As filed with the Securities and Exchange Commission on , 1996
Registration No. #33-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Delta and Pine Land Company
(Exact name of registrant as specified in its charter)
Delaware 62-1040440
(State of incorporation) (I.R.S. Employer Identification Number)
(One Cotton Row, Scott, MS 38772 601-742-4000
(Address of principal executive)
W. Thomas Jagodinski, Vice President-Finance and Treasurer, One Cotton Row,
Scott, MS, 38772, 601-742-4000
(Name, address including zip code, and telephone number of agent for
service)
Approximate date of commencement of proposal of sale to the public: From time to
time after the effective date of the 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 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
<TABLE>
<S> <C> <C> <C> <C>
Title of each
class of securities
Amount to be Proposed maximum aggregate Proposed maximum aggregate Amount of
to be registered registered price per unit (1) offering price Registration fee
Common 1,548,483 $ 34.125 $ 52,841,983.00 $ 16,013.00
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of computing the amount of the registration
in accordance with Rule 457 (c) under the Securities Act of 1933, based upon the
average of the high and low prices for the Company's Common Stock as quoted on
the New York Stock Exchange on December 18, 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 this Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
DELTA AND PINE LAND COMPANY
Cross-Reference Sheet
Form S-3 Item No. Location in Prospectus
1. Forepart of Registration
Statement and Outside Front
Cover Page of Prospectus ........ Cover Page of Registration Statement;
Cross-Reference Sheet;Outside Front
Cover Page
2. Inside Front and Outside Back
Cover Pages of Prospectus ....... Inside Front and Outside Back Cover
Pages; Available Information; Information
Incorporated by Reference
3. Summary Information, Risk
Factors, and Ratio of Earnings
to Fixed Charges .................Information Incorporated by Reference;
The Company
4. Use of Proceeds ................. Use of Proceeds
5. Determination of Offering Price . Outside Front Cover Page; Plan of
Distribution
6. Dilution ........................ Not Applicable
7. Selling Security Holders ........ Selling Stock Holders
8. Plan of Distribution ............ Outside Front Cover Page; Plan of
Distribution
9. Description of Securities to
be Registered..................... Not Applicable
10.Interest of Named Experts
and Counsel ........................ Legal Matters
11. Material Changes ................. Information Incorporated by
Reference; The Company
12. Incorporation of Certain
Information by Reference............. Information Incorporated by Reference
13. Disclosure of Commission Position
on Indemnification for Securities
Act Liabilities ................. Certain Other Legal Matters
<PAGE>
PROSPECTUS
Delta and Pine Land Company
Common Stock
1,548,483 Shares
The following summary is qualified in its entirety by the more detailed
information and the consolidated financial statements and notes thereto
appearing elsewhere or incorporated by reference in this Prospectus.
This Prospectus relates to the public offering, which is not being underwritten,
of 1,548,483 shares of Common Stock, par value $0.10 per share, of Delta and
Pine Land Company ("D&PL", the "Company" or the "Corporation"). All 1,548,483
shares (the "Shares") may be offered by certain stockholders of the Company
("Selling Stockholders") who received such Shares pursuant to a merger agreement
dated May 20, 1996 (the "Merger Agreement") among the Company and Arizona
Processing, Inc., Ellis Brothers Seed, Inc., Mississippi Seed, Inc., the
shareholders thereof, and Sure Grow Seed, Inc. The companies acquired are
collectively referred to herein as "Sure Grow." The Shares were issued pursuant
to an exemption from the registration requirements of the Securities Act of
1933, as amended (the "Securities Act") provided by Section 4 (2) thereof. The
Shares are being registered by the Company pursuant to a registration rights
obligation with the Selling Stockholders. See "The Company" and "Selling
Stockholders".
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.
The sale of the Shares may be effected by the Selling Stockholders from time to
time in transactions on the New York Stock Exchange, in the over-the-counter
market, in negotiated transactions or a combination of such methods of sale, at
fixed prices which may be changed, at market prices prevailing at the time of
sale, at prices related to prevailing market prices or at negotiated prices. The
Selling Stockholders may effect such transactions by selling the Shares to or
through broker-dealers, and such broker-dealers may receive compensation in the
form of discounts, concessions or commissions from the Selling Stockholders
and/or the purchasers of the shares for whom such broker-dealers may act as
agents or to whom they may sell as principals or both which compensation as to a
particular broker-dealer might be in excess of customary commissions. See "Plan
of Distribution".
None of the proceeds from the sale of the Shares by the Selling Stockholders
will be received by the Company. The Company has agreed, among other things, to
bear certain expenses (other than underwriting discounts and commissions and
brokerage commissions and fees) in connection with the registration and sale of
the Shares being offered by the Selling Stockholders. See "Selling
Stockholders."
Delta and Pine Land Company Common Stock is traded on the New York Stock
Exchange ("NYSE") under the symbol "DLP". On December 18, 1996, the last sale
price of Delta and Pine Land Company Common Stock as reported on the NYSE, was
$34 3/8 per share.
The Selling Stockholders and any broker-dealers, agents or underwriters that
participate with the Selling Stockholders in the distribution of the Shares may
be deemed to be "underwriters" within the meaning of the Securities Act, and any
commissions received by them and any profit on the resale of the Shares
purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act.
The date of this prospectus is December , 1996
<PAGE>
AVAILABLE INFORMATION
D&PL is subject to the informational requirements of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and, in accordance therewith, files
reports, proxy or informational statements and other information with the
Securities and Exchange Commission. Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities
maintained by the Securities and Exchange Commission (the "Commission") at 450
Fifth Street, N.W., Washington, D.C. 20549 and at the following regional offices
of the Commission: 7 World Trade Center, 13th Floor, New York, New York 10048
and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material also can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. Such reports, proxy statements and other information concerning the
company can also be inspected at the office of the New York Stock Exchange, 20
Broad Street, New York, New York 10005.
Additional information regarding the Company and the Shares offered hereby is
contained in the registration statement on Form S-3 and the exhibits thereto
(the "Registration Statement") of which this Prospectus is a part. For further
information pertaining to the Company and the Shares, reference is made to the
Registration Statement and the exhibits thereto, which may be inspected without
charge at, and copies thereof may be obtained at prescribed rates from, the
office of the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549.
No person has been authorized to give any information or to make any
representations other than those contained in this prospectus in connection with
the offering made hereby, and if given or made, such information or
representations must not be relied upon as having been authorized by the
Company, the Selling Stockholder or by any other person, under any
circumstances, create any implication that information herein is correct as of
any time subsequent to the date hereof. This prospectus does not constitute an
offer to sell, a solicitation of an offer to buy the shares, to any person or by
anyone in any jurisdiction in which such offer or solicitation may not lawfully
be made.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission (Commission
File No. 000-21788) are hereby incorporated by reference in this Prospectus:
(1) The Annual Report of the Company on Form 10-K for the fiscal year
ended August 31, 1996.
(2) The description of the Company's Common Stock contained in its
Registration Statement on Form S-1 filed with the Commission on June 29, 1993.
(3) The Quarterly Report of the Company on Form 10-Q for the quarter
ended November 30, 1996.
All reports and other documents filed by the Company pursuant to Sections 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 herein and to be a part hereof from the date of filing of such reports
and documents. Any statement incorporated herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this Prospectus
is delivered, upon written or oral request of such person, a copy of any or all
of the foregoing documents incorporated herein by reference (other than exhibits
to such documents), unless such exhibits are specifically incorporated by
reference into such documents by writing Delta and Pine Land Company, One Cotton
Row, Scott, MS 38772, Attention: Prospectus, or by telephone at (601) 742-4000.
TABLE OF CONTENTS
Page
The Company 1
Use of Proceeds 1
Selling Stockholders 1
Plan of Distribution 2
Legal Matters 3
Certain Other Legal Matters 3
Experts 3
i
<PAGE>
THE COMPANY
D&PL is primarily engaged in the breeding, production, conditioning and
marketing of proprietary varieties of cotton planting seed in the United States
and other cotton producing nations. D&PL also breeds, produces and distributes
soybean planting seed in the United States.
Since 1915, D&PL has bred, produced and/or marketed upland picker varieties of
cotton planting seed for cotton varieties that are grown primarily east of Texas
and in Arizona. The Company has used its extensive classical plant breeding
programs to develop a gene pool necessary for producing cotton varieties with
improved agronomic traits important to farmers, such as crop yield, and to
textile manufacturers, such as enhanced fiber characteristics.
In 1980, D&PL added soybean seed and in 1988 hybrid sorghum seed to its product
line. In 1988, D&PL also commenced distributing corn hybrids acquired from
others. In 1995, the Company sold its corn and sorghum business. D&PL and the
acquirer entered into a joint marketing agreement whereby both companies will
sell D&PL's remaining corn and sorghum varieties through 1997. The two parties
will exchange certain operating facilities in the future upon the satisfactory
completion of environmental site assessments and remediation procedures as
necessary.
In 1988, as a component of its long-term growth strategy, the Company began to
focus on the international marketing of its products, primarily cottonseed. In
foreign countries, cotton acreage is often planted with farmer-saved seed which
has not been delinted or treated and is of low overall quality. Management
believes that D&PL has an attractive opportunity to penetrate foreign markets
because of its widely adaptable, superior cotton varieties, technological
know-how in producing and conditioning high-quality seed and brand name
recognition. Furthermore, in many countries seed containing Monsanto's
Bollgard(TM) technology which is licensed to the Company, would be effective and
help farmers in those countries to control certain lepidopteran cotton pests.
D&PL sells its products in foreign countries through (i) export sales, (ii)
direct in-country operations and to a lesser degree (iii) distributors or
licensees. The method varies and evolves, depending upon the Company's
assessment of the potential size and profitability of the market, governmental
policies, currency and credit risks, infrastructure of the target country's
agricultural economy, and costs (as compared to risks) of commencing physical
operations in a particular country. To date, a majority of the Company's
products are sold via export sales rather than direct in-country operations.
D&PL is the successor to the business of a Mississippi corporation, chartered in
1886. D&PL was incorporated in Delaware on September 20, 1978. The Company's
headquarters are located at One Cotton Row, Scott, Mississippi 38772, and its
telephone number is 601-742-4000.
USE OF PROCEEDS
The Company will not receive any of the proceeds of the Shares offered hereunder
by the Selling Stockholders.
SELLING STOCKHOLDERS
The aggregate number of shares, 1,548,483, represents the maximum number of
shares that the Selling Stockholders may distribute in the offering; however,
there are currently no agreements, arrangements or understandings with respect
to the sale of any of the Shares and the table below assumes the sale of all
Shares held by the Selling Stockholders. The Shares are being registered to
permit public secondary trading of the Shares, and the Selling Stockholders may
offer the Shares for resale from time to time. See "Plan of Distribution."
The Selling Stockholders received upon execution of the Merger Agreement
1,548,483 shares of D&PL Common Stock, as consideration for the transaction
under the Merger Agreement. The following table sets forth the names of the
Selling Stockholders, the number of shares of D&PL Common Stock owned
beneficially by the Selling Stockholders as of December 18, 1996 and the number
of shares which may be offered pursuant to this Prospectus.
The Company has filed with the Commission a Registration Statement on Form S-3,
of which this Prospectus forms a part, with respect to, among other things, the
resale of the Shares from time to time at prevailing prices in the
over-the-counter market or on the NYSE or in privately negotiated transactions
and has agreed to prepare and file such amendments and supplements to the
Registration Statement as may be necessary to keep the Registration Statement
effective until all Shares offered hereby have been sold pursuant thereto, or
until the sale of such shares may be made under Section 144.
1
<TABLE>
Number of Shares Beneficially Number Number of Shares
Beneficially
Owned Prior to Offering of Shares Owned After the Offering
Selling Stockholder Prior to Offering(1) Percent(2) Offered After Offering Percent (2)
<S> <C> <C> <C> <C> <C>
Watt A. Ellis III 347,581 1.64% 347,581 -- --%
Bert S. Ellis 112,453 0.53 112,453 -- --
Earl Dykes 154,652 0.73 154,652 -- --
Joe Hall 25,558 0.12 25,558 -- --
Watt A. Ellis, Jr. 259,333 1.23 259,333 -- --
James Ellis 259,333 1.23 259,333 -- --
Nancy Arnold 65,120 0.31 65,120 -- --
Susie Carson 65,120 0.31 65,120 -- --
Richard Flowers, Jr. 43,413 0.21 43,413 -- --
David Flowers 43,413 0.21 43,413 -- --
Janet C. Melton 43,413 0.21 43,413 -- --
Carl Russel 129,094 0.61 129,094 -- --
Total 1,548,483 7.32% 1,548,483 -- --%
</TABLE>
(1) The persons named in the table have sole voting power and sole investment
power with respect to all shares beneficially owned. Approximately 10% of such
shares held, will be held in escrow until certain contingencies are resolved.
(2) Applicable percentage of ownership is calculated pursuant to Rule 13d-1 of
the Exchange Act and is based on 21,140,230 shares outstanding on December 18,
1996.
PLAN OF DISTRIBUTION
The Shares offered hereunder may be sold from time to time by the Selling
Stockholders, or by pledgees, donees, transferees or other successors in
interest. Such sales may be made on the NYSE, in the over-the-counter market, or
otherwise, at prices and on terms then prevailing or at prices related to the
then-current market price, or in negotiated transactions. The Shares may be sold
to or through one or more broker-dealers, acting as agent or principal, block
trades, agency placements, exchange distributions, brokerage transactions or
otherwise, or in any combination of transactions.
At the time a particular offer of Shares is made, to the extent required, a
supplement to this Prospectus will be distributed which will identify and set
forth the aggregate number of Shares being offered and the terms of the
offering, including the name or names of any underwriters, dealers or agents,
the purchase price paid by any underwriter for the Shares purchased from the
Selling Stockholders, any discounts, commissions and other items constituting
compensation from the Selling Stockholders and/or the Company and any discounts,
commissions or concessions allowed or reallowed or paid to dealers, including
the proposed selling price to the public. Such supplement to this Prospectus
and, if necessary, a post-effective amendment to the Registration Statement of
which this Prospectus is a part, will be filed with the Commission to reflect
the disclosure of additional information with respect to the distribution of the
Shares.
Any or all of the sales or other transactions involving the Shares described
above, whether effected by the Selling Stockholders any broker-dealer or others,
may be made pursuant to this prospectus. In addition, any Shares that qualify
for sale pursuant to Rule 144 under the Act may be sold under Rule 144 rather
than pursuant to this prospectus.
In order to comply with the securities laws of certain states, the Shares may be
sold in such jurisdictions only through registered or licensed brokers or
dealers. In addition, in certain states the Shares may not be sold unless
registered or qualified for sale or an exemption from registration or
qualification requirements is available and is complied with.
Under applicable rules and regulation under the Exchange Act, any person engaged
in the distribution of the Shares may not simultaneously engage in market making
activities with respect to D&PL Common Stock for a period of two business days
prior to the commencement of such distribution. In addition and without limiting
the foregoing, the Selling Stockholders will be subject to applicable provisions
of the Exchange Act and the rules and regulations thereunder, including, without
limitation, Rules 10b-6 and 10b-7, which provisions may limit the timing of
purchases and sales of the Shares by the Selling Stockholders.
D&PL will pay the registration and professional fees, and printing costs
associated with this registration statement. Any broker-dealer commissions,
discounts or concessions will be paid by the Selling Stockholders.
The Selling Stockholders (and not D&PL) may agree to indemnify certain persons,
including broker-dealers or others, against certain liabilities in connection
with any offering of the Shares, including liabilities under the Securities Act.
2
<PAGE>
LEGAL MATTERS
The validity of the Shares offered hereby will be opined upon for the Company by
Lake Tindall LLP, Greenville, Mississippi. Jerome C. Hafter, secretary and
general counsel of the Company, is a partner of said law firm.
CERTAIN OTHER LEGAL MATTERS
Anti-Takeover Effects of Certain Charter and Bylaw Provisions and
Shareholder Rights Plan
Certain provisions of the Company's Restated Certificate of Incorporation and
Bylaws may (i) have the effect of discouraging certain transactions involving an
actual or potential change of control of the Company, (ii) discourage bidders
from offering a premium to the Company's stockholders for the purchase of the
shares of Common Stock owned by them and (iii) have a depressive effect on the
market price of the shares. Such provisions include a staggered Board of
Directors, the call of special meetings of stockholders only by the Directors
and supermajority voting provisions for stockholder votes on certain matters.
The Company adopted a Shareholder Rights Plan on August 13, 1996.
Indemnification
Section 145 of the Delaware General Corporation Law ("DGCL") provides for
indemnification of a corporation's officers and directors under certain
circumstances. Section 145 of the DGCL also provides that a corporation has the
power to purchase and maintain insurance on behalf of its officers and directors
against any liability asserted against such person and incurred by him or her in
such capacity, or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such liability
under the provisions of Section 145 of the DGCL. The Restated Certificate of
Incorporation and Bylaws of the Company also provide for indemnification of
officers and directors as authorized by the DGCL.
Section 102(b)(7) of the DGCL enables a corporation in its certificate of
incorporation to limit the personal liability of members of its Board of
Directors for violations of a director's fiduciary duty of care. This Section
does not, however, limit the liability of a director for breaching his or her
duty of loyalty, failing to act in good faith, engaging in intentional
misconduct or knowingly violating a law, or from any transaction in which the
director derived an improper personal benefit. This section also has no effect
on claims arising under the federal securities laws. The Restated Certificate of
Incorporation of the Company limits the liability of its directors as authorized
by Section 102(b)(7) of the DGCL.
EXPERTS
The consolidated financial statements and schedules incorporated by reference
herein, of Delta and Pine Land Company in Delta and Pine Land Company's Annual
Report (Form 10-K) for the year ended August 31, 1996, have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are included herein in reliance upon the
authority of said firm as experts giving said reports. Future financial
statements of Delta and Pine Land Company and the reports thereon of Arthur
Andersen LLP also will be incorporated by reference herein in reliance upon the
authority of those accountants, as experts in giving those reports to the extent
said firm has audited those financial statements and consented to the use of
their reports thereon.
3
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF DISTRIBUTION
The following table sets forth the various costs and expenses to be paid by the
Company with respect to the sale and distribution of the securities being
registered. All of the amounts shown are estimates except the Securities and
Exchange Commission registration fee.
SEC Registration Fee $ 16,013.00
Legal Fees and Expenses* 5,000.00
Accounting Fees and Expenses* 3,000.00
Printing and Engraving Expenses* 1,000.00
Miscellaneous* 1,000.00
Total $ 26,013.00
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation law provides for indemnification
of a corporation's officers and directors under certain circumstances. Section
145 of the Delaware General Corporation Law also provides that a corporation has
the power to purchase and maintain insurance on behalf of its officers and
directors against any liability asserted against such person and incurred by him
or her in such capacity, or arising out of his or her status as such, whether or
not the corporation would have the power to indemnify him or her against such
liability under the provisions of Section 145 of the Delaware General
Corporation Law. Section 6.7 of the Bylaws of the Company and the Ninth Article
of the Company's Restated Certificate of Incorporation also provide for
indemnification of officers and directors, as authorized by Section 145.
Section 102(b)(7) of the Delaware General Corporation Law enables a corporation
in its certificate of incorporation to limit the personal liability of members
of its board of directors for violations of a director's fiduciary duty of care.
The Section does not, however, limit the liability of a director for breaching
his or her duty of loyalty, failing to act in good faith, engaging in
intentional misconduct or knowingly violating a law, or from any transaction in
which the director derived an improper personal benefit. The Section also will
have no effect on claims arising under the federal securities laws. The
Certificate of Incorporation of the Company limits the liability of its
directors as authorized by Section 102(b)(7).
The Ninth Article of Restated Certificate of Incorporation of the Company
provides:
A. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (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 involved intentional misconduct or a
knowing violation of law, (iii) for any transaction from which the director
derived an improper personal benefit, or (iv) under Section 174 of the General
Corporation Law of the State of Delaware. If the General Corporation Law of the
State of Delaware is amended to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended. Any repeal or modification of this Section A by the stockholders of the
Corporation shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification.
B. (1) Each person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit, or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding", by reason
of the fact that he or she or a person of whom he or she is the legal
representative is or was a director, officer or employee of the Corporation or
is or was serving at the request of the Corporation as a director, officer,
employee, agent or in any other capacity of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the General Corporation Law of the State of Delaware as the
same exists or may hereafter he amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights
II-1
than said law permitted the Corporation to provide prior to such amendment),
against all expense, liability and loss (including attorney's fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith if such person acted in good faith and in a manner such person
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, and such indemnification
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of his or her heirs, executors and
administrators; provided, further, that except as provided in paragraph (2) of
this Section B with respect to proceedings seeking to enforce rights to
indemnification, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation by a majority vote of a quorum of the
directors who were not parties to such action, suit or proceeding, or if such
quorum is not obtainable, by the stockholders. The right to indemnification
conferred in this Section B shall be a contract right and shall include the
right to be paid by the Corporation and the expenses incurred in defending any
such proceeding in advance of its final disposition; provided, however, that if
the General Corporation Law of the State of Delaware requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section B or otherwise.
(2) If a claim under paragraph (1) of this Section B is not paid in
full by the corporation within thirty days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the General Corporation Law of the State of Delaware for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel or stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in the General Corporation
Law of the State of Delaware, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel or stockholders)
that the claimant has not met such applicable standard of conduct shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
(3) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in this
Section B shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the certificate or
incorporation, By-Law, agreement, vote of stockholders or disinterested
directors or otherwise.
(4) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of the State of Delaware.
(5) The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification, and rights to be paid
by the Corporation the expenses incurred in defending any proceeding in advance
of its final disposition, to any agent of the Corporation to the fullest extent
of the provisions of this Section B with respect to the indemnification and
advancement of expenses of directors, officers, and employees of the
Corporation.
The Company has a liability insurance policy in effect which
covers certain claims against any officer or director of the Company by reason
of certain breaches of duty, neglect, errors or omissions committed by such
person in his or her capacity as an officer or director.
II-2
<PAGE>
ITEM 16. EXHIBITS
(A) EXHIBITS
5.1 Opinion of Lake Tindall LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Lake Tindall LLP (to be included in Exhibit 5.1)
24.1 Power of Attorney (included as part of the signature pages filed herewith)
99.1* Agreement between the D&PL Companies and the Sure Grow Companies,
Sure Grow Shareholders and Sure Grow Principals dated May 20, 1996
- -------------------
* Incorporated by reference from the Company's Current Report on Form 8-K/A
filed with the Commission on August 5, 1996.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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:
a. To include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
b. To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
c. To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the
registration statement is on Form S-3, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements of 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 Town of Scott, Mississippi on the 20th day of December, 1996.
DELTA AND PINE LAND COMPANY
(Registrant)
/s/ Roger D. Malkin
By Roger D. Malkin, Chairman of the Board
and Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
We the undersigned officers and directors of Delta and Pine Land
Company hereby severally constitute Roger Malkin, Chairman and CEO and W.T.
Jagodinski, Vice President-Finance and Treasurer, and each of them singly, our
true and lawful attorneys with full power to them, and each of them singly, to
sign for us and in our names in the capacity indicated below, any and all
amendments (including post-effective amendments) 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 attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in connection therewith as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agents, or any of them, or their or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Witness our hands on the date set forth below.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been Signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Signature Title Date
/s/ Roger D. Malkin Chairman of the Board December 20, 1996
Roger D. Malkin and Chief Executive Officer
(Principal Executive Officer)
/s/ W. Thomas Jagodinski Vice President-Finance and December 20, 1996
W. Thomas Jagodinski Treasurer (Principal Financial
and Accounting Officer)
Director
Nam-Hai Chua
/s/ Jon E.M. Jacoby Director December 20, 1996
Jon E.M.Jacoby
/s/ Joseph M. Murphy Director December 20, 1996
Joseph M. Murphy
/s/ Stanley P. Roth Director December 20, 1996
Stanley P. Roth
/s/ Rudi E. Scheidt Director December 20, 1996
Rudi E. Scheidt
SECURITIES ACT OF 1933
EXHIBIT INDEX
5.1 Opinion of Lake Tindall LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Lake Tindall LLP (To be included in Exhibit 5.1)
24.1 Power of Attorney ( Included as part of signature pages filed herewith)
99.1* Agreement between D&PL Companies and the Sure Grow Companies, Sure
Grow Shareholders and Sure Grow Principals
dated May 20, 1996
* Incorporated by reference from the current report on Form 8-K/A filed by the
Company on August 5, 1996.
EXHIBIT 5.1
OPINION OF LAKE TINDALL LLP
This opinion is rendered to you in connection with the Registration Statement on
Form S-3 of Delta and Pine Land Company (the "Company") to be filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act") covering the offering and possible future sale by certain holders of
1,548,483 shares of common stock, par value $.10 per share, of the Company (the
"Common Stock").
We have acted as counsel for the Company in connection with negotiation and
execution of that certain Agreement, dated May 20, 1996, among the Company and
certain of its subsidiaries and Arizona Processing, Inc., Ellis Brothers Seed,
Inc., Mississippi Seed, Inc., and the Shareholders and Principals thereof and
Sure Grow Feed, Inc. (the "Agreement"). In connection with this opinion, we have
reviewed original or copies of the following:
(i) the Amended and Restated Certificate of Incorporation of the Company,
as amended to date;
(ii) the Amended and Restated By-Laws of the Company, as amended to date;
(iii) Minutes of Meetings of the Company's Board of Directors;
(iv) the Agreement; and
(v such other documents which we consider necessary for the
purposes hereof.
In our examinations for the purposes of rendering this opinion, we have assumed
conformity of copies of documents which we have examined to the originals
thereof. We have relied written or telegraphic advice from government
authorities as to the good standing of the Company. As to any documents dated
prior to the date of this opinion, we have assumed there has been no change in
the status of matters reflected therein from the date thereof to the date of
this opinion. As to various questions of fact material to our opinion, we have
relied upon statements of officers and representatives of the Company.
Based on the foregoing, it is our opinion that:
(i) The Company is a corporation duly organized and validly existing under
the laws of the State of Delaware.
(ii) The shares of Common Stock have been duly authorized and validly issued
and are fully paid and nonassessable.
We offer no opinions other than those expressly set forth above.
We understand that this opinion is to be used in connection with the Company's
Registration Statement relating to the Common Stock to be filed with the
Securities and Exchange Commission under the Act. We consent to the filing of
this opinion with and as part of said Registration Statement and to the
reference of our name therein.
Yours truly,
Lake Tindall, LLP
/s/ Jerome C. Hafter
By: Jerome C. Hafter, Partner
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our report dated October
11, 1996, included in Delta and Pine Land Company's 1996 Annual Report on Form
10-K, and to all references to our firm in this registration statement.
/s/ Arthur Andersen LLP
Memphis, Tennessee,
December 20, 1996
