As filed with the Securities and Exchange Commission on August 29, 1994
Registration No. 33-_______________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
__________________________________
BOB EVANS FARMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 31-4421866
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3776 South High Street, Columbus, Ohio 43207
(Address of Principal Executive Offices) (Zip Code)
Bob Evans Farms, Inc.
1994 Long Term Incentive Plan
(Full title of the plan)
Copy to:
G. Robert Lucas II, Esq. Daniel E. Evans
Vorys, Sater, Seymour and Pease Chairman of the Board
52 East Gay Street Bob Evans Farms, Inc.
P.O. Box 1008 3776 South High Street
Columbus, Ohio 43216-1008 Columbus, Ohio 43207
(Name and address of agent for service)
(614) 464-5691
(Telephone number, including area code, of agent for service)
_________________________________
<TABLE>
Calculation of Registration Fee
________________________________________________________________________________________
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per unit (1) price (1) fee
<S> <C> <C> <C> <C>
Common Stock, 1,000,000 $20.125 $20,125,000 $6,940
$.01 Par Value
__________________________________________________________________________________________
<FN1> (1) Estimated solely for the purpose of calculating the aggregate offering price and the
registration fee pursuant to Rules 457(c) and 457(h) promulgated under the Securities
Act of 1933, as amended, and computed on the basis of the average of the high and low
sales prices of the Common Stock as reported on the NASDAQ National Market System on
August 24, 1994.
</TABLE>
Page 1 of 29 Pages.
Index Exhibit begins at Page II-11 (Page 12 as sequentially numbered).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Annual Report on Form 10-K for the fiscal year ended
April 29, 1994 of Bob Evans Farms, Inc. (the "Registrant") and all
other reports filed with the Securities and Exchange Commission
(the "Commission") pursuant to the requirements of Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), since that date are hereby incorporated by
reference.
The description of the Registrant's Common Stock
contained in the Registrant's Registration Statement on Form S-4
(Registration No. 33-1336) filed with the Commission on November 5,
1985 or contained in any subsequent amendment or report filed for
the purpose of updating such description, is hereby incorporated
by reference.
Any definitive Proxy Statement or Information Statement
filed pursuant to Section 14 of the Exchange Act and all documents
which may be filed with the Commission pursuant to Sections 13, 14
or 15(d) of the Exchange Act subsequent to the date hereof and
prior to the completion of the offering contemplated hereby, shall
also be deemed to be incorporated herein by reference and to be
made a part hereof from the date of filing of such documents;
provided, however, that no report of the Compensation Committee or
of the Stock Option Committee of the Board of Directors of the
Registrant on executive compensation and no performance graph
included in any Proxy Statement or Information Statement filed
pursuant to Section 14 of the Exchange Act shall be deemed to be
incorporated herein by reference.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the Common Stock of the
Registrant being registered on this Registration Statement on
Form S-8 will be passed upon for the Registrant by Vorys, Sater,
Seymour and Pease, 52 East Gay Street, P.O. Box 1008, Columbus,
Ohio 43216-1008. G. Robert Lucas II, a director of the Registrant,
is a partner in such firm. As of August 8, 1994, members of Vorys,
Sater, Seymour and Pease and attorneys employed thereby, together
with members of their immediate families, beneficially owned an
aggregate of 13,073.216 shares of Common Stock of the Registrant.
Item 6. Indemnification of Directors and Officers.
Article ELEVENTH of the Certificate of Incorporation, as
amended, of the Registrant limits the liability of directors to the
extent permitted by the General Corporation Law of Delaware.
Article ELEVENTH provides:
No director or former director of this Company
shall be personally liable to this Company or
its stockholders for monetary damages for
breach of fiduciary duty as a director, pro-
vided that this provision shall not eliminate
or limit the liability of a director (i) for
any breach of the director's duty of loyalty
to the Company or its stockholders, (ii) for
acts or omissions not in good faith or which
involve intentional misconduct or a knowing
violation of the law, (iii) under Section 174
of the Delaware General Corporation Law, which
deals with the paying of a dividend or the
approving of a stock repurchase or redemption
which is illegal under Delaware General
Corporation Law, or (iv) for any transaction
from which the director derives an improper
personal benefit.
Section 102(b)(7) of the Delaware General Corporation Law permits
the Registrant to include a provision in its Certificate of
Incorporation eliminating or limiting the personal liability of a
director to the Registrant or its stockholders for monetary damages
for a 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
Registrant 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 Delaware General
Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit.
Section 7 of Article VII of the By-Laws of the Registrant
provides that the Registrant shall indemnify its officers, direc-
tors, employees and agents to the extent permitted by the General
Corporation Law of Delaware. Section 145 of the Delaware General
Corporation Law governs indemnification by a corporation and
provides as follows:
(a) A corporation may 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 corporation) by reason of the fact that he 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 him in
connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect
to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(b) A corporation may 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 corporation to procure a judgment in its
favor by reason of the fact that he 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 corpora-
tion, partnership, joint venture, trust or other enter-
prise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests
of the corporation and 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 applica-
tion 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.
(c) To the extent that a director, officer,
employee or agent of a corporation has been successful
on the merits or otherwise in defense of any action, suit
or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and
(b) of this section (unless ordered by a court) shall be
made by the corporation only as authorized in the
specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable
standard of conduct set forth in subsections (a) and (b)
of this section. Such determination shall be made (1)
by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is
not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred
by an officer or director in defending any civil,
criminal, administrative, or investigative action, suit
or proceeding may be paid by the corporation in advance
of the final disposition of such action, suit or proceed-
ing upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this
section. Such expenses (including attorneys' fees)
incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the board of
directors deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsec-
tions of this section shall not be deemed exclusive of
any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any by-
law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official
capacity and as to action in another capacity while
holding such office.
(g) A corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the corpora-
tion, or is or was serving at the request of the corpora-
tion as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation would
have the power to indemnify him against such liability
under this section.
(h) For purposes of this section, references to
"the corporation" shall include, in addition to the
resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate exis-
tence had continued, would have had power and authority
to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director,
officer, employee or agent of such constituent corpora-
tion, or is or was serving at the request of such
constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the
same position under this section with respect to the
resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this section, references to
"other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes
assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the
corporation" shall include any service as a director,
officer, employee or agent of the corporation which
imposes duties on, or involves services by, such direc-
tor, officer, employee, or agent with respect to an
employee benefit plan, its participants or benefici-
aries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as
referred to in this section.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall,
unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit
of the heirs, executors and administrators of such a
person.
Section 2 of the Bob Evans Farms, Inc. 1994 Long Term
Incentive Plan (the "Plan") provides that no member of the Board
of Directors of the Registrant or of the committee which
administers the Plan shall be liable for any action or
determination made in good faith, with respect to the Plan or any
award granted under the Plan.
The Registrant has purchased insurance coverage under a
policy which insures directors and officers against certain
liabilities which might be incurred by them in such capacity.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See the Index to Exhibits attached hereto at page II-11.
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:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act
of 1933;
(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 state-
ment;
provided, however, that paragraphs A(1)(i) and
A(1)(ii) do not apply if the information
required to be included in a post-effective
amendment by those paragraphs is contained in
periodic reports filed with or furnished to
the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by
reference in this 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 the
registration statement shall be deemed to be a new registra-
tion 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 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 liabili-
ties (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.
[Signatures begin on following page]
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, 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 Columbus, State of Ohio, on the 26th day of August,
1994.
BOB EVANS FARMS, INC.
(Registrant)
By: /s/ Daniel E. Evans
Daniel E. Evans, Chairman of the
Board (Principal Executive
Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Daniel E. Evans
and Donald J. Radkoski, and each of them, as his/her true and
lawful attorneys-in-fact and agents, with full power of substitu-
tion and resubstitution, for him/her and in his/her name, place and
stead, in any and all capacities, to sign any and all future
amendments to this Registration Statement and documents related
thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission and The Nasdaq Stock Market, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he/she might or could do in
person, hereby ratifying and confirming all things that each of
said attorneys-in-fact and agents, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Daniel E. Evans
Daniel E. Evans Chairman of the Board, August 26, 1994
Chief Executive Officer,
Secretary and Director
(Principal Executive
Officer)
/s/ Larry C. Corbin
Larry C. Corbin Director August 26, 1994
/s/ J. Tim Evans
J. Tim Evans Director August 26, 1994
/s/ Daniel A. Fronk
Daniel A. Fronk Director August 26, 1994
/s/ Cheryl L. Krueger
Cheryl L. Krueger Director August 26, 1994
/s/ G. Robert Lucas II
G. Robert Lucas II Director August 26, 1994
/s/ Stewart K. Owens
Stewart K. Owens Director August 26, 1994
/s/ Robert E. H. Rabold
Robert E. H. Rabold Director August 26, 1994
/s/ Robert S. Wood
Robert S. Wood Director August 26, 1994
/s/ Donald J. Radkoski
Donald J. Radkoski Group Vice President - August 26, 1994
Finance Group and
Treasurer (Chief
Financial Officer and
Chief Accounting
Officer)
INDEX TO EXHIBITS
Exhibit No. Description Page No.
4(a) Certificate of
Incorporation of
Registrant (in
particular, Articles
FOURTH, TENTH, TWELFTH
AND THIRTEENTH) Incorporated herein
by reference to
Registrant's Annual
Report on Form 10-K
for its fiscal year
ended April 24, 1987
(File No. 0-1667)
[Exhibit 3(a)]
4(b) Certificate of Amendment
of Certificate of
Incorporation of
Registrant dated
August 26, 1987 Incorporated herein
by reference to
Registrant's Annual
Report on Form 10-K
for its fiscal year
ended April 28, 1989
(File No. 0-1667)
[Exhibit 3(b)]
4(c) Certificate of Adoption
of Amendment to
Certificate of
Incorporation of
Registrant dated
August 9, 1993 Incorporated herein
by reference to
Registrant's Annual
Report on Form 10-K
for its fiscal year
ended April 29, 1994
(File No. 0-1667)
[Exhibit 3(c)]
4(d) By-Laws of Registrant (in
particular, Sections 5
and 8 of Article II,
Sections 1 and 14 of
Article III and Article
VIII) Incorporated herein
by reference to
Registrant's Annual
Report on Form 10-K
for its fiscal year
ended April 24, 1987
(File No. 0-1667)
[Exhibit 3(b)]
4(e) Bob Evans Farms, Inc.
1994 Long Term Incentive
Plan (reflects amendments
through August 9, 1994) Pages 14 through 26
5 Opinion of Vorys, Sater,
Seymour and Pease as to
legality Pages 27 and 28
23(a) Consent of Ernst & Young Page 29
23(b) Consent of Vorys, Sater,
Seymour and Pease Filed as part of
Exhibit 5
24 Powers of Attorney Pages II-9 and II-10
(Pages 10 and 11 as
sequentially
numbered)
Exhibit 4(e)
Bob Evans Farms, Inc.
1994 Long Term Incentive Plan
(reflects amendments through August 9, 1994)
BOB EVANS FARMS, INC. 1994 LONG TERM INCENTIVE PLAN
(Reflects amendments through August 9, 1994)
1. Purpose. The purpose of the Bob Evans Farms, Inc.
1994 Long Term Incentive Plan (the "Plan") is to foster and promote
the long-term success of Bob Evans Farms, Inc. (the "Company") and
materially increase stockholder value by (a) motivating superior
performance by means of performance-related incentives, (b)
encouraging and providing for the acquisition of an ownership
interest in the Company by officers and other key employees of the
Company and its Subsidiaries and (c) enabling the Company to
attract and retain the services of an outstanding management team
upon whose judgment, interest and special effort the successful
conduct of the operations of the Company is largely dependent.
2. Administration. The Plan will be administered by
a committee (the "Committee") of at least three persons who shall
be either the Stock Option Committee of the Board of Directors of
the Company or such other committee comprised entirely of
"disinterested persons" within the meaning of Rule 16b-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or any successor rule or regulation, as the Board of Directors of
the Company may from time to time designate. No person shall serve
as a member of the Committee unless such person qualifies as an
"outside director" within the meaning of Section 162(m) of the
Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations and rulings thereunder. The Committee shall interpret
the Plan; prescribe, amend and rescind rules and regulations
relating thereto; and make all other determinations necessary or
advisable for the administration of the Plan. Any determination,
decision or action of the Committee in connection with the
construction, interpretation, administration or application of the
Plan shall be final, conclusive and binding upon all persons
participating in the Plan and any person validly claiming under or
through persons participating in the Plan. A majority of the
members of the Committee shall constitute a quorum at any meeting
of the Committee, and all determinations of the Committee at a
meeting shall be made by a majority of its members. Any
determination of the Committee under the Plan may be made without
a meeting of the Committee by a writing signed by all of its
members. No member of the Board of Directors of the Company or of
the Committee shall be liable for any action or determination made
in good faith, with respect to the Plan or any Award granted under
the Plan. The Company shall effect the granting of Awards under
the Plan in accordance with the determination of the Committee, by
execution of instruments in writing in such form as approved by
the Committee.
With respect to persons subject to Section 16 of the
Exchange Act, transactions under the Plan are intended to comply
with all applicable conditions of Rule 16b-3 under the Exchange
Act, or any successor rule or regulation. To the extent any
provision of the Plan or action by the Committee fails to so
comply, it shall be deemed null and void, to the extent permitted
by law and deemed advisable by the Committee.
3. Participants. Participants in the Plan will consist
of such officers and other full-time employees of the Company or
any of its Subsidiaries, including those who are directors of the
Company, as the Committee in its sole discretion may designate from
time to time to receive Awards hereunder. The Committee's designa-
tion of a Participant in any year shall not require the Committee
to designate such person to receive an Award in any other year.
The Committee shall consider such factors as it deems pertinent in
selecting Participants and in determining the type and amount of
their respective Awards, including, without limitation: (a) the
financial condition of the Company and its Subsidiaries; (b)
anticipated profits for the current or future years; (c) contribu-
tions of Participants to the profitability and development of the
Company and its Subsidiaries; and (d) other compensation provided
to Participants. During the period in which this Plan remains in
effect, no Participant shall be granted Awards under this Plan
covering, in the aggregate, more than Two Hundred Fifty Thousand
(250,000) Common Shares.
4. Types of Awards. Awards under the Plan may be
granted in any one or a combination of (a) Incentive Stock Options;
(b) Non-Qualified Stock Options; and (c) Performance Share Awards,
all as described below in Sections 6, 7 and 8 hereof.
5. Common Shares Reserved Under the Plan. There is
hereby reserved for issuance under the Plan an aggregate of One
Million (1,000,000) Common Shares, which may be newly issued or
treasury shares. If there is a lapse, expiration, termination or
cancellation of any Award granted hereunder without the issuance
of Common Shares or payment of cash thereunder, or if Common Shares
are issued under any Award and thereafter are reacquired by the
Company pursuant to rights reserved upon the issuance thereof, the
Common Shares subject to or reserved for such Award may again be
used for new Stock Options or other Awards under the Plan so long
as the holder thereof has not received any benefits of ownership
of such Common Shares; provided, however, that in no event may the
number of Common Shares issued under the Plan exceed the total
number of Common Shares reserved for issuance hereunder.
6. Incentive Stock Options. Incentive Stock Options
will consist of Stock Options, qualifying as "incentive stock
options" under the requirements of Section 422 of the Code, to
purchase Common Shares at purchase prices of not less than One
Hundred Percent (100%) of the Fair Market Value of such Common
Shares on the date of grant. Incentive Stock Options will be
exercisable over not more than ten (10) years after the date of
grant. In the event of the termination of an optionee's employment
for any reason other than Disability, Death or for Cause, the right
of the optionee to exercise an Incentive Stock Option shall
terminate upon the earlier to occur of the end of the original term
of the Incentive Stock Option or three (3) months after the date
of such termination of employment. In the event that an optionee
is Terminated for Cause, the right of the optionee to exercise an
Incentive Stock Option shall terminate immediately upon the
termination of employment. In the event of the termination of an
optionee's employment due to Disability, the right of the optionee
to exercise an Incentive Stock Option shall terminate upon the
earlier to occur of the end of the original term of the Incentive
Stock Option or one (1) year after the date of termination of
employment. If an optionee should die while employed, the right
of the optionee's successor in interest to exercise an Incentive
Stock Option granted to the optionee shall terminate upon the
earlier to occur of the end of the original term of the Incentive
Stock Option or one year after optionee's last date of employment.
If an optionee should die within three (3) months after termination
of employment due to Retirement, the right of his or her successor
in interest to exercise an Incentive Stock Option shall terminate
three (3) months after the date of termination of employment as a
result of such Retirement, but not later than the end of the
original term of the Incentive Stock Option. If an optionee should
die within one (1) year after termination of employment due to
Disability, the right of his or her successor in interest to
exercise an Incentive Stock Option shall terminate upon the earlier
to occur of one (1) year after the date of termination of
employment or the end of the original term of the Incentive Stock
Option. For purposes of this Section 6, if an optionee terminates
his or her employment voluntarily, the date of termination of
employment shall be deemed to be the date on which he or she
notifies the Company of his or her intention to terminate his or
her employment; in all other cases, the date of termination of
employment shall be the last day of employment.
The aggregate fair market value (determined as of the
time the Stock Option is granted) of the Common Shares with respect
to which incentive stock options are exercisable for the first time
by any Participant during any calendar year (under all option plans
of the Company and all Subsidiaries and Parents of the Company)
shall not exceed $100,000. An Incentive Stock Option granted to
a Participant under the Plan may be exercised only after six (6)
months from its grant date. Anything contained herein to the
contrary notwithstanding, no Incentive Stock Option shall be
granted to an employee who, at the time the Incentive Stock Option
is granted, owns (actually or constructively under the provisions
of Section 424(d) of the Code) stock possessing more than 10% of
the total combined voting power of all classes of stock of the
Company or of any Parent or Subsidiary of the Company, unless the
option exercise price is not less than 110% of the Fair Market
Value of the Common Shares subject to the Incentive Stock Option
on the date of grant and the Incentive Stock Option by its terms
is not exercisable more than five (5) years from the date it is
granted.
7. Non-Qualified Stock Options. Non-Qualified Stock
Options will consist of options to purchase Common Shares at
purchase prices not less than One Hundred Percent (100%) of the
Fair Market Value of such Common Shares on the date of grant. Non-
Qualified Stock Options will be exercisable over not more than ten
(10) years after the date of grant. In the event of the termina-
tion of an optionee's employment for any reason other than
Retirement, Disability, Death or for Cause, the right of the
optionee to exercise a Non-Qualified Stock Option shall terminate
upon the earlier to occur of the end of the original term of the
Non-Qualified Stock Option or three (3) months after the date of
such termination of employment. If an optionee is Terminated for
Cause, the right of the optionee to exercise a Non-Qualified Stock
Option shall terminate immediately upon the termination of
employment. In the event of the termination of an optionee's
employment due to Retirement or Disability, or if the optionee
should die while employed, the right of the optionee or his or her
successor in interest to exercise a Non-Qualified Stock Option
shall terminate upon the earlier to occur of the end of the
original term of the Non-Qualified Stock Option or one (1) year
after the date of termination of employment as a result of such
Retirement, Disability or death. If an optionee should die within
one (1) year after termination of employment due to Retirement or
Disability, the right of his or her successor in interest to
exercise a Non-Qualified Stock Option shall terminate upon the
earlier of one (1) year after termination of employment as a result
of such Retirement or Disability or the end of the original term
of the Non-Qualified Stock Option. For purposes of this Section
7, if an optionee terminates his or her employment voluntarily, the
date of termination of employment shall be deemed to be the date
on which he or she notifies the Company of his or her intention to
terminate his or her employment; in all other cases, the date of
termination of employment shall be the last day of employment. A
Non-Qualified Stock Option granted to a Participant under the Plan
may be exercised only after six (6) months from its grant date.
8. Performance Share Awards. The Committee may grant
awards under which payment may be made in Common Shares, cash or
any combination of Common Shares and cash if the performance of
the Company or any Subsidiary selected by the Committee during the
Performance Period meets certain goals established by the Committee
("Performance Share Awards"). Such Performance Share Awards shall
be subject to the following terms and conditions and such other
terms and conditions as the Committee may prescribe:
(a) Performance Period and Performance Goals. The
Committee shall determine and include in a Performance Share Award
grant the period of time for which a Performance Share Award is
made ("Performance Period"). The Committee shall also establish
performance objectives ("Performance Goals") to be met by the
Company or Subsidiary during the Performance Period as a condition
to payment of the Performance Share Award. The Performance Goals
may include earnings per share, return on stockholders' equity,
return on assets, net income or any other financial or other
measure established by the Committee. The Performance Goals may
include minimum and optimum objectives or a single set of
objectives.
(b) Payment of Performance Share Awards. The
Committee shall establish the method of calculating the amount of
payment to be made under a Performance Share Award if the Perfor-
mance Goals are met, including the fixing of a maximum payment.
The Performance Share Award shall be expressed in terms of Common
Shares and referred to as "Performance Shares." After the comple-
tion of a Performance Period, the performance of the Company or
Subsidiary shall be measured against the Performance Goals, and
the Committee shall determine whether all, none or any portion of
a Performance Share Award shall be paid. The Committee, in its
discretion, may elect to make payment in Common Shares, cash or a
combination of Common Shares and cash. Any cash payment shall be
based on the Fair Market Value of the underlying Common Shares on,
or as soon as practicable prior to, the date of payment.
(c) Revision of Performance Goals. At any time
prior to the end of a Performance Period, the Committee may revise
the Performance Goals and the computation of payment if unforeseen
events occur which have a substantial effect on the performance of
the Company or Subsidiary and which in the judgment of the Company
make the application of the Performance Goals unfair unless a
revision is made.
(d) Requirement of Employment. A Participant who
receives a Performance Share Award must remain in the employment
of the Company or Subsidiary until the completion of the
Performance Period in order to be entitled to payment under the
Performance Share Award; provided that the Committee may, in its
sole discretion, provide for a partial payment where such an
exception is deemed equitable.
9. Nontransferability. Each Stock Option and each
Performance Share Award granted under this Plan shall not be
transferable other than by will or the laws of descent and
distribution, and Stock Options shall be exercisable, during the
Participant's lifetime, only by the Participant or the Partici-
pant's guardian or legal representative.
10. Other Provisions. The grant of any Award under the
Plan may also be subject to such other provisions (whether or not
applicable to any Award granted to any other Participant) as the
Committee determines appropriate including, without limitation,
provisions for the purchase of Common Shares under Stock Options
in installments, provisions for the payment of the option exercise
price of Common Shares under a Stock Option by delivery of other
Common Shares of the Company having a then Fair Market Value equal
to the option exercise price of such Common Shares, restrictions
on resale or other disposition, such provisions as may be appropri-
ate to comply with federal or state securities laws and stock
exchange requirements and understandings or conditions as to the
Participant's employment in addition to those specifically provided
for under the Plan. If the Committee does not specify another
exercise schedule at the time of grant, the number of Common Shares
under each Stock Option which may be purchased in any one year
ending on an anniversary date of the grant of the Stock Option
shall be the total number of Common Shares subject to the Stock
Option divided by the number of years constituting the term of the
Stock Option; provided, however, that if an optionee does not
purchase in any one option year the full number of Common Shares
to which he or she is then entitled, the optionee may purchase
those Common Shares in any subsequent year during the term of the
Stock Option.
The Committee may, in its discretion, permit payment of
the option exercise price of Common Shares under Stock Options by
delivery of a properly executed exercise notice together with a
copy of irrevocable instructions to a broker to deliver promptly
to the Company the amount of sale or loan proceeds to pay the
option exercise price. To facilitate the foregoing, the Company
may enter into agreements for coordinated procedures with one or
more brokerage firms.
The Committee may, in its discretion and subject to such
rules as it may adopt, permit a Participant to pay all or a portion
of the federal, state and local taxes, including FICA withholding
tax, arising in connection with the following transactions: (a) the
exercise of a Non-Qualified Stock Option; or (b) the receipt or
exercise of any other Award; by electing (i) to have the Company
withhold Common Shares, (ii) to tender back Common Shares received
in connection with such Award or (iii) to deliver other previously
acquired Common Shares of the Company having a Fair Market Value
approximately equal to the amount to be withheld.
11. Term of the Plan and Amendment, Modification,
Cancellation or Acceleration of Awards. No Award shall be granted
under the Plan more than ten (10) years after the date of the
adoption of the Plan by the Company's Board of Directors. The
terms and conditions applicable to any Award granted prior to such
date may at any time be amended, modified or cancelled, without
stockholder approval, by mutual agreement between the Committee and
the Participant or such other persons as may then have an interest
therein, so long as stockholder approval of such amendment,
modification or cancellation is not required under Rule 16b-3 under
the Exchange Act or any applicable requirements of any securities
exchange on which are listed any of the Company's equity securities
or any applicable requirements for issuers whose securities are
traded in the NASDAQ National Market System or any applicable
requirements of the Code. The Committee may, at any time and in
its sole discretion, declare any or all Stock Options then out-
standing under this Plan to be exercisable, whether or not such
Stock Options are then otherwise exercisable.
12. Taxes. The Company shall be entitled to withhold
the amount of any tax attributable to any amount payable or Common
Shares deliverable under the Plan after giving the person entitled
to receive such amount or Common Shares notice as far in advance
as practicable, and the Company may defer making payment or
delivery if any such tax may be pending unless and until indemni-
fied to its satisfaction.
13. Definitions.
(a) Award. The term "Award" means an award or
grant of a Stock Option or Performance Share made to a Participant
under Section 6, 7 or 8 of the Plan.
(b) Change in Control. A "Change in Control" shall
be deemed to have occurred on the earliest of the following dates:
(i) The date any entity or person (including
a "group" as defined in Section 13(d)(3) of the
Exchange Act) shall have become the beneficial owner
of, or shall have obtained voting control over,
twenty percent (20%) or more of the outstanding
Common Shares;
(ii) The date the stockholders of the Company
approve a definitive agreement (A) to merge or
consolidate the Company with or into another corpor-
ation, in which the Company is not the continuing
or surviving corporation or pursuant to which any
Common Shares would be converted into cash, securi-
ties or other property of another corporation, other
than a merger of the Company in which holders of
Common Shares immediately prior to the merger have
the same proportionate ownership of shares of the
surviving corporation immediately after the merger
as immediately before, or (B) to sell or otherwise
dispose of substantially all the assets of the
Company; or
(iii) The date there shall have been a change
in a majority of the Board of Directors of the
Company within a twelve (12) month period; provided,
however, that any new director whose nomination for
election by the Company's stockholders was approved,
or who was appointed or elected to the Board by, the
vote of two-thirds of the directors then still in
office who were in office at the beginning of the
twelve (12) month period shall not be counted in
determining whether there has been such a change in
a majority of the Board.
(c) Code. "Code" means the Internal Revenue Code
of 1986, as amended, and the regulations and rulings thereunder.
References to a particular section of the Code shall include
references to successor provisions.
(d) Committee. The "Committee" means the Committee
of the Board of Directors of the Company constituted as provided
in Section 2 hereof.
(e) Common Shares. "Common Shares" means the
shares of Common Stock, par value $0.01 per share, of the Company
or any security of the Company issued in substitution, exchange or
lieu thereof.
(f) Company. The "Company" means Bob Evans Farms,
Inc., a Delaware corporation, or any successor corporation.
(g) Disability. The term "Disability" means, as
it relates to the exercise of an Incentive Stock Option after term-
ination of employment, a disability within the meaning of Section
22(e)(3) of the Code, and for all other purposes, a mental or
physical condition which, in the opinion of the Committee, renders
an optionee unable or incompetent to carry out the job responsibil-
ities which such optionee held or the tasks to which such optionee
was assigned at the time the disability was incurred, and which is
expected to be permanent or for an indefinite duration exceeding
one year.
(h) Exchange Act. The term "Exchange Act" means
the Securities Exchange Act of 1934, as amended, or a successor
statute.
(i) Fair Market Value. The "Fair Market Value" of
the Company's Common Shares shall mean, on any given date, the last
reported sales price of the Common Shares, as reported on the
NASDAQ National Market System or on any securities exchange on
which the Company's Common Shares may be listed on such date or,
if there are no reported sales of Common Shares on such date, then
the last reported sales price on the next preceding day on which
such a sale was transacted.
(j) Incentive Stock Option. "Incentive Stock
Option" means any Stock Option granted pursuant to the provisions
of Section 6 of the Plan that is intended to be and is specifically
designated as an "incentive stock option" within the meaning of
Section 422 of the Code.
(k) Non-Qualified Stock Option. A "Non-Qualified
Stock Option" means any Stock Option granted pursuant to the
provisions of Section 7 of the Plan that is not an Incentive Stock
Option.
(l) Parent. The term "Parent of the Company" shall
have the meaning set forth in 424(e) of the Code.
(m) Participant. The term "Participant" means a
full-time employee of the Company or a Subsidiary who is granted
an Award under the Plan.
(n) Performance Goals. The term "Performance
Goals" shall have the meaning set forth in Section 8 of the Plan.
(o) Performance Period. The term "Performance
Period" shall have the meaning set forth in Section 8 of the Plan.
(p) Performance Share Award. The term "Performance
Share Award" shall have the meaning set forth in Section 8 of the
Plan.
(q) Plan. The "Plan" means the Bob Evans Farms,
Inc. 1994 Long Term Incentive Plan, as set forth herein, and as it
may be hereafter amended and from time to time in effect.
(r) Retirement. The term "Retirement" for all
purposes of the Plan shall mean separation from employment with the
Company and each of its Subsidiaries on or after the date the
person both has attained age fifty-five (55) and is credited with
at least ten (10) years of service.
(s) Stock Option. The term "Stock Option" means
any Incentive Stock Option or Non-Qualified Stock Option granted
under the Plan.
(t) Stock Option Awards. The term "Stock Option
Awards" means any grant of a Stock Option to a Participant under
the Plan.
(u) Subsidiary. The term "Subsidiary" for all
purposes other than the Incentive Stock Option plan described in
Section 6, shall mean any corporation, partnership, joint venture
or business trust, fifty percent (50%) or more of the control of
which is owned, directly or indirectly, by the Company. For
purposes of the Incentive Stock Option plan described in Section
6, the term "Subsidiary" shall be defined as provided in Section
424(f) of the Code.
<PAGE>
(v) Terminated for Cause. The term "Terminated
for Cause" for purposes of the Plan shall mean termination on
account of any act of fraud or intentional misrepresentation or
embezzlement, misappropriation or conversion of assets or
opportunities of the Company or a Subsidiary, the conviction of a
felony or intentional and repeated violations of the written
policies or procedures of the Company or any Subsidiary.
14. Adjustment Provisions.
(a) The existence of the Plan and the Awards
granted hereunder shall not affect or restrict in any way the right
or power of the Board of Directors or the stockholders of the
Company to make or authorize any adjustment, recapitalization,
reorganization or other change in the Company's capital structure
or its business, any merger or consolidation of the Company, any
issue of bonds, debentures, preferred or prior preference stocks
ahead of or affecting the Company's capital stock or the rights
thereof, the dissolution or liquidation of the Company or any sale
or transfer of all or any part of its assets or business, or any
other corporate act or proceeding.
(b) In the event of any change in capitalization
affecting the Common Shares, such as a stock dividend, stock split,
recapitalization, merger, consolidation, split-up, combination or
exchange of shares or other form of reorganization, or any other
change affecting the Common Shares, the Committee shall make
proportionate adjustments to reflect such change with respect to
the aggregate number of Common Shares for which Awards in respect
thereof may be granted under the Plan, the maximum number of Common
Shares which may be sold or awarded to any Participant, the number
of Common Shares covered by each outstanding Award and the price
per share in respect of outstanding Awards.
(c) The Committee also shall make such adjustments
in the number of shares covered by, and the price or other value
of, any outstanding Awards in the event of a spin-off or other
distribution (other than normal cash dividends) of assets of the
Company to stockholders.
(d) Subject to the six month holding requirements
of Sections 6 and 7 but notwithstanding any other provision of this
Plan, upon the occurrence of a Change in Control, all Stock Options
then outstanding under this Plan shall become fully exercisable as
of the date of the Change in Control, whether or not then otherwise
exercisable.
15. Amendment and Termination of Plan. The Committee,
with the approval of the Board of Directors of the Company, may
amend the Plan from time to time or terminate the Plan at any time
without the approval of the stockholders of the Company except as
such stockholder approval may be required (a) to satisfy the
requirements of Rule 16b-3 under the Exchange Act, or any successor
rule or regulation, (b) to satisfy applicable requirements of the
Code or (c) to satisfy applicable requirements of any securities
exchange on which are listed any of the Company's equity securities
or any requirements applicable to issuers whose securities are
traded in the NASDAQ National Market System. No such action to
amend or terminate the Plan shall reduce the then existing amount
of any Participant's Award or adversely change the terms and
conditions thereof without the Participant's consent. No amendment
of the Plan shall result in any Committee member's losing his or
her status as a "disinterested person" as defined in Rule 16b-3
under the Exchange Act, or any successor rule or regulation, with
respect to any employee benefit plan of the Company or result in
the Plan losing its status as a plan satisfying the requirements
of said Rule 16b-3.
16. No Right to Employment. Neither the adoption of
the Plan nor the granting of any Awards hereunder shall confer upon
any employee of the Company or any Subsidiary any right to
continued employment with the Company or any Subsidiary, as the
case may be, nor shall it interfere in any way with the right of
the Company or a Subsidiary to terminate the employment of any of
its employees at any time, with or without cause.
17. Unfunded Plan. The Plan shall be unfunded and the
Company shall not be required to segregate any assets that may at
any time be represented by Awards under the Plan. Any liability
of the Company to any person with respect to any Awards under the
Plan shall be based solely upon any contractual obligations that
may be effected pursuant to the Plan. No such obligation of the
Company shall be deemed to be secured by any pledge of, or other
encumbrance on, any property of the Company or any Subsidiary.
18. Other Company Award and Compensation Plans.
Payments and other Awards received by a Participant under the Plan
shall not be deemed a part of a Participant's regular, recurring
compensation for purposes of any termination indemnity or severance
pay law and shall not be included in, nor have any effect on, the
determination of Awards under any other employee benefit plan or
similar arrangement provided by the Company or a Subsidiary unless
expressly so provided by such other plan or arrangement, or except
where the Committee expressly determines that an Award or portion
of an Award should be included to accurately reflect competitive
compensation practices or to recognize that an Award has been made
in lieu of a portion of competitive annual cash compensation.
Awards under the Plan may be made in combination or in tandem with,
or as alternatives to, grants, awards or payments under any other
Company or Subsidiary plans. The Plan notwithstanding, the Company
or any Subsidiary may adopt such other compensation programs and
additional compensation arrangements as it deems necessary to
attract, retain and reward employees for their service with the
Company and its Subsidiaries.
19. Securities Law Restrictions. No Common Shares shall
be issued under the Plan unless counsel for the Company shall be
satisfied that such issuance will be in compliance with applicable
federal and state securities laws. Certificates for Common Shares
delivered under the Plan may be subject to such stock transfer
orders and other restrictions as the Committee may deem advisable
under the rules, regulations and other requirements of the
Securities and Exchange Commission, any stock exchange upon which
the Common Shares are then listed or traded, the NASDAQ National
Market System or any applicable federal or state securities law.
The Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
20. Award Agreement. Each Participant receiving an
Award under the Plan shall enter into an agreement with the Company
in a form specified by the Committee agreeing to the terms and
conditions of the Award and such related matters as the Committee
shall, in its sole discretion, determine.
21. Cost of the Plan. The costs and expenses of
administering the Plan shall be borne by the Company.
22. Governing Law. The Plan and all actions taken
thereunder shall be governed by and construed in accordance with
the laws of the State of Delaware.
23. Stockholder Approval. The Plan was adopted by the
Board of Directors of the Company on April 15, 1994. The Plan and
any Award granted thereunder shall be null and void if stockholder
approval is not obtained within twelve (12) months of the adoption
of the Plan by the Board of Directors.
Exhibit 5
(614) 464-6400
August 26, 1994
Board of Directors
Bob Evans Farms, Inc.
3776 South High Street
Columbus, Ohio 43207
Gentlemen and Ladies:
We are familiar with the proceedings taken and proposed
to be taken by Bob Evans Farms, Inc., a Delaware corporation (the
"Company"), in connection with the institution of the Bob Evans
Farms, Inc. 1994 Long Term Incentive Plan (the "Plan"), the
granting of options to purchase shares of Common Stock, $.01 par
value (the "Common Shares"), of the Company pursuant to the Plan,
the granting of performance share awards under the Plan and the
issuance and sale of Common Shares upon exercise of options granted
under the Plan, as described in the Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission on August 29, 1994. The purpose
of the Registration Statement is to register 1,000,000 Common
Shares reserved for issuance under the Plan pursuant to the
provisions of the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
In connection with this opinion, we have examined an
original or copy of, and have relied upon the accuracy of, without
independent verification or investigation: (a) the Registration
Statement; (b) the Plan; (c) the Company's Certificate of
Incorporation, as amended; (d) the Company's By-Laws; and (e)
certain proceedings of the directors and of the stockholders of the
Company. We have also relied upon such representations of the
Company and officers of the Company and such authorities of law as
we have deemed relevant as a basis for this opinion.
We have relied solely upon the examinations and inquiries
recited herein, and we have not undertaken any independent
investigation to determine the existence or absence of any facts,
and no inference as to our knowledge concerning such facts should
be drawn.
Based upon and subject to the foregoing and the further
qualifications and limitations set forth below, as of the date
hereof, we are of the opinion that:
1. When options and performance share awards covering
not more than 1,000,000 Common Shares have been granted to eligible
employees of the Company and its subsidiaries in accordance with
the terms of the Plan, such options and performance share awards
will be legally constituted and binding obligations of the Company
in accordance with their terms.
2. After 1,000,000 Common Shares of the Company have
been issued by the Company upon the exercise of options granted
under the Plan against payment of the purchase price therefor and
upon settlement of performance share awards granted under the Plan,
in accordance with the terms of the Plan, said Common Shares will
be validly issued, fully paid and non-assessable, assuming
compliance with applicable federal and state securities laws.
This opinion is furnished by us solely for the benefit
of the Company in connection with the offering of the Common Shares
pursuant to the Plan and the filing of the Registration Statement
and any amendments thereto. This opinion may not be relied upon
by any other person or assigned, quoted or otherwise used without
our specific written consent.
Notwithstanding the foregoing, we consent to the filing
of this opinion as an exhibit to the Registration Statement and to
the reference to us therein.
Very truly yours,
VORYS, SATER, SEYMOUR AND PEASE
Exhibit 23(a)
Consent of Ernst & Young, Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8) and the related Prospectus pertaining to the registration
of 1,000,000 shares of common stock pursuant to the Bob Evans Farms, Inc. 1994
Long Term Incentive Plan of our report dated May 27, 1994, with respect to the
consolidated financial statements see change per attached of Bob Evans Farms,
Inc. incorporated by reference in its Annual Report on Form 10-K for the year
ended April 29, 1994, and the related financial statement schedules included
herein, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Columbus, Ohio
August 24, 1994
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