<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 16, 6996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ARCADIAN CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 76-0275035
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6750 POPLAR AVENUE, SUITE 600 38138-7419
MEMPHIS, TENNESSEE (Zip Code)
(Address of Principal Executive Offices)
ARCADIAN CORPORATION
RESTRICTED STOCK PLAN
(Full title of plan)
PETER H. KESSER
VICE PRESIDENT - LAW,
GENERAL COUNSEL AND SECRETARY
6750 POPLAR AVENUE, SUITE 600
MEMPHIS, TENNESSEE 38138-7419
(Name and address of agent for service)
(901) 758-5200
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Title of Securities Amount to be Maximum Offering Maximum Aggregate Amount of
to be Registered Registered Price Per Share Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock,
par value $.01 per share 675,000 (1) $22.44 (2) $15,147,000 (2) $5,224
====================================================================================================================================
</TABLE>
(1) Plus such additional shares, if any, as may be issued pursuant to the
antidilution provisions of the Plan.
(2) Estimated solely for the purpose of determining the registration fee
and calculated pursuant to Rule 457(c) and (h) by averaging the high
and low sale prices of the Common Stock on the New York Stock Exchange
on August 15, 1996.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
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* The information required by Items 1 and 2 of Part I of Form S-8 is
omitted from this Registration Statement in accordance with the
introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, or portions of documents, previously filed by
Arcadian Corporation ("Company") with the Securities and Exchange Commission
("Commission") are hereby incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1995.
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996 and June 30, 1996.
3. The Company's Current Reports on Form 8-K dated January 16,
1996, February 27, 1996, and August 5, 1996.
4. The description of the Company's Common Stock, par value $.01
per share ("Common Stock"), incorporated by reference in the Company's
Registration Statement on Form 8-A (File No. 1-13774), as amended.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to
the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement herein or in any subsequently filed document that 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 Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Delaware General Corporation Law
The Company is incorporated under the laws of the State of Delaware.
Section 102(b) of the Delaware General Corporation Law provides as follows:
In addition to the matters required to be set forth in the certificate
of incorporation by subsection (a) of this section, the certificate of
incorporation may also contain any or all of the following matters:
(7) A provision eliminating or limiting the personal liability of
a director to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, provided that such provision shall not
eliminate or limit the liability of a director: (i) For any breach of the
director's duty of loyalty to the corporation or its stockholders; (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law; (iii) under section 174 of [the Delaware General
Corporation Law]; or (iv) for any transaction from which the director derived
an improper personal benefit.
Section 145 of the Delaware General Corporation Law provides as
follows:
(a) A corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in subsections (a) and
(b) of this section. Such determination shall be made (1) by a majority vote of
the directors who
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are not parties to such action, suit or proceeding, even though less than a
quorum, or (2) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this section. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation would have the power to
indemnify him against such liability under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with respect to
the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this section.
(j) The indemnification and advancement of expenses provided by,
or granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise. The Court of Chancery
may summarily determine a corporation's obligation to advance expenses
(including attorneys' fees).
Restated Certificate of Incorporation
Article V of the Restated Certificate of Incorporation of the
registrant provides as follows:
The Company may indemnify its directors, officers, employees and
agents, to the extent permitted by the General Corporation Law of the State of
Delaware.
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Article VI of the Restated Certificate of Incorporation of the
registrant provides as follows:
A director of the corporation shall not be liable to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the General Corporation Law of the State of
Delaware as the same exists or may hereafter be amended. Any repeal or
modification of the foregoing sentence shall not adversely affect any right or
protection of a director of the corporation existing hereunder with respect to
any act or omission occurring prior to such repeal or modification.
Amended and Restated Bylaws
Article VIII of the Amended and Restated Bylaws of the registrant
provides as follows:
The Company shall be authorized to indemnify any person entitled to
indemnity under law, to the fullest extent permitted by law.
Indemnity Agreements
The registrant has entered into Indemnity Agreements with each of its
directors and officers and certain other employees, providing for
indemnification of such persons to the fullest extent allowed under Section 145
of the DGCL. The Company is required by the Indemnity Agreements and the
Special Committee Indemnity Agreements to advance litigation and related
expenses to the indemnified persons, subject to their undertaking to repay such
amounts if it is ultimately determined that they are not entitled to be
indemnified by the Company thereunder or otherwise.
Delaware Revised Uniform Limited Partnership Act
Section 108 of the Delaware Revised Uniform Limited Partnership Act
provides as follows:
Subject to such standards and restrictions, if any, as are set forth
in its partnership agreement, a limited partnership may, and shall have the
power to, indemnify and hold harmless any partner or other person from and
against any and all claims and demands whatsoever.
Partnership Agreements of the Partnership, Arcadian Fertilizer, L.P., and
Certain Other Operating Partnerships
Section 6.7 of the Agreement of Limited Partnership of the Partnership
("Partnership Agreement") provides as follows:
(a) To the fullest extent permitted by law but subject to the
limitations expressly provided in this Agreement, the [registrant, as the
general partner of the Partnership ("General Partner")] . . . and any person
who is or was an officer or director of the General Partner [(each an
"Indemnitee")] shall be indemnified and held harmless by the Partnership to the
extent deemed advisable by the General Partner to the fullest extent permitted
by law, from and against any and all losses, claims, damages, liabilities
(joint or several), expenses (including without limitation, legal fees and
expenses), judgments, fines, settlements and other amounts arising from any and
all claims, demands, actions, suits or proceedings, whether civil, criminal,
administrative or investigative, in which any Indemnitee may be involved, or is
threatened to be involved, as a party or otherwise, by reason of its status as
(i) the General Partner . . . or any of [its] [a]ffiliates, (ii) an officer,
director, employee, partner, agent or trustee of the General Partner . . . or
any of [its] [a]ffiliates or (iii) a [p]erson serving at the request of the
Partnership in another entity in a similar capacity; provided, that in each
case the Indemnitee acted in good faith, in a manner which such Indemnitee
believed to be in, or not opposed to, the best interests of the Partnership
and, with respect to any criminal proceeding, had no reasonable cause to
believe its conduct was unlawful . . . . The termination of any action, suit or
proceeding by judgment, order, settlement conviction or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that the
Indemnitee acted in a manner contrary to that specified above. Any
indemnification pursuant to this Section 6.7 shall be made only out of the
assets of the Partnership.
(b) To the fullest extent permitted by law, expenses (including
without limitation, reasonable legal fees and expenses) incurred by an
Indemnitee in defending any claim, demand action, suit or proceeding shall,
from time
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to time, be advanced by the Partnership prior to the final disposition of such
claim, demand action, suit or proceeding upon receipt by the Partnership of an
undertaking by or on behalf of the Indemnitee to repay such amount if it shall
be determined that the Indemnitee is not entitled to be indemnified as
authorized in this Section 6.7.
(c) The indemnification provided by this Section 6.7 shall be in
addition to any other rights to which an Indemnitee may be entitled under any
agreement, pursuant to any vote of the [p]artners [of the Partnership], as a
matter of law or otherwise, both as to actions in the Indemnitees' capacity as
(i) the General Partner . . . or an [a]ffiliate thereof, (ii) an officer,
director, employee, partner, agent or trustee of the General Partner . . . or
an [a]ffiliate thereof or (iii) a person serving at the request of the
Partnership in another entity in a similar capacity, and shall continue as to
an Indemnitee who has ceased to serve in such capacity and as to actions in any
other capacity.
(d) The Partnership may purchase and maintain (or reimburse the
General Partner or its [a]ffiliates for the cost of) insurance, on behalf of
the General Partner and such other [p]ersons as the General Partner shall
determine, against any liability that may be asserted against or expense that
may be incurred by such [p]erson in connection with the Partnership's
activities, whether or not the Partnership would have the power to indemnify
such [p]erson against such liabilities under the provisions of this Agreement.
(e) For purposes of this Section 6.7, the Partnership shall be
deemed to have requested an Indemnitee to serve as fiduciary of an employee
benefit plan whenever the performance by it of its duties to the Partnership
also imposes duties on, or otherwise involves services by, it to the plan or
participants or beneficiaries of the plan; excise taxes assessed on an
Indemnitee with respect to an employee benefit plan pursuant to applicable law
shall constitute "fines" within the meaning of Section 6.7(a); and action taken
or omitted by it with respect to an employee benefit plan in the performance of
its duties for a purpose reasonably believed by it to be in the interest of the
participants and beneficiaries of the plan shall be deemed to be for a purpose
which is in, or not opposed to, the best interests of the Partnership.
(f) In no event may an Indemnitee subject the [l]imited [p]artners
[of the Partnership] to personal liability by reason of the indemnification
provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or
in part under this Section 6.7 because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the
transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 6.7 are for the benefit of the
Indemnitees, their heirs, successors, assigns and administrators and shall not
be deemed to create any rights for the benefit of any other [p]ersons.
(i) No amendment, modification or repeal of this Section 6.7 or
any other provision hereof shall in any manner terminate, reduce or impair the
right of any past, present or future Indemnitee to be indemnified by the
Partnership, nor the obligation of the Partnership to indemnify any such
Indemnitee under and in accordance with the provisions of this Section 6.7 as
in effect immediately prior to such amendment, modification or repeal with
respect to claims arising from or relating to matters occurring, in whole or in
part, prior to such amendment modification or repeal, regardless of when such
claims may arise or be asserted.
Section 6.8 of the Partnership Agreement provides as follows:
(a) Notwithstanding anything to the contrary set forth in this
Agreement, no Indemnitee shall be liable for monetary damages to the
Partnership, the [l]imited [p]artners [of the Partnership] or any other
[p]ersons who have acquired [limited partner] interests in the [Partnership],
for losses sustained or liabilities incurred as a result of any act or omission
if such Indemnitee acted in good faith . . . .
(c) Any amendment, modification or repeal of this Section 6.8 or
any other provision hereof shall be prospective only and shall not in any way
affect the limitations on the liability to the Partnership and the [l]imited
[p]artners [of the Partnership] of the General Partner, its directors, officers
and employees under this Section 6.8 as in effect immediately prior to such
amendment, modification or repeal with respect to claims arising from or
relating to
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matters occurring, in whole or in part, prior to such amendment, modification
or repeal, regardless of when such claims may arise or be asserted.
The Agreements of Limited Partnership of Arcadian Fertilizer, L.P.,
and certain other operating partnerships of the Company contain provisions
substantially similar to Sections 6.7 and 6.8 of the Partnership Agreement.
Insurance
The Company maintains directors' and officers' liability insurance
covering such persons in their official capacities with the Company and its
subsidiaries.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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4.1 - Indenture dated May 11, 1993, among Arcadian Partners, L.P., Arcadian Partners Finance Corporation, and IBJ
Schroder Bank & Trust Company, as Trustee, with respect to Arcadian Partners, L.P.'s and Arcadian Partners
Finance Corporation's Series A and B Senior Notes due 2005 (incorporated herein by reference to Exhibit 4.2
to Arcadian Partners, L.P.'s Current Report on Form 8-K for the reported event dated May 11, 1993).
4.2 - Note Agreement dated as of April 23, 1992, between Arcadian Fertilizer, L.P., and the purchasers of the First
Mortgage Notes named therein (form), as amended by (1) the letter agreement dated as of September 7, 1993,
between Arcadian Fertilizer, L.P., and the holders of the First Mortgage Notes (form), (2) the letter
agreement dated as of April 8, 1994, between Arcadian Fertilizer, L.P., and the holders of the First Mortgage
Notes (form), (3) the letter agreement dated as of June 26, 1995, between Arcadian Fertilizer, L.P., and the
holders of the First Mortgage Notes (form), and (4) the letter agreement dated as of July 24, 1995, between
Arcadian Fertilizer, L.P., and the holders of the First Mortgage Notes (form) (incorporated herein by
reference to Exhibit 10.34 to the Registration Statement on Form S-1 (Registration No. 33-45828) relating to
Arcadian Partners, L.P.'s offering of Preference Units ("Preference Units Registration Statement"), Exhibit
10.27 to Arcadian Corporation's Annual Report on Form 10-K for the fiscal year ended December 31, 1993,
Exhibit 4.3 to the Registration Statement on Form S-4 (Registration No. 33-90290) relating to Arcadian
Corporation's offering of Mandatorily Convertible Preferred Stock, Series A ("Preferred Stock Registration
Statement"), and Exhibit 4.2 to Arcadian Corporation's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995 ("1995 Annual Report")).
4.3 - Revolving Credit Agreement dated as of June 29, 1995, among Arcadian Fertilizer, L.P., the banks parties
thereto, and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch, as
Agent (incorporated herein by reference to Exhibit 4.4 to the Preferred Stock Registration Statement).
4.4 - Registration Rights Agreement dated as of December 22, 1989, among Arcadian Corporation and certain holders
of Common Stock (form) (incorporated herein by reference to Exhibit 4.4 to the Registration Statement on Form
S-1 (Registration No. 33-34357) relating to Arcadian Corporation's offering of Common Stock ("Common Stock
Registration Statement")).
4.5 - Warrant Issuance Agreement dated as of May 31, 1989, between Arcadian Corporation and AAC Holdings, Inc., on
behalf of the holders of AAC Warrants (incorporated herein by reference to Exhibit 10.29 to the Common Stock
Registration Statement).
</TABLE>
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<TABLE>
<S> <C>
4.6 - Warrant Agreement dated as of December 22, 1989, between Arcadian Corporation and Chemical Bank, as Warrant
Agent, relating to the B Warrants, as supplemented by (1) the First Supplemental Agreement dated as of April
10, 1992, among Arcadian Fertilizer, L.P., Arcadian Corporation and Chemical Bank, as Warrant Agent, and
(2) the letter agreement dated as of January 31, 1996, among Arcadian Corporation, Society National Bank, as
successor Warrant Agent, and Chemical Bank, as removed Warrant Agent (incorporated herein by reference to
Exhibit 10.31 to the Common Stock Registration Statement, Exhibit 10.31 to the Preference Units Registration
Statement, and Exhibit 4.6 to the 1995 Annual Report).
5 - Opinion of Bracewell & Patterson, L.L.P., as to the legality of the Common Stock.
15 - Letter of KPMG Peat Marwick LLP regarding unaudited interim
financial information.
23.1 - Consent of Bracewell & Patterson, L.L.P. (included in the opinion filed as Exhibit 5 hereto).
23.2 - Consent of KPMG Peat Marwick LLP.
23.3 - Consent of Coopers & Lybrand (previously traded as Deloitte & Touche) - Arcadian Trinidad Limited.
23.4 - Consent of Coopers & Lybrand (previously traded as Deloitte & Touche) - Arcadian Trinidad Ammonia Limited.
24 - Powers of attorney (included on the signature page of this Registration Statement as originally filed).
</TABLE>
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(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;
(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) above
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 Exchange Act 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.
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<PAGE> 9
(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 that is incorporated by reference
in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Memphis, State of
Tennessee, on August 16, 1996.
ARCADIAN CORPORATION
By: /s/ J. D. CAMPBELL
-------------------------------------
J. D. Campbell
President and Chief Executive Officer
Each person whose signature appears below on this Registration
Statement hereby constitutes and appoints A. L. Williams and Peter H. Kesser,
each with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities (until
revoked in writing) to sign any and all amendments (including post-effective
amendments and amendments thereto) to this Registration Statement, and to file
the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing he might do or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities indicated on August 16, 1996.
/s/ WILLIAM A. MCMINN /s/ WILLIAM P. COPENHAVER
- ------------------------------------------ -------------------------------
William A. McMinn William P. Copenhaver
Chairman of the Board Director
/s/ J. D. CAMPBELL /s/ ALLAN R. DRAGONE
- ------------------------------------------ -------------------------------
J. D. Campbell Allan R. Dragone
Director, President and Chief Executive Director
Officer (principal executive officer
/s A. L. WILLIAMS /s/ HERBERT W. KIRBY
- ------------------------------------------ -------------------------------
A. L. Williams Herbert W. Kirby
Vice President - Finance and Director
Chief Financial Officer (principal
financial and accounting officer)
/s/ JOHN R. BLOCK /s/ JAMES A. SHIRLEY
- ------------------------------------------ -------------------------------
John R. Block James A. Shirley
Director Director
/s/ GORDON A. CAIN /s/ CHESTER B. VANATTA
- ------------------------------------------ -------------------------------
Gordon A. Cain Chester B. Vanatta
Director Director
<PAGE> 11
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description Page
------- ----------- ------------
<S> <C>
4.1 - Indenture dated May 11, 1993, among Arcadian Partners, L.P., Arcadian Partners
Finance Corporation, and IBJ Schroder Bank & Trust Company, as Trustee, with
respect to Arcadian Partners, L.P.'s and Arcadian Partners Finance Corporation's
Series A and B Senior Notes due 2005 (incorporated herein by reference to Exhibit
4.2 to Arcadian Partners, L.P.'s Current Report on Form 8-K for the reported event
dated May 11, 1993).
4.2 - Note Agreement dated as of April 23, 1992, between Arcadian Fertilizer, L.P., and
the purchasers of the First Mortgage Notes named therein (form), as amended by
(1) the letter agreement dated as of September 7, 1993, between Arcadian
Fertilizer, L.P., and the holders of the First Mortgage Notes (form), (2) the
letter agreement dated as of April 8, 1994, between Arcadian Fertilizer, L.P., and
the holders of the First Mortgage Notes (form), (3) the letter agreement dated as
of June 26, 1995, between Arcadian Fertilizer, L.P., and the holders of the First
Mortgage Notes (form), and (4) the letter agreement dated as of July 24, 1995,
between Arcadian Fertilizer, L.P., and the holders of the First Mortgage Notes
(form) (incorporated herein by reference to Exhibit 10.34 to the Registration
Statement on Form S-1 (Registration No. 33-45828) relating to Arcadian Partners,
L.P.'s offering of Preference Units ("Preference Units Registration Statement"),
Exhibit 10.27 to Arcadian Corporation's Annual Report on Form 10-K for the fiscal
year ended December 31, 1993, Exhibit 4.3 to the Registration Statement on Form S-4
(Registration No. 33-90290) relating to Arcadian Corporation's offering of
Mandatorily Convertible Preferred Stock, Series A ("Preferred Stock Registration
Statement"), and Exhibit 4.2 to Arcadian Corporation's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995 ("1995 Annual Report")).
4.3 - Revolving Credit Agreement dated as of June 29, 1995, among Arcadian Fertilizer,
L.P., the banks parties thereto, and Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland", New York Branch, as Agent (incorporated herein by
reference to Exhibit 4.4 to the Preferred Stock Registration Statement).
4.4 - Registration Rights Agreement dated as of December 22, 1989, among Arcadian
Corporation and certain holders of Common Stock (form) (incorporated herein by
reference to Exhibit 4.4 to the Registration Statement on Form S-1 (Registration
No. 33-34357) relating to Arcadian Corporation's offering of Common Stock ("Common
Stock Registration Statement")).
4.5 - Warrant Issuance Agreement dated as of May 31, 1989, between Arcadian Corporation
and AAC Holdings, Inc., on behalf of the holders of AAC Warrants (incorporated
herein by reference to Exhibit 10.29 to the Common Stock Registration Statement).
4.6 - Warrant Agreement dated as of December 22, 1989, between Arcadian Corporation and
Chemical Bank, as Warrant Agent, relating to the B Warrants, as supplemented by
(1) the First Supplemental Agreement dated as of April 10, 1992, among Arcadian
Fertilizer, L.P., Arcadian Corporation and Chemical Bank, as Warrant Agent, and
(2) the letter agreement dated as of January 31, 1996, among Arcadian Corporation,
Society National Bank, as successor Warrant Agent, and Chemical Bank, as removed
Warrant Agent (incorporated herein by reference to Exhibit 10.31 to the Common
Stock Registration Statement, Exhibit 10.31 to the Preference Units Registration
Statement, and Exhibit 4.6 to the 1995 Annual Report).
5 - Opinion of Bracewell & Patterson, L.L.P., as to the legality of the Common Stock.
15 - Letter of KPMG Peat Marwick LLP regarding unaudited interim financial information.
23.1 - Consent of Bracewell & Patterson, L.L.P. (included in the opinion filed as
Exhibit 5 hereto).
23.2 - Consent of KPMG Peat Marwick LLP.
</TABLE>
<PAGE> 12
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description Page
------- ----------- ------------
<S> <C>
23.3 - Consent of Coopers & Lybrand (previously traded as Deloitte & Touche) - Arcadian
Trinidad Limited.
23.4 - Consent of Coopers & Lybrand (previously traded as Deloitte & Touche) - Arcadian
Trinidad Ammonia Limited.
24 - Powers of attorney (included on the signature page of this Registration Statement
as originally filed).
</TABLE>
<PAGE> 1
EXHIBIT 5
August 16, 1996
Arcadian Corporation
6750 Poplar Avenue
Suite 600
Memphis, Tennessee 38138-7419
Gentlemen:
We have acted as counsel to Arcadian Corporation, a Delaware corporation (the
"Company"), in connection with the proposed issuance by the Company of up to
675,000 shares of its Common Stock, $.01 par value per share ("Common Stock"),
pursuant to the Company's Restricted Stock Plan (the "Plan") plus any
additional shares of Common Stock issuable pursuant to the antidilution
provisions of the Plan (together, the "Shares").
We have examined originals or copies of (1) the Restated Certificate of
Incorporation of the Company, as amended; (2) the Amended and Restated Bylaws
of the Company, as amended; (3) the Plan, (4) certain resolutions of the Board
of Directors of the Company; and (5) such other documents and records as we
have deemed necessary and relevant for purposes hereof.
We have relied upon certificates of officers of the Company and certificates
and telegrams of public officials as to certain matters of fact relating to
this opinion and have made such investigations of law as we have deemed
necessary and relevant as a basis hereof. We have assumed the genuineness of
all signatures, the authenticity of all documents, certificates and records
submitted to us as originals, the conformity to authentic original documents,
certificates and records of all documents, certificates and records submitted
to us as copies, and the truthfulness of all statements of fact contained
therein. We have not independently verified any factual matter relating to this
opinion.
Based upon the foregoing, and subject to the limitations set forth herein, and
having due regard for such legal considerations as we deem relevant, we are of
the opinion that:
<PAGE> 2
Arcadian Corporation
August 16, 1996
Page 2
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware.
2. The Shares have been duly authorized and, upon issuance against
payment therefor in accordance with the terms of the Plan for consideration at
least equal to the par value thereof, will be validly issued, fully paid and
non-assessable.
The foregoing opinion is based on and is limited to the General Corporation Law
of the State of Delaware, and we render no opinion with respect to the law of
any other jurisdiction.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as Exhibit 5 to the Company's Registration Statement on
Form S-8 relating to the Plan.
Very truly yours,
/s/ BRACEWELL & PATTERSON L.L.P.
Bracewell & Patterson, L.L.P.
<PAGE> 1
[KPMG PEAT MARWICK LLP LETTERHEAD]
EXHIBIT 15
----------
Arcadian Corporation
Memphis, Tennessee
Gentlemen:
With respect to the registration statement on Form S-8 to be filed on August
16, 1996, we acknowledge our awareness of the use therein of our reports dated
May 14, 1996 and August 14, 1996 related to our reviews of interim financial
information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are not
considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the
meaning of sections 7 and 11 of the Act.
Very truly yours,
/s/ KPMG PEAT MARWICK LLP
KPMG Peat Marwick LLP
Memphis, Tennessee
August 14, 1996
<PAGE> 1
EXHIBIT 23.2
[KPMG PEAT MARWICK LLP LETTERHEAD]
ACCOUNTANTS' CONSENT
We consent to the use of our audit report dated February 9, 1996 on the
consolidated balance sheet of Arcadian Corporation and subsidiaries as of
December 31, 1995 and 1994 and the related consolidated statements of
operations, stockholders' equity and cash flows for each of the years in the
three-year period ended December 31, 1995, incorporated herein by reference.
/s/ KPMG PEAT MARWICK LLP
KPMG Peat Marwick LLP
Memphis, Tennessee
August 14, 1996
<PAGE> 1
EXHIBIT 23.3
ACCOUNTANT'S CONSENT
We consent to the use of our reports, dated 10th January, 1996, with
respect to the balance sheet of Arcadian Trinidad Limited as of 31st December,
1995 and the related statements of operations, stockholders' equity and cash
flows for the year then ended, incorporated herein by reference.
/s/ COOPERS & LYBRAND
Coopers & Lybrand
(previously traded as Deloitte & Touche)
Chartered Accountants
Port of Spain
Trinidad, W.I.
14th August, 1996
<PAGE> 1
EXHIBIT 23.4
ACCOUNTANT'S CONSENT
We consent to the use of our reports, dated 10th January, 1996, with
respect to the balance sheet of Arcadian Trinidad Ammonia Limited as of 31st
December, 1995 and the related statements of operations, stockholders' equity
and cash flows for the year then ended, incorporated herein by reference.
/s/ COOPERS & LYBRAND
Coopers & Lybrand
(previously traded as Deloitte & Touche)
Chartered Accountants
Port of Spain
Trinidad, W.I.
14th August, 1996
