UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 1)
CYANOTECH CORPORATION
-------------------------------------------
(Name of Issuer)
Common Stock, par value $.005 per share
----------------------------------
(Title of Class of Securities)
232 437-2
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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)
February 20, 1996
-------------------------
(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. 232 437-2
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
699,730 (held by American Cyanamid Company ("ACY"), a subsidiary of
Parent)(ACY holds 139,946 shares of Series C Preferred Stock, each share
of which is convertible into 5 shares of Common Stock)
8. SHARED VOTING POWER
-0-
9. SOLE DISPOSITIVE POWER
699,730 (held by American Cyanamid Company ("ACY"), a subsidiary of
Parent)(ACY holds 139,946 shares of Series C Preferred Stock, each share
of which is convertible into 5 shares of Common Stock)
10. SHARED DISPOSITIVE POWER
-0-
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
699,730
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.7%
14. TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
The Statement on Schedule 13D (the "Original Statement"), dated
September 8, 1995, filed by American Home Products Corporation, a Delaware
corporation, is hereby amended by this Amendment, dated February 22, 1996, to
report the event which occurred as of February 20, 1996 and to reflect certain
changes in the information previously filed relating to the outstanding Common
Stock par value $.005 per share (the "Common Stock") of Cyanotech Corporation,
a Nevada corporation ("Cyanotech"), which has its principal executive offices
73-4460 Queen Kaahumanu Hwy., Suite 102, Kailua-Kona, Hawaii 96740.
Item 6 of the Original Statement is hereby amended by deleting it in its
entirety and replacing it with the following:
In connection with Cyanotech's contemplated public offering which is
expected to occur in late March or early April 1996 (the "Offering"), ACY and
Cyanotech have entered into a Registration Rights Agreement, dated as of
February 20, 1996 (the "Agreement", attached hereto as Exhibit II and is
hereby incorporated by reference to this Item 6) pursuant to which ACY has
agreed not to offer, sell or otherwise dispose of, directly or indirectly, any
shares of Common Stock for 120 days from the closing of the Offering without
the prior written consent of the Company's managing underwriter for the
Offering. In consideration of ACY's agreement not to offer, sell or dispose
of Common Stock for the time period set forth above, Cyanotech has granted ACY
certain "piggy-back" registration rights in its subsequent future public
offerings until February 3, 2005. Cyanotech has agreed to register for sale a
minimum of the greater of (i) ACY's pro rata portion of not less than 40% of
the total number of securities to be registered in any offering with respect
to all security holders with "piggy-back" registration rights requesting
registration in any such public offering and (ii) 110,000 shares of ACY's
Registrable Securities (as defined in the Agreement) in any future public
offering. If ACY has elected to register any or all of its Registrable
Securities in a future public offering, it will have the right to withdraw up
to 110,000 shares from the registration statement at any time prior to the
effective date of the registration statement with respect to that offering.
In addition, ACY may withdraw shares in excess of 110,000 from any public
offering in which its Registrable Securities are to be registered prior to the
effective date of the registration statement if on the date of such withdrawal
the market price for Common Stock is less than 85% of the proposed maximum
offering price set forth in the applicable registration statement filed with
the Securities and Exchange Commission.
There are no other contracts, arrangements, understandings or
relationships (legal or otherwise) among the persons named in Item 2 or
between such persons and any person with respect to any securities of
Cyanotech except as referred to in this Item or described in this Schedule
13D.
Item 7 is hereby amended to add the following language to the end of Item
7:
Exhibit II Registration Rights Agreement between Cyanotech and ACY,
dated as of February 20, 1996.
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: February 22, 1995
AMERICAN HOME PRODUCTS CORPORATION
By: /s/ John R. Considine
John R. Considine
Vice President-Finance
<PAGE>
Attachment A
Executive Officers and Directors of
American Home Products Corporation
----------------------------------
The names and titles of the executive officers and the names of
the directors of American Home Products Corporation ("Parent") 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 Parent. Unless otherwise indicated, each occupation set forth
opposite an individual's name refers to Parent and each individual is a United
States citizen.
EXECUTIVE OFFICERS POSITION; PRESENT PRINCIPAL OCCUPATION
- ------------------ --------------------------------------
John R. Stafford Chairman, President and Chief Executive
Officer
Robert G. Blount Senior Executive Vice President
Fred Hassan Executive Vice President
Stanley F. Barshay Senior Vice President
Joseph J. Carr Senior Vice President
Louis L. Hoynes, Jr. Senior Vice President and
General Counsel
William J. Murray Senior Vice President
David M. Olivier Senior Vice President
John R. Considine Vice President - Finance
Paul J. Jones Vice President and Comptroller
Rene R. Lewin Vice President - Human Resources
Thomas M. Nee Vice President - Taxes
David Lilley Vice President (British Citizen)
DIRECTORS POSITION; PRESENT PRINCIPAL OCCUPATION
- --------- --------------------------------------
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 Retired (1995) Chairman and CEO of The
222 Purchase Street Continental Corporation
Suite 345
Rye, New York 10580
Mary Lake Polan, M.D.,Ph.D. Department Chairman and Professor,
Stanford University Stanford University School of Medicine
School of Medicine
300 Pasteur Drive
Stanford, California 94305
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 II Registration Rights Agreement between Cyanotech and ACY, dated as
of February 20, 1996.
Exhibit II
CYANOTECH CORPORATION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
as of February 20, 1996, by and between Cyanotech Corporation, a
Nevada corporation (the "Company"), and American Cyanamid Company,
a Maine corporation and wholly-owned subsidiary of American Home
Products Corporation ("American Cyanamid").
WHEREAS, American Cyanamid holds 139,946 shares (the "Series
C Shares") of the Company's 8% Cumulative, Convertible Preferred
Shares - Series C, par value $.001 per share;
WHEREAS, the 139,946 Series C Shares are currently convertible
by their terms into 699,730 shares of the Company's common stock,
par value $.005 per share ("Common Stock");
WHEREAS, the Company is contemplating an underwritten public
offering (the "Contemplated Public Offering") of its common stock
(all shares of the Company's common stock referred to herein as the
"Common Stock"), registered under the Securities Act of 1933, as
amended (the "Securities Act"), which Contemplated Public Offering
is expected to occur in late March or early April 1996;
WHEREAS, in connection with the Contemplated Public Offering,
American Cyanamid has agreed to the market stand-off provisions
contained herein; and
WHEREAS, the Company has agreed to grant certain "piggy-back"
registration rights to American Cyanamid with respect to its resale
of the shares of Common Stock issuable on conversion of the Series
C Shares.
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE I
Registration Rights
The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Article I:
(a) The term "register," "registered," and
"registration" refer to a registration effected by preparing and
filing a registration statement or similar document in compliance
with the Securities Act of 1933, as amended (the "Securities Act"),
and the declaration or ordering of effectiveness of such
registration statement or document;
(b) The term "Registrable Securities" means (1) the
shares of Common Stock of the Company issuable or issued upon
conversion of the Series C Shares and (2) any Common Stock of the
Company issued as (or issuable upon the conversion or exercise of
any warrant, right, or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for
or in replacement of, such shares of Common Stock, excluding in all
cases, however, any Registrable Securities sold by a person in a
transaction in which his/her rights under this Article I are not
assigned;
(c) The number of shares of "Registrable Securities
then outstanding" shall be determined by the number of shares of
Common Stock outstanding which are, and the number of shares of
Common Stock issuable pursuant to then exercisable or convertible
securities which are, Registrable Securities;
(d) The term "Holder" means any person owning or
having the right to acquire Registrable Securities or any assignee
thereof in accordance with Section 1.10 hereof; and
(e) The term "Form S-3" means such form under the
Securities Act as in effect on the date hereof or any comparable or
successor form under the Securities Act subsequently adopted by the
Securities and Exchange Commission ("SEC") which permits inclusion
or incorporation of substantial information by reference to other
documents filed by the Company with the SEC.
1.2 Company Registration. If (but without any obliga-
tion to do so under this Agreement), at any time after the closing
of the Contemplated Public Offering, the Company proposes to
register any of its stock or other securities under the Securities
Act in connection with the public offering of such securities
solely for cash (other than a registration relating solely to the
sale of securities to participants in a Company stock plan, or a
registration on any form which does not include substantially the
same information as would be required to be included in a
registration statement covering the sale of the Registrable
Securities), the Company shall, at such time, give each Holder
written notice of such registration at least 20 days prior to the
proposed date to file any registration statement. Upon the written
request of each Holder given within twenty (20) days after mailing
of such notice by the Company in accordance with Section 2.5, the
Company shall, subject to the provisions of Section 1.6, cause to
be registered under the Securities Act all of the Registrable
Securities that each such Holder has requested to be registered.
1.3 Obligations of the Company. Whenever required under
this Article I to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its
reasonable best efforts to cause such registration statement to
become effective and to remain effective for a period of not less
than 90 days or such shorter period which will terminate when all
Registrable Securities covered by such registration statement have
been sold.
(b) Prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act and
other applicable laws and regulations with respect to the
disposition of all securities covered by such registration
statement.
(c) Furnish to the Holders such numbers of copies
of a prospectus, including a preliminary prospectus including all
supplements thereto, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its reasonable best efforts to register and
qualify the securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as
shall be reasonably requested by the Holders, provided that the
Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions.
(e) Use its reasonable best efforts to list for
quotation on the National Association of Securities Dealers
Automated Quotation System ("Nasdaq") (or such other national
exchange or national quotation system on which the Company's Common
Stock is then listed) such Registrable Securities.
(f) In the event of any underwritten public
offering, enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with the
managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its
obligations under such an agreement. In addition, all shares
registered shall be distributed substantially in accordance with
the plan of distribution as set forth in the registration
statement.
(g) Notify each Holder of Registrable Securities
covered by such registration statement at any time when a pro-
spectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which
the prospectus included in such registration statement, as then in
effect, includes any untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances then existing and notice of any stop order issued or
threatened by the SEC and to take all reasonable actions to prevent
the entry of such stop order or to remove it if it is entered.
(h) If any Registrable Securities are offered for
sale, on the date that the Registrable Securities are delivered to
the underwriters, if any, and if such Registrable Securities are
not being sold through underwriters, then on the date the
registration statement becomes effective, the Company shall furnish
the Holder with (A) a signed opinion, dated as of the date of such
delivery, of the legal counsel of the Company addressed to the
underwriters, if any, and if such Registrable Securities are not
being sold through underwriters, then to the Holder covering such
matters as are customarily addressed in opinions rendered to
underwriters on such transactions, and (B) a letter, dated as of
the date of such delivery, of the Company's independent public
accountants addressed to the underwriters, and if such Registrable
Securities are not being sold through underwriters, then to the
Holder and, if such accountants refuse to deliver such letter to
the Holder, then to the Company (x) stating that they are
independent certified public accountants within the meaning of the
Securities Act and that, in the opinion of such accountants, the
financial statements and other financial data of the Company
included in the registration statement or the prospectus, or any
amendment or supplement thereto, comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act, and (y) covering such other financial matters
(including information as to the period ending not more than five
(5) business days prior to the date of such letter) with respect to
the registration in respect of which such letter is being given as
the Holder may reasonably request and as would be customary in such
a transaction.
1.4 Furnish Information. It shall be a condition
precedent to the obligations of the Company to take any action
pursuant to this Article I with respect to the Registrable
Securities of any selling Holder that such Holder shall furnish to
the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of
such securities as shall be required by law or otherwise to effect
the registration of such Holder's Registrable Securities.
1.5 Expenses of Company Registration. The Company shall
bear and pay all expenses incurred in connection with any
registration, filing, or qualification of Registrable Securities
with respect to the registrations pursuant to Section 1.2 for each
Holder (which right may be assigned as provided in Section 1.10),
including (without limitation) all registration, filing, and
qualification fees, printer's and accounting fees relating thereto,
and fees and disbursements of counsel for the Company, but
excluding the fees and disbursements of legal counsel for the
selling Holders if separate legal counsel is employed and
underwriting discounts and commissions relating to Registrable
Securities.
1.6 (a) Underwriting Requirements. In connection with
any offering involving an underwriting of shares of the Company's
capital stock, the Company shall not be required under Section 1.2
to include any of the Holders' securities in such underwriting
unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then
subject to the terms set forth below only in such quantity as will
not, in the opinion of the underwriters, jeopardize the success of
the offering by the Company. If the total amount of securities,
including Registrable Securities, requested by stockholders to be
included in such offering exceeds the amount of securities sold
other than by the Company that the underwriters reasonably believe
compatible with the success of the offering, then the Company shall
be required to include in the offering only that number of such
securities, including Registrable Securities, which the under-
writers believe will not jeopardize the success of the offering
(the securities so included to be apportioned pro-rata among the
selling stockholders according to the total amount of securities
entitled to be included therein owned by each selling stockholder
or in such other proportions as shall mutually be agreed to by such
selling stockholders); provided, however, that the amount of
Registrable Securities and other securities excluded from the
offering may not be reduced to less than forty percent (40%) of
such offering; and further provided, however that American Cyanamid
will be entitled to include in each public offering, if it shall so
elect, no fewer than 110,000 shares of Registered Securities
(subject to appropriate adjustment for stock splits, stock
dividends, combinations, other recapitalizations and similar
events). For purposes of the parenthetical in the preceding
sentence concerning apportionment, for any selling stockholder
which is a Holder of Registrable Securities and which is a
partnership or corporation, the partners, retired partners and
stockholders of such Holder, or the estates and family members of
any such partners and retired partners and any trusts for the
benefit of any of the foregoing persons shall be deemed to be a
single "selling stockholder," and any pro-rata reduction with
respect to such "selling stockholder" shall be based upon the
aggregate amount of shares carrying registration rights owned by
all entities and individuals included in such "selling stock-
holder," as defined in this sentence.
(b) Withdrawal Rights. Each Holder shall be
permitted to withdraw up to 110,000 shares (subject to appropriate
adjustment for stock splits, stock dividends, combinations, other
recapitalizations and similar events) of such Holder's Registrable
Securities included in a registration at any time prior to the
effective date of such registration. In addition, to the extent
the number of Registrable Securities being sold by the Holder is
greater than 110,000 shares (subject to appropriate adjustment for
stock splits, stock dividends, combinations, other
recapitalizations and similar events) the Holder can withdraw any
such portion above 110,000 shares if, on the date of such
withdrawal, the last reported sale price of the Company's Common
Stock on Nasdaq (or such other national exchange or national
quotation system on which the Company's Common Stock is then
listed) was less than 85% of the proposed maximum offering price
per share listed on the "Calculation of Registration Fee" section
on the cover of the registration statement filed with respect to
the Registrable Securities.
1.7 Delay of Registration. No Holder shall have any
right to obtain or seek an injunction restraining or otherwise
delaying any such registration as the result of any controversy
that might arise with respect to the interpretation or implemen-
tation of this Article I. This Section 1.7 shall not affect any
remedies at law available to the Holder for breaches of Section
1.6(a) by the Company.
1.8 Indemnification and Contribution. In the event any
Registrable Securities are included in a registration statement
under this Article I:
(a) To the extent permitted by law, the Company
will indemnify and hold harmless each Holder, any underwriter (as
defined in the Securities Act) for such Holder and each person, if
any, who controls such Holder or underwriter within the meaning of
the Securities Act or the Securities Exchange Act of 1934, as
amended (the "1934 Act"), against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject
under the Securities Act or the 1934 Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon any of
the following statements, omissions, or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement
of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission
or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by the
Company of the Securities Act, the 1934 Act, any state securities
law or any rule or regulation promulgated under the Securities Act
or the 1934 Act or any state securities law; and the Company will
pay to each such Holder, underwriter, or controlling person, as
incurred, any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection 1.8(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any
such loss, claim, damage, liability, or action to the extent that
it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such
Holder, underwriter, or controlling person.
(b) To the extent permitted by law, each selling
Holder will indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the registration
statement, each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter, any other Holder
selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against
any losses, claims, damages, or liabilities (joint or several) to
which any of the foregoing persons may become subject, under the
Securities Act or the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions
in respect thereto) arise out of or are based upon any Violation,
in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connec-
tion with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this subsection
1.8(b), in connection with investigating or defending any such
loss, claim, damage, liability, or action; provided, however, that
the indemnity agreement contained in this subsection 1.8(b) shall
not apply to amounts paid in settlement of any such loss, claim,
damage, liability, or action if such settlement is effected without
the consent of the Holder, which consent shall not be unreasonably
withheld.
(c) Promptly after receipt by an indemnified party
under this Section 1.8 of notice of the commencement of any action
(including any governmental action), such indemnified party will,
if a claim in respect thereof is to be made against any
indemnifying party under this Section 1.8, deliver to the
indemnifying party a written notice of the commencement thereof and
the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any
other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together with all
other indemnified parties which may be represented without conflict
by one counsel) shall have the right to retain separate counsel in
each jurisdiction where separate representation would be
appropriate in the judgment of the indemnified party, with the fees
and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding.
The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve
such indemnifying party to the extent of such prejudice of any
liability to the indemnified party under this Section 1.8, but the
omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 1.8.
(d) No indemnifying party, in the defense of any
claim arising out of a Violation shall, except with the consent of
each indemnified party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified
party of a release from all liability in respect to such claim or
litigation and, in the event the terms of such judgment or
settlement include any term other than the payment by the
indemnifying party of money damages, the indemnifying party shall
not so consent or enter into such a settlement without the consent
of each indemnified party (which will not be unreasonably withheld)
whether or not the terms thereof include such a release.
(e) Contribution. If for any reason the indemnity
provided for in this Section 1.8 is unavailable to, or is
insufficient to hold harmless, an indemnified party, then the
indemnifying party shall contribute to the amount paid or payable
by the indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the
other, or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in such
proportion as is appropriate to reflect not only the relative
benefits received by the indemnifying party on the one hand and the
indemnified party on the other but also the relative fault of the
indemnifying party and the indemnified party as well as any other
relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying
party or indemnified parties; and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the
limitations set forth in Section 1.8(d), any legal or other fees or
expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 1.8(e) were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
(f) The obligations of the Company and Holders
under this Section 1.8 shall survive the completion of any offering
of Registrable Securities in a registration statement under this
Article I, and otherwise.
1.9 Reports Under Securities Exchange Act of 1934. With
a view to making available to the Holders the benefits of Rule 144
promulgated under the Securities Act and any other rule or regula-
tion of the SEC that may at any time permit a Holder to sell
securities of the Company to the public without registration or
pursuant to a registration on Form S-3, the Company agrees and
covenants to:
(a) make and keep public information available, as
those terms are understood and defined in SEC Rule 144;
(b) file with the SEC in a timely manner all
reports and other documents required of the Company under the
Securities Act and the 1934 Act;
(c) furnish to any Holder, so long as the Holder
owns any Registrable Securities, forthwith upon request (i) a
written statement by the Company that it has complied with the
reporting requirements of SEC Rule 144, the Securities Act and the
1934 Act, or that it qualifies as a registrant whose securities may
be resold pursuant to Form S-3 (at any time after it so qualifies),
(ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the
Company with the SEC or any securities exchange, and (iii) such
other information as may be reasonably requested in availing any
Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to
such form; and
(d) provide the Holder with prompt notice of any
failure by the Company to comply with the requirements of Rule 144.
1.10 Assignment of Registration Rights. The rights to
cause the Company to register Registrable Securities pursuant to
this Article I may be assigned (but only with all related obliga-
tions) by a Holder to a transferee or assignee of such securities
who, after such assignment or transfer, holds (i) at least 1% of
the Registrable Securities then outstanding (subject to appropriate
adjustment for stock splits, stock dividends, combinations, other
recapitalizations and similar events), or (ii) all of the shares of
Registrable Securities initially issued to such Holder, provided
that, within a reasonable time after such transfer, the Company is
furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which
such registration rights are being assigned; and provided, further,
that such assignment shall be effective only if immediately
following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Securities
Act and/or not otherwise eligible for sale under Rule 144(k) of the
Securities Act or similar exemption. For the purposes of
determining the number of shares of Registrable Securities held by
a transferee or assignee, the holdings of transferees and assignees
of a partnership who are partners or retired partners of such
partnership (including spouses and ancestors, lineal descendants,
and siblings of such partners or spouses who acquire Registrable
Securities by gift, will, or intestate succession) shall be
aggregated together and with the partnership; provided that all
assignees and transferees who would not qualify individually for
assignment of registration rights shall have a single attorney-in-
fact for the purpose of exercising any rights, receiving notices,
or taking any action under this Article I.
1.11 Amendment of Registration Rights. Any provision of
this Article I may be amended and the observance thereof may be
waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of
the Company and the Holders of a majority of the Registrable
Securities then outstanding. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each Holder of
any Registrable Securities then outstanding, each future holder of
all such Registrable Securities and the Company.
1.12 Termination of Registration Rights. No Holder shall
be entitled to exercise any right provided for in this Article I
after February 3, 2005.
ARTICLE II
Miscellaneous
2.1 Market Stand-Off. American Cyanamid hereby
covenants that it will not, without the prior written consent of
Van Kasper & Company (or such other investment bank that serves as
the lead managing underwriter in the Company's Contemplated Public
Offering, which person is referred to herein as the "Lead Managing
Underwriter"), offer, sell, or otherwise dispose of, directly or
indirectly, any shares of the Company's Common Stock, or any
securities convertible into or exercisable or exchangeable for, or
any rights to purchase or acquire, Common Stock owned by it
(otherwise than as a bona fide gift or gifts, provided the donee or
donees thereof agree in writing to be bound by the terms of this
Section 2.1) for the period beginning on the date hereof and ending
on the date one hundred and twenty (120) days after the date of the
closing of the Contemplated Public Offering. If requested by the
Lead Managing Underwriter, American Cyanamid agrees to execute an
agreement similar to that set forth in this Section 2.1 addressed
to the Lead Managing Underwriter. The Company shall be expressly
entitled to enforce the provisions of this Section 2.1 on behalf of
the Lead Managing Underwriter. This Section 2.1 shall be effective
only upon the execution of a similar provision by Firemen's
Insurance Company of Newark, NJ.
2.2 Survival of Warranties. The warranties,
representations, and covenants of American Cyanamid and the Company
contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and shall in no way be
affected by any investigation of the subject matter thereof made by
or on behalf of American Cyanamid or the Company.
2.3 Successors and Assigns. Except as otherwise
provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
2.4 Expenses. Except as otherwise provided in Article I
hereof, irrespective of whether the Closing is effected, each party
shall pay its own costs and expenses that such party incurs with
respect to the negotiation, execution, delivery, and performance of
this Agreement.
2.5 Notices. Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in
writing and shall be deemed effectively given upon personal
delivery to the party to be notified or three days after deposit
with the United States Post Office, by registered or certified
mail, postage prepaid and addressed to the party to be notified at
the address indicated for such party on the signature page hereof,
or by facsimile confirmed by such certified or registered mail or
at such other address as such party may designate by ten (10) days'
advance written notice to the other parties.
2.6 Governing Law. This Agreement shall be governed by
and construed under the laws of the State of New Jersey.
2.7 Titles and Subtitles. The titles and subtitles used
in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
2.8 Entire Agreement; Amendments and Waivers. This
writing, together with any exhibits annexed hereto, constitutes the
entire Agreement of the parties with respect to the subject matter
hereof and shall supersede all prior understandings and writings
with respect thereto. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retro-
actively or prospectively), only with the written consent of all
the parties hereto.
2.9 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
2.10 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such
provision shall be excluded from this Agreement and the balance of
the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
Cyanotech Corporation
By: /s/ Gerald R. Cysewski
Name: Gerald R. Cysewski
Title: President and Chief Executive Officer
Address: 73-4460 Queen Kaahumanu Hwy.,
Suite 102
Kailua-Kona, HI 96740
Phone: (808) 326-1353
Fax: (808) 329-3597
American Cyanamid Company
By: /s/ John R. Considine
Name: John R. Considine
Title: Vice President
Address: Five Giralda Farms
Madison, New Jersey 07940
Attn.: Senior Vice President and
General Counsel
Phone: (201) 660-5000
Fax: (201) 660-7155
