As filed with the Securities and Exchange Commission
on May 17, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
FORM S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
US FOODS HOLDING
CORP.
(Exact
Name of Registrant as Specified in its Charter)
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Delaware |
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26-0347906 |
(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
|
9399 W. Higgins Road, Suite 100 |
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|
Rosemont, Illinois |
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60018 |
(Address
of Principal Executive Offices) |
|
(Zip
Code) |
US FOODS HOLDING CORP. AMENDED AND RESTATED
EMPLOYEE STOCK PURCHASE PLAN
(Full
title of the plan)
Martha Ha, Esq.
US Foods Holding Corp.
9399 W. Higgins Road, Suite 100
Rosemont, Illinois 60018
Telephone: (847) 720-8000
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth
company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☒ |
Accelerated filer ☐ |
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|
Non-accelerated filer ☐ |
Smaller reporting company ☐ |
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Emerging growth company ☐ |
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY
NOTE
This
Registration Statement on Form S-8 is being filed for the purpose of registering an additional 3,500,000 shares of common stock, par
value $0.01 per share (“Common Stock”), of US Foods Holding Corp. (the “Company” or the “Registrant”)
reserved for issuance under the US Foods Holding Corp. Amended and Restated Employee Stock Purchase Plan (as amended and restated, the
“ESPP”) under the Securities Act of 1933, as amended (the “Securities Act”).
PART
I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
information required by Part I of Form S-8 to be contained in the Section 10(a) prospectus is omitted from this Registration Statement
in accordance with Rule 428 under the Securities Act and the “Note” to Part I of Form S-8.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. | Incorporation
of Documents by Reference. |
The
following documents, which have been filed by the Registrant with the Securities and Exchange Commission (the “Commission”)
pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference herein and
shall be deemed to be a part hereof:
| (d) | The
description of the Company’s Common Stock contained in the Company’s Registration
Statement on Form 8-A as filed under the Exchange Act on May
23, 2016, including any amendments or reports filed thereunder that update or otherwise
modify such descriptions, including the Description of Securities in Exhibit 4.7 of the Company’s
Form 10-K for the year ended January
2, 2021. |
All
reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated herein by reference and shall be deemed a part hereof from the date of filing
of such documents. Any statement contained in any document, all or a portion of which is incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained or incorporated by
reference herein 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 Registration Statement.
Item
4. | Description
of Securities. |
Not
applicable.
Item 5. | Interests
of Named Experts and Counsel. |
Martha
Ha, EVP, General Counsel and Corporate Secretary of the Registrant, has rendered an opinion as to the validity of the Common Stock being
registered by this Registration Statement. Ms. Ha is an employee of the Registrant and is eligible to participate in the ESPP. Ms. Ha
beneficially owns or has rights to acquire less than one percent of the Common Stock.
Item 6.
| Indemnification
of Directors and Officers. |
Section
102(b)(7) of the Delaware General Corporation Law, as amended (the “DGCL”), allows a corporation to provide in its certificate
of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except where the director breached the duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in
violation of Delaware corporate law or obtained an improper personal benefit.
Section
145 of the DGCL (“Section 145”) provides, among other things, that a Delaware corporation may indemnify any person who was,
is or is threatened to be made party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer,
director, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided
such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best
interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful.
A Delaware corporation may indemnify any persons who were or are a party to any threatened, pending or completed action or suit by or
in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of another corporation
or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the corporation’s best interests, provided further that no indemnification is permitted
without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him
or her against the expenses (including attorneys’ fees) which such officer or director has actually and reasonably incurred.
Section
145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation or enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising
out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify such person under Section
145.
The
indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire
under any statute, any provision of the Registrant’s Restated Certificate of Incorporation (the “Certificate of Incorporation”),
the Registrant’s Amended and Restated Bylaws (the “Bylaws”) or any agreement, vote of stockholders or disinterested
directors or otherwise. Notwithstanding the foregoing, the Registrant shall not be obligated to indemnify a director or officer in respect
of a proceeding (or part thereof) instituted by such director or officer, unless such proceeding (or part thereof) has been authorized
by the Board of Directors of the Registrant pursuant to the applicable terms set forth in the Bylaws. Section 174 of the DGCL provides,
among other things, that a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase
or redemption, may be held jointly and severally liable for such actions. A director who was either absent when the unlawful actions
were approved or dissented at the time may avoid liability by causing his or her dissent to such actions to be entered in the books containing
the minutes of the meetings of the Board of Directors at the time such action occurred or immediately after such absent director receives
notice of the unlawful acts.
The
Certificate of Incorporation contains provisions that eliminate, to the maximum extent permitted by the DGCL, the liability of the Registrant’s
directors for monetary damages for breach of their fiduciary duties as directors. The Certificate of Incorporation provides that the
Registrant must indemnify and advance expenses to its directors to the fullest extent permitted by the DGCL, provided that, subject to
certain conditions set forth in the Bylaws, the Registrant will not be obligated to indemnify or advance expenses to a director of the
Registrant in respect of any action, suit or proceeding (or part thereof) unless such action, suit or proceeding (or part thereof) has
been authorized by the Board of Directors of the Registrant. The Bylaws further provide that, to the fullest extent permitted by the
DGCL and other applicable law, the Registrant (i) must indemnify its officers and any director or officer of the Registrant who is party
to or is threatened to be made party to any action, suit or proceeding by reason of the fact that he or she is or was serving or has
agreed to serve at the request of the Registrant as a director, officer, employee, manager or agent of another corporation or enterprise
and (ii) may indemnify any present or former employee or agent of the Registrant. The Bylaws also expand upon the Certificate of Incorporation
by permitting the Registrant to advance expenses incurred by an officer of the Registrant in defending any proceeding, provided that
such officer repay the advanced amount if it is ultimately determined that he or she is not entitled to be indemnified by the Registrant.
The
Bylaws provide that the Registrant will purchase and maintain standard policies of insurance that provide coverage to its directors and
officers (or any person serving at the request of the Registrant as a director of officer of another corporation or enterprise) against
any liability incurred by him or her or on his or her behalf arising out of his or her status as a director or officer, regardless of
whether the Registrant would otherwise have the power to indemnify such person against such liability pursuant to the Bylaws.
Item 7. | Exemption
from Registration Claimed. |
Not
applicable.
|
|
Exhibit
No. |
Description |
4.1 |
Restated
Certificate of Incorporation of US Foods Holding Corp., effective as of May 18,
2023 (incorporated
herein by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the SEC on May 18,
2023). |
4.2 |
Amended
and Restated Bylaws of US Foods Holding Corp., effective as of November 2, 2022 (incorporated herein by reference to Exhibit 3.1
to the Current Report on Form 8-K filed with the SEC on November 7, 2022). |
4.3 |
Description
of Securities of US Foods Holding Corp. (incorporated herein by reference to Exhibit 4.7 to the Annual Report on Form 10-K filed
with the SEC on February 16, 2021). |
5.1* |
Opinion
of Martha Ha, Esq. |
23.1* |
Consent
of Deloitte & Touche LLP. |
23.2* |
Consent
of Martha Ha, Esq. (included as part of Exhibit 5.1). |
24.1* |
Powers
of Attorney (included on the signature pages to this Registration Statement). |
99.1 |
US
Foods Holding Corp. Amended and Restated Employee Stock Purchase Plan (incorporated by reference to Appendix B to the Definitive
Proxy Statement on Schedule 14A filed with the Commission on April 2, 2024). |
107 |
Filing
Fee Table. |
|
|
* |
Filed herewith. |
| (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; and |
| (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) and (a)(1)(ii) above do not apply if the information required to be included in the post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by reference in 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. |
| (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 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 the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the Commission 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 by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question 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. |
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-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Rosemont, State of Illinois, on this 17th day of May, 2024.
|
US
FOODS HOLDING CORP. |
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By |
/s/
Martha Ha |
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Martha Ha
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EVP, General
Counsel and Corporate Secretary |
KNOW
ALL PERSONS BY THESE PRESENTS, that each of the undersigned constitutes and appoints Dirk J. Locascio and Martha Ha, and each or any
one of them, as the undersigned’s true and lawful attorneys-in-fact and agents, with full powers of substitution and resubstitution,
for the undersigned and in the undersigned’s name, place and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, full power and authority to
do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and
purposes as the undersigned might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents,
or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities
and on the date indicated.
Signature |
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Title |
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Date |
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/s/ David E. Flitman |
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Chief Executive Officer (Principal Executive
Officer) and Director |
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May 17, 2024 |
David
E. Flitman |
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/s/ Dirk J. Locascio |
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Chief
Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
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May 17, 2024 |
Dirk
J. Locascio |
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/s/
Robert M. Dutkowsky |
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Director,
Chairman of the Board |
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May
17, 2024 |
Robert
M. Dutkowsky |
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/s/ Cheryl A. Bachelder |
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Director |
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May 17, 2024 |
Cheryl
A. Bachelder |
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/s/
Marla Gottschalk |
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Director |
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May
17, 2024 |
Marla
Gottschalk |
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/s/ Sunil Gupta |
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Director |
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May 17, 2024 |
Sunil
Gupta |
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/s/ Carl Andrew Pforzheimer |
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Director |
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May 17, 2024 |
Carl
Andrew Pforzheimer |
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/s/ Quentin Roach |
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Director |
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May 17, 2024 |
Quentin
Roach |
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/s/ David M. Tehle |
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Director |
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May 17, 2024 |
David
M. Tehle |
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/s/ Ann E. Ziegler |
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Director |
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May 17, 2024 |
Ann E. Ziegler |
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US Foods Holding Corp. S-8
Exhibit 5.1
May 17, 2024
US Foods Holding Corp.
9399 W. Higgins Road, Suite 100
Rosemont, IL 60018
Ladies and Gentlemen:
I have examined the Registration Statement on Form S-8 being filed
with the Securities and Exchange Commission on or about the date of this letter (the “Registration Statement”) in connection
with the registration under the Securities Act of 1933, as amended, of 3,500,000 additional shares (the “Shares” and individually,
a “Share”) of common stock, par value $0.01 per share, of US Foods Holding Corp. (the “Company”), authorized for
issuance under the US Foods Holding Corp. Amended and Restated Employee Stock Purchase Plan (the “Plan”).
I am familiar with the Registration Statement and the exhibits thereto.
As counsel to the Company, I have examined originals or copies, certified or otherwise, identified to my satisfaction, of such documents,
corporate records, certificates of public officials and other instruments as I deemed necessary for the purposes of the opinion expressed
herein. I have assumed (i) the genuineness of all signatures on all documents examined by me, (ii) the authenticity of all documents submitted
to me as originals, (iii) the conformity to authentic originals of all documents submitted to me as certified or photostatic copies, and
(iv) the due authorization, execution and delivery of all documents.
I render this opinion only with respect to the General Corporation
Law of the State of Delaware. I express no opinion concerning the application or effect of the laws of any other jurisdiction, including,
without limitation, the federal laws of the United States of America or any state securities or blue sky laws.
It is my opinion that each Share will be legally and validly issued,
fully paid and nonassessable when (i) the Registration Statement shall have become effective under the Securities Act; (ii) such Share
shall have been duly issued and delivered in accordance with the Plan; and (iii) the Company’s books shall reflect the issuance
of such Share to the person entitled thereto against payment of the agreed consideration therefor(in an amount not less than the par value
thereof), all in accordance with the Plan.
I consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of my name wherever appearing in the Registration Statement. In giving such consent, I do not
thereby admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended.
|
Very truly yours, |
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/s/ Martha Ha |
|
Martha Ha |
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EVP, General Counsel and Corporate Secretary |
US Foods Holding Corp. S-8
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of our reports dated February 15, 2024 relating to the consolidated financial statements of US Foods Holding Corp. and subsidiaries
(the “Company”) and the effectiveness of the Company's internal control over financial reporting, appearing in the Annual
Report on Form 10-K of the Company for the fiscal year ended December 30, 2023.
/s/ DELOITTE & TOUCHE LLP
Chicago, IL
May 17, 2024
US Foods Holding Corp. S-8
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
US FOODS HOLDING CORP.
(Exact Name of Registrant as Specified in its
Charter)
Table 1: Newly Registered Securities
CALCULATION OF REGISTRATION FEE
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Security
Type |
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Security
Class
Title
|
|
Fee
Calculation
Rule
|
|
Amount
Registered(1) |
|
Proposed
Maximum
Offering
Price Per
Unit(2)
|
|
Maximum
Aggregate
Offering
Price(2)
|
|
Fee
Rate
|
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Amount of
registration fee(2) |
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Equity |
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Common Stock, par value $0.01 per share |
|
Rules 457(c) and 457(h) |
|
3,500,000
shares
|
|
$54.64 |
|
$191,240,000 |
|
0.00014760 |
|
$28,227.02 |
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Total Offering Amounts |
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$191,240,000 |
|
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$28,227.02 |
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Total Fee Offsets |
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$0.00 |
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Net Fee Due |
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$28,227.02 |
(1) |
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional shares of Common Stock that may be offered and issued under the US Foods Holding Corp. Amended and Restated Employee Stock Purchase Plan to prevent dilution resulting from stock splits, stock dividends or similar transactions. |
(2) |
Estimated solely for the purpose of calculating the amount of the registration fee, pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, based upon the average of the high and low sale prices per share of Common Stock on the New York Stock Exchange on May 13, 2024, which date is within five business days prior to the filing of this Registration Statement. |
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