As filed with the Securities and Exchange Commission on January 12, 2001
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
American Italian Pasta Company Delaware 84-1032638
(Exact name of registrant as (State or other jurisdiction (I.R.S. Employer
as specified in its of incorporation Identification Number)
charter) or organization)
4100 N. Mulberry Drive, Suite 200
Kansas City, Missouri 64116
(816) 584-5000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Timothy S. Webster
President and Chief Executive Officer
American Italian Pasta Company
4100 N. Mulberry Drive, Suite 200
Kansas City, Missouri 64116
(816) 584-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With Copies to:
James M. Ash
Blackwell Sanders Peper Martin LLP
2300 Main Street, Suite 1100
Kansas City, Missouri 64108
(816) 983-8000
Approximate date of commencement of proposed sale to the public: From time to
time after the registration statement becomes effective.
If the only securities being registered on this Form are being 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
investment 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 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.
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of each class of Amount to maximum maximum Amount of
securities to be registered be offering aggregate registration
registered price per offering fee
share price
<S> <C> <C> <C> <C>
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Class A Convertible Common 686,666 $28.34375(1) $19,462,690 $4,866
Stock, par value $.001 per shares
share
--------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, as amended.
The maximum offering price per share is based on the average of the high and
low prices of the Registrant's Class A Convertible Common Stock as listed on
the New York Stock Exchange on January 10, 2001.
------------------
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, as amended, or until this Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
<PAGE>
PROSPECTUS
686,666 Shares
AMERICAN ITALIAN PASTA COMPANY
CLASS A CONVERTIBLE COMMON STOCK
(par value $.001 per share)
This Prospectus relates to 686,666 shares (the "Shares") of our Class A
Convertible Common Stock, par value $.001 per share (the "Class A Common
Stock"). The Shares may be offered by Bestfoods (the "Selling Stockholder") from
time to time in transactions on the New York Stock Exchange, in privately
negotiated transactions or otherwise at market prices prevailing at the time of
sale, at prices related to such market prices or at negotiated prices. We
originally issued the Shares to the Selling Stockholder in connection with an
acquisition by us of certain assets of the Selling Stockholder exclusively used
in the manufacture, marketing and sale of the Mueller's brand of pasta (the "BF
Assets") pursuant to an Asset Purchase Agreement dated as of October 4, 2000 by
and between us and the Selling Stockholder.
We will not receive any of the proceeds from the sale of the Shares; all
proceeds will go to the Selling Stockholder. All expenses of registration
incurred in connection with this offering are being borne by us, but all selling
and other expenses incurred by the Selling Stockholder will be borne by the
Selling Stockholder.
Our Class A Common Stock is listed on the New York Stock Exchange under
the symbol "PLB." On January 10, 2001, the closing price of our Class A Common
Stock on the New York Stock Exchange was $28.375 a share.
Holders of our Class A Common Stock are entitled to one vote for each
share of Class A Common Stock on each matter submitted to a vote of
stockholders, including the election of directors. Holders of Class A Common
Stock are not entitled to cumulative voting and shares have no preemptive or
other subscription rights.
INVESTING IN OUR CLASS A COMMON STOCK INVOLVES RISKS. SEE "RISK
FACTORS" BEGINNING ON PAGE 3.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
Prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
January 12, 2001
<PAGE>
TABLE OF CONTENTS
Page
About This Prospectus........................................................2
American Italian Pasta Company...............................................2
Forward-Looking Statements...................................................3
Risk Factors.................................................................3
Use Of Proceeds..............................................................9
Selling Stockholder.........................................................10
Plan Of Distribution........................................................11
Legal Matters...............................................................12
Experts.....................................................................12
Where You Can Find More Information.........................................12
ABOUT THIS PROSPECTUS
You should rely only on the information contained in this Prospectus. We
have not authorized anyone to provide you with information different from that
which is contained in this Prospectus. The Selling Stockholder is offering to
sell Shares of our Class A Common Stock and is seeking offers to buy Shares of
our Class A Common Stock only in jurisdictions where offers and sales are
permitted. The information contained in this Prospectus is accurate only as of
the date of this Prospectus, regardless of the time of delivery of this
Prospectus or of any sale of Class A Common Stock.
In this Prospectus, "we," "us," "AIPC" or the "Company" refers to American
Italian Pasta Company, together with its predecessors and subsidiaries, unless
the context requires otherwise.
AMERICAN ITALIAN PASTA COMPANY
American Italian Pasta Company is the largest producer and one of the
fastest-growing marketers of dry pasta in North America. We commenced operations
in 1988 with the North American introduction of new, highly-efficient durum
wheat milling and pasta production technology. We believe that our singular
focus on pasta, vertically-integrated facilities, continued technological
improvements and development of a highly-skilled workforce enables us to produce
high-quality pasta at costs below those of many of our competitors. We believe
that the combination of our cost structure, the age of competitive production
capacity and our key customer relationships create significant opportunities for
continued growth. During the fiscal year ended September 30, 2000, we had
revenue of $248.8 million and net income of $27.5 million.
We produce more than 80 dry pasta shapes in vertically-integrated milling,
production and distribution facilities, strategically located in Excelsior
Springs, Missouri, Columbia, South Carolina, Kenosha, Wisconsin, and will
commence operations in Verolanuova, Italy in 2001. The construction of the
Missouri plant in 1988 represented the first use in North America of a
vertically-integrated, high-capacity pasta plant using Italian milling and pasta
production technology. We believe that this plant continues to be among the most
efficient and highly-automated pasta facilities in North America. The South
Carolina plant, which commenced operations in 1995, produces only pasta shapes
conducive to high-volume production and employs a highly-skilled, self-managed
work force. We believe that the South Carolina plant is the most efficient
retail pasta facility in North America in terms of productivity and conversion
cost per pound. The Wisconsin plant, which
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commenced operations in 1999, produces industrial pasta for the ingredient
business segment. We believe the Wisconsin plant is the only pasta production
facility in North America which is singularly focused on serving the rapidly
growing ingredient pasta segment. The Italy plant, which will commence
operations in 2000 will serve private label markets in continental Europe and
the United States.
We hold a number of federally registered and common law trademarks,
including the following which we have registered with the U.S. Patent and
Trademark Office: AIPC, American Italian Pasta Company, Pasta LaBella,
Montalcino, Calabria and Heartland. In addition, as a result of our acquisition
of the BF Assets (see "Selling Stockholder" and "Plan of Distribution"), we now
own several additional trademarks, including the Muellers mark.
Additionally, a number of federally registered trademarks are used
throughout this Prospectus that are not owned by the Company. San Giorgio(R) and
Ronzoni(R) are registered trademarks of New World Pasta LLC, ("New World
Pasta"). Prince(R) and Creamette(R) are registered trademarks of Borden Foods
Holdings Corporation ("Borden").
The Company is incorporated in Delaware, our executive offices are located
at 4100 N. Mulberry Drive, Suite 200, Kansas City, Missouri 64116, and our
telephone number is (816)584-5000. Our web site is located at
http://www.aipc.com. Information contained in our web site is not a part of this
Prospectus.
FORWARD-LOOKING STATEMENTS
We have made forward-looking statements in this document and in the
documents we incorporate by reference based on our management's beliefs and
assumptions and on information currently available to our management.
Forward-looking statements include information concerning our possible or
expected future results of operations, business strategies, financing plans,
competitive position, potential growth opportunities and the effects of
competition. Forward-looking statements include all statements that are not
historical facts and usually can be identified by the use of forward-looking
terms such as the words "believes," "expects," "anticipates," "intends,"
"plans," "estimates" or similar expressions.
Forward-looking statements involve risks, uncertainties and assumptions.
Actual results may differ materially from those expressed in these
forward-looking statements. You should not put undue reliance on any
forward-looking statements. We do not have any intention or obligation to update
forward-looking statements after we distribute this Prospectus.
You should understand that many important factors could cause our results
to differ materially from those expressed in forward-looking statements. This
Prospectus identifies the material factors, including, but not limited to, those
identified in the section, "Risk Factors," that we believe could cause our
actual results to differ. However, the results referred to in these
forward-looking statements could also be adversely affected by other factors
that are not discussed in this Prospectus.
RISK FACTORS
You should carefully consider the risks described below before making an
investment in our Class A Common Stock. The risks described below are not the
only ones facing our Company. Additional risks and uncertainties not presently
known to us or that we currently
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believe to be immaterial may also impair our business operations. If any of the
following risks occurs, our business, financial condition or operating results
could be materially adversely affected. In such case, the trading price of our
Class A Common Stock could decline and you may lose all or part of your
investment.
Our business is dependent on several major customers.
Historically, a limited number of customers have accounted for a
substantial portion of our revenues. We expect that we will continue to rely on
a limited number of major customers for a substantial portion of our revenues in
the future. We have an exclusive supply contract with Sysco (the "Sysco
Agreement") that is effective through June 2003, and Sysco has a renewal option
for one additional three-year period. Under the Sysco Agreement, we are
restricted from supplying pasta products to food service businesses other than
Sysco without Sysco's consent.
We do not have supply contracts with a substantial number of our customers,
including Sam's Club. We depend on our customers to sell our products and to
assist us in promoting customer acceptance of, and creating demand for, our
products. If our relationship with one or more of our major customers changes or
ends, it could have a material adverse effect on our business, financial
condition and results of operations.
We may experience difficulty in managing our growth.
We have experienced rapid growth and we expect to continue significant
growth in the future. Successful management of any such future growth will
require us to continue to invest in and enhance our operational, financial and
management information resources and systems, accurately forecast and meet sales
demand, accurately forecast retail sales, control our overhead, and attract,
train, motivate and manage our employees effectively. There can be no assurance
that we will continue to grow, or that we will be effective in managing our
future growth. Any failure to effectively manage growth could have a material
adverse effect on our business, financial condition and results of operations.
Cost increases or crop shortages in durum wheat and cost increases in packaging
materials could adversely affect us.
The principal raw material in our products is durum wheat. Durum wheat is
used almost exclusively in pasta production and is a narrowly traded, cash only
commodity crop. We attempt to minimize the effects of durum wheat cost
fluctuations through forward purchase contracts and agreements with many of our
customers that include durum cost adjustment provisions. Our commodity
procurement and pricing practices are intended to reduce the risk of durum wheat
cost increases on our profitability, but by doing so we may temporarily affect
our ability to benefit from possible durum wheat cost decreases. The supply and
price of durum wheat is subject to market conditions and is influenced by
several factors beyond our control, including general economic conditions,
natural disasters and weather conditions, competition, and governmental programs
and regulations. The supply and cost of durum wheat may also be adversely
affected by insects and plant diseases.
We also rely on the supply of plastic, corrugated and other packaging
materials. Many of these items fluctuate in price due to market conditions
beyond our control. The costs of durum wheat and packaging materials have varied
widely in recent years and future changes in such
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costs may cause the Company's results of operations and our operating margins to
fluctuate significantly. Increases in the cost of durum wheat or packaging
materials could have a material adverse effect on our operating profit and
margins unless and until we are able to pass the increased cost along to our
customers. Historically, changes in sale prices of our pasta products have
lagged changes in our materials costs. Competitive pressures may also limit our
ability to raise prices in response to increased raw or packaging material
costs. Accordingly, there can be no assurance as to whether, or the extent to
which, we will be able to offset durum wheat or packaging material cost
increases with increased product prices.
The market for pasta products is intensely competitive and we face
competition from many established domestic and foreign producers.
We compete against numerous well-established national, regional and foreign
companies, and many smaller companies in the procurement of raw materials, the
development of new pasta products and product lines, the improvement and
expansion of previously introduced pasta products and product lines and the
production, marketing and distribution of pasta products. Some of our
competitors have longer operating histories, significantly greater brand
recognition and financial and other resources than we do. Our direct competitors
include large multi-national companies such as Borden with brands such as
Prince(R), Creamette(R), and New World Pasta LLC with brands such as American
Beauty(R), San Giorgio(R), and Ronzoni(R), regional U.S. producers of retail and
institutional pasta such as Dakota Growers Pasta Company, a farmer-owned
cooperative in North Dakota, Philadelphia Macaroni Co. Inc. and A. Zerega's
Sons, Inc., each an independent producer. We also compete with Italian producers
such as De Cecco, and with Barilla, an Italian-owned company with manufacturing
facilities in the U.S.
Our competitive environment depends to a significant extent on the
relationship between aggregate industry production capacity and aggregate market
demand for pasta products. Over the past several years, domestic pasta producers
have completed increases in domestic production capacity. In addition to our
capital expansions, we believe that these capacity additions represent more than
200 million pounds in aggregate. Dakota Growers recently increased the capacity
of its durum wheat mill. Barilla recently completed a pasta production plant
near Ames, Iowa with an estimated annual pasta capacity of over 150 to 200
million pounds. Two major pasta producers have also recently announced planned
reductions in pasta production capacity. Borden has closed or sold five of its
ten North American pasta plants, and Bestfoods eliminated its capacity of
approximately 180 million pounds in 1997. Increases in production capacity above
market demand for pasta products could have a material adverse effect on our
business, financial condition and results of operations.
Several foreign producers, based principally in Italy and Turkey, have
aggressively targeted the U.S. pasta market in recent years. In 1996, a U.S.
Department of Commerce ("Commerce") investigation revealed that several Italian
and Turkish producers were engaging in unfair trade practices by selling pasta
at less than fair value in the U.S. markets and benefiting from subsidies from
their respective governments. Effective July 1996, Commerce imposed anti-dumping
and countervailing duties on Italian and Turkish imports (the "1996 Anti-dumping
Order"). In December 1998, Commerce announced the final results of its review of
1996 Anti-dumping Order for three Turkish producers. Commerce indicated that one
of the producers had not had any shipments during the review period (January 19,
1996 to June 30, 1997), maintained the anti-dumping and countervailing duties
for another Turkish producer and repealed such duties for the third. In
addition, Commerce conducted an administrative review of its 1996 Anti-
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dumping Order relating to eight Italian pasta producers and maintained the
anti-dumping duties for most of the Italian pasta producers. While such duties
may enable us and our domestic competitors to compete more favorably against
Italian and Turkish producers in the U.S. pasta market, there can be no
assurance that the duties will be maintained for any length of time, or that
these or other foreign producers will not sell competing products in the United
States at prices lower than ours. Bulk imported pasta, and pasta produced in the
U.S. by foreign firms, are generally not subject to such anti-dumping and
countervailing duties. Foreign pasta producers generally may avoid such duties
by importing bulk pasta into the United States and repackaging it in U.S.
facilities for distribution.
We have just begun operations in Italy to produce pasta that we intend to
sell in the U.S. and in the United Kingdom and Europe. Competition in these
international markets is also intense and comes primarily from major Italian
pasta companies such as De Cecco and Barilla, and from scores of small, locally
recognized producers. We believe that we will be able to compete effectively in
these foreign markets, but as yet we have no established customer relationship
and no significant sales levels.
Our business is completely dependent upon dry pasta as our only product line.
We focus exclusively on producing and selling dry pasta. We expect to
continue to receive substantially all of our revenues from the wholesale and
retail sale of pasta and pasta-related products. In addition, our pasta
production equipment is highly specialized and is not adaptable to the
production of non-pasta food products. From time to time, consumer preference
for pasta and other grain-based foods has been affected by diet "fads"
de-emphasizing carbohydrates and starches. Because of our product concentration,
any decline in consumer demand or preference for dry pasta, or any other factor
that adversely affects the pasta market, could have a more significant adverse
effect on our business, financial condition and results of operations than on
pasta producers that also produce other products.
The purchase of the Mueller's business moves us into the branded retail pasta
business where we have relatively little experience.
Our purchase of the Mueller's pasta business significantly increases our
branded retail market share, a market in which we have relatively little direct
experience. Retail pasta sales are subject to intense competition, changes in
consumer preferences, the effects of changing prices for raw materials and local
economic conditions. The results of our Mueller's business will be dependent
upon our ability to manage the brand successfully (including implementing
effective marketing and trade promotion programs), to anticipate and respond to
new consumer trends, and to maintain key customer relationships in order to
compete effectively with lower priced products in a consolidating environment.
Our success is dependent on the efforts of several key executives.
Our operations and prospects depend in large part on the performance of our
senior management team. The loss of the services of one or more members of our
senior management team could have a material adverse effect on our business,
financial condition and results of operations. No assurance can be given that we
would be able to find qualified replacements for any of these individuals if
their services were no longer available. We do not maintain key person life
insurance on any of our key employees.
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Disruptions in transportation of raw materials or finished products or
increases in transportation costs could adversely affect our financial
results.
Durum wheat is shipped to our production facility in Missouri directly
from North Dakota, Montana and Canada under a long-term rail contract with our
most significant rail carrier, the Canadian Pacific Rail System. Under this
agreement, we are obligated to transport specified wheat volumes and, in the
event we do not, we must reimburse the carrier for certain of its costs. We also
have a rail contract to ship semolina, milled and processed at the Missouri
facility, to our South Carolina facility. An extended interruption in our
ability to ship durum wheat by railroad to the Missouri plant, or semolina to
our South Carolina facility, could have a material adverse affect on our
business, financial condition and results of operations. For example, in 1994 we
experienced a significant interruption in railroad shipments due to a railroad
strike. While we would attempt to find alternative transportation if we were to
experience another interruption due to a strike, or other event, such as a
natural disaster, there can be no assurance that we would be able to do so in a
timely and cost-effective manner.
We must manage our production and inventory levels in order to operate cost
effectively.
Most of our customers use, to some extent, inventory management systems
which track sales of particular products and rely on reorders being rapidly
filled by suppliers to meet consumer demand rather than on large inventories
being maintained by retailers. Although these systems reduce a retailer's
investment in inventory, they increase pressure on suppliers like us to fill
orders promptly and thereby shift a portion of the retailer's inventory
management cost to the supplier. Our production of excess inventory to meet
anticipated retailer demand could result in markdowns and increased inventory
carrying costs. In addition, if we underestimate the demand for our products, we
may be unable to provide adequate supplies of pasta products to retailers in a
timely fashion, and may consequently lose sales.
Fluctuations in our quarterly operating results may negatively impact and
cause volatility in our stock price.
Our results of operations may fluctuate on a quarterly basis and may be
below expectations of analysts and investors, and, as a result, the price of our
common stock may fall or become volatile. Factors that could cause quarterly
fluctuations include total sales volumes, the timing and scope of new customer
volumes, the timing and amounts of price adjustments due to durum wheat and
other cost changes, the cost of raw materials, including durum wheat, plant
expansion costs and interest expenses.
Because we produce food products, we may be subject to product liability
claims.
Although we have never been involved in a product liability lawsuit, the
sale of food products for human consumption involves the risk of injury to
consumers as a result of tampering by unauthorized third parties, product
contamination or spoilage, including the presence of foreign objects,
substances, chemicals, aflatoxin and other agents, or residues introduced during
the growing, storage, handling or transportation phases. While we are subject to
U.S. Food & Drug Administration inspection and regulations and we believe our
facilities comply in all material respects with all applicable laws and
regulations, there can be no assurance that we will not be subject to claims or
lawsuits for injuries related to the consumption
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of our products. We maintain product liability insurance in an amount which we
believe to be adequate. However, there can be no assurance that we will not
incur claims or liabilities for which we are not insured or that exceed the
amount of our insurance coverage.
In addition, we often indemnify our customers against product liability
claims related to our products and for the costs related to product recalls. We
carry insurance against these matters and we believe that we would have claims
against our suppliers in situations where their products were the cause of the
recall or product liability claim. However, there can be no assurance that our
insurance coverage would be adequate or that we would be able to recover against
our suppliers.
Our business could be subject to technological obsolescence.
We believe that one of our current competitive advantages is our state of
the art production equipment, which reduces our production costs when compared
with production facilities using less advanced equipment. If other pasta
producers acquire similar or more advanced equipment that provide greater
efficiencies, our current perceived competitive advantage might be diminished or
eliminated. This could have a material adverse effect on our business, financial
condition and results of operations. We could lose a competitive advantage if
the technologically advanced production equipment we use is adopted by our
competitors.
Our international expansion efforts may not be successful.
We recently completed the building of a pasta-producing facility in Italy.
To date, we have no experience in operating or distributing products on an
international basis. We cannot assure you that our international efforts will be
successful. We expect to incur significant costs in:
o establishing international distribution networks;
o complying with local regulations;
o overseeing the distribution of products in foreign markets; and
o modifying our business/accounting processing system for each
international market we enter.
If our international revenues are inadequate to offset the expense of
establishing and maintaining foreign operations, our business could be harmed.
In addition, there are several risks inherent in doing business on an
international level. These risks include:
o potentially complex regulatory requirements;
o export and import restrictions;
o tariffs and other trade barriers;
o difficulties in staffing and managing foreign operations;
o fluctuations in currency exchange rates and inflation risks;
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o seasonal fluctuations in business activity in other parts of the
world;
o changes in a specific country's or region's political or economic
conditions, particularly in emerging markets;
o potentially adverse tax consequences;
o difficulty in securing or transporting raw materials or transporting
finished product; and
o competitive activity.
Any of these risks could adversely impact the success of our international
operations.
Our business requires substantial capital and we carry a significant amount of
debt that restricts our operating and financial flexibility.
Our business requires a substantial capital investment, which we currently
finance, and expect to continue to finance, through third-party lenders. The
amount of debt we carry and the terms of our indebtedness could affect us in
several ways, including:
o the Company's ability to obtain additional financing in the future for
working capital, capital expenditures, and general corporate purposes may
be impaired;
o a substantial portion of the Company's cash flow from operations may have
to be dedicated to the payment of the principal of and interest on its
indebtedness
o the terms of such indebtedness may restrict the Company's ability to pay
dividends; and
o the Company may be more highly leveraged than many of its competitors,
which may place the Company at a competitive disadvantage.
We may borrow additional amounts of variable rate indebtedness in the
future. If we do, and if interest rates were to significantly increase
thereafter, our operating results and our ability to pay the interest on our
debt may be materially and adversely affected. We have used, and may continue to
use, interest rate protection agreements covering our variable rate debt to
limit our exposure to variable rates. There can be no assurance, however, that
we will be able to enter into such agreements or that such agreements will not
adversely affect our financial performance.
Our loan agreements limit our ability to pay dividends, limit our ability
to borrow more funds, and raise funds through sales of stock. The level of debt
we carry could restrict our corporate activities, including our ability to
respond to competitive market conditions, to provide for capital expenditures
beyond those permitted by our loan agreements, or to take advantage of business
opportunities.
USE OF PROCEEDS
The Selling Stockholder is selling all of the Shares covered by this
Prospectus for its own account. Accordingly, we will not receive any proceeds
from the resale of the Shares. We will
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bear all expenses of registration incurred in connection with this offering, but
all selling and other expenses incurred by the Selling Stockholder will be borne
by the Selling Stockholder.
SELLING STOCKHOLDER
Prior to our acquisition of the BF Assets (relating to the Mueller's brand
pasta business) from the Selling Stockholder, we had a long-term manufacturing
and distribution agreement with the Selling Stockholder that required the
Selling Stockholder to purchase from us a minimum of 175 million pounds of pasta
annually for nine years. Under this agreement, the Selling Stockholder closed
its facilities dedicated to the production of Mueller's brand pasta and we
became the exclusive producer of Mueller's, with the exception of certain
specialty items which were purchased from other suppliers. The contract was to
run through December 31, 2006 with a three-year renewal term at the option of
the Selling Stockholder.
On November 13, 2000, we purchased the BF Assets from the Selling
Stockholder. Accordingly, the long-term manufacturing and distribution agreement
with the Selling Stockholder was terminated at that time. Mueller's is the
largest single pasta brand in the United States, with particularly strong
distribution in the eastern part of the country. The acquisition encompassed the
trademarks and goodwill associated with the brand, the customer accounts and
relationships, and certain tangible assets, primarily inventory.
Total consideration for the purchased assets, excluding tangible assets,
was approximately $38.2 million, consisting of $17.6 million in cash and 686,666
Shares of common stock valued at $30 per share. At November 13, 2000, the value
of the consideration was $33.6 million based on a share price of $23.25. We
financed the cash portion of the acquisition price from our current debt
facility.
The transaction calls for the Selling Stockholder to realize a target
price of $30 per Share from sales of the Shares it received from us as partial
consideration for the BF Assets. We agreed to register the Shares shortly
following the closing date. After the effectiveness of this Registration
Statement, the Selling Stockholder may sell the Shares in open market or
negotiated transactions, and, for two years from the closing date, is
contractually obligated to use its reasonable best efforts to sell the Shares
for at least the target price of $30 per share. For shares sold by the Selling
Stockholder after two years, but less than three years after the closing date,
we have agreed to a make-whole cash payment to the Selling Stockholder related
to any Shares sold for less than the target price of $30. Any payments made by
us under this provision will lead to adjustments to equity accounts and will not
affect purchase price, goodwill, or our earnings.
For two years from the closing date, we may call the Shares that have not
yet been sold by the Selling Stockholder at any time for $30 per share.
To assure value of the BF Assets is protected and successfully
transitioned to AIPC, the Selling Stockholder has agreed, for up to 90 days
after closing, to provide us certain transition services. We have agreed to
honor the Selling Stockholder's marketing commitments through April 2001;
therefore, any major strategic changes to the business will not occur until the
second half of our fiscal year 2001.
No officer or director of the Selling Stockholder also serves as an
officer or director of AIPC or any predecessor or affiliate of ours. The
following table lists information with respect to the Selling Stockholder's
ownership of shares of our Class A Common Stock. Prior to the sale
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of the BF Assets, the Selling Stockholder did not hold any shares of AIPC, and
the Selling Stockholder does not hold any options to acquire shares of AIPC.
This information is based upon information provided by or on behalf of the
Selling Stockholder.
SHARES SHARES
BENEFICIALLY BENEFICALLY
OWNED PRIOR TO OWNED AFTER THE
THE OFFERING OFFERING
NUMBER OF
SHARES
NAME NUMBER PERCENT BEING NUMBER PERCENT
OFFERED
----------------------- ------- -------- ------------ -------- -------
Bestfoods 686,666 3.95% 686,666 0 *
* Less than one percent.
PLAN OF DISTRIBUTION
The Selling Stockholder may offer its shares of Class A Common Stock at
various times in one or more of the following transactions:
o in transactions on the New York Stock Exchange or such other markets on
which our Class A Common Stock may be listed at the time of such sale;
o in privately negotiated transactions; or
o through a combination of these or other methods.
The Selling Stockholder may offer its Shares of Class A Common Stock at
market prices prevailing at the times of such sales, at prices related to such
market prices or at negotiated prices. However, beginning after the
effectiveness of this S-3 Registration Statement (or November 13, 2001,
whichever is earlier) until November 12, 2002, the Selling Stockholder is
contractually obligated to use its reasonable best efforts to sell the Shares
for the target price of at least $30 per share.
The Selling Stockholder may use broker-dealers to sell its Shares of Class
A Common Stock. If this occurs, broker-dealers will either receive discounts or
commission from the Selling Stockholder, or they will receive commissions from
the purchasers of Shares of Class A Common Stock for whom they acted as agents.
For Shares sold by the Selling Stockholder from November 13, 2002 to November
12, 2003, we have agreed to reimburse the Selling Stockholder for broker's fees
of up to 0.5%. Brokers may act as dealers by purchasing any and all of the
Shares covered by this Prospectus either as agents for others or as principals
for their own accounts and reselling such securities under the Prospectus.
The Selling Stockholder and any broker-dealers or other persons acting on
the behalf of parties that participate in the distribution of the Shares may be
considered underwriters under the Securities Act. As such, any commissions or
profits they receive on the resale of the Shares may be considered underwriting
discounts and commissions under the Securities Act.
As of the date of this Prospectus, we are not aware of any agreement,
arrangement or understanding between any broker or dealer and the Selling
Stockholder with respect to the offer to sell the Shares under this Prospectus.
If we become aware of any agreement, arrangement or
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understanding, to the extent required under the Securities Act, we will file a
supplemental prospectus to disclose:
o the name of any such broker-dealers;
o the number of shares involved;
o the price at which such shares are to be sold;
o the commissions paid or discounts or concessions allowed to such
broker-dealers, where applicable;
o that such broker-dealers did not conduct any investigation to verify
the information set out in this prospectus, as supplemented; and
o other facts material to the transaction.
LEGAL MATTERS
Certain legal matters in connection with the Class A Common Stock offered
hereby will be passed upon for us by Blackwell Sanders Peper Martin LLP, Two
Pershing Square, 2300 Main Street, Suite 1000, Kansas City, Missouri 64108.
EXPERTS
The consolidated financial statements of American Italian Pasta Company
appearing in American Italian Pasta Company's Annual Report (Form 10-K) for the
year ended September 29, 2000, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given on the
authority of such firm as experts in accounting and auditing.
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 of these materials at the
SEC's Public Reference Room, 450 Fifth Stret, N.W., Washington, D.C. 20549 and
at the SEC's regional offices in New York, New York and Chicago, Illinois. You
may obtain information on the operation of the public reference rooms by calling
the SEC at 1-800-SEC-0330. Our SEC filings, including the Registration
Statement, will also be available to you on the SEC's website. The address of
this website is http://www.sec.gov.
We have filed a Registration Statement on Form S-3 with the SEC to
register Shares of our Class A Common Stock. This Prospectus is part of that
Registration Statement and, as permitted by the SEC's rules, does not contain
all of the information included in the Registration Statement. For further
information about us and this offering, you may refer to the Registration
Statement and its exhibits. You can review and copy the Registration Statement
and its exhibits at the public reference rooms maintained by the SEC or on the
SEC's website described above.
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This Prospectus may contain summaries of contracts or other documents.
Because they are summaries, they will not contain all of the information that
may be important to you. If you would like complete information about a contract
or other document, you should read the copy filed as an exhibit to the
Registration Statement.
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 we incorporate by reference is
considered to be a part of this Prospectus, and information that we file with
the SEC at a later date will automatically update or supersede this information.
We incorporate by reference the following documents as well as any future filing
we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934:
1. Annual Report on Form 10-K for the fiscal year ended September 29, 2000,
filed with the Commission on December 22, 2000;
2. Current Report on Form 8-K, filed with the Commission on October 10, 2000;
3. Current Report on Form 8-K, filed with the Commission on October 20, 2000;
4. Current Report on Form 8-K, filed with the Commission on January 5, 2001;
and
5. The description of our Class A Common Stock, par value $.001 per share,
contained in our Registration Statement on Form 8-A12B, filed with the
Commission on September 22, 1997, and including any further amendment or
report filed for the purpose of updating such description.
You may request a copy of these filings, at no cost, by writing to us at
Investor Relations, American Italian Pasta Company, 4100 Mulberry Drive, Suite
200, Kansas City, Missouri 64116 or by telephone at (816) 584-5000.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by us in
connection with the sale of Class A Common Stock being registered. All amounts
other than the Commission registration fee are estimates.
Commission registration fee $ 4,866
Legal fees and expenses 10,000
Accounting fees and expenses 10,000
Transfer agent fees 0
Printing and engraving expenses 5,000
Miscellaneous fees and expenses 5,000
------------
Total $ 34,866
============
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL") authorizes a
court to award, or a corporation's board of directors to grant, indemnity to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities, including
reimbursement for expenses incurred, arising under the Securities Act.
As permitted by the DGCL, our Certificate of Incorporation includes a
provision that eliminates the personal liability of each of our directors for
monetary damages for breach of fiduciary duty as a director, except for
liability (1) for any breach of the director's duty of loyalty to us or our
stockholders; (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (3) under Section 174 of
the DGCL regarding unlawful dividends and stock purchases; or (4) for any
transaction from which the director derived any improper personal benefit.
As permitted by the DGCL, our Certificate of Incorporation and our Bylaws
provide that (1) we shall indemnify our directors and officers and may indemnify
our other employees and agents to the fullest extent permitted by the DGCL,
subject to certain very limited exceptions (including that any person seeking
indemnification in connection with all or part of a proceeding initiated by that
person shall be indemnified only if the proceeding (or part thereof) was
authorized by our board of directors); (2) we shall advance expenses, as
incurred, to our directors and officers in connection with a legal proceeding,
subject to certain very limited exceptions (including that we will only advance
expenses to a director or officer for proceedings or portions of proceedings
initiated by that person if the proceeding (or part thereof) was authorized by
our board of directors); (3) the rights conferred in our Certificate of
Incorporation and Bylaws are not exclusive; and (4) we may maintain insurance,
at our expense, to protect AICP and any director, officer, employee, or agent of
ours or of another entity (or to protect a person serving in any other capacity
with us or another entity) against any expenses, liabilities or losses, whether
or not we would have the power to indemnify such person against such expenses,
liabilities or losses under the DGCL. In accordance with (4), above, we maintain
a $10,000,000 public
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companies directors, officers and corporate liability insurance policy insuring
against liability for, among other things, securities law violations.
ITEM 16. EXHIBITS
4.1 The specimen certificate representing the Company's Class A Convertible
Common Stock, par value $0.001 per share, which is attached as Exhibit 4.1
to the Company's registration statement on Form S-1, as amended
(Commission file no. 333-32827) (the "IPO Registration Statement"), is
incorporated by reference herein as Exhibit 4.1.
4.2 The specimen certificate representing the Company's Class B Convertible
Common Stock, par value $0.001 per share, which is attached as Exhibit 4.2
to the IPO Registration Statement, is incorporated by reference herein as
Exhibit 4.2.
4.3 Section 7.1 of the Company's amended and restated Certificate of
Incorporation, dated October 7,1997, which is attached as Exhibit 3.1 to
the IPO Registration Statement, is incorporated by reference herein as
Exhibit 4.3.
4.4 Article II of the Company's amended and restated Bylaws, dated October 7,
1997, which is attached as Exhibit 3.2 to the IPO Registration Statement,
is incorporated by reference herein as Exhibit 4.4.
4.5 Sections 1, 2, 3, 4 of Article III of the Company's amended and restated
Bylaws, dated October 7, 1997, which is attached as Exhibit 3.2 to the IPO
Registration Statement, is incorporated by reference herein as Exhibit
4.5.
4.6 Article VII of the Company's amended and restated Bylaws, dated October 7,
1997, which is attached as Exhibit 3.2 to the IPO Registration Statement,
is incorporated by reference herein as Exhibit 4.6.
4.7 Article IX of the Company's amended and restated Bylaws dated October 7,
1997, which is attached as Exhibit 3.2 to the IPO Registration Statement,
is incorporated by reference herein as Exhibit 4.7.
5 Opinion of Blackwell Sanders Peper Martin LLP, counsel to the Company.
23.1 Consent of Blackwell Sanders Peper Martin LLP (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24 Powers of Attorney (included in the signature page to the
Registration Statement).
27 Financial Data Schedule.
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ITEM 17. UNDERTAKINGS
The undersigned Company 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) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this 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.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Company's annual report pursuant to Section
13(a) or 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company 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
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is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
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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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Kansas City, State of Missouri, on January 12, 2001.
AMERICAN ITALIAN PASTA COMPANY
By: /s/ Timothy S. Webster
---------------------------------
Timothy S. Webster
President and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned hereby
severally constitute and appoint Timothy S. Webster and Warren B. Schmidgall,
and each of them singly, with full power of substitution and resubstitution, as
his or her true and lawful attorneys with full power to them, and each of them
singly, to sign for the undersigned and in the names of the undersigned in the
capacities indicated below, any and all amendments to this Registration
Statement on Form S-3, and generally to do all such things in the names of the
undersigned and in their capacities as indicated below to enable American
Italian Pasta Company to comply with the provisions of the Securities Act of
1933, and all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming the signatures of the undersigned as they may be signed
by said attorneys, or any of them, to said Registration Statement and any and
all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signature Title Date
/s/ Horst W. Schroeder Chairman of the Board of January 12, 2001
------------------------- Directors
Horst W. Schroeder
Director
------------------------ ------------------
Robert H. Niehaus
Director
------------------------ ------------------
Richard S. Thompson
/s/ Jonathan E. Baum Director January 12, 2001
------------------------
Jonathan E. Baum
Director
------------------------ ------------------
David Y. Howe
/s/ Mark C. Demetree Director January 12, 2001
------------------------
Mark C. Demetree
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/s/ William R. Patterson Director January 12, 2001
------------------------
William R. Patterson
/s/ John P. O'Brien Director January 12, 2001
------------------------
John P. O'Brien
/s/ James A. Heeter Director January 12, 2001
------------------------
James A. Heeter
/s/ Timothy S. Webster Director, President, Chief January 12, 2001
------------------------ Executive Officer (Principal
Timothy S. Webster Executive Officer)
/s/ Warren B. Schmidgall Executive Vice President, January 12, 2001
------------------------ Chief Financial Officer
Warren B. Schmidgall (Principal Financial and
Accounting Officer)
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Index of Exhibits
Exhibit
Number Document
------ --------
4.1 The specimen certificate representing the Company's Class A
Convertible Common Stock, par value $0.001 per share, which is
attached as Exhibit 4.1 to the Company's registration statement on
Form S-1, as amended (Commission file no. 333-32827) (the "IPO
Registration Statement"), is incorporated by reference herein as
Exhibit 4.1.
4.2 The specimen certificate representing the Company's Class B
Convertible Common Stock, par value $0.001 per share, which is
attached as Exhibit 4.2 to the IPO Registration Statement, is
incorporated by reference herein as Exhibit 4.2.
4.3 Section 7.1 of the Company's amended and restated Certificate of
Incorporation, dated October 7,1997, which is attached as Exhibit
3.1 to the IPO Registration Statement, is incorporated by reference
herein as Exhibit 4.3.
4.4 Article II of the Company's amended and restated Bylaws, dated
October 7, 1997, which is attached as Exhibit 3.2 to the IPO
Registration Statement, is incorporated by reference herein as
Exhibit 4.4.
4.5 Sections 1, 2, 3, 4 of Article III of the Company's amended and
restated Bylaws, dated October 7, 1997, which is attached as Exhibit
3.2 to the IPO Registration Statement, is incorporated by reference
herein as Exhibit 4.5.
4.6 Article VII of the Company's amended and restated Bylaws, dated
October 7, 1997, which is attached as Exhibit 3.2 to the IPO
Registration Statement, is incorporated by reference herein as
Exhibit 4.6.
4.7 Article IX of the Company's amended and restated Bylaws dated
October 7, 1997, which is attached as Exhibit 3.2 to the IPO
Registration Statement, is incorporated by reference herein as
Exhibit 4.7.
5 Opinion of Blackwell Sanders Peper Martin LLP, counsel to the
Company.
23.1 Consent of Blackwell Sanders Peper Martin LLP (included in
Exhibit 5).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24 Powers of Attorney (included in the signature page to the
Registration Statement).
27 Financial Data Schedule.
20
