As filed with the Securities and Exchange Commission on August 6, 2004
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TASTY BAKING COMPANY
(Exact name of registrant as specified in its charter)
Pennsylvania 23-1145880
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(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
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 2003 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)
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Copies to:
Eric D. Schoenborn, Esquire Ronald O. Whitford, Jr., Esquire
Stradley, Ronon, Stevens & Young, LLP Secretary
Woodland Falls Corporate Park Tasty Baking Company
210 Lake Drive East, Suite 102 2801 Hunting Park Avenue
Cherry Hill, New Jersey 08002 Philadelphia, Pennsylvania 19129
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CALCULATION OF REGISTRATION FEE
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Amount to be Proposed maximum Proposed maximum Amount of
Title of securities to be registered registered(1) offering price per aggregate offering registration
Share price (4) fee
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106,544 shares $ 8.10 (2) $4,016,143 $509
Common Stock, $.50 par value per share 285,456 shares $10.78 (3)
8,000 shares $ 9.49 (3)
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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 2003
Long Term Incentive Plan (the "Plan") are hereby registered.
(2) Pursuant to Rule 457(h)(1) and (c) of the Securities Act of 1933, based on
the average of the high and low prices per share of the Common Stock as
reported on the New York Stock Exchange on August 4, 2004.
(3) Pursuant to Section 457(h) of the Securities Act of 1933 with regard to
shares issuable under presently outstanding stock options.
(4) Estimated solely for the purpose of determining the registration fee.
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.
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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 27, 2003;
(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 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"), contained in the Company's Registration
Statement on Form 8-A/A filed with the Commission on July 27, 2001, and
description of the Company's Common Stock Purchase rights ("Rights")
contained in the Company's Registration Statement on Form 8-A/A filed
with the Commission on August 25, 2003, 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.
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Not Applicable.
Item 5. Interests of Named Experts and Counsel.
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Not Applicable.
Item 6. Indemnification of Directors and Officers.
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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.
Section 1 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 Section 1. 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 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 each 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.
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Not applicable.
Item 8. Exhibits.
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(a) Exhibits:
23.1 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (included in signature page on page
II-4 herein).
99.1 Tasty Baking Company 2003 Long Term Incentive Plan
(incorporated by reference to Appendix B to the
Company's Definitive Proxy Statement on Schedule 14A
filed with the Commission as of March 30, 2003).
Item 9. Undertakings.
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(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.
II-2
(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.
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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
August 6, 2004.
TASTY BAKING COMPANY
By: /s/ Charles P. Pizzi
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Charles P. Pizzi, President
and Chief Executive Officer
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.
Name Title Date
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/s/ James E. Ksansnak Chairman of the Board and Director August 6, 2004
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James E. Ksansnak
/s/ Charles P. Pizzi President, Chief Executive Officer August 6, 2004
------------------------------- and Director
Charles P. Pizzi (Principal Executive Officer)
/s/ David S. Marberger Senior Vice President, Chief Financial August 6, 2004
------------------------------- Officer and Chief Accounting Officer
David S. Marberger (Principal Financial Officer and
Principal Accounting Officer)
/s/ Fred C. Aldridge, Jr. Director August 6, 2004
-------------------------------
Fred C. Aldridge, Jr.
/s/ Philip J. Baur, Jr. Director August 6, 2004
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Philip J. Baur, Jr.
/s/ G. Fred DiBona, Jr.
------------------------------- Director August 6, 2004
G. Fred DiBona, Jr.
/s/ Ronald J. Kozich Director August 6, 2004
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Ronald J. Kozich
/s/ Judith M. von Seldeneck Director August 6, 2004
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Judith M. von Seldeneck
/s/ David J. West Director August 6, 2004
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David J. West
II-4
EXHIBIT INDEX
Exhibit # Description
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23.1 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (included in signature page on page
II-4 herein).
99.1 Tasty Baking Company 2003 Long Term Incentive Plan
(incorporated by reference to Appendix B to the
Company's Definitive Proxy Statement on Schedule 14A
filed with the Commission as of March 31, 2003).