SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 14, 2000
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HERSHEY FOODS CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 001-00183 23-0691590
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(State of (Commission File Number) (IRS Employer
Incorporation) Identification No.)
100 Crystal A Drive
Hershey, Pennsylvania 17033
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(Address of principal executive offices) (Zip Code)
(717) 534-6799
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(Registrant's telephone number,
including area code)
N/A
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(Former name or former address, if changed since last report)
ITEM 5. OTHER EVENTS.
On December 14, 2000, the Board of Directors of Hershey Foods
Corporation, a Delaware corporation (the "Company") unanimously adopted a
Stockholder Protection Rights Agreement (the "Rights Agreement"), between the
Company and Mellon Investor Services LLC, as Rights Agent. The Rights Agreement
was adopted by the Company's Board of Directors with the support of the
Company's largest stockholder, the Hershey Trust Company, trustee for Milton
Hershey School. The Board's action was not in response to any specific effort to
acquire control of the Company.
The issuance of the Rights pursuant to the Rights Agreement has no
dilutive effect, will not affect reported earnings per share, is not taxable to
the Company or its stockholders and will not change the way in which the
Company's shares are traded.
In connection with the adoption of the Rights Agreement, the Board of
Directors of the Company declared a dividend of one right (a "Right"), for each
outstanding share of (i) common stock, par value $1.00 per share ("Common
Stock") and (ii) Class B common stock, par value $1.00 per share ("Class B
Common Stock" and together with the Common Stock, the "Common Shares") of the
Company payable to stockholders of record at the close of business on December
26, 2000, or issued thereafter and prior to the Separation Time (as defined in
the Rights Agreement referred to below) and thereafter pursuant to options and
convertible securities outstanding at the Separation Time.
Pursuant to the terms of the Rights Agreement, each Right entitles its
registered holder to purchase from the Company, after the Separation Time, one
one-thousandth of a share of Series A Participating Preferred Stock, par value
$1.00 per share ("Series A Participating Preferred Stock"), for $270 (the
"Exercise Price"), subject to adjustment. Each one one-thousandth of a share of
Series A Participating Preferred Stock will be convertible by holders of Class B
Common Stock into one one-thousandth of a share of Series B Participating
Preferred Stock, par value $1.00 per share ("Series B Participating Preferred
Stock", and together with the Series A Participating Preferred Stock, the
"Preferred Stock") on the basis of one one-thousandth of a share of Series B
Participating Preferred Stock for every share of Class B Common Stock held.
The Rights will be evidenced by the Common Share certificates until the
earlier of (either, the "Separation Time") (i) the close of business on the
tenth business day (or such later date as the Board of Directors of the Company
may from time to time fix by resolution adopted prior to the Separation Time
that would otherwise have occurred) after the date on which any Person (as
defined in the Rights Agreement) commences a tender or exchange offer which, if
consummated, would result in such Person's becoming an Acquiring Person (as
defined below) and (ii) the time of the first event causing a Flip-in Date (as
defined below) to occur; provided that if the foregoing results in the
Separation Time being prior to the Record Time, the Separation Time shall be the
Record Time; and provided further that if a tender or exchange offer referred to
in clause (i) is cancelled, terminated or otherwise withdrawn prior to the
Separation Time without the purchase of any shares of stock pursuant thereto,
such offer shall be deemed never to have been made. A Flip-in Date means (A) the
earlier of (i) the first date on which there shall be a public announcement by
the Company (by any means) that a Person has become an Acquiring Person or (ii)
the date on which any Acquiring Person becomes the Beneficial Owner (as defined
in the Rights Agreement) of more than 35% of the voting power of all of the
outstanding Common Shares or (B) such later date and time as the Board of
Directors of the Company may fix by resolution adopted prior to the Flip-in Date
that would otherwise have occurred.
An Acquiring Person is any Person having Beneficial Ownership of 15% or
more of the outstanding shares of Common Stock, which term shall not include (i)
Hershey Trust Company, a Pennsylvania corporation, as trustee for Milton Hershey
School (together with any successor or other validly appointed trustee, the
"Trustee") and Milton Hershey School as beneficiary under deed of trust dated as
of November 15, 1909 between Milton S. Hershey and Catherine S. Hershey and the
Hershey Trust Company, or any Affiliates or Associates of the Trustee or Milton
Hershey School, (ii) any Person who shall become the Beneficial Owner of 15% or
more of the outstanding shares of Common Stock as the result of purchasing
Common Shares from the Trustee in its capacity as trustee or Milton Hershey
School (the "Trust Shares") so long as at the time of such purchase (a "Trust
Transaction"), and after giving effect to such Trust Transaction, such Person
does not become the Beneficial Owner of more than 35% of the voting power of all
of the outstanding Common Shares, until such time thereafter as such Person
shall become the Beneficial Owner (other than
(A) by means of a stock dividend or stock split or (B) as the result of a Trust
Transaction after giving effect to which such Person does not Beneficially Own
more than 35% of the voting power of all of the outstanding Common Shares) of
any additional shares of Common Stock while such Person is, or as the result of
which such Person becomes, the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock, (iii) any Person who is the Beneficial Owner
of 15% or more of the outstanding shares of Common Stock on the date of the
Rights Agreement, or any Person who shall become the Beneficial Owner of 15% or
more of the outstanding Common Stock solely as a result of an acquisition by the
Company of shares of Common Stock, until such time as such Person shall become
the Beneficial Owner (other than (A) by means of a stock dividend or stock split
or (B) as the result of a Trust Transaction after giving effect to which such
Person does not Beneficially Own more than 35% of the voting power of all of the
outstanding Common Shares) of any additional shares of Common Stock while such
Person is or as a result of which such Person becomes the Beneficial Owner of
15% or more of the outstanding shares of Common Stock, (iv) any Person who
becomes the Beneficial Owner of 15% or more of the outstanding shares of Common
Stock but who acquired Beneficial Ownership of shares of Common Stock without
any plan or intention to seek or affect control of the Company, if such Person
promptly divests, or promptly enters into an agreement with, and satisfactory
to, the Company, in its sole discretion, to divest sufficient shares of Common
Stock (or securities convertible into, exchangeable into or exercisable for
Common Stock) so that such Person ceases to be the Beneficial Owner of 15% or
more of the outstanding shares of Common Stock or (v) any Person who
Beneficially Owns shares of Common Stock consisting solely of one or more (A)
shares of Common Stock Beneficially Owned pursuant to the grant or exercise of
an option granted to such Person (an "Option Holder") by the Company in
connection with an agreement to merge with, or acquire, the Company entered into
prior to a Flip-in Date, (B) shares of Common Stock (or securities convertible
into, exchangeable into or exercisable for Common Stock) Beneficially Owned by
such Option Holder or its Affiliates or Associates at the time of grant of such
option and (C) shares of Common Stock (or securities convertible into,
exchangeable into or exercisable for Common Stock) acquired by Affiliates or
Associates of such Option Holder after the time of such grant which, in the
aggregate, amount to less than 1% of the outstanding shares of Common Stock. In
addition, the Company, any Subsidiary of the Company and any employee
stock ownership or other employee benefit plan of the Company or a Subsidiary of
the Company (or any entity or trustee holding Common Shares for or pursuant to
the terms of any such plan or for the purpose of funding any such plan or
funding other employee benefits for employees of the Company or of any
Subsidiary of the Company) will not be an Acquiring Person.
The Rights Agreement provides that, until the Separation Time, the
Rights will be transferred with and only with the Common Shares. Common Share
certificates issued after the Record Time but prior to the Separation Time shall
evidence one Right for each Common Share represented thereby and shall contain a
legend incorporating by reference the terms of the Rights Agreement (as such may
be amended from time to time). Notwithstanding the absence of the aforementioned
legend, certificates evidencing Common Shares outstanding at the Record Time
shall also evidence one Right for each Common Share evidenced thereby. Promptly
following the Separation Time, separate certificates evidencing the Rights
("Rights Certificates") will be delivered to holders of record of Common Shares
at the Separation Time.
The Rights will not be exercisable until the Business Day (as defined
in the Rights Agreement) following the Separation Time. The Rights will expire
on the earliest of (i) the Exchange Time (as defined below), (ii) the date on
which the Rights are redeemed as described below , (iii) the close of business
on the tenth anniversary of the date of the Rights Agreement, unless extended by
action of the Board of Directors of the Company and (iv) immediately prior to
the effective time of a consolidation, merger or statutory share exchange that
does not constitute a Flip-over Transaction or Event (as defined below) (in any
such case, the "Expiration Time").
The Exercise Price and the number of Rights outstanding, or in certain
circumstances the securities purchasable upon exercise of the Rights, are
subject to adjustment from time to time to prevent dilution in the event of a
Common Share dividend on, or a subdivision or a combination into a smaller
number of shares of, Common Shares, or the issuance or distribution of any
securities or assets in respect of, in lieu of or in exchange for Common Shares.
In the event that prior to the Expiration Time a Flip-in Date occurs,
the Company shall take such action as
shall be necessary to ensure and provide that each Right (other than Rights
Beneficially Owned by the Acquiring Person or any affiliate or associate
thereof, which Rights shall become void) shall constitute the right to purchase
from the Company, upon the exercise thereof in accordance with the terms of the
Rights Agreement, that number of one one-thousandths of a share of Series A
Participating Preferred Stock equal to that number of shares of Common Stock
having an aggregate Market Price (as defined in the Rights Agreement), on the
date of the occurrence that gave rise to the Flip-in Date, equal to twice the
Exercise Price for an amount in cash equal to the then current Exercise Price.
In addition, the Board of Directors of the Company may, at its option, at any
time after a Flip-in Date and prior to the time that an Acquiring Person becomes
the Beneficial Owner of more than 50% of the outstanding voting power of the
Common Shares, elect to exchange all (but not less than all) the then
outstanding Rights (other than Rights Beneficially Owned by the Acquiring Person
or any affiliate or associate thereof, which Rights become void) for shares of
Preferred Stock at an exchange ratio of one one-thousandth of a share of
Preferred Stock, per Right, appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date of the Separation
Time (the "Exchange Ratio"). Immediately upon such action by the Board of
Directors (the "Exchange Time"), the right to exercise the Rights will terminate
and each Right will thereafter represent only the right to receive a number of
one one-thousandths of a share of Preferred Stock equal to the Exchange Ratio.
Whenever the Company shall become obligated, as described in the
preceding paragraph, to issue shares of Preferred Stock upon exercise of or in
exchange for Rights, the Company, at its option, may substitute therefor shares
of Common Stock or Class B Common Stock, as applicable, at a ratio of one share
of Common Stock or Class B Common Stock, as applicable, for each one
one-thousandth of a share of Preferred Stock so issuable.
In the event that prior to the Expiration Time the Company enters into,
consummates or permits to occur a transaction or series of transactions after
the time an Acquiring Person has become such in which, directly or indirectly,
(i) the Company shall consolidate or merge or participate in a binding statutory
share exchange with any other Person if, at the time of the consolidation,
merger or share exchange or at the time the Company enters into an agreement
with respect to such consolidation, merger or
statutory share exchange, the Acquiring Person is the Beneficial Owner of 90% or
more of the outstanding shares each of the Common Stock and, to the extent it
then exists, the Class B Common Stock or controls the Board of Directors of the
Company and either (A) any term of or arrangement concerning the treatment of
shares of Common Stock or Class B Common Stock, as the case may be, in such
merger, consolidation or statutory share exchange relating to the Acquiring
Person is not identical to the terms and arrangements relating to other holders
of the Common Stock or Class B Common Stock, as the case may be, or (B) the
Person with whom such transaction or series of transactions occurs is the
Acquiring Person or an Affiliate or Associate thereof or (ii) the Company shall
sell or otherwise transfer (or one or more of its subsidiaries shall sell or
otherwise transfer) assets (A) aggregating more than 50% of the assets (measured
by either book value or fair market value) or (B) generating more than 50% of
the operating income or cash flow, of the Company and its subsidiaries (taken as
a whole) to any other Person (other than the Company or one or more of its
wholly owned subsidiaries) or to two or more such Persons which are affiliated
or otherwise acting in concert, if, at the time the Company (or any such
subsidiary) enters into an agreement with respect to such sale or transfer, the
Acquiring Person controls the Board of Directors of the Company (a "Flip-over
Transaction or Event"), the Company will take such action as shall be necessary
to ensure, and will not enter into, consummate or permit to occur such Flip-over
Transaction or Event until it shall have entered into a supplemental agreement
with the Person engaging in such Flip-over Transaction or Event or the parent
corporation thereof (the "Flip-over Entity"), for the benefit of the holders of
the Rights, providing, that upon consummation or occurrence of the Flip-over
Transaction or Event (i) each Right shall thereafter constitute the right to
purchase from the Flip-over Entity, upon exercise thereof in accordance with the
terms of the Rights Agreement, that number of shares of stock of the Flip-over
Entity, with terms substantially identical to the Preferred Stock, having an
aggregate Market Price on the date of consummation or occurrence of such
Flip-over Transaction or Event equal to twice the Exercise Price for an amount
in cash equal to the then current Exercise Price and (ii) the Flip-over Entity
shall thereafter be liable for, and shall assume, by virtue of such Flip-over
Transaction or Event and such supplemental agreement, all the obligations and
duties of the Company pursuant to the Rights Agreement. For purposes of the
foregoing description, the term "Acquiring Person" shall
include any Acquiring Person and its Affiliates and Associates counted together
as a single Person.
The Board of Directors of the Company may, at its option, at any time
prior to the Flip-in Date, redeem all (but not less than all) the then
outstanding Rights at a price of $.01 per Right) (the "Redemption Price"), as
provided in the Rights Agreement. Immediately upon the action of the Board of
Directors of the Company electing to redeem the Rights, without any further
action and without any notice, the right to exercise the Rights will terminate
and each Right will thereafter represent only the right to receive the
Redemption Price for each Right so held.
The holders of Rights will, solely by reason of their ownership of
Rights, have no rights as stockholders of the Company, including, without
limitation, the right to vote or to receive dividends.
The Rights will not prevent a takeover of the Company. However, the
Rights may cause substantial dilution to a person or group that acquires 15% or
more of the Common Stock unless the Rights are first redeemed by the Board of
Directors of the Company. Nevertheless, the Rights should not interfere with a
transaction that is in the best interests of the Company and its stockholders
because the Rights can be redeemed prior to the Flip-in Date, before the
consummation of such transaction.
As long as the Rights are attached to the Common Shares, the Company
will issue one Right with each new Common Share so that all such shares will
have Rights attached.
The Rights Agreement (which includes as Exhibit A the forms of Rights
Certificate and Election to Exercise and as Exhibits B and C, respectively, the
forms of Certificate of Designations and Terms of the Series A Participating
Preferred Stock and Series B Participating Preferred Stock) is attached hereto
as an exhibit and is hereby incorporated herein by reference. The foregoing
description of the Rights is qualified in its entirety by reference to the
Rights Agreement and such exhibits thereto.
ITEM 7. EXHIBITS.
(4) Stockholder Protection Rights Agreement, dated as of December
15, 2000 (the "Rights Agreement"),
between Hershey Foods Corporation and Mellon Investor Services
LLC, as Rights Agent(together with Forms of Rights Certificate
and of Election to Exercise, included in Exhibit A to the
Rights Agreement and Forms of Certificates of Designations and
Terms of (i) Series A Participating Preferred Stock, included
in Exhibit B to the Rights Agreement and (ii) Series B
Participating Preferred Stock, included in Exhibit C to the
Rights Agreement)
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HERSHEY FOODS CORPORATION
By: /s/ Robert M. Reese
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Name: Robert M. Reese
Title:Senior Vice President,
General Counsel and Secretary
Date: December 15, 2000
EXHIBIT INDEX
Exhibit No. Description
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(4) Stockholder Protection Rights Agreement, dated as of December
15, 2000 (the "Rights Agreement"), between Hershey Foods
Corporation and Mellon Investor Services, as Rights Agent
(together with Forms of Rights Certificate and of Election to
Exercise, included in Exhibit A to the Rights Agreement and
Forms of Certificates of Designations and Terms of (i) Series A
Participating Preferred Stock, included in Exhibit B to the
Rights Agreement and (ii) Series B Participating Preferred
Stock, included in Exhibit C to the Rights Agreement)