As filed with the Securities and Exchange Commission on December 1, 1997
Registration No. 333-01249
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
POST-EFFECTIVE AMENDMENT NO. 1
TO FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
_________________________
THE ANDERSONS, INC.
(Exact name of registrant as specified in its charter)
_________________________
Ohio 34-1562374
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
480 West Dussel Drive,
Maumee, Ohio 43537
(Address of Principal Executive Offices) (Zip Code)
_________________________
THE ANDERSONS, INC.
LONG-TERM PERFORMANCE COMPENSATION PLAN
(Full title of the plans)
Beverly J. McBride
The Andersons, Inc.
480 West Dussel Drive
Maumee, Ohio 43537
(Name and address of agent for service)
(419) 893-5050
(Telephone number, including area code, of agent for service)
__________________________
CALCULATION OF REGISTRATION FEE
Title of Proposed maximum Proposed maximum Amount of
securities to Amount to be price per aggregate registration
be registered registered share (1) offering price (1) fee
Common Shares,
no par value 400,000 shares $9.25 $3,700,000 $1,121.21
(1) Computed on the basis of the price at which stock of the same class was
sold on November 26, 1997, pursuant to Rule 457(h) of the Securities Act of
1933, as amended, solely for the purpose of calculating the amount of the
registration fee.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). In
accordance therewith, the Company is required to file reports and other
information with the Securities and Exchange Commission (the "SEC").
Reports, proxy statements and other information filed by the Company as well
as the Registration Statement, including the exhibits thereto, can be inspected
and copied at the public reference facilities maintained by the SEC at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the regional
offices of the SEC at 75 Park Place, New York, New York 10007 and Northwestern
Atrium Center, 500 W. Madison Street, Suite 1400, Chicago, Illinois 60661. The
SEC also maintains a Web site that contains reports, proxy and information
statements and other information regarding registrants, like the company, that
file electronically with the SEC (site address http://www.sec.gov).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1(b). Securities to be Offered.
The Company hereby registers 400,000 shares of the Company's Common
Shares, no par value, in connection with an amendment to The Andersons, Inc.
Amended and Restated Long-Term Performance Compensation Plan (the "Plan").
This amendment was approved by the Company's shareholders at the Company's
Annual Meeting of Shareholders on May 22, 1997.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The Company previously registered under the Securities Act of 1933, as
amended (the "Securities Act"), 500,000 Common Shares, no par value offered
pursuant to the Plan and registered on Form S-8 filed with the SEC on February
28, 1996 (Registration No. 33-01249). This previous Registration Statement is
incorporated by reference into this Registration Statement. The Company's
Annual Report on Form 10-K for the year ended December 31, 1996 filed by the
Company with the SEC is incorporated in this Registration Statement by
reference. All other reports filed by the company pursuant to Sections 13(a)
or 15(d) of the Exchange Act since the end of such fiscal year are also
incorporated by reference. In addition, all documents filed by the Company
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, who is Vice president, General Counsel and Secretary
of the Company and owns 39,099 Common Shares, passed upon the legality of the
common shares.
Item 6. Indemnification of Directors and Officers.
Section 1701.59 of the Ohio General Corporation Law, inter alia, empowers
an Ohio corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee
or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if he or she acted in
good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. Similar indemnity is authorized for such person against
expenses (including attorneys' fees) actually and reasonably incurred
in connection with the defense or settlement of any such threatened, pending or
completed action or suit if such person acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the
corporation, and provided further that (unless a court of competent
jurisdiction otherwise provides) such person shall not have been adjudged
liable to the corporation. Any such indemnification may be made only as
authorized in each specific case upon a determination by the shareholders or
disinterested directors or by independent legal counsel in a written opinion
that indemnification is proper because the indemnitee has met the applicable
standard of conduct.
Section 1701.59 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
enterprise, against any liability asserted against him or her and incurred in
any such capacity, or arising out of his or her status as such, whether or not
the corporation would otherwise have the power to indemnify him or her under
Section 1701.59. The Company maintains policies insuring its and its
subsidiaries' officers and directors against certain liabilities for actions
taken in such capacities, including certain liabilities under the Securities
Act of 1933.
Article IV of the Code of Regulations of the Company provides for
indemnification of the directors and officers of the Company to the full extent
permitted by law, as now in effect or later amended. In addition, the Code of
Regulations 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).
4.4 The Andersons, Inc. Amended and Restated Long-Term Performance
Compensation Plan, effective as of May 22, 1997 (incorporated by
reference from Appendix A to the Proxy Statement for the Annual Meeting
of Shareholders held on May 22, 1997)
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 on signature page).
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 December 1, 1997.
THE ANDERSONS, INC.
By: \s\Richard P. Anderson
Its: Chairman of the Board and CEO
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 12/1/97
Richard P. Anderson Chairman of the Board and Chief
Executive Officer, Director
\s\Michael J. Anderson* 12/1/97
Michael J. Anderson Chief Operating Officer, Director
\s\Thomas H. Anderson* 12/1/97
Thomas H. Anderson Chairman Emeritus, Director
\s\Gary L. Smith* 12/1/97
Gary L. Smith Vice President, Finance and Treasurer
\s\Richard R. George* 12/1/97
Richard R. George Vice President, Controller and
Principal Accounting Officer
\s\Donald E. Anderson* 12/1/97
Donald E. Anderson Director
\s\Richard M. Anderson* 12/1/97
Richard M. Anderson Director
\s\John F. Barrett* 12/1/97
John F. Barrett Director
\s\Paul M. Kraus* 12/1/97
Paul M. Kraus Director
\s\Donald M. Mennel* 12/1/97
Donald M. Mennel Director
\s\David L. Nichols* 12/1/97
David L. Nichols Director
\s\Dr. Sidney A. Ribeau* 12/1/97
Dr. Sidney A. Ribeau Director
\s\Charles A. Sullivan* 12/1/97
Charles A. Sullivan Director
*By:\s\Richard P. Anderson
Attorney-in-fact
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Amendment No.1 to the
Registration Staatement (Form S-8, No. 333-01249) pertaining to The Andersons,
Inc. Long-Term Performance Compensation Plan of our report dated January 31,
1997, with respect to the consolidated fianncial statements and schedule of The
Andersosn, Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1996, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Toledo, Ohio
December 1, 1997
Exhibit 5.1
[The Andersons Letterhead]
November 28, 1997
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 Vice President, General Counsel & Secretary to The Andersons, Inc., an
Ohio corporation (the "Corporation"), and have advised the Corporation in
connection with the proposed registration by the Corporation of 400,000 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 December 1, 1997 under the Securities Act of 1933, as amended
(the "Act") (such Registration Statement, as amended or 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. Amended and Restated Long Term Performance
Compensation Plan (the "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 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 off 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,
/s/Beverly J. McBride
Beverly J. McBride
Vice President, General
Counsel and Secretary
