As filed with the Securities and Exchange Commission on January 17, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
THE ANDERSONS, INC.
(Exact name of registrant as specified in its charter)
Ohio 34-1562374
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
480 West Dussel Drive, 43537
Maumee, Ohio (Zip Code)
(Address of Principal Executive Offices)
THE ANDERSONS, INC. EMPLOYEE SHARE PURCHASE PLAN
(Full title of the plans)
Beverly J. McBride
The Andersons, Inc.
480 West Dussel Drive
Maumee, Ohio 43537
(Name and address of agent for service)
(419) 893-5050
(Telephone number, including area code, of agent for service)
Copy to:
Willard G. Fraumann, P.C.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
CALCULATION OF REGISTRATION FEE
Title of Amount to Proposed Proposed maximum Amount of
securities to be registered maximum price aggregate registration
be registered per share (1) offering price (1) fee
Common Shares,
no par value 300,000 shares $8.00 $2,400,000.00 $827.59
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the aggregate offering price and the amount of the registration fee, based upon
the conversion ratio per common share issued in the January 2, 1996 merger of
the Registrant's predecessor entities.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Omitted from this Registration Statement in accordance with Rule 428
under the Securities Act of 1933 (the "Securities Act") and the Note to Part I
of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Omitted from this Registration Statement in accordance with Rule 428
under the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by The Andersons, Inc. (the
"Corporation") with the Securities and Exchange Commission (the "Commission")
are incorporated herein by reference except to the extent any statement or
information therein is modified, superseded or replaced by a statement or
information contained in this document or in any other subsequently filed
document incorporated herein by reference:
(a) The Corporation's Registration Statement on Form S-4, dated
October 26, 1995, filed with the Commission on October 26, 1995 (the "S-4
Registration Statement") relating to the merger (the "Merger") of The
Andersons, an Ohio limited partnership (the "Partnership"), with and into the
Corporation, pursuant to which all securities of the Partnership and the
Corporation were converted into the Corporation's common shares, no par value
(the "Common Shares").
(b) The description of the Corporation's Common Shares contained in
Item 1 of the Corporation's Registration Statement on Form 8-A filed with the
Commission pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on October 19, 1995.
(c) All reports and other documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of the filing of such reports and
documents.
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained herein
or in any other subsequently filed document which also is incorporated or
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Beverly J. McBride, general counsel and corporate secretary of the
Corporation, passed upon certain legal matters in connection with the Merger.
Ms. McBride owns 37,961 Common Shares, subject to adjustment as set forth in
the S-4 Registration Statement.
Item 6. Indemnification of Directors and Officers.
Section 1701.59 of the Ohio General Corporation Law, inter alia,
empowers an Ohio corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. Similar
indemnity is authorized for such person against expenses (including attorneys'
fees) actually and reasonably incurred in connection with the defense or
settlement of any such threatened, pending or completed action or suit if such
person acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation, and provided
further that (unless a court of competent jurisdiction otherwise provides)
such person shall not have been adjudged liable to the corporation. Any such
indemnification may be made only as authorized in each specific case upon a
determination by the shareholders or disinterested directors or by independent
legal counsel in a written opinion that indemnification is proper because the
indemnitee has met the applicable standard of conduct.
Section 1701.59 further authorizes a corporation to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation or enterprise, against any liability asserted against him or her
and incurred in any such capacity, or arising out of his or her status as such,
whether or not the corporation would otherwise have the power to indemnify him
or her under Section 1701.59. The Company maintains policies insuring its and
its subsidiaries' officers and directors against certain liabilities for
actions taken in such capacities, including certain liabilities under the
Securities Act of 1933.
Article IV of the Code of Regulations of the Company provides for
indemnification of the directors and officers of the Company to the full extent
permitted by law, as now in effect or later amended. In addition, the Code of
Regulations provide for indemnification against expenses incurred by a director
or officer to be paid by the Company in advance of the final disposition of
such action, suit or-proceeding; provided, however, that if required by the
Ohio General Corporation Law, an advancement of expenses will be made only upon
receipt of an undertaking by or on behalf of the director or officer to repay
such amount if it shall be ultimately determined that he or she is not entitled
to be indemnified by the Company. The Code of Regulations further provide for
a contractual cause of action on the part of directors and officers of the
Company with respect to indemnification claims which have not been paid by the
Company.
Article Sixth of the Company's Restated Articles of Incorporation
limits to the fullest extent permitted by the Ohio General Corporation Law as
the same exists or may have been amended, the personal liability of the
Company's directors to the Company or its shareholders for monetary damages for
a breach of their fiduciary duty as directors. Section 1701.59 of the Ohio
General Corporation Law currently provides that such provisions do not
eliminate the liability of a director (i) for a breach of the director's duty
of loyalty to the Company or its shareholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law; (iii) under Section 1701.59 of the Ohio General Corporation Law (relating
to the declaration of dividends and purchase or redemption of shares in
violation of the Ohio General Corporation Law); or (iv) for any transaction
from which the director derived an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description of Document
4.1 Articles of Incorporation of the Corporation (incorporated
by reference from Exhibit 3.3 of the S-4 Registration
Statement).
4.2 The Andersons, Inc. Employee Share Purchase Plan, effective
as of January 2, 1996.
5.1 Opinion of Beverly J. McBride with respect to the legality
of certain shares of the Common Stock being registered.
23.1 Consent of Independent Auditors.
23.2 Consent of Beverly J. McBride (included in opinion filed as
Exhibit 5.1).
24.1 Power of Attorney (included in Part II of Registration
Statement).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes (1) to file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement to include any material information
with respect to the plan of distribution in the Share Purchase Plan not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement; (2) that, for the purpose of
determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and (3) to remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Maumee, State of Ohio, on January 17, 1996.
THE ANDERSONS, INC.
By: \s\Richard P. Anderson
Its: President and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard P. Anderson and Thomas H.
Anderson and each of them signing singly, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement and Power of Attorney has been signed by the following persons in the
capacities and as of the date indicated.
* * * * *
Signature Title Date
/s/Richard P. Anderson January 16, 1996
Richard P. Anderson President and Chief Executive
Officer, Director
/s/Thomas H. Anderson January 16, 1996
Thomas H. Anderson Chairman of the Board, Director
/s/Gary L. Smith January 16, 1996
Gary L. Smith Treasurer
/s/Richard R. George January 16, 1996
Richard R. George Corporate Controller and Principal
Accounting Officer
/s/Daniel T. Anderson January 17, 1996
Daniel T. Anderson Director
/s/Donald E. Anderson January 17, 1996
Donald E. Anderson Director
/s/Michael J. Anderson January 17, 1996
Michael J. Anderson Director
/s/Richard M. Anderson January 17, 1996
Richard M. Anderson Director
/s/ John F. Barrett January 16, 1996
John F. Barrett Director
/s/Dale W. Fallat January 16, 1996
Dale W. Fallat Director
/s/ Paul M. Kraus January 16, 1996
Paul M. Kraus Director
/s/ Rene C. McPherson January 17, 1996
Rene C. McPherson Director
/s/Donald M. Mennel January 17, 1996
Donald M. Mennel Director
/s/David L. Nichols January 17, 1996
David L. Nichols Director
/s/ Janet M. Schoen January 16, 1996
Janet M. Schoen Director
APPENDIX C
THE ANDERSONS, INC.
EMPLOYEE SHARE PURCHASE PLAN
SECTION I
Purpose
1.1 Purpose. The purpose of The Andersons, Inc. Employee Share Purchase Plan
("the Plan") is to enable and encourage Employees to acquire an ownership
interest in the Company through purchase of the Company's Common Shares,
thereby permitting Employees to share in the growth in value of the
Company.
1.2 Section 423 Plan. The Plan is intended to qualify as an "employee stock
purchase plan" under Section 423 of the Internal Revenue Code.
1.3 Effectiveness of the Plan. The Plan will be effective upon the
consummation of the Merger, subject to prior approval by the Company's
shareholders. The Plan will remain in effect until such time as it is
amended or terminated by the Board of Directors of the Company in
accordance with the terms of Section IX hereof.
SECTION II
Definitions
Unless the context indicates otherwise, the following terms have the meanings
set forth below.
2.1 "Board" means the Board of Directors of the Company.
2.2 "Code" means the Internal Revenue Code of 1986, as amended.
2.3 "Committee" means the Compensation Committee of the Board.
2.4 "Common Shares" means the common shares, no par value per share, of the
Company, or any other class of capital shares which the Company may
authorize and issue from time to time, and as may be made subject to this
Plan in the sole discretion of the Board.
2.5 "Company" means collectively The Andersons Management Corp. (whose
corporate name from and after the effective date of the Merger shall be
"The Andersons, Inc."), any successor entity in a merger or
consolidation, and any subsidiary corporation, as defined in Section 4
24(f) of the Code, which elects to participate in the Plan with the
approval of the Board.
2.6 "Compensation" means a Participant's total cash compensation including
base pay, overtime pay and cash bonuses paid during the Plan Period
through the payroll system.
2.7 "Discount to Market" means a percentage discount to the Fair Market Value
of the Plan Shares for purposes of calculating the Purchase Price
pursuant to Section 5.3 hereof which the Committee may authorize in its
sole discretion from time to time. The Discount To Market may not be
less than 0% or more than 15%.
2.8 "Fair Market Value" as of a certain date means the fair market value of .
the Common Shares as determined by the Committee in its sole discretion.
In making such determination, the Committee may use any of the reasonable
valuation methods defined in Treasury REgulation Section 1.421-7(e)(2).
2.9 "Merger" means the merger of The Andersons, an Ohio limited partnership,
with and into the Company.
2.10 "Participant" means an employee who elects to participate in the Plan
prior to the first day of any Plan Period in accordance with the
provisions of the Plan. All Participants shall have the same rights and
privileges except as otherwise permitted by Section 423 of the Code and
the Plan.
2.11 "Plan Period" shall have the meaning set forth in Section 5.1.
2.12 "Purchase Date" shall have the meaning set forth in Section 5.4.
2.13 "Purchase Price" shall have the meaning set forth in Section 5.4.
SECTION III
Administration of the Plan
3.1 Authority of the Committee. The Plan shall be administered by the
Committee. The Committee is authorized by the Board to administer and
control the operation of the Plan including, but not limited to, the
power to (a) subject to Section 5.2 hereof, determine eligibility for
participation in the Plan, (b) subject to Section V hereof, prescribe the
terms and conditions under which Plan Shares may be purchased under the
Plan, and (c) interpret the Plan and adopt rules for the administration
and application of the Plan.
The Committee, in its sole discretion and on such terms and conditions as
it may provide, may delegate its duties in order to facilitate the
purchase and transfer of Plan Shares and to provide for the day-to-day
administration of the Plan. The Committee shall control the general
administration of the plan with all powers necessary to enable it to
carry out its duties in that respect.
3.2 Decisions Binding. All determinations and decisions made by the
Committee shall be final, conclusive, and binding on all persons, and
shall be given the maximum deference permitted by law.
SECTION IV
Number of Shares Under the Plan
4.1 Shares Subject to Plan. The Company shall reserve 300,000 Common Shares
(the "Plan Shares") for issuance to and purchase by employees under this
Plan, subject to adjustment pursuant to Section 4.2 hereof. Plan Shares
may be Common Shares now or hereafter authorized yet unissued or Common
Shares already authorized, issued and owned or purchased by the Company.
If and to the extent that any right to purchase Plan Shares shall not be
exercised by any Participant for any reason or if such right to purchase
shall terminate as provided herein, Plan Shares that have not been
allocated to such Participant under the Plan shall again become available
for allocation to Participants as provided herein.
4.2 Change in Capitalization. In the event of a change in the capitalization
of the Company due to a share split, share dividend, recapitalization,
merger, consolidation, combination, or similar event or as in its sole
discretion may deem appropriate, the aggregate number of Plan Shares and
the terms of any existing offering shall be adjusted by the Board to
reflect such change.
SECTION V
Participation and Plan Operation
5.1 Plan Period. The Plan shall operate on a calendar year basis, with each
"Plan Period" beginning on the first day of January of each year and
ending on the 31st day of December of such year. The first Plan Period
shall begin on January 1, 1996 and shall end on December 31, 1996.
5.2 Eligible Employees. All employees of the Company shall be eligible to
participate in the Plan.
5.3 Enrollment in the Plan.
(a) An employee may elect to participate in a Plan Period by filing with
the office or offices designated by the Committee an enrollment form
prescribed by the Committee authorizing payroll deductions not less
than ten business days prior to the first day of such Plan Period.
(b) Each Participant shall designate on the enrollment form the
percentage of Compensation which he or she elects to have withheld
for the purchase of Plan Shares, which may be any whole percentage
from 1% up to and including a maximum contribution amount designated
by the Committee from time to time.
(c) Payroll deductions shall commence on the first payday following the
first day of the applicable Plan Period and shall continue to the
end of such Plan Period, subject to contribution changes (if any)
permitted under the Plan.
(d) A Participant may cease contributions, reenroll in the Plan, or
increase or decrease the rate of contribution during the Plan Period
in accordance with the rules and procedures prescribed by the
Committee from time to time.
(e) A Participant may increase or decrease the rate of payroll deduction
for any subsequent Plan Period by filing, at the appropriate office,
a new authorization for payroll deductions not less than ten
business days prior to the first day for such subsequent Plan
Period.
(f) A Participant shall automatically participate in each successive
Plan Period until the time of such Participant's withdrawal from the
Plan. A Participant shall not be required to file any additional
enrollment forms for any such successive Plan Period in order to
continue participation in the Plan.
(g) By enrolling in the Plan, a Participant shall be deemed to elect to
purchase the maximum number of Plan Shares (including the right to
fractional shares) that can be purchased with the amount in such
Participant's Cash Account as of the Purchase Date; provided,
however, that in addition to the limitations on Common Share
ownership and other limitations set forth herein, the Committee may
establish limitations on the number of Plan Shares which may be
purchased by a Participant during the Plan Period.
5.4 Purchase Price. Unless otherwise specified by the Committee with respect
to a certain Plan Period, the purchase price for each Plan Share to be
purchased under the Plan in respect of each Plan Period (the "Purchase
Price") shall be the lesser of (i) the Fair Market Value of the Common
Shares less the Discount To Market as of the first day of such Plan
Period or (ii) the Fair Market Value of the Common Shares less the
Discount To Market as of the last day of such Plan Period, or the last
day of each calendar quarter during the Plan Period, as specified by the
Committee from time to time (the "Purchase Date").
5.5 Purchase of Plan Shares and Plan Account Administration.
(a) The Company will maintain a cash account ("Cash Account") and a
share account ("Share Account") in the name of and for the benefit
of each Participant, for bookkeeping purposes only. On each payday
the amount deducted from each Participant's Compensation will be
credited to such Participant's Cash Account.
(b) As of the Purchase Date(s) with respect to each Plan Period, the
number of Plan Shares purchased by a Participant during a Plan
Period will be determined by converting the Participant's Cash
Account balance at each Purchase Date into Plan Shares, based upon
the Purchase Price for the Plan Period, and subject to the annual
limitation (if any), set by the Committee on the number of Plan
Shares which may be purchased by any Participant, the limitations
set forth in Section VII hereof, and the limitation on the aggregate
number of Common Shares subject to the Plan set forth in Section 4.1
hereof. In the event purchases by participants at a particular
Purchase Date would exceed such aggregate amount of Common Shares,
allocations will be made among Participants, pro rata based on the
outstanding amount in such Participant's Cash Account. If the
Employee's Cash Account has a positive balance at the end of the
Plan Period after being reduced by the total purchase price for the
Plan Shares issued, the Employee shall receive the balance in cash.
(c) As soon as practicable after all necessary Plan Shares have been
purchased by the Committee (or its agent) for the benefit of
Participants, or issued by the Company to Participants, the
Committee will allocate such Shares to each Participant's Share
Accounts in the following manner: (i) the Committee will allocate
full Plan Shares and fractional Plan Shares to the Share Accounts of
the individual Participants to the extent of the balances in their
respective Cash Accounts. Each Cash Account will be charged with
its pro rata share of the cost to Participants of all Plan Shares so
allocated.
(d) In the event that a Participant's Cash Account is not applied toward
the purchase of Plan Shares at the end of a calendar quarter during
the Plan Period (as set forth in Section 5.5(b) above), it shall be
applied toward the purchase of a short term interest bearing
investment. Any interest earned on such investment shall be
credited to each Participant's Cash Account on a reasonable basis on
the last day of the Plan Period.
(e) Cash dividends attributable to Plan Shares allocated to a
Participant's Share Account as of the record date for which such
cash dividend is declared will be credited to a Participant's Cash
Account as of the dividend payment date and applied to Plan Share
purchases and allocations on the next Purchase Date. Share
dividends or share splits attributable to Plan Shares allocated to a
Participant's Share Account as of the record date for which such
dividend or split is declared will be credited to Participant's
Share Accounts as of the effective date of such split. All other
distributions attributable to Plan Shares allocated to a
Participant's Share Account will be distributed to such Participant
pro rata in a manner to be determined by the Committee, consistent
with the terms hereof; provided such manner treats all holders of
Plan Shares equally with respect to such distribution. No person
shall have any right to sell, assign, mortgage, pledge, hypothecate
or otherwise encumber any of the Plan Shares allocated to a
Participant's Share Account.
(f) The Plan Shares (including the right to fractional shares) purchased
on behalf of a Participant shall initially be registered in the name
of a Nominee. Share certificates shall be issued to each
Participant for the Plan Shares held on such Participant's behalf in
the name of the Nominee only upon the request of such Participant,
but all rights accruing to an owner of record of such Plan Shares,
including, without limitation, the rights set forth in Section
5.5(e) above, shall belong to the Participant for whose account such
Plan Shares are held. Cash shall be paid to Participants in lieu of
issuing share certificates for fractional shares.
(g) Notwithstanding the foregoing, a Participant may elect, as of the
first day of any calendar quarter, to have some or all of the non-
fractional Plan Shares previously purchased and registered in the
name of the Nominee on his or her behalf registered in the name of
such Participant by giving written notification of such election to
the Company or Nominee, specifying the number of full shares (if
fewer than all) to be registered in the name of such Participant.
In such case, the number of full shares of each class of the
Company's capital shares held by the Nominee on behalf of such
Participant and so specified in the Participant's notice shall be
transferred to and registered in the name of such Participant as
soon as administratively practicable.
(h) Upon termination of employment for any reason, the Plan Shares held
by the Nominee on behalf of such Participant shall be transferred to
and registered in the name of such Participant as soon as
administratively practicable. Any fractional shares remaining shall
be paid in cash.
5.6 Impact of Cessation of Contributions. In the event that a Participant
elects to cease elected contributions during a Plan Period, and while an
Employee of the Company, all remaining contributions credited to the
Participant's Cash Account during the Plan Period and not yet used to
purchase Plan Shares will be applied toward the purchase of shares at the
next Purchase Date unless the Participant elects in writing to receive
payment of the Cash Account balance in cash without interest payment.
Such cash payment will be made as soon as administratively practical
following this election.
5.7 Termination of Employment.
(a) In the event of termination of employment for reasons other than
death, disability or retirement (i) the Plan Shares contained in a
Participant's Share Account will automatically be distributed to the
Participant and (ii) the cash in such Participant's Cash Account
will automatically be distributed to the Participant with no
interest payment.
(b) In the event of termination of employment due to death, disability
or retirement, the Participant (or his or her beneficiary in the
event of death) may elect in writing to receive his or her Cash
Account balance in cash with no interest payment, or to have the
balance contained in his or her Cash Account applied toward the
purchase of Plan Shares on the next applicable Purchase Date.
SECTION VI
Rights Not Transferable
The rights and interests of any Participant in the Plan, including any right
to purchase Plan Shares, shall not be transferable other than by will or the
applicable laws of descent and distribution and any such right to purchase
shall be exercisable only during the lifetime of such Participant, and then
only by such Participant.
SECTION VII
Limitations on Share Ownership
Notwithstanding any provision herein to the contrary, no Participant shall
have a right to purchase Plan Shares if:
(a) such Participant would, immediately after electing to purchase such
shares, own Common Shares possessing 5% or more of the total
combined voting power or value of all classes of capital shares of
the Company or of any of its Subsidiaries, as defined by Section
424(f) of the Code; or
(b) the rights of such Participant to purchase Plan Shares would accrue
at a rate that exceeds $25,000 of Fair Market Value of such Plan
Shares (determined at the time or times such rights are granted) for
each calendar year for which such rights are outstanding at any
time.
For purposes of the foregoing clause (a), ownership of Common Shares shall be
determined by the attribution rules of Section 424(d) of the Code and
Participants shall be considered to own any Common Shares which they have a
right to purchase under the Plan or any other share option agreement with the
Company or its Subsidiary.
SECTION VIII
Miscellaneous Provisions
8.1 Continued Employment. Nothing in the Plan shall be construed to give any
employee the right to be retained in the employ of the Company or a
Subsidiary or to affect the right of the Company or any Subsidiary or a
Participant to terminate such employment at any time with or without
cause.
8.2 Rights as Shareholder. A Participant shall have no rights as a
shareholder with respect to any Plan Shares which he or she may have a
right to purchase under the Plan until the date such shares are
registered in the name of such Participant or in the name of a Nominee on
behalf of such Participant.
8.3 Rights to Purchase Shares. Each right to purchase Plan Shares under the
Plan shall be subject to the requirement that if at any time the
Committee shall determine that the listing, registration or qualification
of such right to purchase or the Plan Shares subject thereto upon any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body, is necessary or desirable
as a condition of, or in connection with, such right to purchase or the
issue of Plan Shares pursuant thereto, then, anything in the Plan to the
contrary notwithstanding, no such right to purchase may be exercised in
whole or in part, and no Plan Shares shall be issued, unless such
listing, registration, qualification, consent or approval shall have been
effected or obtained free from any conditions not reasonably acceptable
to the Committee. The Committee is authorized upon the advice of counsel
to make such amendments to the Plan as may be necessary or desirable to
facilitate obtaining an effective registration statement with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, covering Plan Shares issued pursuant hereto.
SECTION IX
Amendment or Termination of the Plan
9.1 Amendment. The Board may, at any time and from time to time, amend,
modify or suspend the Plan, but no such amendment, modification or
suspension without the approval of the shareholders shall:
(a) increase the maximum number (determined as provided in the Plan) of
Plan Shares, other than as provided in Section 4.2 hereof;
(b) permit the issuance of any Plan Shares at a Purchase Price less than
that provided in the Plan as approved by the shareholders;
(c) cause the Plan to fail to meet the requirements of an "employee
stock purchase plan" under Section 423 of the Code.
9.2 Termination. This Plan shall terminate upon the adoption of a resolution
of the Board terminating the Plan. No termination of the Plan shall
materially alter or impair the right of any Participant to receive the
amounts in his or her Cash Account and Share Account without his or her
consent. In the event of a termination of the Plan, (i) the Plan Shares
contained in a Participant's Share Account will automatically be
distributed to the Participant and (ii) the cash in such Participant's
Cash Account will automatically be distributed to the Participant with no
interest payment. All other distributions to Participants or actions
necessitated by such termination shall be allocated among all
Participants, pro rata according to the amounts in their Cash Accounts
and Share Accounts, in a manner to be determined by the Committee,
consistent with the terms hereof, provided such manner treats all
Participants equally with respect to such distribution.
[The Andersons Letterhead]
January 17, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: The Andersons, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
I am general counsel to The Andersons, Inc., an Ohio corporation
(the "Corporation"), and have advised the Corporation in connection with the
proposed registration by the Corporation of 300,000 of its common shares, no
par value (the "Shares"), pursuant to a Registration Statement on Form S-8,
filed with the Securities and Exchange Commission (the "Commission") on January
16, 1996 under the Securities Act of 1933, as amended (the "Act") (such
Registration Statement, as amended o r supplemented, is hereinafter referred to
as the "Registration Statement"). The Shares are to be issued and sold by the
Corporation to certain employees of the Corporation pursuant to The Andersons,
Inc. Employee Share Purchase Plan (the "Share Purchase Plan").
For purposes of the opinions contained in this letter, I have
examined and relied upon such corporate proceedings, documents, records and
matters of law as I have deemed necessary or appropriate for the expression of
the opinions contained herein. In addition, for purposes hereof, I have
assumed with your permission and without independent investigation that all
factual information supplied to me for the purpose hereof is complete and
accurate and that no changes will be made in the definitive form of the
documents I have reviewed in draft form which would impact my opinions.
Based upon and subject to the foregoing, I hereby advise you
that in my opinion:
1. The Corporation is a corporation validly existing and
in good standing under the General Corporation Law of
the State of Ohio.
2. The Shares are duly authorized, and, when (i) the
Registration Statement becomes effective under the Act
and (ii) the Shares have been duly executed and
delivered on behalf of the Corporation and issued in
accordance with the terms of the Share Purchase Plan
upon receipt of the consideration to be paid therefor,
the Shares will be validly issued, fully paid and
nonassessable.
I am qualified to practice law in the State of Ohio and do not
herein express any opinion as to any laws other than the laws of the State of
Ohio, as such laws are constituted on the date of this opinion.
I do not find it necessary for the purposes of this opinion,
and accordingly I do not purport to cover herein, the application of the
securities or "Blue Sky" laws of the various states to the issuance and sale of
the Shares.
I hereby consent to the filing of this letter as an exhibit to
the Registration Statement. In giving this consent, I do not admit that I come
within the category of persons whose consent is required under Section 7 of the
'33 Act or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
Beverly J. McBride
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Andersons, Inc. Employee Share
Purchase Plan of our reports dated February 6, 1995, with respect to the
financial statements of The Andersons Management Corp. (the Corporation)
and the consolidated financial statements of The Andersons for the year
ended December 31, 1994 and included in the Corporation's Registration
Statement (Form S-4) dated October 26, 1995, filed with the Securities
and Exchange Commission.
Ernst & Young LLP
Toledo, Ohio
January 17, 1996
