As filed with the Securities and Exchange Commission on September 16, 2005
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION ON AUGUST 13, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
Washington, D.C. 20549
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FORM S-3/1/
S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE HERSHEY FOODS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 23-0691590
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
COMPANY
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 23-0691590 | |
(State or Other Jurisdiction of Incorporation or Organization) | (I.R.S. Employer Identification Number) |
100 CRYSTALCrystal A DRIVE
HERSHEY, PENNSYLVANIADrive
Hershey, Pennsylvania 17033
717-534-6799
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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ROBERT M. REESE
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
HERSHEY FOODS CORPORATION
(717) 534-6799
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Burton H. Snyder, Esq.
The Hershey Company
100 CRYSTALCrystal A DRIVE
HERSHEY, PENNSYLVANIADrive
Hershey, Pennsylvania 17033
717-534-6799
(NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPY TO: COPY TO:
JOHN
(717) 534-6799
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
With a copy to:
Risë B. TEHAN, ESQ. DONALD B. BRANT, JR., ESQ.
SIMPSON, THACHERNorman, Esq.
Simpson Thacher & BARTLETT MILBANK, TWEED, HADLEY
Bartlett LLP
425 LEXINGTON AVENUE & MCCLOY
NEW YORK, NYLexington Avenue
New York, New York 10017 1 CHASE MANHATTAN PLAZA
NEW YORK, NEW YORK 10005
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(212) 455-2000
Approximate date of commencement of proposed sale to the public:public: From time to time after the effective date of this Registration Statement as determined
by market conditions.
Statement.
If the only securities being registered on this Formform are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [_]
¨
If any of the securities being registered on this Formform are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box. [X]
x
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]
¨
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]
¨
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [_]
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CALCULATION OF REGISTRATION FEE
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Title of each Class of Securities to be Registered | Amount to be Registered(1) | Proposed Maximum | Proposed Offering Price (2) | Amount of Registration Fee(3) | ||||
Debt Securities | $750,000,000 | 100% | $750,000,000 | $88,275 |
| (1) | For debt securities issued with an original issue discount or denominated in a currency other than United States dollars, the amount to be registered is the amount as shall result in aggregate net proceeds not to exceed $750,000,000. |
| (2) | Estimated solely for the purpose of calculating the registration fee, in accordance with Rule 457(o) under the Securities Act of 1933, as amended. |
| (3) | Calculated at the statutory rate of .0001177 of the proposed maximum aggregate offering price, which price is estimated solely for the purpose of calculating the registration fee. |
The Registrant hereby amends this Registration Statement on such additional principal amountdate or dates as may be necessary suchto delay its effective date until the Registrant shall file a further amendment which specifically states that if the
Debt Securities are issuedthis Registration Statement shall thereafter become effective in accordance with an original issue discount or denominated
in a currency other than United States dollars, the net proceeds to Hershey
Foods Corporation will not exceed $500,000,000.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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Pursuant to the provisionsSection 8(a) of Rule 429 of the Rules and Regulations of the
Securities and Exchange Commission under the Securities Act of 1933, as amended, the Prospectus included inor until this Registration Statement is a combined
prospectus which will also be used in connection withshall become effective on such date as the issuance of
$150,000,000 principal amount of Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
PROSPECTUS
$750,000,000
Debt Securities registered under Registration
Number 33-51089.
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1) In addition, this Registration Statement on Form S-3 constitutes Post-
Effective Amendment No. 1 to Registration Statement No. 33-51089 on Form S-
3.
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++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PROSPECTUS
SUBJECT TO COMPLETION, DATED AUGUST 13, 1997
$650,000,000
[LOGO OF HERSHEY FOODS CORPORATION APPEARS HERE]
DEBT SECURITIES
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The Hershey Foods Corporation (the "Corporation")Company may offer from time to time up to $650,000,000$750,000,000 (or its equivalent, based on the applicable exchange rate at the time of offering, in such foreign currencies, or units of two or more thereof as we shall be designated by the Corporation)designate) aggregate principal amount of itsour debt securities (the "Debt Securities"“Debt Securities”), on terms to be determined at the time of offering. The Debt Securities may be issued in one or more series with the same or various maturities. The terms of the Debt Securities in respect of which this Prospectus is being delivered (the "Offered Securities"“Offered Securities”), including, where applicable, the specific designation, aggregate principal amount offered, currency or currencies in which the principal (and premium, if any) and interest are payable, denominations, maturity, interest rate (which may be fixed or variable) or method of calculating and time of payment of interest, if any, terms for redemption at our option or the option of the Corporation or the holder, terms for sinking fund payments, terms for any other mandatory redemption, the public offering price, the stock exchanges, if any, on which the Offered Securities may be listed and any other terms in connection with the offering and sale of the Offered Securities, will be set forth in a Prospectus
Supplementprospectus supplement (the "Prospectus Supplement"“Prospectus Supplement”). Offered Securities of a series may be issuable in registered form or in the form of one or more global securities (each a "Global Security"“Global Security”).
THIS PROSPECTUS MAY NOT BE USED TO OFFER OR SELL ANY SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
The Offered Securities may be sold (i) through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate; (ii) through agents or dealers designated from time to time; or (iii) directly to purchasers. The names of any underwriters or our agents of the Corporation involved in the sale of the Offered Securities in respect of which this Prospectus is being delivered and any applicable commissions or discounts arewill be set forth in the Prospectus Supplement or in the applicable pricing agreement. The net proceeds to the Corporationus from such sale arewill also be set forth in the accompanying Prospectus Supplement or in the applicable pricing agreement. See "Plan“Plan of Distribution"Distribution” for possible indemnification arrangements for any such underwriters and agents.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
NEITHER THE SECURITIES AND EXCHANGE COMMISSION ORNOR ANY STATE SECURITIES COMMISSION NOR HAS THEAPPROVED OR DISAPPROVED OF THESE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACYDETERMINED THAT THIS PROSPECTUS IS ACCURATE OR ADEQUACY OF THIS PROSPECTUS.COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is August , 1997.
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
CORPORATION OR ANY AGENT, UNDERWRITER OR DEALER. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION2005.
No person has been authorized to give any information or to make any representations other than those contained or incorporated by reference in this Prospectus and, if given or made, such information or representations must not be relied upon as having been authorized. This Prospectus does not constitute an offer to sell or the solicitation of an offer to buy any of the Debt Securities or an offer to buy or the solicitation of an offer to sell the Debt Securities in any circumstances in which such offer or solicitation would be unlawful. The delivery of this Prospectus shall not, under any circumstances, create any implication that the information contained herein is correct as of any time subsequent to the date of such information.
TABLE OF AN OFFER TO BUY ANY OF THE
DEBT SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM SUCH OFFER WOULD BE
UNLAWFUL. THE DELIVERY OF THIS PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT THE
INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
AVAILABLE INFORMATION
The Corporation isCONTENTS
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Where You Can Find More Information
We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"“Exchange Act”), and, in accordance therewith, filesfile reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"“SEC”). Such reports, proxy statements and other information can be inspectedread and copied at the SEC’s Public Reference Section of the CommissionRoom at Room 1024, 450 Fifth100 F Street, N.W.N.E., Washington, D.C. 20549, as well as20549. Please call the SEC at 1-800-SEC-0330 for further information on the following Regional Officesoperation of
the Commission: Midwest Regional Office, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661; and Northeast Regional Office, 7 World Trade Center,
Suite 1300, New York, New York 10048. Copies of such materials may also be
obtained at prescribed rates from the Public Reference Section of the
Commission at its Washington address and, exceptRoom. Except as otherwise indicated in the Prospectus Supplement, copies of such materials may also be inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005. In addition, the CommissionSEC maintains a Web Site on the World Wide Web of the Internetwebsite that contains reports, proxy statements and information statements and other information regarding registrants whichthat file electronically with the Commission.SEC. The address of such site is http.http://www.sec.gov.
The Corporation has
We have filed with the CommissionSEC a registration statement on Form S-3 (the "Registration Statement"“Registration Statement”) under the Securities Act of 1933, as amended (the "Securities Act"“Securities Act”) with respect to the Offered Securities. This Prospectus does not contain all of the information set forth in the Registration Statement, certain parts of which have been omitted in accordance with the rules and regulations of the Commission.SEC. Reference is made to the Registration Statement and to the exhibits relating thereto for further information with respect to the Corporationus and the Offered Securities.
DOCUMENTS INCORPORATED BY REFERENCE
There are hereby incorporated
Documents Incorporated by referenceReference
We “incorporate by reference” in this Prospectus the following documents that we have filed by the Corporation with the CommissionSEC (File No. 1-183)001-00183):
(a) The Corporation's most recently filed Annual Report on Form 10-K;
(b) The Corporation's Quarterly Reports on Form 10-Q filed since the end
of the Corporation's fiscal year covered by its most recent Annual Report
on Form 10-K; and
(c) The Corporation's Current Reports on Form 8-K filed since the end of
the Corporation's fiscal year covered by its most recent Annual Report on
Form 10-K.
| (a) | Our most recently filed Annual Report on Form 10-K; |
| (b) | Our Quarterly Reports on Form 10-Q filed since the end of our fiscal year covered by our most recent Annual Report on Form 10-K; and |
| (c) | Our Current Reports on Form 8-K filed since the end of our fiscal year covered by our most recent Annual Report on Form 10-K; provided that information furnished under Item 2.02 and Item 7.01 of our Current Reports on Form 8-K is not incorporated by reference in this Prospectus. |
All documents filed by the Corporationwe file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to the termination of the offering of the Debt Securities offered hereunder shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus 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 or in any Prospectus Supplement modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus.
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The Corporation
We will provide, without charge, a copy of any or all of the documents mentioned above (other than exhibits to such documents) to each person receiving this Prospectus who requests them in writing.writing or by telephone. Requests for such copies should be addressed to The Hershey Company, Attn: Investor Relations Department, Hershey
Foods Corporation, P.O. Box 810,100 Crystal A Drive, Hershey, Pennsylvania 17033.
HERSHEY FOODS CORPORATION
17033-0810, Telephone: (717) 534-6799.
The Corporation, through its divisionsHershey Company
We, our wholly-owned subsidiaries and subsidiaries, isentities in which we have a controlling financial interest are engaged in the manufacture, distribution and sale of consumer food products. The Corporation
produces and distributes, primarily through its Hershey Chocolate North
America, Hershey International, and Hershey Pasta and Grocery Group divisions,
a broad line of chocolate and non-chocolate confectionery, grocery and pasta
products, as well as other consumer food products.
The Corporation's principal product groups include: chocolate and non-
chocolate confectionery products sold in the form of bar goods, bagged items,
boxed items and throat drops; grocery products in the form of baking
ingredients, chocolate drink mixes, peanut butter, dessert toppings and
beverages; and pasta products sold in a variety of different shapes, sizes and
packages.
In North America, the Corporation manufactures chocolate and non-chocolate
confectionery products in a variety of packaged forms and markets them under
more than 50 brands. The principal chocolate and non-chocolate confectionery
products sold in the United States are: AMAZIN' FRUIT gummy bears, HERSHEY'S
COOKIES 'N' CREME chocolate bars, CADBURY'S CREME EGGS candy, CARAMELLO candy
bars, GOOD & PLENTY candy, HEATH toffee bar, HERSHEY'S COOKIES 'N' MINT
chocolate bars, HERSHEY'S HUGS chocolates, HERSHEY'S HUGS WITH ALMONDS
chocolates, HERSHEY'S KISSES chocolates, HERSHEY'S KISSES WITH ALMONDS
chocolates, HERSHEY'S milk chocolate bars, HERSHEY'S milk chocolate bars with
almonds, HERSHEY'S MINIATURES chocolate bars, HERSHEY'S NUGGETS chocolates,
JOLLY RANCHER candy, KIT KAT wafer bars, LUDEN'S throat drops, MILK DUDS
chocolate covered caramels, MR. GOODBAR milk chocolate bars with peanuts,
PAYDAY peanut caramel bar, PETER PAUL ALMOND JOY candy bars, PETER PAUL MOUNDS
candy bars, POT OF GOLD boxed chocolates, REESE'S NUTRAGEOUS candy bars,
REESE'S peanut butter cups, REESE'S PIECES candies, ROLO caramels in milk
chocolate, SKOR toffee bars, WHATCHAMACALLIT candy bars, TWIZZLERS candy, 5th
AVENUE candy bars, SYMPHONY milk chocolate bars, SWEET ESCAPES candy bars,
TASTETATIONS candy, WHOPPERS malted milk balls and YORK peppermint pattie
candy. The Corporation's principal products sold in Canada include CHIPITS
baking chips, GLOSETTE chocolate-covered raisins and peanuts, OH HENRY! candy
bars, REESE PEANUT BUTTER CUPS candy, TWIZZLERS candy and POT OF GOLD boxed
chocolates.
The Corporation also markets a line of grocery products in the baking,
beverage, peanut butter and dessert toppings categories. Its principal
products include HERSHEY'S baking chocolate, HERSHEY'S baking chips, HERSHEY'S
chocolate drink, HERSHEY'S chocolate milk mix, HERSHEY'S cocoa, HERSHEY'S
CHOCOLATE SHOPPE toppings, HERSHEY'S HOT COCOA COLLECTION hot cocoa mix,
HERSHEY'S syrup, REESE'S peanut butter and REESE'S peanut butter baking chips.
The Corporation's chocolate and non-chocolate confectionery productssnack, refreshment and grocery products are sold primarily to grocery wholesalers, chain grocery
stores, candy distributors, mass merchandisers, chain drug stores, vending
companies, wholesale clubs, convenience stores, concessionaires and food
distributors by full-time sales representatives, food brokers and part-time
retail sales merchandisers throughout the United States, Canada and Mexico.
The Corporation also manufactures and sells quality pasta products
throughout the United States. These products are sold through chain grocery
stores, grocery wholesalers, wholesale clubs,
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convenience stores and food distributors. The Corporation markets its products
on a regional basis under several brand names, including SAN GIORGIO, SKINNER,
RONZONI, P&R, LIGHT 'N FLUFFY, IDEAL BY SAN GIORGIO, MRS. WEISS, and AMERICAN
BEAUTY, as well as certain private labels.
The Corporation's principal operations outside North America are in the Far
East. The Corporation's international operations are conducted through a
variety of forms including wholly-owned subsidiaries, license and distribution
agreements and export sales of North American produced products throughout the
world.
The Corporation wasproducts. We were organized under the laws of the State of Delaware on October 24, 1927, as a successor to a business founded in 1894 by Milton S. Hershey. Its
Our principal executive officesproduct groups include: confectionery and snack products sold in the form of bar goods, bagged items and boxed items; refreshment products sold in the form of gum and mints; and grocery products in the form of baking ingredients, chocolate drink mixes, peanut butter, dessert toppings and beverages. We believe we are located at 100 Crystal A Drive,
Hershey, Pennsylvania 17033,a leader in many of these product groups in the United States, Canada and its telephone number is (717) 534-6799.
RATIO OF EARNINGS TO FIXED CHARGES
Mexico. Operating profit margins vary among individual products and product groups.
Ratio of Earnings to Fixed Charges
For the Six July 3, | For the Years Ended December 31, | ||||||||||||||
| 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | ||||||||||
Ratio of earnings to fixed charges(a) | 8.56 | 11.37 | 10.14 | (b) | 8.86 | (c) | 4.90 | (d) | 6.75 | ||||||
| (a) | For purposes of computing these ratios, (i) earnings |
| (b) | Includes total charges for business realignment initiatives of $25.5 million before tax and a gain on sale of business of $8.3 million before tax. |
| (c) | Includes total charges for business realignment initiatives of $34.0 million before tax and costs related to the potential sale of the Company of $17.2 million before tax. |
| (d) | Includes total charges for business realignment initiatives of $278.4 million before tax. |
Use of computing these ratios, (i) earnings consist of income
from continuing operations before income taxes, accounting changes and
fixed charges and (ii) fixed charges consist of interest expense and one-
third of rental expense deemed to represent the interest factor for
operating leases.
(b) Includes a loss on the disposal of businesses of $35.4 million.
(c) Includes a restructuring credit of $0.2 million.
(d) Includes a restructuring charge of $106.1 million.
(e) Includes a gain of $80.6 million on the sale of the Corporation's
investment interest in Freia Marabou a.s.
USE OF PROCEEDS
Proceeds
Except as may be otherwise set forth in a Prospectus Supplement accompanying this Prospectus, the net proceeds from the sale of the Debt Securities will be added to theour general funds of the Corporation to meet capital additions and working capital requirements, to refundrepay outstanding debt, to fund the repurchase of shares of the Corporation'sour Common Stock and/or to fund acquisitions which we may be made by the Corporationmake from time to time. Pending utilization by the Corporation,our use, we may invest such proceeds may be invested temporarily in short-term marketable securities.
DESCRIPTION OF DEBT SECURITIES
Description of Debt Securities
The Debt Securities offered hereby will be issuable in one or more series under an Indentureindenture dated as of February 1, 1991September 16, 2005 (the "Indenture"“Indenture”) between the
Corporationus and Citibank, N.A., as Trustee (the "Trustee"“Trustee”). The following statements are subject to the detailed provisions of the Indenture, which is filed as an exhibit to the Registration Statement of which this Prospectus forms a part. Wherever references are made to particular provisions of the Indenture or terms defined therein are referred to, such provisions or definitions are incorporated by reference as a part of the statements made and such statements are qualified in their entirety by such references.
GENERAL
General
The Indenture does not limit the amount of debt securitiesDebt Securities which may be issued thereunder. Except as described in "Covenants"“Covenants” below and as otherwise provided in the Prospectus Supplement
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be issued byissue. We may issue the Corporation. The Debt Securities may be issued in one or more series, as we may be authorizedauthorize from time to time by the Corporation (Section 2.5).
Reference is made to the Prospectus Supplement relating to the Offered Securities for the following terms, where applicable, of the Offered Securities: (1) the designation, the aggregate principal amount and the authorized denominations of the Offered Securities; (2) the percentage of their principal amount at which the Offered Securities will be issued; (3) the currency or currencies (including composite currencies) in which the principal of and interest, if any, on the Offered Securities will be payable; (4) the date or dates on which the Offered Securities will mature; (5) the rate or rates at which the Offered Securities will bear interest, if any, or the method by which such rate or rates will be determined and the date or dates from which such interest will accrue; (6) the dates on which and places at which interest, if any, will be payable and the record dates for payment of such interest; (7) the terms of any mandatory or optional repayment or redemption (including any sinking fund); and (8) any other terms of the Offered Securities (Section 2.5). The Indenture provides that Debt Securities of a single series may be issued at various times, with different maturity dates and may bear interest at different rates (Section 2.5).
The Offered Securities will be our unsecured, unsubordinated indebtedness of the
Corporation and will rank on a parity with all of our other unsecured, and
unsubordinated indebtedness of the Corporation.
indebtedness.
Debt Securities of a series may be issued in fully registered form or in the form of one or more Global Securities and, with regard to each series of Debt Securities in respect of which this Prospectus is being delivered, in the denominations set forth in the Prospectus Supplement relating to such series. With regard to each series of Debt Securities, the Corporationwe will maintain in the Borough of Manhattan, The City of New York and in such other place or places, if any, specified in the Prospectus Supplement relating to such series, an office or agency where the Debt Securities of such series may be transferred or exchanged and may be presented for payment of principal, premium, if any, and interest; provided that if such securities are not Global Securities, at theour option, of the Corporation, payment of interest may be made by check mailed to the address of the Personperson entitled thereto as it appears in the register for the Debt Securities (Section 3.2). No service charge will be made for any transfer or exchange of the Debt Securities, but the Corporationwe may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith (Section 2.10).
Some of the Debt Securities may be issued as discounted Debt Securities (bearing no interest or interest at a rate which at the time of issuance is below market rates) to be sold at a substantial discount below their stated principal amount. Federal income tax consequences and other special considerations applicable to any such discounted Debt Securities will be described in the Prospectus Supplement relating thereto.
DEFINITIONS
"Attributable Debt"
Definitions
“Attributable Debt” is defined, in brief, to mean, as to any lease under which any person is at the time liable, at any date as of which the amount thereof is to be determined, the total net amount of rent required to be paid by such person under such lease during the remaining term thereof (including in respect of contingent rents, amounts based on the amount thereof, if any, being paid on the date of determination and excluding amounts on account of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges), discounted from the respective due dates thereof at the weighted average of the rates of interest (and Yields to Maturity, in the case of Original Issue Discount Securities) borne by the Debt Securities then Outstanding, compounded annually (Section 1.1).
"Consolidated
“Consolidated Net Tangible Assets"Assets” is defined to mean the aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (a) all current
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theour and our Domestic Subsidiaries’ most recent consolidated balance sheet, of
the Corporation and its Domestic Subsidiaries, prepared in accordance with U.S. generally accepted accounting principles (Section 1.1).
"Debt"
“Debt” is defined to mean any notes, bonds, debentures or other similar evidences of indebtedness for money borrowed and does not include Attributable Debt (Section 1.1).
"Domestic Subsidiary"
“Domestic Subsidiary” is defined to mean a subsidiary of the Corporationours except a subsidiary (a) which neither transacts any substantial portion of its business nor regularly maintains any substantial portion of its fixed assets within the States of the United States, or (b) the principal purpose of which is to engage in financing our operations or the operations of the Corporation or itsour subsidiaries, or both, outside the States of the United States (Section 1.1).
"Funded Debt"
“Funded Debt” is defined to mean all indebtedness for money borrowed having a maturity of more than 12 months from the date as of which the amount thereof is to be determined or having a maturity of less than 12 months but by its terms being renewable or extendible beyond 12 months from such date at the option of the borrower (Section 1.1).
"Government Obligations"
“Government Obligations” is defined to mean either (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation of the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof (Section 13.1).
"Mortgage"
“Mortgage” is defined to mean any pledge, mortgage, lien, encumbrance or security interest (Section 1.1).
"Principal
“Principal Domestic Operating Property"Property” is defined, in brief, to mean any land or any facility (together with the land on which it is erected and fixtures comprising a part thereof) located in the United States used primarily for manufacturing, processing or production, owned or leased by the
Corporationus or any subsidiary of the Corporationour subsidiaries and having a gross book value in excess of 2% of Consolidated Net Tangible Assets of the Corporation and its
Domestic Subsidiaries other than any such land, facility or portion thereof which in the opinion of theour Board of Directors, of the Corporation, is not of material importance to the total business conducted by the Corporationus and itsour subsidiaries as an entity (Section 1.1).
"Subsidiary
“Subsidiary of the Corporation"Corporation” is defined to mean a corporation a majority of the outstanding voting stock (as defined) of which is owned, directly or indirectly, by the Corporationus or by one or more subsidiaries of the
Corporationour subsidiaries (Section 1.1).
Other capitalized terms used in this "Description“Description of Debt Securities"Securities” have the meanings given them in the Indenture, unless otherwise indicated or unless the context otherwise requires.
COVENANTS
Covenants
Limitation on Liens
If the Corporationwe or any Domestic Subsidiary shall incur, issue, assume or guarantee any Debt secured by a Mortgage on any Principal Domestic Operating Property or on any shares of stock or Debt, held by the Corporationus or any Domestic Subsidiary, of any Domestic Subsidiary, the Corporationwe will secure, or cause such Domestic Subsidiary to secure, the Debt Securities equally and
6
10%15% of theour and our Domestic Subsidiaries’ Consolidated Net Tangible Assets of the Corporation and its Domestic Subsidiaries.Assets. This restriction will not apply to, and there shall be excluded in computing secured Debt for the purpose of such restriction, Debt secured by (a) Mortgages on property of, or on any shares of stock or Debt of, any corporation existing at the time such corporation becomes a Domestic Subsidiary, (b) Mortgages in our favor or in favor of the Corporation or any Domestic Subsidiary, (c) Mortgages in favor of U.S. governmental bodies to secure progress, advance or other payments pursuant to any contract or provision of any statute, (d) Mortgages on property, shares of stock or Debt existing at the time of acquisition thereof (including acquisition through merger or consolidation), purchase money Mortgages and construction cost Mortgages, and (e) any extension, renewal or refunding of any Mortgage referred to in the foregoing clauses (a) through (d), inclusive (Section 3.4). The Indenture will not restrict the incurrence ofour or our subsidiaries’ ability to incur unsecured debt by the Corporation or its
subsidiaries.
debt.
Merger and Consolidation
The Indenture will provide that no consolidation or merger of the
Corporationour company with or into any other corporation and no sale or conveyance of its property as an entirety, or substantially as an entirety, may be made to another corporation if, as a result thereof, any Principal Domestic Operating Property or any shares of stock or Debt, held by the Corporationus or any Domestic Subsidiary, of a Domestic Subsidiary would become subject to a Mortgage, unless either (i) the Debt Securities shall be equally and ratably secured with (or prior to) the Debt secured by such Mortgage or (ii) such Mortgage could be created pursuant to Section 3.4 (See "Limitation“Limitation on Liens"Liens” above) without equally and ratably securing the Debt Securities (Section 9.3). In addition, as a result of the consolidation, merger or conveyance, either the Corporationwe shall be the continuing corporation or the successor corporation shall be a corporation organized and existing under the laws of the United States or a state thereof and the successor corporation shall expressly assume the due and punctual payment of principal of (and premium, if any) and interest on all Debt Securities and the Corporation'sour obligations under the Indenture in a supplemental indenture satisfactory to the Trustee (Section 9.1).
Limitations on Sales and Leasebacks
Neither the Corporationwe nor any Domestic Subsidiary may enter into any sale and leaseback transaction involving any Principal Domestic Operating Property, completion of construction and commencement of full operation of which has occurred more than 120 days prior thereto, unless (a) the Corporationwe or such Domestic Subsidiary could mortgage such property pursuant to Section 3.4 (see "Limitation“Limitation on Liens"Liens” above) in an amount equal to the Attributable Debt with respect to the sale and leaseback transaction without equally and ratably securing the Debt Securities or (b) the Corporation,we, within 120 days after completion of the sale and leaseback transaction, appliesapply to the retirement of itsour Funded Debt an amount (subject to credits for certain voluntary retirements of Funded Debt) not less than the greater of (i) the net proceeds of the sale of the Principal Domestic Operating Property so leased or (ii) the fair market value of the Principal Domestic Operating Property so leased. This restriction will not apply to any sale and leaseback transaction (a) between the Corporationus and a Domestic Subsidiary or between Domestic Subsidiaries or (b) involving the taking back of a lease for a period of not more than three years (Section 3.5).
Unless otherwise indicated in a Prospectus Supplement, certain of the covenants described above would not necessarily afford holders of the Debt Securities protection in the event of a highly leveraged transaction involving the Corporation,us, such as a leveraged buyout. In this regard, however, it should be noted that voting control of the Corporationour company is held by Hershey Trust Company, as Trustee for the benefit of Milton Hershey School (the "Hershey Trust"“Milton Hershey School Trust”), which holdsas of December 31, 2004 held approximately 76.0 percent78.1% of the combined voting power of both classes of the Corporation'sour outstanding common stock.Common Stock. The Milton Hershey School Trust has
7
maintainedmaintains voting control of our company and must approve the Corporation since 1918 and has statedissuance of shares of Common Stock or any other action that would result in the Milton Hershey School Trust not continuing to have voting control of our company. On July 25, 2002, we confirmed that the Milton Hershey School Trust, which at that time controlled 77.6% of the combined voting power of both classes of our outstanding Common Stock, had informed us that it has no interesthad decided to diversify its holdings and in sellingthis regard wanted us to explore a sale of the entire company. On September 17, 2002, the Milton Hershey School Trust informed us that it had elected not to sell its controlling shares ininterest and requested that the Corporation.
EVENTS OF DEFAULT, WAIVER AND NOTICE
process to explore a sale be terminated.
Events of Default, Waiver and Notice
Except as may otherwise be provided in the Prospectus Supplement, as to any series of Debt Securities, an Event of Default is defined in the Indenture as (a) default in the payment of any installment of interest, if any, on the Debt Securities of such series when due and the continuance of such default for a period of 30 days; (b) default in payment of the principal of (and premium, if any, on) any of the Debt Securities of such series when due, whether at maturity, upon redemption, by declaration or otherwise; (c) default in the payment of a sinking fund installment, if any, on the Debt Securities of such series when due; (d) default by the Corporationus in the performance of any other covenant or agreement contained in the Indenture, other than a covenant expressly included in the Indenture solely for the benefit of series of Debt Securities other than such series, and the continuance of such default for a period of 6090 days after appropriate notice; (e) certain events of bankruptcy, insolvency and reorganization of the Corporation;our company; and (f) any other Event of Default established with respect to Debt Securities of that series (Sections 2.5 and 5.1).
An Event of Default with respect to a particular series of Debt Securities issued under the Indenture does not necessarily constitute an Event of Default with respect to any other series of Debt Securities issued thereunder.
The Indenture provides that the Trustee shall, within 90 days after the occurrence of a default with respect to Debt Securities of any series, give all the holders of Debt Securities of such series then outstanding notice of all uncured defaults known to it (the term default to mean the events specified above, not including grace periods); provided that, except in the case of a default in the payment of principal of (and premium, if any) or interest, if any, on any Debt Security of any series, or in the payment of any sinking fund installment with respect to Debt Securities of any series, the Trustee shall be protected in withholding such notice if it in good faith determines that the withholding of such notice is in the interest of all the holders of Debt Securities of such series then outstanding (Section 5.11).
The Indenture provides that if an Event of Default with respect to any series of Debt Securities shall have occurred and be continuing, either the Trustee or the holders of at least 25% in principal amount (calculated as provided in the Indenture) of the Debt Securities of such series then outstanding may declare the principal (or, in the case of Original Issue Discount Securities, the portion thereof as may be specified in the Prospectus Supplement relating to such series) of all of the Debt Securities of such series and the interest accrued thereon, if any, to be due and payable immediately (Section 5.1).
Upon certain conditions such declarations of acceleration with respect to Debt Securities of any series may be annulled and past defaults (except for defaults in the payment of principal (or premium, if any) or interest, if any, on such Debt Securities not theretofore cured or in respect of a covenant or provision of the Indenture which cannot be amended or modified without the consent of the holder of each outstanding Debt Security of that series affected) may be waived with respect to such series by the holders of not less than a majority in principal amount (calculated as provided in the Indenture) of the Debt Securities of such series then outstanding (Section 5.10).
The Indenture requires that the Corporationwe file with the Trustee annually a written statement as to the presence or absence of certain defaults under the terms thereof and as to performance and fulfillment of certain covenants or agreements therein (Section 3.6).
The Indenture provides that the holders of not less than a majority in principal amount (calculated as provided in the Indenture) of the Debt Securities of any series then outstanding shall have the right to direct the time, method and place of conducting any proceeding or remedy available to the Trustee, or exercising any trust or power conferred on the Trustee by the Indenture with respect to defaults or Events of Default with respect to Debt Securities of such series (Section 5.9).
8
The Indenture provides that the Trustee shall be under no obligation, subject to the duty of the Trustee during default to act with the required standard of care, to exercise any of the rights or powers vested in it by the Indenture at the direction of the holders of Debt Securities unless such holders shall have offered to the Trustee reasonable security or indemnity against expenses and liabilities (Section 6.2).
DEFEASANCE
Defeasance
The Indenture provides that the Corporationwe may terminate itsour obligations under Sections 3.4, 3.5 and 9.3 of the Indenture (being the restrictions described under "Covenants--Limitation“Covenants—Limitation on Liens"Liens” and "--Limitations“Covenants—Limitations on Sales and Leasebacks"Leasebacks” and the first sentence under "Covenants--Merger“Covenants—Merger and Consolidation"Consolidation” above) with respect to the Debt Securities of any series, on the terms and subject to the conditions contained in the Indenture, by depositing in trust with the Trustee money or Government Obligations sufficient to pay the principal of (and premium, if any) and interest on the Debt Securities of such series and any mandatory sinking fund or analogous payments thereon, on the scheduled due dates therefor. Such deposit and termination is conditioned upon, among other things, the Corporation'sour delivery of an opinion of counsel that the holders of the Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and termination and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case had such deposit and termination not occurred. Such termination will not relieve the Corporationus of itsour obligation to pay when due the principal of or interest on the Debt Securities of such series if the Debt Securities of such series are not paid from the money or Government Obligations held by the Trustee for the payment thereof (Section 13.1).
MODIFICATION OF THE INDENTURE
Modification of the Indenture
The Indenture contains provisions permitting the Corporationus and the Trustee, with the consent of the holders of not less than 66 2/3%a majority in principal amount (calculated as provided in the Indenture) of the outstanding Debt Securities of each series affected by such modification, to modify the Indenture or any supplemental indenture or the rights of the holders of the Debt Securities of any series; provided that no such modification shall, without the consent of the holders of each Debt Security affected thereby, extend the maturity of any Debt Security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce the portion of the principal amount of an Original Issue Discount Security due and payable upon acceleration of the maturity thereof or the portion of the principal amount thereof provable in bankruptcy, or reduce any amount payable upon redemption of any Debt Security, or reduce the overdue rate thereof, or impair any right of repayment at the option of the holder of any Debt Security or change the currency of payment of principal or interest on any Debt Security or reduce the percentage in principal amount of Outstanding Debt Securities of any series the consent of the holders of which is required for modification or amendment of the Indenture or for waiver of compliance with certain provisions of the Indenture or for waiver of certain defaults (Section 8.2).
The holders of 66 2/3%not less than a majority in principal amount of the Outstanding Debt Securities of any series may on behalf of the holders of all Debt Securities of such series waive, insofar as that series is concerned, our compliance by the
Corporation with certain restrictive provisions (Limitation on Liens and Limitations on Sales and Leasebacks) of the Indenture (Section 3.8).
The Indenture also permits the Corporationus and the Trustee to amend the Indenture in certain circumstances without the consent of the holders of any Debt Securities to evidence the merger of the Corporationour company or the replacement of the Trustee and for certain other purposes (Section 8.1).
REGARDING THE TRUSTEE
Regarding the Trustee
The Trustee extends credit facilities to the Corporationus and the Corporation
maintainswe maintain bank accounts, borrowsborrow money and hashave other customary banking relationships with the Trustee, all in the ordinary course of business.
9
PLAN OF DISTRIBUTION
The Corporation
We may sell Debt Securities to or through underwriters or dealers and also may sell Debt Securities directly to one or more other purchasers or through agents. The Prospectus Supplement sets forth the names of any underwriters or agents involved in the sale of the Offered Securities and any applicable commission or discounts.
The distribution of Debt Securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may receive compensation from the Corporationus or from purchasers of Debt Securities for whom they may act as agents in the form of discounts, concessions or commissions. Underwriters may sell Debt Securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution of Debt Securities may be deemed to be underwriters, and any discounts or commissions received by them from the Corporationus and any profit on the resale of Debt Securities by them may be deemed to be underwriting discounts and commissions under the Securities Act. Any such underwriter or agent will be identified, and any such compensation received from the Corporationus will be described in the Prospectus Supplement.
Under agreements which we may be enteredenter into, by the Corporation, underwriters and agents who participate in the distribution of Debt Securities may be entitled to indemnification by the Corporationus against certain liabilities, including liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Corporationwe will authorize underwriters or other persons acting as the Corporation'sour agents to solicit offers by certain institutions to purchase Debt Securities from the
Corporationus pursuant to contracts providing for payment and delivery on a future date. Institutions with which such contracts may be made include commercial savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and others, but in all cases we must approve such institutions must be approved by the Corporation.institutions. The obligations of any purchaser under any such contract will be subject to the condition that the purchase of the Offered Securities shall not at the time of delivery be prohibited under the laws of the jurisdiction to which such purchaser is subject. The underwriters and such other agents will not have any responsibility in respect of the validity or performance of such contracts.
VALIDITY OF OFFERED SECURITIES
The validity of, and certain other legal matters with respect to, the Offered Securities will be passed upon for the Corporationus by Robert M. Reese,
Vice President, General Counsel and Secretary of the Corporation.Simpson Thacher & Bartlett LLP, New York, New York. Certain legal matters in connection with this offering will be passed upon for the underwriters by Milbank, Tweed, HadleyCleary Gottlieb Steen & McCloy, 1 Chase Manhattan Plaza,Hamilton LLP, New York, New York 10005. Mr. Reese, as of August 1, 1997, was the beneficial
owner of 34,878 shares of the Corporation's Common Stock and held options to
purchase 59,600 additional shares.
EXPERTS
York.
The consolidated financial statements and schedules of The Hershey Foods
CorporationCompany and its subsidiaries incorporated by reference in this Prospectus and elsewhere in the Registration Statement by reference to the Corporation'sits most recently filed Annual Report on Form 10-K have been audited by Arthur
AndersenKPMG LLP, an independent registered public accountants,accounting firm, as indicated in their reports with respect thereto, and are incorporated by reference herein in reliance upon such reports given on the authority of saidsuch firm as experts in giving said reports.
10
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forthlists the Registrant's expenses expected to be incurred in connection with the issuancepreparation and filing of the securities being registered. Except forregistration statement, including amendments thereto, and the registration
fee,printing and distribution of the prospectus contained therein, all of which will be paid by the registrant. All amounts listed below, other than the Securities and Exchange Commission registration fee, are estimates:
Securities and Exchange Commission registration fee | $ | 88,275 | |
Printing and duplicating expenses | 1,000 | ||
Rating agency fees | 156,000 | ||
Trustee fees and expenses | 2,500 | ||
Accounting fees and expenses | 7,500 | ||
Legal fees and expenses | 110,000 | ||
Total | $ | 365,275 |
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
BY-LAWS; DELAWARE LAW.
Section 145 of the Delaware General Corporation Law (the "DGCL"“DGCL”) empowers a Delawaregrants each corporation organized thereunder the power to indemnify any personsperson who are,
or are threatened to be made, parties to any threatened, pending or completed
legal action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation),
by reason of the fact that such person was an officer or director of such
corporation, or is or was serving at the request of such corporation as an
officer or a director, officer, employee or agent of anothera corporation or enterprise. The indemnity may
includeenterprise, against expenses, (including attorneys' fees),including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by suchthe person in connection with suchany threatened, pending or completed action, suit or proceeding, provided thatwhether civil, criminal, administrative or investigative, other than an action by or in the right of the corporation, by reason of being or having been in any such officer or
directorcapacity, if such person acted in good faith and in a manner hethe person reasonably believed to be in or not opposed to the corporation's best interests of the corporation, and, forwith respect to any criminal proceedings,action or proceeding, had no reasonable cause to believe histhat the person’s conduct was illegal. A
Delaware corporation may indemnify officers and directors against expenses
(including attorneys' fees) in connection with the defense or settlement of an
action by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the officer
or director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him or her against the
expenses (including attorneys' fees) which such officer or director actually
and reasonably incurred in connection therewith.
unlawful.
Section 102(b)(7) of the DGCL provides thatenables a Delaware corporation mayin its certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director to a Delawarethe corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit
the liability of a directorexcept (i) for any breach of the director'sdirector’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) underpursuant to Section 174 of the DGCL relating to the(providing for liability of directors for unlawful payment of a dividenddividends or an unlawful stock purchasepurchases or redemptionredemptions) or (iv) for any transaction from which the director derived an improper personal benefit.
The Sixth Article of the registrant’s Restated Certificate of Incorporation provides that to the fullest extent permitted by the DGCL, no director of the registrant shall be personally liable to the registrant or its stockholders for monetary damages for breach of fiduciary duty as a director and that the registrant may indemnify directors and officers of the registrant.
Article VI of the By-Laws of the Corporationregistrant provides that the Corporationregistrant shall indemnify, in the manner and to the fullest extent permitted by the DGCL, any person who is, was or is threatened to be made a defending party to any proceeding (including any pending or threatened civil or criminal II-1
Corporationregistrant or is or was serving, at the request of the Corporation,registrant, in such capacity for another enterprise. The Corporationregistrant will pay in advance of final disposition all expenses incurred by a director or officer in defending a proceeding which is subject to indemnification. The Corporationregistrant has the burden of proving that a director or officer was not entitled to indemnification.
INSURANCE.
The Corporation'sregistrant’s directors and officers are insured against losses arising from any claim against them as such for wrongful acts or omissions, subject to certain limitations.
ITEM 16. EXHIBITS.
See Index to Exhibits.
ITEM 17. 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 |
| (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 |
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do 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 Registrantregistrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated by reference in this Registration Statement.
(2) 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 initialbona 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. |
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 Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act ) 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 initialbona 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
Exchange Act that is incorporated by reference in this 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 Registrantregistrant pursuant to the foregoing provisions, or otherwise, the Registrantregistrant 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 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrantregistrant of expenses incurred or paid by a director, officer or controlling person of the Registrantregistrant 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 Registrantregistrant 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 of 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.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hershey, State of Pennsylvania, on September 16, 2005.
| The Hershey Company | ||
| By: | /s/ D. J. West | |
| Name: | D. J. West | |
| Title: | Senior Vice President and | |
| Chief Financial Officer | ||
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-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF HERSHEY, STATE OF PENNSYLVANIA ON THIS 13TH DAY OF
AUGUST, 1997.
Hershey Foods Corporation
By: /s/ W. F. Christ
---------------------------------
W. F. CHRIST,
SENIOR VICE PRESIDENT, CHIEF
FINANCIAL OFFICER
AND TREASURER
POWERPOWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints K. L. Wolfe,R. H. Lenny, D. J. P. Viviano, W. F. ChristWest and R.
M. Reese, and eachB. H. Snyder or any of them, his or her true and lawful attorneys-in-fact, and
agents,each with fullthe power of substitution, and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities to sign any orand all amendments to this registration statement (including post-effective amendments) to this Registration
Statement,, and to sign any registration statement relating tofor the same offering covered by this Registration
Statementregistration statement that is to becomebe effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that saidsuch attorneys-in-fact, and agents,or his or their 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 HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ K. L. Wolfe ChairmanThis Power of Attorney may be signed in several counterparts.
Pursuant to the requirements of the August 13, 1997
- ------------------------------------- BoardSecurities Act, this registration statement has been signed by the following persons in their capacities and Chief
(K. L. WOLFE) Executive Officer
and Director
/s/ J. P. Viviano President and Chief August 13, 1997
- ------------------------------------- Operating Officer
(J. P. VIVIANO) and Director
/s/ W. F. Christ Senior Vice August 13, 1997
- ------------------------------------- President, Chief
(W. F. CHRIST) Financial Officer
and Treasurer
II-4
SIGNATURE TITLE DATE
--------- ----- ----
/s/ D. W. Tacka Controller and Chief August 13, 1997
- ------------------------------------- Accounting Officer
(D. W. TACKA)
/s/ W. H. Alexander Director August 13, 1997
- -------------------------------------
(W. H. ALEXANDER)
/s/ R. H. Campbell Director August 13, 1997
- -------------------------------------
(R. H. CAMPBELL)
/s/ C. M. Evarts Director August 13, 1997
- -------------------------------------
(C. M. EVARTS)
/s/ B. Guiton Hill Director August 13, 1997
- -------------------------------------
(B. GUITON HILL)
/s/ J. C. Jamison Director August 13, 1997
- -------------------------------------
(J. C. JAMISON)
/s/ M. J. McDonald Director August 13, 1997
- -------------------------------------
(M. J. MCDONALD)
/s/ J. M. Pietruski Director August 13, 1997
- -------------------------------------
(J. M. PIETRUSKI)
/s/ V. A. Sarni Director August 13, 1997
- -------------------------------------
(V. A. SARNI)
II-5
EXHIBIT on the dates indicated:
Signature | Title | Date | ||
/s/ R. H. Lenny R. H. Lenny | Chief Executive Officer and Director (Principal Executive Officer) | September 16, 2005 | ||
/s/ D. J. West D. J. West | Chief Financial Officer (Principal Financial Officer) | September 16, 2005 | ||
/s/ D. W. Tacka D. W. Tacka | Chief Accounting Officer (Principal Accounting Officer) | September 16, 2005 | ||
/s/ J. A. Boscia J. A. Boscia | Director | September 16, 2005 | ||
/s/ R. H. Campbell R. H. Campbell | Director | September 16, 2005 | ||
/s/ R. F. Cavanaugh R. F. Cavanaugh | Director | September 16, 2005 | ||
/s/ G. P. Coughlan G. P. Coughlan | Director | September 16, 2005 | ||
/s/ H. Edelman H. Edelman | Director | September 16, 2005 | ||
/s/ B. G. Hill B. G. Hill | Director | September 16, 2005 | ||
/s/ A. F. Kelly, Jr. A. F. Kelly, Jr. | Director | September 16, 2005 | ||
/s/ M. J. McDonald M. J. McDonald | Director | September 16, 2005 | ||
/s/ M. J. Toulantis M. J. Toulantis | Director | September 16, 2005 | ||
INDEX TO EXHIBITS
Exhibit | Description of Exhibits | |
1.1 | Form of Underwriting Agreement for Debt Securities | |
4.1 | Indenture between The Hershey | |
4.2 | Form of Debt Security | |
5.1 | Opinion of | |
12.1 | Computation of Ratio of Earnings to Fixed | |
23.1 | Consent of | |
23.2 | Consent of | |
24.1 | Powers of Attorney (included on signature | |
25.1 | Form T-1 Statement of Eligibility | |