<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB/A
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended October 31, 1995 Commission file number:
33-23460-LA
AQUASEARCH, INC.
(Exact name of Registrant as specified in its charter)
STATE OF COLORADO IRS Employer Identification No. 33-0034535
73- 4460 Queen Ka'ahumanu Highway
Suite 110
Kailua-Kona, Hawaii 96740
Issuer's telephone number: (808) 326-9301
SECURITIES REGISTERED UNDER SECTION 12(b) OF THE EXCHANGE ACT:
None
SECURITIES REGISTERED UNDER SECTION 12(g) OF THE EXCHANGE ACT:
Common Stock Par Value $0.0001
Check whether issuer (1) has filed all reports required to be filed by
the Exchange Act during the past 12 months (or for such shorter period that
the registrant was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days [X] yes [ ] no
Check if there is no disclosure of delinquent filers in response to Item
405 of Regulation S-B is not contained in this form, and no disclosure will
be contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form
10-KSB or any amendment to this Form 10-KSB. ( )
State issuer's revenues for its most recent fiscal year: $0.00
State the aggregate market value of the voting stock held by
non-affiliates computed by reference to the price at which the stock was
sold, or the average bid and asked prices of such stock, as of a specified
date within the past 60 days. (See definition of affiliate in Rule 12b-2 of
the Exchange Act): $6,840,474.48 as of October 31, 1995.
<PAGE>
(APPLICABLE ONLY TO CORPORATE REGISTRANTS)
State the number of shares outstanding of each of issuer's classes of
common equity, as of the latest practicable date: 32,573,688 shares of
common stock, $0.0001 par value each, as of October 31, 1995.
DOCUMENTS INCORPORATED BY REFERENCE
If the following documents are incorporated by reference, briefly
describe them and identify the part of the Form 10-KSB (e.g. Part I, Part II,
etc.) into which the document is incorporated: (1) any annual report to
security holders; (2) any proxy or information statement; and (3) any
prospectus filed pursuant to Rule 424(b) or (c) of the Securities Act of
1933, as amended ("Securities Act"). The listed documents should be clearly
described for identification purposes (e.g. annual report to security holders
for fiscal year ended December 24, 1990).
Transitional Small Business Disclosure Format (check one): [ ] yes [X] no
-2-
<PAGE>
ITEM 13. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
EXHIBITS
(2) PLAN OF PURCHASE, SALE, REORGANIZATION, ARRANGEMENT, LIQUIDATION AND
SUCCESSION
Not applicable.
(3) ARTICLES OF INCORPORATION AND BYLAWS
(i) Articles of Incorporation filed February 5, 1988.
Articles of Amendment filed October 3, 1988.
(ii) Bylaws dated May 21, 1988.
(4) INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING
INDENTURES
(i) Equity securities: Articles of Incorporation filed February
5, 1988, Articles of Amendment filed October 3, 1988 with
the State of Colorado, Secretary of State.
(ii) Debt securities: Not applicable.
(iii) Indentures: Not applicable.
(9) VOTING TRUST AGREEMENT
Not applicable.
(10) MATERIAL CONTRACTS
(i) Dissolution Agreement dated November 18, 1994, by and among
Cyanotech Corporation, Aquasearch, Inc. and OceanColor, Inc.
(ii) Supply Agreement dated June 30, 1995, between Svenska Foder
AB and Aquasearch, Inc.
(iii) Keahole Point Facilities Use Agreement dated April 1, 1995,
by and between The Natural Energy Laboratory of Hawaii
Authority and Aquasearch, Inc.
(11) STATEMENTS RE COMPUTATION OF PER SHARE EARNINGS
Not applicable.
(13) ANNUAL REPORT TO SECURITY HOLDERS, FORM 10-Q OR QUARTERLY REPORT TO
SECURITY HOLDERS. FORM 10-Q OR QUARTERLY REPORT TO SECURITIES HOLDER
Not applicable.
-3-
<PAGE>
(16) LETTER ON CHANGE IN CERTIFYING ACCOUNTANT
Not applicable.
(18) LETTER ON CHANGE IN ACCOUNTING PRINCIPLES
Not applicable.
(21) SUBSIDIARIES OF THE REGISTRANT
Not applicable.
(22) PUBLISHED REPORT REGARDING MATTERS SUBMITTED TO VOTE OF SECURITY
HOLDERS
Not applicable.
(23) CONSENT OF EXPERTS AND COUNSEL
Not applicable.
(24) POWER OF ATTORNEY
Not applicable.
(27) FINANCIAL DATA SCHEDULE
Not applicable.
(28) INFORMATION FROM REPORTS TO STATE INSURANCE REGULATORY AUTHORITIES
Not applicable.
(99) ADDITIONAL EXHIBITS
Not applicable.
REPORTS ON FORM 8-K
On or about November 4, 1995, the Company filed a report on Form 8-K.
The events reported were the three-year contract with Svenska Foder and the
first shipment of product by the Company under the contract.
-4-
<PAGE>
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the
registrant has duly caused this report to be signed on January 29, 1996, on
its behalf by the undersigned, thereunto duly authorized.
AQUASEARCH, INC.
By /s/ MARK E. HUNTLEY
----------------------------------
Mark E. Huntley
Chief Executive Officer
In accordance with the Exchange Act, this report has been signed below
by the following persons on behalf of the registrant and in the capacities
and on the date indicated.
Signature Date
/s/ MARK E. HUNTLEY November 6, 1997
- -------------------------------------
Mark E. Huntley
Director, President, CEO and Chairman
of the Board of Directors
/s/ EARL S. FUSATO November 6, 1997
- -------------------------------------
Director, Chief Financial Officer
and Secretary
/s/ PEARN P. NIILER November 6, 1997
- -------------------------------------
Pearn P. Niiler
Director
November 6, 1997
- -------------------------------------
Edward E. David
Director
November 6, 1997
- -------------------------------------
Oskar R. Zaborsky
Director
-5-
<PAGE>
Exhibit 10 (ii)
SUPPLY AGREEMENT
This Supply Agreement (this "Agreement") dated as of June 30, 1995 is
between SVENSKA FODER AB, a Swedish corporation, with offices located at
Kinnegatan 23, (Box 673), S-531-16 Lidkoping, Sweden ("Buyer"), and
AQUASEARCH, INC., a Colorado corporation, with offices located at 4350
Executive Drive, Suite 200, San Diego, California, USA ("Seller").
In consideration of the mutual covenants and agreements contained in this
Agreement, the parties agree as follows:
1. BACKGROUND. Seller is engaged in the business of producing
microalgae. Buyer is engaged in the business of producing and distributing
poultry feed. In order to secure a source of astaxanthin for its business,
Buyer desires to purchase from Seller and Seller is willing to supply to
Buyer the Product on the conditions described in this Agreement.
2. DEFINITIONS. As used in this Agreement the following capitalized
terms have the following meanings:
"First Shipment" shall mean the date of the first shipment of the
Product which shall be within ninety (90) days after the date first written
above.
"Minimum Quantity" shall mean sixty (60) kilograms of pure
astaxanthin per year, or approximately five (5) kilograms per month,
commencing at First Shipment and through the remainder of the Term.
"Product" shall mean Haematococcus with a pure astaxanthin level of
between 2.7% and 3.3% and shall include any and all changes made thereto
during the Term.
"Term" shall have the meaning set forth in Section 10 of this
Agreement.
3. PURCHASE AND SALE. During the Term, Seller shall produce and sell to
Buyer and Buyer shall purchase at least the Minimum Quantity of the Product
as provided in this Agreement. If Seller shall determine that any shipment
of the Product will be delayed, then, within one (1) day of that
determination, Seller shall give Buyer written notice of the delay.
4. EXCLUSIVITY. Commencing at First Shipment, except for sales to Buyer
under this Agreement, Seller shall not knowingly sell any Product for use in
poultry, pig, cattle and horse ("Livestock") feed: (a) in Sweden during the
remainder of the Term; or (b) in the rest of the world during the first
twelve (12) months after First Shipment. Seller shall review sales growth at
approximately six (6) and twelve (12) months after First Shipment. At its
sole discretion after reviewing sales growth, Seller may extend the
world-wide exclusivity terms for additional periods.
-6-
<PAGE>
5. SHIPMENT CONTRACT. This Agreement is a shipment contract and Seller
shall ship the Product to Buyer at the place or places specified by Buyer.
Buyer shall pay all shipping charges to those places, including any charges
incurred by Seller in delivering the Product to the carrier.
6. ANALYSES. Within seven (7) days of each shipment of the Product,
Seller shall deliver to Buyer by telecopy an analysis of the astaxanthin
level of the Product in that shipment. Seller and Buyer may mutually agree
that Seller shall perform and deliver to Buyer other analyses with respect to
the Product.
7. PURCHASE PRICE AND TERMS. The price for the Product shall be
calculated on the weight of pure astaxanthin contained in the Product at the
rate of US$2000 per kilogram of pure astaxanthin. Buyer shall remit to the
bank specified by Seller the invoice amount of the Product shipped to Buyer
within thirty (30) days of the receipt of the shipment by Buyer. Buyer shall
pay all customs tariffs, duties and clearances.
8. REGULATORY CLEARANCES. Buyer, at its expense, shall obtain all
necessary regulatory clearances for its use of the Product.
9. DISCLAIMER OF WARRANTY. Buyer affirms that it has not relied upon
Seller's skill or judgment to select or supply goods for any particular
purpose and that all sales made under this Agreement are made WITHOUT ANY
WARRANTY BY SELLER THAT THE PRODUCT IS SUITABLE FOR ANY PARTICULAR PURPOSE.
10. DEATH OF LIVESTOCK. Buyer shall promptly notify Seller of any claim
that the death of any Livestock was caused by ingestion of the Product. If
Buyer shall establish by clear and convincing evidence that the Product was
defective due to the fault of Seller and that any death of any Livestock was
directly caused by the ingestion of such defective Product, then Seller shall
reimburse Buyer for the following liabilities actually incurred by Buyer: (a)
the replacement cost of such Livestock, and (b) reasonable attorneys' and
experts' fees relating to establishing Seller's liability under this Section.
11. NO PUBLICITY. Neither party shall issue any publicity releases
concerning this Agreement without the prior approval of the other party,
which approval shall not be unreasonably withheld.
12. CONFIDENTIAL INFORMATION. Buyer shall be bound by all the terms and
conditions applicable to Cultor Ltd., a Finnish publicly quoted company,
under the Confidentiality Agreement dated May 4, 1994 between Seller and
Cultor Ltd. as originally executed, a copy of which is attached as Exhibit A.
13. TERM AND TERMINATION. The Term of this Agreement shall commence on
the date first written above and shall continue for a three (3) year period
after First Shipment. Notwithstanding the foregoing, this Agreement may be
sooner terminated:
(a) upon the mutual written agreement of the parties; or
(b) at the election of either party, effective upon notice to
terminate this Agreement, if (i) the other party shall default in the
performance of any of its obligations hereunder, and (ii) such
-7-
<PAGE>
default shall not have been cured within ninety (90) days (or within such
other period of time as the parties may agree in writing) of the receipt by
the defaulting party of notice of default; or
(c) at the election of Buyer, effective upon notice to terminate this
Agreement, if it is determined that the Product results in an egg yolk color
that is significantly adverse to the results obtained by Buyer using its
current Haematococcus product as indicated by comparing color using a Roche
color chart; PROVIDED that Buyer shall give Seller (i) notice of such adverse
results within thirty (30) days after receipt of the first shipment of the
Product, and (ii) a reasonable period of not less than ninety (90) days (or
such other period of time as the parties may agree in writing) to attempt to
correct any adverse egg yolk color results.
14. OBLIGATIONS AT TERMINATION. Upon the expiration or termination of
this Agreement:
(a) Buyer shall promptly pay all amounts owing Seller; and
(b) Seller shall not be liable to Buyer for any compensation or
damages of any kind for any reason, including, without limitation, loss of
present or prospective profits, anticipated sales, or goodwill of Buyer; and
(c) as directed by Seller, Buyer promptly shall return to Seller,
at Seller's expense, or shall destroy, at Buyer's expense, any materials
containing confidential information of Seller.
15. NO ASSIGNMENT. This Agreement may not be assigned by either party.
16. ARBITRATION. All disputes arising in connection with this Agreement
shall be finally settled under the Rules of Conciliation and Arbitration of
the International Chamber of Commerce by a single arbitrator appointed in
accordance with those Rules. Arbitration shall be conducted in the State of
Hawaii, United States of America, in the English language. The arbitrator
shall apply the governing law set forth in Section 16 of this Agreement and
shall render a written and signed award containing written findings of facts
and conclusions of law. Judgment upon the award may be entered in any court
of competent jurisdiction.
17. AMENDMENTS. This Agreement may be amended, altered or otherwise
modified only by a writing duly executed by the parties.
18. FORCE MAJEURE. If the performance of any part of this Agreement by
either party is prevented, hindered or delayed by any cause beyond the
control of that party, including, but not limited to, strikes and acts of
God, the party affected shall be excused from performance to the extent that
it is necessarily prevented, hindered or delayed during the continuance of
any such happening or event, and this Agreement shall be suspended so long as
and to the extent that any such cause prevents or delays its performance.
19. GOVERNING LAW. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Hawaii, United States of America.
-8-
<PAGE>
20. NOTICES. All notices, requests, information or demands which any
party may desire or may be required to give to the other shall be in writing
and shall be personally delivered or sent via telegram, telex, telecopy or by
receipted express courier, to the party at the address appearing above or to
such other address as either party may inform the other by written notice.
All such communications so given shall be deemed effective upon receipt or,
if couriered, upon receipt or the expiration of the third day following the
date of couriering, whichever occurs first.
21. COUNTERPART; TELECOPY. This Agreement may be executed in counterpart
and delivered by telecopy.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have
caused this Agreement to be executed in their corporate names by their duly
authorized agents as of the date first written above.
SELLER: BUYER:
AQUASEARCH, INC. SVENSKA FODER AB
By /s/ MARK HUNTLEY By /s/ LENNART EDVINSSON
------------------------------ ------------------------------
Mark Huntley Lennart Edvinsson
Its President and Chairman Its Managing Director
By /s/ MICHAEL C.B. SMITH By /s/ JOHAN INBORR
------------------------------ ------------------------------
Michael C.B. Smith Johan Inborr
Its VP Business Development Its Director, Business Area
and Strategic Planning Animal Feed
-9-
