As filed with the Securities and Exchange Commission on May 16, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
J & J SNACK FOODS CORP.
(Exact name of Registrant as specified in its charter)
New Jersey 6000 Central Highway 22-1935537
(State or other Pennsauken, New Jersey 08109 (I.R.S. Employer
jurisdiction of (Address of Executive Offices) Identification Number)
incorporation or
organization)
J & J SNACK FOODS CORP.
EMPLOYEE STOCK PURCHASE PLAN
Gerald B. Shreiber, President
J & J Snack Foods Corp.
6000 Central Highway
Pennsauken, New Jersey 08109
(609) 665-9533
(Name, address, including zip code and
telephone number, including area code,
of agent for service)
Copies of Communications to:
A. Fred Ruttenberg, Esquire
Blank Rome Comisky & McCauley
210 Lake Drive East, Suite 200
Cherry Hill, N.J. 08002
(609) 779-3600
CALCULATION OF REGISTRATION FEE
Title of securities Amount to be Proposed Proposed Amount of
to be registered registered (1) maximum maximum registration
offering price aggregate fee
per share offering price
Common Stock,
no par value 500,000 shares $12.41(2) $6,205,000(2) $2,139.66
Participation Interests
in Plan * * * *
(1) Plus such indeterminate number of shares as may be issued pursuant to
certain anti-dilution provisions contained in the Plan.
(2) Pursuant to Rule 457(c), based upon the average of the high and low sale
prices of J & J Snack Foods Corp. Common Stock, no par value, reported on
the Nasdaq National Market System on May 13, 1996.
* An indeterminate number of interests are being registered pursuant to
Rule 416(c).
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The document(s) containing the information specified in Item 1 will be sent
or given to employees as specified in Rule 428(b)(1) and are not required to be
filed as part of this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
The document(s) containing the information specified in Item 2 will be sent
or given to employees as specified in Rule 428(b)(1) and are not required to be
filed as part of this Registration Statement.
PART II. INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Commission are incorporated
herein by reference:
(i) The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1995;
(ii) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual Report on
Form 10-K referred to in (i) above; and
(iii) The description of the Company's Common Stock is incorporated
by reference to the Company's Registration Statement on Form S-2 (File No.
33-40811) filed on May 24, 1991 under the Securities Act of 1933, as amended.
All reports and other documents subsequently filed by the Company with
the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, after the date of this Registration Statement
but prior to the filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters all securities
then remaining unsold hereunder, 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.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Under Section 14A:3-5 of the New Jersey Business Corporation Act (the
"NJBCA"), the Company must indemnify each of its directors and officers for his
expenses (that is, reasonable costs, disbursements and counsel fees) in
connection with any proceeding involving such person by reason of his having
been an officer or director to the extent he is successful on the merits.
The By-Laws of the Company provide that the Company shall, to the
fullest extent permitted by applicable law, indemnify its directors and
officers who were or are a party or are threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (whether or not such action, suit or
proceeding arises or arose by or in the right of the Company or other entity)
by reason of the fact that such director or officer is or was a director or
officer of the Company or is or was serving at the request of the Company as a
director, officer, employee, general partner, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise (including
service with respect to employee benefit plans), against expenses (including,
but not limited to, attorneys' fees and costs), judgments, fines (including
excise taxes assessed on a person with respect to any employee benefit plan)
and amounts paid in settlement actually and reasonably incurred by such
director or officer in accordance with such action, suit
or proceeding, except as otherwise provided in the By-Laws. Expenses incurred
by a director or officer of the Company in defending a threatened, pending or
completed civil or criminal action, suit or proceeding shall be paid by the
Company in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such person to repay such
amount if it shall ultimately be determined that such person is not entitled to
be indemnified by the Company, except as otherwise provided in the By-Laws. The
indemnification and advancement or reimbursement of expenses provided by, or
granted pursuant to, provisions contained in the By-Laws shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement or reimbursement of expenses may be entitled under the Certificate
of Incorporation or any by-law, agreement, vote of shareholders or directors or
otherwise, both as to action in such director's or officer's official capacity
and as to action in another capacity while holding that office.
The Amended and Restated Certificate of Incorporation of the Company
provides that directors shall not be personally liable to the Company or its
shareholders for damages for breach of any duty owed to the Company or its
shareholders, except that such provision shall not relieve a director from such
liability for any breach of duty based on an act or omission (a) in breach of
such director's duty of loyalty to the Company or its shareholders, or (b) not
in good faith or involving a knowing violation of law, or (c) resulting in the
receipt by such director of an improper personal benefit.
The Company's directors and officers are currently insured under a
Directors and Officers Liability Including Company Reimbursement Policy with
a policy limit of $5,000,000, subject to certain deductibles and exclusions,
for any actual or alleged error or misstatement or misleading statement or act
or omission or neglect or breach of duty by the directors and officers of the
Company in the discharge of their duties, individually or collectively, or any
matter claimed against them solely by reason of their being directors or
officers of the Company.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The following exhibits are filed as part of this Registration Statement or,
where so indicated, have been previously filed and are incorporated herein by
reference.
Exhibit No. Description
5.1 Opinion of Counsel regarding legality.
10.1 Employee Stock Purchase Plan
23.1 Consent of Grant Thornton
23.2 Consent of Counsel (included as part of Exhibit
5.1).
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, as amended:
(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;
(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 registration statement is on Form S-3 or S-8 and 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 Securities Exchange Act of 1934, as amended, that are incorporated by
reference in the Registration Statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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, as amended, each
filing of the registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934, as amended (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to section
15(d) of the Securities Exchange Act of 1934, as amended) 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
bonafide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the 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, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all 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 Pennsauken, State of New Jersey, on the 15th
day of May, 1996.
J & J SNACK FOODS CORP.
By: /s/Gerald B.Shreiber
Gerald B. Shreiber
President
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons
in the capacities indicated and on the 15th day of May, 1996.
Name
Title
/s/Gerald B.Shreiber
Gerald B. Shreiber
Chairman of the Board, President
and Chief Executive Officer
(Principal Executive Officer)
/s/Dennis G. Moore
Dennis G. Moore
Senior Vice President, Chief
Financial Officer, Secretary,
Treasurer and Director (Principal
Financial and Accounting Officer)
/s/Stephen M. Frankel
Stephen M. Frankel
Director
/s/Leonard M. Lodish
Leonard M. Lodish
Director
/s/Peter G. Stanley
Peter G. Stanley
Director
Pursuant to the requirements of the Securities Act of 1933, the
Administrators of the J&J Snack Foods Corp. Employee Stock Purchase Plan
have duly caused this registration statement to be signed on its behalf by the
undersigned, thereto duly authorized, in the City of Pennsauken, State of New
Jersey, on May 15th, 1996.
J&J Snack Foods Corp.
By: /s/Dennis G. Moore
Dennis G. Moore,
Administrator
Exhibit 5.1
May 15, 1996
J & J Snack Foods Corp.
6000 Central Highway
Pennsauken, New Jersey 08109
Gentlemen:
We have acted as counsel to J & J Snack Foods Corp. (the
"Company") in connection with the preparation of the Registration
Statement on Form S-8 ("Registration Statement") to be filed by
the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to the offer and
sale of up to 500,000 shares of common stock, no par value
("Common Stock"), by the Company pursuant to the Company's
Employee Stock Purchase Plan (the "Plan"). This opinion is
furnished pursuant to the requirement of Item 601(b)(5) of
Regulation S-K.
Although as counsel to the Company we have advised the
Company in connection with a variety of matters referred to us by
it, our services are limited to specific matters so referred.
Consequently, we may not have knowledge of many transactions in
which the Company has engaged or its day-to-day operations.
In rendering this opinion, we have examined the following
documents: (i) the Company's Amended and Restated Certificate of
Incorporation and Bylaws; (ii) the Company's Minute Books
including certain resolutions adopted by the Board of Directors
relating to the approval of the Plan; (iii) the Registration
Statement; and (iv) the Plan. We have assumed and relied, as to
questions of fact and mixed questions of law and fact, on the
truth, completeness, authenticity and due authorization of all
documents and records examined and the genuineness of all
signatures.
We have not made any independent investigation in rendering
this opinion other than the document examination described. Our
opinion is therefore qualified in all respects by the scope of
that document examination. We make no representation as to the
sufficiency of our investigation for your purposes. This opinion
is limited to the laws of the State of New Jersey. In rendering
this opinion we have assumed (i) compliance with all other laws,
including federal laws and (ii) compliance with all New Jersey
securities and antitrust laws.
Based upon and subject to the foregoing, we are of the
opinion that:
The shares of Common Stock of the Company which are being
offered and sold by the Company pursuant to the Registration
Statement, when sold in the manner and for the consideration
contemplated by the Registration Statement, will be legally
issued, fully paid and non-assessable.
This opinion is governed by, and shall be interpreted in
accordance with, the Legal Opinion Accord (the "Accord") of the
American Bar Association Section of Business Law (1991). As a
consequence, it is subject to a number of qualifications,
exceptions, definitions, limitations on coverage and other
limitations, all as more particularly described in the Accord, in
addition to the qualifications, exceptions and limitations
specifically set forth herein and this opinion should be read in
conjunction therewith. In the event of any inconsistency between
the qualifications, exceptions and limitations of the Accord and
those specifically set forth herein, the more restrictive
qualifications, exceptions and limitations shall control.
This opinion is given as of the date hereof. We assume no
obligation to update or supplement this opinion to reflect any
facts or circumstances which may hereafter come to our attention
or any changes in laws which may hereafter occur.
This opinion is strictly limited to the matters stated
herein and no other or more extensive opinion is intended,
implied or to be inferred beyond the matters expressly stated
herein.
We consent to the filing of this opinion as an exhibit to
the Registration Statement.
Sincerely,
/s/ Blank Rome Comisky & McCauley
Blank Rome Comisky & McCauley
Exhibit: 10.1
J & J SNACK FOODS CORP.
EMPLOYEE STOCK PURCHASE PLAN
1. Purpose. The J & J Snack Foods Corp. Employee Stock
Purchase Plan (the "Plan") is intended to provide an
incentive for employees of J & J Snack Foods Corp. (the
"Company") and its subsidiary corporations to acquire a
proprietary interest (or increase an existing proprietary
interest) in the Company through the purchase of shares
of Common Stock of the Company. The Plan is intended to
qualify as an "Employee Stock Purchase Plan" under
Sections 421 and 423 of the Internal Revenue Code of
1986, as amended (the "Code"). The provisions of the
Plan will be construed in a manner consistent with the
requirements of such sections of the Code.
2. Definitions. As used in this Plan,
(a) "Account" means the account recorded in the
records of the Company established on behalf of a
Participant to which the amount of the
Participant's payroll deductions authorized under
Paragraph 6 shall be credited and any withdrawals
under Paragraphs 6 or 10 shall be charged.
(b) "Board" means the Board of Directors of the
Company.
(c) "Calendar Quarter" means a three-consecutive
month period beginning on January 1, April 1, July
1 or October 1 on or after January 1, 1996.
(d) "Code" means the Internal Revenue Code of 1986,
or any successor thereto, as amended and in effect
from time to time.
(e) "Committee" means the Compensation Committee of
the Board.
(f) "Company" means J & J Snack Foods Corp., a
Delaware corporation, and any successor.
(g) "Disability" shall mean any complete and
permanent disability as defined in Section 22(e)(3)
of the Code.
(h) "Eligible Compensation" means regular straight-time earnings or
base salary, plus payments for
overtime, incentive compensation, bonuses, and
other special payments.
(i) "Employee" means any individual who is
customarilyemployed by the Employer working an
average of twenty or more hours per week.
(j) "Employer" means the Company and each current
or future Subsidiary Corporation.
(k) "Offering Period" means the Six Month Period or
Calendar Quarter for which options to purchase
Common Stock under this Plan are granted. The
length of the Offering Period (Six Month Period or
Calendar Quarter) is at the discretion of the
Committee and may change from time to time.
(l) "Participant" shall mean any Employee of an
Employer who has satisfied and continues to meet
the requirements of Paragraph 5.
(m) "Plan" means the J & J Snack Foods Corp. 1996
Employee Stock Purchase Plan, as set forth herein,
and all amendments hereto.
(n) "Retirement" shall mean termination of
employment of an employee who has reached 65 years
of age.
(o) "Six Month Period" means a six-consecutive
month period beginning on January 1 or July 1 on or
after January 1, 1996.
(p) "Subsidiary Corporation" shall mean any present
or future corporation which (i) would be a
"subsidiary corporation" of the Company as that term
is defined in 424 of the Code and (ii) is
designated as a participant in the Plan by the
Committee.
3. Eligibility.
(a) Participation in the Plan is voluntary. Each
Employee will be eligible to participate in the
Plan on the first day of the Offering Period
commencing after the Employee's date of employment.
(b) Notwithstanding any provision of the Plan to
the contrary, no Employee will be granted an option
under the Plan:
(i) if, immediately after the grant, the
Employee would own stock, and/or hold outstanding
options to purchase stock, possessing five percent
(5%) or more of the total combined voting power or
value of all classes of stock of the Company or of
any Subsidiary; or
(ii) which permits the Employee's rights to
purchase stock under all employee stock purchase
plans (within the meaning of Section 423 of the
Code) of the Company and its Subsidiary
Corporations to accrue at a rate which exceeds
$25,000 of the fair market value of the stock
(determined at the time such option is granted) for
each calendar year in which such option is
outstanding at any time.
For purposes of Paragraph 3(b)(i) above, pursuant to
Section 424(d) of the Code, (i) the Employee with respect
to whom such limitation is being determined shall be
considered as owning the stock owned, directly or
indirectly, by or for his brothers and sisters (whether
by the whole or half blood), spouse, ancestors, and
lineal descendants; and (ii) stock owned, directly or
indirectly, by or for a corporation, partnership, estate,
or trust, shall be considered as being owned
proportionately by or for its shareholders, partners, or
beneficiaries. In addition, for purposes of Paragraph
3(b)(ii) above, pursuant to Section 423(b)(8) of the
Code, (i) the right to purchase stock under an option
accrues when the option (or any portion thereof) first
becomes exercisable during the calendar year, (ii) the
right to purchase stock under an option accrues at the
rate provided in the option but in no case may such rate
exceed $25,000 of fair market value of such stock
(determined at the time such option is granted) for any
one calendar year, and (iii) a right to purchase stock
which has accrued under one option granted pursuant to
the Plan may not be carried over to any other option.
4. Shares Subject to the Plan. The total number of
shares of Common Stock that may be purchased upon the
exercise of options granted under the Plan will not
exceed five hundred thousand shares (subject to
adjustment as provided in Paragraph 15), and such shares
may be originally issued shares, reacquired shares,
shares bought in the market, or any combination of the
foregoing. If any option which has been granted expires
or terminates for any reason without having been
exercised in full, the unpurchased shares will again
become available for purposes of the Plan.
5. Participation.
(a) An eligible Employee may become a Participant
by completing a payroll deduction authorization
form provided by the Employer and filing it with
the Employer. Such authorization will become
effective on the first day of the Offering Period
commencing after receipt of the authorization by
the Employer.
(b) Payroll deductions for a Participant will
commence with the first payroll period, after the
payroll period in which the Participant's
authorization for payroll deductions becomes
effective, and will continue until terminated by
the Participant in accordance with Paragraph 6(c)
or due to termination of employment in accordance
with Paragraph 10.
(c) Nothing in the Plan will confer on a
Participant the right to continue in the employ of
the Employer or will limit or restrict the right of
the Employer to terminate the employment of a
Participant at any time with or without cause. A
Participant will have no interest in any Common
Stock to be purchased under the Plan or any rights
as a stockholder, including voting rights, with
respect to such Common Stock until the Common Stock
has been purchased.
6. Payroll Deductions.
(a) At the time a Participant files his payroll
deduction authorization form, the Participant will
elect to have deductions made from the
Participant's Eligible Compensation for each
payroll period such authorization is in effect in
whole dollar amounts at the rate of not less than
1% nor more than 10% of the Participant's Eligible
Compensation, with a minimum dollar deduction as
determined by the Committee.
(b) All payroll deductions made for a Participant
will be credited to the Participant's Account under
the Plan. A Participant may not make any separate
cash payment into such Account.
(c) A Participant may decrease or suspend payroll
deductions under the Plan by giving written notice
to the Employer. Such decrease or suspension will
be effective as soon as administratively feasible
after receipt of the Participant's written notice,
and will commence with the first payroll period
starting immediately thereafter.
(d) If a Participant gives written notice to the
Employer to suspend payroll deductions 10 or more
days prior to the last day of an Offering Period,
the Participant, upon written request, will be paid
by the Employer the amount of the accumulated
payroll deduction in the Participant's Account.
Such payment will be made prior to the last day of
the Offering Period.
(e) Subject to Paragraph 19, a Participant may
increase or resume payroll deductions under the
Plan by giving written notice to the Employer.
Payroll deductions for a Participant will increase
or resume with the first payroll period, after the
payroll period in which the Participant's
authorization for payroll deductions becomes
effective, and will continue until terminated by
the Participant in accordance with Paragraph 6(c)
or due to termination of employment in accordance
with Paragraph 10. Such increase or resumption
will become effective on the first day of the
Offering Period commencing after receipt of the
Participant's written notice.
7. Granting of Option.
(a) On the first day of each Offering Period, each
Participant in such Offering Period shall be
granted an option to purchase on the last day of
the Offering Period a number of shares of the
Company's Common Stock determined by dividing such
Participant's accumulated payroll deductions prior
to the last day of the Offering Period and retained
in the Participant's Account as of such date by the
lower of (i) eighty-five percent (85%) of the fair
market value of a share of the Company's Common
Stock on the first day of the Offering Period, or
(ii) eighty-five percent (85%) of the fair market
value of a share of the Company's Common Stock on
the last day of the Offering Period; provided
however, that the maximum number of shares a
Participant may purchase during each Offering
Period shall be determined at the Offering Date by
dividing $12,500 by the fair market value of a
share of the Company's Common Stock on the first
day of the Offering Period if the Offering Period
is a Six Month Period, or by dividing $6,250 by the
fair market value of a share of the Company's
Common Stock on the first day of the Offering
Period if the Offering Period is a Calendar
Quarter; and provided further that such purchase
shall be subject to the limitations set forth in
Sections 3(b) and 4. The fair market value of a
share of the Company's Common Stock shall be
determined as provided in Section 7(b).
(b) The option price of the Common Stock purchased
with payroll deductions made during each Offering
Period for a Participant will be the lower of:
(i) 85% of the closing price of the Common
Stock on NASDAQ or other exchange as reported
by The Wall Street Journal on the first day of
the Offering Period (or on the next regular
business date on which shares of the Common
Stock of the Company are traded in the event
that no shares of the Common Stock have been
traded on the first day of the Offering
Period); or
(ii) 85% of the closing price of the Common
Stock on NASDAQ or other exchange as reported
by The Wall Street Journal on the last day of
the Offering Period (or on the next regular
business date on which shares of the Common
Stock of the Company are traded in the event
that no shares of the Common Stock have been
traded on the last day of the Offering
Period.)
8. Exercise of Option.
(a) The Participant's option for the purchase of
Common Stock with payroll deductions made during a
Offering Period will be deemed to have been
exercised automatically on the last day of the
Offering Period for the purchase of the number of
full and fractional shares of Common Stock which
the accumulated payroll deductions in the
Participant's Account at that time will purchase at
the applicable option price.
(b) If the total number of shares to be purchased
under option by all Participants exceeds the number
of shares authorized under Paragraph 4 of this
Plan, a pro-rata allocation of the available shares
will be made among all Participants authorizing
such payroll deductions based on the amount of
their respective payroll deductions through the
last day of the Offering Period.
9. Delivery of Shares.
(a) Shares of Common Stock purchased under the
Plan will be registered in the name of a nominee
and held in an account in the name of the
Participant at a brokerage firm. Each Participant
will be the beneficial owner of the shares of
Common Stock purchased under the Plan on exercise
of the Participant's option and will have all
rights of beneficial ownership in such shares,
except that the Participant may not sell the shares
for a period of six months following the date on
which the shares are purchased and that any shares
not sold must remain in the account at the
brokerage firm for a period of two years following
the date on which the shares are purchased.
(b) Upon the Participant's death or Disability,
the six-month restriction in Paragraph 9(a) will be
deemed to be satisfied as of the date of such death
or Disability.
10. Termination of Employment.
(a) Upon termination of a Participant's employment
for any reason, participation in the Plan will
immediately terminate.
(b) If the Participant's termination of employment
is due to Retirement, death or Disability, the
Participant or the legal representative of the
Participant or, if applicable, the executor or
administrator of the estate of the Participant,
will have the right to elect, either to:
(i) withdraw all of the accumulated payroll
deductions credited to the Participant's
Account under the Plan; or
(ii) exercise the Participant's option for the
purchase of Common Stock on the last day of
the Offering Period in which termination of
employment occurs for the purchase of the
number of full and fractional shares of Common
Stock which the accumulated payroll deductions
credited to the Participant's Account at the
date of the Participant's termination of
employment will purchase at the applicable
option price.
The Participant or the legal representative of the
Participant or, if applicable, the executor or
administrator of the estate of the Participant, must make
such election by giving written notice to the Employer.
In the event that no such written notice of election is
received by the Committee (or its delegate), the
Participant or the legal representative of the
Participant or, if applicable, the executor or
administrator of the estate of the Participant will
automatically be deemed to have elected, pursuant to
Paragraph ii, to exercise the Participant's option.
(c) Upon termination of a Participant's employment
for any reason other than Retirement, death or
Disability, participation in the Plan will
immediately terminate and the payroll deductions
credited to the Participant's Account will be
delivered to the Participant, or to the executor or
administrator of the estate of the Participant in
the event of such Participant's death following
such termination of employment, or to the legal
representative of the Participant in the event of
such Participant's suffering any disability
following such termination of employment.
11. Interest. No interest will be paid or allowed on
any money paid into the Plan or credited to the Account
of any Participant.
12. Administration.
(a) The Plan will be administered by the
Committee, which will have the plenary power,
subject to and within the limits of the express
provisions of the Plan, to construe and interpret
the Plan and options granted under it, and to
establish, amend and revoke rules and regulations
for its administration. The Committee, in the
exercise of this power, will generally determine
all questions of policy and expediency that may
arise, may correct any defect, or supply any
omission or reconcile any inconsistency in the Plan
or in any instrument associated with the Plan in a
manner and to the extent it deems necessary or
expedient to make the Plan fully effective.
(b) The Committee may, in its discretion, require
as conditions to the exercise of any option that
the shares of Common Stock reserved for issuance
upon the exercise of the option shall be duly
listed, upon official notice of issuance, upon a
stock exchange, and that a Registration Statement
under the Securities Act of 1933, as amended, with
respect to said shares shall be effective and that
all material information respecting the business
and financial conditions of the Company have been
disclosed to the public.
13. Transferability. No amounts credited to a
Participant's Account, nor any rights with regard to the
exercise of an option or to receive Common Stock under
the Plan, may be assigned, transferred, pledged, or
otherwise disposed of in any way by the Participant other
than by will or the laws of descent and distribution.
Any such attempted assignment, transfer, pledge, or other
disposition will be without effect.
14. Use of Funds. The Employers other than the Company
shall promptly transfer all amounts withheld under
Paragraph 6 to the Company. All payroll deductions
received or held by the Company under this Plan may be
used by the Company for any corporate purpose and the
Company will not be obligated to segregate such payroll
deductions.
15. Effect of Changes of Common Stock. The Board shall
make or provide for such adjustments in the maximum
number of shares specified in Paragraph 4 and the price
at which shares of Common Stock are to be purchased under
the Plan as the Board shall determine is appropriate to
prevent dilution or enlargement of the rights of
Participants that otherwise would result from any stock
dividend, stock split, stock exchange, combination of
shares, recapitalization or other change in the capital
structure of the Company, merger, consolidation, spin-off
of assets, reorganization, partial or complete
liquidation, issuance of rights or warrants to purchase
securities or any other corporate transaction or event
having an effect similar to any of the foregoing.
16. Amendment or Termination. The Board or the
Committee may at any time terminate or amend the Plan.
Except as hereinafter provided, no termination or
amendment will affect or change options previously
granted to any Participant, nor may any amendment be made
without prior approval of the stockholders of the Company
if such amendment would (a) materially increase the
benefits accruing to Participants under the Plan, (b)
materially increase the number of shares which may be
issued under the Plan, or (c) materially modify the
requirements as to eligibility for participation under
the Plan.
17. Notices. All notices or other communications by a
Participant to the Employer under or in connection with
the Plan will be in writing and will be deemed to have
been duly given when received by such person as the
Employer shall designate.
18. Merger or Consolidation. If the Company merges with
another corporation and the Company is the surviving
entity, the holder of each option then outstanding will
thereafter be entitled to receive, upon the exercise of
such option for each share as to which such option is
exercised, the securities or property to which a holder
of one share of the Common Stock was entitled to upon and
at the time of such merger, and the Board will take such
steps in connection with such merger as the Board may
deem necessary to assure that the provisions of Paragraph
15 will thereafter be applicable, in relation to the said
securities or property as to which such holder of such
option might thereafter be entitled to receive
thereunder. In the event of a merger where the Company
is not the surviving entity, the Plan will terminate, and
all payroll deductions credited to a Participant's
Account will be returned to that Participant and the six-month
requirement under Paragraph 9(a) will be deemed to
be satisfied with respect to shares previously purchased
under the plan. A sale or other disposition of all or
substantially all the assets of the Company will be
deemed a merger where the Company is not the surviving
entity for the foregoing purposes.
19. Cessation of Participation. Any officer or director
Participant (as such terms are used in Rule 16b-3 under
the Securities Exchange Act of 1934) who is also a highly
compensated employee within the meaning of Section 414(q)
of the Code who suspends payroll deductions or who
otherwise ceases to participate in the Plan, shall not be
permitted to commence participation in the Plan again for
a period of at least six months from the date of such
cessation.
20. Miscellaneous Provisions.
(a) Each Participant, former Participant, or any
other person who shall claim a right or benefit
under this Plan, shall be entitled only to look to
such Participant's Employer for such benefit.
(b) Subject to Paragraph 10, the Employers will
pay all expenses that may arise in connection to
the administration of this Plan, except that a
Participant will pay all expenses that may arise in
connection with the distribution of his or her
Account or the sale of Common Stock by the
Participant.
(c) No liability whatever shall attach to or be
incurred by any past, present or future
stockholders, officers or directors, as such, of an
Employer, under or by reason of any of the terms,
conditions, or agreements contained in this Plan or
implied therefrom, and any and all liabilities of,
and any and all rights and claims against an
Employee, or any stockholder, officer or director,
as such, whether arising at common law or in equity
or created by statue or constitution or otherwise,
pertaining to this Plan, are hereby expressly
waived and released by every Participant, as a part
of the consideration for any benefits provided by
the Employers under this Plan.
(d) To the extent required to comply with the
requirements of Section 423 of the Code, all
Employees granted options under the Plan to
purchase Common Stock shall have the same rights
and privileges hereunder.
(e) Any headings or subheadings in this Plan are
inserted for convenience of reference only and are
to be ignored in the construction of any provisions
hereof. All references in this Plan to paragraphs
are to paragraphs of this Plan unless specified
otherwise.
(f) Any words herein used in the masculine shall
be read and construed in the feminine where they
would so apply.
(g) This Plan shall be construed in accordance
with the laws of the State of New Jersey to the
extent federal law does not supersede and preempt
New Jersey law.
(h) The Company's obligation to sell and deliver
Common Stock under the Plan is at all times subject
to all approvals of and compliance with any
governmental authorities required in connection
with the authorization, issuance, sale or delivery
of such stock as well as state and federal
securities laws.
(i) In the event that any provisions of this Plan
shall be held illegal, invalid, or unenforceable
for any reason, such provision shall be fully
severable, but shall not affect the remaining
provisions of the Plan, and the Plan shall be
construed and enforced as if the illegal, invalid,
or unenforceable provision had never been included
herein.
(j) In the event the Company should receive notice
that this Plan fails to qualify as an "employee
stock purchase plan" under Section 423 of the Code,
all then-existing Accounts will be paid to the
Participants and the Plan shall immediately
terminate.
(k) Neither any Employer nor the Company makes any
commitment or guarantee that any federal or state
tax treatment will apply or be available to any
person participating or eligible to participate in
this Plan.
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
We have issued our report dated November 7, 1995 accompanying
the consolidated financial statements and schedules of J & J Snack
Foods Corp. and subsidiaries appearing in the 1995 Annual Report
of the Company to its stockholders included in the Annual Report
on Form 10-K for the fiscal year ended September 30, 1995 which
are incorporated by reference in this Registration Statement.
s/s Grant Thornton LLP
Philadelphia, Pennsylvania
May 13, 1996
