As filed with the Securities and Exchange Commission on September 20, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 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
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Title of Each Class of Securities to be Registered Amount Proposed Proposed Amount of
to be Maximum Maximum Registration Fee
Registered* Offering Price Aggregate
Per Share** Offering Price**
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<S> <C> <C> <C> <C>
Shares of Class A Common Stock,
$0.25 par value per share........................... 250,000 $16.50 $4,125,000 $1422.41
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* 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.
** 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, on September 19, 1996.
</FN>
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</TABLE>
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- i -
- 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 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: Secretary, 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 March 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, filed herewith at page II-5.
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
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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 on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Pittsford, New York on September 4, 1996.
SENECA FOODS CORPORATION
By:/s Kraig H. Kayser
Kraig H. Kayser, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes
and appoints each of Kraig H. Kayser and Arthur S. Wolcott his or her true and
lawful attorney-in-fact and agent, each with full power of substitution and
revocation, for him or her and in his or her name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each such attorney-in-fact and
agent, full power and authority to do and perform each such and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as such person might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or his or her substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement and the foregoing Powers of Attorney have been
signed on the dates indicated by the following persons in the capacities
indicated.
Signature Title Date
/s Arthur S. Wolcott Chairman and Director September 4, 1996
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Arthur S. Wolcott
/s Kraig H. Kayser President, Chief Executive September 4, 1996
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Kraig H. Kayser Officer and Director
/s Philip G. Paras Vice President, Finance September 4, 1996
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Philip G. Paras
/s Devra A. Bevona Treasurer September 4, 1996
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Devra A. Bevona
/s Jeffrey L. Van Riper Controller and Secretary September 4, 1996
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Jeffrey L. Van Riper (Principal Accounting Officer)
Director __________, 1996
Robert T. Brady
/s David L. Call Director September 6, 1996
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David L. Call
/s Edward O. Gaylord Director September 9, 1996
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Edward O. Gaylord
/s G. Brymer Humphreys Director September 10, 1996
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G. Brymer Humphreys
/s Susan W. Stuart Director September 7, 1996
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Susan W. Stuart
223973
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EXHIBIT 5
September 19, 1996
Seneca Foods Corporation
1162 Pittsford-Victor Road
Pittsford, New York 14534
Ladies and Gentlemen:
Re: Registration Statement on Form S-8 under the Securities
Act of 1933, covering the registration of 250,000 shares of Class
A 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 (the "Class A Shares"). In our opinion
the Class A 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
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement 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
September 19, 1996
