-----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, FrV3rW2Jbeeij0bSbcc/UVOgh4U0TqVcHHZezLrwd2WzIAxHxItCavbZK0IrMZTl zyB7UQ7SrG7zRDvyaEyewQ== 0000821026-97-000013.txt : 19980708 0000821026-97-000013.hdr.sgml : 19980708 ACCESSION NUMBER: 0000821026-97-000013 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19971201 EFFECTIVENESS DATE: 19971201 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ANDERSONS INC CENTRAL INDEX KEY: 0000821026 STANDARD INDUSTRIAL CLASSIFICATION: 5150 IRS NUMBER: 341562374 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-08984 FILM NUMBER: 97730916 BUSINESS ADDRESS: STREET 1: 1200 DUSSEL DRIVE CITY: MAUMEE STATE: OH ZIP: 43537 BUSINESS PHONE: 4198935050 FORMER COMPANY: FORMER CONFORMED NAME: ANDERSONS MANAGEMENT CORP DATE OF NAME CHANGE: 19931119 S-8 POS 1 As filed with the Securities and Exchange Commission on December 1, 1997 Registration No. 333-01249 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _________________________ POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 _________________________ THE ANDERSONS, INC. (Exact name of registrant as specified in its charter) _________________________ Ohio 34-1562374 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 480 West Dussel Drive, Maumee, Ohio 43537 (Address of Principal Executive Offices) (Zip Code) _________________________ THE ANDERSONS, INC. LONG-TERM PERFORMANCE COMPENSATION PLAN (Full title of the plans) Beverly J. McBride The Andersons, Inc. 480 West Dussel Drive Maumee, Ohio 43537 (Name and address of agent for service) (419) 893-5050 (Telephone number, including area code, of agent for service) __________________________ CALCULATION OF REGISTRATION FEE Title of Proposed maximum Proposed maximum Amount of securities to Amount to be price per aggregate registration be registered registered share (1) offering price (1) fee Common Shares, no par value 400,000 shares $9.25 $3,700,000 $1,121.21 (1) Computed on the basis of the price at which stock of the same class was sold on November 26, 1997, pursuant to Rule 457(h) of the Securities Act of 1933, as amended, solely for the purpose of calculating the amount of the registration fee. AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). In accordance therewith, the Company is required to file reports and other information with the Securities and Exchange Commission (the "SEC"). Reports, proxy statements and other information filed by the Company as well as the Registration Statement, including the exhibits thereto, can be inspected and copied at the public reference facilities maintained by the SEC at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the regional offices of the SEC at 75 Park Place, New York, New York 10007 and Northwestern Atrium Center, 500 W. Madison Street, Suite 1400, Chicago, Illinois 60661. The SEC also maintains a Web site that contains reports, proxy and information statements and other information regarding registrants, like the company, that file electronically with the SEC (site address http://www.sec.gov). PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1(b). Securities to be Offered. The Company hereby registers 400,000 shares of the Company's Common Shares, no par value, in connection with an amendment to The Andersons, Inc. Amended and Restated Long-Term Performance Compensation Plan (the "Plan"). This amendment was approved by the Company's shareholders at the Company's Annual Meeting of Shareholders on May 22, 1997. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference. The Company previously registered under the Securities Act of 1933, as amended (the "Securities Act"), 500,000 Common Shares, no par value offered pursuant to the Plan and registered on Form S-8 filed with the SEC on February 28, 1996 (Registration No. 33-01249). This previous Registration Statement is incorporated by reference into this Registration Statement. The Company's Annual Report on Form 10-K for the year ended December 31, 1996 filed by the Company with the SEC is incorporated in this Registration Statement by reference. All other reports filed by the company pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of such fiscal year are also incorporated by reference. In addition, all documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and 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 incorporated or 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. Interests of Named Experts and Counsel. Beverly J. McBride, who is Vice president, General Counsel and Secretary of the Company and owns 39,099 Common Shares, passed upon the legality of the common shares. Item 6. 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 attorneys' 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 maintains policies insuring its and its subsidiaries' officers and directors against certain liabilities for actions taken in such capacities, including certain 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 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Exhibit Number Description of Document 4.1 Articles of Incorporation of the Corporation (incorporated by reference from Exhibit 3.3 of the S-4 Registration Statement). 4.4 The Andersons, Inc. Amended and Restated Long-Term Performance Compensation Plan, effective as of May 22, 1997 (incorporated by reference from Appendix A to the Proxy Statement for the Annual Meeting of Shareholders held on May 22, 1997) 5.1 Opinion of Beverly J. McBride with respect to the legality of certain shares of the Common Stock being registered. 23.1 Consent of Independent Auditors. 23.2 Consent of Beverly J. McBride (included in opinion filed as Exhibit 5.1). 24.1 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 to include any material information with respect to the plan of distribution in the Share Purchase Plan not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; (2) that, for the purpose 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; and (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, each filing of the Registrant's 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 herein, 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 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 Securities 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 Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act, 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 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Maumee, State of Ohio, on December 1, 1997. THE ANDERSONS, INC. By: \s\Richard P. Anderson Its: Chairman of the Board and CEO Pursuant to the requirements of the Securities Act, this Registration Statement and Power of Attorney has been signed by the following persons in the capacities and as of the date indicated. * * * * * Signature Title Date \s\Richard P. Anderson 12/1/97 Richard P. Anderson Chairman of the Board and Chief Executive Officer, Director \s\Michael J. Anderson* 12/1/97 Michael J. Anderson Chief Operating Officer, Director \s\Thomas H. Anderson* 12/1/97 Thomas H. Anderson Chairman Emeritus, Director \s\Gary L. Smith* 12/1/97 Gary L. Smith Vice President, Finance and Treasurer \s\Richard R. George* 12/1/97 Richard R. George Vice President, Controller and Principal Accounting Officer \s\Donald E. Anderson* 12/1/97 Donald E. Anderson Director \s\Richard M. Anderson* 12/1/97 Richard M. Anderson Director \s\John F. Barrett* 12/1/97 John F. Barrett Director \s\Paul M. Kraus* 12/1/97 Paul M. Kraus Director \s\Donald M. Mennel* 12/1/97 Donald M. Mennel Director \s\David L. Nichols* 12/1/97 David L. Nichols Director \s\Dr. Sidney A. Ribeau* 12/1/97 Dr. Sidney A. Ribeau Director \s\Charles A. Sullivan* 12/1/97 Charles A. Sullivan Director *By:\s\Richard P. Anderson Attorney-in-fact EX-23 2 Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in Amendment No.1 to the Registration Staatement (Form S-8, No. 333-01249) pertaining to The Andersons, Inc. Long-Term Performance Compensation Plan of our report dated January 31, 1997, with respect to the consolidated fianncial statements and schedule of The Andersosn, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 1996, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP ERNST & YOUNG LLP Toledo, Ohio December 1, 1997 EX-5 3 Exhibit 5.1 [The Andersons Letterhead] November 28, 1997 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Re: The Andersons, Inc. Registration Statement on Form S-8 Ladies and Gentlemen: I am Vice President, General Counsel & Secretary to The Andersons, Inc., an Ohio corporation (the "Corporation"), and have advised the Corporation in connection with the proposed registration by the Corporation of 400,000 of its common shares, no par value (the "Shares"), pursuant to a Registration Statement on Form S-8, filed with the Securities and Exchange Commission (the "Commission") on December 1, 1997 under the Securities Act of 1933, as amended (the "Act") (such Registration Statement, as amended or supplemented, is hereinafter referred to as the "Registration Statement"). The Shares are to be issued and sold by the Corporation to certain employees of the Corporation pursuant to The Andersons, Inc. Amended and Restated Long Term Performance Compensation Plan (the "Plan"). For purposes of the opinions contained in this letter, I have examined and relied upon such corporate proceedings, documents, records and matters of law as I have deemed necessary or appropriate for the expression of the opinions contained herein. In addition, for purposes hereof, I have assumed with your permission and without independent investigation that all factual information supplied to me for the purpose hereof is complete and accurate and that no changes will be made in the definitive form of the documents I have reviewed in draft form which would impact my opinions. Based upon and subject to the foregoing, I hereby advise you that in my opinion: 1. The Corporation is a corporation validly existing and in good standing under the General Corporation Law of the State of Ohio. 2. The Shares are duly authorized, and, when (i) the Registration Statement becomes effective under the Act and (ii) the Shares have been duly executed and delivered on behalf of the Corporation and issued in accordance with the terms of the Plan upon receipt of the consideration to be paid therefor, the Shares will be validly issued, fully paid and nonassessable. I am qualified to practice law in the State of Ohio and do not herein express any opinion as to any laws other than the laws of the State of Ohio, as such laws are constituted on the date of this opinion. I do not find it necessary for the purposes of this opinion, and accordingly I do not purport to cover herein, the application of the securities or "Blue Sky" laws of the various states to the issuance and sale of the Shares. I hereby consent to the filing off this letter as an exhibit to the Registration Statement. In giving this consent, I do not admit that I come within the category of persons whose consent is required under Section 7 of the '33 Act or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /s/Beverly J. McBride Beverly J. McBride Vice President, General Counsel and Secretary -----END PRIVACY-ENHANCED MESSAGE-----