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As filed with the Securities and Exchange Commission on September 30, 1997
Registration No. 333-____________
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UNITED STATES
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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WORTHINGTON FOODS, INC.
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(Exact name of registrant as specified in its charter)
Ohio 31-0733120
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
900 Proprietors Road, Worthington, Ohio 43085
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(Address of Principal Executive Offices) (Zip Code)
Worthington Foods
Tax Savings and Profit Sharing Plan (October 1, 1997 Restatement)
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(Full title of the plan)
Copy to:
Dale E. Twomley Elizabeth Turrell Farrar, Esq.
Worthington Foods, Inc. Vorys, Sater, Seymour and Pease
900 Proprietors Road 52 East Gay Street
Worthington, Ohio 43085 P.O. Box 1008
- --------------------------------------- Columbus, Ohio 43216-1008
(Name and address of agent for service)
(614) 885-9511
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(Telephone number, including area code, of agent for service)
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Page 1 of 32 Pages.
Index to Exhibits at Page II-17 (Page 19 as sequentially numbered).
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[Continuation of Facing Page]
<TABLE>
<CAPTION>
Calculation of Registration Fee
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered (1) registered per unit (2) price (2) fee
- ----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares, 420,000 $23.25 $9,765,000 $2,960
Without Par Value (3)
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</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the aggregate offering price
and the registration fee pursuant to Rules 457(c) and 457(h) promulgated under
the Securities Act of 1933, as amended, and computed on the basis of $23.25,
which price is the average of the high and low sales prices of the Common
Shares as reported on The Nasdaq National Market on September 26, 1997.
(3) This Registration Statement also covers related Preferred Share Purchase
Rights (the "Rights") which evidence the right to purchase, under certain
conditions, six one-thousandths of one Series A Junior Participating Preferred
Share, without par value. Registrant is required to deliver one Right with each
Common Share that becomes outstanding until the "distribution date" for the
Rights, at which date the Rights will commence trading separately from the
Common Shares.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The Annual Report on Form 10-K for the fiscal year ended
December 31, 1996 of Worthington Foods, Inc. (the "Registrant") and all other
reports filed with the Securities and Exchange Commission (the "Commission")
pursuant to the requirements of Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), since that date are
hereby incorporated by reference.
The description of the Registrant's Common Shares contained in
Amendment No. 1 on Form 8 to the Registrant's Registration Statement on Form 8-A
(File No. 0-19887) filed with the Commission on April 7, 1992, which
incorporates by reference the description of the Registrant's Common Shares
contained in Amendment No. 1 to the Registrant's Registration Statement on Form
S-1 (Registration No. 33-45945) filed with the Commission on April 3, 1992; and
the description of the Preferred Share Purchase Rights of the Registrant (the
"Rights") contained in the Registrant's Current Reports on Form 8-K filed with
the Commission on June 14, 1995, December 12, 1995 and October 31, 1996 (File
No. 0-19887), and all amendments or reports filed by the Registrant with the
Commission subsequent to the date hereof for the purpose of updating such
descriptions, are hereby incorporated by reference.
Any definitive proxy statement or information statement filed
pursuant to Section 14 of the Exchange Act and all documents which may be filed
with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act
subsequent to the date hereof and prior to the completion of the offering
contemplated hereby, shall also be deemed to be incorporated herein by reference
and to be made a part hereof from the date of filing of such documents;
provided, however, that no report of the Compensation Committee of the Board of
Directors of the Registrant on executive compensation and no performance graph
included in any proxy statement or information statement filed pursuant to
Section 14 of the Exchange Act shall be deemed to be incorporated herein by
reference.
Item 4. Description of Securities.
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Not Applicable.
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Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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ARTICLE FIVE of the Amended Regulations of the Registrant
governs the indemnification of officers and directors of the Registrant.
ARTICLE FIVE provides:
Section 5.01. Mandatory Indemnification. The corporation shall
indemnify any officer or director of the corporation 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 (including, without limitation, any
action threatened or instituted by or in the right of the corporation),
by reason of the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee or agent of
another corporation (domestic or foreign, nonprofit or for profit),
partnership, joint venture, trust or other enterprise, against expenses
(including, without limitation, attorneys' fees, filing fees, court
reporters' fees and transcript costs), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any criminal
action or proceeding, he had no reasonable cause to believe his conduct
was unlawful. A person claiming indemnification under this Section 5.01
shall be presumed, in respect of any act or omission giving rise to
such claim for indemnification, to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal matter,
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to have had no reasonable cause to believe his conduct was unlawful,
and the termination of any action, suit or proceeding by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, rebut such presumption.
Section 5.02. Court-Approved Indemnification. Anything
contained in the Regulations or elsewhere to the contrary
notwithstanding:
(A) the corporation shall not indemnify any officer or
director of the corporation who was a party to any completed action or
suit instituted by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, trustee,
officer, employee or agent of another corporation (domestic or foreign,
nonprofit or for profit), partnership, joint venture, trust or other
enterprise, in respect of any claim, issue or matter asserted in such
action or suit as to which he shall have been adjudged to be liable for
gross negligence or misconduct (other than negligence) in the
performance of his duty to the corporation unless and only to the
extent that the Court of Common Pleas of Franklin County, Ohio or the
court in which such action or suit was brought shall determine upon
application that, despite such adjudication of liability, and in view
of all the circumstances of the case, he is fairly and reasonably
entitled to such indemnity as such Court of Common Pleas or such other
court shall deem proper; and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as
contemplated by this Section 5.02.
Section 5.03. Indemnification for Expenses. Anything contained
in the Regulations or elsewhere to the contrary notwithstanding, to the
extent that an officer or director of the corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 5.01, or in defense of any claim,
issue or matter therein, he shall be promptly indemnified by the
corporation against expenses (including, without limitation, attorneys'
fees, filing fees, court reporters' fees and transcript
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costs) actually and reasonably incurred by him in connection with the
action, suit or proceeding.
Section 5.04. Determination Required. Any indemnification
required under Section 5.01 and not precluded under Section 5.02 shall
be made by the corporation only upon a determination that such
indemnification of the officer or director is proper in the
circumstances because he has met the applicable standard of conduct set
forth in Section 5.01. Such determination may be made only (A) by a
majority vote of a quorum consisting of directors of the corporation
who were not and are not parties to, or threatened with, any such
action, suit or proceeding, or (B) if such a quorum is not obtainable
or if a majority of a quorum of disinterested directors so directs, in
a written opinion by independent legal counsel other than an attorney,
or a firm having associated with it an attorney, who has been retained
by or who has performed services for the corporation, or any person to
be indemnified, within the past five years, or (C) by the shareholders,
or (D) by the Court of Common Pleas of Franklin County, Ohio or (if the
corporation is a party thereto) the court in which such action, suit or
proceeding was brought, if any; any such determination may be made by a
court under division (D) of this Section 5.04 at any time (including,
without limitation, any time before, during or after the time when any
such determination may be requested of, be under consideration by or
have been denied or disregarded by the disinterested directors under
division (A) or by independent legal counsel under division (B) or by
the shareholders under division (C) of this Section 5.04); and no
failure for any reason to make any such determination, by the
disinterested directors under division (A) or by independent legal
counsel under division (B) or by shareholders under division (C) of
this Section 5.04 shall be evidence in rebuttal of the presumption
recited in Section 5.01. Any determination made by the disinterested
directors under division (A) or by independent legal counsel under
division (B) of this Section 5.04 to make indemnification in respect of
any claim, issue or matter asserted in an action or suit threatened or
brought by or in the right of the corporation shall be promptly
communicated to the person who threatened or brought such action or
suit, and within ten (10) days after receipt of such notification such
person shall have the right to petition the Court of Common Pleas of
Franklin County, Ohio or the court in which such action
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or suit was brought, if any, to review the reasonableness of such
determination.
Section 5.05. Advances for Expenses. Expenses (including,
without limitation, attorneys' fees, filing fees, court reporters' fees
and transcript costs) incurred in defending any action, suit or
proceeding referred to in Section 5.01 shall be paid by the corporation
in advance of the final disposition of such action, suit or proceeding
to or on behalf of the officer or director promptly as such expenses
are incurred by him, but only if such officer or director shall first
agree, in writing, to repay all amounts so paid in respect of any
claim, issue or other matter asserted in such action, suit or
proceeding in defense of which he shall not have been successful on the
merits or otherwise;
(A) if it is ultimately determined as provided in Section 5.04
that he is not entitled to be indemnified by the corporation as
provided under Section 5.01; or
(B) if, in respect of any claim, issue or other matter
asserted by or in the right of the corporation in such action or suit,
he shall have been adjudged to be liable for gross negligence or
misconduct (other than negligence) in the performance of his duty to
the corporation, unless and only to the extent that the Court of Common
Pleas of Franklin County, Ohio or the court in which such action or
suit was brought shall determine upon application that, despite such
adjudication of liability, and in view of all the circumstances, he is
fairly and reasonably entitled to all or part of such indemnification.
Section 5.06. Article FIVE Not Exclusive. The indemnification
authorized by this Article FIVE shall not be exclusive of, and shall be
in addition to, any other rights granted to any person seeking
indemnification under the Articles or the Regulations or any agreement,
vote of shareholders or disinterested directors, or otherwise, both as
to action in his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has
ceased to be an officer or director of the corporation and shall inure
to the benefit of the heirs, executors, and administrators of such a
person.
Section 5.07. Insurance. The corporation may purchase and
maintain insurance or furnish similar
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protection, including but not limited to, trust funds, letters of
credit, or self-insurance on behalf of or for 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, trustee,
officer, employee or agent of another corporation (domestic or foreign,
nonprofit or for profit), partnership, joint venture, trust or other
enterprise, against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether
or not the corporation would have the obligation or the power to
indemnify him against such liability under the provisions of this
Article FIVE. Insurance may be purchased from or maintained with a
person in which the corporation has a financial interest.
Section 5.08. Certain Definitions. For purposes of this
Article FIVE, and as examples and not by way of limitation:
(A) A person claiming indemnification under this Article FIVE
shall be deemed to have been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section 5.01,
or in defense of any claim, issue or other matter therein, if such
action, suit or proceeding shall be terminated as to such person, with
or without prejudice, without the entry of a judgment or order against
him, without a conviction of him, without the imposition of a fine upon
him and without his payment or agreement to pay any amount in
settlement thereof (whether or not any such termination is based upon a
judicial or other determination of the lack of merit of the claims made
against him or otherwise results in a vindication of him); and
(B) References to an "other enterprise" shall include employee
benefit plans; references to a "fine" 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 he reasonably believed to be in the best
interests of the participants and beneficiaries of an
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employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" within the meaning of
that term as used in this Article FIVE.
Section 5.09. Venue. Any action, suit or proceeding to
determine a claim for indemnification under this Article FIVE may be
maintained by the person claiming such indemnification, or by the
corporation, in the Court of Common Pleas of Franklin County, Ohio. The
corporation and (by claiming such indemnification) each such person
consent to the exercise of jurisdiction over its or his person by the
Court of Common Pleas of Franklin County, Ohio in any such action, suit
or proceeding.
Division (E) of Section 1701.13 of the Ohio Revised Code
addresses indemnification by an Ohio corporation and provides as follows:
(E)(1) A corporation may indemnify or agree 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 he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees,
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if
he had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
settlement, or 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 he reasonably believed to be
in or not opposed to the best interests of the corporation, and, with
respect to any criminal action
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or proceeding, he had reasonable cause to believe that his conduct was
unlawful.
(2) A corporation may indemnify or agree 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 he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees, actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be
made in respect of any of the following:
(a) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the performance
of his duty to the corporation unless, and only to the extent that, the
court of common pleas or the court in which such action or suit was
brought determines, upon application, 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
as the court of common pleas or such other court shall deem proper;
(b) Any action or suit in which the only liability asserted
against a director is pursuant to section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, or in defense of any claim,
issue, or matter therein, he shall be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him in
connection with the action, suit, or proceeding.
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(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation
only as authorized in the specific case, upon a determination that
indemnification of the director, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in division (E)(1) or (2) of
this section. Such determination shall be made as follows:
(a) By a majority vote of a quorum consisting of directors of
the indemnifying corporation who were not and are not parties to or
threatened with the action, suit, or proceeding referred to in division
(E)(1) or (2) of this section;
(b) If the quorum described in division (E)(4)(a) of this
section is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, in a written opinion by independent
legal counsel other than an attorney, or a firm having associated with
it an attorney, who has been retained by or who has performed services
for the corporation or any person to be indemnified within the past
five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the
action, suit, or proceeding referred to in division (E)(1) or (2) of
this section was brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or independent legal counsel under division
(E)(4)(b) of this section shall be promptly communicated to the person
who threatened or brought the action or suit by or in the right of the
corporation under division (E)(2) of this section, and, within ten days
after receipt of such notification, such person shall have the right to
petition the court of common pleas or the court in which such action or
suit was brought to review the reasonableness of such determination.
(5)(a) Unless at the time of a director's act or omission that
is the subject of an action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, the articles or the regulations
of a corporation state, by specific reference to this division, that
the provisions of this division do not
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apply to the corporation and unless the only liability asserted against
a director in an action, suit, or proceeding referred to in division
(E)(1)or (2) of this section is pursuant to section 1701.95 of the
Revised Code, expenses, including attorney's fees, incurred by a
director in defending the action, suit, or proceeding shall be paid by
the corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding upon receipt of an
undertaking by or on behalf of the director in which he agrees to do
both of the following:
(i) Repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or
failure to act involved an act or omission undertaken with deliberate
intent to cause injury to the corporation or undertaken with reckless
disregard for the best interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning the
action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a
director, trustee, officer, employee, member, manager, or agent in
defending any action, suit, or proceeding referred to in division
(E)(1) or (2) of this section, may be paid by the corporation as they
are incurred, in advance of the final disposition of the action, suit,
or proceeding, as authorized by the directors in the specific case,
upon receipt of an undertaking by or on behalf of the director,
trustee, officer, employee, member, manager, or agent to repay such
amount, if it ultimately is determined that he is not entitled to be
indemnified by the corporation.
(6) The indemnification authorized by this section shall not
be exclusive of, and shall be in addition to, any other rights granted
to those seeking indemnification under the articles, the regulations,
any agreement, a vote of shareholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to
action in another capacity while holding their offices or positions,
and shall continue as to a person who has ceased to be a director,
trustee, officer, employee, member, manager, or agent and shall inure
to the benefit of the heirs, executors, and administrators of such a
person.
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(7) A corporation may purchase and maintain insurance or
furnish similar protection, including, but not limited to, trust funds,
letters of credit, or self-insurance, on behalf of or for 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, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify
him against such liability under this section. Insurance may be
purchased from or maintained with a person in which the corporation has
a financial interest.
(8) The authority of a corporation to indemnify persons
pursuant to division (E)(1) or (2) of this section does not limit the
payment of expenses as they are incurred, indemnification, insurance,
or other protection that may be provided pursuant to divisions (E)(5),
(6), and (7) of this section. Divisions (E)(1) and (2) of this section
do not create any obligation to repay or return payments made by the
corporation pursuant to division (E)(5), (6), or (7).
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger and the
new or surviving corporation, so that any person who is or was a
director, officer, employee, trustee, member, manager, or agent of such
a constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee, member,
manager or agent of another corporation, domestic or foreign, nonprofit
or for profit, a limited liability company, or a partnership, joint
venture, trust, or other enterprise, shall stand in the same position
under this section with respect to the new or surviving corporation as
he would if he had served the new or surviving corporation in the same
capacity.
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.
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Section 18.5 of the Worthington Foods Tax Savings and Profit
Sharing Plan (October 1, 1997 Restatement) (the "Plan") governs indemnification
of certain persons in connection with the operation of the Plan and provides as
follows:
In addition to whatever rights of indemnification
the members of the board of directors of the Sponsor
[Worthington Foods, Inc.] or any employee or
employees of the Sponsor to whom any power,
authority, or responsibility is delegated pursuant
to Section 18.2, may be entitled under the articles
of incorporation or regulations of the Sponsor,
under any provision of law, or under any other
agreement, the Sponsor shall satisfy any liability
actually and reasonably incurred by any such person
or persons, including expenses, attorneys' fees,
judgments, fines, and amounts paid in settlement
(other than amounts paid in settlement not approved
by the Sponsor), in connection with any threatened,
pending or completed action, suit, or proceeding
which is related to the exercising or failure to
exercise by such person or persons of any of the
powers, authority, responsibilities, or discretion
as provided under the Plan, or reasonably believed
by such person or persons to be provided hereunder,
and any action taken by such person or persons in
connection therewith, unless the same is judicially
determined to be the result of such person or
persons' gross negligence or willful misconduct.
Item 7. Exemption from Registration Claimed.
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Not Applicable.
Item 8. Exhibits.
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See the Index to Exhibits attached hereto at page II-17.
The undersigned Registrant hereby undertakes to submit the
Plan, or cause the Plan to be submitted, to the Internal Revenue Service (the
"IRS") in a timely manner and will make all changes required by the IRS in order
to qualify the Plan.
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Item 9. Undertakings.
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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.
(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
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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 (and each filing of an
annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934 on behalf of the Worthington Foods Tax Savings and Profit
Sharing Plan (October 1, 1997 Restatement)) 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 provisions described in Item
6 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 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-14
<PAGE> 17
SIGNATURES
----------
The Registrant. 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 Worthington, State of Ohio, on the
30th day of September, 1997.
WORTHINGTON FOODS, INC.
By: /s/ WILLIAM T. KIRKWOOD
------------------------------
William T. Kirkwood, Executive
Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities indicated on the 30th day of September, 1997.
Signature Title
- --------- -----
Allan R. Buller* Chairman of the Board,
- ------------------------- Treasurer and Director
Allan R. Buller
Dale E. Twomley* President, Chief Executive
- ------------------------- Officer and Director
Dale E. Twomley
William T. Kirkwood* Executive Vice President and
- ------------------------- Chief Financial Officer
William T. Kirkwood (Principal Financial Officer
and Principal Accounting
Officer)
*By Power of Attorney
/s/ William T. Kirkwood
- -------------------------
William T. Kirkwood
(Attorney-in-Fact)
II-15
<PAGE> 18
Roger D. Blackwell* Director
- -------------------------
Roger D. Blackwell
Emil J. Brolick* Director
- -------------------------
Emil J. Brolick
George T. Harding, IV* Director
- -------------------------
George T. Harding, IV
Donald G. Orrick* Director
- -------------------------
Donald G. Orrick
William D. Parker* Director
- -------------------------
William D. Parker
Francisco J. Perez* Director
- -------------------------
Francisco J. Perez
Donald B. Shackleford* Director
- -------------------------
Donald B. Shackleford
*By Power of Attorney
/s/ William T. Kirkwood
- -------------------------
William T. Kirkwood
(Attorney-in-Fact)
The Plan. Pursuant to the requirements of the Securities Act
of 1933, the trustees (or other persons who administer the employee benefit
plan) have duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Worthington, State
of Ohio, on September 30, 1997.
WORTHINGTON FOODS TAX SAVINGS AND
PROFIT SHARING PLAN (October 1,
1997 Restatement)
By /s/ Nancy J. Minella
----------------------------------
Nancy J. Minella, Director
of Human Resources/Plan
Administrator
II-16
<PAGE> 19
INDEX TO EXHIBITS
-----------------
Exhibit No. Description Page No.
- ----------- ----------- --------
23 Consent of Ernst & Young LLP Pages 20 and 21
24 Powers of Attorney Pages 22 through 32
II-17
<PAGE> 1
Exhibit 23
Consent of Ernst & Young LLP
20
<PAGE> 2
EXHIBIT 23
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Worthington Foods, Inc. Tax Savings and Profit Sharing
Plan of our report dated January 31, 1997, with respect to the consolidated
financial statements of Worthington Foods, Inc. incorporated by reference in its
Annual Report (Form 10-K) for the year ended December 31, 1996, and the related
financial statement schedule included therein, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Columbus, Ohio
September 29, 1997
<PAGE> 1
Exhibit 24
Powers of Attorney
22
<PAGE> 2
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the WORTHINGTON FOODS TAX SAVINGS AND PROFIT SHARING PLAN
(OCTOBER 1, 1997 RESTATEMENT), hereby constitutes and appoints DALE E. TWOMLEY
and WILLIAM T. KIRKWOOD, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
such Registration Statement and any and all amendments 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 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.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 23rd day of September, 1997.
/s/ Allan R. Buller
------------------------------
Allan R. Buller
23
<PAGE> 3
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the WORTHINGTON FOODS TAX SAVINGS AND PROFIT SHARING PLAN
(OCTOBER 1, 1997 RESTATEMENT), hereby constitutes and appoints DALE E. TWOMLEY
and WILLIAM T. KIRKWOOD, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
such Registration Statement and any and all amendments 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 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.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 23rd day of September, 1997.
/s/ Dale E. Twomley
------------------------------
Dale E. Twomley
24
<PAGE> 4
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the WORTHINGTON FOODS TAX SAVINGS AND PROFIT SHARING PLAN
(OCTOBER 1, 1997 RESTATEMENT), hereby constitutes and appoints DALE E. TWOMLEY
and WILLIAM T. KIRKWOOD, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
such Registration Statement and any and all amendments 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 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.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 23rd day of September, 1997.
/s/ William T. Kirkwood
------------------------------
William T. Kirkwood
25
<PAGE> 5
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the WORTHINGTON FOODS TAX SAVINGS AND PROFIT SHARING PLAN
(OCTOBER 1, 1997 RESTATEMENT), hereby constitutes and appoints DALE E. TWOMLEY
and WILLIAM T. KIRKWOOD, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
such Registration Statement and any and all amendments 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 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.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 23rd day of September, 1997.
/s/ Roger D. Blackwell
------------------------------
Roger D. Blackwell
26
<PAGE> 6
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the WORTHINGTON FOODS TAX SAVINGS AND PROFIT SHARING PLAN
(OCTOBER 1, 1997 RESTATEMENT), hereby constitutes and appoints DALE E. TWOMLEY
and WILLIAM T. KIRKWOOD, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
such Registration Statement and any and all amendments 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 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.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 23rd day of September, 1997.
/s/ Emil J. Brolick
------------------------------
Emil J. Brolick
27
<PAGE> 7
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the WORTHINGTON FOODS TAX SAVINGS AND PROFIT SHARING PLAN
(OCTOBER 1, 1997 RESTATEMENT), hereby constitutes and appoints DALE E. TWOMLEY
and WILLIAM T. KIRKWOOD, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
such Registration Statement and any and all amendments 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 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.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 23rd day of September, 1997.
/s/ George T. Harding, IV
------------------------------
George T. Harding, IV
28
<PAGE> 8
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the WORTHINGTON FOODS TAX SAVINGS AND PROFIT SHARING PLAN
(OCTOBER 1, 1997 RESTATEMENT), hereby constitutes and appoints DALE E. TWOMLEY
and WILLIAM T. KIRKWOOD, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
such Registration Statement and any and all amendments 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 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.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 23rd day of September, 1997.
/s/ Donald G. Orrick
------------------------------
Donald G. Orrick
29
<PAGE> 9
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the WORTHINGTON FOODS TAX SAVINGS AND PROFIT SHARING PLAN
(OCTOBER 1, 1997 RESTATEMENT), hereby constitutes and appoints DALE E. TWOMLEY
and WILLIAM T. KIRKWOOD, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
such Registration Statement and any and all amendments 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 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.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 23rd day of September, 1997.
/s/ William D. Parker
------------------------------
William D. Parker
30
<PAGE> 10
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the WORTHINGTON FOODS TAX SAVINGS AND PROFIT SHARING PLAN
(OCTOBER 1, 1997 RESTATEMENT), hereby constitutes and appoints DALE E. TWOMLEY
and WILLIAM T. KIRKWOOD, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
such Registration Statement and any and all amendments 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 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.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 23rd day of September, 1997.
/s/ Francisco J. Perez
------------------------------
Francisco J. Perez
31
<PAGE> 11
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the WORTHINGTON FOODS TAX SAVINGS AND PROFIT SHARING PLAN
(OCTOBER 1, 1997 RESTATEMENT), hereby constitutes and appoints DALE E. TWOMLEY
and WILLIAM T. KIRKWOOD, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
such Registration Statement and any and all amendments 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 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.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 23rd day of September, 1997.
/s/ Donald B. Shackelford
------------------------------
Donald B. Shackelford
32
