<PAGE>
As filed with the Securities and Exchange Commission on February 16, 1999
Registration No. 333-69059
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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IMPERIAL SUGAR COMPANY
(Exact name of registrant as specified in its charter)
Texas 74-0704500
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One Imperial Square
8016 Highway 90-A
Sugar Land, Texas 77478
(281) 491-9181
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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William F. Schwer
Managing Director and General Counsel
Imperial Sugar Company
One Imperial Square
8016 Highway 90-A
Sugar Land, Texas 77478
(281) 491-9181
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copy to:
J. David Kirkland, Jr.
Baker & Botts, L.L.P.
3000 One Shell Plaza
910 Louisiana
Houston, Texas 77002
(713) 229-1101
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Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
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If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please 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 the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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The information in this prospectus is not complete and may change. This
prospectus is included in a registration statement that we filed with the
Securities and Exchange Commission. The selling shareholders cannot sell these
securities until that registration statement becomes effective. This
prospectus is not an offer to sell these securities and is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
Subject to Completion, dated February 16, 1999
PROSPECTUS
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4,972,060 Shares
Imperial Sugar Company
Common Stock
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This prospectus covers the offer and sale of common stock by the selling
shareholders identified on page 7 of this prospectus. We originally issued the
shares in our acquisition of DSLT Inc. completed on November 2, 1998. We will
not receive any proceeds from these sales.
The selling shareholders may offer and sell the common stock from time to
time. The selling shareholders may offer the shares at prevailing market
prices, at prices related to such prevailing market prices, at negotiated
prices or at fixed prices.
The common stock trades on the American Stock Exchange under the symbol IHK.
On February 12, 1999, the American Stock Exchange reported a closing price of
$8.50 per share for our common stock.
You should consider carefully the risk factors beginning on page 3 of this
prospectus before purchasing any of the common stock.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
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The date of this Prospectus is , 1999.
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C>
The Company................................................................ 3
Risk Factors............................................................... 3
Forward-Looking Statements................................................. 6
Use of Proceeds............................................................ 6
Selling Shareholders....................................................... 7
Plan of Distribution....................................................... 9
Description of Capital Stock............................................... 10
Legal Matters.............................................................. 13
Experts.................................................................... 13
Where You Can Find More Information........................................ 13
</TABLE>
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You should rely only on the information contained in this prospectus. We have
not authorized anyone to provide you with different information. You should
assume that the information appearing in this prospectus is accurate as of the
date on the front cover of this prospectus only. Our business, financial
condition, results of operations and prospects may have changed since that
date.
2
<PAGE>
The Company
Imperial Sugar Company is the largest, most geographically diverse and most
balanced producer and marketer of refined sugar in the United States. We refine
raw cane sugar at four refineries located in Texas, Georgia, Florida and
Louisiana and produce beet sugar at 11 beet sugar factories located in
California, Wyoming, Montana and Michigan.
We offer a broad product line and sell to a wide range of customers,
including retail grocers, food service companies and industrial customers. Our
sugar products include granulated, powdered, liquid, liquid blends and brown
sugars sold in a variety of packaging options under various brands or private
market labels. Complementary non-sugar products that we market include salt,
pepper and other seasonings, non-nutritive sweeteners, non-dairy creamers,
nutritional dry mixes, sauces, drink mixes, desserts and packets containing
plastic cutlery, seasonings, paper napkins and other items. In addition, we
produce selected specialty sugar products.
Imperial was incorporated in 1924 and is the successor to a cane sugar
plantation and milling operation begun in Sugar Land in the early 1800s that
began producing granulated sugar in 1843. In 1988, we acquired Holly Sugar
Corporation. In April 1996, we acquired Spreckels Sugar Company. We completed
acquisitions of Savannah Foods & Industries, Inc. in December 1997, Wholesome
Foods L.L.C. in September 1998 and Diamond Crystal Specialty Foods, Inc. in
November 1998.
Our principal executive offices are located at One Imperial Square, 8016
Highway 90-A, Sugar Land, Texas 77478, and its telephone number at that
location is (281) 491-9181. Our mailing address is P. O. Box 9, Sugar Land,
Texas 77487-0009.
Risk Factors
You should carefully consider the risks described below before making an
investment decision. The risks and uncertainties described below are not the
only ones facing our company.
If any of the following risks actually occur, our business, financial
condition or results of operations could be materially adversely affected. In
such case, the trading price of the common stock could decline, and you may
lose all or part of your investment.
Low Trading Volume of Common Stock Could Affect Share Price
The average weekly trading volume for our common stock for the three months
ended January 31, 1999 was approximately 100,000 shares. This prospectus covers
the offer and sale by selling shareholders of 4,972,060 shares of common stock.
These shares previously were not freely tradeable in the market. Our share
price may decline if selling shareholders sell a large number of shares over a
short time period.
High Debt Level Causes Operating Restrictions
As of December 31, 1998, our long-term debt was $679.3 million, compared to
shareholders' equity of $401.2 million. This level of indebtedness reduces our
flexibility to respond to changing business and economic conditions and limits
our capital expenditures and acquisitions. During January 1999, as a result of
seasonal working capital requirements for beet purchases and inventory, from $0
to $12 million remained available to us for borrowing under our $200 million
revolving credit facility. The terms of our major debt agreements include
significant operating restrictions that limit our ability to incur additional
indebtedness, make investments or repurchase shares of common stock. These debt
agreements also place liens on most of our assets.
Approximately $401.7 million of our indebtedness outstanding at December 31,
1998 bore interest at variable rates. We have entered into interest rate swap
agreements with major financial institutions to effectively fix the interest
rate on $214.4 million of this indebtedness at a weighted average annual rate
of 7.96%. Increases in floating interest rates could increase our interest
costs to the extent we are unhedged.
3
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Interest rates also affect the value of our swap agreements. As a result of
decreased interest rates, if we were required to settle the interest rate swap
agreements on December 31, 1998, we would have been required to pay $6.1
million. While we may continue to enter into agreements to limit our exposure
to interest rate increases, these agreements will not completely eliminate our
exposure.
Our high level of indebtedness may have important consequences, including the
following:
. our ability to obtain financing for acquisitions, working capital,
capital expenditures or other purposes may be impaired or such financing
may be on terms unfavorable to us
. we will use a substantial portion of our cash flow to make debt service
payments, which will reduce the funds that would otherwise be available
for operations and future business opportunities
. a substantial decrease in our operating cash flow or an increase in our
expenses could make it difficult for us to meet debt service requirements
and require us to modify operations
. we may become more vulnerable to downturns in our business or the economy
generally
. certain of our debt agreements restrict dividends to our stockholders
Over the 12 months ended December 31, 1998, we used approximately two-thirds of
our operating cash flow to pay principal and interest on our outstanding debt.
Our ability to service additional indebtedness will depend on our future
performance, including our ability to manage cash flow and working capital. See
"--Restrictions on Our Ability to Pay Dividends."
History of Net Losses
We have incurred net losses in four of our last five fiscal years. These
losses have been attributable to a number of factors, including low sugar
prices, high beet sugar costs, abnormal weather affecting crop yields, beet
quality and factory start-ups, plant closure costs and debt retirement costs.
The following table describes our net income (loss) in recent periods (in
thousands of dollars, except per share data):
<TABLE>
<CAPTION>
Six Months
Year Ended Ended Year Ended March 31,
September 30, September 30, ---------------------------------
1998 1997 1997 1996 1995 1994
------------- ------------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
Income (loss) before
extraordinary item..... $(5,835) $9,951 $11,518 $(3,218) $(5,365) $(7,965)
Net income (loss)....... (7,834) 9,951 11,518 (2,614) (5,365) (7,965)
Diluted income (loss)
per share before
extraordinary item..... $ (0.24) $ 0.69 $ 0.90 $ (0.31) $ (0.52) $ (0.78)
Diluted net income
(loss) per share....... (0.32) 0.69 0.90 (0.25) (0.52) (0.78)
</TABLE>
There can be no assurance that we will not incur net losses in the future.
Need to Integrate Operations
We recently completed a number of strategic acquisitions that have more than
doubled our revenues. In December 1997, we completed our two-step acquisition
of Savannah Foods. We acquired Wholesome Foods in September 1998. In November
1998, we acquired Diamond Crystal. Our future results will depend in part on
our ability to integrate our operations with those of the acquired companies.
These integration activities include implementing common accounting and
management information systems, coordinating marketing, sales and customer
service efforts, and consolidating logistics, purchasing and similar support
functions. While we have made significant achievements in many of these areas,
we do not expect to substantially complete all these initiatives until fiscal
2000. This integration may require a substantial amount of our attention.
Our inability to integrate our operations with those of the acquired
companies in a timely and efficient manner would adversely impact our ability
to realize the planned benefits of the acquisitions, including synergies and
cost savings.
4
<PAGE>
Market Risk for Sugar and Impact of Government Regulation
Domestic prices for refined sugar and raw cane sugar and the quality and
quantity of sugar beets available to us substantially affect our results of
operations. Based on available data from the United States Department of
Agriculture, average annual prices for sugar have fluctuated over a range of
approximately 20% over the past eight years. A variety of external forces that
we are unable to predict influence these market factors, including the number
of domestic acres contracted to grow sugar beets, prices of competing crops,
weather conditions and United States farm and trade policy. Legislative and
regulatory actions also substantially influence the domestic sugar industry.
The Federal Agricultural Improvement and Reform Act of 1996 limits the
importation of raw cane sugar, affecting the supply of raw cane sugar available
to our cane sugar refineries.
Historically, we have made over three-quarters of our industrial sales under
fixed price, forward sales contracts, which extend for up to one year. As a
result, changes in our realized sales prices tend to lag market price changes.
To mitigate our exposure to future price changes, we enter into forward
purchase contracts to buy raw cane sugar at fixed prices and use futures
contracts and other pricing techniques to fix the price for part of the sugar
we buy. We purchase sugar beets under participatory contracts which provide for
a percentage sharing of the net selling price realized on refined beet sugar
sales between our company and the grower. Use of participatory contracts also
reduces our exposure to refined sugar price risk by causing the price we pay
for sugar beets to vary with the price we receive for refined sugar.
Results Subject to Sugar Beet Crop and Storage Risks
Our beet sugar operations are dependent on the quantity, quality and
proximity of sugar beets available to our factories. Sugar beet acreage varies
depending on factors such as prices anticipated by growers for sugar beets
versus alternative crops, prior crop quality, availability of irrigation and
weather conditions. In addition, the quantity of refined sugar subsequently
produced from the sugar beet crop may be affected materially by, among other
things, the acreage harvested, diseases, insects and weather conditions during
the growing, harvesting, processing and storage seasons. Sugar beets are
purchased from the growers after the harvest and, in some locations, stored in
piles until processed. Under sugar beet contracts we use in Michigan and the
Rocky Mountain region, the beet grower shares the risk of deterioration of the
stored sugar beets with us. We contractually accept about one-half of the risk
with respect to stored sugar beets in these areas and all of the risk in other
areas. We believe that the geographic diversity of its growing areas reduces
the risk that adverse conditions will occur company-wide; however, there can be
no assurance that our results of operations will not be adversely affected in
future years by such risks.
Termination of Supply Contract and Need to Obtain Raw Sugar Supply
The United States Sugar Corporation ("U.S. Sugar"), a supplier of raw sugar
which supplies approximately 14% of our supply of raw cane sugar, has notified
us that it intends to terminate its supply contract with us effective October
31, 2001. We expect that adequate supplies of raw cane sugar from other sources
will be available on the expiration of the contract. No assurance can be given,
however, that the replacement supplies will be available. We do not expect the
expiration of the U.S. Sugar contract to significantly affect our cost of raw
sugar since this contract provides for market-based pricing. The amount of raw
sugar available from offshore suppliers to all United States cane sugar
refiners, including our company, is directly dependent on quotas set by the
United States Department of Agriculture.
Inability to Predict Future Demand for Refined Sugar
U.S. demand for refined sugar has increased each year since 1986, and the
average rate of growth for the five-year period ended September 30, 1998 was
1.6%, according to USDA data. However, we cannot predict future rates of
growth. Demand for refined sugar in the future could be adversely affected by
numerous factors including the impact of changes in the availability,
development or potential use of various types of sweeteners or future changes
in consumer sweetener preferences or in population size. If demand for sugar
decreases in the future, lower sales volumes and lower prices could result,
which could have an adverse effect on us.
5
<PAGE>
Restrictions on Our Ability to Pay Dividends
Our ability to pay dividends on the common stock will depend primarily on our
future performance and liquidity. In addition, our debt agreements restrict us
from paying dividends if we would not be in compliance with certain financial
tests. The principal tests require us to maintain certain ratios of cash flow
to debt and cash flow to fixed charges and to maintain a certain minimum
working capital ratio and minimum level of net worth. Under the most
restrictive test, we had the ability to pay $9 million of dividends as of
December 31, 1998. While we have paid cash dividends of $0.03 per share of
common stock for each of the past seven quarters and we have no present plan or
intention to adjust this dividend, there can be no assurance that we will
continue paying cash dividends in this amount, with this frequency or at all.
Competition from Sugar, Sweetener and Food Service Companies and Impact on
Market Prices
We compete with other cane sugar refiners and beet sugar processors and, in
certain product areas, with producers of other nutritive and non-nutritive
sweeteners. We also compete with food service companies in providing bag sugar,
individual packets of sugar, salt, pepper, non-dairy creamers and plastic
cutlery, nutritional dry mixes, sauces, seasonings, drink mixes, desserts and
packets containing plastic cutlery, seasonings, paper napkins and other items.
Selling price and the ability to meet timely customer quality and quantity
requirements are important competitive factors. Certain competing beet sugar
processors have expanded their production capacity in the past few years. The
additional sugar marketed as a result of this expansion has acted to reduce
sugar market prices at times during this period.
Possible Increased Cost of Environmental Compliance
Various federal, state and local environmental regulations govern our
operations. These regulations impose limitations on releases of effluents and
emissions from our facilities. They also impose requirements on our management
of water resources, air resources, toxic substances and solid waste and
emergency planning. Our permitting, monitoring and remediation expenses (on a
pro forma combined basis) have ranged from $2 million to $3 million per year
over the last three fiscal years. Capital expenditures for environmental
projects have constituted up to 5% of our total capital budget over the last
three fiscal years. We do not believe that compliance with environmental
regulations will have a material adverse impact on our capital resources,
operating results or financial condition.
Forward-Looking Statements
This prospectus includes forward-looking statements. We based these forward-
looking statements on current expectations and projections about future events.
These forward-looking statements are subject to risks, uncertainties, and
assumptions, including, among other things:
. market factors
. weather and economic conditions
. farm and trade policy
. our ability to realize synergies and cost savings from acquisitions
. our ability and the ability of our customers and vendors to address Year
2000 computer issues
. available supply and price of raw sugar
. available quantity and quality of sugar beets
We undertake no obligation to publicly update or revise any forward-looking
statement, whether as a result of new information, future events or otherwise.
In light of these risks, uncertainties and assumptions, the forward-looking
events discussed in this prospectus might not occur.
Use of Proceeds
We will not receive any proceeds from sales of common stock by the selling
shareholders.
6
<PAGE>
Selling Shareholders
This prospectus covers the offer and sale of up to 4,972,060 shares of common
stock by the selling shareholders listed in the following table. We originally
issued these shares as a part of the purchase price for our acquisition of DSLT
Inc. (the parent of Diamond Crystal Specialty Foods, Inc.) completed on
November 2, 1998. As part of the DSLT acquisition, we obtained a 45-day option
from the former shareholders of DSLT to buy back the shares we issued to them
for an exercise price of $7.00 per share. In mid-November 1998, we assigned our
rights under the option to repurchase 2,147,978 shares of the common stock to
three of our existing shareholders (Greencore Group plc, H. Kempner Trust
Association, and Fayez Sarofim) for an aggregate of approximately $270,000.
After the assignment, the three existing shareholders exercised the assigned
portion of the option and acquired an aggregate of 2,147,978 shares of the
common stock from the former shareholders of DSLT.
In connection with the acquisition of DSLT, 1,759,697 shares of the common
stock issued were placed in escrow as security for post-closing adjustments and
indemnity obligations under the DSLT acquisition agreement. These shares will
remain in escrow until November 2, 1999 or the resolution of any pending escrow
claims we may have at that time. In the following table, these shares have been
included pro rata in the share amounts for each selling shareholder who was a
shareholder of DSLT. However, such shares are not expected to be available for
sale under this prospectus unless they are released from the escrow to the
former shareholders of DSLT.
The following table sets forth certain information known to us regarding
beneficial ownership of common stock by the selling shareholders as of November
24, 1998, and as adjusted to reflect solely the sale of the shares of common
stock offered by this prospectus.
<TABLE>
<CAPTION>
Shares Shares Percent of
Beneficially Beneficially Outstanding
Owned Before Shares Owned After Shares Owned
Selling Shareholder Offering Offered Offering After Offering*
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<S> <C> <C> <C> <C>
Greencore Group plc
Earlsfort Holdings B.V... 4,900,000 1,100,000 3,800,000 11.9%
H. Kempner Trust
Association .............. 1,408,373 698,652 709,721 2.2%
Fayez Sarofim............. 1,030,468 349,326 681,142 2.1%
C. F. Moore Q-Tip Trust
dated 02/05/74........... 815,151 815,151 -- --
Harriet Engelgau
Trusts(1)................ 368,300 368,300 -- --
Frederick S. Moore
Trusts(2)................ 308,880 308,880 -- --
Eleanor W. Moore & F.
Raymond Moore Trusts(3).. 191,920 191,920 -- --
Caroline M. Stewart Trust
dated 04/11/90........... 117,093 117,093 -- --
Bruce Bennet Bookout Trust
U/A dated 09/03/91....... 83,227 83,227 -- --
Alice Moore Trust U/A
dated 06/20/80........... 80,300 80,300 -- --
Jonathan Moore Trust U/A
dated 11/10/77........... 79,639 79,639 -- --
Caroline Stewart Trust
Agency................... 64,251 64,251 -- --
Barbara W. Moore Trust U/A
dated 02/05/74........... 55,328 55,328 -- --
Lindsey Moore Trusts(4)... 52,118 52,118 -- --
Mary Anne Moore
Trusts(5)................ 52,118 52,118 -- --
R. Stephen Moore.......... 46,005 46,005 -- --
Mary S. Gourley Trust U/A
dated 01/14/93........... 37,057 37,057 -- --
Alexandra Moore
Trusts(6)................ 36,194 36,194 -- --
Lezlynne Moore Trust U/A
dated 06/23/98........... 35,708 35,708 -- --
Trust U/A Fourth of the
Will of William R
Bonthron DEC............. 32,909 32,909 -- --
C. Nicholas Moore......... 28,904 28,904 -- --
Richard R. Moore Trust U/A
dated 02/27/90........... 27,237 27,237 -- --
Other Former DSLT
Shareholders(7).......... 311,703 311,703 -- --
</TABLE>
7
<PAGE>
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* Assumes all shares offered are sold.
(1) Consists of shares held by the following trusts: Harriet Engelgau Trust U/A
dated 01/17/62 (237,095 shares); Harriet Engelgau Trust U/A dated 09/03/85
(126,760 shares); Harriet Engelgau Q-Tip Trust U/A dated 10/03/95 (4,445
shares).
(2) Consists of shares held by the following trusts: Frederick S. Moore Trust
U/A dated 01/17/62 (224,808 shares); Frederick S. Moore Trust U/A dated
02/24/92 (84,072 shares).
(3) Consists of shares held by the following trusts: Eleanor W. Moore & F.
Raymond Moore Trust U/A dated 01/24/86 (131,923 shares); F. Raymond Moore
Trust U/A dated 01/24/86 (34,401 shares); Eleanor W. Moore Trust U/A dated
01/24/86 (25,596 shares).
(4) Consists of shares held by the following trusts: Lindsey E. Moore Trust
U/A dated 12/28/84 (18,811 shares); Lindsey Moore Trust U/A dated 12/30/92
(33,307 shares).
(5) Consists of shares held by the following trusts: Mary Anne Moore Trust U/A
dated 12/28/84 (18,811 shares); Mary Anne Moore Trust U/A dated 12/30/92
(33,307 shares).
(6) Consists of shares held by the following trusts: Alexandra Moore Trust U/A
dated 2/8/80 (17,410 shares); Alexandra Moore Trust U/A dated 12/30/92
(18,784 shares).
(7) Consists of 42 former shareholders of DSLT who in the aggregate own less
than 1% of the outstanding common stock before the offering.
The selling shareholders listed above, or their permitted transferees,
pledgees, donees or other permitted successors in interest (who also are
selling shareholders for this prospectus), may sell up to all of the shares of
the common stock shown above under the heading "Shares Offered" pursuant to
this prospectus in one or more transactions from time to time as described
below under "Plan of Distribution." However, the selling shareholders are not
obligated to sell any of the shares of common stock offered by this prospectus.
8
<PAGE>
Plan of Distribution
The selling shareholders, including their permitted transferees, donees and
pledgees, may offer and sell shares of common stock offered by this prospectus
from time to time in one or more of the following transactions:
. on the American Stock Exchange or any other securities exchange that
lists the common stock for trading
. in the over-the-counter market
. in transactions other than on such exchanges or in the over-the-counter
market
. in short sales of the common stock, in transactions to cover short sales
or otherwise in connection with short sales
. by pledge to secure debts and other obligations or on foreclosure of a
pledge
. through put or call options, including the writing of exchange-traded
call options, or other hedging transactions related to the common stock
. in a combination of any of the above transactions
The selling shareholders may sell their shares at market prices prevailing at
the time of sale, at prices related to such prevailing market prices, at
negotiated prices or at fixed prices. The transactions listed above may include
block transactions.
The selling shareholders may use broker-dealers to sell their shares or may
sell their shares to broker-dealers acting as principals. If this happens,
broker-dealers will either receive discounts or commissions from the selling
shareholders, or they will receive commissions from purchasers of shares for
whom they acted as agents, or both. If a broker-dealer purchases shares as a
principal, it may resell the shares for its own account under this prospectus.
If a selling shareholder enters into a hedging transaction, such as a costless
collar involving a put and call transaction, the other party to the transaction
may effect short sales or other sales of common stock. We will pay all
registration fees and expenses for the common stock offered by this prospectus.
We have informed the selling shareholders that the anti-manipulation
provisions of Regulation M under the Securities Exchange Act of 1934 may apply
to their sales of common stock.
The selling shareholders and any agent, broker or dealer that participates in
sales of common stock offered by this prospectus may be deemed "underwriters"
under the Securities Act of 1933 and any commissions or other consideration
received by any agent, broker or dealer may be considered underwriting
discounts or commissions under the Securities Act. We have agreed to indemnify
certain selling shareholders against certain liabilities arising under the
Securities Act of 1933 from sales of common stock. Selling shareholders may
agree to indemnify any agent, broker or dealer that participates in sales of
common stock against liabilities arising under the Securities Act of 1933 from
sales of common stock.
Instead of selling common stock under this prospectus, selling shareholders
may sell common stock in compliance with the provisions of Rule 144 under the
Securities Act of 1933, if available.
9
<PAGE>
Description of Capital Stock
The following descriptions provide a summary of our capital stock.
Common Stock
We are authorized to issue 50,000,000 shares of common stock. The holders of
common stock are entitled to one vote for each share on all matters submitted
to a vote of shareholders. Holders of common stock are entitled to the
dividends that may be declared from time to time by our Board of Directors out
of funds legally available for dividends. Shareholders' rights to dividends are
subject to the dividend and liquidation rights of any preferred stock that may
be issued and to any dividend restrictions contained in debt agreements. In the
event of our liquidation, holders of common stock will share pro rata in any
assets that remain after payment of our debts and satisfaction of any
liquidation preference on any outstanding preferred stock. The holders of
common stock have no preemptive, subscription, redemptive or conversion rights.
The outstanding shares of common stock are fully paid and nonassessable.
Rights to Purchase Preferred Stock
On September 14, 1998, we entered into a rights agreement with the Bank of
New York, as rights agent, regarding the issuance of purchase rights to holders
of common stock. Each share of common stock currently includes one purchase
right. The purchase rights will be issuable with respect to all shares of
common stock issued before the earlier of:
. ten days following a public announcement that a person or group of
affiliate persons (an "Acquiring Person") has acquired or obtained the
right to acquire beneficial ownership of 15% or more (25% or more with
respect to certain holders of 10% or more of the shares on January 27,
1995) of the then outstanding shares of common stock; or
. ten business days following the announcement of a tender offer or
exchange offer that would result in a person becoming an Acquiring
Person.
Each purchase right entitles the registered holder to purchase from us a unit
consisting of two three-hundredths of a share of Series A Junior Participating
Preferred Stock, at a purchase price of $60 per unit, subject to adjustment, or
if a person becomes an Acquiring Person, the right to purchase shares of common
stock at one-half their market price. The rights are redeemable by our board of
directors before any person becomes an Acquiring Person for 2/3 cents per
right. The rights expire October 31, 2007 unless earlier redeemed. The
description and terms of the purchase rights are set forth in the rights
agreement. The purchase rights may have certain anti-takeover effects,
including deterring someone from acquiring control of our company in a manner
or on terms not approved by our board of directors. The purchase rights should
not interfere with any merger or other business combination approved by our
board of directors.
In connection with the sale of common stock to Greencore Group plc in 1996,
our board of directors took action under the rights agreement to increase the
ownership percentage that would trigger the rights agreement with respect to
Greencore to 30% during the term of the Investor Agreement between Greencore
and us. The Investor Agreement will terminate no later than August 29, 2001.
After termination of the Investor Agreement, the trigger level of the rights
plan with respect to Greencore would be increased to 35%, until such time as
Greencore's ownership of common stock falls below 15%, at which time the
trigger level would become 15% for Greencore.
Preferred Stock
We are authorized to issue 5,000,000 shares of preferred stock, of which
333,333 shares have been designated as Series A preferred stock and which may
be issued in connection with exercise of purchase rights. No shares of
preferred stock were outstanding at the date of this prospectus. Our board of
directors has the authority, without shareholder approval, to issue shares of
preferred stock in one or more series and to determine the number of shares,
designations, dividend rights, conversion rights, voting power, redemption
rights, liquidation preferences and other terms of any such series. The
issuance of preferred stock, while
10
<PAGE>
providing flexibility in connection with possible acquisitions and other
corporate purposes, could adversely affect the voting power of holders of
common stock and the likelihood that such holders will receive dividend
payments and payments upon liquidation and could have the effect of delaying,
deferring or preventing a change in control of our company. We have no present
plans for the issuance of preferred stock, other than the shares of Series A
preferred stock issuable pursuant to purchase rights. Each two three-hundredths
of a share of Series A preferred stock that may be issued on the exercise of
the purchase rights will be redeemable in whole or in part for cash in an
amount equal to the market price of a share of common stock and will otherwise
be economically similar to a share of common stock.
Certain Provisions of Our Restated Articles of Incorporation
Restrictions on Our Ability to Repurchase Common Stock
Our restated articles of incorporation provide that we may not purchase or
otherwise acquire for value in any twelve-month period more than 8% of the
outstanding shares of any class of our capital stock unless:
. the purchase or acquisition has been approved by the holders of a
majority of the shares of the class that will remain outstanding;
. the purchase or acquisition is in accordance with an offer made to the
holders of all outstanding shares of such class; or
. solely in the case of stock ranking prior to the common stock in respect
of dividends or the distribution of assets on liquidation, such purchase
or acquisition is in accordance with mandatory redemption provisions
expressly applicable to such stock.
Staggered Board and Certain Potential Anti-takeover Effects
Our restated articles of incorporation provide that directors are to be
elected in three classes of as nearly an equal number as possible for staggered
terms and that no director may be removed by the shareholders except for cause.
In general, the restated articles of incorporation also require the affirmative
vote of the holders of at least 75% of the voting stock and the affirmative
vote of the holders of a majority of the voting stock not owned, directly or
indirectly, by any person beneficially owning 10% or more of any class of
voting stock (a related person) prior to any merger, consolidation, sale or
lease of all or substantially all of our assets or certain other transactions
involving any related person. The voting requirement is not applicable to
certain transactions, including those that are approved by continuing directors
(as defined in the restated articles of incorporation). The foregoing
provisions may have certain anti-takeover effects in that a person gaining
voting control of Imperial may be prevented from or delayed in taking actual
control.
Limitation of Liability of Our Directors
Our restated articles of incorporation contain a provision that limits that
liability of our directors as permitted by the Texas Miscellaneous Corporation
Laws Act. The provision limits the personal liability of a director to our
company and shareholders for monetary damages for an act or omission in the
directors capacity as a director. As a result, shareholders may be unable to
recover monetary damages against directors for negligent or grossly negligent
acts or omissions in violation of their duty of care. The provision does not
change the liability of a director for breach of his duty of loyalty to our
company or to shareholders, acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, any transaction from
which a director received an improper benefit (whether or not the benefit
resulted from an action taken within the scope of the director's office), acts
or omissions for which the liability of a director is expressly provided for by
statute or an act related to an unlawful stock repurchase or payment of a
dividend.
11
<PAGE>
Business Combination Law
Part Thirteen (the "Business Combination Law") of the Texas Business
Corporation Act applies to our company. The Business Combination Law generally
prevents an "affiliated shareholder" (defined generally as a person that is or
was within the preceding three-year period the beneficial owner of 20% or more
of a corporation's outstanding voting shares) or its affiliates or associates
from entering into or engaging in a "business combination" with an "issuing
public corporation" during the three-year period immediately following the
affiliated shareholder's acquisition of shares unless certain conditions are
satisfied. The three-year restriction does not apply if either:
. before the date such person became an affiliated shareholder, the board
of directors of the issuing public corporation approves the business
combination or the acquisition of shares made by the affiliated
shareholder on such date; or
. not less than six months after the date such person became an affiliated
shareholder, the business combination is approved by the affirmative vote
of holders of at least two-thirds of the issuing public corporation's
outstanding voting shares not beneficially owned by the affiliated
shareholder or its affiliates or associates.
The business combinations subject to the restriction generally include:
. mergers or share exchanges;
. dispositions of assets having an aggregate value equal to 10% or more of
the market value of the assets or of the outstanding common stock or
representing 10% or more of the earning power or net income of the
corporation;
. certain stock issuances or transactions by the corporation that would
increase the affiliated shareholder's proportionate interest in the
corporation;
. certain liquidations or dissolutions; and
. the receipt of tax, guarantee, loan or other financial benefits by an
affiliated shareholder other than proportionately as a shareholder of the
corporation.
In discharging the duties of director under the Business Combination Act or
otherwise, a director, in considering the best interests of our company, may
consider the long-term as well as the short-term interests of our company and
shareholders, including the possibility that those interests may be best served
by our continued independence.
12
<PAGE>
Legal Matters
Certain legal matters in connection with the common stock offered by this
prospectus will be passed on for us by our outside counsel, Baker & Botts,
L.L.P., Houston, Texas.
Experts
The consolidated financial statements incorporated in this prospectus by
reference from our Annual Report on Form 10-K for the fiscal year ended
September 30, 1998 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is incorporated in this prospectus
by reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
The consolidated financial statements of DSLT Inc. incorporated in this
prospectus by reference from our Form 8-K dated November 2, 1998 have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
Where You Can Find More Information
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference room. Our SEC filings also are available to the public at the SEC's
web site at http://www.sec.gov. We maintain a website containing company
information at http://www.imperialholly.com.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934:
. our Annual Report on Form 10-K for the fiscal year ended September 30,
1998
. our Quarterly Report on Form 10-Q for the quarter ended December 31, 1998
. our Current Report on Form 8-K dated November 2, 1998
. description of common stock contained in our Registration Statement on
Form 8-A filed on April 7, 1988, and description of rights to purchase
preferred stock contained in our Registration Statement on Form 8-A/A
filed on February 3, 1995
You may obtain a copy of these filings, at no cost, by writing or telephoning:
William F. Schwer
Managing Director and General Counsel
Imperial Sugar Company
One Imperial Square
P.O. Box 9
Sugar Land, Texas 77478-0009
(281) 491-9181
This prospectus is part of a registration statement we filed with the SEC.
13
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
All expenses (other than fees and expenses of legal or other advisors to the
selling shareholders) in connection with the offering described in this
Registration Statement will be paid by the Company. Such expenses are as
follows:*
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.............. $10,281
Printing expenses................................................ 5,000
Accounting fees and expenses..................................... 2,000
Legal fees and expenses.......................................... 15,000
Miscellaneous.................................................... 2,719
-------
Total.......................................................... $35,000
</TABLE>
- --------
*The amounts set forth, except for the filing fees for the Securities and
Exchange Commission, are estimated.
ITEM 15. Indemnification of Directors and Officers
The Company's Restated Articles of Incorporation provide that a director will
not be liable to the corporation or its stockholders for monetary damages for
an act or omission in such director's capacity as director, except in the case
of: (i) breach of such director's duty of loyalty to the corporation or its
stockholders, (ii) an act or omission not in good faith or that involves
intentional misconduct or a knowing violation of the law, (iii) a transaction
from which the director received an improper benefit, (iv) an act or omission
for which the liability of a director is expressly provided for by statute or
(v) an act related to an unlawful stock repurchase or payment of a dividend.
The Company's Bylaws provide that the corporation will indemnify, and advance
expenses (including court costs and attorney's fees) to, any officer, director,
employee or agent to the fullest extent permitted by applicable law at the time
of the adoption of the Company's Bylaws and such greater extent as applicable
law may thereafter permit.
Under the Texas Business Corporation Act (the "TBCA"), directors, officers,
employees or agents are entitled to indemnification against expenses (including
attorneys' fees) whenever they successfully defend legal proceedings brought
against them by reason of the fact that they hold such a position with the
corporation. In addition, with respect to actions not brought by or in the
right of the corporation, indemnification is permitted under the TBCA for
expenses (including attorneys' fees), judgments, fines, penalties and
reasonable settlement if it is determined that the person seeking
indemnification 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 or
its shareholders and, with respect to criminal proceedings he or she had no
reasonable cause to believe that his or her conduct was unlawful. With respect
to actions brought by or in the right of the corporation, indemnification is
permitted under the TBCA for expenses (including attorneys' fees) and
reasonable settlements, if it is determined that the person seeking
indemnification 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 or
its shareholders; provided, indemnification is not permitted if the person is
found liable to the corporation, unless the court in which the court or suit
was brought has determined that indemnification is fair and reasonable in view
of all the circumstances of the case.
Under an insurance policy maintained by the Company, the directors and
officers of the Company are insured within the limits and subject to the
limitations of the policy, against certain expenses in connection with the
defense of certain claims, actions, suits or proceedings and certain
liabilities which might be imposed as a result of such claims, action, suits or
proceedings, which may be brought against them by reason of being or having
been such directors and officers.
II-1
<PAGE>
ITEM 16. Exhibits
<TABLE>
<CAPTION>
Exhibit
No. Document
------- --------
<C> <S>
*4.1 --Restated Articles of Incorporation of the Company (incorporated by
reference to Exhibit 3(b) to the Company's Registration Statement on
Form S-4 (Registration No. 33-20959)).
*4.2 --Articles of Amendment to Restated Articles of Incorporation
(incorporated by reference to Exhibit 3.1 to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1990 (File No. 1-
10307)).
*4.3 --By-Laws of the Company (incorporated by reference to Exhibit 3(b) to
the Company's Annual Report on Form 10-K for the year ended March 31,
1989 (File No. 0-16674).
*4.4 --Statement of Resolution establishing Series of Shares designated
Series A Junior Participating Preferred Stock (incorporated by
reference to Exhibit 3(b) to the Company's Annual Report on Form 10-K
for the year ended March 31, 1990 (File No. 1-10307).
*4.5 --Statement of Resolution increasing number of shares designated
Series A Junior Participating Preferred Stock (incorporated by
reference to Exhibit 3.2 to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1990 (File No. 1-10307)).
*4.6 --Rights Agreement dated as of September 14, 1989 between the Company
and The Bank of New York, as Rights Agent (incorporated by reference
to Exhibit 1 to the Company's Current Report on Form 8-K dated
September 21, 1989 (File No. 1-10307)).
*4.7 --Amendment to Rights Agreement dated as of January 27, 1995
(incorporated by reference to Exhibit 1 to the Company's Current
Report on Form 8-K dated January 27, 1995 (File No. 1-10307)).
*4.8 --Amendment to Rights Agreement dated as of December 11, 1998
(incorporated by reference to Exhibit 3(e)(3) to the Company's Annual
Report on Form 10-K for the fiscal year ending September 30, 1998
(File No. 1-10307) (the "1998 Form 10-K")).
*4.9 --Investor Agreement dated August 29, 1996 by and among the Company,
Greencore Group plc and Earlsfort Holdings B.V. (incorporated by
reference to Exhibit 4.3 to the Company's Current Report on Form 8-K
dated September 5, 1996 (File No. 1-10307) (the "September 5, 1996
Form 8-K")).
*4.10 --Registration Rights Agreement dated August 29, 1996 by and among the
Company, Greencore Group plc and Earlsfort Holdings B.V.
(incorporated by reference to Exhibit 4.2 to the September 5, 1996
Form 8-K (File No. 1-10307)).
*4.11 --Amendment to Investor Agreement and Registration Rights Agreement
dated November 19, 1998 by and among the Company, Greencore Group plc
and Earlsfort Holdings B.V. (incorporated by reference to Exhibit
3(g)(3) the 1998 Form 10-K).
*4.12 --Agreement and Plan of Merger, dated September 4, 1998, as amended by
amendment dated as of October 22, 1998, among the Company, IHK
Acquisition Corp. and DSLT Inc. (incorporated by reference to Exhibit
99.2 to the Company's Current Report on Form 8-K dated November 2,
1998 (File No. 1-10307)).
+5.1 --Opinion of Baker & Botts, L.L.P. with respect to the legality of
securities.
23.1 --Consent of Deloitte & Touche LLP.
23.2 --Consent of PricewaterhouseCoopers LLP.
+23.3 --Consent of Baker & Botts, L.L.P. (contained in Exhibit 5.1).
--Powers of Attorney (included on the signature page of the
+24.1 registration statement).
</TABLE>
- --------
*Incorporated by reference as indicated.
+Previously filed.
II-2
<PAGE>
ITEM 17. 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:
(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, represent 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) of the Securities Act 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; and
(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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrants annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Sugar Land, the State of Texas, on February 16,
1999.
IMPERIAL SUGAR COMPANY
/s/ William F. Schwer
By: __________________________________
William F. Schwer
Managing Director and General
Counsel
Pursuant to the requirements of the Securities Act of 1933, this Amendment to
Registration Statement has been signed by the following persons in the
capacities indicated on February 16, 1999.
<TABLE>
<S> <C>
Signature Title
* President, Chief Executive Officer
- ---------------------------------- and Director (Principal Executive
(James C. Kempner) Officer)
* Managing Director and Chief
- ---------------------------------- Financial Officer (Principal
(Mary L. Burke) Financial Officer)
* Vice President--Accounting
- ---------------------------------- (Principal Accounting Officer)
(H. P. Mechler)
* Chairman of the Board of Directors
- ----------------------------------
(I. H. Kempner, III)
Director
- ----------------------------------
(John D. Curtin, Jr.)
* Director
- ----------------------------------
(David J. Dilger)
* Director
- ----------------------------------
(Edward O. Gaylord)
* Director
- ----------------------------------
(Gerald Grinstein)
* Director
- ----------------------------------
(Ann O. Hamilton)
* Director
- ----------------------------------
(Robert L. Harrison)
</TABLE>
II-4
<PAGE>
<TABLE>
<S> <C>
Signature Title
* Director
- ----------------------------------
(Harris L. Kempner, Jr.)
* Director
- ----------------------------------
(Henry E. Lentz)
* Director
- ----------------------------------
(Kevin C. O'Sullivan)
* Director
- ----------------------------------
(Fayez S. Sarofim)
* Director
- ----------------------------------
(William W. Sprague III)
* Director
- ----------------------------------
(Daniel K. Thorne)
</TABLE>
/s/ William F. Schwer
*By:_________________________
(William F. Schwer)
Attorney-in-fact
II-5
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1 to
Registration Statement No. 333-69059 of Imperial Sugar Company (formerly known
as Imperial Holly Corporation) on Form S-3 of our report dated December 9,
1998, appearing in the Annual Report on Form 10-K of Imperial Holly Corporation
for the year ended September 30, 1998 and to the reference to us under the
heading "Experts" in the Prospectus, which is part of such Registration
Statement.
/s/ Deloitte & Touche LLP
Houston, Texas
February 10, 1999
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 (No. 333-69059) of
Imperial Sugar Company (formerly Imperial Holly Corporation) of our report
dated July 20, 1998 relating to the financial statements of DSLT Inc. which
appears in the Report on Form 8-K of Imperial Holly Corporation dated November
2, 1998. We also consent to the reference to us under the heading "Experts" in
such Prospectus.
PricewaterhouseCoopers LLP
Bloomfield Hills, Michigan
February 10, 1999
