities would receive if they were to convert or exchange their debt securities, the conversion price and other terms related to conversion and any anti-dilution protections. Redemption of Securities We may redeem the debt securities at any time, in whole or in part, at the prescribed redemption price, at the times and on the terms described in the applicable prospectus supplement. From and after notice has been given as provided in the indentures, if we have made available funds for the redemption of any debt securities called for redemption on the applicable redemption date, the debt securities will cease to bear interest on the date fixed for the redemption specified in the notice, and the only right of the holders of the debt securities will be to receive payment of the redemption price. Notice of any optional redemption by us of any debt securities is required to be given to holders at their addresses, as shown in the security register. The notice of redemption will be required to specify, among other items, the redemption price and the principal amount of the debt securities held by the holder to be redeemed. If we elect to redeem debt securities, we will be required to notify the trustee of the aggregate principal amount of debt securities to be redeemed and the redemption date. If fewer than all the debt securities are to be redeemed, the trustee is required to select the debt securities to be redeemed equally, by lot or in a manner it deems fair and appropriate. Denomination, Interest, Registration and Transfer Unless otherwise specified in the applicable prospectus supplement, we will issue the debt securities (i) in denominations of $1,000 or integral multiples of $1,000 if the debt securities are in registered form, and (ii) in denominations of $5,000 if the debt securities are in bearer form. Unless otherwise specified in the applicable prospectus supplement, we will pay the principal of, and applicable premium, if any, and interest on any series of debt securities at the corporate trust office of the trustee, the address of which will be stated in the applicable prospectus supplement. At our option, we may pay interest by check mailed to the address of the person entitled to the interest payment as it appears in the register for the applicable debt securities or by wire transfer of funds to that person at an account maintained within the United States. 13 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 69 of 86 Table of Contents Any defaulted interest, which means interest not punctually paid or duly provided for on any interest payment date with respect to a debt security, will immediately cease to be payable to the registered holder on the applicable regular record date by virtue of his having been the registered holder on such date. We may pay defaulted interest either to the person in whose name the debt security is registered at the close of business on a special record date for the payment of the defaulted interest to be fixed by the trustee, notice of which is to be given to the holder of the debt security not less than ten days before the special record date, or at any time in any other lawful manner, all as more completely described in the applicable indenture or supplemental indenture. Subject to limitations imposed upon debt securities issued in book-entry form, the holder may exchange debt securities of any series for other debt securities of the same series and of a like aggregate principal amount and tenor of different authorized denominations upon surrender of the debt securities at the corporate trust office of the applicable trustee. In addition, subject to limitations imposed upon debt securities issued in book-entry form, the holder may surrender debt securities of any series for registration of transfer or exchange at the corporate trust office of the applicable trustee. Every debt security surrendered for registration of transfer or exchange must be duly endorsed or accompanied by a written instrument of transfer. No service charge will be imposed for any registration of transfer or exchange of any debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with any registration of transfer or exchange of any debt securities. If the applicable prospectus supplement refers to any transfer agent, in addition to the applicable trustee, initially designated by us with respect to any series of debt securities, we may at any time rescind the designation of that transfer agent or approve a change in the location through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for that series. We may at any time designate additional transfer agents with respect to any series of debt securities. If we redeem the debt securities of any series, neither we nor any trustee will be required to: • issue, register the transfer of, or exchange debt securities of any series during a period beginning at the opening of business 15 days before any selection of debt securities of that series to be redeemed and ending at the close of business on the day of mailing of the relevant notice of redemption; • register the transfer of, or exchange any debt security, or portion of any debt security, called for redemption, except the unredeemed portion of any debt security being redeemed in part; or • issue, register the transfer of, or exchange any debt security that has been surrendered for repayment at the option of the holder, except the portion, if any, of the debt security not to be repaid. Global Securities We may issue the debt securities of a series in whole or in part in the form of one or more global securities to be deposited with, or on behalf of, a depository or with a nominee for a depository identified in the applicable prospectus supplement relating to that series. We may issue global securities in either registered or bearer form and in either temporary or permanent form. The specific terms of the depository arrangement with respect to a series of debt securities will be described in the prospectus supplement relating to that series. Our obligations with respect to the debt securities, as well as the obligations of the applicable trustee, run only to persons who are registered holders of debt securities. For example, once we make payment to the registered holder, we have no further responsibility for that payment even if the recipient is legally required to pass the payment along to an individual investor but fails to do so. As an indirect holder, an investor's rights relating to a global security will be governed by the account rules of 14 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 70 of 86 Table of Contents the investor's financial institution and of the depositary, as well as general laws relating to transfers of debt securities. An investor should be aware that when debt securities are issued in the form of global securities: • the investor cannot have debt securities registered in his or her own name; • the investor cannot receive physical certificates for his or her debt securities; • the investor must look to his or her bank or brokerage firm for payments on the debt securities and protection of his or her legal rights relating to the debt securities; • the investor may not be able to sell interests in the debt securities to some insurance or other institutions that are required by law to hold the physical certificates of debt that they own; • the depositary's policies will govern payments, transfers, exchanges and other matters relating to the investor's interest in the global security; and • the depositary will usually require that interests in a global security be purchased or sold within its system using same-day funds. The applicable prospectus supplement for a series of debt securities will list the special situations, if any, in which a global security will terminate and interests in the global security will be exchanged for physical certificates representing debt securities. After that exchange, the investor may choose whether to hold debt securities directly or indirectly through an account at the investor's bank or brokerage firm. In that event, investors must consult their banks or brokers to find out how to have their interests in debt securities transferred to their own names so that they may become direct holders. When a global security terminates, the depositary, and not us or one of the trustees, is responsible for deciding the names of the institutions that will be the initial direct holders. Merger, Consolidation or Sale of Assets We will not be permitted to consolidate with or merge into any other entity, or sell, lease, transfer or convey all or substantially all of our properties and assets, either in one transaction or a series of transactions, to any other entity and no other entity will consolidate with or merge into us, or sell, lease, transfer or convey all or substantially all of its properties and assets to us unless: (1) either: • we are the continuing entity, or • the successor entity, if other than us, formed by or resulting from any consolidation or merger, or which has received the transfer of our assets, expressly assumes payment of the principal of, and premium, if any, and interest on all of the outstanding debt securities and the due and punctual performance and observance of all of the covenants and conditions contained in the indentures, and (2) immediately after giving effect to the transaction and treating any indebtedness that becomes our obligation or the obligation of any of our subsidiaries as a result of that transaction as having been incurred by us or our subsidiary at the time of the transaction, no event of default under the indentures or supplemental indentures, and no event which, after notice or the lapse of time, or both, would become an event of default, will have occurred and be continuing; provided, that the conditions described in (1) and (2) above will not apply to the direct or indirect transfer of the stock, assets or liabilities of any of our subsidiaries to another of our direct or indirect subsidiaries. 15 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 71 of 86 Table of Contents Except as provided in this prospectus or as may otherwise be provided in the applicable prospectus supplement, the indenture and the terms of the debt securities will not contain any event risks or similar covenants that are intended to afford protection to holders of any debt securities in the event of a merger, a highly leveraged transaction or other significant corporate event involving us or our subsidiaries, whether or not resulting in a change of control, which may adversely affect holders of the debt securities. Additional Covenants and/or Modifications to the Covenant Described Above Any additional covenants and/or modifications to the covenants described above with respect to any series of debt securities, including any covenants relating to limitations on incurrence of indebtedness or other financial covenants, will be set forth in the applicable indenture or supplemental indenture and described in the applicable prospectus supplement relating to that series of debt securities. Unless the applicable prospectus supplement indicates otherwise, the subordinated debt indenture does not contain any other provision which restricts us from, among other things: • incurring or becoming liable on any secured or unsecured senior indebtedness or general obligations; or • paying dividends or making other distributions on our capital stock; or • purchasing or redeeming our capital stock; or • creating any liens on our property for any purpose. Events of Default, Waiver and Notice Events of Default The events of default with respect to any series of debt securities issued under it, subject to any modifications or deletions provided in any supplemental indenture with respect to any specific series of debt securities, include the following events: • failure to pay any installment of interest or any additional amounts payable on any debt security of the series for 30 days; • failure to pay principal of, or premium, if any, on, any debt security of the series when due, whether at maturity, upon redemption, by declaration or acceleration of maturity or otherwise; • default in making any sinking fund payment (if any) when due, for any debt security of the series; • default in the performance or breach of any of our other covenants or warranties contained in the applicable indenture, other than a covenant added to the indenture solely for the benefit of any other series of debt securities issued under that indenture, continued for 90 days after written notice as provided in the applicable indenture; • specific events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of us or any significant subsidiary or either of our property; and • any other event of default provided with respect to a particular series of debt securities. If an event of default under any indenture with respect to debt securities of any series at the time outstanding occurs and is continuing, then in every case other than in the case of specific events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of us or any significant subsidiary or either of our property, in which case acceleration will be automatic, the 16 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 72 of 86 Table of Contents applicable trustee or the holders of not less than 25% of the principal amount of the outstanding debt securities of that series will have the right to declare the principal amount, or, if the debt securities of that series are original issue discount securities or indexed securities, the portion of the principal amount as may be specified in the terms of that series, of all the debt securities of that series to be due and payable immediately by written notice to us, and to the applicable trustee if given by the holders. At any time after a declaration of acceleration has been made with respect to debt securities of a series, or of all debt securities then outstanding under any indenture, as the case may be, but before a judgment or decree for payment of the money due has been obtained by the applicable trustee, however, the holders of not less than a majority in principal amount of the outstanding debt securities of that series, or of all debt securities then outstanding under the applicable indenture, as the case may be, may annul the declaration of acceleration and waive any default in respect of those debt securities if: • we have deposited with the applicable trustee all required payments due otherwise than by acceleration of the principal of, and premium, if any, and interest on the debt securities of that series, or of all debt securities then outstanding under the applicable indenture, as the case may be, plus specified fees, expenses, disbursements and advances of the applicable trustee, and • all events of default, other than the non-payment of all or a specified portion of the accelerated principal, with respect to debt securities of that series, or of all debt securities then outstanding under the applicable indenture, as the case may be, have been cured or waived as provided in the applicable indenture. Waiver Each indenture also will provide that the holders of not less than a majority in principal amount of the outstanding debt securities of any series, or of all debt securities then outstanding under the applicable indenture, as the case may be, may waive any past default with respect to that series and its consequences, except a default: • in the payment of the principal of, or premium, if any, or interest on any debt security of that series, or • in respect of a covenant or provision contained in the applicable indenture that, by the terms of that indenture, cannot be modified or amended without the consent of each affected holder of an outstanding debt security. Notice Each trustee will be required to give notice to the holders of the applicable debt securities within 90 days of a default under the applicable indenture unless the default has been cured or waived; but the trustee may withhold notice of any default, except a default in the payment of the principal of, or premium, if any, or interest on the debt securities or in the payment of any sinking fund installment in respect of the debt securities, if specified responsible officers of the trustee consider the withholding to be in the interest of the holders. The holders of debt securities of any series may not institute any proceedings, judicial or otherwise, with respect to the indentures or for any remedy under the indentures, except in the case of failure of the applicable trustee, for 60 days, to act after the trustee has received a written request to institute proceedings in respect of an event of default from the holders of not less than 25% in principal amount of the outstanding debt securities of that series, as well as an offer of indemnity reasonably satisfactory to the trustee, and provided that no direction inconsistent with such written request has been given to the trustee during such 60-day period by the holders of a majority of the outstanding debt securities of that series. However, any holder of debt securities is not prohibited from 17 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 73 of 86 Table of Contents instituting suit for the enforcement of payment of the principal of, and premium, if any, and interest on the debt securities at their respective due dates. Subject to the trustee's duties in case of default, no trustee will be under any obligation to exercise any of its rights or powers under an indenture at the request or direction of any holders of any series of debt securities then outstanding under that indenture, unless the holders offer to the trustee reasonable security or indemnity. Subject to such provisions for the indemnification of the trustee, the holders of not less than a majority in principal amount of the outstanding debt securities of any series, or of all debt securities then outstanding under an indenture, as the case may be, will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable trustee, or of exercising any trust or power conferred upon the trustee. A trustee may refuse, however, to follow any direction that is in conflict with any law or the applicable indenture that may involve the trustee in personal liability or may be unduly prejudicial to the holders of debt securities of that series not joining in the direction. Within 180 days after the end of each fiscal year, we will be required to deliver to each trustee a certificate, signed by one of several specified officers, stating whether or not that officer has knowledge of any default under the applicable indenture and, if so, specifying each default and the nature and status of the default. Modification of the Indentures Except as otherwise specifically provided in the applicable indenture, with the consent of the holders of not less than a majority in principal amount of all outstanding debt securities issued under that indenture that are affected by the modification or amendment, we may enter into supplemental indentures with the trustee for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of such indenture or of modifying in any manner the rights of the holders under debt securities issued under such indenture. However, no modification or amendment may, without the consent of the holder of each debt security affected by the modification or amendment: • except as described in the applicable prospectus supplement relating to such debt security: • extend the stated maturity of the principal of, or any installment of interest or any additional amounts, or the premium, if any, on, any debt security, • reduce the principal amount of, or the rate or amount of interest on, or change the manner of calculating the rate, or any premium payable on redemption of, any debt security, or reduce the amount of principal of an original issue discount security that would be due and payable upon declaration of acceleration of its maturity or would be provable in bankruptcy, or adversely affect any right of repayment of the holder of any debt security, • extend the time of payment of interest on any debt security or any additional amounts, • change any of the conversion, exchange or redemption provisions of any debt security, • change the place of payment, or the coin or currency for payment, of principal, or premium, if any, including any amount in respect of original issue discount or interest on any debt security, • impair the right to institute suit for the enforcement of any payment on or with respect to any debt security or for the conversion or exchange of any debt security in accordance with its terms, and • in the case of subordinated debt securities, modify the ranking or priority of the securities, 18 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 74 of 86 Table of Contents • reduce the percentage of outstanding debt securities of any series necessary to modify or amend the applicable indenture, to waive compliance with specific provisions of or certain defaults and consequences under the applicable indenture, or to reduce the quorum or voting requirements set forth in the applicable indenture, or • modify any of the provisions relating to the waiver of specific past defaults or specific covenants, except to increase the required percentage to effect that action or to provide that specific other provisions may not be modified or waived without the consent of the holder of that debt security. The holders of not less than a majority in principal amount of the outstanding debt securities of each series affected by the modification or amendment will have the right to waive compliance by us with specific covenants in the indenture. We and the respective trustee may modify and amend an indenture without the consent of any holder of debt securities for any of the following purposes: • to evidence the succession of another person to us as obligor under the indenture or to evidence the addition or release of any guarantor in accordance with the indenture or any supplemental indenture; • to add to our covenants for the benefit of the holders of all or any series of debt securities or to surrender any right or power conferred upon us in the indenture; • to add events of default for the benefit of the holders of all or any series of debt securities; • to add or change any provisions of the indenture to facilitate the issuance of, or to liberalize specific terms of, debt securities in bearer form, or to permit or facilitate the issuance of debt securities in uncertificated form, provided that the action will not adversely affect the interests of the holders of the debt securities of any series in any material respect; • to change or eliminate any provisions of an indenture, if the change or elimination becomes effective only when there are no debt securities outstanding of any series created prior to the change or elimination that are entitled to the benefit of the changed or eliminated provision; • to establish the form or terms of debt securities of any series and any related coupons; • to provide for the acceptance of appointment by a successor trustee or facilitate the administration of the trusts under an indenture by more than one trustee; • to cure any ambiguity or correct any inconsistency in an indenture provided that the cure or correction does not adversely affect the holders of the debt securities; • to supplement any of the provisions of an indenture to the extent necessary to permit or facilitate defeasance and discharge of any series of debt securities, provided that the supplement does not adversely affect the interests of the holders of the debt securities of any series in any material respect; • to make provisions with respect to the conversion or exchange terms and conditions applicable to the debt securities of any series; • to add to, delete from or revise the conditions, limitations or restrictions on issue, authentication and delivery of debt securities; • to conform any provision in an indenture to the requirements of the Trust Indenture Act; or • to make any change that does not adversely affect the legal rights under an indenture of any holder of debt securities of any series issued under that indenture. 19 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 75 of 86 Table of Contents In determining whether the holders of the requisite principal amount of outstanding debt securities of a series have given any request, demand, authorization, direction, notice, consent or waiver under the indenture or whether a quorum is present at a meeting of holders of debt securities: • the principal amount of an original issue discount security that is deemed to be outstanding will be the amount of the principal of that original issue discount security that would be due and payable as of the date of the determination upon declaration of acceleration of the maturity of that original issue discount security; • the principal amount of any debt security denominated in a foreign currency that is deemed outstanding will be the U.S. dollar equivalent, determined on the issue date for that debt security, of the principal amount, or, in the case of an original issue discount security, the U.S. dollar equivalent on the issue date of that debt security of the amount determined as provided in the immediately preceding bullet point; • the principal amount of an indexed security that is deemed outstanding will be the principal face amount of the indexed security at original issuance, unless otherwise provided with respect to the indexed security under the applicable indenture; and • debt securities owned by us or any other obligor upon the debt securities or any of our affiliates or of any other obligor are to be disregarded. Discharge, Defeasance and Covenant Defeasance Discharge We may be permitted under the applicable indenture to discharge specific obligations to holders of any series of debt securities (1) that have not already been delivered to the applicable trustee for cancellation and (2) that either have become due and payable or will, within one year, become due and payable or scheduled for redemption, by irrevocably depositing with the applicable trustee, in trust, money or funds certified to be sufficient to pay when due, whether at maturity, upon redemption or otherwise, the principal of, and premium, if any, on and interest on the debt securities. Defeasance and Covenant Defeasance If the provisions of the applicable indenture relating to defeasance and covenant defeasance are made applicable to the debt securities of or within any series, we may elect either: • defeasance, which means we elect to defease and be discharged from any and all obligations with respect to the debt securities, except for the obligations to register the transfer or exchange of the debt securities, to replace temporary or mutilated, destroyed, lost or stolen debt securities, to maintain an office or agency in respect of the debt securities and to hold moneys for payment in trust; or • covenant defeasance, which means we elect to be released from our obligations with respect to the debt securities under specified sections of the applicable indenture relating to covenants, as described in the applicable prospectus supplement and any omission to comply with its obligations will not constitute an event of default with respect to the debt securities, in either case upon the irrevocable deposit by us with the applicable trustee, in trust, of an amount, in currency or currencies or government obligations, or both, sufficient without reinvestment to make scheduled payments of the principal of, and premium, if any, and interest on the debt securities, when due, whether at maturity, upon redemption or otherwise, and any mandatory sinking fund or analogous payments. 20 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 76 of 86 Table of Contents A trust will only be permitted to be established if, among other things: • we have delivered to the applicable trustee an opinion of counsel, as specified in the applicable indenture, to the effect that the holders of the debt securities will not recognize income, gain or loss for federal income tax purposes as a result of the defeasance or covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the defeasance or covenant defeasance had not occurred, and the opinion of counsel, in the case of defeasance, will be required to refer to and be based upon a ruling of the Internal Revenue Service or a change in applicable U.S. federal income tax law occurring after the date of the indenture; • no event of default or any event which after notice or lapse of time or both would be an event of default has occurred; • the defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, the applicable indenture or any other material agreement or instrument to which we are a party or by which we are bound; • certain other provisions set forth in the applicable indenture are met; and • we will have delivered to the trustee an officers' certificate and an opinion of counsel, each stating that all conditions precedent to the defeasance or covenant defeasance have been complied with. In general, if we elect covenant defeasance with respect to any debt securities and payments on those debt securities are declared due and payable because of the occurrence of an event of default, the amount of money and/or government obligations on deposit with the applicable trustee would be sufficient to pay amounts due on those debt securities at the time of their stated maturity, but may not be sufficient to pay amounts due on those debt securities at the time of the acceleration resulting from the event of default. In that case, we would remain liable to make payment of the amounts due on the debt securities at the time of acceleration. The applicable prospectus supplement may further describe the provisions, if any, permitting defeasance or covenant defeasance, including any modifications to the provisions described above, with respect to the debt securities of or within a particular series. Regarding the Trustees We will designate the trustee under the senior and subordinated debt indentures in the applicable prospectus supplement. From time to time, we may enter into banking or other relationships with any of such trustees or their affiliates. There may be more than one trustee under each indenture, each with respect to one or more series of debt securities. Any trustee may resign or be removed with respect to one or more series of debt securities, and a successor trustee may be appointed to act with respect to such series. If two or more persons are acting as trustee with respect to different series of debt securities, each trustee will be a trustee of a trust under the indenture separate from the trust administered by any other such trustee. Except as otherwise indicated in this prospectus, any action to be taken by the trustee may be taken by each such trustee with respect to, and only with respect to, the one or more series of debt securities for which it is trustee under the indenture. Governing Law The senior debt securities, the subordinated debt securities and the related indentures will be governed by, and construed in accordance with, the internal laws of the State of New York. 21 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 77 of 86 Table of Contents LEGAL OWNERSHIP OF SECURITIES We can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee or depositary or warrant agent maintain for this purpose as the "holders" of those securities. These persons are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as "indirect holders" of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect holders. Book-Entry Holders We may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate in the depositary's book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers. Only the person in whose name a security is registered is recognized as the holder of that security. Global securities will be registered in the name of the depositary. Consequently, for global securities, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities. As a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary's book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not holders, of the securities. Street Name Holders We may terminate global securities or issue securities that are not issued in global form. In these cases, investors may choose to hold their securities in their own names or in "street name." Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution. For securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and we or any such trustee or depositary will make all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities. Legal Holders Our obligations, as well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who 22 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 78 of 86 Table of Contents hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form. For example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements with its participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with a particular provision of an indenture, or for other purposes. In such an event, we would seek approval only from the holders, and not the indirect holders, of the securities. Whether and how the holders contact the indirect holders is up to the holders. Special Considerations for Indirect Holders If you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are represented by one or more global securities or in street name, you should check with your own institution to find out: • how it handles securities payments and notices; • whether it imposes fees or charges; • how it would handle a request for the holders' consent, if ever required; • whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future; • how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and • if the securities are in book-entry form, how the depositary's rules and procedures will affect these matters. Global Securities A global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms. Each security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known as DTC, will be the depositary for all securities issued in book-entry form. A global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under "—Special Situations When a Global Security Will Be Terminated." As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a holder of the security, but only an indirect holder of a beneficial interest in the global security. 23 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 79 of 86 Table of Contents If the prospectus supplement for a particular security indicates that the security will be issued as a global security, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system. Special Considerations for Global Securities As an indirect holder, an investor's rights relating to a global security will be governed by the account rules of the investor's financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security. If securities are issued only as global securities, an investor should be aware of the following: • investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below; • an investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe above; • an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form; • an investor may not be able to pledge his or her interest in the global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; • the depositary's policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor's interest in the global security. We and any applicable trustee have no responsibility for any aspect of the depositary's actions or for its records of ownership interests in the global security. We and the trustee also do not supervise the depositary in any way; • the depositary may, and we understand that DTC will, require that those who purchase and sell interests in the global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and • financial institutions that participate in the depositary's book-entry system, and through which an investor holds its interest in the global security, may also have their own policies affecting payments, notices and other matters relating to the securities. There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries. Special Situations When a Global Security Will be Terminated In a few special situations described below, a global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to their own names, so that they will be direct holders. We have described the rights of holders and street name investors above. 24 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 80 of 86 Table of Contents A global security will terminate when the following special situations occur: • if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days; • if we notify any applicable trustee that we wish to terminate that global security; or • if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived. The prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders. SELLING STOCKHOLDERS We are registering 5,000,000 shares of common stock to permit the stockholders to be named in a prospectus supplement, and their transferees, pledgees, donees or successors, to resell the shares in the manner contemplated under "Plan of Distribution." Certain shares of common stock included in this prospectus for resale by the selling stockholders were initially acquired in connection with our acquisition of Wabash Foods, LLC in October 1999, pursuant to which we issued shares of common stock and warrants, which were subsequently exercised, to the former owners of Wabash Foods, LLC as consideration for all of the membership interests in Wabash Foods, LLC. The remaining shares of common stock that may be offered by the selling stockholders were acquired pursuant to equity awards and open market purchases since January 1, 2010. Information about the selling stockholders will be set forth in an applicable prospectus supplement. The initial purchasers of these securities, as well as their transferees, pledgees, donees or successors, all of whom are referred to herein as "selling stockholders," may from time to time offer and sell such securities pursuant to this prospectus and any applicable prospectus supplement. An applicable prospectus supplement will set forth the name of each selling stockholder, the nature of any position, office, or other material relationship which any selling stockholder has had within the past three years with us or any of our predecessors or affiliates, if any, the amount of our common stock owned by each selling stockholder prior to the offering, the amount of our common stock which may be offered for each selling stockholder's account, and the amount and (if one percent or more) the percentage of our common stock to be owned by each selling stockholder after completion of the offering. The selling stockholders shall not sell any shares of our common stock pursuant to this prospectus until we have identified such selling stockholders and the shares of our common stock which may be offered for resale by such selling stockholders in a subsequent prospectus supplement. However, the selling stockholders may sell or transfer all or a portion of their shares of common stock pursuant to any available exemption from the registration requirements of the Securities Act. PLAN OF DISTRIBUTION The securities being offered by this prospectus may be sold by us or by the selling stockholders (which as used in this prospectus includes donees, pledgees, transferees or other successors-in-interest selling common stock received after the date of this prospectus from a selling stockholder as a gift, pledge, distribution or other transfer): • through agents; • to or through underwriters; 25 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 81 of 86 Table of Contents • through broker-dealers (acting as agent or principal); • directly by us or a selling stockholder to purchasers, through a specific bidding or auction process or otherwise; • through a combination of any such methods of sale; or • through any other methods described in a prospectus supplement. The distribution of securities may be effected from time to time in one or more transactions, including block transactions and transactions on The NASDAQ Global Select Market or any other organized market where the securities may be traded, in the over-the-counter market, or otherwise, on a continuous or delayed basis. The selling stockholders may act independently of us in making decisions with respect to the timing, manner and size of each sale. The securities may be sold at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices relating to the prevailing market prices or at negotiated prices. The consideration may be cash or another form negotiated by the parties. Agents, underwriters or broker-dealers may be paid compensation for offering and selling the securities. That compensation may be in the form of discounts, concessions or commissions to be received from us or from the purchasers of the securities. The selling stockholders and any dealers and agents participating in the distribution of the securities may be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting discounts. If such selling stockholders, dealers or agents were deemed to be underwriters, they may be subject to statutory liabilities under the Securities Act. Agents may from time to time solicit offers to purchase the securities. If required, we will name in the applicable prospectus supplement any agent involved in the offer or sale of the securities and set forth any compensation payable by us or the selling stockholders to the agent. Unless otherwise indicated in the prospectus supplement, any agent will be acting on a best efforts basis for the period of its appointment. Any agent selling the securities covered by this prospectus may be deemed to be an underwriter, as that term is defined in the Securities Act, of the securities. If underwriters are used in a sale, securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale, or under delayed delivery contracts or other contractual commitments. Securities may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. If an underwriter or underwriters are used in the sale of securities, an underwriting agreement will be executed with the underwriter or underwriters at the time an agreement for the sale is reached. The applicable prospectus supplement will set forth the managing underwriter or underwriters, as well as any other underwriter or underwriters, with respect to a particular underwritten offering of securities, and will set forth the terms of the transactions, including compensation of the underwriters and dealers and the public offering price, if applicable. The prospectus and the applicable prospectus supplement will be used by the underwriters to resell the securities. If a dealer is used in the sale of the securities, we, the selling stockholders, or an underwriter will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. To the extent required, we will set forth in the prospectus supplement the name of the dealer and the terms of the transactions. We or the selling stockholders may directly solicit offers to purchase the securities and we or the selling stockholders may make sales of securities directly to institutional investors or others. These persons may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of the securities. To the extent required, the prospectus supplement will describe the terms of any such sales, including the terms of any bidding or auction process, if used. 26 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 82 of 86 Table of Contents Agents, underwriters and dealers may be entitled under agreements which may be entered into with us or the selling stockholders to indemnification by us or the selling stockholders against specified liabilities, including liabilities incurred under the Securities Act, or to contribution by us or the selling stockholders to payments they may be required to make in respect of such liabilities. If required, the prospectus supplement will describe the terms and conditions of such indemnification or contribution. Some of the agents, underwriters or dealers, or their affiliates may be customers of, engage in transactions with or perform services for us or our subsidiaries in the ordinary course of business. Under the securities laws of some states, the securities offered by this prospectus may be sold in those states only through registered or licensed brokers or dealers. The selling stockholders may also sell shares in accordance with Rule 144 under the Securities Act, or pursuant to other available exemptions from the registration requirements of the Securities Act, rather than pursuant to this prospectus. In addition, the selling stockholders or their successors in interest may enter into hedging transactions with broker-dealers who may engage in short sales of the shares, short and deliver the shares to close out such short positions, or loan or pledge the shares to broker-dealers that in turn may see such securities. The selling stockholders or their successors in interest may also enter into option or other transactions with broker-dealers that require the delivery by such broker-dealers of the shares, which may be resold thereafter under this prospectus and an accompanying prospectus supplement if the shares are delivered by the selling stockholders. The selling stockholders may not satisfy their obligations in connection with short sale or hedging transactions entered into before the effective date of the registration statement of which this prospectus is a part by delivering securities registered under such registration statement. The selling stockholders or their successors in interest may from time to time pledge or grant a security interest in some or all of the shares and, if the selling stockholders default in the performance of their secured obligation, the pledges or secured parties may offer and sell the shares from time to time under this prospectus and an accompanying prospectus supplement. Any person participating in the distribution of common stock registered under the registration statement that includes this prospectus will be subject to applicable provisions of the Exchange Act, and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit the timing of purchases and sales of any of our common stock by any such person. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of our common stock to engage in market-making activities with respect to our common stock. These restrictions may affect the marketability of our common stock and the ability of any person or entity to engage in market-making activities with respect to our common stock. Certain persons participating in an offering may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act that stabilize, maintain or otherwise affect the price of the offered securities. If any such activities will occur, they will be described in the applicable prospectus supplement. Other than our common stock, which is listed on The NASDAQ Global Select Market, each of the securities issued hereunder will be a new issue of securities, will have no prior trading market, and may or may not be listed on a national securities exchange. Any common stock sold pursuant to a prospectus supplement will be listed on The NASDAQ Global Select Market, subject to official notice of issuance. Any underwriters to whom securities are sold by us or the selling stockholders for public offering and sale may make a market in such securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot assure you that there will be a market for the offered securities. 27 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 83 of 86 Table of Contents LEGAL MATTERS Unless otherwise specified in a prospectus supplement accompanying this prospectus, the validity of the securities offered hereby will be passed upon by DLA Piper LLP (US), Phoenix, Arizona, and for any underwriters or agents by counsel named in the applicable prospectus supplement. EXPERTS Our consolidated balance sheets as of December 28, 2013 and December 29, 2012, the related consolidated statements of operations, comprehensive income, stockholders' equity, and cash flows for each of the three years in the period ended December 28, 2013, and the effectiveness of Inventure Foods, Inc.'s internal control over financial reporting as of December 28, 2013 have been incorporated by reference herein in reliance upon the report of Moss Adams LLP, an independent registered public accounting firm, given upon the authority of that firm as experts in accounting and auditing. The balance sheets of Fresh Frozen Foods, LLC, as of December 31, 2012 and 2011, and the related statements of income, changes in members' equity, and cash flows for the years then ended have been incorporated by reference herein in reliance upon the report of Nichols, Cauley & Associates, LLC, an independent registered public accounting firm, given upon the authority of that firm as experts in accounting and auditing. WHERE YOU CAN FIND MORE INFORMATION We are currently subject to the information requirements of the Exchange Act and in accordance therewith file periodic reports, proxy statements and other information with the Securities and Exchange Commission. You may read and copy (at prescribed rates) any such reports, proxy statements and other information at the SEC's Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference room. Our SEC filings will also be available to you on the SEC's website at http://www.sec.gov. Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus. If you make a request for such information in writing or by telephone, we will provide you, without charge, a copy of any or all of the information incorporated by reference into this prospectus. Any such request should be directed to: Inventure Foods, Inc. 5415 East High Street, Suite #350 Phoenix, Arizona 85054 (623) 932-6200 Attention: Secretary INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The SEC allows us to "incorporate by reference" certain information into this prospectus, which means that we can disclose important information about us by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be a part of this prospectus. Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included 28 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 84 of 86 Table of Contents or incorporated in this prospectus. This means that you must carefully review all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. However, we undertake no obligation to update or revise any statements we make, except as required by law. This prospectus incorporates by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (in each case, other than those documents or the portions of those documents not deemed to be filed) until the offering of the securities under the registration statement is terminated or completed: • our Annual Report on Form 10-K for the fiscal year ended December 28, 2013, filed with the SEC on March 13, 2014, as amended by Amendment No. 1 to our Annual Report on Form 10-K/A, filed with the SEC on March 14, 2014; • our Quarterly Reports on Form 10-Q for the periods ended March 29, 2014, filed with the SEC on May 6, 2014, and June 28, 2014, filed with the SEC on August 5, 2014; • our Current Report on Form 8-K/A filed with the SEC on January 24, 2014 and Current Reports on Form 8-K filed with the SEC on April 21, 2014, May 16, 2014 and June 2, 2014; • our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 14, 2014, to the extent incorporated by reference into our Annual Report on Form 10-K for the year ended December 28, 2013; and • The description of our common stock, par value $0.01 per share, included under the caption "Description of Securities" in the Prospectus forming a part of Amendment No. 3 to the Company's Registration Statement on Form SB-2, filed with the SEC on December 5, 1996 (File No. 333-5594-LA), including exhibits, and as amended, which description has been incorporated by reference in Item 1 of our Registration Statement on Form 8-A/A, filed pursuant to Section 12 of the Exchange Act, on December 10, 1996 (File No. 001-14556). 29 Case 2:17-cv-00727-JAT Document 27-4 Filed 07/06/17 Page 85 of 86 Table of Contents 3,594,518 Shares Common Stock Prospectus Supplement September 11, 2014 Sole Book-Running Manager William Blair Lead Manager Canaccord Genuity Co-Manager Roth Capital Partners

Exhibit E

EXHIBIT E Page 1 of 2 Case 2:17-cv-00727-JAT Document 27-5 Filed 07/06/17 Page 2 of 3 EX-99.1 3 a13-24050_1ex99d1.htm EX-99.1 Exhibit 99.1 FOR IMMEDIATE RELEASE INVENTURE FOODS, INC. FINALIZES ACQUISITION OF LEADING FROZEN VEGETABLE PROCESSOR, FRESH FROZEN FOODS, LLC PHOENIX — Nov. 12, 2013 — Inventure Foods, Inc. (Nasdaq: SNAK) ("Inventure"), a leading specialty food marketer and manufacturer, today announced the completion of the acquisition of substantially all of the assets of Fresh Frozen Foods, LLC, a branded frozen vegetable processor ("Fresh Frozen") on Friday, November 8. The purchase price was $38.375 million plus deferred compensation in the form of an earn-out of up to $3.0 million based on 2014 performance. Inventure entered into a new $60.0 million senior secured term loan and a new $30.0 million senior secured revolving line of credit with a syndicate of lenders led by U.S. Bank National Association pursuant to a Credit Agreement, a Security Agreement and certain other customary ancillary agreements to fund the purchase and repay two existing equipment term loans totaling $8.4 million and the existing revolving line of credit totaling $17.6 million as of November 8, 2013. Fresh Frozen reported 15% average annual revenue growth over the last three years, with gross revenues over $60.0 million during the most recent 12-month period. Full pro-forma financial statements will be released on or before January 25, 2014. The transaction is expected to be accretive to earnings in 2014. Headquartered in Georgia, Fresh Frozen is a family-owned, full-service processor and supplier of more than 60 varieties of frozen vegetables and fruits to retail outlets. The acquisition will allow both companies to leverage each other’s sales organizations, distribution channels, and products. Additionally, Inventure will now have year-round freezing operations and be able to freeze blueberries and other fruits in a new region of the country. "As we learn more about the business, we are even more excited to have finalized this acquisition," said Terry McDaniel, Chief Executive Officer of Inventure Foods, Inc. "Fresh Frozen is a perfect strategic fit in our healthy/natural portfolio, allowing us to not only diversify into frozen vegetables, but also to meet growing consumer demand for our frozen fruit products. Fresh Frozen along with our current brands strengthens our position in the "Better for You" section of the frozen food aisle." "We are fortunate to have Fresh Frozen President Bill Griffin continuing to lead the company into a new era of growth and innovation," concluded McDaniel. About Inventure Foods, Inc. With manufacturing facilities in Arizona, Indiana, Washington, Oregon and Georgia, Inventure Foods, Inc. (Nasdaq: SNAK) is a marketer and manufacturer of specialty food brands in better-for-you and indulgent categories under a variety of Company owned and licensed brand names, including Boulder Canyon Natural Foods®, Jamba®, Seattle’s Best Coffee®, Rader Farms®, T.G.I. Friday’s®, Nathan’s Famous®, Vidalia Brands®, Poore Brothers®, Tato Skins®, Willamette Valley Fruit CompanyTM, Fresh FrozenTM and Bob’s Texas Style®. For further information about Inventure Foods, please visit www.inventurefoods.com. About Fresh Frozen Foods, LLC Founded as a family owned and operated business in Jefferson, Georgia in 1975, Fresh Frozen Foods is a full service processor and supplier of more than 60 varieties of IQF vegetables and fruits to retail outlets throughout the Southeast United States and the Caribbean Islands. In addition to a bulk packaging facility in Jefferson, Georgia, the business has a processing facility in Thomasville, Georgia. For more information on Fresh Frozen Foods, please visit www.freshfrozenfoods.com. https://www.sec.gov/Archives/edgar/data/944508/000110465913083254/a13-24050_1ex99... 7/6/2017 Page 2 of 2 Case 2:17-cv-00727-JAT Document 27-5 Filed 07/06/17 Page 3 of 3 Statements contained in this press release that are not historical facts are forward-looking statements as that term is defined in the Private Securities Litigation Reform Act of 1995, including statements regarding Inventure’s acquisition of Fresh Frozen’s business and its current and future prospects, synergies relating to the transaction, and the potential accretive effect of the transaction on Inventure’s earnings. Because such statements include risks and uncertainties, actual results may differ materially from those expressed or implied by such forward-looking statements. Factors that may cause actual results to differ from the forward-looking statements contained in this press release and that may affect the Company’s prospects in general include, but are not limited to, general economic conditions, increases in cost or availability of ingredients, packaging, energy and employees, price competition and industry consolidation, ability to execute strategic initiatives, product recalls or safety concerns, disruptions of supply chain or information technology systems, customer acceptance of new products and changes in consumer preferences, food industry and regulatory factors, interest rate risks, dependence upon major customers, dependence upon existing and future license agreements, the possibility that we will need additional financing due to future operating losses or in order to implement the Company’s business strategy, acquisition and divestiture-related risks, the volatility of the market price of the Company’s common stock, and such other factors as are described in the Company’s filings with the Securities and Exchange Commission. All forward-looking statements are based on information available to the Company as of the date of this news release, and the Company assumes no obligation to update such statements. Contact: Steve Weinberger 623-932-6200 ir@inventurefoods.com https://www.sec.gov/Archives/edgar/data/944508/000110465913083254/a13-24050_1ex99... 7/6/2017

Exhibit F

EXHIBIT F Page 1 of 3 Case 2:17-cv-00727-JAT Document 27-6 Filed 07/06/17 Page 2 of 4 8-K 1 a17-9113_18k.htm 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): March 23, 2017 Inventure Foods, Inc. (Exact name of registrant as specified in its charter) Delaware 001-14556 86-0786101 (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) 5415 E. High St., Suite 350, Phoenix, AZ 85054 (Address of principal executive offices) (Zip Code) Registrant’s telephone number, including area code (623) 932-6200 Not applicable (Former name or former address, if changed since last report.) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 1.01 Entry into a Material Definitive Agreement. The information contained in Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 1.01. Item 2.01. Completion of Acquisition or Disposition of Assets. On March 23, 2017 (the "Effective Date"), The Pictsweet Company, a Delaware corporation ("Buyer"), acquired certain of the assets, properties and rights of Fresh Frozen Foods, Inc. ("Fresh Frozen"), a wholly owned subsidiary of https://www.sec.gov/Archives/edgar/data/944508/000110465917020030/a17-9113_18k.htm 7/6/2017 Page 2 of 3 Case 2:17-cv-00727-JAT Document 27-6 Filed 07/06/17 Page 3 of 4 Inventure Foods, Inc. (the "Company" or "Inventure Foods"), pursuant to an Asset Purchase Agreement, dated as of March 23, 2017, by and among the Company, Fresh Frozen and Buyer (the "Purchase Agreement"). In accordance with the Purchase Agreement, Buyer acquired certain of the assets, properties and rights of Fresh Frozen, including Fresh Frozen’s inventory, frozen food processing equipment assets, certain real property and associated plants located in Jefferson, Georgia and Thomasville, Georgia, and other intellectual property. The Fresh Frozen plants processed and packaged IQF vegetables and fruits sold primarily under the Fresh FrozenTM brand. As consideration for the acquisition, Buyer paid the Company $23.7 million in cash. The Company, Fresh Frozen and Buyer have each made customary representations, warranties and covenants in the Purchase Agreement. The parties have also agreed to provide customary indemnities, which are subject to customary limitations. The foregoing description of the Purchase Agreement and the transactions contemplated thereby is qualified in its entirety by the terms of the Purchase Agreement, a copy of which is filed as Exhibit 2.1 hereto and incorporated herein by reference. The proceeds from the sale of Fresh Frozen’s assets, net of transaction costs, will be used to pay down indebtedness under the Company’s ABL credit facility with Wells Fargo Bank, National Association and the other lenders party thereto, and its term loan facility with BSP Agency, LLC and the other lenders party thereto, as required under such credit facilities. Item 8.01. Other Events. On March 23, 2017, Inventure Foods issued a press release announcing the transaction described in Item 2.01 above, a copy of which is attached as Exhibit 99.1 to this report. 2 Item 9.01. Financial Statements and Exhibits. (a) Financial Statements of Business Acquired. Not applicable. (b) Pro Forma Financial Information. Inventure Foods will file the required pro forma financial information by amendment to this Form 8-K as soon as practicable after the date this Form 8-K is required to be filed. (c) Shell Company Transactions Not applicable. (d) Exhibits. Exhibit No. Description 2.1 Asset Purchase Agreement, dated as of March 23, 2017, by and among Inventure Foods, Inc., Fresh Frozen Foods, Inc. and The Pictsweet Company.* 99.1 Press Release, dated March 23, 2017, issued by Inventure Foods announcing sale of Fresh Frozen assets. *The schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Inventure Foods agrees to furnish supplementally a copy of such schedules and exhibits, or any section thereof, to the SEC upon request. https://www.sec.gov/Archives/edgar/data/944508/000110465917020030/a17-9113_18k.htm 7/6/2017 Page 3 of 3 Case 2:17-cv-00727-JAT Document 27-6 Filed 07/06/17 Page 4 of 4 3 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Date: March 29, 2017 INVENTURE FOODS, INC. By:/s/Steve Weinberger Name: Steve Weinberger Title: Chief Financial Officer 4 Exhibit Index Exhibit No. Description 2.1 Asset Purchase Agreement, dated as of March 23, 2017, by and among Inventure Foods, Inc., Fresh Frozen Foods, Inc. and The Pictsweet Company. 99.1 Press Release, dated March 23, 2017, issued by Inventure Foods announcing sale of Fresh Frozen assets. 5 https://www.sec.gov/Archives/edgar/data/944508/000110465917020030/a17-9113_18k.htm 7/6/2017

Exhibit G

EXHIBIT G Page 1 of 4 Case 2:17-cv-00727-JAT Document 27-7 Filed 07/06/17 Page 2 of 5 EX-99.1 2 a15-9766_1ex99d1.htm EX-99.1 Exhibit 99.1 FOR IMMEDIATE RELEASE INVENTURE FOODS, INC. ISSUES VOLUNTARY RECALL OF ITS FRESH FROZEN™ VEGETABLES AND SELECT JAMBA® "AT HOME" SMOOTHIE KITS BECAUSE OF POSSIBLE HEALTH RISK PHOENIX, April 23, 2015 — Inventure Foods, Inc. has issued a voluntary recall of certain varieties of its Fresh Frozen™ line of frozen vegetables, as well as select varieties of its Jamba "At Home" line of smoothie kits, due to the finding of Listeria monocytogenes, in its Jefferson, GA facility. Listeria is an organism that can cause infections in young children, frail or elderly people, and others with weakened immune systems. Although healthy individuals may suffer only short-term symptoms such as high fever, severe headache, stiffness, nausea, abdominal pain and diarrhea, listeria infection can cause miscarriages and stillbirths among pregnant women. To date, there are no known illnesses linked to consumption of Fresh Frozen IQF frozen vegetables or Jamba "At Home" smoothies. However, Inventure Foods has decided to err on the side of utmost caution and issue a voluntary recall because Listeria monocytogenes was identified within the facility. The Company urges anyone who has purchased a product listed below to not consume it and to instead return the package to the store where it was purchased for a full refund. If consumers have additional questions, representatives will be available 24/7 at 866-890-1004; via email at info@inventurefoods.com or visit InventureFoods.com/Information/FrozenRecall for the latest updates. The Company said, "Please be assured that we are committed to producing the highest quality products — and our top priority is the health and safety of consumers. It is with this commitment that we have initiated this voluntary recall as a precautionary measure and are working closely with the FDA to proactively remedy the situation." The Fresh Frozen products being recalled are distributed to retail outlets, including food service accounts, mass merchandise stores and supermarkets in Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Nebraska, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Virginia, West Virginia and Wisconsin. The Jamba "At Home" smoothies’ products being recalled are distributed to retail outlets, including mass merchandise stores and supermarkets east of the Mississippi River. Only specific Jamba "At Home" branded products are involved in this recall. No other Jamba® branded products are affected. The products being recalled are identified below: Fresh Frozen Vegetable Products UPC FF ITEM PACK CODE NUMBER SIZE DESCRIPTION 0-86069-20000-1 102 6/2# SPEC. BUTTER BEANS 0-86069-50000-2 105 4/5# SPEC. BUTTER BEANS 0-86069-20010-0 112 6/2# BABY LIMA BEANS 0-86069-50010-1 115 4/5# BABY LIMA BEANS 0-86069-20020-9 124 6/2# CUT GREEN BEANS 0-86069-50020-0 125 4/5# CUT GREEN BEANS 0-86069-20340-8 132 6/2# ITALIAN GREEN BEANS 0-86069-50340-9 135 4/5# ITALIAN GREEN BEANS 0-86069-20030-8 203 6/2# CROWDER PEAS 0-86069-50030-9 205 4/5# CROWDER PEAS https://www.sec.gov/Archives/edgar/data/944508/000110465915029844/a15-9766_1ex99d... 7/6/2017 Page 2 of 4 Case 2:17-cv-00727-JAT Document 27-7 Filed 07/06/17 Page 3 of 5 0-86069-20040-7 212 6/2# BLACKEYE PEAS 0-86069-50040-8 215 4/5# BLACKEYE PEAS 0-86069-20041-4 222 6/2# PURPLE HULL PEAS 0-86069-50041-5 225 4/5# PURPLE HULL PEAS 0-86069-20050-6 242 6/2# FIELD PEAS W/SNPS 0-86069-50050-7 245 4/5# FIELD PEAS W/SNPS 0-86069-20060-5 252 6/2# BUTTER PEAS 0-86069-20005-6 256 6/2# BUTTER BEANS 0-86069-20016-2 144 12/24 oz FORDHOOK LIMA BEANS 0-86069-20061-2 262 6/2# GREEN PEAS 0-86069-50060-6 265 4/5# GREEN PEAS 0-86069-20290-6 272 6/2# GREEN PEAS W/CARROTS 0-86069-50290-7 275 4/5# GREEN PEAS W/CARROTS 0-86069-20042-1 283 6/2# ZIPPER PEAS 0-86069-20032-2 295 6/2# WHITE ACRE PEAS 0-86069-20070-4 303 6/2# CUT OKRA 0-86069-50240-2 305 4/5# CUT OKRA 0-86069-20350-7 312 6/2# BABY WHOLE OKRA **** NO UPC 315 4/5# BABY WHOLE OKRA 0-86069-20075-9 323 6/2# BREADED OKRA 0-86069-50075-0 325 4/5# BREADED OKRA 0-86069-20100-8 402 6/2# CUT YELLOW CORN 0-86069-50100-9 405 4/5# CUT YELLOW CORN **** NO UPC 421 96 CT 3" CORN ON COB 0-86069-20200-5 422 6/2# 3" CORN ON COB 0-86069-50250-1 425 4/5# 3" CORN ON COB 0-86069-20102-2 432 6/2# SHOEPEG CORN 0-86069-50102-3 435 4/5# SHOEPEG CORN 0-86069-20300-2 502 6/2# SLICED YELLOW SQUASH 0-86069-50300-3 505 4/5# SLICED SQUASH 0-86069-20270-8 510 6/2# BREADED SQUASH 0-86069-20310-3 522 6/2# SLICED ZUCCHINI 0-86069-20510-5 531 6/2# CHOPPED VIDALIA ONIONS & SQUASH 0-86069-20500-6 542 6/2# CHOPPED VIDALIA ONIONS 0-86069-20295-1 603 6/2# SLICED CARROTS **** NO UPC 604 20# SLICED CARROTS 0-86069-20355-2 659 6/2# BRUSSEL SPROUTS 0-86069-20140-4 703 6/2# CUT BROCCOLI 0-86069-50140-5 705 4/5# CUT BROCCOLI 0-86069-20141-1 708 6/2# BROCCOLI FLORETS **** NO UPC 762 12/2# DICED CELERY 0-86069-25071-6 774 6/2# MUSTARD GREENS 0-86069-25040-2 776 6/2# IQF COLLARDS 0-86069-25050-1 777 6/2# IQF TURNIP GREENS 0-86069-25060-0 778 6/2# IQF TURNIP GREENS W/R 0-86069-25090-7 779 6/2# IQF CHOPPED SPINACH **** NO UPC 792 12/2# DICED ONIONS **** NO UPC 795 12/2# DICED RED PEPPER **** NO UPC 798 12/2# DICED GREEN PEPPER 0-86069-50080-4 805 4/5# MIXED VEGETABLES 0-86069-20080-3 806 6/2# MIXED VEGETABLES 0-86069-20014-8 813 6/2# PREMIUM CALIFORNIA BLEND 0-86069-20011-7 814 6/2# CALIFORNIA BLEND 0-86069-50011-8 815 4/5# CALIFORNIA BLEND https://www.sec.gov/Archives/edgar/data/944508/000110465915029844/a15-9766_1ex99d... 7/6/2017 Page 3 of 4 Case 2:17-cv-00727-JAT Document 27-7 Filed 07/06/17 Page 4 of 5 0-86069-20330-9 826 6/2# SUMMER BLEND 0-86069-20150-3 833 6/2# VEGETABLE GUMBO 0-86069-20160-2 836 6/2# VEGETABLE SOUP MIX W/TOMATOES 0-86069-21270-7 842 6/2# STEW MIX 0-86069-20280-7 852 6/2# STIR FRY BLEND 0-86069-20285-2 862 6/2# ITALIAN BLEND 0-86069-20425-2 866 6/2# FAJITA BLEND 0-86069-20400-9 877 6/2# TEJANO BLEND 0-86069-20405-4 882 6/2# JALISCO BLEND 0-86069-20432-0 897 4/5# SEASONING BLEND 0-86069-20430-6 898 6/2# SEASONING BLEND 0-86069-20170-1 856 6/2# COUNTRY BLEND 0-86069-10180-3 90199 12/1# WHOLE STRAWBERRIES 0-86069-10260-2 91199 12/1# WHOLE BLACKBERRIES 0-86069-10190-2 92199 12/1# SLICED PEACHES 0-86069-10500-9 952 24/12 oz BLUEBERRIES 0-86069-10230-5 971 18/12 oz TRIPLE BERRY BLEND 0-86069-20120-6 1002 6/2# YAM PATTIES 0-86069-20112-1 1570 8/28 oz SWEET POTATO CUTS 0-86069-50265-5 1582 4/5# BOIL BLEND 0-86069-95015-9 4022 12/12 CT SOUTHERN STYLE BISCUITS 0-86069-95020-3 4031 12/12 CT CHEESE BISCUITS 0-86069-95040-1 4061 12/12 CT BUTTER BISCUITS 0-86069-11200-7 S124 12/12oz CUT GREEN BEANS 0-86069-11210-6 S262 12/12oz GREEN PEAS 0-86069-11230-4 S402 12/12oz CUT YELLOW CORN 0-86069-11260-1 S708 12/10oz. BROCCOLI FLORETS 0-86069-11270-0 S806 12/12oz MIXED VEGETABLES 0-86069-11275-5 S814 12/10oz. CALIFORNIA BLEND 0-86069-11280-9 S826 12/12oz SUMMER BLEND 0-86069-11290-8 S862 12/10oz. ITALIAN BLEND 0-86069-20001-8 10299 12/1# Speckled Butter Beans 0-86069-20012-4 11299 12/1# Baby Lima Beans 0-86069-20021-6 12499 12/1# Cut Green Beans 0-86069-20341-5 13299 12/1# Italian Green Beans 0-86069-20043-8 21299 12/1# Blackeye Peas 0-86069-20051-3 24299 12/1# Field Peas w/Snaps 0-86069-20006-3 25699 12/1# Butter Beans 0-86069-20063-6 25299 12/1# Butter Peas 0-86069-20071-1 30399 12/1# Cut Okra 0-86069-20351-4 31299 12/1# Baby Whole Okra 0-86069-20076-6 32399 12/1# Breaded Okra 0-86069-20101-5 40299 12/1# Cut Yellow Corn 0-86069-20301-9 50299 12/1# Sliced Yellow Squash 0-86069-10530-6 543 18/12 oz Chopped Vidalia Onions 0-86069-20296-8 60399 12/1# Sliced Carrots 0-86069-20356-9 65999 12/1# Brussel Sprouts 0-86069-20142-8 70399 12/1# Broccoli Cuts 0-86069-25070-9 77499 12/1# Mustard Greens 0-86069-20081-0 80699 12/1# Mixed Vegetables 0-86069-20013-1 81499 12/1# California Blend 0-86069-20151-0 83399 12/1# Vegetable Gumbo 0-86069-20431-3 89899 12/1# Seasoning Blend 0-86069-21271-4 84299 12/1# Stew Mix https://www.sec.gov/Archives/edgar/data/944508/000110465915029844/a15-9766_1ex99d... 7/6/2017 Page 4 of 4 Case 2:17-cv-00727-JAT Document 27-7 Filed 07/06/17 Page 5 of 5 0-86069-25041-9 77680 12/1# Collard Greens 0-86069-25051-8 77780 12/1# Turnip Greens 0-86069-25061-7 77899 12/1# Turnip Greens w/Diced Turnips 0-86069-25091-4 7791 18/12 oz Chopped Spinach Jamba At Home Smoothie Kits The products affected have best by dates from 18 Mar 2016 through 17 Oct 2016 with code dates from 72644AH01 through 71075AH01. Code Format: 7= JEFFERSON, Production codes starting with 8 are not included in the recall Jamba At Home Smoothie Products JAMBA UPC ITEM PACK PRODUCTION "BEST BY CODE NUMBER SIZE DESCRIPTION CODE DATE" 8-84038-85098-7 85098 8/8oz Strawberries Wild 72644AH01 thru 18 Mar 2016 thru 17 71075AH01 Oct 2016 8-84038-85100-7 85100 8/8oz Razzmatazz 72644AH01 thru 18 Mar 2016 thru 17 71075AH01 Oct 2016 8-84038-85099-4 85099 8/8oz Mango-A-Go-Go 72644AH01 thru 18 Mar 2016 thru 17 71075AH01 Oct 2016 8-84038-85168-7 85168 8/8oz Orange Dream 72644AH01 thru 18 Mar 2016 thru 17 Machine 71075AH01 Oct 2016 8-84038-85169-4 85169 8/8oz Caribbean Passion 72644AH01 thru 18 Mar 2016 thru 17 71075AH01 Oct 2016 8-84038-85102-1 85102 8/8oz Green Fusion 72644AH01 thru 18 Mar 2016 thru 17 71075AH01 Oct 2016 8-84038-85167-0 85167 8/8oz Red Fusion 72644AH01 thru 18 Mar 2016 thru 17 71075AH01 Oct 2016 8-84038-85166-3 85166 8/8oz Blue Fusion 72644AH01 thru 18 Mar 2016 thru 17 71075AH01 Oct 2016 About Inventure Foods, Inc. With manufacturing facilities in Arizona, Indiana, Washington, Oregon and Georgia, Inventure Foods, Inc. (Nasdaq: SNAK) is a marketer and manufacturer of specialty food brands in better-for-you and indulgent categories under a variety of Company owned and licensed brand names, including Boulder Canyon FoodsTM, Jamba®, Seattle’s Best Coffee®, Rader Farms®, TGI FridaysTM, Nathan’s Famous®, Vidalia Brands®, Poore Brothers®, Tato Skins®, Willamette Valley Fruit CompanyTM, Fresh FrozenTM and Bob’s Texas Style®. For further information about Inventure Foods, please visit www.inventurefoods.com. ### https://www.sec.gov/Archives/edgar/data/944508/000110465915029844/a15-9766_1ex99d... 7/6/2017

Exhibit H

EXHIBIT H Page 1 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 2 of 53 DEF 14A 1 a16-2222_1def14a.htm DEF 14A Table of Contents UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 14A Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934 (Amendment No.) Filed by the Registrant x Filed by a Party other than the Registrant o Check the appropriate box: o Preliminary Proxy Statement o Confidential, for Use of the Commission Only (as permitted by Rule 14a 6(e)(2)) x Definitive Proxy Statement o Definitive Additional Materials o Soliciting Material under §240.14a 12 INVENTURE FOODS, INC. (Name of Registrant as Specified In Its Charter) (Name of Person(s) Filing Proxy Statement, if other than the Registrant) Payment of Filing Fee (Check the appropriate box): x No fee required. o Fee computed on table below per Exchange Act Rules 14a 6(i)(1) and 0-11. (1) Title of each class of securities to which transaction applies: (2) Aggregate number of securities to which transaction applies: (3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0 11 (set forth the amount on which the filing fee is calculated and state how it was determined): (4) Proposed maximum aggregate value of transaction: (5) Total fee paid: o Fee paid previously with preliminary materials. o Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. (1) Amount Previously Paid: (2) Form, Schedule or Registration Statement No.: (3) Filing Party: (4) Date Filed: https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 2 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 3 of 53 Table of Contents 5415 East High Street Suite 350 Phoenix, Arizona 85054 April 11, 2016 Dear Stockholder: You are cordially invited to attend this year’s Annual Meeting of Stockholders of Inventure Foods, Inc. on Wednesday, May 11, 2016, at 8:30 a.m., local time. The meeting will be held at the Fairmont Scottsdale Princess Resort, located at 7575 E. Princess Drive, Scottsdale, Arizona 85255. The meeting will commence with a discussion and voting on the matters set forth in the accompanying Notice of 2016 Annual Meeting of Stockholders, followed by presentations and a report on our operations. The Notice of 2016 Annual Meeting of Stockholders and the 2016 Proxy Statement, which describe the formal business to be conducted at the meeting, accompany this letter. A copy of our 2015 Annual Report to Stockholders is also enclosed for your information. The Notice of 2016 Annual Meeting of Stockholders, the 2016 Proxy Statement and the 2015 Annual Report to Stockholders are also available on the Company’s website at www.inventurefoods.com on the "Annual Report and Proxy" section of the "Investor Relations" page. Whether or not you plan to attend the meeting, your vote is very important and we encourage you to vote promptly. After reading the 2016 Proxy Statement, please promptly mark, sign and date the enclosed proxy card and return it in the prepaid envelope. If you attend the meeting you will, of course, have the right to revoke the proxy and vote your shares in person. If you hold your shares through an account with a brokerage firm, bank or other nominee, please follow the instructions you receive from your brokerage firm, bank or other nominee to vote your shares. We look forward to seeing you at the 2016 Annual Meeting of Stockholders. Sincerely yours, Terry McDaniel Chief Executive Officer Table of Contents https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 3 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 4 of 53 NOTICE OF 2016 ANNUAL MEETING OF STOCKHOLDERS Time and Date: 8:30 a.m., local time, on Wednesday, May 11, 2016 Place: Fairmont Scottsdale Princess Resort, 7575 E. Princess Drive, Scottsdale, Arizona 85255 Items of Business: (1) To elect seven Directors to hold office until the next annual meeting and until their respective successors are elected and qualified. (2) To vote on an advisory (non-binding) resolution to approve the compensation of our Named Executive Officers (as defined in the Proxy Statement for the 2016 Annual Meeting). (3) To approve an amendment to our Certificate of Incorporation, as amended, to effect the elimination of Article EIGHTH. (4) To ratify the appointment of Moss Adams LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2016. (5) To transact such other business as may properly come before the meeting or any adjournment or postponement of the meeting. Adjournments and Any action on the items of business described above may be considered at the 2016 Annual Postponements: Meeting of Stockholders (the "2016 Annual Meeting") at the time and on the date specified above or at any time and date to which the 2016 Annual Meeting may be properly adjourned or postponed. Record Date: You are entitled to vote at the 2016 Annual Meeting and any adjournments or postponements thereof if you were a stockholder at the close of business on March 28, 2016 (the "Record Date"). Meeting Admission: You are entitled to attend the 2016 Annual Meeting only if you were a stockholder of Inventure Foods, Inc. as of the close of business on the Record Date or hold a valid proxy to vote at the 2016 Annual Meeting. Since seating is limited, admission to the 2016 Annual Meeting will be on a first-come, first served basis. You should be prepared to present photo identification for admittance. Voting: Your vote is very important. Whether or not you plan to attend the 2016 Annual Meeting, we encourage you to read the Proxy Statement for the 2016 Annual Meeting and submit your proxy or voting instructions as soon as possible. For specific instructions on how to vote your shares, please refer to the instructions on the enclosed proxy card. List of Stockholders: For ten days prior to the 2016 Annual Meeting, a complete list of stockholders entitled to vote at such meeting will be available for examination by any stockholder, for any purpose germane to the meeting, during ordinary business hours at our principal offices located at 5415 East High Street, Suite 350, Phoenix, Arizona 85054. Recommendation of The Board of Directors of Inventure Foods, Inc. recommends a vote "FOR" Items 1, 2, 3, and 4. the Board of Directors: By order of the Board of Directors, Steve Weinberger Secretary April 11, 2016 https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 4 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 5 of 53 IMPORTANT: Please mark, date and sign the enclosed proxy card and promptly return it in the accompanying postage-paid envelope to assure that your shares are represented at the meeting. If you attend the meeting, you may choose to vote in person even if you have previously sent in your proxy card. IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE 2016 Annual Meeting OF STOCKHOLDERS TO BE HELD ON MAY 11, 2016: Our 2016 Proxy Statement is enclosed. Financial and other information concerning Inventure Foods, Inc. is contained in our Annual Report to Stockholders for the fiscal year ended December 26, 2015. A complete set of proxy materials relating to our 2016 Annual Meeting, consisting of the Notice of 2016 Annual Meeting of Stockholders, the 2016 Proxy Statement, the Proxy Card and the 2015 Annual Report to Stockholders, is available on the Internet and may be viewed at www.inventurefoods.com on the "Annual Report and Proxy" section of the "Investor Relations" page. Table of Contents TABLE OF CONTENTS QUESTIONS AND ANSWERS ABOUT THE PROXY MATERIALS AND THE 2016 ANNUAL MEETING 1 CORPORATE GOVERNANCE 6 PROPOSAL ONE 11 PROPOSAL TWO 14 PROPOSAL THREE 15 PROPOSAL FOUR 16 REPORT OF THE AUDIT COMMITTEE 18 EXECUTIVE COMPENSATION 19 Compensation Discussion and Analysis 19 Executive Summary 19 Our Executive Compensation Program Framework 20 The Decision Making Process 22 Compensation Policies and Practices as Related to Risk Management 24 Our Executive Compensation Program in Detail 24 Other Practices, Polices and Guidelines 26 Executive Compensation Tables 28 2015 Summary Compensation Table 28 2015 Grants of Plan-Based Awards 29 2015 Outstanding Equity Awards at Fiscal Year End 30 Option Exercises and Stock Vested During 2015 31 2015 Pension Benefits 31 https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 5 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 6 of 53 2015 Nonqualified Defined Contribution and Other Nonqualified Deferred Compensation Plans 31 Potential Payments upon Termination or Change in Control 32 Employment Agreements 33 2015 Compensation of Directors 35 Compensation Committee Interlocks and Insider Participation 36 Compensation Committee Report 36 CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS 37 SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT 38 SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE 40 STOCKHOLDER PROPOSALS OR NOMINATIONS TO BE PRESENTED AT NEXT ANNUAL MEETING 40 TRANSACTION OF OTHER BUSINESS 40 STOCKHOLDERS SHARING THE SAME LAST NAME AND ADDRESS 41 AVAILABILITY OF ANNUAL REPORT ON FORM 10-K AND 2015 ANNUAL REPORT TO STOCKHOLDERS 41 APPENDIX A – CERTIFICATE OF AMENDMENT TO THE CERTIFICATE OF INCORPORATION A-1 APPENDIX B – RECONCILIATION OF NON-GAAP MEASURES B-1 i Table of Contents INVENTURE FOODS, INC. 5415 EAST HIGH STREET SUITE 350 PHOENIX, ARIZONA 85054 PROXY STATEMENT FOR 2016 ANNUAL MEETING OF STOCKHOLDERS TO BE HELD MAY 11, 2016 QUESTIONS AND ANSWERS ABOUT THE PROXY MATERIALS AND THE 2016 ANNUAL MEETING Proxy Materials Why am I receiving these materials? The Board of Directors of Inventure Foods, Inc. (the "Company," "Inventure Foods," "we, "us" and "our") has delivered printed versions of the proxy materials to you by mail on or about April 11, 2016, and has also made these materials available to you on the Internet, in connection with the solicitation of proxies for use at the Company’s 2016 Annual Meeting of Stockholders, which will take place on Wednesday, May 11, 2016 at 8:30 a.m., local time (the "2016 Annual Meeting"), at the Fairmont Scottsdale Princess Resort, 7575 E. Princess Drive, Scottsdale, Arizona 85255. As a https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 6 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 7 of 53 stockholder, you are invited to attend the 2016 Annual Meeting and are requested to vote on the proposals described in this Proxy Statement for the 2016 Annual Meeting (this "2016 Proxy Statement"). This 2016 Proxy Statement includes information that we are required to provide to you under Securities and Exchange Commission ("SEC") rules and is designed to assist you in voting your shares. What is included in these materials? The proxy materials include: · This 2016 Proxy Statement for the 2016 Annual Meeting; · Our 2015 Annual Report to Stockholders, which includes our annual report on Form 10-K for the fiscal year ended December 26, 2015 (the "2015 Annual Report"); and · The proxy card or a voting instruction card for the 2016 Annual Meeting. How can I access the proxy materials over the Internet? You have received printed copies of the proxy materials. Our proxy materials are also available on our website at www.inventurefoods.com on the "Annual Report and Proxy" section of the "Investor Relations" page. If you choose to receive our future proxy materials electronically, it will save us the cost of printing and mailing documents to you and will reduce the impact of printing and mailing these materials on the environment. If you choose to receive future proxy materials electronically, you will receive an e-mail next year with instructions containing a link to the website where those materials are available. Your election to receive proxy materials electronically will remain in effect until you terminate it. How may I obtain a paper copy of the proxy materials? Stockholders receiving notice of the availability of the proxy materials by e-mail will find instructions in that e-mail about how to obtain a paper copy of the proxy materials. Stockholders who have previously submitted a standing request to receive paper copies of our proxy materials will receive a paper copy of the proxy materials by mail. What shares are included on the proxy card? If you are a stockholder of record, you will receive only one proxy card for all the shares you hold of record: · in certificate form; and · in book-entry form. If you are a beneficial owner, you will receive voting instructions from your broker, bank or other holder of record. 1 Table of Contents What is "householding" and how does it affect me? We have adopted a procedure approved by the SEC called "householding." Under this procedure, stockholders of record who have the same address and last name and do not participate in electronic delivery of proxy materials will receive only one copy of the Notice of 2016 Annual Meeting of Stockholders (the "Notice of 2016 Annual Meeting"), this 2016 Proxy Statement and the 2015 Annual Report, unless we are notified that one or more of these stockholders wishes to continue receiving individual copies. This procedure will reduce our printing costs and postage fees. Stockholders who participate in householding will continue to receive separate proxy cards. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 7 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 8 of 53 If you are eligible for householding, but you and other stockholders of record with whom you share an address currently receive multiple copies of the Notice of 2016 Annual Meeting, this 2016 Proxy Statement and any accompanying documents, or if you hold stock of the Company in more than one account, and in either case you wish to receive only a single copy of each of these documents for your household, please contact the Corporate Secretary of the Company by sending a written request to Inventure Foods, Inc., Corporate Secretary, 5415 East High Street, Suite 350, Phoenix, Arizona 85054, or by calling (623) 932-6200. If you participate in householding and wish to receive, free of charge, a separate copy of the Notice of 2016 Annual Meeting, this 2016 Proxy Statement and any accompanying documents, or if you do not wish to continue to participate in householding and prefer to receive separate copies of these documents in the future, please contact the Corporate Secretary of the Company as set forth above. If you are a beneficial owner, you can request information about householding from your broker, bank or other holder of record. Voting Information What items of business will be voted on at the 2016 Annual Meeting? The items of business scheduled to be voted on at the 2016 Annual Meeting are: (1) To elect seven Directors to hold office until the next annual meeting and until their respective successors are elected and qualified. (2) To vote on an advisory (non-binding) resolution to approve the compensation of the Company’s named executive officers for the fiscal year ended December 26, 2015 ("Named Executive Officers" or "NEOs"). (3) To approve an amendment to the Company’s Certificate of Incorporation, as amended ("Certificate of Incorporation"), to effect the elimination of Article EIGHTH. (4) To ratify the appointment of Moss Adams LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2016. (5) To transact such other business as may properly come before the meeting or any adjournment or postponement of the meeting. We will also consider any other business that properly comes before the 2016 Annual Meeting. How does the Board recommend that I vote? The Board unanimously recommends that you vote your shares: · "FOR" the election of each of the nominees for Director listed in Proposal One. · "FOR" the approval, on an advisory basis, of the compensation of our NEOs. · "FOR" the approval of the amendment to the Certificate of Incorporation to effect the elimination of Article EIGHTH. · "FOR" the ratification of the appointment of Moss Adams LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2016. 2 Table of Contents Who is entitled to vote at the 2016 Annual Meeting? https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 8 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 9 of 53 Only stockholders of record at the close of business on March 28, 2016 (the "Record Date") will be entitled to vote at the 2016 Annual Meeting. As of the Record Date, 19,575,169 shares of our common stock were outstanding and entitled to vote. Each share of our common stock outstanding on the Record Date is entitled to one vote on each of the seven Director nominees and one vote on each other matter. Is there a list of stockholders entitled to vote at the Annual Meeting? The names of stockholders of record entitled to vote at the 2016 Annual Meeting will be available at the 2016 Annual Meeting and for ten days prior to the 2016 Annual Meeting for any purpose germane to the 2016 Annual Meeting, between the hours of 9:00 a.m. and 4:30 p.m., at our principal executive offices at 5415 East High Street, Suite 350, Phoenix, Arizona 85054, by contacting the Corporate Secretary of the Company. How can I vote if I own shares directly? Most stockholders do not own shares registered directly in their name, but rather are "beneficial holders" of shares held in a stock brokerage account or by a bank or other nominee (that is, shares held "in street name"). Those stockholders should refer to "How can I vote if my shares are held in a stock brokerage account, or by a bank or other nominee?" below for instructions regarding how to vote their shares. If, however, your shares are registered directly in your name with our transfer agent, American Stock Transfer & Trust Co., you are considered, with respect to those shares, the stockholder of record, and these proxy materials are being sent directly to you. You may vote in the following ways: · By Mail: Votes may be cast by mail, as long as the proxy card or voting instruction card is delivered to the Company prior to 11:59 p.m., local time, on Tuesday, May 10, 2016. Stockholders who have received a paper copy of a proxy card or voting instruction card by mail may submit proxies by completing, signing and dating their proxy card or voting instruction card and mailing it in the accompanying pre-addressed envelope; or · In Person: Attend the 2016 Annual Meeting and vote your shares in person. Whichever of these methods you select to transmit your instructions, the proxy holders will vote your shares in accordance with those instructions. If you vote by mail without giving specific voting instructions, your shares will be voted: · "FOR" Proposal One — The election of the seven nominees named herein to the Board of Directors. · "FOR" Proposal Two — The approval, on an advisory basis, of the compensation of our NEOs. · "FOR" Proposal Three — The approval of the amendment to the Certificate of Incorporation to effect the elimination of Article EIGHTH. · "FOR" Proposal Four — The ratification of the appointment of our independent registered public accounting firm. If no specific instructions are given, the shares will be voted in accordance with the recommendation of our Board of Directors and as the proxy holders may determine in their discretion with respect to any other matters that properly come before the meeting. How can I vote if my shares are held in a stock brokerage account, or by a bank or other nominee? If your shares are held in a stock brokerage account or by a bank or other nominee, you are considered the "beneficial owner" of shares held in "street name," and your broker or nominee is considered the "stockholder of record" with respect to those shares. Your broker or nominee should be forwarding these proxy materials to you. As the beneficial owner, you have the right to direct your broker, bank or other nominee how to vote, and you are also invited to attend the 2016 Annual Meeting. However, since you are not the stockholder of record, you may not vote these shares in person at the https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 9 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 10 of 53 2016 Annual Meeting. If a broker, bank or other nominee holds your shares, you will receive instructions from them that you must follow in order to have your shares voted. 3 Table of Contents What is a quorum for the 2016 Annual Meeting? The presence of the holders of stock representing a majority of the voting power of all shares of stock issued and outstanding as of the Record Date, represented in person or by proxy, is necessary to constitute a quorum for the transaction of business at the 2016 Annual Meeting. Your shares will be counted towards the quorum only if you submit a valid proxy (or one is submitted on your behalf by your broker) or if you vote in person at the 2016 Annual Meeting. Abstentions and broker non-votes will be counted as present for purposes of determining a quorum. What is the voting requirement to approve each of the proposals? Broker Discretionary Voting Proposals Vote Required Allowed Proposal One — Election of Directors Director nominees receiving No the highest number of "FOR" votes Proposal Two — Advisory Vote on Executive Compensation Majority of Votes Present and No Entitled to Vote Proposal Three — Amendment to the Certificate of Incorporation to Majority of Outstanding No Eliminate Article EIGHTH Shares Entitled to Vote Proposal Four — Ratification of Appointment of Moss Adams LLP Majority of Votes Present and Yes Entitled to Vote Election of Directors For the election of Directors, the seven Director nominees who receive the highest number of "FOR" votes will be elected as Directors. You may vote "FOR" or "WITHHOLD" with respect to each Director nominee. Votes that are withheld will be excluded entirely from the vote with respect to the nominee from which they are withheld and will have the same effect as an abstention. Advisory Vote on Executive Compensation The affirmative vote of a majority of the shares present or represented by proxy and entitled to vote on this proposal is required to approve, on an advisory basis, the compensation of our NEOs. Abstentions will be counted as if voted "AGAINST" this proposal. Broker non-votes will have no effect on this proposal. Amendment to the Certificate of Incorporation to Eliminate Article EIGHTH The affirmative vote of the holders of a majority of the combined voting power of all outstanding shares of stock of the Company entitled to vote on this proposal is required to approve an amendment to the Certificate of Incorporation to effect the elimination of Article EIGHTH. Abstentions and broker non-votes will be counted as if voted "AGAINST" this proposal. Ratification of Moss Adams LLP https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 10 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 11 of 53 The affirmative vote of a majority of the shares present or represented by proxy and entitled to vote on this proposal is required to approve the ratification of Moss Adams LLP as our independent registered public accounting firm. Abstentions will be counted as if voted "AGAINST" this proposal. What is the effect of abstentions and broker non-votes? Shares not present at the meeting and shares voted "WITHHOLD" will have no effect on the election of Directors. For each of the other proposals, abstentions will have the same effect as an "AGAINST" vote. If you are a beneficial owner and hold your shares in "street name" in an account at a bank or brokerage firm, it is critical that you cast your vote if you want it to count in the election of Directors, the advisory vote on executive compensation, and the approval of the amendment to the Certificate of Incorporation. Under the rules governing banks and brokers who submit a proxy card with respect to shares held in "street name," such banks and brokers have the discretion to vote on routine matters, but not on non-routine matters. Routine matters include the ratification of auditors. Non-routine matters include the election of Directors, the advisory vote on executive compensation, and the approval of the amendment to the Certificate of Incorporation. Banks and brokers may not vote on these proposals if you do not provide specific voting instructions. Accordingly, we encourage you to vote promptly, even if you plan to attend the 2016 Annual Meeting. In tabulating the voting results for any particular proposal, shares that constitute broker non-votes are not considered entitled to vote on that proposal. 4 Table of Contents Can I change my vote or revoke my proxy? Subject to any rules and deadlines your broker, trustee or nominee may have, you may change your proxy instructions at any time before your proxy is voted at the 2016 Annual Meeting. If you are a stockholder of record, you may change your vote by (1) filing with the Company’s Corporate Secretary, prior to your shares being voted at the 2016 Annual Meeting, a written notice of revocation or a duly executed proxy card, in either case dated later than the prior proxy card relating to the same shares, or (2) attending the 2016 Annual Meeting and voting in person (although attendance at the 2016 Annual Meeting will not, by itself, revoke a proxy). If you are a beneficial owner of shares held in street name, you may change your vote (1) by submitting new voting instructions to your broker, trustee or other nominee, or (2) if you have obtained a legal proxy from the broker, trustee or other nominee that holds your shares giving you the right to vote the shares, by attending the 2016 Annual Meeting and voting in person. Any written notice of revocation or subsequent proxy card must be received by the Company’s Corporate Secretary prior to the taking of the vote at the 2016 Annual Meeting. Is my vote confidential? Proxy instructions, ballots, and voting tabulations that identify individual stockholders are handled in a manner that protects your voting privacy. Your vote will not be disclosed either within the Company or to third parties, except: (1) as necessary to meet applicable legal requirements, (2) to allow for the tabulation of votes and certification of the vote, and (3) to facilitate a successful proxy solicitation. Occasionally, stockholders provide on their proxy card written comments, which are then forwarded to the Company’s Corporate Secretary. Who will count the votes? Our Corporate Secretary, Steve Weinberger, will tabulate the votes and act as inspector of election. Where can I find the voting results of the 2016 Annual Meeting? We intend to announce preliminary voting results at the 2016 Annual Meeting and publish final results in a Current Report on Form 8-K report to be filed with the SEC within four business days of the 2016 Annual Meeting. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 11 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 12 of 53 Attending the 2016 Annual Meeting How can I attend the 2016 Annual Meeting? You are entitled to attend the 2016 Annual Meeting only if you were a stockholder of the Company as of the Record Date. Since seating is limited, admission to the meeting will be on a first come, first served basis. If you are not a stockholder of record but hold shares as a beneficial owner in street name, you must provide proof of beneficial ownership as of the Record Date, such as your most recent account statement prior to March 28, 2016, a copy of the voting instruction card provided by your broker, bank, trustee, or nominee, or other similar evidence of ownership. What happens if additional matters are presented at the 2016 Annual Meeting? If any other matters are properly presented for consideration at the 2016 Annual Meeting, including, among other things, consideration of a motion to adjourn the 2016 Annual Meeting to another time or place (including, without limitation, for the purpose of soliciting additional proxies), the persons named in the proxy card and acting thereunder will have discretion to vote on those matters in accordance with their best judgment. The Company does not currently anticipate that any other matters will be raised at the 2016 Annual Meeting. Who will bear the cost of soliciting votes for the 2016 Annual Meeting? The Company will bear the cost of preparing, assembling, printing, mailing and distributing these proxy materials and soliciting votes. If you choose to access the proxy materials over the Internet, you are responsible for Internet access charges you may incur. In addition, we will request banks, brokers and other intermediaries holding shares of our common stock beneficially owned by others to obtain proxies from the beneficial owners and will reimburse them for their reasonable expenses in so doing. Solicitation of proxies by mail may be supplemented by telephone, by electronic communications and personal solicitation by our officers, Directors and employees. No additional compensation will be paid to our officers, Directors or employees for such solicitation. 5 Table of Contents CORPORATE GOVERNANCE Governance Information Director Qualification Standards and Review of Director Nominees The Board of Directors does not currently have a separate Nominating and Corporate Governance Committee. On September 18, 2013, the Compensation Committee was reconstituted to perform functions similar to a Nominating and Corporate Governance Committee. The Compensation Committee makes recommendations to the Board of Directors regarding the size and composition of the Board of Directors and is responsible for screening and reviewing potential Director candidates and recommending qualified candidates to the Board of Directors for nomination. In identifying potential candidates, the Compensation Committee may rely on suggestions and recommendations from the Board of Directors, management, stockholders and others, and may also retain search firms for assistance. The Board of Directors believes that this process is as effective in nominating qualified Director candidates as is instituting a separate committee under a separate charter. Because the Board of Directors also believes that the Compensation Committee is in the best position to locate qualified candidates, the Board of Directors does not currently have a policy with regard to the consideration of any Director candidates recommended by stockholders. Nominations from stockholders must be addressed and received in accordance with the instructions set forth under "Stockholder Proposals or Nominations to be Presented at Next Annual Meeting" later in this 2016 Proxy Statement in order to be included in the proxy statement relating to the next annual election of Directors. Criteria for Board of Directors Membership Board of Directors candidates, including Directors up for reelection, are considered based upon various criteria, including, but not limited to, broad-based business and professional skills and experience, understanding of the Company’s business and markets, concern for the long-term interests of our stockholders, personal integrity, freedom from conflicts of https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 12 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 13 of 53 interest, sound business judgment, and time available to devote to Board of Directors’ activities. The Board of Directors has not established any specific minimum qualification standards for nominees to the Board of Directors, although from time to time the Board of Directors may identify certain skills or attributes as being particularly desirable to help meet specific Board of Director needs that have arisen. While the Board of Directors does not have a formal diversity policy for Board membership, the Board seeks Directors who represent a mix of backgrounds and experiences that will enhance the quality of the deliberations and decisions of the Board of Directors. In addition, the Board of Directors is committed to considering candidates for the Board regardless of gender, ethnicity and national origin. We believe that the considerations and the flexibility of our nomination process have created Board diversity of a type that is effective for the Company. Director Independence The Board of Directors has determined that, other than Terry McDaniel, our Chief Executive Officer ("CEO"), and Mr. Edmonson, each of the current members of the Board of Directors is an "independent director" for purposes of the Nasdaq Listing Rules and Rule 10A-3(b)(1) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as the term relates to membership on the Board of Directors and the various committees of the Board of Directors. Nasdaq’s independence definition includes a series of objective tests, such as that the Director has not been an employee of the Company within the past three years and has not engaged in various types of business dealings with the Company. In addition, as further required by Nasdaq Listing Rules, our Board has made an affirmative subjective determination as to each independent Director that no relationships exist which, in the opinion of the Board, would interfere with the exercise of independent judgment in carrying out the responsibilities of a Director. In making these determinations, the Board reviewed and discussed information provided by the Directors and us with regard to each Director’s business and personal activities as they may relate to the Company and our management. On an annual basis, each Director and executive officer is obligated to complete a Director and Officer Questionnaire that requires disclosure of any transactions with the Company in which the Director or executive officer, or any member of his or her family, have a direct or indirect material interest. For more information with respect to the related party transaction with Mr. Edmonson, see the "Certain Relationships and Related Transactions" section of this 2016 Proxy Statement. Based upon all of the elements of independence set forth in the Nasdaq Listing Rules, the Board of Directors has determined that each of the following current non-employee Directors is independent and has no relationship with the Company, except as a Director and stockholder of the Company: Ashton D. Asensio Paul J. Lapadat Timothy A. Cole David L. Meyers Harold S. Edwards 6 Table of Contents Board of Directors Leadership Structure The Board of Directors recognizes that one of its key responsibilities is to evaluate and determine its optimal leadership structure so as to provide independent oversight of management. The Board of Directors understands that there is no single, generally accepted approach to providing Board of Directors leadership, and that given the dynamic and competitive environment in which we operate, the right Board of Directors leadership structure may vary as circumstances warrant. We currently separate the roles of CEO and Chairman of the Board of Directors in recognition of the differences between the two roles. The CEO is responsible for setting the strategic direction for the Company and the day-to-day leadership and performance of the Company, while the Chairman of the Board of Directors provides guidance to the CEO and sets the agenda for meetings of the Board of Directors and presides over meetings of the full Board of Directors. The Board of Directors believes this leadership structure is optimal for the Company at the current time. The Board of Directors also believes that the current leadership structure provides independent oversight and management accountability through regular executive sessions of the independent Directors, which are chaired by the Chairman of the Board of Directors, as well as through a Board of Directors composed of a majority of independent Directors. In the event that our CEO is also the Chairman of the Board of Directors, our independent Directors would elect a Lead Independent Director to be responsible for coordinating the activities of the other independent Directors and perform various other duties. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 13 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 14 of 53 Board of Directors Role in Risk Oversight Mr. David L. Meyers has served as Chairman of our Board of Directors since September 18, 2013, Mr. Ashton D. Asensio has served as Chairman of our Audit Committee since 2006, and Mr. Paul J. Lapadat has served as Chairman of our Compensation Committee since September 18, 2013. Messrs. Meyers, Asensio and Lapadat provide strong independent leadership in their respective functions. It is management’s responsibility to manage risk and bring to the Board of Directors’ attention the most material risks to the Company, but the Board of Directors has oversight responsibility of the processes established to report and monitor systems for material risks applicable to the Company. Our Chairman of the Board of Directors and our Audit Committee and Compensation Committee help facilitate this oversight function. The full Board of Directors considers strategic risks and opportunities and regularly reviews enterprise-wide risk management, including food safety, internal controls, compliance and ethics, insurance, and operations. Our Audit Committee regularly reviews risks related to internal controls over financial reporting and periodically reviews risks related to cybersecurity matters, and our Compensation Committee regularly reviews risks related to the attraction and retention of talent and risks relating to the design of our compensation programs and arrangements for our executive officers. Please refer to the "Executive Compensation — Compensation Discussion and Analysis — Compensation Policies and Practices as Related to Risk Management" section elsewhere in this 2016 Proxy Statement for further details regarding risks relating to the design of compensation programs and arrangements for executive officers. The full Board of Directors regularly receives detailed reports from the Audit Committee and Compensation Committee regarding risk oversight in their areas of responsibility. Executive Sessions Non-management Directors meet in executive session without management present each time the Board of Directors holds its regularly scheduled meetings. In lieu of a regularly presiding Director, these executive sessions are presided over by the Chairman of the Board of Directors. In conjunction with regularly scheduled Board of Directors meetings, the Board of Directors intends to hold executive sessions at which only those Directors who are "independent," within the meaning of currently applicable Exchange Act rules and Nasdaq Listing Rules, are present. Stockholder Communications with Directors Stockholders who wish to communicate with the Board of Directors, the non-management Directors or an individual Director may do so by sending a letter to the Corporate Secretary of the Company at 5415 East High Street, Suite 350, Phoenix, Arizona 85054. The mailing envelope must contain a clear notation indicating that the enclosed letter is a "Stockholder-Board Communication." The Corporate Secretary has been authorized to screen commercial solicitations and materials which (1) pose security risks, (2) are unrelated to the business or governance of the Company, (3) relate to routine or insignificant matters that do not warrant the attention of the Board of Directors, (4) are frivolous or offensive, or (5) are otherwise inappropriate. All such letters must identify the author as a stockholder and clearly state whether the intended recipients are all of the members of the Board of Directors, the non-management Directors, or certain individual members of the Board of Directors. The Corporate Secretary will make copies of all such letters and circulate them to the appropriate Director(s). Indemnification of Directors and Officers As required by our Second Amended and Restated Bylaws ("Bylaws"), we indemnify our Directors and elected officers to the fullest extent permitted by law so that they will be free from undue concern about personal liability in connection with their service to the Company. 7 Table of Contents Policies on Business Conduct and Ethics All of our employees, including our CEO and Chief Financial Officer ("CFO"), are required to abide by our Code of Business Conduct and Ethics to ensure that our business is conducted in a consistently legal and ethical manner. These policies form the foundation of a process that includes compliance with corporate policies and procedures, an open relationship among colleagues that contributes to good business conduct, and a commitment to full compliance with all laws and regulations affecting the Company’s business. Our policies and procedures cover all major areas of professional https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 14 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 15 of 53 conduct, including employment policies, conflicts of interest, intellectual property and the protection of confidential information, as well as strict adherence to laws and regulations applicable to the conduct of our business. Employees are required to report any conduct that they believe in good faith to be an actual or apparent violation of our Code of Business Conduct and Ethics. As required by the Sarbanes-Oxley Act of 2002, our Audit Committee has procedures to receive, retain and treat complaints received regarding accounting, internal accounting controls or auditing matters and to allow for the confidential and anonymous submission by employees of concerns regarding questionable accounting or auditing matters. The Company’s CEO, CFO, executive management members and finance managers (the "Financial Leaders") are also required to abide by our supplemental Financial Code of Ethics. The supplemental Financial Code of Ethics sets forth specific policies to guide the Financial Leaders in the performance of their duties, including policies addressing compliance with laws, rules and regulations, conflicts of interest, and disclosures in the Company’s periodic reports and other public communications. The full text of both the Code of Business Conduct and Ethics and the supplemental Financial Code of Ethics are posted on the "Investor Relations — Governance Documents" section of our website at www.inventurefoods.com. We will disclose any future amendments to, or waivers from, provisions of these ethics policies and standards on our website as promptly as practicable, as may be required under applicable SEC and Nasdaq rules and, to the extent required, by filing Current Reports on Form 8-K with the SEC disclosing such information. Board and Committee Membership Meetings of the Board of Directors and Committees The Board of Directors held fourteen meetings during the fiscal year ended December 26, 2015. The Board of Directors has two standing committees: an Audit Committee and a Compensation Committee. On September 18, 2013, the Compensation Committee was reconstituted to also perform functions similar to a Nominating and Corporate Governance Committee. During fiscal 2015, each of our Directors attended at least 75% of the combined number of meetings of the Board of Directors and of the committees of the Board of Directors on which such Director served during that period. The following table sets forth the standing committees of the Board of Directors and the members of each such committee for fiscal 2015: Director Audit Committee (1) Compensation Committee (1) Ashton D. Asensio (2) Chair — Timothy A. Cole (3) — Member Macon Bryce Edmonson — — Harold S. Edwards (4) Member — Paul J. Lapadat (5) Member Chair David L. Meyers (6) — Member Total Meetings During Fiscal 2015 Four Three (1) Our Chairman of the Board of Directors is invited to attend each committee meeting in which he was not already a member in an ex officio role. (2) Mr. Asensio is Chair of the Audit Committee. He attended all four meetings of the Audit Committee held during fiscal 2015. (3) Mr. Cole is a member of the Compensation Committee. He attended all three meetings of the Compensation Committee held during fiscal 2015. (4) Mr. Edwards is a member of the Audit Committee. He attended all four meetings of the Audit Committee held during fiscal 2015. (5) Mr. Lapadat is Chair of the Compensation Committee and a member of the Audit Committee. He attended three of the four meetings of the Audit Committee and all three meetings of the Compensation Committee held during fiscal 2015. (6) Mr. Meyers is a member of the Compensation Committee. He attended all three meetings of the Compensation Committee held during fiscal 2015. 8 https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 15 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 16 of 53 Table of Contents Audit Committee The current members of the Audit Committee are Messrs. Asensio (Chair), Edwards and Lapadat. Each of the members of the Audit Committee is independent for purposes of the Nasdaq Listing Rules as they apply to audit committee members. The Board of Directors has determined that Mr. Asensio qualifies as an "audit committee financial expert" under the rules of the SEC. The Audit Committee has the responsibility to assist the Board of Directors in its oversight of the integrity of the Company’s financial statements, the qualification and independence of the Company’s independent auditors, and the performance of the independent auditors. Management has primary responsibility for the Company’s financial statements and reporting process and internal controls. The Company’s independent auditors are responsible for auditing the financial statements in accordance with the standards of the Public Company Accounting Oversight Board (United States) and issuing an opinion as to whether the Company’s financial statements are, in all material respects, presented fairly in conformity with such principles. The Audit Committee oversees the Company’s financial reporting process, hires and sets the compensation of the Company’s independent auditors, pre-approves all audit and non-audit engagements of the Company’s independent auditors and related party transactions, reviews reports from the Company’s independent auditors and the Company’s financial statements, monitors and informs the Board of the Company’s accounting policies and internal controls, reviews the scope of the audit, and monitors the quality and objectivity of the Company’s financial statements and the independence of the Company’s independent auditors. In addition, pursuant to its charter, the Audit Committee performs an annual evaluation of the adequacy of the Audit Committee’s charter. A copy of the Audit Committee charter is available on the "Investor Relations — Governance Documents" section of our website at www.inventurefoods.com. Additional information regarding the Audit Committee is set forth in the "Report of the Audit Committee" immediately following Proposal Four. Compensation Committee The current members of the Compensation Committee are Messrs. Lapadat (Chair), Cole and Meyers. The Board has determined that each of the Compensation Committee members is an "outside director" within the meaning of the regulations under Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code"), a "non-employee director" under Rule 16b-3 of the Exchange Act, and "independent" within the meaning of currently applicable Exchange Act rules and Nasdaq Listing Rules. The Compensation Committee evaluates the performance and reviews and approves the compensation of our executive officers, including our CEO. Please refer to the "Compensation Discussion and Analysis" section of this 2016 Proxy Statement for further details regarding the Company’s compensation program. A copy of the Compensation Committee charter is available on the "Investor Relations — Governance Documents" section of our website at www.inventurefoods.com. The Compensation Committee also reviews, approves and recommends to the Board of Directors for approval the compensation of the members of the Board of Directors. In approving Director compensation, the Compensation Committee considers the anticipated number of meetings of the Board of Directors and its committees and data regarding Director compensation for similar size companies in similar industries. On September 18, 2013, the Compensation Committee was reconstituted to perform functions similar to a Nominating and Corporate Governance Committee. As such, the Compensation Committee also considers qualified candidates for appointment and nomination for election to the Board of Directors and makes recommendations concerning such candidates. The Compensation Committee may retain outside compensation consulting firms to assist in the evaluation of executive officer and non-employee Director compensation, and has the authority to obtain advice and assistance from internal or external legal, accounting and other consultants. During fiscal 2015, the Compensation Committee worked with an outside compensation consulting firm who was engaged to assist the Compensation Committee with certain executive compensation matters for the Company. Specifically, pursuant to the authority granted to it in its charter, in March 2015 the Compensation Committee retained Mercer ("Mercer") as its executive compensation consultant. Mercer was similarly engaged by the Compensation Committee in fiscal 2014. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 16 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 17 of 53 Mercer was engaged by the Compensation Committee pursuant to a separate written consulting agreement with the Compensation Committee. In its role as a consultant to the Compensation Committee, Mercer reported directly, and was accountable, to the Compensation Committee. Under the terms of the Mercer engagement, Mercer assisted in the review of the Company’s then proposed 2015 Equity Incentive Plan (the "2015 Plan") being submitted for approval by the Company’s stockholders. Mercer did not provide any other services to the Company during fiscal 2015. None of the Company’s management participated in the Compensation Committee’s decision to retain Mercer. Mercer reported directly to the Compensation Committee. The Compensation Committee has the authority to replace its consultants or hire additional consultants at any time. Mercer attended meetings of the Compensation Committee, as requested, and communicated with the Compensation Committee Chairman between meetings. The Compensation Committee made all decisions regarding the compensation of the Company’s executive officers. 9 Table of Contents The Compensation Committee regularly reviews the services provided by its outside consultants and believes that Mercer is independent in providing executive compensation consulting services. The Compensation Committee conducted a specific review of its relationship with Mercer in fiscal 2015, and determined that Mercer’s work for the Compensation Committee did not raise any conflicts of interest, consistent with the rules and guidance provided under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the "Dodd-Frank Act"), the SEC and Nasdaq. The Compensation Committee monitors the independence of its compensation consultant on a periodic basis. Please refer to "Executive Compensation" elsewhere in this 2016 Proxy Statement for additional details regarding the Company’s compensation consultants. Director Attendance at Annual Meetings We attempt to schedule our annual meeting of stockholders at a time and date to accommodate attendance by Directors taking into account the Directors’ schedules. All Directors are encouraged to attend our 2016 Annual Meeting. All of our current Directors attended our last annual meeting of stockholders held on May 20, 2015. 10 Table of Contents PROPOSAL ONE ELECTION OF DIRECTORS (Item 1 on the Proxy Card) The Bylaws of the Company provide that the number of Directors constituting the Board of Directors shall be determined by resolution of the Board of Directors at any meeting or by the stockholders at an annual meeting. The Board of Directors of the Company has set the number of Directors comprising the Board of Directors at seven. There are seven nominees for Director to be voted on at the 2016 Annual Meeting. Each Director to be elected will hold office until the next annual meeting and until his respective successor is elected and qualified. If any of the nominees declines to serve or becomes unavailable for any reason, or if a vacancy occurs before the election (although we know of no reason to anticipate that this will occur), the proxies may be voted for such substitute nominees as we may designate. The seven nominees receiving the highest number of "FOR" votes will be elected as Directors. A "WITHHOLD" vote will have no effect on the vote. The Board of Directors recommends that you vote "FOR" the Director nominees named below. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 17 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 18 of 53 Director Nominees The table below sets forth the names and ages of the Director nominees and, where applicable, the year each first became a Director of the Company. Year First Became a Name Age Director of the Company Ashton D. Asensio 71 2006 Timothy A. Cole 58 2014 Macon Bryce Edmonson 61 2006 Harold S. Edwards 50 2014 Paul J. Lapadat 50 2013 Terry McDaniel 59 2008 David L. Meyers 70 2013 The following information relates to each person nominated to be a Director, which collectively constitute all of the Directors of the Company whose terms will continue after the 2016 Annual Meeting. Where applicable, the information includes any publicly traded company directorships and certain other directorships held by each Director during the past five years. Ashton D. Asensio. Mr. Asensio has served as a Director of the Company since February 2006 and was appointed Chairman of the Audit Committee in July 2006. Mr. Asensio is a financial and operations consultant. From January 2009 to June 2013, he served as CFO of Security Alarm Financing Enterprises, L.P., a California security alarm account aggregator. From 2003 to January 2009, Mr. Asensio was a financial and operations consultant. From March 2005 to January 2009, Mr. Asensio provided consulting services to American Pacific Financial Corp., a Grand Terrace, California-based asset management firm ("APFC"), and various entities in which APFC had an ownership interest, including Realty Information Systems, Inc., a franchising organization ("RIS"). From August 2005 to February 2006, Mr. Asensio served as CFO of RIS. On March 28, 2008, an involuntary action was filed against RIS under Chapter 7 of the Bankruptcy Code, 11 U.S.C. Section 101, et. seq. (the "Bankruptcy Code"), in the United States Bankruptcy Court for the District of Nevada. RIS disputed the petition, but subsequently consented to relief under Chapter 11 of the Bankruptcy Code on July 15, 2008. APFC and its affiliates prevailed as the successful credit bidder for the RIS assets in a sale pursuant to an order of the Bankruptcy Court on December 30, 2008. From March 1, 2008 through December 31, 2008, Mr. Asensio provided services to RIS as a consulting CFO under a consulting arrangement with RIS. From 1972 to 1979, Mr. Asensio served as a staff member and then audit manager for Peat Marwick Mitchell. Mr. Asensio received his Bachelor of Science degree in Accounting from Florida Atlantic University and received his Master of Accounting degree from Florida State University. The specific experience, qualifications, attributes or skills that led the Board of Directors to conclude that Mr. Asensio should serve as a Director in light of our business and structure were his advanced accounting education and extensive experience as a former certified public accountant and audit manager with a major independent auditing firm, and recent engagements as a CFO or financial consultant for private companies. Timothy A. Cole. Mr. Cole has served as a Director of the Company since May 2014. Mr. Cole served as Executive Vice President of Sales at Del Monte Foods, Inc., a Fortune 500 consumer packaged foods company, from 2004 until his retirement in 2014. From 1979 to 2004, Mr. Cole held a variety of positions with The Quaker Oats Company, now a unit of PepsiCo, Inc., where he became Vice President of National Accounts for the United States. Mr. Cole received his Bachelor of Science degree in Marketing from Florida State University and currently serves on the Board of Governors at Florida State University. 11 Table of Contents The specific experience, qualifications, attributes or skills that led the Board of Directors to conclude that Mr. Cole should serve as a Director in light of our business and structure were his senior executive experience with top consumer packaged goods companies and his experience as a sales executive. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 18 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 19 of 53 Macon Bryce Edmonson. Mr. Edmonson has served as a Director of the Company since July 2006 and was the Chairman of the Compensation Committee from October 2008 until September 2013. From January 2013 until December 2015, Mr. Edmonson was the CEO of Bland Farms, LLC, a large multinational farming and sales operation based in Glennville, Georgia. Mr. Edmonson is currently retained by Bland Farms to serve in an executive position on a part-time basis. Bland Farms is principally engaged in the production and sales of sweet onions. Mr. Edmonson served as a Senior Vice President ("SVP") in charge of the North American business of Del Monte Fresh Produce Company from 1995 to 2005 and, since mid-2005, has been a consultant for the food industry helping companies realign their strategies and position themselves for growth in the North American market. On January 26, 2012, Arroyo Farming Partners LLC, an entity in which an affiliate of Mr. Edmonson is a 25% partner, voluntarily filed under Chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Arizona. Mr. Edmonson received Bachelor and Master of Science degrees in Entomology from the University of Florida and a Masters of Business Administration in Marketing from the University of Miami. The specific experience, qualifications, attributes or skills that led the Board of Directors to conclude that Mr. Edmonson should serve as a Director in light of our business and structure were his advanced business education and extensive experience as a former officer of a major consumer food product company, and his ongoing consultant work in the food industry. Harold S. Edwards. Mr. Edwards has served as a Director of the Company since May 2014. Mr. Edwards has served as President and CEO of Limoneira Company (NASDAQ: LMNR) since November 2003. Previously, Mr. Edwards was the President of Puritan Medical Products, a division of Airgas, Inc. Prior to such position, Mr. Edwards held management positions with Fisher Scientific International, Inc., Cargill, Inc., Agribrands International and the Ralston Purina Company. Mr. Edwards is currently a member of the board of directors of Limoneira Company, Calavo Growers, Inc. (NASDAQ: CVGW), and Compass Diversified Holdings (NYSE: CODI). Mr. Edwards is a graduate of Lewis and Clark College and the Thunderbird School of Global Management where he earned a Masters of Business Administration. The specific experience, qualifications, attributes or skills that led the Board of Directors to conclude that Mr. Edwards should serve as a Director in light of our business and structure were his senior leadership with multiple food companies, experience as a public company CEO and serving on public company boards, extensive agricultural experience, which ties into the Company’s frozen fruit and vegetable business, and extensive financial background. Paul J. Lapadat. Mr. Lapadat has served as a Director of the Company since May 2013 and was appointed Chairman of the Compensation Committee in September 2013. From 2010 until March 2015, Mr. Lapadat served as CEO of Flagstone Foods, formerly Snacks Holding Corporation. In 2014, Mr. Lapadat successfully sold Flagstone Foods to TreeHouse Foods, Inc., a consumer packaged food and beverage manufacturer headquartered in Chicago, Illinois. In November 2010, Gryphon Investors, a San Francisco-based private equity firm, purchased Ann’s House of Nuts and Amport Foods, and appointed Mr. Lapadat as CEO. Flagstone Foods is the parent company of Ann’s House of Nuts and Amport Foods, both industry leading private label snack food companies competing in the trail mix, dried fruit, snack nuts and wholesome snacks segments. From 2004 to 2010, Mr. Lapadat served as President and Chief Operating Officer of the $2 billion Snack Foods Group for ConAgra Foods, a Fortune 500 consumer packaged goods company whose brands include Orville Redenbacher’sTM, Slim JimTM, DAVIDTM Sunflower Seeds, ACT IITM, and Crunch'n MunchTM along with the Store Brands division. Prior to such position, Mr. Lapadat served as General Manager ("GM") of ConAgra’s Store Brands division from 2001 to 2003, where he managed over 20 private label categories. Prior to ConAgra, Mr. Lapadat held multiple positions of increasing responsibility in Marketing and Brand Management for The Pillsbury Company and Kraft Foods. Prior to these positions, Mr. Lapadat began his career in Finance at General Mills. Directorships include service on the board of directors of Flagstone Foods from 2010 to July 2014, the Original Cakerie from January 2016 to present, and the Snacks Foods Association in 2009. Mr. Lapadat received his Bachelor of Arts degree in Accounting from the University of St. Thomas and a Masters of Business Administration in Marketing and General Management from UCLA Anderson School of Management. The specific experience, qualifications, attributes or skills that led the Board of Directors to conclude that Mr. Lapadat should serve as a Director in light of our business and structure were his accounting and marketing education, his extensive experience in finance, sales, marketing and general management for Fortune 500 consumer packaged foods companies, and his strong expertise in strategic planning, acquisitions and divestitures, restructuring, business turnaround, supply chain optimization, risk management and SAP (Systems, Applications and Products) implementation. Terry McDaniel. Mr. McDaniel has served as a Director and the CEO of the Company since May 2008 and as Chief Operating Officer from April 2006 to April 2008. Since May 2008, Mr. McDaniel has served on the board of directors of Foster Farms Dairy, the largest privately owned dairy in California, and currently serves as its lead director and https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 19 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 20 of 53 chair of its compensation committee. Mr. McDaniel served as Chairman of the Snack Food Association from March 2009 to March 2010, and served on its executive committee from March 2007 to March 2012. Mr. McDaniel has served on the Chairman’s Advisory Committee of the Grocery Manufacturers Association, most recently since 2006. From September 2003 to April 2006, Mr. McDaniel was President and a director of MSLI Worksite Benefits, a company that marketed voluntary benefits through the worksite to Fortune 1000 companies. 12 Table of Contents From 1998 to 2003, Mr. McDaniel served as President, CEO and a director of Wise Foods, Inc. Prior to 1998, Mr. McDaniel served as Vice President of Sales and Marketing for Wise Foods, Inc., and as Vice President of Sales and Distribution for Haagen-Dazs Company, Inc. Prior to these positions, he held sales leadership positions for companies such as the Nestle Corporation, Tropicana Products, Inc. and Unilever. Mr. McDaniel received a bachelor’s degree in business and a Masters of Business Administration from Columbus State University. The specific experience, qualifications, attributes or skills that led the Board of Directors to conclude that Mr. McDaniel should serve as a Director in light of our business and structure were his status as the only member of the Company’s senior management who serves on the Board of Directors, advanced business education and extensive leadership and operations experience as an officer and director of large companies in the consumer products, retail and food industries. David L. Meyers. Mr. Meyers has served as a Director of the Company since May 2013 and was appointed Chairman of the Board in September 2013. Mr. Meyers has served as the Executive Vice President and CFO of Del Monte Foods, Inc., a Fortune 500 consumer packaged foods company, since February 2014. Mr. Meyers was retired from 2011 until February 2014. Mr. Meyers served as Executive Vice President and CFO of Del Monte Foods, Inc. from 1997 until his retirement in 2011. Previously, Mr. Meyers served as Executive Vice President and CFO of a privately held consumer packaged goods company purchased by a private equity group from RJR Nabisco, Inc. from 1991 to 1997 and as Vice President of Finance from 1989 to 1991; as Vice President and Controller for the Ohlmeyer Communication division of RJR Nabisco from 1988 to 1989 and as Controller for the Del Monte division of RJR Nabisco from 1987 to 1988; and as Director of Finance for Nabisco Brands from 1982 to 1987. From 1975 to 1982, Mr. Meyers served in material management, manufacturing controller, manager of corporate accounting, plant controller and cost accountant capacities for Standard Brands, Inc., including its Planters Peanuts division and Clinton Corn Processing division. Mr. Meyers has served on the board of directors for Lineage Logistics Holdings, LLC since 2014. From 2008 to 2013, Mr. Meyers served on the board of directors and chairman of the audit committee for Foster Farms Dairy. From 2011 to January 2014, Mr. Meyers served on the board of directors for Location Based Technologies, a GPS location device developer. He also served on the board of directors for Bay Grove Capital, a private equity group, until 2014. Previous directorships include service on the board of directors and chairman of the audit committee for Smart & Final during the one-year period prior to its sale to an affiliate of Apollo Management L.P. on May 31, 2007. Mr. Meyers received his Bachelor of Arts degree in Business Administration from the University of Northern Iowa and served four years in the United States Air Force. The specific experience, qualifications, attributes or skills that led the Board of Directors to conclude that Mr. Meyers should serve as a Director in light of our business and structure were his strong knowledge of capital markets, extensive experience in corporate and operations finance, business development, strategy, acquisitions and divestitures, and overall leadership skills focused on achieving high growth and low cost development of operations in the consumer products industry. Executive Officers In addition to Mr. McDaniel, the other current executive officers of the Company are: Steve Weinberger, age 64, has served as CFO of the Company since August 2006. From July 2004 to July 2006, Mr. Weinberger was CFO of Fiera Foods Co. From 1999 to 2003, Mr. Weinberger was SVP of Finance at Canada Bread Company. From 1979 to 1999, Mr. Weinberger was employed at Nabisco Canada, where he last served as SVP of Finance of the Christie Brown & Company division. Mr. Weinberger received a Bachelor of Arts degree with honors and a Masters of Business Administration from York University. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 20 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 21 of 53 E. Brian Foster, age 53, has served as SVP — Operations of the Company since October 2010. From 2008 to October 2010, Mr. Foster was Executive Vice President — Global Operations of Colwell, Inc. Mr. Foster served as Vice President — Operations of the Company from 2005 to 2008 and Plant Director (Bluffton, Indiana) of the Company from 2002 to 2005. Mr. Foster received a Bachelor of Science degree and a Master of Science degree in Industrial Management from Clemson University. Daniel W. Hammer, age 54, has served as SVP and GM of the Frozen division of the Company since May 2014. Mr. Hammer recently served as Vice President of Michael Angelo’s Gourmet from February 2012 until December 2013. From 2008 to 2011, he was SVP of Marketing at Schwan’s Consumer Brands. Prior to such position, Mr. Hammer worked at ConAgra Foods, Unilever, Snyder’s of Hanover and Nestle Foods. Mr. Hammer holds a Bachelor of Business Administration degree from the University of Notre Dame. Steven Sklar, age 52, has served as SVP and GM of the Snack division of the Company since December 2013. Prior to such time, Mr. Sklar served as the SVP of Marketing of the Company from 2005 to December 2013. Prior to such position, Mr. Sklar was Director of Marketing for Au Bon Pain from 2002 to 2005, Director of Marketing for Legal Seafoods from 2001 to 2002, owner of Gourmet Food Marketing Company from 1998 to 2001, and Vice President — Marketing for MC Retail Foods from 1986 to 1996. Mr. Sklar received a Bachelor of Science degree in Food Marketing from the University of Massachusetts. There are no family relationships among any of our current Directors or executive officers. 13 Table of Contents PROPOSAL TWO NON-BINDING ADVISORY VOTE TO APPROVE THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS (Item 2 on the Proxy Card) Background The Dodd-Frank Act requires that our stockholders have the opportunity to cast a non-binding, advisory vote on the compensation of our NEOs, commonly referred to as a "Say-on-Pay" vote. At our 2013 annual meeting of stockholders held on May 15, 2013 (the "2013 Annual Meeting"), our stockholders voted in favor of holding future "Say-on-Pay" votes on a triennial basis. Because the "Say-on-Pay" vote is advisory, it is not binding on the Company, our Board of Directors, or our Compensation Committee in any way. However, our Board of Directors and Compensation Committee value the opinions of our stockholders and will take into account the outcome of the vote when considering future executive compensation policies and decisions. Further, to the extent there is any significant vote against the executive compensation disclosed in this 2016 Proxy Statement, we will consider our stockholders’ concerns and evaluate what actions, if any, may be appropriate to address those concerns. At the 2013 Annual Meeting, we provided our stockholders the opportunity to vote to approve, on an advisory basis, the compensation of our NEOs, as disclosed in the proxy statement for our 2013 Annual Meeting. At the 2013 Annual Meeting, approximately 86% of our stockholder votes were cast to approve the Company’s executive compensation policies and procedures. In determining and deciding on executive compensation for fiscal 2015, our Compensation Committee took into account the results of the fiscal 2013 stockholder advisory vote to approve executive compensation, particularly the strong support expressed by the Company’s stockholders, as one of many factors considered in deciding that the Company’s compensation policies and procedures for fiscal 2015 should remain largely consistent with our policies and procedures in prior years. As described in the "Compensation Discussion and Analysis" section included elsewhere in this 2016 Proxy Statement, we seek to attract, motivate and retain superior people in key positions, reward the achievement of identified financial goals by the Company, and align the interests of the Company’s executives with those of its stockholders. Please read the "Compensation Discussion and Analysis" section of this 2016 Proxy Statement for a more detailed discussion about our compensation philosophy and our executive compensation programs. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 21 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 22 of 53 The advisory vote on executive compensation solicited by this proposal is not intended to address any specific item of compensation, but rather the overall compensation of our NEOs, which is disclosed elsewhere in this 2016 Proxy Statement. Furthermore, because this non-binding, advisory resolution primarily relates to the compensation of our NEOs that has already been paid or contractually committed, there is generally no opportunity for us to revisit these decisions. Stockholders are being asked to approve the following resolution pursuant to this Proposal Two at the 2016 Annual Meeting: "RESOLVED, that the stockholders of Inventure Foods, Inc. approve, on an advisory basis, the compensation of the Company’s named executive officers for the fiscal year ended December 26, 2015, as disclosed in the Company’s definitive proxy statement for the 2016 Annual Meeting of Stockholders pursuant to the compensation disclosure rules of the Securities and Exchange Commission, including the Compensation Discussion and Analysis, the compensation tables and the related narrative discussion." Vote Required and Board of Directors Recommendation The affirmative vote of a majority of the shares present or represented by proxy and entitled to vote on this matter is required for approval of this resolution. Abstentions will have the same effect as a vote "AGAINST" the resolution. Because broker non-votes are not counted as votes "FOR" or "AGAINST" this resolution, they will have no effect on the outcome of the vote. The Board of Directors unanimously recommends that you vote "FOR" approval of the foregoing resolution. 14 Table of Contents PROPOSAL THREE AMENDMENT TO CERTIFICATE OF INCORPORATION TO EFFECT THE ELIMINATION OF ARTICLE EIGHTH (Item 3 on the Proxy Card) Background The Board of Directors has unanimously approved, declared advisable and recommended that our stockholders approve a proposal to amend the Company’s Certificate of Incorporation to delete Article EIGHTH. Article EIGHTH generally provides that in certain circumstances, a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of the Company may agree to a compromise or arrangement and to any reorganization of the Company as a consequence of such compromise or arrangement. Such actions, if sanctioned by a court of competent jurisdiction, would be binding on all the creditors or class of creditors, and/or the stockholders or class of stockholders of the Company. The text of Article EIGHTH of the Certificate of Incorporation is set forth below: EIGHTH: Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its shareholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the Corporation or of any creditor or shareholder thereof or on the application of any receiver or receivers appointed for the Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under the provisions of Section 279 of Tide 8 of the Delaware Code, order a meeting of the creditor or class of creditors, and/or of the shareholders or class of shareholders, of the Corporation, as the case may be, to be summoned in such a manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the shareholders or class of shareholders, of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as a consequence of such compromise or arrangement, https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 22 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 23 of 53 the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application is made, be binding upon all of the creditors or class of creditors, and/or on all the shareholders or class of shareholders, of the Corporation, as the case may be, and also on the Corporation. On November 18, 2015, we entered into a new five-year $50.0 million revolving credit facility (with all related loan documents, and as amended from time to time, the "ABL Credit Facility") with Wells Fargo Bank, National Association ("Wells Fargo"), as the administrative agent, and the other lenders party thereto. In connection with entering into the ABL Credit Facility, the Company agreed with Wells Fargo to delete Article EIGHTH. In addition, the Board of Directors believes that the failure to delete Article EIGHTH could materially impair the Company’s ability to raise capital and/or borrow funds in the future. Legal Effectiveness The text of the proposed amendment to Article EIGHTH of the Certificate of Incorporation is set forth in full in Appendix A and is hereby incorporated into this 2016 Proxy Statement by reference. If it is approved by the requisite affirmative vote of our stockholders, this proposal will become effective upon the filing of a Certificate of Amendment to the Certificate of Incorporation with the office of the Secretary of State of the State of Delaware. We intend to make this filing promptly after the 2016 Annual Meeting if this proposal is approved. If this proposal does not receive the required number of votes in favor of it, the Certificate of Incorporation will not be amended as to Article EIGHTH and Article EIGHTH will remain in the Certificate of Incorporation. Vote Required and Board of Directors Recommendation The affirmative vote of the holders of a majority of the combined voting power of all outstanding shares of stock of the Company entitled to vote on this proposal is required to approve an amendment to the Certificate of Incorporation to effect the deletion of Article EIGHTH. Abstentions and broker non-votes will be counted as if voted "AGAINST" this proposal. The Board of Directors unanimously recommends that you vote "FOR" the proposed amendment to the Company’s Certificate of Incorporation. 15 Table of Contents PROPOSAL FOUR RATIFICATION OF SELECTION OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM (Item 4 on the Proxy Card) The Audit Committee of our Board of Directors has selected Moss Adams LLP to serve as our independent registered public accounting firm to audit the consolidated financial statements of the Company for the fiscal year ending December 31, 2016. Moss Adams LLP has acted in such capacity since its appointment on July 15, 2008. A representative of Moss Adams LLP is expected to be present at the 2016 Annual Meeting, with the opportunity to make a statement if the representative desires to do so, and is expected to be available to respond to appropriate questions. We are asking our stockholders to ratify the selection of Moss Adams LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2016. Although ratification is not required by our Bylaws or otherwise, the Board of Directors is submitting the selection of Moss Adams LLP to our stockholders for ratification because we value our stockholders’ views on the Company’s independent registered public accounting firm and as a matter of good corporate practice. The affirmative vote of a majority of the shares present or represented by proxy and entitled to vote on this proposal is required to ratify the selection of Moss Adams LLP as the Company’s independent registered public accounting firm. Even if the selection is ratified, however, the Audit Committee may in its discretion select a different independent registered public accounting firm at any time during fiscal 2016 if it determines that such a change would be in the best interests of the Company and of our stockholders. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 23 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 24 of 53 In the event that our stockholders fail to ratify the selection, it will be considered a recommendation to the Board of Directors and the Audit Committee to consider other auditors for next year. However, because of the difficulty in making any substitution of auditors after the beginning of the current year, the appointment for fiscal 2016 will stand, unless the Audit Committee determines there is a reason to make a change. Audit and Non-Audit Fees The following table sets forth the aggregate fees billed to the Company for the fiscal years ended December 26, 2015 and December 27, 2014 by Moss Adams LLP: Fiscal 2015 2014 Audit Fees (1) $ 276,600 $ 293,000 Audit-Related Fees — — Tax Fees — — All Other Fees — — Total Fees $ 276,600 $ 293,000 (1) Audit fees consist of fees billed for professional services rendered for the audit of our consolidated annual financial statements and the effectiveness of our internal control over financial reporting, the review of the interim consolidated financial statements included in quarterly reports and services that are normally provided by Moss Adams LLP in connection with statutory and regulatory filings or engagements, consultations in connection with acquisitions and issuances of auditor consents and comfort letters in connection with SEC registration statements and related SEC registered and non-registered securities offerings. For fiscal 2015, Audit Fees include approximately $33,600 of fees related to the Company’s voluntary product recall at its Jefferson, Georgia facility. For fiscal 2014, Audit Fees include approximately $50,000 of fees related to the Company’s secondary offering. Policy on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services of Independent Registered Public Accounting Firm The Audit Committee has determined that all services performed by Moss Adams LLP are compatible with maintaining the independence of Moss Adams LLP. The Audit Committee’s policy is to pre-approve all audit and permissible non-audit services provided by our independent registered public accounting firm. These services may include audit services, audit-related services, tax services and other services. The independent registered public accounting firm and management are required to periodically report to the Audit Committee regarding the extent of services provided by the independent registered public accounting firm in accordance with this pre-approval process. All services and fees provided by Moss Adams LLP, as set forth above, were pre-approved by the Audit Committee. 16 Table of Contents Vote Required and Board of Directors Recommendation The affirmative vote of a majority of the shares present or represented by proxy and entitled to vote on this proposal is required for approval of this proposal. Abstentions will have the same effect as a vote "AGAINST" this proposal. The Board of Directors unanimously recommends that you vote "FOR" the ratification of the appointment of Moss Adams LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2016. 17 https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 24 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 25 of 53 Table of Contents REPORT OF THE AUDIT COMMITTEE The Audit Committee currently consists of three Directors, each of whom, in the judgment of the Board of Directors, is an "independent director" as defined in the Nasdaq Listing Rules. The Audit Committee acts pursuant to a written charter that has been adopted by the Board of Directors. A copy of the charter is available on the "Investor Relations — Governance Documents" section of the Company’s website at www.inventurefoods.com. The Audit Committee oversees the Company’s financial reporting process on behalf of the Board of Directors. The Audit Committee is responsible for retaining the Company’s independent registered public accounting firm, evaluating its independence, qualifications and performance, and approving in advance the engagement of the independent registered public accounting firm for all audit and non-audit services. Management has the primary responsibility for the financial statements and the financial reporting process, including internal control systems, and procedures designed to insure compliance with applicable laws and regulations. The Company’s independent registered public accounting firm, Moss Adams LLP, is responsible for expressing an opinion as to the conformity of our audited financial statements with generally accepted accounting principles. The Audit Committee has reviewed and discussed with management the Company’s audited financial statements in the Company’s Annual Report on Form 10-K for the fiscal year ended December 26, 2015. The Audit Committee has discussed with the independent registered public accounting firm the matters required to be discussed under the rules adopted by the Public Company Accounting Oversight Board ("PCAOB"). In addition, the Audit Committee has met with the independent registered public accounting firm, with and without management present, to discuss the overall scope of the independent registered public accounting firm’s audit, the results of its examinations, its evaluations of the Company’s internal controls and the overall quality of the Company’s financial reporting. The Audit Committee has received the written disclosures and the letter from the independent registered public accounting firm required by applicable requirements of the PCAOB regarding the independent registered public accounting firm’s communications with the Audit Committee concerning independence and has discussed with the independent registered public accounting firm its independence. Based on the review and discussions referred to above, the Audit Committee recommended to the Company’s Board of Directors that the Company’s audited financial statements be included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 26, 2015. AUDIT COMMITTEE Ashton D. Asensio (Chair) Harold S. Edwards Paul J. Lapadat The foregoing Report of the Audit Committee shall not be deemed to be incorporated by reference into any filing of the Company under the Securities Act of 1933, as amended (the "Securities Act"), or the Exchange Act, except to the extent that the Company specifically incorporates such information by reference in such filing and shall not otherwise be deemed "filed" under either the Securities Act or the Exchange Act or considered to be "soliciting material." 18 Table of Contents EXECUTIVE COMPENSATION COMPENSATION DISCUSSION AND ANALYSIS This Compensation Discussion and Analysis ("CD&A") describes the Company’s executive compensation program for fiscal 2015, along with certain actions with respect to fiscal 2015. In particular, this CD&A explains how the Compensation Committee of the Board of Directors made fiscal 2015 compensation decisions for our executives, including our NEOs. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 25 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 26 of 53 NEO Title Terry McDaniel (1) President and Chief Executive Officer Steve Weinberger (2) Chief Financial Officer E. Brian Foster (3) Senior Vice President — Operations Dan Hammer (4) Senior Vice President and General Manager of our Frozen division Steven Sklar (5) Senior Vice President and General Manager of our Snack division (1) Mr. McDaniel is our principal executive officer and has served as our President and CEO since May 2008. (2) Mr. Weinberger is our principal financial officer and has served as our CFO since August 2006. (3) Mr. Foster has served as our SVP — Operations since October 2010. (4) Mr. Hammer has served as our SVP and GM of our Frozen division since May 2014. (5) Mr. Sklar has served as our SVP and GM of our Snack division since December 2013. Executive Summary Overview The Compensation Committee has responsibility for establishing, implementing and overseeing the Company’s compensation philosophy as it relates to our executive officers. Our executive officers have broad policy-making authority, and the Compensation Committee holds them accountable for the Company’s financial performance and for setting and maintaining a culture of strong ethics. The purpose of this CD&A is to provide information about each material element of compensation that we pay or award to, or that is earned by, our NEOs. This CD&A addresses and explains the compensation practices we followed in fiscal 2015, the numerical and related information contained in the "2015 Summary Compensation Table" and related tables presented below, and material actions we took in fiscal 2015 regarding executive compensation. Specifically, this CD&A addresses: · the objectives of our compensation program (see the section below entitled "Our Executive Compensation Program Framework — Our Compensation Philosophy and Objectives"); · what our compensation program is designed to reward (see the section entitled "Our Executive Compensation Program Framework — Our Compensation Philosophy and Objectives"); · each element of compensation (see the section entitled "Our Executive Compensation Program Framework — Compensation Program Design and Elements of Compensation"); · why each element was chosen (described with each element of compensation, including base compensation, bonus compensation and long-term incentive compensation); · how amounts and formulas for pay are calculated and determined (described with each element of compensation, including base compensation, bonus compensation, and long-term incentive compensation); and · how each compensation element and our decisions regarding that element fit into our overall compensation objectives and affect decisions regarding other elements (described with each element of compensation). Fiscal 2015 Strategic Performance The Company faced several challenges in fiscal 2015, including a voluntary product recall in its Fresh Frozen business and kettle capacity constraints for its Boulder Canyon business. While these unexpected events impacted the Company’s ability to achieve its fiscal 2015 strategic goals, the Company continues to drive growth as it captured consumer demand in key product categories. This effort was led by our Boulder Canyon brand posting a 17.9% sales increase in fiscal 2015, building on the 70.3% sales increase in fiscal 2014, as well as a 32.0% increase in snack private label sales in fiscal 2015 and a 28.7% sales increase for Rader Farms branded products in fiscal 2015. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 26 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 27 of 53 19 Table of Contents The Company’s Fresh Frozen business continues to recover from the impacts of the voluntary product recall. By the end of fiscal 2015, the Company was shipping approximately 85.0% of its normal volume and expects further improvement to its volume run-rate in fiscal 2016. Fiscal 2015 Financial Performance Last year, the Company’s financial performance was significantly impacted by the Fresh Frozen voluntary product recall and kettle chip capacity constraints, resulting in lower revenues, EBITDA (net income, net of interest expense, income taxes, depreciation and amortization) and returns to shareholders. For the fiscal year ended December 26, 2015, we: · Decreased consolidated net revenues 1.1% to $282.6 million. · Adjusted EBITDA decreased 61.5% to $9.6 million*. · Diluted loss per share of $(1.06), or $(0.07) adjusted diluted loss per share*. *Please see Appendix B to this Proxy Statement for reconciliations of financial measures prepared in accordance with United States generally accepted accounting principles ("GAAP") to non-GAAP financial measures disclosed in this CD&A. Non-GAAP financial measures should be viewed in addition to, and not as an alternative for, financial results prepared in accordance with GAAP. 2015 Actions and Looking Ahead to 2016 The Compensation Committee took a number of actions during fiscal 2015 to make our executive compensation program more reflective of Company performance and responsive to stockholder interests. These actions included the following: Advisory Vote on Executive Compensation and Future Advisory Vote. At the 2013 Annual Meeting, we provided our stockholders the opportunity to vote to approve, on an advisory basis, the compensation of our NEOs, as disclosed in the proxy statement for our 2013 Annual Meeting. At the 2013 Annual Meeting, approximately 86.0% of our stockholder votes were cast to approve the Company’s executive compensation policies and procedures. In determining and deciding on executive compensation for fiscal 2015, our Compensation Committee took into account the results of the fiscal 2013 stockholder advisory vote to approve executive compensation, particularly the strong support expressed by the Company’s stockholders, as one of many factors considered in deciding that the Company’s compensation policies and procedures for fiscal 2015 should remain largely consistent with our policies and procedures in prior years. In addition, at the 2013 Annual Meeting, our stockholders voted by a plurality to hold future advisory votes on the compensation of our NEOs every three years. Accordingly, following the 2016 Annual Meeting, we will provide our stockholders with the opportunity to cast a non-binding, advisory vote on the compensation of our NEOs at our 2019 annual meeting of stockholders. Executive Officer Clawback Policy. In early fiscal 2015, the Board of Directors adopted an executive officer clawback policy. This policy enables the Company to reclaim previously awarded compensation from executives who are found to have engaged in willful fraud or the intentional manipulation of performance measures. Independent Advisor. During fiscal 2015, the Compensation Committee engaged an independent compensation consultant that has no other ties to the Company or its management and that met stringent selection criteria to evaluate certain aspects of the Company’s executive compensation program and policies. Specifically, the Compensation Committee retained Mercer to assist the Company with its review of the 2015 Plan. Please refer to the "— The Decision Making Process — Role of Compensation Consultants; Role of Benchmarking and Peer Groups" section below and the "Corporate Governance — Board and Committee Membership — Compensation Committee" section elsewhere in this 2016 Proxy Statement for further details. While no action has been taken as of the date of this 2016 Proxy Statement to engage an independent compensation consultant for fiscal 2016, the Compensation Committee expects it will formally review the independence of Mercer and engage Mercer as its executive compensation consultant for fiscal 2016. Our Executive Compensation Program Framework https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 27 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 28 of 53 Our Compensation Philosophy and Objectives We pay our executive officers based on Company-wide business performance, subject to adjustment based on their achievement of individual performance goals. In setting compensation levels, we take into consideration our past practices, our current and anticipated future needs, and the relative skills and experience of each individual executive. There are three primary tenets that support our executive compensation program compensation philosophy and objectives: · Attract, motivate and retain superior people in key positions. We believe executives’ target total direct compensation ("TDC") should be competitive with that being offered to individuals holding comparable positions at other public companies with which we compete for market share and executive talent. We use a mix of fixed (cash) and variable (cash and equity) pay to support this objective. 20 Table of Contents · Reward the achievement of identified financial goals by the Company. We believe that a significant portion of an executive’s TDC should be variable and emphasize an appropriate balance of both short-and long-term financial and strategic performance. We focus our executives on performance measures that we believe are critical to enhancing long-term shareholder value creation, including adjusted EBITDA. · Align the interests of the Company’s executives with those of its stockholders. We believe delivering a significant portion of TDC to our NEOs in the form of long-term incentives that are impacted by our stock price provides a clear incentive to drive long-term shareholder value creation. It also supports our retention goals, encourages stock ownership and does not promote unnecessary or excessive risk taking. Compensation Program Design and Elements of Compensation We choose to pay each element of compensation to further the philosophy and objectives of our compensation program. Elements of Compensation. Our philosophy and objectives are supported by the following principle elements of pay in our executive compensation program: Element Form Description Base Salary Cash (Fixed) · The fixed amount of compensation for performing day-to-day responsibilities as set forth in the respective NEO’s employment agreement. · NEOs are generally eligible for increases annually, depending on Company and individual performance. Annual Bonus Cash (Variable) · Provides competitively-based annual incentive awards for achieving the Company’s short-term financial goals measured over the current year. · Targeted compensation is based primarily on the realization of specific EBITDA objectives. Annual Long-Term Equity (Variable) · 50% of the grant value is in the form of Performance Share Units Incentives (PSUs), with vesting tied to the achievement of cumulative Board-approved annual EBITDA targets. Non-NEO executive positions receive only Restricted Stock Units (RSUs). · 50% of the grant value is in the form of RSUs, with time-based vesting over three years. NEOs are also eligible for other benefits, including a qualified 401(k) savings plan ("401(k) Plan") that provides participants with the opportunity to defer a portion of their compensation, up to tax code limitations, and may receive a Company matching contribution. The Company also provides modest ancillary benefits to executives. Elements of Post-Termination Compensation and Benefits. The employment agreements of our NEOs provide for post-termination salary and benefit continuation in the event of a termination by us without Cause (as defined in each https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 28 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 29 of 53 respective NEO’s employment agreement) or in certain circumstances following both a Change in Control (as defined in each respective NEO’s employment agreement) and the occurrence of Good Reason (as defined in each respective NEO’s employment agreement) of the Company, and for as long as the NEO abides by customary confidentiality, non-competition, and non-solicitation covenants and executes a full release of all claims, known or unknown, that the executive may have against the Company. We believe that the amount of these payments and benefits and the periods of time during which they would be provided are fair and reasonable, and we have not historically taken into account any amounts that may be received by a NEO following termination when establishing current compensation levels. The elements of post-termination compensation that were in effect during fiscal 2015 pursuant to the written employment agreements consisted of the following: · Salary continuation. Messrs. McDaniel, Weinberger and Sklar would continue to receive monthly salary payments and monthly car allowances following any qualifying termination of employment for a period of twelve months, six months and nine months, respectively. Messrs. Foster and Hammer would continue to receive monthly salary payments following any qualifying termination of employment for a period of four months and nine months, respectively. · Outplacement services. Each of Messrs. McDaniel and Weinberger would receive up to $9,000 and Mr. Sklar would receive up to $10,000 for outplacement services with an outplacement firm selected by such executive. Please refer to the "— Executive Compensation Tables — Potential Payments Upon Termination or Change in Control" section below for certain exceptions and additional detail. 21 Table of Contents The Decision Making Process Role of Compensation Committee The Compensation Committee is responsible for determining and approving all compensation for our NEOs, including incentive-based and equity-based compensation. In addition, the Compensation Committee approves all employment, severance, or change-in-control agreements, special or supplemental benefits, or provisions including the same, applicable to our NEOs. The Compensation Committee typically works closely with the Company’s CEO to structure the Company’s annual and long-term incentive-based executive compensation to motivate executives to achieve the business goals set for the Company and to reward the executives for achieving those goals. The Compensation Committee historically reviews and sets executive compensation during April of each year following the Company’s budgeting process for such year. This process includes setting the Company’s near-and long-term business goals, together with the Company’s financial performance targets and other business goals for the coming fiscal year. The Compensation Committee has no pre-established policy or set allocation between either cash and non-cash compensation or short-and long-term incentive compensation. Rather, the Compensation Committee considers the views of the executives as to the retention and motivation effects of various types of compensation awards, the historical compensation patterns of the Company’s compensation awards and other subjective and objective factors, including the performance of the senior executive management team and each individual executive during recent periods. In accordance with the Compensation Committee’s charter, the Compensation Committee meets as often as it determines is appropriate to carry out its responsibilities under its charter. Meetings of the Compensation Committee may be called by any member of the Compensation Committee. The Chair of the Compensation Committee, in consultation with the other Compensation Committee members, determines the frequency and length of the Committee meetings and sets meeting agendas consistent with the Compensation Committee’s charter. The Chair coordinates the scheduling of Compensation Committee meetings with the CEO or other senior management, as appropriate. Under the terms of the Compensation Committee’s charter, the Compensation Committee may invite to its meetings any member of management of the Company as it deems appropriate in order to carry out its responsibilities. Role of the Company’s Chief Executive Officer https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 29 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 30 of 53 The Company’s CEO typically reviews the performance of each of the other NEOs against their respective objectives and presents his evaluation of such NEOs performance to the Compensation Committee. However, recommendations about individual compensation elements and total compensation are ultimately made by the Compensation Committee, using its judgment, focusing primarily on each NEO’s performance against his or her individual financial and strategic objectives, as well as the Company’s overall performance. The Compensation Committee also considers a variety of qualitative factors, including the business environment in which the results were achieved. Therefore, the Compensation Committee makes recommendations regarding each NEO’s compensation based on multiple factors, including the competitive market and Company and individual performance. As required by the Compensation Committee’s charter, these recommendations are made to the full Board of Directors of the Company, which approves all compensation plans for senior management. Role of Compensation Consultants; Role of Benchmarking and Peer Groups Pursuant to its charter, the Compensation Committee has the authority to engage independent compensation consultants and other professionals to assist in the design, formulation, analysis, and implementation of compensation programs for the Company’s executive officers. In March 2015, the Compensation Committee retained Mercer to assist in the design of the Company’s 2015 Plan. The Compensation Committee has determined that the engagement of Mercer has not raised any conflicts of interest. Please refer to the "Corporate Governance — Board and Committee Membership — Compensation Committee" section elsewhere in this 2016 Proxy Statement for further details. As part of our pay philosophy, our executive compensation program is designed to attract, motivate and retain our executives in an increasingly competitive and complex talent market. To this end, we regularly evaluate industry-specific and general market compensation practices and trends to ensure that our program features and NEO pay opportunities remain appropriately competitive. When determining salaries, target bonus opportunities and annual long-term incentive grants for NEOs, the Compensation Committee considers the performance of the Company and the individual, the nature of an individual’s role within the Company, experience in the officer’s current role, as well as input from its independent compensation consultant, among other variables. In April 2014, to facilitate its review and determination of executive compensation, the Compensation Committee engaged Mercer to conduct a comprehensive, competitive review of our executive compensation program. In connection with this review and in consultation with Mercer and senior management of the Company, the Compensation Committee identified a peer group composed of industry competitors and related industry companies (specifically food companies) roughly similar to the Company in revenue size or market capitalization. The peer group consisted of the twelve companies listed in the table below: 22 Table of Contents Peer Group J&J Snack Foods Corp. Omega Protein Corp. Diamond Foods Inc. Annie’s Inc. John B. Sanfilippo & Son, Inc. Coffee Holding Co Inc. B&G Foods Inc. Bridgeford Foods Corp. Tootsie Roll Industries Inc. Lifeway Foods Inc. Farmer Bros. Co. Boulder Brands Inc. Peer Data (in millions)* Percentile Revenue Market Cap 25th $ 179 $ 227 50th 494 439 75th 745 1,157 Inventure Foods $ 216 $ 234 https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 30 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 31 of 53 * Market Capitalization is as of April 2014. In addition to peer group data, published and private compensation surveys were also used in Mercer’s 2014 report and comparisons to survey benchmark positions were made based on the Company’s size. Mercer completed its review in June 2014 and presented its analysis of the Company’s executive compensation program relative to peer and survey 25th, 50th and 75th percentile levels. Overall, the study suggested that the Company’s target TDC (base salary, annual bonus and long-term incentive values) was between the 25th and 50th percentile market levels. The Compensation Committee did not engage Mercer to update its review of our executive compensation program in fiscal 2015. In addition, the below table summarizes the changes the Company made regarding the Company’s executive compensation program structure in response to recommendations of Mercer. New Incentive Compensation Features Summary of Changes Rationale for Change Annual Long-Term Incentives · Revisited equity eligibility and · Measures are more closely grant types below the executive correlated with creating shareholder level —moved from stock options value over the long term. to restricted stock (RS) and restricted stock units (RSUs) below the executive level. · For NEOs, granted a mix of RS/RSUs and Performance Share Awards (PSAs), with 25% to 50% RS/RSUs based on retention considerations. · Grants to the NEOs to be aligned by instrument type and metrics. · At a Corporate level, the financial performance measure for fiscal 2015 continues to be EBITDA. Alternative performance metrics to be considered for future grants. Short-Term Incentive Compensation · Increased short-term incentive · To bring short-term incentive percentages as a percentage of base compensation in line with market salary for fiscal 2015. targets — current targets were at or · Further differentiate short-term below the 25th percentile. incentive levels for the CEO from · To bring total cash compensation in the rest of the executive team, line with market levels. beginning in fiscal 2015. · Target total cash compensation (base salary and annual incentive levels) for executives above the 25th percentile, to be phased in over a period of two to three years, beginning in fiscal 2015. 23 Table of Contents Evaluation of CEO Performance As noted above, the Compensation Committee makes recommendations to the full Board of Directors regarding the performance targets and individual performance objectives for the Company’s executive management, including the Company’s CEO. Recommendations about the CEO’s compensation elements and total compensation are made by the https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 31 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 32 of 53 Compensation Committee, using its judgment, focusing primarily on the CEO’s performance against his individual financial and strategic objectives, as well as the Company’s overall performance and the qualitative factors discussed below. Our CEO was not present at the time the Compensation Committee reviewed his performance and discussed his compensation for fiscal 2015. Compensation Policies and Practices as Related to Risk Management In connection with the preparation of this 2016 Proxy Statement, our Compensation Committee reviewed and discussed our compensation policies and practices for senior management, including our NEOs. In this regard, the Compensation Committee took note of the fact that: · We pay base salaries we believe are competitive and that are generally intended to constitute the largest component of cash compensation. We believe that this emphasis on paying competitive base salaries that are not at risk for performance discourages inappropriate risk taking. · Our 2015 Bonus Plan focuses on the achievement of established EBITDA targets, which prevents participants from being able to materially enhance their bonus prospects through excessive or inappropriate risk-taking. · The cash payments that may be earned by our NEOs under our applicable Bonus Plans are subject to stated maximum limits, which we believe mitigates any risks that our NEOs may take. · The equity grants made to our NEOs, and all other employees, under the Company’s Amended and Restated 2005 Equity Incentive Plan (as amended, the "2005 Plan") and the 2015 Plan all vest over multiple-year periods, which we believe discourages excessive or inappropriate short-term risk taking. Based on that review, and with input from management, the Compensation Committee has determined that there are no known potential risks arising from our compensation policies or practices that are reasonably likely to have a material adverse effect on the Company. The Compensation Committee, with the assistance of outside executive compensation consultants, intends to continue, on an on-going basis, a process of thoroughly reviewing our compensation policies and programs to ensure that our compensation programs and risk mitigation strategies continue to discourage imprudent risk-taking activities. Our Executive Compensation Program in Detail Base Salary We typically agree upon a base compensation with an NEO at the time of initial employment. The amount of base compensation agreed upon, which is not at risk, reflects our views as to the individual executive’s past experience, future potential, knowledge, scope of anticipated responsibilities, skills, expertise, and potential to add value through performance, as well as competitive industry salary practices. Although minimum base salaries for each of our current NEOs are set by their respective employment agreements, as described elsewhere in this 2016 Proxy Statement, we review executive officer salaries annually and may increase them based on the Company’s budget, an evaluation of the Company’s performance for the year and the performance of the functional areas under an executive officer’s scope of responsibility. We also consider qualitative criteria, such as education and experience requirements, complexity, and scope or impact of the position compared to other executive positions internally. The Compensation Committee determined the appropriate base salary for each NEO as follows: NEO 2015 Base Salary (1) 2014 Base Salary (1) Percent Change Terry McDaniel $ 511,135 $ 469,998 8.8% Steve Weinberger $ 325,474 $ 309,555 5.1% E. Brian Foster $ 255,874 $ 242,849 5.4% Dan Hammer $ 286,138 $ 160,460(2) 78.3%(2) Steven Sklar $ 283,564 $ 268,568 5.6% (1) Base salaries represent amounts earned during the respective fiscal year. (2) Mr. Hammer was hired on May 27, 2014. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 32 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 33 of 53 24 Table of Contents Annual Bonus Under the Company’s 2015 Bonus Plan as in effect for fiscal 2015, a NEO’s bonus is based on the Company’s achievement of established EBITDA targets and the assessment of the NEO’s completion of individual performance objectives established at the beginning of each plan year. Calculation of Bonuses. The cash bonus amounts payable for fiscal 2015 were based upon the Company’s achievement of established EBITDA targets. The EBIDTA target for fiscal 2015 was set at $28.0 million. Actual bonus award amounts are based upon a weighting of 90% for actual performance achieved against the applicable EBITDA target and 10% for actual performance achieved against individual performance objectives. The Compensation Committee set the fiscal 2015 aggregate annual cash bonus amounts for the NEOs as follows, assuming performance at 100% of established targets: Terry McDaniel $ 341,345 Steve Weinberger $ 132,204 E. Brian Foster $ 104,009 Daniel W. Hammer $ 115,209 Steven Sklar $ 115,360 Performance was measured at year-end against the applicable EBITDA target. Performance at or below the threshold of 83% of targeted EBITDA resulted in no cash bonus payout. Performance above the threshold results in the following payouts: · The EBITDA-based portion of the bonuses are payable on a linear scale between 83% of the targeted EBITDA and 100%. At 83% of the targeted EBITDA, the bonus is 50%. The bonus is then calculated on a linear scale between 83% and 100%. · Performance above 100% of targeted EBITDA for the year results in a percentage payout up to 150% of available bonus based on exceeding the EBITDA target by 120%. A linear scale between 100% and 120% is used to determine the payout. Compensation Committee Discretion. The Compensation Committee retains the discretion to adjust EBITDA targets in order to accomplish the purposes of the 2015 Bonus Plan in light of unforeseen facts and circumstances. Actual Performance vs. Compensation Paid for 2015. The 2015 Bonus Plan required that the Company achieve a certain threshold percentage of the budgeted consolidated EBITDA amount for any payment to be made to an executive with respect to the performance measure. For fiscal 2015, the Company’s consolidated financial performance did not meet the threshold of 83% of targeted EBITDA, therefore no cash bonus payments were made. If the Company’s consolidated financial performance threshold had been met, then the GMs of the Company’s Snack and Frozen divisions would have also had 20% of their eligible bonus payout based on the performance of the division they manage. Accordingly, with respect to Mr. Sklar, his aggregate annual bonus was tied in part to the achievement of specified EBITDA targets for the Snack division, which were not met. With respect to Mr. Hammer, his aggregate annual bonus was tied in part to the achievement of specified EBITDA targets for the Frozen division, which were not met. In accordance with the terms of 2015 Bonus Plan, the Compensation Committee did not pay bonuses for fiscal 2015 to the NEOs. Annual Long-Term Incentives We currently maintain two compensation plans (collectively, the "Plans"), the 2005 Plan and the 2015 Plan (adopted by our stockholders at the Company’s 2015 annual meeting of stockholders and which replaced the 2005 Plan). Both Plans were approved by our stockholders. The 2015 Plan provides for the issuance of our common stock to officers and other employees, consultants and Directors. The 2015 Plan was approved at our 2015 annual meeting of stockholders and initially reserved for issuance 1,400,560 shares of common stock and can be increased by not more than 250,000 shares subject to any option or other https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 33 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 34 of 53 award outstanding under the 2005 Plan that expires or is forfeited for any reason after May 20, 2015. If any award granted under the 2015 Plan expires or otherwise terminates for any reason without having been exercised or settled in full, or if shares subject to forfeiture or repurchase are forfeited or repurchased by the Company for not more than the participant’s purchase price, any such shares reacquired or subject to a terminated award will again become available for issuance under the 2015 Plan. Shares will not be treated as having been issued under the 2015 Plan and will therefore not reduce the number of shares available for issuance to the extent an award is settled in cash. Shares that are withheld or reacquired by the Company in satisfaction of a tax withholding obligation in connection with an option or a stock appreciation right will be made available for new awards under the 2015 Plan. Upon the exercise of a stock appreciation right or net-exercise of an option, the number of shares available under the 2015 Plan will be reduced by the gross number of shares for which the award is exercised. The 2015 Plan expires in May 2025, and awards that could be granted under the 2015 Plan include non-qualified stock options, incentive stock options, restricted stock, restricted stock units, performance shares, performance units, and other stock-based awards and cash based awards. 25 Table of Contents The 2005 Plan terminated in May 2015 and no further awards will be granted under the 2005 Plan. All of the options and stock awards listed in the "2015 Outstanding Equity Awards at Fiscal Year-End" table included in this Proxy Statement were granted pursuant to the 2005 Plan. The following table sets forth information regarding outstanding options and shares reserved for future issuance under the Plans as of December 26, 2015: Equity Compensation Plan Information Number of Securities Number of Securities to be Weighted-Average Remaining Available for Issued Upon Exercise of Exercise Price of Future Issuance Under Outstanding Options, Outstanding Options, Equity Compensation Plan Category Warrants and Rights Warrants and Rights Plans Equity Compensation Plans Approved by Stockholders 1,034,881(1) $ 5.30 1,248,715(2) Equity Compensation Plans not Approved by by Stockholders — — — Total 1,034,881(1) — 1,248,715(2) (1) This amount includes the following: · 644,602 shares issuable upon the exercise of outstanding stock options, which were granted from the 2005 Plan with a weighted average exercise price of $5.30. · 281,080 shares subject to RSUs, of which 144,020 shares were granted under the 2005 Plan and 137,060 shares were granted under the 2015 Plan. Since these awards have no exercise price, they are not included in the weighted-average exercise price calculation in the "Weighted-Average Exercise Price of Outstanding Options, Warrants and Rights" column. · 109,199 shares, of which 40,808 shares are issuable pursuant to outstanding share awards that have been granted under the 2005 Plan and 68,391 shares are issuable pursuant to outstanding share awards that have been granted under the 2015 Plan, but not yet earned as of December 26, 2015. The number of shares, if any, to be issued pursuant to such outstanding awards will be determined by a formula that measures our performance over the applicable performance period. Since these awards have no exercise price, they are not included in the weighted-average exercise price calculation in the "Weighted-Average Exercise Price of Outstanding Options, Warrants and Rights" column. (2) This amount represents the number of shares available for issuance pursuant to stock options and awards that could be granted in the future under the 2015 Plan. The parameters of the Plans are considered each year by the Compensation Committee and all equity grants are approved by the Board of Directors. Each year consideration is given with respect to the achievement of the applicable https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 34 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 35 of 53 Plan’s goals of driving long-term stockholder value, awarding performance of the management team and achieving stated earnings targets. If it is determined that awards will be granted, then consideration is also given to "inside concentration," which represents the percentage of stock owned or controlled by members of the Board of Directors and management. The amount of equity grants is also a function of the "pool" of shares that are reserved for issuance. The awards granted during fiscal 2015 were all within the parameters of the applicable Plans and were used by the Compensation Committee to achieve the goals of such Plans. For more detailed information, please see "2015 Grants of Plan-Based Awards" below in this Proxy Statement. Other Practices, Polices and Guidelines Clawback Policy Consistent with the Dodd-Frank Act, the Board of Directors adopted in early fiscal 2015 a policy that will enable the Company to reclaim previously awarded compensation from executives who are found to have engaged in willful fraud or the intentional manipulation of performance measures. These provisions are designed to deter and prevent detrimental behavior and to protect our investors from financial misconduct. 26 Table of Contents 401(k) Savings Plans and Other Retirement Benefits The Company maintains a 401(k) Plan covering eligible employees in the United States and to which the Company makes certain matching contributions. These plans are designed to provide tax-deferred retirement benefits to employees in accordance with the provisions of the Code. The amount the Company contributed to each NEO in fiscal 2015, if any, is reflected in the "2015 Summary Compensation Table" in this Proxy Statement. The Company does not maintain any other retirement plans, or offer any pension benefits, under which executives or any other employees earn the right to receive benefits upon retirement. Perquisites and Other Personal Benefits The Company provides the NEOs with minimal perquisites and other personal benefits. The costs of the perquisites and personal benefits for the NEOs for the fiscal year ended December 26, 2015 are included in the "2015 Summary Compensation Table" in this Proxy Statement. Nonqualified Defined Contribution and Other Nonqualified Deferred Compensation Plans The Company has a Non-Qualified Deferred Compensation Plan (the "Deferred Compensation Plan"), which is a non-qualified deferred compensation plan that allows certain individuals designated by the Company from a select group of management or highly compensated service providers to defer a portion of their salary and bonus under the Deferred Compensation Plan ("Compensation Deferrals"). Compensation Deferrals under the Deferred Compensation Plan represent obligations of the Company to pay participants certain compensation amounts that the participants have elected to defer. The Deferred Compensation Plan is intended to provide participants with the ability to defer income that would otherwise be payable to them for tax planning purposes. The Compensation Deferrals are payable in cash and generally will be paid in either a lump sum or in annual installments over a certain term upon retirement or in a lump sum upon death or other termination of service, according to the terms and conditions of the Deferred Compensation Plan. As of December 26, 2015, none of the NEOs have participated in the Deferred Compensation Plan. Effect of Accounting and Tax Treatment on Compensation Decisions The Compensation Committee considers the tax and accounting implications of compensation, but they are not the only factors considered. In some cases, other important considerations outweigh tax or accounting considerations. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 35 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 36 of 53 Internal Revenue Code Section 162(m) Policy. Section 162(m) of the Code imposes a $1.0 million limit on the amount that a public company may deduct for compensation paid to the Company’s CEO or any of the Company’s other NEOs other than the CFO. If certain conditions are met, performance-based compensation may be excluded from this limitation. The performance criteria within the 2005 Plan was approved by our stockholders at our 2005 annual meeting of stockholders and within the 2015 Plan and the 2015 Bonus Plan at our 2015 annual meeting of stockholders in accordance with Section 162(m), intending to support deduction for performance-based awards granted under those plans. Most compensation paid by the Company is designed to be deductible under Section 162(m) of the Code. However, the Compensation Committee may exercise discretion to pay nondeductible compensation if following the requirements of Section 162(m) of the Code would not be in the interests of shareholders. Internal Revenue Code Section 409A. Section 409A of the Code and the regulations thereunder ("Section 409A") requires that "nonqualified deferred compensation" be deferred and paid under plans or arrangements that satisfy the requirements of Section 409A with respect to the timing of deferral elections, timing of payments and certain other matters. Failure to satisfy these requirements can expose employees and other service providers to accelerated income tax liabilities and penalty taxes and interest on their vested compensation under such plans. Accordingly, as a general matter, it is our intention to design and administer our compensation and benefits plans and arrangements for all of our employees and other service providers, including our NEOs, so that they are either exempt from, or satisfy the requirements of, Section 409A. With respect to our compensation and benefit plans that are subject to Section 409A, in accordance with Section 409A and regulatory guidance issued by the Internal Revenue Service, we believe we are currently operating such plans in compliance with Section 409A. Accounting Standards. Grants of equity awards under the Plans are recognized as compensation expense for the fair value of equity-based compensation awards. The Compensation Committee considers the accounting implications of significant compensation decisions, including in connection with decisions that relate to the Plans and equity award programs thereunder. As accounting standards change, we may revise certain programs to appropriately align accounting expenses of our equity awards with our overall executive compensation philosophy and objectives. 27 Table of Contents EXECUTIVE COMPENSATION TABLES 2015 Summary Compensation Table The following table sets forth information concerning the compensation earned by our NEOs during the fiscal years ended December 26, 2015, December 27, 2014 and December 28, 2013: Non-Equity Non-Qualified Stock Stock Incentive Plan Deferred All Other Fiscal Salary Bonus Awards Options Compensation Compensation Compensation Name and Principal Position Year ($) (1) ($) (2) ($) (3) ($) (4) ($) (2) Earnings ($) (5) Total ($) Terry McDaniel 2015 511,135 — 558,820 — — — 47,514 1,117,469 CEO 2014 469,998 — 644,278 — 204,991 — 45,564 1,364,831 2013 458,205 — 360,500 — — — 39,443 858,148 Steve Weinberger 2015 325,474 — 201,158 — — — 52,608 579,240 CFO 2014 309,555 — 231,915 — 105,406 — 59,277 706,153 2013 301,428 10,000 155,015 — — — 51,866 518,309 E. Brian Foster 2015 255,874 — 131,660 — — — 35,451 422,985 SVP-Operations 2014 242,849 — 102,470 — 58,424 — 33,753 437,496 Daniel W. Hammer 2015 286,138 — 175,171 — — — 57,639 518,948 SVP and GM of Frozen division 2014 160,460 — 319,500 136,750 87,473 — 27,904 732,087 Steven Sklar 2015 283,564 — 175,171 — — — 49,192 507,927 SVP and GM of Snack division 2014 268,568 — 201,954 — 101,880 — 45,445 617,847 (1) Includes amounts (if any) deferred at the NEO’s option under the Company’s 401(k) Plan. (2) https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 36 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 37 of 53 Performance-based bonuses are generally paid under our applicable annual Bonus Plan and reported as "Non-Equity Incentive Plan Compensation." Except as otherwise noted, amounts reported as "Bonus" represent discretionary bonuses awarded by the Compensation Committee in addition to the amount (if any) earned under the applicable annual Bonus Plan. (3) Represents aggregate grant date fair value of all stock awards, computed in accordance with the Financial Accounting Standard Board ("FASB") Accounting Standards Codification ("ASC") Topic 718. The assumptions used with respect to the valuation of option grants are set forth in "Inventure Foods, Inc. Consolidated Financial Statements — Notes to Consolidated Financial Statements — Note 1 — Operations and Summary of Significant Accounting Policies — Stock-Based Compensation" included in our Annual Report on Form 10-K for the fiscal year ended December 26, 2015. For fiscal 2015, the grant date fair value was calculated based on the closing price of our common stock on May 19, 2015 of $9.08 (the last trading day preceding the grant date) multiplied by the target number of performance-based restricted stock awards, as the target was considered to be the probable outcome as of the grant date. The maximum award attainable was 100% of the target number of performance-based restricted stock awards. For fiscal 2014, the grant date fair value was calculated based on the closing price of our common stock on June 16, 2014 of $13.21 (the last trading day preceding the grant date) multiplied by the number of shares. The grant date fair value of Mr. Hammer’s stock award was calculated based on the closing price of our common stock on May 27, 2014 of $12.78 (the grant date) multiplied by the number of shares. Fifty percent (50%) of the stock awards presented above for Messrs. McDaniel, Weinberger and Sklar are performance-based restricted stock awards, for which the target number of shares was used as it was considered to be the probable outcome as of the grant date. The maximum award attainable was 100% of the target number of performance-based restricted stock awards. For fiscal 2013, the grant date fair value was calculated based on the closing price of our common stock on May 14, 2013 of $7.21 (the last trading day preceding the grant date) multiplied by the target number of performance-based restricted stock awards, as the target was considered to be the probable outcome as of the grant date. The maximum award attainable was 100% of the target number of performance-based restricted stock awards. (4) Represents the grant date fair value of options granted to purchase shares of common stock. The amount consists of 25,000 incentive stock options that Mr. Hammer was granted on May 27, 2014. The grant date fair value of the stock option award was computed in accordance with FASB ASC Topic 718. Refer to "Note 10 — Stockholders’ Equity" in the Notes to Consolidated Financial Statements included in our Annual Report on Form 10-K for the fiscal year ended December 26, 2015, for an explanation of the methodology and assumptions used in determining the fair value of stock option awards granted. Neither estimated forfeitures nor actual forfeitures were included in the amount. 28 Table of Contents (5) All Other Compensation for fiscal 2015 represents payments to: · Mr. McDaniel for health insurance benefits of $19,252, an automobile allowance of $12,000, 401(k) Plan matching contributions of $10,600, disability insurance and life insurance benefits. · Mr. Weinberger for health insurance benefits of $19,252, an automobile allowance of $12,000, 401(k) Plan matching contributions of $10,600, disability insurance and life insurance benefits. · Mr. Foster for health insurance benefits of $11,620, an automobile allowance of $8,400, 401(k) Plan matching contributions of $10,600, disability insurance and life insurance benefits. · Mr. Hammer for health insurance benefits of $26,640, an automobile allowance of $14,400, 401(k) Plan matching contributions of $10,600, disability insurance and life insurance benefits. · Mr. Sklar for health insurance benefits of $19,252, an automobile allowance of $14,400, 401(k) Plan matching contributions of $10,029, disability insurance and life insurance benefits. 2015 Grants of Plan-Based Awards The following table sets forth certain information with respect to restricted stock awards, option awards and other plan-based awards granted to our NEOs during the fiscal year ended December 26, 2015: Restricted Estimated Future Payouts Under Non-Stock/Grant Equity Incentive Plan Awards (1) Option Base Price Date Fair Grant Threshold Target Maximum Awards of Awards Value of Name Date ($) ($) ($) (#) (2) ($/sh) Awards ($) Terry McDaniel 5/20/15 170,673 341,345 512,018 61,544 9.08 558,820 Steve Weinberger 5/20/15 66,102 132,204 198,306 22,154 9.08 201,158 E. Brian Foster 5/20/15 52,005 104,009 156,014 14,500 9.08 131,660 Daniel W. Hammer 5/20/15 57,605 115,209 172,814 19,292 9.08 175,171 Steven Sklar 5/20/15 57,680 115,360 173,040 19,292 9.08 175,171 (1) The Company’s 2015 Bonus Plan provided for the award of annual cash bonuses based upon threshold, target and maximum payout amounts set by the Board of Directors. The "Non-Equity Incentive Plan Compensation" column in https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 37 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 38 of 53 the "2015 Summary Compensation Table" reflects that no bonuses were earned under the 2015 Bonus Plan in fiscal 2015. (2) These amounts relate to restricted stock awards and reflect the maximum potential number of restricted shares to be released, some of which are subject to the achievement of performance criteria over three years. 29 Table of Contents 2015 Outstanding Equity Awards at Fiscal Year-End The following table sets forth certain information with respect to the value of all unvested stock awards and unexercised options previously awarded to our NEOs as of December 26, 2015: Options Awards Stock Awards Number of Number of Market Securities Securities Value of Underlying Underlying Number of Shares or Unexercised Unexercised Option Shares or Units of Options-Options-Exercise Option Units of Stock — Exercisable Unexercisable Price Expiration Stock — Unvested Name (#) (#) ($) Date Unvested (#) ($) (16) Grant Date Terry McDaniel — — 30,772(1) 220,943 5/20/2015 — — — — 30,772(2) 220,943 5/20/2015 — — — — 24,386(3) 175,091 6/17/2014 — — — — 16,257(4) 116,725 6/17/2014 — — — — 50,000(5) 359,000 5/15/2013 39,200 —(7) 1.70 12/08/2018 — — — Steve Weinberger — — — — 11,077(1) 79.533 5/20/2015 — — — — 11,077(2) 79,533 5/20/2015 — — — — 8,778(3) 63,026 6/17/2014 — — — — 5,852(4) 42,017 6/17/2014 — — — — 21,500(5) 154,370 5/15/2013 20,400 —(7) 1.70 12/08/2018 — — — E. Brian Foster 7,250(1) 52,055 5/20/2015 7,250(2) 52,055 5/20/2015 — — — — 5,171(4) 37,128 6/17/2014 7,602 —(9) 7.21 5/15/2023 — — — 2,398 15,000(9) 7.21 5/15/2023 — — — 15,000 10,000(10) 6.55 5/16/2022 — — — 10,000 5,000(11) 4.16 5/18/2021 — — — 10,000 —(12) 3.78 10/11/2020 — — — Daniel W. Hammer 9,646(1) 69,258 5/20/2015 9.646(2) 69,258 5/20/2015 — — — — 16,666(6) 119,662 5/27/2014 5,000 20,000(8) 12.78 5/27/2024 — — — Steven Sklar 9,646(1) 69,258 5/20/2015 9.646(2) 69,258 5/20/2015 — — — — 7,644(3) 54,884 6/17/2014 https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 38 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 39 of 53 — — — — 5,096(4) 36,589 6/17/2014 2,686 (9) 7.21 5/15/2023 — — — 6,314 13,500(9) 7.21 5/15/2023 — — — 2,104 —(10) 6.55 5/16/2022 — — — 11,396 9,000(10) 6.55 5/16/2022 — — — 18,000 4,500(11) 4.16 5/18/2021 — — — 30,000 —(13) 3.44 5/20/2020 — — — 35,000 —(14) 2.40 6/01/2019 — — — 39,000 —(7) 1.70 12/08/2018 — — — 40,000 —(15) 1.86 5/19/2018 — — — 30 Table of Contents (1) Restricted stock granted on May 20, 2015, with three year vesting in equal annual installments. (2) Performance shares granted on May 20, 2015, with performance criteria over three years stated at target achievement of 100%. (3) Performance shares granted on June 17, 2014, with performance criteria over three years stated at target achievement of 100%. (4) Restricted stock granted on June 17, 2014, with three year vesting in equal annual installments. (5) Performance shares granted on May 15, 2013, with performance criteria over three years stated at target achievement of 100%. (6) Restricted stock granted on May 27, 2014, with three year vesting in equal annual installments. (7) Options award granted on December 8, 2008, with five year vesting in equal annual installments and a life of ten years. (8) Options award granted on May 27, 2014, with five year vesting in equal annual installments and a life of ten years. (9) Options award granted on May 15, 2013, with five year vesting in equal annual installments and a life of ten years. (10) Options award granted on May 16, 2012, with five year vesting in equal annual installments and a life of ten years. (11) Options award granted on May 18, 2011, with five year vesting in equal annual installments and a life of ten years. (12) Options award granted on October 11, 2010, with five year vesting in equal annual installments and a life of ten years. (13) Options award granted on May 20, 2010, with five year vesting in equal annual installments and a life of ten years. (14) Options award granted on June 1, 2009, with five year vesting in equal annual installments and a life of ten years. (15) Options award granted on May 19, 2008, with five year vesting in equal annual installments and a life of ten years. (16) Represents the value based upon the number of shares awarded multiplied by the closing price of our common stock, which was $7.18 per share on December 27, 2014. Option Exercises and Stock Vested During 2015 The following table provides information as to each of the NEOs: (i) stock option exercises during fiscal 2015, including the number of shares acquired upon exercise and the value realized, and (ii) the number of shares acquired upon the vesting of stock awards during fiscal 2015, and the value realized, each before payment of any applicable withholding tax. Option Awards Stock Awards Number of Number of Shares Acquired Value Realized on Shares Acquired Value Realized Name on Exercise (#) Exercise ($) (1) on Vesting (#) on Vesting ($) (2) Terry McDaniel — — 73,110 756,842 Steve Weinberger — — 28,321 293,519 E. Brian Foster 10,000 67,400 2,586 23,300 Daniel W. Hammer — — 8,334 76,339 Steven Sklar — — 2,548 22,957 (1) Based on the difference between the market price of our common stock on the date of exercise and the exercise price. (2) Based on the market price of our common stock on the vesting date. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 39 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 40 of 53 2015 Pension Benefits We do not offer any pension benefits for any of our employees. 2015 Nonqualified Defined Contribution and Other Nonqualified Deferred Compensation Plans On January 18, 2007, the Compensation Committee adopted the Deferred Compensation Plan, effective January 1, 2007. The Deferred Compensation Plan is a non-qualified deferred compensation plan that allows certain individuals designated by the Company from a select group of management or highly compensated service providers to elect Compensation Deferrals. Compensation Deferrals under the Deferred Compensation Plan represent obligations of the Company to pay participants certain compensation amounts that the participants have elected to defer. The Deferred Compensation Plan is intended to provide participants with the ability to defer income that would otherwise be payable to them for tax planning purposes. The Compensation Deferrals are payable in cash and generally will be paid in either a lump sum or in annual installments over a certain term upon retirement or in a lump sum upon death or other termination of service, according to the terms and conditions of the Deferred Compensation Plan. Subject to the terms and conditions of the Deferred Compensation Plan, each participant may specify one or more investment funds or benchmarks made available by the administrator of the Deferred Compensation Plan in which their deferrals will be deemed to be invested, and each participant’s deferral account will be adjusted periodically in accordance with the procedures adopted by such administrator to reflect such deemed investments. A participant’s deferral account will be 100% vested at all times. 31 Table of Contents The obligation to pay the vested balance of each Deferred Compensation Plan participant’s account will at all times be an unfunded and unsecured obligation of the Company. Benefits are payable solely from the Company’s general funds and are subject to the risk of corporate insolvency. Participants will not have any interest in any particular assets of the Company by reason of any obligation created under the Deferred Compensation Plan. A participant’s right to Compensation Deferrals cannot be transferred, assigned, pledged or encumbered. As of December 26, 2015, none of the NEOs have participated in the Deferred Compensation Plan. Potential Payments upon Termination or Change in Control The NEOs are eligible to receive certain benefits in the event their respective employment is terminated (i) by the Company without Cause (as defined in each respective NEO’s employment agreement), (ii) upon each such NEO’s retirement, disability or death, or (iii) in certain circumstances following a Change in Control (as defined in each respective NEO’s employment agreement) of the Company. The amount of benefits will vary based on the reason for the termination. The following information sets forth calculations as of December 26, 2015 of the estimated benefits the NEOs would receive in each of these situations. Although the calculations are intended to provide reasonable estimates of the potential benefits, they are based on numerous assumptions and may not represent the actual amount such NEO would receive if an eligible termination event were to occur. In addition to the amounts disclosed below, each NEO would retain the amounts that such NEO has earned or accrued over the course of such NEO’s employment prior to the termination event, such as the NEO’s balances under our Deferred Compensation Plan, our 401(k) Plan, and previously vested stock options, restricted shares and performance stock awards. Severance Benefits If the employment of a NEO is terminated without Cause, then such NEO will be entitled to receive benefits under such NEO’s employment agreement. Benefits are not available if a NEO is terminated for Cause. Each NEO has severance https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 40 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 41 of 53 benefits in their respective employment agreements. The following table sets forth the estimated benefits payable to our NEOs as severance upon a hypothetical termination of employment, assuming termination on December 26, 2015: Restricted Health Auto Outplacement Salary Bonus Stock Benefits Allowance and Other Total Name ($) (1) ($) (2) ($) ($) ($) ($) Terry McDaniel 525,147 — 541,831 — 12,000 9,000 1,087,978 Steve Weinberger 165,256 — 212,293 — 6,000 9,000 392,549 E. Brian Foster 86,674 — 40,274 3,874 — — 130,822 Daniel W. Hammer 216,300 — 53,584 14,439 — — 284,323 Steven Sklar 216,017 — 93,158 — 10,800 10,000 329,975 (1) Each NEO would be entitled to any applicable prorated bonus at the discretion of the Compensation Committee. Although no bonuses were paid in fiscal 2015, represents the amount of any actual earned bonus paid in fiscal 2015. (2) Amounts include outstanding unvested stock awards, including unvested performance stock awards which vest based on achievement of cumulative three-year EBITDA targets. If the NEO’s employment is terminated without Cause, or if the NEO resigns for Good Reason, then a portion of the performance shares vest based on the level of performance for the completed fiscal years prior to termination. If the NEO’s employment ends for any other reason, then the performance shares do not vest and are automatically forfeited. The dollar values indicated are based on the closing price of our common stock, which was $7.18 per share on December 26, 2015, multiplied by the number of shares estimated for immediate release as of December 26, 2015. Payments Upon a Change in Control The following table sets forth the value of the payments to which each NEO would be entitled in the event of a hypothetical Change in Control of the Company as of December 26, 2015. Stock Restricted Outplacement Salary Bonus Options Stock and Other Total Name ($) (2) ($) (3) ($) (4) ($) ($) Terry McDaniel 525,147 — — 879,499 9,000 1,413,646 Steve Weinberger 330,511 — — 333,843 9,000 673,354 E. Brian Foster 86,674 — 21,400 129,457 — 237,531 Daniel W. Hammer 216,300 — — 220,964 — 437,264 Steven Sklar 576,044 — 19,260 199,006 10,000 804,310 32 Table of Contents (1) Assumes that the NEO’s employment is terminated for Good Reason, within specified time periods before or after the Change in Control. (2) Each NEO would be entitled to any applicable prorated bonus at the discretion of the Compensation Committee. Although no bonuses were paid in fiscal 2015, represents the amount of any actual earned bonus paid in fiscal 2015. (3) Vesting of all unvested options automatically accelerates upon a Change in Control. The dollar values indicated are based on the difference between the exercise price per share and the closing price of our common stock, which was $7.18 per share on December 26, 2015, multiplied by the number of unvested options. (4) Upon a Change in Control, all performance shares are eligible for immediate vesting proportionately based upon the cumulative performance for the most recently completed fiscal year during the period, except to the extent that vesting would constitute an excess parachute payment under Section 280G of the Code. The dollar values indicated are based on the closing price of our common stock, which was $7.18 per share on December 26, 2015, multiplied by the number of shares estimated for immediate release as of December 26, 2015. Additionally, for restricted stock that is not performance-based restricted stock, the vesting all unvested shares of such stock automatically accelerates upon a Change in Control. The dollar values indicated also includes the value of all unvested non-performance based restricted stock that would immediately vest, determined based on the closing price of our common stock on December 26, 2015, which was $7.18 per share. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 41 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 42 of 53 Employment Agreements Terry McDaniel. The Company entered into an executive employment agreement with Mr. McDaniel on April 17, 2006, employing him as Chief Operating Officer, which agreement was amended on May 8, 2008 when Mr. McDaniel took over as CEO, and amended and restated in its entirety on March 25, 2013. Pursuant to the terms of this agreement, Mr. McDaniel is an "at will" employee. Under the terms of his employment agreement, Mr. McDaniel receives an annual base salary, eligibility for bonus as determined by the Board of Directors (or the Compensation Committee) in its discretion, an auto allowance of $1,000 per month, and, to the extent eligible thereunder, will be included in the Company’s plans that provide benefits to executive employees, including, medical, dental, vision, disability, life insurance, the 401 (k) Plan, sick days, vacation and holidays. Mr. McDaniel is also eligible to participate in all non-qualified deferred compensation and similar compensation, bonus and stock plans offered, sponsored or established by the Company on substantially the same or a more favorable basis as any other employee of the Company. In the event that Mr. McDaniel’s employment is terminated by the Company for Cause (as defined in his employment agreement) or Mr. McDaniel resigns, Mr. McDaniel will be entitled to receive his then current base salary through the date his employment is terminated, but no other compensation of any kind. In the event Mr. McDaniel’s employment is terminated by the Company without Cause, he will be entitled to receive as severance his then current base salary and monthly car allowance for the twelve-month period following his termination, and up to $9,000 for outplacement services. In the event of a Change in Control (as defined in his employment agreement), if Mr. McDaniel’s employment is terminated by his resignation within 12 months following such Change in Control, he will be entitled to receive the outplacement services described above, and if his employment is terminated for Good Reason (as defined in his employment agreement), within specified time periods before or after a Change in Control, he will be entitled to receive a lump sum amount equal to his then current annual base salary. Mr. McDaniel’s employment agreement includes non-competition and non-solicitation provisions that will end one year after Mr. McDaniel’s employment ends and confidentiality provisions that continue indefinitely. Steve Weinberger. The Company entered into an executive employment agreement with Mr. Weinberger on July 27, 2006, employing him as Chief Financial Officer, which agreement was amended on May 8, 2008. Pursuant to the terms of this agreement, Mr. Weinberger is an "at will" employee. Under the terms of his employment agreement, Mr. Weinberger receives an annual base salary, a $60,000 relocation allowance, eligibility for bonus as determined by the Board of Directors (or the Compensation Committee) in its discretion, an auto allowance of $1,000 per month, and, to the extent eligible thereunder, will be included in the Company’s plans that provide benefits to executive employees, including, medical, dental, vision, disability, life insurance, the 401(k) Plan, sick days, vacation and holidays. Mr. Weinberger is also eligible to participate in all non-qualified deferred compensation and similar compensation, bonus and stock plans offered, sponsored or established by the Company on substantially the same or a more favorable basis as any other executive of the Company. In the event that Mr. Weinberger’s employment is terminated by the Company for Cause (as defined in his employment agreement) or Mr. Weinberger resigns, Mr. Weinberger will be entitled to receive his then current base salary through the date his employment is terminated, but no other compensation of any kind. In the event Mr. Weinberger’s employment is terminated by the Company without Cause, he will be entitled to receive as severance his then current base salary and monthly car allowance for the six-month period following his termination, up to $9,000 for outplacement services and, to the extent that Mr. Weinberger lists the sale of his residence with a licensed real estate broker during such 6-month period and completes the sale of such residence during the 12-month period following expiration of such 6-month period at a sale price less than the amount Mr. Weinberger initially paid for such residence (net of real estate commissions and other closing costs), the Company will reimburse Mr. Weinberger for such loss in a 33 Table of Contents lump sum payment up to a maximum of $66,250. In the event of a Change in Control (as defined in his employment agreement), if Mr. Weinberger’s employment is terminated by his resignation within 12 months following such Change in Control, he will be entitled to receive the outplacement services described above, and if his employment is terminated for Good Reason (as defined in his employment agreement), within specified time periods before or after a Change in Control, he will be entitled to receive a lump sum amount equal to his then current annual base salary. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 42 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 43 of 53 Mr. Weinberger’s employment agreement includes non-competition and non-solicitation provisions which will end one year after Mr. Weinberger’s employment ends and confidentiality provisions that continue indefinitely. E. Brian Foster. The Company entered into an employment agreement with Mr. Foster on October 11, 2010. Pursuant to the terms of this agreement, Mr. Foster is an "at will" employee. In the event that Mr. Foster’s employment is terminated by the Company for Cause (as defined in his employment agreement) or Mr. Foster resigns, Mr. Foster will be entitled to receive his then current base salary through the date his employment is terminated, but no other compensation of any kind. In the event Mr. Foster’s employment is terminated by the Company without Cause, he will be entitled to receive as severance his then current base salary for the four-month period following his termination and he will remain on the Company provided benefit program for the same four-month period with all applicable employee contributions as if Mr. Foster were still an active employee of the Company. In the event of a Change in Control (as defined in his employment agreement) that results in Mr. Foster’s loss of employment with the Company, he will be entitled to receive as severance his then current base salary for the four-month period following the date of the Change in Control and he will remain on the Company provided benefit program for the same four-month period with all applicable employee contributions as if Mr. Foster were still an active employee of the Company. Mr. Foster’s employment agreement includes non-competition and non-solicitation provisions which will end three months and 12 months, respectively, after Mr. Foster’s employment ends and confidentiality provisions that continue indefinitely. Daniel W. Hammer. The Company entered into an executive employment agreement with Mr. Hammer on May 27, 2014, employing him as SVP and GM of the Company’s Frozen division. Pursuant to the terms of his employment agreement, Mr. Hammer is an "at will" employee. Under the terms of his employment agreement, Mr. Hammer receives an annual base salary, a $75,000 relocation allowance, eligibility for bonus as determined by the Board (or the Compensation Committee) in its discretion, an auto allowance of $1,200 per month, and, to the extent eligible thereunder, will be included in the Company’s plans that provide benefits to executive employees, including, medical, dental, vision, disability, life insurance, the 401(k) Plan, sick days, vacation and holidays. Mr. Hammer will also be eligible to participate in all non-qualified deferred compensation and similar compensation, bonus and stock plans offered, sponsored or established by the Company on substantially the same or a more favorable basis as any other employee of the Company. In the event that Mr. Hammer’s employment is terminated by the Company for Cause (as defined in his employment agreement) or he resigns, Mr. Hammer will be entitled to receive his then current base salary through the date his employment is terminated, but no other compensation of any kind. In the event Mr. Hammer’s employment is terminated by the Company without Cause or he resigns for Good Reason (as defined in his employment agreement), he will be entitled to receive as severance his then current base salary and certain health and dental benefits for the nine-month period following his termination. In the event of a Change in Control (as defined in his employment agreement), if Mr. Hammer’s employment is terminated within 12 months following such Change in Control, he will be entitled to receive a lump sum amount equal to nine months of his then current annual base salary. Mr. Hammer’s employment agreement includes non-competition and non-solicitation provisions which will end one year after Mr. Hammer’s employment ends and confidentiality provisions that continue indefinitely. Steven Sklar. The Company entered into an executive employment agreement with Mr. Sklar on August 1, 2005, employing him as SVP of Marketing. Pursuant to the terms of this agreement, Mr. Sklar is an "at will" employee. Under the terms of his employment agreement, Mr. Sklar receives an annual base salary, a $75,000 relocation allowance, eligibility for bonus as determined by the Board of Directors (or the Compensation Committee) in its discretion, an initial auto allowance of $650 per month (currently $1,000 per month), and, to the extent eligible thereunder, will be included in the Company’s plans that provide benefits to executive employees, including, medical, dental, vision, disability, life insurance, the 401(k) Plan, sick days, vacation and holidays. Mr. Sklar is also eligible to participate in all non-qualified deferred compensation and similar compensation, bonus and stock plans offered, sponsored or established by the Company on substantially the same or a more favorable basis as any other executive of the Company. In the event that Mr. Sklar’s employment is terminated by the Company for Cause (as defined in his employment agreement) or Mr. Sklar resigns, Mr. Sklar will be entitled to receive his then current base salary through the date his employment is terminated, but no other compensation of any kind. In the event Mr. Sklar’s employment is terminated by the Company without Cause, he will be entitled to receive as severance his then current base salary and monthly car allowance for the nine-month period following his termination, up to $10,000 for outplacement services and any amounts payable under any bonus plans for which Mr. Sklar is eligible to participate as of the date his employment is terminated. In the event of a Change in Control (as defined in his employment agreement), if Mr. Sklar’s employment is terminated by his https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 43 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 44 of 53 resignation within 12 months following such Change in Control, he will be entitled to receive the outplacement services described above, and if his employment is terminated for Good Reason (as defined in 34 Table of Contents his employment agreement), within specified time periods before or after a Change in Control, he will be entitled to receive a lump sum amount equal to (i) 200% of his then current annual base salary, (ii) his monthly car allowance for 12 months, and (iii) any amounts payable under any bonus plans for which Mr. Sklar is eligible to participate as of the date of the Change in Control. Mr. Sklar’s employment agreement includes non-competition and non-solicitation provisions which will end one year after Mr. Sklar’s employment ends and confidentiality provisions that continue indefinitely. 2015 COMPENSATION OF DIRECTORS The following table sets forth information concerning the compensation earned during fiscal 2015 by each individual who served as a non-employee Director at any time during the fiscal year: Fees Earned Stock Option All Other or Paid in Awards Awards Compensation Name Cash ($) ($) (1) ($) (2) ($) Total ($) Ashton D. Asensio 40,000 31,689 — — 71,689 Timothy A. Cole 32,500 31,689 — — 64,189 Macon Bryce Edmonson 25,000 31,689 — — 56,689 Harold S. Edwards 35,000 31,689 — — 66,689 Paul J. Lapadat 47,500 31,689 — — 79,189 David L. Meyers 62,500 63,369 — — 125,869 (1) Represents the grant date fair value of restricted share awards granted during fiscal 2015, computed in accordance with FASB ASC Topic 718. The grant date fair value, as calculated in accordance with FASB ASC Topic 718, of fully vested share awards is equal to the closing price of our common stock on the date prior to grant. Neither estimated forfeitures nor actual forfeitures were included in these amounts. The aggregate number of stock awards outstanding for each independent Director at the end of fiscal 2015 is set forth in the following table: Aggregate Number of Name Stock Awards Outstanding Ashton D. Asensio 3,490 Timothy A. Cole 3,490 Macon Bryce Edmonson 3,490 Harold S. Edwards 3,490 Paul J. Lapadat 3,490 David L. Meyers 6,979 (2) The aggregate number of non-qualified stock option awards outstanding for each independent Director at the end of fiscal 2015 is set forth in the following table: Aggregate Number of Name Option Awards Outstanding Ashton D. Asensio 23,093 Timothy A. Cole 3,093 Macon Bryce Edmonson 8,093 Harold S. Edwards 3,093 Paul J. Lapadat 8,093 David L. Meyers 13,687 https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 44 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 45 of 53 Only non-employee Directors are compensated for their services as Directors. The Company’s fiscal 2015 compensation package for non-employee Directors was comprised of cash (annual retainers and committee meeting fees) and restricted share grants. The annual pay package is designed to attract and retain highly-qualified, independent professionals to represent our stockholders and positioned to approximate the median of our peer group. The Company’s fiscal 2015 compensation for non-employee Directors consisted of the following: Annual Retainers. Each independent Director is paid an annual retainer of $25,000. Our Chairman receives an additional annual retainer of $30,000 for his service as Chairman. The Chairman of the Audit Committee receives an additional annual retainer of $15,000, and the other members of the Audit Committee each receive an additional annual retainer of $10,000. The Chairman of the Compensation Committee receives an additional annual retainer of $12,500, and the other members of the Compensation Committee each receive an additional annual retainer of $7,500. The annual cash retainers are paid in quarterly installments. 35 Table of Contents Meeting Fees. There are no individual meeting fees. If a Director does not attend (in person or by telephone) a regular quarterly meeting, the Director forfeits $3,125 of the Director’s annual retainer for that meeting. Restricted Stock. Each year after each annual meeting of stockholders, each independent Director receives a grant of our restricted common stock, which grants vest on the date of the next annual meeting of stockholders. In May 2015, the Company granted 3,490 shares of our restricted common stock to each independent Director, excluding the Chairman, elected at the 2015 annual meeting of stockholders. The Company granted 6,979 shares of our restricted common stock to the Chairman. Business Expenses. Directors are reimbursed for out-of-pocket expenses incurred in attending meetings of the Board of Directors and for other expenses incurred in their capacity as Directors. Director and Officer Liability Insurance. Director and officer ("D&O") liability insurance individually insures our Directors and officers against certain losses that they are legally required to pay as a result of their actions while performing duties on our behalf. Our D&O insurance policy does not break out the premium for Directors versus officers and, therefore, a dollar amount cannot be assigned for individual Directors. COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION During fiscal 2015, our Compensation Committee was comprised of Paul J. Lapadat (Chair), Timothy A. Cole and David L. Meyers. None of the members of the Compensation Committee are or have been an officer or employee of the Company. During the fiscal year ended December 26, 2015, no member of the Compensation Committee had any relationship with the Company requiring disclosure under Item 404 of Regulation S-K. During the fiscal year ended December 26, 2015, none of the Company’s executive officers served on the compensation committee (or its equivalent) or board of directors of another entity any of whose executive officers served on the Company’s Compensation Committee or Board of Directors. COMPENSATION COMMITTEE REPORT The following report of the Compensation Committee shall not be deemed to be incorporated by reference into any previous filing by us under either the Securities Act, or the Exchange Act that incorporates future Securities Act or Exchange Act filings in whole or in part by reference. We have reviewed and discussed with management the "Compensation Discussion and Analysis" section of the Company’s 2016 Proxy Statement. Based on such review and discussion, we have recommended to the Board of Directors that the "Compensation Discussion and Analysis" section be included in this 2016 Proxy Statement. COMPENSATION COMMITTEE Paul J. Lapadat (Chair) https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 45 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 46 of 53 Timothy A. Cole David L. Meyers 36 Table of Contents CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS Under procedures adopted by the Board of Directors, all related party transactions must be reviewed, approved or ratified by a majority of the disinterested members of the Board of Directors. For purposes of the procedures, the term "related party transaction" means any transaction that is required to be disclosed in the Company’s proxy statements or other filings with the SEC pursuant to Item 404(a) of Regulation S-K under the Exchange Act and any material "conflict of interest" transaction with a Director. Pursuant to its written Charter, the Audit Committee must also review and approve or ratify all related party transactions. In determining whether to approve or ratify a related party transaction, the Audit Committee and Board of Directors looks to whether the related party transaction is on terms and conditions no less favorable to the Company than may reasonably be expected in arm’s-length transactions with unrelated parties and the extent of the related party’s interest in the transaction. The Audit Committee and the Board of Directors will also consider such other factors as it may determine in circumstances of a particular transaction. If advance approval is not feasible, the related party transaction will be considered and, if the Audit Committee and the Board of Directors determines it to be appropriate, ratified at the Audit Committee’s and the Board of Directors’ next regularly scheduled meetings. Further, our Code of Business Conduct and Ethics and supplemental Financial Code of Ethics provide that our Directors, officers and employees to report situations that conflict or appear to conflict with the interests of the Company. From January 2013 until December 2015, Mr. Edmonson, a member of our Board of Directors, was the CEO of Bland Farms, LLC, a large multinational farming and sales operation based in Glennville, Georgia. Mr. Edmonson is currently retained by Bland Farms to serve in an executive position on a part-time basis. Bland Farms, LLC is the parent company of Vidalia Brands, Inc., with whom we have a broker agreement and a license to sell our Vidalia® brand snack products and a supply agreement to obtain sweet onion puree. During fiscal 2015, the Company paid approximately $530,742 to Vidalia Brands, Inc. This transaction was reviewed and approved as a related party transaction pursuant to the procedures set forth above. Except as described in the previous paragraphs and except for the compensation arrangements and other arrangements described in "Executive Compensation" elsewhere in this 2016 Proxy Statement, there were no transactions during our fiscal year ended December 26, 2015 and there is not currently proposed any transaction or series of similar transactions to which we were or will be a party, in which the amount involved exceeded or will exceed $120,000 in which any Director, any executive officer, any holder of 5% or more of our capital stock or any member of their immediate family had or will have a direct or indirect material interest. 37 Table of Contents SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT The following table sets forth information known to us regarding the beneficial ownership of our common stock as of the Record Date by (i) each stockholder who is known by us to beneficially own more than 5% of our common stock, (ii) each of our Directors, (iii) each of our NEOs, and (iv) all of our Directors and executive officers as a group. Unless otherwise noted, the address of each person named in the table is 5415 East High Street, Suite 350, Phoenix, Arizona 85054. https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 46 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 47 of 53 Amount and Nature Percent of Shares of Beneficial of Common Stock Ownership of Beneficially Name of Beneficial Owner(1) Common Stock (2) Owned (3) 5% Holders: King Luther Capital Management Corp 2,149,666(4) 10.8 301 Commerce Street, Suite 1600, Fort Worth, TX 76102 FMR, LLC 245 Summer Street, Boston, MA 02210 1,721,125(5) 8.6 BlackRock, Inc. 40 East 52nd Street, New York, NY 10022 1,303,104(6) 6.5 Division of Investment, Department of Treasury, State of New Jersey 50 West State Street, 9th Floor, PO Box 290, Trenton, NJ 08625 1,150,000(7) 5.8 American Century Investment Management, Inc. 4500 Main Street, Kansas City MO 64111 1,054,090(8) 5.3 Directors and Executive Officers: Terry McDaniel 495,469(3)(9)(10) 2.5 Steve Weinberger 193,330(3)(9)(10) 1.0 E. Brian Foster 81,395(3)(9)(10) * Daniel W. Hammer 70,958(3)(9)(10) * Steven Sklar 257,580(3)(9)(10) 1.3 Ashton D. Asensio 51,112(3)(10) * Timothy A. Cole 8,129(3)(10) * Macon Bryce Edmonson 49,314(3)(10) * Harold S. Edwards 8,129(3)(10) * David L. Meyers 27,508(3)(10) * Paul J. Lapadat 15,629(3)(10) * Executive Officers and Directors as a group (11 persons) 1,258,553(11) 6.3 * Less than 1%. (1) Except as otherwise indicated, the persons named in this table have sole voting and investment power with respect to all shares of our common stock shown as beneficially owned by them, subject to community property laws where applicable and to the information contained in the footnotes to this table. (2) Calculated on the basis of 19,575,169 shares of our common stock outstanding as of the Record Date, plus any additional shares of our common stock that a stockholder has the right to acquire within 60 days of the Record Date. Restricted stock reflected in the table is forfeitable until vested. (3) Under the rules of the SEC, a person is deemed to be the beneficial owner of shares that can be acquired by such person within 60 days of the Record Date upon the exercise of options. Includes shares issuable to the indicated person upon exercise of stock options that are exercisable within 60 days of the Record Date as follows: Mr. McDaniel — 39,200; Mr. Weinberger — 20,400; Mr. Foster — 60,000; Mr. Hammer — 10,000; Mr. Sklar — 198,000; Mr. Asensio — 23,093; Mr. Cole — 3,093; Mr. Edmonson — 8,093; Mr. Edwards — 3,093; Mr. Meyers — 13,687; and Mr. Lapadat — 8,093. Excludes 43,500 shares issuable upon the exercise of stock options that have not yet vested and are not exercisable within 60 days of the Record Date. (4) According to Schedule 13D/A filed by the holder with the SEC on January 27, 2016, disclosing sole voting power with respect to 2,149,666 shares and sole dispositive power with respect to 2,149,666 shares. (5) According to Schedule 13G filed by the holder with the SEC on February 12, 2016, disclosing sole voting power with respect to 1,087,825 shares and sole dispositive power with respect to 1,721,125 shares. (6) According to Schedule 13G/A filed by the holder with the SEC on January 26, 2016, disclosing shared voting power with respect to 1,285,292 shares and sole dispositive power with respect to 1,303,104 shares. (7) According to Schedule 13G/A filed by the holder with the SEC on January 15, 2016, disclosing sole voting power with respect to 1,150,000 shares and sole dispositive power with respect to 1,150,000 shares. (8) According to Schedule 13G/A filed by the holder with the SEC on February 11, 2016, disclosing sole voting power with respect 38 https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 47 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 48 of 53 Table of Contents to 993,447 shares and sole dispositive power with respect to 1,054,090 shares. (9) Includes unvested performance-based restricted shares with voting rights, issued under the 2005 Plan in the following amounts: Mr. McDaniel — 55,158; Mr. Weinberger — 19,855; Mr. Foster — 7,250; Mr. Hammer — 9,646; and Mr. Sklar — 17,290. (10) Includes unvested restricted shares with voting rights, issued under the 2005 Plan and the 2015 Plan in the following amounts: Mr. McDaniel — 47,049; Mr. Weinberger — 16,929; Mr. Foster — 12,421; Mr. Hammer — 26,312; and Mr. Sklar — 14,742; Mr. Asensio — 3,490; Mr. Cole — 3,490; Mr. Edmonson — 3,490; Mr. Edwards — 3,490; Mr. Meyers — 6,979; and Mr. Lapadat — 3,490. (11) See footnotes 3, 9 and 10 above. Includes 386,752 shares issuable upon the exercise of stock options that are exercisable within 60 days of the Record Date. Excludes 43,500 shares issuable upon the exercise of stock options that have not yet vested and are not exercisable within 60 days of the Record Date. 39 Table of Contents SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE Section 16(a) of the Exchange Act requires our executive officers and Directors and persons who beneficially own more than 10% of our common stock to file initial reports of beneficial ownership and reports of changes in beneficial ownership with the SEC. Such persons are required by SEC regulations to furnish us with copies of all Section 16(a) forms filed by such person. Based solely on our review of such forms furnished to us, and written representations from certain reporting persons, we believe that all filing requirements applicable to our executive officers, Directors and greater-than-10% stockholders during the fiscal year ended December 26, 2015 were satisfied, except that (i) Ashton D. Asensio, a director, filed a late Form 4 on May 22, 2015 with respect to the vesting of a restricted stock unit award, (ii) Timothy A. Cole, a director, filed a late Form 4 on May 22, 2015 with respect to the vesting of a restricted stock unit award, (iii) Macon Bryce Edmonson, a director, filed a late Form 4 on May 22, 2015 with respect to the vesting of a restricted stock unit award, (iv) Harold S. Edwards, a director, filed a late Form 4 on May 22, 2015 with respect to the vesting of a restricted stock unit award, (v) David L. Myers, a director, filed a late Form 4 on May 22, 2015 with respect to the vesting of a restricted stock unit award, (vi) Paul J. Lapadat, a director, filed a late Form 4 on May 22, 2015 with respect to the vesting of a restricted stock unit award, (vii) Terry E. McDaniel, an executive officer, filed a late Form 4 on May 22, 2015 with respect to the vesting of a restricted stock unit award, (viii) Steve Weinberger, an executive officer, filed a late Form 4 on May 22, 2015 with respect to the vesting of a restricted stock unit award and the withholding of shares of the Company’s common stock in connection with the payment of the related tax liability, (ix) E. Brian Foster, an executive officer, filed a late Form 4 on May 22, 2015 with respect to the vesting of a restricted stock unit award and the withholding of shares of the Company’s common stock in connection with the payment of the related tax liability, (x) Steve Sklar, an executive officer, filed a late Form 4 on May 22, 2015 with respect to the vesting of a restricted stock unit award, and (xi) Brad Rader, a former executive officer, filed a late Form 4 on May 22, 2015 with respect to the vesting of a restricted stock unit award, and failed to file a Form 4 with respect to a cashless option exercise on August 28, 2015 and the related sale of shares of the Company’s common stock underlying the option to pay the exercise price and applicable withholding taxes. STOCKHOLDER PROPOSALS OR NOMINATIONS TO BE PRESENTED AT NEXT ANNUAL MEETING Pursuant to Rule 14a-8 under the Exchange Act, some stockholder proposals may be eligible for inclusion in our proxy statement for the 2017 annual meeting of stockholders. These stockholder proposals must be submitted, along with proof of ownership of our stock in accordance with Rule 14a-8(b)(2), to the Corporate Secretary at our principal executive offices no later than the close of business on December 12, 2016 (120 days prior to the anniversary of this year’s mailing date). Failure to deliver a proposal in accordance with these procedures may result in it not being deemed timely received. Submitting a stockholder proposal does not guarantee that we will include it in our proxy statement. Our Compensation Committee reviews all stockholder proposals and makes recommendations to the Board of Directors for https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 48 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 49 of 53 actions on such proposals. For information on qualifications of Director nominees considered by our Compensation Committee, see the "Corporate Governance" section of this 2016 Proxy Statement. Stockholder proposals may be included in our proxy materials for an annual meeting so long as they are provided to us on a timely basis and satisfy the other conditions set forth in applicable SEC rules. For a stockholder proposal to be included in our proxy materials for the 2017 annual meeting of stockholders, the proposal must be received at our principal executive offices, addressed to the Corporate Secretary, not later than December 12, 2016 (120 days prior to the anniversary of this year’s mailing date). Should stockholder business, including nominations or proposals, be brought before the 2017 annual meeting of stockholders, regardless of whether it is included in our proxy materials, our management proxy holders will be authorized by our proxy form to vote for or against the proposal, in their discretion, if we do not receive notice of the proposal, addressed to the Corporate Secretary at our principal executive offices, prior to the close of business on February 25, 2017 (45 days prior to the anniversary of this year’s mailing date). TRANSACTION OF OTHER BUSINESS As of the date of this 2016 Proxy Statement, the Board of Directors knows of no other business that will be conducted at the 2016 Annual Meeting other than as described in this 2016 Proxy Statement. If any other matter or matters are properly brought before the meeting or any adjournment or postponement of the meeting, it is the intention of the persons named in the accompanying proxy to vote the proxy on such matters in accordance with their best judgment. 40 Table of Contents STOCKHOLDERS SHARING THE SAME LAST NAME AND ADDRESS To reduce the expense of delivering duplicate proxy materials to stockholders who may have more than one account holding the Company’s stock but sharing the same address, we have adopted a procedure approved by the SEC called'householding." Under this procedure, certain stockholders of record who have the same address and last name, and who do not participate in electronic delivery of proxy materials, will receive only one copy of our proxy materials and, as applicable, any additional proxy materials that are delivered until such time as one or more of these stockholders notifies us that they want to receive separate copies. This procedure reduces duplicate mailings and saves printing costs and postage fees, as well as natural resources. Stockholders who participate in householding will continue to have access to and utilize separate proxy voting instructions. If you receive a single set of proxy materials as a result of householding, and you would like to have separate copies of our proxy materials mailed to you, please submit a request to our Corporate Secretary, and we will promptly send you what you have requested. However, please note that if you want to receive a paper proxy or voting instruction form or other proxy materials for purposes of this year’s 2016 Annual Meeting, you should follow the instructions included in the proxy materials that were sent to you. You can also contact our Corporate Secretary at (623) 932-6200 if you received multiple copies of the proxy materials and would prefer to receive a single copy in the future, or if you would like to opt out of householding for future mailings. AVAILABILITY OF ANNUAL REPORT ON FORM 10-K AND 2015 ANNUAL REPORT TO STOCKHOLDERS The Company is required to provide a copy of the 2015 Annual Report to our stockholders who receive this 2016 Proxy Statement. The Company will also provide copies of the 2015 Annual Report to brokers, dealers, banks, voting trustees and their nominees for the benefit of their beneficial owners of record. Additional copies of the 2015 Annual Report, along with copies of the Company’s Annual Report on Form 10-K for the fiscal year ended December 26, 2015 (not including documents incorporated by reference) are available, without charge, to stockholders upon written request to the Company as follows: Inventure Foods, Inc. Attention: Corporate Secretary 5415 East High Street, Suite 350 Phoenix, Arizona 85054 https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 49 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 50 of 53 You may view the Company’s filings with the SEC and the proxy materials by visiting the Company’s website at www.inventurefoods.com on the "SEC Filings" and "Annual Report and Proxy" sections of the "Investor Relations" page. By order of the Board of Directors Steve Weinberger Secretary April 11, 2016 41 Table of Contents APPENDIX A CERTIFICATE OF AMENDMENT TO THE CERTIFICATE OF INCORPORATION OF INVENTURE FOODS, INC. INVENTURE FOODS, INC., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify: FIRST: That a resolution was adopted by the Board of Directors of the Corporation (the "Board of Directors") duly setting forth the proposed amendment to the Certificate of Incorporation of the Corporation, declaring said amendment to be advisable and directing that it be submitted to the stockholders of the Corporation for approval and adoption. The resolution setting forth the proposed amendment is as follows: RESOLVED, that Article EIGHTH of the Corporation’s Certificate of Incorporation shall be amended to read in its entirety as follows: "EIGHTH: [INTENTIONALLY OMITTED]." SECOND: Pursuant to a resolution of the Board of Directors, a meeting of stockholders of the Corporation was duly called and held on May 11, 2016, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares as required by statute were voted in favor of said amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, this Certificate of Amendment to the Certificate of Incorporation has been executed by a duly authorized officer of the Corporation on this 11th day of May, 2016. By: Name: Steve Weinberger Title: Chief Financial Officer A-1 https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 50 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 51 of 53 APPENDIX B RECONCILIATION OF NON-GAAP MEASURES The tables below present a reconciliation of each non-GAAP financial measure included in this Proxy Statement to the most comparable GAAP financial measure for fiscal 2015 and 2014. RECONCILIATION OF EBITDA AND ADJUSTED EBITDA (in thousands) (unaudited) Year Ended December 26, December 27, 2015 2014 Reconciliation — EBITDA (1): Reported net income (loss) $ (20,783) $ 10,561 Add back: Interest, net 6,330 2,604 Add back: Income tax (benefit) expense (12,046) 5,768 Add back: Depreciation 6,958 6,683 Add back: Amortization of intangible assets 548 1,204 EBITDA(1) $ (18,993) $ 26,820 Adjustments: Add back: Product recall costs 23,488 — Subtract: Product recall insurance recovery (4,172) — Add back: Impairment of intangible asset 9,277 — Subtract: Fresh Frozen contingent consideration adjustment — (2,653) Add back: Jamba litigation settlement — 435 Add back: Offering costs — 326 Adjusted EBITDA (1) $ 9,600 $ 24,928 ITEMS AFFECTING COMPARABILITY — RECONCILIATION OF ADJUSTED INFORMATION TO GAAP INFORMATION (in thousands) (unaudited) Year Ended December 26, December 27, 2015 2014 Reported net income (loss) $ (20,783) $ 10,561 Product recall costs, net of tax 14,869 — Product recall insurance recovery, net of tax (2,641) — Impairment of intangible asset, net of tax 5,873 — Debt Extinguishment, net of tax 385 — Bridge Loan Costs, net of tax 934 — Fresh Frozen contingent consideration adjustment, net of tax — (1,716) Jamba litigation settlement, net of tax — 285 Offering costs, net of tax — 213 Adjusted net income (loss) (2) $ (1,363) $ 9,343 Adjusted diluted earnings (loss) per share (2) $ (0.07) $ 0.47 (1) EBITDA is defined as net income (loss) with net interest expense, income taxes, depreciation and amortization added back. We further adjust EBITDA to exclude the fiscal 2015 Fresh Frozen product recall costs and related insurance recoveries and the impairment of intangible asset, and the fiscal 2014 Fresh Frozen Foods contingent consideration adjustment, the Jamba litigation settlement and the secondary offering costs, which are not related to our core business to arrive at adjusted EBITDA. The GAAP financial measure that is most directly comparable to EBITDA is net cash provided by operating activities. We present adjusted EBITDA because we believe it provides useful information regarding our ability to meet our future debt payment requirements, capital expenditures and working capital requirements and it provides https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 51 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 52 of 53 an overall evaluation of our financial condition. We include adjusted EBITDA in this earnings announcement to provide transparency to investors and to assist investors in comparing our performance across reporting periods on a consistent basis by excluding items that we do not believe are indicative of our core operating performance. Adjusted EBITDA has certain inherent limitations as an analytical tool and should not be used in isolation or as a substitute for net income, cash flows, or other consolidated income or cash flow data prepared in accordance with GAAP or as a measure of our profitability or our liquidity. Further, EBITDA may not be comparable to similarly titled measures used by other companies. (2) Adjusted net income (loss) and adjusted diluted earnings per share permit a comparative assessment of our net income (loss) and diluted earnings (loss) per share by excluding the fiscal 2015 Fresh Frozen product recall costs, related insurance recoveries, the impairment of intangible asset, bridge loan costs and debt extinguishment costs. The 2014 period excludes the fiscal 2014 Fresh Frozen Foods contingent consideration adjustment, the Jamba litigation settlement and the secondary offering costs to make a more meaningful comparison of our operating performance. B-1 ANNUAL MEETING OF STOCKHOLDERS OF INVENTURE FOODS, INC. May 11, 2016 GO GREEN e-Consent makes it easy to go paperless. With e-Consent, you can quickly access your proxy material, statements and other eligible documents online, while reducing costs, clutter and paper waste. Enroll today via www.amstock.com to enjoy online access. NOTICE OF INTERNET AVAILABILITY OF PROXY MATERIAL: The Company’s Notice of 2016 Annual Meeting of Stockholders, 2016 Proxy Statement, and 2015 Annual Report are available at www.inventurefoods.com by choosing "Investor Relations" and then the "Annual Report and Proxy" links. Please sign, date and mail your proxy card in the envelope provided as soon as possible. Please detach along perforated line and mail in the envelope provided. THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE ELECTION OF ALL NOMINEES AS DIRECTORS IN ITEM 1 AND "FOR" ITEMS 2, 3 AND 4. PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE x 1. Election of Directors: NOMINEES: o FOR ALL NOMINEES o Ashton D. Asensio o Timothy A. Cole o WITHHOLD AUTHORITY o Macon Bryce Edmonson FOR ALL NOMINEES o Harold S. Edwards o Paul J. Lapadat o FOR ALL EXCEPT o Terry McDaniel (See instructions below) o David L. Meyers INSTRUCTIONS: https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017 Page 52 of 52 Case 2:17-cv-00727-JAT Document 27-8 Filed 07/06/17 Page 53 of 53 To withhold authority to vote for any individual nominee(s), mark "FOR ALL EXCEPT" and fill in the circle next to each nominee you wish to withhold, as shown here: x FOR AGAINST ABSTAIN 2. Vote on an advisory (non-binding) resolution to approve the compensation of our o o o Named Executive Officers (as defined in the Proxy Statement for the 2016 Annual Meeting). 3. Approve an amendment to the Certificate of Incorporation, as amended, to effect o o o the elimination of Article EIGHTH. 4. Ratify the appointment of Moss Adams LLP as our independent registered public o o o accounting firm for the fiscal year ending December 31, 2016. To change the address on your account, please check the box at right and indicate your new address in the address space above. Please note that changes to the registered name(s) on the account may not be submitted via this method. o Signature of Date: Signature of Stockholder Date: Stockholder Note: Please sign exactly as your name or names appear on this Proxy. When shares are held jointly, each holder should sign. When signing as executor, administrator, attorney, trustee or guardian, please give full title as such. If the signer is a corporation, please sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign in partnership name by authorized person. INVENTURE FOODS, INC. THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS The undersigned hereby appoints Terry McDaniel and Steve Weinberger, and each of them, with full power of substitution, as proxies of the undersigned to vote all shares of common stock, par value $.01 per share, of Inventure Foods, Inc. (the "Company") held of record by the undersigned on March 28, 2016, at the Annual Meeting of Stockholders of the Company to be held on May 11, 2016 or any adjournments or postponements thereof (the "2016 Annual Meeting"), on the matters set forth on the reverse side of this Proxy, and, in their discretion, upon all matters incident to the conduct of the 2016 Annual Meeting and upon such other matters as may properly be brought before the 2016 Annual Meeting. This Proxy revokes all prior proxies given by the undersigned. This proxy, when properly executed, will be voted in the manner directed herein. If no direction is made, this Proxy will be voted "FOR" the election of ALL Nominees as Directors in Item 1 and "FOR" Items 2, 3 and 4. (Continued and to be signed on the reverse side) https://www.sec.gov/Archives/edgar/data/944508/000110465916110735/a16-2222_1def14a... 7/6/2017

Exhibit I

EXHIBIT I Case Case2:17-cv-00727-JAT 1:15-cv-02136-AT Document Document 27-9 41 Filed Filed06/16/16 07/06/17 Page Page1 2ofof2024 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BSL INVESTMENTS, II, LLC,: f/k/a FRESH FROZEN FOODS,: LLC,:: Plaintiff,:: v.:: FRESH FROZEN FOODS, INC.,: CIVIL ACTION NO. f/k/a FFF ACQUISITION SUB,: 1:15-CV-2136-AT INC.::: Defendant.: ORDER This case concerns a dispute between Plaintiff BSL Investments, II, LLC ("BSL") and Fresh Frozen Foods, Inc. ("FFF") over the release of funds held in an escrow account ("Escrow Account"). In 2013, BSL sold two frozen food warehouses to FFF, along with the bulk of most of the rest of its assets. As part of that sale, BSL agreed to indemnify FFF under certain conditions. The Parties created the Escrow Account to secure those indemnification obligations, and placed $2.75 million into it. Half of these funds were disbursed to BSL in late 2014. At the time this dispute arose, $1.375 million remained in the Escrow Account. On May 7, 2015, FFF sent BSL a letter ("May 7 Letter") claiming that it was entitled to indemnification because BSL had failed to disclose that it lacked Case Case2:17-cv-00727-JAT 1:15-cv-02136-AT Document Document 27-9 41 Filed Filed06/16/16 07/06/17 Page Page2 3ofof2024 authority to transfer the operating licenses for the two warehouses to FFF and because BSL had hidden environmental issues with the properties. When BSL failed to respond to that initial letter, FFF sent a follow-up letter to both BSL and the escrow agent directing the agent to release the remaining $1.375 million in funds to FFF. At that point, BSL roared into action and sent its own letter, arguing that FFF had not provided proper notice under the parties’ contracts and that FFF was not entitled to indemnification. BSL then filed this suit, seeking a declaratory judgment that it was the proper recipient of the remaining escrow funds. FFF filed a Motion for Summary Judgment ("Motion") claiming that under the plain terms of the parties’ contract, BSL’s failure to respond to the May 7 Letter precluded BSL from recovering any amount of the remaining escrow funds. For the following reasons, the Court GRANTS FFF’s Motion. I. Standard The Court may grant summary judgment only if the record shows "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is material if resolving the factual issue might change the suit’s outcome under the governing law. Id. The motion should be 2 Case Case2:17-cv-00727-JAT 1:15-cv-02136-AT Document Document 27-9 41 Filed Filed06/16/16 07/06/17 Page Page3 4ofof2024 granted only if no rational fact finder could return a verdict in favor of the non-moving party. Id. at 249. When ruling on the motion, the Court must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in the non-moving party’s favor. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The moving party need not positively disprove the opponent’s case; rather, the moving party must establish the lack of evidentiary support for the non-moving party’s position. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets this initial burden, in order to survive summary judgment, the non-moving party must then present competent evidence beyond the pleadings to show that there is a genuine issue for trial. Id. at 324-26. The essential question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. II. Facts On November 8, 2013, BSL sold most of its business assets to FFF for $38.75 million, including two frozen food processing plants located in Thomasville and Jefferson, Georgia. (Pl.’s Resp. Def.’s Stmt. Undisp. Facts ¶¶ 1, 3 ("Pl.’s Resp. SMF") Doc. 32-1; see also Asset Purchase Agreement, Am. Compl. Ex. A., Doc. 5-1.) BSL and Fresh Frozen Foods entered into an Asset Purchase 3 Case Case2:17-cv-00727-JAT 1:15-cv-02136-AT Document Document 27-9 41 Filed Filed06/16/16 07/06/17 Page Page4 5ofof2024 Agreement ("Purchase Agreement," Doc. 5-1) and an Escrow Agreement (Doc. 5-2) (collectively, the "Agreements") to memorialize the sale. 1 (Id. ¶ 2.) The Purchase Agreement required the parties to indemnify each other if they breached certain representations and warranties that they made as part of the contract. (Purchase Agreement, Doc. 5-1.) $2.75 million of the purchase price was held in escrow (the "Escrow Funds") in order to secure BSL’s performance and payment of its indemnification obligations. (Pl.’s Resp. SMF ¶ 6.) The Escrow Account was intended to last for 18 months from the date of the sale of the two factories. If no disputes arose during this time period, then the Escrow Funds were to be released to BSL on the 6th and 18th month anniversaries of the contract. (Escrow Agreement § 4.) Half of the Escrow Funds-$1.375 million-were released to BSL Investments on May 8, 2014. (Pl.’s Resp. SMF ¶ 7.) The remaining half was to be released on May 8, 2015. (See the Agreements, Docs. 5-1, 5-2.) The Parties selected U.S. Bank as the Escrow Agent. (Escrow Agreement, Doc. 5-2.) The Agreements described a process by which FFF could claim entitlement to some or all of the Escrow Funds in the event it contended it was entitled to indemnification. 2 1 According to their terms, the purchase and escrow agreements are governed by Arizona law. (Pl.’s Resp. SMF ¶ 4). 2 The Purchase Agreement provides as follows: 4 Case Case2:17-cv-00727-JAT 1:15-cv-02136-AT Document Document 27-9 41 Filed Filed06/16/16 07/06/17 Page Page5 6ofof2024 In a nutshell, that process operated like this: • If FFF believed that it was entitled to indemnification, it had to send BSL an "Indemnification Claim Notice" which included within it an "Escrow Claim." • FFF’s Escrow Claim had to "reasonably describe" "In the event that [FFF] is entitled to indemnification by [BSL] under Section 6.2(a),2 [FFF] shall deliver written notice thereof to [BSL] with a copy to the Escrow Agent, which notice shall contain a statement reasonably describing the nature of the indemnification obligation, the identity of the Person (including [FFF]) by whom it is asserted, and the amount asserted as a Loss or Losses as a result thereof (the "Escrow Claim").... If [BSL] disputes any Escrow Claim or portion thereof, the Company shall, within 10 Business Days of receipt of such Escrow Claim, deliver to [FFF] and Escrow Agent a notice of objection (a "Dispute Notice"), setting forth with reasonable particularity the grounds and basis upon which the Escrow Claim or any portion thereof is disputed. If [BSL] does not provide [FFF] and Escrow Agent with a timely Dispute Notice, [FFF] shall have the right to receive the full amount of the Escrow Claim from the Escrow Amount and such amount shall not be payable to [BSL]." (Doc. 5-1 at § 2.11(b).) The Escrow Agreement provides something very similar: "In each case that [FFF] believes that [it]... is entitled to indemnification under Section 6.2(a) of the Purchase Agreement for reasons stated therein, [FFF] shall deliver written notice thereof ("an Indemnification Claim Notice") to [BSL] with a copy to the Escrow Agent, which notice shall contain a statement reasonably describing the nature of the indemnification obligation, the identity of the Person (including [FFF]) by whom it is asserted, and the amount asserted as a Loss or Losses as a result thereof (the "Escrow Claim").... If [FFF] and Escrow Agent do not receive a timely Dispute Notice (defined below), [FFF] shall have the right to receive the full amount of the Escrow Claim from the Escrow Funds, such amount shall not be payable to the Company, and the Escrow Agent shall promptly pay the amount specified in such indemnification Claim Notice from the Escrow Funds as directed by [FFF]." If [FFF] disputes any Escrow Claim or portion thereof, [it] shall, within 10 Business Days of receipt of such Escrow Claim, deliver to [FFF] and Escrow Agent a notice of objection (a "Dispute Notice"), setting forth with reasonable particularity the grounds and basis upon which the Escrow Claim or any portion thereof is disputed." (Doc. 5-2, § 3(a)-(b).) 5 Case Case2:17-cv-00727-JAT 1:15-cv-02136-AT Document Document 27-9 41 Filed Filed06/16/16 07/06/17 Page Page6 7ofof2024 o the nature of the indemnification obligation; o the identity of the Person by whom the claim was being asserted; and o "the amount asserted as a Loss or Losses as a result" of the claim. • BSL then had 10 business days from receipt of the Escrow Claim to deliver to FFF a "Dispute Notice" describing with reasonable particularity the grounds and basis upon which BSL disputed FFF’s Escrow Claim "or any portion thereof." • If BSL failed to submit a "timely Dispute Notice... [FFF had] the right to receive the full amount of the Escrow Claim from the Escrow Funds" and "such amount shall not be payable" to BSL. • If BSL did submit a timely Dispute Notice, then no disputed amounts could be disbursed to any party until a "final and non-appealable resolution" concerning those amounts was reached. (Escrow Agreement, Doc. 5-2 §§ 3(a)-(c).) On May 7, 2015, FFF sent a letter purporting to be an "Indemnification Claim Notice" to BSL. (Am. Compl. Ex. C, Doc. 5-3.) In the letter, FFF claimed it was entitled to indemnification under Section 6.2(a) of the Purchase Agreement for three reasons. First, on April 17, 2015, FFF was informed by the Georgia Department of Agriculture that BSL was not permitted to transfer to FFF the licenses to operate the Jefferson and Thomasville factories. Second, FFF 6 Case Case2:17-cv-00727-JAT 1:15-cv-02136-AT Document Document 27-9 41 Filed Filed06/16/16 07/06/17 Page Page7 8ofof2024 therefore could not operate the Jefferson or Thomasville factories. Third, BSL had breached representations and warranties concerning compliance with certain laws and environmental matters. (Am. Compl., Ex. C). The letter stated that the amount of damages suffered by FFF was "unquantifiable," and it instructed the escrow agent U.S. Bank "to withhold all remaining Escrow Funds" from any further distributions to BSL Investments. (Pl.’s Resp. SMF ¶ 11). BSL acknowledges that it received the May 7th Letter but did not respond to it within 10 business days of receipt as would typically be required by the Agreements. (Id. ¶ 12.) On May 28, 2015, FFF sent a second letter by Federal Express to U.S. Bank and BSL stating it had received no Dispute Notice and instructing U.S. Bank to pay FFF the $1.375 million remaining in the escrow funds. (Id. ¶ 16.) The next day, on May 29, 2015, BSL sent a letter to FFF objecting to FFF’s May 7 and May 28 letters, and arguing that the May 7 Letter did "not satisfy the requirements as an'Escrow Claim’ under the express language of the Escrow Agreement." BSL claimed that the May 7 Letter did not set forth'the amount asserted as a Loss or Losses’ under the Purchase Agreement." (Pl.’s Resp. SMF ¶ 18; Doc. 5-5.) BSL also claimed that any disbursement of the Escrow Funds to FFF would be in violation of the Escrow Agreement. (Pl.’s Resp. SMF ¶ 18.) BSL then filed this suit seeking relief in the form of an order declaring, inter alia, that "the May 7, 2015 letter is not a valid escrow claim," that "Fresh Frozen Food’s purported escrow claims are not subject to indemnification under 7 Case Case2:17-cv-00727-JAT 1:15-cv-02136-AT Document Document 27-9 41 Filed Filed06/16/16 07/06/17 Page Page8 9ofof2024 Section 6.2 of the Asset Purchase Agreement," and requiring the escrow agent to release the remaining escrow funds to BSL. (See Am. Compl.) FFF’s Motion followed shortly thereafter. III. Choice of Law Both Parties agree that Arizona law governs this contract dispute. (Pl.’s Resp., Doc. 32 at 11 n.7 ("BSL agrees with FFF that Arizona law applies to this dispute.")) The Escrow Agreement also provides that it is governed by Arizona law. (Doc. 5-2 at § 10(d).) Accordingly, the Court applies Arizona law. In the event that no Arizona authority is on point, Arizona courts look to other jurisdictions for guidance. Data Sales Co. v. Diamond Z Mfg., 598, 74 P.3d 268, 272 (Ariz. Ct. App. 2003). So will the Court. IV. Analysis FFF’s Motion asks this Court to determine that it delivered a valid Escrow Claim to BSL and that BSL’s failure to timely respond to that Escrow Claim operates as a waiver of BSL’s entitlement to the Escrow Funds. (Motion at 2.) The Motion advances three primary arguments: first, that BSL has waived its ability to object to the Escrow Claim by failing to respond; second, that in any event the Escrow Claim is valid and contains all of the requirements described by the parties’ contracts; and third, that this Court need not reach the merits of the underlying indemnification claims because BSL’s failure to dispute the Escrow Claim is dispositive. 8 Case Case2:17-cv-00727-JAT 1:15-cv-02136-AT Document Document27-9 41 Filed Filed06/16/16 07/06/17 Page Page910 of of 2024 BSL contends that FFF is not entitled to summary judgment because the May 7 Letter failed to "reasonably describe" the losses suffered by FFF. Therefore, according to BSL, the May 7 letter was not in fact an Escrow Claim, meaning BSL had no obligation to send a Dispute Notice in response. BSL also argues that FFF is not entitled to indemnification in the first instance because the breaches it identified were not subject to the Purchase Agreement’s indemnification provisions. (Pl.’s Resp. ("Response") at 2.) A. Did BSL Waive its Right to Object to the Escrow Claim. The Court first addresses FFF’s argument that BSL waived its right to the remainder of the Escrow Funds by failing to respond to the purported May 7 Escrow Claim within the 10-day period required by the contract. Under the Agreements, a party may waive its ability to claim escrow funds if it fails to respond to an Escrow Claim in a timely manner. On this issue the Parties’ Agreements are plain. (See Escrow Agreement § 3(a) ("[i]f [FFF] and Escrow Agent do not receive a timely Dispute Notice... [FFF] shall