As Filed With the Securities and Exchange Commission on March 31, 2004
Registration No. 333-
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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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Seneca Foods Corporation
(Exact name of registrant as specified in its charter)
New York 16-0733425
(State of Incorporation) (I.R.S. Employer Identification No.)
3736 South Main Street
Marion, New York 14505
(315) 926-8100
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Seneca Foods, L.L.C. 401(k) Retirement Savings Plan
(Full title of the plans)
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Kraig H. Kayser
President and Chief Executive Officer
3736 South Main Street
Marion, New York 14505
(315) 926-8100
(Name, address, including zip code, and telephone number, including area code
of agent for service)
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Copies to:
William I. Schapiro, Esq.
Jaeckle Fleischmann & Mugel, LLP
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 Amount to be Registered Proposed Maximum Offering Proposed Maximum Amount of Registration
Aggregate Offering Price
Securities to be Registered (1) Price Per Share (2) (2) Fee
Class A common stock, 40,000 $19.00 $760,000 $96.29
$0.25 par value per
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Class B common stock, 10,000 $18.70 $187,000 $23.69
$0.25 par value per share
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Total $947,800 $119.98
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended,
this registration statement also covers an indeterminate number of
additional shares that may be offered and issued to prevent dilution
resulting from stock splits, stock dividends or similar transactions.
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 March 30, 2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with the Instructional Note to Part I of Form S-8 as
promulgated by the Securities and Exchange Commission, the information specified
by Part I 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 Seneca Foods, L.L.C. 401(k)
Retirement Savings Plan (the "Plan"). 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) under the Securities Act of 1933, as amended,
will be sent or given to participants in the LLC Plan.
Additionally, participants in 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, 3736 South
Main Street, Marion, New York 14505 (telephone: (315) 926-8100).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Seneca Foods Corporation (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents filed by it
with the Securities and Exchange Commission:
o Our Annual Report on Form 10-K for the year ended March 31, 2003;
o Our Quarterly Report on Form 10-Q for the three months ended June 28, 2003;
o Our Quarterly Report on Form 10-Q for the three months ended September 27,
2003;
o Our Quarterly Report on Form 10-Q for the three months ended December 27,
2003;
o The description of our Class A common stock and Class B common stock
included in our Registration Statement on Form S-3/A filed with the SEC
on June 26, 2002; and
o Our Current Reports on Form 8-K filed on June 10, 2003, August 22, 2003,
..October 10, 2003 and March 31, 2004.
In addition, all documents filed by the Registrant subsequent to the
date hereof pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, and 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 into this Registration Statement and to be part hereof
from the date of filing of such documents. Any statement contained in any
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 4. Description of Securities.
Not applicable (the Class A and Class B Common Stock is
registered under Section 12 of the Exchange Act).
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers
Our Charter provides that we are 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. We are 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 our Bylaws, as amended (the "Bylaws"), the Company has the
authority to indemnify its directors and officers to the fullest extent
permitted by the New York Business Corporation Law (Sections 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 following is a list of exhibits filed as part of this Registration
Statement:
5 Opinion of Jaeckle Fleischmann & Mugel, LLP (filed herewith)
23(a) Consent of Deloitte & Touche LLP (filed herewith)
23(b) Consent of Jaeckle Fleischmann & Mugel, LLP (included in
Exhibit 5)
24. Power of Attorney (included on signature page)
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
(the "Securities Act");
(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. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; 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 (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 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, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (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) 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 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 Commission such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
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 Marion, New York, on March 31, 2004.
SENECA FOODS CORPORATION
By: /s/Philip G. Paras
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Philip G. Paras, Chief Financial Officer
POWERS OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints each of Arthur S. Wolcott or Kraig H.
Kayser his true and lawful attorney-in-fact and agent, each with full power of
substitution and revocation, for him and in his 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 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 by
the following persons in the capacities and on the date indicated.
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Signature Title Date
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/s/Arthur S. Wolcott
Arthur S. Wolcott Chairman and Director March 31, 2004
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/s/Kraig H. Kayser President, Chief Executive
Kraig H. Kayser Officer and Director March 31, 2004
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/s/Philip G. Paras
Philip G. Paras Chief Financial Officer March 31, 2004
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/s/Jeffrey L. Van Riper
Jeffrey L. Van Riper Controller and Secretary March 31, 2004
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/s/Arthur H. Baer
Arthur H. Baer Director March 31, 2004
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/s/Andrew M. Boas
Andrew M. Boas Director March 31, 2004
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/s/Robert T. Brady
Robert T. Brady Director March 31, 2004
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/s/Douglas F. Brush
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Douglas F. Brush Director March 31, 2004
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/s/G. Brymer Humphrey-
G. Brymer Humphreys Director March 31, 2004
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/s/Susan W. Stuart
Susan W. Stuart Director March 31, 2004
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EXHIBIT INDEX
Exhibit Number Description
5 Opinion of Jaeckle Fleischmann & Mugel, LLP (filed herewith)
23(a) Consent of Deloite & Touche LLP (filed herewith)
23(b) Consent of Jaeckle Fleischmann & Mugel, LLP (included in
Exhibit 5)
24 Power of Attorney (included on signature page)