Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws or any such State.
As filed with the Securities and Exchange Commission on May , 1996
Registration No. 33-60358
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
Filed on
FORM S-2
to
REGISTRATION STATEMENT
on
FORM S-1
UNDER
THE SECURITIES ACT OF 1933
AG SERVICES OF AMERICA, INC.
(Exact name of issuer as specified in its charter)
Iowa 42-1264455
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2302 West First Street
Cedar Falls, Iowa 50613
(319) 277-0261
(Address, including zip code and telephone number,
including area code, of registrant's
principal executive offices)
Gaylen D. Miller
2302 West First Street
Cedar Falls, Iowa 50613
(319) 277-0261
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copy to:
Bruce B. McPheeters
Gray, Plant, Mooty, Mooty
& Bennett, P.A.
3400 City Center
33 South Sixth Street
Minneapolis, Minnesota 55402-3796
(612) 343-2800
[Front Cover Continued]
Approximate date of commencement of proposed sale to public:
As soon as practicable 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, 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 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. |_|
Pursuant to Rule 472, this Registration Statement on Form S-2 is a
Post-Effective Amendment to the Registration Statement on Form S-1, as amended,
and originally declared effective by the Securities and Exchange Commission on
April 22, 1993, as Commission file no. 33-60358. The 1,491,891 shares of Common
Stock referred to herein were registered under the Registration Statement on
Form S-1, as amended, and declared effective April 22, 1993 and have been
adjusted to reflect a 2 for 1 stock split effective July 15, 1994. Accordingly,
no additional filing fee is required for this Post-Effective Amendment No. 1
filed on Form S-2.
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.
AG SERVICES OF AMERICA, INC.
CROSS REFERENCE SHEET
PURSUANT TO ITEM 501(b) OF REGULATION S-K
Item No. in Form S-2 Location in Prospectus
- -------------------- ----------------------
1. Forepart of the Registration Statement Forepart of the
and Outside Front Cover Page of Registration Statement
Prospectus and Outside Front Cover
2. Inside Front and Outside Back Inside Front Cover and
Cover Pages of Prospectus Outside Back Cover
3. Summary Information, Risk Factors Available Information;
and Ratio of Earnings to Fixed Charges Incorporation of Certain
Documents By Reference
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Price Not Applicable
6. Dilution Not Applicable
7. Selling Security Holders Not Applicable
8. Plan of Distribution Plan of Distribution
9. Description of Securities Incorporation of Certain
to be Registered Documents By Reference;
Description of Capital
Stock
10. Interests of Named Experts Legal Matters; Experts
and Counsel
11. Information with Respect to the Incorporation of Certain
Registrant Documents By Reference
12. Incorporation of Certain Information Incorporation of Certain
by Reference Documents by Reference
13. Disclosure of Commission *
Position on Indemnification
for Securities Act Liabilities
* Omitted from Prospectus because item is inapplicable or answer is negative.
SUBJECT TO COMPLETION
DATED MAY , 1996
1,491,891 SHARES
AG SERVICES OF AMERICA, INC.
COMMON STOCK
This Prospectus relates to the offering of up to 1,491,891 shares of
Common Stock, no par value per share (the "Shares"), of Ag Services of America,
Inc. (the "Company"). The Shares are issuable to holders of the Company's
outstanding 7% Convertible Subordinated Debentures due 2003 (the "Debentures")
upon conversion of the Debentures at a conversion price of $9.25 per share.
The Company has elected and scheduled to call for redemption on [Date],
or such later date as determined by the Company (the "Redemption Date"), all
of its outstanding Debentures at a redemption price of 108.0% of the principal
amount of Debentures (the "Redemption Price"), plus accrued interest from May
31, 1996 to the Redemption Date. The Debentures (or any portion thereof which is
$1,000 or an integral multiple thereof) may be converted into the Common Stock
of the Company at a conversion price of $9.25 of principal amount of Debentures
per share of Common Stock (equivalent to 108.108 shares of Common Stock for each
$1,000 principal amount of Debentures) at any time prior to 5:00 p.m. Central
Daylight Time on the Redemption Date. Cash will be paid in lieu of any
fractional shares of Common Stock issuable upon conversion of the Debentures. No
payment or adjustment to the conversion price will be made on account of
interest on the Debentures accruing after May 31, 1996. See "Alternatives
Available to Debenture Holders". ANY DEBENTURES NOT SO SURRENDERED FOR
CONVERSION ON OR BEFORE THE REDEMPTION DATE WILL BE REDEEMED.
The Company's outstanding Common Stock and any shares acquired through
conversion of Debentures are listed on the NASDAQ National Market System
("NASDAQ") under the symbol
(Continued on next page)
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS [ DATE ]
AGSV. On May 21, 1996, the closing sale price of the Common Stock, as reported
on the NASDAQ, was $14.00 per share. Based on the closing price of $14.00 per
share, if a holder of $1,000 principal amount of Debentures on that date had
converted such principal amount, such holder would have received Common Stock
(and cash in lieu of a fractional share) having a market value equal to
$1,513.51. The market price of the Common Stock received upon conversion is
subject to fluctuation, and the holder may incur various transaction costs if
the Common Stock is sold. So long as the market price of the Common Stock is
greater than $10.05 per share at the time of conversion, a holder of Debentures
who exercises such holder's conversion rights will receive Common Stock, plus
cash in lieu of any fractional share, with a market value greater than the
amount of cash the holder would otherwise be entitled to receive upon the
redemption of the Debentures (before deducting any taxes, commissions and other
costs which would likely be incurred on sale of the Common Stock received upon
conversion of the Debentures).
AVAILABLE INFORMATION
The Company's Common Stock is traded on the NASDAQ National Market
System ("NASDAQ") under the symbol AGSV. The Company is subject to the
information requirements of the Securities Exchange Act of 1934 (the "Exchange
Act") and in accordance therewith files reports, proxy or information statements
and other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at Judiciary Plaza, Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at its regional offices located at 500 West Madison, Suite 1400,
Chicago, Illinois 60661 and Seven World Trade Center, Suite 1300, New York, New
York 10048. Copies of such material can also be obtained at prescribed rates
from the Public Reference Section of the Commission at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549.
Additional information regarding the Company and the Shares offered
hereby is contained in the Registration statement and the exhibits thereto filed
with the Commission under the Securities Act of 1933, as amended. For further
information pertaining to the Company and the Shares, reference is made to the
Registration Statement and the exhibits thereto, which may be inspected without
charge at, and copies thereof may be obtained at prescribed rates from, the
office of the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed by the Company with the Commission under
the Exchange Act, are incorporated in this Prospectus by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended February 29, 1996 a copy of which will accompany this
Prospectus;
(b) The description of the Company's securities contained in the
Company's Registration Statement under Section 12 of the
Exchange Act, and any and all amendments and reports filed for
the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Shares offered hereby shall be
deemed to be incorporated by reference into this Prospectus and to be a part of
this Prospectus from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference (other than exhibits to
such documents which are not specifically incorporated by reference in such
documents). Requests for such copies should be directed to Corporate Secretary,
Dean C. Mohr, Ag Services of America, Inc., 2302 West First Street, Cedar Falls,
Iowa 50613.
The principal offices of Ag Services of America, Inc. are located at
2302 West First Street, Cedar Falls Iowa 50613, telephone number (319) 277-0261.
USE OF PROCEEDS
The Company will receive no proceeds upon conversion of the Debentures.
The Debentures will be retired and recorded as equity, see "Capitalization".
CAPITALIZATION
The following table sets forth the capitalization of the Company at
February 29, 1996, and as adjusted to give effect to the assumed conversion of
all the Debentures into approximately 1.5 million shares of Common Stock. (The
table does not reflect the pre-tax loss on Debentures that are redeemed rather
than converted arising from the excess of the redemption price for such
Debentures over their carrying value, which excess as of February 29, 1996,
equaled approximately $45 for each $1,000 principal amount of Debentures). The
financial data at February 29, 1996, in the following table are derived from the
Company's audited financial statements for the year ended February 29, 1996.
February 29, As
1996 Adjusted
Long-Term Liabilities (1)
7% convertible subordinated debentures $13,800,000 $ --
----------- -----------
Stockholders' Equity (1)(2)(3)
Capital stock, common-approximately
3.6 million and 5.1 million shares
issued and outstanding, respectively $ 8,499,003 $21,678,803
Retained Earnings 11,921,804 11,921,804
----------- -----------
Total Stockholders' Equity $20,420,807 $33,600,607
----------- -----------
Total Capitalization $34,220,807 $33,600,607
=========== ===========
(1) For additional information regarding long-term liabilities (including
repayment requirements), Capital Stock and retained earnings, see notes
3, 6, and 8 to the audited financial statements included in the
Company's Annual Report on Form 10-K for the year ended February 29,
1996. See "Incorporation of Certain Documents by Reference."
(2) As of February 29, 1996, 1.5 million shares of Common Stock were
reserved for the conversion of the Debentures and 0.6 million shares of
Common Stock were reserved for the issuance of stock upon the exercise
of stock options.
(3) Assumed conversion of all the debentures net of unamortized debt
issuance costs of approximately $620,200.
ALTERNATIVES AVAILABLE TO DEBENTURE HOLDERS
The Company has elected and scheduled to call for redemption on the
Redemption Date, all of the Company's outstanding Debentures. As of May 21,
1996, $13,800,000 principal amount of Debentures was outstanding.
The following alternatives are available to holders of Debentures:
1. CONVERSION INTO COMMON STOCK. Holders may convert Debentures (or any
portion thereof which is $1,000 or an integral multiple thereof) into the Common
Stock of the Company at a conversion price of $9.25 of principal amount of
Debentures per share of Common Stock (equivalent to 108.108 shares of Common
Stock for each $1,000 principal amount of Debentures). No fractional Shares of
Common Stock will be issued upon conversion of Debentures. Instead of issuing
any fractional share of Common Stock that would otherwise be issuable upon
conversion of any Debenture, the Company will pay a cash adjustment in respect
of such fraction in an amount equal to the same fraction of the last reported
sale price per share of Common Stock, regular way, at the close of business on
the Trading Day (defined below) immediately preceding the day of conversion or,
if no such sale takes place on such day, the average of the reported closing bid
and asked prices, regular way, on the NASDAQ. "Trading Day" means a day on which
the NASDAQ is open for business. The Debentures will not be convertible after
5:00 P.M., Central Daylight Time, on the Redemption Date.
Holders of the Debentures have the following conversion options (i)
conversion immediately before the Redemption Date, for purposes of conversion,
the debentures will not be deemed surrendered and converted until immediately
before the redemption date (provided that the debentures or a notice of
guaranteed delivery are actually delivered by such date). Accordingly, at any
time between delivery and the Redemption Date, a debenture holder who has chosen
this option may request in writing that the Paying and Conversion Agent promptly
return that holder's debentures, and (ii) conversion immediately upon surrender
of the Debentures to the Paying and Conversion Agent, for purposes of
conversion, the debentures will be deemed surrendered and converted immediately
upon delivery to the paying and conversion agent, regardless of when the
Redemption Date occurs.
Holders of Debentures that convert their Debentures will not be
entitled to any payment of interest on such Debentures accruing after May 31,
1996. Holders of Debentures of record on May 15, 1996, will be entitled to
receive the payment of interest due on the Debentures on May 31, 1996.
Debentures may be held in book-entry form through the facilities of The
Depository Trust Company (the "Depository"). Accordingly, in order for a
beneficial owner of an interest in a Debenture to exercise conversion rights,
such beneficial owner must comply with the procedures of the Depository, if a
participant in the Depository (a "participant"), or if such beneficial owner is
not a participant in the Depository, through the procedures of the participant
through which such beneficial owner owns its interest in the Debentures, to
effect a conversion.
The Company will decide, in its sole discretion, all questions as to
the form of documents and the validity, eligibility (including time of receipt)
and acceptance for conversion by the Company of any Debentures. Any defect or
irregularity in the surrender or delivery of any document in connection with the
conversion of Debentures may result in such Debentures not being converted into
Common Stock and, therefore, being redeemed on the Redemption Date.
SINCE IT IS THE TIME OF ACTUAL RECEIPT THAT DETERMINES WHETHER
DEBENTURES HAVE BEEN PROPERLY PRESENTED FOR CONVERSION, SUFFICIENT TIME SHOULD
BE ALLOWED FOR A BOOK-ENTRY TRANSFER TO BE MADE, PRIOR TO 5:00 P.M., CENTRAL
DAYLIGHT TIME, ON THE REDEMPTION DATE. DEBENTURES NOT ACTUALLY RECEIVED FOR
CONVERSION BY A BOOK-ENTRY TRANSFER PRIOR TO SUCH TIME WILL BE REDEEMED AS SET
FORTH BELOW.
2. SALE IN OPEN MARKET. Holders may sell the Debentures in the open
market. Holders of Debentures who wish to sell their Debentures in the open
market should consult with their own advisors regarding if and when they should
sell their Debentures and the tax consequences thereof. Holders may incur
various fees and expenses in connection with any such sale.
3. REDEMPTION. Holders may allow the Debentures to be redeemed on the
Redemption Date. Pursuant to the terms of the Indenture between the Company and
Norwest Bank Minnesota, National Association, as Trustee, dated as of April 30,
1993, holders of the Debentures will be entitled to receive upon redemption
108.0% of the principal amount of Debentures (the "Redemption Price"), plus
accrued interest from May 31, 1996 to the Redemption Date. The holder of $1,000
principal amount of Debentures redeemed at the Redemption Price plus accrued
interest would receive $1,086.81 in cash. Payment of the Redemption Price plus
accrued interest will be made by Norwest Bank Minnesota, National Association,
as paying and conversion agent (the "Paying and Conversion Agent") upon
surrender of Debentures to the Paying and Conversion Agent by holders of
Debentures. On and after the Redemption Date, interest will cease to accrue and
holders of Debentures will not have any rights as such holders other than the
right to receive the Redemption Price, plus accrued interest from May 31, 1996,
to the Redemption Date, upon such surrender for redemption.
On May 21, 1996, the closing price of the Common Stock as reported on
the NASDAQ was $14.00 per share. Based on the closing price of $14.00 per share,
if a holder of $1,000 principal amount of Debentures on that date had converted
such principal amount, such holder would have received Common Stock (and cash in
lieu of a fractional share) having a market value equal to $1,513.51, which
amount is higher than the amount ($1,086.81) to be received upon redemption. The
market price of the Common Stock received upon conversion, however, is subject
to fluctuation, and the holder may incur various transaction costs if such
Common Stock is sold. Holders of Debentures are urged to obtain current market
quotations for the Common Stock.
SO LONG AS THE MARKET PRICE OF THE COMMON STOCK IS GREATER THAN $10.05
PER SHARE AT THE TIME OF CONVERSION, A HOLDER OF DEBENTURES WHO EXERCISES SUCH
HOLDER'S CONVERSION RIGHTS WILL RECEIVE COMMON STOCK, PLUS CASH IN LIEU OF ANY
FRACTIONAL SHARE (DETERMINED AS SET FORTH ABOVE), WITH A MARKET VALUE GREATER
THAN THE AMOUNT OF CASH THE HOLDER WOULD OTHERWISE BE ENTITLED TO RECEIVE UPON
THE REDEMPTION OF THE DEBENTURES (BEFORE DEDUCTING ANY TAXES, COMMISSIONS AND
OTHER COSTS WHICH WOULD LIKELY BE INCURRED ON SALE OF THE COMMON STOCK RECEIVED
UPON CONVERSION OF THE DEBENTURES).
For a discussion of certain United States federal income tax
considerations, see "Certain Federal Income Tax Considerations".
PAYING AND CONVERSION AGENT AND INFORMATION AGENT
Norwest Bank Minnesota, National Association has been appointed as
Paying and Conversion Agent for the redemption and conversion of the Debentures.
The Paying and Conversion Agent:
By Hand or Overnight Courier: By Mail:
(registered or certified mail
recommended)
Norwest Bank Minnesota, Norwest Bank Minnesota,
National Association National Association
Corporate Trust Corporate Trust
Norwest Center Norwest Center
Sixth and Marquette Sixth and Marquette
Minneapolis, MN 55479-0069 Minneapolis, MN 55479-0069
The Company will pay the Paying and Conversion Agent their reasonable
and customary fees for their services and will reimburse them for all their
reasonable out-of-pocket expenses in connection therewith.
DESCRIPTION OF CAPITAL STOCK
The following statements with respect to the capital stock of the
Company are summaries and are subject to the detailed provisions of the
Company's Articles of Restatement, as amended (the "Articles of Restatement"),
and by-laws, as amended (the "By-Laws"). These statements do not purport to be
complete, or to give full effect to the provisions of statutory or common law,
and are subject to, and are qualified in their entirety by reference to, the
terms of the Certificate of Incorporation and the By-Laws, copies of which are
filed as exhibits to the Registration Statement and are incorporated by
reference into this Prospectus.
GENERAL
The Articles of Restatement authorizes the issuance of 10,000,000
shares of common stock, without par value. On February 29, 1996, approximately
3.6 million shares of Common Stock were outstanding.
VOTING RIGHTS
The holders of the Common Stock will elect all directors and are
entitled to one vote per share. All shares of Common Stock will participate
equally in dividends when and as declared by the Board of Directors (see
"Dividend Policy") and in net assets on liquidation. All outstanding shares are,
and the shares to be issued by the Company pursuant to this offering will be,
duly authorized, validly issued, fully paid and nonassessable.
The Bylaws of the Company contain provisions requiring the affirmative
vote of the holders of a majority of the shares entitled to vote in the election
of Directors to remove directors or amend the Bylaws.
DIVIDEND POLICY
Other than dividends paid prior to September 1989 to its then parent
corporation, which was subsequently merged into the Company, the Company has not
paid a cash dividend on its Common Stock. The Company has no present intention
of paying dividends. The Company presently intends to retain earnings to finance
growth. The Company's credit agreement limits the payment of dividends to an
aggregate maximum of $100,000 per year.
TRANSFER AGENT
The Transfer Agent and Registrar for the Common Stock is Norwest Bank
Minnesota National Association.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a general summary of certain United States federal
income tax considerations relevant to the conversion, redemption or sale of
Debentures by a beneficial owner of Debentures. This summary is based on the
Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations
(including Proposed Regulations and Temporary Regulations) promulgated
thereunder, Internal Revenue Service ("IRS") rulings, official pronouncements
and judicial decisions, all as in effect on the date hereof and all of which are
subject to change, possibly with retroactive effect, or different
interpretations. This summary is applicable only to holders who are United
States persons for federal income tax purposes and who hold Debentures as
capital assets and who will hold any Common Stock received on conversion of
Debentures as capital assets.
This summary does not discuss all the tax consequences that may be
relevant to a particular holder in light of the holder's particular
circumstances and it is not intended to be applicable in all respects to all
categories of investors, some of whom--such as insurance companies, tax-exempt
persons, financial institutions, regulated investment companies, dealers in
securities or currencies, persons that the Debentures as a position in a
"straddle," as part of a "synthetic security," "hedge," "conversion transaction"
or other integrated investment or persons whose functional currency is other
than United States dollars--may be subject to different rules not discussed
below. In addition, this summary does not address any state, local or foreign
tax considerations that may be relevant to a particular holder.
Legislative proposals have been under consideration that would reduce
the rate of federal income taxation of certain capital gains. Such legislation,
if enacted, might apply only to gain realized on dispositions occurring after a
date specified in the legislation. It cannot be predicted whether any such
legislation ultimately will be enacted and, if enacted, what its effective date
will be.
HOLDERS OF DEBENTURES ARE ADVISED TO CONSULT THEIR OWN TAX ADVISORS
REGARDING THE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF THE
CONVERSION, SALE OR REDEMPTION OF THE DEBENTURES IN LIGHT OF THEIR OWN
PARTICULAR CIRCUMSTANCES.
CONVERSION OF DEBENTURES
In general, no gain or loss will be recognized on conversion of
Debentures solely into Common Stock. The tax basis for the Common Stock received
upon such conversion will be equal to the tax basis of the Debentures converted
(reduced by the portion of such basis allocable to any fractional Common Stock
interest paid in cash). The holding period for the Common Stock generally will
include the holding period of the Debentures converted. A holder generally will
recognize gain (or loss) upon a conversion to the extent that any cash paid in
lieu of a fractional share of Common Stock exceeds (or is less than) its tax
basis in such fractional share.
SALE OR REDEMPTION OF DEBENTURES
Generally, the sale or redemption of a Debenture will result in taxable
gain or loss equal to the difference between the amount realized and the
holder's adjusted tax basis in the Debentures. Except as discussed below under
"Market Discount", such gain or loss will be capital gain or loss and will be
long term gain or loss if, at the time of such disposition, the Debentures had
been held for more than one year.
MARKET DISCOUNT
Special rules will apply to Debentures acquired with market discount. A
market discount note is, generally, a note the stated redemption price at
maturity of which exceeds the holder's basis in the note immediately after
acquisition. Generally, any gain recognized on the sale or redemption of a
market discount note will be treated as ordinary income to the extent of the
accrued market discount on such note not previously included in income. Market
discount accrues either ratably or at a constant yield to maturity, at the
election of the holder. A holder of a market discount note also may elect to
take market discount into income as it accrues.
Although the matter is not free from doubt, a holder of a Debenture
with market discount should not have to recognize income on the conversion of
the Debenture, even with respect to market discount that has accrued but has not
been taken into account. Market discount not recognized on conversion will carry
over to the Common Stock acquired upon conversion thereof and will be recognized
as ordinary income to the extent of gain recognized upon the disposition of such
Common Stock, including any deemed disposition of fractional shares of Common
Stock for cash at the time of conversion.
SALE OR DISPOSITION OF COMMON STOCK
A holder will recognize gain or loss on the sale or exchange of Common
Stock received upon conversion of a Debenture equal to the difference between
the amount realized on such sale or exchange and the holder's adjusted tax basis
in the Common Stock sold or exchanged. Except as noted above under "Market
Discount", such gain or loss would be long-term capital gain or loss if the
holder's holding period for the Common Stock were more than one year. See
"Conversion of Debentures".
BACKUP WITHHOLDING
A holder of a Debenture or Common Stock issued upon conversion of a
Debenture may be subject to backup withholding at a rate of 31% with respect to
dividends on, or the proceeds of a sale, exchange, or redemption of, such
Debenture or Common Stock, as the case may be, unless (i) such holder is a
corporation or comes within certain other exempt categories and, when required,
demonstrates this fact or (ii) provides a taxpayer identification number,
certifies as to no loss of exemption from backup withholding, and otherwise
complies with applicable backup withholding rules.
PLAN OF DISTRIBUTION
The Shares offered by this Prospectus would be issued upon conversion
of the Debentures. The Shares offered by this Prospectus are not being
underwritten.
LEGAL MATTERS
Certain legal matters in connection with the Common Stock offered
hereby are being passed upon for the Company by Gray, Plant, Mooty, Mooty, and
Bennett, P.A., 3400 City Center, 33 South Sixth Street, Minneapolis, Minnesota
55402-3796. Certain attorneys employed by Gray, Plant, Mooty and Bennett, P.A.
own shares of Common Stock of the Company having an aggregate value of less than
$50,000 based on the market value of the Company's Common Stock on May 21, 1996.
EXPERTS
The Company's annual report on Form 10K for the fiscal year ended
February 29, 1996, incorporated by reference in this Prospectus and elsewhere in
the Registration Statement have been audited by McGladrey & Pullen, LLP
independent public accountants, as indicated in their reports with respect
thereto. The financial statements and schedule are incorporated by reference in
reliance upon the reports of said firm and upon the authority of said firm as
experts in accounting and auditing.
- --------------------------------------------------------------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH
THE OFFERING TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT
CONTAINED IN THIS PROSPECTUS, AND IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR THE SELLING SHAREHOLDERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR
SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED, OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER
OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALES MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE OF THIS PROSPECTUS
OR THE DOCUMENTS INCORPORATED BE REFERENCE HEREIN.
Table of Contents
Page
----
Available Information ............ 2
Incorporation of Certain Documents
by Reference ................... 2
Use of Proceeds .................. 3
Capitalization
Alternatives Available to
Debenture Holders .............. 4
Paying and Conversion Agent and
Information Agent .............. 6
Description of Capital Stock ..... 7
Certain Federal Income Tax
Considerations ................. 8
Legal Matters .................... 10
Experts .......................... 10
1,491,891 SHARES
AG SERVICES OF AMERICA, INC.
COMMON STOCK
PROSPECTUS
[ DATE ]
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses of this offering are estimated to be as follows, which will
be borne by the Company:
Securities and Exchange Commission registration fee 4,312.50
National Association of Securities Dealers, Inc. 1,721.00
Legal services 1,000.00
NASDAQ Filing Fees 17,500.00
Accounting services 500.00
Blue Sky fees and expenses 500.00
Printing 1,000.00
Miscellaneous 466.50
Total $27,000.00
All of the above expenses except the registration fee and NASD fee, which were
paid with initial filing on Form S-1, are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
(a) Sections 490.850 through 490.858 of the Iowa Corporation Law
of provides, in summary, that the directors and officers of
the Company are entitled, under certain circumstances, to be
indemnified by it against all expenses and liabilities
incurred by or imposed upon them as a result of suits brought
against them as such directors or officers, if they act in
good faith and in a manner they reasonably believe to be in or
not opposed to the best interests of the Company, and with
respect to any criminal action or proceeding, have no
reasonable cause to believe their conduct was unlawful;
provided, that no indemnification shall be made against
expenses in respect of any claim, issue or matter as to which
they shall have been adjudged to be liable to the Company or
for receiving an improper personal benefit.
(b) Article V of the Company's Articles of Restatement and Article
VIII of the Company's Amended Bylaws, provide for the
indemnification by the Company of officers, directors and
certain other persons.
(c) The Company and each of its officers and directors have
entered into separate Indemnification Agreements, which
provided for the indemnification by the Company of officers
and directors to the fullest extent permitted by Sections
490.850 through 490.858 of the Iowa Corporation Law.
(d) The Company may obtain, at its expense, officers and directors
liability insurance for the officers and directors of the
Company.
ITEM 16. EXHIBITS
3.1 Articles of Restatement of Company (2)
3.2 Amended and Restated Bylaws of the Company (2)
3.3 Articles of Amendment (1)
4.1 Form of Common Stock Certificate (1)
5.1 Opinion and consent of Gray, Plant, Mooty, Mooty & Bennett,
P.A.*
13.1 Annual Report on Form 10-K for fiscal year ended February 29,
1996 (3)
23.1 Consent of McGladrey & Pullen, LLP*
23.2 Consent of Gray, Plant, Mooty, Mooty & Bennett, P.A. (included
as part of Exhibit 5.1)
99.1 Form of Letter of Notice of Redemption*
99.2 Form of Letter of Transmittal*
99.3 Form of Notice of Guaranteed Delivery*
(1) Pursuant to Rule 12(b)-32, this exhibit is incorporated by reference
under the same exhibit number to the exhibits filed with Pre-Effective
Amendment No. 1 to the Registration Statement on Form S-1 on July 12,
1991 as Commission File No. 33-40981.
(2) Pursuant to Rule 12(b)-32, this exhibit is incorporated by reference
under the same exhibit number to the exhibits filed with the
Registration Statement on Form S-1 on May 31, 1991 as Commission File
No.33-40981.
(3) Pursuant to Rule 12(b)-32, this exhibit is incorporated by reference to
the Company's Annual Report on Form 10-K for the fiscal year ended
February 29, 1996, as filed with the Commission.
* Filed herewith.
ITEM 17. UNDERTAKINGS
Paragraph designations correspond to designations in Regulation S-K,
Item 512.
(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 and 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 20 percent 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 (a)(1)(i) and (a)(1)(ii)
shall not apply if 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 registrant's 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.
(h) 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 such 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 issues.
(i) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from
the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the
registrant pursuit to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part
of this Registration Statement as of the time it was
declared effective.
(2) For the purpose of determining any liability under
the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus 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.
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-2 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cedar Falls, State of Iowa, on May 28, 1996.
By:/s/Henry C. Jungling, Jr.
Henry C. Jungling, Jr.,
Chairman (principal executive officer)
By:/s/Gaylen D. Miller
Gaylen D. Miller ,
President and Chief Executive Officer
(principal financial officer)
By:/s/Brad D. Schlotfeldt
Brad D. Schlotfeldt,
Vice President Finance and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/Gaylen D. Miller President, Chief Executive May 28, 1996
Gaylen D. Miller Officer and Director
/s/Henry C. Jungling, Jr. Chairman of the Board, May 28, 1996
Henry C. Jungling, Jr. and Director
/s/Kevin D. Schipper Chief Operating Officer May 28, 1996
Kevin D. Schipper and Director
/s/James D. Gerson Director May 28, 1996
James D. Gerson
/s/Michael Lischin Director May 28, 1996
Michael Lischin
/s/Ervin J. Mellema Director May 28, 1996
Ervin J. Mellema
</TABLE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Page
3.1 Articles of Restatement of Company (2)
3.2 Amended and Restated Bylaws of the Company (2)
3.3 Articles of Amendment (1)
4.1 Form of Common Stock Certificate (1)
5.1 Opinion and consent of Gray, Plant, Mooty, Mooty &
Bennett, P.A. (4)
13.1 Annual Report on Form 10-K for fiscal year ended
February 29, 1996 (3)
23.1 Consent of McGladrey & Pullen, LLP (4)
23.2 Consent of Gray, Plant, Mooty, Mooty & Bennett, P.A.
(included as part of Exhibit 5.1)
99.1 Form of Letter of Notice of Redemption (4)
99.2 Form of Letter of Transmittal (4)
99.3 Form of Notice of Guaranteed Delivery (4)
(1) - Pursuant to Rule 12(b)-32, this exhibit is incorporated by reference
under the same exhibit number to the exhibits filed with Pre-Effective
Amendment No. 1 to the Registration Statement on Form S-1 on July 12,
1991 as Commission File No. 33-40981.
(2) - Pursuant to Rule 12(b)-32, this exhibit is incorporated by reference
under the same exhibit number to the exhibits filed with the
Registration Statement on Form S-1 on May 31, 1991 as Commission File
No.33-40981.
(3) Pursuant to Rule 12(b)-32, this exhibit is incorporated by reference to
the Company's Annual Report on Form 10-K for the fiscal year ended
February 29, 1996, as filed with the Commisison.
(4) - Filed herewith
Exhibit 5.1
OPINION AND CONSENT OF GRAY, PLANT,
MOOTY, MOOTY & BENNETT, P.A.
May 24, 1996
EXHIBIT 5.1
Securities and Exchange Commission
450 Fifth Street N.W.
Washington, DC 20549
RE: AG SERVICES OF AMERICA, INC.
POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-2 TO
REGISTRATION STATEMENT ON FORM S-1, AS AMENDED
COMMISSION FILE NO. 33-60358
OUR FILE NO. 5019520/65913
Dear Sir or Madam:
We are securities counsel for Ag Services of America, Inc. an Iowa
corporation, (the "Company") in connection with the filing with the Commission
of a Post-Effective Amendment No. 1 on Form S-2 to the Registration Statement on
Form S-1, as amended, and originally declared effective by the Commission on
April 22, 1993 as Commission File No. 33-60358. The Post-Effective Amendment No.
1 pertains to 1,491,891 shares of common stock no par value, of the Company,
which we originally registered on the Registration Statement on Form S-1, as
amended. The number of shares has been adjusted for a stock split. These shares
of common stock are issuable upon conversion of the Debentures of the Company,
which were registered and issued in 1993 as described in the Registration
Statement on Form S-1 as amended.
We are admitted to practice only in the State of Minnesota and have
examined and are familiar with such documents and corporate records of the
Company as we have deemed necessary and appropriate for the purpose of rendering
the following opinion. Based on the foregoing, we are of the opinion that:
When the shares of Common Stock, up to a maximum of 1,491,891
shares, are issued by the Company upon conversion of the
Debentures pursuant to the Post Effective Amendment No. 1 on
Form S-2, such shares will, when issued, be validly issued,
fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Post-Effective Amendment No. 1 on Form S-2 and to the reference to our firm
under the caption "Legal Matters" in the Prospectus contained in the
Post-Effective Amendment No. 1.
Very truly yours,
GRAY, PLANT, MOOTY,
MOOTY, & BENNETT, P.A.
By/s/ Bruce B. McPheeters
Bruce B. McPheeters
Exhibit 23.1
CONSENT OF MCGLADREY & PULLEN, LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors
Ag Services of America, Inc.
Cedar Falls, Iowa
We hereby consent to the incorporation by reference in the May 29, 1996
Registration Statement on Form S-2 (Registration No. 33-60358) of our report,
dated May 3, 1996, which appears on page 15 of the annual report on Form 10-K of
Ag Services of America, Inc. for the year ended February 29, 1996, and to the
reference to our Firm under the caption "Experts".
McGLADREY & PULLEN, LLP
By/s/ McGladrey & Pullen, LLP
Waterloo, Iowa
May 29, 1996
Exhibit 99.1
FORM OF
LETTER OF NOTICE OF REDEMPTION
NOTICE OF REDEMPTION
TO THE HOLDERS OF
AG SERVICES OF AMERICA, INC.
7% CONVERTIBLE SUBORDINATED DEBENUTRES DUE 2003
CUSIP 001250 AA 7*
REDEMPTION DATE: [ DATE ]
CONVERSION RIGHT EXPIRES 5 P.M.,
CENTRAL DAYLIGHT TIME, ON THE REDEMPTION DATE
NOTICE IS HEREBY GIVEN that in accordance with Article 10 of the Indenture,
dated as of April 30, 1993 (the "Indenture"), between Ag Services of America,
Inc. (the "Company") and Norwest Bank Minnesota National Association, as Trustee
(the "Trustee"), the Company has elected and scheduled to call for redemption
all of the Company's 7% Convertible Subordinated Debentures due 2003 (the
"Debentures") on [ DATE ] or such date as determined by the Company (the
"Redemption Date"). Capitalized terms used herein and not defined are used as
defined in the Indenture.
On the Redemption Date, the Debentures will be redeemed at a redemption
price of $1,080 per $1,000 principal amount of Debentures (the "Redemption
Price"), plus accrued interest of $6.81 per $1,000 principal amount of
Debentures from May 31, 1996 to the Redemption Date. On the Redemption Date, the
Redemption Price will become due and payable upon each Debenture, or portion
thereof, to be redeemed and interest will cease to accrue on and after such
date.
Debentures (or any portion thereof which is $1,000 or an integral multiple
thereof) may be converted on or before the Redemption Date into Common Stock of
the Company at a conversion price of $9.25 principal amount of Debentures per
share of Common Stock (equivalent to 108.108 shares of Common Stock for each
$1,000 principal amount of Debentures). THE COMPANY WILL DELIVER CASH IN LIEU OF
ANY FRACTIONAL SHARE OF COMMON STOCK. THE DEBENTURES WILL NOT BE CONVERTIBLE
AFTER 5:00 P.M., CENTRAL DAYLIGHT TIME, ON THE REDEMPTION DATE.
- --------------------
* The CUSIP number referenced above has been assigned by Standard &
Poor's Corporation and is included solely for the convenience of
holders of the Debentures. Neither the Company nor Norwest Bank
Minnesota National Association shall be responsible for the selection
or use of this CUSIP number, nor is any representation made as to its
correctness on the Debentures or as indicated in any redemption notice.
Debentures must be surrendered to the Norwest Bank Minnesota National
Association, as Paying and Conversion Agent (the "Paying Agent"), to
convert the Debentures, or to collect the Redemption Price, plus
accrued interest. A Letter of Transmittal must be used in connection
with the surrender of Debentures for conversion. Debentures are to be
surrendered for conversion or redemption at the office of the Paying
Agent shown below:
By Hand or Overnight Courier: By Mail:
(registered or certified
mail recommended)
Norwest Bank Minnesota, Norwest Bank Minnesota,
National Association National Association
Corporate Trust Corporate Trust
Norwest Center Norwest Center
Sixth and Marquette Sixth and Marquette
Minneapolis, MN 55479-0069 Minneapolis, MN 55479-0069
This Notice of Redemption, a Letter of Transmittal and a prospectus
have been sent to each holder of record of Debentures. Debenture holders should
read the prospectus and Instructions to the Letter of Transmittal carefully.
If any holder requires assistance, has questions or would like to
obtain copies of the redemption materials, please contact Norwest Bank Minnesota
National Association, as Paying Agent, at the above address or by Tel. (800)
689-8788.
AG SERVICES OF AMERICA, INC.
Dated: [ DATE ]
Exhibit 99.2
FORM OF
LETTER OF TRANSMITTAL
If you wish to convert your Debentures by means of this Letter of Transmittal,
then your Debentures and this Letter of Transmittal must be RECEIVED by the
Paying and Conversion Agent listed below PRIOR TO 5:00 P.M., CENTRAL DAYLIGHT
TIME, ON THE REDEMPTION DATE. This Letter of Transmittal is to be used only if
Debentures are to be forwarded herewith. Debenture holders wishing to convert
their Debentures whose Debentures are not immediately available or who cannot
deliver their Debentures and all other documents required hereby to the Paying
and Conversion Agent prior to 5:00 p.m., Central Daylight Time, on the
Redemption Date must elect to convert their Debentures according to the
instructions for guaranteed delivery set forth in Instruction 7 hereof.
AG SERVICES OF AMERICA, INC.
LETTER OF TRANSMITTAL
(TO ACCOMPANY 7% CONVERTIBLE SUBORDINATED DEBENTURES
DUE 2003)
PAYING AND CONVERSION AGENT:
NORWEST BANK MINNESOTA NATIONAL ASSOCIATION
BY MAIL OR BY HAND TO:
By Hand or Overnight Courier: By Mail:
(registered or certified mail
recommended)
Norwest Bank Minnesota, Norwest Bank Minnesota,
National Association National Association
Corporate Trust Corporate Trust
Norwest Center Norwest Center
Sixth and Marquette Sixth and Marquette
Minneapolis, MN 55479-0069 Minneapolis, MN 55479-0069
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF INSTRUCTION VIA A FACSIMILE TRANSMISSION TO A
NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
Ladies and Gentlemen:
Enclosed herewith are 7% Convertible Subordinated Debentures Due 2003 (the
"Debentures") of Ag Services of America, Inc. (the "Company") numbered and
registered as listed below:
ITEMS A, B, E AND F OF THIS LETTER OF TRANSMITTAL MUST BE COMPLETED IN ALL
CASES.
ITEM A.
(MUST BE COMPLETED BY ALL HOLDERS OF DEBENTURES)
DESCRIPTION OF DEBENTURES PRESENTED
- --------------------------------------------------------------------------------
Name and Address of Registered Debentures Transmitted
Holder (If the name and address (Please fill in numbers and amounts and
shown are not correct, please attach signed list if space below
indicate any changes necessary is inadequate
- --------------------------------------------------------------------------------
Debentures Number(s) Principal Amount
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Total Principal Amount:
- --------------------------------------------------------------------------------
ITEM B.
(MUST BE COMPLETED BY ALL HOLDERS OF DEBENTURES)
THE ABOVE DEBENTURES ARE SURRENDERED FOR THE
ACTION INDICATED BELOW.
(Check Only One)
[_] CONVERSION IMMEDIATELY BEFORE THE REDEMPTION DATE, into shares of
Common Stock of the Company ("Shares") at a conversion price of $9.25
of principal amount of Debentures per Share (equivalent to 108.108
Shares per $1,000 principal amount of Debentures), with cash in lieu of
fractional Shares. Such payment of cash will be in the form of a check
drawn on an account of the Paying Agent and Conversion Agent. (See
Instruction 2.) Complete Items C and E.
IF A DEBENTURE HOLDER CHOOSES THIS OPTION AND DELIVERS THEIR DEBENTURES
AT ANY TIME BEFORE THE REDEMPTION DATE, FOR PURPOSES OF CONVERSION, THE
DEBENTURES WILL NOT BE DEEMED SURRENDERED AND CONVERTED UNTIL
IMMEDIATELY BEFORE THE REDEMPTION DATE (PROVIDED THAT THE DEBENTURES OR
A NOTICE OF GUARANTEED DELIVERY ARE ACTUALLY DELIVERED BY SUCH DATE).
ACCORDINGLY, AT ANY TIME BETWEEN DELIVERY AND THE REDEMPTION DATE, A
DEBENTURE HOLDER WHO HAS CHOSEN THIS OPTION MAY REQUEST IN WRITING THAT
THE PAYING AND CONVERSION AGENT PROMPTLY RETURN THAT HOLDER'S
DEBENTURES.
Holders of Debentures that convert their Debentures will not be
entitled to any payment of interest on such Debentures accruing after
May 31, 1996.
SO LONG AS THE MARKET PRICE OF THE COMMON STOCK IS GREATER THAN $10.05
PER SHARE AT THE TIME OF CONVERSION IMMEDIATELY BEFORE THE REDEMPTION
DATE, A HOLDER OF DEBENTURES WHO EXERCISES SUCH HOLDER'S CONVERSION
RIGHTS WILL RECEIVE COMMON STOCK, PLUS CASH IN LIEU OF ANY FRACTIONAL
SHARE (DETERMINED AS SET FORTH IN INSTRUCTION 2 BELOW), WITH A MARKET
VALUE GREATER THAN THE AMOUNT OF CASH THE HOLDER WOULD OTHERWISE BE
ENTITLED TO RECEIVE UPON THE REDEMPTION OF THE DEBENTURES (BEFORE
DEDUCTING ANY TAXES, COMMISSIONS AND OTHER COSTS WHICH WOULD LIKELY BE
INCURRED ON SALE OF SHARES RECEIVED UPON CONVERSION OF THE DEBENTURES).
[_] CONVERSION IMMEDIATELY UPON SURRENDER to Paying and Conversion Agent
into shares of Common Stock of the Company ("Shares") at a conversion
price of $9.25 of principal amount of Debentures per Share (equivalent
to 108.108 Shares per $1,000 principal amount of Debentures), with cash
in lieu of fractional Shares. Such payment of cash will be in the form
of a check drawn on an account of the Paying Agent and Conversion
Agent. (See Instructions 2.) Complete Items C and E.
IF A DEBENTURE HOLDER CHOOSES THIS OPTION, FOR PURPOSES OF CONVERSION,
THE DEBENTURES WILL BE DEEMED SURRENDERED AND CONVERTED IMMEDIATELY
UPON DELIVERY TO THE PAYING AND CONVERSION AGENT, REGARDLESS OF WHEN
THE REDEMPTION DATE OCCURS.
Holders of Debentures that convert their Debentures will not be
entitled to any payment of interest on such Debentures accruing after
May 31, 1996.
SO LONG AS THE MARKET PRICE OF THE COMMON STOCK IS GREATER THAN $10.05
PER SHARE AT THE TIME OF CONVERSION UPON DELIVERY TO THE PAYING AND
CONVERSION AGENT, A HOLDER OF DEBENTURES WHO EXERCISES SUCH HOLDER'S
CONVERSION RIGHTS WILL RECEIVE COMMON STOCK, PLUS CASH IN LIEU OF ANY
FRACTIONAL SHARE (DETERMINED AS SET FORTH IN INSTRUCTION 2 BELOW), WITH
A MARKET VALUE GREATER THAN THE AMOUNT OF CASH THE HOLDER WOULD
OTHERWISE BE ENTITLED TO RECEIVE UPON THE REDEMPTION OF THE DEBENTURES
(BEFORE DEDUCTING ANY TAXES, COMMISSIONS AND OTHER COSTS WHICH WOULD
LIKELY BE INCURRED ON SALE OF SHARES RECEIVED UPON CONVERSION OF THE
DEBENTURES).
[_] REDEMPTION at a price of $1,080.00 per $1,000 principal amount of
Debentures, plus accrued and unpaid interest to the Redemption Date of
$6.81, for a total redemption price of $1,086.81 per $1,000 principal
amount of Debentures. (See Instruction 3.) Complete Items D and E.
SO LONG AS THE MARKET PRICE OF THE COMMON STOCK IS GREATER THAN $10.05
PER SHARE BEFORE AND AT THE TIME OF REDEMPTION, THE AMOUNT OF CASH
RECEIVED UPON REDEMPTION WOULD BE LESS THAN THE MARKET VALUE OF THE
COMMON STOCK THAT WOULD HAVE BEEN RECEIVED IF THE HOLDER HAD ELECTED TO
CONVERT ON OR BEFORE THE REDEMPTION DATE (BEFORE DEDUCTING ANY TAXES,
COMMISSIONS AND OTHER COSTS WHICH WOULD LIKELY BE INCURRED ON SALE OF
SHARES RECEIVED UPON CONVERSION OF THE DEBENTURES).
[_] PARTIAL CONVERSION/PARTIAL REDEMPTION, If this box is checked you must
indicate (1) the principal amount of Debentures you wish to convert
into Shares on Item C and (2) the principal amount of Debentures you
wish to have redeemed on Item D. If this box is checked and no
additional instructions are provided, the delivery of Debentures prior
to 5:00 p.m., Central Daylight Time, on the Redemption Date, will be
treated by the Paying and Conversion Agent as instructions to convert
such Debentures into Shares regardless of when the Redemption Date
occurs. Complete Items C, D and E.
[_] CHECK HERE IF DEBENTURES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE PAYING
AND CONVERSION AGENT.
- -------------------------------------------------------------------------------
IF NO BOX IS CHECKED AND THE ABOVE DEBENTURES ARE RECEIVED BY THE PAYING AND
CONVERSION AGENT PRIOR TO 5:00 P.M., CENTRAL DAYLIGHT TIME, ON THE REDEMPTION
DATE, SUCH DEBENTURES WILL BE DEEMED SURRENDERED FOR CONVERSION INTO SHARES. IF
ANY DEBENTURES ARE RECEIVED AFTER THAT TIME, SUCH DEBENTURES WILL BE REDEEMED
REGARDLESS OF WHICH OR WHETHER ANY CHOICE IS INDICATED.
ITEM C.
CONVERSION
DEBENTURE HOLDERS PLEASE COMPLETE
1. If the stock certificate(s) evidencing Shares of Common Stock and/or
check (if any) are to be issued in the name of a person other than as
indicated in Item A above, fill in this space. See Instructions 4 and
5.
ISSUE TO:
Name:
Address
Zip Code
Social Security Number or Taxpayer I.D. Number
2. If stock certificate(s) evidencing Shares of Common Stock and/or check
(if any) are to be mailed to an address other than as indicated in Item
A above, fill in this space.
MAIL TO:
Name:
Address
Zip Code
Amount of Debentures Surrendered for Conversion: $
ITEM D.
REDEMPTION
DEBENTURE HOLDERS PLEASE COMPLETE
1. If the check is to be issued to a person other than as indicated in
item A above, fill in this space. See instructions 4 and 5.
ISSUE TO:
Name
Address
Zip Code
Social Security Number or Taxpayer I.D. Number
2. If the check is to be mailed to an address other than as indicated in
Item A above, fill in this space.
MAIL TO:
Name
Address
Zip Code
Amount of Debentures Surrendered for Redemption: $
ITEM E.
(MUST BE COMPLETED BY ALL HOLDERS OF DEBENTURES)
REQUIRED SIGNATURE
The signature(s) on this Letter of Transmittal must correspond exactly with the
name(s) of the (1) registered owners of the Debentures surrendered, or (2)
persons to whom such Debentures have been properly assigned or transferred, in
which case evidence of transfer must accompany this letter. See Instructions 1,
4, 5 & 6 below.
Dated:
Signature:
Signature:
Telephone:
Social Security Number or Taxpayer I.D. Number:
SIGNATURE GUARANTEE
(IF APPLICABLE)
If stock certificate(s) are to be issued in a name other than that of the
registered owner of the Debentures surrendered or persons to whom such
Debentures have been properly assigned or transferred, or if a check is to be
made payable to a different name, the signature of the holder must be guaranteed
by either a bank or trust company, a broker or dealer which is a member of the
National Association of Securities Dealers, Inc., or a recognized member of a
Medallion Signature Guarantee Program who may also be a member of a national
securities exchange. See Instructions 4 and 5.
Signature Guarantee:
Dated:
(Name of Firm issuing Guarantee)
(Signature of Officer)
(Title of Officer Signing This Guarantee)
(Address of Guaranteeing Firm)
ITEM F.
(MUST BE COMPLETED BY ALL HOLDERS OF DEBENTURES)
REQUIRED SIGNATURE
IMPORTANT TAX INFORMATION
- --------------------------------------------------------------------------------
COMPLETE AND SIGN SUBSTITUTE FORM W-9 IN ADDITION TO THE SIGNATURE(S) REQUIRED
IN ITEM E. (SEE INSTRUCTION 11)
PAYER'S NAME: NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
- --------------------------------------------------------------------------------
NAME AS SHOWN ON ACCOUNT (IF JOINT ACCOUNT, LIST FIRST AND CIRCLE NAME OF THE
PERSON OR ENTITY WHOSE NUMBER YOU ENTER IN PART 1 BELOW)
- --------------------------------------------------------------------------------
ADDRESS (IF ADDRESS IS NOT COMPLETED, SIGNATURE WILL CONSTITUTE A CERTIFICATION
THAT THE ABOVE ADDRESS IS CORRECT.)
- --------------------------------------------------------------------------------
CITY, STATE AND ZIP CODE
- --------------------------------------------------------------------------------
SUBSTITUTE
FORM W-9
Department of the Treasury Internal Revenue Service
Payer's Request for Taxpayer
Identification Number ("TIN")
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PART 1 -- PLEASE PROVIDE YOUR TAXPAYER IDENTIFICATION NUMBER OR
SUBSTITUTE AND CERTIFY BY SIGNING AND DATING BELOW.
SOCIAL SECURITY NUMBER OR
EMPLOYER IDENTIFICATION NUMBER
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PART 2 -- I AM NOT SUBJECT TO BACKUP WITHHOLDING BECAUSE (I) I AM
EXEMPT FROM BACKUP WITHHOLDING, OR (II) I HAVE NOT BEEN
NOTIFIED BY THE IRS THAT I AM SUBJECT TO BACKUP
WITHHOLDING AS A RESULT OF A FAILURE TO REPORT ALL
INTEREST OR DIVIDENDS, OR (III) THE INTERNAL REVENUE SERVICE
HAS NOTIFIED ME THAT I AM NO LONGER SUBJECT TO BACKUP
WITHHOLDING. (YOU MUST CROSS OUT THIS PART 2 IF YOU ARE
CURRENTLY SUBJECT TO BACKUP WITHHOLDING BECAUSE OF
UNDERREPORTING OF INTEREST OR DIVIDENDS ON YOUR TAX
RETURN.)[_]
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FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING, WRITE
"EXEMPT" IF YOU ARE EXEMPT FROM BACKUP WITHHOLDING
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CERTIFICATION -- UNDER PENALTIES OF PERJURY, I CERTIFY THAT
THE INFORMATION PROVIDED ON THIS FORM IS TRUE, CORRECT
AND COMPLETE.
SIGNATURE DATE
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PART 3 -- AWAITING TAXPAYER IDENTIFICATION NUMBER [ ]
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YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE
BOX IN PART 3 OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (a) I have mailed or delivered an application
to receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office, or (b) I intend to mail
or deliver an application in the near future. I understand that, notwithstanding
that I have checked the box on Part 3 (and have completed this Certificate of
Awaiting Taxpayer Identification Number), all reportable payments made to me
prior to the time I provide the Paying Agent with a properly certified taxpayer
identification number will be subject to a 31% backup withholding tax.
SIGNATURE DATE
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31 PERCENT OF ANY PAYMENT MADE TO YOU. PLEASE REVIEW THE ENCLOSED "GUIDELINES
FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9" FOR
ADDITIONAL DETAILS.
INSTRUCTIONS
1. GENERAL
Please do not send Debentures directly to the Company. The Debentures, together
with the signed and completed Letter of Transmittal and any required supporting
documents (see Instruction 2 below), should be mailed in the enclosed addressed
envelope or otherwise delivered to Norwest Bank Minnesota, National Association,
the Paying and Conversion Agent, at the address indicated on the front of this
Letter of Transmittal. The method of transmitting the Debentures and the Letter
of Transmittal is at the sole option and sole risk of the Debenture holder but,
if mail is used, it is recommended that registered mail, properly insured, be
used as a precaution against loss. Consideration should be given to using some
form of express delivery service as the conversion alternative discussed below
expires at 5:00 p.m., Central Daylight Time, on [ DATE ], or such later date as
determined by the Company (the "Redemption Date").
ITEMS A, B, E AND F OF THIS LETTER OF TRANSMITTAL MUST BE COMPLETED IN ALL
CASES.
2. IF YOU WISH TO CONVERT YOUR DEBENTURES
If you wish to convert your Debentures into Shares of Common Stock, then prior
to 5:00 p.m., Central Daylight Time, on the Redemption Date, you must deposit
with the Paying and Conversion Agent (i) the Debentures, (ii) a properly
completed Letter of Transmittal and (iii) any other documents required by this
Letter of Transmittal. If your Debenture Certificates are not immediately
available, please see Instruction 7.
Holders of Debentures that convert their Debentures will not be entitled to any
payment of interest on such Debentures accruing after May 31, 1996. Holders of
Debentures of record on May 15, 1996, will be entitled to receive the payment of
interest due on the Debentures on May 31, 1996.
Instead of issuing any fractional share of Common Stock that would otherwise be
issuable upon conversion of any Debenture, the Company will pay a cash
adjustment in respect of such fraction in an amount equal to the same fraction
of the last reported sale price per share of Common Stock, regular way, at the
close of business on the Trading Day (defined below) immediately preceding the
day of conversion or, if no such sale takes place on such day, the average of
the reported closing bid and asked prices, regular way, on the NASDAQ. "Trading
Day" means a day on which the NASDAQ is open for business. Such cash in lieu of
fractional share will be in the form of a check drawn on an account of the
Paying Agent and Conversion Agent.
Debentures may be held in book-entry form through the facilities of The
Depository Trust Company or the Philadelphia Depository Trust Company (each of
the foregoing are herein referred to as a "Depository"). Accordingly, in order
for a beneficial owner of an interest in a Debenture to exercise conversion
rights, such beneficial owner must comply with the procedures of the Depository
where such beneficial owner's Debentures are held, if a participant in such
Depository (a "participant"), or if such beneficial owner is not a participant
in a Depository, through the procedures of the participant through which such
beneficial owner owns its interest in the Debentures, to effect a conversion.
SINCE IT IS THE TIME OF ACTUAL RECEIPT THAT DETERMINES WHETHER DEBENTURES HAVE
BEEN PROPERLY PRESENTED FOR CONVERSION, SUFFICIENT TIME SHOULD BE ALLOWED FOR A
BOOK-ENTRY TRANSFER TO BE MADE, PRIOR TO 5:00 P.M., CENTRAL DAYLIGHT TIME, ON
THE REDEMPTION DATE. DEBENTURES NOT ACTUALLY RECEIVED FOR CONVERSION BY A
BOOK-ENTRY TRANSFER PRIOR TO SUCH TIME WILL BE REDEEMED AS SET FORTH BELOW.
SO LONG AS THE MARKET PRICE OF THE COMMON STOCK IS GREATER THAN $10.05 PER SHARE
AT THE TIME OF CONVERSION, A HOLDER OF DEBENTURES WHO EXERCISES SUCH HOLDER'S
CONVERSION RIGHTS WILL RECEIVE COMMON STOCK, PLUS CASH IN LIEU OF ANY FRACTIONAL
SHARE (DETERMINED AS SET FORTH ABOVE), WITH A MARKET VALUE GREATER THAN THE
AMOUNT OF CASH THE HOLDER WOULD OTHERWISE BE ENTITLED TO RECEIVE UPON THE
REDEMPTION OF THE DEBENTURES (BEFORE DEDUCTING ANY TAXES, COMMISSIONS AND OTHER
COSTS WHICH WOULD LIKELY BE INCURRED ON SALE OF THE SHARES RECEIVED UPON
CONVERSION OF THE DEBENTURES).
If the stock certificate(s) and cash in lieu of fractional Shares, if any, are
to be issued in the same name(s) as that in which the surrendered Debentures are
registered and mailed to the same address as given in Item A, complete Items A,
B, E and F.
If the stock certificate(s) and cash in lieu of fractional Shares, if any, are
to be issued in the name or names of a different person(s), see Instruction 4, 5
and 6 and complete Items A, B, C, E and F.
If the stock certificate(s) and cash in lieu of fractional Shares, if any, are
to be mailed to an address different from that given in Item A, complete Items
A, B, C, E and F.
If more than one Debenture is surrendered for conversion at any one time under
the same Letter of Transmittal or other notice by the same holder, the number of
Shares issuable upon conversion of such Debentures will be computed upon the
basis of the aggregate principal amount of Debentures so surrendered. Holders
are also entitled to convert fewer than all Debentures they hold, provided that
any conversions are for amounts of Debentures in integral multiples of $1,000.
A single Common Stock certificate will be issued unless you give written
instructions to the contrary. The Common Stock certificate and cash in lieu of
fractional Shares will be mailed as soon as possible after receipt of your
Debentures.
3. IF YOU WISH TO REDEEM YOUR DEBENTURES
If you wish your Debentures to be redeemed by the Company, deliver your
Debentures and this Letter of Transmittal, properly completed, to the Paying and
Conversion Agent. A check for $1,086.81 per $1,000 principal amount of
Debentures will be sent to you when the Debentures have been received by the
Paying and Conversion Agent, but in no event earlier than the Redemption Date.
If the check is to be issued in the same name(s) as that in which the
surrendered Debentures are registered and mailed to the same address as given in
Item A, complete Items A, B, E and F.
If the check is to be issued in a different name or names, see Instructions 4
and 5 and complete Items A, B, D, E and F.
If the check is to be mailed to an address different from that given in Item A,
complete Items A, B, D, E and F.
4. CERTIFICATE OR CHECK TO BE ISSUED IN A DIFFERENT NAME
Unless instructions are given in Item C or D, the Shares or a check are to be
issued in the same name as that of the record holder inscribed on the
surrendered Debenture. If the Shares or a check are to be issued in a name other
than that of the record holder of the listed Debenture please be guided by the
following:
(a) Endorsement and Guarantee: The Debentures surrendered must be properly
endorsed (or accompanied by one or more appropriate powers properly
executed by the record holder of such Debentures to the person who is
to receive the Common Stock certificates). The signature of the record
holder on the endorsement or stock powers must correspond with the name
as written upon the face of the Debentures surrendered in every
particular and must be guaranteed by a recognized member of a Medallion
Signature Program who may also be a commercial bank or trust company, a
broker or dealer which is a member of the National Association of
Securities Dealers, Inc. or by a member of a national securities
exchange (an "Eligible Institution").
(b) Transferee's Signature: This Letter of Transmittal must be signed by
the person to whom the transfer or assignment is made, or by his agent,
and should not be signed by the person transferring or assigning the
Debentures. The signature of such transferee, assignee, or agent must
be guaranteed as provided in Instruction 4(a).
(c) Correction of or Change in Name. For a name correction, or for a change
in name which does not involve a change of ownership, proceed as
follows. For a correction in name the listed Debentures should be
endorsed for example, "James E. Brown, incorrectly inscribed as J. E.
Brown," with the signature guaranteed as described in Instruction 4(a).
For a change in name by marriage, the surrendered Debentures should be
endorsed for example, "Mary Doe, now by marriage, Mrs. Mary Jones" with
the signature guaranteed as described in Instruction 4(a).
5. SIGNATURE BY FIDUCIARY OR OTHER THAN REGISTERED HOLDER
If this Letter of Transmittal is signed by the registered holder(s) of the
Debentures transmitted herewith, the signature(s) must correspond exactly with
the name(s) of such registered holder(s).
If the Letter of Transmittal is signed in Item E by an executor, administrator,
trustee, guardian, attorney or the like, such person should so indicate when
signing, and the Letter of Transmittal and Debentures must be accompanied by
evidence, satisfactory to the Paying and Conversion Agent and the Company, of
the authority of such person to sign the Letter of Transmittal and the
signature(s) must be properly guaranteed by an Eligible Institution.
If the Letter of Transmittal is signed in Item E by a person other than the
registered holder, who is not a person described in the preceding paragraph, the
Debentures must be properly endorsed or be accompanied by appropriate stock
powers, properly executed by the registered holder(s), so that such endorsement
or powers are signed exactly as the name(s) of the registered holder(s) appears
on the Debentures and the signatures to the endorsement or on the stock power
must be properly guaranteed by an Eligible Institution.
If the Debentures are endorsed by, or accompanied by stock powers signed by,
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations or other persons acting in a fiduciary or representative capacity,
such persons should so indicate when signing, and proper evidence satisfactory
to the Company of their authority so to act must be submitted, and the
signature(s) must be properly guaranteed by an Eligible Institution.
If you have completed Item C or D regarding special issuance instructions, the
signature on this Letter of Transmittal must be guaranteed, in the space
provided in Item E on the front hereof, by an Eligible Institution.
6. JOINT HOLDERS OR DEBENTURES REGISTERED IN DIFFERENT NAMES
If Debentures are tendered by joint holders or owners, all such persons must
sign the Letter of Transmittal in Item E. If Debentures are registered in
different names or forms of ownership, separate Letters of Transmittal must be
completed, signed and returned for each different registration. See Instruction
5 above.
7. NOTICE OF GUARANTEED DELIVERY
Debenture holders wishing to convert their Debentures whose Debentures are not
immediately available or who cannot deliver their Debentures and all other
documents required hereby to the Paying and Conversion Agent on or prior to 5:00
p.m., Central Daylight Time, on the Redemption Date may elect to convert their
Debentures pursuant to the following procedures: (i) such election to convert
must be made by or through a member firm of a registered national securities
exchange, a member of the National Association of Securities Dealers, Inc. or a
commercial bank or trust company having an office, branch or agency in the
United States, (ii) a properly completed and duly executed Notice of Guaranteed
Delivery substantially in the form provided by the Company must be received by
the Paying and Conversion Agent on or prior to 5:00 p.m., Central Daylight Time,
on the Redemption Date, and (iii) the Debentures in proper form for transfer,
together with a properly completed and duly executed Letter of Transmittal or
facsimile thereof and all other documents required by this Letter of
Transmittal, must be received by the Paying and Conversion Agent within five
business days after the date such Notice of Guaranteed Delivery is received by
the Paying and Conversion Agent. Notwithstanding the foregoing, Shares will be
issued in respect of Debentures surrendered for conversion only after timely
receipt by the Paying and Conversion Agent of the Debentures, a properly
completed and duly executed Letter of Transmittal (or facsimile thereof) and any
other documents required by the Letter of Transmittal.
8. TRANSFER TAXES
It is not anticipated that any transfer taxes will be payable in connection ith
the issuance of certificates evidencing Shares upon conversion of the
Debentures. If, however, it should develop that in certain circumstances such
taxes may be payable, conversion of Debentures will be effected without charge
to the converting holder for any such stock transfer tax, except in the
following cases. If stock certificates issued upon conversion are to be
registered in the name of any person other than the registered owner of
Debentures, the amount of any stock transfer taxes (whether imposed on the
registered owner(s) of the certificate(s) transmitted herewith or such
person(s)) payable on account of the transfer to such person(s) must accompany
this Letter of Transmittal or evidence must be submitted as to the payment of
such taxes, or exemption therefrom. The Company will not be required to issue or
deliver stock certificates in any such case until such person(s) has made
payment or submitted such evidence.
9. LOST OR DESTROYED DEBENTURES
If your Debentures have been either lost or destroyed, notify the Trustee of
this fact immediately by telephone at 1-800-689-8788 or by mail at Norwest Bank
Minnesota, National Association, P. O. Box 64854, Attn. Investor Relations, St.
Paul, MN 55164-0854. In order to retain your rights to convert your Debentures
which have been lost or destroyed, the procedures set forth in Item 7(i) and
(ii) of these instructions must be followed. You will then be instructed as to
the steps you must take in order to convert or have redeemed the Debentures that
you own. This form and related documents cannot be processed until the missing
Debentures have been replaced. You must act immediately if you wish to safeguard
your rights.
10. QUESTIONS AND ADDITIONAL COPIES
All questions regarding appropriate procedures for converting Debentures and
requests for additional copies of the Notice of Redemption, Letter of
Transmittal and Notice of Guaranteed Delivery should be directed to Norwest Bank
National Association, as Paying and Conversion Agent, at Norwest Center, Sixth
and Marquette, Minneapolis, MN 55479-0069, Tel. (800) 689- 8788.
11. SUBSTITUTE FORM W-9
Each Debenture holder is required to provide the Paying and Conversion Agent
with a correct taxpayer identification number ("TIN") on Substitute Form W-9
which is provided under Item F, and to indicate that the Debenture holder is not
subject to backup withholding by checking the box in Part 2 of the form. Failure
to provide the information on the form may subject the Debenture holder to 31
percent (31%) backup withholding on the payments made to the Debenture holder or
other payee with respect to Debentures redeemed or amounts paid for fractional
Shares. The box in Part 3 of the form may be checked if the Debenture holder has
not been issued a TIN and has applied for a TIN or intends to apply for a TIN in
the near future. If the box in Part 3 is checked and the Paying and Conversion
Agent is not provided with a TIN within sixty (60) days, the Paying and
Conversion Agent will withhold 31 percent (31%) on all such payments until a TIN
is provided.
IMPORTANT TAX INFORMATION
Under federal income tax law, a Debenture holder whose Debentures are redeemed
or who receives cash for fractional shares is required by law to provide the
Paying and Conversion Agent with such Debenture holder's correct TIN on
Substitute Form W-9. If such Debenture holder is an individual, the TIN is his
or her social security number. If the Paying and Conversion Agent is not
provided with the correct TIN, the Debenture holder or other payee may be
subject to a $50 penalty imposed by the Internal Revenue Service. In addition
payments that are made to such Debenture holder or other payee with respect to
Debentures redeemed or with respect to amounts paid for fractional shares may be
subject to backup withholding.
Certain Debenture holders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, that Debenture holder must submit a Form W-8, signed under penalties
of perjury, attesting to that individual's exempt status. Such statements can be
obtained from the Paying and Conversion Agent.
If backup withholding applies, the Paying and Conversion Agent is required to
withhold 31 percent (31%) of any such payments made to the Debenture holder or
other payee. Backup withholding is not an additional tax. Rather, the tax
liability of persons subject to backup withholding will be reduced by the amount
of tax withheld. If withholding results in an overpayment of taxes, a refund may
be obtained.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made to a Debenture holder or other
payee, the Debenture holder is required to notify the Paying and Conversion
Agent of the Debenture holder's correct TIN by completing the form, certifying
that the TIN provided on Substitute Form W-9 is correct or that such Debenture
holder is awaiting a TIN and that (1) the Debenture holder has not been notified
by the Internal Revenue Service that the Debenture holder is subject to backup
withholding as a result of failure to report all interest or dividends or (2)
the Internal Revenue Service has notified the Debenture holder that the
Debenture holder is no longer subject to backup withholding.
WHAT NUMBER TO GIVE THE PAYING AND CONVERSION AGENT
The Debenture holder is required to give the Paying and Conversion Agent the TIN
(e.g., social security number or employer identification number) of the
registered holder of the Debentures. If the Debentures are in more than one name
or are not in the name of the actual owner, consult the enclosed guildlines for
Certification of Taxpayer Identification Number on Substitute Form W-9 for
additional guidance on which number to report.
HOLDERS OF DEBENTURES ARE ADVISED TO READ THE PROSPECTUS AND TO CONSULT THEIR
OWN TAX ADVISORS REGARDING THE FEDERAL, STATE, LOCAL AND FOREIGN TAX
CONSEQUENCES OF THE CONVERSION OR REDEMPTION OF THE DEBENTURES IN LIGHT OF THEIR
OWN PARTICULAR CIRCUMSTANCES.
Exhibit 99.3
FORM OF
NOTICE OF GUARANTEED DELIVERY
NOTICE OF GUARANTEED DELIVERY
With Respect to
AG SERVICES OF AMERICA, INC.
7% Convertible Subordinated Debentures due 2003
This form must be used by a holder of the 7% Convertible
Subordinated Debentures due 2003 (the "Debentures") of Ag Services of America,
Inc. (the "Company"), that wished to tender Debentures for conversion into
shares of Common Stock to the Paying and Conversion Agent pursuant to the
guaranteed delivery procedures described in Instruction 7 to the accompanying
Letter of Transmittal. Any holder that wishes to tender Debentures for
conversion into shares of Common Stock pursuant to such guaranteed delivery
procedures must ensure that the Paying and Conversion Agent receives this Notice
of Guaranteed Delivery prior to 5:00 p.m., Central Daylight Time, on [ DATE ],
or such later date as determined by the Company (the "Redemption Date").
Capitalized terms not defined herein have the meaning ascribed to them in the
Prospectus or the Letter of Transmittal.
Paying and Conversion Agent
NORWEST BANK MINNESOTA NATIONAL ASSOCIATION
By Mail or by Hand to:
BY HAND OR OVERNIGHT COURIER: BY MAIL:
(registered or certified recommended)
Norwest Bank Minnesota, Norwest Bank Minnesota,
National Association National Association
Corporate Trust Corporate Trust
Norwest Center Norwest Center
Sixth and Marquette Sixth and Marquette
Minneapolis, MN 55479-0069 Minneapolis, MN 55479-0069
FACSIMILE NUMBER (FOR ELIGIBLE INSTITUTIONS ONLY)
612 667-9825
CONFIRM RECEIPT OF NOTICE
OF GUARANTEED DELIVERY
BY TELEPHONE:
(612) 667-7323
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION VIA A FACSIMILE NUMBER OTHER THAN AS SET FORTH ABOVE
WILL NOT CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF
A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN
"ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE
MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER
OF TRANSMITTAL.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby delivers to the Company, upon the terms and
subject to the conditions set forth in Instruction 7 of the related Letter of
Transmittal, receipt of which is hereby acknowledged, the principal amount of
Debentures specified below for conversion into shares of Common Stock pursuant
to the guaranteed delivery procedures set forth in the Prospectus and in
Instruction 7 of the Letter of Transmittal. The undersigned hereby tenders the
Debentures listed below:
<TABLE>
<CAPTION>
<S> <C> <C>
Certificate Number(s)(if known) of
Debentures or Account Number at the Aggregate Principal Aggregate Principal
Depository Trust Company Amount Represented Amount for Delivery
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
</TABLE>
|_| The Depository Trust Company
|_| Philadelphia Depository Company
Account Number ____________________
SIGN HERE
Name of Registered or Acting Debenture Holder: ________________________________
Signature(s): _________________________________________________________________
Name(s)(PLEASE PRINT): ________________________________________________________
Address: ______________________________________________________________________
_______________________________________________________________________________
Telephone Number: _____________________________________________________________
Date: _________________________________________________________________________
GUARANTEE
(Not to be used for signature guarantee)
The undersigned, a firm which is a member of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.,
or is a commercial bank or trust company having an office or correspondent in
the United States, or is otherwise as "eligible guarantor institution" within
the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as
amended, guarantees deposit with the Paying and Conversion Agent of the Letter
of Transmittal (or facsimile thereof), together with the Debentures tendered
hereby in proper form for transfer (or confirmation of the book-entry transfers
of such Debentures into the Paying and Conversion Agent's account at the
Depository Trust Company, as described in the Prospectus under the caption
"Alternatives Available to Debenture Holders" and in the Letter of Transmittal)
and any other required documents, all by 5:00 p.m. Central Daylight Time, on the
fifth NASDAQ trading day following the date of execution of this Notice of
Guaranteed Delivery.
SIGN HERE
Name of Firm: _____________________________________________________
Authorized Signature: _____________________________________________
Name (PLEASE PRINT) _______________________________________________
Address: __________________________________________________________
__________________________________________________________
__________________________________________________________
Telephone Number: _________________________________________________
Date: _____________________________________________________________
DO NOT SEND DEBENTURES WITH THIS FORM. ACTUAL SURRENDER OF DEBENTURES MUST BE
MADE PURSUANT TO, AND BE ACCOMPANIED BY, AN EXECUTED LETTER OF TRANSMITTAL.
INSTRUCTIONS FOR NOTICE OF GUARANTEED DELIVERY
1. Delivery of this Notice of Guaranteed Delivery. A properly
completed and duly executed copy of this Notice of Guaranteed Delivery and any
other documents required by the Letter of Transmittal must be received by the
Paying and Conversion Agent at its address set form herein prior to 5:00 p.m.,
Central Daylight Time, on the Redemption Date. The method of transmitting the
Debentures and the Letter of Transmittal is at the sole option and sole risk of
the Debenture holder but, if mail is used, it is recommended that registered
mail, properly insured, be used as a precaution against loss. Consideration
should be given to using some form of express delivery service. In all cases
sufficient time should be allowed to assure timely delivery. For a description
of the guaranteed delivery procedure, see Instruction 7 of the Letter of
Transmittal.
2. Signatures on this Notice of Guaranteed Delivery. If this Notice
of Guaranteed Delivery is signed by the registered holder(s) of the Debentures
referred to herein, the signature must correspond with the name(s) written on
the face of the Debentures without alteration, enlargement, or any change
whatsoever. If this Notice of Guaranteed Delivery is signed by a participant of
the book-entry transfer facility whose name appears on a security position
listing as the owner of Debentures, the signature must correspond with the name
shown on the security position listing as the owner of the Debentures.
If this Notice of Guaranteed Delivery is signed by a person other
than the registered holder(s) of any Debentures listed or a participant of the
book-entry transfer facility, this Notice of Guaranteed Delivery must be
accompanied by appropriate bond powers, signed as the name of the registered
holder(s) appears on the Debentures or signed as the name of the participant
shown on the book-entry transfer facility's security position listing.
If this Notice of Guaranteed Delivery is signed by a trustee,
executor, administrator, guardian, attorney-in-fact, officer of a corporation,
or other person acting in a fiduciary or representative capacity, such person
should so indicate when signing.
3. Requests for Assistance or Additional Copies. All questions
regarding appropriate procedures for converting Debentures and requests for
additional copies of the Notice of Redemption, Letter of Transmittal and Notice
of Guaranteed Delivery should be directed to Norwest Bank Minnesota National
Association, as Paying and Conversion Agent at the above address or by Tel.
(800) 689-8788.
