<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 28, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
AMERICAN MAIZE-PRODUCTS COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
MAINE 13-0432720
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER IDENTIFICATION NO.)
OF INCORPORATION OR ORGANIZATION)
ROBERT M. STEPHAN, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
250 HARBOR DRIVE AMERICAN MAIZE-PRODUCTS COMPANY
STAMFORD, CONNECTICUT 06902 250 HARBOR DRIVE
(ADDRESS INCLUDING ZIP CODE, STAMFORD, CONNECTICUT 06902
AND TELEPHONE INCLUDING AREA CODE, (203) 356-9000
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) (NAME, ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR
SERVICE)
</TABLE>
---------------------
<TABLE>
<S> <C>
COPIES TO:
MORTON A. PIERCE, ESQ. PETER WEBSTER, ESQ.
DEWEY BALLANTINE VERRILL & DANA
1301 AVENUE OF THE AMERICAS ONE PORTLAND SQUARE
NEW YORK, NEW YORK 10019 PORTLAND, MAINE 04112
(212) 259-8000 (207) 774-4000
</TABLE>
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
---------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class B Common Stock,
par value $.80 per share... 757,943 $40.00(1) $30,317,720 $10,454.39
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Rights....................... 757,943 N/A N/A N/A(2)
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</TABLE>
(1) The proposed maximum offering price per share is estimated solely for the
purposes of calculating the registration fee in accordance with Rule 457 and
based upon a Subscription Price of $40.00.
(2) Pursuant to Rule 457(g), no registration fee is payable with respect to the
Rights since the Rights are being registered in the same registration
statement as the securities to be offered pursuant thereto.
---------------------
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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED FEBRUARY 28, 1995
PROSPECTUS
757,943 SHARES
AMERICAN MAIZE-PRODUCTS COMPANY
CLASS B COMMON STOCK
------------------------
American Maize-Products Company (the "Company") is distributing to the
holders of record of its shares of Class B common stock, $.80 par value (the
"Class B Common Stock"), at the close of business on March 3, 1995 (the "Record
Date"), nontransferable rights (the "Rights") to subscribe for and purchase up
to 757,943 shares of Class B Common Stock for a cash price of $40.00 per share
(the "Subscription Price"). Holders of Rights ("Rights Holders") will be able to
exercise their Rights until the close of business on , 1995, unless
extended by the Company (the "Termination Time"). The Offering of up to 757,943
shares of Class B Common Stock to the Rights Holders pursuant to the exercise of
the Rights is referred to herein as the "Offering."
Each holder of Class B Common Stock will receive .435 Rights for each share
of Class B Common Stock held of record on the Record Date. In lieu of fractional
Rights, the aggregate number of Rights issuable by the Company to a holder of
Class B Common Stock will be rounded up to the next whole Right. Each Right
entitles the Rights Holder to subscribe for one share of Class B Common Stock
(the "Subscription Privilege"). Once a Rights Holder has exercised the
Subscription Privilege, such exercise may not be revoked. The Rights will be
evidenced by nontransferable certificates. See "The Rights Offering."
Pursuant to the Agreement and Plan of Merger (the "Merger Agreement"), dated
as of February 22, 1995, among the Company, Eridania-Beghin-Say, S.A., a
corporation organized under the laws of France ("EBS"), and Cerestar USA, Inc.,
a Delaware corporation and a wholly owned subsidiary of EBS ("Sub"), on February
28, 1995, Sub commenced an offer (the "Tender Offer") to purchase all
outstanding shares of the Company's Class A Common Stock, $.80 par value (the
"Class A Common Stock"), and the Class B Common Stock at a purchase price per
share equal to the Subscription Price. Following the successful completion of
the Tender Offer and subject to the terms and conditions of the Merger
Agreement, Sub will be merged with and into the Company, the Company will
survive the merger as a wholly owned subsidiary of EBS, and all shares of Class
A Common Stock and Class B Common Stock outstanding at the effective time of the
merger (other than shares owned by EBS, Sub or any of their affiliates and other
than dissenters' shares) will be converted into the right to receive
consideration per share equal to the Subscription Price. Pursuant to the Stock
Purchase Agreement (the "Stock Purchase Agreement"), dated as of February 22,
1995, among the Company, EBS and Sub, Sub will purchase (the "Stock Purchase"),
at the Subscription Price, any and all shares of Class B Common Stock not
subscribed for and purchased by Rights Holders in the Offering. The Stock
Purchase is conditioned, among other things, upon the successful completion of
the Tender Offer. The Tender Offer is conditioned, among other things, upon (i)
the tender of an amount of Class A Common Stock which, together with any Class A
Common Stock then beneficially owned by EBS or its affiliates, constitutes a
majority of the outstanding Class A Common Stock on a fully-diluted basis and
(ii) the tender of an amount of Class B Common Stock which, together with the
Class B Common Stock which EBS and its affiliates have purchased or are
obligated to purchase under the Stock Purchase Agreement (all conditions to the
obligations of the parties under the Stock Purchase Agreement (other than the
completion of the Tender Offer) having been satisfied) and together with any
Class B Common Stock then beneficially owned by EBS or its affiliates,
constitutes a majority of the outstanding Class B Common Stock on a
fully-diluted basis. See "The Acquisition."
The Class B Common Stock is traded on the American Stock Exchange (the
"AMEX") under the symbol "AZEB." On February 27, 1995, the last reported sale
price of the Class B Common Stock on the AMEX was $39.25. See "Price Range of
Class B Common Stock and Dividend Policy." The Class A Common Stock, which is
traded on the AMEX under the symbol "AZEA," is not being offered pursuant to
this Prospectus. The Class A Common Stock and Class B Common Stock are sometimes
collectively referred to herein as the "Common Stock."
After the Termination Time, the Rights will no longer be exercisable and
will have no value.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
HOLDERS OF CLASS B COMMON STOCK WHO DO NOT EXERCISE THEIR RIGHTS IN FULL
WILL EXPERIENCE DILUTION IN THEIR RELATIVE PERCENTAGE OWNERSHIP IN THE COMPANY
UPON ISSUANCE OF THE CLASS B COMMON STOCK TO HOLDERS EXERCISING THEIR RIGHTS AND
UPON CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THE STOCK PURCHASE
AGREEMENT.
BEFORE MAKING AN INVESTMENT DECISION, POTENTIAL INVESTORS SHOULD CAREFULLY
CONSIDER THE FACTORS SET FORTH IN "INVESTMENT CONSIDERATIONS" IN ADDITION TO THE
OTHER INFORMATION CONTAINED IN THIS PROSPECTUS.
<TABLE>
<CAPTION>
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UNDERWRITING DISCOUNTS PROCEEDS TO THE
PRICE TO PUBLIC AND COMMISSIONS COMPANY(1)
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<S> <C> <C> <C>
Per Share...................................... $ 40.00 N/A $ 40.00
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Total.......................................... $ 30,317,720.00 N/A $ 30,317,720.00
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</TABLE>
(1) Before deduction of estimated expenses of $160,000 payable by the Company,
including registration fees, listing fees, AMEX review fees, legal and
accounting fees, subscription agent fees, printing expenses and other
miscellaneous fees and expenses.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the Commission's Regional Offices at 7 World Trade Center, 13th Floor,
New York, New York 10048 and the Citicorp Center, 500 West Madison Street, Room
1400, Chicago, Illinois 60661. Copies of such material also can be obtained from
the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The Class B Common Stock is listed
on the AMEX and such reports, proxy statements and other information concerning
the Company also can be inspected at the office of the AMEX, 86 Trinity Place,
New York, New York 10006.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with any amendments thereto, the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Rights and the shares of Class B Common Stock issuable upon the exercise of
the Rights. This Prospectus, which constitutes a part of the Registration
Statement, does not contain all of the information set forth in the Registration
Statement. Such additional information may be obtained by the Commission's
principal office in Washington, D.C. Statements contained in this Prospectus or
in any document incorporated in this Prospectus by reference as to the contents
of any contract, agreement or other document referred to herein or therein are
not necessarily complete. With respect to each such contract, agreement or other
document filed with the Commission as an exhibit, reference is made to the
exhibit for a more complete description of the matter involved, and each such
statement shall be deemed qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission, are hereby incorporated by reference in this Prospectus and made a
part hereof:
(i) Annual Report on Form 10-K for the fiscal year ended December 31,
1993;
(ii) Quarterly Reports on Form 10-Q for the quarters ended March 31, 1994,
June 30, 1994 and September 30, 1994;
(iii) Current Reports on Form 8-K dated November 30, 1994 and January 6,
1995; and
(iv) Registration Statement on Form 8-A, as amended by Amendment No. 1 to
Form 8-A, dated March 3, 1993, which includes a description of the
Company's Common Stock.
All documents and reports filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering
of the Securities shall be deemed to be incorporated herein by reference and to
be a part hereof from the date of filing of such documents or reports. 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 Prospectus 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, except as so modified or superseded, shall not be deemed
to constitute a part of this Prospectus.
This Prospectus incorporates documents by reference which are not presented
herein or delivered herewith. The Company will furnish without charge to each
person to whom this Prospectus is delivered, upon written or oral request, a
copy of any or all of the documents incorporated by reference herein, other than
exhibits to such documents unless such exhibits are specifically incorporated by
reference into the information that the Prospectus incorporates. Requests should
be directed to Robert M. Stephan, Esq., Vice President, General Counsel and
Secretary, American Maize-Products Company, 250 Harbor Drive, Stamford,
Connecticut 06902, telephone number (203) 356-9000.
2
<PAGE> 4
PROSPECTUS SUMMARY
The following information is qualified in its entirety by reference to, and
should be read in conjunction with, the detailed information and consolidated
financial statements and notes thereto set forth elsewhere in this Prospectus or
incorporated by reference herein.
THE COMPANY
American Maize-Products Company is a Maine corporation organized in 1906
(together with its subsidiaries hereinafter referred to as "American Maize" or
"the Company"). American Maize is engaged primarily in the manufacture and sale
of products derived from corn wet milling, such as corn sweeteners and starches
for use in the manufacturing processes for several industries. It also
manufactures and markets cigars and smokeless tobacco products.
The executive offices of the Company are located at 250 Harbor Drive,
Stamford, Connecticut 06902. The telephone number of the Company is (203)
356-9000.
THE ACQUISITION
The Company, EBS and Sub have entered into an Agreement and Plan of Merger,
dated as of February 22, 1995, pursuant to which Sub commenced the Tender Offer
on February 28, 1995 to purchase all outstanding shares of Common Stock at a
purchase price equal to the Subscription Price. Following the successful
completion of the Tender Offer, and subject to the terms and conditions of the
Merger Agreement, Sub will merge with and into the Company (the "Merger"), the
Company will survive the Merger as a wholly owned subsidiary of EBS and each
share of Common Stock outstanding at the effective time of the Merger (other
than shares owned by EBS, Sub or any of their affiliates and other than
dissenters' shares) will be converted into the right to receive consideration
per share equal to the Subscription Price. Concurrently with the execution of
the Merger Agreement, the Company, EBS and Sub entered into the Stock Purchase
Agreement, pursuant to which Sub will purchase any and all shares of Class B
Common Stock not subscribed for and purchased by Rights Holders in the Offering.
The Stock Purchase is conditioned upon, among other things, the successful
completion of the Tender Offer. The Tender Offer is conditioned upon, among
other things, (i) the valid tender (without subsequent withdrawal) of a number
of shares of Class A Common Stock which, together with any shares of Class A
Common Stock then beneficially owned by EBS or its affiliates, constitutes a
majority of the outstanding Class A Common Stock on a fully-diluted basis and
(ii) the valid tender (without subsequent withdrawal) of a number of shares of
Class B Common Stock which, together with the number of shares of Class B Common
Stock which EBS and its affiliates have purchased or are obligated to purchase
under the Stock Purchase Agreement (all conditions to the obligations of the
parties thereunder (other than the completion of the Tender Offer) having been
satisfied) and together with any shares of Class B Common Stock then
beneficially owned by EBS or its affiliates, constitutes a majority of the
outstanding Class B Common Stock on a fully-diluted basis (the "Minimum
Condition"). See "The Acquisition."
THE RIGHTS OFFERING
Rights..................... Each record holder of Class B Common Stock at the
close of business on the Record Date will receive
.435 Rights for each share of Class B Common Stock
held of record on the Record Date. The number of
Rights issued by the Company to a Rights Holder
will be rounded up to the nearest whole number. No
more than 757,943 shares of Class B Common Stock
will be issued upon exercise of the Rights. Each
Right will entitle each Rights Holder to purchase
from the Company one share of Class B Common Stock
(an "Underlying Share") at the Subscription Price
on the terms and conditions of the Offering. The
number of Rights to be issued for each share of
Class B Common Stock has been
3
<PAGE> 5
determined solely by dividing the number of shares
of Class B Common Stock offered hereby by the
number of shares of Class B Common Stock
outstanding on the Record Date.
Subscription Privilege..... Rights Holders are entitled to purchase, at the
Subscription Price, one Underlying Share for each
whole Right held. See "The Rights Offering
-- Subscription Privilege."
Subscription Price......... $40.00 per Underlying Share, payable in cash. See
"The Rights Offering -- Exercise of Rights" and
"Determination of Subscription Price."
Shares of Class B Common
Stock Outstanding after
Offering................. As of the Record Date, there were 1,742,057 shares
of Class B Common Stock outstanding. An additional
757,943 shares of Class B Common Stock will be
offered pursuant to the Offering.
Stock Purchase by Sub...... Sub has agreed, upon the terms and conditions
contained in the Stock Purchase Agreement, to
purchase, at the Subscription Price, any and all
shares of Class B Common Stock not subscribed for
and purchased by the Rights Holders pursuant to the
Offering ("Excess Shares").
Nontransferability of
Rights..................... The Rights, including the Subscription Privilege,
are nontransferable.
Record Date................ March 3, 1995.
Termination Time........... 5:00 p.m., New York time, on , 1995,
or such later time to which the Offering may have
been extended in the discretion of the Company. The
length of any such extensions will be set at the
time of any such extension. See "The Rights
Offering -- Termination Time." Rights not exercised
prior to the Termination Time will expire and
become worthless.
Procedure for Exercising
Rights................... The Subscription Privilege may be exercised by
properly completing the Subscription Right
Certificate and forwarding it (or following the
Guaranteed Delivery Procedures), with payment of
the Subscription Price for each Underlying Share
subscribed for pursuant to the Subscription
Privilege, to the Subscription Agent, who must
receive such Subscription Right Certificate or
Notice of Guaranteed Delivery and payment at or
prior to the Termination Time. If Subscription
Right Certificates and payments are sent by mail,
Rights Holders are urged to use registered mail
properly insured, with return receipt requested.
See "The Rights Offering -- Exercise of Rights."
ONCE A RIGHTS HOLDER HAS EXERCISED THE SUBSCRIPTION
PRIVILEGE, SUCH EXERCISE MAY NOT BE REVOKED.
Persons Holding Class B
Common Stock, or Wishing
to Exercise Rights,
Through Others........... Persons holding shares of Class B Common Stock
beneficially, and receiving the rights issuable
with respect thereto, through a securities dealer,
commercial bank, broker, trust company or other
nominee, as well as persons holding certificates
for Class B Common Stock directly who would prefer
to have such institutions effect transactions
relating to the Rights on their behalf, should
contact the appropriate institution or
4
<PAGE> 6
nominee and request it to effect such transaction
for them. See "The Rights Offering -- Exercise of
Rights."
Issuance of Class B Common
Stock.................... Certificates representing shares of Class B Common
Stock purchased pursuant to the Subscription
Privilege will be delivered as soon as practicable
after completion of the Offering. See "The Rights
Offering -- Subscription Privilege."
Use of Proceeds............ For general corporate purposes.
Subscription Agent......... The Bank of New York
AMEX Symbol for Class B
Common Stock............. "AZEB"
Investment
Considerations............. A purchase of the Company's Class B Common Stock
involves a significant degree of investment risk.
Purchasers should carefully consider the
information set forth under the heading "Investment
Considerations."
5
<PAGE> 7
SUMMARY CONSOLIDATED FINANCIAL INFORMATION
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
------------------- -----------------------------------------
1994 1993 1993 1992 1991 1990
-------- -------- -------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
OPERATING DATA:
Net sales.......................... $462,189 $402,678 $538,534 $542,172 $533,565 $501,498
Operating profit................... 36,760 7,172 15,549 44,329 56,983 60,126
Income (loss) from continuing
operations before income taxes,
minority interest, extraordinary
losses and cumulative effect of
accounting changes............... 26,973 (4,172) 1,036 32,892 39,595 48,739
Income taxes....................... (10,712) 684 (1,151) (12,901) (15,294) (18,922)
Income (loss) from continuing
operations before minority
interest, extraordinary losses
and cumulative effect of
accounting changes............... 16,261 (3,488) (115) 19,991 24,301 29,817
Minority interest in loss
(earnings) of subsidiary......... -- 329 329 (9,996) (11,496) (13,657)
Income (loss) from continuing
operations....................... 16,261 (3,159) 214 9,995 12,805 16,160
Loss from discontinued operation... -- -- -- -- (1,518) (2,640)
Income (loss) before extraordinary
losses and cumulative effect of
accounting changes............... 16,261 (3,159) 214 9,995 11,287 13,520
Extraordinary losses from early
extinguishment of debt........... -- (2,862) (4,182) -- -- --
Income (loss) before cumulative
effect of accounting changes..... 16,261 (6,021) (3,968) 9,995 11,287 13,520
Cumulative effect of accounting
changes.......................... -- (27,200) (27,200) 3,016 -- --
Net income (loss).................. 16,261 (33,221) (31,168) 13,011 11,287 13,520
PER SHARE DATA:
Primary earnings (loss) per share
of common stock:
Continuing operations.............. $ 1.59 $ (.33) $ .02 $ 1.55 $ 2.00 $ 2.44
Discontinued operation............. -- -- -- -- (.24) (.40)
Extraordinary losses from early
extinguishment of debt........... -- (.30) (.43) -- -- --
Cumulative effect of accounting
changes.......................... -- (2.88) (2.82) .47 -- --
Net income (loss).................. 1.59 (3.51) (3.23) 2.02 1.76 2.04
Dividends per share of common
stock............................ .48 .48 .64 .64 .64 .64
BALANCE SHEET DATA:
Total assets....................... $503,810 $502,803 $492,058 $484,003 $459,639 $433,222
Working capital.................... 104,231 126,349 102,246 156,306 140,603 63,743
Long-term debt, less current
installments..................... 133,991 157,640 139,294 136,227 127,542 70,530
Stockholders' equity............... 227,587 215,054 215,666 168,240 158,665 151,066
</TABLE>
6
<PAGE> 8
INVESTMENT CONSIDERATIONS
MARKET CONSIDERATIONS
On January 5, 1995, the last trading day preceding public announcement of
the initial proposal by EBS to acquire the Company, the last reported sale price
per share of Class B Common Stock on the AMEX was $26 1/4. On January 19, 1995,
the last trading day preceding public announcement of a revised proposal by EBS
to acquire the Company, the last reported sale price per share of Class B Common
Stock on the AMEX was $29. On February 21, 1995, the last trading day preceding
public announcement of the execution of the Merger Agreement and the Stock
Purchase Agreement, the last reported sale price per share of Class B Common
Stock on the AMEX was $31 3/8. On February 27, 1995, the last reported sale
price per share of Class B Common Stock on the AMEX was $39 1/4. There can be no
assurance that the transactions contemplated by the Merger Agreement and the
Stock Purchase Agreement will be consummated. If such transactions are not
consummated, there can be no assurance that the market price of the Class B
Common Stock will not decline to levels at or below historical levels.
In addition, whether or not the Tender Offer, Stock Purchase and Merger are
consummated, there can be no assurance that the market price of the Class B
Common Stock will not decline during the period the Rights are outstanding or
that, following the issuance of the Rights and the sale of the Underlying Shares
upon exercise of Rights, a subscribing Rights Holder will be able to sell shares
purchased in the Rights Offering at a price equal to or greater than the
Subscription Price.
Once a holder of Rights has exercised the Subscription Privilege, such
exercise may not be revoked. Moreover, until certificates are delivered,
subscribing Rights Holders may not be able to sell, or tender into the Tender
Offer, the shares of Class B Common Stock that they have purchased in the Rights
Offering. Certificates representing shares of Class B Common Stock purchased
pursuant to the Subscription Privilege and the Stock Purchase Agreement will be
delivered as soon as practicable after the corresponding Rights have been
validly exercised. No interest will be paid to Rights Holders on funds delivered
to the Subscription Agent pursuant to the exercise of Rights pending delivery of
Underlying Shares.
ACQUISITION BY EBS
Following the successful completion of the Tender Offer and the Stock
Purchase, EBS will beneficially own a majority of each class of the Company's
Common Stock. Thereafter, pursuant to the Merger Agreement, EBS will be entitled
to designate a number of directors of the Company corresponding to the voting
power of the shares of Common Stock which it beneficially owns, and will,
therefore, effectively control the Company. In addition, the Merger Agreement
contemplates that the Merger will take place following the Tender Offer as soon
as all conditions thereto are met. Upon consummation of the Merger, all shares
of Common Stock will be cancelled and converted into the right to receive
consideration per share equal to the Subscription Price (subject to applicable
appraisal rights). See "The Acquisition."
REGULATION
General production, packaging, labeling and distribution of many of
American Maize's products are subject to various laws and regulations, including
regulation by the Federal Food and Drug Administration, the United States
Department of Agriculture, the Federal Trade Commission, the Alcohol and Tobacco
Tax Unit of the Treasury Department and various comparable state agencies.
Certain of these federal and state agencies have the power, among other things,
to order the recall of products that do not meet applicable standards.
In recent years, an increasing amount of legislation affecting the use and
sale of tobacco products has been implemented or proposed. Federal legislation
requires, among other things, that smokeless tobacco products and advertisements
for such products bear one of a series of specified health warnings on a
rotating basis and prohibits radio or television advertising of such products.
In addition, federal, state and local regulations have been implemented or
proposed which would prohibit smoking in certain areas or in certain buildings,
require stronger health warnings on tobacco products, impose bans on advertising
and promotion,
7
<PAGE> 9
significantly increase tobacco excise taxes, prohibit or impose restrictions on
sampling of tobacco products, impose mandatory negative advertising campaigns
and eliminate the tax deductions for tobacco advertising and promotional
expenses. The Company is unable to assess the future effects these actions may
have on the marketing and sale of its tobacco products.
DECLINE IN DOMESTIC TOBACCO INDUSTRY
Unit sales in the domestic cigar industry have been in a general decline
for many years. Preliminary estimates for 1994, however, indicate an increase in
domestic consumption for large cigars. Swisher has maintained its market share
in this category for the past five years. While domestic consumption of little
cigars has grown modestly over the past five years, the Company's share of this
market has grown each year. Unit sales of dry snuff and chewing tobacco have, in
general, been declining for the past five years while unit sales of moist snuff
have steadily increased. The Company cannot predict whether these trends in
consumption will continue.
HEALTH LIABILITY AND LITIGATION
Although the Company is not presently a party to any pending health-related
litigation relating to its tobacco products, there has recently been an
increasing amount of such litigation in the tobacco industry. The Company's
tobacco business carries general and product liability insurance excluding
health hazard liability, which the Company believes is consistent with industry
practice. There can be no assurance that the Company will not experience
material health-related litigation, or that any such litigation will not have a
material adverse effect on the Company.
ENVIRONMENTAL AND LITIGATION MATTERS
The application of federal and state regulations to protect the
environment, particularly with respect to air emissions and wastewater
discharges, may limit or prevent the operation of American Maize's businesses or
may substantially increase the cost of operation and/or financing of its
operations. The Company is currently defending a lawsuit filed on behalf of the
U.S. Environmental Protection Agency against several industrial companies
(including the Company) and municipalities involving the discharge of wastewater
by the defendants into the sewage treatment facilities of the City of Hammond,
Indiana and into the Grand Calumet River. The government is seeking monetary
penalties, injunctive relief to require compliance with permits, and
implementation of a remedial plan. The Company has taken measures to ensure
continued compliance with its discharge permits at the Hammond, Indiana
facility. The Company does not believe that its discharges have contributed to
sedimentation conditions in the Grand Calumet River. The Company intends to
vigorously contest the government's allegations. However, there can be no
assurance that the final outcome of this matter will not have a material adverse
effect on the Company.
In 1981, Grain Processing Corporation ("GPC") filed suit against the
Company alleging infringement of a GPC patent relating to certain waxy starch
maltodextrins. In 1987 and 1988, the District Court and Court of Appeals found
infringement with respect to two of the Company's products. The case has been
returned to the District Court to determine the amount of damages to be paid.
GPC claims it should receive damages based on lost profits on products it would
have sold except for the infringement. The Company contends that any damages
awarded should be based upon a reasonable royalty since GPC never sold the
patented product. The law on that issue is in conflict at present. A hearing
date of July 10, 1995 has been set to determine damages. The Company has
established a reserve in its financial statements of $4 million for this
litigation based upon its contention that damages should be based on a
reasonable royalty. However, the Company's ultimate liability for this action in
excess of such amount, if any, cannot presently be determined, and no assurance
can be given that the final impact of this litigation will not have a material
adverse effect on the Company.
On February 22, 1995, William Ziegler, III, Chairman of the Board of the
Company, on behalf of himself and, purportedly, GIH Corp., filed suit in
Superior Court, Cumberland County, Maine seeking declaratory and injunctive
relief against the Merger Agreement, the Stock Purchase Agreement and the
transactions contemplated thereby. The complaint, entitled GIH Corp. and William
Ziegler, III v. American Maize-
8
<PAGE> 10
Products Co. et. al., alleges that the approval by the remaining members of the
Company's Board of Directors of the Merger Agreement and Stock Purchase
Agreement and their authorization of "break-up" fee provisions in the Merger
Agreement constituted a breach of their fiduciary duties. The complaint asserts
that the proposed issuance of additional shares of Class B Common Stock by the
Company pursuant to the Stock Purchase Agreement is ultra vires and requests the
court to declare such issuance unlawful and void. The complaint also alleges
that the defendant directors' approval of certain termination agreements with
senior officers of the Company violated the directors' fiduciary duties. The
Company believes all of the claims contained in the complaint are without merit
and intends to defend against them vigorously.
In January 1995, alleged shareholders of the Company filed complaints in
Connecticut Superior Court in three purported class actions against the Company
and its Board of Directors, entitled Kenneth Steiner and William Steiner v.
American Maize-Products Co., et al., Alan Katz v. American Maize-Products Co.,
et al. and Mitchell Saltzman and Miriam Sarnoff v. American Maize-Products Co.,
et al. The actions allege that the Company's Board of Directors breached its
fiduciary duties to shareholders by not adequately considering EBS's initial
offer on December 19, 1994 to acquire the Company at a purchase price of $32 per
share, by rejecting such offer, by failure to make adequate disclosure of the
offer and by placing personal interests, including an alleged attempt by Mr.
Ziegler to retain control of the Company, ahead of the interests of the public
shareholders. The complaints seek equitable relief and unspecified damages. The
Company believes that the allegations in the complaint are without merit and
intends to defend the actions vigorously.
COMPETITION
The corn wet milling business is highly competitive. Almost all of the
Company's products compete with virtually identical or similar products and
derivatives manufactured by other companies in the industry. In addition to
American Maize, there are ten companies in the corn wet milling industry in the
United States, most of which are larger and have greater resources than American
Maize.
In addition, many of American Maize's products face competition from
products made from raw materials other than corn. Corn syrup and high fructose
corn syrup compete with other nutritive sweeteners, principally cane and beet
sugar. By-products compete with products of the corn dry milling industry and
with soybean products. Fluctuation in the prices of these competing products may
affect prices of, and profits derived from, the products of American Maize.
The cost of producing corn products is largely dependent upon the market
price of corn. While the supply of domestic corn has been, and continues to be,
adequate for American Maize's needs, the price of this agricultural commodity
fluctuates widely as a result of a number of factors, including levels of
agricultural production, market demand, livestock feeding demand, government
agricultural programs and exports. Due to the competitive nature of the business
and fluctuating prices of competing products such as sugar, end-product prices
may not necessarily relate to raw material costs; therefore, an increase in corn
prices may adversely affect American Maize's earnings. In addition, the price of
corn sweeteners (especially high fructose corn syrups) is indirectly impacted by
government programs supporting sugar prices. If sugar price supports are not
continued, American Maize's earnings may also be adversely affected. See "The
Company -- Corn Business."
All of the tobacco markets in which Swisher competes are highly
competitive. The supply of all the raw materials used in manufacturing cigars
and smokeless tobacco products has been, and is expected to continue to be,
adequate. However, due to consumer resistance, increases in raw material costs
cannot always be passed along on a timely basis in the form of price increases
for finished products. See "The Company -- Tobacco Business."
DILUTION
Holders who do not exercise their Rights will experience a decrease in
their proportionate interest in the equity ownership and voting power of the
Company and will relinquish any value inherent in the Rights.
The Subscription Price per share of Class B Common Stock exceeds the net
tangible book value per share of Class B Common Stock. Accordingly, the
purchasers of the Class B Common Stock in the Rights Offering will experience
immediate and substantial dilution.
9
<PAGE> 11
THE COMPANY
American Maize is a Maine corporation organized in 1906. The Company is
engaged primarily in the manufacture and sale of products derived from corn wet
milling, such as corn sweeteners and starches for use in the manufacturing
processes of several industries. The Company also manufacturers and markets
cigars and smokeless tobacco products.
CORN BUSINESS
American Maize manufactures a number of corn-derived products by the wet
milling process through its Sweetener and Ingredients divisions. The wet milling
process involves grinding wet corn and then separating it into starch and other
components; thereafter, the starch component is either dried for sale as common
starch or processed further into other principal products.
The Sweetener Division produces glucose corn syrup and high fructose corn
syrup. Corn syrup is used in many foods and beverages for both sweetness and to
provide a wide range of functionalities such as color, texture and
freezeability. High fructose corn syrup is primarily used by the soft drink
industry as a sweetener.
The Ingredients Division makes unmodified and modified starches, corn syrup
solids, maltodextrins, dextrins and cyclodextrins. This Division extracts starch
from common, waxy, high amylose, and various new hybrid strains of corn.
American Maize also produces modifications of these starches by chemical or
physical processes to make products designed to serve the particular needs of a
wide variety of food and industrial users. The Company continues to research new
hybrid corn strains to develop new specialty starches which reduce or eliminate
chemical usage in the modification process and for new product applications.
Specialty starch products derived from waxy corn have characteristics differing
from common corn starches, making them useful in many specialty applications.
The Company's waxy corn based specialty starches are used as stabilizers,
fillers, thickeners and extenders in such products as canned and frozen foods,
pie fillings, puddings, salad dressings, baby foods, soups and snack foods.
Corn syrup solids and maltodextrins are used in a variety of food
applications, including dry food mixes, beverage mixes, microwaveable and
convenience foods.
American Maize is a leading supplier of dextrins which are sold to the
paper, adhesives, textile and chemical industries for their sizing and adhesive
properties. Significant quantities of American Maize's waxy corn starches are
used as adhesives by the gummed tape industry.
American Maize is the largest producer of cyclodextrins in the world and
the only producer in North America. Cyclodextrins are doughnut-shaped molecular
structures, produced from starch, which have many food and non-food
applications, including fragrance carrying, cholesterol removing and drug
delivery in the pharmaceutical industry.
The principal by-products produced by American Maize are corn germ, corn
gluten feed and corn gluten meal. Corn germ is sold for further processing into
corn oil and its co-product, corn germ meal. Corn oil is used as a cooking oil
and as an ingredient in salad dressings and margarine. Corn gluten feed and corn
gluten meal are sold in commodities markets and directly to manufacturers of
various animal feeds.
Sales to The Coca-Cola Company accounted for approximately 14% of American
Maize's revenues in 1994. The Coca-Cola Company is publicly reported to control
approximately 40% of the domestic soft drink industry, the principal user of 55%
high fructose corn syrup.
TOBACCO BUSINESS
The Company manufactures and sells cigars and smokeless tobacco products
through Swisher International, Inc., its wholly owned subsidiary ("Swisher"). In
1994, the Company consolidated its tobacco operations. Helme Tobacco Company was
merged, effective June 30, 1994, into Swisher, Helme's parent company. Helme's
executive office in Stamford, Connecticut was closed, and the Helme and Swisher
management and sales forces were consolidated. The operations of Helme are now
carried out by Swisher. In addition, by the end of the first quarter of 1995,
Swisher expects to have closed its Waycross, Georgia
10
<PAGE> 12
manufacturing facility and consolidated all cigar manufacturing into its
expanded Jacksonville, Florida plant. The consolidation of the tobacco
businesses has yielded savings in operating costs and is expected to continue to
contribute cost savings in the future.
Swisher is a leading producer of popular priced cigars in the United States
under the "King Edward" and "Swisher Sweets" brand names. It also manufactures
and sells mid-priced cigars under several brands, including "Optimo," "El
Trelles," "Santa Fe" and "Keep Moving". Swisher markets little cigars nationally
under the brand names "Swisher Sweets Little Cigars," "Swisher Sweets Lights
Little Cigars," "Swisher Sweets Menthol Little Cigars" and "King Edward Little
Cigars." In addition, Swisher also markets higher priced cigars under its
trademarks "Bering" and "La Primadora," and imports "Pleiades" and "Dannemann"
cigars and other tobacco products, including "MacBaren" pipe tobacco.
Swisher competes in the dry snuff, loose-leaf chewing tobacco and moist
snuff market segments of the smokeless tobacco industry. Since 1888, it has been
a significant producer of dry snuff, the original smokeless tobacco product,
which consists of finely powdered tobacco. Swisher's dry snuff brands include
"Navy" and "Railroad Mills" and its sales represent approximately one-third of
this smokeless tobacco market segment. Swisher also produces and markets
loose-leaf chewing tobacco with its "Mail Pouch," "Chattanooga Chew" and
"Lancaster" brands, among others. Swisher has a small share of the moist snuff
market with its "Silver Creek," "Gold River" and "Redwood" brands. It markets a
low nicotine moist snuff under the "Cooper" brand name. Swisher markets all of
its branded moist snuff products under a "buy-one-get-one-free" pricing
strategy. Swisher also provides moist snuff and loose-leaf chewing tobacco
products for the private label market.
USE OF PROCEEDS
The net cash proceeds from the Offering and the Stock Purchase are expected
to be approximately $30,157,720. The net proceeds from the Offering and the
Stock Purchase will be used for general corporate purposes.
PRICE RANGE OF CLASS B COMMON STOCK AND DIVIDEND POLICY
The principal market for the Class B Common Stock is the AMEX. The
following table indicates the high and low per-share sale prices for the Class B
Common Stock as reported by the AMEX for the periods indicated. The Class A
Common Stock, which is also traded on the AMEX, is not being offered pursuant to
this Prospectus.
<TABLE>
<CAPTION>
HIGH LOW
----- -----
<S> <C> <C>
1993
First Quarter................................. $24 3/8 $22 3/4
Second Quarter................................ 22 3/4 18
Third Quarter................................. 18 1/2 15 7/8
Fourth Quarter................................ 16 3/4 14 7/8
1994
First Quarter................................. 21 7/8 15 1/2
Second Quarter................................ 21 17 7/8
Third Quarter................................. 23 1/4 20 1/8
Fourth Quarter................................ 25 3/8 21 7/8
1995
First Quarter (through February 27, 1995)..... 39 1/2 25 1/4
</TABLE>
On January 5, 1995, the last trading day preceding public announcement of
the initial proposal by EBS to acquire the Company, the last reported sale price
per share of Class B Common Stock on the AMEX was $26 1/4. On January 19, 1995,
the last trading day preceding public announcement of a revised proposal by EBS
to acquire the Company, the last reported sale price per share of Class B Common
Stock on the AMEX was
11
<PAGE> 13
$29. On February 21, 1995, the last trading day preceding public announcement of
the execution of the Merger Agreement and the Stock Purchase Agreement, the last
reported sale price per share of Class B Common Stock on the AMEX was $31 3/8.
On February 27, 1995, the last reported sale price per share of Class B Common
Stock on the AMEX was $39 1/4.
During 1993 and the first three quarters of 1994, the Company declared and
paid quarterly dividends of $.16 per share on its Class B Common Stock. In the
fourth quarter of 1994, the Company declared and paid a dividend of $.17 per
share on its Class B Common Stock. The payment of future dividends will be at
the discretion of the Company's Board of Directors and will depend upon the
level of earnings, financial condition and other factors relevant to the
Company.
The approximate number of holders of record of Class B Common Stock at
December 31, 1994 was 405.
DILUTION
The unaudited net tangible book value of the shares of Common Stock as of
September 30, 1994 was approximately $201,631,000, or $19.66 per share. "Net
tangible book value" per share represents the amount of total tangible assets
(total assets less intangible assets) less total liabilities, divided by the
number of shares of Common Stock outstanding. After giving effect to the sale by
the Company of the 757,943 shares of Class B Common Stock offered hereby and
pursuant to the Stock Purchase Agreement and after deducting the estimated
offering expenses, the adjusted net tangible book value of the Company as of
September 30, 1994 would have been approximately $231,789,000, or $21.04 per
share, representing an immediate and substantial dilution of $18.96 per share in
respect of shares of Class B Common Stock purchased pursuant to the Offering and
the Stock Purchase Agreement. The following table illustrates this per share
dilution:
<TABLE>
<S> <C> <C>
Subscription Price.......................... $40.00
Net tangible book value per share before
the Offering and the Stock Purchase.... $19.66
Increase per share attributable to
shareholders exercising Rights......... 1.38
Adjusted net tangible book value per share
after Offering and the Stock
Purchase............................... 21.04
------
Dilution to shareholders exercising
Rights(1).............................. $18.96
======
</TABLE>
- ---------------
(1) Dilution is determined by subtracting the net tangible book value per share
from the Subscription Price paid by an investor for a share of Class B
Common Stock in the Offering.
12
<PAGE> 14
CAPITALIZATION
The following table sets forth the unaudited consolidated capitalization of
the Company at September 30, 1994 and the consolidated capitalization of the
Company at such date, as adjusted to give effect to the Offering and the Stock
Purchase Agreement.
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
SEPTEMBER 30, 1994
--------------------------
ACTUAL AS ADJUSTED
-------- -----------
(UNAUDITED)
<S> <C> <C>
Total debt.......................................... $138,769 $ 138,769
-------- -----------
Stockholders' equity
Capital stock:
Common, Class A, $.80 par value; authorized
15,000,000 shares at September 30, 1994 and as
adjusted; issued 8,868,053 shares at September
30, 1994 and as adjusted....................... $ 7,094 $ 7,094
Common, Class B, $.80 par value; authorized
2,500,000 shares; issued 1,809,282 shares at
September 30, 1994 and 2,500,000 shares as
adjusted....................................... 1,447 2,000
Capital in excess of par value of common stock.... 124,266 153,281
Retained earnings................................. 101,567 101,567
-------- -----------
234,374 263,942
Less, common stock in treasury, at cost; Class A,
352,544 shares at September 30, 1994 and Class B,
67,225 shares at September 30, 1994 and -0- shares
as adjusted....................................... 6,787 6,197
-------- -----------
Total stockholders' equity................ $227,587 $ 257,745
-------- -----------
Total capitalization................................ $366,356 $ 396,514
======== =========
</TABLE>
13
<PAGE> 15
SELECTED FINANCIAL INFORMATION
The following selected consolidated financial data of the Company for the
four years ended December 31, 1993 have been audited by Coopers & Lybrand
L.L.P., independent accountants. The financial data for the nine months ended
September 30, 1994 and September 30, 1993 are derived from unaudited financial
statements. The financial data for the nine month periods ended September 30,
1994 and September 30, 1993 include all adjustments, consisting of normal
recurring accruals, which the Company considers necessary for a fair
presentation of the financial position and results of operations for these
periods. Operating results for the nine months ended September 30, 1994 are not
necessarily indicative of the results that may be expected for the full year
ended December 31, 1994. This information should be read in conjunction with,
and is qualified in its entirety by reference to, the more detailed information
and consolidated financial statements and notes thereto included or incorporated
herein by reference.
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
---------------------- -----------------------------------------
1994 1993 1993 1992 1991 1990
-------- ----------- -------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
OPERATING DATA:
Net sales............................... $462,189 $ 402,678 $538,534 $542,172 $533,565 $501,498
Operating profit........................ 36,760 7,172 15,549 44,329 56,983 60,126
Income (loss) from continuing operations
before income taxes, minority
interest, extraordinary losses and
cumulative effect of accounting
changes............................... 26,973 (4,172) 1,036 32,892 39,595 48,739
Income taxes............................ (10,712) 684 (1,151) (12,901) (15,294) (18,922)
Income (loss) from continuing operations
before minority interest,
extraordinary losses and cumulative
effect of accounting
changes............................... 16,261 (3,488) (115) 19,991 24,301 29,817
Minority interest in loss (earnings) of
subsidiary............................ -- 329 329 (9,996) (11,496) (13,657)
Income (loss) from continuing
operations............................ 16,261 (3,159) 214 9,995 12,805 16,160
Loss from discontinued operation........ -- -- -- -- (1,518) (2,640)
Income (loss) before extraordinary
losses and cumulative effect of
accounting changes.................... 16,261 (3,159) 214 9,995 11,287 13,520
Extraordinary losses from early
extinguishment of debt................ -- (2,862) (4,182) -- -- --
Income (loss) before cumulative effect
of accounting changes................. 16,261 (6,021) (3,968) 9,995 11,287 13,520
Cumulative effect of accounting
changes............................... -- (27,200) (27,200) 3,016 -- --
Net income (loss)....................... 16,261 (33,221) (31,168) 13,011 11,287 13,520
PER SHARE DATA:
Primary earnings (loss) per share of
common stock:
Continuing operations................... $ 1.59 $ (.33) $ .02 $ 1.55 $ 2.00 $ 2.44
Discontinued operation.................. -- -- -- -- (.24) (.40)
Extraordinary losses from early
extinguishment of debt................ -- (.30) (.43) -- -- --
Cumulative effect of accounting
changes............................... -- (2.88) (2.82) .47 -- --
Net income (loss)....................... 1.59 (3.51) (3.23) 2.02 1.76 2.04
Dividends per share of common stock..... .48 .48 .64 .64 .64 .64
BALANCE SHEET DATA:
Total assets............................ $503,810 $ 502,803 $492,058 $484,003 $459,639 $433,222
Working capital......................... 104,231 126,349 102,246 156,306 140,603 63,743
Long-term debt, less current
installments.......................... 133,991 157,640 139,294 136,227 127,542 70,530
Stockholders' equity.................... 227,587 215,054 215,666 168,240 158,665 151,066
</TABLE>
14
<PAGE> 16
RECENT DEVELOPMENTS
On January 18, 1995, the Company announced operating results for the three
months and twelve months ended December 31, 1994. Such operating results are
unaudited and are not necessarily indicative of the results that may be expected
for the Company in the future. Selected operating results of the Company for the
three months and twelve months ended December 31, 1994 and 1993 are presented
below:
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
THREE MONTHS ENDED YEAR ENDED
DECEMBER 31, DECEMBER 31,
----------------------- --------------------------
1994 1993 1994 1993
---------- ---------- ---------- ---------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C>
OPERATING DATA:
Net sales................................ $ 141,799 $ 135,856 $ 603,988 $ 538,534
Income before income taxes, minority
interest, extraordinary losses and
cumulative effect of accounting
changes................................ 17,480 5,208 44,453 1,036
Income taxes............................. (6,796) (1,835) (17,508) (1,151)
Income (loss) before minority interest,
extraordinary losses and the cumulative
effect of accounting changes........... 10,684 3,373 26,945 (115)
Minority interest in loss of
subsidiary............................. -- -- -- 329
Income before extraordinary losses and
cumulative effect of accounting
changes................................ 10,684 3,373 26,945(A) 214(B)
Extraordinary losses..................... -- (1,320)(C) -- (4,182)(D)
Income (loss) before cumulative effect of
accounting changes..................... 10,684 2,053 26,945 (3,968)
Cumulative effect of accounting
changes................................ -- -- -- (27,200)(E)
Net income (loss)........................ 10,684 2,053 26,945 (31,168)
PER SHARE DATA:
Earnings (loss) per share of common
stock:
Income before extraordinary losses and
cumulative effect of accounting
changes............................. $ 1.04 $ .33 $ 2.63(A) $ .02(B)
Extraordinary losses................... -- (.13)(C) -- (.43)(D)
Cumulative effect of accounting
changes............................. -- -- -- (2.82)(E)
---------- ---------- ---------- ---------
Net income (loss)................... $ 1.04 $ .20 $ 2.63 $ (3.23)
========= ========= ========= ========
Weighted average number of common shares
outstanding............................ 10,262,707 10,219,077 10,245,112 9,634,622
========= ========= ========= ========
</TABLE>
- ---------------
(A) Reflects a charge of $2,600,000, or $.25 per share, related to the
establishment of a reserve for ongoing patent infringement litigation and a
charge of $3,294,000, or $.32 per share, related to a plant consolidation
and restructuring of the Company's tobacco businesses.
(B) Includes restructuring charges of $7,720,000, or $.80 per share.
(C) Represents the early extinguishment of the Company's 9.4% subordinated
debentures.
(D) Represents the early extinguishment of the Company's 9.4% subordinated
debentures and 12% senior subordinated debentures.
(E) Represents the cumulative effect of the adoption of Statement of Financial
Accounting Standards No. 106, "Employers' Accounting for Postretirement
Benefits Other than Pensions" and No. 112, "Employers' Accounting for
Postemployment Benefits."
15
<PAGE> 17
THE RIGHTS OFFERING
THE RIGHTS
The Company is issuing Rights to each Rights Holder as of the close of
business on the Record Date at no charge to such Rights Holders. The Company
will issue .435 Rights for each share of Class B Common Stock held on the Record
Date. Each Right will entitle the holder thereof to purchase one share of Class
B Common Stock. The Rights will be evidenced by nontransferable Subscription
Right Certificates which are being distributed to each Rights Holder
contemporaneously with the delivery of this Prospectus.
The Company will issue Rights to purchase an aggregate of 757,943 shares of
Class B Common Stock offered pursuant to this Prospectus.
No fractional Rights or cash in lieu thereof will be issued or paid.
Instead, the number of Rights issued to a Rights Holder will be rounded up to
the nearest whole number. No more than 757,943 shares of Class B Common Stock
will be issued upon exercise of the Rights. If Rights to purchase in excess of
757,943 shares are exercised, the Company will allocate the 757,943 shares
available for purchase to the exercising Rights Holders on a pro rata basis to
the extent practicable. A depository, bank, trust company or securities broker
or dealer holding shares of Class B Common Stock on the Record Date for more
than one beneficial owner may, upon delivery to the Subscription Agent of the
Certification and Request for Additional Rights form available from the
Subscription Agent, exchange its Subscription Right Certificate to obtain a
Subscription Right Certificate for the number of Rights to which all such
beneficial owners in the aggregate would have been entitled had each been a
holder on the Record Date. No other Subscription Right Certificate may be so
divided as to increase the number of Rights to which the original recipient was
entitled. The Company reserves the right to refuse to issue any Subscription
Right Certificate if such issuance would be inconsistent with the principle that
each beneficial owner's holdings will be rounded up to the nearest whole number
of Rights. The Subscription Agent must receive the Certification and Request for
Additional Rights no later than 5:00 p.m. on , 1995, after which
time no new Subscription Right Certificates will be issued.
Because the number of Rights issued to each Rights Holder will be rounded
up to the nearest whole number, beneficial owners of Class B Common Stock who
are also the record holders of their shares will receive more Rights under
certain circumstances than beneficial owners of Class B Common Stock who are not
the record holders of their shares and who do not obtain (or cause the record
holder of their shares of Class B Common Stock to obtain) a separate
Subscription Right Certificate with respect to the shares beneficially owned by
them, including shares held in an investment advisory or similar account. To the
extent that record holders or beneficial owners of Class B Common Stock who
obtain a separate Subscription Right Certificate receive more Rights, they will
be able to subscribe for more shares. Beneficial owners of Class B Common Stock
who are not record holders should contact the nominee Rights Holder to obtain a
separate Subscription Right Certificate. See "The Rights Offering -- Exercise of
Rights."
TERMINATION TIME
The Rights will expire at the Termination Time, 5:00 p.m., New York time,
on , 1995, subject to extension in the discretion of the Company.
After the Termination Time, unexercised Rights will be null and void. The
Company will not be obligated to honor any purported exercise of Rights received
by the Subscription Agent after the Termination Time, regardless of when the
documents relating to that exercise were sent, except pursuant to the Guaranteed
Delivery Procedures described below. The Company may extend the Termination Time
by giving oral or written notice to the Subscription Agent on or before the
Termination Time, followed by a press release no later than 9:00 a.m. on the
next business day after the previously scheduled Termination Time. The Offering
will not be extended to a time later than 5:00 p.m., New York time, on
, 1995.
SUBSCRIPTION PRIVILEGE
Each whole Right will entitle the holder thereof to purchase at the
Subscription Price one Underlying Share (the "Subscription Privilege"). Each
Rights Holder is entitled to subscribe for all, or any portion of, the
16
<PAGE> 18
Underlying Shares which may be acquired through the exercise of such holder's
Rights. Certificates representing Underlying Shares purchased pursuant to the
Subscription Privilege will be delivered to subscribers as soon as practicable
after completion of the Offering.
SUBSCRIPTION PRICE
The Subscription Price is $40.00 per Underlying Share subscribed for
pursuant to the Subscription Privilege, payable in cash.
EXERCISE OF RIGHTS
Rights Holders may exercise their Rights by delivering to the Subscription
Agent, at the addresses specified below, at or prior to the Termination Time,
the properly completed and executed Subscription Right Certificate(s) evidencing
those Rights, with any signatures guaranteed as required, together with payment
in full of the Subscription Price for each Underlying Share subscribed for
pursuant to the Subscription Privilege. Payment may be made only (i) by check or
bank draft drawn upon a U.S. bank, or postal, telegraphic or express money
order, payable to The Bank of New York, as Subscription Agent or (ii) by wire
transfer of funds to the account maintained by the Subscription Agent for the
purpose of accepting subscriptions at The Bank of New York, ABA # 021000018, for
Further Credit to A/C 8900060603, Ref: American Maize-Products Company. The
Subscription Price will be deemed to have been received by the Subscription
Agent only upon (i) clearance of any uncertified check, (ii) receipt by the
Subscription Agent of any certified check or bank draft drawn upon a U.S. bank
or any postal, telegraphic or express money order or (iii) receipt of collected
funds in the Subscription Agent's account designated above. Funds paid by
uncertified personal check may take at least five business days to clear.
Accordingly, Rights Holders who wish to pay the Subscription Price by means of
an uncertified personal check are urged to make payment sufficiently in advance
of the Termination Time to ensure that such payment is received and clears by
such time and are urged to consider in the alternative payment by means of
certified check, bank draft, money order or wire transfer of funds. All funds
received in payment of the Subscription Price shall be held by the Subscription
Agent and invested at the direction of the Company in short-term certificates of
deposit, short-term obligations of the United States or any state or any agency
thereof or money market mutual funds investing in the foregoing instruments. The
account in which such funds will be held may not be insured by the Federal
Deposit Insurance Corporation. Any interest earned on such funds will be
retained by the Company.
The Subscription Right Certificates and payment of the Subscription Price
or, if applicable, Notices of Guaranteed Delivery must be delivered to the
Subscription Agent at the following addresses:
If by mail:
Tender and Exchange Department
P.O. Box 11248
Church Street Station
New York, N.Y. 10286-1248
If by hand:
Tender and Exchange Department
101 Barclay Street
Receive & Deliver Window
New York, N.Y. 10286
If by overnight courier:
Tender and Exchange Department
101 Barclay Street
Receive & Deliver Window
New York, N.Y. 10286
The Subscription Agent's telephone number is (800) 507-9357.
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<PAGE> 19
The Company will pay the fees and expenses of the Subscription Agent and
has also agreed to indemnify the Subscription Agent from certain liabilities,
including liabilities under the Securities Act of 1933, as amended, which it may
incur in connection with the Offering.
If a Rights Holder wishes to exercise Rights, but time will not permit such
holder to cause the Subscription Right Certificate(s) evidencing those Rights to
reach the Subscription Agent prior to the Termination Time, such Rights may
nevertheless be exercised if all of the following conditions (the "Guaranteed
Delivery Procedures") are met:
(i) the Rights Holder has caused payment in full of the Subscription
Price for each Underlying Share being subscribed for pursuant to the
Subscription Privilege to be received (in the manner set forth above) by
the Subscription Agent at or prior to the Termination Time;
(ii) the Subscription Agent receives, at or prior to the Termination
Time, a guarantee notice (a "Notice of Guaranteed Delivery"), substantially
in the form provided with Instructions as to Use of the Company's
Subscription Right Certificates (the "Instructions") distributed with the
Subscription Right Certificates, from a member firm of a registered
national securities exchange or a member of the National Association of
Securities Dealers, Inc., or from a commercial bank or trust company having
an office or correspondent in the United States (each, an "Eligible
Institution"), stating the name of the exercising Rights Holder, the number
of Underlying Shares being subscribed for pursuant to the Subscription
Privilege, and guaranteeing the delivery to the Subscription Agent of the
Subscription Right Certificate(s) evidencing those Rights within five (5)
business days following the date of the Notice of Guaranteed Delivery; and
(iii) the properly completed Subscription Right Certificate(s)
evidencing the Rights being exercised, with any signatures guaranteed as
required, is received by the Subscription Agent within five (5) business
days following the date of the Notice of Guaranteed Delivery relating
thereto. The Notice of Guaranteed Delivery may be delivered to the
Subscription Agent in the same manner as Subscription Right Certificates at
the address set forth above or may be transmitted to the Subscription Agent
by telegram or facsimile transmission (telecopier number (212) 815-6213
(for Eligible Institutions Only)).
If an exercising Rights Holder does not indicate the number of Rights being
exercised, or does not forward full payment of the aggregate Subscription Price
for the number of Rights that the Rights Holder indicates are being exercised,
then the Rights Holder will be deemed to have exercised the Subscription
Privilege with respect to the maximum number of Rights that may be exercised for
the aggregate payment delivered by the Rights Holder and, to the extent that the
aggregate payment delivered by the Rights Holder exceeds the product of the
Subscription Price multiplied by the number of Rights evidenced by the
Subscription Right Certificates delivered by the Rights Holder (such excess
being the "Subscription Excess"), the Rights Holder will receive promptly by
mail a refund equal to the Subscription Excess without interest or deduction.
Certificates representing shares of Class B Common Stock subscribed for and
issued pursuant to the Subscription Privilege will be mailed as soon as
practicable after completion of the Offering.
Unless a Subscription Right Certificate (i) provides that the Underlying
Shares to be issued pursuant to the exercise of the Rights represented thereby
are to be issued to the holder of such Rights or (ii) is submitted for the
account of an Eligible Institution, signatures on each Subscription Right
Certificate must be guaranteed by an Eligible Institution.
Rights Holders who hold shares of Class B Common Stock for the account of
others, such as brokers, trustees or depositaries for securities, should contact
the respective beneficial owners of such shares as soon as possible to ascertain
these beneficial owners' intentions and to obtain instructions with respect to
their Rights. If a beneficial owner so instructs, the record holder of that
beneficial owners' Rights should complete appropriate Subscription Right
Certificates and submit them to the Subscription Agent with the proper payment.
In addition, beneficial owners of Rights through such a nominee holder should
contact the nominee holder and request the nominee holder to effect transactions
in accordance with the beneficial owners' instructions. If a beneficial owner
wishes to obtain a separate Subscription Right Certificate, such beneficial
18
<PAGE> 20
owner should contact the nominee as soon as possible and request that a separate
Subscription Right Certificate be issued. A nominee may request any Subscription
Right Certificate held by it to be split into such smaller denominations as it
wishes, provided that the Subscription Right Certificate is received by the
Subscription Agent, properly endorsed, no later than 5:00 p.m., New York time,
on , 1995.
The Instructions accompanying the Subscription Right Certificates should be
read carefully and followed in detail. SUBSCRIPTION RIGHT CERTIFICATES SHOULD BE
SENT WITH PAYMENT TO THE SUBSCRIPTION AGENT. DO NOT SEND SUBSCRIPTION RIGHT
CERTIFICATES TO THE COMPANY.
THE METHOD OF DELIVERY OF SUBSCRIPTION RIGHT CERTIFICATES AND PAYMENT OF
THE SUBSCRIPTION PRICE TO THE SUBSCRIPTION AGENT WILL BE AT THE ELECTION AND
RISK OF THE RIGHTS HOLDERS. IF SUBSCRIPTION RIGHT CERTIFICATES AND PAYMENTS ARE
SENT BY MAIL, RIGHTS HOLDERS ARE URGED TO SEND SUCH MATERIALS BY REGISTERED
MAIL, PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED, AND ARE URGED TO ALLOW A
SUFFICIENT NUMBER OF DAYS TO ENSURE DELIVERY TO THE SUBSCRIPTION AGENT AND
CLEARANCE OF PAYMENT PRIOR TO THE TERMINATION TIME. BECAUSE UNCERTIFIED CHECKS
MAY TAKE AT LEAST FIVE BUSINESS DAYS TO CLEAR, RIGHTS HOLDERS ARE STRONGLY URGED
TO PAY, OR ARRANGE FOR PAYMENT, BY MEANS OF CERTIFIED CHECK, BANK DRAFT, MONEY
ORDER OR WIRE TRANSFER OF FUNDS.
All questions concerning the timeliness, validity, form and eligibility of
any exercise of Rights will be determined by the Company, whose determination
will be final and binding. The Company, in its sole discretion, may waive any
defect or irregularity, or permit a defect or irregularity to be corrected
within such time as it may determine, or reject the purported exercise of any
Right. Subscription Right Certificates will not be deemed to have been received
or accepted until all irregularities have been waived or cured within such time
as the Company determines, in its sole discretion. Neither the Company nor the
Subscription Agent will be under any duty to give notification of any defect or
irregularity in connection with the submission of Subscription Right
Certificates or incur any liability for failure to give such notification. The
Company reserves the right to reject any exercise if such exercise is not in
accordance with the terms of the Offering or not in proper form or if the
acceptance thereof or the issuance of the Class B Common Stock pursuant thereto
could be deemed unlawful.
All questions or requests for assistance concerning the method of
exercising Rights or requests for additional copies of this Prospectus, the
Instructions or the Notice of Guaranteed Delivery should be directed to the
Subscription Agent.
NO REVOCATION
ONCE A RIGHTS HOLDER HAS PROPERLY EXERCISED THE SUBSCRIPTION PRIVILEGE,
SUCH EXERCISE MAY NOT BE REVOKED.
PROCEDURES FOR DTC PARTICIPANTS
It is anticipated that the exercise of the Subscription Privilege may be
effected through the facilities of The Depository Trust Company ("DTC").
NONTRANSFERABILITY OF RIGHTS
The Rights are not transferable and may be exercised only by a subscribing
Rights Holder for such holder's account, provided that such Rights may be
transferred by operation of law in the case of death, dissolution, liquidation
or bankruptcy of the Rights Holder, or pursuant to an order of an appropriate
court.
DETERMINATION OF SUBSCRIPTION PRICE
The Subscription Price was determined by the Company based on negotiations
with EBS and Sub.
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<PAGE> 21
FOREIGN AND CERTAIN OTHER SHAREHOLDERS
Subscription Right Certificates will not be mailed to Rights Holders whose
addresses are outside the United States and Canada or who have an APO or FPO
address, but will be held by the Subscription Agent for each Rights Holder's
accounts. To exercise their Rights, such persons must notify the Subscription
Agent at or prior to the Termination Time.
THE ACQUISITION
THE MERGER AGREEMENT
On February 22, 1995, the Company, EBS and Sub entered into the Merger
Agreement. The following discussion of the Merger Agreement and the transactions
contemplated thereby, including the Tender Offer and the Merger, does not
purport to be complete and is qualified in its entirety by reference to the text
of the Merger Agreement, a copy of which has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part, and is incorporated
herein by reference.
The Tender Offer. The Merger Agreement provides that Sub will commence the
Tender Offer and, subject to the terms of the Tender Offer, EBS shall accept for
payment and pay for Shares which have been validly tendered pursuant to the
Tender Offer at a price of $40.00 per Share, net to the seller in cash (the
"Merger Consideration"), promptly after expiration of the Tender Offer, provided
that all conditions to the Tender Offer have been satisfied or are capable of
being satisfied, using reasonable efforts, within 90 days of the commencement of
the Tender Offer, or waived, to the extent permitted by the Merger Agreement, by
EBS or Sub. EBS may not, without the prior written consent of the Company, (a)
decrease the Merger Consideration, (b) decrease the number of shares to be
purchased in the Tender Offer, (c) change the form of consideration payable in
the Tender Offer, (d) add to or change the conditions of the Tender Offer, (e)
change or waive the Minimum Condition or (f) make any other change in the terms
or conditions of the Tender Offer which is adverse to the holders of the Shares.
If all of the conditions to the Tender Offer are satisfied as of the
scheduled expiration date thereof, the Tender Offer may not be extended without
the prior written consent of the Company. If as of the scheduled expiration date
of the Tender Offer the conditions to the Tender Offer have not been satisfied
but are capable, using reasonable efforts, of being satisfied within 90 days of
the commencement of the Tender Offer or, to the extent permitted by the Merger
Agreement, waived by EBS or Sub, EBS shall extend the Tender Offer until the
earliest of (i) the purchase of Shares pursuant to the Tender Offer, (ii) 90
days from the commencement of the Tender Offer and (iii) the termination of the
Merger Agreement.
Conditions to the Tender Offer. The Merger Agreement provides that Sub
will not be obligated to accept for payment any Shares tendered until the
expiration of all applicable waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and Sub shall
not be required to accept for payment or pay for any Shares, or may delay the
acceptance for payment of or payment for, any shares tendered, or may, in its
sole discretion, subject to the terms and conditions of the Merger Agreement,
terminate or amend the Tender Offer as to any shares not then paid for, if (A)
there have not been validly tendered prior to the expiration of the Tender Offer
and not withdrawn, (i) a number of shares of Class A Common Stock which,
together with the number of shares of Class A Common Stock then beneficially
owned by EBS and its affiliates, constitute at least a majority of the
outstanding shares of Class A Common Stock on a fully-diluted basis and (ii) a
number of shares of Class B Common Stock which, together with the number of
shares of Class B Common Stock which EBS or its affiliates have purchased or are
then obligated to purchase under the Stock Purchase Agreement (all conditions to
the obligations of the parties under the Stock Purchase Agreement (other than
the completion of the Tender Offer) having been satisfied) and the number of
shares of Class B Common Stock then beneficially owned by EBS and its
affiliates, constitute at least a majority of the outstanding shares of Class B
Common Stock on a fully-diluted basis or (B) at any time on or after February
22, 1995, and at or prior to the time of payment for any such
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<PAGE> 22
Shares (whether or not any Shares have theretofore been accepted for payment
pursuant to the Tender Offer), any of the following events shall have occurred
and be continuing:
(a) there shall have occurred (i) any general suspension of, or
limitation on times or prices for, trading in securities on any United
States national securities exchange or over-the-counter market, (ii) a
declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States or France, (iii) the commencement of
a war, armed hostilities or other international or national calamity
directly or indirectly involving the United States having a material
adverse effect on the functioning of the financial markets in the United
States, (iv) any limitation (whether or not mandatory) by any governmental
or regulatory authority, agency, commission or other entity, domestic or
foreign ("Governmental Entity"), on, or any other event having a material
adverse effect on, the extension of credit by banks or other lending
institutions in the United States or France, (v) any suspension of, or
material limitation (whether or not mandatory) on, the currency exchange
markets or the imposition of, or material changes in, any currency or
exchange control laws in the United States or France, or (vi) in the case
of any of the foregoing existing at the time of the commencement of the
Tender Offer, a material acceleration or worsening thereof; or
(b) the Company shall have breached or failed to perform in any
material respect any of its obligations, covenants or agreements under the
Merger Agreement or the Stock Purchase Agreement or any representation or
warranty of the Company set forth in the Merger Agreement or the Stock
Purchase Agreement shall have been untrue or incorrect when made or
thereafter shall become untrue or incorrect, except where such breach,
failure to perform or lack of truthfulness or correctness has been caused
by or results from a breach by EBS or Sub of any of their obligations under
the Merger Agreement or the Stock Purchase Agreement; or
(c) there shall have been instituted or be pending any action,
litigation or proceeding before any court or governmental, regulatory or
administrative agency, authority or commission, domestic or foreign, which
(i) challenges the acquisition by EBS or Sub of the Shares, or seeks to
restrain, materially delay or prohibit the Tender Offer, the Merger, the
Stock Purchase Agreement or other subsequent business combination or seeks
material damages in connection therewith; (ii) seeks to prohibit or
materially limit the ownership or operation by EBS, Sub or their affiliates
and subsidiaries of any material portion of the business or assets of the
Company (including the business or assets of their respective affiliates
and subsidiaries), taken as a whole, or of EBS or Sub (including the
business or assets of their respective affiliates and subsidiaries) taken
as a whole, in each case as a result of the transactions contemplated by
the Merger Agreement and the Stock Purchase Agreement; (iii) seeks to
impose material limitations on the ability of EBS or Sub (including the
business or assets of their respective affiliates and subsidiaries) to hold
or to exercise full rights of ownership of the Shares, including without
limitation the right to vote any Shares purchased by them on an equal basis
on all matters properly presented to the holders of such class of Shares;
or
(d) there shall have been any action taken, or any statute, rule,
regulation, order or injunction sought, proposed, enacted, promulgated,
entered, enforced or deemed applicable to the Tender Offer, the Merger or
the Stock Purchase (other than the application of the waiting period
provisions of the HSR Act), which would result in any of the consequences
referred to in clauses (i) through (iii) of paragraph (c) above; or
(e) it shall have been publicly disclosed or EBS shall have learned
that any person, entity or "group" (as defined in Section 13(d) of the
Exchange Act and the rules promulgated thereunder) shall have become the
beneficial owner (as defined in Section 13(d) of the Exchange Act and the
rules promulgated thereunder) of more than 25% of any class or series of
capital stock of the Company (including any class of the Shares), (other
than acquisitions by persons or groups who have publicly disclosed such
ownership on or prior to February 22, 1995 in a Schedule 13D or 13G (or
amendments thereto on file with the Commission); or
(f) the Board of Directors of the Company shall have amended, modified
or withdrawn its recommendation of the Tender Offer or the Merger, or shall
have failed to publicly reconfirm such
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<PAGE> 23
recommendation upon request by EBS or Sub or shall have endorsed, approved
or recommended any other Acquisition Proposal (as defined below), or shall
have resolved to do any of the foregoing; or
(g) the Company and EBS or Sub shall have reached an agreement or
understanding that the Tender Offer be terminated or amended, or that
payment for the Shares be delayed; or
(h) the Dow Jones Industrial Average (as reported by The Wall Street
Journal) shall have lost 20% or more of the value it had at the date of the
Merger Agreement; or
(i) any other Regulatory Filings (as defined in Section 6.1(d) of the
Merger Agreement) and consents applicable to the Tender Offer or the Stock
Purchase Agreement shall not have been obtained on terms and conditions
reasonably satisfactory to EBS or Sub, or if EBS shall have received notice
under the Exon-Florio Amendment (as defined in Section 6.1(d) of the Merger
Agreement) that the Committee on Foreign Investment in the United States
has determined to investigate the Tender Offer or any related transaction;
which, in any such case, and regardless of the circumstances (including any
action or inaction by EBS or Sub other than a breach by EBS or Sub of the Merger
Agreement or the Stock Purchase Agreement) giving rise to any such conditions,
makes it inadvisable to proceed with the Tender Offer and/or with such
acceptance for payment of or payment for Shares.
The Board. The Merger Agreement provides that, upon the request of EBS,
the Company shall, subject to compliance with applicable law and promptly
following the purchase by Sub of more than 50 percent of the outstanding shares
of Class A Common Stock and more than 50 percent of the outstanding shares of
Class B Common Stock pursuant to the Tender Offer, the Stock Purchase Agreement
or otherwise, take all actions necessary to cause persons designated by EBS to
become directors of the Company so that the total number of such persons equals
that number of directors, rounded up to the next whole number, which represents
(i) the product of (w) the total number of directors on the Board of Directors
the shares of Class A Common Stock are entitled to elect multiplied by (x) the
percentage that the number of shares of Class A Common Stock so accepted for
payment plus any shares of Class A Common Stock beneficially owned by EBS or its
affiliates on the date of the Merger Agreement bears to the number of shares of
Class A Common Stock outstanding at the time of such acceptance for payment plus
(ii) the product of (y) the total number of directors on the Board of Directors
the shares of Class B Common Stock are entitled to elect multiplied by (z) the
percentage that the number of shares of Class B Common Stock so accepted for
payment plus any shares of Class B Common Stock beneficially owned by EBS or its
affiliates on the date of the Merger Agreement bears to the number of shares of
Class B Common Stock outstanding at the time of such acceptance for payment. In
furtherance thereof, the Company shall increase the size of the Company's Board
of Directors, or use its best efforts to secure the resignation of directors, or
both, as is necessary to permit EBS's designees to be elected to the Company's
Board of Directors; provided, however, that prior to the Effective Time (as
defined in Section 2.3 of the Merger Agreement), the Company's Board of
Directors shall always have at least two members who are neither officers of EBS
or the Company (or any of their respective affiliates) nor designees of EBS (or
any of its affiliates), nor shareholders or affiliates of EBS, nor beneficial
owners of 5% or more of any class of the capital stock of the Company (or any of
their respective affiliates) ("Insiders"). At such time, the Company, if so
requested, will use its best efforts to cause persons designated by EBS to
constitute the same percentage of each committee of such board, each board of
directors of each subsidiary of the Company and each committee of each such
board (in each case to the extent of the Company's ability to elect such
persons).
For purposes of provisions of the Merger Agreement relating to termination
of the Merger, modification or amendment of the Merger Agreement, or waiver of
conditions to the Company's obligations to consummate the Merger, no action
taken by the Board of Directors of the Company prior to the Merger shall be
effective unless such action is approved by the affirmative vote of at least a
majority of the directors of the Company who are not Insiders.
The Merger. The Merger Agreement provides that, subject to the terms and
conditions contained therein, at the effective time of the Merger, Sub will be
merged with and into the Company and the separate corporate existence of Sub
will thereupon cease. The Company will be the surviving corporation in the
Merger
22
<PAGE> 24
(the "Surviving Corporation") and the separate corporate existence of the
Company with all its rights, privileges, immunities, powers and franchises shall
continue unaffected by the Merger, except that the Certificate of Incorporation
of Sub in effect at the Effective Time will be the Certificate of Incorporation
of the Surviving Corporation and the By-Laws of Sub in effect at the Effective
Time shall be the By-Laws of the Surviving Corporation. The directors of Sub and
the officers of the Company at the Effective Time will, from and after the
Effective Time, be the directors and officers, respectively, of the Surviving
Corporation until their successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal in accordance
with the Surviving Corporation's Certificate of Incorporation and By-Laws.
As provided in the Merger Agreement, each Share issued and outstanding
immediately prior to the Effective Time (other than Shares owned by EBS, Sub or
any other subsidiary or affiliate of EBS, and other than Dissenting Shares, as
hereinafter defined) shall, by virtue of the Merger and without any action on
the part of the holder thereof, be converted into the right to receive, without
interest, an amount in cash equal to the Merger Consideration or such greater
amount which may be paid pursuant to the Tender Offer. Any Shares held by
shareholders exercising appraisal rights pursuant to Section 909 of the Maine
Business Corporation Act (the "MBCA") ("Dissenting Shares") shall, by virtue of
the Merger, be converted into the right to receive payment from the Surviving
Corporation of the "fair value" of such Shares as determined in accordance with
Section 909 of the MBCA. At the Effective Time, each share of common stock of
Sub issued and outstanding immediately prior to the Effective Time will, by
virtue of the Merger and without any action on the part of Sub or the holders of
such shares, be converted into one share of common stock of the Surviving
Corporation.
The Merger Agreement provides that immediately prior to the Effective Time,
each option or right to acquire Shares or stock appreciation rights with respect
to the Shares ("SARs"), shall, without any action on the part of the holder
thereof, and whether or not then exercisable, be converted into the right to
receive an amount (subject to withholding tax) in cash, if any, equal to the
product of (x) the Merger Consideration minus the current option, acquisition or
base price per share of such option or right and (y) the number of Shares
subject to such option or right, payable to the holder thereof without interest
thereon, at the Effective Time of the Merger and such option or right will be
cancelled and retired and shall cease to exist. If and to the extent required by
the terms of the plans governing such options or rights or pursuant to the terms
of any option or right granted thereunder, the Company shall use all reasonable
efforts to obtain the consent of each holder of outstanding stock options or
rights to the foregoing treatment of such stock options or rights and to take
any other action reasonably necessary to effectuate the foregoing provisions.
The Company shall take all reasonably necessary action to provide that the Stock
Plans (as defined in Section 6.1(b) of the Merger Agreement) shall be terminated
as of the Effective Time.
The Merger Agreement provides that following the consummation of the Tender
Offer, the Company will take, consistent with applicable law and its Articles of
Incorporation and By-Laws, all action necessary to duly call, give notice of,
convene and hold a meeting of holders of Shares as promptly as practicable to
consider and vote upon the approval of the Merger Agreement and the Merger. The
Company has agreed, subject to fiduciary requirements of applicable law, that
the Board of Directors of the Company will recommend such approval and the
Company will take all lawful action to solicit such approval. EBS has agreed
that at any such meeting of the Company all of the Shares then owned by the EBS
Companies (defined in Section 5.1(a) of the Merger Agreement as "Purchaser
Companies") will be voted in favor of the Merger Agreement. At the election of
EBS, if EBS or Sub owns after the expiration of the Tender Offer at least 90% of
the outstanding Shares of each class of the Company's stock, EBS, Sub and the
Company have agreed to effect the Merger without shareholder action in
accordance with Section 904 of the MBCA.
Conditions to the Merger. Under the Merger Agreement, the respective
obligations of EBS, Sub and the Company to consummate the Merger are subject to
the fulfillment or waiver, where permissible, of the following conditions: (a)
the requisite approval, if any, of the shareholders of the Company; (b) Sub (or
one of the EBS Companies) having purchased enough Shares pursuant to the Tender
Offer and the Stock Purchase Agreement sufficient to satisfy the Minimum
Condition; provided, however, that this condition will be deemed satisfied with
respect to EBS and Sub if the EBS Companies shall have failed to purchase Shares
pursuant to the Tender Offer or the Stock Purchase Agreement in violation of the
terms thereof; (c) the
23
<PAGE> 25
expiration or termination of all waiting periods under the HSR Act applicable to
the Merger; and (d) the compliance in all material respects by the other party
with all agreements and obligations of such party under the Merger Agreement or
the Stock Purchase Agreement prior to the Effective Time. The obligations of EBS
and Sub to consummate the Merger are further conditioned on no statute, rule,
regulation, judgment, decree, injunction or other order having been enacted,
issued, promulgated, enforced or entered by any court or governmental entity
which prohibits or materially restricts the consummation of the transactions
contemplated by the Merger Agreement or the Stock Purchase Agreement, or
materially restricts the business operations of EBS, Sub or the Company as a
result of such transactions. The obligations of the Company to consummate the
Merger are further conditioned on no statute, rule, regulation, judgment, decree
or other order having been enacted, issued, promulgated, enforced or entered by
any court or governmental entity which prohibits consummation of the Merger
Agreement or the Stock Purchase Agreement in accordance with the terms thereof.
Representations and Warranties. The Merger Agreement contains various
customary representations and warranties of the parties. Representations and
warranties of EBS and Sub include, without limitation, certain matters relating
to their organization and qualification to do business, their authority to enter
into the Merger Agreement and the Stock Purchase Agreement and to consummate the
transactions contemplated thereby, their filings with the SEC in connection with
the Tender Offer, consents and approvals required for the execution and delivery
of the Merger Agreement and the Stock Purchase Agreement and the consummation of
the transactions contemplated thereby and the availability of funds sufficient
to consummate the Tender Offer, the Merger and the transactions contemplated by
the Stock Purchase Agreement on the terms contemplated thereby.
Representations and warranties of the Company include, without limitation,
certain matters relating to its organization and qualification to do business,
capitalization, authority to enter into the Merger Agreement and the Stock
Purchase Agreement and to consummate the transactions contemplated thereby,
consents and approvals required for the execution and delivery of the Merger
Agreement and the Stock Purchase Agreement and the consummation of the
transactions contemplated thereby, filings with the SEC, the absence of certain
changes since December 31, 1993, litigation and liabilities, employee benefit
matters, taxes, compliance with law, intellectual property, labor, insurance and
environmental matters.
Interim Operations of the Company. Pursuant to the Merger Agreement, the
Company has agreed that, prior to the date on which a majority of the Company's
directors are EBS Insiders (unless EBS otherwise agrees in writing and except as
otherwise contemplated by the Merger Agreement or the Stock Purchase Agreement):
(a) the business of the Company and its subsidiaries will be conducted only in
the ordinary and usual course and, to the extent consistent therewith, each of
the Company and its subsidiaries shall use all reasonable efforts to preserve
its business organization and goodwill intact, keep available the services of
its officers and employees as a group and maintain its existing relations with
customers, suppliers, distributors, employees and others having business
relationships with it, in each case in all material respects; (b) the Company
and its subsidiaries will not (i) sell or pledge or agree to sell or pledge any
stock owned by it in any of its subsidiaries, (ii) adopt or propose any
amendment or change of their respective Articles or By-Laws, (iii) split,
combine or reclassify the outstanding Shares, or (iv) declare, set aside or pay
any dividend payable in cash, stock or property with respect to the Shares,
except for regular quarterly cash dividends not in excess of $0.17 per Share;
(c) except as provided for in the disclosure schedules to the Merger Agreement,
neither the Company nor any of its subsidiaries will (i) issue, sell, pledge,
dispose of or encumber any additional shares of, or securities convertible or
exchangeable for, or options, warrants, calls, commitments or rights of any kind
to acquire, any shares of its capital stock of any class of the Company or its
subsidiaries or any other property or assets other than, in the case of the
Company, shares of Class B Common Stock issuable pursuant to the terms of the
Stock Purchase Agreement and shares of Class A Common Stock issuable pursuant to
options outstanding on the date of the Merger Agreement under the Stock Plans,
(ii) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or
encumber any material assets or incur or modify any indebtedness or other
liability or issue any debt securities or securities convertible into or
exchangeable for debt securities or assume, guarantee, endorse or otherwise as
an accommodation become responsible for the obligations of any person, in each
case other than in the ordinary and usual course of business and in a manner
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consistent with past practice, (iii) acquire directly or indirectly by
redemption or otherwise any shares of the capital stock of the Company, (iv)
authorize or make capital expenditures in excess of $1,000,000 individually, (v)
make any acquisition of assets (other than in the ordinary course of business)
or investment in the stock of any other person or entity, or (vi) merge or
consolidate with any other person; (d) except as provided for in the disclosure
schedules to the Merger Agreement, other than in the ordinary and usual course
of business consistent with past practice or pursuant to obligations imposed by
collective bargaining agreements, neither the Company nor any of its
subsidiaries will increase the compensation payable or to become payable to its
executive officers or employees, enter into any contract or other binding
commitment in respect of any such increase or grant any severance or termination
pay (other than pursuant to a Plan (as defined in Section 6.1(h) of the Merger
Agreement) or policy existing as of the date of the Merger Agreement) to, or
enter into any employment or severance agreement with any director, officer or
other employee of the Company or such subsidiaries, and neither the Company nor
any of its subsidiaries will establish, adopt, enter into, make any new grants
or awards under or amend, any collective bargaining agreement or Plan, except as
required by applicable law, including any obligation to engage in good faith
collective bargaining, to maintain tax-qualified status or as may be required by
any Plan existing as of the date of the Merger Agreement; (e) neither the
Company nor any of its subsidiaries will settle or compromise any material
claims or litigation or, except in the ordinary and usual course of business,
modify, amend or terminate any of its material Contracts (as defined in Section
6.1(d)(ii) of the Merger Agreement) or waive, release or assign any material
rights or claims, or make any payment, direct or indirect, of any material
liability of the Company or any subsidiary before the same becomes due and
payable in accordance with its terms; (f) neither the Company nor any of its
subsidiaries will take any action, other than reasonable and usual actions in
the ordinary course of business and consistent with past practice with respect
to accounting policies or procedures (including tax accounting policies and
procedures) and except as may be required by the SEC or the Financial Accounting
Standards Board; (g) neither the Company nor any of its subsidiaries will make
any material tax election or permit any material insurance policy naming it as a
beneficiary or a loss payable payee to be cancelled or terminated without notice
to EBS, except in the ordinary and usual course of business; and (h) neither the
Company nor any of its subsidiaries will authorize or enter into an agreement to
do any of the foregoing.
Employment Contracts and Employee Benefits. The Merger Agreement provides
that, from and after the Effective Time, EBS and the Surviving Corporation will
honor in accordance with their terms all existing individual employment,
severance, early retirement, deferred compensation, consulting and salary
continuation agreements listed and specifically denoted on the disclosure
schedules to the Merger Agreement between the Company and any of its
subsidiaries and any current or former officer, director, employee or consultant
of the Company or any of its subsidiaries. The Merger Agreement further provides
that, from the Effective Time through December 31, 1996, EBS will cause the
Surviving Corporation and its successors to provide the employees of the Company
and its subsidiaries with employee benefit plans and programs (other than the
Stock Option Plans) which in the aggregate are no less favorable in all material
respects than those provided to such employees on the date of the Merger
Agreement; provided, however, that the Surviving Corporation will not be
required to maintain any specific benefit plans or programs. EBS has agreed to
cause the Surviving Corporation to pay each person employed at the Company's
corporate headquarters in Stamford, Connecticut at the consummation of the
Tender Offer whose employment is terminated by the Surviving Corporation within
one year following such consummation (other than termination for cause) a
lump-sum severance payment upon such termination equal to the product of (x) one
month of such employee's base salary at the time of termination and (y) the
number of full years of service such employee has accumulated with the Company
and the Surviving Corporation, up to a maximum of 12 years of service credit;
provided that such severance provision shall not apply to any employee who is
eligible to receive a severance payment upon termination by virtue of such
employee's employment contract with the Company and shall be reduced by any
other severance payment due to the employee. The Company has further agreed
that, prior to the Effective Time, the Company will amend its Capital
Accumulation Plan to provide that it shall not be permitted to invest in Class A
Common Stock or Class B Common Stock as of the Effective Time.
Acquisition Proposals. The Company has agreed that neither the Company nor
any of its subsidiaries will, and the Company will direct and use all reasonable
efforts to cause the respective officers and directors of
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the Company or its subsidiaries and the employees, agents and representatives of
the Company and its subsidiaries (including, without limitation, any investment
banker, attorney or accountant retained by the Company or any of its
subsidiaries) not to, initiate, solicit or encourage, directly or indirectly,
any inquiries or the making of any proposal or offer (including, without
limitation, any proposal or offer to shareholders of the Company) with respect
to a merger, consolidation or similar transaction involving, or any purchase of
(a) all or any significant portion of the assets of the Company or any of its
significant subsidiaries (American Maize-Products Decatur Inc., American
Maize-Products Dimmit Inc. or Swisher International, Inc.), (b) 25% or more of
the outstanding shares of the Class A Common Stock and/or the Class B Common
Stock of the Company or (c) a majority of the outstanding shares of the capital
stock of the Company's significant subsidiaries (any such proposal or offer, an
"Acquisition Proposal") or, except to the extent legally required for the
discharge by the Company's Board of Directors of its fiduciary duties as advised
by outside counsel to the Company, engage in any negotiations concerning, or
provide any confidential information or data to, or have any discussions with,
any person relating to an Acquisition Proposal, or otherwise facilitate any
effort or attempt to make or implement an Acquisition Proposal or enter into any
agreement or understanding with any other person or entity with the intent to
effect any Acquisition Proposal. The Company will immediately cease and cause to
be terminated any existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any of the foregoing. The Company
will use all reasonable efforts to take all necessary steps to inform the
respective officers and directors of the Company or its subsidiaries and the
employees, agents and representatives of the Company and its subsidiaries of its
obligations pursuant to the Merger Agreement. The Company will promptly notify
EBS if any such inquiries or proposals are received by, any such information is
requested from or any such negotiations or discussions are sought to be
initiated or continued with the Company, will promptly inform EBS of all terms
and conditions thereof and will promptly furnish EBS with copies of any such
written inquiries or proposals. The Company also will promptly request each
person which has prior to the execution of the Merger Agreement executed a
confidentiality agreement in connection with its consideration of acquiring the
Company to return all confidential information heretofore furnished to such
person by or on behalf of the Company. The foregoing does not prohibit the
Company or its Board of Directors from taking and disclosing to the Company's
shareholders a position with respect to a tender offer by a third party pursuant
to Rules 14d-9 and 14e-2 promulgated under the Exchange Act or from making such
disclosure to the Company's shareholders which, as advised by outside counsel to
the Company, is required under applicable law.
Indemnification and Insurance. Pursuant to the Merger Agreement, EBS has
agreed that, from and after the Effective Time, it will indemnify and hold
harmless each present and former director or officer of the Company (in each
case solely in such person's capacity as a director or officer of the Company,
as the case may be), determined as of the Effective Time (the "Indemnified
Parties"), against any costs or expenses (including reasonable attorneys' fees),
judgments, fines, losses, claims, damages or liabilities incurred in connection
with any claim, action, suit, proceeding or investigation, whether civil,
criminal, administrative or investigative, arising out of matters existing or
occurring at or prior to the Effective Time, whether asserted or claimed prior
to, at or after the Effective Time, to the fullest extent that the Company would
have been permitted under applicable law and required under its By-Laws or
pursuant to other agreements, each as in effect on the date of the Merger
Agreement, to indemnify such person (and EBS shall also advance expenses as
incurred to the fullest extent permitted under applicable law and required under
its By-Laws, provided that the person to whom expenses are advanced provides an
undertaking to repay such advances if it is ultimately determined that such
person is not entitled to indemnification); provided that any determination
required to be made with respect to whether an officer's or director's conduct
complies with the standards set forth under Maine law, the Company's Articles of
Incorporation and By-Laws shall be made by independent counsel selected by the
Surviving Corporation.
EBS has agreed to maintain or cause the Surviving Corporation to maintain
the Company's existing officers' and directors' liability insurance policies or
replacement policies covering the same persons and containing terms which are,
in the aggregate, no less advantageous to such persons than such existing
policies ("D&O Insurance") for a period of six years after the Effective Time;
provided, however, that in no event will EBS or the Surviving Corporation be
required to make annual premium payments to obtain such Insurance Coverage in
excess of 150% of the last annual premium paid prior to the date of the Merger
Agreement (the
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"Cap"). EBS has agreed further that if the D&O Insurance cannot be obtained for
an amount less than or equal to the Cap during such six year period, EBS will
use its best efforts to obtain, or cause the Surviving Corporation to obtain, as
much D&O Insurance as can be obtained for the remainder of such period for a
premium not in excess (on an annualized basis) of the Cap.
Termination. The Merger Agreement provides that it may be terminated and
the Merger may be abandoned: (i) by the mutual consent of EBS and the Company,
by action of their respective Boards of Directors at any time prior to the
Effective Time, before or after the approval by holders of Shares; (ii) by
action of the Board of Directors of either EBS or the Company if (a) Sub, or any
EBS Company, shall have terminated the Tender Offer, in accordance with the
terms of the Tender Offer as set forth in the Merger Agreement without
purchasing any Shares pursuant thereto; provided, in the case of termination of
the Merger Agreement by EBS, such termination of the Tender Offer is not in
violation of the terms of the Tender Offer, (b) the Merger shall not have been
consummated by November 30, 1995 whether or not such date is before or after the
approval by holders of Shares (provided such right of termination shall not be
available to any party whose failure to fulfill any obligation under the Merger
Agreement has been the cause or resulted in the failure of the Merger not to
have been consummated by such date), (c) any court of competent jurisdiction has
issued an injunction permanently restraining, enjoining or otherwise prohibiting
the consummation of the Tender Offer or the Merger, which injunction has become
final and nonappealable or (d) the approval of shareholders required by the
Merger Agreement shall not have been obtained at a meeting duly convened
therefor; (iii) by action of the Board of Directors of EBS, at any time prior to
the purchase of Shares pursuant to the Tender Offer, if (a) the Board of
Directors of the Company shall have withdrawn or modified in a manner adverse to
EBS or Sub its approval or recommendation of the Tender Offer, the Merger
Agreement or the Merger or (b) the Board of Directors of the Company, upon
request by EBS, shall fail to reaffirm such approval or recommendation, or shall
have resolved to do any of the foregoing referred to in clause (a) or (b) of
this clause (iii); (iv) by action of the Board of Directors of the Company, at
any time prior to the purchase of Shares pursuant to the Tender Offer, if (a)
EBS or Sub (or another EBS Company) shall have failed to commence the Tender
Offer within the time required by the Merger Agreement, (b) any of the
representations and warranties of EBS or Sub contained in the Merger Agreement
or the Stock Purchase Agreement were untrue or incorrect in any material respect
when made or have since become, and at the time of termination remain, untrue or
incorrect in any material respect, (c) EBS or Sub shall have breached or failed
to perform in any material respect any of its obligations, covenants or
agreements under the Merger Agreement or the Stock Purchase Agreement or any
representation or warranty of EBS or Sub set forth in the Merger Agreement or
the Stock Purchase Agreement shall have been untrue or incorrect when made or
thereafter shall become untrue or incorrect, except where such breach, failure
to perform or lack of truthfulness or correctness has been caused by or results
from a breach by the Company of any of its obligations under the Merger
Agreement or the Stock Purchase Agreement or (d) the Company receives an offer
with respect to an Acquisition Proposal and the Board of Directors of the
Company, in the exercise of its fiduciary duties as advised by outside counsel
to the Company, determines to recommend such Acquisition Proposal to the
Company's shareholders; provided that the Company (x) shall notify EBS and Sub
promptly of receipt of such Acquisition Proposal and (y) shall notify EBS and
Sub promptly of its intention to recommend such Acquisition Proposal to the
Company's shareholders, but in no event shall the notice referred to in clause
(y) be given less than 24 hours prior to the earlier of the public announcement
of such recommendation or the Company's termination of the Merger Agreement.
Termination Fee. The Merger Agreement provides that if (i) the Tender
Offer shall have remained open for the period required pursuant to the terms of
the Merger Agreement, (ii) the Minimum Condition shall not have been satisfied
and the Tender Offer is terminated without the purchase of any Shares
thereunder, (iii) the Company receives an Acquisition Proposal (other than from
one of the EBS Companies) after the date of the Merger Agreement and prior to
the termination thereof and (iv) after the date of the Merger Agreement, but
within one year of the date of the Merger Agreement, any corporation,
partnership, person, other entity or group (as defined in Section 13(d)(3) of
the Exchange Act) other than EBS or Sub or any of their respective subsidiaries
or affiliates shall have become the beneficial owner of more than 50% of the
outstanding shares of each of the Class A Common Stock and the Class B Common
Stock, then the Company, if requested by EBS, shall promptly, but in no event
later than two days after the date of such
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request, pay EBS a fee of 2.5% of the total dollar value of the Tender Offer,
calculated as the product of (x) the number of Shares outstanding as of the date
of the Merger Agreement and (y) the Merger Consideration, which amount shall be
payable in immediately available funds. Such fee will not be payable by the
Company if the Merger Agreement is terminated by the Company due to a breach by
EBS or Sub of its obligations under the Merger Agreement or the Stock Purchase
Agreement. The Company has agreed that if the Company fails to pay promptly the
amount due pursuant to the termination fee provisions, and, in order to obtain
such payment, EBS or Sub commences a suit which results in a judgment against
the Company for the fee pursuant to the termination fee provisions, the Company
shall pay to EBS or Sub its costs and expenses (including attorneys' fees) in
connection with such suit, together with interest on the amount of the fee.
Amendment and Waiver. Subject to the applicable provisions of the MBCA, at
any time prior to the Effective Time, EBS, Sub and the Company may modify or
amend the Merger Agreement, by written agreement executed and delivered by duly
authorized officers of the respective parties. The conditions to the obligations
of EBS, Sub and the Company may be waived by each such party in whole or in part
to the extent permitted by applicable law.
Expenses. Whether or not the Merger is consummated, all expenses incident
to preparing for, entering into and carrying out the Merger Agreement, the
consummation of the Merger and the transactions contemplated by the Stock
Purchase Agreement shall be paid by the party incurring such expenses.
THE STOCK PURCHASE AGREEMENT
Concurrently with the execution of the Merger Agreement, EBS, Sub and the
Company entered into the Stock Purchase Agreement. The following summary of the
Stock Purchase Agreement does not purport to be complete and is qualified in its
entirety by reference to the text of the Stock Purchase Agreement, a copy of
which is filed as an exhibit to the Registration Statement of which this
Prospectus is a part, and is incorporated herein by reference.
The Stock Purchase. Subject to the terms and conditions of the Stock
Purchase Agreement, the Company will sell to Sub and Sub will purchase from the
Company (the "Stock Purchase"), at a price per share equal to the Merger
Consideration, all shares of Class B Common Stock which are authorized but
unissued or held in treasury (an aggregate of 757,943 shares) and which remain
available for purchase following the exercise by the holders of Class B Common
Stock of preemptive rights in connection therewith (the "Available Shares"). The
Stock Purchase is expected to be consummated on the date on which all of the
conditions thereto are fulfilled or waived.
The Rights Offering. The Articles of Incorporation of the Company provide
that the holders of Class B Common Stock have preemptive rights in connection
with the issuance of additional shares of Class B Common Stock, including the
Stock Purchase. Therefore, the Company has filed with the Commission the
Registration Statement of which this Prospectus is a part with respect to the
Offering. The Company has agreed in the Stock Purchase Agreement to mail, not
later than March 10, 1995 (the "Notice Date"), notice of the Company's intent to
conduct the Offering. The Company has further agreed to mail, not later than
five business days after the Registration Statement is declared effective by the
Commission (the "Exercise Date"), a subscription right certificate specifying
the number of shares for which the Rights issued to each Rights Holder are
exercisable along with a copy of the Prospectus of which this Registration
Statement is a part and the other offering materials related to the Offering.
Pursuant to the Stock Purchase Agreement, the period during which Rights Holders
may exercise Rights shall expire at the Termination Time, which is expected to
occur on the day which is the later of (x) 30 days after the Notice Date and (y)
5 days after the Exercise Date. Prior to 10:00 p.m., New York time, on the date
of the Termination Time, the Company is required to notify EBS in writing of the
number of Available Shares remaining for purchase by Sub.
Conditions to the Stock Purchase. The obligations of each of the parties
to consummate the Stock Purchase is conditioned upon the following: (i) the
Tender Offer shall have been successfully completed; (ii) the Registration
Statement shall have been declared effective by the Commission and no stop order
shall have been issued, and no proceeding for such purpose shall have been
initiated or threatened, with respect thereto; (iii) the waiting period
provisions of the HSR Act applicable to the Stock Purchase shall have expired
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or been terminated and all required approvals of the Commission to permit the
Tender Offer and the Offering to be conducted simultaneously shall have been
obtained; (iv) the Offering shall have been completed in conformity with the
Registration Statement, the Company's Articles of Incorporation and By-Laws and
the MBCA; and (v) the correctness of the representations and warranties, and the
performance of all obligations, of EBS and Sub, on the one hand, and the
Company, on the other hand, under the Merger Agreement and the Stock Purchase
Agreement. The obligations of EBS and Sub under the Stock Purchase Agreement are
further conditioned upon the approval for listing on the American Stock Exchange
of the shares of Class B Common Stock offered in the Offering.
Representations and Warranties. The Company makes certain representations
and warranties in the Stock Purchase Agreement relating to, among other things,
its authority to enter into the Stock Purchase Agreement, the issuance of the
offered shares and the Rights, the Registration Statement and certain other
documents relating to the Offering. EBS and Sub make representations and
warranties relating to, among other things, their authority to enter into the
Stock Purchase Agreement and the sufficiency of funds available to consummate
the Stock Purchase.
Indemnification. The Company, EBS and Sub have agreed to indemnify each
other against certain liabilities and expenses relating to the Registration
Statement, including liabilities under the Securities Act of 1933, as amended.
Termination. The Stock Purchase Agreement shall terminate (i) by mutual
consent of the Company, EBS and Sub or (ii) upon the termination of the Merger
Agreement.
RECENT DEVELOPMENTS
On February 23, 1995, Pexco Holdings, Inc., an affiliate of Usaha Tegas
sdn. bhd. ("UTSB"), a Malaysian private investment holding company, forwarded a
letter to William Ziegler, III, Chairman of the Board of the Company, his
sister, Helen Z. Steinkraus, GIH Corp. and the trustees of certain trusts for
the benefit of the Ziegler and Steinkraus families (the "GIH Entities"),
proposing that A.M. Acquisition Corp. ("AMAC"), a wholly-owned subsidiary of
UTSB, acquire all of the Class B Common Stock owned by the GIH Entities at a
purchase price of $44 per share (the "GIH Class B Acquisition"). GIH Corp. owns
approximately 13.4% of the Class A Common Stock and approximately 47.3% of the
Class B Common Stock. Following execution of a definitive agreement for such
purchase, AMAC would agree to propose a merger transaction to the Company
pursuant to which all outstanding shares of the Company's common stock (other
than the Class B shares that are the subject of the GIH Class B Acquisition)
would be converted into the right to receive $40.25 per share in cash. The GIH
Class B Acquisition would be conditioned upon, among other things, the amendment
of the Company's Articles of Incorporation to provide that Section 910 of the
MBCA shall not be applicable to the Company. (Section 910 provides that
following the acquisition by any person of 25% of the voting power, or 25% of
any class of voting stock, of a corporation, the acquiror must offer to purchase
all shares of the corporation's voting stock for "fair value.") The obligations
of all GIH Entities to effect the GIH Class B Acquisition would be conditioned
on the concurrent purchase by AMAC or any affiliate thereof of all shares of
Class A Common Stock owned by the GIH Entities at a price of not less than
$40.25 per share. The UTSB proposal will remain open until the close of business
on March 1, 1995.
On February 24, 1995, Mr. Ziegler forwarded a copy of the UTSB proposal to
the Company's Board of Directors.
PLAN OF DISTRIBUTION
The Company is offering the Rights and the Underlying Shares directly to
its holders of Class B Common Stock.
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DESCRIPTION OF CAPITAL STOCK
The following general summary of the Common Stock and Series Preferred
Stock (as defined below) is qualified in its entirety by reference to the
Company's Restated Articles of Incorporation (the "Charter"), a copy of which is
on file with the Commission (see "Available Information").
COMMON STOCK
American Maize is currently authorized to issue 15,000,000 shares of Class
A Common Stock and 2,500,000 shares of Class B Common Stock. As of February 21,
1995, 8,558,474 shares of Class A Common Stock and 1,742,057 shares of Class B
Common Stock were issued and outstanding and 348,148 shares of Class A Common
Stock and 67,225 shares of Class B Common Stock were held in treasury. As of
February 21, 1995, 570,698 shares of Class A Common Stock were reserved for
issuance upon the exercise of outstanding stock options.
Class A Common Stock and Class B Common Stock are substantially similar,
except as to voting rights. Except as required by the Maine Business
Corporations Act (the "MBCA") or otherwise provided in the Charter, voting power
is vested solely with the holders of shares of the Class B Common Stock. The
holders of Class A Common Stock are entitled only to such limited voting rights
as are described below. The holders of Class A Common Stock are entitled to
elect 30% of the total membership of the American Maize Board of Directors (or
the nearest larger whole number if such percentage is not a whole number), and
the holders of Class B Common Stock are entitled to elect the remaining members
of the American Maize Board of Directors. In addition, holders of Class A Common
Stock and holders of Class B Common Stock are entitled to vote together as a
single class with respect to the following matters: (a) the reservation of any
shares of capital stock of American Maize for options granted or to be granted
to officers, directors or employees of American Maize and (b) the acquisition of
the stock or assets of any other company if (i) any officer, director or holder
of 10% or more of any class of shares of Common Stock has a direct or indirect
interest in the company or assets to be acquired or in the consideration to be
paid in the transaction, (ii) the transaction involves the issuance of Class A
Common Stock or Class B Common Stock or securities convertible into either, or
any combination of the three, and the aggregate number of shares of Common Stock
so issued together with the Class B Common Stock which could be issued upon
conversion of such securities approximates, in the reasonable judgment of the
American Maize Board of Directors, 20% of the aggregate number of shares of
Class A Common Stock and Class B Common Stock outstanding immediately prior to
such transaction or (iii) the transaction involves the issuance of Class A
Common Stock or Class B Common Stock and any additional consideration, and if
the value of the aggregate consideration to be issued has, in the reasonable
judgment of the American Maize Board of Directors, a combined fair value of
approximately 20% or more of the aggregate market value of shares of Class A
Common Stock and Class B Common Stock outstanding immediately prior to such
transaction (each a "Voting Acquisition Transaction"). A separate class vote
consisting of the holders of Class A Common Stock and holders of Class B Common
Stock is required for any Voting Acquisition Transaction involving a merger or
consolidation of American Maize. Each share of Class A Common Stock and Class B
Common Stock is entitled to one vote per share.
Subject to the preferential rights, if any, of holders of any then
outstanding preferred stock, the holders of Class A Common Stock and Class B
Common Stock are entitled to receive dividends when and as declared by the
American Maize Board of Directors out of funds legally available for such
payment. Holders of Class A Common Stock do not have any preemptive rights to
purchase additional shares; however, holders of Class B Common Stock have
preemptive rights with respect to the issuance of Class B Common Stock or
securities convertible into Class B Common Stock. Subject to the preferential
rights of holders of any then outstanding preferred stock, the holders of Class
A Common Stock and Class B Common Stock are entitled to share ratably in the
assets of American Maize available for distribution to stockholders in the event
of American Maize's liquidation, dissolution or winding up.
The transfer agent and registrar for Class A Common Stock and Class B
Common Stock is The Bank of New York, New York, New York.
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SERIES PREFERRED STOCK
The Charter authorizes the American Maize Board of Directors to issue up to
2,500,000 shares of Series Preferred Stock, without par value (the "Series
Preferred Stock"). No shares of Series Preferred Stock are outstanding.
The Series Preferred Stock may be issued in one or more series, from time
to time, with each such series to have the designations, dividend rates, rights
of redemption, conversion rights, voting powers, sinking fund or retirement
provisions, preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions thereof, if any, as
stated and expressed in the resolution or resolutions providing for the issuance
of such series adopted by the American Maize Board of Directors. The Series
Preferred Stock have no preemptive rights to purchase additional shares. The
Series Preferred Stock could have the effect of acting as an anti-takeover
device to prevent a change of control of American Maize.
FEDERAL INCOME TAX CONSEQUENCES
The following summary is a general discussion of the expected Federal
income tax consequences to holders of Class B Common Stock of the issuance,
expiration and exercise of Rights. The summary does not address Federal income
tax consequences of the Offering that may be important to particular classes of
taxpayers subject to special rules, such as banks, insurance companies, dealers,
regulated investment companies and foreign individuals and entities and does not
address possible consequences under any applicable state, local or foreign tax
laws.
HOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS TO DETERMINE THE
PARTICULAR TAX CONSEQUENCES TO THEM OF THE ISSUANCE, EXPIRATION AND EXERCISE OF
RIGHTS.
ISSUANCE OF RIGHTS
For Federal income tax purposes, although not entirely clear, it appears
that the receipt of the Rights will be treated as a dividend to holders of Class
B Common Stock in an amount equal to the fair market value of the Rights on the
date of distribution. If so treated, holders of Class B Common Stock will
recognize taxable dividend income upon receipt of the Rights, and will have a
tax basis in the Rights equal to the fair market value of the Rights on the date
of distribution. It is possible, however, that the distribution of the Rights
may be treated as a nontaxable distribution under Section 305(a) of the Code. If
so treated, no income, gain or loss will be recognized to holders of Class B
Common Stock upon receipt of the Rights, and the tax basis of Rights in the
hands of a Rights Holder will generally be zero, unless (A) the Rights are
exercised and (B) either (i) the fair market value of the Rights on the date of
distribution is 15% or more of the fair market value of the Class B Common Stock
with respect to which they are received or (ii) the Rights Holder elects on the
Federal income tax return for the taxable year in which the Rights are received
to allocate part of the basis of the Rights Holder's Class B Common Stock to the
Rights. In that event, the basis in the Class B Common Stock will be allocated
between the Class B Common Stock and the Rights distributed thereon in
proportion to the fair market values of the Class B Common Stock and the Rights
on the date of distribution.
EXPIRATION OF THE RIGHTS
If the distribution of the Rights is treated as a dividend and the Rights
expire unexercised, Rights Holders generally will recognize loss equal to their
tax basis in the Rights. Such loss will be a capital loss if the Class B Common
Stock to which the Rights relate would have been a capital asset in the hands of
the Rights Holder had the Rights Holder acquired such Class B Common Stock. If
the distribution is not treated as a dividend, no gain or loss will be
recognized to the Rights Holder upon expiration of the Rights and no adjustment
will be made to the Rights Holder's tax basis in the Class B Common Stock.
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EXERCISE OF THE RIGHTS
No gain or loss will be recognized upon the exercise of Rights. The basis
of the Class B Common Stock acquired through exercise of Rights will be equal to
the sum of the Subscription Price paid therefor and the tax basis, if any, of
the Rights determined under the rules discussed above. The holding period for
Class B Common Stock acquired through the exercise of Rights will begin on the
date the Rights are exercised.
LEGAL MATTERS
The legality of the securities offered hereby have been passed upon for the
Company by Verrill & Dana, special Maine counsel to the Company.
EXPERTS
The consolidated financial statements and schedules of the Company as of
December 31, 1993 and 1992 and for each of the years in the three years then
ended December 31, 1993 appearing in the Company's Annual Report (Form 10-K) for
the year ended December 31, 1993, have been audited by Coopers & Lybrand L.L.P.,
independent auditors, as set forth in their reports thereon included therein and
incorporated herein by reference. Such consolidated financial statements and
schedules are incorporated herein by reference in reliance upon such reports
given upon the authority of such firm as experts in accounting and auditing.
32
<PAGE> 34
- ------------------------------------------------------
- ------------------------------------------------------
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN SANCTIONED
OR AUTHORIZED BY THE COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY
JURISDICTION IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
------------------------
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
----
<S> <C>
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
Prospectus Summary.................... 3
Investment Considerations............. 7
The Company........................... 10
Use of Proceeds....................... 11
Price Range of Class B Common Stock
and Dividend Policy................. 11
Dilution.............................. 12
Capitalization........................ 13
Selected Financial Information........ 14
Recent Developments................... 15
The Rights Offering................... 16
The Acquisition....................... 20
Plan of Distribution.................. 29
Description of Capital Stock.......... 30
Federal Income Tax Consequences....... 31
Legal Matters......................... 32
Experts............................... 32
</TABLE>
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
AMERICAN MAIZE-PRODUCTS
COMPANY
CLASS B
COMMON STOCK
PROSPECTUS
Dated , 1995
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE> 35
PART II
Information Not Required in Prospectus
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses of this offering, in connection with the issuance
and distribution of the securities being registered are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee..................... $ 10,454.39
Printing and Engraving Expenses......................................... 5,000.00*
Subscription Agent Fees and Expenses.................................... 10,000.00*
Accounting Fees and Expenses............................................ 60,000.00*
Legal Fees and Expenses................................................. 50,000.00*
Blue Sky Fees and Expenses.............................................. 3,000.00*
American Stock Exchange Listing Fees.................................... 15,158.86
Miscellaneous Expenses.................................................. 6,386.75*
-----------
Total.............................................................. $160,000.00
==========
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 719 of the Maine Business Corporation Act provides that a
corporation may indemnify any person who was or is a party to or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative by reason
of the fact that he
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, trustee,
partner, fiduciary, employee or agent of another corporation, partnership, joint
venture, trust, pension or other employee benefit plan or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in honestly and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation and
its shareholders, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; provided, however, in a
suit by or in the right of the corporation no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
finally adjudicated to be liable to the corporation unless the court in which
such action or suit was brought has determined that, in view of all of the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such amounts as the court shall deem reasonable.
The Company's By-laws contain indemnification provisions substantially
similar to those afforded by the above-noted Section 719 which permit the
Company to extend protection to the full extent authorized thereunder to its
directors and officers and persons serving at the request of the Company as
director, officer, employee or agent of another enterprise by way of indemnity
and advancement of expenses. They set out the standard under which the Company
will indemnify directors and officers, provide for advancement or reimbursement
in such instances of expenses reasonably incurred in defending an action, and
for the extension of indemnity to certain persons other than directors and
officers. It is expressly provided that these provisions are not the exclusive
methods of indemnification.
The Company has purchased insurance policies that provide indemnification
of the Company's officers and directors, with certain exceptions, for liability
arising from their wrongful acts, meaning any breach of duty, neglect, error,
misstatement, misleading statement, omission or act by the directors or officers
of the Company in their respective capacities as such, or any matter claimed
against them solely by reason of their status as directors or officers of the
Company, but does not insure such persons against losses arising from claims
made against such directors or officers for the committing of any criminal or
deliberate fraudulent act,
II-1
<PAGE> 36
for the return of certain unauthorized remuneration, for violations of Section
16(b) of the Securities Exchange Act of 1934, as amended, and similar laws and
certain other matters.
The Company has entered into indemnification agreements with its directors
and certain of its officers pursuant to which the Company has agreed to
indemnify such persons for certain liabilities and expenses.
ITEM 16. EXHIBITS
(a) Exhibits
<TABLE>
<S> <C> <C>
2.1 -- Agreement and Plan of Merger among the Company, Eridania Beghin-Say, S.A. and
Cerestar USA, dated February 22, 1995.
2.2 -- Stock Purchase Agreement between the Company, Eridania Beghin-Say, S.A. and Cerestar
USA, dated February 22, 1995.
* 5.1 -- Opinion of Verrill & Dana
*23.1 -- Consent of Verrill & Dana -- Included in Exhibit 5.1
23.2 -- Consent of Coopers & Lybrand L.L.P.
24.1 -- Power of Attorney - Included on the Signature Page to the Registration Statement
*99.1 -- Form of Subscription Certificate
*99.2 -- Form of Instructions for Subscription Certificates
*99.3 -- Form of Notice of Guaranteed Delivery
*99.4 -- Form of Subscription Agreement
</TABLE>
- ---------------
* To be filed by amendment
ITEM 17. UNDERTAKINGS
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 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.
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 Securities and Exchange 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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus 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.
II-2
<PAGE> 37
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Stamford, State of Connecticut, on the 28th day of
February, 1995.
AMERICAN MAIZE-PRODUCTS COMPANY
By: /s/ EDWARD P. NORRIS
------------------------------------
Edward P. Norris
Vice President and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below under the heading "Signatures" constitutes and appoints Robert M. Stephan
and Edward P. Norris or either of them his true and lawful attorney-in-fact and
agent with full power of substitution and revocation, for him and in his name,
place and stead, in any and all capacities, to sign any or all amendments to
this Registration Statement of which this Prospectus is a part, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent, each acting alone, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully for all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, each acting alone, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement of which this Prospectus is a part has been signed below
by the following persons in the capacities indicated and on the 28th day of
February, 1995.
<TABLE>
<S> <C>
/s/ PATRIC J. MCLAUGHLIN President and Chief Executive Officer and
- ------------------------------------------ Director
Patric J. McLaughlin
/s/ EDWARD P. NORRIS Vice President and Chief Financial Officer
- ------------------------------------------ (Principal Financial and Accounting Officer)
Edward P. Norris
/s/ JAMES E. HARWOOD Director
- ------------------------------------------
James E. Harwood
/s/ JOHN R. KENNEDY Director
- ------------------------------------------
John R. Kennedy
</TABLE>
II-3
<PAGE> 38
<TABLE>
<S> <C>
/s/ C. ALAN MACDONALD Director
- ------------------------------------------
C. Alan MacDonald
/s/ WILLIAM L. RUDKIN Director
- ------------------------------------------
William L. Rudkin
/s/ WENDELL M. SMITH Director
- ------------------------------------------
Wendell M. Smith
/s/ RAYMOND S. TROUBH Director
- ------------------------------------------
Raymond S. Troubh
</TABLE>
II-4
<PAGE> 39
INDEX TO EXHIBIT
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NO. DESCRIPTION PAGE NO.
- ------- ----------------------------------------------------------------------- ----------
<C> <S> <C>
2.1 Agreement and Plan of Merger among the Company, Eridania Beghin-Say,
S.A. and Cerestar USA, dated February 22, 1995.........................
2.2 Stock Purchase Agreement between the Company, Eridania Beghin-Say, S.A.
and Cerestar USA, dated February 22, 1995..............................
* 5.1 Opinion of Verrill & Dana..............................................
*23.1 Consent of Verrill & Dana -- Included in Exhibit 5.1...................
23.2 Consent of Coopers & Lybrand L.L.P.....................................
24.1 Power of Attorney - Included on the Signature Page to the Registration
Statement..............................................................
*99.1 Form of Subscription Certificate.......................................
*99.2 Form of Instructions for Subscription Certificates.....................
*99.3 Form of Notice of Guaranteed Delivery..................................
*99.4 Form of Subscription Agreement.........................................
</TABLE>
- ---------------
* To be filed by amendment
<PAGE> 1
EXHIBIT 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
AMONG
AMERICAN MAIZE-PRODUCTS COMPANY,
ERIDANIA BEGHIN-SAY, S.A.
AND
CERESTAR USA, INC.
DATED AS OF FEBRUARY 22, 1995
<PAGE> 2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of February 22,
1995, among American Maize-Products Company, a Maine corporation (the
"Company"), Eridania Beghin-Say, S.A., a corporation organized under the laws of
France ("Purchaser"), and Cerestar USA, Inc., a Delaware corporation and an
indirect wholly-owned subsidiary of Purchaser ("Merger Sub" and, together with
the Company, the "Constituent Corporations").
RECITALS
WHEREAS, the Boards of Directors of Purchaser and the Company each have
determined that it is in the best interests of their respective shareholders for
Purchaser to acquire the Company upon the terms and subject to the conditions
set forth herein; and
WHEREAS, to induce Purchaser to enter into this Agreement, the Company will
enter into a Stock Purchase Agreement, dated as of the date hereof, with
Purchaser and Merger Sub (the "Stock Purchase Agreement"), pursuant to which the
Company shall agree to undertake a rights offering to its existing holders of
Class B Common Stock (as defined in Section 5.1(a)) of 690,718 authorized but
unissued shares of Class B Common Stock and 67,225 treasury shares of Class B
Common Stock and grant to Purchaser the right to purchase, pursuant to the terms
and conditions set forth in the Stock Purchase Agreement, that number of the
offered shares of Class B Common Stock as are not subscribed to by the existing
holders of Class B Common Stock; and
WHEREAS, the Company, Purchaser and Merger Sub desire to make certain
representations, warranties, covenants and agreements in connection with this
Agreement.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements, contained herein and in
the Stock Purchase Agreement, the parties hereto hereby agree as follows:
ARTICLE I
THE TENDER OFFER
1.1. Tender Offer. (a) Provided that this Agreement shall not have been
terminated in accordance with Article IX hereof, within five business days of
the date hereof, Merger Sub shall commence a tender offer (the "Offer") for any
and all of the outstanding Shares (as defined in Section 5.1(a)) at a price of
$40 in cash per share of common stock of the Company outstanding as of the date
hereof, net to the seller (the "Merger Consideration"). Subject to the terms and
conditions of the Offer, Purchaser shall promptly pay for all Shares duly
tendered that it is obligated to purchase thereunder. The Offer shall expire 20
business days after it is commenced and, if the conditions set forth in Annex A
are satisfied after the scheduled expiration date of the Offer, shall not be
extended without the prior written consent of the Company. If, as of the
scheduled expiration date of the Offer, all of the conditions to the Offer set
forth in Annex A have not been satisfied but are capable, using reasonable
efforts, of being satisfied within 90 days of the commencement of the Offer or,
to the extent permitted by this Agreement, waived by Purchaser or Merger Sub,
Purchaser shall extend the Offer from time to time until the earliest of (i) the
purchase of Shares pursuant to the Offer, (ii) the date which is 90 days from
the commencement of the Offer or (iii) the termination of this Agreement.
Without the prior written consent of the Company, Purchaser shall not (i)
decrease the Merger Consideration, (ii) decrease the number of Shares to be
purchased in the Offer, (iii) change the form of consideration payable in the
Offer, (iv) add to or change the conditions of the Offer set forth in Annex A
hereto, (v) change or waive the Minimum Condition or (vi) make any other change
in the terms or conditions of the Offer which is adverse to the holders of the
Shares. Subject to the fiduciary duties of the Company's Board of Directors as
advised by outside counsel to the Company, the Company's Board of Directors
shall recommend acceptance of the Offer to its shareholders in a
Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9")
to be filed with the Securities and Exchange Commission (the "SEC") upon
commencement of the Offer. On
<PAGE> 3
the date of commencement of the Offer, Purchaser shall file with the SEC a
Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which will
contain the Offer to Purchase, Letter of Transmittal and summary advertisement
(which Schedule 14D-1, Offer to Purchase and other documents, together with any
amendment or supplements thereto, are hereinafter referred to as the "Offer
Documents").
(b) Purchaser agrees, as to the Offer Documents, and the Company agrees, as
to the Schedule 14D-9, that such documents shall, in all material respects,
comply with the requirements of the Securities Exchange Act of 1934 (the
"Exchange Act") and the rules and regulations thereunder and other applicable
laws. The Company and its counsel, as to the Offer Documents, and Merger Sub and
its counsel, as to the Schedule 14D-9, shall be given an opportunity to review
such documents prior to their being filed with the SEC.
(c) In connection with the Offer, the Company shall cause its transfer
agent to furnish promptly to Merger Sub a list, as of a recent date, of the
record holders of Shares and their addresses, as well as mailing labels
containing the names and addresses of all record holders of Shares and lists of
security positions of Shares held in stock depositories. The Company shall
furnish Merger Sub with such additional information (including, but not limited
to, updated lists of holders of Shares and their addresses, mailing labels and
lists of security positions) and such other assistance as Purchaser or Merger
Sub or their agents may reasonably request in communicating the Offer to the
record and beneficial holders of Shares. Subject to the requirements of
applicable law and except for such steps as are necessary to disseminate the
Offer Documents and any other documents necessary to consummate the Offer and
the Merger (as hereinafter defined), Purchaser shall hold in confidence such
lists and other information, shall use such information only in connection with
the Offer and the Merger and, if this Agreement is terminated in accordance with
its terms, shall deliver to the Company all copies of such information (and
extracts or summaries thereof) then in its or its agents' or advisors'
possession.
ARTICLE II
THE MERGER; CLOSING; EFFECTIVE TIME
2.1. The Merger. Subject to the terms and conditions of this Agreement,
at the Effective Time (as defined in Section 2.3) Merger Sub shall be merged
with and into the Company and the separate corporate existence of Merger Sub
shall thereupon cease (the "Merger"). The Company shall be the surviving
corporation in the Merger (sometimes hereinafter referred to as the "Surviving
Corporation") and the separate corporate existence of the Company with all its
rights, privileges, immunities, powers and franchises shall continue unaffected
by the Merger, except as set forth in Section 3.1. The Merger shall have the
effects specified in the Maine Business Corporation Act (the "MBCA").
2.2. Closing. The closing of the Merger (the "Closing") shall take place
(i) at the offices of Sullivan & Cromwell, 125 Broad Street, New York, New York
at 10:00 a.m. on the first business day on which the last to be fulfilled or
waived of the conditions set forth in Article VIII hereof shall be fulfilled or
waived in accordance with this Agreement or (ii) at such other place and time
and/or on such other date as the Company and Purchaser may agree.
2.3. Effective Time. As soon as practicable following the Closing, and
provided that this Agreement has not been terminated or abandoned pursuant to
Article IX hereof, the Company, the Purchaser and Merger Sub shall cause
Articles of Merger (the "Maine Articles of Merger") to be executed and filed
with the Secretary of State of Maine as provided in Section 903 of the MBCA (or,
if permitted, Section 904 of the MBCA) and a Certificate of Merger (the
"Delaware Certificate of Merger") to be executed and filed with the Secretary of
State of Delaware as provided in Section 251 of the Delaware General Corporation
Law ("DGCL") (or if permitted, Section 253 of DGCL). The Merger shall become
effective (the "Effective Time") on the date on which the last of the following
actions shall have been completed: (a) the Maine Articles of Merger have been
duly filed with the Secretary of State of Maine or (b) the Delaware Certificate
of Merger has been duly filed with the Secretary of State of Delaware.
2
<PAGE> 4
ARTICLE III
CERTIFICATE OF INCORPORATION; BY-LAWS
OF THE SURVIVING CORPORATION
3.1. The Certificate of Incorporation. The Certificate of Incorporation
(the "Certificate") of Merger Sub in effect at the Effective Time shall be the
Certificate of the Surviving Corporation, shall be filed with the Secretary of
State of Maine as the Certificate for the Surviving Corporation and shall remain
in effect as such until duly amended in accordance with the terms thereof and
the MBCA.
3.2. The By-Laws. The By-Laws of Merger Sub in effect at the Effective
Time shall be the By-Laws of the Surviving Corporation and shall remain in
effect as such until duly amended in accordance with the terms thereof and the
MBCA.
ARTICLE IV
OFFICERS AND DIRECTORS
OF THE SURVIVING CORPORATION
4.1. Officers and Directors. The directors of Merger Sub and the officers
of the Company at the Effective Time shall, from and after the Effective Time,
be the directors and officers, respectively, of the Surviving Corporation until
their successors have been duly elected or appointed and qualified or until
their earlier death, resignation or removal in accordance with the Surviving
Corporation's Certificate and By-Laws.
4.2. Boards of Directors; Committees. (a) If requested by Purchaser, the
Company shall, subject to compliance with applicable law and promptly following
the purchase by Merger Sub of more than 50 percent of the outstanding shares of
Class A Common Stock (as defined in Section 5.1(a)) and more than 50 percent of
the outstanding shares of Class B Common Stock (as defined in Section 5.1(a))
pursuant to the Offer, the Stock Purchase Agreement or otherwise, take all
actions necessary to cause persons designated by Purchaser to become directors
of the Company so that the total number of such persons equals that number of
directors, rounded up to the next whole number, which represents (i) the product
of (w) the total number of directors on the Board of Directors the shares of
Class A Common Stock are entitled to elect multiplied by (x) the percentage that
the number of shares of Class A Common Stock so accepted for payment plus any
shares of Class A Common Stock beneficially owned by Purchaser or its affiliates
on the date hereof bears to the number of shares of Class A Common Stock
outstanding at the time of such acceptance for payment plus (ii) the product of
(y) the total number of directors on the Board of Directors the shares of Class
B Common Stock are entitled to elect multiplied by (z) the percentage that the
number of shares of Class B Common Stock so accepted for payment plus any shares
of Class B Common Stock beneficially owned by Purchaser or its affiliates on the
date hereof bears to the number of shares of Class B Common Stock outstanding at
the time of such acceptance for payment. In furtherance thereof, the Company
shall increase the size of the Company's Board of Directors, or use its best
efforts to secure the resignation of directors, or both, as is necessary to
permit Purchaser's designees to be elected to the Company's Board of Directors;
provided, however, that prior to the Effective Time, the Company's Board of
Directors shall always have at least two members who are neither officers of
Purchaser or the Company (or any of their respective affiliates) nor designees
of Purchaser (or any of its affiliates), nor shareholders or affiliates of
Purchaser, nor beneficial owners of 5% or more of any class of capital stock of
the Company (or any of their respective affiliates) ("Insiders"). At such time,
the Company, if so requested, will use its best efforts to cause persons
designated by Purchaser to constitute the same percentage of each committee of
such board, each board of directors of each subsidiary of the Company and each
committee of each such board (in each case to the extent of the Company's
ability to elect such persons). The Company's obligations to appoint designees
to the Board of Directors shall be subject to Section 14(f) of the Exchange Act
and Rule 14f-1 thereunder. The Company shall promptly take all actions required
pursuant to such Section and Rule in order to fulfill its obligations under this
Section 4.2 and Purchaser shall provide the Company with all information with
respect to itself and its officers and directors required by such Section and
Rule. The Company shall provide for inclusion in Purchaser's Schedule 14D-1
being mailed to shareholders contemporaneously with the commencement of the
3
<PAGE> 5
Offer such information with respect to the Company and its officers and
directors as is required under such Section and Rule in order to fulfill its
obligations under this Section 4.2.
4.3. Actions by Directors. For purposes of Article IX and Sections 10.3
and 10.4, no action taken by the Board of Directors of the Company prior to the
Merger shall be effective unless such action is approved by the affirmative vote
of at least a majority of the directors of the Company who are not Insiders.
ARTICLE V
CONVERSION OR CANCELLATION OF SHARES IN THE MERGER
5.1. Conversion or Cancellation of Shares. The manner of converting or
cancelling shares of the Company and Merger Sub in the Merger shall be as
follows:
(a) At the Effective Time, each share of the Class A Common Stock of the
Company, par value $0.80 per share (the "Class A Common Stock"), and each share
of the Class B Common Stock of the Company, par value $0.80 per share (the
"Class B Common Stock" and, together with the Class A Common Stock, the
"Shares") issued and outstanding immediately prior to the Effective Time (other
than Shares owned by Purchaser, Merger Sub or any other subsidiary or affiliate
of Purchaser (collectively, the "Purchaser Companies") or Shares which are held
by shareholders ("Dissenting Shareholders") exercising appraisal rights pursuant
to Section 909 of the MBCA) shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into the right to
receive, without interest, an amount in cash equal to the Merger Consideration
or such greater amount which may be paid pursuant to the Offer. All such Shares,
by virtue of the Merger and without any action on the part of the holders
thereof, shall no longer be outstanding and shall be cancelled and retired and
shall cease to exist, and each holder of a certificate representing any such
Shares shall thereafter cease to have any rights with respect to such Shares,
except the right to receive the Merger Consideration for such Shares upon the
surrender of such certificate in accordance with Section 5.2 or the right, if
any, to receive payment from the Surviving Corporation of the "fair value" of
such Shares as determined in accordance with Section 909 of the MBCA.
(b) At the Effective Time, each share of Common Stock, without par value,
of Merger Sub issued and outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part of Merger Sub
or the holders of such shares, be converted into one share of common stock of
the Surviving Corporation.
(c) Immediately prior to the Effective Time, each option or right to
acquire Shares or stock appreciation rights with respect to the Shares ("SARs"),
shall, without any action on the part of the holder thereof, and whether or not
then exercisable, be converted into the right to receive an amount in cash, if
any, equal to the product of (x) the Merger Consideration minus the current
option, acquisition or base price per share of such option or right and (y) the
number of Shares subject to such option or right, payable to the holder thereof
without interest thereon, at the Effective Time of the Merger and such option or
right will be cancelled and retired and shall cease to exist; provided that the
Company shall be entitled to withhold, in accordance with applicable law, from
any such cash payment any amounts required to be withheld under applicable law.
If and to the extent required by the terms of the plans governing such options
or rights or pursuant to the terms of any option or right granted thereunder,
the Company shall use all reasonable efforts to obtain the consent of each
holder of outstanding stock options or rights to the foregoing treatment of such
stock options or rights and to take any other action reasonably necessary to
effectuate the foregoing provisions. The Company shall take all reasonably
necessary action to provide that the Stock Plans shall be terminated as of the
Effective Time.
(d) At the Effective Time, each Share issued and outstanding at the
Effective Time and owned by any of the Purchaser Companies, and each Share
issued and held in the Company's treasury at the Effective Time, shall, by
virtue of the Merger and without any action on the part of the holder thereof,
cease to be outstanding, shall be cancelled and retired without payment of any
consideration therefor and shall cease to exist.
5.2. Payment for Shares. Purchaser shall make available or cause to be
made available to the paying agent appointed by Purchaser with the Company's
prior approval (the "Paying Agent") amounts sufficient in
4
<PAGE> 6
the aggregate to provide all funds necessary for the Paying Agent to make
payments pursuant to Section 5.1(a) hereof to holders of Shares issued and
outstanding immediately prior to the Effective Time. Promptly after the
Effective Time, the Surviving Corporation shall cause to be mailed to each
person who was, at the Effective Time, a holder of record (other than any of the
Purchaser Companies) of issued and
outstanding Shares a form (mutually agreed to by Purchaser and the Company) of
letter of transmittal and instructions for use in effecting the surrender of the
certificates which, immediately prior to the Effective Time, represented any of
such Shares in exchange for payment therefor. Upon surrender to the Paying Agent
of such certificates, together with such letter of transmittal, duly executed
and completed in accordance with the instructions thereto, the Surviving
Corporation shall promptly cause to be paid to the persons entitled thereto a
check in the amount to which such persons are entitled, after giving effect to
any withholdings required under Section 3406 of the Internal Revenue Code of
1986, as amended (the "Code"). No interest will be paid or will accrue on the
amount payable upon the surrender of any such certificate. If payment is to be
made to a person other than the registered holder of the certificate
surrendered, it shall be a condition of such payment that the certificate so
surrendered shall be properly endorsed or otherwise in proper form for transfer
and that the person requesting such payment shall pay any transfer or other
taxes required by reason of the payment to a person other than the registered
holder of the certificate surrendered or establish to the satisfaction of the
Surviving Corporation or the Paying Agent that such tax has been paid or is not
applicable. One hundred and eighty days following the Effective Time, the
Surviving Corporation shall be entitled to cause the Paying Agent to deliver to
it any funds (including any interest received with respect thereto) made
available to the Paying Agent which have not been disbursed to holders of
certificates formerly representing Shares outstanding on the Effective Time, and
thereafter such holders shall be entitled to look to the Surviving Corporation
only as general creditors thereof with respect to the cash payable upon due
surrender of their certificates. Notwithstanding the foregoing, neither the
Paying Agent nor any party hereto shall be liable to any holder of certificates
formerly representing Shares for any amount paid to a public official pursuant
to any applicable abandoned property, escheat or similar law. The Surviving
Corporation shall pay all charges and expenses, including those of the Paying
Agent, in connection with the exchange of cash for Shares and Purchaser shall
reimburse the Surviving Corporation for such charges and expenses.
5.3. Dissenters' Rights. If any Dissenting Shareholder shall be entitled
to be paid the "fair value" of his or her Shares, as provided in Section 909 of
the MBCA, the Company shall give Purchaser prompt notice thereof (and shall also
give Purchaser prompt notice of any withdrawals of such demands) and Purchaser
shall have the right to direct all negotiations and proceedings with respect to
any such demands. Neither the Company nor the Surviving Corporation shall,
except with the prior written consent of Purchaser, voluntarily make any payment
with respect to, or settle or offer to settle, any such demand for payment. If
any Dissenting Shareholder shall fail to perfect or shall have effectively
withdrawn or lost the right to dissent, the Shares held by such Dissenting
Shareholder shall thereupon be treated as though such Shares had been converted
into the Merger Consideration pursuant to Section 5.1.
5.4. Transfer of Shares After the Effective Time. No transfers of Shares
shall be made on the stock transfer books of the Surviving Corporation at or
after the Effective Time.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Representations and Warranties of the Company. The Company hereby
represents and warrants to Purchaser and Merger Sub that:
(a) Corporate Organization and Qualification. Each of the Company and its
subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation and is
in good standing as a foreign corporation in each jurisdiction where the
properties owned, leased or operated, or the business conducted, by it require
such qualification, except for such failure to be so organized, existing or in
good standing, which, when taken together with all other such failures, would
not have a material adverse effect on the financial condition, properties,
business or results of operations of the Company and its subsidiaries taken as a
whole. Each of the Company and its subsidiaries has the corporate
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requisite power and authority to carry on its respective businesses as they are
now being conducted, except where the failure to have such power and authority,
when taken together with all other such failures, would not have a material
adverse effect on the financial condition, properties, business or results of
operations of the Company and its subsidiaries taken as a whole. The Company has
made available to Purchaser a complete and correct copy of the Company's
Restated Articles of Incorporation (the "Articles") and By-Laws, each as amended
to date. The Company's Articles and By-Laws so delivered are in full force and
effect;
(b) Authorized Capital. The authorized capital stock of the Company
consists of 2,500,000 shares of Series Preferred Stock, without par value (the
"Preferred Shares"), 15,000,000 shares of Class A Common Stock, par value $0.80
per share, and 2,500,000 shares of Class B Common Stock, par value $0.80 per
share, of which 8,558,474 shares of Class A Common Stock and 1,742,057 shares of
Class B Common Stock and no Preferred Shares were outstanding, and 345,429
shares of Class A Common Stock and 67,225 shares of Class B Common Stock were
held in treasury, on February 21, 1995. All of the outstanding Shares have been
duly authorized and are validly issued, fully paid and nonassessable. Other than
the shares of Class B Common Stock reserved for issuance pursuant to the Stock
Purchase Agreement, the Company has no Shares or Preferred Shares reserved for
issuance, except that, as of February 21, 1995, there were 570,698 shares of
Class A Common Stock reserved for issuance pursuant to options granted under the
1985 Stock Option Plan, 1986 Stock Option Plan and 1994 Stock Plan
(collectively, the "Stock Plans"). Each of the outstanding shares of capital
stock of each of the Company's subsidiaries is duly authorized, validly issued,
fully paid and nonassessable and owned, either directly or indirectly, by the
Company free and clear of all liens, pledges, security interests, claims or
other encumbrances. Except as set forth above, there are no shares of capital
stock of the Company authorized, issued or outstanding and except as set forth
above and as provided in the Stock Purchase Agreement, there are no preemptive
rights nor any outstanding subscriptions, options, warrants, rights, convertible
or exchangeable securities or other agreements or commitments of any character
of the Company or any of its subsidiaries relating to the issuance of, or any
securities convertible into or exchangeable for, the issued or unissued capital
stock, voting or other securities of the Company or any of its subsidiaries.
Except as set forth in Schedule 6.1(b), there are no outstanding obligations of
the Company or any subsidiary to repurchase, redeem or otherwise acquire any
capital stock or other securities of the Company or any of its subsidiaries, or
to provide funds to, or make any investment in (in the form of a loan, capital
contribution or otherwise), any other person. Except as set forth in Schedule
6.1(b), neither the Company nor any of its subsidiaries has authorized or
outstanding any bonds, debentures, notes or other indebtedness the holders of
which have the right to vote (or convertible or exchangeable into or exercisable
for securities having the right to vote) with the shareholders of the Company or
any of its subsidiaries on any matter. Except as set forth in Schedule 6.1(b),
after the Effective Time the Surviving Corporation will have no obligation to
issue, transfer or sell any Shares or common stock of the Surviving Corporation
pursuant to any Plan (as defined in Section 6.1(h));
(c) Corporate Authority. Subject only to approval of this Agreement by the
affirmative vote of a majority of the voting power of the outstanding shares of
the Class A Common Stock (voting as a class) and the affirmative vote of a
majority of the voting power of the outstanding shares of the Class B Common
Stock (voting as a class), the Company has the requisite corporate power and
authority and has taken all corporate action necessary in order to execute and
deliver this Agreement and the Stock Purchase Agreement and to consummate the
transactions contemplated hereby and thereby. This Agreement and the Stock
Purchase Agreement are valid and binding agreements of the Company enforceable
against the Company in accordance with their terms;
(d) Governmental Filings; No Violations. (i) Other than the filings
provided for in Section 2.3 hereof and Article IV of the Stock Purchase
Agreement, as required under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended (the "HSR Act"), the American Stock Exchange, Environmental
Laws (as defined in Section 6.1(k)) and the Exchange Act or deemed advisable
under Section 721 of Title VII of the Defense Production Act of 1950, as amended
by the Omnibus Trade and Competitiveness Act of 1988 (the "Exon-Florio
Amendment") (collectively, the "Regulatory Filings"), except as set forth in
Schedule 6.1(d), no notices, reports or other filings are required to be made by
the Company with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by the Company from, any
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governmental or regulatory authority, agency, commission or other entity,
domestic or foreign ("Governmental Entity"), in connection with the execution
and delivery of this Agreement and the Stock Purchase Agreement by the Company
and the consummation by the Company of the transactions contemplated hereby and
thereby, the failure to make or obtain any or all of which would have a material
adverse effect on the financial condition, properties, business or results of
operations of the Company and its subsidiaries taken as a whole, or would have a
material adverse effect on the Company's ability to consummate the transactions
contemplated by this Agreement or the Stock Purchase Agreement.
(ii) Except as disclosed in the Company Reports (as defined in Section
6.1(e)), the execution and delivery of this Agreement and the Stock Purchase
Agreement by the Company do not, and the consummation by the Company of the
transactions contemplated hereby and thereby will not, constitute or result in
(w) a breach or violation of, or a default under, the Articles or By-Laws of the
Company or the comparable governing instruments of any of its subsidiaries, (x)
a breach or violation of, a default under any Plan or any grant or award made
under any of the foregoing, (y) a breach or violation of, or a default under,
the acceleration of or the creation of a lien, pledge, security interest or
other encumbrance on assets (with or without the giving of notice or the lapse
of time) pursuant to any provision of any agreement, lease, contract, note,
mortgage, indenture, arrangement or obligation ("Contracts") of the Company or
any of its subsidiaries or any law, rule, ordinance or regulation or judgment,
decree, order, award or governmental or nongovernmental permit or license to
which the Company or any of its subsidiaries is subject or (z) any change in the
rights or obligations of any party under any of the Contracts, except, in the
case of clause (y) or (z) above, for such breaches, violations, defaults,
accelerations or changes that, alone or in the aggregate, would not have a
material adverse effect on the financial condition, properties, business or
results of operations of the Company and its subsidiaries taken as a whole or
that would not have a material adverse effect on the Company's ability to
consummate the transactions contemplated by this Agreement or the Stock Purchase
Agreement;
(e) Company Reports; Financial Statements. The Company has made available
to Purchaser each registration statement, schedule, report, proxy statement or
information statement prepared by it since December 31, 1993, including, without
limitation, (i) the Company's Annual Report on Form 10-K for the year ended
December 31, 1993, (ii) the Company's Quarterly Reports on Form 10-Q for the
periods ended March 30, 1994, June 30, 1994 and September 30, 1994 and (iii) the
Company's Current Reports on Form 8-K dated November 30, 1994 and January 6,
1995, each in the form (including exhibits and any amendments thereto) filed
with the SEC (collectively, the "Company Reports"). As of their respective
dates, the Company Reports did not, and any Company Reports filed with the SEC
subsequent to the date hereof will not, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances in
which they were made, not misleading; provided, however, that the foregoing
shall not apply to the extent that any such untrue statement of a material fact
or omission to state a material fact was made by the Company in reliance upon
and in conformity with written information concerning the Purchaser Companies
furnished to the Company by Purchaser specifically for use in the Company
Reports. Each of the consolidated balance sheets included in or incorporated by
reference into the Company Reports (including the related notes and schedules)
fairly presents the consolidated financial position of the Company and its
subsidiaries as of its date and each of the consolidated statements of income,
shareholders' equity and cash flows and of changes in financial position
included in or incorporated by reference into the Company Reports (including any
related notes and schedules) fairly presents the results of operations, retained
earnings and changes in financial position, as the case may be, of the Company
and its subsidiaries for the periods set forth therein (subject, in the case of
unaudited statements, to normal year-end audit adjustments which will not be
material in amount or effect), in each case in accordance with generally
accepted accounting principles consistently applied during the periods involved,
except as may be noted therein. Other than the Company Reports, the Company has
not filed any other definitive reports or statements with the SEC since December
31, 1993. As soon as practicable after receiving its auditor's opinion with
respect to the Company's financial statements for the year ended December 31,
1994 (the "1994 Financial Statements"), the Company shall make available to
Purchaser a copy of such 1994 Financial Statements (including such auditor's
opinion) and, either simultaneously therewith or as soon thereafter as is
practicable, a copy of the Company's Annual Report on Form 10-K,
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including documents incorporated therein by reference, for the year ended
December 31, 1994 (the "1994 10-K") in substantially the form to be filed with
the SEC;
(f) Absence of Certain Changes. Except as disclosed in the Company Reports
filed with the SEC prior to the date hereof or as set forth in Schedule 6.1(f),
since December 31, 1993, the Company and its subsidiaries have conducted their
respective businesses only in, and have not engaged in any transaction other
than according to, the ordinary and usual course of such businesses (except for
such departures from the ordinary and usual course of such businesses which,
individually or in the aggregate, would not be material to the business of the
Company and its subsidiaries taken as a whole) and there has not been (i) any
material adverse change in the financial condition, properties, business or
results of operations of the Company and its subsidiaries taken as a whole or
any development or combination of developments which is reasonably likely to
result in any such change; (ii) any declaration, setting aside or payment of any
dividend or other distribution with respect to the capital stock of the Company,
other than regular quarterly cash dividends not in excess of $0.17 per Share; or
(iii) any change by the Company in accounting principles or practices, except as
required by generally accepted accounting principles. Since December 31, 1993,
except as provided for herein, as disclosed in the Company Reports filed with
the SEC prior to the date hereof or as set forth in Schedule 6.1(f), and other
than in the ordinary course or as required by law or to maintain the
tax-qualified status of any Plan there has not been any material increase in the
compensation payable or which could become payable by the Company and its
subsidiaries to their officers or key employees, or any amendment of any Plans
which would result in any such increase;
(g) Litigation and Liabilities. Except as disclosed in the Company Reports
filed with the SEC prior to the date hereof or as set forth in Schedule 6.1(g),
there are no (i) civil, criminal or administrative actions, suits, claims,
hearings, investigations or proceedings pending or, to the knowledge of the
management of the Company, threatened against the Company or any of its
subsidiaries or (ii) obligations or liabilities, whether or not accrued,
contingent or otherwise, including, without limitation, those relating to
matters involving any Environmental Law (as defined in Section 6.1(k)), or any
other facts or circumstances of which the management of the Company is aware
that is reasonably likely to result in any claims against or obligations or
liabilities of the Company or any of its subsidiaries, that, alone or in the
aggregate, would have a material adverse effect on the financial condition,
properties, business or results of operations of the Company and its
subsidiaries taken as a whole;
(h) Employee Benefits. (i) Schedule 6.1(h) contains a complete and
accurate list of all existing bonus, deferred compensation, pension, retirement,
profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock
purchase, restricted stock, stock option, severance and welfare benefit plans,
employment or severance agreements and all similar arrangements that are
maintained by the Company or any of its subsidiaries (the "Plans") for the
benefit of any employee or former employee or director or former director of the
Company or any of its subsidiaries (the "Employees"). Except as set forth on
Schedule 6.1(h) or pursuant to collective bargaining agreements or as is
required by law or to maintain tax-qualified status, neither the Company nor any
of its subsidiaries has any formal commitment, whether legally binding or not,
to create any additional Plan or to modify or change any existing Plan that
would provide a material increase in benefits for any Employee.
(ii) Each Plan has been operated and administered in all material respects
in accordance with its terms and with applicable law, including, but not limited
to, the Employment Retirement Income Security Act of 1974, as amended ("ERISA")
and the Code, except for any failures to comply with this provision which, when
taken together with all other failures to comply with this provision, would not
have a material adverse effect on the financial condition, properties, business
or results of operations of the Company and its subsidiaries taken as a whole.
Each Plan which is an "employee pension benefit plan" within the meaning of
Section 3(2) of ERISA (a "Pension Plan") and which is intended to be qualified
under Section 401(a) of the Code has received a favorable determination letter
from the Internal Revenue Service for "TRA" (as defined in Rev. Proc. 93-39),
has filed for such a determination letter or intends to file for such a
determination letter within the time period required by Rev. Proc. 95-12 or an
extension thereof. Except as would not have a material adverse effect on the
financial condition, properties, business or results of operations of the
Company and its subsidiaries taken as a whole, there is no pending or, to the
knowledge of the Company's management,
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threatened legal action, suit or claim relating to the Plans, other than claims
for benefits in the ordinary course of business. Neither the Company nor any of
its subsidiaries has engaged in a transaction with respect to any Plan that,
assuming the taxable period of such transaction expired as of the date hereof,
would subject the Company or any of its subsidiaries to a tax or penalty imposed
by either Section 4975 of the Code or Section 502(i) of ERISA in an amount which
would have a material adverse effect on the financial condition, properties,
business or results of operations of the Company and its subsidiaries taken as a
whole.
(iii) Except as set forth in Schedule 6.1(h), no unsatisfied liability
under Title IV of ERISA has been or, based on actions that have been taken or
that are proposed to be taken, is expected to be incurred by the Company or any
subsidiary with respect to any ongoing, frozen or terminated "single-employer
plan", within the meaning of Section 4001(a)(15) of ERISA, currently or within
the past five years maintained by any of them, or any single-employer plan of
any entity (an "ERISA Affiliate") which is considered one employer with the
Company under Section 4001 of ERISA or Section 414 of the Code, during its
affiliation with the Company (an "ERISA Affiliate Plan"). No notice of a
"reportable event", within the meaning of Section 4043 of ERISA for which the
30-day reporting requirement has not been waived, has been required to be filed
for any Pension Plan or by any ERISA Affiliate Plan within the 12-month period
ending on the date hereof. To the knowledge of the Company's management, the
Pension Benefit Guaranty Corporation (the "PBGC") has not instituted proceedings
to terminate any Pension Plan or ERISA Affiliate Plan and, to the knowledge of
the Company's management, no condition exists that presents a material risk that
such proceedings will be instituted.
(iv) All contributions required to be made under the terms of any Plan or
ERISA Affiliate Plan have been timely made or adequate reserves in respect
thereof have been established on the books of the Company. Neither any Pension
Plan nor any ERISA Affiliate Plan has an "accumulated funding deficiency"
(whether or not waived) within the meaning of Section 412 of the Code or Section
302 of ERISA and all required payments to the PBGC (other than insurance
premiums) with respect to each Pension Plan or ERISA Affiliate Plan have been
made on or before their due dates. Neither the Company nor its subsidiaries has
provided, or is required to provide, security to any Pension Plan or to any
ERISA Affiliate Plan pursuant to Section 401(a)(29) of the Code.
(v) Except as set forth on Schedule 6.1(h), with respect to each Pension
Plan which is a single-employer plan covered under Title IV of ERISA and each
ERISA Affiliate Plan, there has not been an adverse change in the financial
condition of such Plan(s) since the date of the latest actuarial report prepared
for such Plan(s) which would have caused a material change in the funded status
of such Plan(s) from the status as of such date. None of the Company, any of its
subsidiaries or an ERISA Affiliate (during its affiliation with the Company) has
contributed to or been obligated to contribute to a multiemployer plan (within
the meaning of Section 3(37) of ERISA) during the five years preceding the date
hereof.
(vi) All Plans covering foreign Employees comply in all material respects
with applicable local law except for any failures to comply with this provision
which, when taken together with all other failures to comply with this
provision, would not have a material adverse effect on the financial condition,
properties, businesses results of operations of the Company and its subsidiaries
taken as a whole. The Company and its subsidiaries have no material unfunded
liabilities with respect to any Pension Plan which covers foreign Employees.
(vii) With respect to each Plan, the Company has made available to
Purchaser, if applicable, true and complete copies of: (s) all current Plan
documents and all amendments thereto; (t) all current trust instruments and
insurance contracts; (u) the last two Forms 5500 filed with the Internal Revenue
Service; (v) the most recent actuarial report and financial statement; (w) the
most recent summary plan description; (x) any and all forms filed with the PBGC
during the last two years; (y) the most recent determination letter issued by
the Internal Revenue Service; and (z) any Forms 5310 or 5330 filed with the
Internal Revenue Service during the last two years.
(viii) Except as set forth on Schedule 6.1(h), or as contemplated by
Section 5.1(c) hereof or as would otherwise occur notwithstanding whether the
consummation of the transactions contemplated by this Agreement and the Stock
Purchase Agreement constitute a "Change in Control" or other trigger event in
the
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applicable Plan, the consummation of the transactions contemplated by this
Agreement and the Stock Purchase Agreement will not directly (or indirectly upon
a termination of employment): (i) entitle any Employee to severance or
termination pay or (ii) accelerate the timing of any payment or the vesting of
any rights or increase the amount of any compensation due any Employee.
(ix) Except as set forth on Schedule 6.1(h) and other than the transactions
contemplated by Section 5.1(c) hereof, as a direct or indirect result of the
consummation of the transactions contemplated hereby, neither the Company nor
the Purchaser will be obligated to make a payment to an individual that would
not be deductible as a result of the application of Section 280G of the Code;
(i) Brokers and Finders. Neither the Company nor any of its officers,
directors or employees has employed any broker or finder or incurred any
liability for any brokerage fees, commissions or finders fees in connection with
the transactions contemplated herein, except that the Company has employed CS
First Boston Corporation as its financial advisor, the arrangements with which
have been disclosed in writing to Purchaser prior to the date hereof; and CS
First Boston Corporation has delivered to the Board of Directors of the Company
its written opinion that the consideration to be received pursuant to the Offer
and the Merger is fair to the Company's shareholders from a financial point of
view, subject to the assumptions and qualifications set forth in such opinion;
(j) Takeover Statutes. The Board has taken all appropriate and necessary
action to approve the transactions contemplated by this Agreement and the Stock
Purchase Agreement such that the provisions of Section 611-A of the MBCA will
not apply to any of the transactions contemplated by this Agreement or the Stock
Purchase Agreement; to the Company's knowledge, except for Section 910 of the
MBCA, no other "fair price," "moratorium," "control share acquisition" or other
similar antitakeover statute or regulation is applicable to the Company, the
Shares, the Offer, the Merger, this Agreement, the Stock Purchase Agreement or
the transactions contemplated hereby or thereby;
(k) Environmental Matters. Except as disclosed in the Company Reports
filed with the SEC prior to the date hereof and except as set forth in Schedule
6.1(k) and except for such matters that, alone or in the aggregate, would not
have a material adverse effect on the financial condition, properties, business
or results of operations of the Company and its subsidiaries taken as a whole,
to the knowledge of the officers and managers of the Company having oversight of
the Company's compliance with law (i) the Company and its subsidiaries have
complied with all applicable Environmental Laws (as defined herein); (ii) the
properties presently owned or operated by the Company or its subsidiaries
(including, without limitation, soil, groundwater or surface water on or under
the properties, and buildings thereon) (the "Properties") do not contain any
Hazardous Substance (as defined herein) in concentrations exceeding any
applicable remediation standard, action level or written enforcement policy
under any applicable Environmental Law, do not, and, during the ownership or
operation of the Properties by the Company, have not, contained any underground
storage tanks, and do not have any asbestos present (and, during the ownership
or operation of the Properties by the Company, have not had any asbestos removed
therefrom); (iii) the properties formerly owned or operated by the Company or
its subsidiaries (including, without limitation, soil, groundwater or surface
water on or under the properties, and buildings thereon) (the "Former
Properties"), during the period of ownership or operation of such Former
Properties by the Company or any of its Subsidiaries, did not, as a result of
the action or omission of the Company or any of its subsidiaries, contain any
Hazardous Substance in concentrations exceeding any applicable remediation
standard, action level or written enforcement policy under applicable
Environmental law, did not contain any underground storage tanks and did not
have any asbestos present; (iv) neither the Company nor any of its subsidiaries
has received any formal notices, demand letters or request for information from
any Governmental Entity or any third party that the Company may be in violation
of, or liable under, any Environmental Law and none of the Company, its
subsidiaries or the Properties are subject to any court order, administrative
order or decree arising under any Environmental Law; and (v) no Hazardous
Substance has been disposed of, transferred, released or transported by the
Company or any of its subsidiaries from any of the Properties or Former
Properties during the time such Property or Former Property was owned or
operated by the Company or one of its subsidiaries, other than as would not be
expected to result in liability and allowed under applicable Environmental Law
at the time the disposal, transfer, release or
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transportation occurred and other than disposal at commercial or municipal
disposal sites that are not presently listed on the CERCLA National Priorities
List or any equivalent state list.
"Environmental Law" means (i) any Federal, state or local law, statute,
ordinance, rule, regulation, code, license, permit, authorization, approval,
consent, common law, legal doctrine, order, judgment, decree, injunction,
requirement or agreement with any Governmental Entity, relating to (x) the
protection, preservation or restoration of the environment (including, without
limitation, air, water vapor, surface water, groundwater, drinking water supply,
surface land, subsurface land, plant and animal life or any other natural
resource), or to human health or safety, or (y) the exposure to, or the use,
storage, recycling, treatment, generation, transportation, processing, handling,
labeling, production, release or disposal of Hazardous Substances, in each case
as amended and as now in effect. "Hazardous Substance" means any substance
presently listed, defined, designated or classified as hazardous, toxic or
radioactive, or otherwise regulated for its potential adverse effect on the
environment or human health or safety, under any Environmental Law, whether by
type or by quantity, including any substance containing any such substance as a
component;
(l) Intellectual Property. Except as disclosed in the Company Reports
filed with the SEC prior to the date hereof and except as set forth in Schedule
6.1(l), the Company owns, or is licensed to use, all patents, trademarks,
tradenames, service marks, copyrights and any applications therefor, technology,
know-how, computer software programs or applications and tangible or intangible
proprietary information or material that are used or proposed to be used in the
business of the Company and its subsidiaries as currently conducted or proposed
to be conducted (the "Company IP Rights") and all such granted and issued
patents, registered trademarks and copyrights held by the Company or any
subsidiary of the Company are valid, enforceable and subsisting except for such
Company IP Rights the absence of which, individually or in the aggregate, would
not have a material adverse effect on the financial condition, properties,
business or results of operations of the Company and its subsidiaries taken as a
whole. Except as disclosed in the Company Reports filed with the SEC prior to
the date hereof and except as set forth in Schedule 6.1(l), no material claims
with respect to the Company IP Rights have been asserted or, to the knowledge of
management of the Company, are threatened by any person;
(m) Compliance with Laws. Except as disclosed in the Company Reports filed
with the SEC prior to the date hereof or as set forth in Schedule 6.1(m), the
Company and its subsidiaries each has all permits, licenses, certificates of
authority, orders and approvals of, and has made all filings, applications and
registrations with any Governmental Entity that are required in order to permit
it to carry on its business as it is presently conducted and the absence of
which would, individually or in the aggregate, have a material adverse effect on
the financial condition, properties, business or results of operations of the
Company and its subsidiaries taken as a whole; all such permits, licenses,
certificates of authority, orders and approvals are now in full force and
effect, and, to the best knowledge of management of the Company, no suspension
or cancellation of any of them is threatened, in each case except as would not,
individually or in the aggregate, have a material adverse effect on the
financial condition, properties, business or results of operations of the
Company and its subsidiaries taken as a whole;
(n) Taxes. (i) Except as set forth in Schedule 6.1(n), the Company and its
subsidiaries have duly filed all United States federal and foreign tax and
information returns, all state and local income, windfall profits, gross
receipts and franchise tax and information returns, and all state and local
sales, use, excise and real and personal property and other tax returns relating
to the Company and its subsidiaries for all periods for which returns are
required to be filed, except for those returns the failure of which to file
would not have a material adverse effect on the financial condition, properties,
business or results of operations of the Company and its subsidiaries taken as a
whole, and said filed returns are complete and accurate in all material
respects. Except as set forth in Schedule 6.1(n), all federal, state and local
tax returns with respect to income tax withholding and social security and
unemployment taxes relating to the Company and its subsidiaries have been duly
filed by the Company and its subsidiaries for all periods for which returns are
required to be filed, except for those returns the failure of which to file
would not have a material adverse effect on the financial condition, properties,
business or results of operations of the Company and its subsidiaries taken as a
whole, and said filed returns are complete and accurate in all material
respects. Except as set forth in Schedule 6.1(n), the Company and its
subsidiaries have paid or reserved for all Taxes due with respect to all filed
tax returns
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described in the preceding two sentences (the "Tax Returns") and all assessments
received to the extent that such taxes have been due. For all taxable years to
and including the taxable year ending December 31, 1990, all United States
federal income tax returns of the Company and its subsidiaries have been audited
or the period for assessment of taxes in respect of which such federal income
tax returns were required to be filed has expired and all deficiencies assessed
as a result of such audits have been paid and settled. Except as set forth in
Schedule 6.1(n), there are no issues currently pending which have been raised by
the Internal Revenue Service in connection with the examination of any United
States federal income tax returns of the Company and its subsidiaries, except
for issues the resolution of which is not likely to have a material adverse
effect on the financial condition, properties, business or results of operations
of the Company and its subsidiaries taken as a whole. To the best knowledge and
belief of the Company and its subsidiaries, there are no deficiencies or
assessments which have not been paid or settled nor any issues currently pending
which have been raised by any taxing authority in connection with the
examination of any Tax Returns other than United States federal income tax
returns of the Company and its subsidiaries except for deficiencies, assessments
or issues the payment, settlement or resolution of which is not likely to have a
material adverse effect on the financial condition, properties, business or
results of operations of the Company and its subsidiaries taken as a whole;
(o) Labor Matters. To the knowledge of the Company's management, (i) the
business of the Company and its subsidiaries is operating and has been operated
in compliance with applicable laws respecting employment and employment
practices, terms and conditions of employment and wages and hours, including the
Immigration Reform and Control Act ("IRCA"), the Worker Adjustment and
Retraining Notification Act of 1988 ("WARN Act"), any such applicable laws
respecting employment discrimination, equal employment opportunity, affirmative
action, employee privacy, wrongful or unlawful termination, workers'
compensation, occupational safety and health requirements, labor-management
relations and unemployment insurance, except as would not have a material
adverse effect on the financial condition, properties, business or results of
operations of the Company and its subsidiaries taken as a whole; (ii) there is
neither pending nor threatened against the Company or any of its subsidiaries
any labor strike or work stoppage, or any other labor dispute or grievance that
is likely to have a material adverse impact on the financial condition,
properties, business or results of the operation of the Company and its
subsidiaries taken as a whole, and neither the Company nor any of its
subsidiaries has experienced any work stoppage in the past 36 months; and (iii)
except for the contracts, agreements and other arrangements listed in Schedule
6.1(o), neither the Company nor any of its subsidiaries is a party to or
otherwise bound by any contract or other agreement with any labor union or
association representing any Employee; and
(p) Insurance. True and complete copies of all material insurance policies
maintained by the Company have been made available to Purchaser. Such policies
provide coverage for the operations of the Company and its subsidiaries in
amounts and covering such risks as the Company believes is necessary to conduct
its business. Neither the Company nor any of its subsidiaries has received
formal notice that any such policy is invalid or unenforceable.
6.2. Representations and Warranties of Purchaser and Merger
Sub. Purchaser and Merger Sub represent and warrant to the Company that:
(a) Corporate Organization and Qualification. Each of Purchaser and Merger
Sub is a corporation duly organized, validly existing and in good standing under
the laws of its respective jurisdiction of incorporation and is in good standing
as a foreign corporation in each jurisdiction where the properties owned, leased
or operated, or the business conducted, by it require such qualification except
for such failure to so qualify or to be in such good standing, which, when taken
together with all other such failures, would not have a material adverse effect
on the financial condition, properties, business or results of operations of
Purchaser and its subsidiaries, taken as a whole. All of the issued and
outstanding capital stock of Merger Sub is directly or indirectly owned by
Purchaser, free and clear of any liens, mortgages, pledges, charges, claims,
security interests or encumbrances that would, individually or in the aggregate,
have a material adverse effect on the ability of Purchaser or Merger Sub to
consummate the transactions contemplated by this Agreement or the Stock Purchase
Agreement.
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(b) Corporate Authority. Purchaser and Merger Sub each has the requisite
corporate power and authority and has taken all corporate action necessary in
order to execute and deliver this Agreement and the Stock Purchase Agreement and
to consummate the transactions contemplated hereby and thereby. This Agreement
and the Stock Purchase Agreement are valid and binding agreements of Purchaser
and Merger Sub enforceable against Purchaser and Merger Sub in accordance with
their terms.
(c) Governmental Filings; No Violations. (i) Other than the Regulatory
Filings, no notices, reports or other filings are required to be made by
Purchaser and Merger Sub with, nor are any consents, registrations, approvals,
permits or authorizations required to be obtained by Purchaser and Merger Sub
from, any Governmental Entity in connection with the execution and delivery of
this Agreement or the Stock Purchase Agreement by Purchaser and Merger Sub and
the consummation of the transactions contemplated hereby and thereby by
Purchaser and Merger Sub, the failure to make or obtain any or all of which
would have a material adverse effect on the ability of Purchaser or Merger Sub
to consummate the transactions contemplated by this Agreement or the Stock
Purchase Agreement.
(ii) The execution and delivery of this Agreement and the Stock Purchase
Agreement by Purchaser and Merger Sub do not, and the consummation of the
transactions contemplated hereby and thereby will not, constitute or result in
(x) a breach or violation of, or a default under, the Certificate or By-Laws (or
comparable governing instruments) of Purchaser or Merger Sub, (y) a breach or
violation of, a default under, the acceleration of or the creation of a lien,
pledge, security interest or other encumbrance on assets (with or without the
giving of notice or the lapse of time) pursuant to, any provision of any
Contract of Purchaser or Merger Sub or any law, rule, ordinance or regulation or
judgment, decree, order, award or governmental or nongovernmental permit or
license to which Purchaser or Merger Sub is subject or (z) any change in the
rights or obligations of any party under any Contract to which Purchaser or
Merger Sub is a party or is subject, except, in the case of clause (y) or (z)
above, for such breaches, violations, defaults, accelerations or changes that,
alone or in the aggregate, would not have a material adverse effect on the
ability of Purchaser or Merger Sub to consummate the transactions contemplated
by this Agreement or the Stock Purchase Agreement.
(d) Funds. Purchaser has or will have, and shall make available to Merger
Sub, as and when required, the funds necessary to consummate the Offer, the
Merger and the transactions contemplated by the Stock Purchase Agreement in
accordance with the terms hereof and thereof and to satisfy or refinance any
obligations relating to any outstanding indebtedness of the Company the maturity
of which may come due as a result of the Company entering into this Agreement,
the Stock Purchase Agreement and/or the consummation of the Offer or the Merger.
(e) No Material Misstatements. None of the Offer Documents will, on the
date of filing with the SEC or on the date first published, sent or given to
stockholders, as the case may be, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the foregoing
shall not apply to the extent that any such untrue statement of a material fact
or omission to state a material fact was made by Purchaser or Merger Sub in
reliance upon and in conformity with written information concerning the Company
furnished to Purchaser by the Company specifically for use in the Offer
Documents. None of the written information supplied by the Purchaser Companies
specifically for use in the Schedule 14D-9 or in connection with Section 14(f)
of the Exchange Act and Rule 14f-1 thereunder will, on the date of filing with
the SEC or on the date first mailed to stockholders, contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
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ARTICLE VII
COVENANTS
7.1. Interim Operations of the Company. The Company covenants and agrees
that, prior to the date on which a majority of the Company's directors are
Purchaser Insiders (unless Purchaser shall otherwise agree in writing and except
as otherwise contemplated by this Agreement or the Stock Purchase Agreement):
(a) the business of the Company and its subsidiaries shall be
conducted only in the ordinary and usual course and, to the extent
consistent therewith, each of the Company and its subsidiaries shall use
all reasonable efforts to preserve its business organization and goodwill
intact, keep available the services of its officers and employees as a
group and maintain its existing relations with customers, suppliers,
distributors, employees and others having business relationships with it,
in each case in all material respects;
(b) the Company and its subsidiaries shall not (i) sell or pledge or
agree to sell or pledge any stock owned by it in any of its subsidiaries;
(ii) adopt or propose any amendment or change of their respective Articles
or By-Laws; (iii) split, combine or reclassify the outstanding Shares; or
(iv) declare, set aside or pay any dividend payable in cash, stock or
property with respect to the Shares, except for regular quarterly cash
dividends not in excess of $0.17 per Share;
(c) except as set forth in Schedule 7.1(c), neither the Company nor
any of its subsidiaries shall (i) issue, sell, pledge, dispose of or
encumber any additional shares of, or securities convertible or
exchangeable for, or options, warrants, calls, commitments or rights of any
kind to acquire, any shares of its capital stock of any class of the
Company or its subsidiaries or any other property or assets other than, in
the case of the Company, shares of Class B Common Stock issuable pursuant
to the terms of the Stock Purchase Agreement and shares of Class A Common
Stock issuable pursuant to options outstanding on the date hereof under the
Stock Plans; (ii) transfer, lease, license, guarantee, sell, mortgage,
pledge, dispose of or encumber any material assets or incur or modify any
indebtedness or other liability or issue any debt securities or securities
convertible into or exchangeable for debt securities or assume, guarantee,
endorse or otherwise as an accommodation become responsible for the
obligations of any person, in each case other than in the ordinary and
usual course of business and in a manner consistent with past practice;
(iii) acquire directly or indirectly by redemption or otherwise any shares
of the capital stock of the Company; (iv) authorize or make capital
expenditures in excess of $1,000,000 individually; (v) make any acquisition
of assets (other than in the ordinary course of business) or investment in
the stock of any other person or entity; or (vi) merge or consolidate with
any other person;
(d) except as set forth in Schedule 7.1(d), other than in the ordinary
and usual course of business consistent with past practice or pursuant to
obligations imposed by collective bargaining agreements, neither the
Company nor any of its subsidiaries shall increase the compensation payable
or to become payable to its executive officers or employees, enter into any
contract or other binding commitment in respect of any such increase or
grant any severance or termination pay (other than pursuant to a Plan or
policy existing as of the date hereof) to, or enter into any employment or
severance agreement with any director, officer or other employee of the
Company or such subsidiaries, and neither the Company nor any of its
subsidiaries shall establish, adopt, enter into, make any new grants or
awards under or amend, any collective bargaining agreement or Plan, except
as required by applicable law, including any obligation to engage in good
faith collective bargaining, to maintain tax-qualified status or as may be
required by any Plan existing as of the date hereof;
(e) neither the Company nor any of its subsidiaries shall settle or
compromise any material claims or litigation or, except in the ordinary and
usual course of business, modify, amend or terminate any of its material
Contracts or waive, release or assign any material rights or claims, or
make any payment, direct or indirect, of any material liability of the
Company or any subsidiary before the same becomes due and payable in
accordance with its terms;
(f) neither the Company nor any of its subsidiaries shall take any
action, other than reasonable and usual actions in the ordinary course of
business and consistent with past practice with respect to
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accounting policies or procedures (including tax accounting policies and
procedures) and except as may be required by the SEC or the Financial
Accounting Standards Board;
(g) neither the Company nor any of its subsidiaries shall make any
material tax election or permit any material insurance policy naming it as
a beneficiary or a loss payable payee to be cancelled or terminated without
notice to Purchaser, except in the ordinary and usual course of business;
and
(h) neither the Company nor any of its subsidiaries shall authorize or
enter into an agreement to do any of the foregoing.
7.2. Acquisition Proposals. The Company agrees that neither the Company
nor any of its subsidiaries shall, and the Company shall direct and use all
reasonable efforts to cause the respective officers and directors of the Company
or its subsidiaries and the employees, agents and representatives of the Company
and its subsidiaries (including, without limitation, any investment banker,
attorney or accountant retained by the Company or any of its subsidiaries) not
to, initiate, solicit or encourage, directly or indirectly, any inquiries or the
making of any proposal or offer (including, without limitation, any proposal or
offer to shareholders of the Company) with respect to a merger, consolidation or
similar transaction involving, or any purchase of (a) all or any significant
portion of the assets of the Company or any of its significant subsidiaries
listed in clause (c) of this Section 7.2, (b) 25% or more of the outstanding
shares of the Class A Common Stock and/or the Class B Common Stock of the
Company or (c) a majority of the outstanding shares of the capital stock of the
Company's significant subsidiaries (American Maize-Products Decatur Inc.,
American Maize-Products Dimmitt Inc. or Swisher International, Inc.) (any such
proposal or offer being hereinafter referred to as an "Acquisition Proposal")
or, except to the extent legally required for the discharge by the Company's
Board of Directors of its fiduciary duties as advised by outside counsel to the
Company, engage in any negotiations concerning, or provide any confidential
information or data to, or have any discussions with, any person relating to an
Acquisition Proposal, or otherwise facilitate any effort or attempt to make or
implement an Acquisition Proposal or enter into any agreement or understanding
with any other person or entity with the intent to effect any Acquisition
Proposal. The Company shall immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing. The Company shall use all
reasonable efforts to take all necessary steps to inform the individuals or
entities referred to in the first sentence hereof of the obligations undertaken
in this Section 7.2. The Company shall promptly notify Purchaser if any such
inquiries or proposals are received by, any such information is requested from
or any such negotiations or discussions are sought to be initiated or continued
with the Company, shall promptly inform Purchaser of all terms and conditions
thereof and shall promptly furnish Purchaser with copies of any such written
inquiries or proposals. The Company also shall promptly request each person
which has heretofore executed a confidentiality agreement in connection with its
consideration of acquiring the Company to return all confidential information
heretofore furnished to such person by or on behalf of the Company. Nothing
contained in this Section 7.2 shall prohibit the Company or its Board of
Directors from taking and disclosing to the Company's stockholders a position
with respect to a tender offer by a third party pursuant to Rules 14d-9 and
14e-2 promulgated under the Exchange Act or from making such disclosure to the
Company's stockholders which, as advised by outside counsel to the Company, is
required under applicable law.
7.3. Meetings of the Company's Shareholders. Following the consummation
of the Offer, the Company shall take, consistent with applicable law and its
Articles and By-Laws, all action necessary to duly call, give notice of, convene
and hold a meeting of holders of Shares as promptly as practicable to consider
and vote upon the approval of this Agreement and the Merger. Subject to
fiduciary requirements of applicable law, the Board of Directors of the Company
shall recommend such approval and the Company shall take all lawful action to
solicit such approval, and the Company hereby consents to the inclusion in the
Offer of such recommendation. At any such meeting of the Company all of the
Shares then owned by the Purchaser Companies will be voted in favor of this
Agreement; provided, however, that the parties agree to, at the election of
Purchaser, effect the Merger without shareholder action under the procedures
provided for in Section 904 of the MBCA if Purchaser or Merger Sub owns after
the expiration of the Offer at least 90% of the outstanding Shares of each class
of the Company's stock. The Company's proxy or information statement with
respect to such meeting of shareholders (the "Proxy Statement"), at the date
thereof and at the date of
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such meeting, will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that the foregoing shall not apply to the
extent that any such untrue statement of a material fact or omission to state a
material fact was made by the Company in reliance upon and in conformity with
written information concerning the Purchaser Companies furnished to the Company
by Purchaser specifically for use in the Proxy Statement. The Proxy Statement
shall not be filed, and no amendment or supplement to the Proxy Statement shall
be made by the Company, without consultation with Purchaser and its counsel.
None of the written information concerning the Purchaser Companies furnished to
the Company by Purchaser specifically for use in the Proxy Statement, at the
date hereof and at the date of the stockholders' meeting, will include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
7.4. Filings; Other Action. Subject to the terms and conditions herein
provided, the Company and Purchaser (a) shall promptly make their respective
filings and thereafter make any other required submissions under the HSR Act and
other Regulatory Filings with respect to the Offer, the Merger and the
transactions contemplated by the Stock Purchase Agreement; and (b) shall use
their best efforts promptly to take, or cause to be taken, all other action and
do, or cause to be done, all other things necessary, proper or appropriate under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement and the Stock Purchase Agreement as
soon as practicable.
7.5. Access. Upon reasonable notice, the Company shall (and shall cause
each of its subsidiaries to) afford Purchaser's officers, employees, counsel,
accountants and other authorized representatives ("Representatives") access,
during normal business hours throughout the period prior to the Effective Time,
to its employees, properties, books, Contracts and records and, during such
period, the Company shall (and shall cause each of its subsidiaries to) furnish
promptly to Purchaser all information concerning its business, properties and
personnel as Purchaser or its Representatives may reasonably request, provided
that no investigation pursuant to this Section 7.5 shall affect or be deemed to
modify any representation or warranty made by the Company. All requests for
information made pursuant to this Section shall be directed to an executive
officer of the Company or such person as may be designated by any such officer.
Upon any termination of this Agreement, Purchaser shall collect and deliver to
the Company all documents obtained by it or any of its Representatives then in
their possession and any copies thereof. All information obtained by Purchaser
and its Representatives pursuant to this Section 7.5 shall be subject to the
provisions of the confidentiality agreement, dated January 30, 1995, between
Purchaser and the Company (the "Confidentiality Agreement").
7.6. Notification of Certain Matters. (a) The Company shall, as promptly
as practicable, notify Purchaser of:
(i) any formal notice of any default or event that, with notice or
lapse of time or both, would become a default, received by the Company or
any of its subsidiaries subsequent to the date of this Agreement and prior
to the date on which a majority of the Company's Board of Directors are
designees of Purchaser, under any Contract to which the Company or any of
its subsidiaries is a party or is subject, except for defaults under such
Contracts which are, individually or in the aggregate, not material to the
financial condition, properties, business or results of operations of the
Company and its subsidiaries taken as a whole;
(ii) any formal notice of (y) any alleged or actual violation of an
Environmental Law or (z) any other state of affairs or event that, with the
lapse of time, is reasonably likely to become a violation of Environmental
Law, except in each case for violations that are not reasonably likely,
individually or in the aggregate, to have a material adverse effect on the
financial condition, properties, business or results of operations of the
Company and its subsidiaries taken as a whole, received by the Company or
any of its subsidiaries subsequent to the date of this Agreement and prior
to the date on which a majority of the Company's Board of Directors are
designees of Purchaser; and
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(iii) any material adverse change in the financial condition,
properties, business or results of operations of the Company and its
subsidiaries taken as a whole or the occurrence of any event which, so far
as reasonably can be foreseen at the time of its occurrence, would result
in any such change, or any breach of any representation, warranty, covenant
or agreement contained herein, in each case if known by the Company's
management.
(b) Each of the Company and Purchaser shall promptly notify the other party
of:
(i) any notice or other communication from any third party alleging
that the consent of such third party is or may be required in connection
with the transactions contemplated by this Agreement or the Stock Purchase
Agreement;
(ii) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions
contemplated by this Agreement or the Stock Purchase Agreement; and
(iii) any actions, suits, claims, investigations or proceedings
commenced or, to the best of its knowledge threatened against, relating to
or involving or otherwise affecting the Company or any subsidiary which
relate to the consummation of the transactions contemplated by this
Agreement or the Stock Purchase Agreement.
7.7. Publicity. The initial press release shall be a joint press release
and thereafter the Company and Purchaser shall, to the extent possible, consult
with each other prior to issuing any press releases or otherwise making public
statements with respect to the transactions contemplated hereby and prior to
making any filings with any Governmental Entity or with any national securities
exchange with respect thereto.
7.8. Indemnification; Directors' and Officers' Insurance. (a) From and
after the Effective Time, Purchaser agrees that it will indemnify and hold
harmless each present and former director or officer of the Company (in each
case solely in such person's capacity as a director or officer of the Company,
as the case may be), determined as of the Effective Time (the "Indemnified
Parties"), against any costs or expenses (including reasonable attorneys' fees),
judgments, fines, losses, claims, damages or liabilities (collectively, "Costs")
incurred in connection with any claim, action, suit, proceeding or
investigation, whether civil, criminal, administrative or investigative, arising
out of matters existing or occurring at or prior to the Effective Time, whether
asserted or claimed prior to, at or after the Effective Time, to the fullest
extent that the Company would have been permitted under applicable law and
required under its By-Laws or pursuant to other agreements, each as in effect on
the date hereof, to indemnify such person (and Purchaser shall also advance
expenses as incurred to the fullest extent permitted under applicable law and
required under its By-Laws provided that the person to whom expenses are
advanced provides an undertaking to repay such advances if it is ultimately
determined that such person is not entitled to indemnification); provided that
any determination required to be made with respect to whether an officer's or
director's conduct complies with the standards set forth under Maine law, the
Articles and the Company's By-Laws shall be made by independent counsel selected
by the Surviving Corporation.
(b) Any Indemnified Party wishing to claim indemnification under paragraph
(a) of this Section 7.8, upon learning of any such claim, action, suit,
proceeding or investigation, shall promptly notify Purchaser thereof. In the
event of any such claim, action, suit, proceeding or investigation (whether
arising before or after the Effective Time), (i) Purchaser or the Surviving
Corporation shall have the right to assume the defense thereof and Purchaser
shall not be liable to such Indemnified Parties for any legal expenses of other
counsel or any other expenses subsequently incurred by such Indemnified Parties
in connection with the defense thereof, (ii) the Indemnified Parties shall
cooperate in the defense of any such matter and (iii) Purchaser shall not be
liable for any settlement effected without its prior written consent; provided,
however, that any Indemnified Party wishing to claim indemnification under
paragraph (a) of this Section 7.8 shall first demand indemnity from the
Surviving Corporation in accordance with applicable law, the Surviving
Corporation's By-laws and any agreements or contracts by which the Surviving
Corporation is bound or is subject, and shall not make demand on Purchaser
unless and until the Surviving Corporation shall have refused such demand in
whole or in part, but in no event shall this period be longer than 30 days from
the date of such demand; and provided further that Purchaser shall not have any
obligation hereunder to any
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Indemnified Party when and if a court of competent jurisdiction shall ultimately
determine, and such determination shall have become final and nonappealable,
that the indemnification of such Indemnified Party in the manner contemplated
hereby is prohibited by applicable law.
(c) Purchaser shall maintain or cause the Surviving Corporation to maintain
the Company's existing officers' and directors' liability insurance policies or
replacement policies covering the same persons and containing terms which are,
in the aggregate, no less advantageous to such persons than such existing
policies ("D&O Insurance") for a period of six years after the Effective Time;
provided, however, that in no event shall Purchaser or the Surviving Corporation
be required to make annual premium payments to obtain such Insurance Coverage in
excess of 150% of the last annual premium paid prior to the date hereof (the
"Cap"); provided further that if the D&O Insurance cannot be obtained for an
amount less than or equal to the Cap during such six year period, Purchaser
shall use its best efforts to obtain, or cause the Surviving Corporation to
obtain, as much D&O Insurance as can be obtained for the remainder of such
period for a premium not in excess (on an annualized basis) of the Cap.
7.9. Takeover Statute. If any "fair price", "moratorium", "control share
acquisition" or other form of antitakeover statute or regulation shall become
applicable to the transactions contemplated hereby or by the Stock Purchase
Agreement, the Company and the members of the Board of Directors of the Company
shall grant such approvals and take such actions as are reasonably necessary so
that the transactions contemplated hereby or thereby may be consummated as
promptly as practicable on the terms contemplated hereby and otherwise act to
eliminate or minimize the effects of such statute or regulation on the
transactions contemplated hereby and the Company, Purchaser and Merger Sub
shall, without limiting the generality of any of the foregoing, satisfy the
respective obligations imposed on them by virtue of Section 910 of the MBCA.
7.10. Employment Contracts and Employee Benefits. (a) From and after the
Effective Time, Purchaser and the Surviving Corporation shall honor in
accordance with their terms all existing individual employment, severance, early
retirement, deferred compensation, consulting and salary continuation agreements
listed and specifically denoted on Schedule 6.1(h)(B) and (C) between the
Company and any of its subsidiaries and any current or former officer, director,
employee or consultant of the Company or any of its subsidiaries.
(b) From the Effective Time through December 31, 1996, Purchaser shall
cause the Surviving Corporation and its successors to provide the employees of
the Company and its subsidiaries with employee benefit plans and programs (other
than the Stock Option Plans) which in the aggregate are no less favorable in all
material respects than those provided to such employees on the date hereof;
provided, however, that the Surviving Corporation shall not be required to
maintain any specific benefit plans or programs.
(c) With respect to each Plan intended to be qualified under Section 401(a)
of the Code, the Company shall have filed, or cause to be filed, a determination
letter request for TRA prior to the earlier of (i) the Closing Date (if
following March 31, 1995) or (ii) the expiration of the time period required by
Rev. Proc. 95-12 or any extension thereof.
(d) Purchaser shall cause the Surviving Corporation to pay each person
employed at the Company's corporate headquarters in Stamford, Connecticut at the
consummation of the Tender Offer whose employment is terminated by the Surviving
Corporation within one year following such consummation (other than termination
for cause) a lump-sum severance payment upon such termination equal to the
product of (x) one month of such employee's base salary at the time of
termination and (y) the number of full years of service such employee has
accumulated with the Company and the Surviving Corporation, up to a maximum of
12 years of service credit; provided that this Section 7.10(d) shall not apply
to any employee who is eligible to receive a severance payment upon termination
by virtue of such employee's employment contract with the Company and shall be
reduced by any other severance payment due to the employee.
7.11. Investment. Prior to the Effective Time, the Company shall amend
its Capital Accumulation Plan (the "CAP") to provide that it shall not be
permitted to invest in Class A Common Stock or Class B Common Stock as of the
Effective Time.
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ARTICLE VIII
CONDITIONS
8.1. Conditions to Obligations of Purchaser and Merger Sub. The
respective obligations of Purchaser and Merger Sub to consummate the Merger are
subject to the fulfillment of each of the following conditions, any or all of
which may be waived in whole or in part by Purchaser or Merger Sub, as the case
may be, to the extent permitted by applicable law:
(a) Shareholder Approval. This Agreement shall have been duly approved by
the affirmative vote of a majority of the voting power of the outstanding shares
of the Class A Common Stock (voting as a class) and the affirmative vote of a
majority of the voting power of the outstanding shares of the Class B Common
Stock (voting as a class), in accordance with applicable law and the Articles
and By-Laws of the Company, if required by applicable law;
(b) Purchase of Shares. Merger Sub (or one of the Purchaser Companies)
shall have purchased enough Shares pursuant to the Offer and the Stock Purchase
Agreement sufficient to satisfy the Minimum Condition (as defined in Annex A);
provided, however, that this condition shall be deemed satisfied if the
Purchaser Companies shall have failed to purchase Shares pursuant to the Offer
or the Stock Purchase Agreement in violation of the terms thereof;
(c) Governmental and Regulatory Consents. The waiting period applicable to
the consummation of the Merger under the HSR Act shall have expired or been
terminated;
(d) Order. No court or other Governmental Entity of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order (whether temporary,
preliminary or permanent) which is in effect and (x) prohibits consummation of
the transactions contemplated by this Agreement or the Stock Purchase Agreement,
(y) imposes material restrictions on the consummation of the transactions
contemplated by this Agreement or the Stock Purchase Agreement or (z) imposes
material restrictions on the business operations of Purchaser, Merger Sub or the
Company as a result of the transactions contemplated by this Agreement or the
Stock Purchase Agreement, either prior to or subsequent to the Merger; and
(e) Performance of Obligations. The Company shall have performed and
complied in all material respects with all agreements and obligations required
by this Agreement or the Stock Purchase Agreement to be performed or complied
with by it on or prior to the Effective Time, unless (i) Purchaser or Merger Sub
had actual knowledge of such nonperformance or noncompliance at the time of
acceptance of Shares for payment pursuant to the Offer or (ii) such
nonperformance or noncompliance occurs following the appointment or election of
Purchaser Insiders to a majority of the positions on the Company's Board of
Directors.
8.2. Conditions to Obligations of the Company. The obligations of the
Company to consummate the Merger are subject to the fulfillment of each of the
following conditions, any or all of which may be waived in whole or in part by
the Company to the extent permitted by applicable law:
(a) Shareholder Approval. This Agreement shall have been duly approved by
the affirmative vote of a majority of the voting power of the outstanding shares
of the Class A Common Stock (voting together as a class) and the affirmative
vote of a majority of the voting power of the outstanding shares of the Class B
Common Stock (voting as a class), in accordance with applicable law and the
Articles and By-Laws of the Company, if required by applicable law;
(b) Purchase of Shares. Merger Sub (or one of the Purchaser Companies)
shall have purchased enough Shares pursuant to the Offer and the Stock Purchase
Agreement sufficient to satisfy the Minimum Condition;
(c) Governmental and Regulatory Consents. The waiting period applicable to
the consummation of the Merger under the HSR Act shall have expired or been
terminated;
(d) Order. No court or other Governmental Entity of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other
19
<PAGE> 21
order (whether temporary, preliminary or permanent) which is in effect and
prohibits consummation of the transactions contemplated by this Agreement or the
Stock Purchase Agreement in accordance with the terms hereof and thereof; and
(e) Performance of Obligations. Purchaser and Merger Sub shall have
performed and complied in all material respects with all agreements and
obligations required by this Agreement or the Stock Purchase Agreement to be
performed or complied with by them on or prior to the Effective Time, unless the
Company had actual knowledge of such nonperformance or noncompliance at the time
of acceptance of Shares for payment pursuant to the Offer.
ARTICLE IX
TERMINATION
9.1. Termination by Mutual Consent. This Agreement may be terminated and
the Merger may be abandoned at any time prior to the Effective Time, before or
after the approval by holders of Shares, by the mutual consent of Purchaser and
the Company, by action of their respective Boards of Directors.
9.2. Termination by either Purchaser or the Company. This Agreement may
be terminated and the Merger may be abandoned by action of the Board of
Directors of either Purchaser or the Company if (a) Merger Sub, or any Purchaser
Company, shall have terminated the Offer, in accordance with the terms of
Section 1.1(a) without purchasing any Shares pursuant thereto; provided, in the
case of termination of this Agreement by Purchaser, such termination of the
Offer is not in violation of the terms of the Offer, (b) the Merger shall not
have been consummated by November 30, 1995 whether or not such date is before or
after the approval by holders of Shares (provided that the right to terminate
this Agreement under this Section 9.2(b) shall not be available to any party
whose failure to fulfill any obligation under this Agreement has been the cause
or resulted in the failure of the Merger not to have been consummated by such
date), (c) any court of competent jurisdiction has issued an injunction
permanently restraining, enjoining or otherwise prohibiting the consummation of
the Offer or the Merger, which injunction has become final and nonappealable or
(d) the approval of shareholders required by Section 8.1(a) shall not have been
obtained at a meeting duly convened therefor.
9.3. Termination by Purchaser. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the purchase of Shares pursuant to
the Offer, by action of the Board of Directors of Purchaser, if (a) the Board of
Directors of the Company shall have withdrawn or modified in a manner adverse to
Purchaser or Merger Sub its approval or recommendation of the Offer, this
Agreement or the Merger or (b) the Board of Directors of the Company, upon
request by Purchaser, shall fail to reaffirm such approval or recommendation, or
shall have resolved to do any of the foregoing referred to in clause (a) or (b)
hereof.
9.4. Termination by the Company. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the purchase of Shares pursuant to
the Offer, by action of the Board of Directors of the Company, if (a) Purchaser
or Merger Sub (or another Purchaser Company) shall have failed to commence the
Offer within the time required in Section 1.1, (b) any of the representations
and warranties of Purchaser or Merger Sub contained in this Agreement or the
Stock Purchase Agreement were untrue or incorrect in any material respect when
made or have since become, and at the time of termination remain, untrue or
incorrect in any material respect or (c) Purchaser or Merger Sub shall have
breached or failed to perform in any material respect any of its obligations,
covenants or agreements under this Agreement or the Stock Purchase Agreement or
any representation or warranty of Purchaser or Merger Sub set forth in this
Agreement or the Stock Purchase Agreement shall have been untrue or incorrect
when made or thereafter shall become untrue or incorrect, except where such
breach, failure to perform or lack of truthfulness or correctness has been
caused by or results from a breach by the Company of any of its obligations
under this Agreement or the Stock Purchase Agreement; or (d) the Company
receives an offer with respect to an Acquisition Proposal and the Board of
Directors of the Company, in the exercise of its fiduciary duties as advised by
outside counsel to the Company, determines to recommend such Acquisition
Proposal to the
20
<PAGE> 22
Company's stockholders; provided that the Company (i) shall notify Purchaser and
Merger Sub promptly of receipt of such Acquisition Proposal and (ii) shall
notify Purchaser and Merger Sub promptly of its intention to recommend such
Acquisition Proposal to the Company's shareholders, but in no event shall the
notice referred to in clause (ii) be given less than 24 hours prior to the
earlier of the public announcement of such recommendation or the Company's
termination of this Agreement.
9.5. Effect of Termination and Abandonment. (a) In the event of
termination of this Agreement and abandonment of the Merger pursuant to this
Article IX, no party hereto (or any of its directors or officers) shall have any
liability or further obligation to any other party to this Agreement, except as
provided in Section 9.5(b) below and Section 10.2 and except that nothing herein
will relieve any party from liability for any willful breach of this Agreement.
(b) If (i) the Offer shall have remained open for the period required
pursuant to the terms of this Agreement, (ii) the Minimum Condition (as defined
in Annex A) shall not have been satisfied and the Offer is terminated without
the purchase of any Shares thereunder, (iii) the Company receives an Acquisition
Proposal (other than from one of the Purchaser Companies) following the date
hereof and prior to the termination of this Agreement and (iv) after the date
hereof, but within one year of the date hereof, any corporation, partnership,
person, other entity or group (as defined in Section 13(d)(3) of the Exchange
Act) other than Purchaser or Merger Sub or any of their respective subsidiaries
or affiliates shall have become the beneficial owner of more than 50% of the
outstanding shares of each of the Class A Common Stock and the Class B Common
Stock, then the Company, if requested by Purchaser, shall promptly, but in no
event later than two days after the date of such request, pay Purchaser a fee of
2.5% of the total dollar value of the Offer, calculated as the product of (x)
the number of Shares outstanding as of the date hereof and (y) the Merger
Consideration, which amount shall be payable in immediately available funds;
provided, however, that no fee will be payable by the Company hereunder if this
Agreement is terminated by the Company due to a breach by Purchaser or Merger
Sub of its obligations under this Agreement or the Stock Purchase Agreement. The
Company acknowledges that the agreements contained in this Section 9.5(b) are an
integral part of the transactions contemplated in this Agreement and the Stock
Purchase Agreement, and that, without these agreements, Purchaser and Merger Sub
would not enter into this Agreement or the Stock Purchase Agreement;
accordingly, if the Company fails to pay promptly the amount due pursuant to
this Section 9.5(b), and, in order to obtain such payment, Purchaser or Merger
Sub commences a suit which results in a judgment against the Company for the fee
set forth in this paragraph (b), the Company shall pay to Purchaser or Merger
Sub its costs and expenses (including attorneys' fees) in connection with such
suit, together with interest on the amount of the fee at the prime lending rate
for money borrowed as announced from time to time by Citibank, N.A. on the date
such payment was required to be made.
ARTICLE X
MISCELLANEOUS AND GENERAL
10.1. Payment of Expenses. Whether or not the Merger shall be
consummated, each party hereto shall pay its own expenses incident to preparing
for, entering into and carrying out this Agreement, the consummation of the
Merger and the transactions contemplated by the Stock Purchase Agreement.
10.2. Survival. The agreements of the Company, Purchaser and Merger Sub
contained in Sections 5.2 (but only to the extent that such Section expressly
relates to actions to be taken after the Effective Time), 5.3, 5.4, 7.8, 7.9,
7.10 and 10.1 shall survive the consummation of the Merger. The agreements of
the Company, Purchaser and Merger Sub contained in the last two sentences of
Section 7.5, Section 9.5 and Section 10.1 shall survive the termination of this
Agreement. All other representations, warranties, agreements and covenants in
this Agreement shall not survive the consummation of the Merger or the
termination of this Agreement.
10.3. Modification or Amendment. Subject to the applicable provisions of
the MBCA, at any time prior to the Effective Time, the parties hereto may modify
or amend this Agreement, by written agreement executed and delivered by duly
authorized officers of the respective parties.
21
<PAGE> 23
10.4. Waiver of Conditions. The conditions to each of the parties'
obligations to consummate the Merger are for the sole benefit of such party and
may be waived by such party in whole or in part to the extent permitted by
applicable law.
10.5. Counterparts. For the convenience of the parties hereto, this
Agreement may be executed in any number of counterparts, each such counterpart
being deemed to be an original instrument, and all such counterparts shall
together constitute the same agreement.
10.6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maine.
10.7. Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the others shall be in writing and delivered
personally or sent by registered or certified mail, postage prepaid,
(a) If to Purchaser, addressed to Purchaser at:
54, avenue Hoche
75008 Paris, France
Attention: Ing. Luigi Brasca
Telephone: 33-1-40-53-57-10
Telecopier: 33-1-40-53-94-99
With a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Neil T. Anderson
Telephone: (212) 558-3653
Telecopier: (212) 558-3588
(b) If to Merger Sub, addressed to Merger Sub at:
1300 Fort Wayne National Bank Building
Fort Wayne, Indiana 46802
Attention: Andrew C. Harvard
Telephone: (219) 425-5226
Telecopier: (219) 425-5154
With a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Neil T. Anderson
Telephone: (212) 558-3653
Telecopier: (212) 558-3588
(c) If to the Company, addressed to the Company at:
250 Harbor Drive
Stamford, Connecticut 06902
Attention: Robert M. Stephan
Telephone: (203) 356-9000
Telecopier: (203) 324-4675
22
<PAGE> 24
With a copy to:
Dewey Ballantine
1301 Avenue of the Americas
New York, New York 10019-6092
Attention: Morton A. Pierce
Telephone: (212) 259-6640
Telecopier: (212) 259-6333
or to such other persons or addresses as may be designated in writing by the
party to receive such notice.
10.8. Entire Agreement, etc. (a) This Agreement, the Stock Purchase
Agreement and the Confidentiality Agreement (including any exhibits or Annexes
hereto or thereto) (i) constitute the entire agreement, and supersede all other
prior agreements, understandings, representations and warranties both written
and oral, among the parties, with respect to the subject matter hereof and
thereof and (ii) shall not be assignable by operation of law or otherwise and
are not intended to create any obligations to, or rights in respect of, any
persons other than the parties hereto and thereto; provided, however, that
Purchaser may designate, by written notice to the Company, another wholly-owned
direct or indirect subsidiary to be a Constituent Corporation in lieu of Merger
Sub, in the event of which, all references herein to Merger Sub shall be deemed
references to such other subsidiary except that all representations and
warranties made herein with respect to Merger Sub as of the date of this
Agreement shall be deemed representations and warranties made with respect to
such other subsidiary as of the date of such designation.
(b) It is expressly agreed that all of the persons (and their successors
and assigns) who are beneficiaries of Sections 5.1(c) and 7.8 (whether as
individuals or members of a class or group) shall be entitled to enforce such
Sections against Purchaser or the Surviving Corporation and such Sections shall
be binding on all successors and assigns of the Surviving Corporation or of
Purchaser.
10.9. Definition of "Subsidiary". When a reference is made in this
Agreement to a subsidiary of a party, the word "subsidiary" means any
corporation or other organization whether incorporated or unincorporated of
which at least a majority of the securities or interests having by the terms
thereof ordinary voting power to elect at least a majority of the board of
directors or others performing similar functions with respect to such
corporation or other organization is directly or indirectly owned or controlled
by such party or by any one or more of its subsidiaries, or by such party and
one or more of its subsidiaries.
10.10. Obligation of Purchaser. Whenever this Agreement requires Merger
Sub to take any action, such requirement shall be deemed to include an
undertaking on the part of Purchaser to cause Merger Sub to take such action.
10.11. Captions. The Article, Section and paragraph captions herein are
for convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
23
<PAGE> 25
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties hereto on the date first hereinabove
written.
AMERICAN MAIZE-PRODUCTS COMPANY
By:/s/ PATRIC J. MCLAUGHLIN
----------------------------------
Name: Patric J. McLaughlin
Title: President and Chief
Executive Officer
ERIDANIA BEGHIN-SAY, S.A.
By:/s/ ANDREW C. HARVARD
----------------------------------
Name: Andrew C. Harvard
Title: President
CERESTAR USA, INC.
By:/s/ STEFANO MELONI
----------------------------------
Name: Stefano Meloni
Title: Chairman
24
<PAGE> 26
ANNEX A
Certain Conditions of the Offer. Notwithstanding any other provision of
the Offer and provided that Merger Sub shall not be obligated to accept for
payment any Shares until expiration of all applicable waiting periods under the
HSR Act, Merger Sub shall not be required to accept for payment or pay for, or
may delay the acceptance for payment of or payment for, any tendered Shares, or
may, in its sole discretion, subject to Section 1.1 of this Agreement, terminate
or amend the Offer as to any Shares not then paid for if (a) there have not been
validly tendered prior to the expiration of the Offer and not withdrawn (i) a
number of shares of Class A Common Stock which, together with the number of
shares of Class A Common Stock then beneficially owned by Purchaser and its
affiliates, would constitute at least a majority of the outstanding shares of
Class A Common Stock on a fully-diluted basis and (ii) a number of shares of
Class B Common Stock which, together with the number of shares of Class B Common
Stock which the Purchaser or its affiliates have purchased or are then obligated
to purchase under the Stock Purchase Agreement (all conditions to the
obligations of the parties under the Stock Purchase Agreement (other than the
completion of the Offer) having been satisfied) and the number of shares of
Class B Common Stock then beneficially owned by Purchaser and its affiliates,
would constitute at least a majority of the outstanding shares of Class B Common
Stock on a fully-diluted basis (the "Minimum Condition"); or (b) at any time on
or after February 22, 1995, and at or prior to the time of payment for any of
such Shares (whether or not any Shares have theretofore been accepted for
payment pursuant to the Offer), any of the following events shall have occurred
and be continuing:
(i) there shall have occurred (u) any general suspension of, or
limitation on times or prices for, trading in securities on any United
States national securities exchange or over-the-counter market, (v) a
declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States or France, (w) the commencement of a
war, armed hostilities or other international or national calamity directly
or indirectly involving the United States having a material adverse effect
on the functioning of the financial markets in the United States, (x) any
limitation (whether or not mandatory) by any governmental or regulatory
authority, agency, commission or other entity, domestic or foreign
("Governmental Entity"), on, or any other event having a material adverse
effect on, the extension of credit by banks or other lending institutions
in the United States or France, (y) any suspension of, or any material
limitation (whether or not mandatory) on, the currency exchange markets or
the imposition of, or material changes in, any currency or exchange control
laws in the United States or France or (z) in the case of any of the
foregoing existing at the time of the commencement of the Offer, a material
acceleration or worsening thereof; or
(ii) the Company shall have breached or failed to perform in any
material respect any of its obligations, covenants or agreements under this
Agreement or the Stock Purchase Agreement or any representation or warranty
of the Company set forth in this Agreement or the Stock Purchase Agreement
shall have been untrue or incorrect when made or thereafter shall become
untrue or incorrect, except where such breach, failure to perform or lack
of truthfulness or correctness has been caused by or results from a breach
by Purchaser or Merger Sub of any of their obligations under this Agreement
or the Stock Purchase Agreement;
(iii) there shall have been instituted or be pending any action,
litigation or proceeding before any court or governmental, regulatory or
administrative agency, authority or commission, domestic or foreign, which
(a) challenges the acquisition by Purchaser or Merger Sub of the Shares, or
seeks to restrain, materially delay or prohibit the Offer, the Merger, the
Stock Purchase Agreement or other subsequent business combination or seeks
material damages in connection therewith; (b) seeks to prohibit or
materially limit the ownership or operation by Purchaser, Merger Sub or
their affiliates and subsidiaries of any material portion of the business
or assets of the Company (including the business or assets of their
respective affiliates and subsidiaries), taken as a whole or of Purchaser
or Merger Sub (including the business or assets of their respective
affiliates and subsidiaries) taken as a whole, in each case as a result of
the transactions contemplated by this Agreement and the Stock Purchase
Agreement; or (c) seeks to impose material limitations on the ability of
Purchaser or Merger Sub (including the business or assets of their
respective affiliates and subsidiaries) to hold or to exercise full rights
of ownership of the Shares,
1
<PAGE> 27
including without limitation the right to vote any Shares purchased by them
on an equal basis on all matters properly presented to the holders of such
class of Shares; or
(iv) there shall have been any action taken, or any statute, rule,
regulation, order or injunction sought, proposed, enacted, promulgated,
entered, enforced or deemed applicable to the Offer, the Merger or the
Stock Purchase Agreement (other than the application of the waiting period
provisions of the HSR
Act), which would result in any of the consequences referred to in clauses
(a) through (c) of paragraph (iii) above; or
(v) it shall have been publicly disclosed or Purchaser shall have
learned that any person, entity or "group" (as defined in Section 13(d) of
the Exchange Act and the rules promulgated thereunder) shall have become
the beneficial owner (as defined in Section 13(d) of the Exchange Act and
the rules promulgated thereunder) of more than 25% of any class or series
of capital stock of the Company (including any class of the Shares), (other
than acquisitions by persons or groups who have publicly disclosed such
ownership on or prior to February 22, 1995 in a Schedule 13D or 13G (or
amendments thereto on file with the Commission); or
(vi) the Board of Directors of the Company shall have amended,
modified or withdrawn its recommendation of the Offer or the Merger, or
shall have failed to publicly reconfirm such recommendation upon request by
Purchaser or Merger Sub, or shall have endorsed, approved or recommended
any other Acquisition Proposal, or shall have resolved to do any of the
foregoing; or
(vii) the Company and the Purchaser or Merger Sub shall have reached
an agreement or understanding that the Offer be terminated or amended, or
that payment for the Shares be delayed; or
(viii) the Dow Jones Industrial Average (as reported by The Wall
Street Journal) shall have lost 20% or more of the value it had at the date
of this Agreement; or
(ix) any other Regulatory Filings and consents applicable to this
Offer or the Stock Purchase Agreement shall not have been obtained on terms
and conditions reasonably satisfactory to Purchaser or Merger Sub, or if
the Purchaser shall have received notice under the Exon-Florio Amendment
that the Committee on Foreign Investment in the United States has
determined to investigate this Offer or any related transaction;
which in any such case, and regardless of the circumstances (including any
action or inaction by Purchaser or Merger Sub other than a breach by Purchaser
or Merger Sub of this Agreement or the Stock Purchase Agreement) giving rise to
any such conditions, makes it inadvisable to proceed with the Offer and/or with
such acceptance for payment of or payment for Shares.
The foregoing conditions are for the sole benefit of Purchaser and Merger
Sub and may be asserted by Purchaser or Merger Sub regardless of the
circumstances (including any action or inaction by Purchaser or Merger Sub other
than a breach by Purchaser or Merger Sub of this Agreement or the Stock Purchase
Agreement) giving rise to such condition or may be waived by Purchaser or Merger
Sub, in whole or in part at any time and from time to time in its sole
discretion, subject to the terms and conditions of this Agreement. The failure
by Purchaser or Merger Sub at any time to exercise any of the foregoing rights
shall not be deemed a waiver of any such right and each such right shall be
deemed an ongoing right which may be asserted at any time and from time to time.
2
<PAGE> 1
EXHIBIT 2.2
EXECUTION COPY
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement"), made and entered into as
of this 22nd day of February, 1995, by and between American Maize-Products
Company, a Maine corporation (the "Company"), Cerestar USA, Inc., a Delaware
corporation ("Cerestar USA") and Eridania Beghin-Say, S.A., a corporation
organized under the laws of France ("EBS").
W I T N E S S E T H :
WHEREAS, the Company, Cerestar USA, an indirect wholly-owned subsidiary of
EBS, and EBS are entering into an Agreement and Plan of Merger, dated as of the
date hereof (the "Merger Agreement"), which provides, among other things, that
Cerestar USA, on the terms and subject to the conditions thereof, will acquire
the Company by means of a tender offer (the "Offer"), to be followed by a merger
(the
"Merger") in which Cerestar USA will be merged with and into the Company;
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Cerestar USA and EBS have requested that the Company agree to issue
and sell to Cerestar USA up to 757,943 shares of Class B Common Stock, par value
$0.80 per share, of the Company (the "Offered Shares"), at a price of $40 per
share (the "Purchase Price") and upon the terms and subject to the conditions
hereof;
WHEREAS, in order to induce Cerestar USA and EBS to enter into the Merger
Agreement, the Company is willing to agree to issue and sell to Cerestar USA the
Offered Shares at the Purchase Price;
WHEREAS, the Articles of Incorporation of the Company provide that the
holders of issued and outstanding shares of Class B Common Stock are entitled to
preemptive rights;
WHEREAS, in order to satisfy the preemptive rights granted in the Company's
Articles of Incorporation, the Company has agreed to issue to each holder of
Class B Common Stock, on the terms set forth herein, certain nontransferable
rights (the "Rights") to subscribe for and purchase a pro rata portion of the
Offered Shares at the Purchase Price, such transaction generally being herein
referred to as the "Rights Offering"; and
WHEREAS, Cerestar USA desires to purchase from the Company, and the Company
desires to issue and sell to Cerestar USA, on the terms and subject to the
conditions hereof, that number of the Offered Shares remaining available for
issuance upon the expiration of unexercised Rights (the "Available Shares");
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF AVAILABLE SHARES
1.1. Purchase and Sale. Upon the terms and subject to the conditions of
this Agreement, and based on the representations, warranties, covenants and
agreements set forth in this Agreement, at the Closing (as defined in Section
1.3), the Company agrees to issue, sell and deliver to Cerestar USA and Cerestar
USA agrees to purchase, the Available Shares, each of which shall be validly
issued, fully paid and nonassessable and shall be free and clear of all liens,
charges, encumbrances, security interests, options, restrictions, claims or
third-party preemptive rights.
1.2. Consideration. At the Closing, Cerestar USA shall pay to the Company
an aggregate consideration equal to the Purchase Price times the number of
Available Shares (the "Consideration").
1.3. Closing. The closing of the purchase and sale of the Available
Shares (the "Closing") shall take place at the offices of Sullivan & Cromwell,
125 Broad Street, New York, New York on the date on which all
<PAGE> 2
of the conditions set forth in Article III hereof shall be fulfilled or waived
in accordance with the terms of this Agreement and applicable law, or at such
other time and/or on such other date and/or place as the Company and Cerestar
USA may agree. The date and time at which the Closing actually occurs is
referred to as the "Closing Date".
1.4. Closing Deliveries. On the Closing Date, the Company will deliver to
Cerestar USA a certificate or certificates representing the Available Shares to
be issued and sold, along with the certificates contemplated by Sections 3.3(a)
and 3.3(b) hereof, the opinion of counsel contemplated by Section 3.3(d) hereof
and such other closing documents as the Company and Cerestar USA shall
reasonably agree. On the Closing Date, Cerestar USA will deliver to the Company
an amount equal to the Consideration by certified or official bank check, along
with the certificates contemplated by Sections 3.2(b) and 3.3(b) hereof and such
other closing documents as the Company and Cerestar USA shall reasonably agree.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties of the Company. The Company restates
each of the representations and warranties of the Company contained in the
Merger Agreement as though set forth herein in full and further represents and
warrants to Cerestar USA and EBS that:
(a) the execution and delivery of this Agreement by the Company and
the consummation by it of the transactions contemplated hereby have been
duly authorized by the Board of Directors of the Company and this Agreement
has been duly executed and delivered by the Company following such approval
and constitutes a valid and binding obligation of the Company;
(b) the aggregate number of shares of the Company's Class B Common
Stock that will be outstanding after the issuance of the Offered Shares
validly subscribed for through the exercise of Rights and the issuance of
the Available Shares pursuant to the terms of this Agreement shall not
exceed 2,500,000 shares;
(c) the Offered Shares issuable upon exercise of the Rights and the
Available Shares issuable to Cerestar USA pursuant to this Agreement have
been duly and validly authorized for issuance by all necessary corporate
action and such shares, when issued upon payment of the consideration
therefor, will be duly and validly issued, fully paid and nonassessable and
shall be free and clear of all liens, charges, encumbrances, security
interests, options, restrictions, claims or third-party preemptive rights;
(d) the Rights have been duly and validly authorized and, at or prior
to the Exercise Date (as defined in Section 4(g) hereof), will have been
validly issued and will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar
laws relating to creditor's rights or by general equity principles;
(e) each subscription warrant evidencing Rights will be duly and
validly authorized and executed by the Company and will be in substantially
the form included in the Registration Statement (as defined in Section
4(b)), and the Rights and the subscription warrants related thereto will
have substantially the terms set forth in the Prospectus (as defined in
Section 4(b));
(f) the Subscription Agent Agreement (the "Subscription Agent
Agreement"), between the Company and a subscription agent to be appointed,
will be in substantially the form filed as an exhibit to the Registration
Statement; and the Subscription Agent Agreement will have substantially the
terms set forth in the Prospectus; and the Subscription Agent Agreement has
been duly authorized and will be validly executed and delivered by the
Company and, assuming due authorization, execution and delivery by the
Subscription Agent, will constitute the valid and legally binding
obligation of the Company, enforceable against it in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar
laws relating to
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<PAGE> 3
creditor's rights or by general equity principles and except to the extent
that rights to indemnification and contribution thereunder may be limited
by federal or state securities laws or public policy relating thereto;
(g) the descriptions of the Merger Agreement, the Offer and this
Agreement contained in the Prospectus will conform, in all material
respects, to the terms thereof;
(h) at the time the Registration Statement becomes effective, the
Registration Statement will comply in all material respects with the
requirements of the Securities Act of 1933, as amended (the "Securities
Act") and the regulations thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and at the time the Registration Statement becomes effective
and at all times through termination of the Rights Offering, the Prospectus
will not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading;
provided, however, that the foregoing shall not apply to the extent that
any such untrue statement of a material fact or omission to state a
material fact was made in reliance upon and in conformity with written
information furnished to the Company by EBS or Cerestar USA specifically
for use in the Registration Statement or the Prospectus;
(i) the financial statements and any supporting schedules included, or
incorporated by reference, in the Registration Statement present fairly the
financial position of the Company and its consolidated subsidiaries as at
the dates indicated and the results of their operations for the periods
specified, and said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis, except as stated therein, and any supporting schedules included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein.
2.2. Representations and Warranties of Cerestar USA and EBS. Cerestar USA
and EBS restate each of their respective representations and warranties
contained in the Merger Agreement as though set forth herein in full and further
represent and warrant to the Company that:
(a) the execution and delivery of this Agreement by Cerestar USA and
EBS and the consummation by them of the transactions contemplated hereby
have been duly authorized by the respective Boards of Directors of Cerestar
USA and EBS and this Agreement has been duly executed and delivered by
Cerestar USA and EBS following such approvals and constitutes a valid and
binding obligation of Cerestar USA and EBS;
(b) Cerestar USA will acquire the Available Shares for its own account
and not with a view to distribution or resale in any manner which would be
in violation of the Securities Act; and
(c) EBS has readily available, and will make available to Cerestar USA
as and when required, funds in an amount sufficient to satisfy EBS' and
Cerestar USA's obligations hereunder.
ARTICLE III
CONDITIONS TO THE CONSUMMATION OF
THE PURCHASE OF THE AVAILABLE SHARES
3.1. Conditions to the Obligations of the Company and Cerestar USA and
EBS. The respective obligations of the Company, Cerestar USA and EBS to
consummate the transactions contemplated hereby are subject to fulfillment of
each of the following conditions:
(a) Completion of Offer. The Offer shall be successfully completed
immediately prior to the consummation of the purchase of the Available
Shares contemplated by this Agreement upon the satisfaction, or waiver by
Cerestar USA in accordance with the terms of the Merger Agreement, of each
and every condition thereto contained in the Offer to Purchase.
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<PAGE> 4
(b) No Stop Order. The Registration Statement and any post-effective
amendment or supplement thereto shall have been declared effective by the
Commission and no stop order suspending the effectiveness of the
Registration Statement or any amendment or supplement thereto shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission.
(c) Other Governmental and Regulatory Consents. The waiting period
applicable to the consummation of the purchase of the Available Shares
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 shall have
expired or been terminated and all required approvals of the Commission to
permit the Offer and the Rights Offering to be conducted concurrently shall
have been obtained.
(d) Completion of Rights Offering. The Rights Offering shall have
been completed in conformance with all of the requirements related to the
Rights Offering provided in the Registration Statement, the Prospectus, the
Offering Materials (as defined in Section 4(b)), the subscription warrants,
the Articles of Incorporation and By-laws of the Company and the Maine
Business Corporations Act ("MBCA").
3.2. Conditions to Obligations of the Company. The obligations of the
Company to consummate the transactions contemplated hereby are also subject to
the fulfillment or waiver by the Company prior to the Closing Date of each of
the following conditions:
(a) Representations and Warranties. The representations and
warranties of Cerestar USA and EBS set forth in this Agreement shall be
true and correct in all material respects as of the date of this Agreement
and as of the Closing Date as though made on and as of the Closing Date
(except that representations and warranties that by their terms speak as of
the date of this Agreement or some other date shall be true and correct as
of such date), and the Company shall have received a certificate signed by
duly authorized officers of Cerestar USA and EBS to such effect.
(b) Performance of Obligations of Cerestar USA and EBS. Cerestar USA
and EBS shall have performed in all material respects all obligations
required to be performed by them under this Agreement and the Merger
Agreement at or prior to the Closing Date, and the Company shall have
received a certificate signed by duly authorized officers of Cerestar USA
and EBS to such effect.
3.3. Conditions to Obligation of Cerestar USA and EBS. The obligation of
Cerestar USA and EBS to consummate the transactions contemplated hereby are also
subject to the fulfillment or waiver by Cerestar USA and EBS prior to the
Closing Date of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of the Company set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and as of
the Closing Date as though made on and as of the Closing Date (except that
representations and warranties that by their terms speak as of the date of
this Agreement or some other date shall be true and correct as of such
date), and Cerestar USA and EBS shall have received a certificate signed by
a duly authorized officer of the Company to such effect.
(b) Performance of Obligations of the Company. The Company shall have
performed in all material respects all obligations required to be performed
by it under this Agreement and the Merger Agreement at or prior to the
Closing Date, and Cerestar USA and EBS shall have received a certificate
signed by a duly authorized officer of the Company to such effect.
(c) Listing. The Offered Shares shall have been approved for listing
on the American Stock Exchange.
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<PAGE> 5
ARTICLE IV
COVENANTS
4. Rights Offering; Registration of the Offered Shares.
(a) The Company will establish, in conformance with the applicable
provisions of the MBCA and the Articles of Incorporation and By-laws of the
Company, a record date, which date shall not be later than March 4, 1995 (the
"Record Date"), for purposes of determining the holders of record ("Record Date
Holders") of the Company's Class B Common Stock entitled to participate in the
Rights Offering.
(b) Not later than 5 business days after the date of this Agreement, the
Company shall promptly prepare and file with the Commission, subject to
reasonable review and comment by Cerestar USA, a registration statement on Form
S-3 (in substantially the form attached hereto) for the registration under the
Securities Act of the Rights and the Offered Shares. The Company thereafter
shall use all reasonable efforts to cause the registration statement to be
declared effective by the Commission in as timely a manner as possible. The
registration statement in the form in which it becomes effective and the
prospectus on file with the Commission at the time the registration statement
becomes effective, including, in each case, the documents previously filed under
the Exchange Act and the rules and regulations of the Commission thereunder
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act are hereinafter called the "Registration Statement" and the
"Prospectus", respectively, except that if any Prospectus filed by the Company
pursuant to Rule 424(b) of the rules and regulations of the Commission under the
Securities Act differs from the Prospectus, the term "Prospectus" shall refer to
the Rule 424(b) Prospectus from and after the time it is mailed or otherwise
delivered to the Commission for filing. In connection with the Rights Offering,
the Company shall prepare, subject to reasonable review and comment by Cerestar
USA, such related transmittal letters, letters to stockholders, securities
dealers, commercial banks, trust companies and other nominees, subscription
warrants and instructions as to the use of such materials as are necessary to
effectuate the Rights Offering (such documents being hereinafter collectively
referred to as the "Offering Materials").
(c) The Company will mail to each Record Date Holder not later than five
(5) business days after the Record Date (the "Notice Date"), notice of the
Company's intention to conduct the Rights Offering. Such notice shall comply
with the requirements of Section 623 of the MBCA and shall include, without
limitation, a summary description of the procedures by which, and the
anticipated time period during which, the Record Date Holders will be issued
nontransferable subscription warrants evidencing the Rights and will be
permitted to exercise the Rights to acquire Offered Shares.
(d) The Company will promptly prepare and file an application to list the
Offered Shares on the American Stock Exchange and will use all reasonable
efforts to obtain approval of such listing prior to the Exercise Date.
(e) The Company will use all reasonable efforts to cause the Rights and the
Offered Shares to be qualified for offer and sale under the laws of such
jurisdictions of the United States as are required in connection with the Rights
Offering.
(f) The Company will notify Cerestar USA promptly (i) of the effectiveness
of the Registration Statement and any amendment thereto, (ii) of the receipt of
any comments from the Commission on the Registration Statement, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that purpose
or (v) of the enactment, issuance, promulgation, enforcement or entrance of any
Order or the initiation or threatened initiation of any proceeding for that
purpose. The Company will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(g) Not later than five (5) business days after the Registration Statement
is declared effective by the Commission (the "Exercise Date"), the Company shall
mail to each Record Date Holder (i) a subscription
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<PAGE> 6
warrant specifying the number of Offered Shares for which the Rights issued to
such Record Date Holder are exercisable and the Purchase Price, (ii) a copy of
the Prospectus and (iii) the Offering Materials. The Offering Materials shall
provide, inter alia, instructions relating to the exercise of the Rights and
shall state the date on which the period during which Record Date Holders may
exercise Rights shall expire. Such date shall be the later of (x) 30 days after
the Notice Date and (y) 5 days after the Exercise Date (the "Expiration Date").
(h) At the Exercise Date, the Company will notify Cerestar USA of the
mailing of the subscription warrants, the Prospectus and the Offering Materials;
as promptly as practicable following the close of business on each business day
between the Exercise Date and the Expiration Date, the Company will make readily
available to Cerestar USA full information regarding the subscriptions received
on such business day; and as soon as practicable and, in any event, before 10:00
P.M., New York time, on the Expiration Date, the Company will notify in writing
Cerestar USA of the number of Available Shares.
(i) The Company, during the period when the Prospectus is required to be
delivered under the Securities Act, will file promptly all documents required to
be filed by the Company with the Commission pursuant to Section 13 or 14 of the
Exchange Act subsequent to the time the Registration Statement becomes
effective.
(j) Without the written consent of Cerestar USA, the Company will not
extend the Expiration Time or permit any of the other terms or conditions of the
Rights Offering, as described in the Prospectus, to be amended, modified or
terminated in any material respect.
(k) Notwithstanding anything herein to the contrary, the Company shall not
be obligated to perform any of its obligations hereunder to the extent that the
timing or manner of such performance as provided for herein would violate any
applicable rules or regulations of the American Stock Exchange.
ARTICLE V
EXPENSES
The Company agrees with Cerestar USA and EBS that the Company will pay all
expenses incident to (i) the performance of the obligations of the Company under
this Agreement, including the preparation, negotiation, printing and
distribution of the Rights and any related materials, any preliminary
prospectus, the Registration Statement, the Prospectus, the Offering Materials,
and this Agreement, and (ii) the transactions contemplated hereby and by the
Prospectus, including the qualification of the Offered Shares for sale under the
laws of such United States jurisdictions as are required in connection with the
Offering, the filing fee of the National Association of Securities Dealers, Inc.
relating to the Offered Shares and the expenses incurred in distributing the
Prospectus and the Offering Materials.
ARTICLE VI
INDEMNIFICATION
6. Indemnification. (a) The Company agrees to indemnify and hold harmless
Cerestar USA, its officers, directors, employees and agents ("Representatives")
and each person, if any, who controls Cerestar USA within the meaning of Section
15 of the Securities Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue statement
of material fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), including any document
incorporated or deemed to be incorporated by reference into any of such
documents, or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, unless such
untrue statement or omission or
6
<PAGE> 7
such alleged untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Company by EBS or
Cerestar USA herein or otherwise expressly for use in the Registration
Statement (or any amendment thereto) or any such preliminary prospectus or
the Prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue statement
or omission, if such settlement is effected with the written consent of the
Company; and
(iii) against any and all expenses whatsoever (including the
reasonable fees and disbursements of counsel chosen by Cerestar USA)
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental entity or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above.
(b) EBS agrees to indemnify and hold harmless the Company, its officers,
directors, employees and agents and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue statement
of material fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), including any document
incorporated or deemed to be incorporated by reference into any of such
documents, or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, if such untrue
statement or omission or such alleged untrue statement or omission was made
in reliance upon and in conformity with written information furnished to
the Company by EBS or Cerestar USA herein or otherwise expressly for use in
the Registration Statement (or any amendment thereto) or any such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto);
(ii) against any and loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue statement
or omission, if such settlement is effected with the written consent of
EBS; and
(iii) against any and all expenses whatsoever (including the
reasonable fees and disbursements of counsel chosen by the Company)
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental entity or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above.
(c) In case of any notice to an indemnifying party under this indemnity
agreement with respect to any loss, liability, claim, damage or expense with
respect to any claim made against an indemnified party, the indemnifying party
shall be entitled to participate at its own expense in the defense, or if it so
elects within a reasonable time after receipt of such notice, to assume the
defense of any suit brought to enforce any such claim; but if it so elects to
assume the defense, such defense shall be conducted by counsel chosen by it and
approved by Cerestar USA or any person or persons controlling Cerestar USA,
defendant or defendants in any suit so brought in the case of claims covered by
paragraph (a), or the Company in the case of claims covered by paragraph (b), in
each case, which approval shall not be unreasonably withheld. In the event that
the indemnifying party elects to assume the defense of any such suit and retain
such counsel, the indemnified party, defendant or defendants in the suit, shall
bear the fees and expenses of any additional counsel thereafter
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<PAGE> 8
retained by them; provided, however, that the indemnifying party shall have the
right to employ counsel to represent the indemnified party who may be subject to
liability arising out of any action in respect of which indemnity may be sought
against the indemnifying party if, in the reasonable judgment of Cerestar USA's
outside counsel in the case of actions covered by paragraph (a), or the
Company's outside counsel in the case of actions covered by paragraph (b), there
may be a conflict of interest such that multiple representation would violate
the Code of Professional Responsibility or like governing rules, in which event
the fees and expenses of appropriate separate counsel shall be borne by the
indemnifying party.
(d) Each indemnified party shall give prompt notice to the indemnifying
party of any action threatened or commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify the indemnifying
party shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action. In no event shall an indemnifying
party be liable for the fees and expenses of more than one counsel for an
indemnified party in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
ARTICLE VII
TERMINATION
7.1. Termination by Mutual Consent. This Agreement may be terminated at
any time prior to the Closing Date by the mutual consent of the Company,
Cerestar USA and EBS, by action of their respective Boards.
7.2. Termination of Merger Agreement. This Agreement will terminate,
without any action by the Company, Cerestar USA or EBS, upon the termination of
the Merger Agreement pursuant to Article IX thereof.
7.3. No Liability. The Company, Cerestar USA and EBS hereby agree that
any termination of this Agreement pursuant to this Article VII shall be without
liability to each party hereto, provided that such party is at such time not in
material breach of any of the terms of this Agreement.
ARTICLE VIII
MISCELLANEOUS AND GENERAL
8.1. Modification or Amendment. Subject to the applicable provisions of
the MBCA, at any time prior to the termination of this Agreement, the parties
hereto may modify or amend this Agreement, by written agreement executed and
delivered by duly authorized officers of the respective parties.
8.2. Waiver of Conditions. The conditions to each of the parties'
obligations to consummate the transactions contemplated herein are for the sole
benefit of such party and may be waived by such party in whole or in part to the
extent permitted by applicable law.
8.3. Counterparts. For the convenience of the parties hereto, this
Agreement may be executed in any number of counterparts, each such counterpart
being deemed to be an original instrument, and all such counterparts shall
together constitute the same agreement.
8.4. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maine.
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<PAGE> 9
8.5. Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the others shall be in writing and delivered
personally, by registered or certified mail, postage prepaid, or by facsimile
transmission
(a) If to EBS, addressed to EBS at:
54, avenue Hoche
75008 Paris, France
Attention: Ing. Luigi Brasca
Telephone: 33-1-40-53-57-10
Telecopier: 33-1-40-53-94-99
With a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Neil T. Anderson
Telephone: (212) 558-3653
Telecopier: (212) 558-3588
(b) If to Cerestar USA, addressed to Cerestar USA at:
1300 Fort Wayne National Bank Building
Fort Wayne, Indiana 46802
Attention: Andrew C. Harvard
Telephone: (219) 425-5226
Telecopier: (219) 425-5154
With a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Neil T. Anderson
Telephone: (212) 558-3653
Telecopier: (212) 558-3588
(c) If to the Company, addressed to the Company at:
250 Harbor Drive
Stamford, Connecticut 06902
Attention: Robert M. Stephan
Telephone: (203) 356-9000
Telecopier: (203) 324-4675
With a copy to:
Dewey Ballantine
1301 Avenue of the Americas
New York, New York 10019-6092
Attention: Morton A. Pierce
Telephone: (212) 259-6640
Telecopier: (212) 259-6333
or to such other persons or addresses as may be designated in writing by the
party to receive such notice.
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8.6. Entire Agreement, etc. This Agreement, the Merger Agreement and the
Confidentiality Agreement (as defined in the Merger Agreement) (including any
exhibits or Annexes hereto or thereto) (i) constitute the entire agreement, and
supersede all other prior agreements, understandings, representations and
warranties both written and oral, among the parties, with respect to the subject
matter hereof and thereof and (ii) shall not be assignable by operation of law
or otherwise and are not intended to create any obligations to, or rights in
respect of, any persons other than the parties hereto and thereto; provided,
however, that EBS may designate, by written notice to the Company, another
wholly-owned direct or indirect subsidiary in lieu of Cerestar USA, in the event
of which, all references herein to Cerestar USA shall be deemed references to
such other subsidiary except that all representations and warranties made herein
with respect to Cerestar USA as of the date of this Agreement shall be deemed
representations and warranties made with respect to such other subsidiary as of
the date of such designation.
8.7. Definition of "Subsidiary". When a reference is made in this
Agreement to a subsidiary of a party, the word "subsidiary" means any
corporation or other organization whether incorporated or unincorporated of
which at least a majority of the securities or interests having by the terms
thereof ordinary voting power to elect at least a majority of the board of
directors or others performing similar functions with respect to such
corporation or other organization is directly or indirectly owned or controlled
by such party or by any one or more of its subsidiaries, or by such party and
one or more of its subsidiaries.
8.8. Specific Performance. The Company acknowledges that Cerestar USA
will have no adequate remedy at law if the Company fails to perform any of its
obligations under this Agreement. In such event, the Company agrees that
Cerestar USA shall have the right, in addition to any other rights it may have,
to specific performance of this Agreement and that it will not take any action
to impede Cerestar USA's efforts to enforce such right of specific performance.
8.9. Public Announcement. The Company will consult with Cerestar USA
prior to making any public announcement or issuing any press release with
respect to this Agreement or the transactions contemplated hereby and the
Company shall not make any public announcement or issue any press release prior
to such consultation except as may be required by law.
8.10. Time of Essence. The parties hereto acknowledge that time is of the
essence with respect to the performance of their respective obligations provided
under, and the consummation of the transactions contemplated by, this Agreement.
8.11. Captions. The Article, Section and paragraph captions herein are
for convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties hereto on the date first hereinabove
written.
AMERICAN MAIZE-PRODUCTS COMPANY
By: /s/ PATRIC J. MCLAUGHLIN
------------------------------------
Name: Patric J. McLaughlin
Title: President & Chief Executive
Officer
CERESTAR USA, INC.
By: /s/ ANDREW C. HARVARD
------------------------------------
Name: Andrew C. Harvard
Title: President
ERIDANIA BEGHIN-SAY, S.A.
By: /s/ STEFANO MELONI
------------------------------------
Name: Stefano Meloni
Title: Chairman
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Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------
To the Board of Directors and Stockholders of
American Maize-Products Company:
We consent to the incorporation by reference in this registration statement of
American Maize-Products Company on Form S-3 of our report dated February 22,
1994, on our audits of the consolidated financial statements and financial
statement schedules of American Maize-Products Company as of December 31, 1993
and 1992 and for the years ended December 31, 1993, 1992, and 1991, which
report is included in the 1993 Annual Report on Form 10-K of American
Maize-Products Company filed with the Securities and Exchange Commission
pursuant to the Securities Act of 1934. We also consent to the reference to
our Firm under the caption "Experts."
/s/ COOPERS & LYBRAND L.L.P.
Stamford, Connecticut
February 28, 1995
