<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 11, 1997
REGISTRATION NO. 333-09805
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ARCADIAN CORPORATION
(Exact name of registrant as specified in its charter)
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<C> <C>
DELAWARE 76-0275035
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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PETER H. KESSER
VICE PRESIDENT -- LAW, GENERAL COUNSEL AND
3175 LENOX PARK BOULEVARD, SUITE 400 SECRETARY
MEMPHIS, TENNESSEE 38115-4256 3175 LENOX PARK BOULEVARD, SUITE 400
(901) 758-5200 MEMPHIS, TENNESSEE 38115-4256
(Address, including zip code, and telephone (901) 758-5200
number, including (Name, address, including zip code, and
area code, of registrant's principal executive telephone number,
offices) including area code, of agent for service)
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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. [ ]
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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
PROSPECTUS
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 the 31,300 outstanding Warrants to Purchase Common Stock, Series B
(the "Warrants") at February 10, 1997. The Warrants were issued pursuant to the
terms of a Warrant Agreement dated as of December 22, 1989, as supplemented,
between the Company and the original Warrant Agent (the "Warrant Agreement").
Each Warrant, 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 Warrants 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 upon the earlier
to occur of (i) the consummation of the Merger (as defined) which is expected to
occur on March 6, 1997, and (ii) 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, and in any case will not be
exercisable for shares of Common Stock. See "The Offering."
On September 2, 1996, the Company entered into an Agreement and Plan of
Merger (the "Merger Agreement") with Potash Corporation of Saskatchewan Inc., a
Saskatchewan corporation ("PCS"), and PCS Nitrogen, Inc., a wholly owned
subsidiary of PCS ("Merger Sub"), pursuant to which, subject to the satisfaction
or waiver of certain conditions, PCS will acquire the Company through the merger
of the Company with and into Merger Sub (the "Merger"). In the Merger, subject
to adjustment and to certain exceptions, each outstanding share of Common Stock,
including the shares of Common Stock offered hereby, will be converted into the
right to receive $12.25 in cash and a fraction of a common share of PCS expected
to have a market value of between $12.75 and $14.75 (collectively the "Merger
Consideration"). Consequently, the Merger Consideration payable with respect to
each outstanding share of Common Stock is expected to have a market value of
between $25 and $27. The obligations of the Company and PCS to consummate the
Merger are subject to various conditions, including the condition that the
holders of a majority of the outstanding shares of Common Stock and the
Company's Mandatorily Convertible Preferred Stock, Series A (the "Preferred
Stock"), voting together as a single class, vote to approve the Merger
Agreement. The Company plans to hold a special meeting of its stockholders on
March 4, 1997, at which the stockholders will consider and vote upon the Merger
Agreement. If the necessary stockholder vote is obtained and all other
conditions to the Merger are satisfied or waived, the Company expects that the
Merger will be consummated on March 6, 1997. Prospective purchasers of the
Common Stock offered hereby should review carefully the Proxy
Statement/Prospectus dated January 28, 1997, relating to the proposed Merger,
which is incorporated herein by reference and is available from the Company upon
request. See "The Merger."
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
February 10, 1997, was $25.125 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.
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UNDERWRITING
PRICE TO DISCOUNTS PROCEEDS TO
PUBLIC(1) AND COMMISSIONS(2) THE COMPANY(3)
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Per Share................................................. $3.27 -- $3.27
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Total..................................................... $845,420 -- $845,420
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</TABLE>
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(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.
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The principal executive offices of the Company are located at 3175 Lenox
Park Boulevard, Suite 400, Memphis, Tennessee 38115-4256, and the Company's
telephone number is (901) 758-5200.
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The date of this Prospectus is February 12, 1997.
<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, proxy statements and other information with the Securities and
Exchange Commission ("Commission"). Such reports, proxy statements 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 of such materials may be
obtained at the prescribed rates from the Public Reference Section of the
Commission at its principal office in Washington, D.C. The Commission maintains
a site on the World Wide Web that contains documents filed electronically with
the Commission. The address of the Commission's web site is http://www.sec.gov,
and the materials filed electronically by the Company may be inspected at such
site. In addition, the materials filed by the Company with the NYSE may be
inspected at the offices of the NYSE, 20 Broad Street, New York, New York 10005.
The Company has filed a Registration Statement on Form S-3 ("Registration
Statement") with the Commission under the Securities Act of 1933, as amended
("Securities Act"), with respect to the shares of Common Stock offered hereby.
This Prospectus, which constitutes a 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, or in any document incorporated by reference herein, as to the
contents of any document are 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 or such other document, 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 inspected and copied as described
above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company (File No. 1-13774) incorporates by reference herein the
following documents filed with the Commission pursuant to the Exchange Act:
1. the Company's Annual Report on Form 10-K for the year ended December 31,
1995, as amended;
2. the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996, June 30, 1996, and September 30, 1996, as amended;
3. the Company's Current Reports on Form 8-K for the events dated January
16, 1996, February 27, 1996, August 5, 1996, and September 2, 1996;
4. the Company's Proxy Statement/Prospectus dated January 28, 1997,
relating to the proposed Merger; and
5. the description of the Common Stock incorporated by reference in the
Company's Registration Statement on Form 8-A, as amended, including any
subsequent amendment or report filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after 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 dates 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 the Registration Statement and this Prospectus to the extent
that a statement contained herein or in any subsequently filed document which
also is incorporated 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, 3175
Lenox Park Boulevard, Suite 400, Memphis, Tennessee 38115-4256, telephone: (901)
758-5200.
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<PAGE> 4
THE MERGER
On September 2, 1996 the Company entered into the Merger Agreement with
PCS, pursuant to which, subject to the satisfaction or waiver of certain
conditions, PCS will acquire the Company through the Merger. In the Merger,
subject to adjustment and to certain exceptions, each outstanding share of
Common Stock, including the shares of Common Stock offered hereby, will be
converted into the right to receive $12.25 in cash and a fraction of a common
share of PCS expected to have a market value of between $12.75 and $14.75
(collectively the "Merger Consideration"). Consequently, the Merger
Consideration payable with respect to each outstanding share of Common Stock is
expected to have a market value of between $25 and $27.
The obligations of the Company and PCS to consummate the Merger are subject
to various conditions, including the condition that the holders of a majority of
the outstanding shares of Common Stock and Preferred Stock, voting together as a
single class, vote to approve the Merger Agreement. The Company plans to hold a
special meeting of its stockholders on March 4, 1997, at which the stockholders
will consider and vote upon the Merger Agreement. If the necessary stockholder
vote is obtained and all other conditions to the Merger are satisfied or waived,
the Company expects that the Merger will be consummated on March 6, 1997.
Prospective purchasers of the Common Stock offered hereby should review
carefully the Proxy Statement/Prospectus dated January 28, 1997, relating to the
proposed Merger (the "Proxy Statement"), which is incorporated herein by
reference and is available from the Company upon request.
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.
PROPOSED MERGER
Prospective investors should carefully consider the information contained
herein under "The Merger" as well as the information regarding the proposed
Merger and PCS contained or incorporated by reference in the Proxy Statement.
MARKETS FOR AGRICULTURAL PRODUCTS ARE SEASONAL AND VOLATILE
Agricultural demand for the Company's fertilizer products, which accounted
for approximately 60% of its 1996 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 believes that the Farm Bill will lead to an increase in agricultural
demand for the Company's fertilizer products and, therefore, will have a
beneficial impact on its operations.
3
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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 40% 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 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.
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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.
FOREIGN 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 1996, 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 PREFERRED STOCK DIVIDEND
The Company is subject to substantial indebtedness, and substantially all
of its assets are pledged to various lenders. At December 31, 1996, the
Company's long-term indebtedness was $510 million. In addition, at December 31,
1996, the Company had a total of approximately 5.5 million shares of Preferred
Stock outstanding with an aggregate liquidation preference of approximately $85
million (plus the amount of any accrued but unpaid dividends thereon) and an
annual dividend requirement of approximately $8 million. The 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 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 repayment obligations, and dividends on the 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 Preferred Stock prohibits the
declaration and payment of dividends on the Common Stock unless full cumulative
dividends on the Preferred Stock have been or
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contemporaneously are declared and paid or set aside for payment. The 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 governing the $340 million aggregate principal amount of
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, as would
happen in the event that the proposed Merger is consummated, 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.
See "The Merger -- Financing" in the Proxy Statement for a discussion of
the tender offer by Merger Sub to purchase for cash all outstanding Senior Notes
and the related consent solicitation to delete certain covenants in the Senior
Notes indenture.
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,
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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
granted the defendants' motions to dismiss the suit for failure to state a claim
upon which relief could be granted, and the plaintiffs appealed the dismissal to
the U.S. Court of Appeals for the Tenth Circuit. In the other case, Harding, et
al. v. ICI Explosives USA, Inc., et al., N.D. Texas, No. 95-04750, the
plaintiffs filed a notice of voluntary nonsuit, and the case 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 in the name of
the Port Authority of New York and New Jersey (the "Port Authority") in New
Jersey state court. The lawsuit was actually filed by attorneys hired by the
Port Authority's subrogated insurance carriers. 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. On February 7,
1997, the defendants filed a motion to dismiss the suit for failure to state a
claim upon which relief could be granted. Although neither the Port Authority
nor its subrogated insurers have alleged or otherwise revealed the amount of
damages sought from the Company in the lawsuit, the Port Authority stated in an
affidavit submitted to the court in support of its motion to disqualify its
insurers' counsel that as of April 9, 1996, the Port Authority had submitted to
its insurers claims relating to the explosion totaling approximately $340
million, of which the insurers had paid approximately $160 million. The Company
is unaware of any basis for liability and intends to vigorously defend the
lawsuit.
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; however, as a result of the Merger, this Offering
will terminate upon the consummation of the Merger which is expected to occur on
March 6, 1997. The Warrants are exercisable during the period of this Offering,
which is intended to comply with the terms of the Warrant Agreement.
EFFECT OF MERGER ON OFFERING
The occurrence of the proposed Merger, which is expected to be consummated
on March 6, 1997, will substantially reduce the period during which this
Offering is in effect. Upon the effective date of the Merger, this Offering will
terminate, and the Warrants no longer will be exercisable for the purchase of
shares of Common Stock. Thereafter, if any outstanding Warrants remain
unexercised, then in accordance with the provisions of the Warrant Agreement,
PCS will be obligated to assume the obligations of the Company under the Warrant
Agreement, and the remaining Warrants, upon becoming exercisable, will entitle
the holders thereof to receive only the Merger Consideration consisting of cash
and PCS common shares that would have
7
<PAGE> 9
been issuable upon consummation of the Merger to a holder of the number of
shares of Common Stock that would have been issued upon exercise of such
Warrants if they had been exercised immediately prior to the effective date of
the Merger. It is expected that following the Merger, PCS will register an
offering of its common shares underlying the remaining Warrants for the benefit
of the holders thereof.
Pursuant to the Merger Agreement, and subject to adjustment and to certain
exceptions, each outstanding share of Common Stock, including the shares of
Common Stock offered hereby, will be converted in the Merger into the right to
receive the Merger Consideration consisting of $12.25 in cash and a fraction of
a common share of PCS expected to have a market value of between $12.75 and
$14.75. As a result, it is anticipated that any holder of Warrants who exercises
his or her Warrants and purchases shares of Common Stock in this Offering will
hold such shares of Common Stock for only a limited period prior to the
effective date of the Merger, at which time all outstanding shares of Common
Stock (other than dissenting shares) will be converted into the right to receive
the Merger Consideration as described above.
See "The Merger" and "Risk Factors -- Proposed Merger" in this Prospectus
as well as the Proxy Statement for more information regarding the proposed
Merger.
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 multiplied by the number of shares of
Common Stock represented by the Warrant. 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:
-------- --------
<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 77002-2729
Mail Stop OH-01-49-0120 Attention: Reorganization Department
Attention: Reorganization Department
</TABLE>
<TABLE>
<CAPTION>
BY OVERNIGHT COURIER: BY WIRE TRANSFER:
--------------------- -----------------
<S> <C>
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 44144-2302
ABA 041-001-039
Attention: Rich Holzhelmer
Reorganization Department, 1st Floor
Mail Stop OH-01-49-0120
TAAS # 095307500
</TABLE>
If less than all of 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 register the new Warrant
certificates in such name or names as
8
<PAGE> 10
may be directed in writing by the holder (subject to certain restrictions on
transfer), 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 this Offering, if any, for general corporate purposes.
PLAN OF DISTRIBUTION
The sale of the Common Stock offered hereby will be made by the Company
pursuant to the exercise of outstanding Warrants by the holders thereof. The
Company will not engage any brokers, 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 use its best efforts to register with the
Commission under the Securities Act the offering of 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 participating in
sales of the shares of Common Stock offered hereby will receive from the Selling
Stockholders 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.
9
<PAGE> 11
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 so incorporated in reliance upon the reports of KPMG Peat Marwick LLP,
independent certified public accountants, and Coopers & Lybrand, independent
chartered accountants, incorporated by reference herein, and upon the authority
of said firms as experts in accounting and auditing.
With respect to the unaudited interim financial information for the periods
ended March 31, 1996, June 30, 1996, and September 30, 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 reports included in the Company's Quarterly Reports on
Form 10-Q for the quarters ended March 31, 1996, June 30, 1996, and September
30, 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 reports 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 reports on the unaudited interim financial information,
because those reports are not "reports" or "part" of a registration statement
prepared or certified by the accountants within the meaning of Sections 7 and 11
of the Securities Act.
10
<PAGE> 12
------------------------------------------------------------
------------------------------------------------------------
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR 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 HAVING BEEN AUTHORIZED. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A 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 IN ANY JURISDICTION WHERE SUCH OFFER OR SOLICITATION
WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY OFFER OR 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.
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information....................... 2
Incorporation of Certain Documents by
Reference................................. 2
The Merger.................................. 3
Risk Factors................................ 3
The Offering................................ 7
Use of Proceeds............................. 9
Plan of Distribution........................ 9
Legal Matters............................... 9
Experts..................................... 10
</TABLE>
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
258,538 SHARES
ARCADIAN CORPORATION
COMMON STOCK
---------------------
PROSPECTUS
FEBRUARY 12, 1997
---------------------
------------------------------------------------------------
------------------------------------------------------------
<PAGE> 13
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
II-1
<PAGE> 14
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 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
II-2
<PAGE> 15
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.
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.
II-3
<PAGE> 16
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 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.
II-4
<PAGE> 17
(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 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.
II-5
<PAGE> 18
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
------- -----------
<C> <S>
5 -- Opinion of Bracewell & Patterson, L.L.P., as to the
legality of the Common Stock.
15 -- Letter from KPMG Peat Marwick LLP to Arcadian Corporation
with respect to interim financial information.
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. (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>
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 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> 19
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 Amendment
No. 1 to Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Memphis, State of Tennessee, on
February 11, 1997.
ARCADIAN CORPORATION
By: /s/ J. D. CAMPBELL
------------------------------------
J. D. Campbell
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to Registration Statement has been signed by the following
persons in the capacities indicated on February 11, 1997.
<TABLE>
<C> <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>
* Pursuant to a power of attorney executed by the named individuals and filed
with the Commission, Peter H. Kesser has executed this Amendment No. 1 to
Registration Statement on behalf of such individuals in the space provided
below on February 11, 1997.
/s/ PETER H. KESSER
----------------------------------
Peter H. Kesser
Attorney-in-Fact
II-7
<PAGE> 20
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------- ----------- ------------
<C> <S> <C>
5 -- Opinion of Bracewell & Patterson, L.L.P., as to the
legality of the Common Stock.
15 -- Letter from KPMG Peat Marwick LLP to Arcadian Corporation
with respect to interim financial information.
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. (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>
<PAGE> 1
EXHIBIT 5
[BRACEWELL & PATTERSON, L.L.P. LETTERHEAD]
February 11, 1997
Arcadian Corporation
3175 Lenox Park Boulevard, Suite 400
Memphis, Tennessee 38115-4256
Gentlemen:
We have acted as counsel to Arcadian Corporation, a Delaware corporation
(the "Company"), in connection with the proposed sale by the Company of up to
258,538 shares of the Company's common stock, $.01 par value per share (the
"Shares"), issuable upon exercise of the Company's Warrants to Purchase Common
Stock, Series B (the "Warrants") pursuant to the terms of the Warrant Agreement
dated as of December 22, 1989, as supplemented, between the Company and the
Warrant Agent named therein (the "Agreement").
A registration statement on Form S-3 relating to the Shares (Registration
No. 333-09805) (the "Registration Statement") has been filed by the Company with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act").
We have examined the Restated Certificate of Incorporation and Restated
Bylaws of the Company, each as amended to date, and such other instruments and
documents, and have made such investigations of law, as we have deemed necessary
for the purposes of this opinion. We have assumed the genuineness of all
signatures on all instruments, documents and records presented to us, the
authenticity of all documents and records submitted to us as originals, the
conformity to authentic original documents and records of all documents 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 such legal considerations as we
deem relevant for purposes hereof, we are of the opinion that:
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, when issued against
payment therefor pursuant to the Agreement, will be validly issued, fully
paid and nonassessable.
The foregoing opinion is based on and is limited to the General Corporation
Law of the State of Delaware and the relevant law of the United States of
America, and we render no opinion with respect to any other law.
This opinion may be filed as an exhibit to the Registration Statement. In
addition, we hereby consent to the reference to this firm as having passed on
the validity of the Shares under the caption "Legal Matters" in the prospectus
contained in the Registration Statement. In giving this consent, we do not admit
that we are included in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
Bracewell & Patterson, L.L.P.
<PAGE> 1
EXHIBIT 15
[KPMG PEAT MARWICK LLP LETTERHEAD]
Arcadian Corporation
Memphis, Tennessee
Ladies and Gentlemen:
REGISTRATION STATEMENT NO. 333-09805
With respect to the subject registration statement, we acknowledge our
awareness of the use therein of our reports dated May 14, 1996, August 14, 1996
and November 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
Memphis, Tennessee
February 11, 1997
<PAGE> 1
EXHIBIT 23.1
ACCOUNTANT'S CONSENT
We consent to the use of our report incorporated herein by reference and to
the reference to our firm under the heading of "Experts" in the Prospectus.
KPMG PEAT MARWICK LLP
Memphis, Tennessee
February 11, 1997
<PAGE> 1
EXHIBIT 23.2
ACCOUNTANTS' 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, and to the
reference to our firm under the heading of "Experts" in the Prospectus.
COOPERS & LYBRAND
(Previously traded as Deloitte & Touche)
Chartered Accountants
Port of Spain
Trinidad, W.I.
11th February, 1997
<PAGE> 1
EXHIBIT 23.3
ACCOUNTANTS' 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, and to
the reference to our firm under the heading of "Experts" in the Prospectus.
COOPERS & LYBRAND
(Previously traded as Deloitte & Touche)
Chartered Accountants
Port of Spain
Trinidad, W.I.
11th February 1997
