Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan — Form S-8
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-8 Stock Option Agreements 7 37K
2: EX-5 Ropes & Gray Opinon 1 8K
3: EX-10 Exhibit 10.1- Michael Sands Stock Option Contract 8 42K
4: EX-10 Exhibit 10.2 Helen Jones Stock Option Contract 8 39K
5: EX-10 Exhibit 10.3 Roger Legendre Stock Option Contract 8 39K
6: EX-10 Exhibit 10.4 Stock Option Contract 8 39K
7: EX-23 Consent of Ernst & Young LLP, Independent Auditors 1 6K
Registration No.333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BEN & JERRY'S HOMEMADE, INC.
(Exact name of registrant as specified in its charter)
Vermont 2024 03-02675-43
(State or other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
30 Community Drive
South Burlington, Vermont 05403
(Address of Principal Executive Offices, including Zip Code)
Michael Sands Non-Statutory Stock Option Agreement
Helen Jones Non-Statutory Stock Option Agreement
Roger Legendre Non-Statutory Stock Option Agreement
Rivington Fields Hight, Jr. Non-Statutory Stock Option Agreement
Perry Odak
President and Chief Executive Officer
Ben & Jerry's Homemade, Inc.
30 Community Drive
South Burlington, VT 05403
802/846-1500
(Name, Address and Telephone Number of Agent for Service)
Please send copies of all communications to:
Howard K. Fuguet, Esquire
Ropes & Gray
One International Place
Boston, MA 02110
617-951-7000
[Enlarge/Download Table]
CALCULATION OF REGISTRATION FEE
--------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of securities to be Amount to be offering price per aggregate offering price registration fee
registered registered share
---------------------------- ------------------ ------------------------ ------------------------- -------------------
---------------------------- ------------------ ------------------------ ------------------------- -------------------
Class A Common Stock, par 35,000 (1) 24.25 $ 848,750.00
value $0.033 per share 2,000 (2) 28.06 56,120.00
10,000 (3) 28.063 280,630.00
3,000 (4) 28.06 84,180.00
-------------- ---------
50,000 1,269,680.00 $352.97
---------------------------- ------------------ ------------------------ ------------------------- -------------------
1. Shares subject to options granted pursuant to the Michael Sands
Non-Statutory Stock Option Agreement.
2. Shares subject to options granted pursuant to the Helen Jones
Non-Statutory Stock Option Agreement.
3. Shares subject to options granted pursuant to the Roger Legendre
Non-Statutory Stock Option Agreement.
4. Shares subject to options granted pursuant to the Rivington Fields
Hight, Jr. Non-Statutory Stock Option Agreement.
The date of this Registration Statement is December 10, 1999
Exhibit Index on Page 7
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The document(s) containing the information regarding the Michael Sands
Non-Statutory Stock Option Agreement, the Helen Jones Non Statutory Stock Option
Agreement, Roger Legendre Non-Statutory Stock Option Agreement, and the
Rivington Fields Hight, Jr. Non-Statutory Stock Option Agreement (collectively,
the "Plans") required by Item 1 of this Form S-8 and the statement of
availability of Registrant information, and other information required by Item 2
of this Form will be sent or given to eligible employees as specified by Rule
428(b)(1) under the Securities Act of 1933 (the "Securities Act"). In accordance
with Rule 428 and the requirements of Part I of Form S-8, such documents are not
being filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. The Registrant shall maintain a file of such
documents in accordance with the provisions of Rule 428. Upon request, the
Registrant will furnish to the Commission or its staff a copy or copies of all
of the documents included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Ben & Jerry's Homemade, Inc. (the "Corporation", or the "Registrant")
hereby incorporates the following document herein by reference:
(a) The Registrant's latest annual report on Form 10-K for the fiscal year
ended December 26, 1998, filed pursuant to Section 13 of the Securities
Exchange Act of 1934 as amended (the "Exchange Act"), filed with the
Commission on March 26, 1999.
(b) Quarterly Reports on Form 10-Q for the quarters ended March 27, 1999,
June 26, 1999 and September 25, 1999, as filed with the Commission
pursuant to Section 13 under the Exchange Act, on May 11, 1999, August
10, 1999 and November 9, 1999, respectively.
(c) The description of the Registrant's Class A Common Stock contained in
the Company's Registration Statement on Form S-1, filed pursuant to
Section 12 of the Exchange Act (No. 33-17516).
All documents subsequently filed by the Registrant pursuant to Section 13(a),
Section 13(c), Section 14 and Section 15(d) of the Exchange Act prior to the
filing of a post-effective amendment to this Registration Statement that
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold shall be deemed incorporated herein by
reference 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 Vermont Statutes Annotated, Title 8, Section 1837, as amended, regulates
indemnification by a Corporation in the following manner: a corporation may
indemnify or reimburse any person for reasonable expenses, including but not
limited to attorney fees, actually incurred by him in connection with any
action, suit or proceeding, instituted or threatened, judicial or
administrative, civil or criminal, to which he is made a party by reason of his
being or having been a director, officer or employee of an association,
provided, however, that no person can be indemnified or reimbursed, nor retain
any advancement or allowance for indemnification which may have been made by the
corporation in advance of final disposition, in relation to that action, suit or
proceeding in which and to the extent that he is found to have been guilty of a
breach of good faith, to have been negligent in the performance of his duties or
to have committed an action or failed to perform a duty for which there is
common law or statutory liability. A person, may, with the approval of the
commissioner, be indemnified or reimbursed for:
(1) Amounts paid in compromise or settlement of any action, suit or
proceeding, including reasonable expenses incurred in connection
therewith, or
(2) Reasonable expenses incurred in connection with a criminal action, suit
or proceeding in which that person has been adjudicated guilty,
negligent or liable if it shall be determined by the board of director
and by the commissioner that the person was acting in good faith and in
what he believed to be the best interests of the association and
without knowledge that the action was illegal, if the indemnification
or reimbursement is approved at an annual or special meeting of the
members by a majority of the votes eligible to be cast.
Sections 2 and 3 of the Registrant's By-laws state that the Corporation shall
indemnify an individual made a party to a proceeding because the individual is
or was a director against liability incurred in the proceeding if: (1) the
director conducted himself or herself in good faith, and (2) the director
reasonably believed: (a) in the case of conduct in the director's official
capacity with the Corporation, that the director's conduct was in its best
interests; and (b) in all other cases, that the director's conduct was at least
not opposed to its best interests, and (3) in the case of any proceeding brought
by a governmental entity, the director had no reasonable cause to believe his or
her conduct was unlawful, and the director is not finally found to have engaged
in a reckless or intentional unlawful act.
A director's conduct with respect to an employee benefit plan for a purpose the
director reasonably believed to be in the interests of the participants in and
beneficiaries of the plan is conduct that satisfies the preceding requirements.
The termination of a proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent is not, of itself,
determinative that the director did not meet the standard of conduct described
above. The Corporation may not indemnify a director: (i) in connection with a
proceeding by or in the right of the Corporation in which the director was
adjudged liable to the Corporation, or (ii) in connection with any other
proceeding charging improper personal benefit to the director, whether or not
involving action in the director's official capacity in which the director was
adjudged liable on the basis that personal benefit was improperly received by
the director. Indemnification permitted under the Registrant's by-laws in
connection with a proceeding by or in the right of the Corporation is limited to
reasonable expenses incurred in connection with the proceeding. Notwithstanding
the above, the Corporation will indemnify a director who was wholly successful,
on the merits or otherwise, in the defense of any proceeding to which the
director was a party because the director is or was a director of the
Corporation against reasonable expenses incurred by the director in connection
with the proceeding.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 Opinion of Ropes & Gray.
10.1 Michael Sands Non-Statutory Stock Option Agreement
10.2 Helen Jones Non-Statutory Stock Option Agreement
10.3 Roger Legendre Non-Statutory Stock Option Agreement
10.4 Rivington Fields Hight, Jr. Non-Statutory Stock Option Agreement
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Ropes & Gray (see Exhibit 5.1).
24 Power of Attorney (Included on Signature Page).
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;
(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 the 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
20 percent 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 this Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above shall not
apply if 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 Securities and Exchange Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purposes 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 of 1933,
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 of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as
expressed in the 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 Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant 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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of South Burlington, State of Vermont, on this 10th
day of December 1999.
BEN & JERRY'S HOMEMADE, INC.
/s/Perry D. Odak
----------------
By: Perry D. Odak
Chief Executive Officer, President
POWER OF ATTORNEY
Dated: December 10, 1999
Each person whose signature appears below constitutes and appoints Perry D. Odak
and Frances Rathke, and each of them singly, his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement on Form S-8 to be filed by Ben & Jerry's Homemade, Inc., and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission making such changes in
this Registration Statement as the person(s) so acting deems appropriate, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to
the requirements of the Securities Act of 1933, as amended, this Registration
Statement on Form S-8 has been signed below by the following persons in the
capacities indicated.
Signature Capacity Date
--------- -------- ----
/s/ Perry D. Odak Chief Executive Officer, Director December 10, 1999
---------------------
Perry D. Odak
/s/Frances G. Rathke Chief Financial Officer, Secretary December 10, 1999
---------------------
Frances G. Rathke
/s/Jerry Greenfield Chairman, Board of Directors December 10, 1999
---------------------
Jerry Greenfield
Director December 10, 1999
---------------------
Pierre Ferrari
/s/Jeffrey Furman Director December 10, 1999
---------------------
Jeffrey Furman
Director December 10, 1999
---------------------
Bennett Cohen
/s/Jennifer Henderson Director December 10, 1999
---------------------
Jennifer Henderson
/s/Frederick A. Miller Director December 10, 1999
----------------------
Frederick A. Miller
Director December 10, 1999
---------------------
Henry Morgan
EXHIBIT INDEX
Number Title of Exhibit
5.1 Opinion of Ropes & Gray.
10.1 Michael Sands Non-Statutory Stock Option Agreement
10.2 Helen Jones Non-Statutory Stock Option Agreement
10.3 Roger Legendre Non-Statutory Stock Option Agreement
10.4 Rivington Fields Hight, Jr. Non-Statutory Stock Option Agreement
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Ropes & Gray (see Exhibit 5.1).
24 Power of Attorney (Included on Signature Page).
Dates Referenced Herein and Documents Incorporated by Reference
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