<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 22, 1999
REGISTRATION NO. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1993
---------------------------
BOB EVANS FARMS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 31-4421866
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3776 South High Street, Columbus, Ohio 43207
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(Address of Principal Executive Offices) (Zip Code)
Bob Evans Farms, Inc.
1998 Stock Option and Incentive Plan
------------------------------------
(Full title of the plan)
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
---------------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
Proposed maximum
Title of securities to Amount to be offering price per Proposed maximum Amount of
be registered registered unit (1) aggregate offering price (1) registration fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 5,000,000 $20.4375 $102,187,500 $28,408.13
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the aggregate offering
price and the registration fee pursuant to Rules 457(c) promulgated
under the Securities Act of 1933, as amended, and computed on the basis
of $20.4375 per share, which is the average of the high and low sales
prices of the common stock as reported on The Nasdaq Stock Market on
March 16, 1999.
Index Exhibit begins at Page II-13.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
- -------------------------------------------------
The rules and regulations of the SEC allow us to incorporate certain
information about us and our financial condition by reference. This means that
we can disclose important information by referring to other documents that we
have filed with the SEC. The information incorporated by reference is considered
to be a part of this Registration Statement.
We have incorporated by reference into this Registration Statement 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 Registration Statement:
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.
Additional information may be obtained about any of the documents
incorporated by reference in this Registration Statement, excluding any exhibits
to those documents unless the exhibit is specifically incorporated by reference
in this Registration Statement, 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
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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 LLP, 52 East
Gay Street, P.O. Box 1008, Columbus, Ohio 43216-1008. As of March 22, 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 270 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, 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:
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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 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
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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
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otherwise provides, and shall be binding upon 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
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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 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.
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(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
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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 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.
Section 2 of the Bob Evans Farms, Inc. 1998 Stock Option and
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.
Item 7. Exemption from Registration Claimed.
- ---------------------------------------------
Not Applicable.
Item 8. Exhibits.
- ------------------
See the Index to Exhibits attached hereto at page II-13.
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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 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 this registration statement.
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(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.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
whether such indemnification by it is against public policy submit to a
court of appropriate jurisdiction the question as expressed in the Act
and will be governed by the final adjudication of such issue.
(Signatures begin on following page]
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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 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.
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<PAGE> 13
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 Chairman of the Board, Chief March 10, 1999
- ---------------------------- Executive Officer, Secretary
Daniel E. Evans and 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 - March 10, 1999
- ---------------------------- Finance Group and Treasurer
Donald J. Radkoski (Chief Financial Officer and
Chief Accounting Officer)
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INDEX TO EXHIBITS
-----------------
Exhibit No. Description Reference No.
- ----------- ----------- -------------
4(a) Certificate of Incorporation of Incorporated herein by
Registrant (filed with the Delaware reference to Registrant's
Secretary of State on Nov. 4, 1985) Annual Report on Form 10-K
(in particular, Articles FOURTH, for its fiscal year ended
TENTH, TWELFTH AND THIRTEENTH April 24, 1987 (File No.
0-1667) [Exhibit 3(a)]
4(b) Certificate of Amendment of Incorporated herein by
Certificate of Incorporation of reference to Registrant's
Registrant dated August 26, 1987 Annual Report on Form 10-K
(filed with the Delaware Secretary for its fiscal year ended
of State on Sept. 4, 1997) April 28, 1989 (File No.
0-1667) [Exhibit 3(b)]
4(c) Certificate of Adoption of Incorporated herein by
Amendment to Certificate of reference to Registrant's
Incorporation of Registrant dated Annual Report on Form 10-K
August 9, 1993 (filed with the for its fiscal year ended
Delaware Secretary of State on Aug. April 29, 1994 (File No.
10, 1993) 0-1667) [Exhibit 3(c)]
4(d) Restated Certificate of Incorporated herein by
Incorporation of Registrant reference to Exhibit 3(d)
reflecting amendments through Aug. to the Registrant's Annual
10, 1993. Note: filed for purposes Report on Form 10-K for
of SEC reporting compliance its fiscal year ended
only--this document has not been April 29, 1994 (File No.
filed with the Secretary of State 0-1667)
4(d) By-Laws of Registrant (in Incorporated herein by
particular, Sections 5 and 8 of reference to Registrant's
Article II, Sections 1 and 14 of Annual Report on Form 10-K
Article III and Article VIII) for its fiscal year ended
April 24, 1987 (File No.
0-1667) [Exhibit 3(b)]
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<PAGE> 15
Exhibit No. Description Reference No.
- ----------- ----------- -------------
4(e) Amended By-Laws of the Registrant. Incorporated herein by
Note: filed for purposes of SEC reference to Registrant's
reporting compliance only. Annual Report on Form 10-K
for its fiscal year ended
April 24, 1998 (File No.
0-1667) [Exhibit 3(f)]
4(f) Bob Evans Farms, Inc. 1998 Stock Filed as Exhibit 4(f)
Option and Incentive Plan
5 Opinion of Vorys, Sater, Seymour Filed as Exhibit 5
and Pease LLP as to legality
23(a) Consent of Ernst & Young LLP Filed as Exhibit 23(a)
23(b) Consent of Vorys, Sater, Seymour Filed as a part of Exhibit 5
and Pease LLP
24 Powers of Attorney Included in the signature
page of this Registration
Statement
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EXHIBIT 4(f)
BOB EVANS FARMS, INC. 1998 STOCK OPTION AND INCENTIVE PLAN
l. PURPOSE. The purpose of the Bob Evans Farms, Inc. 1998 Stock
Option and 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 the directors and
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 Compensation
Committee of the Board of Directors of the Company or such other committee
comprised entirely of "outside directors" within the meaning of Section 162(m)
of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations and rulings thereunder, as the Committee may from time to time
select. 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 Securities
Exchange Act of 1934, as amended (the "Exchange Act"), transactions under the
Plan are intended to comply with all applicable conditions of Rule l6b-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 the
directors and officers and other key employees of the Company or any of its
Subsidiaries, as the Committee in its sole discretion may designate from time to
time to receive Awards hereunder (the "Participants"). The Committee's
designation of a Participant in any year shall not require the
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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)
contributions of Participants to the profitability and development of the
Company and its Subsidiaries; and (d) other compensation provided to
Participants. During any calendar year, no Participant shall be granted Awards
under this Plan covering, in the aggregate, more than Three Hundred Thousand
(300,000) Common Shares and no Participant shall be granted stock options
covering, in the aggregate, more than Two Hundred and 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; (c) Stock Appreciation Rights; (d) Performance Share Awards; and (e)
Restricted Stock, all as described below in Sections 6, 7, 8, 9 and 10 hereof.
5. COMMON SHARES RESERVED UNDER THE PLAN. There is hereby
reserved for issuance under the Plan an aggregate of Five Million (5,000,000)
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 only be eligible for
grant to employees of the Company. 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 a Participant's employment for any reason other than Disability,
death, Retirement or for Cause, the right of the Participant 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 ninety (90) days after the
date of such termination of employment. In the event that a Participant is
Terminated for Cause, the right of the Participant to exercise an Incentive
Stock Option shall terminate immediately upon the termination of employment. In
the event of the termination of a Participant's employment due to Disability,
the right of the Participant (or, in the case of the death of the Participant
after his or her termination of employment due to Disability, his or her
successor in interest) to exercise an Incentive Stock Option shall terminate
upon the earlier to occur of (i) the end of the original term of the Incentive
Stock Option or (ii) one (l) year after the date of termination of employment.
If a Participant should die while employed, the right of the Participant's
successor in interest to exercise an Incentive Stock Option granted to the
Participant
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shall terminate upon the earlier to occur of (i) the end of the original term of
the Incentive Stock Option or (ii) one year after the Participant's last date of
employment. Upon Retirement of a Participant, the right of the Participant (or,
in the case of the death of the Participant after his or her termination of
employment due to Retirement, his or her successor in interest) to exercise an
Incentive Stock Option shall terminate upon the earlier of (i) ninety (90) days
after the date of such Retirement or (ii) the end of the original term of the
Incentive Stock Option; provided, however, that if the Participant or his or her
successor in interest does not exercise the Incentive Stock Option within ninety
(90) days after the date of such Retirement, the Incentive Stock Option shall
automatically convert into a Non-Qualified Stock Option upon the end of such
ninety (90) day period and the Participant's or his or her successor in
interest's right to exercise such converted Non-Qualified Stock Option shall
terminate at the end of the original term of the option. For purposes of this
Section 6, if a Participant 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. 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 and with terms
as determined by the Committee in its discretion. In the event of the
termination of a Participant's employment or service as a director for any
reason other than Retirement, Disability, death or for Cause, the right of the
Participant 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 ninety (90) days after the date of such termination of employment or
service. If a Participant is Terminated for Cause, the right of the Participant
to exercise a Non-Qualified Stock Option shall terminate immediately upon the
termination of employment or service. In the event of the termination of a
Participant's employment or service due to Disability or death, the right of the
Participant or his or her successor in interest to exercise a Non-Qualified
Stock Option shall terminate upon the earlier to occur of (i) the end of the
original term of the Non-Qualified Stock Option or (ii) one (l) year after the
date of termination of employment or service as a result of such Disability or
death. In the event of the termination of a Participant's employment or service
due to Retirement, the right of the Participant (or, in the case of the death of
the Participant after his or her termination of employment or service due to
Retirement, his or her successor in interest) to exercise a Non-
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Qualified Stock Option shall terminate upon the end of the original term of the
Non-Qualified Stock Option. For purposes of this Section 7, if a Participant
terminates his or her employment or service voluntarily, the date of termination
of employment or service 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
or service; in all other cases, the date of termination of employment or service
shall be the last day of employment or service.
8. STOCK APPRECIATION RIGHTS. The Committee may grant Stock
Appreciation Rights to Participants at the same time as such Participants are
awarded Stock Options under the Plan. Such Stock Appreciation Rights shall be
evidenced by an agreement in such form as the Committee shall from time to time
approve. Such agreements shall comply with, and be subject to, the following
terms and conditions:
(a) Grant. Each Stock Appreciation Right shall relate to
a specific Stock Option under the Plan and shall be awarded to a Participant
concurrently with the grant of such Stock Option. The number of Stock
Appreciation Rights granted to a Participant shall be equal to a proportion of
the number of Common Shares that the Participant is entitled to receive pursuant
to the Plan.
(b) Grant of Parallel Award. Since each Stock
Appreciation Right is parallel to a Stock Option, the exercise of all or a
portion of the Stock Options shall cause an equal exercise of the same
proportion of Stock Appreciation Rights granted under the Plan. A Stock
Appreciation Right can only be exercisable in conjunction with the exercise of
the parallel Stock Option.
(c) Calculation of Appreciation. Each Stock Appreciation
Right shall entitle a Participant to the excess of the Fair Market Value of a
Common Share on the exercise date over the Fair Market Value of a Common Share
on the date the Stock Appreciation Right was granted.
(d) Payment of Appreciation. The total appreciation
available to a Participant from an exercise of Stock Appreciation Rights shall
be paid in a manner determined by the Committee.
(e) Exercise Limitations. A Participant may exercise a
Stock Appreciation Right only in conjunction with the exercise of the Stock
Option to which the Stock Appreciation Right is attached. Stock Appreciation
Rights may be exercised only at such times and by such persons as may exercise
Stock Options under the Plan.
9. 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:
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(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 Performance 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 completion 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 Committee 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 or remain in the service of the Company or Subsidiary as a director
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.
(e) Compliance With Code Section 162(m). Any Performance
Share Awards granted under this Plan shall satisfy the requirements of the
applicable provisions of Section 162(m) of the Code as "qualified
performance-based compensation."
10. RESTRICTED STOCK AWARDS. To the extent not inconsistent with
the terms of this Plan, the Committee may grant Restricted Stock Awards to
Participants. Restricted Stock Awards will consist of Common Shares transferred
to a Participant who is eligible to participate in the Plan without other
payment therefor (other than the payment of the par value of such Common Shares
if required by applicable law) as additional compensation for his or her
services to the Company or one of its Subsidiaries. Restricted Stock Awards
shall be subject to such
<PAGE> 6
terms and conditions as the Committee determines appropriate including, without
limitation, restrictions on the sale or other disposition of such Common Shares
and rights of the Company to reacquire such Common Shares upon termination of
the Participant's employment or service as a director with the Company within
specified periods. Subject to such other restrictions as are imposed by the
Committee and federal and state securities laws, the Common Shares covered by a
Restricted Stock Award granted to a Participant under the Plan may be sold or
otherwise disposed of only after six (6) months from the grant date of the
Award.
11. NONTRANSFERABILITY. Each Stock Option, Performance Share
Award and Restricted Stock 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 Participant's guardian or legal representative.
12. 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 appropriate to comply with federal or
state securities laws and stock exchange requirements and understandings or
conditions as to the Participant's employment or service as a director 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 a
Participant does not purchase in any one option year the full number of Common
Shares to which he or she is then entitled, the Participant 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.
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13. 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 canceled, 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 l6b-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 outstanding under this Plan to be exercisable, whether or not such
Stock Options are then otherwise exercisable.
l4. 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 indemnified
to its satisfaction.
l5. DEFINITIONS.
(a) Award. The term "Award" means an award or grant of a
Stock Option, Stock Appreciation Right, Performance Share or Restricted Stock
made to a Participant under Section 6, 7, 8, 9 or 10 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 corporation,
in which the Company is not the continuing or surviving
corporation or pursuant to which any Common Shares would
be converted into cash, securities 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
<PAGE> 8
(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 termination 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 a Participant unable or incompetent to carry out the job
responsibilities which such Participant held or the tasks to which such
Participant 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
<PAGE> 9
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" shall have the
meaning set forth in Section 3 of the Plan..
(n) Performance Goals. The term "Performance Goals" shall
have the meaning set forth in Section 9 of the Plan.
(o) Performance Period. The term "Performance Period"
shall have the meaning set forth in Section 9 of the Plan.
(p) Performance Share Award. The term "Performance Share
Award" shall have the meaning set forth in Section 9 of the Plan.
(q) Plan. The "Plan" means the Bob Evans Farms, Inc. 1998
Stock Option and Incentive Plan, as set forth herein, and as it may be hereafter
amended and from time to time in effect.
(r) Restricted Stock. The term Restricted Stock shall
have meaning described in Section 10 of this Plan.
(s) Retirement. The term "Retirement" for all purposes of
the Plan shall mean voluntary separation from employment or termination of
service as a director 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.
(t) Stock Appreciation Right. The term Stock Appreciation
Right or "SAR" shall mean a right to receive cash in an amount equal to the
excess of the Fair Market Value of a Common Share on the exercise date of the
SAR over the Fair Market Value of a Common Share on the date the SAR is granted
pursuant to the provisions of the Plan.
(u) Stock Option. The term "Stock Option" means any
Incentive Stock Option or Non-Qualified Stock Option granted under the Plan.
(v) Stock Option Awards. The term "Stock Option Awards"
means any grant of a Stock Option to a Participant under the Plan.
<PAGE> 10
(w) 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.
(x) 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.
l6. 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) 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. In
addition, upon Retirement of any Participant, all Stock Options held by such
retiring Participant shall immediately vest and become exercisable.
<PAGE> 11
17. 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 l6b-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 l6b-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
l6b-3.
18. NO RIGHT TO EMPLOYMENT. Neither the adoption of the Plan nor
the granting of any Awards hereunder shall confer upon any employee or director
of the Company or any Subsidiary any right to continued employment or service
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 or service of any of its employees or directors at any time, with or
without cause.
19. 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.
20. 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 and directors for
their service with the Company and its Subsidiaries.
<PAGE> 12
21. 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.
22. 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.
23. COST OF THE PLAN. The costs and expenses of administering the
Plan shall be borne by the Company.
24. 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.
25. STOCKHOLDER APPROVAL. The Plan was adopted by the Board of
Directors of the Company on May 1, 1998. 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.
<PAGE> 1
Exhibit 5
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(614) 464-6400
March 22, 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 institution of the Bob Evans Farms, Inc. 1998 Stock Option
and Incentive Plan (the "Plan"), the granting of options to purchase shares of
common stock, $.01 par value, of the Company pursuant to the Plan, the granting
of stock appreciation rights, restricted stock and performance share awards
("Awards") under the Plan and the issuance and sale of shares of common stock
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 March 22, 1999. The purpose of
the Registration Statement is to register 5,000,000 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 By-Laws,
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.
<PAGE> 2
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 other Awards covering not more than 5,000,000
shares of common stock have been granted to eligible employees of the Company
and its subsidiaries in accordance with the terms of the Plan, such options and
other Awards will be legally constituted and binding obligations of the Company
in accordance with their terms.
2. After 5,000,000 shares of common stock 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 other
Awards granted under the Plan, in accordance with the terms of the Plan, said
shares of common stock 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 shares of common stock 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,
/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 incorporation by reference in this Registration
Statement (Form S-8) of Bob Evans Farms, Inc. pertaining to the registration of
5,000,000 shares of its common stock pursuant to the Bob Evans Farms, Inc. 1998
Stock Option and Incentive Plan 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
