Registration No. 33-
As filed with the Securities and Exchange Commission on May 13, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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HERSHEY FOODS CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 23-0691590
(State of Incorporation) (I.R.S. Employer ID Number)
100 Crystal A Drive
Hershey, Pennsylvania 17033
(Address of Principal Executive Offices) (Zip Code)
HERSHEY FOODS CORPORATION
KEY EMPLOYEE INCENTIVE PLAN
(Full Title of the Plan)
Robert M. Reese
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
HERSHEY FOODS CORPORATION
100 Crystal A Drive
Hershey, Pennsylvania 17033
(717) 534-4001
(Name, Address and Telephone Number of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Title of Amount Proposed Proposed Maxi- Amount of
Securities to to be Maximum Offering mum Aggregate Registration
be Registered Registered Price Per Share(1) Offering Price(1) Fee(1)
- -----------------------------------------------------------------------------------------------
Common Stock 6,000,000 $70.6875 $424,125,000 $125,116.88
par value $1.00 shares(2)
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(1) Estimated solely for calculation of the registration fee pursuant to Rule
457 under the Securities Act of 1933. Based upon the average of the high and low
sale prices of the Common Stock as reported on the New York Stock Exchange
Composite Tape on May 11, 1998.
(2) Subject to anti-dilution increases permitted by Rule 416.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I have been
or will be sent or given to employees as specified by Rule 428(b)(l). Such
documents are not filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as a prospectus
or a prospectus supplement pursuant to Rule 424. These documents and the
documents incorporated by reference in this Registration Statement pursuant to
Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act of 1933, as
amended (the "Securities Act").
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Hershey
Foods Corporation (the "Corporation") are incorporated herein by reference:
(1) The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1997;
(2) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end
of the fiscal year covered by the Annual Report on Form 10-K referred to in (1)
above; and
(3) The description of the Corporation's Common Stock, par value $1.00
per share, contained on pages A-4 and A-26 to A-28 of Exhibit 13 of the
Corporation's Annual Report on Form 10-K for the year ended December 31, 1997.
All documents filed hereafter by the Corporation pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES
The description of the Corporation's Common Stock is incorporated by
reference into this Registration Statement pursuant to Item 3 above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
BY-LAWS; DELAWARE LAW. Section 145 of the Delaware General
Corporation Law (the "DGCL") empowers a Delaware corporation to indemnify any
persons who are, or are threatened to be made, parties to any threatened,
pending or completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was an officer or
director of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, provided that
such person acted in good faith and in a manner he reasonably believed to be in
or not opposed to the corporation's best interests, and, for criminal
proceedings, had no reasonable cause to believe his conduct was illegal. A
Delaware corporation may indemnify officers and directors against expenses
(including attorneys' fees) in connection with the defense or settlement of an
action by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses
(including attorneys' fees) which such officer or director actually and
reasonably incurred in connection therewith.
Section 102(b) (7) of the DGCL provides that a Delaware corporation may
eliminate or limit the personal liability of a director to a Delaware
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision shall not eliminate or limit
the liability of a director (i) for any breach of the director's duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not in good
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faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the DGCL relating to the unlawful payment of a
dividend or an unlawful stock purchase or redemption or (iv) for any transaction
from which the director derived an improper personal benefit.
Article VI of the By-laws of the Corporation provides that the Corporation
shall indemnify, in the manner and to the fullest extent permitted by the DGCL,
any person who is, was or is threatened to be made a defending party to any
proceeding (including any pending or threatened civil or criminal action, suit,
arbitration, alternate dispute resolution mechanism, investigation or
administrative hearing) by reason of the fact that such person is or was a
director or officer of the Corporation or is or was serving, at the request of
the Corporation, in such capacity for another enterprise. The Corporation will
pay in advance of final disposition all expenses incurred by a director in
defending a proceeding which is subject to indemnification. The Corporation has
the burden of proving that a director was not entitled to indemnification.
INSURANCE. The Corporation's directors and officers are insured
against losses arising from any claim against them as such for wrongful acts or
omissions, subject to certain limitations.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
23 - Consent of Independent Public Accountants (filed
herewith).
24 - Powers of Attorney of directors and certain officers of
the Corporation (included on signature page of this
Registration Statement).
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;
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(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424 (b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this 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 by
the Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, 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, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
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Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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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 Hershey, state of Pennsylvania, on this 13th day of
May, 1998.
HERSHEY FOODS CORPORATION
By /s/ W.F. Christ
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W. F. Christ
Senior Vice President,
Chief Financial Officer
and Treasurer
EXHIBIT 24
POWER OF ATTORNEY
Know All Men By These Presents, that each person whose signature appears
below constitutes and appoints K. L. Wolfe, J. P. Viviano, W. F. Christ and R.
M. Reese, and each of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any or
all amendments (including any post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, and each of them, 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 or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/K.L. WOLFE Chairman of the Board and May 13, 1998
- -------------------- Chief Executive Officer
(K. L. Wolfe) and Director
/s/J.P. VIVIANO President and Chief May 13, 1998
- -------------------- Operating Officer and
(J. P. Viviano) Director
/s/W.F. CHRIST Senior Vice President, May 13, 1998
- -------------------- Chief Financial Officer
(W. F. Christ) and Treasurer
/s/D.W. TACKA Controller May 13, 1998
- -------------------- and Chief Accounting
(D. W. Tacka) Officer
/s/W.H. ALEXANDER Director May 13, 1998
- --------------------
(W. H. Alexander)
/s/R.H. CAMPBELL Director May 13, 1998
- --------------------
(R. H. Campbell)
/s/C.M. EVARTS Director May 13, 1998
- --------------------
(C. M. Evarts)
/s/B. GUITON HILL Director May 13, 1998
- --------------------
(B. Guiton Hill)
/s/J.C. JAMISON Director May 13, 1998
- --------------------
(J. C. Jamison)
/s/M.J. McDONALD Director May 13, 1998
- --------------------
(M. J. McDonald)
/s/J.M. PIETRUSKI Director May 13, 1998
- --------------------
(J.M. Pietruski)
/s/V.A. SARNI Director May 13, 1998
- --------------------
(V. A. Sarni)
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INDEX TO EXHIBITS
Exhibit Description
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23 - Consent of Independent Public Accountants (filed
herewith).
24 - Power of Attorney (included on signature page).
EXHIBIT 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
report dated January 28, 1998 included in and incorporated by reference in
Hershey Foods Corporation's Form 10-K for the year ended December 31, 1997 and
to all references to our Firm included in this Registration Statement.
ARTHUR ANDERSEN, LLP
May 8, 1998
New York, New York
