s8090707.htm
As
Filed With the Securities and Exchange Commission on September 7,
2007
Registration
No. 333-
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 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)
_________________
Seneca
Foods Corporation 2007 Equity Incentive Plan
(Full
title of the plans)
_________________
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)
_________________
Copies
to:
Michael
C. Donlon, Esq.
Jaeckle
Fleischmann & Mugel, LLP
Twelve
Fountain Plaza
Buffalo,
New York 14202
(716)
856-0600
CALCULATION
OF REGISTRATION FEE
Title
of Each Class of Securities to be Registered
|
Amount
to beRegistered (1)(2)
|
Proposed
Maximum Offering PricePer Share
|
Proposed
Maximum Aggregate Offering Price (3)
|
Amount
of Registration Fee
|
Class
A common stock, $0.25 par value per share
Class
B common stock, $0.25 par value per share
|
100,000
|
Various
|
$2,812,000
|
$86.33
|
(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 as provided
in the
Seneca Foods Corporation 2007 Equity Incentive
Plan.
|
(2)
|
The
Seneca Foods Corporation 2007 Equity Incentive Plan provides that
awards
may be made in Class A Common Stock or Class B Common Stock, or a
combination of those classes of common
stock.
|
(3)
|
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 Global Market, of
the
shares of Class B Common Stock on September 5,
2007.
|
EXPLANATORY
NOTE
This
Registration Statement on Form S-8 is being filed to register an aggregate
of
100,000 shares of Class A common stock, par value $0.25 per share and/or Class
B
common stock, par value $0.25 per share, of Seneca Foods Corporation which
have
been reserved for issuance under the Seneca Foods Corporation 2007 Equity
Incentive Plan (the “Plan”).
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 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
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:
·
|
Our
Annual Report on Form 10-K for the year ended March 31,
2007;
|
·
|
Our
Quarterly Report on Form 10-Q for the three months ended June 20,
2007;
and
|
·
|
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
February
25, 2005 and all amendments and reports updating that
description.
|
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.
The
following is a list of exhibits filed as part of this Registration
Statement:
|
5
|
Opinion
of Jaeckle Fleischmann & Mugel, LLP (filed
herewith)
|
|
23.1
|
Consent
of BDO Seidman, LLP (filed
herewith)
|
|
23.2
|
Consent
of Ernst & Young LLP (filed
herewith)
|
|
23.3
|
Consent
of Jaeckle Fleischmann & Mugel, LLP (included in Exhibit
5)
|
|
24.
|
Power
of Attorney (included on signature
page)
|
(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 August 13, 2007.
SENECA
FOODS CORPORATION
By:
_/s/ Kraig H. Kayser ____________________
Kraig
H.
Kayser, Chief Executive 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.
Signature
|
Title
|
Date
|
/s/Arthur
S. Wolcott _________
Arthur
S. Wolcott
|
Chairman
and Director
|
August
10, 2007
|
/s/Kraig
H. Kayser ________
Kraig
H. Kayser
|
President,
Chief Executive Officer and Director
|
August
10, 2007
|
/s/
Roland E. Breunig________
Roland
E. Breunig
|
Chief
Financial Officer
|
August
10, 2007
|
/s/Jeffrey
L. Van Riper ________
Jeffrey
L. Van Riper
|
Controller
and Secretary
|
August
10, 2007
|
/s/Arthur
H. Baer ____________
Arthur
H. Baer
|
Director
|
August
10, 2007
|
/s/
Andrew M. Boas __________
Andrew
M. Boas
|
Director
|
August
10, 2007
|
/s/
Robert T. Brady __________
Robert
T. Brady
|
Director
|
August
10, 2007
|
/s/
Susan A. Henry ___________
Susan
A. Henry
|
Director
|
August
10, 2007
|
/s/
G. Brymer Humphreys ______
G.
Brymer Humphreys
|
Director
|
August
10, 2007
|
/s/
Thomas Paulson ___________
Thomas
Paulson
|
Director
|
August
10, 2007
|
/s/
Susan W. Stuart ___________
Susan
W. Stuart
|
Director
|
August
10, 2007
|
EXHIBIT
INDEX
Exhibit
Number Description
|
5
|
Opinion
of Jaeckle Fleischmann & Mugel, LLP (filed
herewith)
|
|
23.1
|
Consent
of BDO Seidman, LLP (filed
herewith)
|
|
23.2
|
Consent
of Ernst & Young LLP (filed
herewith)
|
|
23.3
|
Consent
of Jaeckle Fleischmann & Mugel, LLP (included in Exhibit
5)
|
|
24.
|
Power
of Attorney (included on signature
page)
|