UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 1)
Cytec Industries Inc.
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(Name of Issuer)
Common Stock, $.01 par value
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(Title of Class of Securities)
232820 10 0
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(CUSIP Number)
LOUIS L. HOYNES, JR., ESQ.
Senior Vice President and General Counsel
American Home Products Corporation
5 Giralda Farms, Madison, N.J. 07940
(201) 660-5000
-------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
August 17, 1995
-------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
Check the following box if a fee is being paid with the statement [ ].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are
to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE>
CUSIP No. 232820 10 0
1. NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
American Home Products Corporation ("Parent")
Tax I.D. 13-2526821
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) N/A
(b)
3. SEC USE ONLY
4. SOURCE OF FUNDS*
N/A
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
[ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7. SOLE VOTING POWER
-0- (assuming completion of Second Closing, as defined herein)
8. SHARED VOTING POWER
27,744 (see Item 5)
9. SOLE DISPOSITIVE POWER
-0-
10. SHARED DISPOSITIVE POWER
27,744
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
27,744
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.21% (based on the representations made by Issuer in the
Repurchase Agreement (as defined herein))
14. TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
The Statement on Schedule 13D (the "Original Statement"), dated December
1, 1994, for the event which occurred on November 21, 1994, filed by American
Home Products Corporation, a Delaware corporation ("Parent"), and on behalf of
AC Acquisition Corp., a Delaware corporation ("AC Acquisition") is hereby
amended by this Amendment, dated August 21, 1995, to report the event which
occurred on August 17, 1995 and to reflect certain changes in the information
previously filed relating to the outstanding Common Stock, $.01 par value (the
"Common Stock") of Cytec Industries Inc., a Delaware corporation ("Cytec"),
which has its principal executive offices at Five Garret Mountain Plaza, West
Paterson, New Jersey 07424.
The entire Statement on Schedule 13D is hereby amended by deleting all
references to AC Acquisition Corp., which has been merged with and into
American Cyanamid Company ("ACY") pursuant to the Agreement and Plan of
Merger, dated August 17, 1994, as amended, among Parent, AC Acquisition Corp.
and American Cyanamid Company, and no longer has separate existence.
Item 4 is hereby amended to add the following language after the second
paragraph of Item 4 in the Original Statement:
Proceeds from the sale of the securities described in Item 5 below will
be used to repay outstanding commercial paper.
Item 5 is hereby amended to add the following language after the first
paragraph of Item 5 in the Original Statement:
On August 17, 1995, Parent, through ACY (a wholly-owned subsidiary of
Parent) and Cytec, entered into a Preferred Stock Repurchase Agreement (the
"Repurchase Agreement") a copy of which is attached hereto as Exhibit V and is
hereby incorporated herein by reference. The transactions contemplated by the
Repurchase Agreement are to be consummated in two transactions:
Pursuant to the Repurchase Agreement, within 10 business days of August
17, 1995 unless extended, Parent will sell to Cytec 3,820,895 shares of
Cytec's Series A Cumulative Adjustable Preferred Stock at a price of
approximately $23.55 per share (the "First Closing"), subject to certain
conditions set forth in the Repurchase Agreement. Through the date of the
First Closing, Parent will receive a total of $90 million plus accrued and
unpaid dividends.
At a subsequent closing (the "Second Closing"), Parent will sell to
Cytec 4,175,105 shares of Cytec's Series B Cumulative Convertible Preferred
Stock in consideration for the payment by Cytec the sum of (i)
$113,804,723.80, (ii) an amount equal to the proceeds (after deducting a
portion of the underwriting fees and commissions) of a proposed public
offering by Cytec of 3,550,000 shares of Common Stock, which represents the
number of shares of Common Stock into which 2,668,862 shares of Series B
Preferred Stock are convertible, but not less than $140,100,000 (the
equivalent of $42 per share), and (iii) accrued and unpaid dividends through
the date of the Second Closing. The purchase and sale of the Series B
Preferred Stock under the Repurchase Agreement is subject to certain
conditions, including the availability to Cytec of bank financing for a
portion of the purchase price and the completion of the proposed public
offering by Cytec at a price of not less than $42 per share.
In addition, if during the two-year period following the Second Closing
a person announces an offer to purchase more than 50% of Cytec's Common Stock,
and such offer is subsequently consummated, Cytec will pay to ACY an amount of
the acquisition premium on up to approximately 2 million shares of common
stock, as more fully described in the Repurchase Agreement.
Parent and Cyanamid have agreed, for the two-year period set forth
above, (i) not to take any action, directly or indirectly, having the purpose
of inducing any person to seek to acquire Cytec, and (ii) to reject any
requests for waivers, consents or approvals in connection with an offer, or
possible offer, to acquire Cytec (including with respect to the Series C
Cumulative Preferred Stock).
Parent continues to hold 4,000 shares of Cytec's Series C Preferred
Stock which is not convertible to Common Stock. In addition, Parent, through
Lederle Pipercillin, Inc., an indirect wholly owned subsidiary of ACY, owns
27,744 shares of Common Stock which represents 0.21% of the outstanding Common
Stock. Parent's beneficial ownership decreased below 5% on August 17, 1995.
Item 7 is hereby amended to add the following language at the end of
Item 7 in the Original Statement:
Exhibit V Preferred Stock Repurchase Agreement by and between
Parent and Cytec, dated as of August 17, 1995.
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: August 21, 1995
AMERICAN HOME PRODUCTS CORPORATION
By: /s/ Robert G. Blount
Robert G. Blount
Executive Vice President
<PAGE>
Executive Officers and Directors of
American Home Products Corporation
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The names and titles of the executive officers and the names
of the directors of American Home Products Corporation ("AHP")
and their business addresses and principal occupations are set
forth below. If no address is given, the director's or executive
officer's business address is that of AHP. Unless otherwise
indicated, each occupation set forth opposite an individuals name
refers to AHP and each individual is a United States citizen.
EXECUTIVE OFFICERS Position; Present Principal Occupation
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John R. Stafford Chairman, President and Chief
Executive Officer
Robert G. Blount Executive Vice President
Stanley F. Barshay Senior Vice President
Joseph J. Carr Senior Vice President
Fred Hassan Senior Vice President
Louis L. Hoynes, Jr. Senior Vice President and
General Counsel
John R. Considine Vice President - Finance
Paul J. Jones Vice President and Comptroller
Rene R. Lewin Vice President - Human Resources
E. Thomas Corcoran Vice President
Thomas M. Nee Vice President - Taxes
David Lilley Vice President (British Citizen)
William J. Murray Vice President
DIRECTORS Position; Present Principal Occupation
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Clifford L. Alexander, Jr. President of Alexander & Associates,
400 C Street, NE Inc.(consulting firm specializing in
Washington, D.C. 20002 Workforce Inclusiveness)
Frank A. Bennack, Jr. President and Chief Executive Officer
The Hearst Corporation of The Hearst Corporation
959 Eighth Avenue (owns and operates communications
New York, New York 10019 media)
Robert G. Blount (as described above)
Robin Chandler Duke National Chair, Population
Action International
John D. Feerick Dean, Fordham University
Fordham University School of Law since 1982
School of Law
140 West 62nd Street
New York, New York 10023
Fred Hassan (as described above)
John P. Mascotte Chairman and Chief Executive Officer of The
Continental Corporation
Mary Lake Polan, M.D. Chairman and Professor, Department of Obstetrics
and Gynocology Stanford University School of
Medicine
John R. Stafford (as described above)
John R. Torell III Chairman, Torell Management Inc.
Torell Management Inc. (financial advisory company)
767 Fifth Avenue
46th Floor
New York, New York 10153
William Wrigley President, Chief Executive Officer and
Wm. Wrigley, Jr. Company member of the Board, Wm. Wrigley Jr.
410 North Michigan Avenue Company (international manufacturer of
Chicago, Illinois 60611 chewing gum products)
<PAGE>
Exhibit Index
-------------
Exhibit V Preferred Stock Repurchase Agreement by and between Parent
and Cytec, dated July 27, 1995.
PREFERRED STOCK REPURCHASE AGREEMENT dated as of August 17,
1995 between American Cyanamid Company, a Maine corporation and
wholly-owned subsidiary of American Home Products Corporation
("SELLER"), and Cytec Industries Inc., a Delaware corporation
("PURCHASER").
WHEREAS, when PURCHASER was spun off by SELLER on December 17,
1993, SELLER retained 3,820,895 shares of PURCHASER'S Series A
Cumulative Adjustable Preferred Stock (the "Series A Preferred"),
4,175,105 shares of PURCHASER'S Series B Cumulative Convertible
Preferred Stock (the "Series B Preferred"), and 4,000 shares of
PURCHASER'S Series C Cumulative Preferred Stock (the "Series C
Preferred"); and
WHEREAS, SELLER wishes to sell and PURCHASER wishes to
purchase all of the Series A Preferred and all of the Series B
Preferred upon the terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Purchases. Subject to the conditions set forth in Sections 4
and 5 hereof, SELLER agrees to sell and PURCHASER agrees to
purchase, the Series A Preferred and the Series B Preferred, as
follows:
(a) At the First Closing (as hereinafter defined), SELLER
will sell and PURCHASER will purchase all of the Series A
Preferred for an aggregate purchase price equal to the sum of:
(i) $90,000,000; and
(ii) accrued and unpaid dividends thereon (whether or
not declared or payable) through the date of the First
Closing.
(b) At the Second Closing (as hereinafter defined), SELLER
will sell and PURCHASER will purchase all of the Series B
Preferred for an aggregate purchase price equal to the sum of:
(i) $101,804,723.80;
(ii) the greater of (x) the net proceeds (i.e. public
offering price per share times 3,550,000 shares of Cytec
Common Stock sold in the public offering hereinafter
referred to, minus "SELLER's share of the underwriting
discounts and commissions") of such public offering of
3,550,000 shares of Cytec Common Stock or (y) $42 per
share times 3,550,000 shares of Cytec Common Stock sold
in such public offering;
(iii) $12,000,000; and
(iv) accrued and unpaid dividends thereon (whether or not
declared or payable) through the date of the Second
Closing.
As used in this agreement, the term "SELLER's share of the
underwriting discounts and commissions" means the per share
underwriting discounts and commissions on the public offering of
3,550,000 shares of Common Stock, up to total underwriting
discounts and commissions equal to the lesser of (x) one and three
quarters percent of the public offering price of such shares and
(y) one half of the total underwriting discounts and commissions.
2. Representation and Warranties
(a) Each party represents and warrants to the other as
follows:
(i) this Agreement has been duly authorized, executed and
delivered by such party and constitutes a legal, valid
and binding agreement of such party;
(ii) such party is a corporation duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its incorporation and has the requisite
corporate power and authority and any necessary
governmental approvals to own, lease and operate its
properties and to carry on its business as it is now
being conducted, except where the failure to be so
organized, existing and in good standing or to have such
power, authority and governmental approvals would not,
individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect (as defined below);
such party is duly qualified or licensed as a foreign
corporation to do business, and is in good standing, in
each jurisdiction where the character of its properties
owned, leased or operated by it or the nature of its
activities make such qualification or licensing
necessary, except for such failures to be so duly
qualified or licensed and in good standing which would
not, individually or in the aggregate, reasonably be
expected to either have a Material Adverse Effect or
prevent the consummation of the transactions contemplated
hereby (as used in this sentence, the term "Material
Adverse Effect" means any change or effect that is or is
reasonably likely to be materially adverse to the
business, assets, financial condition or results of
operations of such party and its subsidiaries taken as a
whole);
(iii) the execution and delivery of this Agreement, and
the performance hereof, does not constitute a violation
of, or a default under, the certificate of incorporation
or by-laws of such party or under any indenture, trust,
credit agreement, mortgage, preferred stock series or
other material agreement by which such party or its
properties is bound or affected, or conflict with or
violate any law, rule, regulation, order, judgment or
decree applicable to it or by which any of its properties
are bound or affected;
(iv) such party has all necessary corporate power and
authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the
transactions contemplated hereby;
(v) the execution, delivery and performance of
this Agreement by such party does not and will
not require any consent, approval,
authorization or permit of, action by, filing
with, or notification to, any governmental or
regulatory authority, domestic or foreign,
except in connection with the public offering
and amendments to the certificates of
designation, preferences and rights hereinafter
referred to; and
(vi) No broker, finder, or investment banker is entitled
to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this
Agreement based upon arrangements made by and on behalf
of such party; provided that no representation is made
regarding the compensation to the underwriters arising
out of the public offering specified in Section 7 hereof.
(b) SELLER represents and warrants to the PURCHASER that it
has a good and lawful right to sell the Series A Preferred and
the Series B Preferred to PURCHASER as provided herein, and
that such sale, when made hereunder, shall be free and clear
of all liens, claims, encumbrances and other rights of third
parties.
(c) PURCHASER represents and warrants to SELLER as follows:
(i) The authorized capital stock of PURCHASER consists of
75,000,000 shares of Common Stock and 20,000,000 shares
of Preferred Stock, par value $0.01 per share. As of
March 31, 1995, (a) 13,164,045 shares of PURCHASER's
Common Stock were issued and outstanding, all of which
were validly issued, fully paid and nonassessable and
were issued free of preemptive (or similar) rights, (b)
6,917 shares of such Common Stock were held in the
treasury, (c) an aggregate of 3,989,647 shares of such
Common Stock were reserved for issuance and issuable upon
or otherwise deliverable under the PURCHASER's 1993 Stock
Award and Incentive Plan and (d) 8,000,000 shares of
PURCHASER's preferred stock were issued and outstanding,
all of which were validly issued, fully paid and non-
assessable. Since March 31, 1995, no shares of such
Common Stock or Preferred Stock have been issued except
for issuances of Common Stock upon exercise of stock
options or as "performance stock" under such plan.
(ii) PURCHASER has filed all forms, reports and documents
required to be filed with the Securities and Exchange
Commission since December 17, 1993, each of which has
complied in all material respects with the applicable
requirements of the Securities Act of 1933, as amended,
and the Securities Exchange Act of 1934, as amended, each
as in effect on the date so filed. None of such forms,
reports or documents (including but not limited to any
financial statements or schedules included or
incorporated by reference therein) contained, when filed,
or contains any untrue statement of a material fact or
omitted when filed or omits to state a material fact
required to be stated or incorporated by reference
therein or necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading.
(iii) PURCHASER is not in default or violation of the
financial covenants contained in the Series C Preferred
(or of the corresponding financial covenants contained in
Section 6.12 of the Transfer and Distribution Agreement
dated December 17, 1993).
(iv) As of the date hereof, and after giving effect, on a
pro forma basis, to the (i) repurchase of the Series A
Preferred and the Series B Preferred, (ii) the incurrence
of Debt for the purpose of making such repurchases, and
(iii) to the issuance in the public offering referred to
in Section 7 of at least 3,550,000 shares of Common
Stock, each as provided herein, Cytec's "Debt" will not
(as of either the First Closing or the Second Closing)
exceed its "Equity" (as "Debt" and "Equity" are defined
in the Certificate of Designation, Preferences and Rights
relating to the Series C Preferred).
(v) As of the date hereof, the Series B Preferred is
convertible into 5,553,537 shares of Common Stock at a
conversion price of $18.7948 per share; provided that a
change in the conversion price prior to the Second
Closing shall not constitute a breach of this
representation so long as PURCHASER makes an appropriate
adjustment in the number of shares specified in Section
1(b)(ii) which are required in Section 7 to be sold in
the public offering so as to adjust fully for any
reduction in or adverse effects on the net proceeds
payable to SELLER.
(d) The foregoing representations and warranties shall be
true as of the date hereof and as of each Closing; provided,
however that as to PURCHASER, the representation set forth in
subparagraph (a)(i) only need be true as of the date of each
Closing and; provided further that the securities filing
representation set forth in paragraph (c)(ii) of this section
shall be updated by any subsequent filings with the Securities
and Exchange Commission.
(e) There are not any representations or warranties of either
party, or of either party's directors, officers, employees or
agents, except as set forth in this Section 2 or as set forth
in the Closing certificates delivered pursuant to Section 6.
3. Closing Dates and Places
(a) Subject to satisfaction of the conditions set forth in
Sections 4(a) and 5(a) hereof, the purchase of the Series A
Preferred (the "First Closing") shall occur as promptly as
practicable after the date hereof, but in no event later than
ten business days after the date hereof; provided however that
if PURCHASER is unable to close because its banks have not yet
authorized PURCHASER to incur "redemption borrowings" of $120
million under the Amended & Restated Credit Agreement dated as
of June 1, 1995, SELLER will permit the First Closing to occur
after such ten-day period, but not beyond thirty days, so long
as PURCHASER is diligently working to obtain such
authorization, and such authorization has not been denied.
(b) Subject to the conditions set forth in Sections 4(b) and
5(b) hereof, the purchase of the Series B Preferred (the
"Second Closing") shall occur on the date on which PURCHASER
receives good funds from the public offering specified in
Section 7 hereof.
(c) Unless otherwise agreed by the parties, the First Closing
shall occur at the offices of American Home Products
Corporation, Five Giralda Farms, Madison, New Jersey 07940 and
the Second Closing shall occur at the offices of PURCHASER, 5
Garret Mountain Plaza, West Paterson, New Jersey 07424.
4. Conditions to Closing - Purchaser.
(a) The obligation of PURCHASER to consummate the First
Closing is subject to the satisfaction, on or prior to the
date of the First Closing, of the following conditions:
(i) the Board of Directors of PURCHASER shall have
approved the execution, delivery and performance of this
Agreement;
(ii) the PURCHASER'S banks shall have agreed to lend,
under the Amended & Restated Credit Agreement dated as of
June 1, 1995, up to $120 million for "redemption
borrowings" (as defined in such credit agreement) and
shall have loaned to PURCHASER $10 million for the
purchase of the Series A Preferred;
(iii) the representations and warranties of SELLER shall
be true and correct in all material respects as of the
First Closing; and
(iv) SELLER shall have delivered the stock certificates
and other Closing documents to be delivered by SELLER at
such First Closing.
(b) The obligation of PURCHASER to consummate the Second
Closing is subject to the satisfaction, on or prior to the
date of the Second Closing, of the following conditions:
(i) the First Closing shall have occurred;
(ii) PURCHASER shall have received from the underwriters
the proceeds from the issuance of at least 3,550,000
shares of its Common Stock in the public offering
referred to in Section 7 hereof, net of all underwriting
discounts and commissions;
(iii) the PURCHASER'S banks shall have agreed to lend,
under the Amended & Restated Credit Agreement dated as of
June 1, 1995, up to $120 million for "redemption
borrowings" and shall have loaned to PURCHASER, for the
purchase of the Series B Preferred, an amount equal to
$120 million minus the amount of the loan made to
PURCHASER as "redemption borrowings" for the First
Closing; and
(iv) the net proceeds per share of such public offering
shall not have been less than $42;
(v) the representations and warranties of SELLER shall be
true and correct in all material respects as of the
Closing; and
(vi) SELLER shall have delivered the stock certificates
and other Closing documents to be delivered by SELLER at
such Closing.
5. Conditions to Closing - Seller.
(a) The obligation of SELLER to consummate the First Closing
is subject to the satisfaction, on or prior to the date of the
First Closing, of the following conditions:
(i) the PURCHASER's banks shall have agreed to lend,
under the Amended & Restated Credit Agreement dated as of
June 1, 1995, up to $120 million for "redemption
borrowings";
(ii) the representations and warranties of PURCHASER set
forth herein shall be true and correct in all material
respects as of the First Closing; and
(iii) PURCHASER shall have delivered the monies and other
Closing Documents to be delivered by PURCHASER at such
Closing.
(b) The obligation of SELLER to consummate the Second Closing
is subject to the satisfaction, on or prior to the date of the
Second Closing, of the following conditions:
(i) The First Closing shall have occurred;
(ii) PURCHASER shall have received from the underwriters
the proceeds of the issuance of at least 3,550,000 shares
of its Common Stock in the public offering referred to in
Section 7, net of all underwriting discounts and
commissions;
(iii) the PURCHASER's banks shall have agreed to lend,
under the Amended & Restricted Credit Agreement dated as
of June 1, 1995, up to $120 million for "redemption
borrowings";
(iv) the representations and warranties of PURCHASER set
forth herein shall be true and correct in all material
respects as of the Second Closing; and
(v) PURCHASER shall have delivered the monies and other
Closing Documents to be delivered by PURCHASER at such
Closing.
6. Events at the Closings. At each Closing, each party will
deliver to the other Closing documents, as follows:
(a) Each party will deliver to the other:
(i) a Secretary's Certificate showing due authorization,
execution and delivery of the Agreement and the
incumbency of persons executing this Agreement and the
Closing documents;
(ii) an officer's certificate signed by a corporate vice
president of such party and attested by its Secretary to
the effect that the representations and warranties of
such party remain true as of such Closing Date; and
(iii) if a party, in its sole discretion, determines to
waive any conditions to its obligation to close, a
certificate signed by a duly authorized officer of such
party specifically waiving any specified condition or
conditions to such party's performance.
(b) PURCHASER will deliver to SELLER the portion of the
purchase price (calculated in accordance with Section 1)
payable at such Closing in immediately available funds by wire
transfer to an account of SELLER with a bank designated by
SELLER by notice to PURCHASER, such notice to be delivered no
later than two (2) business days prior to such Closing Date;
(c) SELLER will deliver to PURCHASER the share certificates
for the Series A Preferred or the Series B Preferred, as the
case may be, which are being purchased by PURCHASER at such
Closing.
7. Public Offering.
(a) Promptly after execution and delivery of this Agreement,
PURCHASER will engage one or more firms of qualified
nationally-recognized underwriters (selected by PURCHASER and
reasonably acceptable to SELLER) to serve as lead underwriters
for the purpose of conducting an underwritten public offering
of 3,550,000 shares of Cytec Industries Inc. Common Stock, par
value $.01 per share; provided that such public offering may
provide for the sale of additional shares of such Common
Stock, not to exceed however ten percent of the number of
shares specified in the forepart of this sentence.
(b) PURCHASER will use its reasonable best efforts to sell
such 3,550,000 shares in the public offering, including
entering into a firm commitment underwriting agreement in
customary form, filing a registration statement on the
appropriate form with, and meeting in all material respects
the applicable requirements of, the Securities and Exchange
Commission and the New York Stock Exchange and causing such
registration statement to become effective as promptly as
reasonably practicable under the circumstances and remain
effective throughout the offering.
(c) For purposes of this Section, SELLER confirms that each
of the underwriting firms of Goldman, Sachs & Co. and Dillon,
Read & Co., Inc. is acceptable to it as lead underwriters.
8. Miscellaneous Effects.
(a) In order to prevent PURCHASER from redeeming the Series B
Preferred prematurely by reason of the occurrence of the First
Closing and the failure to consummate the Second Closing, for
purposes of Section 5(a)(ii) of the Certificate of
Designation, Preferences and Rights relating to the Series B
Preferred, any Series A Preferred purchased by PURCHASER at
the First Closing shall be treated, for purposes of such
section only, as if it continued to be owned by SELLER until
December 16, 1999.
(b) For purposes of Section 5(a)(iv) of the Certificate of
Designation, Preferences and Rights relating to the Series C
Preferred and for the purposes of clause (z) of Section
6.12(h) of the Transfer and Distribution Agreement dated
December 17, 1993, PURCHASER's redemption rights shall be
construed, after the purchase by PURCHASER hereunder, as if
the Series A Preferred and the Series B Preferred had remained
outstanding and owned by SELLER until December 16, 1999.
(c) For purposes of the Series C Preferred and for purposes
of the financial covenants contained in Section 6.12 of the
Transfer and Distribution Agreement, the consideration paid by
PURCHASER hereunder shall not be deemed "Restricted Payments."
(d) The public offering herein referred to, including the
announcement thereof, will not give rise to any adjustment in
the conversion price of the Series B Preferred.
(e) Upon completion of the Second Closing, the terms of the
Series C Preferred will be amended to provide that (in lieu of
four quarterly dividends, each in the amount of one-fourth of
the total annual dividend) there may be paid, in arrears, a
single annual dividend payment which will equal the sum of the
four quarterly dividends.
(f) At the request of either party, the parties will agree
to, and SELLER hereby irrevocably votes in favor of and
consents to, an amendment to the Certificates of Designation,
Preferences and Rights relating to the Series B Preferred
and/or the Series C Preferred to memorialize the aforesaid
agreements; provided that PURCHASER shall not be required to
submit the amendments to a vote of its stockholders except at
an annual meeting of its common stockholders. Until such
time, if any, as the approval of said common stockholders
shall be obtained, each party hereby irrevocably grants to the
other all such consents, waivers and approvals under the terms
of the Series A, B and C Preferred as are necessary to
effectuate the intent of subparagraphs (a) through (e) of this
Section 8.
(g) Each party will use all reasonable efforts to satisfy the
conditions to Closing; provided that neither party shall be
responsible under this subsection for satisfying conditions,
to the extent that such satisfaction is dependent on the
performance of the other party.
9. Antiflip/Standstill
(a) If, during the two-year period commencing on the date of
the Second Closing, any "person", as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended, announces an offer to acquire and thereafter
(before abandoning or terminating such offer) acquires more
than 50% of PURCHASER's issued and outstanding Common Stock in
a tender offer, exchange offer, merger, or by other means (a
"Transaction"), then PURCHASER will pay to SELLER, within 30
days following the consummation of such Transaction, an amount
(which shall not be less than zero) equal to:
[RS times (PP minus Base)] times AP
where:
RS = the residual shares, consisting of 5,553,537
shares of Common Stock minus all shares of
Common Stock sold in the public offering
referred to in Section 7;
PP = the purchase price per share paid by the
acquiring person for PURCHASER's Common Stock
in the Transaction (which shall be the weighted
average purchase price if the acquisition is
made in a series of related transactions);
Base = the higher of (i) the average closing price per
share of PURCHASER's Common Stock on the New
York Stock Exchange, Inc. during the first 20
of the 25 trading days immediately preceding
the public announcement of the Transaction, or
(ii) the average closing price per share of
such Common Stock on the ten trading days prior
to the date on which this Agreement is signed
plus (x) RP times $12 million divided by (y)
RS;
RP = the residual proportion, consisting of RS
divided by 5,553,537; and
AP = the acquisition proportion, which shall be (x)
one (1) if the offer of the acquiring person
which is finally consummated is an offer to
acquire 100% of PURCHASER (regardless of the
percentage of PURCHASER which is ultimately
acquired) or (y) the fraction equivalent to the
percentage of PURCHASER's issued and
outstanding Common Stock owned by the acquiring
person upon consummation of the Transaction, if
the Transaction and any related transactions
collectively constitute an offer to acquire
less than 100% of PURCHASER.
If the consideration to be offered in connection with the
Transaction is other than cash, then, for purposes of determining
PP, the value of such consideration shall (i) in the case of
securities trading on an established trading market or securities
exchange prior to the consummation of the Transaction, be equal to
the average closing sales price of such securities during the ten
consecutive trading days prior to consummation of the Transaction,
(ii) in the case of securities not trading on an established
trading market or securities exchange prior to the consummation of
the Transaction, but which will trade on such market or exchange
following the Transaction, be valued at their average closing price
on the securities exchange or trading market where such securities
are so traded over the last five of the first fifteen trading days
following the consummation of the Transaction, and (iii) in all
other cases, be determined in good faith by an independent
nationally recognized investment banking firm selected by SELLER
and reasonably acceptable to PURCHASER, which determination shall
be conclusive for all purposes of this Agreement.
If PURCHASER shall, prior to the expiration of SELLER's rights
under this subsection (a) and prior to the consummation of a
Transaction, (i) pay a dividend or make a distribution in respect
of its Common Stock in shares of such Common Stock, (ii) subdivide
the outstanding shares of such Common Stock, or (iii) combine the
outstanding shares of such Common Stock into a smaller number of
shares, in each case whether by reclassification of shares,
recapitalization of PURCHASER or otherwise, RS, as in effect
immediately prior to such action shall be adjusted by multiplying
RS by a fraction, the denominator of which is the number of shares
of such Common Stock outstanding immediately prior to such event,
and the numerator of which is the number of shares of such Common
Stock outstanding immediately after such event. An adjustment made
pursuant to the preceding sentence shall be given effect as of the
record date for the determination of stockholders entitled to
receive such dividend or distribution and in the case of a
subdivision or combination shall become effective immediately as of
the effective date thereof.
(b) In order to induce PURCHASER to agree to subparagraph (a)
above, SELLER agrees that, during the period ending on the
later of (i) the second anniversary of the Second Closing or
(ii) if an offer to acquire PURCHASER is then in effect, the
earliest subsequent date on which PURCHASER shall no longer be
obligated to pay SELLER under subparagraph (a) by reason of
such offer (but not beyond the termination, if any, of this
Agreement pursuant to Section 21 hereof):
(i) SELLER, and its and its subsidiaries' officers,
directors, employees, agents and consultants, will not,
directly or indirectly, take any action having the
purpose of inducing any person to seek to acquire
PURCHASER, directly or indirectly; and
(ii) If any person requests any waiver, consent or
approval from SELLER in connection with an offer, or
possible offer, to acquire PURCHASER (including but not
limited to a waiver, consent or approval under the Series
C Preferred), SELLER, its officers, directors, employees,
agents and consultants will reject such request without
further discussion.
For purposes of this subsection (b) only, the term SELLER
includes both American Cyanamid Company and its parent
corporation. SELLER hereby represents and warrants that it
has been authorized by its parent corporation, American Home
Products Corporation, to bind said parent to the obligations
set forth in this subparagraph (b). The obligations of SELLER
set forth in this subparagraph (b) are in addition to the
obligations of SELLER set forth in the Standstill Agreement
dated December 17,1993 between the parties hereto.
10. Press Release. At the time of signing the Agreement,
PURCHASER shall make, and SELLER may make, a public announcement
regarding the transactions provided for in this Agreement. Neither
party shall make an earlier public announcement unless it is
advised by counsel that a public announcement is legally required.
The form of announcement concerning this Agreement is subject to
prior consultation with the other party.
11. Reports. PURCHASER and SELLER agree to provide each other
with such information as may be reasonably requested in connection
with preparation of reports and/or other governmental compliance
relating to the transactions contemplated hereby.
12. Successors and Assigns. This Agreement may not be assigned
without the consent of the other party. All covenants and
agreements contained in the Agreement by or on behalf of any of the
parties hereto shall bind and inure to the benefit of the
respective successors and permitted assigns of the parties hereto
whether so expressed or not.
13. Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall
be deemed to have been duly given,
(a) On the date of service if served personally on the party
to whom notice is given,
(b) On the day of transmission if sent via facsimile
transmission, provided telephonic confirmation of receipt is
obtained promptly after completion of transmission,
(c) On the business day after delivery to an overnight
courier service or the Express mail service maintained by the
United States Postal Service, provided receipt of delivery has
been confirmed, or
(d) On the fifth day after mailing, provided receipt of
delivery is confirmed, if mailed to the party to whom notice
is to be given, by first class mail, registered or certified,
postage prepaid, properly addressed and return receipt
requested to the party as follows:
If to PURCHASER:
Cytec Industries Inc.
5 Garret Mountain Plaza
West Paterson, NJ 07424
Attn: Secretary
If to SELLER:
American Cyanamid Company
c/o American Home Products Corporation
Five Giralda Farms
Madison, NJ 07940
Attn: General Counsel
Any party may change its address by giving the other party written
notice of its new address in the manner set forth above.
14. Descriptive Headings. The descriptive headings of the several
sections of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
15. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
New Jersey.
16. Counterparts. This Agreement may be executed simultaneously
in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one
and the same instrument.
17. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability
of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired
thereby.
18. Entire Agreement. This Agreement is intended by the parties
hereto as a final and complete expression of their agreement and
understanding in respect to the subject matter contained herein.
This Agreement supersedes all prior agreements and understandings,
written or oral, between the parties with respect to such subject
matter.
19. Amendments. This Agreement may not be amended except by a
written instrument executed by the parties hereto.
20. No Third Party Beneficiaries. Except as provided in Section
2(e) hereof, nothing in this Agreement shall convey any rights upon
any person or entity which is not a party or an assignee of a party
to this Agreement.
21. Termination. If the Second Closing has not occurred by
December 15, 1995, either party, by notice to the other, may
terminate the obligation to conduct the public offering and to
consummate the transactions that were to occur at the Second
Closing.
IN WITNESS HEREOF, the parties have caused this Agreement to
be executed and delivered as of the date first above written.
AMERICAN CYANAMID COMPANY CYTEC INDUSTRIES INC.
BY /s/ Gerald A. Jibilian BY /s/ James P. Cronin
Name: Gerald A. Jibilian Name: James P. Cronin
Title: Vice President Title: Vice President and
Chief Financial Officer
