<PAGE> 1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO
SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
------------------------
AMERICAN MAIZE-PRODUCTS COMPANY
(NAME OF SUBJECT COMPANY)
------------------------
CERESTAR USA, INC.
ERIDANIA BEGHIN-SAY, S.A.
(BIDDERS)
------------------------
CLASS A COMMON STOCK, PAR VALUE $0.80 PER SHARE
(TITLE OF CLASS OF SECURITIES)
027339 20 9
(CUSIP NUMBER OF CLASS OF SECURITIES)
------------------------
CLASS B COMMON STOCK, PAR VALUE $0.80 PER SHARE
(TITLE OF CLASS OF SECURITIES)
027339 30 8
(CUSIP NUMBER OF CLASS OF SECURITIES)
------------------------
ANDREW C. HARVARD
PRESIDENT
CERESTAR USA, INC.
C/O CENTRAL SOYA COMPANY INC.
1300 FORT WAYNE NATIONAL BANK BUILDING
FORT WAYNE, INDIANA 46802
------------------------
COPY TO:
NEIL T. ANDERSON
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 558-3653
(NAME, ADDRESS, AND TELEPHONE NUMBERS OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER)
CALCULATION OF FILING FEE
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
- --------------------------------------------------------------------------------
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
- --------------------------------------------------------------------------------------------
$465,166,880 $93,033.38
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
* For the purpose of calculating the filing fee only. This calculation assumes
the purchase of (i) 8,558,474 shares of Class A Common Stock, par value $0.80
per share (the "Class A Common Stock"), issued and outstanding as of February
21, 1995, according to American Maize-Products Company (the "Company"), (ii)
1,742,057 shares of Class B Common Stock, par value $0.80 per share (the
"Class B Common Stock"), issued and outstanding as of February 21, 1995,
according to the Company, (iii) 570,698 shares of Class A Common Stock
reserved for issuance pursuant to options granted under the Company's 1985
and 1986 Stock Option Plans and 1994 Stock Plan as of February 21, 1995,
according to the Company, and (iv) 690,718 authorized but unissued and 67,225
treasury shares of Class B Common Stock that may be issued by the Company
pursuant to the Stock Purchase Agreement filed as Exhibit (c)(2) hereto.
** 1/50 of 1% of the transaction valuation.
/ / Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the form
or schedule and the date of its filing.
<TABLE>
<S> <C>
Amount previously paid: Not applicable Filing party: Not applicable
Form or registration number: Not
applicable Date filed: Not applicable
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is American Maize-Products Company, a
Maine corporation (the "Company"), and the address of its principal executive
offices is 250 Harbor Drive, Stamford, Connecticut 06902.
(b) The class of securities to which this statement relates is the Class A
Common Stock, par value $0.80 per share (the "Class A Common Stock"), and the
Class B Common Stock, par value $0.80 per share (the "Class B Common Stock" and,
together with the Class A Common Stock, the "Shares"), of the Company. The
information set forth in the Introductory Section and Section 1 of the Offer to
Purchase ("Offer to Purchase") annexed hereto as Exhibit 1 is incorporated
herein by reference.
(c) The information set forth in Section 6 of the Offer to Purchase is
incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(d); (g) The information set forth in Section 9 of the Offer to
Purchase is incorporated herein by reference. The name, business address,
present principal occupation or employment, the material occupations, positions,
offices or employments for the past five years and citizenship of each director
and executive officer of each of Cerestar USA, Inc., a Delaware corporation
("Purchaser"), which is an indirect wholly-owned subsidiary of Eridania
Beghin-Say, S.A., a French corporation ("Offeror"), 50.78% of the capital stock
of which is owned by Montedison SpA, an Italian corporation ("Montedison"), and
the name, principal business and address of any corporation or other
organization in which such occupations, positions, offices and employments are
or were carried on are set forth in Schedule A to the Offer to Purchase and
incorporated herein by reference.
(e); (f) During the last five years, none of the Purchaser, the Offeror or
Montedison, nor, to the best of Offeror's knowledge, any of the directors or
executive officers of the Purchaser, the Offeror or the Montedison has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which any such
person was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting activities subject to, federal or state securities
laws or finding any violation of such law.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a) Not applicable.
(b) The information set forth in the Introductory Section and Sections 10
and 11 of the Offer to Purchase is incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a)-(b) The information set forth in Section 12 of the Offer to Purchase is
incorporated herein by reference.
(c) Not applicable.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
(a)-(g) The information set forth in the Introductory Section and Sections
7 and 11 of the Offer to Purchase is incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a)-(b) The information set forth in the Introduction, Sections 9 and 10 of
the Offer to Purchase is incorporated herein by reference.
1
<PAGE> 3
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES.
The information set forth in the Introductory Section and Sections 9, 10
and 11 of the Offer to Purchase is incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in Section 15 of the Offer to Purchase is
incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
The information set forth in Section 9 of the Offer to Purchase is
incorporated herein by reference.
ITEM 10. ADDITIONAL INFORMATION.
(a) Not applicable.
(b)-(c) The information set forth in Section 14 of the Offer to Purchase is
incorporated herein by reference.
(d) Not applicable.
(e) The information set forth in Section 14 of the Offer to Purchase is
incorporated herein by reference.
(f) Not applicable.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) Offer to Purchase, dated February 28, 1995.
(a)(2) Letter of Transmittal with respect to the Shares.
(a)(3) Letter, dated February 28, 1995, to brokers, dealers, commercial
banks, trust companies and nominees.
(a)(4) Form of letter to be sent by brokers, dealers, commercial banks,
trust companies and nominees to their clients.
(a)(5) Press Release, dated February 28, 1995.
(a)(6) Form of newspaper advertisement, dated February 28, 1995.
(a)(7) Notice of Guaranteed Delivery.
(a)(8) IRS Guidelines to Substitute Form W-9.
(c)(1) Merger Agreement, dated as of February 22, 1995, among the Company,
Offeror and the Purchaser.
(c)(2) Stock Purchase Agreement, dated as of February 22, 1995, among the
Company, Offeror and Purchaser.
2
<PAGE> 4
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
ERIDANIA BEGHIN-SAY, S.A.
By: /s/ STEFANO MELONI
-----------------------------
Name: Stefano Meloni
Title: Chairman
CERESTAR USA, INC.
By: /s/ ANDREW C. HARVARD
-----------------------------
Name: Andrew C. Harvard
Title: President
Dated: February 28, 1995
3
<PAGE> 5
INDEX TO EXHIBIT
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NO. DESCRIPTION PAGE NO.
- ------- ----------------------------------------------------------------------- ----------
<S> <C> <C>
(a)(1) Offer to Purchase, dated February 28, 1995.
(a)(2) Letter of Transmittal with respect to the Shares.
(a)(3) Letter, dated February 28, 1995, to brokers, dealers, commercial banks,
trust companies and nominees.
(a)(4) Form of letter to be sent by brokers, dealers, commercial banks, trust
companies and nominees to their clients.
(a)(5) Press Release, dated February 28, 1995.
(a)(6) Form of newspaper advertisement, dated February 28, 1995.
(a)(7) Notice of Guaranteed Delivery.
(a)(8) IRS Guidelines to Substitute Form W-9.
(c)(1) Merger Agreement, dated as of February 22, 1995, among the Company,
Offeror and the Purchaser.
(c)(2) Stock Purchase Agreement, dated as of February 22, 1995, among the
Company, Offeror and Purchaser.
</TABLE>
<PAGE> 1
Exhibit (a)(1)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
AMERICAN MAIZE-PRODUCTS COMPANY
AT
$40.00 NET PER SHARE
BY
CERESTAR USA, INC.,
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
ERIDANIA BEGHIN-SAY, S.A.
(A CORPORATION ORGANIZED UNDER THE LAWS OF FRANCE)
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON MONDAY, MARCH 27, 1995 UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING 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 ERIDANIA BEGHIN-SAY, S.A. 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 ERIDANIA
BEGHIN-SAY, S.A. AND ITS AFFILIATES HAVE PURCHASED OR ARE THEN OBLIGATED TO
PURCHASE UNDER THE STOCK PURCHASE AGREEMENT, DATED AS OF FEBRUARY 22, 1995,
AMONG AMERICAN MAIZE-PRODUCTS COMPANY, ERIDANIA BEGHIN-SAY AND CERESTAR USA,
INC. (AS DESCRIBED MORE FULLY HEREIN) (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 ERIDANIA BEGHIN-SAY AND ITS AFFILIATES, WOULD
CONSTITUTE AT LEAST A MAJORITY OF THE OUTSTANDING SHARES OF CLASS B COMMON STOCK
ON A FULLY DILUTED BASIS.
THE BOARD OF DIRECTORS OF AMERICAN MAIZE-PRODUCTS COMPANY HAS DETERMINED THAT
THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE
SHAREHOLDERS OF AMERICAN MAIZE-PRODUCTS COMPANY. THE BOARD OF DIRECTORS HAS
APPROVED THE OFFER AND THE MERGER AGREEMENT AND RECOMMENDS THAT THE SHAREHOLDERS
OF AMERICAN MAIZE-PRODUCTS COMPANY ACCEPT THE OFFER AND TENDER ALL THEIR SHARES
PURSUANT TO THE OFFER.
------------------------
IMPORTANT
Any shareholder desiring to tender all or any portion of his or her Shares
should either (1) complete and sign the Letter of Transmittal or a facsimile
thereof in accordance with the instructions in the Letter of Transmittal, and
mail or deliver the Letter of Transmittal or such facsimile with his or her
certificate(s) for the tendered Shares and any other required documents to the
Depositary, or follow the procedure for book-entry tender of Shares set forth in
Section 3, or (2) request his or her broker, dealer, commercial bank, trust
company or other nominee to effect the transaction for him or her. Shareholders
having Shares registered in the name of a broker, dealer, commercial bank, trust
company or other nominee are urged to contact such broker, dealer, commercial
bank, trust company or other nominee if they desire to tender Shares so
registered.
A shareholder who desires to tender Shares and whose certificates for such
Shares are not immediately available, or who cannot comply with the procedure
for book-entry transfer on a timely basis, may tender such Shares by following
the procedures for guaranteed delivery set forth in Section 3.
Questions and requests for assistance may be directed to the Information
Agent or to the Dealer Manager at their respective addresses and telephone
numbers set forth on the back cover of this Offer to Purchase. Requests for
additional copies of this Offer to Purchase and the Letter of Transmittal may be
directed to the Information Agent or to brokers, dealers, commercial banks or
trust companies.
------------------------
The Dealer Manager for the Offer is:
LAZARD FRERES & CO.
February 28, 1995
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
Introduction....................................................................... 1
1. Terms of the Offer........................................................... 2
2. Acceptance for Payment and Payment for Shares................................ 4
3. Procedure for Accepting the Offer and Tendering of Shares.................... 5
4. Rights of Withdrawal......................................................... 7
5. Certain Federal Income Tax Consequences of the Offer......................... 7
6. Price Range of Shares; Dividends............................................. 8
7. Effect of the Offer on Market for the Shares, Stock Exchange Listing and 9
Exchange Act Registration..................................................
8. Certain Information Concerning the Company................................... 10
9. Certain Information Concerning the Purchaser, Eridania Beghin-Say and 14
Montedison.................................................................
10. Background of the Offer; Contacts with the Company and Certain of its 16
Shareholders...............................................................
11. Purpose of the Offer; Plans for the Company; the Merger Agreement; the Stock 22
Purchase Agreement; Appraisal Rights.......................................
12. Source and Amount of Funds................................................... 28
13. Certain Conditions of the Offer.............................................. 28
14. Certain Legal Matters........................................................ 30
15. Fees and Expenses............................................................ 34
16. Miscellaneous................................................................ 34
Schedule A -- Directors and Executive Officers of the Purchaser, Eridania
Beghin-Say and Montedison........................................................ A-1
</TABLE>
i
<PAGE> 3
To the Holders of Shares of Common Stock
of American Maize-Products Company:
INTRODUCTION
Cerestar USA, Inc., a Delaware corporation (the "Purchaser") and an
indirect wholly-owned subsidiary of Eridania Beghin-Say, S.A., a corporation
organized under the laws of France ("Eridania Beghin-Say"), hereby offers to
purchase all of the outstanding shares of Class A Common Stock, par value $0.80
per share (the "Class A Common Stock"), and all of the outstanding shares of
Class B Common Stock, par value $0.80 per share (the "Class B Common Stock" and,
together with the Class A Common Stock, the "Shares") of American Maize-Products
Company, a Maine corporation (the "Company"), at $40.00 per Share (the "Offer
Consideration"), net to the seller in cash, upon the terms and subject to the
conditions set forth in this Offer to Purchase and in the related Letter of
Transmittal (which together constitute the "Offer"). Eridania Beghin-Say is a
publicly held corporation with approximately 50.78% of its capital stock owned
or controlled by Montedison S.p.A., a corporation organized under the laws of
Italy ("Montedison").
Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, subject to Instruction 6 of the Letter of Transmittal, transfer
taxes on the purchase of Shares by the Purchaser pursuant to the Offer. The
Purchaser will pay all charges and expenses of First Chicago Trust Company of
New York (the "Depositary") and MacKenzie Partners, Inc. (the "Information
Agent").
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING 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 ERIDANIA BEGHIN-SAY 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 ERIDANIA BEGHIN-SAY AND ITS AFFILIATES HAVE PURCHASED OR ARE THEN
OBLIGATED TO PURCHASE UNDER THE STOCK PURCHASE AGREEMENT, DATED AS OF FEBRUARY
22, 1995 (THE "STOCK PURCHASE AGREEMENT") AMONG THE COMPANY, ERIDANIA BEGHIN-SAY
AND THE PURCHASER (AS DESCRIBED MORE FULLY HEREIN) (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 ERIDANIA BEGHIN-SAY AND ITS
AFFILIATES, WOULD CONSTITUTE AT LEAST A MAJORITY OF THE OUTSTANDING SHARES OF
CLASS B COMMON STOCK ON A FULLY DILUTED BASIS (CLAUSES (I) AND (II) REFERRED TO
HEREIN AS THE "MINIMUM TENDER CONDITION").
THE BOARD OF DIRECTORS OF THE COMPANY HAS DETERMINED THAT THE OFFER AND THE
MERGER (AS DEFINED HEREIN) ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE
SHAREHOLDERS OF THE COMPANY. THE BOARD OF DIRECTORS HAS APPROVED THE OFFER AND
THE AGREEMENT AND PLAN OF MERGER, DATED AS OF FEBRUARY 22, 1995 (THE "MERGER
AGREEMENT"), AMONG THE COMPANY, ERIDANIA BEGHIN-SAY AND THE PURCHASER AND
RECOMMENDS THAT THE SHAREHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER ALL
THEIR SHARES PURSUANT TO THE OFFER.
The Company has retained CS First Boston Corporation ("CS First Boston") as
its financial advisor. CS First Boston rendered a written opinion, dated
February 22, 1995, to the Board of Directors of the Company that, based upon the
assumptions made, matters considered and limits of the review undertaken, as set
forth in such opinion, the consideration to be received by the shareholders of
the Company in the Offer and the Merger is fair to such holders from a financial
point of view. The full text of such opinion is filed as Exhibit (13) to the
Company's Solicitation/Recommendation Statement on Schedule 14D-9 filed with the
Securities and Exchange Commission (the "Commission") (the "Schedule 14D-9"),
which is being mailed to shareholders of the Company herewith.
<PAGE> 4
The Offer is being made pursuant to the Merger Agreement, pursuant to
which, following completion of the Offer, the Purchaser will be merged with and
into the Company and each outstanding Share (other than Shares owned by the
Purchaser, Eridania Beghin-Say or any other affiliate or subsidiary of Eridania
Beghin-Say, or by shareholders who properly exercise appraisal rights in
accordance with Section 909 of the Maine Business Corporation Act (the "MBCA"))
will be converted into the right to receive an amount in cash equal to the Offer
Consideration (the "Merger"). Consummation of the Merger is subject to a number
of factors (including satisfaction of various conditions). Pursuant to the Stock
Purchase Agreement, the Purchaser is obligated, subject to certain conditions,
to purchase all of the shares of Class B Common Stock remaining available for
purchase upon expiration of a preemptive rights offering (the "Rights Offering")
by the Company of 690,718 newly issued and 67,225 treasury shares (an aggregate
of 757,943 shares) of Class B Common Stock (the "Stock Purchase"). The Merger
Agreement, the Merger, the Stock Purchase Agreement and the Stock Purchase are
described in greater detail in Section 11. The Merger Agreement and the Stock
Purchase Agreement have been filed as Exhibits (c)(1) and (c)(2) to the Schedule
14D-1 filed with the Commission by Eridania Beghin-Say and the Purchaser.
PURPOSE OF THE OFFER; THE MERGER
The purpose of the Offer is to acquire for cash as many outstanding Shares
as possible as a first step in acquiring the entire equity in the Company. The
Merger Agreement provides that after the purchase of Shares pursuant to the
Offer and the receipt of any required approval by the Company's shareholders,
the Purchaser will be merged with and into the Company on the first business day
on which certain conditions in the Merger Agreement are satisfied or waived.
MINIMUM TENDER CONDITION
The Offer is conditioned on, among other things, the Minimum Tender
Condition being satisfied. See Section 13. The Company has represented in
Section 6.1(b) of the Merger Agreement that as of February 21, 1995, there were
8,558,474 shares of Class A Common Stock and 1,742,057 shares of Class B Common
Stock outstanding, 345,429 shares of Class A Common Stock and 67,225 shares of
Class B Common Stock held in treasury and 570,698 shares of Class A Common Stock
reserved for issuance pursuant to options granted under the Company's 1985 Stock
Option Plan, 1986 Stock Option Plan and 1994 Stock Plan (collectively, the
"Stock Plans"). Based on this representation, subsequent to the Stock Purchase
there will be 8,558,474 shares of Class A Common Stock and 2,500,000 shares of
Class B Common Stock outstanding, 345,429 shares of Class A Common Stock and 0
shares of Class B Common Stock held in treasury and 570,698 shares of Class A
Common Stock reserved for issuance pursuant to options granted under the Stock
Plans. Based on the foregoing, the Purchaser believes that subsequent to the
Stock Purchase, there will be approximately 9,129,172 shares of Class A Common
Stock and 2,500,000 shares of Class B Common Stock outstanding on a fully
diluted basis. Accordingly, the Purchaser believes that the Minimum Condition
would be satisfied if (i) at least approximately 4,564,587 shares of Class A
Common Stock are validly tendered prior to the Expiration Date and not withdrawn
and (ii) at least approximately 1,250,001 shares of Class B Common Stock are
either validly tendered prior to the Expiration Date and not withdrawn or are
available for purchase by Purchaser pursuant to the Stock Purchase Agreement.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION AND EACH SHOULD BE READ IN THEIR ENTIRETY BEFORE ANY
DECISION IS MADE WITH RESPECT TO THE OFFER.
1. TERMS OF THE OFFER
Upon the terms and subject to the conditions set forth in the Offer
(including, if the Offer is extended or amended, the terms and conditions of
such extension or amendment), the Purchaser shall accept for payment, and pay
for, all Shares validly tendered on or prior to the Expiration Date (as defined
herein) and not withdrawn as permitted by Section 4. The term "Expiration Date"
means 12:00 Midnight, New York City time, on Monday, March 27, 1995, and, if the
conditions set forth in Section 13 are satisfied or, to the extent permitted by
the Merger Agreement, waived by Eridania Beghin-Say or the Purchaser, as of the
Expiration
2
<PAGE> 5
Date, shall not be extended without the prior written consent of the Company.
If, as of the Expiration Date, all of the conditions set forth in Section 13
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 the Merger Agreement, waived by Eridania Beghin-Say or the
Purchaser, the 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
the Merger Agreement. In the event the Offer is extended as provided herein, the
term "Expiration Date" shall mean the latest time and date on which the Offer,
as so extended, shall expire.
The Purchaser shall give oral or written notice of any such extension of
the Offer to the Depositary. Any such extension will also be announced publicly
by press release issued no later than 9:00 A.M., New York City time, on the next
business day after the previously scheduled Expiration Date. During any such
extension, all Shares previously tendered and not withdrawn will remain subject
to the Offer, subject to the right of a tendering shareholder to withdraw his or
her Shares. See Section 4. Subject to the applicable regulations of the
Commission, the Purchaser expressly reserves the right, in its sole discretion,
to (x) delay acceptance for payment of or, regardless of whether such Shares
were theretofore accepted for payment, payment for any Shares or to terminate
the Offer and not accept for payment or pay for any Shares not theretofore
accepted for payment, or paid for, if, after the Expiration Date, any of the
conditions specified in Section 13 shall not have been satisfied and (y) waive
any condition, by giving oral or written notice of such delay, termination or
amendment to the Depositary and by making a public announcement thereof; except
that the Merger Agreement provides that, without the prior written consent of
the Company, the Purchaser shall not (i) decrease the Offer 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 Section 13, (v) change or waive the Minimum Tender
Condition or (vi) make any other change in the terms or conditions of the Offer
which is adverse to the holders of the Shares. If the Purchaser accepts any
Shares for payment pursuant to the terms of the Offer, it will accept for
payment all Shares validly tendered and not withdrawn prior to the Expiration
Date, and, subject to clause (x) above, will promptly pay for all Shares so
accepted for payment. If, following the Expiration Date, the Purchaser is
permitted under applicable law to delay acceptance for payment of or payment for
Shares and does so, the Purchaser may not thereafter assert conditions to the
Offer to delay or avoid acceptance for payment of or payment for Shares except
to the extent permitted by applicable law. The Purchaser confirms that its
reservation of the right to delay payment for Shares which it has accepted for
payment is limited by Rule 14e-1(c) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), which requires that a tender offeror pay the
consideration offered or return the tendered securities promptly after the
termination or withdrawal of a tender offer.
Any such delay, termination or amendment of the Offer will be followed as
promptly as practicable by public announcement thereof. Subject to applicable
law (including Rules 14d-4(c) and 14d-6(d) under the Exchange Act, which require
that any material change in the information published, sent or given to
shareholders in connection with the Offer be promptly disseminated to
shareholders in a manner reasonably designed to inform shareholders of such
change) and without limiting the manner in which the Purchaser may choose to
make any public announcement, the Purchaser shall have no obligation to publish,
advertise or otherwise communicate any such public announcement other than by
making a release to the Dow Jones News Service.
The Purchaser confirms that if it makes a material change in the terms of
the Offer or the information concerning the Offer, or if it waives a material
condition of the Offer, the Purchaser will extend the Offer to the extent
required by Rules 14d-4(c) and 14d-6(d) under the Exchange Act.
Subject to the terms and conditions of the Merger Agreement, if, prior to
the Expiration Date, the Purchaser, with the prior written consent of the
Company, shall decrease the percentage of Shares being sought or increase or
decrease the consideration offered to holders of Shares, such increase or
decrease shall be applicable to all holders whose Shares are accepted for
payment pursuant to the Offer and, if at the time notice of any increase or
decrease is first published, sent or given to holders of Shares, the Offer is
scheduled to expire at any time earlier than the tenth business day from and
including the date that such notice is first so
3
<PAGE> 6
published, sent or given, the Offer will be extended until the expiration of
such ten business day period. For purposes of the Offer, a "business day" means
any day other than a Saturday, Sunday or federal holiday and consists of the
time period from 12:01 A.M. through 12:00 Midnight, New York City time.
The Company has agreed to provide to the Purchaser for the purpose of
disseminating the Offer to shareholders the Company's shareholder list and
security position listings. Upon compliance by the Company with such request,
this Offer to Purchase and the related Letter of Transmittal will be mailed to
record holders of Shares and will be furnished to brokers, banks and similar
persons whose names, or the names of whose nominees, appear on the shareholder
list or, if applicable, who are listed as participants in a clearing agency's
security position listing for subsequent transmittal to beneficial owners of
Shares.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), the Purchaser shall accept for payment, and shall pay for, Shares
validly tendered and not withdrawn as promptly as practicable after the later of
(i) the expiration or termination of the waiting period applicable to the
acquisition of Shares pursuant to the Offer under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "H-S-R Act") and (ii) the
Expiration Date. In addition, subject to applicable rules of the Commission, the
Purchaser expressly reserves the right to delay acceptance for payment of or
payment for Shares in order to comply, in whole or in part, with any applicable
law. See Section 13. In all cases, payment for Shares tendered and accepted for
payment pursuant to the Offer will be made only after timely receipt by the
Depositary of certificates for such Shares (or a confirmation of a book-entry
transfer of such Shares into the Depositary's account at The Depository Trust
Company, the Midwest Securities Trust Company or the Philadelphia Securities
Depository Trust Company (collectively, "Depository Institutions")), a properly
completed and duly executed Letter of Transmittal (or facsimile thereof) and any
other required documents.
A Notification and Report Form under the H-S-R Act was filed by Montedison
on February 28, 1995, and, accordingly, the waiting period under the H-S-R Act
is scheduled to expire at 11:59 P.M., New York City time, on March 15, 1995.
However, prior to the expiration of the waiting period, the Federal Trade
Commission (the "FTC") or the Antitrust Division of the Department of Justice
(the "Antitrust Division") may extend the waiting period by requesting
additional information from Montedison. If such a request is made, the waiting
period will expire at 11:59 P.M., New York City time, on the tenth calendar day
after the additional information is supplied by Montedison or the request is
otherwise complied with. Thereafter, the waiting period may only be extended by
court order. The waiting period under the H-S-R Act may be terminated prior to
its expiration by the FTC and the Antitrust Division. Montedison has requested
early termination of the waiting period, although there can be no assurance that
this request will be granted. For additional information regarding the H-S-R
Act, see Section 14.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment Shares validly tendered and not withdrawn as, if and when the
Purchaser gives oral or written notice to the Depositary of its acceptance for
payment of such Shares pursuant to the Offer. Payment for Shares accepted for
payment pursuant to the Offer will be made by deposit of the purchase price
therefor with the Depositary, which will act as agent for the tendering
shareholders for purpose of receiving payments from the Purchaser and
transmitting such payments to the tendering shareholders. Under no circumstances
will interest on the purchase price for Shares be paid, regardless of any delay
in making such payment.
If any tendered Shares are not accepted for payment pursuant to the terms
and conditions of the Offer for any reason, or if certificates are submitted for
more Shares than are tendered, certificates for such unpurchased Shares will be
returned, without expense to the tendering shareholder (or, in the case of
Shares tendered by book-entry transfer of such Shares into the Depositary's
account at a Depository Institution pursuant to the procedures set forth in
Section 3, such Shares will be credited to an account maintained with such
Depository Institution), as soon as practicable following expiration or
termination of the Offer.
The Purchaser reserves the right to transfer or assign in whole or in part
from time to time to one or more direct or indirect subsidiaries of Eridania
Beghin-Say the right to purchase all or any portion of the Shares
4
<PAGE> 7
tendered pursuant to the Offer, but any such transfer or assignment will not
relieve the Purchaser of its obligations under the Offer and will in no way
prejudice the rights of tendering shareholders to receive payment for Shares
validly tendered and accepted for payment pursuant to the Offer.
3. PROCEDURE FOR ACCEPTING THE OFFER AND TENDERING OF SHARES
Valid Tender of Shares. For a shareholder validly to tender Shares
pursuant to the Offer, a properly completed and duly executed Letter of
Transmittal, together with any required signature guarantees and any other
required documents, must be transmitted to and received by the Depositary at one
of its addresses set forth on the back cover of this Offer to Purchase and
either (i) certificates for tendered Shares must be received by the Depositary
at such address, (ii) such Shares must be tendered pursuant to the procedures
for book-entry tender set forth below (and a confirmation of receipt of such
tender received) or (iii) such shareholder must comply with the guaranteed
delivery procedure set forth below, in each case prior to the Expiration Date.
Book-Entry Transfer. The Depositary will establish accounts with respect
to the Shares at the Depository Institutions for purposes of the Offer within
two business days after the date of this Offer to Purchase, and any financial
institution that is a participant in a Depository Institution's system may make
book-entry delivery of the Shares by causing the Depository Institution to
transfer such Shares into the Depositary's account in accordance with the
Depository Institution's procedure for such transfer. However, although delivery
of Shares may be effected through book-entry at the Depository Institutions, the
Letter of Transmittal, with any required signature guarantees and any other
required documents, must, in any case, be transmitted to and received by the
Depositary at one or more of its addresses set forth on the back cover of this
Offer to Purchase prior to the Expiration Date, or the guaranteed delivery
procedure described below must be complied with. DELIVERY OF THE LETTER OF
TRANSMITTAL OR ANY OTHER REQUIRED DOCUMENTS TO A DEPOSITORY INSTITUTION SHALL
NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
Signature Guarantees. Signatures on all Letters of Transmittal must be
guaranteed by a financial institution (including most banks, savings and loan
associations and brokerage houses) which is a participant in the Securities
Transfer Agents Medallion Program, the New York Stock Exchange Medallion
Signature Program or the Stock Exchange Medallion Program (an "Eligible
Institution"), except in cases where Shares are tendered (i) by a registered
shareholder who has not completed either the box entitled "Special Payment
Instructions" or the box entitled "Special Delivery Instructions" on the Letter
of Transmittal or (ii) for the account of an Eligible Institution. If the
certificates are registered in the name of a person other than the signer of the
Letter of Transmittal, or if certificates for unpurchased Shares are to be
issued to a person other than the registered owner(s), the certificates must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name or names of the registered owner or owners appear on the
certificates, with the signature(s) on the certificates or stock powers
guaranteed as aforesaid.
THE METHOD OF DELIVERY OF ALL REQUIRED DOCUMENTS IS AT THE ELECTION AND
RISK OF EACH TENDERING SHAREHOLDER. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH
RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
TO PREVENT BACKUP FEDERAL INCOME TAX WITHHOLDING WITH RESPECT TO THE
PURCHASE PRICE OF SHARES PURCHASED PURSUANT TO THE OFFER, A SHAREHOLDER MUST
PROVIDE THE DEPOSITARY WITH HIS OR HER CORRECT TAXPAYER IDENTIFICATION NUMBER
AND CERTIFY WHETHER HE OR SHE IS SUBJECT TO BACKUP WITHHOLDING OF FEDERAL INCOME
TAX BY COMPLETING THE SUBSTITUTE FORM W-9 INCLUDED IN THE LETTER OF TRANSMITTAL.
Guaranteed Delivery. If a shareholder desires to tender Shares pursuant to
the Offer and such shareholder's certificates are not immediately available or
such shareholder cannot deliver the certificates and all other required
documents to the Depositary prior to the Expiration Date or such shareholder
cannot
5
<PAGE> 8
complete the procedure for book-entry transfer on a timely basis, such Shares
may nevertheless be tendered, provided that all of the following conditions are
satisfied:
(a) such tenders are made by or through an Eligible Institution;
(b) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by the Purchaser, is
received by the Depositary as provided below on or prior to the Expiration
Date; and
(c) the certificates for all tendered Shares (or a confirmation of a
book-entry transfer of such Shares into the Depositary's account at a
Depository Institution as described above), in proper form for transfer,
together with a properly completed and duly executed Letter of Transmittal
and all other documents required by the Letter of Transmittal are received
by the Depositary within five (5) American Stock Exchange ("AMSE") trading
days after the date of execution of such Notice of Guaranteed Delivery.
THE NOTICE OF GUARANTEED DELIVERY MAY BE DELIVERED BY HAND OR TRANSMITTED
BY TELEGRAM, TELEX, FACSIMILE TRANSMISSION OR MAIL TO THE DEPOSITARY AND MUST
INCLUDE A SIGNATURE GUARANTEED BY AN ELIGIBLE INSTITUTION IN THE FORM SET FORTH
IN SUCH NOTICE.
Other Requirements. In all cases, payment for Shares tendered and accepted
for payment pursuant to the Offer will be made only after timely receipt by the
Depositary of certificates for such Shares (or a confirmation of a book-entry
transfer of such Shares into the Depositary's account at a Depository
Institution as described above), properly completed and duly executed Letter(s)
of Transmittal and any other required documents.
By executing a Letter of Transmittal as set forth above, the tendering
shareholder irrevocably appoints designees of the Purchaser as such
shareholder's proxies, each with full power of substitution, to the full extent
of such shareholder's rights with respect to the Shares tendered by such
shareholder and accepted for payment by the Purchaser and with respect to any
and all other Shares or other securities issued or issuable in respect of such
Shares on or after February 28, 1995. Such appointment is effective when, and
only to the extent that, the Purchaser deposits the payment for such Shares with
the Depositary. All such proxies shall be considered coupled with an interest in
the tendered Shares. Upon the effectiveness of such appointment, all prior
proxies given by such shareholder will be revoked, and no subsequent proxies may
be given (and, if given, will not be deemed effective). Purchaser's designees
will, with respect to the Shares for which the appointment is effective, be
empowered to exercise all voting and other rights of such shareholder as they,
in their sole discretion, may deem proper at any annual, special or adjourned
meeting of the shareholders of the Company, by written consent in lieu of any
such meeting or otherwise. The Purchaser reserves the right to require that, in
order for Shares to be deemed validly tendered, immediately upon the Purchaser's
payment for such Shares, the Purchaser must be able to exercise full voting
rights with respect to such Shares.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any tender
of Shares will be determined by the Purchaser and Eridania Beghin-Say, in their
sole discretion, which determination shall be final and binding. The Purchaser
and Eridania Beghin-Say reserve the absolute right to reject any and all tenders
determined by them not to be in proper form or the acceptance for payment of
which may, in the opinion of their counsel, be unlawful. The Purchaser and
Eridania Beghin-Say also reserve the absolute right to waive any defect or
irregularity in the tender of any Shares. No tender of Shares will be deemed to
have been validly made until all defects and irregularities have been cured or
waived. None of the Purchaser, Eridania Beghin-Say, the Depositary, the
Information Agent, the Dealer Manager nor any other person will be under any
duty to give notification of any defects or irregularities in tenders or will
incur any liability for failure to give any such notification. The Purchaser's
and Eridania Beghin-Say's interpretation of the terms and conditions of the
Offer (including the Letter of Transmittal and instructions thereto) will be
final and binding.
The tender of Shares pursuant to any of the procedures described above will
constitute an agreement between the tendering shareholder and the Purchaser upon
the terms and subject to the conditions of the Offer.
6
<PAGE> 9
4. RIGHTS OF WITHDRAWAL
Tenders of Shares made pursuant to the Offer are irrevocable except that
Shares tendered pursuant to the Offer may be withdrawn at any time prior to the
Expiration Date and, unless theretofore accepted for payment by the Purchaser
pursuant to the Offer, may also be withdrawn at any time after April 28, 1995.
For a withdrawal of Shares tendered pursuant to the Offer to be effective,
a written, telegraphic, telex or facsimile transmission notice of withdrawal
must be timely received by the Depositary at one of its addresses set forth on
the back cover of this Offer to Purchase. Any notice of withdrawal must specify
the name of the person having tendered the Shares to be withdrawn, the number of
Shares to be withdrawn and the names in which the certificate(s) evidencing the
Shares to be withdrawn are registered, if different from that of the person who
tendered such Shares. The signature(s) on the notice of withdrawal must be
guaranteed by an Eligible Institution, unless such Shares have been tendered for
the account of any Eligible Institution. If Shares have been tendered pursuant
to the procedures for book-entry tender as set forth in Section 3, any notice of
withdrawal must specify the name and number of the account at the Depository
Institution to be credited with the withdrawn Shares. If certificates have been
delivered or otherwise identified to the Depositary, the name of the registered
holder and the serial numbers of the particular certificates evidencing the
Shares withdrawn must also be furnished to the Depositary as aforesaid prior to
the physical release of such certificates. All questions as to the form and
validity (including time of receipt) of any notice of withdrawal shall be
determined by the Purchaser and Eridania Beghin-Say, in their sole discretion,
which determination shall be final and binding. None of the Purchaser, Eridania
Beghin-Say, the Dealer Manager, the Depositary, the Information Agent, or any
other person will be under any duty to give notification of any defects or
irregularities in any notice of withdrawal or incur any liability for failure to
give such notification. Any Shares properly withdrawn will be deemed not to have
been validly tendered for purposes of the Offer. However, withdrawn Shares may
be retendered by following one of the procedures described in Section 3 at any
time prior to the Expiration Date.
If the Purchaser extends the Offer, is delayed in its acceptance for
payment of Shares, or is unable to accept for payment Shares pursuant to the
Offer, for any reason, then, without prejudice to the Purchaser's rights under
this Offer, the Depositary may, nevertheless, on behalf of the Purchaser, retain
tendered Shares, and such Shares may not be withdrawn except to the extent that
tendering shareholders are entitled to withdrawal rights as set forth in this
Section 4. Any such delay will be by an extension of the Offer to the extent
required by law.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE OFFER
Sales of Shares pursuant to the Offer will be taxable transactions for
Federal income tax purposes and may also be taxable under applicable state,
local and other tax laws. For Federal income tax purposes, a shareholder whose
Shares are purchased pursuant to the Offer will realize gain or loss equal to
the difference between the adjusted basis of the Shares sold and the amount of
cash received therefor. Such gain or loss will be a capital gain or loss if the
Shares are held as capital assets by the shareholder, and will be a long-term
capital gain or loss if the Shares have been held for more than one year as at
the purchase date.
THE INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE TO SHAREHOLDERS IN SPECIAL SITUATIONS
SUCH AS SHAREHOLDERS WHO RECEIVED THEIR SHARES UPON THE EXERCISE OF EMPLOYEE
STOCK OPTIONS OR OTHERWISE AS COMPENSATION AND SHAREHOLDERS WHO ARE NOT UNITED
STATES CITIZENS OR RESIDENTS. SHAREHOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS
WITH RESPECT TO THE SPECIFIC TAX CONSEQUENCES TO THEM OF THE OFFER, INCLUDING
THE APPLICATION AND EFFECT OF STATE, LOCAL, FOREIGN OR OTHER TAX LAWS.
7
<PAGE> 10
6. PRICE RANGE OF SHARES; DIVIDENDS
The Class A Common Stock and the Class B Common Stock are traded on the
AMSE under the symbols "AZEA" and "AZEB", respectively. The following table sets
forth, for the calendar quarters indicated, the high and low sales prices for
the Shares as reported by the AMSE and the amount of cash dividends paid per
Share, based on public sources:
<TABLE>
<CAPTION>
CLASS A COMMON STOCK PRICE
---------------------------------
CASH
DIVIDENDS
CALENDAR YEAR HIGH LOW PAID
- ------------------------------------------------------------ ------- ------- ---------
<S> <C> <C> <C>
1992:
First Quarter............................................. $25.750 $20.250 $0.16
Second Quarter............................................ 24.000 20.000 0.16
Third Quarter............................................. 25.500 20.625 0.16
Fourth Quarter............................................ 25.625 21.000 0.16
1993:
First Quarter............................................. 23.500 21.625 0.16
Second Quarter............................................ 22.625 16.625 0.16
Third Quarter............................................. 19.000 14.375 0.16
Fourth Quarter............................................ 16.875 15.250 0.16
1994:
First Quarter............................................. 22.375 15.875 0.16
Second Quarter............................................ 20.750 18.125 0.16
Third Quarter............................................. 23.500 19.625 0.16
Fourth Quarter............................................ 26.000 21.625 0.17
1995:
First Quarter (through February 27, 1995)................. 39.625 25.375 0.17
</TABLE>
<TABLE>
<CAPTION>
CLASS B COMMON STOCK PRICE
---------------------------------
CASH
DIVIDENDS
CALENDAR YEAR HIGH LOW PAID
- ------------------------------------------------------------ ------- ------- ---------
<S> <C> <C> <C>
1992:
First Quarter............................................. $25.500 $20.000 $0.16
Second Quarter............................................ 23.375 21.500 0.16
Third Quarter............................................. 25.375 21.500 0.16
Fourth Quarter............................................ 25.625 22.750 0.16
1993:
First Quarter............................................. 24.375 22.750 0.16
Second Quarter............................................ 22.750 18.000 0.16
Third Quarter............................................. 18.500 15.875 0.16
Fourth Quarter............................................ 16.750 14.875 0.16
1994:
First Quarter............................................. 21.875 15.500 0.16
Second Quarter............................................ 21.000 17.875 0.16
Third Quarter............................................. 23.250 20.125 0.16
Fourth Quarter............................................ 25.375 21.875 0.17
1995:
First Quarter (through February 27, 1995)................. 39.500 25.250 0.17
</TABLE>
8
<PAGE> 11
On February 21, 1995, the last full trading day prior to the public
announcement of the terms of the Offer and the Merger, the closing price as
reported by the AMSE of the Class A Common Stock was $31.375 per share and of
the Class B Common Stock was $31.375 per share. On February 27, 1995, the last
full trading day prior to commencement of the Offer, the closing price as
reported by the AMSE of the Class A Common Stock was $39.250 per share and of
the Class B Common Stock was $39.250 per share. SHAREHOLDERS ARE URGED TO OBTAIN
A CURRENT MARKET QUOTATION FOR THE SHARES.
7. EFFECT OF THE OFFER ON MARKET FOR THE SHARES, AMSE LISTING AND EXCHANGE ACT
REGISTRATION
The purchase of Shares by the Purchaser pursuant to the Offer will reduce
the number of Shares that might otherwise trade publicly and may reduce the
number of holders of Shares, which could adversely affect the liquidity and
market value of the remaining Shares held by the public.
The Shares are listed on the AMSE. According to the AMSE's published
guidelines, the AMSE would consider delisting the Shares if, among other things,
the number of holders of at least 100 Shares should fall below 300, the number
of publicly held Shares (exclusive of holdings of officers and directors of the
Company and their immediate families and other concentrated holdings) should
fall below 200,000 or the aggregate market value of the publicly held Shares
should fall below $1,000,000. According to the Company's 1993 Annual Report, as
of December 31, 1993 there were 1064 holders of record of Class A Common Stock
and 433 holders of record of Class B Common Stock, and according to
representations made by the Company in the Merger Agreement, as of February 21,
1995, there were 8,558,474 shares of Class A Common Stock and 1,742,057 shares
of Class B Common Stock outstanding.
If the AMSE were to delist the Shares, the market therefor could be
adversely affected. It is possible that the Shares would be traded on other
securities exchanges or in the over-the-counter market, and that price
quotations would be reported by such exchanges, or through the National
Association of Securities Dealers Automated Quotation System, Inc. ("Nasdaq") or
other sources. The extent of the public market for the Shares and the
availability of such quotations would, however, depend upon the number of
shareholders and/or the aggregate market value of the Shares remaining at such
time, the interest in maintaining a market in the Shares on the part of
securities firms, the possible termination of registration of the Shares under
the Exchange Act and other factors.
The Shares are presently "margin securities" under the regulations of the
Federal Reserve Board, which has the effect, among other things, of allowing
brokers to extend credit on the collateral of such Shares. Depending upon
factors similar to those described above regarding listing and market
quotations, the Shares might no longer constitute "margin securities" for the
purposes of the Federal Reserve Board's margin regulations, in which event the
Shares would be ineligible as collateral for margin loans made by brokers.
Exchange Act Registration. The Shares are currently registered under the
Exchange Act. Such registration may be terminated by the Company upon
application to the Commission if the outstanding Shares are not listed on a
national securities exchange and if there are fewer than 300 holders of record
of Shares. Termination of registration of the Shares under the Exchange Act
would reduce substantially the information required to be furnished by the
Company to its shareholders and to the Commission and would make certain
provisions of the Exchange Act, such as the short-swing profit recovery
provisions of Section 16(b) of the Exchange Act and the requirement of
furnishing a proxy statement in connection with shareholders' meetings pursuant
to Section 14(a) of the Exchange Act and the related requirement of furnishing
an annual report to shareholders, no longer applicable with respect to the
Shares. Furthermore, the ability of "affiliates" of the Company and persons
holding "restricted securities" of the Company to dispose of such securities
pursuant to Rule 144 under the Securities Act of 1933, as amended (the
"Securities Act"), may be impaired or eliminated. If registration of the Shares
under the Exchange Act were terminated, the Shares would no longer be eligible
for NASDAQ reporting or for continued inclusion on the Federal Reserve Board's
list of "margin securities". The Purchaser intends to seek to cause the Company
to apply for termination of registration of the Shares as soon as possible after
consummation of the Offer if the requirements for termination of registration
are satisfied.
9
<PAGE> 12
8. CERTAIN INFORMATION CONCERNING THE COMPANY
Except as otherwise set forth herein, the information concerning the
Company contained in this Offer to Purchase, including financial information,
has been furnished by the Company or has been taken from or based on publicly
available documents and records on file with the Commission and other public
sources. Neither the Purchaser nor Eridania Beghin-Say assumes any
responsibility for the accuracy or completeness of the information concerning
the Company furnished by the Company or contained in such documents and records
or for any failure by the Company to disclose events which may have occurred or
may affect the significance or accuracy of any such information but which are
unknown to Purchaser or Eridania Beghin-Say.
The Company is a Maine corporation with its principal executive offices
located at 250 Harbor Drive, Stamford, Connecticut 06902. Founded 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. The Company's
Sweetener Division makes and markets corn syrup, used in food products by food
processors, and high fructose corn syrup, a nutritive sweetener used primarily
by the soft drink industry. The Company's Ingredients Division produces and
markets corn syrup solids, maltodextrins, food and industrial starches, dextrins
and cyclodextrins. The Company's corn processing plants are in Hammond, Indiana;
Decatur, Alabama; and Dimmitt, Texas. The Company also manufactures and markets
cigars and smokeless tobacco products through its Swisher International, Inc.
("Swisher") subsidiary. Swisher's plants are located in Jacksonville, Florida
and Wheeling, West Virginia.
Set forth below is certain summary consolidated financial information for
the Company's last three fiscal years and for the nine months ended September
30, 1994 as contained in the Company's Registration Statement on Form S-3, filed
with the Commission on February 28, 1995. More comprehensive financial
information (including management's discussion and analysis of financial
condition and results of operations) is included in documents filed by the
Company with the Commission, and the following summary is qualified in its
entirety by reference to such reports and other documents and all of the
financial information and notes contained therein. Copies of such reports and
other documents may be examined at or obtained from the Commission or from the
AMSE in the manner set forth below.
10
<PAGE> 13
AMERICAN MAIZE-PRODUCTS COMPANY
SELECTED FINANCIAL INFORMATION
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
---------------------------------- -------------------
1993 1992 1991 1994 1993
-------- ----------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
OPERATING DATA:
Net sales................................... $538,534 $ 542,172 $533,565 $462,189 $402,678
Operating profit............................ 15,549 44,329 56,983 36,760 7,172
Income (loss) from continuing operations
before income taxes, minority interest,
extraordinary losses and cumulative effect
of accounting changes..................... 1,036 32,892 39,595 26,973 (4,172)
Income taxes................................ (1,151) (12,901) (15,294) (10,712) 684
Income (loss) from continuing operations
before minority interest, extraordinary
losses and cumulative effect of accounting
changes................................... (115) 19,991 24,301 16,261 (3,488)
Minority interest in loss (earnings) of
subsidiary................................ 329 (9,996) (11,496) -- 329
Income (loss) from continuing operations.... 214 9,995 12,805 16,261 (3,159)
Loss from discontinued operations........... -- -- (1,518) -- --
Income (loss) before extraordinary losses
and cumulative effect of accounting
changes................................... 214 9,995 11,287 16,261 (3,159)
Extraordinary losses from early
extinguishment of debt.................... (4,182) -- -- -- (2,862)
Income (loss) before cumulative effect of
accounting changes........................ (3,968) 9,995 11,287 16,261 (6,021)
Cumulative effect of accounting changes..... (27,200) 3,016 -- -- (27,200)
Net income (loss)........................... (31,168) 13,011 11,287 16,261 (33,221)
PER SHARE DATA:
Primary earnings (loss) per share of common
stock:
Continuing operations....................... $ .02 $ 1.55 $ 2.00 $ 1.59 $ (.33)
Discontinued operations..................... -- -- (.24) -- --
Extraordinary losses from early
extinguishment of debt.................... (.43) -- -- -- (.30)
Cumulative effect of accounting changes..... (2.82) .47 -- -- (2.88)
Net income (loss)........................... (3.23) 2.02 1.76 1.59 (3.51)
Dividends per share of common stock......... .64 .64 .64 .48 .48
BALANCE SHEET DATA:
Total assets................................ $492,058 $ 484,003 $459,639 $503,810 $502,803
Working capital............................. 102,246 156,306 140,603 104,231 126,349
Long-term debt, less current installments... 139,294 136,227 127,542 133,991 157,640
Stockholders' equity........................ 215,666 168,240 158,665 227,587 215,054
</TABLE>
11
<PAGE> 14
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."
The Purchaser has conducted a review of the Company and has received
certain non-public information from the Company pursuant to the terms of a
confidentiality agreement dated January 30, 1995, (the "Confidentiality
Agreement"), between the Company and Eridania Beghin-Say. The non-public
information provided by the Company to the Purchaser included a forecast dated
January 27, 1995 for the Company's
12
<PAGE> 15
1995-1997 fiscal years developed by the Company's management (the
"Projections"). The Projections have been prepared based on numerous assumptions
including price and volume assumptions, the achievability of specific capital
expenditure and restructuring actions and other assumptions which imply material
change in the asset base and conduct of the Company's businesses. Set forth
below is the Company's income statement for the year ended December 31, 1994 and
the forecasts for the fiscal years ending December 31, 1995 through 1997 all as
set forth in or derived from the Projections.
The Company does not as a matter of course publicly disclose projections as
to future revenues or earnings. The Projections were not prepared with a view to
public disclosure or compliance with the published guidelines of the Commission
or the guidelines established by the American Institute of Certified Public
Accountants regarding projections, and are included in this Offer to Purchase
only because such information was made available to the Purchaser. The
Projections were prepared for internal use and capital budgeting and other
management decision-making purposes and are subjective in many respects and thus
susceptible to various interpretations and periodic revision based on actual
experience and business developments. None of the Purchaser, Eridania
Beghin-Say, the Company or any of their financial advisors or any of their
respective directors or officers assumes any responsibility for the accuracy of
the Projections. The Company's independent auditors have not examined or
compiled the Projections presented herein and, accordingly, assume no
responsibility for them. In addition, because the estimates and assumptions,
many of which are not set forth herein, underlying the Projections are
inherently subject to significant economic and competitive uncertainties and
contingencies which are difficult or impossible to predict accurately and are
beyond the Purchaser's, Eridania Beghin-Say's and the Company's control, there
can be no assurance that the Projections will be realized. Accordingly, it is
expected that there will be differences between actual and projected results,
and actual results may be materially higher or lower than those set forth below.
AMERICAN MAIZE-PRODUCTS COMPANY
MANAGEMENT PROJECTIONS DATED 1/27/1995
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
FISCAL YEAR ENDING DECEMBER 31,
-----------------------------------------------------
BUDGET FORECAST FORECAST
1994 ACTUAL FOR 1995 FOR 1996 FOR 1997
----------- --------- --------- ---------
<S> <C> <C> <C> <C>
Net sales................................... $ 603,988 $ 602,731 $ 638,639 $ 661,421
All direct costs (excluding depreciation and
amortization)............................. (507,271) (496,452) (516,243) (533,724)
Depreciation and amortization............... (31,850) (35,641) (43,384) (43,951)
Restructuring and other charges............. (9,400) -- -- --
Consolidated operating profit............... 55,467 70,634 79,012 83,746
Interest, net............................... (9,549) (5,767) (10,792) (11,099)
Other income/(expense)...................... (1,465) (900) (900) (900)
Earnings before taxes....................... 44,453 63,967 67,320 71,747
Taxes....................................... (17,508) (25,204) (26,322) (27,845)
Net income from continuing operations before
minority interest, extraordinary losses
and accounting changes.................... $ 26,945 $ 38,763 $ 40,998 $ 43,902
</TABLE>
The Company is subject to the information and reporting requirements of the
Exchange Act and in accordance therewith is obligated to file reports and other
information with the Commission relating to its business, financial condition
and other matters. Information, as of particular dates, concerning the Company's
directors and officers, their remuneration, stock options granted to them, the
principal holders of the Company's securities, any material interests of such
persons in transactions with the Company and other matters is required to be
disclosed in proxy statements distributed to the Company's shareholders and
filed with the Commission. Such reports, proxy statements and other information
should be available for inspection at the public reference room at the
Commission's office at 450 Fifth Street, N.W., Judiciary Plaza,
13
<PAGE> 16
Washington, D.C., and also should be available for inspection and copying at the
following regional offices of the Commission: 1400 Northwestern Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois; 7 World Trade Center,
13th Floor, New York, New York. Copies may be obtained, by mail, upon payment of
the Commission's customary charges, by writing to its principal office at 450
Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549. Such material
should also be available for inspection at the AMSE, 86 Trinity Place, New York,
New York 10006-1881.
9. CERTAIN INFORMATION CONCERNING THE PURCHASER, ERIDANIA BEGHIN-SAY AND
MONTEDISON
The Purchaser is a Delaware corporation and an indirect wholly-owned
subsidiary of Eridania Beghin-Say. The Purchaser to date has engaged in no
activities other than those incident to its formation and the commencement of
the Offer. The principal executive offices of the Purchaser are located at 1300
Fort Wayne National Bank Building, Fort Wayne, Indiana 46802.
Eridania Beghin-Say is a corporation organized under the laws of France. As
of June 30, 1994, Eridania Beghin-Say was approximately 50.78% owned, directly
or indirectly, by Montedison, with the remainder of its shares being
widely-held. Eridania Beghin-Say's shares are traded on the Paris, Milan and
Genoa Stock Exchanges. Eridania Beghin-Say is a world-wide leader in
agro-industry which, directly and through its various subsidiaries, is involved
in the production of sugar and its derivatives; starch and its derivatives; the
crushing and refining of oilseed into crude oil and meal; and the production of
animal feed and certain consumer products. Eridania Beghin-Say's subsidiaries
are located in and do business throughout Europe and North America. The
principal executive offices of Eridania Beghin-Say are located at 54, avenue
Hoche, 75008 Paris, France.
Montedison, established in 1929, is a corporation organized under the laws
of the Republic of Italy and one of the largest private sector corporations in
Italy. Montedison is a holding company that owns controlling interests in
subsidiaries which conduct operations globally in six primary sectors:
Agro-industry, Chemicals, Energy, Engineering, Other Activities and Holdings.
Montedison's principal executive offices are located at Foro Buonaparte 31,
20121 Milan, Italy.
The following selected consolidated financial data relating to Eridania
Beghin-Say and its subsidiaries have been taken from the audited consolidated
financial statements of Eridania Beghin-Say contained in its annual reports for
each of the years ended December 31, 1993 and December 31, 1992 (the "Annual
Reports") and from the unaudited consolidated financial statements of Eridania
Beghin-Say contained in Eridania Beghin-Say's semi-annual report for the period
ended June 30, 1994 (the "Semi-Annual Report"). Neither the Purchaser nor
Eridania Beghin-Say is subject to the informational filing requirements of the
Exchange Act and, accordingly, neither of them files reports or other
information with the Commission relating to its business, financial condition or
other matters.
Eridania Beghin-Say's consolidated financial statements are prepared in
French francs in accordance with French accounting principles, practices and
methods ("French Accounting Practices"), which are described in the notes to
such statements. French Accounting Practices are not the same as generally
accepted accounting principles in the United States ("US GAAP"). See the
information set forth below in footnote one to Eridania Beghin-Say's financial
information for a description of the material variations between French
Accounting Practices and US GAAP as they apply to such financial statements.
Eridania Beghin-Say, however, believes that the differences are not material to
a decision by a shareholder of the Company whether to sell, tender or hold any
Shares because any such differences would not affect the ability of the
Purchaser to obtain all funds necessary to pay for Shares to be acquired
pursuant to the Offer and the Merger. The amounts in the table below are in
French francs unless otherwise indicated. The illustrative US dollar amounts in
the table set forth below for the year ended December 31, 1993 were obtained by
translating the corresponding French franc amounts into US dollars using the
noon buying rate in New York City for cable transfers in foreign currencies as
announced for customs purposes by the Federal Reserve Bank of New York for
French francs on December 31, 1993, which was FF 5.895 = U.S.$1.00. No
representation is made that French francs have been, could have been or could
be, converted into U.S. dollars at that or any other rate.
14
<PAGE> 17
ERIDANIA BEGHIN-SAY, S.A.
SELECTED CONSOLIDATED FINANCIAL INFORMATION(1)
(IN MILLIONS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FISCAL YEAR ENDED SIX MONTHS
DECEMBER 31, ENDED JUNE 30,(2)
-------------------------------------------------- ------------------------
1991 1992 1993 1993 1993 1994
----------- ---------- ---------- ------- ---------- ----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
Consolidated Income Statement
Information:
Total revenues................ FF 41,448 FF 50,362 FF 51,736 $ 8,776 FF 25,168 FF 25,334
Operating income.............. 2,686 3,618 4,040 685 1,990 1,874
Net income -- Group Share..... 753 1,278 1,344 228 614 623
</TABLE>
<TABLE>
<CAPTION>
AS OF SIX MONTHS
DECEMBER 31, ENDED JUNE 30,
-------------------------------------------------- ------------------------
1991 1992 1993 1993 1993 1994
----------- ---------- ---------- ------- ---------- ----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
Consolidated Balance Sheet
Information:
Total current assets.......... FF 14,417 FF 19,561 FF 19,769 $ 3,353 FF 17,070 FF 16,426
Total assets.................. 29,655 44,565 43,908 7,448 43,382 42,616
Total liabilities............. 20,440 28,478 27,326 4,635 27,323 23,849
Total shareholders' equity.... 9,215 16,087 16,582 2,813 16,059 18,767
</TABLE>
- ---------------
(1) The consolidated financial statements of Eridania Beghin-Say have been
prepared in conformity with French Accounting Practices and in conformity
with the standards of the International Accounting Standards Committee
("IASC"); these differ in certain respects from US GAAP. Two such
differences are listed below. While this is not a comprehensive summary of
all differences between French/IASC principles and US GAAP, other
differences do not have a material effect on consolidated net income or
equity of Eridania Beghin-Say.
1. Certain subsidiaries of Eridania Beghin-Say accrue provisions for
retirement benefits according to local obligations; these are not
always consistent with US GAAP. No precise estimate of amounts
involved is available, but these are unlikely to be significant.
2. Brands and trademarks, totalling FF 2,291 at Dec. 31, 1993, are
valued on the basis of their contribution to earnings. They are not
amortized. Under US GAAP, these would be amortized over 40 years; the
impact on 1993 pretax income would be FF 57 MM.
(2) French companies are required to report financial results only on a
semi-annual basis.
Based on the exchange rate at December 31, 1993 of 1709.112 IL = U.S.$1.00,
Montedison's revenues for 1993 were $11.9 billion; its net operating income for
the same period was $869 million and its net income (loss) (after changes in
accounting policies and special charges) was ($799) million; at December 31,
1993, its total assets were $18.9 billion and total shareholders' equity stood
at $3.2 billion.
The name, citizenship, business address, present principal occupation, and
material positions held during the past five years of each of the directors and
executive officers of the Purchaser, Eridania Beghin-Say and Montedison are set
forth in Schedule A to this Offer to Purchase.
Except as set forth in Sections 10 and 11, none of the Purchaser, Eridania
Beghin-Say or Montedison, nor, to the best of their knowledge, any of the
persons listed in Schedule A hereto nor any associate or majority-owned
subsidiary of any of the foregoing, beneficially owns or has a right to acquire
any equity securities of the Company. None of the Purchaser, Eridania Beghin-Say
or Montedison, nor, to the best of their knowledge, any of the persons or
entities referred to above, nor any director, executive officer or subsidiary of
any of the foregoing, has effected any transaction in such equity securities
during the past 60 days.
15
<PAGE> 18
Except as set forth in Sections 10 and 11, none of the Purchaser, Eridania
Beghin-Say or Montedison, nor, to the best of their knowledge, any of the
persons listed in Schedule A hereto, has any contract, arrangement,
understanding or relationship with any other person with respect to any
securities of the Company, including, but not limited to, any contract,
arrangement, understanding or relationship concerning the transfer or the voting
of any such securities, joint ventures, loan or option arrangements, puts or
calls, guaranties of loans, guaranties against loss or the giving or withholding
of proxies. Except as set forth in Sections 10 and 11, there have been no
contacts, negotiations or transactions since January 1, 1992 between the
Purchaser, Eridania Beghin-Say or Montedison, or, to the best of their
knowledge, any of the persons listed in Schedule A hereto, on the one hand, and
the Company or its affiliates, on the other hand, concerning a merger,
consolidation or acquisition, a tender offer or other acquisition of securities,
an election of directors, or a sale or other transfer of a material amount of
assets. Except as described in Sections 10 and 11, none of the Purchaser,
Eridania Beghin-Say or Montedison, nor, to the best of their knowledge, any of
the persons listed in Schedule A hereto, has since January 1, 1992 had any
transaction with the Company or any of its executive officers, directors or
affiliates that would require disclosure under the rules and regulations of the
Commission applicable to the Offer.
10. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY AND CERTAIN OF ITS
SHAREHOLDERS
In 1992, representatives of Eridania Beghin-Say held informal discussions
regarding a possible acquisition of the Company with Mr. William Ziegler, III,
Chairman of the Board of Directors of the Company, and Mr. Ziegler's sister,
Mrs. Helen Steinkraus. Mr. Ziegler and Mrs. Steinkraus are the children of the
founder of the Company. In their individual capacities, and through various
trusts and GIH Corp., a holding company all the shares of which are owned by Mr.
Ziegler, Mrs. Steinkraus and trusts for the benefit of Mr. Ziegler, Mrs.
Steinkraus and their respective children, Mr. Ziegler and Mrs. Steinkraus each
beneficially own a significant number of shares of the Company's Common Stock.
No formal proposals regarding acquisition of the Company or the shares of Common
Stock beneficially owned by Mr. Ziegler or Mrs. Steinkraus were made during the
course of these discussions.
On December 9, 1994, Mr. Stefano Meloni, Chairman of Eridania Beghin-Say,
and Mr. Silvio Kluzer, Chairman of Cerestar Holding B.V., a subsidiary of
Eridania Beghin-Say, met with Mr. Ziegler, in his capacity as a shareholder of
the Company, to discuss the sale to Eridania Beghin-Say of all of the Shares
owned or controlled by Mr. Ziegler; several of Mr. Ziegler's children were also
present at the meeting. Shortly thereafter, Mr. Ziegler indicated that he was
not interested in selling any Shares owned or controlled by him. Mr. Ziegler
subsequently informed the members of the Board of Directors of the Company of
his meeting with Messrs. Meloni and Kluzer.
On December 16, 1994, Messrs. Meloni and Kluzer met with Patric J.
McLaughlin, President, Chief Executive Officer and Director of the Company, to
discuss the possible acquisition of the Company by Eridania Beghin-Say.
On December 19, 1994, Mr. Meloni submitted a letter on behalf of Eridania
Beghin-Say to the Board of Directors of the Company outlining a proposal
pursuant to which the shareholders of the Company would receive $32.00 per share
in cash for each Share in connection with a merger of the Company with a
subsidiary of Eridania Beghin-Say. The full text of this letter follows:
16
<PAGE> 19
December 19, 1994
PERSONAL AND CONFIDENTIAL
Board of Directors
American Maize-Products Company
250 Harbor Drive
Stamford, Connecticut 06902
Dear Gentlemen:
On behalf of Eridania Beghin-Say ("EBS") and subject to the
conditions set forth in this letter, I am pleased to submit a
confidential proposal which, if accepted by the Board of Directors of
American Maize-Products Company (the "Company"), would result in the
shareholders of the Company receiving $32 per share in cash for each
outstanding share of common stock of the Company pursuant to a merger
of the Company with a subsidiary of EBS. I hope that you will consider
this proposal seriously and that after appropriate consideration you
will approve it, enter into a mutually acceptable merger agreement
with EBS and recommend the merger to your shareholders.
As you may know, EBS is a publicly-traded French company which,
directly and through various subsidiaries, is engaged on a world-wide
basis in the production of sugar and starch and their derivatives as
well as other agroindustrial enterprises. Over the past few years,
representatives of EBS have met with representatives of the Company to
preliminarily explore the possibility of some business relationship
between the Company and the starch operations conducted by EBS's
subsidiary, Cerestar. Since those discussions, EBS has continued to
consider the desirability of a business relationship with the Company,
including a possible business combination. Recently, we have
reaffirmed our conclusion that the industrial logic of a business
combination is compelling and would result in significant benefits
being realized by both of our companies and our respective
shareholders.
As you know, representatives of EBS met on December 9 with Mr.
William Ziegler, in his capacity as a significant shareholder of the
Company and a member of the founding family of the Company, and
several of Mr. Ziegler's children. The purpose of the meeting was to
express on a confidential basis EBS's present interest in acquiring
all of the outstanding shares of the Company's common stock, including
the shares owned or controlled by Mr. Ziegler. This letter is in
furtherance of the objectives expressed in our meeting with Mr.
Ziegler.
The $32 price per share we are proposing to offer is based on our
present knowledge of the affairs of the Company and represents a
substantial premium over the current share price. It is our view that
this price would be both fair and attractive to your shareholders.
This proposal is conditioned on its approval by the Board of Directors
and shareholders of the Company, and on the negotiation of a
definitive merger agreement containing mutually acceptable terms. EBS
has the present capacity to finance the acquisition of all of the
outstanding shares of common stock of the Company and, consequently,
this proposal is not conditioned on the securing of adequate
financing.
EBS believes that consummation of this proposal would be
significantly jeopardized by any public disclosure until definitive
acquisition documents can be negotiated and executed. Consequently,
EBS is treating this matter on a highly confidential basis and has no
current intention to announce this proposal publicly. We assume that
you will also treat such matter as highly confidential and not
publicly disclose our proposal.
As you can appreciate, with a proposal of this type, time is of
the essence. Accordingly, we are prepared to move promptly in
connection with such proposal. We have considered with our advisors
all legal, financial and other requirements and do not foresee any
difficulties. We and our advisors are
17
<PAGE> 20
prepared to meet with the members of your Board of Directors, senior
management and your advisors as soon as practicable to discuss our
proposal and our strategic objectives, and to answer any questions you
or they may have. We appreciate that you will want to consider our
proposal carefully, but we do request that you respond to our proposal
as soon as possible.
Very truly yours,
Stefano Meloni
On January 6, 1995, the Company issued a press release stating that it had
received a merger proposal for $32.00 per Share and that the Company deemed the
proposal "inadequate". The press release did not identify Eridania Beghin-Say as
the potential acquiror.
On January 9, 1995, Mr. Ziegler issued his own press release identifying
Eridania Beghin-Say as the potential acquiror and stating:
I wish the public, my fellow shareholders and our employees to
know that the Ziegler family are investors in American Maize
for the long term and that shares of American Maize we own or
control are not for sale or tender.
Over the next several days, management of the Company and its legal
advisors had conversations with Eridania Beghin-Say and its financial and legal
advisors regarding the possibility of Eridania Beghin-Say submitting a revised
proposal. Additionally, Eridania Beghin-Say continued to review public
information concerning the Company including the Company's financial results for
1994 which were reported by the Company in a press release dated January 18,
1995.
On January 20, 1995, Mr. Meloni submitted a letter on behalf of Eridania
Beghin-Say to the Board of Directors of the Company increasing its original
proposal to $37.00 per Share in cash. The full text of this letter follows:
January 20, 1995
PERSONAL AND CONFIDENTIAL
Board of Directors
American Maize-Products Company
250 Harbor Drive
Stamford, Connecticut 06902
Dear Gentlemen:
By letter dated December 19, 1994, I submitted on behalf of
Eridania Beghin-Say ("EBS") a confidential proposal by which the
common shareholders of American Maize-Products Company (the "Company")
would receive $32 per share pursuant to a merger of the Company with a
subsidiary of EBS. On January 6, the Board of Directors of the Company
issued a public statement that this price was "inadequate".
In my letter of December 19, I noted that the $32 per share
proposal was based on EBS' then-present knowledge of the affairs of
the Company, represented a substantial premium over the share price
and would be, in the view of EBS, fair and attractive to your
shareholders. On further review of the information available to EBS
and with particular attention to the recently reported analytical
information about the Company and the prospects for the starch and
tobacco sectors, we now have greater confidence in our valuation of
the Company. We therefore are pleased to submit a new proposal which,
if accepted by the Board of Directors of the Company, would result in
the shareholders of the Company receiving $37 per common share
currently outstanding pursuant to a
18
<PAGE> 21
merger of the Company with a subsidiary of EBS. This price represents
full and fair value for each of your shareholders. This proposal is
conditioned on negotiation of a definitive merger agreement containing
mutually acceptable terms. We would, of course, expect an opportunity
to visit the Company's plants during the process of completing the
merger documentation.
We expect to move expeditiously in connection with this matter,
and we and our legal and financial advisors are prepared to meet with
you or your representatives and advisors at your earliest convenience.
Accordingly, we ask that you respond to this proposal as soon as
possible.
Very truly yours,
Stefano Meloni
On January 20, 1995, the Company issued a press release acknowledging that
Eridania Beghin-Say had increased its proposal to $37.00 per Share and stating
that the Company had retained CS First Boston as its financial advisor in
connection with Eridania Beghin-Say's proposal.
On January 20, 1995, Mr. Kluzer, Mr. Andrew Harvard, President of the
Purchaser, and representatives of Eridania Beghin-Say's legal and financial
advisors met with Mrs. Steinkraus and her husband, Mr. William Steinkraus, a
director of the Company, to inform them of Eridania Beghin-Say's revised $37.00
per Share proposal and to solicit support for the proposal.
On January 25, 1995, the Board of Directors of the Company held a regularly
scheduled meeting at which, among other topics, Eridania Beghin-Say's $37.00 per
Share proposal was considered. Mr. Ziegler reiterated his opposition to the
proposal. The Board of Directors directed its financial and legal advisors to
explore Eridania Beghin-Say's proposal and any other potential transaction to
maximize shareholder value.
On January 30, 1995, the Company and Eridania Beghin-Say entered into the
Confidentiality Agreement, and Eridania Beghin-Say commenced a review of the
Company's businesses and operations. Shortly thereafter, Eridania Beghin-Say and
its legal advisors circulated drafts of the Merger Agreement and Stock Purchase
Agreement. During the next several weeks, the Company and Eridania Beghin-Say
and their legal and financial advisors met on several occasions to negotiate the
terms of such agreements and to discuss the proposed price and structure of a
transaction. Eridania Beghin-Say's review of the Company's operations also
continued during this time.
On February 20, 1995, Mr. Meloni submitted on behalf of Eridania Beghin-Say
a letter to the shareholders of GIH Corp., with a copy to the Board of Directors
of the Company. In the letter, Eridania Beghin-Say offered to enter into a
satisfactory agreement with all of the shareholders of GIH Corp. to purchase all
of the shares of GIH Corp. directly from such shareholders in order to eliminate
the "double" tax on GIH Corp. shareholders that would result from Eridania
Beghin-Say's proposal to acquire all of the Shares, including those owned by GIH
Corp. The full text of this letter follows:
19
<PAGE> 22
February 20, 1995
To: All of the Shareholders of GIH Corp.
Re: American Maize-Products Company
Dear GIH Shareholders:
As you are aware, Eridania Beghin-Say ("EBS") has proposed to the
Board of Directors of American Maize-Products Company ("American
Maize") that EBS acquire all of the outstanding shares of Common Stock
of American Maize at a price of $37.00 per share pursuant to a merger
transaction.
We understand that if GIH Corp. ("GIH") were to receive $37.00
per share for each share of American Maize owned by GIH, it would
become subject to a capital gains tax on the difference between the
amount received by GIH and its tax basis in the American Maize shares.
Furthermore, if thereafter GIH were to liquidate and distribute to its
shareholders the net proceeds so realized, each such shareholder would
also become subject to a capital gains tax on the difference between
the proceeds received in such distribution and such shareholder's tax
basis in its GIH shares. This would result in a "double" tax on GIH
shareholders.
In an effort to eliminate this "double" tax to the shareholders
of GIH, EBS would be prepared to enter into a satisfactory agreement
with all of the shareholders of GIH to purchase all of the shares of
GIH directly from such shareholders. This approach would eliminate the
"double" tax described above which otherwise would result from the
acquisition of the American Maize shares directly from GIH. The price
EBS would be prepared to pay for the GIH shares would be based on the
underlying value of the American Maize shares owned by GIH calculated
at $37.00 per share. We assume for purposes of this price proposal
that GIH has no assets other than the American Maize shares and no
liabilities. Accordingly, any agreement between EBS and all of the
shareholders of GIH would have to include a full indemnity of EBS
against any liabilities and costs incurred by EBS as a result of the
acquisition of GIH, as well as other customary protections for EBS.
EBS is making this proposal to the shareholders of GIH at this
time in an effort to facilitate a transaction that would treat all
shareholders of American Maize fairly and equitably. However, while
EBS would be prepared to enter into a satisfactory agreement along the
lines set forth above if all of the shareholders of GIH were in
agreement with this approach, EBS is nevertheless at this time
proceeding with the transaction which has been proposed to the Board
of Directors of American Maize.
Very truly yours,
Stefano Meloni
cc: Board of Directors,
American Maize-Products Company
On February 22, 1995, the Company publicly announced that it had received a
preliminary, non-binding proposal from an unidentified party to buy the assets
and some of the liabilities of its corn business for approximately $500 million.
20
<PAGE> 23
During its regularly scheduled meeting on February 22, 1995, the Board of
Directors of the Company considered this proposal and Eridania Beghin-Say's
proposal. During the course of the Board's deliberations, representatives of the
Company and Eridania Beghin-Say conducted telephone negotiations regarding an
increase in Eridania Beghin-Say's $37.00 per Share proposal. As a result of
these discussions, Eridania Beghin-Say telecopied a letter to the Board of
Directors of the Company increasing its offer to $40.00 per Share, conditioned
on the Board's approval of, and the Company's execution of, the Merger Agreement
and the Stock Purchase Agreement by Midnight, New York time, on February 22,
1995. The full text of this letter follows:
February 22, 1995
The Board of Directors
American Maize-Products Company
Dear Sirs,
Eridania Beghin-Say hereby amends its January 20, 1995 offer to acquire all
of the outstanding shares of Common Stock of American Maize-Products Company in
a merger transaction to increase the per share cash consideration from $37.00 to
$40.00, subject to an increase in the termination fee set forth in Section 9.5
of the draft Merger Agreement which has been submitted to you from 2.0% to 2.5%
of the total dollar value of the offer. This increased offer is conditioned upon
approval by the Board of Directors of American Maize-Products Company and
execution and delivery of the Merger Agreement and related Stock Purchase
Agreement by 12pm midnight, New York time, on this date, after which time our
offer to acquire American Maize-Products will be withdrawn.
Very truly yours,
Stefano Meloni
At that meeting, the Board of Directors of the Company approved and adopted
the Merger Agreement and the Stock Purchase Agreement. Promptly thereafter the
Merger Agreement and the Stock Purchase Agreement were executed and delivered by
the parties thereto.
Following execution and delivery of the Merger Agreement and the Stock
Purchase Agreement, Eridania Beghin-Say reiterated to representatives of the
Company that its offer to enter into a satisfactory agreement with all of the
shareholders of GIH Corp. to purchase all of the shares of GIH Corp. directly
from such shareholders remains in effect. Eridania Beghin-Say further
represented that the price it would be prepared to pay for the GIH Corp. common
stock would be based on the underlying value of the Shares owned by GIH Corp.
being calculated at $40.00 per Share.
Also on February 22, 1995, Mr. Ziegler commenced certain litigation against
the Company and the Board of Directors of the Company. See Section 14.
The terms of the Merger Agreement are set forth in Section 11. Copies of
the Merger Agreement and the Stock Purchase Agreement have been filed as
Exhibits (c)(1) and (c)(2), respectively, to the Schedule 14D-1 and are
available for inspection and copying at the principal office of the Commission
and the AMSE in the manner set forth in Section 8.
21
<PAGE> 24
11. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY; THE MERGER AGREEMENT; THE
STOCK PURCHASE AGREEMENT; APPRAISAL RIGHTS
Purpose of the Offer. The purpose of the Offer is to acquire for cash as
many outstanding Shares as possible as a first step in acquiring the entire
equity interest in the Company.
Through its subsidiary Cerestar Holding B.V., Eridania Beghin-Say is
Europe's leading producer of starch and starch derivatives. The acquisition of
the Company will fulfill Eridania Beghin-Say's strategic objective to enter the
United States market, which represents the largest and one of the fastest
growing markets for starch and starch derivatives in the world.
Plans for the Company. Eridania Beghin-Say intends, from time to time
after completion of the Offer and the Merger, to evaluate and review the
Company's assets, operations, management and personnel and consider what, if
any, changes would be desirable and appropriate in the light of then-existing
circumstances. Except as otherwise disclosed in this Offer to Purchase, neither
Eridania Beghin-Say nor the Purchaser has any present plans or proposals that
would result in an extraordinary corporate transaction, such as a merger,
reorganization, liquidation, sale or transfer of a material amount of assets of
the Company or any of its subsidiaries.
The Merger Agreement. The Merger Agreement provides that after the
purchase of Shares pursuant to the Offer and the receipt of any required
approval by the Company's shareholders, the Purchaser will be merged with and
into the Company on the first business day on which certain conditions in the
Merger Agreement are satisfied or waived (the "Effective Time") and the separate
corporate existence of the Purchaser will thereupon cease. The Company will be
the surviving corporation in the Merger (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 the Purchaser in effect at the
Effective Time will be the Certificate of Incorporation of the Surviving
Corporation and the By-Laws of the Purchaser in effect at the Effective Time
will be the By-Laws of the Surviving Corporation. The directors of the Purchaser
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.
If the Purchaser acquires a majority of the outstanding shares of Class A
Common Stock and a majority of the outstanding shares of Class B Common Stock,
it will have the votes necessary under Maine law and the Company's Articles of
Incorporation (the "Articles") to approve the Merger. Under Maine law, if the
Purchaser owns at least 90% of the outstanding shares of each class, the Merger
may be effected without the vote of the Company's shareholders.
Upon consummation of the Merger (the "Effective Time"), each outstanding
Share (other than Shares owned by Eridania Beghin-Say, the Purchaser or any
other subsidiary or affiliate of Eridania Beghin-Say (collectively, the
"Purchaser Companies"), or by shareholders exercising appraisal rights pursuant
to Section 909 of the MBCA) will be converted into the right to receive, without
interest, the Offer Consideration. 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, 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 Offer 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.
The Merger Agreement provides that Eridania Beghin-Say shall make available
or cause to be made available to a paying agent (the "Paying Agent") appointed
by Eridania Beghin-Say with the Company's prior approval amounts sufficient in
the aggregate to provide all funds necessary for the Paying Agent to make the
payments described above to holders of Shares issued and outstanding immediately
prior to the Effective Time (such amounts hereinafter being referred to as the
"Exchange Fund"). One hundred eighty days following the
22
<PAGE> 25
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 at 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. 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.
The obligations of the Company, Eridania Beghin-Say and the Purchaser to
effect the Merger are subject to the satisfaction of certain conditions set
forth in the Merger Agreement, including that (i) the Purchaser (or one of the
Purchaser Companies) shall have purchased Shares pursuant to the Offer, (ii) the
Merger Agreement shall have been duly approved by a majority of the voting power
of the outstanding shares of the Class A Common Stock (voting as a class) and a
majority of the voting power of the outstanding shares of the Class B Common
Stock (voting as a class), (iii) no court or other governmental or regulatory
authority, agency, commission or other entity, domestic or foreign
("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 prohibits consummation of, or imposes material
restrictions on the business operations of Eridania Beghin-Say, the Purchaser or
the Company as a result of the transactions contemplated by the Merger Agreement
or the Stock Purchase Agreement, (iv) the waiting period applicable to the
consummation of the Merger under the H-S-R Act shall have expired or been
terminated and (v) the Company shall have fulfilled its obligations (A) 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, and, subject to the fiduciary requirements of
applicable law, to recommend such approval and to take all lawful action to
solicit such approval; (B) that if any "fair price", "moratorium", "control
share acquisition" or other form of antitakeover statute or regulation shall
become applicable to the transactions contemplated by the Merger Agreement or
the Stock Purchase Agreement, the Company shall grant such approvals and take
such actions as are reasonably necessary so that the transactions contemplated
by the Merger Agreement and the Stock Purchase Agreement may be consummated as
promptly as practicable on the terms contemplated thereby and otherwise act to
eliminate or minimize the effects of such statute or regulation on the
transactions contemplated thereby; (C) that prior to the Effective Time, the
Company shall have amended 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; and (D) that the Company shall have taken all
reasonably necessary action to provide that the stock plans of the Company shall
be terminated as of the Effective Time, and shall have used all reasonable
efforts to obtain (to the extent necessary) the consent of each holder of
outstanding stock options or rights to acquire Shares or stock appreciation
rights with respect to Shares to the cancellation and conversion of such right
into the right to receive an amount in cash, if any, equal to the product of (x)
the Offer 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 without interest thereon, at the
Effective Time; provided that the obligations of Eridania Beghin-Say and the
Purchaser shall not be excused by virtue of the Company's failure to perform its
obligations which (i) Eridania Beghin-Say or the Purchaser had actual knowledge
of such nonperformance 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 (as defined herein) to a majority
of the positions on the Company's Board of Directors.
According to its terms, the Merger 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 the Company and
Eridania Beghin-Say, by action of their respective Boards of Directors. In
addition, the Merger Agreement may be terminated and the Merger may be abandoned
by action of the Board of Directors of either Eridania Beghin-Say or the Company
if (i) the Purchaser, Eridania Beghin-Say or any other subsidiary or affiliate
of Eridania Beghin-Say (each, a "Purchaser Company") shall have terminated the
Offer, in accordance with the terms of the Merger Agreement, without purchasing
any Shares pursuant thereto; provided, in the case of termination of the Merger
Agreement by Eridania Beghin-Say, such termination is not in violation of the
terms of the Offer or the Merger Agreement; (ii) the Merger shall not
23
<PAGE> 26
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
the Merger Agreement in this clause 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); (iii) 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
(iv) the approval of shareholders required by the Merger Agreement shall not
have been obtained at a meeting duly convened therefor. The Merger 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 Eridania
Beghin-Say, if (i) the Board of Directors of the Company shall have withdrawn or
modified in a manner adverse to Eridania Beghin-Say or the Purchaser its
approval or recommendation of the Offer, the Merger Agreement or the Merger or
(ii) the Board of Directors of the Company, upon request by Eridania Beghin-Say,
shall fail to reaffirm such approval or recommendation, or shall have resolved
to do any of the foregoing referred to in clause (i) or (ii). The Merger
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 (i) Eridania Beghin-Say or the Purchaser (or
another Purchaser Company) shall have failed to commence the Offer within the
time required by the Merger Agreement, (ii) any of the representations and
warranties of Eridania Beghin-Say or the Purchaser 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, (iii) Eridania Beghin-Say
or the Purchaser 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
Eridania Beghin-Say or Purchaser 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 (iv) the Company receives an offer with respect
to an Acquisition Proposal (as defined herein) 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 stockholders; provided that the Company (x) shall notify Eridania
Beghin-Say and the Purchaser promptly of receipt of such Acquisition Proposal
and (y) shall notify Eridania Beghin-Say and the Purchaser 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.
The Merger Agreement provides that if (i) the 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 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) after
February 22, 1995 and prior to the termination of the Merger Agreement and (iv)
after February 22, 1995, but within one year thereof, any corporation,
partnership, person, other entity or group (as defined in Section 13(d)(3) of
the Exchange Act) other than Eridania Beghin-Say or Purchaser 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 Eridania Beghin-Say,
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 February
22, 1995 and (y) the Offer Consideration, which amount shall be payable in
immediately available funds (the "Termination Fee"); provided, however, that no
Termination Fee will be payable by the Company if the Merger Agreement is
terminated by the Company due to a breach by Eridania Beghin-Say or the
Purchaser of its obligations under the Merger Agreement or the Stock Purchase
Agreement. If the Company fails to pay promptly the Termination Fee, and, in
order to obtain such Termination Fee, Eridania Beghin-Say or the Purchaser
commences a suit which results in a judgment against the Company for the
Termination Fee, the Company shall pay to Eridania Beghin-Say or the Purchaser
its costs and expenses (including attorneys'
24
<PAGE> 27
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.
Subject to the applicable provisions of the MBCA, the Merger Agreement may
be amended by written agreement among the Company, Eridania Beghin-Say and the
Purchaser at any time prior to the Effective Date.
The Merger Agreement provides that Eridania Beghin-Say 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 Eridania Beghin-Say or the Surviving Corporation be required to make
annual premium payments to obtain such D&O Insurance in excess of 150% of the
last annual premium paid prior to February 22, 1995 (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, Eridania Beghin-Say 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. The Merger Agreement also
provides that from and after the Effective Time, Eridania Beghin-Say 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 Eridania
Beghin-Say 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.
Pursuant to the Merger Agreement, upon learning of any such claim, action,
suit, proceeding or investigation, an Indemnified Party shall promptly notify
Eridania Beghin-Say thereof. In the event of any such claim, action, suit,
proceeding or investigation (whether arising before or after the Effective
Time), (i) Eridania Beghin-Say or the Surviving Corporation shall have the right
to assume the defense thereof and Eridania Beghin-Say 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) Eridania Beghin-Say shall not be liable for any
settlement effected without its prior written consent; provided, however, that
any Indemnified Party wishing to claim indemnification 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
Eridania Beghin-Say 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
Eridania Beghin-Say shall not have any obligation hereunder to any 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.
Eridania Beghin-Say has agreed in the Merger Agreement that, from the
Effective Time through December 31, 1996, the employees of the Company and its
subsidiaries shall continue to be provided with
25
<PAGE> 28
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 at February 22, 1995; provided, however, that the Surviving
Corporation shall not be required to maintain any specific benefit plans or
programs. Eridania Beghin-Say has also agreed to honor in accordance with their
terms all existing individual employment, severance, early retirement, deferred
compensation, consulting and salary continuation agreements specifically
disclosed in writing to Eridania Beghin-Say 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. Eridania Beghin-Say has also 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 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 lump-sum severance payment 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.
Pursuant to the Merger Agreement, if requested by Eridania Beghin-Say, the
Company shall, subject to compliance with applicable law and promptly following
the purchase by Purchaser 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 Offer, the Stock Purchase Agreement or otherwise,
take all actions necessary to cause persons designated by Eridania Beghin-Say 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 Eridania
Beghin-Say 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 Eridania
Beghin-Say 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 Eridania Beghin-Say'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 Eridania Beghin-Say or the Company (or any of their
respective affiliates) nor designees of Eridania Beghin-Say (or any of its
affiliates), nor shareholders or affiliates of Eridania Beghin-Say, nor
beneficial owners of 5% or more of any class of capital stock of the Company (or
any of their respective affiliates). At such time, the Company, if so requested,
will use its best efforts to cause persons designated by Eridania Beghin-Say 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 has also agreed that neither it 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 (i) all or any significant portion of the assets
of the Company or any of its significant subsidiaries listed in clause (iii),
(ii) 25% or more of the outstanding shares of the Class A Common Stock and/or
the Class B Common Stock of the
26
<PAGE> 29
Company or (iii) 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 Merger Agreement also contains certain other restrictions as to the
conduct of business by the Company pending the Merger, as well as
representations and warranties of each of the parties customary in transactions
of this kind.
The Stock Purchase Agreement. The Stock Purchase Agreement provides that,
upon the terms and subject to the conditions contained therein, the Company will
issue, sell and deliver to Purchaser and Purchaser will purchase from the
Company at the Offer Consideration all of the shares of Class B Common Stock
remaining available for purchase upon the expiration of a preemptive rights
offering (the "Rights Offering") by the Company of 690,718 newly issued and
67,225 treasury shares (an aggregate of 757,943 shares) of Class B Common Stock.
The Articles of Incorporation of the Company provide that the holders of
Class B Common Stock have preemptive rights, to the extent granted under Maine
law, to purchase shares of Class B Common Stock issued by the Company. The Stock
Purchase Agreement obligates the Company to file with the Commission on or
before March 1, 1995 the Registration Statement for nontransferable rights (the
"Rights") to purchase the underlying 757,943 shares (the "Offered Shares"). The
Company has designated 5:00 p.m., New York City time on March 3, 1995 as the
record date for purposes of determining the holders of record of the Class B
Common Stock (the "Record Date Holders") entitled to participate in the offering
of the Rights and the Offered Shares pursuant to the Registration Statement.
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 Rights 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 warrant specifying the
number of Offered Shares for which the Rights issued to each such Record Date
Holder are exercisable at the Offer Consideration along with a copy of the
prospectus and other offering materials related to the Rights Offering. The
Rights Offering materials mailed to Record Date Holders will provide that the
period during which Record Date Holders may exercise Rights shall expire on the
later of (x) 30 days after the Notice Date and (y) five (5) days after the
Exercise Date (the "Termination Date"). Prior to 10:00 p.m., New York time, on
the Termination Date, the Company is required to notify the Purchaser in writing
of the number of Offered Shares remaining available for issuance and sale to the
Purchaser upon the termination of the Rights Offering (the "Available Shares").
The obligations of the Company to issue and sell the Available Shares and
of the Purchaser to purchase the Available Shares are subject to satisfaction of
certain conditions set forth in the Stock Purchase Agreement, including (i) the
purchase by the Purchaser of Shares pursuant to the Offer, (ii) there being no
stop order suspending the effectiveness of the Registration Statement and there
being no proceeding for that purpose initiated or threatened by the Commission,
(iii) expiration or termination of the waiting period under the H-S-R Act, (iv)
completion of the Rights Offering on the terms set forth in the Registration
Statement and the related prospectus and offering materials, (v) the truth, in
all material respects, as of the closing date for the purchase of the Available
Shares (the "Closing Date"), of the representations and warranties of the
Company and the Purchaser in the Stock Purchase Agreement and (vi) performance,
in all material respects, as of the Closing Date for the purchase of the
Available Shares, of all obligations of Purchaser, Eridania Beghin-Say and the
Company under the Stock Purchase Agreement. The obligations of Eridania
Beghin-Say and Purchaser are further conditioned upon the approval of the
Offered Shares for listing on the AMSE.
27
<PAGE> 30
The Company has agreed in the Stock Purchase Agreement to pay all expenses
incident to (i) its performance of its obligations under the Stock Purchase
Agreement and (ii) the transactions contemplated by the Stock Purchase Agreement
and the prospectus related to the Rights Offering.
The Company, the Purchaser and Eridania Beghin-Say also have agreed in the
Stock Purchase Agreement to indemnify one another against certain liabilities,
including liabilities arising under the Securities Act.
According to its terms, the Stock Purchase Agreement may be terminated at
any time prior to the Closing Date by the mutual consent of the Company, the
Purchaser and Eridania Beghin-Say, by action of their respective Boards of
Directors. In addition, the Stock Purchase Agreement will terminate
automatically upon the termination of the Merger Agreement pursuant to Article
IX thereof.
If the Merger has not been consummated, the Purchaser or an affiliate of
the Purchaser may, either immediately following the consummation or termination
of the Offer (whether or not the Purchaser purchases Shares pursuant to the
Offer), or from time to time thereafter, seek to acquire additional Shares
through open market purchases, privately negotiated transactions, a tender offer
or exchange offer or otherwise, upon such terms and at such prices as it shall
determine, which may be more or less than the prices to be paid pursuant to the
Offer. Alternatively, the Purchaser and its affiliates reserve the right to sell
or otherwise dispose of any or all of the Shares acquired by them pursuant to
the Offer or otherwise, upon such terms and at such prices as they shall
determine.
Appraisal Rights. No appraisal rights are available in connection with the
Offer. However, if the Merger is consummated, shareholders of the Company who
have neither voted in favor of the Merger nor consented thereto in writing may
have certain rights under the MBCA to dissent and demand appraisal of, and
payment in cash of the fair market value of, the Shares. Such appraisal rights,
if applicable and if the statutory procedures are complied with, could lead to a
judicial determination of the fair value (excluding any element of value arising
from accomplishment or expectation of the Merger) required to be paid in cash to
such dissenting holders for their Shares. Any such judicial value of Shares
could be based upon considerations other than or in addition to the price paid
in the Offer and the market value of the Shares, including asset values and the
investment value of the Shares. The value so determined could be more or less
than the Offer Consideration.
Rule 13e-3 under the Exchange Act, which Purchaser and Eridania Beghin-Say
do not believe would be applicable to the Merger, would require, among other
things, that certain financial information concerning the Company and certain
information relating to the fairness of the proposed transaction and the
consideration offered to shareholders of the Company therein, be filed with the
Commission and disclosed to shareholders of the Company prior to consummation of
the transaction.
12. SOURCE AND AMOUNT OF FUNDS
This Offer is not conditioned upon any financing arrangements. The
Purchaser estimates that the total amount of funds required to purchase all of
the outstanding Shares pursuant to the Offer and the Merger, to pay related fees
and expenses and to pay outstanding indebtedness of the Company which may become
due as a result of the Offer and the Merger will be approximately $600 million.
The Purchaser expects to obtain these funds as capital infusions in the form of
equity contributions and/or borrowings from Eridania Beghin-Say. Eridania
Beghin-Say expects to fund such equity contributions and/or borrowings from
existing working capital sources, which may include cash on hand, commercial
paper or available committed lines of credit. Eridania Beghin-Say's available
committed lines of credit currently exceed $1.9 billion. Eridania Beghin-Say has
not made any decisions concerning which of the foregoing sources it will utilize
to provide the Purchaser with sufficient financing to consummate the Offer and
the Merger.
13. CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other provision of the Offer and provided that the
Purchaser shall not be obligated to accept for payment any Shares until
expiration of all applicable waiting periods under the H-S-R Act, the
28
<PAGE> 31
Purchaser 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, terminate or amend the Offer as to any Shares not then paid
for if (i) at the Expiration Date, the Minimum Tender Condition has not been
satisfied or (ii) 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 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 Eridania Beghin-Say or Purchaser of any of
their obligations under the Merger Agreement or the Stock Purchase
Agreement; or
(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 Eridania Beghin-Say or Purchaser 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 Eridania
Beghin-Say or Purchaser 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 Eridania Beghin-Say or Purchaser (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; or (c) seeks to impose
material limitations on the ability of Eridania Beghin-Say or Purchaser
(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
(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 H-S-R 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 Eridania Beghin-Say 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
29
<PAGE> 32
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
Eridania Beghin-Say or Purchaser, 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 Eridania Beghin-Say or Purchaser 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 the Merger Agreement; or
(ix) any other Regulatory Filings and consents applicable to the Offer
or the Stock Purchase Agreement shall not have been obtained on terms and
conditions reasonably satisfactory to Eridania Beghin-Say or Purchaser, or
if Eridania Beghin-Say shall have received notice under Section 721 of
Title VII of the United States Defense Production Act of 1950, as amended
by Section 5021 of the Omnibus Trade and Competitiveness Act of 1988
("Exon-Florio"), that the Committee on Foreign Investment in the United
States (the "CFIUS") has determined to investigate the Offer or any related
transaction;
which in any such case, and regardless of the circumstances (including any
action or inaction by Eridania Beghin-Say or Purchaser other than a breach by
Eridania Beghin-Say or Purchaser of the Merger 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 Eridania Beghin-Say
and Purchaser and may be asserted by Eridania Beghin-Say or Purchaser regardless
of the circumstances (including any action or inaction by Eridania Beghin-Say or
Purchaser other than a breach by Eridania Beghin-Say or Purchaser of the Merger
Agreement or the Stock Purchase Agreement) giving rise to such condition or may
be waived by Eridania Beghin-Say or Purchaser, in whole or in part at any time
and from time to time in its sole discretion, subject to the terms and
conditions of the Merger Agreement. The failure by Eridania Beghin-Say or
Purchaser 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.
14. CERTAIN LEGAL MATTERS
General. Except as otherwise disclosed herein, based upon an examination
of publicly available filings with respect to the Company, Eridania Beghin-Say
and the Purchaser are not aware of any licenses or other regulatory permits
which appear to be material to the business of the Company and which might be
adversely affected by the acquisition of the Shares by the Purchaser pursuant to
the Offer or of any approval or other action by any governmental, administrative
or regulatory agency or authority which would be required for the acquisition or
ownership of Shares by the Purchaser pursuant to the Offer. Should any such
approval or other action be required, it is currently contemplated that such
approval or action would be sought or taken. There can be no assurance that any
such approval or action, if needed, would be obtained or, if obtained, that it
will be obtained without substantial conditions or that adverse consequences
might not result to the Company's or Eridania Beghin-Say's business or that
certain parts of the Company's or Eridania Beghin-Say's business might not have
to be disposed of in the event that such approvals were not obtained or such
other actions were not taken, any of which could cause the Purchaser to elect to
terminate the Offer without the purchase of the Shares thereunder. The
Purchaser's obligation under the Offer to accept for payment and pay for Shares
is subject to certain conditions. See Section 13.
Antitrust Compliance. Under the H-S-R Act and the rules that have been
promulgated thereunder by the FTC, certain acquisition transactions may not be
consummated unless certain information has been
30
<PAGE> 33
furnished to the Antitrust Division and the FTC and certain waiting period
requirements have been satisfied. The acquisition of Shares by the Purchaser is
subject to these requirements. See Section 2 as to the effect of the H-S-R Act
on the timing of the Purchaser's obligation to accept Shares for payment.
Pursuant to the H-S-R Act, Montedison filed a Notification and Report Form
with respect to the acquisition of Shares pursuant to the Offer with the
Antitrust Division and the FTC on February 28, 1995. Under the provisions of the
H-S-R Act applicable to the purchase of Shares pursuant to the Offer, such
purchases may not be made until the expiration of a 15-calendar day waiting
period following the filing by Montedison. Accordingly, the waiting period under
the H-S-R Act will expire at 11:59 p.m., New York City time, on March 15, 1995,
unless early termination of the waiting period is granted or Montedison receives
a request for additional information or documentary material prior thereto.
Pursuant to the H-S-R Act, Montedison will request early termination of the
waiting period applicable to the Offer. There can be no assurances given,
however, that the 15-day H-S-R Act waiting period will be terminated early. If
either the FTC or the Antitrust Division were to request additional information
or documentary material from Montedison, the waiting period would expire at
11:59 p.m., New York City time, on the tenth calendar day after the date of
substantial compliance by Montedison with such request. Thereafter, the waiting
period could be extended only by agreement or by court order. If the acquisition
of Shares is delayed pursuant to a request by the FTC or the Antitrust Division
for additional information or documentary material pursuant to the H-S-R Act,
the purchase of and payment for Shares will be deferred until 10 days after the
request is substantially complied with unless the waiting period is sooner
terminated by the FTC or the Antitrust Division. See Section 2. Only one
extension of such waiting period pursuant to a request for additional
information is authorized by the rules promulgated under the H-S-R Act, except
by agreement or by court order. Any such extension of the waiting period will
not give rise to any withdrawal rights not otherwise provided for by applicable
law. See Section 4. Although the Company is required to file certain information
and documentary material with the Antitrust Division and the FTC in connection
with the Offer, neither the Company's failure to make such filings nor a request
from the Antitrust Division or the FTC for additional information or documentary
material made to the Company will extend the waiting period.
The Antitrust Division and the FTC frequently scrutinize the legality under
the antitrust laws of transactions such as the proposed acquisition of Shares by
the Purchaser pursuant to the Offer. At any time before or after the Purchaser's
purchase of Shares, the Antitrust Division or the FTC could take such action
under the antitrust laws as it deems necessary or desirable in the public
interest, including seeking to enjoin the acquisition of Shares pursuant to the
Offer or seeking divestiture of Shares acquired by the Purchaser or the
divestiture of substantial assets of Montedison, Eridania Beghin-Say, the
Company or any of their respective subsidiaries. Private parties may also bring
legal action under the antitrust laws under certain circumstances. Based upon an
examination of publicly available information relating to the businesses in
which Montedison, Eridania Beghin-Say and their subsidiaries and the Company and
its subsidiaries are involved, Montedison, Eridania Beghin-Say and the Purchaser
believe that the Offer will not violate the antitrust laws. Nevertheless, there
can be no assurance that a challenge to the Offer on antitrust grounds will not
be made or, if a challenge is made, what the result will be. See Section 13 of
this Offer to Purchase for certain conditions to the Offer that could become
applicable in the event of such a challenge.
Section 611-A of the MBCA. In general, Section 611-A of the MBCA ("Section
611-A") prevents an "Interested Shareholder" (defined generally as a person with
25% or more of a corporation's outstanding voting stock other than any person
who owned shares in excess of the 25% limitation prior to April 6, 1988) from
engaging in a "Business Combination" (defined as a variety of transactions,
including mergers and consolidations, certain asset transfers, stock issuances
and liquidations and reorganizations) with a Maine corporation for five years
following the date such person became an Interested Shareholder unless (i)
before such person became an Interested Shareholder, the Board of Directors of
the corporation approved the Business Combination or (ii) following the
transaction in which such person became an Interested Shareholder, the Business
Combination is approved by the Board of Directors of the corporation and
authorized at a meeting of shareholders by the affirmative vote of the holders
of a majority of the outstanding voting stock of the corporation not owned by
the Interested Shareholder.
31
<PAGE> 34
Because the Board of Directors has approved the Offer and the Merger prior
to Purchaser's acquisition of any Shares, Purchaser believes that Section 611-A
does not apply to, and will not prohibit, the Merger or other subsequent
business combination.
Section 910 of the MBCA. Except in the case of corporations whose articles
of incorporation specify otherwise, Section 910 of the MBCA ("Section 910")
entitles shareholders to payment from a "Controlling Person" for his shares upon
the occurrence of a "Control Transaction", defined as the acquisition by the
controlling person of (i) voting power over voting shares that carry with them
the right to cast at least 25% of the votes that all shareholders would be
entitled to cast in an election of the directors of the corporation or (ii)
voting power over at least 25% of the shares in any class of shares entitled to
elect all the directors of any specified number of them. A person has voting
power over a voting share if that person has or shares, directly or indirectly,
through any option, contract, arrangement, understanding, voting trust,
conversion right or relationship, or by acting jointly or in concert or
otherwise, the power to vote, or to direct the voting of, that voting share.
Within 15 days of the Control Transaction, the Controlling Person must give
notice that a Control Transaction has occurred to each shareholder of record of
the corporation holding voting shares. Any holder of voting shares may, prior to
or within 30 days after such notice has been given, demand in writing that the
controlling person pay such shareholder in cash an amount equal to the "fair
value" (defined as an amount which takes into consideration all relevant
factors, including an increment representing a proportion of any value payable
for acquisition of control of the corporation) of each voting share held by the
shareholder.
Within 10 days after the expiration of the period provided for making such
demand, the Controlling Person must make a written offer to each demanding
shareholder to pay for the shares at a specified price deemed by the Controlling
Person to be the fair value of those shares. The offer must be made at the same
price per share to each demanding shareholder of the same class.
If any demanding shareholder and the Controlling Person agree upon the fair
value of the shares within 30 days of the expiration of the demand period, then
the Controlling Person must pay the demanding shareholders within 90 days after
the date on which the Controlling Person's offer to purchase was made. If,
however, one or more demanding shareholders fail to agree with the Controlling
Person within this 30-day period as to the fair value of the shares, (i) the
Controlling Person may bring an action in Superior Court in Cumberland County,
Maine (the County where the Company's registered office is located) praying for
a determination of the fair value of the shares or (ii) if the Controlling
Person fails to institute such suit, any demanding shareholder may bring such
suit in the name of the Controlling Person. In either case, all demanding
shareholders, except those who have previously agreed with the Controlling
Person on the fair value of the shares, shall be made parties to the
proceedings. The shareholder shall bear the burden of proving he is entitled to
receive payment. The Court shall fix the fair value of the shares. The
shareholders who are parties to the proceeding (except those determined by the
Court not to be entitled to receive payment) shall be entitled to judgment
against the Controlling Person for the fair value of their shares, plus interest
from the time of the Control Transaction and costs and expenses (except, with
respect to costs and expenses, in cases where the Court finds that the
shareholders' failure to accept the offer was in bad faith).
Section 910 does not apply if (i) the corporation does not have a class of
voting shares (x) registered or traded on a national securities exchange or (y)
registered with the Commission pursuant to the Exchange Act; or (ii) the
Controlling Person acquires such status inadvertently and divests itself of a
sufficient amount of its voting shares so that it is no longer a Controlling
Person as soon as practicable, but in no event more than 30 days after the
Controlling Person receives notice from the corporation that it has become a
Controlling Person.
IF ALL THE CONDITIONS TO THE OFFER ARE SATISFIED AND THE TENDER OFFER IS
CONSUMMATED, THE PURCHASER AND ERIDANIA BEGHIN-SAY WILL COMPLY FULLY WITH THE
OBLIGATIONS PLACED UPON THEM BY SECTION 910, INCLUDING THE TIMELY GIVING OF
NOTICE AND PROMPT PAYMENT OF FAIR VALUE FOR THE SHARES OF DEMANDING
SHAREHOLDERS.
32
<PAGE> 35
State Takeover Laws. A number of states have adopted laws and regulations
applicable to offers to acquire securities of corporations which are
incorporated in such states and/or which have substantial assets, shareholders,
principal executive offices or principal places of business therein. In Edgar v.
MITE Corporation, the Supreme Court of the United States held that the Illinois
Business Takeover Statute, which made the takeover of certain corporations more
difficult, imposed a substantial burden on interstate commerce and was therefore
unconstitutional. In CTS Corporation v. Dynamics Corporation of America, the
Supreme Court held that as a matter of corporate law, and in particular, those
laws concerning corporate governance, a state may constitutionally disqualify an
acquiror of "Control Shares" (ones representing ownership in excess of certain
voting power thresholds, e.g., 20%, 33 1/3% or 50%) of a corporation
incorporated in its state and meeting certain other jurisdictional requirements
from exercising voting power with respect to those shares without the approval
of a majority of the disinterested shareholders.
The Purchaser does not believe that any state takeover laws (other than
Section 611-A and Section 910 of the MBCA) apply to the Offer and it has not
complied with any state takeover laws. Should any government official or third
party seek to apply any state takeover law to the Offer, the Purchaser will take
such action as then appears desirable, which may include contesting the validity
of such statute in appropriate court proceedings.
If it is asserted that one or more state takeover laws applies to the Offer
and it is not determined by an appropriate court that such act or acts do not
apply or are invalid as applied to the Offer, the Purchaser might be required to
file certain information with, or receive approvals from, the relevant state
authorities. In addition, if enjoined, the Purchaser might be unable to accept
for payment any Shares tendered pursuant to the Offer, or be delayed in
consummating the Offer. In such case, the Purchaser may not be obligated to
accept for payment any Shares tendered. See Section 13.
Exon-Florio. Under Exon-Florio, the President of the United States is
authorized to prohibit or suspend acquisitions, mergers or takeovers by foreign
persons of persons engaged in interstate commerce in the United States if the
President determines, after investigation, that such foreign persons in
exercising control of such acquired persons might take action that threatens to
impair the national security of the United States and that other provisions of
existing law do not provide adequate authority to protect national security.
Pursuant to Exon-Florio, notice of an acquisition by a foreign person is to be
made to the CFIUS, which is composed of representatives of the Departments of
the Treasury, State, Commerce, Defense and Justice, the Office of Management and
Budget, the United States Trade Representative's Office and the Council of
Economic Advisors and which has been selected by the President to administer
Exon-Florio, either voluntarily by the parties to such proposed acquisition,
merger or takeover or by any member of CFIUS.
A determination that an investigation is called for must be made within 30
days after notification of a proposed acquisition, merger or takeover is first
filed with CFIUS. Any such investigation must be completed within 45 days of
such determination. Any decision by the President to take action must be
announced within 15 days of the completion of the investigation. Although
Exon-Florio does not require the filing of a notification, nor does it prohibit
the consummation of an acquisition, merger or takeover if notification is not
made, such an acquisition, merger or takeover thereafter remains indefinitely
subject to divestment should the President subsequently determine that the
national security of the United States has been threatened or impaired. The
Purchaser does not believe that the Offer or the Merger threatens to impair the
national security of the United States and does not intend to notify CFIUS of
the proposed transaction.
Certain Litigation
In January 1995, three actions, Steiner v. American Maize-Products Co.,
Katz v. American Maize-Products Co. and Saltzman v. American Maize-Products Co.
purported class actions, were filed in the Superior Court of Connecticut by
certain shareholders of the Company. Each complaint alleges that the directors
of the Company breached their fiduciary duties in responding to Eridania
Beghin-Say's December 19, 1994 proposal to acquire the Company by, inter alia,
(1) refusing to adequately consider the offer; (2) failing to fully disclose to
shareholders the terms of the offer or the reasons for its rejection; (3)
failing to take all appropriate steps to enhance the Company's value and
attractiveness as a merger acquisition candidate; (4) unfairly
33
<PAGE> 36
depriving shareholders of consideration of a transaction which could provide
them with the opportunity to maximize their investment in the Company. In
addition to unspecified damages, the relief sought includes, inter alia, an
order requiring defendants to immediately appoint an independent committee to
evaluate Eridania Beghin-Say's December 19th proposal or any bona fide offer for
the Company and to explore all alternatives for the maximization of shareholder
value.
GIH Corp. v. American Maize-Products Co., CV-95-165, is an action for
declaratory and injunctive relief against the Company and certain of its
directors that was filed on February 22, 1995 in the Superior Court of Maine by
Mr. Ziegler, individually and purportedly on behalf of GIH Corp. The complaint
alleges, inter alia, that (1) the issuance of additional shares of Class B
Common Stock pursuant to the Stock Purchase Agreement would be ultra vires and a
violation of Maine corporation law; (2) the directors breached their fiduciary
obligations by entering into the termination fee provisions in the Merger
Agreement; and (3) certain agreements with senior officers relating to the
potential termination of their employment with the Company are in violation of
the directors' fiduciary duties. The complaint seeks, inter alia, (1) to
preliminarily and permanently enjoin the Company from consummating the proposed
share issuance or taking any other action that would dilute plaintiffs' interest
in the Company; and (2) declarations that the termination fee provisions in the
Merger Agreement and the agreements with senior officers of the Company
constituted breaches of the directors' fiduciary duties. Also on February 22,
1995, plaintiffs in the GIH Corp. action filed a motion seeking a preliminary
injunction restraining the directors from taking any action authorizing the sale
of additional Class B Common Stock of the Company.
15. FEES AND EXPENSES
Lazard Freres & Co. is acting as Dealer Manager in connection with the
Offer and, together with Lazard Freres & Cie. (collectively, the "Lazard
Entities") has been retained to provide certain financial advisory services to
the Purchaser and Eridania Beghin-Say in connection therewith. Eridania
Beghin-Say has agreed to pay the Lazard Entities, as compensation for their
services as financial advisors, an advisory fee of $1 million (of which amount
$250,000 has been paid and $750,000 is now payable) and a successful transaction
fee of $2 million. The successful transaction fee will be payable in the event
Eridania Beghin-Say, through the Purchaser or otherwise, acquires all or
substantially all (no less than 80%) of the Shares.
Eridania Beghin-Say has also agreed to reimburse the Lazard Entities for
their reasonable out-of-pocket expenses, including the fees and expenses of
counsel, in connection with the Offer, and has agreed to indemnify the Lazard
Entities against certain liabilities and expenses in connection with the Offer,
including liabilities under the federal securities laws. The Purchaser has
provided a similar reimbursement agreement and indemnity to Lazard Freres & Co.
The Purchaser has also retained MacKenzie Partners, Inc. to act as the
Information Agent in connection with the Offer. The Information Agent may
contact holders of Shares by mail, telephone, telex, telegraph and personal
interviews and may request brokers, dealers and other nominee shareholders to
forward materials relating to the Offer to beneficial owners of Shares. The
Information Agent will receive customary fees for performing for such services,
plus reimbursement of out-of-pocket expenses, and the Purchaser and Eridania
Beghin-Say will indemnify the Information Agent against certain liabilities and
expenses in connection with the Offer, including liabilities under the federal
securities laws.
The Purchaser and Eridania Beghin-Say will pay the Depositary reasonable
and customary compensation for its services in connection with the Offer, plus
reimbursement for out-of-pocket expenses, and will indemnify the Depositary
against certain liabilities and expenses in connection therewith, including
liabilities under the federal securities laws. Brokers, dealers, commercial
banks and trust companies will be reimbursed by Eridania Beghin-Say for
customary mailing and handling expenses incurred by them in forwarding material
to their customers.
16. MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. However, the Purchaser may, in its sole discretion, take such
action as it may
34
<PAGE> 37
deem necessary to make the Offer in any such jurisdiction and extend the Offer
to holders of Shares in such jurisdiction.
Neither the Purchaser nor Eridania Beghin-Say is aware of any jurisdiction
in which the making of the Offer or the acceptance of Shares in connection
therewith would not be in compliance with the laws of such jurisdiction.
Consequently, the Offer is currently being made to all holders of Shares. To the
extent the Purchaser or Eridania Beghin-Say becomes aware of any law that would
limit the class of offerees in the Offer, the Purchaser will amend the Offer
and, depending on the timing of such amendment, if any, will extend the Offer to
provide adequate dissemination of such information to holders of Shares prior to
the expiration of the Offer.
The Purchaser and Eridania Beghin-Say have filed with the Commission a
Statement on Schedule 14D-1 pursuant to Rule 14d-3 of the General Rules and
Regulations under the Exchange Act, furnishing certain additional information
with respect to the Offer, and may file amendments thereto. Such Statement and
any amendments thereto, including exhibits, may be examined and copies may be
obtained from the principal office of the Commission in Washington, D.C. in the
manner set forth in Section 8.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF ERIDANIA BEGHIN-SAY OR THE PURCHASER NOT CONTAINED
IN THIS OFFER TO PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED.
CERESTAR USA, INC.
February 28, 1995.
35
<PAGE> 38
SCHEDULE A
DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER,
ERIDANIA BEGHIN-SAY AND MONTEDISON
A. DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER
The following table sets forth the name, title, business address, nation of
citizenship, present principal occupation and material positions and occupations
within the past five years of each director and executive officer of the
Purchaser. Each person listed below, unless otherwise specified, is a citizen of
the United States and has his or her principal business address at the offices
of the Purchaser.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT,
MATERIAL POSITIONS HELD DURING PAST FIVE YEARS
NAME AND TITLE AND BUSINESS ADDRESSES THEREOF
- --------------------------------- ----------------------------------------------------------
<S> <C>
A. Gerald Backstrom.............. Vice President and Treasurer of Central Soya Company,
Director, Vice President Inc., 1300 Fort Wayne National Bank Building, Fort Wayne,
and Treasurer IN 46802 since 1991; Director, Vice President and
Treasurer, Purchaser since 1994.
Andrew C. Harvard................ Vice President and General Counsel of Central Soya
Chairman of the Board, President Company, Inc., 1300 Fort Wayne National Bank Building,
and Chief Executive Officer Fort Wayne, IN 46802 since 1991; Chairman of the Board,
President and Chief Executive Officer, Purchaser since
1994; Vice President and Secretary of CSY Agri-Processing,
Inc., P.O. Box 1400, Fort Wayne, IN 46801-1400 since 1988;
Director and Secretary of Summit Publications, Inc., 1221
May Street, Hood River, OR 97231 since 1990; Director and
Secretary of Ferruzzi Trading USA, 1114 Avenue of the
Americas, New York, NY 10036 since 1990; Director of C.F.
Edible Oils Ltd., 2190 S. Service Road West, Oakville,
Ontario L6L 5N1, Canada since 1992.
Carl Hausmann.................... President and Chief Executive Officer of Central Soya
Director Company, Inc., 1300 Fort Wayne National Bank Building,
Fort Wayne, IN 46802 since 1992 and President, Cereol
Holding B.V., 149, avenue Louise, B 1050 Bruxelles,
Belgium since 1994; Director and Vice-Chairman of C.F.
Edible Oils Ltd., 2190 S. Service Road West, Oakville,
Ontario L6L 5N1, Canada since 1993; Director, Purchaser
since 1994; Vice President -- South American Operations,
Continental Grain Co., 277 Park Avenue, New York, NY
10172, 1978-1992.
Terrence E. Quinlan.............. Director of Corporate Law and Secretary, Central Soya
Vice President and Secretary Company, Inc., 1300 Fort Wayne National Bank Building,
Fort Wayne, IN 46802 since 1990; Vice President and
Secretary, Purchaser since 1994.
</TABLE>
A-1
<PAGE> 39
B. DIRECTORS AND EXECUTIVE OFFICERS OF ERIDANIA BEGHIN-SAY
The following table sets forth the name, title, business address, nation of
citizenship, present principal occupation and material positions and occupations
within the past five years of each director and executive officer of Eridania
Beghin-Say. Each person listed below, unless otherwise specified, is a citizen
of France and has his or her principal business address at the offices of
Eridania Beghin-Say.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT,
MATERIAL POSITIONS HELD DURING PAST FIVE YEARS
NAME AND TITLE AND BUSINESS ADDRESSES THEREOF
- --------------------------------- ----------------------------------------------------------
<S> <C>
Guido Angiolini*................. Manager of Accounting and Control, Montedison SpA, Foro
Director Buonaparte, 31 20121 Milan Italy; Director and/or officer
Foro Buonaparte, 31 of various affiliates and/or subsidiaries of Montedison
20121 Milan Italy SpA; Director Unico, Fenicia SpA, via XIII Giugno, 8,
48100 Ravena Italy during 1994; President, Sole SpA, via
degli Ariani, 152, 48100 Ravena Italy, during 1994;
Director, FIA (Financing and Investments) NV, Pietermaii
15, Curacao, since 1994; Director, AIFA Holding SA, via
XIII Giugno, 8, 48100 Ravena Italy since 1993; Director,
ALCA SA, 11 rue Aldringen, L2960 Luxembourg, 1993-1994;
Director, Calecestruzzi SpA, via Romolo Gessi, 20, 48100
Ravena Italy, 1993-1994; Director, Edison SpA, via
Rosellini, 15/17, 20124 Milan Italy during 1994; Director,
Eridania Beghin-Say SA since 1994; Director, European
Sugars France SA, via XIII Giugno, 8, 48100 Ravena Italy
since 1993; Director, Ferruzzi Italia SpA, via XIII
Giugno, 8, 48100 Ravena Italy since 1993; Director,
Fondiaria SpA, Piazza Della Liberta, 6, 50129 Florence
Italy since 1994; Director, Isvim SpA, Strada 1, Pallazzo
F6, Milanofiori, Assago Italy since 1993; Director,
Societa Italiana Finanziamenti Industriali SpA, Foro
Buonaparte, 31, Milan Italy, since 1993; Director, Societa
Editrice il Messaggero SpA, via Deltritone, 152, Rome
Italy, 1993-1994; Director, F.LLI Branca SpA, 1992-1994;
Director, Fermar SpA, via XIII Giugno, 8, 48100 Ravena
Italy, 1993-1994; Sindaco, Rinascente SpA, Palazzo Z,
Strada 5, 20089 Rozzano, Milanfiori (MI) Italy since 1993;
Director, Basento Chemica SpA, via Turati, 16/18, Milan
Italy, 1991-1993; Director, Caffaro SpA, 1989-1992;
Director, Chimica del Friuli SpA, Piazzale F. Marinotti 1,
Torviscosa (UD), I-33050 Italy, 1989-1991; Director,
Chimica del Friuli SpA during 1992; President,
Comav-Compositi Avanzati SpA, via Turati, 16/18, Milan
Italy, 1990-1992; Director Unico, Comav-Compositi Avanzati
SpA, via Turati, 16/18, Milan Italy, 1992-1993; Director,
Cotonificio Olcese-Veneziano, viale Vittorio Veneto, 16/A,
20124 Milan Italy, 1987-1989; Director, Fila Holding SpA,
viale Cesare Battisti 26, Biella, 15-34141 Italy,
1986-1989; Sindaco, Fiat Rimi SpA, Corso Guglielmo
Marconi, 10, 10125 Turin Italy during 1993; Director,
FTA-Filat. di Trieste ed Altessano, 1987-1989; Director,
Grassetto SpA, Riviera Paleocopa, N. 70, 35141 Padua Italy
during 1993; Director, Italesplosivi SpA, 1986-1989;
Director, Novaceta SpA (fusa in Fin-Novaceta), 1986-1991;
Director, Premafin Finance during 1993; Director, Premafin
International SA during 1993; Director, Simmel Difesa SpA,
1987-1991; Director, Snia Engineering SpA, via Turati,
16/18, Milan Italy, 1990-1992; Director, Snia Fibre SpA,
via Friuli, 55, 20031 Cesano Maderno, Milan Italy,
1986-1993; Director, Sipe Nobel SpA, 1988-1991; Director,
Sorin Buiomedica SpA, via Crescentino, 13040 Saluggia,
Vercelli Italy, 1992-1993.
</TABLE>
- ---------------
* Citizen of Italy
A-2
<PAGE> 40
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT,
MATERIAL POSITIONS HELD DURING PAST FIVE YEARS
NAME AND TITLE AND BUSINESS ADDRESSES THEREOF
- --------------------------------- ----------------------------------------------------------
<S> <C>
Antoine Bernheim................. General Partner, Lazard Freres & Cie., 121 boulevard
Director Haussmann, 75008 Paris France since 1967; Director,
121 boulevard Haussmann Eridania Beghin-Say since 1993; Chairman, Compagnies la
75008 Paris France France, 7-9 boulevard Haussmann, 75008 Paris France since
1972; Chairman, Euromarche, 180 Route Nationale 7, 91201
Athis-mons France, 1981-1991.
Enrico Bondi*.................... Managing Director and CEO, Montedison SpA, Foro Bounaparte
Vice Chairman 31, 20121 Milan Italy since 1993; Vice Chairman, Eridania
Beghin-Say SA since 1993; Managing Director and CEO,
Ferruzzi Finanziaria SpA, via XIII Giugno, 8, 48100 Ravena
Italy since 1993; Director and/or officer of various
affiliates and/or subsidiaries of Montedison SpA;
Chairman, Cementi Ravenna SpA, via XIII Giugno, 8, 48100
Ravena Italy during 1994; Chairman, European Sugars
(France) SA, 54 avenue Hoche, 75008 Paris France, 1993-
1994; Director and Chairman, European Sugars (France) SA,
54 avenue Hoche, 75008 Paris France since 1994; Vice
Chairman, Edison SpA, via Rosellini, 15/17, 20124 Milan
Italy 1993-1994; Director, Fondiaria SpA, Piazza Della
Liberta, 6, 50129 Florence Italy since 1993; Director,
Soc. Editrice il Messaggero SpA, via Deltritone, 152, Rome
Italy, 1993-1994; Director, Istituto Europeo di Oncologia
SrL, via Filoohemmetre, 10, Milan Italy since 1994; Sole
Director, EDP Difesa E Spazio SrL, 1988-1989; Managing
Director, EDP Difesa E Spazio SrL, 1989-1992; Chairman and
Managing Director, EDP Difesa E Spazio SrL, 1991-1992;
Chairman, Fiat Componenti E. Impianti per L'energia e
L'industria SpA, Corso Guglielmo Marconi, 10, 10125 Turin
Italy, 1989-1991; Managing Director, Fiat Componenti E.
Impianti per L'energia e L'industria SpA, Corso Guglielmo
Marconi, 10, 10125 Turin Italy, 1991-1992; Chairman, Fiat
Componenti E. Impianti per L'energia e L'industria SpA,
Curso Guglielmo Marconi, 10, 10125 Turin Italy, 1992-1993;
Managing Director, Simmel Difesa SpA, 1986-1991; Chairman,
Simmel Difesa SpA, 1993-1994; Director, Fiat Spazio SpA,
Corso Guglielmo Marconi, 10, 10125 Turin Italy, 1989-1992;
Chairman, Fiat Spazio SpA, Corso Guglielmo Marconi, 10,
10125 Turin Italy, 1992-1993; Director, Gilardini
Distribuizione SpA, Corso Guglielmo Marconi, 10, 10125
Turin Italy during 1991; Chairman, Gilardini
Distribuizione SpA, Corso Guglielmo Marconi, 10, 10125
Turin Italy, 1991-1993; Director, Arianespace SA,
boulevard de l'Europe, F-91006 Evry France during 1993;
Director, Airanespace Parteciparion SA, boulevard de
l'Europe, F-91006 Evry France, 1992-1993; Director, Fiat
Yaglama Urunleri AS, Corso Guglielmo Marconi, 10, 10125
Turin Italy, 1993-1994; Chairman, Coccia Pirotechnica SpA,
1988-1991; Chairman, Sigme SpA, 1989-1991; Chairman, Sepa
SpA, Corso Guglielmo Marconi, 10, 10125 Turin Italy during
1991; SpA, 1991-1992; Chairman, G.S. Gilardini
Silenziamento SrL, Corso Guglielmo Marconi, 10, 10125
Turin Italy, 1992-1993; Managing Director, Gilardini SpA,
Corso Guilio Cesare, 300, Turin I-10154 Italy, 1991-1993;
Managing Director, Sipe Nobel SpA, 1988-1991; Managing
Director, Simmel Meccanica SpA, 1988-1989; Director,
Italesplosivi SpA, 1988-1993; Director, Holding Systems
SpA, 1987-1989; Director, Sistemi Subacquei Welse SCPA
during 1991; Director, Usea SpA
</TABLE>
- ---------------
* Citizen of Italy
A-3
<PAGE> 41
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT,
MATERIAL POSITIONS HELD DURING PAST FIVE YEARS
NAME AND TITLE AND BUSINESS ADDRESSES THEREOF
- --------------------------------- ----------------------------------------------------------
<S> <C>
during 1991; Director, Whitehead SpA (ex Misar SpA), 1989-
1991; Director, Regulus SA, 1989-1991; Director, Marelli
Avio SpA during 1990; Director, Fiat Lubrificanti SrL,
1991-1993; Director, Sipal Arexons SpA during 1993;
Director, Gam SpA, 1991-1993; Director, Centro Ricerche
Chairman, Aerochemie SpA, 1989-1990; Chairman, Consorzio
Italmissile, 1989-1990; Chairman, Sepi SpA, 1992-1993;
Chairman, 3C SpA, Corso Guglielmo Marconi, 10, 10125 Turin
Italy, 1992-1993; Chairman, AutoflugFiat SpA, Corso
Guglielmo Marconi, 10, 10125 Turin Italy, 1991-1993;
Director, Ansaldo SpA, Piazza Carignano, 2, 16128 Genova
Italy, 1991-1992; Director, Magneti Marelli Poland SA,
Corso Guglielmo Marconi, 10, 10125 Turin Italy, 1992-1993.
Luigi Brasca*.................... Director and Director of Planning and Strategy of Eridania
Director and Director of Planning Beghin- Say since 1991; Director of Planning and Strategy,
and Strategy Eridania ZN, Corso Podeta, 2, Genoa Italy, 1986-1991;
Director of various subsidiaries of Eridania Beghin-Say;
Director, Montecatini SpA, via Taramelli, 26, 20124 Milan
Italy, 1990-1993.
Franco Brunetti*................. Group Vice President of Human Resources, Organization and
Director Corporate Communication, Montedison SpA and Ferruzzi SpA,
Foro Buonaparte, 31 Foro Buonaparte, 31, 20121 Milan Italy since 1995;
20121 Milan Italy Director, Eridania Beghin-Say since 1994; Director,
Fondiaria SpA, Piazza Della Liberta, 6, 50129 Florence
Italy since 1994; Human Resources and Organization
Director, Montedison SpA and Ferruzzi SpA, Foro
Buonaparte, 31, 20121 Milan Italy, 1994-1995; President
and Managing Director, F.I.V.F. Bianchi, viale R. Piaggio
25, Pontedera, I-56025 Italy, 1991-1994; General Director,
Piaggio PRO.IND., viale R. Piaggio 25, Pontedera, I-56025
Italy, 1991-1994; Director, Societa Editrice il Messaggero
SpA, via Deltritone, 152, Rome Italy during 1994.
Jacques-Henri David.............. Chief Executive Officer, Compagnie Generale Des Eaux, 52
Director rue d'Anjou, Paris France since 1993; Director, Eridania
52 rue d'Anjou Beghin-Say since 1989; Chairman and Chief Executive
75008 Paris France Officer, Banque Stern, 61 rue de Monceau, 75008 Paris
France, 1989-1992.
Jean-Martin Folz................. Chief Operating Officer of Eridania Beghin-Say since 1991;
Chief Operating Officer Director of various subsidiaries of Eridania Beghin-Say;
Chief Operating Officer, Pechiney, 10 place des Vosges,
92048 Paris La Defense Cedex 68 France, 1987-1991;
Director of various subsidiaries of Pechiney, 1987-1991;
Chairman and Chief Executive Officer, Le Carbone Lorraine,
Tour Manhattan, 92095 Paris La Defense 2 Cedex 21 France,
1987-1991; Director, Snecma,
21 boulevard du General Martial Valin, 75015 Paris France,
1990-1992.
</TABLE>
- ---------------
* Citizen of Italy
A-4
<PAGE> 42
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT,
MATERIAL POSITIONS HELD DURING PAST FIVE YEARS
NAME AND TITLE AND BUSINESS ADDRESSES THEREOF
- --------------------------------- ----------------------------------------------------------
<S> <C>
Michel Francois-Poncet........... Chairman of the Supervisory Board, Compagnie Financiere de
Permanent Representant Paribas, 3 rue d'Antin, 75002 Paris France since 1990;
Director Luis Vuitton Moet Hennessy, 30 avenue Hoche,
75008 Paris France since 1987; Director Havas, 136 avenue
du Generale de Gaulle, 9200 Neuilly sur Seine France since
1987; Director, Banca Internazionale Lombarda, Via Brera
21, 20121 Milan Italy since 1988; Permanent Representant,
Eridania Beghin-Say since 1988; Director, Axa, 23-25
avenue Matignon, 75008 Paris France since 1989; Director,
Ciments Francais, Tour Generale, 5 place de la Pyramide,
Quartier Villon, Puteaux Cedex 22, 92008 Paris La Defense
France since 1992; Director, Schneider SA, 64-70 avenue
Jean Baptiste Clement, 92100 Boulogne-Billancourt France
since 1993; Director, Total, Tour Total, 24 cours
Michelet, 92800 Puteaux France since 1993; Director
Compagnie de Navigation Mixte, 10 rue Volney, 75002 Paris
France since 1994; Director, Banca Commerciale Italiana
(Comit), Piazza della Scala 6, 10020 Milan Italy since
1994; Director, C.L.T., Villa Louvigny, Luxembourg,
1986-1992; Director, Credit National, 45 rue Saint
Dominique, 75007 Paris France, 1988-1991; Director,
Ferruzzi Finanziaria SpA, Via Degli Ariani 1, 48100
Ravenna Italy, 1988- 1993; Director, Club Mediterranee, 25
rue Vivienne, 75002 Paris France, 1989-1994.
Georges Garinois................. Farmer, 51220 Villers Franqueux France, since before 1989;
Director Director, Eridania Beghin-Say since 1986; Director of
51220 Villers Franqueux France various subsidiaries of Eridania Beghin-Say; Director,
Societe de Service des Betteraviers, 1991-1992.
Philippe Malet................... President, Compagnie des Salins du Midi des Salines de
Director L'Est, 51 rue d'Anjou, 75008 Paris France since 1982;
51 rue d'Anjou Director, Eridania Beghin-Say since 1972.
75008 Paris France
Ross L. Mc Innes................. Chief Financial Officer of Eridania Beghin-Say since 1991;
Chief Financial Officer Managing Director, European Sugars France, 54 avenue
Hoche, 75008 Paris France since 1991; Director of various
subsidiaries of Eridania Beghin-Say; Chief Financial
Officer, Montedison Corporation of America, 1114 Avenue of
the Americas, New York, NY 10036, 1989-1991; Chief
Financial Officer, Ferruzzi Corporation of America, 1114
Avenue of the Americas, New York, NY 10036, 1989-1991;
Director, Alerion Bank, 200 Carrondelet Street, New
Orleans, LA 70130, 1989-1993.
</TABLE>
A-5
<PAGE> 43
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT,
MATERIAL POSITIONS HELD DURING PAST FIVE YEARS
NAME AND TITLE AND BUSINESS ADDRESSES THEREOF
- --------------------------------- ----------------------------------------------------------
<S> <C>
Stefano Meloni*.................. Chief Financial Officer, Montedison SpA and Ferruzzi
President Finanziaria SpA, Foro Buonaparte, 31, 20121 Milan Italy
Foro Buonaparte, 31 since 1993; Director and/or officer of various affiliates
20121 Milan Italy and/or subsidiaries of Montedison, SpA; President, Compor
SrL since 1993; President, Eridania Beghin-Say since 1994;
President, Sepad SA, II rue Aldringen, L2960 Luxembourg,
since 1994; Director, Banca Mercantile Italiana Spa,
Piazza Davanzati, 3, 50123 Florence Italy, 1993-1994;
Director, Cal-Nat SA, via XIII Giugno, 8, 48100 Ravena
Italy since 1994; Director, Cementi Ravenna SpA, via XIII
Giugno, 8, 48100 Ravena Italy during 1994; Director,
Fondiaria SpA, Piazza Della Liberta, 6, 50129 Florence
Italy since 1993; Director, Gemina SpA, via F. Turati,
16/18, 20121 Milan Italy since 1993; Director, La
Previdente Assicurazioni SpA, via Copernico, 38, 20125
Milan Italy since 1994; Director, Milano Assicurazioni
SpA, via Copernico, 38, 20155 Milan Italy since 1994;
Director, Societa Editrice il Messaggero SpA, via
Deltritone, 152, Rome Italy, 1993-1994; Director Delegato
Direttore Generale, Eptaconsors SpA, 1985-1993; Director
Delegato, Eptafund SpA, 1985-1993; President, Eptacom SpA,
1989-1990; President, Eptacom SpA, 1990-1993; Vice
President, Eptafid SpA, 1986-1993; President, Eptasim SpA,
1991-1992; Vice President, Eptasim SpA 1992-1993;
Director, Brown Shipley Holdings plc, Founders Court,
Lothbury, London EC2R 7HE England, 1992-1993; Director,
Ernesto Frabboni Impresa Costruz. SpA, 1991-1992;
Supervisor Director, Swedish Match Group, 1990-1992;
Direttore Generale, Banco di Sardegna SpA, viale Umberto,
36, 07100 Sassari Italy during 1993; Director, Cartiere
Burgo SpA, via del Freidano, 8, San Mauro Torinese, Turin
Italy since 1994; Membro Sindac. Blocco, Cartiere Burgo
SpA, via del Freidano, 8, San Mauro Torinese, Turin Italy
since 1994; Director, Centrofinanziaria SpA, via Fleminia,
888, Rome Italy, 1993-1994; Vice President, Italian
International Bank plc, Piazza Salimbeni 3, 53100 Siena
(SI) Italy, 1993-1994; President, Sefimed SpA, Foro
Buonaparte, 31, Milan Italy since 1993; President, Societa
Italiana Finanziamenti Industriali SpA, Foro Buonaparte,
31, Milan Italy, 1993-1995.
Nicola Palmieri*................. General Counsel, Montedison SpA and Ferruzzi Finanziaria
Director SpA, Foro Buonaparte, 31, 20121 Milan Italy since 1994;
Foro Buonaparte, 31 Director, Eridania Beghin-Say since 1994; General Counsel,
20121 Milan Italy Group Vice President and Corporate Secretary, BASF
Corporation, Grosskunden Platz, D-67056 Ludwigshafen,
Germany, 1990-1994.
Jean-Marie Pillois............... Corporate Secretary of Eridania Beghin-Say since 1991;
Corporate Secretary Director of various subsidiaries of Eridania Beghin-Say;
Corporate Management Advisor, Compagnie Generale des Eaux,
52 rue d'Anjou, 75008 Paris France, 1987-1990.
Guido Rossi*..................... Attorney, via S. Andrea, 2, 20100 Milan Italy since before
Director 1989; Chairman, Montedison SpA and Ferruzzi Finanziaria
via S, Andrea, 2 SpA, Foro Buonaparte, 31, 20121 Milan Italy, 1993-1995;
20100 Milan Italy Director, Eridania Beghin-Say since 1993; Director,
Assicurazioni Generali,
1986-1994.
</TABLE>
- ---------------
* Citizen of Italy
A-6
<PAGE> 44
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT,
MATERIAL POSITIONS HELD DURING PAST FIVE YEARS
NAME AND TITLE AND BUSINESS ADDRESSES THEREOF
- --------------------------------- ----------------------------------------------------------
<S> <C>
Jean-Marc Vernes................. President, Banques Vernes, 15 rue des Pyramides, 75001
Director Paris France since 1990 and President, Societe Centrale
15 rue des Pyramides d'Investissement, 29 rue de Monceau, 75008 Paris France
75001 Paris France since 1990; Director, Eridania Beghin-Say since 1993;
Director, Montedison SpA, via XIII Giugno, 8, 48100 Ravena
Italy, 1990-1993; President, Eridania Beghin-Say,
1977-1993.
Edoardo Vigano'*................. Director of Accounting and Control of Eridania Beghin-Say
Director of Accounting since 1992; Director of Accounting and Control, Eridania
and Control ZN, Corso Podeta, 2, Genoa Italy, 1969-1992; Director of
various subsidiaries of Eridania Beghin-Say.
</TABLE>
- ---------------
* Citizen of Italy.
A-7
<PAGE> 45
C. DIRECTORS AND EXECUTIVE OFFICERS OF MONTEDISON
The following table sets forth the name, title, business address, nation of
citizenship, present principal occupation and material positions and occupations
within the past five years of each director and executive officer of Montedison.
Each person listed below, unless otherwise specified, is a citizen of Italy and
has his or her principal business address at the offices of Montedison.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT,
MATERIAL POSITIONS HELD DURING PAST FIVE YEARS
NAME AND TITLE AND BUSINESS ADDRESSES THEREOF
- ---------------------------------------- ---------------------------------------------------
<S> <C>
Guido Angiolini......................... Manager of Accounting and Control, Montedison SpA,
Manager of Accounting and Control Foro Buonaparte, 31 20121 Milan Italy; Director
and/or officer of various affiliates and/or
subsidiaries of Montedison SpA; Director Unico,
Fenicia SpA, via XIII Giugno, 8, 48100 Ravena Italy
during 1994; President, Sole SpA, via degli Ariani,
152, 48100 Ravena Italy during 1994; Director, FIA
(Financing and Investments) NV, Pietermaii 15,
Curacao since 1994; Director, AIFA Holding SA, via
XIII Giugno, 8, 48100 Ravena Italy since 1993;
Director, ALCA SA, 11 rue Aldringen, L2960
Luxembourg, 1993-1994; Director, Calecestruzzi SpA,
via Rosellini, 15/17, 20124 Milan Italy via Romolo
Gessi, 20, 48100 Ravena Italy, 1993-1994; Director,
Edison SpA, during 1994; Director, Eridania
Beghin-Say SA since 1994; Director, European Sugars
France SA, via XIII Giugno, 8, 48100 Ravena Italy
since 1993; Director, Ferruzzi Italia SpA, via XIII
Giugno, 8, 48100 Ravena Italy since 1993; Director,
Fondiaria SpA, Piazza Della Liberta, 6, 50129
Florence Italy since 1994; Director, Isvim SpA,
Strada 1, Pallazzo F6, Milanofiori, Assago Italy
since 1993; Director, Societa Italiana
Finanziamenti Industriali SpA, Foro Buonaparte 31,
Milan Italy since 1993; Director, Societa Editrice
il Messaggero SpA, via Deltritone, 152, Rome Italy,
1993-1994; Director, F.LLI Branca SpA, 1992-1994;
Director, Fermar SpA, via XIII Giugno, 8, 48100
Ravena Italy, 1993-1994; Sindaco, Rinascente SpA,
Palazzo Z, Strada 5, 20089 Rozzano, Milanfiori (MI)
Italy since 1993; Director, Basento Chemica SpA,
via Turati, 16/18, Milan Italy, 1991-1993;
Director, Caffaro SpA, 1989-1992; Director, Chimica
del Friuli SpA, Piazzale F. Marinotti 1, Torviscosa
(UD), I-33050 Italy, 1989-1991; Director, Chimica
del Friuli SpA during 1992; President, Comav-
Compositi Avanzati SpA, via Turati, 16/18, Milan
Italy, 1990-1992; Director Unico, Comav-Compositi
Avanzati SpA, via Turati, 16/18, Milan Italy,
1992-1993; Director, Cotonificio Olcese-Veneziano,
viale Vittorio Veneto, 16/A, 20124 Milan Italy,
1987-1989; Director, Fila Holding SpA, viale Cesare
Battisti 26, Biella, 15-34141 Italy, 1986-1989;
Sindaco, Fiat Rimi SpA, Corso Guglielmo Marconi 10,
10125 Turin Italy during 1993; Director, FTA-Filat.
di Trieste ed Altessano, 1987-1989; Director,
Grassetto SpA, Riviera Paleocopa, N. 70, 35141
Padua Italy during 1993; Director, Italesplosivi
SpA, 1986-1989; Director, Novaceta
</TABLE>
A-8
<PAGE> 46
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT,
MATERIAL POSITIONS HELD DURING PAST FIVE YEARS
NAME AND TITLE AND BUSINESS ADDRESSES THEREOF
- ---------------------------------------- ---------------------------------------------------
<S> <C>
SpA (fusa in Fin-Novaceta), 1986-1991; Director,
Premafin Finance during 1993; Director, Premafin
International SA during 1993; Director, Simmel
Difesa SpA, 1987-1991; Director, Snia Engineering
SpA, via Turati, 16/18, Milan Italy, 1990-1992;
Director, Snia Fibre SpA, via Friuli, 55, 20031
Cesano Maderno, Milan Italy, 1986-1993; Director,
Sipe Nobel SpA, 1988-1991; Director, Sorin
Buiomedica SpA, via Crescentino, 13040 Saluggia,
Vercelli Italy, 1992-1993.
Enrico Bondi............................ Managing Director and CEO, Montedison SpA, Foro
Managing Director and Bounaparte 31, 20121 Milan Italy since 1993; Vice
Chief Executive Officer Chairman, Eridania Beghin-Say SA since 1993;
Managing Director and CEO, Ferruzzi Finanziaria
SpA, via XIII Giugno, 8, 48100 Ravena Italy since
1993; Director and/or officer of various affiliates
and/or subsidiaries of Montedison SpA; Chairman,
Cementi Ravenna SpA, via XIII Giugno, 8, 48100
Ravena Italy during 1994; Chairman, European Sugars
(France) SA, 54 avenue Hoche, 75008 Paris France,
1993-1994; Director and Chairman, European Sugars
(France) SA, 54 avenue Hoche, 75008 Paris France
since 1994; Vice Chairman, Edison SpA, via
Rosellini, 15/17, 20124 Milan Italy 1993-1994;
Director, Fondiaria SpA, Piazza Della Liberta, 6,
50129 Florence Italy since 1993; Director, Soc.
Editrice il Messaggero SpA, via Deltritone, 152,
Rome Italy, 1993-1994; Director, Istituto Europeo
di Oncologia SrL, via Filoohemmetre, 10, Milan
Italy since 1994; Sole Director, EDP Difesa E
Spazio SrL, 1988-1989; Managing Director, EDP
Difesa E Spazio SrL, 1989-1992; Chairman and
Managing Director, EDP Difesa E Spazio SrL,
1991-1992; Chairman, Fiat Componenti E. Impianti
per L'energia e L'industria SpA, Corso Guglielmo
Marconi, 10, 10125 Turin Italy during 1991;
Chairman, Gilardini, Distribuizione SpA, Corso
Guglielmo Marconi, 10, 10125 Turin Italy,
1991-1993; Director, Arianespace SA, boulevard de
l'Europe, F-91006 Evry France during 1993;
Director, Airanespace Parteciparion SA, boulevard
de l'Europe, F-91006 Evry France, 1992-1993;
Director, Fiat Yaglama Urunleri AS, Corso Guglielmo
Marconi, 10, 10125 Turin Italy, 1993-1994;
Chairman, Coccia Pirotechnica SpA, 1988-1991;
Chairman, Sigme SpA, 1989-1991; Chairman, Sepa SpA
Corso Guglielmo Marconi, 10, 10125 Turin Italy
during 1991; SpA, 1991-1992; Chairman, G.S.
Gilardini Silenziamento SrL, Corso Guglielmo
Marconi 10, 10125 Turin Italy, 1992-1993; Managing
Director, Gilardini SpA, Corso Guilio Cesare, 300,
Turin I-10154 Italy, 1991-1993; Managing Director,
Sipe Nobel SpA, 1988-1991; Managing Director,
Simmel Meccanica SpA, 1988-1989; Director,
Italesplosivi SpA, 1988-1993; Director, Holding
Systems
</TABLE>
A-9
<PAGE> 47
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT,
MATERIAL POSITIONS HELD DURING PAST FIVE YEARS
NAME AND TITLE AND BUSINESS ADDRESSES THEREOF
- ---------------------------------------- ---------------------------------------------------
<S> <C>
SpA, 1987-1989; Director, Sistemi Subacquei Welse
SCPA during 1991; Director, Usea SpA during 1991;
Director, Whitehead SpA (ex Misar SpA), 1989-1991;
Director, Regulus SA, 1989-1991; Director, Marelli
Avio SpA during 1990; Director, Fiat Lubrificanti
SrL, 1991-1993; Director, Sipal Arexons SpA during
1993; Director, Gam SpA, 1991-1993; Director,
Centro Ricerche Chairman, Aerochemie SpA,
1989-1990; Chairman, Consorzio Italmissile,
1989-1990; Chairman, Sepi SpA, 1992-1993; Chairman,
3C SpA, Corso Guglielmo Marconi 10, 10125 Turin
Italy, 1992-1993; Chairman, AutoflugFiat SpA, Corso
Guglielmo Marconi, 10, 10125 Turin Italy,
1991-1993; Director, Ansaldo SpA, Piazza Carignano,
2, 16128 Genova Italy, 1991-1992; Director, Magneti
Marelli Poland SA, Corso Guglielmo Marconi 10,
10125 Turin Italy, 1992-1993.
Franco Brunetti......................... Group Vice President of Human Resources,
Group Vice President of Organization and Corporate Communication,
Human Resources, Montedison SpA and Ferruzzi SpA, Foro Buonaparte,
Organization and 31, 20121 Milan Italy since 1995; Director,
Corporate Eridania Beghin-Say since 1994; Director, Fondiaria
Communication SpA, Piazza Della Liberta, 6, 50129 Florence Italy
since 1994; Human Resources and Organization
Director, Montedison SpA and Ferruzzi SpA, Foro
Buonaparte 31, 20121 Milan Italy, 1994-1995;
President and Managing Director, F.I.V.F. Bianchi,
viale R. Piaggio 25, Pontedera, I-56025 Italy,
1991-1994; General Director, Piaggio PRO.IND.,
viale R. Piaggio 25, Pontedera, I-56025 Italy,
1991-1994; Director, Societa Editrice il Messaggero
SpA, via Deltritone, 152, Rome Italy during 1994.
Fulvio Conti............................ Manager of Finance, Montedison SpA, since 1993;
Manager of Finance Director and/or officer of various affiliates
and/or subsidiaries of Montedison SpA; President,
Ferruzzi Finance SpA, via XIII Giugno, 8, 48100
Ravena Italy during 1994; President, Finalfa SpA,
c/o Republic New York, 452 Fifth Avenue, New York,
New York 10018, 1992-1994.
Alberto Mario Ferrari................... Director, Montedison SpA since 1994; Director
Director and/or officer of various affiliates and/or
subsidiaries of Montedison SpA; Chairman, La
Fondiari Assicurazioni SpA, via Lorenzo il
Magnifico, 1, 50129 Florence Italy, 1993-1994;
Chairman, La Previndente SpA, via Copernico, 38,
20125 Milan Italy, 1993-1994; Chairman, Milano
Assicurazioni SpA, 1993-1994; Chairman, Ferruzzi
Corporation of America, 32 Lockerman Square, Suite
6100, Dover Kent, Delaware 19901 since 1989; Vice
Chairman and Managing Director, Globo
Communication, 19, Avenue las Castellans, 98000
Monaco, 1991-1994.
</TABLE>
A-10
<PAGE> 48
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT,
MATERIAL POSITIONS HELD DURING PAST FIVE YEARS
NAME AND TITLE AND BUSINESS ADDRESSES THEREOF
- ---------------------------------------- ---------------------------------------------------
<S> <C>
Luigi Lucchini.......................... Chairman, Montedison SpA and Ferruzzi Finanziaria
Chairman SpA, since 1995; Chairman, Lucchini SpA since 1974;
Chairman, Lucchini Siderurgica SpA since 1980;
Chairman, Lutrix SrL since 1989; Chairman, La
Magona d'Italia since 1989; Director, SMI SpA since
1979; Director, Assicurazioni Generali, Piazza Duce
degli Abruzzi, 2, Trieste Italy since 1992; Vice
Chairman, Consortium SpA since 1994; Member of the
International Consulting Committee, Danone SA since
1983; Chairman, Fondazione Lucchini since 1990;
Director, Inc. Olivetti EC SpA, 1984-1991;
Director, SNIA BPD SpA, 1989-1992.
Stefano Meloni.......................... Chief Financial Officer, Montedison SpA and
Chief Financial Officer Ferruzzi Finanziaria SpA, Foro Buonaparte, 31,
20121 Milan Italy since 1993; Director and/or
officer of various affiliates and/or subsidiaries
of Montedison, SpA; President, Compor SrL since
1993; President, Eridania Beghin-Say since 1994;
President, Sepad SA, 11 rue Aldringen, L2960
Luxembourg since 1994; Director, Banca Mercantile
Italiana Spa, Piazza Davanzati, 3, 50123 Florence
Italy, 1993-1994; Director, Cal-Nat SA, via XIII
Giugno, 8, 48100 Ravena Italy since 1994; Director,
Cementi Ravenna SpA, via XIII Giugno, 8, 48100
Ravena Italy during 1994; Director, Fondiaria SpA,
Piazza Della Liberta, 6, 50129 Florence Italy since
1993; Director, Gemina SpA, via F. Turati, 16/18,
20121 Milan Italy since 1993; Director, La
Previdente Assicurazioni SpA, via Copernico, 38,
20125 Milan Italy since 1994; Director, Milano
Assicurazioni SpA since 1994; Director, Societa
Editrice il Messaggero SpA 1993-1994; Director
Delegato Direttore Generale, Eptaconsors SpA,
1985-1993; Director Delegato, Eptafund SpA,
1985-1993; President, Eptacom SpA, 1989-1990;
President, Eptacom SpA, 1990-1993; Vice President,
Eptafid SpA, 1986-1993; President, Eptasim SpA,
1991- 1992; Vice President, Eptasim SpA 1992-1993;
Director, Brown Shipley Holdings plc, Founders
Court, Lothbury, London EC2R 7HE England,
1992-1993; Director, Ernesto Frabboni Impresa
Costruz. SpA, 1991-1992; Supervisor Director,
Swedish Match Group, 1990-1992; Direttore Gener-
ale, Banco di Sardegna SpA, viale Umberto, 36,
07100 Sassari Italy during 1993; Director, Cartiere
Burgo SpA, via del Freidano, 8, San Mauro Torinese,
Turin Italy since 1994; Membro Sindac. Blocco,
Cartiere Burgo SpA, via del Freidano, 8, San Mauro
Torinese, Turin Italy since 1994; Director,
Centrofinanziaria SpA, via Fleminia, 888, Rome
Italy, 1993-1994; Vice President, Italian
International Bank plc, Piazza Salimbeni 3, 53100
Siena (SI) Italy, 1993-1994; President, Sefimed
SpA, Foro Buonaparte, 31, Milan Italy since 1993;
President, Societa Italiana Finanziamenti Industri-
ali SpA, Foro Buonaparte, 31, Milan Italy,
1993-1995.
</TABLE>
A-11
<PAGE> 49
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT,
MATERIAL POSITIONS HELD DURING PAST FIVE YEARS
NAME AND TITLE AND BUSINESS ADDRESSES THEREOF
- ---------------------------------------- ---------------------------------------------------
<S> <C>
Ariberto Mignoli........................ Director, Montedison SpA since 1993; Director,
Director Gemina SpA, via F. Turati, 16/18, 20121 Milan Italy
since 1988; Director, Mediobanca SpA, via G.
Griziotti, 4, Milan Italy since 1994; Director,
Olivetti SpA, via G. Jervis, 77, 10015 Ivrea Turin
Italy, 1992-1993.
Nicola Palmieri......................... General Counsel, Montedison SpA and Ferruzzi
General Counsel Finanziaria SpA, Foro Buonaparte, 31, 20121 Milan
Italy since 1994; Director, Eridania Beghin-Say
since 1994; General Counsel, Group Vice President
and Corporate Secretary, BASF Corporation,
Grosskunden Platz, D-67056 Ludwigshafen, Germany,
1990-1994.
Umberto Tracanella...................... Director, Montedison SpA since 1994; Director,
Director Ferruzzi Finanziaria SpA since 1993; Director,
Trenno SpA, via Ippodromo, 100, Milan Italy since
1986; President del Collegio Sindacale, Davide
Campari SpA since 1994; Director, Centenari e
Zinelli SpA, via Fabio Falzi, 23, 20124 Milan Italy
since 1994; Avvocato Libero Professionista since
before 1989; Director, Sport e Spettacolo Ippico
SrL, via Ippodromo, 100, Milan Italy, 1986-1994.
</TABLE>
A-12
<PAGE> 50
The Letter of Transmittal, certificates for the Shares and any other
required documents should be sent by each shareholder of the Company or his
broker-dealer, commercial bank, trust company or other nominee to the Depositary
as follows:
The Depositary for the Offer is:
THE FIRST CHICAGO TRUST COMPANY
OF NEW YORK
<TABLE>
<S> <C> <C>
By Mail: By Facsimile Transmission: By Hand or Overnight
Courier:
Tenders & Exchanges (For Eligible Institutions Tenders & Exchanges
Suite 4660 Only) Suite 4680 -- AMC
P.O. Box 2563 Fax: (201) 222-4720 or 4721 14 Wall Street, 8th Floor
Jersey City, NJ 07303-2563 New York, NY 10005
Confirm Facsimile Transmission
by Telephone:
(201) 222-4707
</TABLE>
Any questions or requests for assistance or additional copies of the Offer
to Purchase and the Letter of Transmittal may be directed to the Information
Agent or the Dealer Manager at their respective telephone numbers and locations
listed below. You may also contact your broker, dealer, commercial bank or trust
company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
[LOGO]
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (call collect)
or
TOLL-FREE (800) 322-2885
The Dealer Manager for the Offer is:
LAZARD FRERES & CO.
One Rockefeller Plaza
New York, New York 10020
CALL TOLL FREE (800) 542-0970.
<PAGE> 1
Exhibit (a)(2)
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF
AMERICAN MAIZE-PRODUCTS COMPANY
PURSUANT TO THE OFFER TO PURCHASE
DATED FEBRUARY 28, 1995
CERESTAR USA, INC.,
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
ERIDANIA BEGHIN-SAY, S.A.
- ------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, MARCH 27, 1995, UNLESS THE OFFER IS EXTENDED.
- ------------------------------------------------------------------------------
The Depositary for the Offer is:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
<TABLE>
<S> <C>
By Mail: By Hand or
Overnight Courier:
Tenders & Exchanges Tenders & Exchanges
Suite 4660 Suite 4680 -- AMC
P.O. Box 2563 14 Wall Street, 8th Floor
Jersey City, NJ 07303-2563 New York, NY 10005
</TABLE>
------------------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed by shareholders if
certificates for Shares (as defined below) are to be forwarded herewith or if
tenders of Shares are to be made by book-entry transfer to the account
maintained by the Depositary at The Depository Trust Company ("DTC"), the
Midwest Securities Trust Company ("MSTC") or the Philadelphia Depository Trust
Company ("PDTC" and, together with DTC and MSTC, sometimes collectively referred
to as the "Depository Institutions"), pursuant to the procedures set forth in
Section 3 of the Offer to Purchase (as defined below). Shareholders who tender
Shares by book-entry transfer are referred to herein as "Book-Entry
Shareholders" and other shareholders are referred to herein as "Certificate
Shareholders." Shareholders whose certificates are not immediately available or
who cannot deliver their certificates and all other documents required hereby to
the Depositary on or prior to the Expiration Date (as defined in the Offer to
Purchase), or who cannot comply with the book-entry transfer procedures on a
timely basis, may nevertheless tender their Shares according to the guaranteed
delivery procedure set forth in Section 3 of the Offer to Purchase. See
Instruction 2. DELIVERY OF DOCUMENTS TO A DEPOSITORY INSTITUTION DOES NOT
CONSTITUTE DELIVERY TO THE DEPOSITARY.
/ / CHECK HERE IF SHARES ARE BEING TENDERED BY BOOK-ENTRY TRANSFER MADE TO THE
ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A DEPOSITORY INSTITUTION AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution
Check Box of Applicable Depository Institution
/ / DTC / / MSTC or / / PDTC (check one)
-----------------------------------
<PAGE> 2
Account Number
------------------------------------------------------------
Transaction Code Number
---------------------------------------------------
/ / CHECK HERE IF SHARES ARE BEING TENDERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s)
--------------------------------------------
Date of Execution of Notice of Guaranteed Delivery
------------------------
Name of Institution which Guaranteed Delivery
-----------------------------
If Delivered by Book-Entry Transfer, Check Box of Applicable Depository
Institution:
/ / DTC / / MSTC or / / PDTC (check one)
Account Number (if Delivered by Book-Entry Transfer)
----------------------
Transaction Code Number
---------------------------------------------------
<PAGE> 3
<TABLE>
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES OF CLASS A COMMON STOCK TENDERED
- -----------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) SHARES OF CLASS A COMMON STOCK TENDERED
APPEAR(S) ON THE CERTIFICATE(S)) (ATTACH ADDITIONAL LIST IF NECESSARY)
- -----------------------------------------------------------------------------------------------------
TOTAL NUMBER OF NUMBER OF
SHARES OF CLASS A SHARES OF CLASS
COMMON STOCK A
CERTIFICATE EVIDENCED BY COMMON STOCK
NUMBER(S)* CERTIFICATE(S)* TENDERED**
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
TOTAL SHARES OF
CLASS
A COMMON STOCK
- -----------------------------------------------------------------------------------------------------
* Need not be completed by shareholders tendering by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all Shares of Class A Common Stock evidenced
by any certificate(s) delivered to the Depositary are being tendered. See Instruction 4.
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES OF CLASS B COMMON STOCK TENDERED
- -----------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) SHARES OF CLASS B COMMON STOCK TENDERED
APPEAR(S) ON THE CERTIFICATE(S)) (ATTACH ADDITIONAL LIST IF NECESSARY)
- -----------------------------------------------------------------------------------------------------
TOTAL NUMBER OF NUMBER OF
SHARES OF CLASS B SHARES OF CLASS
COMMON STOCK B
CERTIFICATE EVIDENCED BY COMMON STOCK
NUMBER(S)* CERTIFICATE(S)* TENDERED**
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
TOTAL SHARES OF
CLASS
B COMMON STOCK
- -----------------------------------------------------------------------------------------------------
* Need not be completed by shareholders tendering by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all Shares of Class B Common Stock evidenced
by any certificate(s) delivered to the Depositary are being tendered. See Instruction 4.
- -----------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 4
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to Cerestar USA, Inc., a Delaware
corporation (the "Purchaser") and an indirect wholly-owned subsidiary of
Eridania Beghin-Say, S.A., a corporation organized under the laws of France, the
above described shares of Class A Common Stock, par value $0.80 per share (the
"Class A Common Stock"), and/or of Class B Common Stock, par value $0.80 per
share (the "Class B Common Stock" and, together with the Class A Common Stock,
the "Shares"), of American Maize-Products Company, a Maine corporation (the
"Company"), pursuant to the Purchaser's offer to purchase all of the outstanding
Shares at a price of $40.00 per Share net to the seller in cash, upon the terms
and subject to the conditions set forth in the Offer to Purchase dated February
28, 1995 (the "Offer to Purchase"), receipt of which is hereby acknowledged, and
in this Letter of Transmittal (which, together with the Offer to Purchase,
constitutes the "Offer"). The undersigned understands that the Purchaser
reserves the right to transfer or assign, from time to time, in whole or in
part, to one or more of its affiliates, the right to purchase the Shares
tendered herewith.
Upon the terms and conditions of the Offer, subject to, and effective upon,
acceptance for payment of and payment for the Shares tendered herewith in
accordance with the terms of the Offer, the undersigned hereby sells, assigns
and transfers to, or upon the order of, the Purchaser, all right, title and
interest in and to all of the Shares that are being tendered hereby and any and
all cash dividends, distributions, rights, other Shares and other securities
issued or issuable in respect thereof on or after February 28, 1995
(collectively, "Distributions"), and appoints the Depositary the true and lawful
agent and attorney-in-fact of the undersigned with respect to such Shares (and
any Distributions) with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest) to (a) deliver such
Share Certificates (as defined herein) (and any Distributions) or transfer
ownership of such Shares (and any Distributions) on the account books maintained
by a Depository Institution, together in either such case with all accompanying
evidences of transfer and authenticity, to or upon the order of the Purchaser,
(b) present such Shares (and any Distributions) for transfer on the books of the
Company, and (c) receive all benefits and otherwise exercise all rights of
beneficial ownership of such Shares (and any Distributions), all in accordance
with the terms and conditions of the Offer.
The undersigned hereby irrevocably appoints the designees of the Purchaser,
and each of them, the attorneys-in-fact and proxies of the undersigned, each
with full power of substitution, to vote in such manner as each such attorney
and proxy or any substitute thereof, shall deem proper in the sole discretion of
such attorney-in-fact and proxy or substitute, and otherwise act (including
pursuant to written consent) with respect to all of the Shares tendered thereby
(and any Distributions) which have been accepted for payment by the Purchaser
prior to the time of such vote or action, which the undersigned is entitled to
vote at any meeting of the shareholders (whether annual or special and whether
or not an adjourned meeting) of the Company or otherwise. This proxy and power
of attorney is coupled with an interest in the Shares and is irrevocable and is
granted in consideration of, and is effective upon, the acceptance for payment
of such Shares (and any Distributions) by the Purchaser in accordance with the
terms of the Offer. Such acceptance for payment shall revoke any other proxy
granted by the undersigned at any time with respect to such Shares (and any
Distributions) and no subsequent proxies will be given (or if given will not be
deemed effective) with respect thereto by the undersigned. The undersigned
understands that in order for Shares to be deemed validly tendered, immediately
upon the Purchaser's acceptance of such Shares (and any Distributions) for
payment the Purchaser or its designee must be able to exercise full voting
rights with respect to such Shares (and any Distributions).
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares (and
any Distributions) tendered hereby and that when the same are accepted for
payment by the Purchaser, the Purchaser will acquire good, marketable and
unencumbered title thereto, free and clear of all liens, restrictions, charges
and encumbrances, and the same will not be subject to any adverse claim. The
undersigned will, upon request, execute and deliver any additional documents
deemed by the Depositary or the Purchaser to be necessary or desirable to
complete the sale, assignment and transfer of the Shares (and any Distributions)
tendered hereby. In addition, the undersigned shall promptly remit and transfer
to the Depositary for the account of the Purchaser any and all Distributions in
respect of the Shares tendered hereby, accompanied by appropriate documentation
of transfer; and, pending such remittance or appropriate assurance thereof, the
Purchaser shall be entitled to all rights and privileges as owner of any such
Distributions and may withhold the entire purchase price or deduct from the
purchase price the amount or value thereof, as determined by the Purchaser in
its sole discretion.
<PAGE> 5
All authority herein conferred or agreed to be conferred shall not be
affected by and shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
personal representatives, successors and assigns of the undersigned. Except as
stated in the Offer to Purchase, this tender is irrevocable.
The undersigned understands that tenders of Shares pursuant to any of the
procedures described in Section 3 of the Offer to Purchase and in the
instructions hereto and acceptance for payment of such Shares will constitute a
binding agreement between the undersigned and the Purchaser upon the terms and
subject to the conditions set forth in the Offer.
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the purchase price and/or return any certificates for
Shares not tendered or not accepted for payment in the name(s) of the registered
holder(s) appearing under "Description of Shares Tendered." Similarly, unless
otherwise indicated under "Special Delivery Instructions," please mail the check
for the purchase price and/or return any certificates for Shares not tendered or
not accepted for payment (and accompanying documents, as appropriate) to the
address(es) of the registered holder(s) appearing under "Description of Shares
Tendered." In the event that both the Special Delivery Instructions and the
Special Payment Instructions are completed, please issue the check for the
purchase price and/or issue any certificates for Shares not so tendered or
accepted for payment in the name of, and deliver said check and/or return such
certificates to, the person or persons so indicated. The undersigned recognizes
that the Purchaser has no obligation, pursuant to the Special Payment
Instructions, to transfer any Shares from the name of the registered holder
thereof if the Purchaser does not accept for payment any of the Shares so
tendered.
<PAGE> 6
- ------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificate(s) for Shares not tendered or not
purchased and/or the check for the purchase price of Shares purchased are to
be issued in the name of someone other than the undersigned.
Issue check and/or certificate(s) to:
Name:
------------------------------------------------------
(Please Type or Print)
Address:
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
(Include Zip Code)
-----------------------------------------------------------
(Tax Identification or Social Security No.)
(See Substitute Form W-9 on reverse side)
- ------------------------------------------------------------
- ------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificate(s) for Shares not tendered or not
purchased and/or the check for the purchase price of Shares purchased are to
be sent to someone other than the undersigned, or to the undersigned at an
address other than that shown above.
Mail check and/or certificate(s) to:
Name:
------------------------------------------------------
(Please Type or Print)
Address:
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
(Include Zip Code)
-----------------------------------------------------------
(Tax Identification or Social Security No.)
(See Substitute Form W-9 on reverse side)
- ------------------------------------------------------------
<PAGE> 7
IMPORTANT
SIGN HERE
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON REVERSE SIDE)
X
- --------------------------------------------------------------------------------
X
- --------------------------------------------------------------------------------
(SIGNATURE(S) OF HOLDER(S))
Dated: , 1995
(Must be signed by the registered holder(s) exactly as name(s) appear(s) on
stock certificate(s) or on a security position listing or by person(s)
authorized to become registered holder(s) by certificate and documents
transmitted herewith. If signature is by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations or others acting in a
fiduciary or representative capacity, please set forth full title and see
Instruction 5.)
Name(s):
------------------------------------------------------------------------
(PLEASE TYPE OR PRINT)
Capacity (Full Title)
-----------------------------------------------------------
Address:
------------------------------------------------------------------------
------------------------------------------------------------------------
(INCLUDING ZIP CODE)
Area Code and Telephone No.
-----------------------------------------------------
(DAYTIME PHONE NUMBER)
Tax Identification or Social Security Number
------------------------------------
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
Authorized Signature
------------------------------------------------------------
Name
----------------------------------------------------------------------------
(PLEASE TYPE OR PRINT)
Address:
------------------------------------------------------------------------
------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Name of Firm
--------------------------------------------------------------------
Dated: , 1995
<PAGE> 8
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Guarantee of Signatures. No signature guarantee on this Letter of
Transmittal is required (i) if this Letter of Transmittal is signed by the
registered holder of the Shares (which term, for the purposes of this document,
shall include any participant in a Book-Entry Transfer Facility whose name
appears on a security position listing as the owner of Shares) tendered
herewith, unless such holder has completed either the box entitled "Special
Payment Instructions" or the box entitled "Special Delivery Instructions" on the
reverse hereof or (ii) if such Shares are to be tendered for the account of a
bank, broker, dealer, credit union, savings association or other entity which is
a member in good standing of the Securities Transfer Agent's Medallion Program
(collectively, "Eligible Institutions"). In all other cases, all signatures on
the Letter of Transmittal must be guaranteed by an Eligible Institution. If the
Share Certificates are registered in the name of a person other than the signer
of this Letter of Transmittal, or payment of the purchase price is to be made or
certificates for unpurchased Shares are to be issued or returned to a person
other than the registered owner, then the tendered certificates must be endorsed
or accompanied by duly executed stock powers, in either case signed exactly as
the name or names of the registered owner or owners appear on the certificates,
with the signatures on the certificates or stock powers guaranteed by an
Eligible Institution. See Instruction 5.
2. Delivery of Letter of Transmittal and Certificates or Book-Entry
Confirmations. This Letter of Transmittal is to be used either if certificates
are to be forwarded herewith or if tenders are to be made pursuant to the
procedures for tender by book-entry transfer set forth in Section 3 of the Offer
to Purchase. Certificates for all physically tendered Shares ("Share
Certificates"), or confirmation of any book-entry transfer into the Depositary's
account at a Depository Institution of Shares tendered by book-entry transfer,
as well as this Letter of Transmittal or facsimile thereof, properly completed
and duly executed with any required signature guarantees, and any other
documents required by this Letter of Transmittal, must be received by the
Depositary at one of its addresses set forth herein on or prior to the
Expiration Date (as defined in the Offer to Purchase).
Shareholders whose certificates are not immediately available or who cannot
deliver their certificates and all other required documents to the Depositary on
or prior to the Expiration Date or who cannot complete the procedures for
book-entry transfer on a timely basis may nevertheless tender their Shares by
properly completing and duly executing a Notice of Guaranteed Delivery pursuant
to the guaranteed delivery procedure set forth in Section 3 of the Offer to
Purchase. Pursuant to such procedure: (i) such tender must be made by or through
an Eligible Institution; (ii) a properly completed and duly executed Notice of
Guaranteed Delivery substantially in the form provided by the Purchaser must be
received by the Depositary on or prior to the Expiration Date; and (iii) Share
Certificates, or confirmation of any book-entry transfer to the Depositary's
account at a Depository Institution of Shares tendered by book-entry transfer,
as well as a Letter of Transmittal, properly completed and duly executed with
any required signature guarantees, and all other documents required by this
Letter of Transmittal, must be received by the Depositary within five (5)
American Stock Exchange trading days after the date of execution of such Notice
of Guaranteed Delivery.
IF SHARE CERTIFICATES ARE FORWARDED SEPARATELY TO THE DEPOSITARY, A
PROPERLY COMPLETED AND DULY EXECUTED LETTER OF TRANSMITTAL MUST ACCOMPANY EACH
SUCH DELIVERY.
THE METHOD OF DELIVERY OF CERTIFICATES FOR SHARES AND ALL OTHER REQUIRED
DOCUMENTS, INCLUDING DELIVERY THROUGH ANY DEPOSITORY INSTITUTION, IS AT THE
ELECTION AND RISK OF THE TENDERING SHAREHOLDER. IF SUCH DELIVERY IS BY MAIL, IT
IS RECOMMENDED THAT SUCH CERTIFICATES AND DOCUMENTS BE SENT BY REGISTERED MAIL,
PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ASSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering shareholders, by execution of
this Letter of Transmittal (or facsimile thereof), waive any right to receive
any notice of the acceptance of their Shares for payment.
3. Inadequate Space. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares should be listed on a separate
schedule attached hereto.
4. Partial Tenders (Applicable to Certificate Shareholders Only). If fewer
than all the Shares evidenced by any certificate submitted are to be tendered,
fill in the number of Shares which are to be tendered in the box entitled
"Number of Shares Tendered." In such cases, new certificate(s) for the remainder
of the Shares that were evidenced by your old certificate(s) will be sent to
you, unless otherwise provided in the appropriate box on this Letter of
Transmittal, as soon as practicable after the Expiration Date. All Shares
represented by certificates delivered to the Depositary will be deemed to have
been tendered unless otherwise indicated.
5. Signatures on Letter of Transmittal; Stock Powers and Endorsements. If
this Letter of Transmittal is signed by the registered holders of the Shares
tendered hereby, the signature must correspond with the names as written on the
face of the certificates without alteration, enlargement or any change
whatsoever.
<PAGE> 9
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any of the tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any certificates or stock powers are
signed by trustees, executors, administrators, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and proper evidence satisfactory to the
Purchaser of their authority so to act must be submitted.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment is to be made to, or
certificates for shares not tendered or purchased are to be issued in the name
of, a person other than the registered holder(s). Signatures on such
certificates or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder of the certificate(s) listed, the certificate(s) must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name or names of the registered holder or holders appear on the
certificate(s). Signatures on such certificates or stock powers must be
guaranteed by an Eligible Institution.
6. Stock Transfer Taxes. The Purchaser will pay or cause to be paid any
stock transfer taxes with respect to the transfer and sale of purchased Shares
to it or its order pursuant to the Offer. If, however, payment of the purchase
price is to be made to, or (in the circumstances permitted hereby) if
certificates for Shares not tendered or purchased are to be registered in the
name of, any person other than the registered holder, or if tendered
certificates are registered in the name of any person other than the person(s)
signing this Letter of Transmittal, the amount of any stock transfer taxes
(whether imposed on the registered holder or such person) payable on account of
the transfer to such person will be deducted from the purchase price if
satisfactory evidence of the payment of such taxes, or exemption therefrom, is
not submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES LISTED IN THIS LETTER OF
TRANSMITTAL.
7. Special Payment and Delivery Instructions. If a check is to be issued
in the name of, and/or certificates for Shares not tendered or not accepted for
payment are to be issued or returned to, a person other than the signer of this
Letter of Transmittal or if a check and/or such certificates are to be mailed to
someone other than the signer of this Letter of Transmittal or to an address
other than that shown above, the appropriate boxes on this Letter of Transmittal
should be completed.
8. Requests for Assistance or Additional Copies. Questions or requests for
assistance may be directed to, or additional copies of the Offer to Purchase,
this Letter of Transmittal, the Notice of Guaranteed Delivery and other tender
offer materials may be obtained from, the Information Agent or the Dealer
Manager at their respective addresses set forth below or from your broker,
dealer, commercial bank or trust company.
9. Substitute Form W-9. Each tendering shareholder is required to provide
the Depositary with a correct Taxpayer Identification Number ("TIN"), generally
the shareholder's social security or federal employer identification number, on
Substitute Form W-9 below. Failure to provide the information on the form may
subject the tendering shareholder to 31% federal income tax withholding on the
payment of the purchase price. The box in Part 2 of the form may be checked if
the tendering shareholder has not been issued a TIN and has applied for a number
or intends to apply for a number in the near future. If the box in Part 2 is
checked and the Depositary is not provided with a TIN within 60 days, the
Depositary will withhold 31% of all payments of the purchase price thereafter
until a TIN is provided to the Depositary.
10. Lost, Destroyed or Stolen Certificates. If any certificate(s)
representing Shares has been lost, destroyed or stolen, the shareholder should
promptly notify the Depositary. The shareholder will then be instructed as to
the steps that must be taken in order to replace the certificate(s). This Letter
of Transmittal and related documents cannot be processed until the procedures
for replacing lost or destroyed certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE COPY THEREOF (TOGETHER
WITH CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED
DOCUMENTS) OR THE NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE
DEPOSITARY ON OR PRIOR TO THE EXPIRATION DATE (AS DEFINED IN THE OFFER TO
PURCHASE).
IMPORTANT TAX INFORMATION
Under the federal income tax law, a shareholder whose tendered Shares are
accepted for purchase is required by law to provide the Depositary (as payer)
with his correct taxpayer identification number, on Substitute Form W-9 below.
If such shareholder is an individual, the TIN is his or her social security
number. If the Depositary is
<PAGE> 10
not provided with the correct taxpayer identification number, the shareholder
may be subject to a $50 penalty imposed by the Internal Revenue Service. In
addition, payments that are made to such shareholder with respect to Shares
purchased pursuant to the Offer may be subject to backup withholding.
Certain shareholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, that shareholder must submit a Form W-8, signed under penalties of
perjury, attesting to that individual's exempt status. Such statements can be
obtained from the Depositary. See the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 for additional
instructions.
If backup withholding applies, the Depositary is required to withhold 31%
of any payments made to the shareholder. Backup withholding is not an additional
tax. Rather, the tax liability of persons subject to backup withholding will be
reduced by the amount of tax withheld. If withholding results in an overpayment
of taxes, a refund may be obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made to a shareholder
with respect to Shares purchased pursuant to the Offer, the shareholder is
required to notify the Depositary of his correct taxpayer identification number
by completing the form below certifying that the taxpayer identification number
provided on Substitute Form W-9 is correct (or that such shareholder is awaiting
a taxpayer identification number) and that (1) such shareholder has not been
notified by the Internal Revenue Service that he is subject to withholding as a
result of a failure to report all interest or dividends or (2) the Internal
Revenue Service has notified such shareholder that he is no longer subject to
backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The shareholder is required to give the Depositary the social security
number or employer identification number of the record owner of the Shares. If
the Shares are in more than one name or are not in the name of the actual owner,
consult the enclosed Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 for additional guidance on which number to report.
<TABLE>
<S> <C> <C>
- ---------------------------------------------------------------------------------------------------
PAYER'S NAME: FIRST CHICAGO TRUST COMPANY OF NEW YORK
- ---------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 -- Please provide your correct TIN PART 2 -- Awaiting TIN
and certify by signing and dating below Please see below. / /
FORM W-9 (See above for further explanation):
--------------------------------------------------------------------------
DEPARTMENT OF THE
TREASURY INTERNAL CERTIFICATION -- UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT: (1) THE
REVENUE SERVICE INFORMATION PROVIDED ON THIS FORM IS TRUE, CORRECT AND COMPLETE AND (2) I
AM NOT SUBJECT TO BACKUP WITHHOLDING EITHER BECAUSE I HAVE NOT BEEN
PAYER'S REQUEST FOR NOTIFIED BY THE INTERNAL REVENUE SERVICE (THE "IRS") THAT I AM SUBJECT TO
TAXPAYER IDENTIFICATION BACKUP WITHHOLDING AS A RESULT OF A FAILURE TO REPORT ALL INTEREST OR
NUMBER (TIN) DIVIDENDS OR THE IRS HAS NOTIFIED ME THAT I AM NO LONGER SUBJECT TO
BACKUP WITHHOLDING. (YOU MUST CROSS OUT ITEM (2) ABOVE IF YOU HAVE BEEN
NOTIFIED BY THE IRS THAT YOU ARE SUBJECT TO BACKUP WITHHOLDING BECAUSE OF
UNDERREPORTING INTEREST OR DIVIDENDS ON YOUR RETURN. HOWEVER, IF AFTER
BEING NOTIFIED BY THE IRS THAT YOU WERE SUBJECT TO BACKUP WITHHOLDING YOU
RECEIVED ANOTHER NOTIFICATION FROM THE IRS THAT YOU ARE NO LONGER SUBJECT
TO BACKUP WITHHOLDING, DO NOT CROSS OUT ITEM (2).)
--------------------------------------------------------------------------
SIGNATURE DATE
-------------------------------- ----------------------
ADDRESS
----------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
<PAGE> 11
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU
CHECKED THE BOX IN PART 2 OF SUBSTITUTE FORM W-9
- -------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (b)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number within sixty (60) days, 31%
of all reportable payments made to me thereafter will be withheld until I
provide a number.
- ------------------------------------------ ------------------------------
Signature Date
- -------------------------------------------------------
Name (Please Print)
- -------------------------------------------------------------------------------
The Information Agent for the Offer is:
[LOGO]
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (call collect)
or
TOLL-FREE (800) 322-2885
The Dealer Manager for the Offer is:
LAZARD FRERES & CO.
One Rockefeller Plaza
New York, New York 10020
CALL TOLL FREE (800) 542-0970
<PAGE> 1
Exhibit (a)(3)
LAZARD FRERES & CO.
ONE ROCKEFELLER PLAZA
NEW YORK, NEW YORK 10020
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
AMERICAN MAIZE-PRODUCTS COMPANY
AT
$40.00 NET PER SHARE
BY
CERESTAR USA, INC.,
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
ERIDANIA BEGHIN-SAY, S.A.
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, MARCH 27, 1995, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
February 28, 1995
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by Cerestar USA, Inc., a Delaware corporation (the
"Purchaser") and an indirect wholly-owned subsidiary of Eridania Beghin-Say,
S.A., a company organized under the laws of France ("Eridania Beghin-Say"), to
act as Financial Advisor and Dealer Manager in connection with its offer to
purchase all of the outstanding shares of Class A Common Stock, par value $0.80
per share (the "Class A Common Stock"), and the Class B Common Stock, par value
$0.80 per share (the "Class B Common Stock" and, together with the Class A
Common Stock, the "Shares") of American Maize-Products Company, a Maine
corporation (the "Company"), at a price of $40.00 per Share net to the seller in
cash, upon the terms and subject to the conditions set forth in the Purchaser's
Offer to Purchase dated February 28, 1995 (the "Offer to Purchase") and the
related Letter of Transmittal (which together constitute the "Offer"), copies of
which are enclosed herewith.
Please furnish copies of the enclosed materials to those of your clients
for whose accounts you hold Shares registered in your name or in the name of
your nominee.
The Offer is conditioned upon, among other things, there being 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 Eridania Beghin-Say 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 Eridania Beghin-Say and its affiliates have purchased or are then
obligated to purchase under the Stock Purchase Agreement, dated as of February
22, 1995, (the "Stock Purchase Agreement") among the Company, Eridania
Beghin-Say and the Purchaser (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 Eridania Beghin-Say and its affiliates, would constitute
at least a majority of the outstanding shares of Class B Common Stock
<PAGE> 2
on a fully diluted basis. The Offer is also subject to the other terms and
conditions contained in the Offer to Purchase.
For your information and for forwarding to your clients, we are enclosing
the following documents:
1. Offer to Purchase dated February 28, 1995;
2. Letter of Transmittal to tender shares (together with accompanying
Substitute Form W-9);
3. The Letter to Shareholders of the Company from the Chief Executive
Officer of the Company accompanied by the Company's Solicitation/
Recommendation Statement on Schedule 14D-9;
4. A printed form of letter which may be sent to your clients for
whose account you hold Shares in your name or in the name of your nominee,
with space provided for obtaining such clients' instructions with regard to
the Offer;
5. The Notice of Guaranteed Delivery to be used to accept the Offer if
certificates for Shares are not immediately available, if time will not
permit all required documents to reach the Depositary prior to the
Expiration Date (as defined in the Offer to Purchase) or if the procedure
for book-entry transfer cannot be completed on a timely basis;
6. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9; and
7. Return envelope addressed to the Depositary.
THE BOARD OF DIRECTORS OF THE COMPANY HAS DETERMINED THAT THE OFFER AND THE
MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE SHAREHOLDERS OF THE
COMPANY. THE BOARD OF DIRECTORS HAS APPROVED THE OFFER AND THE AGREEMENT AND
PLAN OF MERGER, DATED AS OF FEBRUARY 22, 1995 (THE "MERGER AGREEMENT") AND
RECOMMENDS THAT THE SHAREHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER ALL
THEIR SHARES PURSUANT TO THE OFFER.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, MARCH 27, 1995, UNLESS
THE OFFER IS EXTENDED.
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
amendment), the Purchaser will accept for payment and pay for all outstanding
Shares validly tendered prior to the Expiration Date and not theretofore
properly withdrawn. In all cases, payment for Shares accepted for payment
pursuant to the Offer will be made only after timely receipt by the Depositary
of certificates evidencing such Shares (or a confirmation of a book-entry
transfer of such Shares into the Depositary's account at The Depository Trust
Company, the Midwest Securities Trust Company or the Philadelphia Depository
Trust Company (collectively the "Depository Institutions")), a Letter of
Transmittal (or facsimile thereof) properly completed and duly executed and any
other required documents. See Section 3 of the Offer to Purchase.
If holders of Shares wish to tender, but it is impracticable for them to
forward their certificates or other required documents prior to the expiration
of the Offer, a tender may be effected by following the guaranteed delivery
procedure described in Section 3 of the Offer to Purchase.
The Purchaser will not pay any fees or commissions to any broker or dealer
or any other persons (other than the fees of the Dealer Manager and Information
Agent) in connection with the solicitation of tenders of Shares pursuant to the
Offer. You will be reimbursed for customary mailing and handling expenses
incurred by you in forwarding any of the enclosed materials to your clients. The
Purchaser will pay or cause to be paid any transfer taxes payable on the
transfer of shares of Shares to it, except as otherwise provided in Instruction
6 of the Letter of Transmittal.
2
<PAGE> 3
Any inquiries you may have with respect to the Offer should be addressed
to, and additional copies of the enclosed materials may be obtained by
contacting MacKenzie Partners, Inc., the Information Agent, at 156 Fifth Avenue,
New York, New York 10010 at (800) 322-2885 or Lazard Freres & Co., the Dealer
Manager, at One Rockefeller Plaza, New York, New York 10020, (800) 542-0970.
Very truly yours,
LAZARD FRERES & CO.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL APPOINT YOU OR
ANY OTHER PERSON THE AGENT OF THE PURCHASER, AN AFFILIATE OF THE PURCHASER,
ERIDANIA BEGHIN-SAY, THE DEALER MANAGER, THE DEPOSITARY OR THE INFORMATION
AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO GIVE ANY INFORMATION OR USE ANY
DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF ANY OF THEM WITH RESPECT TO THE
OFFER OTHER THAN THE ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
3
<PAGE> 1
Exhibit (a)(4)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
AMERICAN MAIZE-PRODUCTS COMPANY
AT
$40.00 NET PER SHARE
BY
CERESTAR USA, INC.,
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
ERIDANIA BEGHIN-SAY, S.A.
- ------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, MARCH 27, 1995, UNLESS THE OFFER IS EXTENDED.
- ------------------------------------------------------------------------------
To Our Clients:
Enclosed for your consideration are the Offer to Purchase dated February
28, 1995 (the "Offer to Purchase") and the related Letter of Transmittal (which
together constitute the "Offer") relating to an offer by Cerestar USA, Inc., a
Delaware corporation (the "Purchaser") and an indirect wholly-owned subsidiary
of Eridania Beghin-Say, S.A., a company organized under the laws of France
("Eridania Beghin-Say"), to purchase all outstanding shares of Class A Common
Stock, par value $0.80 per share (the "Class A Common Stock") and the Class B
Common Stock, par value $0.80 per share (the "Class B Common Stock" and,
together with the Class A Common Stock, the "Shares") of American Maize-Products
Company, a Maine corporation (the "Company"), at a price of $40.00 per share net
to the seller in cash, upon the terms and subject to the conditions set forth in
the Offer. This material is being forwarded to you as the beneficial owner of
Shares carried by us in your account but not registered in your name.
WE ARE THE HOLDER OF RECORD OF SHARES HELD BY US FOR YOUR ACCOUNT. A TENDER
OF SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO
YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR YOUR
INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER SHARES HELD BY US FOR YOUR
ACCOUNT.
Accordingly, we request instructions as to whether you wish to tender any
or all of the Shares held by us for your account, upon the terms and conditions
set forth in the Offer.
Please note the following:
1. The tender price is $40.00 per Share net to you in cash.
2. The Offer is being made for all of the outstanding Shares.
3. The Offer and withdrawal rights will expire at 12:00 Midnight, New
York City time, on Monday, March 27, 1995, unless the Offer is extended.
4. The Offer is conditioned upon, among other things, there being
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 Eridania
Beghin-Say 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 Eridania Beghin-Say and its
affiliates have purchased or are then obligated to purchase under the Stock
Purchase Agreement, dated as of February 22, 1995, (the "Stock Purchase
Agreement") among the Company, Eridania Beghin-Say and the Purchaser (all
conditions to the obligations of the parties under the Stock Purchase
Agreement
<PAGE> 2
(other than the completion of the offer) having been satisfied), and the
number of shares of Class B Common Stock then beneficially owned by
Eridania Beghin-Say and its affiliates, would constitute at least a
majority of the outstanding shares of Class B Common Stock on a fully
diluted basis. The Offer is also subject to the other terms and conditions
contained in the Offer to Purchase.
5. Tendering stockholders will not be obligated to pay brokerage fees
or commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the transfer of shares pursuant to the
Offer.
If you wish to have us tender any or all of your Shares, please so instruct
us by completing, executing, detaching and returning to us the instruction form
contained in this letter. An envelope to return your instruction to us is
enclosed. If you authorize tender of your Shares, all such Shares will be
tendered unless otherwise indicated in such instruction form. Please forward
your instructions to us as soon as possible to allow us ample time to tender
your Shares on your behalf prior to the expiration of the Offer.
The Offer is made solely by the Offer to Purchase dated February 28, 1995
and the related Letter of Transmittal and any supplements or amendments thereto.
The Offer is not being made to (nor will tenders be accepted from or on behalf
of) holders of Shares residing in any jurisdiction in which the making of the
Offer or acceptance thereof would not be in compliance with the securities laws
of such jurisdiction. In any jurisdiction where the securities, blue sky or
other laws require the Offer to be made by a licensed broker or dealer, the
Offer will be deemed to be made on behalf of the Purchaser and Eridania
Beghin-Say by Lazard Freres & Co. or one or more registered brokers or dealers
licensed under the laws of such jurisdiction.
2
<PAGE> 3
INSTRUCTIONS WITH RESPECT TO THE
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
AMERICAN MAIZE-PRODUCTS COMPANY
AT
$40.00 NET PER SHARE
BY
CERESTAR USA, INC.,
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
ERIDANIA BEGHIN-SAY, S.A.
The undersigned acknowledge(s) receipt of your letter enclosing the Offer
to Purchase dated February 28, 1995 (the "Offer to Purchase") and the related
Letter of Transmittal (collectively the "Offer") relating to the offer by
Cerestar USA, Inc., a Delaware corporation (the "Purchaser") and an indirect
wholly-owned subsidiary of Eridania Beghin-Say, S.A., a company organized under
the laws of France, to purchase all of the outstanding shares of Class A Common
Stock, par value $0.80 per share (the "Class A Common Stock") and the Class B
Common Stock, par value $0.80 per share (the "Class B Common Stock" and,
together with the Class A Common Stock, the "Shares"), of American
Maize-Products Company, a Maine corporation (the "Company").
You are instructed to tender the number of Shares indicated below (or, if
no number is indicated below, all Shares) that are held by you for the account
of the undersigned, upon the terms and subject to the conditions set forth in
the Offer.
- ---------------------------------
SIGN HERE
- ---------------------------------
shares of Class A Common Stock*
--------------------------------------
- ---------------------------------
shares of Class B Common Stock*
--------------------------------------
- --------------------------------- SIGNATURE(S)
--------------------------------------
--------------------------------------
(PLEASE PRINT NAME(S) AND ADDRESS(ES)
HERE)
--------------------------------------
AREA CODE & TELEPHONE NO.
--------------------------------------
TAX IDENTIFICATION OR SOCIAL SECURITY
NO.(S)
Dated: , 1995
- ---------------
* Unless otherwise indicated, it will be assumed that all of your Shares held by
us for your account are to be tendered.
<PAGE> 1
Exhibit (a)(5)
For Immediate Release
---------------------
Contact: David Kronfeld
Kekst and Company
(212) 593-2655
ERIDANIA BEGHIN-SAY
-------------------
COMMENCES TENDER OFFER TO ACQUIRE
---------------------------------
AMERICAN MAIZE-PRODUCTS COMPANY IN AGREED TRANSACTION
-----------------------------------------------------
PARIS, FRANCE, February 28, 1995 -- Eridania Beghin-Say, S.A. announced that
its U.S. subsidiary, Cerestar USA, Inc., has today commenced a tender offer to
acquire all the outstanding shares of common stock of American Maize-Products
Company at $40.00 per share, pursuant to the terms and conditions of the
merger agreement entered into by Eridania Beghin-Say, Cerestar USA and the
Company on February 22, 1995.
The tender offer will expire at 12:00 Midnight, New York City time, on Monday,
March 27, 1995, unless extended pursuant to the terms of the Merger Agreement.
<PAGE> 1
Exhibit (a)(6)
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares. The Offer is made solely by the Offer to Purchase dated
February 28, 1995 and the related Letter of Transmittal and is being made to
all holders of Shares. The Purchaser is not aware of any state where the
making of the Offer is prohibited by administrative or judicial action
pursuant to state statute. If the Purchaser becomes aware of any state
where the making of the Offer is so prohibited, the Purchaser will
make a good faith effort to comply with any such statute or seek
to have such statute declared inapplicable to the Offer. If,
after such good faith effort, the Purchaser cannot comply with
any applicable statute, the Offer will not be made to (nor
will tenders be accepted from or on behalf of) the holders of
Shares in such state. In those jurisdictions where the laws
require the Offer to be made by a licensed broker or
dealer, the Offer shall be deemed to be made on behalf
of the Purchaser by one or more registered brokers or
dealers licensed under the laws of such
jurisdictions.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
AMERICAN MAIZE-PRODUCTS COMPANY
AT
$40.00 NET PER SHARE
BY
CERESTAR USA, INC.,
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
ERIDANIA BEGHIN-SAY, S.A.
Cerestar USA, Inc., a Delaware corporation (the "Purchaser") and an
indirect wholly-owned subsidiary of Eridania Beghin-Say, S.A., a company
organized under the laws of France ("Eridania Beghin-Say"), is offering to
purchase all outstanding shares of Class A Common Stock, $0.80 par value (the
"Class A Common Stock"), and Class B Common Stock, $0.80 par value (the "Class B
Common Stock" and, together with the Class A Common Stock, the "Shares"), of
American Maize-Products Company, a Maine corporation (the "Company"), at $40.00
per Share, net to the seller in cash, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated February 28, 1995 (the
"Offer to Purchase") and in the related Letter of Transmittal (which together
constitute the "Offer").
- -------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME,
ON MONDAY, MARCH 27, 1995, UNLESS THE OFFER IS EXTENDED.
- -------------------------------------------------------------------------------
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING 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 ERIDANIA BEGHIN-SAY 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 ERIDANIA BEGHIN-SAY AND ITS AFFILIATES HAVE PURCHASED OR ARE THEN
OBLIGATED TO PURCHASE UNDER THE STOCK PURCHASE AGREEMENT, DATED AS OF FEBRUARY
22, 1995 (THE "STOCK PURCHASE AGREEMENT") AMONG THE COMPANY, ERIDANIA BEGHIN-SAY
AND THE PURCHASER (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 ERIDANIA BEGHIN-SAY AND ITS AFFILIATES, WOULD CONSTITUTE AT LEAST A
MAJORITY OF THE OUTSTANDING SHARES OF CLASS B COMMON STOCK ON A FULLY DILUTED
BASIS.
<PAGE> 2
The purpose of the Offer is to acquire control of, and the entire equity
interest in, the Company. The Offer is being made pursuant to an Agreement and
Plan of Merger dated as of February 22, 1995 (the "Merger Agreement") among the
Company, the Purchaser and Eridania Beghin-Say. The Merger Agreement provides,
among other things, that as promptly as practicable after the satisfaction or,
if permissible, waiver of the conditions set forth therein, the Purchaser will
be merged with and into the Company (the "Merger"), with the Company continuing
as the surviving corporation. Pursuant to the Merger, each outstanding Share
(other than Shares owned by Eridania Beghin-Say, Purchaser or any other
subsidiary or affiliate of Purchaser or Shares held by shareholders exercising
appraisal rights) will be converted into a right to receive $40.00 in cash or
any higher price that may be paid per share of Common Stock in the Offer,
without interest.
THE BOARD OF DIRECTORS OF THE COMPANY HAS DETERMINED THAT THE OFFER AND THE
MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF THE SHAREHOLDERS OF THE
COMPANY. THE BOARD OF DIRECTORS HAS APPROVED THE OFFER AND THE MERGER AGREEMENT
AND RECOMMENDS THAT THE SHAREHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER
ALL THEIR SHARES PURSUANT TO THE OFFER.
For purposes of the Offer, the Purchaser shall be deemed to have accepted
for payment Shares validly tendered and not withdrawn when, as and if the
Purchaser gives oral or written notice to First Chicago Trust Company of New
York (the "Depositary") of its acceptance for payment of such Shares. In all
cases, upon the terms and subject to the conditions of the Offer, payment for
Shares accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as agent for the
tendering shareholders for the purpose of receiving payments from the Purchaser
and transmitting such payments to the tendering shareholders. Under no
circumstances will interest on the purchase price for Shares be paid, regardless
of any delay in making such payment.
In all cases, payment for Shares tendered and accepted for payment pursuant
to the Offer will be made only after timely receipt by the Depositary of (i)
certificates for such Shares or timely confirmation of a book-entry transfer of
such Shares into the Depositary's account at The Depository Trust Company, the
Midwest Securities Trust Company or the Philadelphia Depository Trust Company
(collectively, "Depository Institutions"), pursuant to the procedures set forth
in Section 3 of the Offer to Purchase, (ii) the Letter of Transmittal (or
facsimile thereof), properly completed and duly executed with any required
signature guarantees and (iii) any other documents required by the Letter of
Transmittal. The Offer shall expire at 12:00 Midnight, New York City time, on
Monday, March 27, 1995 (the "Expiration Date"), and, if the conditions set forth
in Section 13 of the Offer to Purchase are satisfied after the Expiration Date,
shall not be extended without the prior written consent of the Company. If, as
of the Expiration Date, all of the conditions set forth in Section 13 of the
Offer to Purchase 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 the Merger Agreement, waived by Eridania Beghin-Say
or the Purchaser, the 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
the Merger Agreement. In the event the Offer is extended as provided in the
Merger Agreement, the term "Expiration Date" shall mean the latest time and date
on which the Offer, as so extended, shall expire. The Purchaser shall give oral
or written notice of any such extension of the Offer to the Depositary. Any such
extension will also be announced publicly by press release issued no later than
9:00 A.M., New York City time, on the next business day after the previously
scheduled Expiration Date. During any such extension, all Shares previously
tendered and not withdrawn will remain subject to the Offer, subject to the
right of a tendering shareholder to withdraw his or her Shares.
Tenders of Shares made pursuant to the Offer are irrevocable, except that
Shares tendered pursuant to the Offer may be withdrawn at any time on or prior
to the expiration of the Offer, and, unless theretofore accepted for payment
pursuant to the Offer, may also be withdrawn at any time after April 28, 1995.
For a withdrawal to be effective, a written, telegraphic, telex or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of the Offer to Purchase. Any
notice of withdrawal must specify the name of the person having tendered the
Shares to be withdrawn, the number of Shares to be withdrawn and the name(s) in
which the certificate(s) evidencing the Shares to be withdrawn are registered,
if different from that of the person who tendered such Shares. The signature(s)
2
<PAGE> 3
on the notice of withdrawal must be guaranteed by an Eligible Institution (as
defined in Section 3 of the Offer to Purchase), unless such Shares have been
tendered for the account of any Eligible Institution. If Shares have been
tendered pursuant to the procedures for book-entry tender as set forth in
Section 3 of the Offer to Purchase, any notice of withdrawal must specify the
name and number of the account at the Depository Institution to be credited with
the withdrawn Shares. If certificates have been delivered or otherwise
identified to the Depositary, the name of the registered holder and the serial
numbers of the particular certificates evidencing the Shares withdrawn must also
be furnished to the Depositary as aforesaid prior to the physical release of
such certificates. All questions as to the form and validity (including time of
receipt) of any notice of withdrawal will be determined by the Purchaser and
Eridania Beghin-Say in their sole discretion, which determination shall be final
and binding. Any Shares properly withdrawn will be deemed not to have been
validly tendered for purposes of the Offer. However, withdrawn Shares may be
retendered by following one of the procedures described in Section 3 of the
Offer to Purchase at any time prior to the expiration of the Offer.
The information required to be disclosed by paragraph (e)(1)(vii) of Rule
14d-6 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended, is contained in the Offer to Purchase and is incorporated
herein by reference.
The Company has provided the Purchaser with the Company's shareholder lists
and security position listings for the purpose of disseminating the Offer to
holders of Shares. The Offer to Purchase and the related Letter of Transmittal
are being mailed to record holders of Shares and furnished to brokers, dealers,
commercial banks, trust companies and similar persons whose names, or the names
of whose nominees, appear on the shareholder list or, if applicable, who are
listed as participants in a clearing agency's security position listing for
subsequent transmittal to beneficial owners of Shares.
THE OFFER TO PURCHASE AND LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ BEFORE ANY DECISION IS MADE WITH RESPECT TO THE
OFFER.
Questions and requests for assistance or copies of the Offer to Purchase
and the related Letter of Transmittal and other tender offer materials may be
directed to the Information Agent or the Dealer Manager at their respective
addresses and telephone numbers set forth below, and copies will be furnished
promptly at the Purchaser's expense. No fees or commissions will be payable by
the Purchaser to brokers, dealers or other persons (other than the fees of the
Dealer Manager and the Information Agent) for soliciting tenders of Shares
pursuant to the Offer.
3
<PAGE> 4
The Information Agent for the Offer is:
[LOGO]
156 Fifth Avenue,
New York, New York 10010
(800) 322-2885
The Dealer Manager for the Offer is:
LAZARD FRERES & CO.
One Rockefeller Plaza
New York, New York 10020
(800) 542-0970
February 28, 1995
4
<PAGE> 1
Exhibit (a)(7)
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
SHARES OF COMMON STOCK
OF
AMERICAN MAIZE-PRODUCTS COMPANY
This form or one substantially equivalent hereto must be used to accept the
Offer (as defined below) if certificates for shares of the Class A Common Stock,
par value $0.80 per share (the "Class A Common Stock"), and/or shares of the
Class B Common Stock, par value $0.80 per share (the "Class B Common Stock"), of
American Maize-Products Company, a Maine corporation, are not immediately
available, if the certificates and all other required documents cannot be
delivered to the Depositary prior to the Expiration Date (as defined in the
Offer to Purchase) or if the procedure for book-entry transfer cannot be
completed on a timely basis. Such form may be delivered by hand or transmitted
by telegram, facsimile transmission or mail to the Depositary, and must include
a guarantee by an Eligible Institution (as defined in the Offer to Purchase).
See Section 3 of the Offer to Purchase.
<TABLE>
<S> <C> <C>
The Depositary for the Offer is:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By Mail: By Facsimile Transmission By Hand or Overnight Courier:
Tenders & Exchanges (for Eligible Institutions Tenders & Exchanges
Suite 4660 only): Suite 4680 -- AMC
P.O. Box 2563 Fax: (201) 222-4720 or 4721 14 Wall Street, 8th Floor
Jersey City, NJ 07303-2563 New York, NY 10005
Confirm Facsimile Transmission
by Telephone:
(201) 222-4707
</TABLE>
------------------------
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS BY FACSIMILE TRANSMISSION OTHER
THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THIS FORM IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A
LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN ELIGIBLE INSTITUTION
UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE
APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
<PAGE> 2
Ladies and Gentlemen:
The undersigned hereby tenders to Cerestar USA, Inc., a Delaware
corporation and an indirect wholly-owned subsidiary of Eridania Beghin-Say,
S.A., a corporation incorporated under the laws of France, on the terms and
subject to the conditions set forth in the Offer to Purchase dated February 28,
1995 and the related Letter of Transmittal (which together constitute the
"Offer"), receipt of which is hereby acknowledged, the number of shares of Class
A Common Stock and/or Class B Common Stock of American Maize-Products Company
(collectively, the "Shares") shown in the Box below pursuant to the guaranteed
delivery procedures set forth in Section 3 of the Offer to Purchase.
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
shares of shares of
Class A Common Stock Class B Common Stock
</TABLE>
- --------------------------------------------------------------------------------
Certificate Nos. for Shares (if available)
(specify either Class A or Class B)
-------------------
- ------------------------------------------------------
- ------------------------------------------------------
Check ONE box if Shares will be
tendered by book-entry transfer:
/ / The Depository Trust Company
/ / Midwest Securities Trust Company
/ / Philadelphia Depository Trust Company
Account Number
-----------------------------------------
Name(s) of Record Holder(s)
----------------------------
- -------------------------------------------------------
(Please Type or Print)
Address(es)
--------------------------------------------
- -------------------------------------------------------
(Zip Code)
Area Code and Tel. No.
---------------------------------
Signature(s)
-------------------------------------------
- -------------------------------------------------------
Dated , 1995
-------------------------------------------
THE GUARANTEE BELOW MUST BE COMPLETED.
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm that is a bank, broker, dealer, credit union,
savings association or other entity which is a member in good standing of the
Securities Transfer Agent's Medallion Program, hereby (a) represents that the
tender of Shares effected hereby complies with Rule 14e-4 under the Securities
Exchange Act of 1934 and (b) guarantees to deliver to the Depositary, at one of
its addresses set forth above, the certificates representing all tendered
Shares, in proper form for transfer, or confirmation of a book-entry transfer of
such Shares, together with a properly completed and duly executed Letter of
Transmittal, with any required signature guarantees, or an Agent's Message (as
defined in the Offer to Purchase) in the case of book-entry delivery, and any
other documents required by the Letter of Transmittal within five (5) American
Stock Exchange trading days after the date of execution of this Notice of
Guaranteed Delivery.
Name of Firm
------------------------------------------
Address
-----------------------------------------------
- -------------------------------------------------------
(Zip Code)
Area Code and Tel. No.
--------------------------------
- -------------------------------------------------------
(Authorized Signature)
Title
--------------------------------------------------
Name
--------------------------------------------------
(Please Type or Print)
Dated , 1995
-------------------------------------------
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE OF GUARANTEED
DELIVERY. CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
2
<PAGE> 1
Exhibit (a)(8)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER. -- Social Security numbers have nine digits separated by two hyphens:
i.e. 000-00-0000. Employer identification numbers have nine digits separated by
only one hyphen: i.e. 00-0000000. The table below will help determine the number
to give the payer.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
GIVE THE
SOCIAL SECURITY
FOR THIS TYPE OF ACCOUNT: NUMBER OF --
<S> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
1. An individual's account The individual
2. Two or more individuals (joint account) The actual owner of the account or, if combined funds, any one
of the individuals(1)
3. Husband and wife (joint account) The actual owner of the account or, if joint funds, either
person(1)
4. Custodian account of a minor (Uniform Gift to Minors Act) The minor(2)
5. Adult and minor (joint account) The adult or, if the minor is the only contributor, the
minor(1)
6. Account in the name of guardian or committee for a The ward, minor, or incompetent person(3)
designated ward, minor, or incompetent person.
7. a. The usual revocable savings trust account (grantor is The grantor-trustee(1)
also trustee)
b. So-called trust account that is not a legal or valid The actual owner(1)
trust under State law
8. Sole proprietorship account The owner(4)
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
GIVE THE
FOR THIS TYPE OF ACCOUNT: EMPLOYER IDENTIFICATION NUMBER OF --
<S> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
9. A valid trust, estate, or pension trust The legal entity (Do not furnish the identifying number of the
personal representative or trustee unless the legal entity
itself is not designated in the account title.)(5)
10. Corporate account The corporation
11. Religious, charitable, or educational organization account The organization
12. Partnership account held in the name of the business The partnership
13. Association, club, or other tax-exempt organization The organization
14. A broker or registered nominee The broker or nominee
15. Account with the Department of Agriculture in the name of a The public entity
public entity (such as a State or local government, school
district, or prison) that receives agricultural program
payments
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE> 2
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER OF SUBSTITUTE FORM W-9
Page 2
Obtaining a Number
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
Payees-Exempt from Backup Withholding
Payees specifically exempted from backup withholding on ALL payments include the
following:
- - A corporation.
- - A financial institution.
- - An organization exempt from tax under section 501(a), or an individual
retirement plan.
- - The United States or any agency or instrumentality thereof.
- - A State, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
- - A foreign government, a political subdivision of a foreign government, or any
agency or instrumentality thereof.
- - An international organization or any agency, or instrumentality thereof.
- - A registered dealer in securities or commodities registered in the U.S. or a
possession of the U.S.
- - A real estate investment trust.
- - A common trust fund operated by a bank under section 584(a).
- - An exempt charitable remainder trust, or a nonexempt trust described in
section 4947(a)(1).
- - An entity registered at all times under the Investment Company Act of 1940.
- - A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to
backup withholding include the following:
- - Payments to nonresident aliens subject to withholding under section 1441.
- - Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
- - Payments of patronage dividends where the amount received is not paid in
money.
- - Payments made by certain foreign organizations.
- - Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
- - Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is paid in
the course of the payer's trade or business and you have not provided your
correct taxpayer identification number to the payer.
- - Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
- - Payments described in section 6049(b)(5) to non-resident aliens.
- - Payments on tax-free covenant bonds under section 1451.
- - Payments made by certain foreign organizations.
- - Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO
THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS OR PATRONAGE DIVIDENDS, ALSO
SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends,
that are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
Privacy Act Notice. -- Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to IRS. IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Payers must generally withhold 31% of taxable
interest, dividend, and certain other payments to a payee who does not furnish
a taxpayer identification number to a payer. Certain penalties may also apply.
Penalties
(1) Penalty for Failure to Furnish Taxpayer Identification Number. -- If you
fail to furnish your taxpayer identification number to a payer, you are subject
to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) Failure to Report Certain Dividend and Interest Payments. -- If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income, such failure will be treated as being due
to negligence and will be subject to a penalty of 5% on any portion of an
under-payment attributable to that failure unless there is clear and convincing
evidence to the contrary.
(3) Civil Penalty for False Information With Respect to Withholding. -- If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(4) Criminal Penalty for Falsifying Information. -- Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE
<PAGE> 1
Exhibit (c)(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
5
<PAGE> 7
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
6
<PAGE> 8
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,
7
<PAGE> 9
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,
8
<PAGE> 10
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
9
<PAGE> 11
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
10
<PAGE> 12
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
11
<PAGE> 13
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.
12
<PAGE> 14
(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.
13
<PAGE> 15
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
14
<PAGE> 16
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
15
<PAGE> 17
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
16
<PAGE> 18
(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
17
<PAGE> 19
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.
18
<PAGE> 20
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 (c)(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 of the conditions
set forth in Article III hereof shall be fulfilled or waived in accordance with
the terms of this
<PAGE> 2
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 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;
2
<PAGE> 3
(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.
(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
3
<PAGE> 4
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.
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
4
<PAGE> 5
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 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").
5
<PAGE> 6
(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 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
6
<PAGE> 7
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 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.
7
<PAGE> 8
(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.
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
8
<PAGE> 9
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.
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.
9
<PAGE> 10
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.
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
10
