As filed
with the Securities and Exchange Commission on July 13, 2010
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, DC
20549
FORM S-3
REGISTRATION
STATEMENT
Under the Securities Act of
1933
________________
ARCADIA RESOURCES, INC.
(Exact Name of Registrant as
Specified in its Charter)
Nevada
(State or Other Jurisdiction
of
Incorporation or
Organization)
|
8082
(Primary Standard
Industrial
Classification Code
Number)
|
88-0331369
(I.R.S.
Employer
Identification
Number)
|
________________
9320 Priority Way West
Drive
Indianapolis, Indiana 46240
(317) 569-8234
(Address, Including Zip Code, and
Telephone Number,
Including Area Code, of Registrant’s
Principal Executive Offices)
Copies To:
Matthew R.
Middendorf
Arcadia Resources, Inc.
9320 Priority Way West
Drive
Indianapolis, Indiana 46240
(317) 569-8234
|
Stephen J.
Hackman
Ice Miller LLP
One American Square, Suite
2900
Indianapolis, Indiana
46282
|
(Name, Address Including Zip Code,
and Telephone Number, Including
Area Code, of Agent For
Service)
Approximate
date of commencement of proposed sale to the public: From time to time 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.
o
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.
þ
If this form
is filed to register additional securities for an offering pursuant to Rule
462(b) 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.
o
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.
o
If this Form
is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box.
o
If this Form
is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box.
o
Indicate by
check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the
definitions of "large accelerated filer," "accelerated filer" and "smaller
reporting company" in Rule 12b-2 of the Exchange Act.
Large
accelerated filer
o
Non-accelerated
filer
o
(Do not check if a smaller
reporting company)
|
Accelerated filer
þ
Smaller reporting company
o
|
CALCULATION OF REGISTRATION
FEE
|
Title of Class
of
|
|
|
|
Proposed
|
|
Proposed
|
|
|
Securities to
be
|
|
Amount to be
|
|
Maximum
Offering
|
|
Maximum
Aggregate
|
|
Amount of
|
Registered
|
|
Registered(1)
|
|
Price per
Unit
|
|
Offering
Price
|
|
Registration
Fee
|
Common Stock, $0.001 par
value
|
|
(2)
|
|
-
|
|
(2)
|
|
(2)
|
Preferred Stock, $0.001 par
value
|
|
(2)
|
|
-
|
|
(2)
|
|
(2)
|
Warrants
|
|
(2)
|
|
-
|
|
(2)
|
|
(2)
|
Senior Debt
Securities
|
|
(2)
|
|
-
|
|
(2)
|
|
(2)
|
Subordinated
Debt Securities
|
|
(2)
|
|
-
|
|
(2)
|
|
(2)
|
Total
|
|
$25,000,000
|
|
-
|
|
$25,000,000
|
|
$1,782.50(3)
|
(1)
|
This
registration statement covers such indeterminate principal amount or
number of shares of common stock and preferred stock, senior and
subordinated debt securities and number of warrants of the registrant with
an aggregate offering price not to exceed $25,000,000. The securities
registered hereunder are to be issued from time to time and at prices to
be determined. Any securities registered under this registration statement
may be sold separately or as units with other securities registered under
this registration statement. The securities registered hereunder also
include: (i) an indeterminate number of shares of common stock or
preferred stock, number of warrants and principal amount of senior and
subordinated debt securities as may from time to time be issued upon
conversion or exchange of any preferred stock, warrants or senior or
subordinated debt securities registered hereunder, for which no separate
consideration will be payable, and (ii) securities that may be purchased
by underwriters to cover over-allotments, if any.
|
|
|
(2)
|
Omitted
pursuant to General Instruction II(D) of Form S-3 under the Securities Act
of 1933, as amended (the "Securities Act").
|
|
|
(3)
|
Estimated in accordance with Rule 457(o) of the Securities Act for
the sole purpose of calculating the registration fee.
|
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 or until the
Registration Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
Subject to
Completion, Dated July ___, 2010
The information in this prospectus
is not complete and may be changed. We may not sell these securities until the
registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities, and it is
not soliciting an offer to buy these securities, in any state where the offer or
sale is not permitted.
PRELIMINARY PROSPECTUS
____________
$25,000,000
Common
Stock, Preferred Stock, Warrants,
Senior Debt
Securities, and Subordinated Debt Securities
_____________
We may offer common stock, preferred
stock, warrants, senior debt securities, and subordinated debt securities
consisting of a combination of any of these securities at an aggregate offering
price not to exceed $25,000,000. The debt securities that we may offer may
consist of senior debt securities or subordinated debt securities, in each case
consisting of notes or other evidences of indebtedness in one or more series.
The warrants that we may offer may consist of warrants to purchase any of the
other securities that may be sold under this prospectus. The securities offered
under this prospectus may be offered separately, together, or in separate
series, and in amounts, at prices, and on terms to be determined at the time of
sale. A prospectus supplement that will set forth the terms of the offering of
any securities will accompany this prospectus. You should read this prospectus
and any supplement carefully before you invest.
Our common stock is listed on the
NYSE Amex Exchange ("Amex") under the symbol "KAD."
On July 9, 2010, the closing price
of our common stock was $0.42 per share. As of the date of this prospectus, none
of the other securities that we may offer by this prospectus is listed on any
national securities exchange or quoted on any automated quotation system.
We may offer these securities
directly to investors, or through underwriters, dealers or agents, on a
continuous or delayed basis. See “Plan of Distribution.” Each prospectus
supplement will provide the terms of the plan of distribution relating to each
series of securities.
Investing in our securities involves
risks that you should consider and that are described in our most recent Annual
Report on Form 10-K, which is incorporated by reference into this prospectus or
any applicable prospectus supplement.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of
these securities or passed upon the accuracy or adequacy of this prospectus. Any
representation to the contrary is a criminal offense.
The date of
this prospectus is July __, 2010.
2
ARCADIA RESOURCES,
INC.
Table of Contents
About this
Prospectus
|
1
|
Forward-Looking
Statements
|
2
|
Our Company
|
3
|
Risk Factors
|
4
|
Use of Proceeds
|
4
|
Ratio of Earnings to Fixed
Charges
|
4
|
Description of
Securities
|
5
|
Material Federal Income Tax
Consequences
|
13
|
Plan of Distribution
|
14
|
Legal Matters
|
15
|
Experts
|
16
|
Information Incorporated by
Reference
|
16
|
Where You Can Find More
Information
|
16
|
ABOUT THIS PROSPECTUS
This prospectus is part of a
registration statement on Form S-3 that we filed with the Securities and
Exchange Commission ("SEC"), pursuant to which we may from time to time offer
and sell up to $25,000,000 of our securities as described in this prospectus, in
one or more offerings. This prospectus provides you with a general description
of the securities that we may offer hereunder. The securities may be sold to or
through underwriters or dealers, or through agents designated from time to time,
or directly to purchasers. You should read carefully both this prospectus and
any prospectus supplement, together with additional information described below
under the caption "Where You Can Find More Information."
You should rely only on the
information contained in this prospectus and in the documents incorporated by
reference in this prospectus and any prospectus supplement. We have not
authorized any other person to provide you with different information. If anyone
provides you with different or inconsistent information, you should not rely on
it. We are not making an offer to sell or seeking an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted. You
should assume that the information appearing in this prospectus and in the
documents incorporated by reference in this prospectus, or any prospectus
supplement, is accurate only as of its respective date. Our business, financial
condition, results of operations and prospects may have changed since those
dates.
We make no representation to any
purchaser of the securities registered hereby regarding the legality of an
investment in the securities by such purchaser under any legal investment or
similar laws or regulations. You should not consider any information in this
prospectus, or any prospectus supplement, to be legal, business or tax advice,
and you should consult your own legal, business and tax advisors for advice
regarding an investment in the common stock offered hereby.
When used in this prospectus, the
terms "Arcadia," "we," "our," and "us" refer to Arcadia Resources, Inc., a
Nevada corporation, and its consolidated subsidiaries, unless otherwise
specified or the context otherwise requires.
1
FORWARD-LOOKING STATEMENTS
We caution you that certain
statements contained in this prospectus or a prospectus supplement (including
any of our documents incorporated herein or therein by reference), or which are
otherwise made by us or on our behalf, are forward-looking statements. Also,
documents which we subsequently file with the SEC and are incorporated herein by
reference will contain forward-looking statements. Forward-looking statements
include statements that are predictive in nature and depend upon or refer to
future events or conditions. Forward-looking statements include words such as
"believe," "plan," "anticipate," "estimate," "expect," "intend," "seek," "may,"
"can," "will," "could," "should," "project," "expect," "plan," "predict,"
"believe," "estimate," "aim," "anticipate," "intend," "continue," "potential,"
"opportunity" or similar forward-looking terms, variations of those terms or the
negative of those terms or other variations of those terms or comparable words
or expressions. In addition, any statements concerning future financial
performance, ongoing business strategies or prospects, and possible future
actions, which may be provided by our management, are also forward-looking
statements. Forward-looking statements involve known and unknown risks,
uncertainties and other factors, which could cause actual financial or operating
results, performances or achievements expressed or implied by such
forward-looking statements not to occur or be realized. Such forward-looking
statements generally are based on our reasonable estimates of future results,
performances or achievements, predicated upon current conditions and the most
recent results of the companies involved and their respective industries.
Forward-looking
statements are also based on economic and market factors and the industry in
which we do business, among other things. Although we believe that the
expectations reflected in such forward-looking statements are reasonable, we can
give no assurance that our expectations will prove to have been correct.
Forward-looking statements speak only as of the date we make them and are not
guaranties of future performance. Important factors that could cause actual
results to differ materially from the Company’s expectations are disclosed in
this prospectus and our Annual Report on Form 10-K. We disclaim any obligation
to provide updates, revisions or amendments to any forward-looking statements to
reflect changes in our expectations or future events.
2
OUR COMPANY
Arcadia Resources, Inc., a Nevada
corporation, together with its wholly-owned subsidiaries (the "Company"), is a
national provider of home care, medical staffing, and pharmacy services
operating under the service mark Arcadia HealthCare. We operate in three
reportable business segments.
Our Services business provides home
care and medical staffing services to numerous types of acute care and sub-acute
care medical facilities across the United States. We provide nurses, home care
aides, homemakers and companions to home care clients and nurses and various
allied health professionals to medical facilities.
Our Pharmacy business markets,
sells, packages and distributes our DailyMed
TM
medication management
system. DailyMed
TM
transfers a patient's prescriptions, over-the-counter medications and vitamins
and organizes them into pre-sorted 30-day supply packages marked with the date
and time each dosage should be taken. A registered pharmacist reviews the entire
medication profile at the time a patient is enrolled and prior to each monthly
shipment. DailyMed
TM
is aimed at reducing
medication errors, improving medication compliance and ultimately lowering the
cost of health care for its target customers.
Our Catalog business markets various
products, such as ambulatory and mobility products, respiratory products, daily
living aids, bathroom safety products and bathroom/home modification products,
via direct mail and through our e-commerce website. We have a licensing
agreement with Sears, Roebuck and Co. which allows us to sell similar
merchandise for their www.sears.com and mail order catalog
businesses.
Our corporate headquarters are
located in Indianapolis, Indiana. We conduct our business from approximately 70
facilities located in 18 states. We operate pharmacies in Indiana and Minnesota
and have customer service centers in Michigan and Indiana.
Our principal executive offices are
located at 9320 Priority Way West Drive, Indianapolis, Indiana 46240. Our
telephone number at that location is (317) 569-8234. We maintain a web site at
www.arcadiahealthcare.com. The information contained on or accessible through
our web site is not part of this prospectus. Our fiscal year ends March 31. For
additional information concerning our business and affairs, please refer to the
documents incorporated by reference that are listed under the caption
"Information Incorporated by Reference."
3
RISK FACTORS
An investment in our securities is
highly speculative and involves a high degree of risk. You should carefully
consider and evaluate all of the information included and incorporated by
reference in this prospectus and any applicable prospectus supplement, including
the risk factors incorporated by reference from our most recent Annual Report on
Form 10-K for the fiscal year ended March 31, 2010, filed with the SEC on June
11, 2010, as will be updated by our Quarterly Reports on Form 10-Q and our other
filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act. Any of the risks we have described could materially adversely
affect our business, financial condition or operating results and could result
in a partial or complete loss of your investment. Further, the risks and
uncertainties we have described are not the only ones we face. Additional risks
and uncertainties not currently known to us, or that we currently believe are
not material, could also materially adversely affect our business, financial
condition or operating results.
USE OF PROCEEDS
Unless otherwise indicated in an
accompanying prospectus supplement, the net proceeds from the sale of the
securities offered hereby will be used for general corporate purposes, which may
include working capital, repayment of indebtedness, capital expenditures,
development costs, strategic investments, and possible acquisitions. We have not
allocated any portion of the net proceeds for any particular use at this time.
The net proceeds may be invested temporarily until they are used for their
stated purpose. Specific information concerning the use of proceeds from the
sale of any securities will be included in the prospectus supplement relating to
such securities.
RATIO OF EARNINGS TO FIXED
CHARGES
The following table sets forth the
historical ratio of our earnings to our fixed charges for the periods
indicated:
|
|
Years
Ended
|
|
|
March 31,
|
|
|
(in
thousands)
|
|
|
2006
|
|
2007
|
|
2008
|
|
2009
|
|
2010
|
Ratio of earnings to fixed
charges and
|
|
___*
|
|
___*
|
|
___*
|
|
___*
|
|
___*
|
preferred stock dividend (a)
(b)
|
|
|
|
|
|
|
|
|
|
|
Deficiency of earnings
available to cover fixed
|
|
$(2,249)
|
|
$(5,630)
|
|
$(9,096)
|
|
$(38,496)
|
|
$(26,245)
|
charges
|
|
|
|
|
|
|
|
|
|
|
____________________
*
|
In each
of the periods presented, earnings were insufficient to cover fixed
charges.
|
|
|
(a)
|
For
these ratios, “earnings” represents income (loss) from continuing
operations before income taxes plus fixed charges. "Fixed charges" is the
sum of interest expense, capitalized interest, amortization of debt
discount or premium, amortization of capitalized expenses related to debt,
an estimate of the interest component of rent expense and any preferred
dividend requirements of consolidated subsidiaries
.
|
|
|
(b)
|
No
Preferred Stock is outstanding as of the date of this prospectus.
|
4
DESCRIPTIO
N OF SECURITIES
Description of Capital Stock
We are authorized to issue
300,000,000 shares of common stock, $0.001 par value per share, and 5,000,000
shares of serial preferred stock, par value $0.001. The following description of
our capital stock is a summary and is qualified in its entirety by reference to
our Amended and Restated Certificate of Incorporation and Amended and Restated
Bylaws, the forms of which are filed as exhibits to the registration statement
of which this prospectus forms a part, and by applicable law.
Voting
. Except as otherwise required by
law or our Amended and Restated Articles of Incorporation, including any
certificate of designations for a series of preferred stock, each holder of
common stock shall have one vote in respect of each share of stock held by him
or her of record on the books of the Company for the election of directors and
on all matters submitted to a vote of our security holders. When a quorum is
present at any meeting, the vote of the holders of a majority of the stock
having voting power present in person or represented by proxy shall be the act
of the security holders and shall decide any question brought before such
meeting, unless according to the Amended and Restated Articles of Incorporation
or Amended and Restated Bylaws require a greater vote.
Dividends
.
Subject to the preferential rights
of the preferred stock, the holders of shares of common stock shall be entitled
to receive, when and if declared by our board of directors, out of our assets
which are by law available for dividends, dividends payable in cash, property or
shares of capital stock.
Dissolution, Liquidation or Winding
Up
. In the event
of any dissolution, liquidation or winding up of our affairs, after distribution
in full of the preferential amounts, if any, to be distributed to the holders of
shares of the preferred stock, holders of common stock shall be entitled, unless
otherwise provided by law or our restated articles of incorporation, including
any certificate of designations for a series of preferred stock, to receive all
of our remaining assets of whatever kind available for distribution to security
holders ratably in proportion to the number of shares of common stock held by
them respectively.
Other Rights and
Restrictions
.
The outstanding shares of our common
stock are validly issued, fully paid and nonassessable. Holders of our common
stock do not have preemptive rights, and they have no right to convert their
common stock into any other securities. Our common stock is not subject to
redemption by us. The rights, preferences and privileges of common security
holders are subject to the rights of the security holders of any series of
preferred stock that are issued and outstanding or that we may issue in the
future. Upon surrender to us or our transfer agent of a certificate for shares
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be our duty to issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction
upon our books. Our board of directors is authorized to set apart out of any of
the funds of the Company available for dividends a reserve or reserves for any
proper purpose. We are subject to Sections 78.411
et seq.
of the Nevada Revised Statutes
regarding business combinations with interested security holders.
Preferred Stock
. We are authorized to issue
5,000,000 shares of serial preferred stock, par value $0.001. Shares of
preferred stock may be issued from time to time in one or more series as may be
determined by our board of directors. Each series shall be distinctly
designated. All shares of any one series of the preferred stock shall be alike
in every particular, except that there may be different dates from which
dividends thereon, if any, shall be cumulative, if made cumulative. The powers,
preferences, participating, optional and other rights of each such series and
the qualifications, limitations, or restrictions thereof, if any, may differ
from those of any and all other series at any time outstanding. Except as
otherwise provided in our Amended and Restated Articles of Incorporation, our
board of directors has authority to fix by resolution or resolutions adopted
prior to the issuance of any shares of each particular series of preferred
stock, the designation, powers, preferences, and relative participating,
optional and other rights, and the qualifications, limitations, and
restrictions, if any, of such series.
5
Transfer Agent and
Registrar.
The transfer agent and registrar for
our common stock is National City Bank.
Anti-Takeover Effects of Provisions
of Nevada Law and Our Amended and Restated Articles of Incorporation and Amended
and Restated Bylaws
The following discussion concerns
certain provisions of Nevada law, our Amended and Restated Articles of
Incorporation and our Amended and Restated Bylaws that could be viewed as having
the effect of discouraging or delaying an attempt to obtain control of our
Company.
Nevada Law
Sections 78.378
et seq.
of the Nevada Revised Statutes
govern the acquisition of a controlling interest. This law provides generally
that any person or entity that acquires 20% or more of the outstanding voting
shares of a Nevada issuing corporation obtains voting rights in the acquired
shares as conferred by a resolution of the security holders of the corporation,
approved at a special or annual meeting of the security holders. The articles of
incorporation or bylaws of a corporation, however, may provide that these
provisions do not apply to the corporation or to an acquisition of a controlling
interest. We are subject to Sections 78.378
et seq
. of the Nevada Revised
Statutes.
Sections 78.411
et seq.
of the Nevada Revised Statutes
govern combinations with interested security holders. These provisions may have
an effect of delaying or making it more difficult to effect a change in control
of our Company. These provisions preclude an interested security holder (i.e.,
the beneficial owner, directly or indirectly, of 10% or more of the voting power
of the outstanding voting shares of a corporation, or an affiliate or
association thereof) and a resident, domestic Nevada corporation from entering
into a combination (e.g., a merger, sale, lease, exchange, etc.) unless certain
conditions are met. The provisions generally preclude a resident, domestic
corporation from engaging in any combination with an interested security holder
for three years after the date that the person first became an interested
security holder unless the combination or the transaction by which the person
first became an interested security holder is approved by the board of directors
before the person first became an interested security holder. If approval is not
obtained, then after the expiration of the three-year period the business
combination may be consummated with the approval of our board of directors or a
majority of the voting power held by the disinterested security holders, or if
the consideration to be paid by the interested security holder exceeds certain
thresholds set forth in the statute. We are subject to Sections 78.411
et seq.
of the Nevada Revised Statutes.
In addition, Sections 92A.300
et seq.
of the Nevada Revised Statutes
create a right of appraisal for dissenting stockholders. These sections allow
stockholders to dissent from certain corporate actions (e.g., certain
conversions, mergers, and exchanges), and obtain payment for the fair value of
their shares. This right of appraisal could discourage an attempt to take
control of our Company by means of any of those corporate actions entitling the
stockholders to appraisal rights.
Amended and Restated Articles of
Incorporation and Amended and Restated Bylaws
Preferred Stock
. Our Amended and Restated Articles
of Incorporation provide that we may from time to time issue shares of preferred
stock in one or more series, the terms of which will be determined by our board
of directors. We will not solicit approval of our security holders in connection
with the designation or issuance of any shares of preferred stock unless our
board of directors believes that approval is advisable or is required by the
rules of the NYSE Amex Exchange or by Nevada law. This could enable our board of
directors to issue shares to persons friendly to current management which would
protect the continuity of our management and render more difficult or discourage
an attempt to obtain control of our Company by means of a merger, tender offer,
proxy contest or otherwise. These additional shares also could be used to dilute
the stock ownership or voting power of persons seeking to obtain control of our
Company.
6
Board of
Directors
. Our
directors, other than those who may be the holders of any class or series of our
preferred stock having the right under a preferred stock designation to elect
additional directors under specified circumstances, are classified into three
classes, as nearly equal in number as possible, with staggered three-year terms:
Class C, whose term will expire at our annual meeting of security holders in
2010, Class B, whose term will expire at our annual meeting of security holders
in 2011, and Class A, whose term will expire at our annual meeting of security
holders in 2012. Each of our directors is to hold the office until his or her
successor is duly elected and qualified. Directors elected to succeed directors
whose terms then expire are elected for a term of office to expire at the third
succeeding annual meeting of security holders after their election.
Our Amended and Restated Bylaws
provide that, except as otherwise provided in any preferred stock designation
relating to the rights of the holders of any class or series of preferred stock
to elect directors under specified circumstances, newly created directorships
resulting from any increase in the number of directors and any vacancies on our
board of directors resulting from death, resignation, disqualification, removal
or other cause will be filled by the affirmative vote of a majority of the
stockholders at any regular or special meeting, or at any adjourned meeting, or
by the affirmative vote of a majority of the remaining directors. Any director
so elected will hold office for the remainder of the full term of the class of
directors in which the new directorship was created or the vacancy occurred and
until the director’s successor has been duly elected and qualified. No decrease
in the number of directors constituting our board of directors will shorten the
term of any incumbent director. Subject to the rights of any class or series of
preferred stock having the right under a preferred stock designation to elect
directors under specified circumstances, any director may be removed from office
only for cause by the affirmative vote of the holders of at least 70% of the
voting power of the issued and outstanding stock entitled to vote.
These provisions would preclude a
third party from removing incumbent directors without cause and simultaneously
gaining control of our board of directors by filling the vacancies created by
removal with its own nominees. Under the classified board of directors
provisions described above, absent director removals for cause, it would take at
least two elections of directors for any individual or group to gain control of
our board of directors. Accordingly, these provisions would discourage a third
party from initiating a proxy contest, making a tender offer or otherwise
attempting to gain control of our Company.
Amendments
. Under Section 78.390 of the Nevada
Revised Statutes, the affirmative vote of the holders of at least a majority of
the voting power is required to amend provisions of our restated articles of
incorporation relating to security holder action; the number, election and
tenure of directors; the nomination of director candidates and the proposal of
business by security holders; the filling of vacancies on our board of
directors; and the removal of directors. Our Amended and Restated Bylaws further
provide that most provisions of our Amended and Restated Bylaws may be amended
either by the affirmative vote of the whole board of directors or by the
affirmative vote of the holders of 70% of the voting power of the issued and
outstanding stock entitled to vote. However, certain provisions of our Amended
and Restated Bylaws may be amended only by the affirmative vote of the holders
of 70% of the voting power of the issued and outstanding stock entitled to vote.
Description of Warrants
General
.
We may issue warrants for the
purchase of debt securities, preferred stock, or common stock, or any
combination of these securities. Warrants may be issued independently or
together with other securities and may be attached to or separate from any
offered securities. Each series of warrants will be issued under a separate
warrant agreement to be entered into between a warrant agent and us. The warrant
agent will act solely as our agent in connection with the warrants and will not
have any obligation or relationship of agency or trust for or with any holders
or beneficial owners of warrants. The following outlines some of the general
terms and provisions of the warrants that we may issue from time to time.
Additional terms of the warrants and the applicable warrant agreement will be
set forth in the applicable prospectus supplement. The following description,
and any description of the warrants included in a prospectus supplement, may not
be complete and is subject to and qualified in its entirety by reference to the
terms and provisions of the applicable warrant agreement, which we will file
with the SEC in connection with any offering of warrants.
7
Warrant Terms
.
The prospectus supplement relating
to a particular issue of warrants exercisable for debt or equity securities will
describe the terms of those warrants, including the following:
-
the title of
the warrants;
-
the offering
price for the warrants, if any;
-
the
aggregate number of the warrants;
-
the
designation and terms of the debt or equity securities purchasable upon
exercise of the warrants;
-
if
applicable, the designation and terms of the securities that the warrants are
issued with and the number of warrants issued with each security;
-
if
applicable, the date from and after which the warrants and any securities
issued with the warrants will be separately transferable;
-
the
principal amount and price (in the case of debt securities) or number of
shares and price (in the case of equity securities) that may be purchased upon
exercise of a warrant;
-
the dates on
which the right to exercise the warrants commence and
expire;
-
if
applicable, the minimum or maximum amount of the warrants that may be
exercised at any one time;
-
whether the
warrants represented by the warrant certificates or debt securities that may
be issued upon exercise of the warrants will be issued in registered or bearer
form;
-
information
relating to book-entry procedures, if any;
-
if
applicable, a discussion of material U.S. federal income tax considerations;
-
anti-dilution provisions of the warrants, if any;
-
redemption
or call provisions, if any, applicable to the warrants; and
-
any
additional terms of the warrants, including terms, procedures, and limitations
relating to the exchange and exercise of the warrants.
Exercise of
Warrants
.
Each warrant will entitle the holder
of the warrant to purchase at the exercise price set forth in the applicable
prospectus supplement the principal amount of debt securities or shares of
common stock or preferred stock being offered. Holders may exercise warrants at
any time up to the close of business on the expiration date set forth in the
applicable prospectus supplement. After the close of business on the expiration
date, unexercised warrants will be void. Holders may exercise warrants as set
forth in the prospectus supplement relating to the warrants being offered.
Until a holder exercises the
warrants to purchase any securities underlying the warrants, the holder will not
have any rights as a holder of the underlying securities by virtue of ownership
of warrants.
8
Description of Debt
Securities
This section describes the general terms and provisions of the debt
securities that we may issue separately, upon conversion or exchange of
preferred stock or upon exercise of a debt warrant, any of which may be issued
as convertible or exchangeable debt securities. We will set forth the particular
terms of the debt securities we offer in a prospectus supplement.
The extent, if
any, to which the following general provisions apply to particular debt
securities will be described in the applicable prospectus supplement. The
following description of general terms relating to the debt securities and the
indenture under which the debt securities will be issued are summaries only and
therefore are not complete.
You should read
the indenture and the prospectus supplement regarding any particular issuance of
debt securities. The debt securities will represent our unsecured general
obligations, unless otherwise provided in the prospectus supplement.
General.
The debt securities will be issued under an
indenture between us and a trustee that will be named in the applicable
prospectus supplement, and may be supplemented or amended from time to time
following its execution. The indenture, and any supplemental indentures thereto,
will be subject to, and governed by, the Trust Indenture Act of 1939. The form
of indenture will give us broad authority to set the particular terms of each
series of debt securities issued thereunder, including the right to modify
certain of the terms contained in the indenture. Except to the extent set forth
in a prospectus supplement, the indenture will not contain any covenants or
restrictions that afford holders of the debt securities special protection in
the event of a change of control or highly leveraged transaction.
The indenture will not limit the aggregate principal amount of debt
securities that may be issued under it and will provide that debt securities may
be issued in one or more series, in such form or forms, with such terms, and up
to the aggregate principal amount that we may authorize from time to time. Our
board of directors will establish the terms of each series of debt securities,
and such terms will be set forth or determined in the manner provided in an
officers’ certificate or by a supplemental indenture. The particular terms of
the debt securities offered pursuant to any prospectus supplement will be
described in the prospectus supplement. All debt securities of one series need
not be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of any holder, for issuances of additional debt
securities of that series.
Terms of Debt Securities
. The applicable prospectus supplement will describe the following terms
of any series of debt securities that we may offer (to the extent applicable to
the debt securities):
-
the title and designation of the
debt securities (which shall distinguish debt securities of one series from
debt securities of any other series), including whether the debt securities
shall be issued as senior debt securities, senior subordinated debt
securities, or subordinated debt securities, any subordination provisions
particular to such series of debt securities, and whether such debt securities
are convertible and/or exchangeable for other securities;
-
the aggregate principal amount of
the debt securities and any limit upon the aggregate principal amount of the
debt securities;
-
the date or dates (whether fixed
or extendable) on which the principal of the debt securities is payable or the
method of determination thereof;
-
the rate or rates (which may be
fixed, floating, or adjustable) at which the debt securities shall bear
interest, if any, the method of calculating the rates, the date or dates from
which interest shall accrue or the manner of determining those dates, the
interest payment dates on which interest shall be payable, the record dates
for the determination of holders to whom interest is payable, and the basis
upon which interest shall be calculated if other than that of a 360-day
year;
-
the place or places where the
principal and premium, if any, make-whole amount, if any, and interest on the
debt securities, if any, shall be payable, where the holders may surrender
debt securities for conversion, transfer, or exchange and where notices or
demands to or upon us may be served;
9
-
any provisions relating to the
issuance of the debt securities at an original issue
discount;
-
the price or prices at which, the
period or periods within which, and the terms and conditions upon which we may
redeem the debt securities, in whole or in part, pursuant to any sinking fund
or otherwise (including the form or method of payment if other than in
cash);
-
our obligation, if any, to redeem,
purchase, or repay the debt securities pursuant to any mandatory redemption,
sinking fund, or analogous provisions, or at the option of a holder, the price
at which, the period within which, and the terms and conditions upon which the
debt securities shall be redeemed, purchased, or repaid, in whole or in part,
pursuant to such obligation (including the form or method of payment thereof
if other than in cash) and any provisions for the remarketing of the debt
securities;
-
if other than denominations of
$1,000 and any integral multiple thereof, the denominations in which the debt
securities of the series shall be issuable;
-
if other than the principal amount
thereof, the portion of the principal amount of the debt securities that shall
be payable upon declaration of acceleration of the maturity or provable in
bankruptcy or, if applicable, the portion of the principal amount that is
convertible or exchangeable in accordance with the provisions of the debt
securities or the resolution of our board of directors or any supplemental
indenture pursuant to which such debt securities are issued;
-
any events of default with respect
to the debt securities, in lieu of or in addition to those set forth in the
indenture and the remedies therefor;
-
our obligation, if any, to permit
the conversion or exchange of the debt securities of such series into common
shares or other capital stock or property, or combination thereof, and the
terms and conditions upon which such conversion shall be effected (including
the initial conversion or exchange price or rate, the conversion or exchange
period, the provisions for conversion or exchange price or rate adjustments,
and any other provision relative to such obligation) and any limitations on
the ownership or transferability of the securities or property into which
holders may convert or exchange the debt securities;
-
any trustees, authenticating or
paying agents, transfer agents or registrars, or any other agents with respect
to the debt securities;
-
the currency or currency units,
including composite currencies, in which the debt securities shall be
denominated if other than the currency of the United States of
America;
-
if other than the currency or
currency units in which the debt securities are denominated, the currency or
currency units in which payment of the principal of, premium, if any,
make-whole amount, if any, or interest on the debt securities shall be payable
(and the manner in which the equivalent of the principal amount thereof in the
currency of the United States of America is to be determined for any purpose,
including for the determination of the principal amount
outstanding);
-
if the principal of, premium, if
any, make-whole amount, if any, or interest on the debt securities is to be
payable, at our election or the election of a holder, in currency or currency
units other than that in which the debt securities are denominated or stated,
the period within which, and the terms and conditions upon which, such
election may be made and the time and manner of and identity of the exchange
rate agent with responsibility for determining the exchange rate between the
currency or currency units in which the debt securities are denominated or
stated to be payable and the currency or currency units in which the debt
securities will be payable;
10
-
if the amount of the payments of
principal of, premium, if any, make-whole amount, if any, and interest on the
debt securities may be determined with reference to an index, the manner in
which the amount shall be determined from that index;
-
whether and under what
circumstances we will pay additional amounts on the debt securities held by
foreign holders in respect of any tax, assessment, or governmental charge
withheld or deducted and, if so, whether we will have the option to redeem the
debt securities rather than pay such additional amounts;
-
if receipt of certain certificates
or other documents or satisfaction of other conditions will be necessary for
any purpose, including as a condition to the issuance of the debt securities
in definitive form (whether upon original issue or upon exchange of a
temporary debt security), the form and terms of such certificates, documents,
or conditions;
-
any other affirmative or negative
covenants with respect to the debt securities, including certain financial
covenants;
-
whether the debt securities shall
be issued in whole or in part in the form of one or more global securities and
the depositary for the global securities or debt securities, the circumstances
under which any global security may be exchanged for debt securities
registered in the name of any person other than the depositary or its nominee,
and any other provisions regarding the global securities;
-
whether the debt securities are
defeasible; and
-
any other terms of a particular
series.
Unless otherwise indicated in the prospectus supplement relating to the
debt securities, the principal amount of and any premium, make-whole amount, or
interest on the debt securities will be payable, and the debt securities will be
exchangeable and transfers thereof will be registrable, at the office of the
trustee.
However, at our option, payment of interest
may be made by check mailed to the address of the person entitled thereto as it
appears in the debt security register. Any payment of principal and any premium,
make-whole amount, or interest required to be made on an interest payment date,
redemption date, or at maturity that is not a business day need not be made on
such date, but may be made on the next succeeding business day with the same
force and effect as if made on the applicable date, and no interest shall accrue
for the period from and after such date.
Unless otherwise indicated in the prospectus supplement relating to debt
securities, the debt securities will be issued only in fully registered form,
without coupons, in denominations of $1,000 or any integral multiple thereof. No
service charge will be made for any transfer or exchange of the debt securities,
but we may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with a transfer or exchange.
Debt securities may bear interest at fixed or floating rates.
We may issue our
debt securities at an original issue discount, bearing no interest or bearing
interest at a rate that at the time of issuance is below market rate, to be sold
at a substantial discount below their stated principal amount. Generally
speaking, if our debt securities are issued at an original issue discount and
there is an event of default or acceleration of their maturity, holders will
receive an amount less than their principal amount. Tax and other special
considerations applicable to any series of debt securities, including original
issue discount debt, will be described in the prospectus supplement in which we
offer those debt securities. In addition, certain United States federal income
tax or other considerations, if any, applicable to any debt securities that are
denominated in a currency or currency unit other than United States dollars may
be described in the applicable prospectus supplement.
11
Global Securities.
The debt securities of a series may be issued in the form of one or more
global securities that will be deposited with a depositary or its nominees
identified in the prospectus supplement relating to the debt securities. In such
a case, one or more global securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of outstanding debt securities of the series to be represented by such global
security or securities.
Unless and until it is exchanged in whole or in part for debt securities
in definitive registered form, a global security may not be registered for
transfer or exchange except as a whole by the depositary for such global
security to a nominee of the depositary and except in the circumstances
described in the prospectus supplement relating to the debt
securities.
The specific terms of the depositary
arrangement with respect to a series of debt securities will be described in the
prospectus supplement relating to such series.
Modification of the Indenture.
We and the trustee may modify the indenture
with respect to the debt securities of any series, with or without the consent
of the holders of debt securities, under certain circumstances to be described
in a prospectus supplement.
Defeasance; Satisfaction and Discharge.
The prospectus supplement will outline the
conditions under which we may elect to have certain of our obligations under the
indenture discharged and under which the indenture obligations will be deemed to
be satisfied.
Defaults and Notice.
The debt securities of any series will contain events of default to be
specified in the applicable prospectus supplement, including:
-
failure to pay the principal of,
or premium or make-whole amount, if any, on any debt security of such series
when due and payable (whether at maturity, by call for redemption, through any
mandatory sinking fund, by redemption at the option of the holder, by
declaration or acceleration, or otherwise);
-
failure to make a payment of any
interest on any debt security of such series when due;
-
our failure to perform or observe
any other covenants or agreements in the indenture with respect to the debt
securities of such series;
-
certain events relating to our
bankruptcy, insolvency, or reorganization; and
-
certain cross defaults.
If an event of default with respect to debt securities of any series
shall occur and be continuing, the trustee or the holders of at least 25% in
aggregate principal amount of the then-outstanding debt securities of such
series may declare the principal amount (or, if the debt securities of such
series are issued at an original issue discount, such portion of the principal
amount as may be specified in the terms of the debt securities of such series)
of all debt securities of such series or such other amount or amounts as the
debt securities or supplemental indenture with respect to such series may
provide, to be due and payable immediately.
The trustee under the indenture shall, within 90 days after the
occurrence of a default, give to holders of debt securities of any series notice
of all uncured defaults with respect to such series known to it. However, in the
case of a default that results from the failure to make any payment of the
principal of, premium or make-whole amount, if any, or interest on the debt
securities of any series, or in the payment of any mandatory sinking fund
installment with respect to debt securities of such series, the trustee may
withhold such notice if it in good faith determines that the withholding of such
notice is in the interest of the holders of debt securities of such series.
12
The indenture will contain a provision entitling the trustee to be
indemnified by holders of debt securities before proceeding to exercise any
trust or power under the indenture at the request of such holders. The indenture
will provide that the holders of at least a majority in aggregate principal
amount of the then-outstanding debt securities of any series may direct the
time, method, and place of conducting any proceedings for any remedy available
to the trustee, or of exercising any trust or power conferred upon the trustee
with respect to the debt securities of such series.
However, the
trustee may decline to follow any such direction if, among other reasons, the
trustee determines in good faith that the actions or proceedings as directed may
not lawfully be taken, would involve the trustee in personal liability, or would
be unduly prejudicial to the holders of the debt securities of such series not
joining in such direction.
The right of a holder to institute a proceeding with respect to the
indenture is subject to certain conditions, including that the holders of at
least a majority in aggregate principal amount of the debt securities of such
series then outstanding make a written request upon the trustee to exercise its
power under the indenture, indemnify the trustee, and afford the trustee
reasonable opportunity to act. Even so, the holder has an absolute right to
receipt of the principal of, premium or make-whole amount, if any, and interest
when due, to require conversion or exchange of debt securities if the indenture
provides for convertibility or exchangeability at the option of the holder, and
to institute suit for the enforcement of such rights.
Conversion or Exchange Rights.
If debt securities of any series are
convertible or exchangeable, the applicable prospectus supplement will specify:
-
the type of securities into which
they may be converted or exchanged;
-
the conversion price or exchange
ratio, or its method of calculation;
-
whether conversion or exchange is
mandatory or at the holder’s election;
-
how and when the conversion price
or exchange ratio may be adjusted; and
-
any other important terms
concerning the conversion or exchange rights.
Concerning the Trustee.
We will provide the name of the trustee in any prospectus supplement
related to the issuance of debt securities and we will also provide certain
other information related to the trustee, including describing any relationship
we have with the trustee, in such prospectus supplement.
Governing Law.
The
indenture and the debt securities will be governed by the laws of the state of
New York.
MATERIAL FEDERAL INCOME TAX
CONSEQUENCES
A summary of any material United States federal income tax consequences
to persons investing in the securities offered by this prospectus will be set
forth in an applicable prospectus supplement. The summary will be presented for
information purposes only, however, and will not be intended as legal or tax
advice to prospective purchasers. Prospective purchasers of securities are urged
to consult their own tax advisers prior to any acquisition of securities.
13
PLAN OF DISTRIBUTION
We may sell the securities in one or more of the following ways from time
to time:
-
through underwriters or dealers
for resale to the public or to institutional investors;
-
directly to a limited number of
institutional purchasers or to a single purchaser;
-
through agents;
or
-
if indicated in the prospectus
supplement, pursuant to delayed delivery contracts, by remarketing firms or by
other means.
Any
dealer or agent, in addition to any underwriter, may be deemed to be an
underwriter within the meaning of the Securities Act, and any discounts or
commissions they receive from us and any profit on the resale of the offered
securities by them may be treated as underwriting discounts and commissions
under the Securities Act. The terms of the offering of the securities with
respect to which this prospectus is being delivered will be set forth in the
applicable prospectus supplement and will include:
-
the name or names of any
underwriters, dealers, or agents;
-
the purchase price of such
securities and the proceeds to us from such sale;
-
any underwriting discounts, agency
fees, and other items constituting underwriters’ or agents’
compensation;
-
the public offering
price;
-
any discounts or concessions that
may be allowed or reallowed or paid to dealers and any securities exchanges on
which the securities may be listed; and
-
the securities exchange on which
the securities may be listed, if any.
If underwriters are used in the sale of securities, such securities will
be acquired by the underwriters for their own account and may be resold from
time to time in one or more transactions, including negotiated transactions, at
a fixed public offering price or at varying prices determined at the time of
sale.
The securities may be offered to the public
either through underwriting syndicates represented by managing underwriters or
directly by one or more underwriters acting alone. Unless otherwise set forth in
the applicable prospectus supplement, the obligations of the underwriters to
purchase the securities described in the applicable prospectus supplement will
be subject to certain conditions precedent. Further, unless otherwise so stated,
the underwriters will be obligated to purchase all such securities if any are so
purchased by them. Any public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
The securities may be sold directly by us or through agents designated by
us from time to time. Any agents involved in the offer or sale of the securities
in respect of which this prospectus is being delivered, and any commissions
payable by us to such agents, will be set forth in the applicable prospectus
supplement. Unless otherwise indicated in the applicable prospectus supplement,
any such agent will be acting on a best-efforts basis for the period of its
appointment.
If dealers are used in the sale of any securities, we will sell the
securities to the dealers as principals. Any dealer may resell the securities to
the public at varying prices to be determined by the dealer at the time of
resale. The name of any dealer and the terms of the transaction will be set
forth in the prospectus supplement with respect to the securities being offered.
14
Securities may also be offered and sold, if so indicated in the
applicable prospectus supplement, in connection with a remarketing upon their
purchase in accordance with a redemption or repayment pursuant to their terms or
otherwise by one or more firms, which we refer to herein as the "remarketing
firms," acting as principals for their own accounts or as our agents, as
applicable. Any remarketing firm will be identified and the terms of its
agreement, if any, with us and its compensation will be described in the
applicable prospectus supplement.
Remarketing firms may be deemed to be underwriters, as that term is
defined in the Securities Act, in connection with the securities remarketed
thereby.
If so indicated in the applicable prospectus supplement, we will
authorize agents, underwriters, or dealers to solicit offers by certain
specified institutions to purchase the securities to which this prospectus and
the applicable prospectus supplement relates from us at the public offering
price set forth in the applicable prospectus supplement, plus, if applicable,
accrued interest pursuant to delayed delivery contracts providing for payment
and delivery on a specified date in the future. Such contracts will be subject
only to those conditions set forth in the applicable prospectus supplement. We
will provide in the applicable prospectus supplement any compensation we will
pay to underwriters, dealers or agents in connection with the offering of the
securities, and any discounts, concessions or commissions allowed by
underwriters to participating dealers. In compliance with guidelines of the
Financial Industry Regulatory Authority, or FINRA, the maximum consideration or
discount to be received by any FINRA member or independent broker dealer may not
exceed 8% of the aggregate amount of the securities offered pursuant to this
prospectus and any applicable prospectus supplement. Underwriters, dealers and
agents participating in the distribution of the securities may be deemed to be
underwriters within the meaning of the Securities Act, and any discounts and
commissions received by them and any profit realized by them on resale of the
securities may be deemed to be underwriting discounts and
commissions.
Underwriters will not be obligated to make a market in any securities. We
can give no assurance regarding the activity of trading in, or liquidity of, any
securities.
Agents, dealers, underwriters, and remarketing firms may be entitled
under agreements entered into with us to indemnification by us, as applicable,
against certain civil liabilities, including liabilities under the Securities
Act, or to contribution to payments they may be required to make in respect
thereof. Agents, dealers, underwriters, and remarketing firms may be customers
of, engage in transactions with, or perform services for us in the ordinary
course of business.
Each series of securities will be a new issue and other than the common
stock, which is listed on the AMEX, will have no established trading market. We
may elect to list any series of securities on an exchange, and in the case of
the common stock, on any additional exchange, but unless otherwise specified in
the applicable prospectus supplement, we shall not be obligated to do so. Any
underwriters to whom securities are sold for public offering and sale may make a
market in the securities, but the underwriters will not be obligated to do so
and may discontinue any market making at any time without notice. The securities
may or may not be listed on a national securities exchange or a foreign
securities exchange. No assurance can be given as to the liquidity of the
trading market for any of the securities.
The place, time of delivery, and other terms of the offered securities
will be described in the applicable prospectus supplement.
LEGAL MATTERS
Ice Miller LLP, Indianapolis, Indiana, will pass upon the validity of any
securities that we offer pursuant to this prospectus. If the securities are
being distributed in an underwritten offering, certain legal matters will be
passed upon for the underwriters by counsel identified in the applicable
prospectus supplement.
15
EXPERTS
The financial statements and schedules as of March 31, 2010 and 2009 and
for each of the three years in the period ended March 31, 2010 and management’s
assessment of the effectiveness of internal control over financial reporting as
of March 31, 2010 incorporated by reference in this Prospectus have been so
incorporated in reliance on the reports of BDO Seidman, LLP, an independent
registered public accounting firm, incorporated herein by reference, given on
the authority of said firm as experts in auditing and accounting.
INFORMATION INCORPORATED BY
REFERENCE
The SEC allows us to "incorporate by reference" certain of our publicly
filed documents into this prospectus, which means that information included in
those documents is considered part of this prospectus. The information relating
to Arcadia Resources, Inc., contained in this prospectus and the accompanying
prospectus supplement is not comprehensive, and you should read it together with
the information contained in the incorporated documents.
Information that we file with the SEC after the date of this prospectus
will automatically update and supersede the information in this prospectus. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act
(other than, in each case, documents or information therein deemed to have been
furnished and not filed in accordance with SEC rules)until the termination of
the offering of the securities covered by this prospectus.
-
our Annual Report on Form 10-K for
the year ended March 31, 2010;
-
the information specifically
incorporated by reference into our Annual Report on Form 10-K for the fiscal
year ended March 31, 2010 from our definitive proxy statement on Schedule 14A
for our 2010 Annual Meeting of Stockholders, filed with the SEC on June 28,
2010; and
-
the description of our common
stock contained in our Form 8-A filed with the SEC on June 30, 2006, including
any amendment or report filed for the purpose of updating that
description.
We will provide without charge to any person to whom this prospectus is
delivered, on the written or oral request of such person, a copy of any or all
of the foregoing documents incorporated by reference, excluding exhibits, unless
we have specifically incorporated an exhibit in the incorporated document.
Written requests should be directed to: Arcadia Resources, Inc., 9320 Priority
Way West Drive, Indianapolis, Indiana 46240, Attention: Corporate Secretary,
(317) 569-8234.
Any statement contained herein, or
in a document all or a portion of which is 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 other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of the
registration statement or this prospectus.
WHERE YOU CAN FIND MORE
INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
SEC’s website at www.sec.gov. You may also read and copy any document we file at
the SEC’s public reference room at 100 F. Street, N.E., Washington, D.C. 20549.
Please call the SEC at (800) SEC-0330 for further information on the operating
rules, copy charges and procedures for the public reference room.
We have filed with the SEC a registration statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the securities offered hereby. This
prospectus does not contain all of the information contained in the Registration
Statement. Copies of the Registration Statement and the exhibits thereto are on
file at the offices of the SEC and may be obtained upon payment of a prescribed
fee or may be examined without charge at the SEC’s public reference facility in
Washington, D.C. or copied without charge from its website.
16
Our SEC filings, including our annual reports on Form 10-K, quarterly
reports on Form 10-Q, and current reports on Form 8-K and any amendments to
those reports are available to the public at no cost over the Internet through
our website, www.arcadiahealthcare.com. Information on our website is not
incorporated by reference in this prospectus. Access to those electronic filings
is available as soon as practical after filing with the SEC. You may also
request a copy of those filings, excluding exhibits, at no cost by writing or
telephoning our principal executive office, which is: Arcadia Resources, Inc.,
9320 Priority Way West Drive, Indianapolis, Indiana 46240, Attention: Corporate
Secretary, (317) 569-8234
17
[Back Cover]
PROSPECTUS
$25,000,000
Common Stock
Preferred Stock
Warrants
Senior Debt Securities
Subordinated Debt
Securities
18
PART II
INFORMATION NOT REQUIRED IN
PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution.
We will pay all expenses incident to the offering and sale to the public
of the securities being registered other than any commissions and discounts of
underwriters, dealers, or agents and any transfer taxes. Such expenses are set
forth in the following table:
Securities and Exchange Commission
filing fee*
|
|
$
|
1,782.50
|
Printing expenses
|
|
$
|
5,000
|
Legal fees and expenses
|
|
$
|
17,000
|
Accounting fees and expenses
|
|
$
|
5,000
|
Stock exchange listing fees
|
|
$
|
10,000
|
Fees of
trustee, registrar and transfer agent
|
|
$
|
5,000
|
Miscellaneous expenses
|
|
$
|
6,217.50
|
Total
|
|
$
|
50,000
|
____________________
*
|
Actual expenses; all other expenses are
estimates.
|
Item 15. Indemnification of Directors and
Officers.
Under Section 78.7502 of the Nevada Revised Statutes, we have broad
powers to indemnify our directors and officers against liabilities they may
incur in such capacities, including liabilities under the Securities Act. Our
Amended and Restated Articles of Incorporation provide that no director or
officer of our Company shall be personally liable to our Company or any of our
security holders for damages for breach of fiduciary duty as a director or
officer involving any act or omission of any such director or officer provided,
however, that the foregoing provision shall not eliminate or limit the liability
of a director or officer for acts or omissions which involve intentional
misconduct, fraud or a knowing violation of law, or the payment of dividends in
violation of Section 78.300 of the Nevada Revised Statutes. The Articles further
provide that any repeal or modification of the articles shall be prospective
only, and shall not adversely affect any limitation on the personal liability of
a director or officer of our Company for acts or omissions prior to such repeal
or modification. These provisions do not eliminate the directors’ duty of care
and, in appropriate circumstances, equitable remedies such as injunctive or
other forms of non-monetary relief will remain available under Nevada law. In
addition, each director will continue to be subject to liability for breach of
the director’s duty of loyalty to us for acts or omissions not in good faith or
involving intentional misconduct, for knowing violations of law, for any
transaction from which the director derived an improper personal benefit, and
for payment of dividends or approval of stock repurchases or redemptions that
are unlawful under Nevada law. The provision also does not affect a director’s
responsibilities under any other laws, such as the federal securities laws or
state or federal environmental laws.
Our Amended and Restated
Bylaws require us to indemnify, to the fullest extent permitted by Nevada law,
each current, future or former director, officer, agent and employee, of our
company, each person who serves or has served at our request as a director,
officer, agent or employee of another corporation or other business enterprise,
and their respective heirs, executors, administrators and personal
representatives against all expenses actually and reasonably incurred by, or
imposed upon, any of them in connection with the defense of any claim, action,
suit or proceeding, civil or criminal, against them by reason of their being or
having been such director, officer, agent or employee, except that we are not
required to indemnify any such person in relation to any such matter as to which
he or she shall be adjudged by a court of competent jurisdiction after
exhaustion of all appeals therefrom in such action, suit or proceedings to be
liable for gross negligence or willful misconduct in the performance of duty.
For purposes of the Bylaws, "expenses" includes, but is not limited to, all
expenses, costs, attorneys' fees,
II-1
judgments
(including adjudications other than on the merits), fines, penalties,
arbitration awards, costs of arbitration and sums paid out and liabilities
actually and reasonably incurred or imposed in connection with any suit, claim,
action or proceeding, and any settlement or compromise thereof approved by the
Board of Directors as being in the best interests of our company. If there is
not a disinterested majority of the Board of Directors, the indemnification
shall be made only if we receive a written opinion of counsel to the effect that
(a) the officer, director, agent or employee was not adjudged or found liable
for gross negligence or willful misconduct in the performance of duty in such
capacity or the indemnification provided is only in connection with such matters
as to which the person to be indemnified was not so liable, and in the case of
settlement or compromise, the same is in the best interests of our company, and
(b) indemnification under the circumstances is lawful and falls within the
provisions of the Bylaws. In that event, we may only provide indemnification in
the amount that counsel advises in writing is, in counsel's opinion,
proper.
We may advance expenses incurred in defending
any action, suit or proceeding if we receive an undertaking from the party to
whom the advance is made to repay the advanced amount unless it is ultimately
determined that he or she is entitled to be indemnified in accordance with the
Bylaws. The indemnification provided by the Bylaws is not exclusive of any other
rights to which the indemnified persons may be entitled under any agreement,
vote of stockholders or disinterested directors or otherwise, or by law or
statute and continues as to any person who has ceased to be a director, officer,
agent or employee.
We maintain a policy of directors’ and
officers’ liability insurance that insures our directors and officers against
the costs of defense, settlement or payment of a judgment under some
circumstances.
Insofar as indemnification for liabilities
arising under the Securities Act of 1933, as amended, may be permitted to our
directors, officers, and controlling persons pursuant to the foregoing
provisions or otherwise, we have been advised that in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. (See
"Item 17. Undertakings.")
Item 16. Exhibits
The
information set forth in the Index to Exhibits is incorporated herein by
reference in response to this item. Following documents are included as exhibits
to this Registration Statement, pursuant to Item 601 of Regulation
S-K:
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 the registration
statement:
(i) to
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
II-2
(iii) to include any material information with
respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the registration
statement.
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of 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.
(4) That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of and included in
the registration statement; and
(ii) Each prospectus required to be filed
pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be
part of and included in the registration statement as of the earlier of the date
such form of prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be
a new effective date of the registration statement relating to the securities in
the registration statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective date,
supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such
document immediately prior to such effective date.
(5) That, for the purpose of determining
liability of the registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any preliminary prospectus or prospectus
of the undersigned registrant relating to the offering required to be filed
pursuant to Rule 424;
(ii) Any free writing prospectus relating to
the offering prepared by or on behalf of the undersigned registrant or used or
referred to by the undersigned registrant;
II-3
(iii) The portion of any other free writing
prospectus relating to the offering containing material information about the
undersigned registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv)
Any other
communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(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 Exchange Act
(and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) 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 SEC 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-4
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Indianapolis, state of Indiana, on July 13,
2010.
ARCADIA RESOURCES,
INC.
|
|
By:
|
/s/ Marvin
Richardson
|
|
|
Marvin R. Richardson
|
|
President and Chief Executive
Officer
|
POWER OF ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Marvin R. Richardson and Matthew R. Middendorf, his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement on Form S-3, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the SEC,
granting unto said attorney-in-fact and agent, 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
agent, or his substitutes or substitute, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the
requirements of the Securities Act of 1933, as amended, this registration
statement has been signed below by the following persons in the capacities
indicated on July 13, 2010:
/s/ Marvin
Richardson
|
|
President and Chief Executive Officer (Principal
|
|
July 13, 2010
|
Marvin R. Richardson
|
|
Executive Officer), and Director
|
|
|
|
|
|
|
|
/s/ Matthew
Middendorf
|
|
Chief Financial Officer (Principal Financial and
|
|
July 13, 2010
|
Matthew R. Middendorf
|
|
Accounting Officer), Treasurer
|
|
|
|
|
|
|
|
/s/ John
Thornton
|
|
Director
|
|
July 13, 2010
|
John T. Thornton
|
|
|
|
|
|
|
|
|
|
/s/ Peter
Brusca
|
|
Director
|
|
July 13, 2010
|
Peter A. Brusca, M.D.
|
|
|
|
|
|
|
|
|
|
/s/ Joseph
Mauriello
|
|
Director
|
|
July 13, 2010
|
Joseph Mauriello
|
|
|
|
|
|
|
|
|
|
/s/ Daniel
Eisenstadt
|
|
Director
|
|
July 13, 2010
|
Daniel Eisenstadt
|
|
|
|
|
II-5
INDEX TO EXHIBITS
1.01*
|
|
Form of Underwriting
Agreement
|
4.1
|
|
Amended and Restated Articles of
Incorporation (incorporated by reference to Exhibit 3.1 of Form 8-K filed
November 9, 2009)
|
4.2
|
|
Amended and Restated Bylaws of Arcadia
Resources, Inc. (incorporated by reference to Exhibit 3.2 of Form 10-Q
filed on November 6, 2008)
|
4.3*
|
|
Specimen stock certificate
|
4.4*
|
|
Form of Certificate of Designation of
one or more series of Preferred Stock
|
4.5*
|
|
Form of Warrant
|
4.6*
|
|
Form of Indenture
|
5.1
|
|
Opinion of Ice Miller LLP
|
12.1*
|
|
Statement Regarding the Computation of
Ratios
|
23.1
|
|
Consent of BDO USA, LLP (formerly BDO
Seidman, LLP), independent registered public accounting firm
|
23.2
|
|
Consent of Ice Miller LLP (contained in
the opinion filed as Exhibit 5.1)
|
24.1
|
|
Power of Attorney (included on the
signature page)
|
25.1*
|
|
Form T-1 Statement of Eligibility under
the Trust Indenture Act of 1939, as amended, of Trustee under the
Indenture. To be filed pursuant to Section 305(b)(2) of the Trust
Indenture Act of 1939.
|
____________________
*
|
To be filed, if applicable,
subsequent to the effectiveness of this Registration Statement by an
amendment to the Registration Statement or incorporated by reference
pursuant to a current report on Form 8-K in connection with the offering
of securities.
|
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