As filed with the Securities and Exchange Commission on February 26, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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)
Copy to:
Willard G. Fraumann, P.C.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
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, 500,000
no par value shares $12.50 $6,250,000.00 $2,155.17
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the aggregate offering price and the amount of the registration fee, based upon
the conversion ratio per common share issued in the January 2, 1996 merger of
the Registrant's predecessor entities.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Omitted from this Registration Statement in accordance with Rule 428
under the Securities Act of 1933 (the "Securities Act") and the Note to Part I
of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Omitted from this Registration Statement in accordance with Rule 428
under the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by The Andersons, Inc. (the
"Corporation") with the Securities and Exchange Commission (the "Commission")
are incorporated herein by reference except to the extent any statement or
information therein is modified , superseded or replaced by a statement or
information contained in this document or in any other subsequently filed
document incorporated herein by reference:
(a) The Corporation's Registration Statement on Form S-4, dated
October 26, 1995, filed with the Commission on October 26, 1995 (the "S-4
Registration Statement") relating to the merger (the "Merger") of The
Andersons, an Ohio limited partnership (the "Partnership"), with and into the
Corporation, pursuant to which all securities of the Partnership and the
Corporation were converted into the Corporation's common shares, no par value
(the "Common Shares").
(b) The description of the Corporation's Common Shares contained in
Item 1 of the Corporation's Registration Statement on Form 8-A filed with the
Commission pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on October 19, 1995.
(c) All reports and other documents subsequently filed by the
Registrant 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, general counsel and corporate secretary of the
Corporation, passed upon certain legal matters in connection with the Merger.
Ms. McBride owns 38,001 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 provi de 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).
4.3 The Andersons, Inc. Long-Term Performance Compensation Plan,
effective as of January 2, 1996.
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 in Part II of Registration
Statement).
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 Securitie s 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 connectio n 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 a
gainst 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 February 26, 1996.
THE ANDERSONS, INC.
By: \s\Richard P. Anderson
Its: President and CEO
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Richard P. Anderson and Thomas H. Anderson and
each of them signing 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 to
this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connecti on therewith, with the Commission, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite or necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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
Richard P. Anderson President and Chief Executive 2/26/96
Officer, Director
\s\Thomas H. Anderson
Thomas H. Anderson Chairman of the Board, Director 2/26/96
\s\Gary L. Smith
Gary L. Smith Treasurer 2/26/96
\s\Richard R. George
Richard R. George Corporate Controller and Principal 2/26/96
Accounting Officer
\s\Daniel T. Anderson
Daniel T. Anderson Director 2/26/96
\s\Donald E. Anderson
Donald E. Anderson Director 2/26/96
\s\Michael J. Anderson
Michael J. Anderson Director 2/26/96
\s\Richard M. Anderson
Richard M. Anderson Director 2/26/96
\s\John F. Barrett
John F. Barrett Director 2/26/96
\s\Dale W. Fallat
Dale W. Fallat Director 2/26/96
\s\Paul M. Kraus
Paul M. Kraus Director 2/26/96
Rene C. McPherson Director 2/26/96
\s\Donald M. Mennel
Donald M. Mennel Director 2/26/96
\s\David L. Nichols
David L. Nichols Director 2/26/96
\s\Janet M. Schoen
Janet M. Schoen Director 2/26/96