<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 8, 1996
REGISTRATION NO. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
ARCADIAN CORPORATION
(Exact name of registrant as specified in charter)
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<S> <C>
DELAWARE 76-0275035
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
</TABLE>
<TABLE>
<S> <C>
PETER H. KESSER
VICE PRESIDENT-LAW, GENERAL COUNSEL AND SECRETARY
6750 POPLAR AVENUE, SUITE 600 6750 POPLAR AVENUE, SUITE 600
MEMPHIS, TENNESSEE 38138-7419 MEMPHIS, TENNESSEE 38138-7419
(901) 758-5200 (901) 758-5200
(Address, including zip code, and telephone number, including (Name, address, including zip code, and telephone number,
area code, of registrant's principal executive offices) including area code, of agent for service)
</TABLE>
________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon
as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /x/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / _____________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / ____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
________________
CALCULATION OF REGISTRATION FEE
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==================================================================================================================
Title of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered Per Share (1) Offering Price (1) Fee
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 258,538 $20.94 $5,413,786 $1,867
==================================================================================================================
</TABLE>
(1) Estimated pursuant to Rules 457(c) and 457(g) solely for the purpose
of determining the registration fee and calculated upon the basis of
the high and low prices reported for the Common Stock on the New York
Stock Exchange on August 5, 1996.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
P R O S P E C T U S
258,538 SHARES
ARCADIAN CORPORATION
COMMON STOCK
This Prospectus relates to the offer and sale by Arcadian Corporation,
a Delaware corporation (the "Company"), of up to 258,538 shares (the "Shares")
of Common Stock, par value $.01 per share (the "Common Stock"), issuable upon
the exercise of outstanding Warrants to Purchase Common Stock, Series B (the
"Warrants"). The Warrants were issued pursuant to the terms of a Warrant
Agreement dated as of December 22, 1989, between the Company and the original
Warrant Agent (as amended to date, the "Warrant Agreement"). Each of the
31,300 outstanding Warrants at August 5, 1996, upon becoming exercisable,
entitles the holder thereof to purchase 8.26 shares of Common Stock at a price
of $3.27 per share.
As a result of the occurrence of a Triggering Event (as defined in the
Warrant Agreement), the Warrant may be exercised during the period of the
offering being made by this Prospectus (the "Offering"). The Warrants may be
exercised upon surrender of the certificate(s) evidencing the Warrants at the
offices of Society National Bank (the "Warrant Agent") with the exercise form
on the reverse side of the Warrant Certificate completed and duly executed as
indicated thereon, accompanied by full payment of the exercise price of $3.27
per share. Subject to earlier termination under certain circumstances, the
Offering and the right to exercise the Warrants will terminate at 5:00 p.m.
(Eastern Standard Time) on the date 180 days after the date of this Prospectus.
Warrants not exercised prior to the termination of this Offering may not
thereafter be exercised unless they become exercisable in connection with a
subsequent Triggering Event, except as otherwise provided in the Warrant
Agreement. See "The Offering."
This Prospectus may also be utilized by purchasers of the Shares
("Selling Stockholders") to effect the resale thereof. See "Plan of
Distribution." The Company will not receive any proceeds from the resale of
the Shares acquired by Selling Stockholders pursuant to the exercise of the
Warrants. See "Plan of Distribution."
The Common Stock is traded on the New York Stock Exchange ("NYSE")
under the symbol "ACA." The last reported sale price of the Common Stock on
the NYSE on August 7, 1996, was $22 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 3 FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CAREFULLY CONSIDERED BY PROSPECTIVE PURCHASERS OF THE
COMMON STOCK OFFERED HEREBY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
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UNDERWRITING DISCOUNTS PROCEEDS TO
PRICE TO PUBLIC(1) AND COMMISSIONS (2) THE COMPANY (3)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Share $ 3.27 -- $ 3.27
- ------------------------------------------------------------------------------------------------------------------
Total $845,420 -- $845,420
==================================================================================================================
</TABLE>
(1) Represents the Warrant exercise price per share of Common Stock.
(2) All brokerage commissions and fees payable with respect to any resales of
the Shares will be borne by the Selling Stockholders.
(3) Assuming all Shares offered hereby are sold and before deduction of
expenses of the Offering, all of which are payable by the Company,
estimated at $20,000.
________________
The principal executive offices of the Company are located at
6750 Poplar Avenue, Suite 600, Memphis, Tennessee 38138-7419, and the Company's
telephone number is (901) 758-5200.
________________
The date of this Prospectus is _________, 1996.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended ("Exchange Act"), and in accordance
therewith, files reports and other information with the Securities and Exchange
Commission ("Commission"). Such reports and other information may be inspected
and copied at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at the
Commission's Regional Offices at 7 World Trade Center, 13th Floor, New York,
New York 10048, and at Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661, and copies may be obtained at prescribed rates from
the Public Reference Section of the Commission at its principal office in
Washington, D.C. The Company also files such reports and information with the
NYSE, and the reports and information are available for inspection at the
offices of the NYSE, 20 Broad Street, New York, New York 10005. The Commission
maintains a site on the World Wide Web that contains documents filed
electronically with the Commission. The address of such site is
http://www.sec.gov, and reports, proxy statements and other information filed
electronically by the Company may be inspected at such site.
The Company has filed with the Commission a Registration Statement on
Form S-3 ("Registration Statement") under the Securities Act of 1933, as
amended ("Securities Act"), with respect to the shares of Common Stock offered
hereby. This Prospectus, which constitutes part of the Registration Statement,
omits certain of the information contained in the Registration Statement and
the exhibits and schedules thereto pursuant to the Securities Act and the rules
and regulations of the Commission thereunder. Statements contained in this
Prospectus as to the contents of any document are necessarily summaries of such
documents and are not necessarily complete, and in each instance reference is
made to the copy of such document filed as an exhibit to the Registration
Statement, each such statement being hereby qualified in all respects by such
reference. The Registration Statement, including the exhibits and schedules
thereto, is on file at the offices of the Commission and may be obtained upon
payment of the fee prescribed by the Commission or may be examined without
charge at the public reference facilities of the Commission described above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, or portions of documents, previously filed by
the Company with the Commission are incorporated by reference in this
Prospectus:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995.
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996.
3. The Company's Current Reports on Form 8-K dated January 16,
1996, February 27, 1996, and August 7, 1996.
4. The description of the 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 Section 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 this Offering shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of the
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 the Registration Statement and this Prospectus to
the extent that a statement contained herein or in any 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 the Registration Statement or this Prospectus.
The Company will provide, without charge, to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the information that has been incorporated herein by
reference, other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such information). Requests should
be directed to Peter H. Kesser, Vice President - Law and General Counsel, 6750
Poplar Avenue, Suite 600, Memphis, Tennessee 38138-7419, telephone: (901)
758-5200.
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<PAGE> 4
RISK FACTORS
In addition to the other information contained elsewhere or
incorporated by reference in this Prospectus, prospective investors should
carefully consider the following factors in evaluating an investment in the
Common Stock.
MARKETS FOR AGRICULTURAL PRODUCTS ARE SEASONAL AND VOLATILE
Agricultural demand for the Company's fertilizer products, which
accounted for approximately 60% of its 1995 revenues, is primarily dependent on
U.S. agricultural conditions, which can be volatile as a result of a number of
factors. The most important factors affecting U.S. agricultural conditions are
weather patterns and conditions (particularly during periods of high fertilizer
application), current and projected grain stocks and prices, and the U.S.
government's agricultural policy. Grain stocks are directly influenced by
highly unpredictable weather conditions and worldwide consumption. Weather
patterns and conditions in fertilizer-consuming regions during key periods also
may directly affect the demand for fertilizer. The application rate also
influences the demand for fertilizer. In addition to U.S. demand factors,
fertilizer prices are affected by world supply and demand factors. Because of
its dependence on the U.S. agricultural markets, the Company's fertilizer
business is seasonal and typically realizes higher prices, volumes and revenues
during the spring and fall planting seasons. Among the governmental policies
that influence the markets for fertilizer are those directly or indirectly
influencing the number of acres planted, the level of grain stocks, the mix of
the crops planted, and crop prices. Prior to the enactment of the Farm Bill in
April 1996, the U.S. government influenced the number of acres planted by
removing acres from cultivation through subsidies to farmers based upon current
grain stocks and expected yields. The Farm Bill ends government-guaranteed
prices for corn, other feed grains, cotton, rice and wheat. Farmers are to
receive guaranteed payments declining over seven years and an immediate end to
planting controls. The Company has not yet determined whether the Farm Bill
will have an effect on its operations.
HIGHLY COMPETITIVE BUSINESS
Nitrogen fertilizer is a global commodity and customers, including end
users, dealers and other fertilizer producers, base their purchasing decisions
principally on the price and deliverability of the product. A number of U.S.
producers compete with the Company in domestic and export markets, and
producers in other countries, including state- owned and government-subsidized
entities, compete in the U.S. and in foreign markets to which the Company
exports. Some of the Company's principal competitors may have greater total
resources and may be less dependent on earnings from nitrogen fertilizer sales
than is the Company. Some foreign competitors may have access to lower cost or
government- subsidized natural gas supplies and transportation services.
Certain of the Company's competitors have announced plans to increase their
production of ammonia, and the Company and certain of its competitors have been
increasing their capacity to upgrade existing nitrogen production to higher
value-added nitrogen solutions. Increases in the production of ammonia,
nitrogen solutions and other nitrogen products, to the extent that they are not
met with increased demand for such products, could have a material adverse
effect on the Company's profitability and cash flow.
PRICE AND AVAILABILITY OF NATURAL GAS
Natural gas is the primary raw material used in the production of
nitrogen fertilizers and chemicals, representing approximately 42% of the
Company's total domestic production cost. Accordingly, the Company's
profitability is affected by the price and availability of natural gas,
although the Trinidad plant's gas supply contract, which accounts for
approximately 35% of the Company's natural gas requirements, is tied to market
prices of ammonia. The Geismar, Lima, Memphis and LaPlatte plants are served
by two natural gas transmission pipelines, which provide the Company with the
benefits from increased competition for the transportation of natural gas. The
Company's other plants are served by single, open-access natural gas pipeline
transportation systems. A significant increase in the price of natural gas
that could not be recovered through an increase in nitrogen product prices, or
an extended interruption in the supply of natural gas to any of the Company's
plants, could have a material adverse effect on the Company's profitability and
cash flow.
ENVIRONMENTAL COSTS AND LIABILITIES
The production, distribution and storage of nitrogen and phosphate
fertilizers and chemicals may result in environmental damage. In addition, the
production of fertilizers and chemicals involves the use, handling and
processing of materials that may be considered hazardous within the meaning of
applicable environmental, health and safety laws. The Company believes that
the procedures currently in effect at all of its facilities for the production,
handling and transportation of all materials are consistent with industry
standards and are in general compliance with
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<PAGE> 5
applicable environmental, health and safety laws, the violation of which could
have a material adverse effect upon the Company. The Company's operations are
subject to extensive and evolving federal, state and local and certain foreign
laws and regulatory requirements relating to environmental affairs, health and
safety, waste management and chemical products. Permits are required for the
operation of the Company's plants and related facilities, and these permits are
subject to revocation, modification and renewal. Governmental authorities have
the power to enforce compliance with these regulations and permits, and
violators are subject to civil and criminal penalties, including fines,
injunctions or both. Third parties also may have the right to pursue legal
actions to enforce compliance. Future developments, such as stricter laws,
regulations or enforcement policies thereunder, could significantly increase
the cost to the Company with respect to the handling, manufacture, use,
emission or disposal of substances or wastes by the Company. Moreover, some
risk of environmental costs and liabilities is inherent in the Company's
operations and products, as it is with other companies engaged in similar
businesses, and there can be no assurance that material costs and liabilities
will not be incurred by the Company. In addition, the application rates of
nitrogen fertilizers by farmers may decline if environmental concerns result in
governmental policies restricting the use of nitrogen fertilizer.
DAMAGE TO THE PLANTS; NATURAL HAZARDS
The operations of the Company may be subject to significant
interruption, and the Company may be subject to significant liability, if one
or more of its plants or related facilities were to experience a major
industrial accident or were damaged by severe weather or other natural
disaster.
NON-U.S. REGULATION
The operations of the Trinidad plant are governed by the laws and
regulations of the Republic of Trinidad and Tobago. Such laws and regulations
may be subject to changes or varying interpretations, and new laws and
regulations may be adopted from time to time. Although management believes
that the Company is currently in compliance with all material aspects of such
laws and regulations, the violation of which could have a material adverse
effect upon the Company, and possesses all necessary government approvals,
licenses and permits, there can be no assurance that any subsequent official
interpretation of such laws or regulations or any such change or adoption,
especially with respect to taxation, currency controls or environmental
regulations, would not have a material adverse effect on the Company.
In addition, the government of Trinidad and Tobago has historically
exercised significant influence over many aspects of its economy, including the
regulation of foreign investment. Consequently, social instability and other
political, economic or diplomatic developments in Trinidad and Tobago may
affect the value of the Company's investment in its Trinidad operations or its
ability to access the cash flow from such operations. There can be no
assurance that Trinidad and Tobago will continue to enjoy social, political and
economic stability. The Company has obtained political risk insurance to
provide partial protection against loss as a consequence of confiscation,
riots, strikes, civil commotions or malicious damage, but the occurrence of any
such events could have a material adverse effect on the Company.
EXCHANGE RATE FLUCTUATIONS
The Company's business has benefitted over the last several years from
the relative weakness of the U.S. dollar, which contributed to a decrease in
the domestic demand for imported fertilizers and an increase in the demand for
U.S. fertilizer and agricultural products exports. A relatively stronger U.S.
dollar would have the opposite effect. In 1995, a small percentage of the
Company's Trinidad operations' net sales and operating costs was denominated in
currencies other than the U.S. dollar, principally in Trinidad dollars.
Consequently, a minor portion of the Company's consolidated net sales and
operating costs is subject to exchange rate fluctuations.
LONG-TERM INDEBTEDNESS AND SERIES A PREFERRED STOCK DIVIDEND
The Company is subject to substantial indebtedness, and substantially
all of its assets are pledged to various lenders. At June 30, 1996, the
Company's long-term indebtedness was $525 million. In addition, at June 30,
1996, the Company had a total of approximately 13.1 million shares of Series A
Preferred Stock outstanding with an aggregate liquidation preference of
approximately $202.4 million (plus the amount of any accrued but unpaid
dividends thereon) and an annual dividend requirement of approximately $19.2
million. The Series A Preferred Stock dividend must be paid or set aside for
payment before any dividends may be paid on the Common Stock. This
indebtedness and the Series A Preferred Stock dividend obligations may
adversely affect the Company's ability to obtain additional financing in the
future for working capital, capital expenditures, debt service requirements or
other purposes. In addition, a substantial portion of the Company's cash flow
from operations will be required to pay interest expense, principal
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<PAGE> 6
repayment obligations, and dividends on the Series A Preferred Stock.
Furthermore, the Company may be more highly leveraged than certain companies
with which it competes, which may place it at a competitive disadvantage, and
the Company's high degree of leverage may make it vulnerable in the event of a
downturn in its businesses.
DIVIDEND RESTRICTIONS
The Certificate of Designation creating the Series A Preferred Stock
prohibits the declaration and payment of dividends on the Common Stock unless
full cumulative dividends on the Series A Preferred Stock have been or
contemporaneously are declared and paid or set aside for payment. The Series A
Preferred Stock also ranks senior to the Common Stock upon any dissolution or
winding up of the Company. The payment of dividends also will be subject to
the discretion of the Board of Directors and to the availability of funds
legally available therefor. Certain of the Company's debt instruments further
limit its ability to pay dividends.
HOLDING COMPANY STRUCTURE
The Company conducts substantially all of its operations through
subsidiaries and is dependent on the cash flow of such subsidiaries to meet
obligations and pay dividends. Certain agreements governing indebtedness of
the Company's subsidiaries and applicable state laws may restrict the payment
of distributions and the making of loans by such subsidiaries to the Company.
In addition, the laws of Trinidad and Tobago require the payment of taxes (or
withholding therefor) on distributions of cash from the Company's Trinidad
operations to the U.S. parent.
POTENTIAL MANDATORY OFFER TO PURCHASE SENIOR NOTES
The Indenture relating to the 10 3/4% Series B Senior Notes due 2005
("Senior Notes") issued by Arcadian Partners, L.P. ("Partnership") contains
provisions permitting the holders thereof to require the Partnership to offer
to purchase such Senior Notes at 101% of the principal amount thereof, plus
accrued but unpaid interest, if any, to the date of purchase, upon the
occurrence of a "Change of Control," being, among other things, the acquisition
by any "person" (as used in Sections 13(d) and 14(d) of the Exchange Act),
other than record or beneficial stockholders of the Company as of the date of
the original issuance of the Senior Notes, directly or indirectly, of more than
30% of the total voting power of all classes of capital stock then outstanding
of the Company normally entitled to vote in elections of directors. A Change
of Control under such Indenture also would constitute a Change of Control under
the Company's revolving credit facility, which has a current maximum aggregate
borrowing limit of $100 million ("Revolving Credit Facility"). If a Change of
Control were to occur, the Company could be required to repay all outstanding
indebtedness under the Revolving Credit Facility, and the Partnership could be
required to purchase all or a portion of the Senior Notes as described above.
There can be no assurance that the Company or the Partnership would be able to
do so.
POSSIBLE CRIMINAL MISUSE OF AMMONIUM NITRATE
Low density ammonium nitrate, one of the Company's products, is sold
to producers and users of explosives in the mining, quarrying and construction
industries. Based on current publicly reported information, ammonium nitrate
may have been one of the principal components of the explosive used in the
bombing of the A.P. Murrah Building in Oklahoma City, Oklahoma, on April 19,
1995; however, there has been no public announcement by governmental
authorities concerning the components of such explosive. Partly as a result of
this incident, on April 24, 1996, the federal Antiterrorism and Effective Death
Penalty Act of 1996 ("Act") was enacted into law. Among other things, the Act
requires federal regulatory authorities to study and report to Congress on ways
to prevent or reduce the likelihood of similar incidents in the future.
Recommendations or future requirements resulting from Congressional or
regulatory action based on this study could result in producers of ammonium
nitrate, including the Company, modifying certain of their production
techniques and/or taking other actions to comply. Although the ultimate effect
of such actions cannot be known at this time, based on currently available
information, management does not expect that such actions will have a material
adverse effect on the Company. In addition, two product liability suits have
been filed in connection with the Oklahoma City bombing seeking recovery for
personal injuries and related damages. A manufacturer and distributor of
ammonium nitrate-based explosives and certain of its corporate affiliates were
named as defendants in these suits, although the complaints include broad
allegations directed generally at producers and distributors of ammonium
nitrate products. Neither the Company nor, to its knowledge, any other
producer or supplier of ammonium nitrate has been named as a defendant in
either suit. In one case, Gaines-Tabb, et al. v. ICI Explosives USA, Inc., et
al., W.D. Okla. No. Civ 95- 719-R, the court on July 2, 1996, granted the
principal plaintiff's motion to dismiss the suit for failure to state a claim
upon which relief could be granted. Although no formal notice of appeal has
been filed, the Company believes that the plaintiffs are likely to appeal this
dismissal. In the other case, Harding, et al. v. ICI Explosives USA, Inc., et
al., N.D. Texas, No. 95-04750, the plaintiffs recently filed a notice of
voluntary nonsuit, and on July 10, 1996, the case
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<PAGE> 7
was dismissed without prejudice to refiling at a later date. Based on the
information currently available, the Company does not believe that it will be
subject to material liability, if any, arising from the bombing of the A.P.
Murrah Building.
PORT AUTHORITY OF NEW YORK AND NEW JERSEY
On March 13, 1996, the Company, two other nitrogen producers, and up
to 30 unidentified parties were named as defendants in a lawsuit filed by the
subrogating insurers of the Port Authority of New York and New Jersey ("Port
Authority") in a New Jersey state court. The Port Authority's insurers are
seeking to recover damages allegedly incurred as a result of the explosion at
the World Trade Center in New York City on February 26, 1993. The Port
Authority's insurers allege in their complaint that the two other named
defendants and one or more unidentified parties (as manufacturers of ammonium
nitrate), the Company and one or more unidentified parties (as producers of
urea), and one or more unidentified makers of nitric acid are liable under
various tort theories for unspecified property damages, business interruption
losses, lost rent and other damages allegedly incurred by the Port Authority as
a result of the World Trade Center explosion. The Company and the other
defendants have removed the case to federal court in New Jersey. Pending the
resolution of a dispute involving the role of the insurers' counsel, the court
has stayed any further proceedings in the suit. The Company is unaware of any
basis for liability and intends to vigorously defend against the Port
Authority's insurers' allegations.
THE OFFERING
GENERAL
In August 1995, the Company consummated a public offering of Common
Stock (the "IPO") that constituted a "Triggering Event" for purposes of the
Warrant Agreement. As a result, the Company was required, within one year
after the consummation of the IPO, to file the Registration Statement of which
this Prospectus is a part and to use its best efforts to have such Registration
Statement declared effective and remain effective for a continuous period of
180 days after the effective date. The Warrants are exercisable during the
period of this Offering, which is intended to comply with the terms of the
Warrant Agreement.
TERMS OF EXERCISE
During the period of this Offering, a holder of any Warrant
certificate may exercise all or any whole number of the Warrants evidenced
thereby. In order to exercise all or any whole number of the Warrants
represented by a Warrant certificate, the holder thereof must surrender the
Warrant certificate to the Warrant Agent at the address set forth below with
the form of exercise on the reverse of the Warrant certificate duly executed,
together with payment in full of the Warrant Price for each Warrant being
submitted for exercise. Payment in full of the Warrant Price for each Warrant
requires the payment of the Warrant Price of $3.27 per share of Common Stock
times the number of shares of Common Stock represented by the Warrant. Payment
in full of the Warrant Price per Warrant is $27.00. Payment of the Warrant
Price must be (i) in cash, (ii) by certified or official bank or bank cashier's
check payable to the order of the Company, (iii) by bank wire transfer to the
appropriate account of the Company at the Warrant Agent as described below, or
(iv) by any combination of the foregoing. Delivery of the Warrant certificates
and tender of the Warrant Price shall be made at the risk of the holder to the
Warrant Agent as follows:
<TABLE>
<CAPTION>
By Mail: By Hand:
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<S> <C>
KeyCorp Shareholder Services, Inc. KeyCorp Shareholder Services, Inc.
P. O. Box 6477 700 Louisiana Street, Suite 2620
Cleveland, Ohio 44101-1477 Houston, Texas 77002
Mail Stop OH-01-49-0120 Attention: Reorganization Department
Attention: Reorganization Department
</TABLE>
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<TABLE>
<CAPTION>
By Overnight Courier: By Wire Transfer:
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KeyCorp Shareholder Services, Inc. KeyBank National Association
4900 Tiedeman Road c/o KeyCorp Shareholder Services, Inc.
Brooklyn, Ohio 44144-2302 4900 Tiedeman Road
Attention: Reorganization Department Brooklyn, Ohio 44144
ABA 041-001-039
Attention: Rich Holzhelmer
Reorganization Department, 1st Floor
Mail Stop OH-01-49-0120
TAAS # 095307500
</TABLE>
If less than all the Warrants represented by a Warrant certificate are
surrendered, (i) such Warrant certificate must be surrendered and a new Warrant
certificate of the same tenor and for the number of Warrants which were not
surrendered will be executed by the Company; and (ii) the Warrant Agent will
countersign the new Warrant certificate, will, subject to certain restrictions
on transfer, register the new Warrant certificates in such name or names as may
be directed in writing by the holder, and will deliver the new Warrant
certificate to the person entitled to receive the same.
Upon exercise of a Warrant and surrender of a Warrant certificate in
conformity with the foregoing provisions, the Company will issue to or upon the
written order of the holder of such Warrant certificate a stock certificate or
certificates evidencing ownership of that number of shares of Common Stock to
which such Warrant holder is entitled. Cash will be paid in lieu of any
fractional share of Common Stock, as provided in the Warrant Agreement. If
more than one Warrant certificate is surrendered for exercise of the Warrants
represented thereby at one time by the same holder, the number of full shares
of Common Stock to which the holder is entitled upon exercise will be computed
on the basis of the aggregate number of Warrants surrendered for exercise.
A Warrant will be deemed to have been exercised immediately prior to
the close of business on the date of the surrender for such exercise of the
Warrant certificate representing such Warrant and payment of the Warrant Price,
and the person entitled to receive any shares of Common Stock deliverable upon
such exercise will be deemed to be the holder of such shares of Common Stock of
record as of the close of business on such date.
The initial issuance of certificates representing shares of Common
Stock issuable upon the exercise of any Warrant will be made without charge to
the exercising holder for any tax in respect of the issuance of such stock
certificates. The Company will not be required to pay any tax that may be
payable in respect of any transfer involved in the issue and delivery of any
such stock certificate in a name other than that of the holder of the Warrant
certificate evidencing the Warrant being exercised, and the Company will not be
required to issue or deliver such certificates unless the person requesting
the issuance thereof has paid to the Company the amount of any such tax or has
established to the satisfaction of the Company that such tax has been paid.
USE OF PROCEEDS
There is no assurance that all or any of the Warrants will be
exercised. Assuming that all of the shares of Common Stock offered hereby are
sold, the net proceeds to the Company, less estimated expenses payable by the
Company of approximately $20,000, would be approximately $825,000. The Company
will use the net proceeds from the Offering, if any, for general corporate
purposes.
PLAN OF DISTRIBUTION
The sale of the Common Stock offered hereby will be made by the
Company through its officers and certain other employees pursuant to the
exercise of outstanding Warrants by the holders thereof. The Company will not
engage any broker-dealers or other persons to solicit the exercise of the
outstanding Warrants by the holders thereof. No officer or employee of the
Company will receive any commission or other compensation of any kind for the
offer and sale of the shares of Common Stock. In the Warrant Agreement, the
Company agreed to register with the Commission under the Securities Act the
shares of Common Stock issuable upon exercise of the Warrants upon the
occurrence of certain events and to maintain the effectiveness of such
registration for a period of at least 180 days. This Prospectus also relates
to the reoffer and resale of the shares of Common Stock by any holder of the
Warrants who exercised such Warrants to purchase the Common Stock. Any such
reoffers or resales are to be made by such Selling Stockholders, who may engage
brokers or dealers to effect any sales of the Common Stock. It is anticipated
that brokers or dealers
-7-
<PAGE> 9
participating in sales of the shares offered hereby will receive from the
Selling Stockholder ordinary and customary brokerage commissions or negotiated
discounts or commissions.
LEGAL MATTERS
Certain legal matters in connection with the sale of the shares of
Common Stock offered hereby will be passed upon for the Company by Bracewell &
Patterson, L.L.P., Houston, Texas.
EXPERTS
The consolidated financial statements and schedules of the Company and
subsidiaries as of December 31, 1995 and 1994, and for each of the years in the
three-year period ended December 31, 1995, incorporated by reference herein,
have been incorporated herein in reliance upon the reports of KPMG Peat Marwick
LLP, independent certified public accountants, and Coopers & Lybrand
(previously traded as Deloitte & Touche, chartered accountants) and upon the
authority of said firms as experts in accounting and auditing.
With respect to the unaudited interim financial information for the
period ended March 31, 1996, incorporated by reference herein, KPMG Peat
Marwick LLP, independent certified public accountants, have reported that they
have applied limited procedures in accordance with professional standards for a
review of such information. However, their separate report included in the
Company's quarterly report on Form 10-Q for the three months ended March 31,
1996, and incorporated by reference herein state that they did not audit and
they do not express an opinion on that interim financial information.
Accordingly, the degree of reliance on their report on such information should
be restricted in light of the limited nature of the review procedures applied.
The accountants are not subject to the liability provisions of Section 11 of
the Securities Act for their report on the unaudited interim financial
information, because that report is not a "report" that is "part" of a
registration statement prepared or certified by the accountants within the
meaning of Sections 7 and 11 of the Securities Act.
-8-
<PAGE> 10
<TABLE>
<S> <C>
===================================================== ==============================================================
No dealer, salesperson or any other person
has been authorized to give any information to
make any representations in connection with
this Offering other than as contained herein,
and, if given or made, such information or
representation must not be relied upon as 258,538 Shares
having been authorized. This Prospectus does
not constitute an offer to sell, or a ARCADIAN
solicitation of any offer to buy, any
securities other than those to which it relates
or an offer to or a solicitation of any person CORPORATION
in any jurisdiction where such offer or
solicitation would be unlawful. Neither the
delivery of this Prospectus nor any offer or COMMON STOCK
sale hereunder shall create any implication
that there has been no change in the affairs of
the Company or that the information contained
herein is correct as of any time subsequent to
its date.
----------------- -------
P R O S P E C T U S
TABLE OF CONTENTS
Page ________, 1996
----
Available Information . . . . . . . . . . . 2
Incorporation of Certain Documents by __________
Reference . . . . . . . . . . . . . . . . 2
Risk Factors . . . . . . . . . . . . . . . 3
The Offering . . . . . . . . . . . . . . . 6
Use of Proceeds . . . . . . . . . . . . . . 7
Plan of Distribution . . . . . . . . . . . 7
Legal Matters . . . . . . . . . . . . . . . 8
Experts . . . . . . . . . . . . . . . . . . 8
===================================================== ==============================================================
</TABLE>
<PAGE> 11
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Following is a statement of all expenses in connection with the
distribution of the Common Stock:
<TABLE>
<S> <C>
Commission filing fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,867
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,000
Accounting fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,000
Printing costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . --
Transfer agent's fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . --
Blue sky filing fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . --
Printing and engraving expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . --
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,133
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ----------
$ 20,000
==========
</TABLE>
ITEM 15. 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
II-1
<PAGE> 12
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 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
II-2
<PAGE> 13
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.
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,
II-3
<PAGE> 14
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 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
II-4
<PAGE> 15
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.
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 16. EXHIBITS
The exhibits listed in the Exhibit Index below are
filed as a part of the Registration Statement.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
5* --Opinion of Bracewell & Patterson, L.L.P., as to the legality of the Common Stock.
23.1* --Consent of KPMG Peat Marwick LLP.
3.2* --Consent of Coopers & Lybrand (previously traded as Deloitte & Touche) - Arcadian Trinidad Limited.
23.3* --Consent of Coopers & Lybrand (previously traded as Deloitte & Touche) - Arcadian Trinidad Ammonia
Limited.
23.4* --Consent of Bracewell & Patterson, L.L.P. (to be included in the opinion filed as Exhibit 5 hereto).
24 --Powers of attorney (included on the signature page of this Registration Statement as originally
filed).
</TABLE>
- ----------------------------
* This exhibit will be filed with a subsequent amendment to this
Registration Statement.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement 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.
(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 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
II-5
<PAGE> 16
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-6
<PAGE> 17
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-3 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 8, 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 8, 1996.
<TABLE>
<S> <C>
/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
</TABLE>
II-7
<PAGE> 18
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description Page
------ ----------- ------------
<S> <C>
5* -- Opinion of Bracewell & Patterson, L.L.P., as to the legality of
the Common Stock.
23.1* Consent of KPMG Peat Marwick LLP.
23.2* -- Consent of Coopers & Lybrand (previously traded as Deloitte &
Touche) - Arcadian Trinidad Limited.
23.3* -- Consent of Coopers & Lybrand (previously traded as Deloitte &
Touche) - Arcadian Trinidad Ammonia Limited.
23.4* -- Consent of Bracewell & Patterson, L.L.P. (to be included in the
opinion filed as Exhibit 5 hereto).
24 -- Powers of attorney (included on the signature page of this
Registration Statement as originally filed).
</TABLE>
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* This exhibit will be filed with a subsequent amendment to this
Registration Statement.
