As filed with the Securities and Exchange Commission on August 12, 2005
Registration Nos. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Cytec Industries Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or
Organization)
22-3268660
(I.R.S. Employer Identification No.)
Five Garret Mountain Plaza
West Paterson, NJ 07424
(973) 357-3100
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
----------------------
Roy Smith, Esq.
Vice President, General Counsel and Secretary
Cytec Industries Inc.
Five Garret Mountain Plaza
West Paterson, NJ 07424
(973) 357-3100
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Copies to:
Robert W. Downes
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
(212) 558-4000
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Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. []
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [] __________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. []__________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.[]
CALCULATION OF REGISTRATION FEE
======================================= ========================= ====================== ===================== ================
Proposed Proposed maximum Amount of
Title of each class of Amount to be maximum offering aggregate offering registration
securities to be registered registered (1)(2) price per unit(3) price(3) (4) fee
======================================= ========================= ====================== ===================== ================
Debt Securities................... 100%
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Preferred Stock .................. $600,000,000 100% $600,000,000 $17,820(2)
======================================= ======================
Common Stock, par value $0.01 per (1)
share........................
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(1) An indeterminate aggregate initial offering price or number of the
securities is being registered as may from time to time be issued at
indeterminate prices, with an aggregate initial offering price not to
exceed $600,000,000 or the equivalent thereof in one or more other
currencies, currency units or composite currencies. Includes such
indeterminate amounts of debt securities, preferred stock and common stock
as may be issued upon exercise, conversion or exchange of any securities
that provide for that issuance.
(2) Pursuant to Rule 429 under the Securities Act, the prospectus filed as part
of this Registration Statement also relates to $200,000,000 aggregate
initial offering price of the Registrant's debt securities that were
previously registered pursuant to Registration Statement No. 333-51876,
which have not yet been issued and sold. A registration fee of $52,800 was
previously paid in connection with that previous registration pursuant to
Registration Statement No. 333-51876, initially filed by the Registrant on
December 15, 2000. Those unsold securities from Registration Statement No.
333-51876 are hereby deregistered in accordance with Rule 457(p) under the
Securities Act. Accordingly, pursuant to Rule 457(p) of the Securities Act,
the $52,800 registration fee previously paid is being offset against the
total registration fee due for this Registration Statement.
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(o) under the Securities Act.
(4) Separate consideration may not be received for registered securities that
are issuable on exercise, conversion or exchange of other securities.
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Upon effectiveness of this Registration Statement, all of the securities that
may be offered pursuant to the prospectus contained in this Registration
Statement and that have not previously been sold may be offered as debt
securities, preferred stock or common stock.
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The Registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The information in this preliminary prospectus is not complete and may be
changed. We may not sell these securities until the registration rtatement filed
with the Securities and Exchange Commission is effective. This preliminary
prospectus is not an offer to sell these securities nor does it seek an offer to
buy these securities in any jurisdiction where the offer or sale is not
permitted.
SUBJECT TO COMPLETION, DATED AUGUST 12, 2005.
$600,000,000
Cytec Industries Inc.
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Debt Securities
Preferred Stock
Common Stock
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Cytec Industries Inc. from time to time may offer to sell debt
securities, preferred stock and common stock. The debt securities and preferred
stock may be convertible into or exercisable or exchangeable for our common or
preferred stock or other securities of Cytec Industries Inc. or debt or equity
securities of one or more other entities. Our common stock is listed on the New
York Stock Exchange and trades under the ticker symbol "CYT".
We may offer and sell these securities to or through one or more
underwriters, dealers and agents, or directly to purchasers, on a continuous or
delayed basis.
This prospectus describes some of the general terms that may apply to
these securities. The specific terms of any securities to be offered will be
described in a supplement to this prospectus.
----------------------
Neither the Securities and Exchange Commission nor any other regulatory
body has approved or disapproved of these securities or passed upon the accuracy
or adequacy of this prospectus. Any representation to the contrary is a criminal
offense.
----------------------
Prospectus dated_________ __, 2005.
TABLE OF CONTENTS
Page
----
Available Information........................................................3
Incorporation of Certain Information by Reference............................3
Prospectus Summary...........................................................4
Ratio of Earnings to Fixed Charges...........................................5
Use of Proceeds..............................................................5
Description of Debt Securities We May Offer..................................6
Description of Preferred Stock We May Offer.................................14
Description of Capital Stock................................................17
Legal Ownership and Book-Entry Issuance.....................................18
Plan of Distribution........................................................23
Validity of the Securities..................................................24
Experts.....................................................................24
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AVAILABLE INFORMATION
We are required to file annual, quarterly and current reports, proxy
statements and other information with the SEC. You may read and copy any
documents filed by us at the SEC's public reference room at 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room. Our filings with the SEC are also
available to the public through the SEC's Internet site at http://www.sec.gov
and through the New York Stock Exchange, 20 Broad Street, New York, New York
10005, on which our common stock is listed.
We have with the SEC filed a registration statement on Form S-3
relating to the securities covered by this prospectus. This prospectus is a part
of the registration statement and does not contain all of the information in the
registration statement. Whenever a reference is made in this prospectus to a
contract or other document of Cytec Industries Inc., please be aware that the
reference is only a summary and that you should refer to the exhibits that are a
part of the registration statement for a copy of the contract or other document.
You may review a copy of the registration statement at the SEC's public
reference room in Washington, D.C., as well as through the SEC's Internet site.
INCORPORATION OF CERTAIN INFORMATON BY REFERENCE
The SEC's rules allow us to "incorporate by reference" information into
this prospectus. This means that we can disclose important information to you by
referring you to another document. Any information referred to in this way is
considered part of this prospectus from the date we file that document. Any
reports filed by us with the SEC after the date of this prospectus and before
the date that the offering of the securities by means of this prospectus is
terminated will automatically update and, where applicable, supersede any
information contained in this prospectus or incorporated by reference in this
prospectus.
We incorporate by reference into this prospectus the following
documents or information filed with the SEC (other than, in each case, documents
or information deemed to have been furnished and not filed in accordance with
SEC rules):
(1) our Annual Report on Form 10-K for the year ended December 31,
2004;
(2) our Quarterly Reports on Form 10-Q for the quarters ended March
31, 2005 and June 30, 2005;
(3) our Current Reports on Form 8-K filed February 7, 2005, February
22, 2005, March 4, 2005 (as amended by our Current Reports on Form
8-K/A filed May 16, 2005 and August 11, 2005), May 4, 2005 and
June 13, 2005;
(4) the description of our common stock contained in our registration
statement filed under Section 12 of the Securities Exchange Act of
1934, including any amendment or report previously or hereafter
filed for the purpose of updating such description; and
(5) all documents filed by us under Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act on or after the date of this prospectus and
before the termination of this offering.
We will provide without charge to each person, including any beneficial
owner, to whom this prospectus is delivered, upon his or her written or oral
request, a copy of any or all documents referred to above which have been or may
be incorporated by reference into this prospectus excluding exhibits to those
documents unless they are specifically incorporated by reference into those
documents. You can request those documents from the Investor Relations
Department, Cytec Industries Inc., Five Garret Mountain Plaza, West Paterson,
New Jersey 07424, Phone: (973) 357-3100.
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PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this
prospectus or incorporated by reference into this prospectus as further
described above under "Available Information" and "Incorporation of Certain
Information by Reference". This summary does not contain all the information
that you should consider before investing in the securities being offered by
this prospectus. You should carefully read the entire prospectus, the documents
incorporated by reference into this prospectus and the prospectus supplement
relating to the securities that you propose to buy, especially any description
of investment risks that we may include in the prospectus supplement.
The Company
Cytec Industries Inc. is a global specialty chemicals and materials
company and sells its products to diverse major markets for aerospace,
automotive and industrial coatings, chemical intermediates, mining, plastics and
water treatment.
On February 28, 2005, we completed our acquisition of the Surface
Specialties business of UCB SA. The acquisition was recorded using the purchase
method of accounting. Accordingly, the results of operations of Surface
Specialties have been included in our consolidated results from the date of
acquisition.
The Securities We Are Offering
We may offer any of the following securities from time to time:
o debt securities;
o preferred stock; and
o common stock.
When we use the term "securities" in this prospectus, we mean any of
the securities we may offer with this prospectus, unless we say otherwise. This
prospectus, including the following summary, describes the general terms that
may apply to the securities; the specific terms of any particular securities
that we may offer will be described in a separate supplement to this prospectus.
Form of Securities
We will issue the securities in book-entry form through one or more
depositaries, such as The Depository Trust Company, Euroclear or Clearstream,
named in the applicable prospectus supplement. Each sale of a security in
book-entry form will settle in immediately available funds through the
depositary, unless otherwise stated. We will issue the securities only in
registered form, without coupons, although we may issue the securities in bearer
form if so specified in the applicable prospectus supplement.
Payment Currencies
Amounts payable in respect of the securities, including the purchase
price, will be payable in U.S. dollars, unless the applicable prospectus
supplement says otherwise.
Listing
If any securities are to be listed or quoted on a securities exchange
or quotation system, the applicable prospectus supplement will say so.
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RATIO OF EARNINGS TO FIXED CHARGES
Our consolidated ratios of earnings to fixed charges for each of the
five fiscal years ended December 31, 2004 and the six-month periods ended June
30, 2005 and 2004 are as follows:
Six Months
-------------------- Year Ended December 31,
Ended June 30,
------------------------------------ ---------- ---------- ----------- ---------- ---------- ----------- ----------
2005 2004 2004 2003 2002 2001 2000
------------------------------------ ---------- ---------- ----------- ---------- ---------- ----------- ----------
Ratio of Earnings to Fixed
Charges (unaudited) (1)..... 0.4x(2) 6.9x 7.0x 6.2x 4.9x 4.7x 8.9x
------------------------------------ ---------- ---------- ----------- ---------- ---------- ----------- ----------
---------------------
(1) For purposes of calculating the amount of earnings to fixed charges,
earnings consist of earnings/(loss) from continuing operations before
income taxes, minority interest, equity in earnings of associated
companies, cumulative effect of accounting changes and extraordinary items
plus dividends paid to us from associated companies plus fixed charges less
capitalized interest net of amortization. Fixed charges consist of interest
on indebtedness plus amortized premiums, discounts and deferred financing
costs plus the portion of rentals representative of an interest factor.
(2) In order to achieve a one-to-one ratio of earnings to fixed charges for the
six months ended June 30, 2005, earnings would need to be increased by
$29,600,000.
As of the date of this prospectus, we have no preferred stock
outstanding.
USE OF PROCEEDS
We intend to use the net proceeds from the sales of the securities as
set forth in the applicable prospectus supplement.
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DESCRIPTION OF DEBT SECURITIES WE MAY OFFER
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Please note that in this section entitled "Description of Debt Securities We May
Offer", references to the "Company", "we", "our" and "us" refer only to Cytec
Industries Inc. and not to its consolidated subsidiaries. Also, in this section,
references to "holders" mean those who own debt securities registered in their
own names, on the books that we or the trustee maintain for this purpose, and
not those who own beneficial interests in debt securities registered in street
name or in debt securities issued in book-entry form through one or more
depositaries. Owners of beneficial interests in the debt securities should read
the section below entitled "Legal Ownership and Book-Entry Issuance".
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The following description of the terms of the debt securities sets
forth general terms that may apply to the debt securities. The particular terms
of the debt securities offered by any prospectus supplement and the extent, if
any, to which such general provisions may apply to the debt securities so
offered will be described in the prospectus supplement relating to such debt
securities. Accordingly, for a description of the terms of a particular issue of
debt securities, reference must be made to both the prospectus supplement
relating thereto and to the following description.
The debt securities will be our general obligations. The debt
securities will be issued under an indenture (the "indenture"), dated as of
March 15, 1998, between us and PNC Bank, National Association, as trustee (the
"trustee"). Subsequently, The Chase Manhattan Bank acquired substantially all of
the assets of the corporate trust business of PNC Bank, National Association
(including the duties and rights of PNC Bank, National Association, under the
indenture) and later changed its name to JPMorgan Chase Bank, N.A.; accordingly,
JPMorgan Chase Bank, N.A. is now the trustee under the indenture and also the
registrar and paying agent. Subject to certain limitations imposed by the Trust
Indenture Act of 1939, the trustee, under the indenture, in its individual or
any other capacity, may become the owner or pledgee of our securities and may
otherwise deal with and collect obligations owed to it by us and may otherwise
deal with us with the same rights it would have if it were not the trustee.
The following is a summary of the most important provisions of the
indenture. A copy of the form of the indenture has been filed as an exhibit to
the registration statement of which this prospectus is a part. Section
references below are to the applicable section in the indenture. The following
discussion of certain provisions of the indenture is a summary only and does not
purport to be a complete description of the terms and provisions of the
indenture. We urge you to read the indenture because it, and not this
description, defines your rights as a holder of the debt securities.
Ranking; Issuance In Series
The debt securities will rank equally and ratably with all of our other
unsecured and unsubordinated obligations. The indenture does not limit the total
amount of debt securities that we may issue under it, and we may issue debt
securities under the indenture up to the aggregate principal amount authorized
by our board of directors from time to time. Except as may be described in a
prospectus supplement, neither the indenture nor the debt securities limit the
amount of other secured or unsecured debt that we may incur or issue.
We may issue debt securities in one or more separate series. The
prospectus supplement relating to an offering of a particular series of debt
securities will specify the particular amounts, prices and terms of those debt
securities. These terms may include:
o the title of the debt securities of the series;
o any limit upon the aggregate principal amount of the debt
securities of the series that may be authenticated and delivered
under the indenture;
o the date or dates on which the principal and any premium of the
debt securities of the series is payable;
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o the rate or rates, which may be fixed or variable, at which the
debt securities of the series bear interest, if any, or the
method by which such rate or rates are determined, the date or
dates from which such interest accrues, the interest payment
dates on which any interest is payable or the method by which
such dates will be determined, our right, if any, to defer or
extend an interest payment date, and the record dates for the
determination of holders to whom interest is payable and the
basis upon which interest will be calculated if other than that
of a 360-day year of twelve 30-day months;
o the price or prices at which, the period or periods within which
and the terms and conditions upon which the debt securities of
the series may be redeemed, in whole or in part, at our option or
otherwise;
o our obligation, if any, to redeem, purchase or repay the debt
securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a holder and the price
or prices at which and the period or periods within which and the
terms and conditions upon which the debt securities of the series
will be redeemed, purchased or repaid, in whole or in part,
pursuant to that obligation;
o if other than in U.S. dollars, the currency, currencies, currency
unit or currency units in which the principal of, and any premium
and interest on, the debt securities of the series is payable,
and the manner of determining an equivalent amount of U.S.
dollars;
o any additions, modifications or deletions in the events of
default with respect to the debt securities of the series and any
change in the right of the trustee or the holder of any debt
securities of the series to declare the principal, any premium or
any interest on such debt securities immediately due and payable;
o any trustee, authenticating or paying agents, transfer agents or
registrars or any other agents with respect to the debt
securities of the series;
o any terms of any guarantee of the payment of principal, any
premium and any interest, with respect to the debt securities of
the series and any corresponding changes to the provisions of the
indenture as then in effect; and
o any other terms of the debt securities of the series not
inconsistent with the provisions of the indenture, including,
without limitation, any securities of our or of another person
into which the debt securities of the series are convertible for
which the debt securities of the series are exercisable or
exchangeable.
Tax Considerations
Important Federal income tax consequences and special considerations
applicable to any series of debt securities will be described in the prospectus
supplement.
Denominations, Registration, Payment and Transfer
In the absence of any other specification in the form of debt security
for any series, the debt securities of each series shall be issuable in
registered form without coupons in denominations of $1,000 and any integral
multiple of $1,000.
Debt securities of any series may be exchanged for debt securities of
the same series in other authorized denominations in an equal aggregate
principal amount. Debt securities may also be presented for registration of
transfer, and the transferee or transferees will receive new debt securities of
the same series in authorized denominations in an equal aggregate principal
amount. Debt securities to be exchanged or transferred must be presented at the
office of the registrar or at the office of any transfer agent designated by us
for that purpose with respect to any series of debt securities. Debt securities
presented for exchange or registration of transfer must be duly endorsed by, or
be accompanied by a written instrument or instruments of transfer in a form
satisfactory to us and the trustee and duly executed by, the holder of these
debt securities or his attorney who has been duly authorized in writing. We may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any exchange or registration of
transfer. We will not assess a service charge.
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For a description of the registration and transfer of debt securities
held in book-entry form, see "Legal Ownership and Book-Entry Issuance" below.
We will appoint the trustee as registrar and paying agent under the
indenture. We may at any time designate additional transfer agents or paying
agents with respect to any series of debt securities or from time to time change
those designations or approve a change in their locations.
We are not required to exchange or register a transfer of (a) any debt
securities of any series for a period of 15 days preceding the first mailing of
notice of redemption for those series to be redeemed, or (b) any debt securities
selected, called or being called for redemption except for the portion of any
debt security to be redeemed in part, which is not redeemed.
The payment of principal of, and any premium and any interest on, debt
securities will be made at the office of the trustee for those debt securities
in the City of New York or at the office of a paying agent or paying agents that
we may designate from time to time. At our option, however, we may pay any
interest by check mailed to the address of the person entitled to it as that
address appears in the register for those debt securities. The payment of any
interest on debt securities will be made to the person in whose name that debt
security is registered at the close of business on any record date for that
interest, except in the case of defaulted interest.
Certain Definitions
Certain terms defined in Section 1.01 of the indenture are summarized
below.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means,
as of the date of determination, the lesser of (i) the present value of the
total obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended) or (ii) the present value of the total
obligations of the lessee for rental payments from the date of determination
until the first possible termination date of the lease included in such
Sale/Leaseback Transaction, plus the present value of any termination payment
then due. For purposes of this definition, (x) the present value of the total
obligations of the lessee for rental payments and for any termination payment
shall be discounted at a rate of 100 basis points above the yield to maturity
(as of the date of determination) on 10-year United States Treasury securities
and (y) rental payments shall not include (A) amounts due for maintenance,
repairs, utilities, insurance, taxes, assessments and similar charges or (B)
contingent rent, such as that based on sales.
"Consolidated Net Tangible Assets" means total assets (net of
applicable reserves) as determined in accordance with generally accepted
accounting principles in the United States of America as in effect from time to
time, less (i) total current liabilities, except for (A) notes and loans
payable, (B) current maturities of Long-Term Debt and (C) current maturities of
obligations under capital leases, and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as reflected in our most recent consolidated balance sheet
preceding the date of a determination.
"Debt" means any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"Long-Term Debt" means Debt that by its terms matures on a date more
than 12 months after the date it was created or Debt that the obligor may extend
or renew without the obligee's consent to a date more than 12 months after the
date the Debt was created.
"Principal Property" means any manufacturing plant or facility
(together with the land upon which it is erected and fixtures comprising a part
thereof) located in the United States of America (excluding territories and
possessions) now owned or hereafter acquired by us or any Restricted Subsidiary
the net book value of which, as of the date of determination, exceeds 1.5% of
Consolidated Net Tangible Assets, except any such plant or facility which is a
pollution control or other facility financed by obligations issued by a state or
local government unit and described in Sections 141(a), 142(a)5, 142(a)6,
142(a)10 or 144(a) of the Internal Revenue Code of 1986, as amended, or any
successor provision thereof, or which in the opinion of our board of directors
is not of material importance to the total business conducted by us and our
subsidiaries as a whole. The net book value of any manufacturing plant or
facility shall mean the gross cost of the assets of such plant or facility less
the accumulated depreciation with respect to such assets, calculated in
accordance with GAAP and in the case of composite depreciation allocated in
accordance with our accounting policies.
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"Restricted Subsidiary" means (i) any Subsidiary which has
substantially all of its assets located in the United States of America
(excluding territories and possessions) and which owns a Principal Property and
(ii) any Subsidiary which owns stock or indebtedness of a Restricted Subsidiary;
provided, however, that the term "Restricted Subsidiary" shall not mean any
Subsidiary (x) engaged primarily in financing receivables, making loans,
extending credit or other activities of a character conducted by a finance
company or (y) which conducts substantially all of its business outside of the
United States of America (excluding its territories or possessions) or the
principal assets of which are stock or indebtedness of corporations which
conduct substantially all of their business outside the United States of America
(excluding territories and possessions).
"Sale/Leaseback Transaction" means an arrangement relating to property
now owned or hereafter acquired whereby the Company or a Subsidiary transfers
such property to a person and the Company or a Subsidiary leases it from such
person.
"Subsidiary" means any corporation, association, partnership or other
business entity of which more than 50% of the total voting power of shares of
capital stock or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers, or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) the Company, (ii) the Company and one or more
Subsidiaries or (iii) one or more Subsidiaries.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the Unites States
(including any agency or instrumentality thereof) for the payment of which the
full faith and credit of the United States is pledged and which are not callable
at the issuer's option.
Certain Covenants
Our principal covenants under the indenture relate to limitations on
liens, restrictions on stock dispositions and maintenance of corporate
existence. The following summarizes these covenants.
Limitation on Liens. The indenture provides that, so long as any debt
securities issued under the indenture are outstanding, we shall not, and shall
not permit any of our Restricted Subsidiaries to, incur, issue, assume or
guarantee any Debt secured by a mortgage, pledge, security interest, conditional
sale or other title retention agreement or other similar lien ("Liens") on any
Principal Property of the Company or of any Restricted Subsidiary, or on any
shares of stock of any Restricted Subsidiary, without effectively providing that
the debt securities, together with any other Debt of the Company or such
Restricted Subsidiary then existing or thereafter created which is not
subordinate to the debt securities, shall be secured equally and ratably with,
or prior to, such secured Debt so long as such secured Debt is so secured. This
restriction will not apply to Debt convertible into shares of capital stock of a
Restricted Subsidiary (to the extent that such Debt is secured by such capital
stock) or Debt secured by:
(a) Liens on property or shares of stock of a business existing as of
the date of the indenture;
(b) Liens securing only the debt securities;
(c) Liens on the property or stock of a person which are existing at
the time (A) such property becomes a Principal Property or (B) such person
becomes a Restricted Subsidiary, is merged into or consolidated with the Company
or any Subsidiary, or another Subsidiary merges into or consolidates with such
person (in a transaction in which such person becomes a Restricted Subsidiary)
and which Liens were not incurred in anticipation of such transaction and were
outstanding prior to such transaction;
(d) Liens in favor of the Company or any Restricted Subsidiary;
(e) Liens in favor of any government body to secure progress, advance
or other payments under any contract or provision of any statute;
(f) Liens on property or stock existing at the time of acquisition
thereof (including acquisition through merger or consolidation);
(g) Liens on property or stock to secure the payment of all or any part
of the purchase price or construction cost of such property or stock, or to
secure any Debt incurred prior to, at the time of or within 180 days after the
acquisition of such property or shares of stock, the completion of any such
construction or the commencement of full operation, for the purpose of financing
all or any part of the purchase price or construction cost of such property or
stock; provided that such Liens shall be limited to all or a part of such
property or stock (plus improvements on property);
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(h) Any extension, renewal or replacement (or successive extensions,
renewals or replacements) of any Lien referred to in clauses (a) through (g);
provided that such extension, renewal or replacement Lien shall be limited to
all or a part of the same property or stock that secured the Lien that was
extended, renewed or replaced (plus improvements on such property); and
(i) Liens securing Debt, the aggregate principal amount of which, when
added to (A) the aggregate amount of all Attributable Debt of the Company and
its Restricted Subsidiaries in respect to Sale/Leaseback Transactions existing
at such time which would not otherwise be permitted under the covenant described
under "Limitation on Sale/Leaseback Transactions" below but for the second
paragraph thereof and (B) the aggregate outstanding principal amount of all
other Debt of the Restricted Subsidiary which Debt would not otherwise be
permitted under this covenant but for this clause (i), does not exceed 10% of
Consolidated Net Tangible Assets. (Section 4.03)
Limitation on Sale and Leaseback Transactions. Neither we nor any
Restricted Subsidiary will enter into any Sale/Leaseback Transaction with
respect to any Principal Property unless:
(a) the lease has a term of three years or less;
(b) the lease is between the Company and a Restricted Subsidiary or
between Restricted Subsidiaries;
(c) the Company or a Restricted Subsidiary under any of clauses (a)
through (h) under the heading "Limitation on Liens" could create a Lien on the
property to secure Debt at least equal to the amount of Attributable Debt for
the lease; or
(d) within 180 days of the effective date of the lease, the Company or
a Restricted Subsidiary retires Long-Term Debt of our company (other than debt
that is subordinate to the debt securities) or a Restricted Subsidiary at least
equal in amount to the Attributable Debt for the lease. (Section 4.04)
Notwithstanding the previous paragraph, the Company or any Restricted
Subsidiary may enter into any Sale/Leaseback Transaction (which would otherwise
be subject to the foregoing restrictions) if the sum of the following amounts
does not exceed 10% of Consolidated Net Tangible Assets:
o the amount of the Attributable Debt of the Company and its
Restricted Subsidiaries in respect of such Sale/Leaseback
Transaction;
o the aggregate outstanding principal amount of all Debt of the
Company and its Restricted Subsidiaries which would not otherwise
be permitted under the covenant under "Limitation on Liens" but
for clause (i) of that section; and
o the aggregate amount of all other Attributable Debt in respect of
Sale/Leaseback Transactions existing at such time which would not
otherwise be permitted under this covenant but for this
paragraph.
Limitations on Consolidation, Merger, Sale or Conveyance. Under the
indenture, so long as debt securities are outstanding, we will not consolidate
with or merge with or into any other person or convey, transfer or lease all or
substantially all of our assets with or to any person, unless:
o the successor or purchaser is a corporation organized and
existing under the laws of the United States of America, any
State of the United States of America or the District of Columbia
and expressly assumes through a supplemental indenture, delivered
to the trustee, in a form that satisfies the trustee, all of our
obligations under the indenture and the debt securities;
o immediately after giving effect to that transaction, no event of
default under the indenture, and no event which, after notice or
lapse of time or both, would become an event of default under the
indenture, has occurred and is continuing; and
o we deliver to the trustee an officers' certificate and an opinion
of counsel that each states that such consolidation, merger or
sale of assets and such supplemental indenture comply with the
indenture. (Section 5.01)
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Events of Default
Any one of the following events will constitute an event of default
with regard to any series of debt securities under the indenture:
(a) default continued for 30 days in payment of any installment of
interest on any of the debt securities of that series when due and payable;
(b) default in payment of all or any part of the principal on any of
the debt securities of that series when due and payable either at maturity, upon
any redemption, by declaration or otherwise;
(c) default in the payment of any sinking fund installment as and when
the same becomes due and payable by the terms of the debt securities of that
series;
(d) default in the performance, or breach, of any of our covenants or
warranties in respect of the debt securities of that series and continuance of
that default or breach for a period of 60 days after written notice as provided
in the indenture;
(e) the voluntary or involuntary bankruptcy, insolvency, or
reorganization under any applicable law of the Company or any Restricted
Subsidiary; or
(f) the occurrence of any other event of default provided with respect
to securities of such series. (Section 6.01)
However, a default under clause (d) will not constitute an event of
default with respect to debt securities under such a series until the trustee or
holders of at least 25% in principal amount of the outstanding debt securities
of such series notify us of the default and we do not cure such default within
the time specified after receipt of such notice. Any event of default with
respect to one series of debt securities is not necessarily an event of default
for another series.
If an event of default (other than specified in clause (e)) with
respect to debt securities of any series occurs and is continuing, the principal
amount of, and all accrued and unpaid interest on, all outstanding debt
securities of that particular series may be declared due and payable immediately
by either the trustee or the holders of at least 25% in principal amount of all
outstanding debt securities under the indenture. (Section 6.02) If an event of
default specified in clause (e) with respect to debt securities of any series
occurs and is continuing, the principal amount of, and all accrued and unpaid
interest on, all debt securities of such series shall become immediately due and
payable without any declaration or other act on the part of the trustee or any
holder of debt securities of such series. (Section 6.02) If debt securities of
any series are original issue discount debt securities, then only the amount of
the principal of those debt securities then outstanding as may be specified in
the terms of that series and any accrued interest on that specified principal
amount may be accelerated.
The holders of a majority in the principal amount of debt securities
may waive all defaults and annul and rescind a declaration of maturity of some
or all of the debt securities if all payments other than the accelerated amounts
have been made and all events of default have been cured, waived or otherwise
remedied as provided in the indenture. Any such waiver, annulment and rescission
must occur before a judgment or decree for amounts due has been obtained or
entered. However, the consent of each security holder affected is required in
order to waive a default in the payment of the principal of or interest on any
debt securities or any covenant or provision of the indenture which specifically
requires the consent of the holder of each debt security affected.
The indenture requires us to file with the trustee annually a written
statement as to any defaults in the performance or fulfillment of any of our
covenants, agreements or conditions contained in the indenture. (Section 4.07)
The indenture provides that if the trustee considers it in the interests of the
holders of the debt securities of any series, the trustee may withhold notice to
the holders of debt securities of that series of any default other than a
default in the payment of principal of, or interest on, the debt securities of
that series. (Section 7.05)
Except for the trustee's duty during an event of default to act with
the required standard of care, the trustee is under no obligation to exercise
any of the trusts or powers vested in it by the indenture at the request, order
or direction of any of the holders of debt securities, unless those holders have
offered the trustee reasonable indemnity. (Section 7.01) Subject to these
provisions for indemnification, the holders of a majority in principal amount of
the debt securities of each series affected, voting as a separate class, may
direct the time, method and place of conducting any proceeding for any remedy
available to the trustee, or exercising any trust or power conferred on the
trustee with respect to the debt securities of that series.
(Section 6.05)
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No holder of debt securities of any series will have any right by
virtue of the indenture to institute any legal action or proceeding with respect
to the indenture, unless
o that holder has previously given to the trustee written notice of
a continuing default;
o the holders of not less than 25% in principal amount of the debt
securities of that series then outstanding have made written
request on the trustee to institute such action or proceeding and
have offered to the trustee any reasonable indemnity that the
trustee may require relating to their request;
o the trustee fails to institute the requested proceeding within 60
days; and
o no direction inconsistent with such written request has been
given to the trustee by the holders of a majority in principal
amount of the debt securities of such series then outstanding.
(Section 6.06)
These limitations do not apply to a suit for enforcement of payment of
the principal of or interest on a debt security on or after the respective due
dates. (Section 6.07)
Defeasance and Covenant Defeasance
The indenture contains a provision that, if made applicable to any
series of debt securities, permits us to elect, subject to certain conditions,
to be discharged from our obligations with respect to the debt securities of
that series, subject to limited exceptions ("legal defeasance") and/or to be
released from our obligations with respect to any series of debt securities
under the covenants in the indenture ("covenant defeasance").
To make either of these elections, we must irrevocably deposit in trust
with the trustee money or U.S. Government Obligations or a combination of the
two sufficient, without reinvestment, in the opinion of a nationally recognized
firm of independent public accountants, to pay and discharge the principal of
and interest on the outstanding debt securities of that series on the maturity
of that principal or interest. We must also comply with certain other conditions
set forth in the indenture, including delivering to the trustee a certificate
stating that we have received from, or there has been published by, the Internal
Revenue Service a ruling confirming that the defeasance will not cause the
holders of the debt securities to recognize income gain or loss for Federal
income tax purposes, and that as a result of the defeasance, the debt security
holder will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance had
not occurred. (Sections 8.01, 8.02)
Modification and Waiver
The indenture provides that we and the trustee may modify or amend the
indenture with the consent of the holders of a majority in principal amount of
the debt securities at the time outstanding of all series affected by the
proposed additions or changes. However the consent of the holder of each debt
security is required, among other things, in order to:
o reduce the amount of debt securities of such series whose holders
must consent to an amendment or to a waiver of any default
hereunder and its consequences as provided herein;
o reduce the rate or extend the time for payment of interest on any
debt security of such series;
o reduce the principal of any debt security of such series or
extend the stated maturity of any debt security of such series;
o reduce the premium payable upon the redemption of any debt
security of such series or change the time at which any debt
security of such series may or shall be redeemed in accordance
with the indenture;
o impair the right to institute suit for the enforcement of any
payment of principal of or any premium or interest on any debt
security of such series after the stated maturity thereof (or, in
the case of redemption, on or after the redemption date); or
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o make any debt security of such series payable in money other than
that stated in such debt security. (Section 9.02)
In addition, without the consent of the holders of any of the debt
securities issued under the indenture, we and the trustee may modify the
indenture to, among other things, cure any ambiguity or to correct or supplement
any defective or inconsistent provision or to make other provisions in regard to
matters or questions arising under the indenture as we may deem necessary or
desirable and which do not adversely affect the interests of the holders of the
debt securities. (Section 9.01)
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DESCRIPTION OF PREFERRED STOCK WE MAY OFFER
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Please note that in this section entitled "Description of Preferred Stock We May
Offer", references to the "Company", "we", "our" and "us" refer only to Cytec
Industries Inc. and not to its consolidated subsidiaries. Also, in this section,
references to "holders" mean those who own shares of preferred stock registered
in their own names, on the books that the registrar or we maintain for this
purpose, and not those who own beneficial interests in shares registered in
street name or in shares issued in book-entry form through one or more
depositaries. Owners of beneficial interests in shares of preferred stock should
read the section below entitled "Legal Ownership and Book-Entry Issuance".
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We may issue our preferred stock in one or more series, as described
below. This section summarizes terms of the preferred stock that apply generally
to all series. We describe most of the financial and other specific terms of
your series in the prospectus supplement accompanying this prospectus. Those
terms may vary from the terms described here.
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As you read this section, please remember that the specific terms of your series
of preferred stock as described in your prospectus supplement will supplement
and, if applicable, may modify or replace the general terms described in this
section. If there are differences between your prospectus supplement and this
prospectus, your prospectus supplement will control. Thus, the statements we
make in this section may not apply to your series of preferred stock.
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When we refer to a series of preferred stock, we mean all of the shares
of preferred stock issued as part of the same series under a certificate of
designations filed as part of our certificate of incorporation. When we refer to
your prospectus supplement, we mean the prospectus supplement describing the
specific terms of the preferred stock you purchase. The terms used in your
prospectus supplement will have the meanings described in this prospectus,
unless otherwise specified.
Our authorized capital stock includes 20,000,000 shares of preferred
stock, par value $0.01 per share. We do not have any preferred stock outstanding
as of the date of this prospectus; the prospectus supplement with respect to any
offered preferred stock will describe any preferred stock that may be
outstanding as of the date of the prospectus supplement.
Preferred Stock Issued in Separate Series
Our board of directors is authorized to divide the preferred stock into
series and, with respect to each series, to determine the designations, the
powers, preferences and rights and the qualifications, limitations and
restrictions of the series, including:
o dividend rights;
o conversion or exchange rights;
o voting rights;
o redemption rights and terms;
o liquidation preferences;
o sinking fund provisions;
o the serial designation of the series; and
o the number of shares constituting the series.
Subject to the rights of the holders of any series of preferred stock,
the number of authorized shares of any series of preferred stock may be
increased or decreased, but not below the number of shares of that series then
outstanding, by resolution adopted by our board of directors and approved by the
affirmative vote of the holders of a majority of the voting power of all
outstanding shares of capital stock entitled to vote on the matter, voting
together as a single class. No separate vote of the holders of any series of
preferred stock is required for an increase or decrease in the number of
authorized shares of that series.
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Before we issue any series of preferred stock, our board of directors,
or a committee of our board authorized to do so by our board, will adopt
resolutions creating and designating the series and will file a certificate of
designations stating the terms of the series with the Secretary of State of the
State of Delaware. None of our stockholders will need to approve that amendment.
The rights of holders of preferred stock may be adversely affected by
the rights of holders of preferred stock that may be issued in the future. Our
board of directors may cause shares of preferred stock to be issued in public or
private transactions for any proper corporate purpose. Examples of proper
corporate purposes include issuances to obtain additional financing for
acquisitions and issuances to officers, directors and employees under their
respective benefit plans. Shares of preferred stock we issue may have the effect
of discouraging or making more difficult an acquisition of us.
Preferred stock will be fully paid and nonassessable when issued, which
means that its holders will have paid their purchase price in full and that we
may not ask them to surrender additional funds. Holders of preferred stock will
not have preemptive or subscription rights to acquire more of our stock.
The transfer agent, registrar, dividend disbursing agent and redemption
agent for shares of each series of preferred stock will be named in the
prospectus supplement relating to that series.
Rank
Shares of each series of preferred stock will rank equally with each
other series of preferred stock and senior to our common stock with respect to
dividends and distributions of assets. In addition, we will generally be able to
pay dividends and distributions of assets to holders of our preferred stock only
if we have satisfied our obligations on our indebtedness then due and payable.
Dividends
Holders of each series of preferred stock will be entitled to receive
cash dividends when, as and if declared by our board of directors, from funds
legally available for the payment of dividends. The rates and dates of payment
of dividends for each series of preferred stock will be stated in the applicable
prospectus supplement. Dividends will be payable to holders of record of
preferred stock as they appear on our books on the record dates fixed by our
board of directors. Dividends on any series of preferred stock may be cumulative
or noncumulative, as set forth in the applicable prospectus supplement.
Redemption
If specified in an applicable prospectus supplement, a series of
preferred stock may be redeemable at any time, in whole or in part, at our
option or the holder's, and may be redeemed mandatorily.
Any restriction on the repurchase or redemption by us of our preferred
stock while there is an arrearage in the payment of dividends will be described
in the applicable prospectus supplement.
Any partial redemptions of preferred stock will be made in a way that
our board of directors decides is equitable.
Unless we default in the payment of the redemption price, dividends
will cease to accrue after the redemption date on shares of preferred stock
called for redemption and all rights of holders of these shares will terminate
except for the right to receive the redemption price.
Conversion or Exchange Rights
The prospectus supplement relating to any series of preferred stock
that is convertible, exercisable or exchangeable will state the terms on which
shares of that series are convertible into or exercisable or exchangeable for
shares of common stock, another series of preferred stock or other securities of
ours or debt or equity securities of third parties.
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Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding
up of Cytec Industries Inc., holders of each series of preferred stock will be
entitled to receive distributions upon liquidation in the amount described in
the applicable prospectus supplement, plus an amount equal to any accrued and
unpaid dividends. These distributions will be made before any distribution is
made on any securities ranking junior to the preferred stock with respect to
liquidation, including our common stock. If the liquidation amounts payable
relating to the preferred stock of any series and any other securities ranking
on a parity regarding liquidation rights are not paid in full, the holders of
the preferred stock of that series and the other securities will share in any
distribution of our available assets on a ratable basis in proportion to the
full liquidation preferences of each security. Holders of our preferred stock
will not be entitled to any other amounts from us after they have received their
full liquidation preference.
Voting Rights
The holders of preferred stock of each series will have no voting
rights, except:
o as stated in the applicable prospectus supplement and in the
certificate of designations establishing the series; or
o as required by applicable law.
Mergers and Similar Transactions Permitted; No Restrictive Covenants
The terms of the preferred stock will not include any restrictions on
our ability to merge or consolidate with, or sell our assets to, another
corporation or other entity or to engage in any other transactions. The terms of
the preferred stock also will not include any restrictions on our ability to put
liens on our assets, including our interests in our subsidiaries.
Governing Law
The preferred stock will be governed by Delaware law.
Form of Preferred Stock
We may issue preferred stock in book-entry form. Preferred stock in
book-entry form will be represented by a global security registered in the name
of a depositary, which will be the holder of all the shares of preferred stock
represented by the global security. Those who own beneficial interests in shares
of preferred stock will do so through participants in the depositary's system,
and the rights of these indirect owners will be governed solely by the
applicable procedures of the depositary and its participants. However,
beneficial owners of any preferred stock in book-entry form will have the right
to obtain their shares in non-global form. We describe book-entry securities
below under "Legal Ownership and Book-Entry Issuance". All preferred stock will
be issued in registered form.
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DESCRIPTION OF CAPITAL STOCK
Authorized Capital Stock
Under our certificate of incorporation, the total number of shares of
all classes of stock that we have authority to issue is 170,000,000, of which
20,000,000 are shares of preferred stock and 150,000,000 are shares of common
stock.
Common Stock
The holders of our common stock are entitled to one vote for each share
on all matters voted on by stockholders, and the holders of such shares possess
all voting power, except as otherwise required by law or provided in any
resolution adopted by our board of directors with respect to any series of
preferred stock. Subject to any preferential or other rights of any outstanding
series of our preferred stock that may be designated by our board of directors,
the holders of our common stock will be entitled to such dividends as may be
declared from time to time by our board of directors from funds available
therefor, and upon liquidation will be entitled to receive pro rata all of our
assets available for distribution to such holders.
No Preemptive Rights
No holder of any class of our capital stock has any preemptive right to
subscribe to any of our securities of any kind or class.
Transfer Agent And Registrar
The Transfer Agent and Registrar for our common stock is ChaseMellon
Shareholder Services, L.L.C.
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LEGAL OWNERSHIP AND BOOK-ENTRY ISSUANCE
In this section, we describe special considerations that will apply to
registered securities issued in global - i.e., book-entry-form. First we
describe the difference between legal ownership and indirect ownership of
registered securities. Then we describe special provisions that apply to global
securities.
Who Is the Legal Owner of a Registered Security?
Each security in registered form will be represented either by a
certificate issued in definitive form to a particular investor or by one or more
global securities representing the entire issuance of securities. We refer to
those who have securities registered in their own names, on the books that we or
the trustee or other agent maintain for this purpose, as the "holders" of those
securities. These persons are the legal holders of the securities. We refer to
those who, indirectly through others, own beneficial interests in securities
that are not registered in their own names as indirect owners of those
securities. As we discuss below, indirect owners are not legal holders, and
investors in securities issued in book-entry form or in street name will be
indirect owners.
Book-Entry Owners
We will issue each security in book-entry form only. This means
securities will be represented by one or more global securities registered in
the name of a financial institution that holds them as depositary on behalf of
other financial institutions that participate in the depositary's book-entry
system. These participating institutions, in turn, hold beneficial interests in
the securities on behalf of themselves or their customers.
Under each indenture, only the person in whose name a security is
registered is recognized as the holder of that security. Consequently, for
securities issued in global form, we will recognize only the depositary as the
holder of the securities and we will make all payments on the securities,
including deliveries of any property other than cash, to the depositary. The
depositary passes along the payments it receives to its participants, which in
turn pass the payments along to their customers who are the beneficial owners.
The depositary and its participants do so under agreements they have made with
one another or with their customers; they are not obligated to do so under the
terms of the securities.
As a result, investors will not own securities directly. Instead, they
will own beneficial interests in a global security, through a bank, broker or
other financial institution that participates in the depositary's book-entry
system or holds an interest through a participant. As long as the securities are
issued in global form, investors will be indirect owners, and not holders, of
the securities.
Street Name Owners
In the future we may terminate a global security or issue securities
initially in non-global form. In these cases, investors may choose to hold their
securities in their own names or in street name. Securities held by an investor
in street name would be registered in the name of a bank, broker or other
financial institution that the investor chooses, and the investor would hold
only a beneficial interest in those securities through an account he or she
maintains at that institution.
For securities held in street name, we will recognize only the
intermediary banks, brokers and other financial institutions in whose names the
securities are registered as the holders of those securities and we will make
all payments on those securities, including deliveries of any property other
than cash, to them. These institutions pass along the payments they receive to
their customers who are the beneficial owners, but only because they agree to do
so in their customer agreements or because they are legally required to do so.
Investors who hold securities in street name will be indirect owners, not
holders, of those securities.
Legal Holders
Our obligations as well as the obligations of the trustee under any
indenture and any other third parties employed by us, the trustee or any of
those agents, run only to the holders of the securities. We have no obligations
to investors who hold beneficial interests in global securities, in street name
or by any other indirect means. This will be the case whether an investor
chooses to be an indirect owner of a security or has no choice because we are
issuing the securities only in global form.
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For example, once we make a payment or give a notice to the holder, we
have no further responsibility for that payment or notice even if that holder is
required, under agreements with depositary participants or customers or by law,
to pass it along to the indirect owners but does not do so. Similarly, if we
want to obtain the approval of the holders for any purpose -- e.g., to amend the
indenture for a series of debt securities or to relieve us of the consequences
of a default or of our obligation to comply with a particular provision of an
indenture -- we would seek the approval only from the holders, and not the
indirect owners, of the relevant securities. Whether and how the holders contact
the indirect owners is up to the holders.
When we refer to "you" in this prospectus, we mean those who invest in
the securities being offered by this prospectus, whether they are the holders or
only indirect owners of those securities. When we refer to "your securities" in
this prospectus, we mean the securities in which you will hold a direct or
indirect interest.
Special Considerations for Indirect Owners
If you hold securities through a bank, broker or other financial
institution, either in book-entry form or in street name, you should check with
your own institution to find out:
o how it handles securities payments and notices;
o whether it imposes fees or charges;
o whether and how you can instruct it to exchange or convert a
security for or into other property;
o how it would handle a request for the holders' consent, if ever
required;
o whether and how you can instruct it to send you securities
registered in your own name so you can be a holder, if that is
permitted in the future;
o how it would exercise rights under the securities if there were a
default or other event triggering the need for holders to act to
protect their interests; and
o if the securities are in book-entry form, how the depositary's
rules and procedures will affect these matters.
What Is a Global Security?
We will issue each security in book-entry form only. Each security
issued in book-entry form will be represented by a global security that we
deposit with and register in the name of one or more financial institutions or
clearing systems, or their nominees, which we select. A financial institution or
clearing system that we select for any security for this purpose is called the
"depositary" for that security. A security will usually have only one depositary
but it may have more.
Each series of securities will have one or more of the following as the
depositaries:
o The Depository Trust Company, New York, New York, which is known
as "DTC";
o a financial institution holding the securities on behalf of
Euroclear Bank S.A./N.V., as operator of the Euroclear system,
which is known as "Euroclear";
o a financial institution holding the securities on behalf of
Clearstream Banking, societe anonyme, Luxembourg, which is known
as "Clearstream"; and
o any other clearing system or financial institution named in the
applicable prospectus supplement.
The depositaries named above may also be participants in one another's
systems. Thus, for example, if DTC is the depositary for a global security,
investors may hold beneficial interests in that security through Euroclear or
Clearstream, as DTC participants. The depositary or depositaries for your
securities will be named in your prospectus supplement; if none is named, the
depositary will be DTC.
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A global security may represent one or any other number of individual
securities. Generally, all securities represented by the same global security
will have the same terms. We may, however, issue a global security that
represents multiple securities of the same kind, such as debt securities, that
have different terms and are issued at different times. We call this kind of
global security a master global security. Your prospectus supplement will not
indicate whether your securities are represented by a master global security.
A global security may not be transferred to or registered in the name
of anyone other than the depositary or its nominee, unless special termination
situations arise. We describe those situations below under "-- Holder's Option
to Obtain a Non-Global Security; Special Situations When a Global Security Will
Be Terminated". As a result of these arrangements, the depositary, or its
nominee, will be the sole registered owner and holder of all securities
represented by a global security, and investors will be permitted to own only
indirect interests in a global security. Indirect interests must be held by
means of an account with a broker, bank or other financial institution that in
turn has an account with the depositary or with another institution that does.
Thus, an investor whose security is represented by a global security will not be
a holder of the security, but only an indirect owner of an interest in the
global security.
If the prospectus supplement for a particular security indicates that
the security will be issued in global form only, then the security will be
represented by a global security at all times unless and until the global
security is terminated. We describe the situations in which this can occur below
under "-- Holder's Option to Obtain a Non-Global Security; Special Situations
When a Global Security Will Be Terminated". If termination occurs, we may issue
the securities through another book-entry clearing system or decide that the
securities may no longer be held through any book-entry clearing system.
Special Considerations for Global Securities
As an indirect owner, an investor's rights relating to a global
security will be governed by the account rules of the depositary and those of
the investor's financial institution or other intermediary through which it
holds its interest (e.g., Euroclear or Clearstream, if DTC is the depositary),
as well as general laws relating to securities transfers. We do not recognize
this type of investor or any intermediary as a holder of securities and instead
deal only with the depositary that holds the global security.
If securities are issued only in the form of a global security, an
investor should be aware of the following:
o An investor cannot cause the securities to be registered in his
or her own name, and cannot obtain non-global certificates for
his or her interest in the securities, except in the special
situations we describe below;
o An investor will be an indirect holder and must look to his or
her own bank or broker for payments on the securities and
protection of his or her legal rights relating to the securities,
as we describe above under "-- Who Is the Legal Owner of a
Registered Security?";
o An investor may not be able to sell interests in the securities
to some insurance companies and other institutions that are
required by law to own their securities in non-book-entry form;
o An investor may not be able to pledge his or her interest in a
global security in circumstances where certificates representing
the securities must be delivered to the lender or other
beneficiary of the pledge in order for the pledge to be
effective;
o The depositary's policies will govern payments, deliveries,
transfers, exchanges, notices and other matters relating to an
investor's interest in a global security, and those policies may
change from time to time. We and the trustee will have no
responsibility for any aspect of the depositary's policies,
actions or records of ownership interests in a global security.
We and the trustee also do not supervise the depositary in any
way;
o The depositary will require that those who purchase and sell
interests in a global security within its book-entry system use
immediately available funds and your broker or bank may require
you to do so as well; and
o Financial institutions that participate in the depositary's
book-entry system and through which an investor holds its
interest in the global securities, directly or indirectly, may
also have their own policies affecting payments, deliveries,
transfers, exchanges, notices and other matters relating to the
securities, and those policies may change from time to time. For
example, if you hold an interest in a global security through
Euroclear or Clearstream, when DTC is the depositary, Euroclear
or Clearstream, as applicable, will require those who purchase
and sell interests in that security through them to use
immediately available funds and comply with other policies and
procedures, including deadlines for giving instructions as to
transactions that are to be effected on a particular day. There
may be more than one financial intermediary in the chain of
ownership for an investor. We do not monitor and are not
responsible for the policies or actions or records of ownership
interests of any of those intermediaries.
20
Holder's Option to Obtain a Non-Global Security; Special Situations When a
Global Security Will Be Terminated
If we issue any series of securities in book-entry form but we choose
to give the beneficial owners of that series the right to obtain non-global
securities, any beneficial owner entitled to obtain non-global securities may do
so by following the applicable procedures of the depositary, any transfer agent
or registrar for that series and that owner's bank, broker or other financial
institution through which that owner holds its beneficial interest in the
securities. For example, in the case of a global security representing preferred
stock or depositary shares, a beneficial owner will be entitled to obtain a
non-global security representing its interest by making a written request to the
transfer agent or other agent designated by us. If you are entitled to request a
non-global certificate and wish to do so, you will need to allow sufficient lead
time to enable us or our agent to prepare the requested certificate.
In addition, in a few special situations described below, a global
security will be terminated and interests in it will be exchanged for
certificates in non-global form representing the securities it represented.
After that exchange, the choice of whether to hold the securities directly or in
street name will be up to the investor. Investors must consult their own banks
or brokers to find out how to have their interests in a global security
transferred on termination to their own names, so that they will be holders. We
have described the rights of holders and street name investors above under "--
Who Is the Legal Owner of a Registered Security?".
The special situations for termination of a global security are as
follows:
o if the depositary notifies us that it is unwilling, unable or no
longer qualified to continue as depositary for that global
security and we do not appoint another institution to act as
depositary within 60 days;
o if we notify the trustee that we wish to terminate that global
security; or
o in the case of a global security representing debt securities
issued under an indenture, if an event of default has occurred
with regard to these debt securities and has not been cured or
waived.
If a global security is terminated, only the depositary, and not we or
the trustee for any debt securities is responsible for deciding the names of the
institutions in whose names the securities represented by the global security
will be registered and, therefore, who will be the holders of those securities.
Considerations Relating to Euroclear and Clearstream
Euroclear and Clearstream are securities clearance systems in Europe.
Both systems clear and settle securities transactions between their participants
through electronic, book-entry delivery of securities against payment.
Euroclear and Clearstream may be depositaries for a global security. In
addition, if DTC is the depositary for a global security, Euroclear and
Clearstream may hold interests in the global security as participants in DTC.
As long as any global security is held by Euroclear or Clearstream, as
depositary, you may hold an interest in the global security only through an
organization that participates, directly or indirectly, in Euroclear or
Clearstream. If Euroclear or Clearstream is the depositary for a global security
and there is no depositary in the United States, you will not be able to hold
interests in that global security through any securities clearance system in the
United States.
Payments, deliveries, transfers, exchanges, notices and other matters
relating to the securities made through Euroclear or Clearstream must comply
with the rules and procedures of those systems. Those systems could change their
rules and procedures at any time. We have no control over those systems or their
participants, and we take no responsibility for their activities. Transactions
between participants in Euroclear or Clearstream, on one hand, and participants
in DTC, on the other hand, when DTC is the depositary, would also be subject to
DTC's rules and procedures.
21
Special Timing Considerations for Transactions in Euroclear and Clearstream
Investors will be able to make and receive through Euroclear and
Clearstream payments, deliveries, transfers, exchanges, notices and other
transactions involving any securities held through those systems only on days
when those systems are open for business. Those systems may not be open for
business on days when banks, brokers and other institutions are open for
business in the United States.
In addition, because of time-zone differences, U.S. investors who hold
their interests in the securities through these systems and wish to transfer
their interests, or to receive or make a payment or delivery or exercise any
other right with respect to their interests, on a particular day may find that
the transaction will not be effected until the next business day in Luxembourg
or Brussels, as applicable. Thus, investors who wish to exercise rights that
expire on a particular day may need to act before the expiration date. In
addition, investors who hold their interests through both DTC and Euroclear or
Clearstream may need to make special arrangements to finance any purchases or
sales of their interests between the U.S. and European clearing systems, and
those transactions may settle later than would be the case for transactions
within one clearing system.
22
PLAN OF DISTRIBUTION
We may sell the securities registered hereby to one or more
underwriters for a public offering by them. We may also sell securities to
investors directly or through agents or dealers. The prospectus supplement will
include the names of any underwriters, agents or dealers to be used in the
distribution.
The securities may be offered and sold at a fixed price or prices,
which may be changed from time to time. They may also be offered and sold from
time to time at market prices prevailing at the time of sale, at prices related
to these prevailing market prices or at negotiated prices. We may also, from
time to time, authorize underwriters acting as our agents to offer and sell the
securities. A prospectus supplement will include the terms of these
arrangements. If securities are sold through an underwritten offering, we will
execute an underwriting agreement with an underwriter or underwriters. The
prospectus supplement will include the names of the specific managing
underwriter or underwriters and other underwriters, and the amount of securities
to be underwritten by those underwriters. The prospectus supplement will also
have the terms of the transaction, including commissions, discounts and any
other compensation of the underwriters and dealers. The underwriters will use
this prospectus and the prospectus supplement to sell the securities. The
underwriting agreement will provide that the obligations of the underwriters are
subject to specified conditions precedent.
In connection with the sale of securities, underwriters may be
considered to have received compensation from us in the form of underwriting
discounts or commissions. They may also receive commissions from purchasers of
securities for whom they may act as agent. Underwriters may sell securities to
or through dealers. These dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters, and they may also
receive commissions from the purchasers for whom they may act as agent.
The prospectus supplement will set forth any underwriting compensation
paid by us to underwriters or agents in connection with the offering of
securities, as well as any discounts, concessions or commissions allowed by
underwriters to participating dealers. Underwriters, dealers and agents
participating in the distribution of the securities may be deemed to be
underwriters under the Securities Act. Also any discounts and commissions
received by them and any profit realized by them on resale of the securities may
be deemed to be underwriting discounts and commissions under the Securities Act.
Underwriters, dealers and agents may be entitled under agreements with us to
indemnification against and contribution toward certain civil liabilities,
including liabilities under the Securities Act, and to reimbursement by us for
various expenses.
If we use a dealer in the sale of securities, we will sell the
securities to the dealer, as principal. The dealer may then resell these
securities to the public at varying prices to be determined by the dealer at the
time of resale. The prospectus supplement will name these dealers and the terms
of these arrangements.
We may offer and sell the securities directly to institutional
investors or others. These parties may be deemed to be underwriters under the
Securities Act with respect to their resales. The prospectus supplement will
include the terms of these transactions.
The securities may or may not be listed on a national securities
exchange or a foreign securities exchange. The securities may not have an
established trading market. No assurances can be given that there will be a
market for any of the securities.
Agents, underwriters and dealers may be customers of, engage in
transactions with or perform services for, us and our subsidiaries in the
ordinary course of business.
23
VALIDITY OF THE SECURITIES
In connection with particular offerings of the securities in the
future, and if stated in the applicable prospectus supplements, the validity of
those securities may be passed upon for us by Roy Smith, Esq., our Vice
President, General Counsel and Secretary, and for any underwriters or agents by
counsel named in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements and schedule of Cytec Industries
Inc. as of December 31, 2004 and 2003, and for each of the years in the
three-year period ended December 31, 2004, and management's assessment of the
effectiveness of the internal control over financial reporting as of December
31, 2004 have been incorporated by reference herein and in the registration
statement in reliance upon the reports of KPMG LLP, independent registered
public accounting firm, incorporated by reference herein, and upon authority of
said firm as experts in accounting and auditing.
The audit report covering the consolidated financial statements refers
to a change to the first-in, first-out (FIFO) method for valuing inventories.
The audit report covering the December 31, 2003 financial statements refers to a
change from the adoption of the provisions of Statement of Financial Accounting
Standards No. 143, "Accounting for Asset Retirement Obligations". The audit
report covering the December 31, 2002 financial statements refers to a change
from the adoption of the provisions of Statements of Financial Accounting
Standards No. 142, "Goodwill and Other Intangible Assets".
The combined special purpose financial statements of Surface
Specialties, a business of UCB SA, as of December 31, 2004 and 2003, and for the
years then ended, incorporated in this registration statement by reference to
the Current Report on Form 8-K/A of Cytec Industries Inc., filed on May 16,
2005, have been so incorporated in reliance upon the report of
PricewaterhouseCoopers Reviseurs d'Entreprises, independent accountants, given
on the authority of said firm as experts in auditing and accounting.
24
PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution
The following is a statement of the expenses (all of which are
estimated other than the SEC registration fee and NASD fees) to be incurred by
Cytec Industries Inc. in connection with the distribution of the securities
registered under this registration statement:
-------------------------------------------------------------------------------- -----------------
Amount
to be paid
-------------------------------------------------------------------------------- -----------------
SEC registration fee......................................................... $70,620
-------------------------------------------------------------------------------- -----------------
NASD fees....................................................................
-------------------------------------------------------------------------------- -----------------
Legal fees and expenses......................................................
-------------------------------------------------------------------------------- -----------------
Fees and expenses of qualification under state securities laws (including
legal fees).............................................................
-------------------------------------------------------------------------------- -----------------
Accounting fees and expenses.................................................
-------------------------------------------------------------------------------- -----------------
Printing fees................................................................
-------------------------------------------------------------------------------- -----------------
Rating agency fees...........................................................
-------------------------------------------------------------------------------- -----------------
Trustee's fees and expenses..................................................
-------------------------------------------------------------------------------- -----------------
Miscellaneous................................................................
-------------------------------------------------------------------------------- -----------------
Total............................................................... $
-------------------------------------------------------------------------------- =================
Item 15. Indemnification of Directors and Officers
Our By-laws provide that we shall indemnify, to the extent permitted by
Delaware law, our directors, officers and employees against liabilities
(including expenses, judgments and settlements) incurred by them in connection
with any actual or threatened action, suit or proceeding to which they are or
may become parties and which arises out of their status as directors, officers
or employees.
Sections 145(a) and 145(b) of the Delaware General Corporation Law
("DGCL") permit a corporation to indemnify any director, officer, employee or
agent of the corporation against expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement or incurred by him in connection with any
proceeding arising out of his status as director, officer, employee or agent if
such person acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect to
any criminal action, had no reasonable cause to believe his conduct was
unlawful. To the extent that such a person has been successful in defense of any
such action or claim, Section 145(c) provides that he shall be indemnified
against expenses incurred by him in connection therewith.
As permitted by Section 102(b)(7) of the DGCL, Article Ninth of our
Certificate of Incorporation limits the personal liability of our directors to
us or our shareholders for monetary damages for breach of fiduciary duty except
for liability (i) for any breach of the director's duty of loyalty to us or our
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL or (iv) for any transaction from which the director derived an improper
personal benefit.
Item 16. Exhibits
---------------- -------------------------------------------------- --------------------------------------------------
Exhibit Description Incorporated by Reference to Filings Indicated
No.
---------------- -------------------------------------------------- --------------------------------------------------
1.1 Form of Underwriting Agreement for debt *
securities.
---------------- -------------------------------------------------- --------------------------------------------------
1.2 Form of Underwriting Agreement for preferred *
stock.
---------------- -------------------------------------------------- --------------------------------------------------
II-1
---------------- -------------------------------------------------- --------------------------------------------------
Exhibit Description Incorporated by Reference to Filings Indicated
No.
---------------- -------------------------------------------------- --------------------------------------------------
1.3 Form of Underwriting Agreement for common stock. *
---------------- -------------------------------------------------- --------------------------------------------------
4.1 Specimen of certificate representing common Exhibit 4.1 to Registration Statement on Form 10
stock, par value $0.01 per share.
---------------- -------------------------------------------------- --------------------------------------------------
4.2 Trust Indenture dated as of March 15, 1998, between Exhibit 4.1 to Current Report on Form 8-K dated
the registrant and The Chase Manhattan Bank, as March 18, 1998
Trustee.
---------------- -------------------------------------------------- --------------------------------------------------
4.3 First Supplemental Indenture, dated as of May 11, Exhibit 4.2 to Quarterly Report on Form 10-Q for
1998, between the registrant and The Chase the Quarter ended March 31, 1998
Manhattan Bank, as Trustee.
---------------- -------------------------------------------------- --------------------------------------------------
4.4 Form of debt security (contained in Exhibit 4.2).
---------------- -------------------------------------------------- --------------------------------------------------
5.1 Opinion of Roy Smith, Esq. **
---------------- -------------------------------------------------- --------------------------------------------------
12.1 Statement re: computation of ratios of earnings **
to fixed charges.
---------------- -------------------------------------------------- --------------------------------------------------
23.1 Consent of KPMG LLP. **
---------------- -------------------------------------------------- --------------------------------------------------
23.2 Consent of PricewaterhouseCoopers Reviseurs **
d'Entreprises.
---------------- -------------------------------------------------- --------------------------------------------------
23.3 Consent of Roy Smith, Esq. (included in Exhibit
5.1).
---------------- -------------------------------------------------- --------------------------------------------------
24.1 Power of Attorney (included on signature page).
---------------- -------------------------------------------------- --------------------------------------------------
25.1 Statement of Eligibility of Trustee. **
---------------- -------------------------------------------------- --------------------------------------------------
---------------------
* To be filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
** Filed herewith.
Item 17. Undertakings
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
II-2
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(5) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(6) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(7) The undersigned registrant hereby under takes to file an
application for the purpose of determining the eligibility of the trustee under
subsection (a) of Section 310 of the Trust Indenture Act (the "Act")
in accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in said
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in West Paterson, New Jersey on August 12, 2005.
CYTEC INDUSTRIES INC.
By: /s/ James P. Cronin
------------------------------------------
Name: James P. Cronin
Title: Executive Vice President and
Chief Financial officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints David Lilley, James P. Cronin and Roy Smith,
severally, his and/or her true and lawful attorney, each with power to act
without the other and full power of substitution, to execute, deliver and file,
for and on his behalf, and in his name and in his capacity as director, a
registration statement on Form S-3 (or other appropriate form) for filing with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the issuance of debt securities, preferred
stock or common stock in an aggregate amount up to $750,000,000 (or the
equivalent in a foreign denomination currently), of Cytec Industries Inc.,
hereby granting to such attorneys and each of them full power and authority to
do and perform each and every act and thing whatsoever as such attorney or
attorneys may deem necessary or advisable to carry out fully the intent of the
foregoing as the undersigned might or could do personally or in his or her
capacity as director, hereby ratifying and confirming all acts and things which
such attorney or attorneys may do or cause to be done by virtue of this power of
attorney.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities on August 12, 2005.
------------------------------------------------------ ----------------------------------------------------------
Signature Title
------------------------------------------------------ ----------------------------------------------------------
/s/ D. Lilley Chairman of the Board, Chief
-------------------- Executive Officer and
D. Lilley President (principal executive officer)
------------------------------------------------------ ----------------------------------------------------------
/s/ J. P. Cronin Executive Vice President and
----------------- Chief Financial Officer
J.P. Cronin (principal financial and
accounting officer)
------------------------------------------------------ ----------------------------------------------------------
/s/ C.A. Davis Director
------------------
C.A. Davis
------------------------------------------------------ ----------------------------------------------------------
II-4
/s/ A.G. Fernandes Director
------------------
A.G. Fernandes
------------------------------------------------------ ----------------------------------------------------------
/s/ L.L. Hoynes, Jr. Director
--------------------
L.L. Hoynes, Jr.
------------------------------------------------------ ----------------------------------------------------------
/s/ B.C. Johnson Director
----------------
B.C. Johnson
------------------------------------------------------ ----------------------------------------------------------
/s/ W.P. Powell Director
---------------
W.P. Powell
------------------------------------------------------ ----------------------------------------------------------
/s/ J.R. Satrum Director
---------------
J.R. Satrum
------------------------------------------------------ ----------------------------------------------------------
/s/ R.P. Sharpe Director
---------------
R.P. Sharpe
------------------------------------------------------ ----------------------------------------------------------
/s/ J.R. Stanley Director
----------------
J.R. Stanley
------------------------------------------------------ ----------------------------------------------------------
II-5