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As filed with the Securities and Exchange Commission on
October 30, 1996
Registration No. 333-12365
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SENECA FOODS CORPORATION
(Exact name of registrant as specified in its charter)
New York 16-0733425
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1162 Pittsford-Victor Road
Pittsford, New York 14534
(716) 385-9500
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Seneca Foods Corporation Employees' Savings Plan
(Full title of the plan)
KRAIG H. KAYSER, President and
Chief Executive Officer
1162 Pittsford-Victor Road
Pittsford, New York 14534
(716) 385-9500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
WILLIAM I. SCHAPIRO, Esq.
Jaeckle, Fleischmann & Mugel
800 Fleet Bank Building
Twelve Fountain Plaza
Buffalo, New York 14202
(716) 856-0600
CALCULATION OF REGISTRATION FEE
<TABLE>
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<CAPTION>
Title of Each Class of Securities to be Registered Amount Proposed Proposed Amount of
to be Maximum Maximum Registration Fee
Registered(1) Offering Price Aggregate
Per Share (2) Offering
Price (2)
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<S> <C> <C> <C> <C>
Shares of Class A Common Stock,
$0.25 par value per share........................... 50,000 $16.875 $ 843,750 $ 255.68
------ ------- --------- ---------
- ------------------------------------------------------------------------------------------------------------------------------------
Shares of Class B Common Stock,
$0.25 par value per share........................... 50,000 $16.75 $ 837,500 $ 253.79
- ------------------------- ------ ------ ---------- ---------
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Total........................................................................................... $1,681,250 $1,931.88(3)
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<FN>
(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 purposes of calculating the registration
fee pursuant to Rule 457(h) under the Securities Act of 1933
on the basis of the average of the high and low prices, as
reported by the NASDAQ National Market, of the shares of Class
A Common Stock and the shares of Class B Common Stock,
respectively, on October 29, 1996.
(3) Includes a fee of $1,422.41 which was previously paid on
September 20, 1996.
</FN>
</TABLE>
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- i -
PART I
In accordance with the instructional Note to Part 1 of Form
S-8 as promulgated by the Securities and Exchange Commission, the information
specified by Part 1 of Form S-8 has been omitted from this Registration
Statement on Form S-8 for offers of shares of Class A common stock and shares
of Class B common stock of Seneca Foods Corporation pursuant to the benefit
plan referred to herein. The documents containing the information required by
Part I of the Registration Statement and required to be delivered to employees
pursuant to Rule 428(b) will be sent or given to the plan participants.
Additionally, participants in the Seneca Foods Corporation
Employees' Savings Plan (the "Plan") are entitled to the documents incorporated
by reference in Item 3 of Part II of this Registration Statement, without
charge, upon written or oral request. Such requests should be directed to Seneca
Foods Corporation, Attention: Corporate Benefits Manager , 1162
Pittsford-Victor Road, Pittsford, New York 14534 (telephone: (716) 385-9500).
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II-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Seneca Foods Corporation (the
"Company") with the Securities and Exchange Commission are incorporated in this
Registration Statement by reference:
(a) The Company's Annual Report on Form 10-K for the year
ended March 31, 1996;
(b) Seneca Foods Corporation Employees' Savings Plan Annual
Report (IRS Form 5500) for the year ended December
31, 1995;
(c) The Company's Quarterly Report on Form 10-Q for
the fiscal quarter ended June 30, 1996; and
(d) All other reports filed by the Company pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of
1934.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in the
Registration Statement and to be part hereof from the date of filing of such
documents (such documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed Incorporated Document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Certificate of Incorporation provides that the
Company is required to indemnify each and every officer or director of the
Company, even those whose term has expired, for any and all expenses actually
and necessarily incurred by such director or officer in connection with the
defense of any action, suit or proceeding in which he is made a party by reason
of being or having been a director or officer of the Company. The Company is not
required to indemnify a director or officer for matters as to which such officer
or director is adjudged to be liable for neglect or misconduct in the
performance of his duties as director or officer. Further, the rights of the
officers or directors to indemnification are not exclusive of any other rights
to which an officer or director of the Company is entitled.
Under the Company's Bylaws, the Company has the authority to
indemnify its directors and officers to the fullest extent permitted by the New
York Business Corporation Law (ss.ss.721-726) (the "BCL"). The Bylaws,
reflecting New York law, extend such protection to any person made or threatened
to be made a party to any action or proceeding, including an action by or in the
right of any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, which any director, officer or employee of the
Company served in any capacity at the request of the Company, by reason of the
fact that such director or officer, his testator or intestate, is or was a
director or officer of the Company or is or was serving such enterprise at the
request of the Company. The Bylaws provide that such indemnification may be
authorized pursuant to the terms and conditions of (i) a resolution of
shareholders; (ii) a resolution of the Board of Directors; (iii) an agreement
providing for such indemnification or (iv) any judicial or other legal authority
which entitles the director, officer or employee to such indemnification.
The BCL provides that, if successful on the merits or
otherwise, an officer or director is entitled to indemnification by the Company
against amounts paid in settlement and reasonable expenses, including attorneys'
fees, actually and necessarily incurred in connection with the defense of such
action or proceeding, or any appeal therein, if such director or officer acted
in good faith, for a purpose which he reasonably believed to be in, or at least
not opposed to, the best interests of the Company. The termination of any action
or proceeding by judgment, settlement, conviction or plea of nolo contendere, or
its equivalent, does not itself create the presumption that such director or
officer did not act, in good faith, for a purpose which he reasonably believed
to be in, or not opposed to, the best interests of the Company or that he had
reasonable cause to believe that his conduct was unlawful.
If a corporation fails to provide indemnification to its
directors or officers, the BCL provides that despite any contrary resolution of
the board of directors or shareholders, indemnification may be awarded by
application to the appropriate judicial authority. Application for such
court-ordered indemnification may be made either in the civil action or
proceeding in which the expenses were incurred or other amounts were paid or to
the supreme court in a separate proceeding.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The registrant hereby undertakes to submit the Plan and any
amendment thereto to the Internal Revenue Service ("IRS") in a timely manner and
will make all changes required by the IRS in order to qualify the Plan.
Exhibit
Number Description of Exhibits
5 Opinion of Jaeckle, Fleischmann & Mugel, filed herewith.
23(a) Consent of Deloitte & Touche LLP, filed herewith.
23(b) Consent of Jaeckle, Fleischmann & Mugel (contained in Exhibit
5 above).
24 Power of Attorney
(incorporated by reference to Exhibit 24 to
the Company's Registration Statement on Form S-8
(No. 333-12365) filed September 20, 1996).
Item 9. Undertakings.
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;
(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 (i) and (ii) shall not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) 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 employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(6) 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 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 Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing this Amendment to Form S-8 and has
duly caused this Amendment to be signed on its behalf by the undersigned,
thereunto duly authorized, in Pittsford, New York on October 30, 1996.
SENECA FOODS CORPORATION
By:/s/Kraig H. Kayser
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Kraig H. Kayser, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Amendment has been signed by the following person in the capacity
indicated on October 30, 1996.
Signature Title
--------- -----
)
Arthur S. Wolcott Chairman and Director)
)
Kraig H. Kayser President, Chief )/s/Kraig H. Kayser
Executive Officer ) Kraig H. Kayser,
) Individually
Philip G. Paras Vice President, ) and as Attorney-in-Fact
Finance )
)
Devra A. Bevona Treasurer )
)
Jeffrey L. Van Riper Controller and )
Secretary )
)
David L. Call Director )
)
Edward O. Gaylord Director )
)
G. Brymer Humphreys Director )
)
Susan W. Stuart Director )
Robert T. Brady Director
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EXHIBIT 5
October 30, 1996
Seneca Foods Corporation
1162 Pittsford-Victor Road
Pittsford, New York 14534
Ladies and Gentlemen:
Re: Post-Effective Amendment No. 1 to Registration Statement on
Form S-8 (the "Registration Statement") under the Securities
Act of 1933, covering the registration of 50,000 shares of
Class A Common Stock and 50,000 shares of Class B Common Stock
issued or reserved for issuance under the Seneca Foods
Corporation Employees' Savings Plan (the "Plan") -- opinion
regarding legality
As your counsel we have examined the above referenced Registration
Statement and we are familiar with the documents referred to therein, as well as
your Certificate of Incorporation, as amended, Bylaws and other relevant
documents, and we have made such investigation with respect to your corporate
affairs as we have deemed necessary in order for us to render the opinion herein
set forth.
We have examined the proceedings heretofore taken and we are informed as to
the procedures proposed to be followed by Seneca Foods Corporation in connection
with the authorization, issuance and sale of the above described shares of Class
A Common Stock and shares of Class B Common Stock (collectively, the "Shares").
In our opinion the Shares to be issued by Seneca Foods Corporation under and in
accordance with the Plan will be, when issued and paid for pursuant to the Plan
and the Registration Statement and the Exhibits thereto, legally issued, fully
paid and nonassessable.
We consent to the filing of this opinion letter as an exhibit to the
Registration Statement.
Very truly yours,
JAECKLE FLEISCHMANN & MUGEL, LLP
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EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to Registration Statement No. 333-12365 of Seneca Foods Corporation and
subsidiaries on Form S-8 of our reports dated May 31, 1996 (which express an
unqualified opinion and includes an explanatory paragraph relating to a change
in the Company's method of accounting for inventories and to a change in
accounting for income taxes to conform with Statement of Financial Accounting
Standards No. 109), appearing in and incorporated by reference in the Annual
Report on Form 10-K of Seneca Foods Corporation and subsidiaries for the year
ended March 31, 1996.
Deloitte & Touche LLP
Rochester, New York
October 29, 1996
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