<PAGE> 1
As Filed with the Securities and Exchange Commission on March 19, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------
FORM S-3
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 Identification
INCORPORATION OR Number)
ORGANIZATION)
3776 South High Street, Columbus, Ohio 43207
(614) 491-2225
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Daniel E. Evans
Chairman of the Board
Bob Evans Farms, Inc.
3776 South High Street
Columbus, Ohio 43207
(614) 491-2225
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, Of Agent for Service)
-----------------------------------
COPIES TO:
Michael D. Martz, Esq.
Vorys, Sater, Seymour and Pease LLP
52 East Gay Street, P.O. Box 1008
Columbus, Ohio 43216-1008
(614) 464-6451
-----------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
possible after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
This prospectus filed as a part of this Registration Statement is a
combined prospectus for purposes of Rule 429(b) under the Securities Act
and relates to the Form S-3 Registration Statement (Registration Number
333-17815) filed with the SEC on December 19, 1996 as well as this Form S-3
Registration Statement.
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
==========================================================================================================
Title of Each Class of Securities Amount to Proposed Proposed Amount of
to be Registered be Registered Maximum Maximum Registration
Offering Price Aggregate Fee
per Unit(1) Offering
Price(1)
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 Par Value of 4,000,000 $20.1875 $80,750,000 $22,448.50
Bob Evans Farms, Inc..............
==========================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) promulgated under the Securities Act of 1933, as
amended, and computed on the basis of $20.1875 per share, which is the
average of the high and low sale prices of the common stock as reported on
The Nasdaq Stock Market on March 15, 1999.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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Exhibit Index at Page II-10
<PAGE> 2
[BOB EVANS LOGO]
3776 SOUTH HIGH STREET
COLUMBUS, OHIO 43207
DIVIDEND REINVESTMENT AND
STOCK PURCHASE PLAN
4,000,000 SHARES OF COMMON STOCK
($0.01 PAR VALUE)
PROSPECTUS
<TABLE>
TABLE OF CONTENTS
<CAPTION>
PAGE
----
<S> <C>
Bob Evans Farms, Inc................................... 1
Risk Factors........................................... 2
Where You Can Find More Information.................... 2
Documents Incorporated by Reference.................... 2
The Bob Evans Farms, Inc. Dividend .................... 3
Reinvestment and Stock Purchase Plan................... 3
Purpose and Features.............................. 3
Administration.................................... 4
Participation..................................... 4
Investment Options................................ 5
Voluntary Cash Payments........................... 6
Initial Investments............................... 7
Automatic Monthly Investments..................... 7
Payroll Deductions................................ 7
Purchases of Shares............................... 8
Plan Accounts..................................... 8
Gifts or Transfers of Shares...................... 9
Termination....................................... 9
Other Information................................. 10
Federal Income Tax Consequences........................ 12
Indemnification........................................ 12
Use of Proceeds........................................ 13
Legal Matters.......................................... 13
Reports to Shareholders................................ 13
Experts................................................ 13
Forward Looking Statements............................. 13
</TABLE>
WE HAVE NOT AUTHORIZED ANY PERSON TO GIVE ANY INFORMATION OR TO
MAKE ANY STATEMENT OR REPRESENTATION THAT DIFFERS FROM WHAT IS IN THIS
PROSPECTUS. IF ANY PERSON DOES MAKE A STATEMENT THAT DIFFERS FROM WHAT
IS IN THIS PROSPECTUS, YOU SHOULD NOT RELY ON IT. THIS PROSPECTUS IS
NOT AN OFFER TO SELL, NOR IS IT SEEKING AN OFFER TO BUY, THESE
SECURITIES IN ANY STATE IN WHICH THE OFFER OR SALE IS NOT PERMITTED.
THE INFORMATION IN THIS PROSPECTUS IS COMPLETE AND ACCURATE AS OF ITS
DATE, BUT THE INFORMATION MAY CHANGE AFTER THAT DATE.
<PAGE> 3
PROSPECTUS
- ----------
BOB EVANS FARMS, INC.
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
4,000,000 SHARES OF COMMON STOCK ($0.01 PAR VALUE)
- --------------------------------------------------------------------------------
Bob Evans Farms, Inc. is offering to its stockholders, its employees, the
employees of its subsidiaries and other investors a simple and convenient method
to purchase shares of its common stock, $.01 par value, through participation in
this Dividend Reinvestment and Stock Purchase Plan (the "Plan"). This Plan
replaces our existing dividend reinvestment and stock purchase plan.
Stockholders who currently participate in our existing dividend reinvestment and
stock purchase plan automatically will participate in this Plan. Investment
options offered under this Plan are:
o FULL DIVIDEND REINVESTMENT -- You can reinvest all dividends paid
on your shares of stock and also make voluntary cash contributions
to purchase additional stock.
o PARTIAL DIVIDEND REINVESTMENT -- You can reinvest dividends paid
on only a specified number of your certificated shares of stock to
purchase additional stock.
o VOLUNTARY CASH PAYMENTS -- You can make voluntary cash
contributions to purchase additional shares of stock even if you
choose not to reinvest dividends.
Here is how you can enroll in this Plan and how you can make
additional purchases of stock:
o Non-stockholder employees may make initial purchases of our stock
in amounts of not less than $10 and not more than $20,000.
o Persons who are not stockholders and not employees may make
initial purchases of our stock in amounts of not less than $100
and not more than $20,000.
o Existing stockholders may make voluntary cash contributions of no
less than $50 and no more than $20,000 each month to purchase
additional stock.
o Existing stockholders may make monthly cash contributions from
qualifying savings, checking, or other accounts of not less than
$25 and not more than $20,000 to purchase additional stock.
All shares of our stock purchased for the Plan will be purchased on the
open market at current market prices. Our stock is listed on The NASDAQ Stock
Market under the symbol "BOBE".
This Prospectus relates to shares of our stock available for purchase
under this Plan. For future reference, please retain this Prospectus.
THE REGISTRATION STATEMENT THAT CONTAINS THIS PROSPECTUS (INCLUDING THE
EXHIBITS TO THE REGISTRATION STATEMENT) CONTAINS ADDITIONAL INFORMATION ABOUT
BOB EVANS FARMS, INC. AND OUR STOCK. YOU CAN READ THE REGISTRATION STATEMENT ON
THE SEC WEB SITE OR AT THE SEC OFFICES, AS DESCRIBED UNDER THE HEADING IN THIS
PROSPECTUS ENTITLED "WHERE YOU CAN FIND MORE INFORMATION".
NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR
DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
WE MAY NOT AWARD OUR STOCK UNDER THE PLAN UNTIL THIS REGISTRATION
STATEMENT FILED WITH THE SEC IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO
SELL OUR STOCK AND IT IS NOT SOLICITING AN OFFER TO BUY OUR STOCK IN ANY STATE
WHERE THE OFFER OR SALE IS NOT PERMITTED.
The date of this Prospectus is May [__], 1999
<PAGE> 4
BOB EVANS FARMS, INC.
Bob Evans Farms, Inc. is a Delaware corporation incorporated on
November 4, 1985. Bob Evans Farms, Inc. and its subsidiaries own and operate 413
restaurants in 20 states, including Bob Evans Restaurants, Owens Family
Restaurants and "small-town" Bob Evans Restaurants. We also produce fresh and
fully cooked sausage products and fresh, deli-style salads, which are
distributed primarily to grocery stores in the Midwest, Southwest and Southeast.
Our liquid smoke flavorings are distributed nationally. Our principal executive
office is located at 3776 South High Street, Columbus, Ohio 43207. Our telephone
number is (614) 491-2225.
RISK FACTORS
An investment in Bob Evans Farms, Inc. stock has risk. Set forth below
are some of the risks associated with an investment in our stock.
1. CHANGES IN THE PRICES TO BE PAID IN THE LIVE HOG MARKET. If prices
for live hogs increase, the prices we charge for hog-related products in both
our foods products business segment and our restaurant business segment may
increase. If the prices for our hog-related products increase, our sales may
decrease and the price of our stock may be negatively affected.
2. THE ENTRANCE OF NEW COMPETITORS IN THE FAMILY STYLE RESTAURANT
INDUSTRY. If new competitors enter into the family-style restaurant industry in
which we compete, our restaurant business segment revenues could be negatively
impacted which could lower our stock price.
3. INCREASES IN LABOR COSTS. The cost of labor and employee benefits
generally represents between 38% and 40% of our total expenses in our restaurant
business segment. Because labor and employee benefit costs represent a large
portion of our overall expenses, increases in labor and employee benefit costs
significantly impact our operating profit. Consequently, if labor and employee
benefits costs increase, our operating profits may decline and our stock price
may be negatively affected.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a Registration Statement on Form S-3 under the Securities
Act of 1933 (the "Securities Act") to register 4,000,000 shares of our stock
which will be available to be purchased under the Plan. This Prospectus does not
contain all the information set forth in the Registration Statement and the
exhibits to the Registration Statement.
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. You can read and copy any materials filed with
the SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may obtain information on the operation of the
Public Reference Room by calling the SEC at 1-800-SEC-0330. In addition, the SEC
maintains an Internet site that contains reports, proxy statements and other
information regarding us which you may access at http://www.sec.gov. We maintain
an Internet site at www.bobevans.com.
DOCUMENTS INCORPORATED BY REFERENCE
The rules and regulations of the SEC allow us to incorporate certain
information about us and our financial condition into this Prospectus by
reference. This means that we can disclose important information to you by
referring you to other documents that we have filed with the SEC. The
information incorporated by reference is considered to be a part of this
Prospectus.
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We have incorporated by reference into this Prospectus the following
documents:
COMMISSION FILING DESCRIPTION OR PERIOD/AS OF DATE
- ----------------- --------------------------------
Annual Report on Form 10-K Fiscal Year ended April 24, 1998
Quarterly Reports on Form 10-Q Quarters ended July 24, 1998, October 23,
1998 and January 29, 1999
We also incorporate by reference into this Prospectus:
o The description of our stock contained in our registration statement on
Form S-4 (Registration No. 33-1336) filed with the SEC on November 5,
1986.
o All periodic reports (such as Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q and Current Reports on Form 8-K), as well as any
proxy statements, that we may file with the SEC between the date of
this Prospectus and the termination of the Plan.
You can obtain any of the documents incorporated by reference in this
Prospectus, excluding any exhibits to those documents unless the exhibit is
specifically incorporated by reference in this Prospectus, without charge, by
writing or phoning us at the following address and phone number:
BOB EVANS FARMS, INC.
3776 SOUTH HIGH STREET
COLUMBUS, OH 43207
(614) 491-2225
ATTN: JUDY HARRINGTON
VICE PRESIDENT OF STOCKHOLDER RELATIONS
For further information with respect to our company and our stock, you
should refer to the Registration Statement (including the exhibits to the
Registration Statement) and the documents incorporated in this Prospectus by
reference.
THE BOB EVANS FARMS, INC.
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
The following numbered questions and answers set forth the terms and
conditions of the Bob Evans Farms, Inc. Dividend Reinvestment and Stock Purchase
Plan (the "Plan").
PURPOSE AND FEATURES
1. WHAT IS THE PURPOSE OF THE PLAN?
The purpose of the Plan is to provide our stockholders, our
employees, employees of our subsidiaries and other investors with a
convenient and economical method of purchasing our stock. Shares of our
stock which are credited to and held in a participant's account under
the Plan are referred to as "Plan Shares." All cash dividends payable
on whole or fractional Plan Shares will automatically be used to
purchase additional shares of stock and these additional shares of
stock will then become Plan Shares.
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<PAGE> 6
2. WHAT ARE SOME OF THE FEATURES OF THE PLAN?
o Persons participating in the Plan may use all or a
portion of the dividends which are paid on their
shares of stock and the dividends which are paid on
their Plan Shares to automatically acquire additional
shares of our stock.
o Persons who are not presently stockholders or
employees may purchase stock and become participants
in the Plan by making an initial investment of at
least $100.
o Our employees and the employees of our subsidiaries
who are not presently stockholders of our company may
purchase stock and become participants in the Plan by
making an initial investment of at least $10.
o Participants may purchase additional shares of our
stock by making voluntary cash payments of not less
than $50 per payment and not more than $20,000 per
calendar month through check or money order and not
less than $25 through automatic monthly electronic
funds transfer from a predesignated account with a
United States financial institution.
o Our employees and employees of our subsidiaries may
purchase additional shares of stock through payroll
deductions.
o Shares of our stock purchased under the Plan are held
in a plan account for each participant, relieving
such participant of the responsibility for the
safekeeping of his or her stock certificates.
Participants may deposit stock certificates into
their plan accounts for credit as shares held under
the Plan, free of charge.
o Participants may direct us to transfer all or a
portion of their Plan Shares to the account of
another person, at any time and at no cost to the
participants.
o Personal recordkeeping is simplified by our issuance
of statements indicating account activity.
ADMINISTRATION
3. WHO ADMINISTERS THE PLAN?
We administer the Plan, maintain records, send statements of
Plan Accounts to participants and perform other duties relating to the
Plan. We may resign as "Plan Administrator" at any time, in which case
we will appoint a successor. We believe that there are no material
risks to the participants in the Plan, which result from our
administration of the Plan rather than a registered broker-dealer or a
federally insured financial institution serving as Plan Administrator.
PARTICIPATION
4. WHO IS ELIGIBLE TO PARTICIPATE?
Any person or entity which is a citizen or resident of the
United States, regardless of whether or not a stockholder, is eligible
to join the Plan. Any person or entity which is not a citizen or
resident of the United States, its territories and possessions, may
participate in the Plan if their participation is not prohibited by the
laws where the person or entity resides.
5. HOW AND WHEN MAY A PERSON JOIN THE PLAN?
If you are currently a stockholder of Bob Evans Farms, Inc.
and your stock is registered with us under your name, you may join the
Plan any time after receiving a copy of the Plan prospectus and by
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completing an Authorization Form. Stockholders should sign their names
on the Authorization Form exactly as their names appear on their stock
certificates and return the Authorization Form to:
BOB EVANS FARMS, INC.
ATTN: STOCK TRANSFER DEPARTMENT
3776 SOUTH HIGH STREET
COLUMBUS, OHIO 43207
AUTHORIZATION FORMS MAY BE OBTAINED BY WRITING TO THE SAME ADDRESS OR
TELEPHONING (614) 491-2225.
If you do not currently own any shares of Bob Evans Farms,
Inc. stock, you may join the Plan after receiving a copy of this
Prospectus and returning a completed Authorization Form along with an
initial investment in the form of a check or money order of at least
$100, but not more than $20,000.
If your shares of Bob Evans Farms, Inc. stock are held in a
brokerage, bank or other intermediary account ("street name"), you may
participate in the Plan by instructing your broker, bank or trustee to
register the shares in your name or you may request a copy of this
Prospectus from us and return a completed Authorization Form along with
an initial investment of at least $100, but not more than $20,000 to
Bob Evans Farms, Inc. at the address above.
Our employees and the employees of our subsidiaries not
presently owning shares may join the Plan at any time after being
furnished a copy of the Plan Prospectus, by completing and returning to
us an Authorization Form and making an initial investment in the form
of a check or money order of at least $10, but not more than $20,000.
Employees may also join the Plan by completing a payroll deduction
Authorization Form.
WE HAVE THE RIGHT TO REJECT ANY AUTHORIZATION FORM FOR ANY
REASON.
INVESTMENT OPTIONS
6. WHAT TYPE OF INVESTMENT OPTIONS ARE ALLOWED UNDER THE PLAN?
FULL DIVIDEND REINVESTMENT - If you choose this option, we will
automatically use all dividends paid on your stock to purchase
additional shares of stock. You may also make voluntary cash payments
which will be used to purchase additional stock.
PARTIAL DIVIDEND REINVESTMENT - If you choose this option, only
dividends which are paid on shares of stock which you specify on the
Authorization Form will be used to purchase additional stock. Dividends
on all shares of stock which you hold in a Plan Account will also be
used to purchase additional stock. You also may make voluntary cash
payments which will be used to purchase additional stock.
VOLUNTARY CASH PAYMENTS - If you choose this option, we will continue
to pay dividends directly to you on any shares of stock registered in
your name in certificate form. Any voluntary cash payments which you
make and any dividends paid on shares of stock held in your Plan
account will be used to purchase additional shares of stock which will
then become Plan Shares.
DIRECT DEPOSIT OF CASH DIVIDENDS - If you choose the partial dividend
reinvestment option or the voluntary cash payment option, you may elect
to have all of your cash dividends deposited directly into your U.S.
bank account on the dividend payment date instead of receiving a check
by mail. You must complete a Direct Deposit Authorization Form
(available from the Stock Transfer Department) and return it to us,
along with a voided check for the designated bank account. In order to
initiate, change or stop the direct deposit of dividends, we must
receive your written request at least 30 days before the dividend
payment date.
Participants may change their method of participation in the
Plan at any time by completing a new Authorization Form and returning
it to us (Attention: Stock Transfer Department).
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7. WHEN WILL SHARES BE PURCHASED UNDER THE PLAN?
Shares will be purchased by the Plan's stock purchasing agent
beginning on the investment date (the "Investment Date"). The
Investment Date for voluntary cash payments and initial investments in
the Plan is described in the table below:
MONTH INVESTMENT DATE
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January, March, April, June, July, The 1st and the 15th day of each month
September, October and December unless the 1st or 15th is not a business
day, in which case the Investment Date
will be the next business day
February, May, August and November The 1st business day of the month
The Investment Date for dividend payments will be the day that
the dividend is paid. If the Investment Date falls on a day when our
stock is not traded on The NASDAQ Stock Market, the Investment Date
will be the next day during which our stock is traded. Purchases will
begin on the Investment Date and will be completed no later than 30
days from such date, except where completion at a later date is
necessary or advisable under applicable securities laws. Any monies
representing voluntary cash payments or initial investments or
dividends, as appropriate, to be invested on behalf of a participant
will be returned to the participant if shares of stock have not been
purchased: (a) within 35 days of receipt of the voluntary cash payments
or initial investments or (b) within 30 days of the applicable dividend
payment date for dividend reinvestments. No interest will be paid on
voluntary cash payments, initial investments or dividends returned to
participants.
VOLUNTARY CASH PAYMENTS AND INITIAL INVESTMENTS MUST BE
RECEIVED BY US AT LEAST TEN (10) CALENDAR DAYS BEFORE AN INVESTMENT
DATE. IF A VOLUNTARY CASH PAYMENT OR AN INITIAL INVESTMENT IS NOT
RECEIVED BY US AT LEAST TEN (10) CALENDAR DAYS BEFORE AN INVESTMENT
DATE, THE VOLUNTARY CASH PAYMENT OR INITIAL INVESTMENT WILL BE HELD BY
US UNTIL THE NEXT INVESTMENT DATE.
VOLUNTARY CASH PAYMENTS
8. HOW AND WHEN MAY VOLUNTARY CASH PAYMENTS BE MADE?
Voluntary cash payments may be made by any participant at any
time, by completing a voluntary cash payment stub and sending a check
or money order in U.S. dollars made payable to Bob Evans Farms, Inc.,
or by automatic deduction on a monthly basis from the participant's
U.S. financial institution account. The voluntary cash payment stub is
the tear-off portion at the top of your statement. Please do not send
cash. If received by us at least ten (10) calendar days before an
Investment Date, the Plan's stock purchasing agent will invest the
voluntary cash payments on the Investment Date. No interest will be
paid on voluntary cash payments held pending investment by the Plan's
stock purchasing agent. The same amount of money is not required in
each voluntary cash payment and there is no obligation to make
voluntary cash payments on a regular basis. You may invest a minimum of
$50 by check or money order and $25 through automatic deduction at any
one time but you cannot invest more than $20,000 in a calendar month.
Cash payments of less than $50 and all amounts more than the $20,000
monthly maximum will be returned to the participant.
The investment of a voluntary cash payment may be stopped by
notifying us (Attention: Stock Transfer Department) in writing,
provided that the written communication is received by us not later
than two (2) business days before the Investment Date to which it
applies. Until we receive the funds, there will be no refund of a check
or money order.
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INITIAL INVESTMENTS
9. HOW AND WHEN MAY INITIAL INVESTMENTS BE MADE?
Persons who are not our employees may make a minimum initial
investment of $100 and a maximum initial investment of $20,000 paid in
the form of a check or money order. The initial investment must be
included with a completed Authorization Form and returned to us
(Attention: Stock Transfer Department) at the address listed on the
Authorization Form.
We must receive initial investments at least ten (10) calendar
days before an Investment Date. If we do not receive the initial
investment at least ten (10) calendar days before the next Investment
Date, the Plan's stock purchasing agent will hold the initial
investment until the next Investment Date. Upon a participant's written
request received by us at least two (2) business days prior to the
Investment Date, an initial investment will be returned to the
participant. However, until we receive the funds, there will be no
refund of a check or money order.
AUTOMATIC MONTHLY INVESTMENTS
10. WHAT IS THE AUTOMATIC MONTHLY INVESTMENT FEATURE OF THE PLAN AND HOW
DOES IT WORK?
Participants may make voluntary cash payments of not less than
$25 per payment nor more than $20,000 during a calendar month by means
of monthly automatic electronic funds transfers ("Automatic Monthly
Investment") from a predesignated account with a United States
financial institution.
To initiate Automatic Monthly Investments, a person must
already be a participant with a Plan account and must complete, sign
and return to us an Automatic Monthly Deduction Form with a voided
blank check or a deposit slip for the account from which funds are to
be drawn. Automatic Monthly Deduction Forms may be obtained from us at
the address listed on the Authorization Form. Forms will be processed
and will become effective as promptly as practicable.
Once an Automatic Monthly Investment is initiated, funds are
drawn on the 25th of each month or if that date falls on a non-business
day, the next business day. Automatic Monthly Investment funds will be
invested beginning on the next following Investment Date. You should
allow up to 4 weeks for the first Automatic Monthly Investment to be
initiated.
Participants may change the amount of their Automatic Monthly
Investments by completing and submitting to us a new Automatic
Deduction Form. We must receive the new Automatic Deduction Form at
least ten (10) business days preceding that Investment Date. In order
to cancel an Automatic Monthly Deduction, you must notify us in writing
at least ten (10) business days prior to the applicable Investment
Date.
PAYROLL DEDUCTIONS
11. WHAT IS THE PAYROLL DEDUCTION FEATURE OF THE PLAN AND HOW DOES IT WORK?
Our employees and employees of our subsidiaries may make
voluntary cash payments to their Plan accounts of not less than $5 per
pay period by means of a payroll deduction. Any employee who has made a
hardship withdrawal from the Bob Evans Farms, Inc. and Affiliates 401K
Retirement Plan is prohibited, for a period of twelve (12) months from
the date of the hardship withdrawal, from participating in the initial
investment, payroll deduction and voluntary cash payment features of
the Plan.
To initiate payroll deductions, an employee must complete a
payroll deduction authorization form and return it to our Payroll
Department. Forms will be processed and will become effective as
promptly as practical. Once an employee has begun payroll deductions,
the funds will be invested as voluntary cash payments to the employee's
Plan account and invested.
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<PAGE> 10
An employee may change the amount or cease his or her payroll
deduction at any time by giving written notice to our Payroll
Department. Ceasing payroll deductions or terminating employment with
us or any of our subsidiaries will not automatically terminate a Plan
account. Dividends will continue to be reinvested and the participant
may continue to make voluntary cash payments.
PURCHASES OF SHARES
12. WHO PURCHASES SHARES OF OUR STOCK UNDER THE PLAN?
Shares of our stock for the Plan will be purchased on the open
market by or at the direction of a registered broker-dealer acting as
agent for the Plan participants. Neither Bob Evans Farms, Inc. nor any
of its affiliates will exercise any direct or indirect control or
influence over the times when, the prices at which, or the manner in
which, shares of our stock are purchased by the Plan's stock purchasing
agent. We have the right to change the stock purchasing agent without
notice to participants.
13. WHAT IS THE SOURCE OF SHARES PURCHASED UNDER THE PLAN?
Shares of our stock purchased under the Plan will be purchased
on the open market. Open market purchases of our stock will be made by
the Plan's stock purchasing agent. We will not control or influence the
prices or timing of open market purchases made by the Plan's stock
purchasing agent, the amount of shares to be purchased (other than
specifying the aggregate dollar amount to be invested), the manner of
purchase of shares or the selection by the Plan's stock purchasing
agent of any broker or dealer through which purchases will be made.
14. WHAT IS THE PURCHASE PRICE OF SHARES PURCHASED UNDER THE PLAN?
The purchase price of Bob Evans Farms, Inc. stock purchased
for the Plan on the open market will be the average purchase price paid
by the Plan's stock purchasing agent.
15. HOW MANY SHARES WILL BE PURCHASED?
The number of shares of Bob Evans Farms, Inc. stock to be
purchased by the Plan for each participant will equal the amount of the
Participant's reinvested dividends and optional cash payments, less any
amounts required to be withheld for tax purposes, divided by the
purchase price of the shares. Both whole shares and fractional shares
will be credited to participants' accounts.
The Plan's stock purchasing agent may commingle each
participant's funds with those of other participants for executing
purchase and sale transactions.
Neither a participant nor a person making an initial
investment may direct the Plan's stock purchasing agent to purchase a
specific number of shares.
PLAN ACCOUNTS
16. CAN PLAN SHARES IN A PLAN ACCOUNT BE SOLD?
Yes. A participant may request, at any time, that all or a
portion of the shares held in his or her Plan account be sold by
delivering to us written instructions, either by mail or facsimile,
signed by the participant and any other owner(s) of the stock. We will
not accept e-mail or telephone instructions to sell shares. We will
forward the instructions to the Plan's stock purchasing agent, who will
sell the shares within 10 business days of receipt of the participant's
request. A request to sell all of the shares which a participant holds
in the Plan will be considered a termination of participation in the
Plan. The Plan's stock purchasing agent cannot sell any certificated
shares owned by a participant unless the certificates are deposited
into the Plan. Our directors and executive officers who are
participating in the Plan are not permitted to sell their shares
through the Plan and must withdraw their shares from their Plan
accounts in order to make a sale.
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17. WHAT DOES IT COST TO HAVE THE PLAN'S STOCK PURCHASING AGENT SELL PLAN
SHARES?
The sales price for any shares being sold by a participant
will be the average price of all the shares sold by the Plan's stock
purchasing agent for all participants during the period in which the
Plan's stock purchasing agent makes such sales. You will receive the
proceeds of the sale of your shares less a brokerage fee and related
service charges of $.10 per Plan Share sold and less any required tax
withholdings or transfer taxes.
SELLING PARTICIPANTS SHOULD BE AWARE THAT THE PRICE OF BOB
EVANS FARMS, INC. STOCK MIGHT DECREASE DURING THE PERIOD BETWEEN A
REQUEST FOR SALE, ITS RECEIPT BY US, AND THE ULTIMATE SALE OF THE
STOCK. THIS RISK SHOULD BE EVALUATED BY THE PARTICIPANT AND IS A RISK
THAT WILL BE BORNE SOLELY BY THE PARTICIPANT.
GIFTS OR TRANSFERS OF SHARES
18. MAY A PARTICIPANT TRANSFER OR GIFT TO ANOTHER PERSON ALL OR A PART OF
HIS OR HER SHARES HELD UNDER THE PLAN?
Yes. If a participant wishes to change the ownership of all or
part of his or her shares held under the Plan through gift, private
sale or otherwise, the participant may effect the transfer by mailing a
properly completed and executed Transfer of Stock Form to us
(Attention: Stock Transfer Department). Transfers of less than all of a
participant's shares must be made in whole share amounts. No fraction
of a share may be transferred unless a participant's entire Plan
account is transferred. Requests for transfer are subject to the same
requirements as transfers of stock certificates, including the
requirements of a Medallion signature guarantee. Transfer of Stock
Forms are available upon request from us.
Shares of Bob Evans Farms, Inc. stock credited to your Plan
account may not be pledged or assigned. If you wish to pledge or assign
your shares, you must withdraw those shares from your Plan account.
19. IF PLAN SHARES ARE TRANSFERRED TO ANOTHER PERSON, WILL THE PERSON TO
WHOM THE SHARES ARE TRANSFERRED BE ISSUED A STOCK CERTIFICATE?
No. Any shares transferred will continue to be held under the
Plan. A Plan account will be opened in the name of the person receiving
the shares. If the person receiving the shares is not already a
participant he or she will be automatically enrolled in the Plan. If
the person receiving the shares is not already a participant, the
person transferring the shares may make a reinvestment election for
that person at the time of the transfer. If no reinvestment election is
made, all dividends on the shares transferred will be reinvested under
the terms of the Plan. Any person who is transferred shares under the
Plan may change the reinvestment election after the transfer has been
made.
20. HOW WILL A PERSON RECEIVING A GIFT OR TRANSFER OF PLAN SHARES BE
ADVISED OF HIS OR HER OWNERSHIP?
Any person receiving a gift or transfer of Plan Shares will
receive a statement showing the number of shares transferred to, and
held in, his or her Plan account.
TERMINATION
21. MAY A PARTICIPANT WITHDRAW SHARES FROM HIS OR HER PLAN ACCOUNT WITHOUT
TERMINATING PARTICIPATION IN THE PLAN?
Yes. A participant may at any time withdraw any number of
whole shares held in his or her Plan account, without terminating the
Plan account, by furnishing a written request to us. The request must
indicate the number of whole shares to be withdrawn and must be signed
by all of the owner(s) of the shares. A signature guarantee is not
required. A
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certificate for shares withdrawn will be issued to the participant
without charge within ten (10) days of our receipt of the request from
the participant. A certificate for any fractional share will not be
issued under any circumstances, and the fractional share will continue
to be held in the participant's Plan account.
22. HOW MAY A PARTICIPANT TERMINATE PARTICIPATION IN THE PLAN?
You may terminate your participation in the Plan at any time
by delivering to us written instructions, by either mail or facsimile,
signed by all registered holders listed on your Plan account. Upon
termination, you may elect either to have all the shares in your Plan
account sold or receive a certificate for the number of whole shares
held in your Plan account and a check for the value of any fractional
share. In addition, upon termination, cash dividends on any remaining
shares of Bob Evans Farms, Inc. stock you hold will be paid to you and
will not be reinvested.
Cash investments received prior to the request to terminate
Plan participation will be invested at the next Investment Date unless
the participant requests the return of that cash investment at least
two business days prior to the applicable Investment Date.
23. MAY A PARTICIPANT STOP REINVESTMENT OF DIVIDENDS ON SHARES IN
CERTIFICATE FORM AND REMAIN IN THE PLAN?
Yes. A participant who elects to stop the reinvestment of
dividends paid on shares held in certificate form may leave shares held
under the Plan in his or her Plan account. Dividends paid on shares
left in the Plan account will continue to be used to purchase
additional shares. The participant may also continue to make voluntary
cash payments under the Plan.
24. WHAT HAPPENS IN THE EVENT OF DEATH?
In the event of death, a participant's Plan account will
continue and dividends will continue to be reinvested until we receive
instructions from the duly authorized representative of the
participant's estate. Please contact us for additional information and
assistance.
25. WHEN MAY A FORMER PARTICIPANT REJOIN THE PLAN?
Generally, a former participant may rejoin the Plan at any
time. However, we have the right to reject any Authorization Form from
a previous participant for any reason.
26. MAY CERTIFICATES HELD BY PARTICIPANTS BE DEPOSITED IN THE PLAN?
Yes. Participants may deposit for safekeeping with us
certificates for shares of Bob Evans Farms, Inc. stock now or hereafter
registered in their names for credit under the Plan. There is no charge
for this custodial service and, by making the deposit, a participant is
relieved of the responsibility for loss, theft or destruction of the
certificate. However, the participant bears the risk of loss in sending
certificates to us. Therefore, it is recommended that certificates be
sent to us by registered mail, returned receipt requested and properly
insured. Certificates should not be endorsed. Whenever certificates are
issued to a participant, either upon request or upon termination, new,
differently numbered certificates will be issued. Dividends on shares
of Bob Evans Farms, Inc. stock represented by certificates deposited
with us will be reinvested.
OTHER INFORMATION
27. WHAT REPORTS AND OTHER INFORMATION WILL BE SENT TO PARTICIPANTS?
After the date of payment for each dividend paid by Bob Evans
Farms, Inc. to its stockholders, a statement of Plan account will be
sent to each participant. A Plan account statement will also be sent
after each optional purchase and sale of shares of Bob Evans Farms,
Inc. stock on behalf of a participant. Quarterly statements will show
cumulative transactions for the calendar year. These statements should
be retained for tax purposes. We will also provide each participant
copies of any amendments to the Plan and
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the same communications received by any other stockholder of Bob Evans
Farms, Inc., including annual reports, notices of annual meetings,
proxy statements and income tax information for reporting dividends
paid and proceeds from Plan Shares sold.
28. HOW ARE A PARTICIPANT'S PLAN SHARES VOTED?
All Plan Shares are voted in the same manner as shares of Bob
Evans Farms, Inc. stock registered in a participant's own name.
Participants will receive proxy materials from us for each stockholder
meeting, including a proxy statement, and a form of proxy covering all
Plan Shares credited to the participant's Plan account and all shares
of Bob Evans Farms, Inc. stock registered in the participant's own name
as of the record date for the meeting. Plan Shares may also be voted in
person at the meeting in the same manner as shares of Bob Evans Farms,
Inc. stock registered in the participant's own name.
29. WHAT HAPPENS IF WE ISSUE A STOCK DIVIDEND OR DECLARE A STOCK SPLIT?
Any stock dividends or stock splits of Bob Evans Farms, Inc.
stock distributed by us on shares in a participant's Plan account will
be added to that Plan account. Stock dividends or split shares
distributed on shares of Bob Evans Farms, Inc. stock not held in the
Plan will be mailed directly to the participant in the same manner as
to stockholders who are not participating in the Plan.
30. MAY THE PLAN BE CHANGED OR DISCONTINUED?
Yes. We have the right to modify or terminate the Plan at any
time. We also have the right to suspend the Plan, without notice, for
limited periods of time (not to exceed 90 days in any case) during or
in anticipation of the following:
o Public offerings of Bob Evans Farms, Inc. stock.
o Pending the filing by us with the SEC of any report or
statement required to be filed under the federal securities
laws.
o Pending any proposed amendment of or supplement to this
Prospectus or to the Registration Statement of which this
Prospectus is a part.
o For any other reason which we deem to be advisable.
Monies representing voluntary cash payments, initial
investments or dividends, as appropriate, to be invested on behalf of
Participants will be returned to Participants if shares of Bob Evans
Farms, Inc. stock have not been purchased:
o Within 35 days of receipt of the voluntary cash payments or
initial investments.
o Within 30 days of the applicable dividend payment date for
dividend reinvestments.
No interest will be paid on any monies returned to
participants. We will advise participants when a suspension of the Plan
is terminated.
If the Plan is terminated, each participant will receive:
o A certificate for all whole Plan Shares in the participant's
Plan account or a book entry position if then being utilized.
o A check representing the market value of any fractional Plan
Share in the participant's Plan account.
o Any uninvested voluntary cash payments held in the
participant's Plan account.
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FEDERAL INCOME TAX CONSEQUENCES
You are advised to consult your tax or financial advisor with respect
to the tax consequences of participation in the Plan.
In general, the amount of cash dividends paid by us is considered
taxable income even though the dividends are reinvested under the Plan. A
participant will be treated for federal income tax purposes as having received
on a dividend payment date, a dividend equal to the full amount of the cash
dividends payable on both the shares registered in the participant's own name
and the participant's Plan Shares, even though the amount of dividends
reinvested is not actually received in cash, but instead is applied to the
purchase of shares for the participant's Plan account. In addition, the IRS has
ruled that the amount of brokerage commissions paid by us on a participant's
behalf is to be treated as a distribution to the participant which is subject to
income tax in the same manner as dividends.
The tax basis of shares acquired through the reinvestment of dividends
will be equal to the value of dividends reinvested. The tax basis of shares
purchased with cash investments will be equal to the amount of the investment.
Your December Plan statement will capture all Plan activities for that year and
may be useful when calculating your tax basis.
Upon the sale of either a portion or all of your shares from the Plan,
you may recognize a capital gain or loss based on the difference between the
sales proceeds and the tax basis in the shares sold, including any fractional
share. You will not realize any taxable income when you receive certificates for
whole shares credited to your Plan account.
If you are subject to withholding taxes, we will withhold the required
taxes from the gross dividends or proceeds from the sale of shares. The
dividends or proceeds received by you, or dividends reinvested on your behalf
will be net of the required taxes.
PARTICIPANTS SHOULD CONSULT THEIR PERSONAL TAX ADVISORS WITH SPECIFIC
REFERENCE TO THEIR OWN TAX SITUATIONS AND POTENTIAL CHANGES IN THE APPLICABLE
LAW AS TO ALL FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX MATTERS IN CONNECTION
WITH THE REINVESTMENT OF DIVIDENDS AND PURCHASES OF STOCK UNDER THE PLAN, THE
PARTICIPANT'S COST BASIS AND HOLDING PERIOD FOR STOCK ACQUIRED UNDER THE PLAN
AND THE CHARACTER, AMOUNT AND TAX TREATMENT OF ANY GAIN OR LOSS REALIZED ON THE
DISPOSITION OF STOCK.
INDEMNIFICATION
Article eleventh of the Certificate of Incorporation of Bob Evans
Farms, Inc. limits the liability of Bob Evans Farms, Inc. directors. Article
Eleventh provides that no director or former director will be personally liable
to Bob Evans Farms, Inc. or its stockholders for monetary damages for breach of
fiduciary duty as a director except in the instance of (1) a breach of the
director's duty of loyalty to Bob Evans Farms, Inc. or its stockholders, (2)
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) the paying of a dividend or the approving of a
stock repurchase or redemption which is illegal under the Delaware General
Corporation Law, or (4) any transaction from which the director derives an
improper personal benefit.
Article IX of the By-Laws of Bob Evans Farms, Inc. provides that Bob
Evans Farms, Inc. will indemnify and hold harmless any officer or director
against expenses and other costs resulting from any action, suit or proceeding,
whether civil, criminal, administrative or investigative, reasonably incurred or
suffered by the director or officer to the fullest extent permitted by Delaware
law. Expenses may be advanced to any officer or director only upon delivery to
Bob Evans Farms, Inc. of an undertaking by or on behalf of the officer or
director, to repay all amounts so advanced if it shall ultimately be determined
by final judicial decision that the officer or director is not entitled to be
indemnified for the expenses. Bob Evans Farms, Inc. also may grant rights to
indemnification, and to the advancement of expenses to any employee or agent of
Bob Evans Farms, Inc. consistent with Article IX of the By-Laws of Bob Evans
Farms, Inc.
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Bob Evans Farms, Inc. has purchased insurance coverage which insures
the directors and officers against liabilities incurred by them in their
capacity as directors and officers.
Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers or persons controlling Bob Evans Farms,
Inc. pursuant to the foregoing provisions, Bob Evans Farms, Inc. has been
informed that in the opinion of the SEC such indemnification is against public
policy as expressed in the 1933 Act and is therefore unenforceable.
USE OF PROCEEDS
Shares of Bob Evans Farms, Inc. stock to be acquired by participants
under the Plan will be provided through open-market purchases. We will not
receive any compensation in connection with the purchase of shares of Bob Evans
Farms, Inc. stock for participants in the Plan.
LEGAL MATTERS
Vorys, Sater, Seymour and Pease LLP, 52 East Gay Street, Columbus, Ohio
43215 will pass upon the legal matters regarding the Bob Evans Farms, Inc. stock
to be awarded under the Plan. As of March 16, 1999, members of Vorys, Sater,
Seymour and Pease LLP and attorneys employed thereby, together with members of
their immediate families, beneficially owned an aggregate of 200 shares of Bob
Evans Farms, Inc. stock.
REPORTS TO SHAREHOLDERS
Our stockholders receive Annual Reports containing audited consolidated
financial statements with the report of our independent auditors.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements incorporated by reference in our Annual Report on Form 10-K
and our financials statements schedules included in our Annual Report on Form
10-K for the year ended April 24, 1998, as set forth in their reports, which are
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our financial statements and our financial statement schedules are
incorporated by reference in reliance on Ernst & Young LLP's reports, given
their authority as experts in accounting and auditing.
FORWARD LOOKING STATEMENTS
This prospectus contains or incorporates forward-looking statements.
You can identify these forward-looking statements by our use of the words
"believes", "anticipates", "expects", "may", "will", "intends", "estimates", and
similar expressions, whether in the negative or affirmative. Although we believe
that these forward-looking statements reflect our plans, intentions, and
expectations, we can give no assurance that we actually will achieve these
plans, intentions or expectations. Our actual results could differ materially
from the plans, intentions or expectations disclosed in the forward-looking
statements we make. We undertake no obligation to publicly update or revise any
forward-looking statement or any information contained in any forward-looking
statement. You are cautioned not to place any undue reliance on these
forward-looking statements, which speak only as of their dates.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the
issuance and distribution of the securities being registered. All of the amounts
shown are estimates, except the Commission registration fee.
Commission registration fee................................... $22,448.50
Printing...................................................... $ 17,000
Legal fees and expenses....................................... $ 5,000
Fees of accountants........................................... $ 5,000
Blue sky fees and expenses.................................... $ 500
Miscellaneous................................................. $ 2,000
----------
Total................................................ $51,948.50
ITEM 15. 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,
provided 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.
Article IX of the By-laws governs indemnification by the Registrant and
provides as follows:
Section 1. Each director or officer of the Corporation who was
or is made a party or is threatened to be made a party to or is
otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a director or officer 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 of
a partnership, joint venture, trust or other enterprise (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the
fullest extent permitted by Delaware Law against all expense, liability
and loss (including attorneys' fees, judgments, fines, taxes, penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however, that, except as
provided in Section 2 hereof with respect to proceedings to enforce
rights to indemnification, the Corporation shall indemnify any such
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indemnitee in connection with a proceeding (or part thereof) initiated
by such indemnitee only if such proceeding (or part thereof) was
authorized by the Board. The right to indemnification conferred in this
Section shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its
final disposition (hereinafter an "advancement of expenses"); provided,
however, that, if Delaware Law so requires, expenses incurred by an
indemnitee in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such
indemnitee, including, without limitation, service to an employee
benefit plan) shall be advanced only upon delivery to the Corporation
of an undertaking (hereinafter an "undertaking"), by or on behalf of
such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is
no further right to appeal (hereinafter a "final adjudication") that
such indemnitee is not entitled to be indemnified for such expenses
under this Section or otherwise.
Section 2. If a claim under Section 1 is not paid in full by
the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be
twenty days, the indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought
by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the indemnitee shall also be entitled to
be paid the expense of prosecuting or defending such suit. It shall be
a defense of the Corporation in any suit brought by an indemnitee to
enforce a right to indemnification hereunder (but not in a suit to
enforce a right to an advancement of expenses) that the indemnitee has
not met the applicable standard of conduct set forth in Delaware Law,
and a final adjudication that an indemnitee has not met such standard
shall entitle the Corporation to recover such expenses pursuant to the
terms of an undertaking. Neither the failure of the Corporation
(including the Board, independent legal counsel or its stockholders) to
have made a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set
forth in Delaware Law, nor an actual determination by the Corporation
(including the Board, independent legal counsel or its stockholders)
that the indemnitee has not met such applicable standard of conduct,
shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought
by the indemnitee, be a defense to such suit. In any suit brought by
the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses, the burden of proving that the indemnitee is
not entitled to be indemnified in any respect, or to such advancement
of expenses, under this Article IX or otherwise shall be on the
Corporation.
Section 3. The Corporation may, to the extent approved or
ratified from time to time by the Board, grant rights to
indemnification, and to the advancement of expenses to any employee or
agent of the Corporation to the fullest extent contemplated by this
Article IX with respect to the indemnification and advancement of
expenses of directors and officers of the Corporation.
Section 4. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other sections of this Article
IX shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled
under the Corporation's or any other corporation's Certificate of
Incorporation or By-laws, other charter documents, agreement, vote of
stockholders or disinterested directors or otherwise, or under Delaware
Law or any other applicable statute or regulation, both as to action in
such person's official capacity and as to action in another capacity
while holding such office.
Section 5. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article IX shall 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, except in any such case to the extent
that any grant of rights to indemnification and advancement of expenses
pursuant to Section 3 otherwise provides, and shall be binding upon
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any successor to the Corporation to the fullest extent permitted by
Delaware Law, as from time to time in effect.
Section 6. The Corporation may 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, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such
person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power to indemnify
such person against such liability under the provisions of this Article
IX or Delaware Law.
Section 7. For purposes of this Article, 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 a director or
officer of the Corporation "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
director or officer with respect to an employee benefit plan, its
participants, or beneficiaries. For purposes of determining whether a
person has met the applicable standard of conduct set forth in Delaware
Law, a person who acted in good faith and in a manner such person
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."
Section 8. In the event that any provision of this Article IX
is determined by a court of competent jurisdiction to require the
Corporation to do or to fail to do an act which is in violation of
applicable law, such provision shall be limited or modified in its
application to the minimum extent necessary to avoid a violation of
law, and, as so limited or modified, such provision and the balance of
this Article IX shall be enforceable by an indemnitee in accordance
with its terms.
Section 145 of the Delaware General Corporation Law governs
indemnification by a corporation and provides as follows:
(a) A corporation shall have power to indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in
good faith and in a manner such person reasonably believed to be in or
not opposed to the best interest of the corporation, and with respect
to any criminal action or proceeding, had no reasonable cause to
believe such person's 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 such person 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
such person`s conduct was unlawful.
(b) A corporation shall have power to indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the
fact that such person is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), actually and reasonably
incurred by such person in connection with the defense or settlement of
such action or suit if such person acted in good faith and in a manner
such person reasonably
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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 allocation 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 present or former director or officer
of a corporation has been successful on the merits or otherwise in
defense or any action, suit or proceeding referred to in subsections
(a) and (b), or in defense or any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection
therewith.
(d) Any indemnification under subsections (a) and (b) (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
present or former director, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of
conduct set forth in subsections (a) and (b). Such determination shall
be made, with respect to a person who is a director or officer at the
time of such determination, (1) by a majority vote of the directors who
are not parties to such action, suit or proceeding, even though less
than a quorum, or (2) by a committee of such directors designated by
majority vote of such directors, even though less than a quorum, or (3)
if there are not such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (4) 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
proceeding 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 such person is not entitled to be indemnified by the
corporation as authorized in this Section. Such expenses (including
attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if
any, as the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections 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 such person's 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 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 any liability asserted against such person and
incurred by such person in any such capacity, or arising out such
person's status as such, whether or not the corporation would have the
power to indemnify such person against such liability under the
provisions of 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 existence 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 corporation, 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 the provisions of
this Section with respect to the
II-4
<PAGE> 20
resulting or surviving corporation as such person 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 an 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 director, officer, employee or agent with
respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner
such person 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. (As amended by Ch.
120, Laws of 1997.)
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.
II-5
<PAGE> 21
ITEM 16. EXHIBITS.
Exhibit No. Description
- ----------- -----------
5 Opinion of Vorys, Sater, Seymour and Pease LLP
23(a) Consent of Ernst & Young LLP
23(b) Consent of Vorys, Sater, Seymour and Pease LLP (included in
Exhibit 5)
24 Powers of Attorney (included on signature page)
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act 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 statement.
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 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 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.
(h) 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 provisions described in Item 15 of
this Part II, 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
II-6
<PAGE> 22
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.
II-7
<PAGE> 23
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-3 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 10th day of March,
1999.
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 substitution 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.
II-8
<PAGE> 24
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Daniel E. Evans Chairman of the Board, Chief March 10, 1999
- -------------------------- Executive Officer, Secretary and
Daniel E. Evans Director (Principal Executive
Director)
/s/ Larry C. Corbin Director March 10, 1999
- --------------------------
Larry C. Corbin
/s/ E.W. (Bill) Ingram III Director March 10, 1999
- --------------------------
E.W. Bill Ingram III
/s/ Daniel A. Fronk Director March 10, 1999
- --------------------------
Daniel A. Fronk
/s/ Cheryl L. Krueger Director March 10, 1999
- --------------------------
Cheryl L. Krueger
/s/ G. Robert Lucas II Director March 10, 1999
- --------------------------
G. Robert Lucas II
/s/ Stewart K. Owens Director March 10, 1999
- --------------------------
Stewart K. Owens
/s/ Robert E. H. Rabold Director March 10, 1999
- --------------------------
Robert E. H. Rabold
/s/ Michael J. Gasser Director March 10, 1999
- --------------------------
Michael J. Gasser
/s/ Donald J. Radkoski Group Vice President - Finance March 10, 1999
- -------------------------- Group and Treasurer (Chief
Donald J. Radkoski Financial Officer and Chief
Accounting Officer)
</TABLE>
II-9
<PAGE> 25
<TABLE>
INDEX TO EXHIBITS
<CAPTION>
Exhibit No. Description Page No.
- ----------- ----------- --------
<S> <C> <C>
4(a) Certificate of Incorporated herein by reference
Incorporation of Registrant to Registrant's Annual Report on
(filed with the Delaware Form 10-K for its fiscal year
Secretary of State on Nov. ended April 24, 1987 (File No.
4, 1985) (in particular, 0--1667) [Exhibit 3(a)]
Articles FOURTH, TENTH,
TWELFTH AND
THIRTEENTH
4(b) Certificate of Amendment Incorporated herein by reference
of Certificate of to Registrant's Annual Report on
Incorporation of Registrant Form 10-K for its fiscal year
dated August 26, 1987 ended April 28, 1989 (File No.
(filed with the Delaware 0--1667) [Exhibit 3(b)]
Secretary of State on Sept.
4, 1997)
4(c) Certificate of Adoption of Incorporated herein by reference
Amendment to Certificate to Registrant's Annual Report on
of Incorporation of Form 10-K for its fiscal year
Registrant dated August 9, ended April 29, 1994 (File No.
1993 (filed with the 0--1667) [Exhibit 3(c)]
Delaware Secretary of
State on Aug. 10, 1993)
4(d) Restated Certificate of Incorporated herein by reference
Incorporation of Registrant to Exhibit 3(d) to the
reflecting amendments Registrant's Annual Report on
through Aug. 10, 1993. Form 10-K for its fiscal year
Note: filed for purposes of ended April 29, 1994 (File No.
SEC reporting compliance 0-1667)
only--this document has not
been filed with the
Secretary of State
4(d) By-Laws of Registrant (in Incorporated herein by reference
particular, Sections 5 and to Registrant's Annual Report on
8 of Article II, Sections 1 Form 10-K for its fiscal year
and 14 of Article III and ended April 24, 1987 (File No.
Article VIII) 0--1667) [Exhibit 3(b))
4(e) Amended By-Laws of the Incorporated herein by reference
Registrant. Note: filed to Registrant's Annual Report on
for purposes of SEC Form 10-K for its fiscal year
reporting compliance only. ended April 24, 1998 (File No.
0--1667) [Exhibit 3(f))
5 Opinion of Vorys, Sater, *Filed as Exhibit 5.
Seymour and Pease LLP
as to legality
23(a) Consent of Ernst & Young *Filed as Exhibit 23(a).
LLP
23(b) Consent of Vorys, Sater, *Filed as a part of Exhibit 5
Seymour and Pease LLP
24 Powers of Attorney *Included as a part of the
signature page to this S-3
Registration Statement.
</TABLE>
- -------
* Filed with this Registration Statement.
II-10
<PAGE> 1
EXHIBIT 5
(614) 464-6400
March 18, 1999
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 proceedings taken and proposed to be taken in connection
with the amendment to the Bob Evans Farms, Inc. Dividend Reinvestment and Stock
Purchase Plan (the "Plan") and the sale of shares of Common Stock, $.0l par
value (the "Common Shares"), of the Company pursuant to the Plan as described in
the Registration Statement on Form S-3 (the "Registration Statement") to be
filed with the Securities and Exchange Commission on March 19, 1999. The purpose
of the Registration Statement is to register 4,000,000 shares of common stock
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
ByLaws, as amended; 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 that the 4,000,000 Common Shares of the Company to be delivered
upon payment therefor in the manner and under the terms provided in the Plan and
in the Form S-3 (when it becomes effective) will, when sold, be validly issued,
fully paid and non-assessable.
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.
<PAGE> 2
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,
/s/ Vorys, Sater, Seymour and Pease LLP
---------------------------------------
VORYS, SATER, SEYMOUR AND PEASE LLP
<PAGE> 1
Exhibit 23(a)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
"Experts" in the Registration Statement (Form S-3) and related Prospectus of Bob
Evans Farms, Inc. for the registration of 4,000,000 shares of its common stock
pursuant to the Bob Evans Farms, Inc. Dividend Reinvestment and Stock Purchase
Plan and to the incorporation by reference therein of our report dated May 29,
1998 with respect to the consolidated financial statements of Bob Evans Farms,
Inc. incorporated by reference in its Annual Report (Form 10-K) for the year
ended April 24, 1998, and the related financial statement schedules included
therein, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
---------------------
Ernst & Young LLP
Columbus, Ohio
March 16, 1999
