As filed with the Securities and Exchange Commission on
February 25, 2005June 30, 2009Registration No.
333-120982333-UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 toFORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SENECA FOODS CORPORATION
(Exact(Exact name of registrant as specified in its charter)
New York 16-0733425 (State or Other Jurisdiction (I.R.S. Employer of Incorporation or Organization) Identification No.)
New York | 16-0733425 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
3736 South Main Street
Marion, New York 14505
(315) 926-8100
(Address, Including Zip Code,
(Address, including zip code, and Telephone Number,
Including Area Code,telephone number, including area code, of Registrant's Principal Executive Offices)
registrant’s principal executive offices)
KRAIG H. KAYSER
President and Chief Executive Officer
3736 South Main Street
Marion, New York 14505
(315) 926-8100
(Name, Address, Including Zip Code,
(Name, address, including zip code, and Telephone Number,
Including Area Code,telephone number, including area code, of Agentagent for Service)
Copiesservice)
Copy to:
WILLIAM I. SCHAPIRO,
MICHAEL C. DONLON, Esq.
Jaeckle Fleischmann & Mugel, LLP
Twelve Fountain Plaza, Suite 800
Buffalo, New York 14202
(716) 856-0600
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement until such time that all of the shares registered hereunder have been sold.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.[ ]
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, (the "Securities Act"), other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X]
box: x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective Registration Statementregistration 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 If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box: ¨ Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one) CALCULATION OF REGISTRATION FEE Proposed maximum share(1) Proposed maximum offering price(1) Amount of registration fee Class A Common Stock 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, as amended, or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. The information in this prospectus is not complete and may be changed. Subject to Completion, dated PROSPECTUS SENECA FOODS CORPORATION Class A Common Stock This prospectus relates to the public resale from time to time of up to The selling shareholders may sell the Class A Investment in our Class A common stock involves risk. You should consider therisk factors on page 2 of this prospectus, in our periodic reports filed from time to time with the Securities and Exchange Commission (the “SEC”) and incorporated by reference herein and in any applicable prospectus supplement or free-writing prospectus. Neither the SEC nor any state securities commission has approved or disapproved of The date of this You should rely only on the information contained in or incorporated by reference In connection with This prospectus and the documents incorporated by reference herein contain summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual i ABOUT SENECA FOODS CORPORATION We Seneca Foods Corporation was founded in As of March 31, 2009, we owned 20 processing plants strategically located throughout the United States, two can manufacturing plants, two seed processing operations, a Investing in our Class A common stock involves risks. You should carefully consider the risk factors This prospectus, Because Among the factors that could general economic and business conditions; cost and availability of commodities and other raw materials transportation costs; climate and weather affecting growing conditions and crop yields; leverage and ability to service and reduce our debt; foreign currency effectiveness of marketing and trade promotion programs; changing consumer preferences; competition; product liability claims; the loss of significant customers or a substantial reduction in orders from these customers; changes in, or the failure or inability to comply with, U.S., foreign and local governmental regulations, including environmental and other risks detailed from time to time in Except for ongoing obligations to We will not receive any of the proceeds from the sale of the The following table sets forth the classes of our capital stock authorized and outstanding as of Title of Class or Series Common Stocks: Class A Common Stock, $0.25 par value per share Class B Common Stock, $0.25 par value per share Preferred Stocks: Six Percent (6%) Voting Cumulative Preferred Stock, $0.25 par value per share Preferred Stock Without Par Value Ten Percent (10%) Cumulative Convertible Voting Preferred Stock-Series A, $0.25 stated value per share Ten Percent (10%) Cumulative Convertible Voting Preferred Stock-Series B, $0.25 stated value per share Convertible Participating Preferred Stock Convertible Preferred Stock Series 2003 Convertible Participating Preferred Stock, Series 2006 Description of Class A Common Stock and Class B Common Stock Voting. Under our The holders of Class A In addition, Section 804 of the New York Business Corporation Law confers upon the holders of Class A On proposals on which holders of Class A Dividends and Other Distributions. Each share of Class A Mergers and Consolidations. In the event of our merger, consolidation, or combination with another entity (whether or not we are the surviving entity) or in the event of our dissolution, the holders of Class A Class A Special Rights. Our Charter contains a two-pronged First, the Class A special rights seek to prevent a person who has crossed a certain ownership threshold from gaining control of us by acquiring Class B The second prong of the Class A special rights is an The highest closing market sale price of a share of Class B Under the Class A special rights, an acquisition of Class B For purposes of calculating the 15% threshold, the following acquisitions and increases are excluded: (i) shares of Class B The Class A special rights also provide that, to the extent that the voting power of any share of Class B Convertibility. The Class B In the event of any such conversion of the Class A Preemptive Rights. Neither the Class A Trading Market. The Class A Description of Preferred No dividends or other distributions are payable on our common stock unless dividends or distributions are first paid on the preferred stock. In the event of our liquidation or dissolution, the outstanding shares of preferred stock and convertible participating preferred stock The 10% Series B preferred stock is convertible into common stock on the basis of one share of Class A Restrictions on Hostile Acquisitions of Our In addition to the restrictions imposed by the Our Our bylaws provide for the staggered voting of directors for three-year terms so that shareholders desiring to replace the incumbent directors and gain control of the Board would be required to win at least two successive annual contests before their nominees constituted a majority of directors. Shareholders Agreement In connection with the 1998 issuance of the Agreements Restricting Change in Control The Alliance Agreement and certain significant agreements between us and our lenders provide for penalties in the event of our change of control as defined in the respective agreements. The Class A common stock being offered by this prospectus may be sold from time to time by a selling shareholder to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis. We will provide the specific plan of distribution for any Class A common stock to be offered hereby in supplements to this prospectus. The selling shareholders will include certain affiliates of CMMC, and related individual shareholders, including Andrew M. Boas, a general partner of CMMC and one of our directors, and certain of his immediate family members. James F. Wilson, one of our directors, is also a general partner of CMMC. Mr. Boas has served as our director since 1998 and serves on our compensation and nominating committees. Mr. Wilson has served as one of our directors since 2008 and serves on our compensation committee. The selling shareholders will also include Manulife Financial Corporation, or Manulife, which holds shares through its indirect wholly-owned subsidiaries, John Hancock Life Insurance Company and John Hancock Variable Life Insurance Company. The Class A common stock being sold by the selling shareholders will include issued and outstanding shares of Class A common stock held by such selling shareholders as well as shares of Class A common stock issuable upon conversion of our convertible participating preferred stock and Class B common stock held by such selling shareholders. Such conversion will occur immediately prior to the consummation of any sale pursuant to this prospectus of Class A common stock issuable upon such conversion. The The consolidated financial statements and WHERE YOU CAN FIND MORE INFORMATION We have filed with the SEC a registration statement under the Securities Act with respect to the securities offered hereunder. As permitted by the SEC’s rules and regulations, this prospectus does not contain all the information set forth in the registration statement. For further information, please refer to the registration statement and the contracts, agreements and other documents filed as exhibits to the registration statement. Additionally, we file annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy all or any portion of the registration statement or any other materials that we file with the SEC at the SEC public reference room at 100 F Street, N.E., Washington, D.C., 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference room. Our SEC filings, including the registration statement and the documents incorporated by reference INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The SEC allows us to incorporate by reference the information contained in documents that we file with them. The information incorporated by reference is considered to be part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings we make with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act (excluding any information furnished under Items 2.02 or 7.01 in any current report on Form 8-K) prior to the completion of the offering of Class A common stock pursuant to this prospectus: our annual report on Form 10-K for the year ended March 31, Any statement contained in You may request a free copy of these filings (other than exhibits, unless they are specifically incorporated Seneca Foods Corporation Attention: Chief Financial Officer 3736 South Main Street, Marion, New York 14505 (315) 926-8100 PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS Item 14. Other Expenses of Issuance and Distribution. The following table sets forth the various expenses in connection with the issuance and distribution of the securities. SEC Filing Fees Legal Fees and Expenses Accounting Fees and Expenses Printing Miscellaneous Expenses Total Item 15. 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 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 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. II-1 Item 16. Exhibits. Exhibit Number Description Form of underwriting agreement. The Company’s Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3.1 to the Company’s Form 10-Q/A filed August 1995 for the quarter ended July 1, 1995) Certificate of Amendment to the Company’s Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3.2 to the Company’s Form 10-Q/A filed August 1995 for the quarter ended July 1, 1995) Certificate of Amendment to the Company’s Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3 to the Company’s Form 10-K for the fiscal year ended March 31, 1996) Certificate of Amendment to the Company’s Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3(i) to the Company’s Current Report on Form 8-K dated September 17, 1998) Certificate of Amendment to the Company’s Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3 to the Company’s Current Report on Form 8-K dated June 10, 2003) Certificate of Amendment to the Company’s Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3 to the Company’s Current Report on Form 8-K dated June 18, 2004) Certificate of Amendment to the Company’s Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3 to the Company’s Current Report on Form 8-K dated August 23, 2006) The Company’s Bylaws (incorporated by reference to Exhibit 3.3 to the Company’s Quarterly Report on Form 10-Q/A filed August 18, 1995) Amendment to the Company’s Bylaws (incorporated by reference to Exhibit 3 to the Company’s Current Report on Form 8-K dated November 6, 2007) Opinion of Jaeckle Fleischmann & Mugel, LLP regarding legality of the Class A Common Stock Consent of BDO Seidman, LLP Consent of Jaeckle Fleischmann & Mugel, LLP (included in Exhibit 5 above) Powers of Attorney (included on signature page) II-2 Item 17. Undertakings. provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the Registration Statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the Registration Statement relating to the securities in the Registration Statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a Registration Statement or prospectus that is part of the Registration Statement or made in a document incorporated or deemed incorporated by reference II-3 into the Registration Statement or prospectus that is part of the Registration Statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the Registration Statement or made in any such document immediately prior to such effective date. II-4 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 /S/ KRAIG H. KAYSER II-5 POWERS OF ATTORNEY KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints each of Kraig H. Kayser and Roland E. Breunig, acting individually, his or her true and lawful attorney-in-fact and agent, each with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto, and one or more related registration statements to be filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, 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 substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Signature Title /s/ ARTHUR S. WOLCOTT Arthur S. Wolcott Chairman and Director /s/ KRAIG H. KAYSER Kraig H. Kayser President, Chief Executive Officer and Director /s/ ROLAND E. BREUNIG Roland E. Breunig Chief Financial Officer and Treasurer /s/ JEFFREY L. VAN RIPER Jeffrey L. Van Riper Vice President, Controller and Secretary (Principal Accounting Officer) /s/ ARTHUR H. BAER Arthur H. Baer Director /s/ ANDREW M. BOAS Andrew M. Boas Director /s/ ROBERT T. BRADY Robert T. Brady Director /s/ SUSAN A. HENRY Susan A. Henry Director /s/ G. BRYMER HUMPHREYS G. Brymer Humphreys Director /s/ THOMAS PAULSON Thomas Paulson Director /s/ SUSAN W. STUART Susan W. Stuart Director /s/ JAMES F. WILSON James F. Wilson Director II-6 EXHIBIT INDEX Exhibit Number Description Form of underwriting agreement. The Company’s Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3.1 to the Company’s Form 10-Q/A filed August 1995 for the quarter ended July 1, 1995) Certificate of Amendment to the Company’s Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3.2 to the Company’s Form 10-Q/A filed August 1995 for the quarter ended July 1, 1995) Certificate of Amendment to the Company’s Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3 to the Company’s Form 10-K for the fiscal year ended March 31, 1996) Certificate of Amendment to the Company’s Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3(i) to the Company’s Current Report on Form 8-K dated September 17, 1998) Certificate of Amendment to the Company’s Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3 to the Company’s Current Report on Form 8-K dated June 10, 2003) Certificate of Amendment to the Company’s Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3 to the Company’s Current Report on Form 8-K dated June 18, 2004) Certificate of Amendment to the Company’s Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3 to the Company’s Current Report on Form 8-K dated August 23, 2006) The Company’s Bylaws (incorporated by reference to Exhibit 3.3 to the Company’s Quarterly Report on Form 10-Q/A filed August 18, 1995) Amendment to the Company’s Bylaws (incorporated by reference to Exhibit 3 to the Company’s Current Report on Form 8-K dated November 6, 2007) Opinion of Jaeckle Fleischmann & Mugel, LLP regarding legality of the Class A Common Stock Consent of BDO Seidman, LLP Consent of Jaeckle Fleischmann & Mugel, LLP (included in Exhibit 5 above) Powers of Attorney (included on signature page) II-7delivery ofthis Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the prospectus is expected to be madeCommission pursuant to Rule 434,
please462(e) under the Securities Act, check the following box: [ ]
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of Class of Proposed Maximum Offering Proposed Maximum Amount of Registration
Securities to be Registered Amount to be Registered Price Per Share Aggregate Offering Price Fee
- ------------------------------------------------------------------------------------------------------------------------------------
633,000 $18.25 (2) $11,552,250 (2) $1,464 (5)
Convertible Participating
Preferred Stock (1)
- ------------------------------------------------------------------------------------------------------------------------------------
Class A Common Stock (3) 633,000 (4) (4) 0
====================================================================================================================================
(1) The Convertible Participating Preferred Stock ("Preferred Stock")
is convertible into Class A Common Stock¨Large Accelerated Filer ¨ Accelerated Filer x Non-accelerated Filer ¨ Smaller Reporting Company on the
basis of one share of Class A Common Stock for each share of
Preferred Stock. ¨ Title of each class of securities to be registered Amount to be
registered
offering price per
aggregate 4,256,332 $29.45 $125,348,977 $6,994 (1) The Class A Common Stock into which the Preferred
Stock is convertible is also being registered pursuant to this
Registration Statement.
(2) Estimated solely for the purpose of calculating the registration
fee based upon the value of the shares of Registrant's Class A
Common Stock into which the Preferred Stock may be converted.
There currently is no trading market for the Preferred Stock. The
Class A Common Stockcommon stock was valued pursuant to Rule 457(c) under the Securities Act of 1933 and based upon the average of the high and low prices for the Class A Common Stockcommon stock as reported on the NASDAQ NationalGlobal Market on November 29, 2004.
(3) Includes an indeterminate number of shares of Class A Common Stock
as may be issuable upon conversion of the Preferred Stock
registered hereunder pursuant to anti-dilution provisions of such
securities, for which no separate fee is payable pursuant.
(4) As a registration fee is being paid on the Preferred Stock, no
registration fee is payable on the underlying Class A
Common Stock pursuant to Rule 457(i).
(5) Previously paid by the Registrant in connection with the original
filing of this registration statement on December 3, 2004.
June 24, 2009.AThe selling shareholders may not sell these securities until the 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 becomesCommission is effective. This prospectus shallis not constitute an offer to sell nor the
solicitation ofthese securities and it is not soliciting an offer to buy nor shall there be any sale of these securities in any state in which suchwhere the offer solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state.
is not permitted.February 25, 2005
June 30, 2009
633,000 shares of Convertible Participating Preferred Stock
and shares of Issuable upon
Conversion of the Convertible Participating Preferred Stock
633,0004,256,332 shares of Convertible Participating Preferred Stock (the "Preferred
Stock") by the selling stockholders named in this prospectus. If the selling
shareholders or their transferees convert all of their Preferred Stock, we will
issue up to a total of 633,000 shares ofour Class A Common Stock, par value $0.25 per share, (the "Classwhich we refer to in this prospectus as our Class A Common Stock"), subject to any adjustments.common stock, by selling shareholders identified under “Selling Shareholders” and in the relevant prospectus supplement. We are registering the offerednot selling any securities as required under the terms of a
registration rights agreement for the benefit of the selling shareholders. Thisthis prospectus will be used by the selling shareholders to resell their Preferred
Stock and Class A Common Stock directly to purchasers or through underwriters,
broker-dealers or agents, who may receive compensation in the form of discounts
or commissions. The selling shareholders reserve the sole right to accept or
reject, in whole or in part, any proposed purchase of the shares to be made
directly or through agents. We will not receive any proceeds from the sale of the sharesClass A common stock by the selling shareholders. Our Class A Common Stockcommon stock is quotedlisted on the NASDAQ NationalGlobal Market under the symbol "SENEA."“SENEA.��� On February 24, 2005,June 29, 2009, the last reported sale price forof our Class A Common Stock was $16.75 per share. The Preferred Stock is not listedcommon stock on any
securities exchange or the NASDAQ StockGlobal Market and there is no public market for
these securities. Shares of Preferred Stock have priority overwas $33.45 per share.Common Stock in the payment of dividends and in the event of liquidation, are
non-voting except in limited circumstances and are convertible into shares of
Class A Common Stock.
The securities offered hereby involve a high degree of risk. See "Risk
Factors" beginning on page 6 for certain factors and considerations relevant to
a purchase of the securitiescommon stock being offered by this prospectus from time to time on terms to be determined through any of the means described in this prospectus under “Plan of Distribution.” We will not be paying any discounts or commissions in any offering pursuant to this prospectus.
Neitherthesethe securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.prospectusProspectus is ____________, 2004.
Page 1 2 2 3 3 7 7 8 8 8 9 ininto this prospectus and any related prospectus supplement or free-writing prospectus. We have not, and the selling shareholders have not, authorized any dealer, salesperson or other person to give anyprovide you with different information. If anyone provides you with different or inconsistent information, or represent anythingyou should not contained in this
prospectus. This prospectus isrely on it. The selling shareholders are not making an offer to sell or buy any sharesthese securities in any jurisdiction in which itwhere the offer or sale is unlawful.not permitted. You should assume that the information appearing in this prospectus, any related prospectus supplement or free-writing prospectus and the documents incorporated by reference herein or therein is accurate only as of its respective date or dates or on the date or dates which are specified in these documents.documents regardless of the time of delivery or any sale of the Class A common stock. Our business, financial condition, results of operations and prospects may have changed since those dates.
TABLE OF CONTENTS
Page
FORWARD-LOOKING INFORMATION.......................................................................................4
WHERE YOU CAN FIND MORE INFORMATION...............................................................................4
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...................................................................4
THE COMPANY.......................................................................................................6
RISK FACTORS......................................................................................................6
RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS.......................................14
USE OF PROCEEDS..................................................................................................15
SELLING SHAREHOLDERS.............................................................................................15
PLAN OF DISTRIBUTION.............................................................................................17
DESCRIPTION OF CAPITAL STOCK.....................................................................................18
LEGAL MATTERS....................................................................................................25
EXPERTS..........................................................................................................25
FORWARD-LOOKING INFORMATION
We have made forward-looking statementsrespect to our financial
condition, resultsany sale of operations and business and onClass A common stock, the possible impact of thisselling shareholder will provide a prospectus supplement, free-writing prospectus or other offering on our financial performance. Words such as "anticipates," "expects,"
"intends," "plans," "believes," "seeks," "estimates" and similar expressions as
they relate to usmaterial containing specific information about the offering. The prospectus supplement, free-writing prospectus or our management are intended to identify forward-looking
statements. These forward-looking statements are not guarantees of future
performance and are subject to risks and uncertainties, including those
described under "Risk Factors"other offering material may also add, update or change information contained in this prospectus. This prospectus that could causemay not be used to offer or sell any securities unless accompanied by a prospectus supplement. You should read this prospectus, any prospectus supplement and/or other offering material carefully before you invest.results to differ materially fromdocuments for complete information. All of the results contemplatedsummaries are qualified in their entirety by the forward-looking statements. The forward-looking statements represent our
judgment and expectations asactual documents. Copies of some of the date of this prospectus. Prospective
purchasers should not place undue reliance on these forward-looking statements.
We assume no obligationdocuments referred to update any such forward-looking statements.
In evaluating the securities offeredherein have been filed or will be filed or incorporated by this prospectus, you should
carefully consider the discussion of risks and uncertainties in the section
entitled "Risk Factors" on pages 6 to 14 of this prospectus.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement under the Securities
Act with respect to the securities offered hereunder. As permitted by the SEC's
rules and regulations, this prospectus does not contain all the information set
forth in the registration statement. For further information, please refer to
the registration statement and the contracts, agreements and other documents
filedreference as exhibits to the registration statement. Additionally, we file annual,
quarterlystatement of which this prospectus is a part, and special reports, proxy statements and other information with the
SEC.
You may read and copy all or any portion of the registration statement or
any other materials that we file with the SEC at the SEC public reference room
at 450 Fifth Street, Washington, D.C., 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
rooms. Our SEC filings, including the registration statement, are also available
to you on the SEC's web site (www.sec.gov). We also have a web site
(www.senecafoods.com) through which you may access our SEC filings.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information contained
inobtain copies of those documents that we file with them: that means we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede this information.
as described below under “Where You Can Find More Information.”incorporate by reference the documents listed below and any future
filings we make with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act prior to the completion of this offering:
o........Our Annual Report on Form 10-K for the year ended March 31, 2004;
o........Our Quarterly Report on Form 10-Q for the quarters ended June 26, 2004,
September 25, 2004 and December 25, 2004;
o........Our Current Reports on Form 8-K filed with the SEC on June 18, 2004,
June 30, 2004, August 4, 2004, September 28, 2004, October 1, 2004,
November 4, 2004 and November 30, 2004; and
o........Our Registration Statement on Form 8-A dated August 22, 1995
registering our Class A Common Stock under Section 12(g) of the
Exchange Act.
You may requestare a free copy of these filings (other than exhibits, unless
they are specifically incorporated by reference in the documents) by writing or
telephoning us at the following address and telephone number:
Seneca Foods Corporation
Attention: Secretary
3736 South Main Street,
Marion, New York 14505
(315) 926-8100
THE COMPANY
Seneca Foods Corporation was founded in 1949 and incorporated under the
laws of the State of New York. In the spring of 1995, we initiated our 20-year
Alliance Agreement with The Pillsbury Company, which created our most
significant business relationship. Under the Alliance Agreement, we have packed
canned and frozen vegetables carrying the Green Giant(R) brand name. These Green
Giant vegetables have been produced in vegetable plants which we acquired from
Pillsbury and, to a lesser extent, in our other vegetable plants. Pillsbury was
subsequently acquired by General Mills, Inc., a majorleading low cost producer and distributor of foodhigh quality processed fruits and vegetables. Our product offerings include canned, frozen and bottled produce and snack chips and our products are sold under private labels, as well as national and Pillsbury has assigned its obligationsregional brands that we own or license, including Seneca, Libby’s, Aunt Nellie’s Farm Kitchen, Stokely’s, Read and Diamond A. We pack Green Giant, Le Sueur and other brands of canned vegetables, as well as select Green Giant frozen vegetables, under theour long-term Alliance Agreement towith General Mills Operations, Inc.,LLC, which we sometimes refer to in this prospectus as GMOI.GMOL, a successor to The Alliance Agreement expiresPillsbury Company LLC and a subsidiary of General Mills, Inc.2014, but GMOI may
terminate it without cause upon one year's prior notice1949 and, paymentduring our 60 years of a penalty
to usoperation, we have made over 50 strategic acquisitions including the purchase of the long-term license for the Libby’s brand in 1983, the purchase of General Mills’ Green Giant processing assets in 1995 and may terminate without delay or penalty if we fail to perform. In the springacquisition of 2003, we acquired Chiquita Processed Foods L.L.C. from Chiquita
Brands International, Inc.in 2003. We believe that these acquisitions have enhanced our leadership position in the private label and changed its namefoodservice canned vegetable markets in the United States and significantly increased our ability to Seneca Foods, L.L.C. sell our products internationally. In August 2006, we acquired Signature Fruit Company, LLC, a leading producer of canned fruits located in Modesto, California. This acquisition allowed us to broaden our product offerings, to become a leading producer and distributor of canned fruit and to achieve cost advantages through the realization of distribution and other synergies with our canned vegetable business.result of this acquisitionsmall farming operation and the subsequent sale of certain of the acquired
facilities, we currently operate 30 plants anda small truck fleet. We also maintain warehouses in seven states.
Our business activitiesthat are conducted in food and non-food segments. Since
the onset of the Alliance Agreement, vegetable production has been our dominant
line of business. In fiscal 2004, the food segment constitutes 99% of total
sales, of which approximately 98% is vegetable processing and 2% is fruit
processing. We sometimes refergenerally located adjacent to our vegetable "pack" in this prospectus.
"Pack" is a term for processing recently harvested vegetables into canned or
frozen form suitable for sale to customers. Processing includes such activities
as washing, sorting, grading, cooking, canning and freezing.
In fiscal 2004, approximately 10% of our processed foods are packed for
retail customers under our own brands including Seneca(R), Libby's(R) (under
license), Blue Boy(R), Aunt Nellie's Farm Kitchen(R), Stokely's(R), READ(R),
Festal(R) and Diamond A(R). Approximately 44% of processed foods are packed
under private labels, that is, under brand names owned or controlled by the
purchasers, which are primarily retail grocery chains. About 18% of the
processed foods are sold to institutional food distributors. The remaining 28%
is sold under the Alliance Agreement with GMOI.plants. Our principal executive office is located at 3736 South Main Street, Marion, New York and our telephone number is (315) 926-8100. We also maintain a web site at www.senecafoods.com. The information found on, or otherwise accessible through, our web site is not incorporated into, and does not form a part of, this prospectus. described below and other information in our most recent Annual Report on Form 10-K incorporated by reference herein and the Annual Reports on Form 10-K, the Quarterly Reports on Form 10-Q and the Current Reports on Form 8-K subsequently filed and incorporated by reference herein, as well as any risk factors and information contained or incorporated by reference in this prospectus, any applicable prospectus supplement or free-writing prospectus before making a decision to buyacquiring any securities registered hereunder. The risks and uncertainties described below are
not the only ones we face. Additional risks and uncertainties not presently
known to us, may also impair our business operations. If any of the following
risks actually occurs, our business, financial condition or results of
operations could be materially and adversely affected. In such case, the trading
priceshares of our Class A Common Stock could decline, and you may lose all or part of
your investment. common stock.also containsany prospectus supplement or free-writing prospectus, the documents incorporated by reference herein or therein and other written reports and oral statements made from time to time by us may contain forward-looking statements that
involve risks and uncertainties. Please refer to "Forward-Looking Information"
on page 4.
If we do not successfully integrate Seneca Foods, L.L.C., formerly Chiquita
Processed Foods, L.L.C., we may not realizewithin the expected benefitsmeaning of the acquisition.
There is a significant degreePrivate Securities Litigation Reform Act of difficulty1995. Such forward-looking statements may include statements with respect to our financial condition, results of operations and management distraction
inherent in the process of integrating Seneca Foods, L.L.C. with our existing
business. These difficulties include the challenge of accomplishing this
integration while managing the ongoing operations of each business, the
challenge of combining the business cultures of each company, and the need to
retain key personnel of our existing business and on the acquired business. The
processpossible impact of integrating operations could cause an interruption of, or loss of
momentum in, the activities of Seneca Foods, L.L.C. and our existing business.
Members of our senior management may be required to devote considerable amounts
of time to this integration process, which will decrease the time they will have
to manage our businesses, service existing customers, attract new customers and
develop new products. If our senior management is not able to effectively manage
the integration process, or if any significant business activities are
interrupted as a result of the integration process, our business could suffer.
We cannot provide assurance that we will successfully or cost-effectively
integrate the Seneca Foods, L.L.C. acquisition and our existing business. The
failure to do so could have a material adverse effectoffering on our business, financial conditionperformance. Words such as “anticipates,” “expects,” “intends,” “plans,” “believes,” “seeks,” “estimates” and results of operations.
We may not realize the expected cost savings and other benefits from the Seneca
Foods, L.L.C. acquisition.
We expectsimilar expressions as they relate to realize cost savings and other financial and operating
benefits as a result of the acquisition of Seneca Foods, L.L.C. However, we
cannot predict with certainty when these cost savings and benefits will occur,us or the extentour management, are intended to which they actually will be achieved. Realization of any
benefits and savings could be affected by a number of factors beyond our
control, including, without limitation, general economic conditions, increased
operating costs, the response of competitors and regulatory developments.
Excess capacity in the vegetable industry has a downward affect on price.
Our financial performance and growth are related to conditions in the
United States vegetable processing industry which is a mature industry with a
modest growth rate in the last 10 years. Our net sales are a function of product
availability and market pricing. In the vegetable processing industry, product
availability and market prices tend to have an inverse relationship: market
prices tend to decrease as more product is available and to increase if less
product is available. Product availability is a direct result of plantings,
growing conditions, crop yields and inventories, all of which vary from year to
year. In addition, market prices can be affected by the planting and inventory
levels and individual pricing decisions of the three or four largest processors
in the industry. Generally, market prices in the vegetable processing industry
adjust more quickly to variations in product availability than an individual
processor can adjust its cost structure; thus, in an oversupply situation, a
processor's margins likely will weaken. We typically have experienced lower
margins during times of industry oversupply.
In the past, the vegetable processing industry has been characterized by
excess capacity, with resulting pressure on our prices and profit margins. Many
of our competitors have closed processing plants in response to the downward
pressure on prices. There can be no assurance that our margins will improve in
response to favorable market conditions or that we will be able to operate
profitably during depressed market conditions. Moreover, vegetable production
outside the United States, particularly in Asia and Latin America, is increasing
and, in the future, may have a significant effect on competition and create
downward pressure on prices.
Growing cycles and adverse weather conditions may decrease our results from
operations.
Our operations are affected by the growing cycles of the vegetables we
process. When the vegetables are ready to be picked, we must harvest and process
the vegetables or forego the opportunity to process fresh picked vegetables for
an entire year. Most of our vegetables are grown by farmers under contract with
us. Consequently, we must pay the contract grower for the vegetables even if we
cannot or do not harvest or process them. Most of our production occurs during
the second quarter (July through September) of our fiscal year. In that quarter,
the growing season ends for most of the vegetables processed by us in the
northern United States. A majority of our sales occur during the third and
fourth quarter of each fiscal year (due to seasonal consumption patterns for our
products). Accordingly, inventory levels are highest during the second and third
quarters, and accounts receivable levels are highest during the third and fourth
quarters. Net sales generated during our third and fourth fiscal quarters have a
significant impact on our results of operations. identify forward-looking statements.of these seasonal
fluctuations, the results of any particular quarter, particularly in the first
half of our fiscal year, will not necessarily be indicative of results for the
full year or for future years.
Because weather conditions during the course of each vegetable crop's
growing season will affect the volume and growing time of that crop, we must set
planting schedules without knowing the effect of the weather on the crops or on
the entire industry's production. As most vegetables are produced in more than
one part of the U.S., we may somewhat reduce our risk that our entire crop will
be subject to disastrous weather. The upper Midwest is the primary growing
region for the principal vegetables which we pack, namely peas, green beans and
corn, and it is also a substantial source of our competitors' vegetable
production. Consequently, the adverse effects of weather-related reduced
production in that region may be partially mitigated by higher prices for the
vegetables which are produced.
Adverse growing conditions in the second quarter of fiscal year 2005 in the
upper Midwestern United States, our major growing region, resulted in a delayed
start for our corn production. This was followed by a freeze in late September
2004. These events, which we cannot control, reduced our anticipated corn
harvest. Corn is our largest volume vegetable product. We anticipate an adverse
effect on our operating results which is not yet calculable, as the adverse
effects of the lower production may be partly mitigated by higher prices for
corn products.
The commodity materials that we process or otherwise requiresuch statements are subject to price increasesrisks and uncertainties, actual results may differ materially from those expressed or implied by such forward-looking statements. Investors are cautioned not to place undue reliance on such statements, which speak only as of the date the statements were made.adversely affect our profitability.
Thecause actual results to differ materially are: that we use, such as vegetables, steel and packaging materials are commodities that may experience price volatility caused by
external factors including market fluctuations, availability,materials;fluctuationsexchange and interest rate fluctuations;agricultural programs.
These events can resulthealth and safety regulations; andreduced supplies of these materials, higher supply
coststhe reports filed with the Securities and Exchange Commission, or interruptions in our production schedules. If prices of these raw
materials increase, but we are not ablethe SEC, by us.effectively pass such price increases
along to our customers, our operating income will decrease.
We face risks generally associated with our debt.
As of December 25, 2004, we had a total of approximately $254 million of
indebtedness. Our indebtedness could have important consequences, suchdisclose material information as limiting our operational flexibility due torequired by the covenants contained in our debt
agreements; limiting our ability to invest in our business due to debt service
requirements; limiting our ability to compete with companies that are not as
highly leveraged; and increasing our vulnerability to economic downturns and
changing market conditions.
Our ability to meet our debt service obligations will depend on our future
performance, which will be affected by financial, business, economic,
governmental and other factors, including potential changes in consumer
preferences and pressure from competitors. Iffederal securities laws, we do not have enough moneyundertake any obligation to pay
our debt service obligations, we may be requiredrelease publicly any revisions to refinance allany forward-looking statements to reflect events or part of our
existing debt, sell assets, borrow more money or raise equity. There is a risk
that we may not be able to refinance existing debt or that the terms of any
refinancing will not be as favorable as the terms of the existing debt.
Our dependence on the Alliance Agreement could negatively affect sales.
We have an Alliance Agreement with GMOI, whereby we process canned and
frozen vegetables for GMOI under the Green Giant brand name. GMOI continues to
be responsible for all of the sales, marketing and customer service functions
for the Green Giant products. The Alliance Agreement has a remaining term of
eleven years. Green Giant products packed by us in fiscal 2004 and 2003
constituted approximately 28% and 39%, respectively, of our total sales. General
Mills, Inc. guarantees GMOI's obligations under the Alliance Agreement.
The Alliance Agreement has an initial term ending December 31, 2014, and
will be extended automatically for additional five year terms unless terminated
in accordance with the provisions of the Alliance Agreement. Upon virtually all
of the causes of termination enumerated in the Alliance Agreement, GMOI will
acquire legal title to the production plants and certain of the other assets
which we acquired under the Alliance Agreement, and various financial
adjustments between the parties will occur. If GMOI terminates the Alliance
Agreement without cause, it must pay us a substantial termination payment.
Our sales and financial performance under the Alliance Agreement and our
sales of Green Giant products depend to a significant extent on our success in
producing quality Green Giant vegetables at competitive costs and GMOI's success
in marketing the products produced by us. The ability of GMOI to successfully
market these products will depend upon GMOI's sales efforts, as well as the
factors described above under "--Excess capacity in the vegetable industry has a
downward effect on price." We cannot give assurance as to the volume of GMOI's
sales and cannot control many of the key factors affecting that volume. The
Alliance Agreement contains extensive covenants by us with respect to quality
and delivery of products, maintenance of the Alliance Plants and other standards
of our performance. If we were to fail in its performance of these covenants,
GMOI would be entitled to terminate the Alliance Agreement.
Termination of the Alliance Agreement will, in most cases, entitle our
principal lenders, including our long-term lenders, to declare a default under
our loan agreements with them. The principal lenders have a security interest in
certain payments that we will receive from GMOI on termination of the Alliance
Agreement. Unless we were to enter into a new substantial supply relationship
with GMOI or another major vegetable marketer and acquire substantial production
capacity to replace the GMOI production plants, any such termination would
substantially reduce our sales.
Green Giant volume has declined over the past three years. This is
reflected in a $42 million reduction in GMOI sales from fiscal year 2001 to
fiscal year 2004.
If we do not maintain the market shares of our products, our business and
revenues may be adversely affected.
All of our products compete with those of other national, major and smaller
regional food processing companies under highly competitive conditions. The
vegetable products which we sell under our own brand names not only compete with
vegetable products produced by vegetable processing competitors, but also
compete with products we produce and sell to other companies who market those
products under their own brand names, such as the Green Giant vegetables we sell
to GMOI under the Alliance Agreement and the vegetables we sell to various
retail grocery chains which carry our buyers' own brand names.
The customers who buy our products to sell under their own brand names
control the marketing programs for those products. In recent years, many major
retail food chains have been increasing their promotions, offerings and shelf
space allocations for their own vegetable brands, to the detriment of vegetable
brands owned by the processors, including our own brands. We cannot predict the
pricing or promotional activities of our competitors or whether they will have a
negative effect on us. There are competitive pressures and other factors which
could cause our products to lose market share or result in significant price
erosion, and which could have a material adverse effect on our business,
financial condition and results of operations.
If we are subject to product liability claims, we may incur significant and
unexpected costs and our business reputation could be adversely affected.
Food processors are subject to significant liability should the consumption
of their products cause injury or illness. A product liability judgment against
us could also result in substantial and unexpected expenditures and divert
management's attention from other responsibilities. Although we maintain product
liability insurance coverage in amounts customary within the industry, there can
be no assurance that this level of coverage is adequate or that we will be able
to continue to maintain our existing insurance or obtain comparable insurance at
a reasonable cost, if at all. A product recall or a partially or completely
uninsured judgment against us could have a material adverse effect on results of
operations and financial condition. During the second quarter of our fiscal year
2005, the Company recalled certain products and recognized a charge of
$1,280,000 as previously reported.
We generate agricultural food processing wastes and are subject to substantial
environmental regulation.
As a vegetable processor, we regularly dispose of vegetable wastes (silage)
and processing water, as well as materials used in plant operation and
maintenance, and our plant boilers, which generate heat used in processing,
produce generally small emissions into the air. These activities and operations
are regulated by federal and state laws and the respective federal and state
environmental agencies. Occasionally, we may be required to remediate conditions
found by the regulators to be in violation of environmental law or to contribute
to the cost of remediating waste disposal sites which we neither owned nor
operated but in which we and many other companies deposited waste materials,
usually through independent waste disposal companies. The costs of these
remediations and contributions (including occasional fines) have not been
significant. As a major vegetable producer, we run the risk of occasional future
costs and inadvertent violations, even though we maintain an environmental
department to assist us in environmental compliance.
We have been advised by the office of the New York State Attorney General
that it will seek reimbursement from us and other potentially responsible
parties for the costs incurred by New York in the cleanup of a closed landfill
in Yates County in Central New York. We did not own or operate the landfill,
but, in the early to mid-1970s, we disposed in it certain waste materials,
including empty paint cans, from a plant in Yates County formerly owned by us
and sold in 1998. We were not a major waste contributor to the landfill during
its operation. The Attorney General is permitting us and other known depositors
in the landfill to identify and search for other depositors in the landfill. A
publication of the New York Department of Environmental Conservation in 2003
stated that approximately $4.6 million had been expended by New York on cleanup
and containment of the landfill. We cannot reliably estimate what our share of
the reimbursement liability will be until we have identified other financially
responsible depositors of waste in the landfill who still exist and have
determined the character and volume of the wastes which they deposited.
Moreover, we will need to reach a reasonable allocation of costs with the other
depositors of wastes and the Attorney General.
Absence of a public trading market may affect the value of the Preferred Stock.
Although the Class A Common Stock is listed and traded on the NASDAQ
National Market, there is no public trading market for the Preferred Stock and
none may ever develop. The absence of a public market may affect the value of
the Preferred Stock.
The Preferred Stock and other classes of our preferred stock have priority
over the Class A Common Stock in the event of liquidation or dissolution.
In the event of our liquidation or dissolution, the entire stated value of
our remaining convertible participating preferred stock will have priority of
payment over all shares of Class A Common Stock (and Class B Common Stock). Each
holder of convertible participating preferred stock may, at the holder's option,
convert convertible participating preferred stock into Class A Common Stock on a
share-for-share basis at any time. We cannot predict whether, or to what extent,
holders of convertible participating preferred stock will convert to Class A
Common Stock.
In addition, in liquidation, all outstanding shares of our 6% voting
cumulative preferred stock, preferred stock without par value, 10% Series A
cumulative convertible voting preferred stock and 10% Series B cumulative
convertible voting preferred stock will have priority of payment over all shares
of Class A Common Stock and Class B Common Stock. See "Description of Capital
Stock."
The shares of Class A Common Stock have low voting power.
Each share of Class A Common Stock has one-twentieth (1/20) of one vote on
all matters requiring a shareholder vote, while each share of Class B Common
Stock, as well as each share of our outstanding preferred stock has one vote
(other than the convertible participating preferred stock which have no votes
and the 6% cumulative voting preferred stock which is only entitled to vote with
respect to the election of directors). In the election of directors and other
matters which are not subject to a class vote, holders of Class A Common Stock
have substantially less voting power than holders of Class B Common Stock
proportionate to the relative market value of those two classes of stock. See
"Description of Capital Stock--Description of Class A Common Stock and Class B
Common Stock--Voting."
There is a concentration of voting power and other indications of influence on
the Company.
As ofcircumstances after the date of the filing of this prospectus or to reflect the Wolcott and Kayser Families
collectively exercise approximately 39%occurrence of the total voting power of the Company
in an election of directors. The capital structure and the concentrated
ownership of the Wolcott and Kayser Families in the Class B Common Stock and our
preferred stock are likely to limit substantially the possibility of and chances
of success for a hostile tender offer, which is usually at a premium over the
then-current market price of a target company's stocks or other takeover
proposal or proxy contest which could remove directors if the Wolcott and Kayser
Families are opposed to such offer or proposal.
Carl Marks Strategic Investments, LP (CMSI) and certain other individual
and institutional shareholders which are related to CMSI through family
relationships and common ownership or control (collectively, the "Marks Investor
Group") exercise in the aggregate approximately 15% of the total voting power of
the Company in an election of directors. In connection with the original
issuance of the Preferred Stock, the size of our Board of Directors was
increased from seven to nine members with designees of this investor group
filling the newly created positions. These designees are required to comprise at
least 22% of the membership of each committee of our Board of Directors. This
investor group may remove its designees and designate other persons to fill the
resulting vacancies. This investor group's right to have its designees nominated
to our Board of Directors and serve on committees of the Board of Directors
continues until such time as it owns less than 10% of the outstanding Class A
Common Stock. (For the purpose of this calculation, we assume conversion of the
Preferred Stock owned by this investor group into Class A Common Stock.) If we
were to issue voting securities in the future, in certain types of transactions,
such as a sale for cash (but not a transaction pursuant to an employee
compensation plan or a business acquisition), this investor group would have the
right to acquire that percentage of the new issuance equal to its percentage of
ownership of Class A Common Stock immediately prior to the new issuance. For
purposes of the calculations in the two preceding sentences, the outstanding
shares of our convertible participating preferred stock would be counted as if
they were outstanding shares of Class A Common Stock.
Furthermore, our Certificate of Incorporation was amended to require that
the following major corporate actions will require unanimous approval of our
Board of Directors (excluding directors who choose to abstain): (i) the
amendment or modification of our Certificate of Incorporation or Bylaws; (ii) a
merger, consolidation or other form of business combination; (iii) the sale or
other disposition of all or substantially all of our assets; (iv) acquisitions
or dispositions in our food business exceeding $15 million; (v) a change in our
line of food business; (vi) the issuance or acquisition of shares of our capital
stock except for stock buybacks not exceeding $100,000 in any single transaction
and $1 million in the aggregate; (vii) change in our accountants; (viii) the
settlement of litigation involving payment of more than 5% of our adjusted
tangible net worth or our consent to injunctive relief; and (ix) the
commencement of bankruptcy, insolvency or reorganization proceedings. Therefore,
any one director, including either of the investor group's designees, will have
the ability to prevent any of these major decisions from being approved.
Certain anti-takeover provisions may make it difficult for a change in our
control.
Certain provisions of the Alliance Agreement and our credit agreements, our
Certificate of Incorporation, and Bylaws, as amended, could have the effect of
preventing or delaying a person from acquiring or seeking to acquire a
substantial equity interest in, or control of, us. Our Bylaws and Certificate of
Incorporation provide, among other things, for staggered board of directors'
terms. See "Description of Capital Stock--Restrictions on Hostile Acquisitions
of Our Company--Certain Provisions of Our Certificate of Incorporation and
Bylaws." The Alliance Agreement states that it may be terminated by GMOI if any
person acquires 30% or more of the combined voting power of our then outstanding
voting securities, or our shareholders approve certain specified business
transactions. Our long-term credit agreement provides that the lenders may
require us to prepay certain of its indebtedness if (i) any person or group
(other than the Wolcott or Kayser Families) acquires our shares representing 50%
or more of the total number of votes which our shareholders shall be entitled to
cast or (ii) the Wolcott and Kayser Families shall cease to own, directly or
indirectly, at least 25% of the Company. Our short-term credit facility with a
bank provides that an event of default occurs if we allow (i) any person or
group, other than the Wolcott or Kayser Families, to acquire capital stock
possessing either 30% or more of the total number of votes which our
shareholders shall be entitled to cast or the right to elect 30% or more of our
Board of Directors or (ii) during any period of 12 consecutive months, the
individuals who at the beginning of such 12 month period were directors cease
for any reason to constitute a majority of our Board of Directors. The same
default provision is contained in our reimbursement agreement with an
institutional lender which has supported our four major industrial revenue bonds
with a letter of credit.
We have not paid and do not currently intend to pay dividends on our common
stock.
We historically have not declared or paid any cash dividends on our shares
of common stock and do not anticipate paying such dividends in the foreseeable
future. Furthermore, our multi-year credit facilities restrict dividend payments
on our common stocks.
As at December 25, 2004, the most restrictive credit agreement limitation
on the Company's payment of dividends and other distributions, such as purchases
of shares, to holders of Class A or Class B Common Stock is an annual total
limitation of $500,000, reduced by aggregate annual dividend payments totaling
$23,181 which the Company presently pays on two outstanding classes of preferred
stock. Other loan agreements restrict aggregate dividends and other
distributions paid after March 31, 2003 (except the preferred stock dividends
described in the preceding sentence) to the aggregate sum of $1,000,000 plus 50%
of Consolidated Net Income as defined (or minus 100% of any deficit) for the
entire period beginning April 1, 2003 and ending on the last day of any fiscal
quarter preceding the proposed payment of a dividend or distribution. As stated
above, notwithstanding any permissibility of Class A or Class B Common Stock
dividends and distributions under the credit agreements, the Company does not
presently intend to pay any such dividend. Future credit agreements may also
restrict the payment of dividends on common stock without lender permission.
RATIOS OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table shows our ratios of earnings to combined fixed charges
and preferred stock dividends for the periods shown.
Nine Months Ended Year Ended March 31,
---------------------------- ------------------------------------------------------------------
12/25/2004 12/27/2003 2004 2003 2002 2001 2000
---------- ---------- ---- ---- ---- ---- ----
1.50 1.91 1.91 1.79 1.09 1.05 1.33
The ratios of earnings to combined fixed charges and preferred stock
dividends were computed by dividing earnings by combined fixed charges and
preferred stock dividends. For this purpose, earnings consist of earnings before
income taxes plus fixed charges. Fixed charges consist of interest expense,
amortization of deferred financing fees and the interest portion of rental
expense.
unanticipated events.Preferred
Stock or the Class A Common Stockcommon stock by the selling shareholders. All proceeds from the sale of such securities will be solely for the account of the selling
shareholder.
SELLING SHAREHOLDERS
The selling shareholders may resell the offered securities from time to
time as provided under the section entitled "Plan of Distribution" in this
prospectus or as described in a prospectus supplement. We are registering the
offered securities as required under the terms of a registration rights
agreement dated as of June 22, 1998.
The following table sets forth the ownership of the selling shareholders
and the number of shares of Preferred Stock and Class A Common Stock
beneficially ownedreceived by the selling shareholders. All of such shares may be
offered for resale pursuant to this prospectus. The information included below
is based upon information provided by the selling shareholders. Because the
selling shareholders may offer all, some or none of its shares, the "After
Offering" column of the table assumes the sale of all of its securities;
however, we do not know that this will actually occur.
None of the selling shareholders has held a position or office or had a
material relationship with us within the past three years other than as a result
of the ownership of our common stock or other securities of ours or as a result
of being a service provider to us.
Number of Shares of Preferred Stock (Including the Underlying
Shares of Class A Common Stock) Owned
-------------------------------------------------------------
Name Before Offering After Offering
---- --------------- --------------
Franklin Microcap Value Fund (1) 200,000 -0-
LCLR, Ltd. (2) 25,000 -0-
Boericke, John 1,000 -0-
Christiansen, Nina IRA 500 -0-
Christiansen, Steve IRA 1,000 -0-
Cotswold Foundation (3) 20,000 -0-
Davidson Trust fbo Ana 7,000 -0-
Davidson Trust fbo Susan 7,000 -0-
Davison, William 1,300 -0-
Dupee, Matt IRA 1,000 -0-
Dupee, Susan IRA 1,500 -0-
Durham, Bob 3,000 -0-
Eleventh Generation (3) 60,000 -0-
Fekete, Edith IRA 1,000 -0-
Fekete, Lorand IRA 1,000 -0-
Gibbons, William 2,000 -0-
Graham, William 2,000 -0-
Haaland, Marie 1,000 -0-
Hamilton, A fbo Anne 4,000 -0-
Hamilton, A fbo Martha 5,500 -0-
Hamilton, H fbo Anne 6,200 -0-
Hamilton, H fbo Martha 10,000 -0-
Kane, Gregg 2,000 -0-
Kelley, Kate Trust 1,000 -0-
Lihota, Gerald 3,000 -0-
Lihota, Karlene 1,000 -0-
Looney, John IRA 5,000 -0-
Milne, David IRA 1,500 -0-
Morris, Eleanor Trust 11,300 -0-
Morris, Lydia Trust 7,000 -0-
Morris, I. Wistar IRA 60,000 -0-
Morris, I. Wistar 60,000 -0-
Morris, I Wistar 4,000 -0-
Morris, IW JR Trust 12,500 -0-
Morris, Martha 60,000 -0-
Murphy, Poco 7,000 -0-
Oehrle, Albert 3,000 -0-
Ravenscroft, Susan IRA 1,000 -0-
Retirement Investments (3) 2,500 -0-
Salisbury, Anne 3,000 -0-
Salisbury, Gregg IRA 400 -0-
Salisbury, Leland CRT 800 -0-
Salisbury, Leland IRA 400 -0-
Savage, Neil 2,000 -0-
Seibert, Kimberly 10,400 -0-
Simmons, Jeff IRA 1,500 -0-
Simmons, Kathy IRA 500 -0-
Spencer, Scott 2,000 -0-
Strickland, Ben 1,200 -0-
Rome, Joel 5,000 -0-
Rome, Ann Dee 3,000 -0-
- ---------------
(1)......William J. Lippman, President of Franklin MicroCap Value Fund, is the
natural control person who has the power to sell, transfer or otherwise dispose
of these shares. (2)......Harold Scattergood is the natural control person who
has the power to sell, transfer or otherwise dispose of these shares.
(3)......Wistar Morris is the natural control person who has the power to sell,
transfer or otherwise dispose of these shares.
PLAN OF DISTRIBUTION
This prospectus relates to the possible offer and sale from time to time of
up to 633,000 shares of Preferred Stock and up to 633,000 shares of Class A
Common Stock initially issuable upon conversion of the Preferred Stock. The
Preferred Stock and Class A Common Stock offered hereby is offered for the
selling shareholders or for the account of pledgees, donees, transferees or
other successors in interest of the selling shareholders. The selling
shareholders may sell securities from time to time, in one or more types of
transactions, which may include sales in the open market, underwritten offerings
or block transactions on a national securities exchange or automated interdealer
quotation system on which the securities are then listed or quoted, through put
or call options transactions relating to the securities, sales in the
over-the-counter market, privately negotiated transactions or otherwise, at
market prices prevailing at the time of sale or at negotiated prices. Such
transactions may or may not involve brokers or dealers.
In connection with an underwritten offering, underwriters or agents may
receive compensation in the form of discounts, concessions or commissions from
the selling shareholders or from purchasers of the offered securities for whom
they may act as agents. In addition, underwriters may sell the offered
securities to or through dealers, and those 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.
In addition to the foregoing, the methods by which the securities may be
sold include: (i) direct negotiation of a sale by a selling shareholder and one
or more purchasers; (ii) a block trade in which the broker or dealer so engaged
will attempt to sell the securities offered hereby as an agent, but may position
and resell a portion of the block as principal to facilitate the transaction;
(iii) purchases by a broker or dealer for its account pursuant to this
prospectus; or (iv) ordinary brokerage transactions and transactions in which
the broker solicits purchases. In effecting sales, brokers or dealers engaged by
a selling shareholder may arrange for other brokers or dealers to participate.
In the event of a transaction hereunder in which a broker or dealer acts as a
principal (other than to facilitate an installment sale transaction, or to a
market maker acting as such in routine transactions in the over-the-counter
market), this prospectus will be supplemented to provide material facts with
respect to such transaction.
In order to comply with the securities laws of certain states, if
applicable, the securities will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, the securities may not
be sold in certain states unless they have been registered or qualified for sale
in the applicable state or an exemption from the registration or qualification
requirement is available and complied with.
We entered into a registration rights agreement for the benefit of the
selling shareholders to register their shares of Preferred Stock and the Class A
Common Stock under applicable federal securities laws. The registration rights
agreement provides for cross-indemnification of the selling shareholders and us
and our respective directors and officers against specific liabilities in
connection with the offer and sale of the Preferred Stock and the Class A Common
Stock, including liabilities under the Securities Act. The selling shareholders
will pay all of the expenses incurred incident to the offering and sale of the
Preferred Stock and the Class A Common Stock.
We have advised the selling shareholders that during the time it may be
engaged in a distribution of the securities offered by this prospectus, it is
required to comply with Regulation M promulgated under the Securities Exchange
Act of 1934. With certain exceptions, Regulation M precludes any selling
shareholder, any affiliated purchasers and any broker-dealer or other person who
participates in the distribution from bidding for or purchasing, or attempting
to induce any person to bid for or purchase, any security which is the subject
of the distribution until the entire distribution is complete. Regulation M also
prohibits any bids or purchases made in order to stabilize the price of a
security in connection with an at the market offering such as this offering. All
of the foregoing may affect the marketability of the securities.
December 25, 2004:
May 31, 2009:
Number of Shares Number of Shares
---------------- ----------------
Title of Class or Series Authorized Outstanding
------------------------ ---------- -----------
Common Stocks:
Class A Common Stock, $0.25 par value per share.............. 20,000,000 3,950,380
Class B Common Stock, $0.25 par value per share.............. 10,000,000 2,764,005
Preferred Stocks:
Six Percent (6%) Voting Cumulative Preferred Stock, $0.25 par
value per share.......................................... 200,000 200,000
Preferred Stock Without Par Value............................ 30,000 0
Ten Percent (10%) Cumulative Convertible Voting Preferred
Stock--Series A, $0.25 stated value per share............ 1,000,000 407,240
Ten Percent (10%) Cumulative Convertible Voting Preferred
Stock--Series B, $0.25 stated value per share............ 400,000 400,000
Convertible Participating Preferred Stock.................... 4,166,667 3,443,596
Convertible Preferred Stock Series 2003...................... 967,742 967,742
Number of
Shares
Authorized Number of
Shares
Outstanding 20,000,000 4,820,080 10,000,000 2,760,903 200,000 200,000 30,000 0 1,000,000 407,240 400,000 400,000 4,166,667 2,982,094 967,742 552,976 1,025,220 1,025,220 Charter,Restated Certificate of Incorporation, as amended ( the “Charter”), the holders of Class A Common Stockcommon stock and Class B Common Stockcommon stock have the right to vote for the election of all directors and on all other matters submitted to our shareholders. Subject to the Class A special rights discussed in detail below, each share of Class B Common Stockcommon stock is entitled to one full vote on all matters on which shareholders currently are entitled to vote, including the election of directors. Each holder of Class A Common Stockcommon stock is entitled to one-twentieth (1/20) of one vote per share on all matters on which shareholders are entitled to vote, including the election of directors. Cumulative voting is not authorized for the holders of common stock. See "Risk
Factors--The shares of Class A Common Stock have low voting power."
Common Stockcommon stock are entitled to vote as a separate class on any proposal to amend the Charter to increase the authorized number of shares of Class B Common Stock,common stock, unless the increased authorization does not exceed the number of shares of Class B Common Stockcommon stock which must be issued in a proposed stock dividend with respect to Class B Common Stockcommon stock and an equivalent stock dividend of Class A Common Stockcommon stock will be effected concurrently with respect to Class A Common Stock.
common stock.Common Stockcommon stock the right to vote as a class on any amendment to our Charter which would (i) exclude or limit the shareholders'shareholders’ right to vote on any matter, except as such rights may be limited by voting rights given to new shares then being authorized; (ii) change Class A Common
Stockcommon stock by (a) reducing the par value, (b) changing the shares into a different number of the same class or into a different or same number of shares of a different class, or (c) fixing, changing or abolishing the designation of Class A Common Stockcommon stock or any series thereof or any of the relative rights, preferences, and limitations of the shares; or (iii) subordinate their rights by authorizing shares having preferences which would be in any respect superior to their rights. Other provisions of the New York Business Corporation Law would entitle holders of Class A Common Stockcommon stock to vote as a separate class for approval of any plan of merger, consolidation or exchange which would effect any change in Class A Common Stockcommon stock described in the preceding sentence.Common Stockcommon stock are entitled to vote as a separate class, the proposal must be approved by a majority of the votes of all outstanding shares of Class A Common Stock.common stock. Consequently, holders of Class A Common Stock,common stock, by withholding such approval, can defeat a proposal notwithstanding that holders of a majority of Class B Common Stockcommon stock vote in favor of the proposal.Common Stockcommon stock and Class B Common Stockcommon stock is equal in respect to dividends and other distributions in cash, stock or property except that (i) if declared, a dividend or distribution in our shares on Class A Common Stockcommon stock will be paid only in Class A Common Stock,common stock, and (ii) if declared, a dividend or distribution in our shares on Class B Common
Stockcommon stock will be paid only in Class B Common Stock.common stock. The number of shares so paid as a dividend or distribution on each share of Class A Common Stockcommon stock and Class B Common Stockcommon stock shall be equal, although the class of the shares so paid shall differ depending upon whether the recipient of the dividend is a holder of Class A Common Stockcommon stock or Class B Common Stock.
common stock.Common Stockcommon stock will be entitled to receive the same per share consideration as the per share consideration, if any, received by holders of Class B Common Stockcommon stock in that transaction. However, any shares of common stock that holders of Class A Common
Stockcommon stock become entitled to receive in the transaction may have terms substantially similar to the Class A Common Stockcommon stock themselves. Thus, the surviving entity in any such transaction could have a dual-class capital structure like ours and could, upon consummation of the merger or consolidation, give full voting shares to the holders of Class B Common Stockcommon stock and one-twentieth (1/20) voting shares to the holders of Class A Common Stock.
common stock."Class“Class A special rights"rights” provision which is intended to protect holders of Class A Common Stockcommon stock in the event that a person attempts to gain control of us.Common Stockcommon stock without buying Class A Common Stock.common stock. If any person acquires more than 15% of the outstanding Class B Common Stockcommon stock after August 5, 1995, referred to herein as the Threshold Date, and does not acquire after the Threshold Date a percentage of the Class A Common Stockcommon stock outstanding at least equal to the percentage of Class B Common Stockcommon stock that the person acquired in excess of the 15% threshold, such person will not be allowed to vote shares of Class B Common
Stockcommon stock acquired in excess of the 15% threshold. For example, if a person acquires 20% of the outstanding Class B Common Stockcommon stock after the Threshold Date but acquires no Class A Common Stock,common stock, that person would be unable to vote the 5% of the Class B Common Stockcommon stock acquired in excess of the 15% threshold. With respect to persons who owned our common stock on or prior to the Threshold Date, only shares of Class B Common Stockcommon stock acquired after the Threshold Date will be counted in determining whether that shareholder has exceeded the 15% threshold for acquisitions of Class B Common Stockcommon stock and only acquisitions of Class A Common
Stockcommon stock after the Threshold Date will be counted in determining whether that shareholder'sshareholder’s Class A Common Stockcommon stock acquisitions have been at least equal to the acquisition of Class B Common Stockcommon stock in excess of the 15% threshold. The inability of the person to vote the excess Class B Common Stockcommon stock will continue until such time as a sufficient number of shares of Class A Common Stockcommon stock have been acquired by the person to satisfy the requirements of the Class A special rights."equitable price"“equitable price” requirement. It is intended to prevent a person seeking to acquire control of us from paying a discounted price for the Class A Common Stockcommon stock required to be purchased by the acquiring person under the first prong of the Class A special rights. These provisions provide that an equitable price has been paid for shares of Class A Common Stockcommon stock only when they have been acquired at a price at least equal to the greater of (i) the highest per share price paid by the acquiring person, in cash or in non-cash consideration, for any Class B Common
Stockcommon stock acquired within the 60 day periods preceding and following the acquisition of the Class A Common Stockcommon stock or (ii) the highest closing market sale price of Class B Common Stockcommon stock during the 30 day periods preceding and following the acquisition of the Class A Common Stock.common stock. The value of any non-cash consideration will be determined by our Board of Directors acting in good faith.Common Stockcommon stock will be the highest closing sale price reported by NASDAQ NationalGlobal Market or on any such other securities exchange then constituting the principal trading market for either class of the common stock. In the event that no quotations are available, the highest closing market sale price will be the fair market value during the 30 day periods preceding and following the acquisition of a share of Class B Common
Stockcommon stock as determined by our Board of Directors acting in good faith. The equitable price provision is intended to require a person seeking to acquire control of us to buy the Class B Common Stockcommon stock and the Class A Common Stockcommon stock at virtually the same time and the same price, as might occur in a tender offer, to ensure that the acquiring person would be able to vote the Class B Common Stockcommon stock acquired in excess of the 15% threshold.Common Stockcommon stock is deemed to include any shares that an acquiring person acquires directly or indirectly, in one transaction or a series of transactions, or with respect to which that person acts or agrees to act in concert with any other person. As used in the preceding sentence, "person"“person” includes one or more persons and entities who act or agree to act in concert with respect to the acquisition or disposition of Class B Common Stockcommon stock or with respect to proposing or effecting a plan or proposal to (a) a merger, reorganization or liquidation of us or a sale of a material amount of our assets, (b) a change in our Board of Directors or management, including any plan or proposal to fill vacancies on the Board of Directors or change the number or term of Directors, (c) a material change in our business or corporate structure, or (d) any material change in our capitalization or dividend policy. Unless there are affirmative attributes of concerted action, however, "acting“acting or agreeing to act in concert with any other person"person” does not include acts or agreements to act by persons pursuant to their official capacities as directors or officers of us or because they are related by blood or marriage.Common Stockcommon stock held by any person on the Threshold Date, (ii) an increase in a holder'sholder’s percentage ownership of Class B Common Stockcommon stock resulting solely from a change in the total number of shares of Class B Common Stockcommon stock outstanding as a result of our repurchase of Class B Common Stockcommon stock since the last date on which that holder acquired Class B Common Stock,common stock, (iii) acquisitions of Class B Common Stockcommon stock (a) made pursuant to contracts existing prior to the Threshold Date, including the acquisition of Class B Common Stockcommon stock pursuant to the conversion provisions of Series A preferred stock outstanding prior to the Threshold Date, (b) by bequest or inheritance or by operation of law upon the death or incompetency of any individual, and (c) by any other transfer made without valuable consideration, in good faith and not for the purpose of circumventing the Class A special rights. A gift made to any person who is related to the donor by blood or marriage, a gift made to a charitable organization qualified under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, or a successor provision and a gift to a person who is a fiduciary solely for the benefit of, or which is owned entirely by, one or more persons or entities (a) who are related to the donor by blood or marriage or (b) which is a tax-qualified charitable organization or (c) both will be presumed to be made in good faith and not for purposes of circumventing the restrictions imposed by the Class A special rights.Common Stockcommon stock cannot be exercised pursuant to the provision, that share will be excluded from the determination of the total shares eligible to vote for any purpose for which a vote of shareholders is taken.Common Stockcommon stock is convertible into Class A Common
Stockcommon stock at any time on a share-for-share basis. The Class A Common Stockcommon stock is not convertible into shares of Class B Common Stockcommon stock unless the number of outstanding shares of Class B Common Stockcommon stock falls below 5% of the aggregate number of outstanding shares of Class B Common Stockcommon stock and Class A Common Stock.common stock. In that event, immediately upon the occurrence thereof, all of the outstanding Class A Common Stockcommon stock is converted automatically into Class B Common Stockcommon stock on a share-for-share basis and Class B Common Stockcommon stock will no longer be convertible into Class A Common Stock.common stock. For purposes of this provision,purpose, Class B Common Stockcommon stock or Class A Common Stockcommon stock repurchased by us and not reissued is not considered to be "outstanding"“outstanding” from and after the date of repurchase.Common Stock,common stock, certificates which formerly represented outstanding shares of Class A Common
Stockcommon stock thereafter will be deemed to represent a like number of shares of Class B Common Stock,common stock, and all common stock then authorized will be deemed to be Class B Common Stock.
common stock.Common Stockcommon stock nor the Class B Common
Stockcommon stock carry any preemptive rights enabling a holder to subscribe for or receive shares of the Company of any class or any other securities convertible into any class of our shares.
Transferability; Common Stockcommon stock and the Class B Common Stockcommon stock are freely transferable and are listed for trading on the NASDAQ NationalGlobal Market.Stock
Stated Value. The stated value for each share of Preferred Stock is $12.00.
Dividends and Distributions. The Preferred Stock has the right to receive
dividends or distributions at a rate per share equal to the amount of any
dividend or distribution as that declared or made on any shares of the Company's
stock into which the Preferred Stock is convertible on the date of such dividend
or distribution. Any such dividend or distribution shall be paid to the holders
of the Preferred Stock at the same time such dividend or distribution is made to
the holders of Class A Common Stock. Dividends and distributions on the
Preferred Stock shall be cumulative from and after the date of issuance of the
Preferred Stock, but any arrearage in payment shall not pay interest. The
Preferred Stock ranks junior to the 6% Voting Cumulative Preferred Stock and the
Preferred Stock Without Par Value and on a parity with the 10% Series A
preferred stock, the 10% Series B preferred stock and the other series of
Convertible Participating Preferred Stock as to the payment of dividends or
rights on liquidation, dissolution or winding up of the Company.
Voting Rights. The holders of shares of Preferred Stock are not entitled or
permitted to vote on any matter required or permitted to be voted upon by
shareholders of the Company except as required by law and for class voting on
proposals to: (i) authorize the issuance after September 2, 1998 of any class of
capital stock that will rank as to payment of dividends or rights on
liquidation, dissolution or winding up of the Company senior to the Preferred
Stock, (ii) authorize, adopt or approve an amendment to the Charter that would
increase or decrease the par value or stated value of the shares of Preferred
Stock, (iii) amend, alter or repeal the Charter so as to affect the shares of
Preferred Stock adversely or (iv) effect the voluntary liquidation, dissolution
or winding up of the Company, however, no separate vote of the holders of
Preferred Stock shall be required to effect any of the transactions described in
clause (iv) above unless such transaction would either require a class vote
pursuant to clause (i), (ii) or (iii) above or would require a vote by any
shareholders of the Company.
Redemption. The shares of Preferred Stock may not be redeemed and are not
subject to redemption, whether at the option of the Company or any holder
thereof.
Company Acquired Shares. Any shares of Preferred Stock converted,
exchanged, redeemed, purchased or otherwise acquired by the Company shall be
retired and cancelled promptly after acquisition. The cancelled shares of
Preferred Stock shall become authorized but unissued shares of Class A Preferred
Stock, which may (upon filing of an appropriate certificate with the New York
Secretary of State) be reissued as part of another series of Class A Preferred
Stock subject to certain conditions or restrictions on issuance, but in any
event may not be reissued as shares of Preferred Stock unless all shares of
Preferred Stock issued on September 2, 1998 have already been converted or
exchanged.
Conversion. Subject to certain limitations discussed below, any holder of
Preferred Stock shall have the right, at its option, at any time, to convert any
or all of the holder's shares of Preferred Stock into such number of fully paid
and non-assessable shares of Class A Common Stock as is equal to the product of
the number of Conversion Shares, multiplied by the quotient of (i) the Stated
Value divided by (ii) the conversion price of $12.00 per share (the "Conversion
Price"). Unless prohibited by law on the date of conversion, all unpaid
dividends declared (whether or not currently payable) on the Preferred Stock so
converted shall be immediately due and payable and must accompany the shares of
Class A Common Stock issued upon such conversion. Upon conversion of any shares
of Preferred Stock, the Company shall not issue any fractional shares or scrip
representing fractional shares and, in lieu thereof, the Company shall issue
cash in lieu of fractional shares in an amount equal to such fraction multiplied
by the current market price of the Class A Common Stock on the business day
preceding the date the shares are converted. The same rights and limitations
apply if the Preferred Stock is convertible into any securities or property
other than Class A Common Stock.
The Conversion Price shall be subject to adjustment if: (i) the Company
shall at any time or from time to time (A) pay a dividend or make a distribution
on the outstanding shares of Class A Common Stock in Class A Common Stock, (B)
sub-divide the outstanding shares of Class A Common Stock into a larger number
of shares, (C) combine the outstanding shares of Class A Common Stock into a
smaller number of shares or (D) issue any shares of its capital stock in a
reclassification of the Class A Common Stock; (ii) the Company shall at any time
or from time to time issue or sell shares of Common Stock (or securities
convertible into or exchangeable for shares of Common Stock), or any options,
warrants or other rights to acquire shares of Common Stock (other than (x)
options granted to any employee or director of the Company pursuant to a stock
option plan approved by the shareholders of the Company, (y) options, warrants
or rights granted to each holder of Class A Common Stock or (z) rights issued
pursuant to a shareholder right plans, "poison pill" or similar arrangement in
accordance with the Charter) for a consideration per share less than the current
market price (as defined in the Charter) at the record date or issuance date;
(iii) the Company or any subsidiary thereof shall at any time or from time to
time while any of the Preferred Stock is outstanding, make a purchase by the
Company of the Common Stock effected while any of the shares of Preferred Stock
are outstanding, which purchase is subject to Section 13(e) of the Exchange Act
or is made pursuant to an offer made available to all holders of Class A Common
Stock or Class B Common Stock; or (iv) the Company at any time or from time to
time shall take any action affecting its Class A Common Stock, other than an
action permitted by the Charter.
The Company may make such reductions in the Conversion Price, in addition
to those required by subparagraphs (i) through (iv) above, as the Board of
Directors considers to be advisable in order to avoid or to diminish any income
tax to holders of Class A Common Stock or rights to purchase Class A Common
Stock resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.
Notwithstanding anything herein to the contrary, no adjustment of the Conversion
Price (i) shall be required by reason of the initial issuance or sale of any of
the 4,166,667 authorized shares of Preferred Stock or (ii) need to be made to
the Conversion Price unless such adjustment would require an increase or
decrease of at least 1% of the Conversion Price then in effect. Any lesser
adjustment shall be carried forward and shall be made at the time of and
together with the next subsequent adjustment, which, together with any
adjustment or adjustments so carried forward, shall amount to an increase or
decrease of at least 1% of such Conversion Price. Any adjustment to the
Conversion Price carried forward and not theretofore made shall be made
immediately prior to the conversion of any shares of Preferred Stock pursuant
hereto; provided, however, that any such adjustment shall in any event be made
no later than one year after the occurrence of the event giving rise to such
adjustment.
Description of Other Preferred Stocks(see "Risk Factors-- The Preferred
Stock and other classes of our preferred stock have priority over the Class A
Common Stock in the event of liquidation or dissolution.") would have priority over the common stock in the distribution of our remaining assets. The 10% Series A preferred stock is convertible into shares of common stock on the basis of one share of Class A Common Stockcommon stock and one share of Class B Common Stockcommon stock for every 20 shares of 10% Series A preferred stock.Common Stockcommon stock and one share of Class B Common Stockcommon stock for every 30 shares of 10% Series B preferred stock. The convertible
participating preferred stock, including theConvertible Participating Preferred Stock, Convertible Preferred Stock Series 2003 and Convertible Participating Preferred Stock, Series 2006 is convertible on a share-for-share basis into shares of Class A Common Stock.
common stock.Company--CertainCompany—Certain Provisions of Our Certificate of IncorporationCharter and Bylaws"Class“Class A special rights"rights” provisions, the Charter contains two super-majority voting provisions. Paragraph 5 of the Charter provides that the affirmative vote of two-thirds of the shares present and entitled to vote at the meeting is necessary to amend our Bylaws.bylaws. Paragraph 6 provides that a director may be removed regardless of cause only upon the affirmative vote of two-thirds of the shares entitled to vote for the election of that director. Both of these provisions reduce the possibility of the shareholders receiving and accepting hostile takeover bids, mergers, proxy contests, removal of current management, removal of directors or other changes in control.Bylawsbylaws require the affirmative vote of two-thirds of the shares present and entitled to vote to (i) effectuate an amendment to the Bylawsbylaws and (ii) remove a director.
The Bylaws See "Risk
Factors--Certain anti-takeover provisions may make it difficult for a change in
our control."
Preferred Stock,convertible participating preferred stock, we and certain of our substantial shareholders agreed that they would facilitate the election of two nominees of thecertain affiliates of Carl Marks Investor GroupManagement Company, L.P., or CMMC, to our nine-person Board of Directors, that the Marks Investor Groupcertain affiliates of CMMC would have at least 22% representation on committees of the Board and that certain major corporate actions would require unanimous approval of the Board of Directors. Messrs. Andrew M. Boas and James F. Wilson are the two CMMC director designees.legalityvalidity of the securitiesClass A common stock and certain other legal matters have been passed upon for us by Jaeckle Fleischmann & Mugel, LLP, Buffalo, New York.the related consolidated
financial statement schedule of Seneca Foods Corporation, as of March 31, 20042009 and 2008, and for each of the year thenthree years in the period ended March 31, 2009, and management’s assessment of the effectiveness of internal control over financial reporting as of March 31, 2009 incorporated by reference in this Prospectus have been so incorporated in reliance on the reports of BDO Seidman, LLP, an independent registered public accounting firm, incorporated herein by reference, given on the authority of said firm as experts in auditing and accounting.fromtherein, are also available to you on the Company's Annual ReportSEC’s web site (www.sec.gov). We also have a web site (www.senecafoods.com) through which you may access our SEC filings. The information found on, or otherwise accessible through, our web site is not incorporated into, and does not form a part of, this prospectus.2004 have been audited by Ernst & Young
LLP, an independent registered public accounting firm, as stated2009.their
reports, which areany document incorporated herein by reference and have been soherein or deemed incorporated in reliance uponby reference herein shall be deemed to be modified or superseded for purposes of this prospectus to the reports of such firm given upon their
authority as experts in accounting and auditing.
The consolidated financial statements as of March 31, 2003 and for the
years ended March 31, 2003 and 2002, and the related consolidated financialextent that a statement schedules for years ended March 31, 2003 and 2002 incorporatedcontained in this prospectus or any subsequently filed document which also is or is deemed to be incorporated by reference from the Company's Annual Report on Form 10-K for the
year ended March 31, 2004 have been audited by Deloitte & Touche LLP, an
independent registered public accounting firm,in this prospectus modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as stated in their reports, whichso modified or superseded, to constitute a part of this prospectus. herein by reference in the documents) by writing or telephoning us at the following address and have been so incorporated in reliance
upon the reports of such firm given upon their authority as experts in
accounting and auditing.
TheIf the selling shareholdershareholders consummate the sale of any Class A common stock pursuant to this registration statement, the selling shareholders will be responsible for the payment of these expenses.expenses (other than miscellaneous expenses). All amounts shown are estimated except the Securities and Exchange Commission registration fee.
Filing and Registration Fees..................................$ 1,464
Legal Fees and Expenses.........................................15,000
Accounting Fees and Expenses....................................36,000
Miscellaneous Expenses........................................ 536
--------
Total $53,000
=======
$ 6,994 200,000 50,000 10,000 65,006 $ 332,000 "Bylaws"“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"“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.attorneys'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 ofnolo 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.
Exhibit
Number Description
3.1 The Company's Restated Certificate of Incorporation, as amended
(incorporated by reference to Exhibit 3.1 to the Company's Form 10-Q/A
filed August 1995 for the quarter ended July 1, 1995)
3.2 Certificate of Amendment to the Company's Restated Certificate of
Incorporation, as amended (incorporated by reference to Exhibit 3.2 to the
Company's Form 10-Q/A filed August 1995 for the quarter ended July 1, 1995)
3.3 Certificate of Amendment to the Company's Restated Certificate of
Incorporation, as amended (incorporated by reference to Exhibit 3 to the
Company's Form 10-K for the fiscal year ended March 31, 1996)
3.3 Certificate of Amendment to the Company's Restated Certificate of
Incorporation, as amended (incorporated by reference to Exhibit 3(i) to the
Company's Current Report on Form 8-K dated September 17, 1998)
3.4 Certificate of Amendment to the Company's Restated Certificate of
Incorporation, as amended (incorporated by reference to Exhibit 3 to the
Company's Current Report on Form 8-K dated June 10, 2003)
3.5 Certificate of Amendment to the Company's Restated Certificate of
Incorporation, as amended (incorporated by reference to Exhibit 3 to the
Company's Current Report on Form 8-K dated June 18, 2004)
3.6 The Company's Bylaws as amended (incorporated by reference to Exhibit 3.3
to the Company's Quarterly Report on Form 10-Q/A filed August 1995)
5 Opinion of Jaeckle Fleischmann & Mugel, LLP regarding legality of
securities being registered (incorporated by reference to Exhibit 5 to the
Company's Registration Statement on Form S-3 filed with the SEC on December
3, 2004)
10 Registration Rights Agreement dated as of June 22, 1998 (incorporated by
reference to Exhibit 2(c) to the Company's Current Report on Form 8-K filed
July 2, 1998)
12 Statement Regarding the Computations of the Ratio of Earnings to Combined
Fixed Charges and Preferred Stock Dividends (filed herewith)
23.1 Consent of Ernst & Young LLP (filed herewith)
23.2 Consent of Deloitte & Touche LLP (filed herewith)
23.3 Consent of Jaeckle Fleischmann & Mugel, LLP (incorporated by reference to
Exhibit 5 above)
24 Powers of Attorney (incorporated by reference to Exhibit 24 to the
Company's Registration Statement on Form S-3 filed with the SEC on December
3, 2004)
1.1 * 3.1 3.2 3.3 3.3 3.4 3.5 3.6 3.7 3.8 5 23.1 23.2 24 * To be filed, if applicable, subsequent to the effectiveness of this registration statement by an amendment to the Registration Statement or incorporated by reference to a Current Report on Form 8-K filed with the SEC in connection with the offering of Class A common stock.
(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"(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 Securities and Exchange 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; 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; (ii)(iii) 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 Registrant pursuant to SectionsSection 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purposeStatement, or is contained in a form of determining any liability under the
Securities Act, each such post-effective amendment shall be deemedprospectus filed pursuant to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities atRule 424(b) 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
anyis part 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 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.
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. (4) That, for the purpose of determining liability under the Securities Act to any purchaser: (i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the Registration Statement as of the date the filed prospectus was deemed part of and included in the Registration Statement; and (ii) (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 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. amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the town of Marion, state of New York, on February 25, 2005.
SENECA FOODS CORPORATION
By: /s/Philip G. Paras
-----------------------
Philip G. Paras
Chief Financial Officer
June 30, 2009.SENECA FOODS CORPORATION By: Kraig H. Kayser President and Chief Executive Officer amendment
to the Registration Statement hasand the foregoing Powers of Attorney have been signed by Kraig H. Kayser on February 25,
2005, individually and as attorney-in-fact for the following persons:
Signature Title
--------- -----
________*________
-
Arthur S. Wolcott Chairmanpersons in the capacities and Director
________*________ President, Chief Executive
-
Kraig H. Kayser Officer and Director
________*________
-
Philip G. Paras Chief Financial Officer
________*________
-
Jeffrey L. Van Riper Controller and Secretary
________*________
-
Arthur H. Baer Director
________*________
-
Andrew M. Boas Director
________*________
-
Robert T. Brady Director
________*________
-
Douglas F. Brush Director
________*________
-
G. Brymer Humphreys Director
________*________
-
Thomas Paulson Director
________*________
-
Susan W. Stuart Director
* /s/ Kraig H. Kayser
Individually and as Attorney-In-Fact
765269
on the date indicated.1.1 * 3.1 3.2 3.3 3.3 3.4 3.5 3.6 3.7 3.8 5 23.1 23.2 24 * To be filed, if applicable, subsequent to the effectiveness of this Registration Statement by an amendment to the Registration Statement or incorporated by reference to a Current Report on Form 8-K filed with the SEC in connection with the offering of Class A common stock.