-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, U8xIJICcoJqsoibdOwbMH1sWZSoKxGwnsgVDNXsrxruBz30Iu/Uqie1uTcejQxi+ pContMDgWDLHmsd59SseFA== 0000821026-95-000014.txt : 19951027 0000821026-95-000014.hdr.sgml : 19951027 ACCESSION NUMBER: 0000821026-95-000014 CONFORMED SUBMISSION TYPE: S-4/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19951026 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: ANDERSONS MANAGEMENT CORP CENTRAL INDEX KEY: 0000821026 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ENGINEERING, ACCOUNTING, RESEARCH, MANAGEMENT [8700] IRS NUMBER: 34156374 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 033-58963 FILM NUMBER: 95584288 BUSINESS ADDRESS: STREET 1: 1200 DUSSEL DRIVE CITY: MAUMEE STATE: OH ZIP: 43537 BUSINESS PHONE: 4198935050 S-4/A 1 As filed with the Securities and Exchange Commission on October 26, 1995 Registration No. 33-58963 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ______________________ AMENDMENT NO. 5 TO FORM S-4 REGISTRATION STATEMENT Under The Securities Act of 1933 ______________________ THE ANDERSONS MANAGEMENT CORP. (Exact name of registrant as specified in its charter) Ohio 7392 34-1562374 (State or other (Primary Standard (I.R.S. employer jurisdiction Industrial identification number) of incorporation or Classification Code organization) Number) 480 West Dussel Drive Maumee, Ohio 43537 (419) 893-5050 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) ______________________ Beverly J. McBride The Andersons Management Corp. 480 West Dussel Drive Maumee, Ohio 43537 (419) 893-5050 (Name, address, including zip code, and telephone number, including area code, of agent for service) ______________________ Copy to: Willard G. Fraumann, P.C. Kirkland & Ellis 200 East Randolph Drive Chicago, Illinois 60601 (312) 861-2000 Approximate date of commencement of proposed sale of the securities to the public: January 2, 1996 If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box: ______________________ The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. PART II Information Not Required in Prospectus Item 20. Indemnification of Directors and Officers. Section 1701.59 of the Ohio General Corporation Law, inter alia, empowers an Ohio corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or other enterprise, against expenses (including attor- neys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Similar indemnity is authorized for such person against expenses (including attorneys' fees) actually and reasonably incurred in connection with the defense or settlement of any such threatened, pending or completed action or suit if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and provided further that (unless a court of competent jurisdiction otherwise provides) such person shall not have been adjudged liable to the corporation. Any such indemnification may be made only as authorized in each specific case upon a determination by the shareholders or disinterested directors or by independent legal counsel in a written opinion that indemnification is proper because the indemnitee has met the applicable standard of conduct. Section 1701.59 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against him or her and incurred in any such capacity, or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify him or her under Section 1701.59. The Company does not maintain policies insuring its and its subsidiaries' officers and directors against certain liabilities for actions taken in such capacities, including liabilities under the Securities Act of 1933. Article IV of the Code of Regulations of the Company provides for indemnification of the directors and officers of the Company to the full extent permitted by law, as now in effect or later amended. In addition, the Code of Regulations provide for indemnification against expenses incurred by a director or officer to be paid by the Company in advance of the final disposition of such action, suit or-proceeding; provided, however, that if required by the Ohio General Corporation Law, an advancement of expenses will be made only upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall be ultimately determined that he or she is not entitled to be indemnified by the Company. The Code of Regulations further provide for a contractual cause of action on the part of directors and officers of the Company with respect to indemnification claims which have not been paid by the Company. Article Sixth of the Company's Restated Articles of Incorporation limits to the fullest extent permitted by the Ohio General Corporation Law as the same exists or may have been amended, the personal liability of the Company 's directors to the Company or its shareholders for monetary damages for a breach of their fiduciary duty as directors. Section 1701.59 of the Ohio General Corporation Law currently provides that such provisions do not eliminate the liability of a director (i) for a breach of the director's duty of loyalty to the Company or its shareholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 1701.59 of the Ohio General Corporation Law (relating to the declaration of dividends and purchase or redemption of shares in violation of the Ohio General Corporation Law); or (iv) for any transaction from which the director derived an improper personal benefit. Item 21. Exhibits. Exhibit Number Description 2.1 Agreement and Plan of Merger, dated as of April 28, 1995 and amended as of September 26, 1995, by and between the General Partner and the Partnership (included as Appendix A to the prospectus). 3.1 Articles of Incorporation of the General Partner, dated August 19, 1987 (incorporated by reference to Exhibit 3(d) to Registration Statement No. 33-16936). 3.2 Code of Regulations of the General Partner, dated August 20, 1987 (incorporated by reference to Exhibit 3(e) to Registration Statement No. 33-16936). 3.3 Proposed Articles of Incorporation of the Surviving Corporation (included as Annex A to Appendix A to the prospectus). 3.4 Proposed Code of Regulations of the Surviving Corporation (included as Annex B to Appendix A to the prospectus). 4.1*** Specimen Common Share certificate. 5.1* Opinion of Beverly J. McBride as to the validity of the securities being registered hereby. 8.1**** Opinion of Kirkland & Ellis as to certain tax matters. 10.1** Management Performance Program. (incorporated by reference to Exhibit 10(a) to the Partnership's Form 10-K for the year ended December 31, 1990, File No. 2-55070). 10.2 Lease agreement effective May 1, 1990, between Carentmon and the General Partner (incorporated by reference to Exhibit 10(b) to the Registrant's Form 10-K for the year ended December 31, 1992). 10.3** Management Agreement between the Partnership and the Registrant, effective as of January 1, 1988. (incorporated by reference to Exhibit 10(h) in Registration Statement No. 33-13538). 10.4* Amended and Restated Partnership Agreement of the Partnership, dated as of April 1, 1995. 23.1# Consent of Independent Auditors. 23.2* Consent of Beverly J. McBride (included in the opinion filed as Exhibit 5.1). 23.3**** Consent of Kirkland & Ellis (included in the opinion filed as Exhibit 8.1). 24.1* Powers of Attorney (included on signature page). 99.1 Forms of elections to be made with respect to partners' capital withdrawals and accompanying cover letter thereto. * Filed with the Registration Statement dated May 1, 1995. ** Management contract or compensatory plan. *** Filed with the Amendment Number 1 to the Registration Statement dated May 19, 1995. **** Filed with the Amendment Number 2 to the Registration Statement dated August 9, 1995. # Filed with the Amendment Number 4 to the Registration Statement dated October 25, 1995. Item 22. Undertakings. (a) The undersigned registrant hereby undertakes to respond to requests for information that are incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. (b) The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. (c) The undersigned registrant hereby undertakes as follows: that prior to any public Reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such Reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other Items of the applicable form. (d) The registrant undertakes that every prospectus (i) that is filed pursuant to paragraph (c) immediately preceding, or (ii) that purports to meet the requirements of section 10(a)(3) of the Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes 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. (e) 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. (f) 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, represents 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) (section 230.424(b) of this chapter) 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; (2) 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. (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. SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this Amendment No. 5 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Maumee, State of Ohio, on this 26th day of October, 1995. THE ANDERSONS MANAGEMENT CORP. By /s/Richard P. Anderson Richard P. Anderson President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Amendment 5 to Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date Signature Title Date /s/Richard P. Anderson* President and May 18, /s/Richard M. Anderson* Director May 1, Richard P. Anderson Chief Executive 1995 Richard M. Anderson 1995 Officer, Director /s/Thomas H. Anderson* Chairman of the May 1, /s/John F. Barrett* Director May 1, Thomas H. Anderson Board, Director 1995 John F. Barrett 1995 /s/Gary L. Smith* Treasurer May 1, /s/Dale W. Fallat* Director May 1, Gary L. Smith 1995 Dale W. Fallat 1995 /s/Richard R. George* Corporate May 1, /s/Paul M. Kraus* Director May 1, Richard R. George Controller and 1995 Paul M. Kraus 1995 Principal Accounting Officer /s/Daniel T. Anderson* Director May 1, /s/Rene C. McPherson* Director May 1, Daniel T. Anderson 1995 Rene C. McPherson 1995 /s/Donald E. Anderson* Director May 1, /s/Donald M. Mennel* Director May 1, Donald E. Anderson 1995 Donald M. Mennel 1995 /s/Michael J. Anderson* Director May 1, /s/Janet M. Schoen* Director May 1, Michael J. Anderson 1995 Janet M. Schoen 1995
*By: /s/Thomas H. Anderson October 26, Attorney-in-Fact 1995 EX-99 2 Exhibit 99.1 [THE ANDERSONS LETTERHEAD] October 26, 1995 Dear Partner: Attached are the Partnership's distributions request forms. As you know, these must be completed and returned on or before November 7, 1995 if you wish to receive distributions on November 17, 1995. If you have any questions regarding your current account balance, your estimated 1995 tax liability, whether you should elect to participate this year in the state composite income tax returns for which you qualify, or how to complete these forms, please call me at (419) 891-6544. Sincerely, /s/ John P. Kraus John P. Kraus Tax Manager October 26, 1995 THE ANDERSONS 1995 FOURTH QUARTER CASH DISTRIBUTION DECLARATION I understand that I may now reconsider the cash distribution declaration I made earlier in 1995. This cash distribution must be approved by the Board of Directors of The Andersons Management Corp. The basis of this cash distribution remains unchanged from the previous declaration. I further understand that I may receive the fourth quarter cash distribtuion in increments of 25% of the original maximum distribution. Any amount I choose not to receive will remain invested in my capital account. Please complete the box below: Please write me a check for _______% of this cash distribution; keep the remaining amount of the distribution in my capital account. _____________________________________ ____________________________________ (Full legal name of partner) (signature) Please Print ___________________________________ (date) Please complete, sign, date and return this to John Kraus no later than Tuesday, November7, 1995. It is acceptable to reply via fax at (419) 891- 6670. October 26, 1995 THE ANDERSONS 1995 FINAL TAX DISTRIBUTION DECLARATION I understand that the Partnership plans to make a final tax distribution for the purpose of making final reimbursement to me for the taxes I must pay on the income earned on my partnership investment during 1995. I also understand that I may elect to receive all, some or none of any remaining available tax distribution in increments of 5%. Any amount I elect not to receive will remain invested in my partnership capital account. Please complete the box below: Please write me a check for _______% of this cash distribution; keep the remaining amount of the distribution in my capital account. _____________________________________ _____________________________________ (Full legal name of partner) (signature) Please Print _____________________________________ (date) Please complete, sign, date and return this to John Kraus no later than Tuesday, November7, 1995. It is acceptable to reply via fax at (419) 891- 6670. October 26, 1995 THE ANDERSONS 1995 SPECIAL EQUITY WITHDRAWAL REQUEST TO: Gary Smith John Kraus Gary/John: Please consider this letter as a request for a special withdrawal from my partner equity account at book value as of November 15, 1995 in the amount listed below. I understand that Company management will review the total of all amounts requested and determine its ability to honor those requests in light of the Company's liquidity needs. In the event that the total of all amounts requested exceeds the Company's ability to honor all requests, the Partnership will distribute to each requesting partner a lesser amount, pro rated based on the amount each partner has requested. I further understand that the amount of my withdrawal, as adjusted by Company management if necessary, will be paid on November 17, 1995 if the merger proposal passes on the preceding evening. If the merger proposal fails, this and all other such requests will be deemed null and void. Please complete the box below: Please consider my request for an equity withdrawal of $________________. _____________________________________ _______________________________________ (Full legal name of partner) (signature) Please Print _______________________________________ (date) If you wish to make a special equity withdrawal request, please complete, sign, date and return this form to John Kraus no later than Tuesday, November 7, 1995. It is acceptable to reply via fax at (419) 891-6670. 1995 STATE COMPOSITE INCOME TAX RETURN ELECTION FORM 1. Partner Spouse [Name, Address, Social Security [Spouse's Social Security #] #, State and City of Residence] 1995 Filing Status (Mark one) __ Married filing joint __ Married filing separately __ Single __ Head of household Date moved in 1995 if any __/__/__ SPOUSE'S BIRTH DATE __/__/__ 2. I will claim the following exemptions on my 1995 federal income tax return: [ ] Self [ ] Number of dependent children [ ] Spouse [ ] Number of other dependents 3. The following persons will be age 65 or older at December 31, 1995: [ ] Self [ ] Number of dependent children [ ] Spouse 4. Last year you indicated that you both qualified and elected to be included on the composite income tax returns in the following states (California is a new state for 1995): [ ] California [ ] Indiana [ ] New Jersey [ ] Georgia [ ] Maryland [ ] North Carolina [ ] Illinois [ ] Michigan [ ] Ohio Please strike the names of any of the above states in which you do not qualify or do not elect to be included in a 1995 composite return. If there is a state composite return in which you did not qualify or did not elect to be included in 1994, but in which you both qualify and elect to be included in 1995, please indicate so by placing an 'X' next to that state's name. 5. Please list any 1995 estimated payments you have made to states other than your state(s) of residence: State Date Amount 6. I hereby authorize The Andersons to file on my behalf the state composite returns according to my instructions in item 4 above. I understand that I am not eligible to be included in a composite return for any state in which I was a resident or received any other income subject to tax in 1995. I hereby declare that the information on this form is true, correct and complete. Partner Signature _________________________ Date ____________________ Please return this form to John Kraus no later than Tuesday, November 7, 1995. 1995 STATE COMPOSITE INCOME TAX RETURN ELECTION FORM - TRUSTS, ESTATES AND OTHER ENTITIES 1. PARTNER NAME AND ADDRESS [Partner name and address] Federal Tax ID# [#] 2. I understand that this partner is treated for federal income purposes as (check one): [ ] a taxable trust [ ] an exempt trust [ ] a taxable estate [ ] an other exempt entity [ ] a taxable corporation [ ] a partnership [ ] other (explain)______________________________________________ (If this partner is a partnership or a taxable corporation or is not an income taxpayer under federal law, please stop here, sign and date below and return.) Note: exempt entities may be subject to federal and/or state tax on unrelated business income. 3. Last year, I indicated that this partner both qualified and elected to be included on the composite income tax returns in the following states (California, Indiana and New Jersey prohibit the participation of taxable trusts in the composite return): [ ] Georgia [ ] Maryland [ ] North Carolina [ ] Illinois [ ] Michigan Please strike the names of any of the above states in which the partner does not qualify or does not elect to be included in a 1995 composite return. If there is a state composite return in which the partner did not qualify or did not elect to be included in 1994, but in which the partner both qualifies and elects to be included in 1995, please indicate so by placing an X next to the states name. 4. I hereby authorize The Andersons to include this partner in the 1995 state composite returns according to my instructions in item 3 above. I understand that this partner is not eligible to be included in a composite return for any state in which it was a resident or received any income subject to tax in 1995. I also understand that this partner is not eligible to be included in a composite return if it is a corporation or a partnership. I hereby declare that the information on this form is true, correct and complete. Partner Signature: ___________________________________________________ By: ___________________________________________________ Date: _______________________ Please return this form to John Kraus no later than Tuesday, November 7, 1995. -----END PRIVACY-ENHANCED MESSAGE-----