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