As filed with the Securities and Exchange Commission on October 23, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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HERSHEY FOODS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 23-0691590
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
100 CRYSTAL A DRIVE
HERSHEY, PENNSYLVANIA 17033
(Address, including zip code of registrant's principal executive office)
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HERSHEY FOODS CORPORATION
2001 NONQUALIFIED STOCK OPTION AGREEMENT
(Full title of the plan)
_____________
ROBERT M. REESE, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
HERSHEY FOODS CORPORATION
100 CRYSTAL A DRIVE
HERSHEY, PENNSYLVANIA 17033
(717) 534-6799
(Name, address and telephone number, including area code, of agent for service)
Copies to:
THOMAS P. DESMOND, ESQ.
VEDDER, PRICE, KAUFMAN & KAMMHOLZ
222 NORTH LASALLE STREET
CHICAGO, ILLINOIS 60601
(312) 609-7500
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED(1) BE REGISTERED(2) OFFERING PRICE PER SHARE(3) AGGREGATE OFFERING PRICE(3) REGISTRATION FEE(3)
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Common Stock, par value
$1.00 per share 230,700 $64.65 $14,914,755 $3,728.69
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(1) The Registrant is also registering preferred stock purchase rights which
are evidenced by the certificate for the Common Stock being registered in
the ratio of one right for each share of Common Stock. As no additional
consideration will be received for the rights, no registration fee is
required with respect to them under Rule 457(i).
(2) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Hershey Foods Corporation 2001 Nonqualified Stock Option Agreement with
Richard H. Lenny (the "Agreement") as the result of merger, consolidation,
recapitalization, reclassification, stock split, combination of shares or
otherwise pursuant to Rule 416(a).
(3) Pursuant to Rule 457(h)(1) under the Securities Act of 1933, as amended,
the proposed maximum offering price per share and the registration fee have
been based on the price at which the option may be exercised.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
NOTE: The documents containing the information specified in this Part I have or
will be sent or given to Richard H. Lenny as specified by Rule 428(b)(1).
Such documents need not be filed with the Commission either as part of
the Registration Statement or as a prospectus or prospectus supplement
pursuant to Rule 424. These documents and the documents incorporated by
reference in the Registration Statement pursuant to Item 3 of Part II of
this Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by the Registrant are
incorporated in this Registration Statement by reference:
(a) Annual Report on Form 10-K for the year ended December 31, 2000,
and Quarterly Reports on Form 10-Q for the quarterly periods ended April 1,
2001 and July 1, 2001 (File No. 001-00183);
(b) Current Report on Form 8-K dated March 12, 2001 (File No.
001-00183);
(c) The description of Registrant's Common Stock contained on pages
A-4 and A-26 to A-28 of Exhibit 13 of the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1997; and
(d) The description of the Registrant's rights to purchase Series A
Participating Preferred Stock contained in the Registration Statement on
Form 8-A filed with the Commission on December 15, 2000 (File No.
001-00183).
All documents subsequently filed by Registrant pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold shall be deemed to be incorporated by reference in this Registration
Statement and are a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be 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 herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
By-Laws; Delaware Law. Section 145 of the Delaware General Corporation Law
(the "DGCL") empowers a Delaware corporation to indemnify any persons who are,
or are threatened to be made, parties to any threatened, pending or completed
legal 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 a director, officer, 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 that
such person acted in good faith and in a manner he reasonably believed to be in
or not opposed to the corporation's best interests, and, for criminal
proceedings, had no reasonable cause to believe his conduct was illegal. A
Delaware corporation may indemnify officers and directors against expenses
(including attorneys' fees) in connection with the defense or settlement of an
action by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the officer or
director 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 against the expenses
(including attorneys' fees) which such officer or director actually and
reasonably incurred in connection therewith.
2
Section 102(b)(7) of the DGCL provides that a Delaware corporation may
eliminate or limit the personal liability of a director to a Delaware
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision shall not eliminate or limit
the liability of a director (i) for any breach of the director's duty of loyalty
to the corporation or its 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 relating to the unlawful payment of a
dividend or an unlawful stock purchase or redemption or (iv) for any transaction
from which the director derived an improper personal benefit.
Article VI of the By-laws of the Corporation provides that the Corporation
shall indemnify, in the manner and to the fullest extent permitted by the DGCL,
any person who is, was or is threatened to be made a party to any proceeding
(including any pending, threatened or completed civil or criminal action, suit,
arbitration, alternate dispute resolution mechanism, investigation or
administrative hearing) by reason of the fact that such person is or was a
director or officer of the Corporation or is or was serving, at the request of
the Corporation, in such capacity for another enterprise. The Corporation will
pay in advance of final disposition all expenses incurred by a director in
defending a proceeding which is subject to indemnification. The Corporation has
the burden of proving that a director was not entitled to indemnification.
Insurance. The Corporation's directors and officers are insured against
losses arising from any claim against them as such for wrongful acts or
omissions, subject to certain limitations.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation, as amended, of Hershey Foods
Corporation (incorporated by reference from Exhibit 3 to Registrant's
Quarterly Report on Form 10-Q for the quarter ended April 3, 1988).
4.2 By-Laws, as amended and restated, of Hershey Foods Corporation
(incorporated by reference from Exhibit 3 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998).
4.3 Hershey Foods Corporation 2001 Nonqualified Stock Option Agreement
with Richard H. Lenny (incorporated by reference from Exhibit A-2 to
Exhibit 10.2 to the Registrant's Quarterly Report on Form 10-Q for the
quarter ended April 1, 2001).
4.4 Stockholder Protection Rights Agreement between Hershey Foods
Corporation and Mellon Investor Services LLC, as Rights Agent, dated
December 14, 2000 (incorporated by reference from Exhibit 4.1 to
Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000).
5.1 Opinion of Robert M. Reese regarding the legality of the Common Stock,
par value $1.00 per share, to be issued upon exercise of options
issued under the Agreement.
23.1 Consent of Andersen LLP.
23.2 Consent of Robert M. Reese (included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature pages of the
Registration Statement).
3
ITEM 9. 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 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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 of 1933 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 Act and will
be governed by the final adjudication of such issue.
4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 Township of Derry, County of Dauphin, State of Pennsylvania,
on this 22nd day of October, 2001.
Hershey Foods Corporation
By: /s/ R.H. Lenny
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R.H. Lenny
President and Chief Executive Officer
By: /s/ F. Cerminara
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F. Cerminara
Senior Vice President and
Chief Financial Officer
We, the undersigned officers and directors of Hershey Foods Corporation,
and each of us, do hereby constitute and appoint each and any of R.H. Lenny and
F. Cerminara our true and lawful attorney and agent, with full power of
substitution and resubstitution, to do any and all acts and things in our name
and behalf in any and all capacities and to execute any and all instruments for
us in our names in any and all capacities, which attorney and agent may deem
necessary or advisable to enable said corporation to comply with the Securities
Act and any rules, regulations, and requirements of the Commission, in
connection with this Registration Statement, including specifically, but without
limitation, power and authority to sign for us or any of us in our names in the
capacities indicated below, any and all amendments (including post-effective
amendments) hereto; and we do hereby ratify and confirm all that said attorney
and agent, or his substitute, shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities set forth below on this 22nd day of October, 2001.
Name Title
---- -----
/s/ K.L. Wolfe Chairman of the Board
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K.L. Wolfe
/s/ R. H. Lenny President, Chief Executive Officer and Director
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R. H. Lenny
/s/ F. Cerminara Senior Vice President and Chief Financial Officer
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F. Cerminara
/s/ D.W. Tacka Chief Accounting Officer
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D.W. Tacka
/s/ C.M. Evarts, M.D. Director
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C.M. Evarts, M.D.
/s/ B.G. Hill Director
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B.G. Hill
Name Title
---- -----
/s/ M.J. McDonald Director
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M.J. McDonald
/s/ J.M. Pietruski Director
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J.M. Pietruski
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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4.1 Restated Certificate of Incorporation, as amended, of Hershey Foods
Corporation (incorporated by reference from Exhibit 3 to Registrant's
Quarterly Report on Form 10-Q for the quarter ended April 3, 1988).
4.2 By-Laws, as amended and restated, of Hershey Foods Corporation
(incorporated by reference from Exhibit 3 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998).
4.3 Hershey Foods Corporation 2001 Nonqualified Stock Option Agreement
with Richard H. Lenny (incorporated by reference from Exhibit A-2 to
Exhibit 10.2 to the Registrant's Quarterly Report on Form 10-Q for the
quarter ended April 1, 2001).
4.4 Stockholder Protection Rights Agreement between Hershey Foods
Corporation and Mellon Investor Services LLC, as Rights Agent, dated
December 14, 2000 (incorporated by reference from Exhibit 4.1 to
Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000).
5.1 Opinion of Robert M. Reese regarding the legality of the Common Stock,
par value $1.00 per share, to be issued upon exercise of options
issued under the Agreement.
23.1 Consent of Andersen LLP.
23.2 Consent of Robert M. Reese (included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature pages of the
Registration Statement).
EXHIBIT 5.1
October 22, 2001
Hershey Foods Corporation
100 Crystal A Drive
Hershey, Pennsylvania 17033
Ladies and Gentlemen:
I am General Counsel of Hershey Foods Corporation, a Delaware corporation
(the "Company") and as such have acted as counsel to you in connection with the
Registration Statement on Form S-8 under the Securities Act of 1933, as amended,
to be filed with the Securities and Exchange Commission which covers 230,700
shares of Common Stock, $1.00 par value, of the Company (the "Shares") offered
upon exercise of options under the Company's 2001 Nonqualified Stock Option
Agreement with Richard H. Lenny (the "Agreement").
I have examined the Registration Statement and such documents and records
of the Company and other documents as I have deemed necessary for the purpose of
this opinion.
Based upon the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized and legally existing under
the laws of the State of Delaware.
2. The Company has taken all action necessary to authorize (i) the
Agreement, (ii) the granting of options pursuant to the Agreement, and (iii) the
issuance of the Shares in accordance with the Agreement and upon the exercise of
options granted pursuant thereto.
3. The Shares that will be issued in accordance with the Agreement and
upon the exercise of options granted pursuant to the Agreement, upon such
issuance will constitute legally issued, fully paid and non-assessable Shares.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Robert M. Reese
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Robert M. Reese
Senior Vice President,
General Counsel and Secretary
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement on Form S-8 of our report dated
January 26, 2001 included in Hershey Foods Corporation's Form 10-K for the year
ended December 31, 2000 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
New York, New York
October 17, 2001