View:
SIMPSON THACHER & BARTLETT LLP
425 LEXINGTON AVENUE
NEW YORK, N.Y. 10017-3954
(212) 455-2000
FACSIMILE (212) 455-2502
December 14, 2005
VIA FAX AND EDGAR
- -----------------
H. Roger Schwall
Assistant Director
Division of Corporation Finance
United States Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549-7010
Re: The Hershey Company
Amendment No. 1 to Registration Statement on Form S-3
Filed November 16, 2005
File No. 333-128375
Form 10-K for the year ended December 31, 2004
Filed March 7, 2005
File No. 01-00183
Form 10-Q for the quarters ended April 1, 2005,
July 3, 2005 and October 2, 2005
Filed March 11, 2005, August 9, 2005 and November 9, 2005
Dear Mr. Schwall:
On behalf of The Hershey Company, a Delaware corporation (the "Company"),
we are writing to respond to the comments of the staff of the Division of
Corporation Finance of the Securities and Exchange Commission (the "Staff")
set forth in your letter dated December 1, 2005 to Burton H. Snyder, Esq.,
Senior Vice President, General Counsel and Secretary of the Company, with
respect to Amendment No. 1 to the above-referenced Registration Statement on
Form S-3 filed on November 16, 2005 (the "Registration Statement").
For your convenience, we set forth each comment from your comment
letter in bold typeface and include the Company's response below it.
Securities and Exchange Commission December 14, 2005
Page 2
General
- -------
1. We note your response to prior comment 2. Please advise us of the
percentage of your cocoa supply in recent periods that has come from the
Ivory Coast. Disclose as appropriate the other information you provided
regarding cocoa production, control of the company and the passive role
exercised by the Trust, and any other material information not currently
disclosed. For example, please disclose, in as much detail as necessary,
the Pennsylvania legislation that could limit the sale of the company, as
well as the impact this legislation could have on your company's
potential future stock price.
The Company supplementally advises the Staff that over the last three
years approximately 16% of its cocoa supply is known to have come from
the Ivory Coast. The majority of the Company's cocoa supply is purchased
in processed forms such as cocoa butter and cocoa powder, where cocoa
bean origin is not specified in the purchase and manufacturers can select
many origins based on price and availability.
The Company will disclose, as appropriate, the information provided in
its letter of November 16, 2005 addressed to the Staff regarding cocoa
production, control of the Company, the passive role exercised by the
Milton Hershey School Trust and any other material information relating
to such matters in the discussion of the Company's business or in
Management's Discussion and Analysis of Financial Condition and Results
of Operations in the Company's future Annual Reports on Form 10-K,
including the Annual Report on Form 10-K for the fiscal year ended
December 31, 2005 to be filed in 2006.
Form 10-K for the Fiscal Year Ended December 31, 2004
- -----------------------------------------------------
Consolidated Statements of Cash Flows, page 40
- ----------------------------------------------
2. In your response to prior comment 7, you indicate your accounting for
tax benefits associated with non-qualified stock options and where those
tax benefits are disclosed in your Consolidated Statements of
Stockholders' Equity. Please tell us and expand your disclosure in your
financial statements to indicate how such benefits have been accounted
for in your Consolidated Statements of Cash Flows and your Income Taxes
note disclosures.
The Company advises the Staff that the impact of income tax benefits
associated with non-qualified stock options has been classified as cash
provided from operating activities and included in the other assets and
liabilities caption on the Consolidated Statements of Cash Flows.
The Company will expand its disclosures to include the classification of
income tax benefits associated with non-qualified stock options on the
Consolidated Statements of Cash Flows and will disclose the amount of
such tax benefits in the Income Tax note in the Company's future Annual
Reports on Form 10-K, including the Annual Report on Form 10-K for the
fiscal year ended December 31, 2005 to be filed in 2006. Further, upon
adoption of Statement of Financial Accounting Standards No. 123 (revised
2004), Share-Based Payment, relevant adjustments and reclassifications
will be made to the consolidated financial statements, as required,
including those pertaining to income tax benefits.
* * * * * * * * * *
Securities and Exchange Commission December 14, 2005
Page 3
Please do not hesitate to call A.J. Kess at 212-455-2711 or Reza Odouli
at 212-455-2693 with any questions or further comments you may have regarding
this filing or if you wish to discuss the above responses.
In the event the Staff advises us, either orally or in writing, that it
has no further comments with respect to the Registration Statement, the Company
intends promptly thereafter to submit a written request for acceleration of the
effective date of the Registration Statement. The Company will provide this
request at least two business days in advance of the requested effective date.
Very truly yours,
/s/ SIMPSON THACHER & BARTLETT LLP
SIMPSON THACHER & BARTLETT LLP
cc: U.S. Securities and Exchange Commission
Gary Newberry
April Sifford
Jason Wynn
Timothy Levenberg