As filed with the Securities and Exchange Commission on April 10, 1997.
Registration No.
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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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ESKIMO PIE CORPORATION
(Exact name of issuer as specified in its charter)
VIRGINIA 54-0571720
(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
THOMAS M. MISHOE, JR. Copy to:
Chief Financial Officer, Vice President, JEAN PENICK WATKINS
Treasurer and Corporate Secretary Mays & Valentine, L.L.P.
Eskimo Pie Corporation NationsBank Center, 22nd Floor
901 Moorefield Park Drive P. O. Box 11221
Richmond, VA 23236 Richmond, VA 23218-1122
(804) 560-8400 (804) 697-1297
(Name, address and telephone
number of agent for service)
901 Moorefield Park Drive
Richmond, Virginia 23236
(Address, of principal executive offices, including zip code)
ESKIMO PIE CORPORATION 1996 INCENTIVE STOCK PLAN
ESKIMO PIE CORPORATION SAVINGS PLAN
ESKIMO PIE CORPORATION EMPLOYEE STOCK PURCHASE PLAN
(Full name of the Plan)
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Approximate date of proposed commencement of sales pursuant to the Plan: Upon
effectiveness of this Registration Statement
CALCULATION OF REGISTRATION FEE
Title of Proposed Maximum Proposed Maximum Amount of
Securities To Amount to be Offering Price Aggregate Registration
Be Registered Registered(1) Per Share* Offering Price* Fee
------------- ------------- ---------- --------------- ---
Common Stock, $1 Par Value (2) 450,000 $12.0625 $5,428,125 $1,645
* Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(h) on the basis of $12.0625 per share, the average of the high and
low prices of the shares on April 7, 1997.
(1) This registration statement relates to the registration of shares of the
Registrant's Common Stock under the following three plans: (i) 200,000 shares
under the Registrant's 1996 Incentive Stock Plan; (ii) 200,000 shares under the
Registrant's Savings Plan, and (iii) 50,000 shares under the Registrant's
Employee Stock Purchase Plan. Pursuant to Rule 416(c) under the Securities Act
of 1933, as amended, this Registration Statement also covers an indeterminate
amount of interests to be offered and sold pursuant to the Registrant's Savings
Plan.
(2) Also includes associated Series A Junior Participating Preferred Stock
Purchase Rights which are not currently separable from the shares of Common
Stock and are not currently exercisable.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company will furnish shareholders with annual reports containing
audited financial statements and with quarterly reports containing unaudited
financial statements for the first three quarters of each fiscal year. Copies of
these documents, and any other communications sent to the Company's shareholders
generally, also will be furnished to all employees eligible to participate in
the Company's 1996 Incentive Stock Plan, the Company's Savings Plan and the
Company's Employee Stock Purchase Plan (collectively, the "Plans").
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are hereby incorporated herein by
reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996, filed pursuant to Section 13 of the Securities Exchange Act
of 1934 (the "Exchange Act" or the "1934 Act"); and
(b) The description of the Company's Common Stock contained in the
Company's registration statement on Form 8-A and any amendment or report filed
subsequent thereto for the purpose of updating such description.
All documents filed by the Company and any of the Plans after the date
of this Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the 1934 Act, prior to the filing of a post-effective amendment which
indicates that all the Company's Common Stock offered hereby has been sold or
which deregisters such Common Stock then remaining unsold, shall be deemed to be
incorporated herein by reference and to be a part hereof from the date of filing
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Named Experts and Counsel.
The consolidated financial statements of Eskimo Pie Corporation
appearing in Eskimo Pie Corporation's Annual Report (Form 10-K) for the year
ended December 31, 1996, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
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herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
The legality of the Company's Common Stock to be issued or sold by the
Company pursuant to the Plans has been passed upon for the Company by Mays &
Valentine L.L.P., NationsBank Center, 1111 East Main Street, P. O. Box 1122,
Richmond, Virginia 23219. F. Claiborne Johnston, Jr., a partner at Mays &
Valentine L.L.P., serves as a director of the Company.
Item 6. Indemnification of Directors and Officers.
As permitted by Virginia law, the Amended and Restated Articles of
Incorporation of the Registrant eliminate the liability of officers and
directors to the Company or it shareholders for monetary damages except for
liabilities resulting from such persons having engaged in willful misconduct or
a knowing violation of the criminal law or any federal or state securities law.
The Amended and Restated Articles of Incorporation of the Registrant eliminate
director and officer liability to the Company or its shareholders to the fullest
extent permitted under Virginia corporate law, as now or hereafter in effect.
Virginia corporate law permits, and the Amended and Restated Articles
of Incorporation require, indemnification of the Company's officers and
directors against all liabilities imposed or asserted against them by reason of
having been an officer or director of the Company (including derivative
actions), except in the case of willful misconduct or a knowing violation of the
criminal law. The Amended and Restated Articles of Incorporation also permit the
Company to indemnify employees or agents of the Company to the same extent as is
mandated for officers and directors. The Amended and Restated Articles of
Incorporation require indemnification to the fullest extent permitted under
Virginia corporate law, as now or hereafter in effect.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) An index of Exhibits appears at page II-7 hereof.
(b) The Registrant hereby undertakes to submit the Eskimo Pie
Corporation Savings Plan, as amended, to the Internal Revenue Service in a
timely manner and will make all changes required by the Internal Revenue Service
in order to qualify such plan.
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Item 9. Undertakings.
(1) The undersigned hereby undertakes:
a. To file, during any period in which offers or
sales are being made, a post-effective amendment to the
registration statement.
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(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; 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)(i) and (a)(ii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the registration statement;
b. That, for the purpose of determining any liability
under the Securities Act of 1933, 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; and
c. 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.
(2) The undersigned hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of its annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and where applicable each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange 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.
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(3) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the undersigned pursuant to the provisions set
forth in Item 6 or otherwise, the undersigned has been advised that in
the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liability (other than the payment by the undersigned of expenses
incurred or paid by a director, officer or controlling person of the
undersigned in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person
in connection with the securities registered under the registration
statement, the undersigned 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 of
1933 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, the
undersigned 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 and on behalf of the Eskimo
Pie Corporation Savings Plan, as Plan Administrator, by the undersigned,
thereunto duly authorized, in the City of Richmond, Commonwealth of Virginia, on
the 10th day of April, 1997.
ESKIMO PIE CORPORATION
By /s/ Thomas M. Mishoe, Jr.
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Thomas M. Mishoe, Jr.
Chief Financial Officer, Vice President,
Treasurer and Corporate Secretary
ESKIMO PIE CORPORATION
SAVINGS PLAN
By ESKIMO PIE CORPORATION
(As Plan Administrator)
By /s/ Thomas M. Mishoe, Jr.
---------------------------
Thomas M. Mishoe, Jr.
Chief Financial Officer, Vice President,
Treasurer and Corporate Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 10th day of April, 1997.
Signature Title
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*/s/ Arnold H. Dreyfuss Chairman of the Board and Chief
- -------------------------------- Executive Officer
Arnold H. Dreyfuss
*/s/ David B. Kewer President and Chief Operating Officer
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David B. Kewer
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/s/ Thomas M. Mishoe, Jr. Chief Financial Officer, Vice President,
- -------------------------------- Treasurer and Corporate Secretary
Thomas M. Mishoe, Jr.
/s/ William T. Berry, Jr. Assistant Vice President, Controller
- --------------------------------
William T. Berry, Jr.
*/s/ Terrence D. Daniels Director
- --------------------------------
Terrence D. Daniels
*/s/ William M. Farris, Jr. Director
- --------------------------------
William M. Farris, Jr.
*/s/ Wilson H. Flohr, Jr. Director
- --------------------------------
Wilson H. Flohr, Jr.
*/s/ F. Claiborne Johnston, Jr. Director
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F. Claiborne Johnston, Jr.
*/s/ Judith B. McBee Director
- --------------------------------
Judith B. McBee
*By: /s/ Thomas M. Mishoe, Jr.
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Thomas M. Mishoe, Jr.
(Attorney-in-Fact)
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EXHIBIT INDEX
Exhibit 4(a) Amended and Restated Certificate of
Incorporation of Eskimo Pie Corporation,
incorporated herein by reference to Exhibit
C to the Company's Proxy Statement for its
1996 Annual Meeting of Shareholders.
Exhibit 4(b) Amended and Restated Bylaws of Eskimo
Pie Corporation, incorporated herein by
reference to Exhibit 3.2 of the Company's
Report on Form 10-Q for the quarter ended
June 30, 1996.
Exhibit 4(c)(i) Eskimo Pie Corporation 1996 Incentive
Stock Plan, incorporated herein by reference
to Exhibit A to the Company's Proxy
Statement for its 1996 Annual Meeting of
Shareholders.
Exhibit 4(c)(ii) Eskimo Pie Corporation Savings Plan, as
amended, filed herewith.
Exhibit 4(c)(iii) Eskimo Pie Corporation Employee Stock
Purchase Plan, filed herewith.
Exhibit 5 Opinion of Mays & Valentine L.L.P. with
respect to the validity of the Common Stock,
filed herewith.
Exhibit 23(a) Consent of Mays & Valentine L.L.P.,
contained in their opinion filed as Exhibit
5 hereto.
Exhibit 23(b) Consent of Independent Auditors, Ernst &
Young LLP, filed herewith.
Exhibit 24 Powers of Attorney of directors and an
officer of Eskimo Pie Corporation.
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