As
filed with the Securities and Exchange Commission on September 21, 2007
Registration No. 333-144996
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PENFORD CORPORATION
(Exact Name of Registrant as Specified in its Charter)
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Washington
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91-1221360
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(State or Other Jurisdiction of Incorporation or
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(I.R.S. Employer Identification Number)
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Organization)
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7094 S. Revere Parkway
Centennial, Colorado 80112-3932
(303) 649-1900
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Christopher L. Lawlor
Vice PresidentHuman Resources, General Counsel and Secretary
Penford Corporation
7094 S. Revere Parkway
Centennial, Colorado 80112-3932
(303) 649-1900
(Name, address, including zip code, and telephone number, including area code of agent for service)
With Copies to:
John R. Thomas
Perkins Coie LLP
1120 N.W. Couch, Tenth Floor
Portland, Oregon 97209
(503) 727-2000
Approximate date of commencement of proposed sale to the public:
From time to time after this registration statement becomes effective.
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
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 Commission, acting pursuant to said Section
8(a)
, may
determine.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the fees and expenses, other than discounts, commissions and
concessions payable to broker-dealers and agents, in connection with the offering and distribution
of the securities being registered. All amounts are estimates, except the SEC registration fee. All
of these fees and expenses will be borne by the registrant.
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Amount
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to be Paid
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SEC registration fee
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$
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3,070
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Printing fees
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$
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30,000
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Legal fees and expenses
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$
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300,000
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Accounting fees and expenses
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$
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150,000
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Trustees and Transfer Agents fees and expenses
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$
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20,000
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Miscellaneous
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$
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96,930
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Total
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$
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600,000
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The following summary is qualified in its entirety by reference to the complete text of any
statutes referred to below and our articles of incorporation and bylaws.
We are a Washington corporation. Sections 23B.08.500 through 23B.08.600 of the Washington
Business Corporation Act (or the WBCA) authorize a court to award, or a corporations board of
directors to grant, indemnification to directors and officers on terms sufficiently broad to permit
indemnification under certain circumstances for liabilities arising under the Securities Act of
1933, as amended. Section 23B.08.320 of the WBCA authorizes a corporation to eliminate or limit a
directors personal liability to the corporation or its shareholders for monetary damages for
conduct as a director, except in certain circumstances involving acts or omissions that involve
intentional misconduct by a director or a knowing violation of law by a director, the approval of
distributions illegal under Washington law or any transaction from which the director will
personally receive a benefit in money, property or services to which the director is not legally
entitled.
Article XIV of the Articles of Incorporation of Penford authorizes Penford to indemnify any
present or former director or officer to the fullest extent not prohibited by the WBCA, public
policy or other applicable law. We may also indemnify our directors and officers against liability
they may incur for serving in those capacities pursuant to a liability insurance policy we maintain
for this purpose.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers or controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been informed that in the opinion of the Securities
and Exchange Commission this type of indemnification is against public policy as expressed in the
Securities Act of 1933, and is, therefore unenforceable.
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ITEM 16. EXHIBITS
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EXHIBIT
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NUMBER
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DESCRIPTION OF DOCUMENT
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1.1
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Form of Underwriting Agreement*
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3.1
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Articles of Incorporation of the Registrant, as amended (incorporated by reference to
Exhibit 3.1 to the Registrants Form 10-K for the fiscal year ended August 31, 2006).
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3.2
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Bylaws of the Registrant, as amended, restated as of October 28, 2005 (incorporated by
reference to Exhibit 3.3 to the Registrants Form 10-K for the fiscal year ended August 31,
2005).
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3.3
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Section 3.2 of the Registrants Amended and Restated Bylaws (incorporated by reference to
Exhibit 3.1 to the Registrants Form 8-K filed November 3, 2005).
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3.4
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Amendment to Articles of Incorporation creating Preferred Stock.*
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4.1
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Form of Indenture.
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5.1
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Opinion of Perkins Coie LLP with respect to the legality of the securities being registered.
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12.1
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Statement on the Computation of Ratio of Earnings to Fixed Charges
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23.1
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Consent of Ernst & Young LLP
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23.2
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Consent of Perkins Coie LLP (contained in Exhibit 5.1).
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24.1
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Power of Attorney
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25.1
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Form T-1 Statement of Eligibility of the trustee for the debt securities.*
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*
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To the extent applicable, to be filed by amendment or as
an exhibit to a document filed under the Securities
Exchange Act of 1934, as amended, and incorporated by
reference herein.
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Previously filed.
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ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in the 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 Securities and Exchange Commission 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
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registration statement; and
(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 (i) and (ii) above 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 Securities and Exchange Commission by the registrant pursuant to Section 13 and
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;
(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
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(iv) Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrants annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans 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 the securities at that time shall be deemed
to be the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers or controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been informed that in the opinion of the Securities
and Exchange Commission this type of indemnification is against public policy as expressed in the
Securities Act of 1933, 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 Securities and Exchange Act and will be governed by the final adjudication of
such issue.
(8) The undersigned registrant hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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,
thereunder duly authorized, in the City of Centennial, State of
Colorado, on September 21, 2007.
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PENFORD CORPORATION
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By:
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/s/ Steven O. Cordier
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Steven O. Cordier
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Senior Vice President and Chief Financial Officer
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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 Company and in the capacities indicated
below on the 21
st
day of September, 2007.
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Signature
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Title
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/s/ Thomas D. Malkoski
Thomas D. Malkoski
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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/s/ Steven O. Cordier
Steven O. Cordier
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Senior Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
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/s/ Paul H. Hatfield*
Paul H. Hatfield
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Chairman of the Board of Directors
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/s/ William E. Buchholz*
William E. Buchholz
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Director
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/s/ Jeffrey T. Cook*
Jeffrey T. Cook
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Director
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/s/ / R. Randolph Devening*
R. Randolph Devening
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Director
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/s/ John C. Hunter III*
John C. Hunter III
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Director
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/s/ Sally G. Narodick*
Sally G. Narodick
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Director
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/s/ James E. Warjone*
James E. Warjone
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Director
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/s/ Steven O. Cordier
Steven O. Cordier, Attorney-in-Fact
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Director
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II-5
EXHIBIT INDEX
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EXHIBIT
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NUMBER
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DESCRIPTION OF DOCUMENT
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1.1
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Form of Underwriting Agreement*
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3.1
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Articles of Incorporation of the Registrant, as amended (incorporated by reference to
Exhibit 3.1 to the Registrants Form 10-K for the fiscal year ended August 31, 2006).
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3.2
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Bylaws of the Registrant, as amended, restated as of October 28, 2005 (incorporated by
reference to Exhibit 3.3 to the Registrants Form 10-K for the fiscal year ended August 31,
2005).
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3.3
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Section 3.2 of the Registrants Amended and Restated Bylaws (incorporated by reference to
Exhibit 3.1 to the Registrants Form 8-K filed November 3, 2005).
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3.4
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Amendment to Articles of Incorporation creating Preferred Stock.*
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4.1
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Form of Indenture.
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5.1
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Opinion of Perkins Coie LLP with respect to the legality of the securities being registered.
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12.1
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Statement on the Computation of Ratio of Earnings to Fixed Charges
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23.1
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Consent of Ernst & Young LLP
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23.2
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Consent of Perkins Coie LLP (contained in Exhibit 5.1).
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24.1
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Power of Attorney
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25.1
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Form T-1 Statement of Eligibility of the trustee for the debt securities.*
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*
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To the extent applicable, to be filed by amendment or as
an exhibit to a document filed under the Securities
Exchange Act of 1934, as amended, and incorporated by
reference herein.
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Previously filed.
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II-6