As filed with the Securities and Exchange Commission on June 11, 2002
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SENECA FOODS CORPORATION
(Exact name of registrant as specified in its charter)
New York 16-0733425
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
3736 South Main Street
Marion, New York 14505
(315) 926-8100
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
KRAIG H. KAYSER
President and Chief Executive Officer
3736 South Main Street
Marion, New York 14505
(315) 926-8100
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copies to:
WILLIAM I. SCHAPIRO, 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: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following box. ?
If any of the securities being registered on this form 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. ?
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective Registration Statement for the same offering: ? _______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: ? ---------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: ?
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of Class Proposed Maximum Proposed Maximum
of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered (1) Per Share (2) Offering Price (2) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Class A common stock 691,575 Shares $15.14 $10,470,446 $963.28
====================================================================================================================================
<FN>
(1) Plus such additional number of shares as may be required in the event of a
stock dividend, reverse stock split, split-up recapitalization or other similar
event.
(2) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(c) under the Securities Act of 1933 based upon the
average of the high and low prices of the Class A common stock as reported on
the NASDAQ National Market on June 6, 2002.
</FN>
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.
-2-
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to Completion, dated June 11, 2002
PROSPECTUS
SENECA FOODS CORPORATION
691,575 Shares of Class A common stock
----------------------
This prospectus relates to 691,575 shares of Class A common stock, $0.25
par value per share, of Seneca Foods Corporation, a New York corporation. All of
these shares are being offered for the account of a shareholder of Seneca Foods.
The shares were issued to the selling shareholder upon the conversion of our
convertible participating preferred stock, par value $0.25 per share, which had
been sold to the selling shareholder on June 22, 1998. This prospectus will be
used by the selling shareholder to resell its 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 shareholder
reserves 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 shares by the selling shareholder.
Our Class A common stock is traded in the over-the-counter market and
quoted on the NASDAQ National Market under the symbol "SENEA." On June 6, 2002,
the last reported sale price for our Class A common stock was $15.14 per share.
The securities offered hereby involve a high degree of risk. See "Risk
Factors" beginning on page 7 for certain factors and considerations relevant to
an investment in our Class A common stock.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is ____________, 2002.
You should rely only on the information contained in or incorporated by
reference in this prospectus. We have not authorized any dealer, salesperson or
other person to give any information or represent anything not contained in this
prospectus. This prospectus does not offer to sell or buy any shares in any
jurisdiction in which it is unlawful. The information in this prospectus is
current as of the date on the cover.
TABLE OF CONTENTS
Page
----
FORWARD-LOOKING INFORMATION...............................................3
WHERE YOU CAN FIND MORE INFORMATION.......................................3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...........................3
THE COMPANY...............................................................5
RISK FACTORS..............................................................5
USE OF PROCEEDS..........................................................11
SELLING SHAREHOLDER......................................................11
PLAN OF DISTRIBUTION.....................................................12
DESCRIPTION OF CAPITAL STOCK.............................................13
LEGAL MATTERS............................................................19
EXPERTS..................................................................19
FORWARD-LOOKING INFORMATION
We have made forward-looking statements with respect to our financial
condition, results of operations and business and on the possible impact of this
offering on our financial performance. Words such as "anticipates," "expects,"
"intends," "plans," "believes," "seeks," "estimates" and similar expressions as
they relate to us 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" in this prospectus, that could cause actual
results to differ materially from the results contemplated by the
forward-looking statements.
In evaluating the securities offered by this prospectus, you should
carefully consider the discussion of risks and uncertainties in the section
entitled "Risk Factors" on pages 7 to 13 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 regarding our
company and our Class A common stock, 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's public reference
rooms in Washington, D.C., Chicago, Illinois, and New York, New York. 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 website (www.sec.gov). In addition, the
Class A common stock is listed on the NASDAQ National Market under the symbol
"SENEA" and information can be inspected and copies made at the offices of the
National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information contained
in 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.
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 prior to the completion of this offering:
o Our Annual Report on Form 10-K for the year ended March 31, 2001;
o Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2001;
o Our Quarterly Report on Form 10-Q for the quarter ended September 29,
2001;
o Our Quarterly Report on Form 10-Q/A for the quarter ended December 29,
2001;
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; and
o Our Current Report on Form 8-K filed on June 11, 2002.
You may request 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 Pillsbury's 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.
The Alliance Agreement expires in 2014, but Pillsbury may terminate it without
cause upon one year's prior notice and payment of a penalty to us and may
terminate without delay or penalty if we fail to perform.
Our business activities are conducted in food and non-food segments. Since
the onset of the Alliance Agreement, vegetable production has been our dominant
line of business. The food segment constitutes 98% of total sales, of which
approximately 97% is vegetable processing and 3% is fruit processing. In fiscal
1999, we sold our fruit juice business and our applesauce and industrial flavors
business. As a result of these fiscal 1999 divestitures, our only non-vegetable
food products are a line of fruit products.
Approximately 9% of our processed foods are packed for retail customers
under our own brands including Seneca(R), Libby's(R) (under license), Blue
Boy(R), and Aunt Nellie's Farm Kitchen(R). Approximately 36% 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 14% of the
processed foods are sold to institutional food distributors. The remaining 41%
is sold under the Alliance Agreement with Pillsbury.
The sole non-food segment is an air charter service, Seneca Flight
Operations, which provides air charter service primarily to industries located
in upstate New York. It represents 2% of our business.
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.
RISK FACTORS
An investment in our Class A common stock involves various risks.
Prospective purchasers should carefully consider the following information in
conjunction with the other information appearing elsewhere in this prospectus
before making a decision to invest in the Class A common stock.
Excess Capacity in the Vegetable Industry and its Negative Effect 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.
We sometimes refer 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 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.
Seasonality and Quarterly Fluctuations
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. Because 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. In our fiscal years ended March 31, 2001 and
2002, our vegetable operations in New York experienced losses partially caused
by severe drought in New York and other eastern states, which severely reduced
the volume of vegetables normally packed in our New York plants but did not
affect our production elsewhere. In some earlier years, excessive rains and
flooding in the upper Midwest reduced vegetable production in that region, but
the adverse effects were partially mitigated by good growing conditions in New
York. 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. A
reduced pack in New York alone is not likely to cause an overall price increase
for the vegetables we produce.
Dependence on Alliance Agreement
In the spring of 1995, we initiated our 20-year Alliance Agreement with The
Pillsbury Company. Pursuant to the Alliance Agreement, we process and sell to
Pillsbury or Pillsbury's designee, on a "cost plus" basis, cases of shelf-stable
vegetables and process or partially process certain frozen vegetables and
asparagus for Pillsbury or its designee. We have also acquired a substantial
percentage of the tangible production assets of Pillsbury's Green Giant brand of
shelf-stable and frozen vegetable products.
Inasmuch as Pillsbury sold to us or closed substantially all of its Green
Giant production facilities and hopes to benefit under the Alliance Agreement by
paying lower product costs than it might otherwise incur, we have been a major
supplier of Pillsbury's Green Giant vegetable products. Green Giant products
packed by us in our fiscal years ended March 31, 2002 and March 31, 2001
constituted approximately 40% and 43%, respectively, of our total sales for such
period. We expect that, in the foreseeable future while the Alliance Agreement
remains in effect, Pillsbury's Green Giant vegetables will be our largest single
product line and Pillsbury will be our largest customer.
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, Pillsbury
will acquire legal title to the production plants and certain of the other
assets which we acquired from Pillsbury, and various financial adjustments
between the parties will occur. If Pillsbury 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 Pillsbury's
success in marketing the products produced by us. The ability of Pillsbury to
successfully market these products will depend upon Pillsbury's sales efforts,
as well as the factors described above under "--Excess Capacity in the Vegetable
Industry and its Negative Effect on Price." We cannot give assurance as to the
volume of Pillsbury'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, Pillsbury 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 Pillsbury on termination of the
Alliance Agreement. Unless we were to enter into a new substantial supply
relationship with Pillsbury or another major vegetable marketer and acquire
substantial production capacity to replace the Pillsbury production plants, any
such termination would substantially reduce our sales.
Recent Changes in the Ownership of Pillsbury
Until October 31, 2001, Pillsbury was a wholly-owned indirect subsidiary of
Grand Metropolitan plc and its successor by merger, Diageo plc, a major food and
beverage company based in London, United Kingdom. On that date, Pillsbury was
acquired by General Mills, Inc., a major producer and distributor of food
products, including cereals, baking products, snacks and, with the Pillsbury
acquisition, vegetables. As a result of this acquisition, Pillsbury has assigned
its obligations under the Alliance Agreement to an indirect, wholly-owned
subsidiary of General Mills, Inc. General Mills, Inc. has guaranteed the
financial obligations of its subsidiary under the Alliance Agreement.
Some Characteristics of the Competition
All of our products compete with those of other national, major and smaller
regional food processing companies under highly competitive conditions. Our
major competitors in the vegetable business are Del Monte Corporation and
Chiquita Brands International, both of which have substantially greater sales
and assets than we do. We also sell vegetable products which compete with
Pillsbury products manufactured by us under the Alliance Agreement.
The vegetable business in the last five years has undergone consolidation
as a result of adverse market conditions, and many smaller vegetable processors
have been acquired either by us or our major competitors. Future acquisitions
may increase the market strength of our larger competitors providing them with
even greater resources for obtaining desirable shelf space and promotional
programs with major retail food chains. However, the major segment of our
business is producing vegetables for sale by others under brand names owned by
our customers -- such as Green Giant vegetables for Pillsbury and vegetables
carrying the brand names of our grocery chain customers. In that segment of the
business, the marketing programs are determined by our customers. In recent
years, many major retail food chains have been increasing their promotions and
offerings of their own brand name vegetables, to the detriment of vegetable
brands owned by the processors, including our own brands.
Priority of Convertible Participating Preferred Stock and other Preferred Stocks
over Common Stock in the Event of Liquidation
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 are 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."
Concentration of Voting Power and Other Indications of Influence on the
Company
As of the date of this prospectus, the Wolcott and Kayser Families
collectively exercise approximately 39.3% 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.
The selling shareholder and certain other individual and institutional
shareholders which are related to the selling shareholder through family
relationships and common ownership or control exercise in the aggregate
approximately 18.1% of the total voting power of the Company in an election of
directors. See "Selling Shareholder" for identification of the members of this
investor group. In connection with the 1998 issuance of convertible
participating 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. 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), the 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
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 Pillsbury 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.
No Dividends
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 require that, without
lender permission, we pay dividends on our common stock only from consolidated
net earnings available for distribution. At March 31, 2002, the Company did not
have any consolidated net earnings available for the payment of dividends on our
Class A or Class B common stock. Future credit agreements may also restrict the
payment of dividends on common stock without lender permission.
USE OF PROCEEDS
We will not receive any proceeds from this offering.
SELLING SHAREHOLDER
Number of Shares
Number of Shares Number of Shares of Class A Common
of Class A Common of Class A Stock Owned Assuming
Name of Selling Stock Owned as of Common Stock to Sale of Shares
Shareholder June 11, 2002 be Registered Registered Hereunder
-------------------------------------------------------------------------------------------------------------------
Carl Marks Strategic
Investments II, L.P. 691,575 691,575 0
-------------------------------------------------------------------------------------------------------------------
The Class A common stock offered hereby constitutes approximately 9.4% of
our outstanding Class A common stock. The number of shares of Class A common
stock outstanding is calculated as if all of our convertible participating
preferred stock was converted into an equal number of shares of Class A common
stock, although no such conversion has occurred except by the selling
shareholder. The shares to be registered hereunder were issued to the selling
shareholder upon the conversion of our convertible participating preferred
stock, par value $0.25 per share, that were sold to the selling shareholder on
June 22, 1998.
Members of the investor group other than the selling shareholder -- namely
Carl Marks Strategic Investments, L.P., Edwin S. Marks, Nancy Marks, Carolyn
Marks, Constance Marks, Linda Katz, Andrew Boas, Carol Boas, Marjorie Boas, Boas
Grat No. 1 Trust, Mark Claster and Susan Claster -- own, in the aggregate, 42.6%
of our outstanding Class A common stock (calculated as if their ownership of
2,555,681 shares of convertible participating preferred stock were converted
into an equal number of shares of Class A common stock, although no such
conversion has occurred) and 20.1% of the outstanding Class B common stock.
PLAN OF DISTRIBUTION
The Class A common stock offered hereby is offered for the selling
shareholder or for the account of pledgees, donees, transferees or other
successors in interest of the selling shareholder. Such sales may be made on the
NASDAQ National Market at prices and terms then prevailing or at prices related
to the then-current market price, or in negotiated transactions. Such
transactions may include, but are not limited to, one or more of the following:
(i) direct negotiation of a sale by the selling shareholder and one or more
purchasers, (ii) a block trade in which the broker or dealer so engaged will
attempt to sell the Class A common stock 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 the 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.
Brokers or dealers involved in sales hereunder will receive commissions or
discounts from the selling shareholder in amounts to be negotiated immediately
prior to the sale. Such brokers or dealers and any other participating brokers
or dealers may be deemed to be "underwriters" within the meaning of the
Securities Act, in connection with such sales, and any profits or commissions
earned by them in such transactions may be deemed to be underwriting discounts
or commissions under the Securities Act. The selling shareholder has been
advised that it is subject to the applicable provisions of the Exchange Act,
including without limitation, Rule 10b-5 and Regulation M of the Securities and
Exchange Commission.
The following table sets forth the classes of our capital stock authorized and
outstanding as of May 24, 2002:
Number of Number of
Title of Class or Series Shares Authorized Shares Outstanding
------------------------ ----------------- ------------------
Common Stocks:
Class A Common Stock......................................... 20,000,000 3,823,115
Class B Common Stock......................................... 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 3,570,861
Upon effectiveness of the registration statement which includes this
prospectus, 691,575 shares of convertible participating preferred stock will be
converted to an equal number of shares of Class A common stock, which are the
shares being registered and sold hereunder. This conversion transaction will
reduce the number of shares of convertible participating preferred stock to
2,879,286 and correspondingly increase the number of outstanding Class A common
stock to 4,514,690.
Pro Forma Earnings Per Share
The following table sets forth our basic and diluted earnings per common
share for the nine months ended December 29, 2001 and for the year ended March
31, 2001 on (i) a historical basis and (ii) a pro forma basis giving effect to
the conversion of 691,575 shares of convertible participating preferred stock.
Nine Months Ended Year Ended
December 29, 2001 March 31, 2001
----------------- --------------
Historical Pro Forma Historical Pro Forma
---------- --------- ---------- ---------
Basic earnings per common
share (1).............................. $0.09 $0.08 $0.12 $0.11
Diluted earnings per common share (2)....... $0.06 $0.06 $0.08 $0.08
- ----------
<FN>
(1) The weighted average common shares outstanding were 6,584,014 for the nine months ended December 29, 2001 and 6,576,543 for
the year ended March 31, 2001.
(2) Includes the shares of Class A common stock which would be issuable upon conversion of all of our convertible participating
preferred stock.
</FN>
Description of Class A Common Stock and Class B Common Stock
Voting. Under our Charter, the holders of Class A common stock and Class B
common 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 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 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."
The holders of Class A common 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, unless the increased authorization does not
exceed the number of shares of Class B common stock which must be issued in a
proposed stock dividend with respect to Class B common stock and an equivalent
stock dividend of Class A common stock will be effected concurrently with
respect to Class A common stock.
In addition, Section 804 of the New York Business Corporation Law confers
upon the holders of Class A common stock the right to vote as a class on any
amendment to our Charter which would (i) exclude or limit the 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
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 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 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 stock described in the preceding sentence.
On proposals on which holders of Class A common 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. Consequently, holders of Class A
common stock, by withholding such approval, can defeat a proposal
notwithstanding that holders of a majority of Class B common stock vote in favor
of the proposal.
Dividends and Other Distributions. Each share of Class A common stock and
Class B common 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 stock will be paid only in Class A common stock,
and (ii) if declared, a dividend or distribution in our shares on Class B common
stock will be paid only in Class B common stock. The number of shares so paid as
a dividend or distribution on each share of Class A common stock and Class B
common 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 stock or Class B common stock.
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 common 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 stock in that
transaction. However, any shares of common stock that holders of Class A common
stock become entitled to receive in the transaction may have terms substantially
similar to the Class A common 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 stock and one-twentieth (1/20) voting shares to
the holders of Class A common stock.
Class A Special Rights. Our Charter contains a two-pronged "Class A special
rights" provision which is intended to protect holders of Class A common stock
in the event that a person attempts to gain control of us.
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
common stock without buying Class A common stock. If any person acquires more
than 15% of the outstanding Class B common stock after August 5, 1995 (the
"Threshold Date"), and does not acquire after the Threshold Date a percentage of
the Class A common stock outstanding at least equal to the percentage of Class B
common stock that the person acquired in excess of the 15% threshold, such
person will not be allowed to vote shares of Class B common stock acquired in
excess of the 15% threshold. For example, if a person acquires 20% of the
outstanding Class B common stock after the Threshold Date but acquires no Class
A common stock, that person would be unable to vote the 5% of the Class B common
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 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 stock and only acquisitions of Class A common stock after the
Threshold Date will be counted in determining whether that shareholder's Class A
common stock acquisitions have been at least equal to the acquisition of Class B
common stock in excess of the 15% threshold. The inability of the person to vote
the excess Class B common stock will continue until such time as a sufficient
number of shares of Class A common stock have been acquired by the person to
satisfy the requirements of the Class A special rights.
The second prong of the Class A special rights is an "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 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 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
stock acquired within the 60 day periods preceding and following the acquisition
of the Class A common stock or (ii) the highest closing market sale price of
Class B common stock during the 30 day periods preceding and following the
acquisition of the Class A common stock. The value of any non-cash consideration
will be determined by our Board of Directors acting in good faith. The highest
closing market sale price of a share of Class B common stock will be the highest
closing sale price reported by NASDAQ National 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
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 stock and the Class A common 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 stock
acquired in excess of the 15% threshold.
Under the Class A special rights, an acquisition of Class B common 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 (an
"Acquisition"). As used in the preceding sentence, "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 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 or agreeing to act in concert with any other
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.
For purposes of calculating the 15% threshold, the following acquisitions
and increases are excluded: (i) shares of Class B common stock held by any
Person on the Threshold Date, (ii) an increase in a holder's percentage
ownership of Class B common stock resulting solely from a change in the total
number of shares of Class B common stock outstanding as a result of our
repurchase of Class B common stock since the last date on which that holder
acquired Class B common stock, (iii) Acquisitions of Class B common stock (a)
made pursuant to contracts existing prior to the Threshold Date, including the
Acquisition of Class B common 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.
The Class A special rights also provide that, to the extent that the voting
power of any share of Class B common 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.
Convertibility. The Class B common stock is convertible into Class A common
stock at any time on a share-for-share basis. The Class A common stock is not
convertible into shares of Class B common stock unless the number of outstanding
shares of Class B common stock falls below 5% of the aggregate number of
outstanding shares of Class B common stock and Class A common stock. In that
event, immediately upon the occurrence thereof, all of the outstanding Class A
common stock is converted automatically into Class B common stock on a
share-for-share basis and Class B common stock will no longer be convertible
into Class A common stock. For purposes of this provision, Class B common stock
or Class A common stock repurchased by us and not reissued is not considered to
be "outstanding" from and after the date of repurchase.
In the event of any such conversion of the Class A common stock,
certificates which formerly represented outstanding shares of Class A common
stock thereafter will be deemed to represent a like number of shares of Class B
common stock, and all common stock then authorized will be deemed to be Class B
common stock.
Preemptive Rights. Neither the Class A common stock nor the Class B common
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; Trading Market. The Class A common stock and the Class B
common stock are freely transferable and are listed for trading on the NASDAQ
National Market.
Description of Preferred Stocks
None of our preferred stocks will be issued in this offering. 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 (see "Risk Factors--Priority of
Convertible Participating Preferred Stock over Common Stock in the Event of
Liquidation") 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 stock and one
share of Class B common stock for every 20 shares of 10% Series A preferred
stock.
The 10% Series B preferred stock is convertible into common stock on the
basis of one share of Class A common stock and one share of Class B common stock
for every 30 shares of 10% Series B preferred stock. The convertible
participating preferred stock is convertible on a share-for-share basis into
shares of Class A common stock.
Restrictions on Hostile Acquisitions of Our Company--Certain Provisions of Our
Certificate of Incorporation and Bylaws
In addition to the restrictions imposed by the "Class A special 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.
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.
Our Bylaws require the affirmative vote of two-thirds of the shares present
and entitled to vote to (i) effectuate an amendment to the Bylaws and (ii)
remove a director.
The 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. See "Risk
Factors--Certain Anti-Takeover Provisions."
Shareholders Agreement
In connection with the 1998 issuance of our convertible participating
preferred stock, we and certain of our substantial shareholders agreed that they
would facilitate the election of two nominees of the investor group affiliated
with the selling shareholder to our nine-person Board of Directors, that the
investor group 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.
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.
LEGAL MATTERS
The legality of the securities and certain other legal matters have been
passed upon for us by Jaeckle Fleischmann & Mugel, LLP, Buffalo, New York.
EXPERTS
The consolidated financial statements and the related consolidated
financial statement schedule incorporated in this prospectus by reference from
the Company's Annual Report on Form 10-K for the year ended March 31, 2001 have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
reports, which are incorporated herein by reference, and have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
II-5
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. The selling shareholder, Carl Marks
Strategic Investments II, L.P. will be responsible for the payment of these
expenses. All amounts shown are estimated except the Securities and Exchange
Commission registration fee.
Filing and Registration Fees..................................$ 963
Legal Fees and Expenses....................................... 15,000
Accounting Fees and Expenses.................................. 7,500
Miscellaneous Expenses........................................ 537
-------
Total $ 24,000
=======
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 "Bylaws"), the Company has the authority
to indemnify its directors and officers to the fullest extent permitted by the
New York Business Corporation Law (Sections 721-726) (the "BCL"). The Bylaws,
reflecting New York law, extend such protection to any person made or threatened
to be made a party to any action or proceeding, including an action by or in the
right of any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, which any director, officer or employee of the
Company served in any capacity at the request of the Company, by reason of the
fact that such director or officer, his testator or intestate, is or was a
director or officer of the Company or is or was serving such enterprise at the
request of the Company. The Bylaws provide that such indemnification may be
authorized pursuant to the terms and conditions of (i) a resolution of
shareholders; (ii) a resolution of the Board of Directors; (iii) an agreement
providing for such indemnification or (iv) any judicial or other legal authority
which entitles the director, officer or employee to such indemnification.
The BCL provides that, if successful on the merits or otherwise, an officer
or director is entitled to indemnification by the Company against amounts paid
in settlement and reasonable expenses, including attorneys' fees, actually and
necessarily incurred in connection with the defense of such action or
proceeding, or any appeal therein, if such director or officer acted in good
faith, for a purpose which he reasonably believed to be in, or at least not
opposed to, the best interests of the Company. The termination of any action or
proceeding by judgment, settlement, conviction or plea of nolo contendere, or
its equivalent, does not itself create the presumption that such director or
officer did not act, in good faith, for a purpose which he reasonably believed
to be in, or not opposed to, the best interests of the Company or that he had
reasonable cause to believe that his conduct was unlawful.
If a corporation fails to provide indemnification to its directors or
officers, the BCL provides that despite any contrary resolution of the board of
directors or shareholders, indemnification may be awarded by application to the
appropriate judicial authority. Application for such court-ordered
indemnification may be made either in the civil action or proceeding in which
the expenses were incurred or other amounts were paid or to the supreme court in
a separate proceeding.
Item 16. Exhibits.
Exhibit
Number Description
3(a)(1) The Company's Restated Certificate of Incorporation, as
amended (incorporated by reference to Exhibit 3.1 to the
Company's 10-Q/A filed August 1995 for the quarter ended July
1, 1995)
3(a)(2) An amendment to the Company's Restated Certificate of
Incorporation, as amended (incorporated by reference to
Exhibit 3.1 to the Company's Annual Report on Form 10-K for
the fiscal year ended March 31, 1996)
3(a)(3) Certificate of Amendment to the Company's Restated Certificate
of Amendment, as amended (incorporated by reference to Exhibit
3(i) to the Company's Current Report on Form 8-K dated
September 17, 1998)
(b) 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 (filed herewith)
23(a) Consent of Deloitte & Touche LLP (filed herewith)
(b) Consent of Jaeckle Fleischmann & Mugel, LLP (contained in
Exhibit 5 above)
24 Powers of Attorney (filed herewith at pages II-4 and II-5)
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and 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 Sections 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the town of Marion, State of New York, on June 11, 2002.
SENECA FOODS CORPORATION
By:/s/Kraig H. Kayser
------------------------------
Kraig H. Kayser, President
and Chief Executive Officer
Each person whose signature appears below constitutes and appoints Kraig H.
Kayser and Arthur S. Wolcott, and each of them, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
--------- ----- ----
/s/Arthur S. Wolcott Chairman and Director June 6, 2002
- ------------------------------
Arthur S. Wolcott
/s/Kraig H. Kayser President, Chief Executive June 6, 2002
- ------------------------------ Officer and Director
Kraig H. Kayser
/s/Philip G. Paras Chief Financial Officer June 6, 2002
- ------------------------------
Philip G. Paras
/s/Jeffrey L. Van Riper Controller and Secretary June 6, 2002
- ------------------------------
Jeffrey L. Van Riper
/s/Sarah M. Mortensen Assistant Secretary June 7, 2002
- ------------------------------
Sarah M. Mortensen
/s/Arthur H. Baer Director June 6, 2002
- ------------------------------
Arthur H. Baer
/s/Andrew M. Boas Director June 7, 2002
- ------------------------------
Andrew M. Boas
/s/Robert T. Brady Director June 6, 2002
- ------------------------------
Robert T. Brady
/s/Douglas F. Brush Director June 6, 2002
- ------------------------------
Douglas F. Brush
______________________________ Director ___________, 2002
Edward O. Gaylord
/s/G. Brymer Humphreys Director June 6, 2002
- ------------------------------
G. Brymer Humphreys
/s/Susan W. Stuart Director June 6, 2002
- ------------------------------
Susan W. Stuart