TASTY BAKING COMPANY S-8
As
filed with the Securities and Exchange Commission on November 8,
2006
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
__________________________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
__________________________
TASTY
BAKING COMPANY
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Pennsylvania
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23-1145880
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(State
or other jurisdiction of
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(I.R.S.
Employer Identification Number)
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incorporation
or organization)
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2801
Hunting Park Avenue
Philadelphia,
Pennsylvania 19129
(215)
221-8500
(Address,
including zip code, and telephone number,
including
area code, of registrant’s principal executive offices)
TASTY
BAKING COMPANY 2006 LONG TERM INCENTIVE PLAN
(Full
title of the Plan)
Charles
P. Pizzi
President
and Chief Executive Officer
Tasty
Baking Company
2801
Hunting Park Avenue
Philadelphia,
Pennsylvania 19129
(215)
221-8500
(Name,
address, including zip code, and telephone number, including area code, of
agent
for service)
___________________
Copy
to:
Laurence
Weilheimer, Esquire
General
Counsel and Corporate Secretary
Tasty
Baking Company
2801
Hunting Park Avenue
Philadelphia,
Pennsylvania 19129
CALCULATION
OF REGISTRATION FEE
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Title
of securities to be registered
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Amount
to be
registered
(1)
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Proposed
maximum offering price per
Share
(2)
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Proposed
maximum
aggregate
offering
price
(3)
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Amount
of
registration
fee
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Common
Stock, $.50 par value per share
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350,000
shares
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$9.11
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$3,188,500
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$341.17
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(1)
Such
additional, indeterminable number of shares that may be issuable by reason
of
the anti-dilution provisions of the Tasty Baking Company 2006 Long Term
Incentive Plan (the “Plan”) are hereby registered.
(2)
Pursuant to Rule 457(h)(1) and (c) under the Securities Act of 1933, the average
of the high and low prices per share of the Common Stock reported on the NASDAQ
Global Market on November 3, 2006 has been used to determine the registration
fee.
(3)
Estimated solely for the purpose of determining the registration
fee.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
*Information
required by Part I to be contained in the Section 10(a) prospectus is
omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933, as amended (the “Securities Act”) and the “Note” to
Part I of Form S-8.
PART
II
INFORMATION
REQUIRED IN REGISTRATION STATEMENT
As
used in
this Registration Statement, unless the context otherwise requires, the term
the
“Company” means Tasty Baking Company and its subsidiaries.
Item
3. Incorporation
of Documents by Reference.
The
following documents, previously filed by the Company with the U.S. Securities
and Exchange Commission (the “Commission”)
pursuant
to the Securities Exchange Act of 1934, as amended (the “1934
Act”),
are
hereby incorporated by reference in this Registration Statement, except as
superseded or modified herein:
(a) the
Company’s Annual Report on Form 10-K for the fiscal year ended December 31,
2005;
(b) all
other
reports filed by the Company pursuant to Section 13(a) or 15(d) of the 1934
Act
since the end of the fiscal year covered by the annual report referred to in
(a)
above; and
(c) the
description of the Company’s common stock, par value $.50 per share
(“Common
Stock”),
and
description of the Company’s Common Stock Purchase rights (“Rights”),
contained in the Company’s Registration Statement on Form 8-A filed with the
Commission on October 18, 2005, including any amendments or reports filed for
the purpose of updating such descriptions.
All
documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the 1934 Act on or after the date of this Registration Statement and prior
to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of such
documents.
Item
4. Description
of Securities.
Not
Applicable.
Item
5. Interests
of Named Experts and Counsel.
Not
Applicable.
Item
6. Indemnification
of Directors and Officers.
The
Pennsylvania Business Corporation Law generally provides that a company shall
have power to indemnify its officers, directors and other parties acting on
behalf of the company if such person acted in good faith and in a manner
reasonably believed to be in, or not opposed to, the best interest of the
company, and, with respect to any criminal action or proceeding, the indemnified
party had no reasonable cause to believe his or her conduct was unlawful.
Sections 1(a) and 1(b) of Article VII of the Company’s Bylaws provide for
mandatory indemnification in such circumstances. Under Section 2 of Article
VII,
an independent determination of disinterested directors, legal counsel or
shareholders of the Company will determine whether the person is entitled to
indemnification under Sections 1(a) and 1(b). In addition, Section 4 of Article
VII of the Bylaws provides for advancement of expenses in advance of the final
disposition of any action, suit or proceeding upon receipt of an undertaking,
by
or on behalf of the person who may be entitled to indemnification under Sections
1(a), 1(b) and 3 of Article VII, to repay such amount if it shall ultimately
be
determined that he or she is not entitled to be indemnified by the
Company.
The
Pennsylvania Business Corporation Law also permits a corporation to include
in
its bylaws, and in agreements between the corporation and its directors and
officers, provisions expanding the scope of indemnification beyond that
specifically provided by the current law; provided; however, indemnification
shall not be permitted in any case where the act giving rise to the claim for
indemnification is determined by a court to have constituted willful misconduct
or recklessness. Section 3 of Article VII of the Company’s Bylaws generally
provides for mandatory indemnification of officers and directors acting on
behalf of the Company, except that indemnification shall not be permitted under
the Bylaws in any case where the act giving rise to the claim for
indemnification is determined by a court to have constituted willful misconduct
or recklessness. Indemnification under Section 3 will be provided without the
independent determination required by Section 2 as described above (e.g.,
independent determination that director or officer acted in good faith and
in a
manner reasonably believed to be in the best interest of the Company). The
Company also has entered into an Indemnification Agreement with certain of
the
directors of the Company. The Indemnification Agreements provide substantially
the same scope of indemnification as provided under Section 3 of Article VII
of
the By-Laws, except that under the Indemnification Agreements there is a minimal
amount ($1,000) for which the Company will not be responsible to provide
indemnification, and the Company will not be required to provide indemnification
in respect of any violation of the provisions of Section 16(b) of the 1934
Act.
The Indemnification Agreements are direct contractual obligations of the Company
in favor of the directors. Therefore, in the event that the By-Laws are
subsequently changed to reduce the scope of indemnification, directors with
Indemnification Agreements will not be affected by such changes. In addition,
as
with indemnification under Section 3 of Article VII of the By-Laws, no
independent determination of entitlement to indemnification will be required
under the terms of the Indemnification Agreements.
In
addition, the Company maintains directors and officers liability insurance
under
which its directors and officers are insured against certain liabilities that
may be incurred by them in their capacities as such.
Item
7. Exemption
from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
(a) Exhibits:
23.1 Consent
of
PricewaterhouseCoopers LLP.
24.1 Power
of
Attorney (included in signature page on page II-4 herein).
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99.1
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Tasty
Baking Company 2006 Long Term Incentive Plan (incorporated by reference
to
Appendix A to the Company’s Definitive Proxy Statement on Schedule 14A
filed with the Commission on April 7,
2006).
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Item
9. Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) To
file,
during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To
include
any prospectus required by section 10(a)(3) of the Securities Act of 1933,
as
amended (“1933
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% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
registration statement.
(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) of this section 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 section 13 or section 15(d) of the 1934 Act that are
incorporated by reference in the registration statement.
(2) That,
for
the purpose of determining any liability under the 1933 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 1933 Act, each filing of the registrant’s annual report
pursuant to section 13(a) or section 15(d) of the 1934 Act (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
section 15(d) of the 1934 Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar
as
indemnification for liabilities arising under the 1933 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 1933 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 1933
Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, Tasty Baking Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Philadelphia, Commonwealth of Pennsylvania, on
November 8, 2006.
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TASTY
BAKING COMPANY
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By:
/s/ Charles P.
Pizzi
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Charles
P. Pizzi, President
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and
Chief Executive Officer
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Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
Each
person whose signature appears below constitutes and appoints Charles P. Pizzi
and David S. Marberger, jointly and severally, his attorneys-in-fact, each
with
the power of substitution, for him in any and all capacities to sign any
amendments to this Registration Statement on Form S-8, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
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Name
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Title
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Date
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/s/
James E. Ksansnak
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Chairman
of the Board and Director
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October
26, 2006
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James
E. Ksansnak
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/s/
Charles P. Pizzi
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President,
Chief Executive Officer
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October
26, 2006
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Charles
P. Pizzi
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and
Director
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(Principal
Executive Officer)
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/s/
David S. Marberger
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Executive
Vice President, Chief Financial
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October
26, 2006
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David
S. Marberger
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Officer
and Chief Accounting Officer
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(Principal
Financial Officer and
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Principal
Accounting Officer)
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/s/
Fred C. Aldridge, Jr.
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Director
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October
26, 2006
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Fred
C. Aldridge, Jr.
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/s/
Mark G. Conish
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Director
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October
26, 2006
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Mark
G. Conish
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/s/
James C. Hellauer
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Director
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October
26, 2006
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James
C. Hellauer
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/s/
Ronald J. Kozich
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Director
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October
26, 2006
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Ronald
J. Kozich
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s/
James E. Nevels
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Director
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October
26, 2006
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James
E. Nevels
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/s/
Judith M. von Seldeneck
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Director
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October
26, 2006
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Judith
M. von Seldeneck
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/s/
David J. West
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Director
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October
26, 2006
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David
J. West
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EXHIBIT
INDEX
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Exhibit
#
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Description
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23.1
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Consent
of PricewaterhouseCoopers LLP.
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24.1
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Power
of Attorney (included in signature page on page II-4 herein).
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99.1
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Tasty
Baking Company 2006 Long Term Incentive Plan (incorporated by reference
to
Appendix A to the Company’s Definitive Proxy Statement on Schedule 14A
filed with the Commission on April 7, 2006).
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