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FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1998
OR
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
Commission file number 0-24425
KING PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
TENNESSEE 54-1684963
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
501 FIFTH STREET
BRISTOL, TENNESSEE 37620
(Address of principal executive offices and Zip Code)
Registrant's telephone number, including area code: (423) 989-8000
Securities registered under Section 12(b) of the Exchange Act: NONE
Securities registered under Section 12(g) of the Exchange Act: COMMON STOCK
Indicate by check mark whether the registrant (1) filed all reports
required to be filed by Section 13 or 15(d) of the Exchange Act during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days. Yes X No
----- -----
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
THE AGGREGATE MARKET VALUE OF THE SHARES OF COMMON STOCK HELD BY
NONAFFILIATES OF THE REGISTRANT AS OF MARCH 26, 1999 IS APPROXIMATELY
$458,700,000. (For purposes of this calculation only, all executive officers and
directors are classified as affiliates.)
Indicate the number of shares outstanding of each of the registrant's classes of
common stock, as of the latest practicable date. OUTSTANDING AT MARCH 26, 1999,
COMMON STOCK, NO PAR VALUE, 32,104,730.
Documents Incorporated by Reference: NONE
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PART I
ITEM 1. DESCRIPTION OF BUSINESS
King Pharmaceuticals, Inc. was incorporated in the State of Tennessee
in 1993. Our principal executive offices are located at 501 Fifth Street,
Bristol, Tennessee 37620. Our telephone number is (423)989-8000 and our
facsimile number is (423) 274-8677. Our wholly owned subsidiaries are Monarch
Pharmaceuticals, Inc.; Parkedale Pharmaceuticals, Inc.; and King Pharmaceuticals
of Nevada, Inc.
We are a vertically integrated pharmaceutical company that
manufactures, markets and sells primarily branded prescription pharmaceutical
products. Through a national sales force of over 200 representatives, we market
our branded pharmaceutical products to general/family practitioners and internal
medicine physicians and hospitals across the country. Our business strategy is
to acquire established branded pharmaceutical products and to increase their
sales by focused marketing and promotion and through product life cycle
management. In pursuing acquisitions, we seek to capitalize on opportunities in
the pharmaceutical industry created by cost containment initiatives and
consolidation among large, global pharmaceutical companies. We also create value
by developing product line extensions for our branded pharmaceutical products
such as new formulations, dosages or new indications. These product line
extensions are attractive for the Company because they may have market
exclusivity or sales levels that do not attract significant competition. In
addition to branded pharmaceuticals, we also provide contract manufacturing for
a number of the world's leading pharmaceutical and biotechnology companies,
including Amgen, Inc., Warner-Lambert Company, Mallinckrodt Chemical Inc.,
Genetics Institute and Hoffman-LaRoche, Inc.
Cost containment initiatives and consolidation among large, global
pharmaceutical companies have created substantial opportunities for us to
acquire established branded pharmaceutical products. We generally seek branded
pharmaceutical products that:
- have some patent protection or potential for market
exclusivity;
- lend themselves to product life cycle management;
- can benefit from focused marketing efforts including
sampling, advertising and direct mail; or
- complement our existing product lines.
Consistent with our strategy to acquire established branded
pharmaceutical products, we have acquired 34 branded pharmaceutical products
since December 1994. Most recently, we acquired three branded pharmaceutical
products from Hoechst Marion Roussel, Inc. ("HMR"). The acquired products were
(1) the U.S. rights to the Altace(R) product line, an Angiotensin Converting
Enzyme inhibitor with patent protection until 2008; (2) HMR's worldwide rights
to the Silvadene(R) product line, a burn cream; and (3)HMR's worldwide rights to
the AVC(TM) product line, a vaginal anti-infective cream.
COMPETITIVE STRENGTHS
We believe that our competitive position is attributable to a number of
key strengths, including the following:
- - Diverse Portfolio of Brand Name Products. Our branded pharmaceutical
products can be divided into four therapeutic areas: (i)
cardiovascular, (ii) anti-infectives, (iii) vaccines and biologicals
and (iv) women's health. All of these products are marketed to
general/family practitioners and internal medicine physicians. Unlike
many of our competitors, we have a broad therapeutic focus that has
provided us with opportunities to purchase a wide variety of products,
as evidenced by our acquisition of 26 products over the last 18 months,
including Altace. In addition, we have well known products in all of
our therapeutic categories. Our portfolio of recognized brand names
includes, among others, Altace(R), Neosporin(R), Cortisporin(R),
Pitocin(R), Anusol-HC(R) and Fluogen(R).
- - Demonstrated Ability to Sustain and Improve Cash Flows. Our
established, branded pharmaceutical product portfolio generated
approximately 75% gross margins for the year ended December 31, 1998
and requires limited research and development and capital expenditures.
We have increased sales and improved cash flows of many of the products
we have acquired. For example, in March 1997, we acquired from Glaxo
Wellcome, Inc. a full line of prescription formulations of ophthalmic,
otic and topical products marketed under the brand name Cortisporin(R).
In June 1998 we launched an extension of this product line called
Cortisporin(R)-TC Otic. In addition, we purchased the Proctocort(R)
cream formulation in January 1997 from Solvay Pharmaceuticals, Inc.,
and introduced the Proctocort(R) suppository product line extension in
August 1997. For the year ended December 31, 1998, sales of
Proctocort(R) suppositories exceeded sales of the original cream
formulation. Overall, due to product line extensions and marketing
efforts, we have increased sales of the Cortisporin(R) and
Proctocort(R) product lines. The acquisition
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of Altace(R) will also provide strong cash flow, as we have entered
into a five-year agreement with Hoechst Marion Roussel, Inc. to supply
us with Altace(R) at a contract price which, at current selling prices,
results in approximately 90% gross margins.
- - National Sales and Marketing Infrastructure. We have a national sales
and marketing infrastructure which includes over 200 sales
representatives dedicated to promoting and marketing our branded
pharmaceutical products to general/family practitioners and internal
medicine physicians. Our sales representatives are supported by 25
telemarketers and customer service representatives. In addition, we
expect to add approximately 50 sales representatives over the next six
months, which will enhance our national coverage. We have an excellent
relationship with our sales representatives as evidenced by an annual
turnover rate of less than 5%. This low turnover rate results in stable
relationships with general/family practitioners and internal medicine
physicians.
- - Manufacturing Expertise. We have flexible manufacturing capabilities
which give us the ability to acquire a variety of pharmaceutical
products, to integrate such products at attractive operating margins
and to develop new formulations and product line extensions. We
currently operate two facilities with a total of approximately one
million square feet of manufacturing, warehouse, laboratory and office
space. The Parkedale facility is one of the largest sterile
manufacturing facilities in the United States. The Parkedale facility
and the Bristol facility together can produce a broad range of
formulations and dosage forms such as sterile solutions, injectables,
tablets, capsules, creams, lyophylized (freeze-dried) products,
liquids, suppositories, ointments, suspensions, and powders. Our
manufacturing operations are integrated with our quality control,
quality assurance, regulatory compliance, purchasing, production
planning, distribution and inventory management operations. These
integrated services enable us to maintain high quality standards for
our products as well as provide reliable and timely service to our
customers. Currently, our capacity utilization is approximately 50% at
the Bristol facility and 30% at the Parkedale facility, providing us
with substantial manufacturing capacity for future growth.
- - Experienced and Dedicated Management Team. Our company has an
experienced management team which is led by John M. Gregory, Chairman
and Chief Executive Officer; Joseph R. Gregory, Vice Chairman; and
Jefferson J. Gregory, President. These senior executives have an
average of over 18 years of experience in the pharmaceutical industry.
In addition, our company's management team (12 persons) owns
approximately 41.3% of the our company's common stock.
GROWTH STRATEGY
We believe that our ability to identify and integrate branded
pharmaceutical products and to leverage our marketing and manufacturing
infrastructure positions our company for continued growth. Specifically, we will
pursue the following growth strategies:
- - Seek Attractively Priced Product Acquisition Opportunities. We intend
to continue to take advantage of industry consolidation and cost
cutting trends and to selectively pursue acquisitions of branded
pharmaceutical products. We generally seek branded pharmaceutical
products that: (i) have some patent protection or potential for market
exclusivity or product differentiation, (ii) lend themselves to product
life cycle management, (iii) can benefit from focused marketing efforts
in addition to product development, or (iv) complement our existing
product lines.
- - Enhance Sales Through Focused Marketing and Promotion. We seek to
increase the sales of our branded pharmaceutical products through
one-on-one meetings with physicians ("details" or "detailing") and
promotional efforts including sampling, advertising and direct mail.
For many of our branded pharmaceutical products, this increased focus
on product detailing and promotion is contrasted with the marketing
efforts made prior to our acquisition of the product. For example, we
intend to significantly increase the primary details and sampling of
Altace(R)to general/family practitioners and internal medicine
physicians as compared with the corresponding efforts by Hoechst Marion
Roussel, Inc. In addition, we will continue to leverage our sales force
of over 200 representatives by marketing a variety of products to
general/family practitioners and internal medicine physicians and
thereby increase sales of other branded products.
- - Increase Sales Through Product Life Cycle Management. Our product life
cycle management includes pricing, product development, product
position, identification of new therapeutic indications, maximization
of pharmaceutical product exclusivity and competitor evaluation. To
date, our product development efforts have focused on product line
extension which allow us to
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leverage our brand names, enhance product differentiation and minimize
sales lost to generic substitution. The implementation of this strategy
has resulted in the introduction of two line extensions,
Cortisporin(R)-TC Otic and Proctocort(R) suppositories. We will
continue to pursue product line extensions of existing and newly
acquired products.
- - Capitalize on Global Distribution Rights. We have worldwide
distribution rights to several of our branded pharmaceutical products.
We intend to promote international sales of these products by entering
into joint marketing and licensing agreements with international
pharmaceutical companies and distributors. We believe one benefit will
be low-cost access to foreign markets by utilizing the marketing and
regulatory infrastructure of these companies.
COMPLETED ACQUISITIONS
Certain information regarding our material acquisitions is set forth
below:
<TABLE>
<CAPTION>
DATE OF
SELLER PRODUCTS ACQUIRED(1) ACQUISITION PURCHASE PRICE
- ------ -------------------- ----------- --------------
<S> <C> <C> <C>
Hoechst Marion Roussel, Inc. ("HMR")....... Altace(R), Silvadene(R),AVC(TM) December 1998 $362.5 million
SmithKline Beecham Corporation (SmithKline") Menest(R) June 1998 5.0 million
Warner-Lambert Company ("Warner-Lambert)... Fluogen(R), Anusol-HC(R), Procanbid(R), February 1998 125.0 million(2)
Pitocin(R) and others
Glaxo Wellcome, Inc ("Glaxo Wellcome")..... Septra(R), Proloprim(R), Mantadil(R), November 1997 23.0 million
Kemadrin(R), Neosporin(R), Polysporin(R)(3)
Glaxo Wellcome............................. Viroptic(R) May 1997 6.0 million
Glaxo Wellcome............................. Cortisporin(R) product line March 1997 22.8 million
Solvay Pharmaceuticals, Inc................ Proctocort(R) January 1997 1.5 million
Roberts Pharmaceutical Corporation......... Nucofed(R), Quibron(R) October 1996 7.0 million
Boehringer Mannheim Pharmaceuticals
Corporation................................ Anexsia(R) product line(4) December 1994 17.6 million
</TABLE>
(1) For additional information, see Note 6 to the notes to consolidated
financial statements.
(2) The purchase price includes the acquisition of the Parkedale facility
and certain manufacturing contracts for third parties.
(3) We acquired the exclusive licenses, free of royalty obligations, to
market and manufacture prescription formulations of Neosporin(R) and
Polysporin(R).
(4) We sold the Anexsia(R) product line to Mallinckrodt Chemical, Inc. in
December 1995 for $32.0 million in cash and reported a $13.1 million
net gain.
INDUSTRY
Sales of pharmaceutical products in the United States were estimated to
be in excess of $85 billion in 1997. Growth in the pharmaceutical industry is
being driven primarily by: (i) the aging population; (ii) technological
breakthroughs which have increased the number of ailments which can be treated
with drugs; (iii) managed care's preference for drug therapy over surgery since
drug therapy is generally less costly; and (iv) direct-to-consumer television
advertising which has increased public awareness of available drug therapies.
During the past decade, the pharmaceutical industry has been faced with
cost containment initiatives from government and managed care organizations and
has begun to consolidate. Consolidation is being driven by a desire among
pharmaceutical companies to reduce costs through economies of scale and
synergies, to add previously lacking U. S. or European sales strength or to add
promising product pipelines or manufacturing capabilities in key therapeutic
categories.
Industry consolidation and cost containment pressures have increased
the level of sales necessary for an individual product to justify active
marketing and promotion from large pharmaceutical companies. For example, in
1997 the additional sales required for 1% sales growth for large global
pharmaceutical companies such as Merck, Johnson & Johnson and Novartis
Pharmaceuticals, a subsidiary of Novartis AG ("Novartis"), are $236 million,
$226 million and $214 million, respectively. This has led large pharmaceutical
companies to focus their marketing efforts on drugs with high volume sales,
newer or novel drugs which have the potential for high volume sales and products
which fit within core therapeutic or marketing priorities. As a result, major
pharmaceutical companies increasingly have sought to divest small or
non-strategic product lines which can be profitable for emerging pharmaceutical
companies, like us, to manufacture and market.
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PRODUCTS AND PRODUCT DEVELOPMENT
Branded Products
We market a variety of branded prescription products over four
therapeutic areas, including cardiovascular products (e.g., Altace(R)),
anti-infective products (e.g., Cortisporin(R)), vaccines and biologicals (e.g.,
Fluogen(R)) and women's health products (e.g., Pitocin(R)). Our branded
pharmaceutical products are generally in high volume categories and are well
known for their indications (e.g., Cortisporin(R) and Altace(R)). Additionally,
many of our branded products have limited or no generic competition, including
patent protected products, vaccines and biologicals that have no generic
equivalent or products that are difficult to formulate (e.g., creams, ophthalmic
suspensions and otic suspensions). Branded pharmaceutical products represented
77% and 79% of our net revenues for the year ended December 31, 1998 and 1997.
Cardiovascular products. Altace(R) has become our primary product
within this segment. In February 1998, we acquired Procanbid(R), one of the
products we acquired from Warner-Lambert. Procanbid(R) is a branded
pharmaceutical product used to treat arrhythmia. Thalitone(R) is a
hypertension-diuretic tablet indicated for the management of hypertension with
patent protection through 2007. In connection with the Procanbid(R) acquisition,
we also acquired exclusive rights to Polymatrix(TM), a sustained release drug
delivery system patented through 2014, which we believe may have applications
for other of our products.
Anti-infective products. Our anti-infective products are marketed
primarily to general/family practitioners and internal medicine physicians and
are prescribed to treat uncomplicated infections of the eyes, ears and skin. Our
products are generally in technologically mature product segments and as a
result have limited product risk. These mature, stable products are well suited
to our product life cycle management techniques. Cortisporin(R) is our largest
product in the category and is an example of one of our product life cycle
management techniques. In March 1997, we acquired a full line of prescription
formulations of ophthalmic, otic and topical products marketed under the
Cortisporin(R) brand name. The Cortisporin(R) brand name is well recognized and
has been marketed for over 20 years. Physicians routinely write prescriptions
for Cortisporin(R) ophthalmic ointments and suspensions, otic solutions and
topical creams and ointments. Cortisporin(R) otic products, however, are used to
fill prescriptions for only 3% of the total Cortisporin(R) otic prescriptions
written due to a high degree of generic substitution. In June 1998 we introduced
a product line extension, Cortisporin(R)-TC Otic suspension, used primarily in
treating swimmers ear infections. Cortisporin(R)-TC Otic has an additional
antibiotic and a dispersion agent which we believe helps in the absorption
process. There is currently no Cortisporin(R)-TC Otic suspension generic
substitute available and we believe that, because it is difficult to
manufacture, it will take several years before a generic substitute will become
available. We plan to market Cortisporin(R)-TC Otic suspension to physicians
through product sampling and detailing. As long as there is no generic
substitute, pharmacists filling Cortisporin(R)-TC Otic suspension prescriptions
must dispense our product as written. We believe this strategy will enable us to
capture a greater portion of the five to six million Cortisporin(R) otic
prescriptions that are written each year.
Vaccines and biologicals. Fluogen(R), one of the products acquired in
February 1998 from Warner-Lambert, is a trivalent influenza virus vaccine that
has been marketed for over 25 years and has historically been one of the major
flu vaccines sold in the United States. The only other three companies
authorized to sell flu vaccine in the United States are American Home Product's
Wyeth division, Rhone Poulenc's Connaught division and Medeva. The U.S. market
for flu vaccine is estimated to be approximately 80-90 million doses. In 1997
Fluogen(R) was voluntarily taken off the market by Warner-Lambert for a product
reformulation to address the apparent lack of stability for one of the three
virus strains covered by the product. On August 20, 1998, we received Food and
Drug Administration ("FDA") approval to reintroduce Fluogen(R). We reintroduced
Fluogen(R) in the third quarter of 1998 and expect to increase 1999 Fluogen(R)
sales by increasing our production from 9 million doses to 20 million doses, for
which we have already received FDA approval. We own worldwide rights to
Fluogen(R) and expect to expand sales internationally. We believe that
international sales of Fluogen(R) represent a significant opportunity due to
limited supply and more attractive pricing for flu vaccine internationally.
Women's health. We have a number of leading brand-name products in this
category including Pitocin(R), the most recognized brand name in labor
induction, and Anusol-HC(R), which is the number one prescribed hemorrhoidal
product, according to industry sources. Both of these products have been on the
market for many years and we believe were underpromoted by their previous
owners.
In an effort to further strengthen our women's health franchise, we
acquired Menest(R) from SmithKline in June 1998. We previously manufactured this
product for SmithKline. Menest(R) competes in the growing $2 billion estrogen
replacement category. Menest(R) is well positioned in this category because the
primary ingredient in the market leader's product is derived from the urine of
pregnant mares. In contrast, Menest(R)'s active ingredient is derived from
Mexican yams. Menest(R) also lends itself to product line extensions.
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Certain of our products are described below:
<TABLE>
<CAPTION>
COMPANY ACQUIRED FROM
PRODUCT AND DATE OF ACQUISITION PRODUCT DESCRIPTION AND INDICATION
- ------- ----------------------- ----------------------------------
<S> <C> <C>
Cardiovascular Products
Altace(R)(1).............. HMR A hard-shell capsule for oral administration indicated for the treatment of
(December 1998) hypertension.
Thalitone(R)(2)........... Horus Therapeutics, Inc. A hypertension-diuretic tablet indicated for the management of hypertension,
(December 1996) either alone or in combination with other antihypertensive drugs, and for
edema associated with congestive heart failure and various forms of renal
dysfunction.
Procanbid(R)............. Warner-Lambert A procainamide extended-release tablet indicated for the treatment of
(February 1998) documented ventricular arrhythmia, such as sustained ventricular tachycardia,
that, in the judgment of a physician, are life-threatening.
Anti-Infective Products
Cortisporin(R)............ Glaxo Wellcome A full line of prescription antibiotic and anti-inflammatory formulations of
(March 1997) ophthalmic ointments and suspensions, otic solutions and suspensions, and
topical creams and ointments indicated for the treatment of corticosteroid-
responsive dermatoses with secondary infections.
Viroptic(R)............... Glaxo Wellcome A sterile solution indicated for the treatment of ocular Herpes simplex virus,
(May 1997) idoxuridine-resistant Herpes and vidarabine-resistant Herpes. In November
1997, the FDA approved the expanded use of Viroptic to include pediatric
patients, ages six and above.
Neosporin(R)(3)........... Glaxo Wellcome A prescription strength ophthalmic ointment and solution indicated for the
(March 1997) topical treatment of ocular infections. It is also formulated as a
prescription strength genito-urinary concentrated sterile irrigant indicated
for short-term use as a continuous irrigant or rinse to help prevent
infections associated with the use of indwelling catheters.
Polysporin(R)(3).......... Glaxo Wellcome A prescription strength wide range antibacterial sterile ointment indicated for
(November 1997) the topical treatment of superficial ocular infections.
Vira-A(R)................. Warner-Lambert An antiviral ointment indicated for the topical treatment of ocular infections
(February 1998) caused by the Herpes simplex virus types 1 and 2.
Chloromycetin(R).......... Warner-Lambert A broad spectrum antibiotic ophthalmic ointment and solution indicated for
(February 1998) the treatment of serious bacterial infections that are not responsive to other
antibiotics or when other antibiotics are contraindicated. This product is
also available in an otic solution and sterile injectable form for intravenous
administration in the treatment of acute infections caused by salmonella and
meningeal infections.
Septra(R)................. Glaxo Wellcome An antibiotic indicated for the treatment of infectious diseases, including
(November 1997) urinary tract infections, pneumonia, enteritis and ear infections in adults
and children.
Coly-Mycin(R)............. Warner-Lambert An antibiotic sterile parenteral indicated for the treatment of acute or
(February 1998) chronic infections due to sensitive strains of certain gram-negative bacteria
and a sterile aqueous suspension for the treatment of superficial bacterial
infections of the external auditory canal.
Women's Health Products
Pitocin(R)................ Warner-Lambert A sterile hormone solution used to initiate or improve uterine contractions
(February 1998) during labor and to control bleeding or hemorrhage in the mother after
childbirth.
Menest(R)................. SmithKline A film-coated esterified estrogen tablet for the treatment of vasomotor
(June 1998) symptoms of menopause, atrophic vaginitis, kraurosis vulvae, female
hypogonadism, female castration, primary ovarian failure, breast cancer and
prostatic carcinoma.
AVC(TM)(4)................. HMR Cream and suppositories for vaginal administration as indicated for the
(December 1998) treatment of Candida albicans infections.
Anusol-HC(R)............... Warner-Lambert A suppository and cream indicated for the relief of inflammation
(February 1998) accompanying hemorrhoids (piles), post-irradiation proctitis, cryptitis and
other inflammatory conditions of the anorectum.
Proctocort(R).............. Solvay Pharmaceuticals, A hemorrhoidal preparation cream with hydrocortisone acetate which the
Inc. (January 1997) Company has also developed into a suppository form.
Vaccines and Biologicals
Fluogen(R)................. Warner-Lambert A trivalent vaccine for immunization against influenza (flu); composition of
(February 1998) the vaccine is determined each year by the Centers for Disease Control and
Center for Biologics Evaluation and Research.
Aplisol(R)................ Warner-Lambert A sterile aqueous solution of purified protein fraction for intradermal
(February 1998) administration as an aid in the diagnosis of tuberculosis.
</TABLE>
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<TABLE>
<S> <C> <C>
Histoplasmin(R)............Warner-Lambert An aqueous solution used as an aid in the diagnosis of histoplasmosis (a
(February 1998) respiratory infection due to a fungus) and to differentiate histoplasmosis from
other myotic or bacterial respiratory infections.
Other Key Products
Adrenalin(R).............. Warner-Lambert A sterile solution made from the active principle of the adrenal medulla used
(February 1998) to relieve respiratory distress and hypersensitivity reactions and restore
cardiac rhythm in cardiac arrest due to various causes.
Quibron(R)................ Roberts Pharmaceutical A respiratory preparation containing theophylline produced in capsule, tablet
Corporation and sustained-release tablet forms; indicated for the relief, treatment and/or
(October 1996) prevention of asthma, chronic bronchitis, emphysema and similar chronic
lung diseases.
Nucofed(R)............... Roberts Pharmaceutical A dye-free cough/cold preparation containing codeine and pseudoephedrine
Corporation hydrochloride produced in syrup and capsule forms; indicated for the
(October 1996) treatment of coughing and congestion where both are associated with upper
respiratory infections and related conditions, such as common cold,
bronchitis, influenza and sinusitis.
Tussend(R)(5)............ Not applicable An internally developed cough/cold preparation containing hydrocodone
produced in syrup, tablet and elixir forms; indicated for the relief and
treatment of nonproductive coughs accompanying respiratory tract congestions
due to colds, acute respiratory infections, bronchitis and hay fever.
Silvadene(R)(3)........... HMR A topical antimicrobial cream indicated as an adjunct for the prevention and
(December 1998) treatment of wound sepsis in patients with second-and third-degree burns.
Monafed(R)................ Not applicable An internally developed non-narcotic cough/cold preparation produced in
sustained-release tablet form indicated for the treatment of coughing and
related conditions associated with upper respiratory infections, common cold,
bronchitis, influenza and sinusitis.
</TABLE>
(1) We acquired licenses for the exclusive rights in the United States
under various HMR patents to the active ingredient in Altace(R).
(2) We acquired the trademark for this product from Boehringer Ingelheim
Pharmaceuticals, Inc.
(3) We have exclusive licenses, free of royalty obligations, to manufacture
and market prescription formulations of these products.
(4) We acquired HMR's worldwide rights to these products.
(5) We acquired the trademark for this product from Marion Merrill Dow.
CONTRACT MANUFACTURING
We utilize our excess manufacturing capacity to provide third party
contract manufacturing. We currently provide contract manufacturing for many
pharmaceutical and biotechnology companies, including Amgen, Inc.,
Warner-Lambert, Mallinckrodt, Genetics Institute, Inc. and Hoffman-LaRoche, Inc.
Many of the products that we contract manufacture are difficult to manufacture
and, therefore, do not attract significant competition. Contract manufacturing
as a percentage of sales has declined from 85% in 1994 to 19% of net revenues
for the year ended December 31, 1998 as we have acquired branded pharmaceuticals
products. Contract manufacturing, however, remains an important part of our
business because it:
- provides a stable, recurring source of cash flows;
- allows us to absorb overhead costs, and as such is an
efficient utilization of excess capacity; and
- provides experience in manufacturing a broad line of
formulations which is advantageous to us in pursuing
and integrating acquired products.
GENERICS AND OTHER
We are engaged in the development, manufacturing, packaging, marketing,
distribution and sale of generic pharmaceutical products sold as prescription
drugs. We currently have two generic products on the market, two other generic
products which have been approved by the FDA and three abbreviated new drug
applications ("ANDA") on file. We intend to continue to add new development
projects as more pharmaceutical products lose their patent protection. Generic
products and companion animal health products represent less than 1% of our
total net sales for the year ended December 31, 1998. Through our companion
animal health division, we are engaged in developing and expanding a
comprehensive over-the-counter line of companion animal health products which
are marketed under the Royal Vet and Show Winner tradenames.
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SALES AND MARKETING
Our principal marketing focus is on the sales of branded pharmaceutical
products. We have a national sales force of over 200 sales representatives. We
distribute our branded pharmaceutical products primarily through wholesale drug
distributors. These products are ordinarily dispensed to the public through
pharmacies on the prescription of a physician. For branded pharmaceutical
products, our marketing and sales promotions principally target general/family
practitioners and internal medicine physicians through detailing and sampling to
encourage physicians to prescribe more of our products. The sales force is
supported and supplemented by telemarketing and direct mail, as well as through
advertising in trade publications and representations at regional and national
medical conventions. Our telemarketing and direct mailing efforts are performed
primarily by using a computer sampling system which we developed to distribute
samples to physicians. We identify and target physicians through data available
from IMS America, Ltd. and Scott-Levin, suppliers of prescriber prescription
data. We intend to seek new markets in which to promote our product lines and
will continue expansion of our field sales force as product growth or product
acquisitions warrant.
We also market and sell generic pharmaceutical products as well as
companion animal health products. We market and sell our generic pharmaceutical
products primarily to major hospitals and hospital buying groups. These products
are marketed and sold primarily through 12 additional full-time sales
representatives, telemarketing and direct mail.
Our companion animal health care products are sold to retailers such as
pet store chains, grocery stores and mass merchandisers. The promotion of our
companion animal health care products is focused on obtaining shelf space in
retail outlets through sales representatives and direct mail advertising.
PETsMart, Inc., an international operator of pet care superstores, is the
principal purchaser of our companion animal health care products under the Show
Winner label.
Similar to other pharmaceutical companies, our principal customers are
wholesale pharmaceutical distributors. The wholesale distributor network for
pharmaceutical products has in recent years been subject to increasing
consolidation which has increased our, and other industry participants',
customer concentration. In addition, the number of independent drug stores and
small chains has decreased as retail consolidation has occurred. For the year
ended December 31, 1998, approximately 41.1% of our sales were attributable to
four distributors: McKesson Corporation (11.4%), Cardinal/Whitmire (10.8%),
Bergen Brunswig (12.6%) and AmeriSource (6.3%).
MANUFACTURING
Our two manufacturing facilities are the Bristol facility, located in
Bristol, Tennessee, and the Parkedale facility, located in Rochester, Michigan.
These facilities have in the aggregate approximately one million square feet of
manufacturing, packaging, laboratory, office and warehouse space. We manufacture
our products in accordance with current good manufacturing practices ("cGMP")
requirements and are licensed by the Drug Enforcement Agency ("DEA") to procure
and produce controlled substances. We manufacture certain of our own branded and
generic pharmaceutical products and companion animal health products as well as
products owned by other pharmaceutical companies under manufacture and supply
contracts which expire over periods ranging from one to five years.
We can produce a broad range of dosage formulations, including sterile
solutions, lyophylized (freeze-dried) products, injectables, tablets and
capsules, liquids, creams and ointments, suppositories and powders. We believe
our manufacturing capabilities allow us to capture higher margins and pursue
product line extensions more efficiently. However, currently 16 of our product
lines, including Cortisporin(R) and the six product lines acquired in from Glaxo
Wellcome, four of the product lines acquired from Warner- Lambert and all three
of the products, including Altace(R) acquired from HMR, are manufactured in the
same facilities in which they were previously manufactured as we have not yet
received regulatory approval for their manufacture at our facilities. Capacity
utilization is approximately 50% at the Bristol facility and is approximately
30% at the Parkedale facility, providing us with substantial manufacturing
capacity for future growth. We intend to transfer, when advantageous, production
of newly acquired branded pharmaceutical products and their product line
extensions to our manufacturing facilities as soon as practicable after
regulatory requirements and contract manufacturing requirements are satisfied.
In addition to manufacturing, we have fully integrated manufacturing
support systems including quality assurance, quality control, regulatory
compliance and inventory control. These support systems enable us to maintain
high standards of quality for our products and simultaneously deliver reliable
services and goods to our customers on a timely basis. Companies that do not
have such support systems in-house must out source these services.
We manufacture pharmaceutical products for, among others, Amgen, Inc.,
Warner-Lambert, Centocor, B.V., Fujisawa Pharmaceutical Company, Genentech,
Inc., Genetics Institute, Inc., Hoffman-LaRoche, Inc., Mallinckrodt, Novartis,
Roberts Pharmaceutical Corporation, Santen Incorporated and SmithKline. Contract
manufacturing represented in the aggregate approximately 19.3% and 14.6%
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<PAGE> 9
of our net sales for the year ended December 31, 1998 and 1997. In 1995, in
conjunction with our sale of the Anexsia(R) product line, we entered into a
manufacture and supply contract with Mallinckrodt for the manufacture of the
Anexsia(R) product line, which provides for a guaranteed minimum manufacturing
fee of $4.8 million through 1999 and renewals thereafter at the option of
Mallinckrodt for up to an additional three years.
We require a supply of quality raw materials and components to
manufacture and package drug products for us and for third parties with which we
have contracted. Generally we have not had difficulty obtaining raw materials
and components from suppliers in the past. Currently, we rely on approximately
300 suppliers to deliver the necessary raw materials and components. The loss of
any one of these suppliers is not expected to have a material adverse effect on
our ability to acquire raw materials and components. We have no reason to
believe we will be unable to procure adequate supplies of raw materials and
components on a timely basis. However, if for any reason we are unable to obtain
sufficient quantities of any of the raw materials or components required to
produce and package our products, we may not be able to distribute our products
as planned. In such case, our business, financial condition and results of
operations could be materially and adversely affected.
RESEARCH AND DEVELOPMENT
At the present time, we are not engaged in substantial clinical
research activities. We are, however, involved in product development and
continually seek to develop extensions to our product lines and to improve the
quality and efficiency of our manufacturing processes. Our laboratories and
product development scientists have produced several product line extensions to
existing branded pharmaceutical products for which the Company has secured
several ANDA approvals from the FDA.
GOVERNMENT REGULATION
Our business and our products are subject to extensive and rigorous
regulation at both the federal and state levels. Most importantly, nearly all of
our products are subject to premarket approval requirements. Human and animal
drugs are subject to similar regulatory requirements. New drugs are approved
under, and are subject to, the Federal Food, Drug and Cosmetic Act (the "FDC
Act") and the respective related regulations and biological drugs are subject to
both the FDC Act and the Public Health Service Act (the "PHS Act") and the
related regulations. Biological drugs are licensed under the PHS Act. ANDAs may
be filed to secure marketing approval for generic forms of certain approved
human drugs, but generally not for biological products.
At the federal level, we are principally regulated by the FDA as well
as by the DEA, the Consumer Product Safety Commission, the Federal Trade
Commission ("FTC"), the U.S. Department of Agriculture, Occupational Safety and
Health Administration ("OSHA") and the U.S. Environmental Protection Agency
("EPA"). The FDC Act, the regulations promulgated thereunder, and other federal
and state statutes and regulations, govern, among other things, the development,
testing, manufacture, safety, effectiveness, labeling, storage, record keeping,
approval, advertising and promotion of our products and those manufactured by
and for third parties. Product development and approval within this regulatory
framework requires a number of years and involves the expenditure of substantial
resources.
We believe that we or our contract customers have the proper FDA
approvals or other marketing authority for the drugs that we currently produce.
When we acquire the right to market an existing approved pharmaceutical product,
both we and the former application holder are required to submit certain
information to the FDA. This information, if adequate, results in the transfer
to us of marketing rights to the pharmaceutical products. We are also required
to advise the FDA about any changes in certain conditions in the approved
application as set forth in the FDA's regulations. Our strategy focuses on
acquiring branded pharmaceutical products and transferring, when advantageous,
their manufacture to our manufacturing facilities as soon as practicable after
regulatory requirements are satisfied. In order to transfer manufacturing of the
acquired branded products, we must demonstrate, by filing information with the
FDA, that we can manufacture the product in accordance with cGMPs and the
specifications and conditions of the approved marketing application. For changes
requiring prior approval, there can be no assurance that the FDA will grant such
approval in a timely manner, if at all.
The FDA regulatory regime applicable to our generic pharmaceutical
products depends on whether the branded drug is the subject of an approved
marketing application or is marketed pursuant to the FDA's enforcement
discretion and/or policies. If the pharmaceutical product to be offered as a
generic version of a branded product is the subject of an approved marketing
application, the generic product must be the subject of an ANDA and must be
approved by the FDA prior to marketing. Pharmaceutical products produced by any
manufacturer and marketed subject to the FDA's enforcement discretion and/or
policies are not subject to generic drug approvals.
The FDA also mandates that drugs be manufactured, packaged and labeled
in conformity with cGMPs. In complying with cGMP regulations, manufacturers must
continue to expend time, money and effort in production, record keeping and
quality control to ensure that the product meets applicable specifications and
other requirements to ensure product safety and efficacy. The FDA periodically
inspects drug manufacturing facilities to ensure compliance with applicable cGMP
requirements. Failure to comply with the statutory and regulatory
- 9 -
<PAGE> 10
requirements subjects the manufacturer to possible legal or regulatory action,
such as suspension of manufacturing, seizure of product or voluntary recall of a
product. Adverse experiences with the product must be reported to the FDA and
could result in the imposition of market restrictions through labeling changes
or in product removal. Product approvals may be withdrawn if compliance with
regulatory requirements is not maintained or if problems concerning safety or
efficacy of the product occur following approval.
The federal government has extensive enforcement powers over the
activities of pharmaceutical manufacturers, including authority to withdraw
product approvals, commence actions to seize and prohibit the sale of unapproved
or non-complying products, to halt manufacturing operations that are not in
compliance with cGMPs, and to impose or seek injunctions, voluntary recalls, and
civil monetary and criminal penalties. Such a restriction or prohibition on
sales or withdrawal of approval of products marketed by us could materially
adversely affect our business, financial condition and results of operation.
In November 1998 the Parke-Davis division of Warner-Lambert initiated a
voluntary Class III recall for one lot of Procanbid(R) manufactured prior to our
acquisition of Procanbid(R). A Class III recall is one in which use of, or
exposure to, the product is not likely to cause adverse consequences. The recall
was instituted because the lot at issue failed a dissolution test as part of the
routine stability program at the 18-month interval. In February 1999 we notified
the FDA that two additional lots of Procanbid(R), also manufactured prior to our
acquisition of the product line, had failed the same dissolution test at the
24-month interval. If additional lots of Procanbid(R) are recalled, the
reputation of the product and the value of the trademark associated therewith
could be adversely affected.
While we believe that all of our current pharmaceutical products are
legally marketed under applicable FDA enforcement policies or have received
requisite government approvals for manufacture and sale, such marketing
authority is subject to revocation by the applicable government agencies. In
addition, modifications or enhancements of approved products or changes in
manufacturing locations are in many circumstances subject to additional FDA
approvals which may or may not be received and which may be subject to a lengthy
application process. Our manufacturing facilities are continually subject to
inspection by such governmental agencies and manufacturing operations could be
interrupted or halted in any such facilities if such inspections prove
unsatisfactory.
We also manufacture and sell pharmaceutical products which are
"controlled substances" as defined in the Controlled Substances Act and related
federal and state laws, which establish certain security, licensing, record
keeping, reporting and personnel requirements administered by the DEA, a
division of the Department of Justice, and state authorities. The DEA has a dual
mission--law enforcement and regulation. The former deals with the illicit
aspects of the control of abusable substances and the equipment and raw
materials used in making them. The DEA shares enforcement authority with the
Federal Bureau of Investigation, another division of the Department of Justice.
The DEA's regulatory responsibilities are concerned with the control of licensed
manufacturers, distributors and dispensers of controlled substances, the
substances themselves and the equipment and raw materials used in their
manufacture and packaging in order to prevent such articles from being diverted
into illicit channels of commerce. We maintain appropriate licenses and
certificates with the States of Tennessee and Michigan in order to engage in
pharmaceutical development, manufacturing and distribution of pharmaceutical
products containing controlled substances. We are licensed by the DEA to
manufacture and distribute certain pharmaceutical products containing controlled
substances. We have not experienced license revocations, restrictions or fines
for non-compliance with the foregoing regulations but no assurance can be given
that revocations, restrictions or fines which could have a material adverse
effect upon our business, financial condition and results of operations will not
be imposed upon us in the future.
The distribution of pharmaceutical products is subject to the
Prescription Drug Marketing Act ("PDMA"), as part of the FDC Act, which
regulates such activities at both the federal and state level. Under the PDMA
and its implementing regulations, states are permitted to require registration
of manufacturers and distributors who provide pharmaceuticals even if such
manufacturers or distributors have no place of business within the state and
states are also permitted to adopt regulations limiting the distribution of
product samples to licensed practitioners. The PDMA also imposes extensive
licensing, personnel record keeping, packaging, quantity, labeling product
handling and facility storage and security requirements intended to prevent the
sale of pharmaceutical product samples or other diversions.
Our Parkedale facility was one of six facilities owned by
Warner-Lambert subject to a Consent Decree of Permanent Injunction issued August
1993 in United States of America v. Warner-Lambert Company and Melvin R. Goodes
and Lodewijk J.R. DeVink (U.S. Dist. Ct., Dist. of N.J.). The Parkedale facility
is currently manufacturing pharmaceutical products subject to the Consent Decree
which prohibits the manufacture and delivery of specified drug products unless,
among other things, the products conform to cGMP regulations and are produced in
accordance with an approved ANDA or new drug application ("NDA"). We are in the
process of preparing for, and if appropriate, obtaining relief from the Consent
Decree. There is no assurance that relief when and if sought will be granted. We
believe the Parkedale facility is in compliance with the requirements of the
Consent Decree.
As a result of an FDA inspection in March and April 1998, we received
an FDA Form 483 with respect to the Parkedale Facility. When an FDA inspector
completes an authorized inspection of a manufacturing facility, Section 704(b)
of the FDC Act mandates that the
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<PAGE> 11
inspector give to the owner/operator of the facility a 483 listing the
inspector's observations of objectionable conditions and practices. The
observations in a 483 are reported to the manufacturer in order to assist the
manufacturer in complying with the FDC Act and the regulations enforced by the
FDA. Often a pharmaceutical manufacturer receives a 483 after an inspection.
While no law or regulation requires us to respond to a 483, we have submitted
our written response detailing the plan of action with respect to each of the
observations made on the 483 and our commitment to correct the objectionable
practice or condition. The risk to us of a 483, if left unaddressed, could
include adverse regulatory action, including, among other things, the
commencement of actions to seize or prohibit the sale of unapproved or
non-complying products. We believe the receipt of the 483 will not have a
material adverse effect on our business, financial condition or results of
operations. We have been informed by the FDA that a follow-up inspection will
occur in the second quarter of 1999. There can be no assurance that the outcome
of the inspection will be favorable.
We cannot determine what effect changes in regulations or statutes or
legal interpretation, when and if promulgated or enacted, may have on our
business in the future. Changes could, among other things, require changes to
manufacturing methods, expanded or different labeling, the recall, replacement
or discontinuance of certain products, additional record keeping or expanded
documentation of the properties of certain products and scientific
substantiation. Such changes, or new legislation, could have a material adverse
effect on our business, financial condition and results of operations.
ENVIRONMENTAL MATTERS
Our operations are subject to numerous and increasingly stringent
federal, state and local environmental laws and regulations concerning, among
other things, the generation, handling, storage, transportation, treatment and
disposal of toxic and hazardous substances and the discharge of pollutants into
the air and water. Environmental permits and controls are required for certain
of our operations and these permits are subject to modification, renewal and
revocation by the issuing authorities. We believe that our facilities are in
substantial compliance with our permits and environmental laws and regulations
and do not believe that future environmental compliance will have a material
adverse effect on our business, financial condition or results of operations.
Our environmental capital expenditures and costs for environmental compliance
may increase in the future as a result in changes in environmental laws and
regulations.
Under the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA"), the EPA can impose liability for the entire cost of
cleanup of contaminated properties upon each or any of current and former site
owners and operators or parties who sent waste to the site, regardless of fault
or the legality of the original disposal activity. Many states, including
Tennessee and Michigan, have statutes and regulatory authorities similar to
CERCLA and to the EPA. We have hazardous waste hauling agreements with licensed
third parties to properly dispose of hazardous wastes. We cannot assure you that
we will not be found liable under CERCLA for the costs of undertaking a clean up
at a site to which our wastes were transported.
COMPETITION
General
We compete with other pharmaceutical companies for product and product
line acquisitions. These competitors include Jones Medical Industries, Inc., ICN
Pharmaceuticals, Inc., Dura Pharmaceuticals, Inc., Medicis Pharmaceutical
Corporation, Forest Laboratories, Inc., Roberts Pharmaceutical Corporation,
Watson Pharmaceuticals, Inc. and other companies which also acquire branded
pharmaceutical products and product lines from other pharmaceutical companies.
Additionally, since the Company's products are generally established and
commonly sold, they are subject to competition from products with similar
qualities. The Company's branded pharmaceutical products may be subject to
competition from alternate therapies during the period of patent protection and
thereafter from generic equivalents. The manufacturers of generic products
typically do not bear the related research and development costs and
consequently are able to offer such products at considerably lower prices than
the branded equivalents. There are, however, a number of factors which enable
products to remain profitable once patent protection has ceased. These include
the establishment of a strong brand image with the prescriber or the consumer,
supported by the development of a broader range of alternative formulations than
the manufacturers of generic products typically supply.
Generic Substitutes
Many of our branded pharmaceutical products have either a strong market
niche or competitive position. Some of our branded pharmaceutical products face
competition from generic substitutes. Of our branded pharmaceutical products
that have generic substitutes, we believe that only a small number face
significant competition because many of our branded pharmaceutical products have
sales levels that are too low to attract competition or are too difficult to
manufacture or prove bioequivalence (i.e., the two products produce identical
effects on the body).
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<PAGE> 12
Approximately 17 of the Company's branded pharmaceutical products
generated between $29,000 and $3.0 million in net sales for the year ended
December 31, 1998. The Company believes that these products do not face
significant competition from generic manufacturers because the market is too
small to make competition from generic manufacturers profitable. In addition, we
believe that pharmacists generally do not carry generic versions of branded
drugs that have low sales volume because of the cost of carrying the inventory
and the low sales volume.
For a manufacturer to launch a generic substitute, it must prove to the
FDA when filing an application to make a generic substitute that the branded
pharmaceutical and the generic substitute have bioequivalence. This is easiest
to prove when a drug is systemically absorbed into and measurable in the
bloodstream. For example, some of our products are topical preparations and
because topical preparations are less likely to be absorbed into the bloodstream
it is more difficult to prove bioequivalence for topical products. While it
typically takes two or three years to prove bioequivalence and receive FDA
approval for many generic substitutes, we believe that for topical products the
approval period is longer. By focusing our efforts in part on products with
bioequivalence or complex manufacturing requirements, we are able to protect
market share and produce sustainable, high margins and cash flows.
INTELLECTUAL PROPERTY
Patents and Licenses
We consider the protection of discoveries in connection with our
development activities important to our business. We intend to seek patent
protection in the United States and selected foreign countries where deemed
appropriate. We own U.S. Patents for Novel Chlorthalidone Process and Product,
covering the raw materials used in the manufacture of Thalitone(R), and for
Procanbid(R). These patents expire in 2007 and 2014, respectively. We also have
a paid-up and non-exclusive license to certain other patent rights owned or
controlled by Bristol-Myers Squibb which is used in the manufacture of
Quibron(R). We have also applied for patents for an analysis test and a certain
manufacturing process for products other than Quibron(R). We also rely upon
trade secrets, unpatented proprietary know-how and continuing technological
innovation, where patent protection is not believed to be appropriate or
attainable, to develop our competitive position.
In connection with the Altace(R) product line, we acquired the
exclusive rights in the United States under various HMR patents to the active
ingredients in Altace(R) patented to 2008 and their metabolites patented to
2012. Our rights include the exclusive utilization of the active ingredients in
Altace(R) in any combination as human therapeutic or human diagnostic products.
We have exclusive licenses expiring June 2036 for the prescription
formulations of Neosporin(R) and Polysporin(R) and a license expiring February
2038 for the prescription formulation of Anusol-HC(R). Such licenses are subject
to early termination in the event we fail to meet specified quality control
standards, including cGMP regulations with respect to the products, or commit a
material breach of other terms and conditions of the licenses which would have a
significant adverse effect on the uses of the licensed products retained by the
licensor, which would include among other things, marketing products under these
trade names outside the prescription field.
Trademarks
We sell our branded products under a variety of trademarks. While we
believe that we have valid proprietary interests in all currently used
trademarks, only certain of the trademarks are registered with the U.S.
government, including those for our principal branded pharmaceutical products
Altace(R), Coly-Mycin(R), Fluogen(R), Procanbid(R), Anusol-HC(R),
Cortisporin(R), Neosporin(R), Polysporin(R), Septra(R), Proctocort(R),
Thalitone(R), Pediotic(R), Viroptic(R), Silvadene(R), Menest(R), Adrenalin(R),
Pitocin(R), Aplisol(R), Quibron(R), Nocofed(R), Monafed(R), Tussend(R),
Mantadil(R), Vira-A(R), Chloromycetin(R), and Kemadrin(R). Additionally,
trademark applications for Monarchpharm(TM) and Show Winner(TM) are pending. We
intend to market products under the following trademarks: AVC(TM), Arthrose(TM),
Vetrin(TM) and Monahist(TM). We also own or have pending the Polymatrix(TM),
Pro-Kemadrin(R), Histoplasmin(TM) and Royal Vet(R) trademarks and own or have
pending the Classics That Work(SM) service mark and the registered service mark
Secure-A-Sample(R).
BACKLOG
As of December 31, 1998, we had no material backlog.
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<PAGE> 13
EMPLOYEES
As of December 31, 1998, we employed 1,041 full-time and 19 part-time
persons. Certain employees of the Parkedale Facility, representing approximately
31% of our employees, are covered by a collective bargaining agreement with the
Oil, Chemical & Atomic Workers, International Union which expires February 28,
2003. We believe our employee relations are good. We employ a full-time Chaplain
and offer as part of our employee benefits package access to additional
counseling services.
ITEM 2. PROPERTIES
We own the manufacturing facilities listed below. These facilities
include space for manufacturing, packaging, laboratories, offices and
warehousing. The Company believes these facilities are adequate for the conduct
of its operations.
<TABLE>
<CAPTION>
Location Approximate Square Footage
-------- --------------------------
<S> <C>
Bristol, Tennessee.................. 500,000
Rochester, Michigan ................ 500,000
</TABLE>
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<PAGE> 14
ITEM 3. LEGAL PROCEEDINGS
Many distributors, marketers and manufacturers of anorexigenic drugs
have been subject to claims relating to the use of these drugs. As of December
31, 1998, we are a defendant in 52 lawsuits which claim damages for personal
injury arising from our production of the anorexigenic drug, phentermine, under
contract for SmithKline. Generally, the lawsuits allege that the defendants (1)
misled users of the products with respect to the dangers associated with them,
(2) failed to adequately test the products and (3) knew or should have known
about the negative effects of the drugs, and should have informed the public
about the risks of such negative effects. The actions generally have been
brought by individuals in their own right and have been filed in various state
and federal jurisdictions throughout the United States. They seek, among other
things, compensatory and punitive damages and/or court supervised medical
monitoring of persons who have ingested the product. We expect to be named in
additional lawsuits related to our production of the anorexigenic drug under
contract for SmithKline.
While we cannot predict the outcome of these suits, we believe that the
claims against us are without merit and intend to vigorously pursue all
available defenses available. We are being indemnified in all of these suits by
SmithKline for which we manufactured the anorexigenic product, provided that
neither the lawsuits nor the associated liabilities are based upon our
independent negligence or intentional acts, and intend to submit a claim for all
unreimbursed costs to our product liability insurance carrier. However, in the
event that SmithKline is unable to satisfy or fulfill its obligations under the
indemnity, we would have to defend the lawsuit and be responsible for damages,
if any, which are awarded against it or for amounts in excess of our product
liability coverage.
We are involved in various routine legal proceedings incident to the
ordinary course of our business. We believe that the outcome of all pending
legal proceedings in the aggregate will not have a material adverse effect on
our consolidated financial condition, results of operations or cash flows.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
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<PAGE> 15
PART II
ITEM 5. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Common Stock of King is traded on the Nasdaq Stock Market under the
symbol "KING." There were approximately 2,300 shareholders on December 31, 1998,
based on the number of record holders of the Common Stock and an estimate of the
number of individual participants represented by security position listings.
The Company's Common Stock began trading on June 25, 1998 and the price
range of Common Stock is described below:
<TABLE>
<CAPTION>
1998
-------------------------
High Low
---- ---
<S> <C> <C>
Second quarter (June 25 through June 30)....................... 14 1/4 13 3/4
Third quarter (ended September 30)............................. 21 3/8 12 3/4
Fourth quarter (ended December 31)............................. 28 3/4 10 5/8
</TABLE>
The Company has no plans to pay dividends in the foreseeable future.
ITEM 6. SELECTED FINANCIAL DATA
The table should be read in conjunction with "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and the Company's
consolidated financial statements and related notes included elsewhere in this
report.
<TABLE>
<CAPTION>
For the Year Ended December 31,
-------------------------------------------------------------------
1994 1995 1996 1997 1998
-------- -------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Net sales(1) ........................................... $ 13,311 $ 25,441 $ 15,457 $ 47,351 $ 158,180
Development revenues(2) ................................ -- -- 5,000 558 5,283
-------- -------- --------- --------- ---------
Total revenue, ...................................... 13,311 25,441 20,457 47,909 163,463
-------- -------- --------- --------- ---------
Gross profit ........................................... 3,557 13,311 11,675 34,875 99,411
Operating income (loss) ................................ 931 16,031 (1,413) 13,357 55,438
Gain on sale of investment in affiliate(3) ............. -- -- 1,760 -- --
Interest expense ....................................... (1,069) (2,006) (1,272) (2,749) (14,866)
Other income (expenses), net ........................... 554 367 578 (28) 145
-------- -------- --------- --------- ---------
Income (loss) before income taxes and extraordinary item 416 14,392 (347) 10,580 40,717
Income tax (benefit) expense ........................... (501) 5,058 (107) 3,968 15,396
-------- -------- --------- --------- ---------
Income (loss) before extraordinary item ................ 917 9,334 (240) 6,612 25,321
Extraordinary item net of income taxes(4) .............. -- 528 -- -- (4,411)
-------- -------- --------- --------- ---------
Net income (loss) ...................................... $ 917 $ 9,862 $ (240) $ 6,612 $ 20,910
======== ======== ========= ========= =========
Basic and diluted (loss) income per share:
Income before extraordinary item...................... $ 0.05 $ 0.36 $ (0.02) $ 0.25 $ 0.84
======== ======== ========= ========= =========
Net income............................................ $ 0.05 $ 0.36 $ (0.02) $ 0.25 $ 0.69
======== ======== ========= ========= =========
OTHER DATA:
EBITDA(5) .............................................. $ 2,124 $ 18,175 $ 1,907 $ 15,724 $ 64,838
Capital expenditures(6) ................................ 890 1,672 1,069 1,379 81,099
Cash flow from operating activities .................... 672 (2,585) (6,269) 5,016 5,831
Cash flow from financing activities .................... (890) 30,268 (2,126) (53,977) (425,975)
Cash flow from investing activities .................... 927 (18,143) (781) 47,638 421,234
BALANCE SHEET DATA AS OF THE YEAR ENDED:
Working capital ........................................ $ (2,408) $ 7,599 $ 7,749 $ (424) $ 31,087
Total assets ........................................... 38,477 33,942 39,279 104,863 668,171
Total debt ............................................. 27,065 4,487 18,011 56,373 527,796
Shareholders' equity ................................... 1,935 11,011 15,697 29,334 101,436
</TABLE>
(1) Total revenues decreased $4.9 million, or 19.3%, to $20.5 million in
1996 from $25.4 million in 1995 due primarily to the disposition of the
Anexsia(R)product line, which had generated net revenues of $9.6
million in 1995.
(2) The Company developed four abbreviated new drug applications which were
filed with the FDA on Mallinckrodt's behalf for a maximum of $2.5
million each paid upon FDA approval and validation of the process.
(3) In September 1996, the Company sold its entire 6.0% interest in an
affiliated, privately held pharmaceutical company.
(4) Reflects gain on early extinguishment of debt in connection with the
disposition of the Anexsia(R) product line in 1995 and the loss on
early extinguishment of debt in connection with the repayment of
certain debt instruments during 1998, net of income taxes of $272,000
and $2.8 million, respectively.
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<PAGE> 16
(5) "EBITDA" is defined as net income (loss) from continuing operations
before interest, taxes, depreciation and amortization. We believe that
EBITDA provide useful information regarding our ability to service our
indebtedness, but should not be considered in isolation or as a
substitute for operating income or cash flow from operations (in each
case as determined in accordance with generally accepted accounting
principles) as an indicator of our operating performance or as a
measure of our liquidity.
(6) Capital expenditures represent the Company's purchases of property,
plant and equipment. Capital expenditures exclude business and product
acquisitions. For the year ended December 31, 1998, we completed
approximately $495.9 million of business and product acquisitions.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATION
The following discussion should be read in conjunction with the
consolidated financial statements and notes thereto included elsewhere in this
Annual Report on Form 10-K. Historical results and percentage relationships set
forth in the statement of operations, including trends which might appear, are
not necessarily indicative of future operations. See "Risk Factors" for trends
and uncertainties known to the Company that could cause reported financial
information to differ materially from future results.
OVERVIEW
We are a vertically integrated pharmaceutical company that
manufactures, markets and sells primarily branded prescription pharmaceutical
products. Through a national sales force of over 200 representatives, we market
our branded pharmaceutical products to general/family practitioners and internal
medicine physicians and hospitals across the country. Our business strategy is
to acquire established branded pharmaceutical products and to increase their
sales by focused marketing and promotion and through product life cycle
management. In pursuing acquisitions, we seek to capitalize on opportunities in
the pharmaceutical industry created by cost containment initiatives and
consolidation among large, global pharmaceutical companies. We also create value
by developing product line extensions for our branded pharmaceutical products
such as new formulations, dosages or new indications. These product line
extensions are attractive for the Company because they may have market
exclusivity or sales levels that do not attract significant competition. In
addition to branded pharmaceuticals, we also provide contract manufacturing for
a number of the world's leading pharmaceutical and biotechnology companies,
including Amgen, Inc., Warner-Lambert, Mallinckrodt, Genetics Institute and
Hoffman-LaRoche, Inc.
Our branded pharmaceutical products can be divided into four
therapeutic areas: (i) cardiovascular (including Altace(R), Thalitone(R) and
Procanbid(R)), (ii) anti-infectives (including Cortisporin(R), Neosporin(R) and
Coly-Mycin(R) M), (iii) vaccines and biologicals (including Fluogen(R),
Aplisol(R) and Histoplasmin(TM)) and (iv) women's health (including Pitocin(R)
and Menest(R)). All of these products are marketed to general/family
practitioners and internal medicine physicians. Unlike many of our competitors,
we have a broad therapeutic focus that provides us with opportunities to
purchase a wide variety of products, as evidenced by our acquisition of 26
products over the last 18 months, including Altace(R). In addition, we have well
known products in all of our therapeutic categories that generate high
prescription volumes. Our portfolio of recognized prescription brand names
includes, among others, Altace(R), Neosporin(R), Cortisporin(R), Pitocin(R),
Anusol-HC(R) and Fluogen(R).
Since December 1994, we have acquired 34 branded pharmaceutical
products, developed three products internally, divested one product and
introduced eight product line extensions. We acquired from Glaxo Wellcome the
Cortisporin(R) product line in March 1997, (the "Cortisporin Acquisition") the
Viroptic(R) product line in May 1997 and six additional branded products
including Septra(R), and exclusive licenses, free of royalty obligations, for
the prescription formulations of Neosporin(R) and Polysporin(R) in November 1997
(the "Glaxo Acquisition").
In February 1998, we acquired from Warner-Lambert 15 branded
pharmaceutical products, the Parkedale facility located in Rochester, Michigan
and certain manufacturing contracts for third parties for $127.9 million,
including $2.9 million of assumed liabilities (the "Sterile Products
Acquisition").
On June 30, 1998, we acquired the Menest(R) product line from
SmithKline Beecham Corporation ("SmithKline") for $5.0 million.
In June 1998, we launched our new Cortisporin(R)-TC Otic line.
Cortisporin(R)-TC Otic is a product line extension for our Cortisporin(R) Otic
Suspension product.
In August 1998, we received approval by the FDA to reintroduce
Fluogen(R) (influenza virus vaccine, Trivalent, Types A & B), which was acquired
as part of the Sterile Products Acquisition and had been off the market since
1996. Fluogen(R) is a seasonal product with most of its sales occurring in the
third and fourth quarters.
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<PAGE> 17
In December 1998, we acquired from HMR for $362.5 million the United
States rights to Altace(R), an ACE inhibitor, HMR's worldwide rights to
Silvadene(R), a burn cream, and HMR's worldwide rights to AVC(TM), a vaginal
anti-infective cream (the "Altace Acquisition").
Our strategy is to continue to acquire branded pharmaceutical products
and to create value by leveraging our marketing, manufacturing and product
development capabilities. We expect that our strategy of acquiring branded
pharmaceutical products will increase our revenues as a result of sales of such
products and will increase gross margins. In general, margins are higher on our
branded pharmaceutical products than on our other products, making branded
products attractive to us. As soon as practicable after regulatory requirements
are satisfied and when advantageous, we expect that manufacturing these acquired
pharmaceutical products ourselves will increase our margins because the cost of
producing pharmaceutical products on our own is lower than the cost of having
these products manufactured by third parties. We may also be required to raise
funds through additional borrowings or the issuance of debt or equity securities
in order to finance additional branded product acquisitions and to expand or
remodel our manufacturing facilities.
We manufacture pharmaceutical products for a variety of pharmaceutical
and biotechnology companies under contracts expiring at various times within the
next five years. We intend to enter into additional manufacturing contracts in
cases where we identify contracts that offer significant volumes and attractive
margins. We have not accepted or renewed manufacturing contracts for third
parties where we perceived insignificant volumes or revenues. In accordance with
our focus on branded pharmaceutical products, we expect that, over time, our
contract manufacturing and generic pharmaceutical and companion animal health
product lines will become a smaller percentage of total revenues.
The following summarizes approximate net revenues by operating segment
(in thousands):
<TABLE>
<CAPTION>
For the Year Ended December 31,
--------------------------------
1996 1997 1998
------- ------- --------
<S> <C> <C> <C>
Branded pharmaceuticals $ 2,939 $37,912 $125,399
Contract manufacturing 10,890 6,982 31,611
Other ................. 6,628 3,015 6,453
------- ------- --------
Total ............ $20,457 $47,909 $163,463
======= ======= ========
</TABLE>
RESULTS OF OPERATIONS
YEAR ENDED DECEMBER 31, 1998 COMPARED TO YEAR ENDED DECEMBER 31, 1997
Revenues
Net revenues increased $115.6 million, or 241.3%, to $163.5 million in
1998 from $47.9 million in 1997, due primarily to the acquisition of branded
products in 1998 and late 1997 and increased contract manufacturing related to
the Sterile Products Acquisition.
Branded pharmaceutical products revenues increased $87.5 million, or
230.8%, to $125.4 million in 1998 from $37.9 million in 1997. The Glaxo
Acquisition, Sterile Products Acquisition, Menest(R) and the Altace Acquisition
collectively contributed $85.9 million in revenues from branded pharmaceuticals
in 1998, including $17.7 million in net revenues from Fluogen(R) sales.
Revenues from contract manufacturing increased $24.6 million, or
351.4%, to $31.6 million in 1998 from $7.0 million in 1997, due primarily to the
increased contract manufacturing related to the Sterile Products Acquisition.
Additionally, the Company recognized other revenues in 1998 of $5.0
million for the development and related FDA approval of two ANDAs filed in
connection with its agreement with Mallinckrodt Chemical, Inc.
Gross Profit
Total gross profit increased $64.6 million, or 185%, to $99.4 million
in 1998 from $34.9 million in 1997. The increase was primarily due to the
increase in gross profit associated with branded pharmaceutical products of
$61.3 million. Additionally, gross profit associated with contract
development revenues, generic pharmaceutical sales, and companion animal health
sales increased by $3.6 million.
- 17 -
<PAGE> 18
The gross profit of branded pharmaceutical products increased $61.3
million to $94.5 million in 1998 from $33.2 million in 1997. This increase was
primarily due to increases in revenues from certain products acquired in the
Sterile Products Acquisition, the Cortisporin Acquisition, the Glaxo
Acquisition, and the Altace transaction in December 1998.
The gross profit associated with contract development revenue, generic
pharmaceutical sales, and companion animal health sales increased by $3.6
million to $5.5 million in 1998 from $1.9 million in 1997. The increase was
primarily due to an increase in contract development revenue offset by a
decrease in gross profit contribution of generic pharmaceutical and companion
animal health products.
Selling, General and Administrative Expense
Selling, general and administrative expenses increased $15.6 million,
or 81.7%, to $34.7 million in 1998 from $19.1 million in 1997. This increase was
primarily attributable to the hiring of additional sales representatives in 1998
and during the second half of 1997, as well as other additional personnel costs
and marketing, promotion and sampling costs associated with the newly acquired
branded product lines.
Depreciation and Amortization Expense
Depreciation and amortization expense increased $6.9 million, or
287.5%, to $9.3 million in 1998 from $2.4 million in 1997. This increase was
primarily attributable to the depreciation and amortization of the fixed assets
and intangible assets acquired with the branded product acquisitions in 1997 and
the Sterile Products and Altace Acquisitions in 1998.
Operating Income
Operating income increased $42.0 million, or 313.4%, to $55.4 million
in 1998 from $13.4 million in 1997. This increase was primarily due to
incremental revenues and costs associated with the acquisition of branded
products. As a percentage of net revenues, operating income increased to 33.9%
in 1998 from 27.9% in 1997.
Interest Expense
Interest expense increased $12.2 million, or 451.9%, to $14.9 million
in 1998 from $2.7 million in 1997, as a result of additional long-term debt used
to finance, in part, the acquisitions in 1998.
Income Tax Expense
The effective tax rate in 1998 of 37.8% and 1997 of 37.5% was higher
than the federal statutory rate of 35% primarily due to state income taxes.
Extraordinary item
During 1998, the Company repaid certain long-term debt prior to
maturity. The repayment resulted in extraordinary charges of $4.4 million, net
of related tax benefits of $2.8 million, associated with the write-off of
deferred financing costs.
Net Income
Due to the factors set forth above, net income increased $14.3 million,
or 216.7%, to $20.9 million in 1998 from $6.6 million in 1997.
YEAR ENDED DECEMBER 31, 1997 COMPARED TO YEAR ENDED DECEMBER 31, 1996
Revenues
Net revenues increased $27.4 million, or 133.7%, to $47.9 million in
1997 from $20.5 million in 1996. This increase was due primarily to the
acquisition of 13 branded products since October 1996. Of these acquired branded
products, the Cortisporin(R) product line contributed $21.7 million from the
date of acquisition (March 21, 1997) through December 31, 1997, or 57.3% of
total branded pharmaceutical sales of $37.9 million and 45.37% of total
revenues, while the Company's additional branded products contributed an
additional $16.6 million, or 43.8% and 34.7% of total revenues. There were two
ANDAs on file with the FDA in connection with the disposal of the branded
product,
- 18 -
<PAGE> 19
Anexsia, and a related generic product line (the "Anexsia Product Line"), in
December 1995. However, the Company did not recognize any income in 1997 related
to this contract, compared to $5.0 million recognized in 1996. Revenues from
contract manufacturing decreased $3.9 million, or 35.8%, to $7.0 million in 1997
from $10.9 million in 1996, due primarily to the expiration of a manufacturing
contract.
Gross Profit
Total gross profit increased $23.2 million, or 199% to $34.9 million in
1997 from $11.7 million in 1996. The increase was primarily due to the gross
profit from branded pharmaceutical products such as the Cortisporin(R) product
line which contributed $19.8 million of gross profit in 1997.
Gross profit of $(187,000) in 1997 associated with contract
manufacturing decreased $3.0 million from $2.8 million in 1996 primarily due to
the expiration of a manufacturing contract. Additionally, gross profit from
contract development, generic pharmaceutical products and companion animal
health decreased $4.3 million or 69.0% to $1.9 million in 1997 from $6.2 million
in 1996 primarily due to a decline in contract development revenues.
Selling, General and Administrative Expense
Selling, general and administrative expenses increased $7.0 million, or
57.9% to $19.1 million in 1997 from $12.1 million in 1996. This increase was
primarily attributable to the hiring of additional field sales representatives
during late 1996 and early 1997, other additional personnel costs and marketing,
promotion and sampling costs associated with the new branded product lines.
Depreciation and Amortization Expense
Depreciation and amortization expense increased $1.4 million, or
142.6%, to $2.4 million in 1997 from $982,000 in 1996. This increase was
primarily attributable to the amortization of the purchase price of the new
branded product lines.
Operating Income
Operating income increased $14.8 million to $13.4 million in 1997 from
an operating loss of $1.4 million in 1996. As a percentage of net revenues,
operating income was 27.9% in 1997. This increase was primarily due to increased
revenues from the acquisition of branded products.
Gain on Sale of Investment in Affiliate
In September 1996, the Company sold its entire 6.0% interest in an
affiliated, privately-held pharmaceutical company, which had been co-founded by
the Company's Chief Executive Officer, for $2.0 million, resulting in a gain of
$1.8 million.
Interest Expense
Interest expense increased $1.5 million, or 115.4%, to $2.8 million in
1997 from $1.3 million in 1996, as a result of additional term loans used to
finance, in part, the acquisitions of branded products.
Income Tax (Benefit) Expense
The effective tax rate in 1997 of 37.5% was higher than the federal
statutory rate of 34% due to state income taxes.
Net Income
Due to the factors set forth above, net income increased $6.8 million
to $6.6 million in 1997 from a net loss of $240,000 in 1996.
LIQUIDITY AND CAPITAL RESOURCES
General
The Company's liquidity requirements arise from debt service, working
capital requirements and funding acquisitions of branded products.
- 19 -
<PAGE> 20
The Company's recent cash requirements arose primarily in connection
with the acquisition of branded pharmaceutical products. In 1996 the acquisition
of two branded pharmaceutical products for $7.0 million was financed with a
combination of cash and seller financing. In March 1997 the Company raised $23.0
million through a combination of equity ($8.0 million), notes payable with banks
and borrowing under its then existing revolving line of credit to finance the
acquisition of the Cortisporin(R) product line. Other product acquisitions in
1997, which totaled $6.6 million, were financed primarily with notes payable
from banks and internally generated funds.
On February 27, 1998, the Company consummated the Sterile Products
Acquisition for $127.9 million, including assumed liabilities of $2.9 million,
which was financed with a prior bank facility. The Company also used a portion
of its prior bank facility to pay off approximately $50.0 million of long-term
debt, which was then outstanding, including the borrowings used for the Glaxo
Acquisition.
On June 25, 1998 the Company completed its initial public offering of
4,000,000 shares of common stock, raising approximately $48.8 million of equity,
net of underwriting discounts and other offering expenses. On July 27, 1998 the
underwriters exercised the option to purchase additional shares to cover
over-allotments of shares. Pursuant to this option, the underwriters purchased
214,730 additional shares with 104,730 of the shares purchased from the Company
and 110,000 shares purchased from selling shareholders. The sale of the
over-allotment provided the Company with approximately $1.1 million of net
proceeds after underwriting discounts, commissions and offering expenses. The
Company used a portion of the net proceeds to repay approximately $37.4 million
of debt outstanding under its prior bank facility in July 1998.
In December 1998, the Company completed the Altace Acquisition for
$363.0 million, including acquisition costs of approximately $450,000. A
portion of the purchase price, $287.5 million, was financed with proceeds from
the senior credit facility and the remainder of the purchase price, $75.0
million, with the seller notes. The balance of the proceeds from the senior
credit facility was used to refinance prior bank debt.
As of December 31, 1998, the Company had available up to $56.0 million
under its revolving line of credit pursuant to the senior credit facility, which
allows for total borrowing of up to $75.0 million at any time.
Year ended December 31, 1998
Net cash provided by operating activities was $5.8 million for the year
ended December 31, 1998. The Company's net cash provided by operating activities
was primarily the result of $20.9 million in net income resulting from sales
from recently purchased additional branded products, adjusted for non-cash
charges for depreciation and amortization of $9.3 million, and an extraordinary
loss on early retirement of existing indebtedness of $7.2 million. The Company's
net cash provided by operating activities was negatively impacted by an increase
in receivables and inventory of $31.1 million and $15.7 million, respectively.
However, cash flows from operations was positively impacted due to changes in
its accounts payable, accrued expenses and income taxes by $6.7 million, $5.7
million, and $1.7 million, respectively.
Cash flows used in investing activities was $426.0 million due
principally to the Sterile Products and the Altace Acquisitions, the Menest(R)
acquisition, and other purchases of property and equipment.
Net cash provided by financing activities was $421.2 million, which was
a result of the net proceeds from the initial public offering, and proceeds from
long-term debt to finance the Sterile Products and the Altace Acquisitions.
Year ended December 31, 1997
Net cash provided by operating activities was $5.0 million for the year
ended December 31, 1997. The Company's net operating cash in 1997 was primarily
the result of $6.6 million in net income resulting from sales from recently
purchased additional branded products, adjusted for non-cash charges of $2.4
million for depreciation and amortization, additional income taxes and deferred
taxes of $1.5 million, and related increases in accounts receivable,
inventories, accounts payable and accrued expenses of $6.3 million, $4.8
million, $3.6 million and $2.2 million, respectively.
Net cash used in investing activities for the year ended December 31,
1997 was $54.0 million and was the result of cash of $52.4 million paid for the
acquisition of new branded product lines as well as cash of $1.4 million paid
for purchases of property and equipment.
- 20-
<PAGE> 21
Net cash provided by financing activities was $47.6 million, which was
the result of (i) aggregate borrowings of $14.0 million to finance the
acquisition of the Cortisporin(R) product line in 1997, other product
acquisitions totaling $6.6 million financed in 1997, the refinancing of all
remaining acquisition term loans along with the acquisition of six additional
products for $23.0 million in November 1997, and the net increase in the
revolving line of credit of $6.2 million, offset by payments on long-term debt
and capital lease obligations of $23.8 million, (ii) proceeds from issuance of
common shares of $8.0 million in connection with the acquisition of the
Cortisporin(R) product line and (iii) repayment on shareholder notes receivable
of $2.1 million.
As a result of the factors discussed above, cash and cash equivalents
decreased from $1.4 million at December 31, 1996 to $69,000 at December 31,
1997.
Year ended December 31, 1996
Net cash used in operating activities was $6.3 million for the year
ended December 31, 1996. The Company's net use of operating cash in 1996 was
primarily a result of a $1.4 million operating loss, excluding the $1.8 million
gain on sale of investment in affiliate, offset by $1.0 million of depreciation
and amortization, an increase in income taxes receivable of approximately $3.6
million resulting from federal and state tax payments made by the Company in
1996, as well as an increase in inventory of $1.9 million due to the acquisition
of three branded pharmaceutical products and the internal development of a
complete generic product line in the fourth quarter of 1996.
Net cash used in investing activities for the year ended December 31,
1996 was $2.1 million and was primarily the result of cash paid of $3.0 million
and $1.0 million for the acquisition of three new branded product lines and
costs associated with generic pharmaceutical products as well as property and
equipment purchases, respectively. Additionally, the Company received $2.0
million from the sale of its 6.0% investment in an affiliated, privately-held
pharmaceutical company.
Net cash used in financing activities was $781,000 for the year ended
December 31, 1996, which was comprised of payments on the revolving line of
credit and other term loans of $3.4 million and $2.8 million, respectively,
offset by proceeds from a $2.5 million term loan used to finance, in part, the
acquisition of certain branded pharmaceutical products and $2.8 million raised
in an employee stock purchase plan and from shareholders and members of
management.
As a result of the factors discussed above, cash and cash equivalents
decreased from $10.6 million as of December 31, 1995, to $1.4 million as of
December 31, 1996.
Certain Indebtedness and Other Matters
As of December 31, 1998, the Company had outstanding approximately
$525.9 million of long-term debt (including current portion), including
borrowings under its revolving line of credit agreement and term loans. Of these
amounts, approximately $444.0 million were at variable rates based on LIBOR and
the remainder at fixed rates. The Company has entered into two interest rate
swap agreements with notional principal amounts aggregating $100.0 million with
a commercial bank to exchange its variable LIBOR for fixed LIBOR rate interest
of approximately 5.5%. The Company does not believe its exposure to changes in
interest rates under its remaining variable rate agreements will have a material
effect on its financial condition or results of operations. Certain financing
arrangements require the Company to maintain certain minimum net worth, debt to
equity, cash flow and current ratio requirements.
On December 22, 1998, the Company amended and restated its prior bank
facility to (A) finance the Altace Acquisition; (B) refinance the Company's
prior bank facility and (C) provide for ongoing working capital and other
financing requirements. The senior credit facility provides for up to $500.0
million of aggregate borrowing capacity, consisting of a secured $150.0 million
tranche A term loan, a secured $275.0 million tranche B term loan, and a secured
revolving credit facility in an aggregate amount of $75.0 million. The revolving
credit facility includes a $10.0 million sublimit available for the issuance of
letters of credit and a $5.0 million sublimit available for swingline loans.
The loans under the senior credit facility bear interest, at the
Company's option, at either:
(1) the base rate (which is based on the prime rate most recently announced by
Credit Suisse First Boston or the federal funds rate plus one-half of 1%) plus
(A) in the case of the tranche A term loan and borrowing under the revolving
credit facility, an applicable spread ranging from 1.25% to 2.25% (based on a
leverage ratio) and (B) in the case of the tranche B term loan, 2.75%; or
(2) the applicable London interbank rate plus (A) in the case of the tranche A
term loan and borrowings under the revolving credit facility, an applicable
spread ranging from 2.25% to 3.25% (based on a leverage ratio) and (B) in the
case of the tranche B term loan, 3.75%.
- 21 -
<PAGE> 22
The tranche A term loan is subject to certain specified amortization
payments required to be made in quarterly installments commencing on March 31,
1999 until December 22, 2004. The tranche B term loan is subject to certain
specified amortization payments required to be made in quarterly installments
commencing on March 31, 1999 until December 22, 2006. The revolving credit
facility is available until December 22, 2004. In addition, the loans and the
aggregate available commitments under the senior credit facility will be reduced
upon the occurrence of certain specified events as outlined in the agreement.
The Company's obligations under the senior credit facility are
unconditionally guaranteed on a senior basis by each direct and indirect
majority owned U. S. subsidiary of the Company. In addition, the senior credit
facility is collateralized by substantially all of the real and personal
property of the Company.
The senior credit facility contains a number of covenants that, among
other things restrict the ability of the Company and its subsidiaries to dispose
of assets, incur additional indebtedness or guaranty obligations, repurchase or
redeem capital stock or repay subordinated indebtedness except in accordance
with the subordination provisions, pay dividends or make capital distributions,
enter into sale and leaseback transactions, make investments, make acquisitions,
engage in mergers or consolidations, make capital expenditures, engage in
certain transactions with affiliates, make loans, change its fiscal year, change
its business and otherwise restrict corporate activities.
The Company also financed a portion of the Altace Acquisition with
$75.0 million senior subordinated seller notes with interest payable monthly at
10%, due in December 2007. These notes were refinanced in March 1999 with 10 3/4
senior subordinated notes.
On February 27, 1998, the Company entered into a $195.0 million credit
agreement, the proceeds of which were used to finance the Sterile Product
Acquisition and to pay off $40.0 million of term loans and other outstanding
borrowings. This facility was refinanced by the senior credit facility entered
into on December 22, 1998 described above.
The Company believes that existing credit facilities and cash expected
to be generated from operations are sufficient to finance its current operations
and working capital requirements. However, in the event the Company makes
significant future acquisitions, it may be required to raise funds through
additional borrowings or the issuance of additional debt or equity securities.
At present, the Company is actively pursuing the acquisition of additional
branded pharmaceutical products that may require the use of substantial capital
resources. There are, however, no present agreements or commitments with respect
to any such acquisitions.
CAPITAL EXPENDITURES
Capital expenditures, including capital lease obligations, were $81.1
million and $1.5 million for the years ended December 31, 1998 and 1997,
respectively. The principal capital expenditures included property and equipment
purchases in connection with the Sterile Products Acquisition. As a result of
the Sterile Products Acquisition, the Company expects that it may need to incur
additional capital expenditures over the next few years in connection with the
maintenance and operation of the Parkedale facility. In addition, the Company
expects to increase its capital expenditures over the next few years as a part
of its acquisition and growth strategy.
YEAR 2000 READINESS
The Company has conducted an evaluation of its information technology
and non-information technology computer systems with respect to the "Year 2000"
issue. This issue arises because many electronic systems use two digits rather
than four to determine dates. This could cause information technology systems
such as software applications, hardware, network systems and embedded systems to
misread important dates beginning in the year 2000, which could cause system
failures and disruption of operations.
Except for the Bristol facility which is currently being assessed, the
Company has completed a Year 2000 readiness assessment of its business critical
information technology and non-information technology systems. As a result of
the assessment, the Company is in the process of developing and implementing
corrective action plans designed to address Year 2000 issues. These plans
include modification,
- 22 -
<PAGE> 23
upgrade and replacement of the Company's critical administrative, production and
research and development computer systems to make them Year 2000 ready.
Implementation of corrective action plans has begun.
Because the Company's operations depend on the uninterrupted flow of
materials and services from its contract manufacturers and other suppliers, the
Company's plans for Year 2000 readiness include receiving and analyzing
information from its suppliers with regard to their progress toward Year 2000
readiness. The Company intends to continue to monitor the progress of its key
suppliers toward Year 2000 readiness. The Company considers the most reasonably
likely worst case scenario is that one or more of the Company's suppliers
encounters a Year 2000 problem and is unable to supply materials. If this occurs
and the Company could not obtain the same materials from another vendor,
production could be interrupted which could result in lost sales and profits. In
addition, while the Company is taking action to correct deficiencies in its own
systems, it is possible that one or more of the Company's facilities or critical
business systems might not achieve Year 2000 readiness as anticipated. This
could also result in disruption of operations and lost sales and profits.
The Company estimates that it will spend between $1.0 million and $1.5
million to become Year 2000 ready. The majority of this spending will constitute
replacement costs of non-compliant information technology systems and the
reprogramming of existing systems. It is possible that the actual cost of the
Company's Year 2000 readiness effort could exceed these estimates. Funds for
this project have come from the Company's cash flows and costs have been
expensed as incurred except for hardware, which has been capitalized. For the
years ended December 31, 1997 and 1998, the Company has incurred approximately
$88,000 and $38,500, respectively, to become Year 2000 ready.
IMPACT OF INFLATION
The Company has experienced only moderate raw material and labor price
increases in recent years. While the Company has passed some price increases
along to its customers, the Company has primarily benefited from rapid sales
growth negating most inflationary pressures.
RECENT ACCOUNTING PRONOUNCEMENTS
SFAS No. 130, Reporting Comprehensive Income, became effective in 1998.
SFAS No. 130 establishes standards for reporting of comprehensive income and its
components in the financial statements. In 1996 and 1997 the Company had other
comprehensive income of $16,000, net of tax, related to an unrealized loss on
securities. The Company had no other comprehensive income in 1998.
SFAS No. 131, Disclosures about Segments of an Enterprise and Related
Information, became effective in 1998. SFAS No. 131 requires public business
enterprises to adopt its provisions for periods beginning after December 15,
1997, and to report certain information about operating segments in complete
sets of financial statements of the enterprise and in condensed financial
statements of interim periods issued to shareholders. The adoption of SFAS 131
did not affect the Company's results of operations or financial condition.
However, prior year disclosures have been reclassified to conform with the
provision of this statement.
On June 15, 1998, the Financial Accounting Standards Board issued SFAS
No. 133, Accounting for Derivative Instruments and Hedging Activities. SFAS No.
133 is effective for all fiscal quarters of all fiscal years beginning after
June 15, 1999. SFAS No. 133 requires that all derivative instruments be recorded
on the balance sheet at their fair value. Changes in the fair value of
derivatives are recorded each period in current earnings or other comprehensive
income, depending on whether a derivative is designated as part of a hedge
transaction and, if it is, the type of hedge transaction. Management of the
Company is evaluating the provisions of SFAS No. 133, but the impact, if any of
its adoption, has not yet been determined.
FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K includes forward-looking statements
within the meaning of the Private Securities Litigation Reform Act of 1995.
These statements relate to analyses and other information which are based on
forecasts of future results and estimates of amounts not yet determinable. These
statements also relate to our future prospects, developments and business
strategies.
These forward-looking statements are identified by their use of terms
and phrases, such as "anticipate," "believe," "could," "estimate," "expect,"
"intend," "may," "plan," "predict," "project," "will" and similar terms and
phrases, including references to assumptions. These statements are contained in
sections entitled "Risk Factors," "Management's Discussion and Analysis of
Financial Condition and Results of Operations," "Business" and other sections of
this Annual Report on Form 10-K.
Such forward-looking statements include, but are not limited to: (a)
anticipated developments and expansions of the Company's business; (b) increases
in sales of recently acquired products, especially Altace(R) as described in
"The Company"; (c) development of product line extensions; (d) the products
which the Company expects to offer; (e) the intent to market and distribute
certain of our products internationally; (f) the intent to manufacture certain
products in our own facilities which are currently manufactured for us by third
parties; (g) the intent, belief or current expectations of the Company, its
directors or its officers, primarily with respect to the future operating
performance of the Company; (h) expectations regarding sales growth, gross
margins, manufacturing productivity, capital expenditures and effective tax
rates; and (i) expectations regarding the Company's financial condition and
liquidity as well as future cash flows and earnings.
Such forward-looking statements involve known and unknown risks,
uncertainties and other factors that may cause actual results to be materially
different. Such factors include, but are not limited to, the following: changes
in general economic and business conditions; dependence on continued acquisition
of products; management of growth of business and integration of product
acquisitions; changes in current pricing levels; development of new competitive
products; changes in economic conditions and federal and state regulations;
competition for acquisition of products; manufacturing capacity constraints; and
the availability, terms and deployment of capital. See "Risk Factors."
We do not undertake to update our forward-looking statements or risk
factors to reflect future events or circumstances.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Certain of the Company's financial instruments are subject to market
risks, including interest rate risk. The Company's financial instruments are not
currently subject to foreign currency risk or commodity price risk. The Company
has no financial instruments held for trading purposes.
The Company is exposed to market risk related to changes in interest
rates on borrowings under its senior credit facility. The senior credit
facility bears interest based on LIBOR. However, the Company has entered into an
aggregate notional principal amount of $100.0 million in interest rate swap
agreements to manage a portion of its exposure to interest rate changes. The
swaps involve the exchange of fixed and variable interest rate payments based on
contractual principal amount and time period. Payments or receipts on the
agreements are recorded as adjustments to interest expense. At December 31,
1998, the Company's swap agreements are effective through 2001. Under these
- 23 -
<PAGE> 24
agreements, the Company pays a fixed weighted average interest rate of 5.5% and
receives a floating interest rate based on the one-month LIBOR.
The fair value of the interest rate swap agreements represent the
estimated payments or receipts that would be made to terminate the agreements.
At December 31, 1998, the Company would have paid approximately $2.8 million to
terminate the agreements. The fair value is based on dealer quotes. The Company
has $444.0 million of debt remaining that bears interest at a variable rate.
Accordingly, an increase in interest rates would adversely affect interest
expense.
The following table sets forth the Company's financial instruments that
are sensitive to interest rates as of December 31, 1998 (in thousands):
- 24 -
<PAGE> 25
<TABLE>
<CAPTION>
Weighted
Average
Interest Estimated
Rate at Fair
Year-End Maturities Value
--------- ---------------------------------------------------------------------------------- ----------
1999 2000 2001 2002 2003 Thereafter Total
------- ------- ------- ------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Debt:
Fixed rate ........ 7.2% $ 2,700 $ 971 $ 1,029 $ 1,091 $ 1,156 $ 75,000 $ 81,947 $ 83,500
Variable rate ..... 8.6% 10,250 17,750 25,250 32,750 40,250 317,750 444,000 444,000
Interest rate swaps.. 5.5% -- -- -- -- -- -- -- (2,787)
</TABLE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The information required by this item is set forth at the
pages indicated in Item 14(a) below.
ITEM 9. CHANGES IN AND DISAGREEMENTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
- 25 -
<PAGE> 26
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The executive officers, directors and key employees of the Company as
of December 31, 1998 are as follows:
<TABLE>
<CAPTION>
NAME AGE POSITION HELD
- ---- --- -------------
<S> <C> <C>
John M. Gregory 45 Chairman of the Board of Directors and Chief Executive Officer
Jefferson J. Gregory 43 President of King Pharmaceuticals, Inc. and of Parkedale
Pharmaceuticals, Inc. and Director
Joseph R. Gregory 44 Vice Chairman of the Board of Directors of the Company, President of Monarch
Pharmaceuticals, Inc.
Brian G. Shrader 30 Chief Financial Officer
James E. Gregory 47 Executive Vice President, General Manager (Bristol)
R. Henry Richards, M.D. 54 Executive Vice President, Medical Affairs
John P. McCoy 50 Executive Vice President, Quality
Terri D. White-Gregory 36 Executive Vice President, Financial Analyst
John A. A. Bellamy 36 Executive Vice President, Legal Affairs and General Counsel
Ronald C. Siegfried 57 Executive Vice President, Development
Steven M. Samet 49 Executive Vice President, General Manager (Parkedale)
Kyle P. Macione 35 Executive Vice President, Investor Relations
Michael R. Hilton 51 Vice President, Sales and Marketing
Thomas K. Rogers, III 45 Vice President, Regulatory Affairs
Edward J. Reilly 46 Vice President, Brand Management
Moises Saporta 61 Vice President, Manufacturing
Norman T. Miller 54 Senior Director, Regulatory Affairs (Compliance)
Ernest C. Bourne 57 Director
Lois A. Clarke 53 Director
Frank W. De Friece, Jr. 78 Director
D. Greg Rooker 51 Director
Ted G. Wood 61 Director
</TABLE>
John M. Gregory has served as Chairman of the Board of Directors since
the Company's inception in 1993 and Chief Executive Officer since 1994. He
previously co-founded General Injectables and Vaccines, Inc. ("GIV") and served
as President of GIV from 1984 through 1994. Prior to co-founding GIV, he was the
owner and registered pharmacist of a pharmacy located in Bastian, Virginia. He
graduated from the University of Maryland School of Pharmacy with a B.S. in
Pharmacy in 1976.
Jefferson J. Gregory has served as President of King Pharmaceuticals,
Inc., since 1993, and as President of Parkedale Pharmaceuticals, Inc., a wholly
owned subsidiary of the Company, since February 1998 and as a Director since
1995. He was formerly the Director of Regulatory Affairs and Product Information
for GIV from 1991 to 1993 and was a consultant to the pharmaceutical industry
from 1989 to 1991. He formerly served as a registered pharmacist in retail
pharmacies in the Washington D.C. and Baltimore, Maryland metropolitan areas. He
graduated from the University of Maryland School of Law with a Juris Doctor in
1985, University of Maryland School of Pharmacy with a B.S. in Pharmacy in 1979,
and Montgomery College with an Associate of Arts in 1976.
Joseph R. Gregory has served as President of Monarch Pharmaceuticals,
Inc., a wholly owned subsidiary of the Company, since 1994, has served as a
Director since 1993 and as Vice Chairman of the Board of Directors of the
Company since December 1997. Prior to joining the Company, he was the Chief
Operating Officer of GIV from 1987 to 1994 and also served as the President of
Insource/Williams, Inc., a GIV subsidiary, from 1989 to 1994. He previously
served as President of The Buying Group Network/A Service of Pharmacist Shared
Services. He graduated from the University of Maryland School of Business with a
B.S. in Business Administration in 1977.
- 26 -
<PAGE> 27
Brian G. Shrader, CPA, has served as Chief Financial Officer since
1993. He was formerly the Manager of Accounting for GIV from 1990 to 1993. He is
a current member of the American Institute of Certified Public Accountants and
Virginia Society of CPA's. He graduated from the Virginia Polytechnic Institute
and State University with a B.S. in Accounting in 1990 and a Masters of
Accountancy in 1991.
James E. Gregory has served as Executive Vice President, General
Manager (Bristol) and Production/Administration since February 1995. Previously,
he was the Deputy Executive Officer of the Washington D.C. Court system from
1990 through 1995 and a senior administrator with that court from 1987 to 1990.
He was responsible for managing all business affairs for another major urban
court system in Phoenix, Arizona from 1982 to 1985 and was the Deputy County
Recorder for Maricopa County (Phoenix) from 1985 to 1987. Through management
consulting firms, he provided administrative systems consulting services to
various state court systems from 1973 to 1982. He graduated from American
University with a Masters of Public Administration in 1979 and the University of
Maryland with a B.A. in History in 1973.
R. Henry Richards, M.D. has served as Executive Vice President of
Medical Affairs since 1994. He also was the Medical Director/Director of Managed
Care for GIV during 1993. He served as the Vice President Medical Director for
Medical Dimensions, Inc. from 1991 to 1993, after having served as a M.D. in
private practice (Internal Medicine, Hypertension and Nephrology) since 1976. He
was also the Medical Director for the Hypertension Medical Clinic of San Jose
and Review Services Inc., Resource Consultant for Health Strategies in San Jose,
was associated with Samaritan Kidney Medical Associates, San Jose and Medical
Director, Hospital Private Review in Campbell, California. Dr. Richards
graduated from the University of Maryland with a M.D. in 1971, the Atlantic
Christian College with a B.S. in Biology in 1966, and Montgomery College with an
Associate of Arts in 1963.
John P. McCoy has served as Executive Vice President of Quality since
1994. He previously served as the Director of Total Quality
Management/Marketing/Logistics, Material Management and Planning for Connaught
Laboratories in Swiftwater, Pennsylvania from 1986 to 1993. He was the Group
Manager, Logistics Services Manager and Manufacturing Planner for McNeil
Pharmaceuticals from 1982 to 1986; Distribution Planning Manager from 1979 to
1982; and Manager, Marketing/Sales Systems, Distribution Center Manager and
Traffic Manager from 1971 to 1979. He graduated from Pennsylvania State
University with a B.S. in Business in 1970, and he also completed graduate work
at the University of Pennsylvania from 1983 to 1986.
Terri D. White-Gregory, CPA, has served as Executive Vice President,
Financial Analyst since 1996. She served as a financial analyst for Westinghouse
Electric in 1995 and as a consultant and sole proprietor in public accounting
from 1993 to 1996. From 1988 to 1993, she was an audit manager and supervisor in
the Emerging Business Services Group of Coopers & Lybrand L.L.P., in Washington
D.C. and Roanoke, Virginia and was a senior associate on the audit staff of
Ernst & Young LLP in Columbia, South Carolina from 1985 to 1988. She graduated
from The Ohio State University with a B.S. in Business Administration in 1985.
John A. A. Bellamy has served as Executive Vice President of Legal
Affairs and General Counsel since February 1995. He was formerly a corporate
attorney with the law firm of Hunter, Smith & Davis in Kingsport, Tennessee from
1990 to 1995. He graduated from the University of Tennessee College of Law with
a J.D. with Honors in 1990, and graduated Summa Cum Laude with Honors in
Independent Study from King College in 1984 with a B. A. degree in Classics and
English. He is a member of the Licensing Executives Society.
Ronald C. Siegfried has served as Executive Vice President of
Development, Vice President of Development, Technical Services and Manufacturing
since December 1993. He previously served as Director of Manufacturing for RSR
Laboratories, Inc. ("RSR Laboratories"), from 1990 to 1993, was the Manager of
Manufacturing and a Product Development Chemist for Beecham Laboratories from
1972 to 1990, and was a Product Development Chemist for Bristol Laboratories, a
division of Bristol-Myers Squibb from 1964 to 1972. He graduated from the
Rochester Institute of Technology with a B.S. in Chemistry in 1964.
Steven M. Samet has served as Executive Vice President, General Manager
(Parkedale Facility) since its acquisition by the Company February 28, 1998. For
the 12 years prior, he served as Vice President, General Manager of Parke-Davis
Sterile Products Operations, overseeing both Rochester, Michigan and Dublin,
Ireland operations. From 1973 to 1986, Mr. Samet held various operations
positions with both Elkins-Sinn, Inc. and Sterling Drugs. Mr. Samet received an
M.B.A. from the Michigan State Advanced Management Program in 1989 and a B. S.
in Biology from the State University of New York in 1972.
Kyle P. Macione has served as Executive Vice President, Investor
Relations since January 1998 and as Corporate Counsel since March 1996. He was
formerly a corporate attorney with the law firm of Elliott Lawson & Pomrenke in
Bristol, Virginia from 1992 to 1996. He
- 27 -
<PAGE> 28
graduated from Washington & Lee University School of Law with a Juris Doctor in
1991, University of Alabama with a Masters of Accountancy in 1987, and
University of Mississippi with a Bachelor of Accountancy in 1986. He is a
Certified Public Accountant and licensed to practice law in Tennessee and
Virginia.
Michael R. Hilton has served as Vice President of Sales and Marketing
and Director of Marketing since July 1995. From 1991 to 1995, he served in the
capacity of Vice President, Marketing and Business Development and marketing
director for Richwood Pharmaceuticals, KV Pharmaceuticals and RSR Laboratories.
From 1973 to 1990 he served in various sales and marketing and public relations
positions with Beecham Laboratories. He graduated from Ferris State University
with a B.S. in Marketing in 1970.
Thomas K. Rogers, III has served as Vice President, Regulatory Affairs,
since April 1997. He previously served as Director of Regulatory Affairs from
1995 to 1997 and as Manager of Regulatory Affairs from 1994 to 1995. Prior to
joining the Company, he served RSR Laboratories as Manager of Scientific
Development from 1991 to 1993, and Manager of Quality Assurance from 1990 to
1991. He served Beecham Laboratories as Manager of Quality Assurance from 1988
to 1990 and as Microbiologist from 1979 to 1988. He graduated from East
Tennessee State University with a M.S. in Microbiology in 1977 and from Milligan
College with a B.S. in Biology in 1975.
Edward J. Reilly has served as Vice President, Brand Management of
Monarch Pharmaceuticals, Inc., since January 1999. Previously, he was Product
Manager with Hoechst Marion Roussel, Inc., from 1990 to 1998. Since 1981 he
served in various sales and management and product management capacities with
Merrell Dow Pharmaceuticals and Marion Merrell Dow Pharmaceuticals. He graduated
from the State University of New York in 1976 with a B. S. in Biology.
Moises Saporta has served as Vice President of Manufacturing of King
Pharmaceuticals, Inc. since 1998. He was formerly Senior Director of Technology
Development. He previously served as Vice President World Wide Manufacturing
Operations for Roberts Pharmaceutical Corporation from 1991 to 1997. From 1988
to 1991, he was Assistant Director, Manufacturing and Engineering, with
Whitehall International. He served as plant manager and area manager for
American Cyanamid Company from 1981 to 1988 in Argentina. From 1977 to 1981, he
was manager of Pharmaceutical Technology for E. R. Squibb & Sons International.
He served in a series of technical operations and planned management positions
for USV Pharmaceutical internationally and domestically from 1966 to 1977. From
1961 to 1966, he served as manager of technical operations for F.
Hoffman-LaRoche. He graduated from the University of Chile in 1960 as a
Pharmaceutical Chemist.
Norman T. Miller has served as Senior Director, Regulatory Affairs
(Compliance), since December 1993. He previously served as a Research Compliance
Specialist and as acting Director of Compliance for Beecham Laboratories from
1988 to 1990. From 1990 to 1993 he served as Manager of Regulatory Affairs for
RSR Laboratories. Prior to 1988, he served as Resident-in-Charge, Senior
Investigator and Inspector for the FDA for 28 years. He graduated from South
Dakota State University with a M.S. in Animal Science-Biochemistry minor in 1960
and a B.S. in Animal Husbandry in 1958.
Ernest C. Bourne has served as President of the International Division
since January 1999 and as a Director since October 1997. From 1968 until January
1999, he had been employed with Bourne & Co., Inc., an investment banking firm,
where he served as President.
Lois A. Clarke has served as a Director of the Company since April
1997. Presently she is Executive Vice President and Chief Financial Officer of
The United Company in Bristol, Virginia, one of the Company's principal
shareholders. She also serves as President of United Investment Corporation, a
registered investment advisor, and an affiliate of The United Company. Ms.
Clarke has been with The United Company since 1971 and has been responsible for
financial matters of the Company. She is a graduate of McClains College with a
degree in Accounting.
Frank W. De Friece, Jr. has served as a Director of the Company since
October 1997. He has served as President, Vice President, Fund Administrator and
Board member of the Massengill De Friece Foundation, Inc. since 1950. Since 1946
he served in various capacities with the S.E. Massengill Company. He served as
President of the S.E. Massengill Company from 1960 to 1971 when the company was
purchased by Beecham, Inc. From 1971 to 1973, he served as Board Member Vice
Chairman of Beecham, Inc. He graduated from Roanoke College with a B.S. in
Chemistry in 1946.
- 28 -
<PAGE> 29
D. Greg Rooker has served as a Director of the Company since October
1997. Mr. Rooker is the owner and President of Family Community Newspapers of
Southwest Virginia, Inc., Wytheville, Virginia ("FCN"). FCN consists of six
community newspapers and a national monthly motor sports magazine. Mr. Rooker is
a graduate of Northwestern University with a degree in Journalism.
Ted G. Wood has served as a Director of the Company since April 1997.
Presently, President, United Operating Companies, affiliates of The United
Company in Bristol, Virginia, one of the Company's principal shareholders. From
1992 to 1993, he was President of Boehringer Mannheim Pharmaceutical Corporation
in Rockville, Maryland. From 1993 to 1994 he was President of KV Pharmaceuticals
in St. Louis, Missouri. From 1975 to 1991, he was employed by SmithKline where
he served as President of Beecham Laboratories from 1988 to 1989 and Executive
Vice President of SmithKline from 1990 to 1991. He served as account supervisor
at Frank J. Corbett, Inc. in Chicago, Illinois from 1972 to 1974. From 1962 to
1971, he held various sales and marketing management positions with The Dow
Chemical Company. He graduated from the University of Kentucky with a B.S. in
Commerce in 1960. In 1986 he completed the Advanced Management Program at
Harvard University.
Messrs. John, Joseph, Jefferson, and James Gregory, and R. Henry
Richards, M.D., are brothers. Ms. Terri D. White-Gregory is the spouse of
Jefferson Gregory.
COMPENSATION OF DIRECTORS
For the year ended December 31, 1998, directors of the Company received
no fees for serving in such capacity. However, the 1998 Non-Employee Director
Plan was adopted by the Board of Director in February 1998 and is subject to
approval of the shareholders at the next annual meeting. Currently options
exercisable for 50,000 shares of common stock have been issued, subject to such
approval, to non-employee directors.
MEETINGS OF DIRECTORS
The Board of Directors held six meetings during 1998. No director
attended less than 75% of all meetings held.
CLASSIFICATION OF BOARD OF DIRECTORS
Pursuant to the Company's Bylaws, the Board of Directors is divided
into three classes of directors each containing, as nearly as possible, an equal
number of directors. Directors within each class are elected to serve three-year
terms and approximately one-third of the directors sit for election at each
annual meeting of the Company's shareholders. A classified board of directors
may have the effect of deterring or delaying any attempt by any group to obtain
control of the Company by a proxy contest since such third party would be
required to have its nominees elected at two separate meetings of the Board of
Directors in order to elect a majority of the members of the Board of Directors.
COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors has appointed an Audit Committee, a Compensation
Committee and a Stock Option Committee.
Audit Committee. The Audit Committee, which currently consists of
Joseph R. Gregory, D. Greg Rooker and Frank W. DeFriece, Jr., has the authority
and responsibility to hire one or more independent public accountants to audit
the Company's books, records and financial statements and to review the
Company's systems of accounting (including its systems of internal control); to
discuss with the independent accountants the results of the audit and review;
to conduct periodic independent reviews of the systems of accounting (including
systems of internal control); and to make reports periodically to the Board of
Directors with respect to its findings.
Compensation Committee. The Compensation Committee, which currently
consists of John M. Gregory, Frank W. DeFriece, Jr. and D. Greg Rooker, is
responsible for reviewing and approving compensation for the executive officers.
Stock Option Committee. The Stock Option Committee, which currently
consists of Lois A. Clarke, Frank W. DeFriece, Jr. and D. Greg Rooker, is
responsible for administering, and determining awards under, the Company's 1997
Incentive and Nonqualified Stock Option Plan for Employees.
- 29 -
<PAGE> 30
ITEM 11. EXECUTIVE COMPENSATION
The following table summarizes all compensation earned by the Company's
Chief Executive Officer and by each of the Company's four other most highly
compensated executive officers whose total annual salary and bonus exceeded
$100,000 for services rendered in all capacities to the Company for the year
ended December 31, 1998.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
ANNUAL COMPENSATION
----------------------------------
ALL OTHER
NAME AND PRINCIPAL POSITION YEAR SALARY($) BONUS($) COMPENSATION($)(1)
- --------------------------- ---- ------- -------- ------------------
<S> <C> <C> <C> <C>
John M. Gregory.............................................. 1998 361,566 -0- 4,800
Chairman of the Board and Chief Executive Officer 1997 360,918 -0- 4,800
Jefferson J. Gregory......................................... 1998 282,881 -0- 4,800
President and Chief Operating Officer, King 1997 265,854 -0- 4,800
Pharmaceuticals, Inc. and Parkedale Pharmaceuticals
Joseph R. Gregory............................................ 1998 281,099 -0- 4,800
Vice Chairman of the Board and President and Chief 1997 242,588 -0- 4,800
Operating Officer, Monarch Pharmaceuticals, Inc.
James E. Gregory............................................. 1998 228,795 10,000 2,250
Executive Vice President, General Manager 1997 201,569 4,000 4,800
R. Henry Richards, M.D....................................... 1998 217,832 10,000 4,800
Executive Vice President, Medical Affairs 1997 218,189 4,000 4,800
</TABLE>
- ----------
(1) All Other Compensation reflects the Company's matching contributions to
the Company's 401(k) plan.
The following table discloses the grant of stock options in fiscal year
1998 to the executive officers.
<TABLE>
<CAPTION>
OPTIONS/SARS GRANTED IN LAST FISCAL YEAR
- ----------------------------------------------------------------------------------------------------------------------
INDIVIDUAL GRANTS Potential realizable
value at assumed
annual rates of stock
price appreciation for
option term(1)
- ---------------------------------------------------------------------------------------------- --------------------
Number of Percent of
securities total options
underlying granted to Exercise or
options employees in base price Expiration
Name granted (#) fiscal year ($/sh) date 5%($) 10% ($)
---- ----------- ----------- ------ ---- ----- -------
<S> <C> <C> <C> <C> <C> <C>
Jefferson J. Gregory ........ 25,000 11.3% 14.00 2008 764,775 1,425,092
Joseph R. Gregory............ 25,000 11.3% 14.00 2008 764,775 1,425,092
James E. Gregory............. 7,500 3.4% 14.00 2008 229,432 427,528
R. Henry Richards, M.D....... 7,500 3.4% 14.00 2008 229,432 427,528
</TABLE>
- ----------
(1) Based on $27.375 per share, the average bid and asked prices of the common
stock as quoted on the Nasdaq Stock Market at December 31, 1998.
The following table discloses information regarding stock options held
at the end of or exercised in fiscal year 1998 for each of the executive
officers as of December 31, 1998.
- 30 -
<PAGE> 31
<TABLE>
<CAPTION>
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR
AND FISCAL YEAR-END OPTION/SAR VALUES
- ------------------------------------------------------------------------------------------------------------------------------
Shares Securities underlying Value of unexercised
acquired on Value unexercised options in-the-money options
NAME exercise realized at December 31, 1998 at December 31, 1998 (1)
---- -------- -------- ------------------------------ -------------------------------
Exercisable Unexercisable Exercisable Unexercisable
----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Jefferson J. Gregory ..... -0- n/a 6,250 18,750 $171,093 $513,281
Joseph R. Gregory......... -0- n/a 6,250 18,750 $171,093 $513,281
James E. Gregory.......... -0- n/a 1,875 5,625 $ 51,328 $153,984
R. Henry Richards, M.D.... -0- n/a 1,875 5,625 $ 51,328 $153,984
</TABLE>
- -----------------
(1) Based on $27.375 per share, the average bid and asked prices of the
common stock as quoted on the Nasdaq Stock Market at December 31, 1998.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Board of Directors appointed the Compensation Committee in October
1997. For the year ended December 31, 1998, Messrs. John M. Gregory, DeFriece
and Rooker participated in deliberations concerning executive officer
compensation.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the
ownership of the common stock as of March 1, 1999, for (i) each person who owns
more than 5% of the common stock, (ii) each director and executive officer of
the Company, and (iii) all executive officers and directors of the Company as a
group.
<TABLE>
<CAPTION>
BENEFICIAL
OWNERSHIP OF
COMMON STOCK
------------------------------
PERCENTAGE
EXECUTIVE OFFICERS, DIRECTORS NUMBER OF OUTSTANDING
AND 5% SHAREHOLDERS SHARES SHARES(1)
------------------- ------ ---------
<S> <C> <C>
John M. Gregory(2)...................................................... 8,023,807 25.0%
Joseph R. Gregory(3).................................................... 2,894,400 9.0
Jefferson J. Gregory(4)................................................. 1,028,885 3.2
James E. Gregory(5)..................................................... 147,923 *
R. Henry Richards, M.D.(6).............................................. 222,594 *
Brian G. Shrader(7)..................................................... 510,010 1.6
John McCoy(8)........................................................... 27,701 *
Terri D. White-Gregory(4)............................................... 1,875 *
John A. A. Bellamy(9)................................................... 41,524 *
Steven M. Samet......................................................... 21,000 *
Kyle P. Macione(10)..................................................... 11,108 *
Ernest C. Bourne(11).................................................... 138,478 *
Lois A. Clarke(12)(13).................................................. 105,200 *
Frank W. DeFriece, Jr. (14)............................................. 10,000 *
D. Greg Rooker(15)...................................................... 70,980 *
Ted G. Wood(13)(16)..................................................... 38,000 *
All executive officers and directors as a group (16 persons)............ 13,286,345 41.3
The United Company(17) 5,172,594 16.1
</TABLE>
- ----------
* Less than 1%.
(1) Unless otherwise indicated, beneficial ownership consists of sole
voting and investing power based on 32,104,730 shares issued and
outstanding as of March 1, 1999. Options to purchase shares which are
exercisable or become exercisable within 60 days of March 1, 1999 are
deemed to be outstanding for the purpose of computing the percentage of
outstanding shares owned by each person to whom a portion of such
options relate but are not deemed to be outstanding for the purpose of
computing the percentage owned by any other person.
- 31 -
<PAGE> 32
(2) Includes 6,116,228 shares jointly owned with Mr. Gregory's spouse;
1,852,539 shares owned by S.J., LLC, a limited liability company, the
primary members of which are Mr. Gregory's children; 47,900 shares
registered in the name of The Lazarus Foundation, Inc., a private
foundation controlled by John M. Gregory and 7,140 shares owned by The
Jason Foundation, a private foundation controlled by Mr. Gregory and by
D. Greg Rooker. Mr. Gregory's address is 501 Fifth Street, Bristol,
Tennessee 37620.
(3) Includes 966,000 shares owned through Kingsway L.L.C., a limited
liability company, the primary members of which are Mr. Gregory, his
spouse and his son and 6,250 shares issuable upon the exercise of
options. Mr. Gregory's address is 501 Fifth Street, Bristol, Tennessee
37620.
(4) Includes 908,523 shares jointly beneficially owned by Ms. White-Gregory
and Jefferson J. Gregory and 58,000 shares beneficially owned by
Gregory Investments, L.P., the general partners of which are Mr.
Gregory and Ms. White-Gregory and 6,250 and 1,875 shares issuable upon
the exercise of options granted to Mr. Gregory and Ms. White-Gregory,
respectively.
(5) Includes 142,702 shares jointly owned with Mr. Gregory's spouse, 3,346
shares owned by Mr. Gregory's children and 1,875 shares issuable upon
the exercise of options.
(6) Includes 203,132 shares jointly owned with Dr. Richards' spouse and
1,875 shares issuable upon the exercise of options.
(7) Includes 241,500 shares owned by C.B.B., L.L.C., a limited liability
company, the primary members of which are Mr. Shrader and his parents;
10,623 shares jointly owned with Mr. Shrader's mother; and 2,500 shares
issuable upon the exercise of options.
(8) Includes 25,826 shares jointly owned with Mr. McCoy's spouse and 1,875
shares issuable upon the exercise of options.
(9) Includes 1,875 shares issuable upon the exercise of options.
(10) Includes 375 shares issuable upon the exercise of options.
(11) Includes 10,000 shares issuable upon the exercise of options.
(12) Includes 16,800 shares held in the name of Ms. Clarke as custodian for
Donald Alan Clarke, a minor, and 10,000 shares issuable upon the
exercise of options.
(13) Ms. Clarke and Mr. Wood are affiliates of The United Company.
(14) Includes 10,000 shares issuable upon the exercise of options.
(15) Includes 20,000 shares held in trust for the benefit of Mr. Rooker's
children; 2,850 shares owned by Mr. Rooker's spouse, 7,140 shares owned
by Family Community Newspapers of Southwest Virginia, 7,140 shares
owned by The Jason Foundation, a private foundation controlled by Mr.
Rooker and by John M. Gregory and 10,000 shares issuable upon the
exercise of options.
(16) Includes 10,000 shares issuable upon the exercise of options.
(17) The United Company along with certain of its affiliates beneficially
own in the aggregate 7,001,658 shares representing approximately 21.8%
of the outstanding shares of the Company. The address of The United
Company is 1005 Glenway Avenue, Bristol, Virginia 24201.
Messrs. John M. Gregory, Joseph R. Gregory, Jefferson J. Gregory, James
E. Gregory, Richards, Shrader, McCoy, Bellamy, Samet, Macione and Ms.
White-Gregory serve as executive officers of the Company. Messrs. John M.
Gregory, Joseph R. Gregory and Jefferson J. Gregory also serve as directors of
the Company. See "Management."
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
King Pharmaceuticals Benevolent Fund, Inc. (the "Benevolent Fund") is a
nonprofit corporation organized under the laws of the Commonwealth of Virginia
and is exempt from taxation under ss.501(c)(3) of the Internal Revenue Code. The
Board of Directors of the Benevolent Fund includes John M. Gregory, Joseph R.
Gregory, Jefferson J. Gregory, James E. Gregory and R. Henry Richards, M.D. who
are also executive officers of the Company. Messrs. John M., Joseph R. and
Jefferson J. Gregory are also directors of the Company. The Company advanced
$1.0 million in 1997 to the Benevolent Fund which was used for general operating
purposes. At December 31, 1998, the Benevolent Fund was indebted to the Company
in the amount of approximately $596,000. The Benevolent Fund is independent of
the Company, maintains its own accounting records and its activities are not
directly related to the business of the Company.
The United Company, a Virginia corporation, and certain of its
shareholders, officers, directors and employees are the beneficial owners of
approximately 21.8% of the common stock of the Company. Currently, two members
of the Company's Board of Directors, Lois A. Clarke and Ted G. Wood, are
affiliates of The United Company. As part of the sale of stock to The United
Company on March 17, 1997, the Company executed a Promissory Note in the amount
of $1.8 million payable to The United Company. The Promissory Note provides for
quarterly payments of interest, at a rate of 10.0% per annum, commencing on July
1, 1997, together with a single payment of principal and any accrued unpaid
interest on April 1, 1999. The Company is entitled to prepay the principal and
any accrued interest without penalty. Proceeds of the loan from The United
Company were used to fund, in part, the acquisition of the Cortisporin(R) and
Pediotic product lines from Glaxo Wellcome.
For the year ended December 31, 1998, the Company had paid Bourne &
Co., Inc., an affiliate of Mr. Bourne (a director of the Company and since
January 1999, the president of the International Division) $2,475,000 for
consulting services. Additionally, in connection with the Altace(R) Acquisition
and the related financing, Bourne & Co., Inc., received $1,250,000 in January
1999. The Company also purchased office furniture, accessories and supplies for
its international division office in Charlotte, North Carolina from Bourne &
Co., Inc. for approximately $79,000. In addition for the year December 31, 1997,
the Company paid Bourne & Co., Inc., approximately $651,000
- 32 -
<PAGE> 33
for its advisory services in the acquisition of the Cortisporin(R) product line
and $62,000 for consulting services. Bourne & Co., Inc. provided consulting
services to the Company in areas such as corporate development, financing
alternatives and strategies, and general business planning.
In September 1998, the Company purchased for approximately $350,000 the
primary residence of Jefferson J. Gregory in connection with his relocation to
the Parkedale facility. The Company believes the purchase price was at fair
market value and currently holds the property for resale.
- 33 -
<PAGE> 34
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORT ON FORM 8-K
(a) Documents filed as a part of this report:
<TABLE>
<S> <C>
(1) FINANCIAL STATEMENTS
Report of Independent Accountants...........................................................................................F-1
Consolidated Balance Sheets as of December 31, 1997 and 1998 ..............................................................F-2
Consolidated Statements of Operations for the years ended December 31, 1996, 1997 and 1998 .................................F-3
Consolidated Statements of Changes in Shareholders' Equity for the years ended
December 31, 1996, 1997 and 1998 ..................................................................................F-4
Consolidated Statements of Cash Flows for the years ended December 31, 1996, 1997 and 1998 .................................F-5
Notes to Consolidated Financial Statements..................................................................................F-7
(2) FINANCIAL STATEMENT SCHEDULE
Report of Independent Accountant...........................................................................................S-1
Valuation and Qualifying Accounts..........................................................................................S-2
</TABLE>
All other schedules have been omitted because of the absence of conditions under
which they are required or because the required information is given in the
above-listed financial statements or notes thereto.
(b) REPORTS ON FORM 8-K.
No Current Report on Form 8-K was filed during the quarter ended December
31, 1998.
(c) EXHIBITS
The following Exhibits are filed herewith or incorporated herein by reference:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
*3.1 -- Second Amended and Restated Charter of King Pharmaceuticals, Inc.
*3.2 -- Amended and Restated Bylaws of King Pharmaceuticals, Inc.
*4.1 -- Specimen Common Stock Certificate.
*4.2 -- Form of Rights Agreement by and between King Pharmaceuticals, Inc. and Union Planters National Bank.
*10.1 -- Promissory Note between RSR Acquisition Corporation (predecessor to King Pharmaceuticals, Inc.) and RSR
Laboratories, Inc., dated December 28, 1993, in the amount of $3,500,000.
*10.2 -- Promissory Note between King Pharmaceuticals, Inc., and General Injectables and Vaccines, Inc., dated
October 6, 1994, in the amount of $4,700,000.
</TABLE>
<PAGE> 35
<TABLE>
<S> <C>
*10.3 -- Promissory Note between King Pharmaceuticals, Inc., and The United Company, dated March 17, 1997, in the
amount of $1,750,000
*10.4 -- Toll Manufacturing Agreement for APAP/Hydrocodone Bitartrate Tablets by and between Mallinckrodt
Chemical, Inc. and King Pharmaceuticals, Inc.
*10.5 -- Agreement between King Pharmaceuticals, Inc. and Ernest C. Bourne dated July 30, 1997.
**10.6 -- Credit Agreement, dated as of February 27, 1998, as amended and restated as of December 22, 1998 among
King Pharmaceuticals, Inc., and the Lenders therein, Credit Suisse First Boston, as Administrative Agent, as
Collateral Agent and as Swingline Lender, First Union National Bank, as Issuing Bank, and First Union
National Bank and NationsBank, N.A., as Syndication Agents.
*10.7 -- Agreement for Purchase and Sale of Assets Relating to Cortisporin by and between Glaxo Wellcome Inc. and
Monarch Pharmaceuticals, Inc. dated March 21, 1997.
*10.8 -- Agreement for Purchase and Sale of Assets Relating to Neosporin and Polysporin by and between Glaxo
Wellcome Inc. and Monarch Pharmaceuticals, Inc. dated November 14, 1997.
*10.9 -- Agreement for Purchase and Sale of Assets Relating to Septra, Proloprim, Mantadil and Kemadrin by and
between Glaxo Wellcome Inc. and Monarch Pharmaceuticals, Inc. dated November 14, 1997.
*10.10 -- Manufacture and Supply Agreement with Novartis (Ciba-Geigy Corporation) dated July 17, 1995.
*10.11 -- Manufacture and Supply Agreement with Roberts Laboratories, Inc. dated October, 5 1995.
*10.12 -- Supply Agreement with SmithKline Beecham Corporation dated July 16, 1996.
*10.13 -- Trademark, Patent, Copyright and Know-How License Agreement between Warner-Lambert Company and
Glaxo Wellcome Inc. dated as of June 30, 1996
*10.14 -- Asset Purchase Agreement by and among Parkedale (Pharmaceuticals, Inc., Warner-Lambert Company and
Parke, Davis & Company, dated February 27, 1998, for the acquisition of assets related to the Parkedale
Facility, Rochester, Michigan.
*10.15 -- Product Asset Purchase Agreement between Parkedale Pharmaceuticals, Inc. and Warner-Lambert Company,
dated February 27, 1998, for the acquisition of Anusol-HC(R) and other products.
*10.16 -- Product Manufacturing Agreement between Santen Incorporated and Warner-Lambert Company, dated June
26, 1997, for the manufacture of Ofloxacin Otic Ssolution 0.3%.
*10.17 -- License Agreement by and among Warner-Lambert Company, Parke Davis & Company, and Parkedale
Pharmaceuticals, Inc., dated February 27, 1998, for the use of the Anusol Trademark, the Anusol Mold, and
Other Trademarks.
*10.18 -- Distribution and Supply Agreement between Warner-Lambert Company and Fujisawa Pharmaceutical
Company, dated December 4, 1989, for the distribution and supply of Elase, Elase Ointment, and Elase-
Chloromycetin Ointment.
*10.19 -- Processing Services Agreement between Amgen, Inc., and Parke-Davis Division of Warner-Lambert Company,
dated December 16, 1997, for the processing of Leptin, Epogen(R), Neupogen(R), Stemgen(R), and other
products.
***10.20 -- General Products Agreement dated as of December 17, 1998 by and among Hoechst Marion Roussel, Inc.,
Hoechst Marion Roussel, Deutschland GmbH, and King Pharmaceuticals, Inc.
*10.21 -- 1998 King Pharmaceuticals, Inc. Non-Employee Director Stock Option Plan.
*10.22 -- 1997 Incentive and Nonqualified Stock Option Plan for Employees of King Pharmaceuticals, Inc.
**21.1 -- Subsidiaries of the Registrant
** 27.1 -- Financial Data Schedule (for SEC use only)
</TABLE>
* Incorporated by reference to the Company's Registration Statement on
Form S-1 (registration No. 333-38753) filed October 24, 1997.
** Filed herewith.
*** Incorporated by reference to the Company's Current Report on
Form 8-K filed January 6, 1999.
<PAGE> 36
C O N T E N T S
<TABLE>
<CAPTION>
Page
----
<S> <C>
King Pharmaceuticals, Inc.
Report of Independent Accountants F-1
Financial Statements:
Consolidated Balance Sheets as of December 31, 1997 and 1998 F-2
Consolidated Statements of Operations for the years ended
December 31, 1996, 1997 and 1998 F-3
Consolidated Statements of Changes in Shareholders' Equity for the
years ended December 31, 1996, 1997 and 1998 F-4
Consolidated Statements of Cash Flows for the years ended
December 31, 1996, 1997 and 1998 F-5
Notes to Consolidated Financial Statements F-7
</TABLE>
<PAGE> 37
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders of
King Pharmaceuticals, Inc.:
In our opinion, the accompanying consolidated balance sheets and the related
consolidated statements of operations, changes in shareholders' equity and cash
flows present fairly, in all material respects, the financial position of King
Pharmaceuticals, Inc. and its subsidiaries at December 31, 1997 and 1998, and
the results of their operations and their cash flows for each of the three years
in the period ended December 31, 1998, in conformity with generally accepted
accounting principles. These financial statements are the responsibility of the
Company's management; our responsibility is to express an opinion on these
financial statements based on our audits. We conducted our audits of these
statements in accordance with generally accepted auditing standards which
require that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the accounting principles
used and significant estimates made by management, and evaluating the overall
financial statement presentation. We believe our audits provide a reasonable
basis for the opinion expressed above.
PricewaterhouseCoopers LLP
Greensboro, North Carolina
February 15, 1999, except
Note 20 for which the
date is March 3, 1999
F-1
<PAGE> 38
KING PHARMACEUTICALS, INC.
CONSOLIDATED BALANCE SHEETS
as of December 31, 1997 and 1998
(in thousands, except share data)
<TABLE>
<CAPTION>
1997 1998
--------- ---------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 69 $ 1,159
Accounts receivable, net of allowance
for doubtful accounts $638 and $1,402, respectively 8,561 39,666
Inventories 10,850 26,556
Deferred income taxes 2,013 6,675
Prepaid expenses and other assets 1,319 1,554
--------- ---------
Total current assets 22,812 75,610
Property, plant and equipment, net 17,170 93,981
Intangible assets, net 62,783 480,583
Other assets 2,098 17,997
--------- ---------
Total assets $ 104,863 $ 668,171
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Notes payable $ 916 $ --
Current portion of long-term debt 8,084 13,310
Accounts payable 5,871 12,594
Accrued expenses 6,503 15,095
Income taxes payable 1,862 3,524
--------- ---------
Total current liabilities 23,236 44,523
Long-term debt:
Revolving Credit Facility 6,152 19,000
Term loans 40,000 414,750
Senior Subordinated Seller Notes -- 75,000
Other 2,137 5,736
Deferred income taxes 4,004 7,726
--------- ---------
Total liabilities 75,529 566,735
--------- ---------
Commitments and contingencies
Shareholders' equity:
Common shares no par value, 150,000,000 shares
authorized, 28,000,000 and 32,104,730 shares
issued and outstanding, respectively 16,455 66,572
Retained earnings 14,550 35,460
Due from related party (1,671) (596)
--------- ---------
Total shareholders' equity 29,334 101,436
--------- ---------
Total liabilities and shareholders' equity $ 104,863 $ 668,171
========= =========
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
F-2
<PAGE> 39
KING PHARMACEUTICALS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
for the years ended December 31, 1996, 1997 and 1998
(in thousands, except per share data)
<TABLE>
<CAPTION>
1996 1997 1998
-------- -------- ---------
<S> <C> <C> <C>
REVENUES:
Net sales $ 15,457 $ 47,351 $ 158,180
Development revenues 5,000 558 5,283
-------- -------- ---------
Total revenues 20,457 47,909 163,463
-------- -------- ---------
OPERATING COSTS AND EXPENSES:
Cost of sales 8,782 13,034 64,052
Selling, general and administrative 12,106 19,123 34,718
Depreciation and amortization 982 2,395 9,255
-------- -------- ---------
Total operating costs and expenses, net 21,870 34,552 108,025
-------- -------- ---------
OPERATING INCOME (LOSS) (1,413) 13,357 55,438
-------- -------- ---------
OTHER (EXPENSES) INCOME:
Interest expense (1,272) (2,749) (14,866)
Gain on sale of investment in affiliate 1,760 -- --
Other income, net 578 (28) 145
-------- -------- ---------
Total other (expenses) income 1,066 (2,777) (14,721)
-------- -------- ---------
INCOME (LOSS) BEFORE INCOME TAXES AND
EXTRAORDINARY ITEM (347) 10,580 40,717
Income tax expense (benefit) (107) 3,968 15,396
-------- -------- ---------
INCOME (LOSS) BEFORE EXTRAORDINARY
ITEM (240) 6,612 25,321
Extraordinary loss on early extinguishment
of long-term debt, net of income taxes
of $2,787 -- -- (4,411)
-------- -------- ---------
NET INCOME (LOSS) $ (240) $ 6,612 $ 20,910
======== ======== =========
Basic and diluted income (loss) per common share:
Income (loss) before extraordinary item $ (0.02) $ 0.25 $ 0.84
Extraordinary item -- -- (0.15)
-------- -------- ---------
Net income (loss) $ (0.02) $ 0.25 $ 0.69
======== ======== =========
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
F-3
<PAGE> 40
KING PHARMACEUTICALS, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
for the years ended December 31, 1996, 1997 and 1998
(in thousands, except share data)
<TABLE>
<CAPTION>
Due Total
Unrealized from Share-
Common Retained loss on Related holders'
Shares Amount Earnings securities Party Equity
---------- ------- -------- ---------- ------- ---------
<S> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1995 4,400,000 $ 926 $ 10,763 $ -- $ (678) $ 11,011
Issuance of common shares 1,386,230 4,159 -- -- -- 4,159
Issuance of common shares under
employee stock purchase plan 259,532 778 -- -- -- 778
15% Stock Dividend 906,883 2,585 (2,585) -- -- --
Unrealized loss on securities, net of tax -- -- -- (16) -- (16)
Payments from Benevolent Fund -- -- -- -- 1 1
Net loss -- -- (240) -- -- (240)
---------- ------- -------- ---- ------- ---------
Balance, December 31, 1996 6,952,645 8,448 7,938 (16) (677) 15,693
Issuance of common shares,
net of $743 of expenses 3,047,355 8,007 -- -- -- 8,007
Realized loss on securities -- -- -- 16 -- 16
Advances to Benevolent Fund -- -- -- -- (994) (994)
2.8 to 1 common stock split (Note 17) 18,000,000 -- -- -- -- --
Net income -- -- 6,612 -- -- 6,612
---------- ------- -------- ---- ------- ---------
Balance, December 31, 1997 28,000,000 16,455 14,550 -- (1,671) 29,334
Issuance of common shares,
net of expenses 4,104,730 50,117 -- -- -- 50,117
Payments from Benevolent Fund -- -- -- -- 1,075 1,075
Net income -- -- 20,910 -- -- 20,910
---------- ------- -------- ---- ------- ---------
Balance, December 31, 1998 32,104,730 $66,572 $ 35,460 $ -- $ (596) $ 101,436
========== ======= ======== ==== ======= =========
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
F-4
<PAGE> 41
KING PHARMACEUTICALS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
for the years ended December 31, 1996, 1997 and 1998
(in thousands)
<TABLE>
<CAPTION>
1996 1997 1998
-------- -------- ---------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss) $ (240) $ 6,612 $ 20,910
Adjustments to reconcile net income to net cash
provided by (used in) operating activities:
Depreciation and amortization 982 2,395 9,255
Amortization of deferred financing costs -- -- 728
Loss on sale of marketable securities 1 32 --
Extraordinary loss -- -- 7,198
Loss on sale of property and equipment (54) -- 22
Gain on sale of investment in affiliate (1,760) -- --
Deferred income taxes 410 (980) (940)
Changes in operating assets and liabilities:
Accounts receivable 467 (6,256) (31,105)
Inventories (1,895) (4,753) (15,706)
Prepaid expenses and other assets (335) (332) 1,405
Accounts payable (83) 3,604 6,723
Accrued expenses (138) 2,180 5,679
Income taxes (3,624) 2,514 1,662
-------- -------- ---------
Net cash provided by (used in) operating activities (6,269) 5,016 5,831
-------- -------- ---------
Cash flows from investing activities:
Purchases of property, plant and equipment (1,069) (1,379) (81,099)
Purchases of intangible assets (2,974) (52,428) (344,906)
Acquisition related costs -- (373) --
Purchases of marketable securities (307) -- --
Proceeds from sale of marketable securities 72 203 --
Proceeds from sale of investment in affiliated company 2,052 -- --
Proceeds from sale of property and equipment 100 -- 30
-------- -------- ---------
Net cash used in investing activities (2,126) (53,977) (425,975)
-------- -------- ---------
Cash flows from financing activities:
Proceeds from revolving line of credit -- 29,599 --
Payments on revolving line of credit (3,403) (23,447) --
Proceeds from issuance of common shares,
net of expenses paid 2,844 8,007 50,117
Book overdraft -- 1,423 --
Repayment on shareholder notes receivable -- 2,093 --
Proceeds from long-term debt 2,549 55,923 658,741
Payments on long-term debt and capital lease obligations (2,772) (23,798) (262,318)
Payments on notes payable -- -- (916)
Due to affiliate 1 (994) 1,075
Initial public offering costs -- (710) --
Debt issuance costs -- (458) (25,465)
-------- -------- ---------
Net cash provided by (used in) financing activities (781) 47,638 421,234
-------- -------- ---------
Increase (decrease) in cash (9,176) (1,323) 1,090
Cash and cash equivalents, beginning of period 10,568 1,392 69
-------- -------- ---------
Cash and cash equivalents, end of period $ 1,392 $ 69 $ 1,159
======== ======== =========
Supplemental disclosure of cash paid for:
Interest $ 1,170 $ 2,335 $ 13,929
======== ======== =========
Taxes $ 3,078 $ 2,445 $ 10,662
======== ======== =========
</TABLE>
F-5
<PAGE> 42
KING PHARMACEUTICALS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOW
for the years ended December 31, 1996, 1997 and 1998, Continued
(in thousands, except share data)
Supplemental schedule of non-cash investing and financing activities:
The Company purchased intangible assets financed by the seller of $5,500 and
$75,000 in 1996 and 1998, respectively.
For the years ended December 31, 1996, 1997 and 1998 the Company entered into
capital leases totaling $1,082, $85 and $1,004, respectively.
In connection with its purchases of intangible assets the Company assumed
estimated liabilities of $301, $3,062 and $2,913 for returns of products shipped
prior to acquisition date during 1996, 1997 and 1998, respectively.
During 1997, the Company entered into a financing arrangement to have certain
payments made for machinery and equipment. Deposits of $557 were outstanding on
behalf of the Company at December 31, 1997.
At December 31, 1997, the Company had prepaid insurance of $359 that was
financed with a note payable.
During 1996, the Company issued 699,711 common shares for $2,093 in notes
receivable from shareholders. These notes were paid in full in 1997.
The accompanying notes are an integral part of the
consolidated financial statements.
F-6
<PAGE> 43
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(in thousands, except share data)
1. The Company:
King Pharmaceuticals, Inc. ("King" or the "Company") is a vertically
integrated pharmaceutical company that manufactures, markets and sells
primarily branded prescription pharmaceutical products. Through a
national sales force, King markets its branded pharmaceutical products
to general/family practitioners, internal medicine physicians and
hospitals across the country. The Company also provides contract
manufacturing for a number of the world's leading pharmaceutical and
biotechnology companies.
These consolidated financial statements include the accounts of King and
its wholly owned subsidiaries, Monarch Pharmaceuticals, Inc. (formerly a
division of King), ParkeDale Pharmaceuticals, Inc. and King
Pharmaceuticals of Nevada, Inc. All intercompany transactions and
balances have been eliminated in consolidation.
2. Summary of Significant Accounting Policies:
USE OF ESTIMATES - The preparation of the consolidated financial
statements in conformity with generally accepted accounting principles
requires management to make estimates and assumptions. Assets,
liabilities, revenues and expenses, and disclosure of contingent assets
and liabilities are affected by such estimates and assumptions. Actual
results could differ from those estimates.
REVENUE RECOGNITION - Sales are reported net of an estimate for returns
and allowances and an estimate for chargebacks. Chargebacks and returns
and allowances are included in sales when goods are shipped to the
customer. Product sales and sales of manufactured products are
recognized upon shipment. Development revenue is recognized upon
approval of the product from the Food and Drug Administration.
CASH AND CASH EQUIVALENTS - The Company considers all highly liquid
investments with an original maturity of three months or less when
purchased to be cash equivalents. The Company's cash and cash
equivalents are placed in large domestic banks which limit the amount of
credit exposure.
INVENTORIES - Inventories are stated at the lower of cost or market.
Cost is determined using the first-in, first-out (FIFO) method.
INCOME TAXES - Deferred tax assets and liabilities are determined based
on the difference between the financial statement and tax basis of
assets and liabilities using enacted tax rates in effect for the year in
which the differences are expected to reverse. A valuation allowance is
recorded when, in the opinion of management, it is more likely than not
that some or all of the deferred tax assets will not be realized.
FINANCIAL INSTRUMENTS - The fair value of financial instruments are
determined by reference to various market data or other valuation
techniques as appropriate. Unless otherwise disclosed, the fair values
of financial instruments approximate their recorded values.
F-7
<PAGE> 44
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
2. Summary of Significant Accounting Policies, continued:
PROPERTY, PLANT AND EQUIPMENT - Property, plant and equipment are stated
at cost. Maintenance and repairs are expensed as incurred. Depreciation
is computed over the estimated useful lives of the related assets using
the straight-line method for financial statement purposes and
accelerated methods for income tax purposes. Retirements, sales and
disposals of assets are recorded by removing the cost and accumulated
depreciation with any resulting gain or loss reflected in income.
In the event that facts and circumstances indicate that the cost of
property, plant and equipment may be impaired, evaluation of
recoverability is performed using the estimated future undiscounted cash
flows associated with the asset compared to the asset's carrying amount
to determine if a writedown is required.
CAPITALIZED INTEREST - For the year ended December 31, 1998, the Company
capitalized interest of approximately $239. The Company had no
capitalized interest for the years ended December 31, 1996 and 1997.
INTANGIBLE ASSETS - Intangible assets are stated at cost, net of
accumulated amortization. Amortization is computed over the estimated
useful lives of 10 to 30 years using the straight-line method.
The Company continually reevaluates the propriety of the carrying amount
of intangibles as well as the related amortization period to determine
whether the current events and circumstances warrant adjustments to the
carrying values and/or revised estimates of useful lives. This
evaluation is performed using the estimated projected future
undiscounted cash flows associated with the asset compared to the
asset's carrying amount to determine if a writedown is required. To the
extent such projection indicates that undiscounted cash flow is not
expected to be adequate to recover the carrying amounts, the assets are
written down to discounted cash flows.
OTHER ASSETS - Other assets consist primarily of deferred financing
costs which are being amortized over periods ranging from six to eight
years. Amortization expense related to deferred financing costs was $0,
$0 and $728 for the years ended December 31, 1996, 1997 and 1998,
respectively, and has been included in interest expense.
During 1998, the Company repaid certain debt prior to maturity. The
repayment resulted in extraordinary charges of $4,411, net of related
tax benefits of $2,787, associated with the write-off of deferred
financing costs.
F-8
<PAGE> 45
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
2. Summary of Significant Accounting Policies, continued:
SELF-FUNDED HEALTH INSURANCE - The Company is self-insured with respect
to its health care benefit program. The Company contributes estimated
amounts to a third-party administrator on a monthly basis which are used
to pay health care claims during the year. Under the plan, the Company
pays a minimum amount annually and has an aggregate stop-loss limit
based upon the number of participants and their insured status.
Self-insured costs are accrued based upon reported claims and an
estimated liability for claims incurred but not reported.
RESEARCH AND DEVELOPMENT - The Company incurs research and development
costs that are expensed as incurred. These costs were approximately
$1,298, $890 and $401, for the years ended December 31, 1996, 1997 and
1998, respectively.
ADVERTISING AND PROMOTION - The Company expenses advertising and
promotion costs as incurred and these costs are included as selling,
general and administrative expenses. Advertising and promotion costs for
the years ended December 31, 1996, 1997 and 1998 were $1,283, $1,583 and
$10,744, respectively.
STATEMENT OF ACCOUNTING STANDARDS NOT YET ADOPTED - In June 1998, the
Board adopted Statement of Financial Accounting Standards ("SFAS") No.
133, "Accounting for Derivative Instruments and Hedging Activities",
which establishes accounting and reporting standards for derivative
instruments and hedging activities. SFAS 133 is effective for all fiscal
quarters of fiscal years beginning after June 15, 1999. The Company
currently is evaluating the potential effect of SFAS 133 on its
financial statements.
COMPREHENSIVE INCOME - In 1998, the Company adopted SFAS No. 130,
"Reporting Comprehensive Income". In 1996 and 1997, the Company had
other comprehensive income of $16, net of tax, related to an unrealized
loss on securities. The Company had no other comprehensive income in
1998.
RECLASSIFICATIONS - Certain amounts from the prior consolidated
financial statements have been reclassified to conform to the
presentation adopted in 1998.
3. Concentrations of Credit Risk:
A significant portion of the Company's sales are to customers in the
pharmaceuticals industry. Approximately 20% and 17% of accounts
receivable at December 31, 1997 and 1998, respectively were due from one
customer. At December 31, 1997 and 1998, an additional 22% and 25%,
respectively, were due from two other customers. The Company monitors
the extension of credit to customers and has not experienced significant
credit losses.
F-9
<PAGE> 46
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
3. Concentrations of Credit Risk, continued:
The following table represents a summary of sales to significant
customers as a percentage of the Company's total revenues:
<TABLE>
<CAPTION>
1996 1997 1998
---- ---- ----
<S> <C> <C> <C>
McKesson Corporation n/a 16.7% 11.4%
Cardinal Whitmire n/a 14.0% 10.8%
Bergen Brunswig Corporation n/a 13.4% 12.6%
Amerisource n/a 10.6% n/a
SmithKline Beecham Corporation 18.1% n/a n/a
Mallinckrodt 36.7% n/a n/a
Novartis Animal Health US, Inc. 14.9% n/a n/a
n/a - sales were less than 10% for the year
</TABLE>
4. Property, Plant and Equipment:
Property, plant and equipment consists of the following:
<TABLE>
<CAPTION>
1997 1998
--------- ---------
<S> <C> <C>
Land $ 319 $ 3,949
Buildings and improvements 13,563 55,990
Machinery and equipment 4,046 32,522
Equipment under capital lease 1,720 2,713
Construction in progress 585 6,106
--------- ---------
20,233 101,280
Less accumulated depreciation (3,063) (7,299)
--------- ---------
$ 17,170 $ 93,981
========= =========
</TABLE>
Depreciation and amortization expense for the years ended December 31,
1996, 1997 and 1998 was $853, $985 and $4,236, respectively.
5. Inventory:
Inventory consists of the following:
<TABLE>
<CAPTION>
1997 1998
------- -------
<S> <C> <C>
Finished goods $ 7,568 $13,772
Work-in process 494 5,386
Raw materials 2,788 7,398
------- -------
$10,850 $26,556
======= =======
</TABLE>
F-10
<PAGE> 47
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
6. Acquisitions/Intangible Assets:
On December 22, 1998, the Company acquired three branded pharmaceutical
products from Hoechst Marion Roussel, Inc. ("HMR" or "Seller") for a
purchase price of $362,500, plus acquisition costs of approximately
$450. The acquired products were: (a) the U.S. rights to the Altace
product line with patents expiring through 2008, (b) worldwide rights to
the Silvadene product line, and (c) worldwide rights to the AVC product
line (collectively the "Altace Acquisition"). The purchase price was
principally allocated to intangible assets and financed under the
Company's Senior Credit Facility and a $75,000 note from the Seller
(Note 9). Intangible assets are being amortized over 15 to 30 years.
On June 30, 1998, the Company acquired the rights, title and interest to
the Menest(R) product line for approximately $5,000. The entire purchase
was allocated to intangible assets and is being amortized over its
estimated useful life of 25 years. The acquisition was financed with
proceeds resulting from the completion of the Company's June 25, 1998
initial public offering (Note 17).
On February 28, 1998, the Company acquired the rights, titles and
interest to certain product lines, production facilities (the "Parkedale
Facility"), and assumed contracts for manufacturing for third parties
from Warner-Lambert Company (the "Sterile Products Acquisition"). The
purchase price, including assumed liabilities of $2,913, of $127,913 was
allocated to real estate and equipment based on fair values ($44,130 and
$28,914, respectively) with the residual ($54,869) being allocated to
intangibles and is being amortized over 5 to 40 years and 25 years,
respectively. The purchase price was financed under the Company's Credit
Agreement (Note 9).
On November 14, 1997, the Company acquired the rights, titles and
interests to the Septra(R), Proloprim(R), Mantadil(R), and Kemadrin(R)
product lines, as well as, the exclusive licenses, free of royalty
obligations, to manufacture and market the prescription formulations of
Neosporin and Polysporin for $23,000 plus the assumption of an estimated
liability of $2,084 of returns of products shipped prior to the
acquisition. The entire purchase price was allocated to intangible
assets and will be amortized over its estimated useful life of 25 years.
The purchase price was financed under the Company's Senior Secured
Revolving Credit Facility and Senior Secured Term Loan.
On May 15, 1997, the Company acquired the rights, title and interest in
the United States to the Viroptic(R) product line for $5,100, plus the
assumption of an estimated liability of $129 of returns of products
shipped prior to the acquisition. The entire purchase price was
allocated to intangible assets and is being amortized over its estimated
useful life of 25 years. The purchase price was financed from internally
generated cash funds and borrowings under its revolving line of credit
agreement.
F-11
<PAGE> 48
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
6. Acquisitions/Intangible Assets, continued:
On March 21, 1997, the Company acquired the rights, title and interest in
the United States to the Cortisporin(R) product line for $22,845, plus
the assumption of an estimated $849 of returns of products shipped prior
to the acquisition. The entire purchase price was allocated to intangible
assets and is being amortized over its estimated useful life of 25 years.
The purchase price was financed principally through the raising of equity
(Note 17), notes payable to certain banks and borrowings under the
Company's revolving line of credit agreement.
On January 22, 1997, the Company acquired the rights, title and interest
in the United States to the Proctocort(TM) product line for approximately
$1,500. The entire purchase was allocated to intangible assets and is
being amortized over its estimated useful life of 20 years. The
acquisition was financed with a note payable to a bank.
The following unaudited pro forma summary presents the financial
information as if the acquisitions had occurred on January 1, 1997 These
pro forma results have been prepared for comparative purposes and do not
purport to be indicative of what would have occurred had the acquisitions
been made on January 1, 1997, nor is it indicative of future results.
<TABLE>
<CAPTION>
For the Year Ended
-----------------------------------------
December 31, 1997 December 31, 1998
----------------- -----------------
<S> <C> <C>
Total revenues $ 213,441 $269,803
========= ========
Income before extraordinary item $ 11,273 $ 34,877
========= ========
Net income $ 11,273 $ 30,466
========= ========
Diluted income per common share:
Income before extraordinary item $ 0.43 $ 1.16
========= ========
Net income $ 0.43 $ 1.01
========= ========
</TABLE>
F-12
<PAGE> 49
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
6. Acquisitions/Intangible Assets, continued:
Intangible assets at December 31 resulted from the following product
acquisitions:
<TABLE>
<CAPTION>
1997 1998
--------- ---------
<S> <C> <C>
Altace, Silvadene, AVC $ -- $ 362,950
Sterile Products -- 54,509
Menest -- 5,000
Septra, Proloprim, Mantadil, Kemadrin 15,425 15,425
Cortisporin 23,694 23,694
Neosporin 5,876 5,876
Viroptic 5,229 5,229
Nucofed/Quibron 7,301 7,301
Polysporin 3,783 3,783
Other 3,017 3,377
--------- ---------
64,325 487,144
Less accumulated amortization (1,542) (6,561)
--------- ---------
$ 62,783 $ 480,583
========= =========
</TABLE>
Amortization expense for the years ended December 31, 1996, 1997, and
1998 was $129, $1,410, and $5,019, respectively.
7. Lease Obligations:
The Company leases certain office and manufacturing equipment and
automobiles under noncancelable operating leases with terms from one to
five years. Estimated future minimum lease payments, as of December 31,
1998 for leases with initial or remaining terms in excess of one year
are as follows:
<TABLE>
<S> <C>
1999 $1,419
2000 1,311
2001 795
2002 741
2003 262
</TABLE>
Rent expense for the years ended December 31, 1996, 1997 and 1998 was
approximately $196, $138, and $1,230, respectively.
F-13
<PAGE> 50
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
7. Lease Obligations, continued:
Additionally, the Company leases office space in its building to tenants
under agreements ranging from one to twenty years. Such leases are
accounted for as operating leases. Rental income for the years ended
December 31, 1996, 1997 and 1998 was approximately $86, $44, and $40,
respectively. As of December 31, 1998 estimated future minimum rental
payments to be received each year from 1999 to 2003 is $40.
Capital lease obligations for certain equipment as of December 31, 1998
are as follows:
<TABLE>
<S> <C>
1999 $ 620
2000 631
2001 485
2002 275
2003 160
-------
Total minimum lease payments 2,171
Less imputed interest (322)
-------
Present value of minimum lease payments 1,849
Less current maturities 374
-------
$ 1,475
=======
</TABLE>
8. Accrued Expenses:
Accrued expenses at December 31, consist of the following:
<TABLE>
<CAPTION>
1997 1998
------- -------
<S> <C> <C>
Payroll and outside personnel services $ 555 $ 675
Returns and chargebacks 4,207 9,397
Accrued interest 478 1,176
Franchise taxes 146 142
Other 803 3,257
Incurred but not reported medical claims 314 448
------- -------
$ 6,503 $15,095
======= =======
</TABLE>
F-14
<PAGE> 51
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
9. Long-term Debt:
Long-term debt consisted of the following:
<TABLE>
<CAPTION>
1997 1998
-------- --------
<S> <C> <C>
Senior Credit Facility:
Revolving Credit Facility $ -- $ 19,000
Tranche A Term Loan -- 150,000
Tranche B Term Loan -- 275,000
Senior Subordinated Seller Notes
with interest at 10% payable monthly due December 2007 -- 75,000
Senior Secured Revolving Credit
Facility, paid in February 1998 6,152 --
Senior Secured Term Loan, paid
in February 1998 40,000 --
Notes payable to former owners, due in equal
annual installments of principal and interest (at a rate
of 6%) of $1,226 through December 2003 6,027 5,163
Note payable to shareholder with quarterly interest
payments (interest rate of 10%) through January 1, 1999 with remaining
principal due April 1, 1999, collateralized by real estate
of the Company 1,750 1,750
Various capital leases with interest rates ranging
from 8.3% to 12.7% and maturing at various
times through 2002 1,206 1,849
Other notes payable 1,238 34
-------- --------
56,373 527,796
Less current portion 8,084 13,310
-------- --------
$ 48,289 $514,486
======== ========
</TABLE>
On December 22, 1998, the Company amended and restated its Credit
Agreement (as defined below) dated as of February 27, 1998 (the "Senior
Credit Facility") to: (a) finance the Altace Acquisition; (b) refinance
the Company's then existing indebtedness; and (c) provide for ongoing
working capital and other financing requirements. The Senior Credit
Facility provides for up to $500,000 of aggregate borrowing capacity,
consisting of: a $150,000 tranche A term loan (the "Tranche A Term
Loan"); a $275,000 tranche B term loan (the "Tranche B Term Loan"); and
a revolving credit facility in an aggregate amount of $75,000 (the
"Revolving Credit Facility"). The Revolving Credit Facility includes a
$10,000 sublimit available for the issuance of letters of credit and a
$5,000 sublimit available for swingline loans.
As of December 31, 1998, the Company had $56,000 of available borrowings
under its Revolving Credit Facility.
F-15
<PAGE> 52
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
9. Long-term Debt, continued:
The Tranche A Term Loan is subject to certain specified amortization
payments required to be made in quarterly installments commencing on
March 31, 1999 until December 22, 2004. The Tranche B Term Loan is
subject to certain specified amortization payments required to be made
in quarterly installments commencing on March 31, 1999 until December
22, 2006. The Revolving Credit Facility is available until December 22,
2004. In addition, the loans and the aggregate available commitments
under the Senior Credit Facility will be reduced upon the occurrence of
certain specified events as outlined in the agreement.
The loans under the Senior Credit Facility bear interest, at the
Company's option, at either (a) the base rate (which is based on the
prime rate or the federal funds rate plus one-half of 1%) plus (i) in
the case of the Tranche A Term Loan and borrowings under the Revolving
Credit Facility, an applicable spread ranging from 1.25% to 2.25% (based
on a leverage ratio) and (ii) in the case of the Tranche B Term Loan,
2.75% or (b) the applicable LIBOR rate plus (i) in the case of the
Tranche A Term Loan and borrowings under the Revolving Credit Facility,
an applicable spread ranging from 2.25% to 3.25% (based on a leverage
ratio) and (ii) in the case of the Tranche B Term Loan, 3.75%. In
addition, the lenders under the Senior Credit Facility are entitled to
customary facility fees based on (a) unused commitments under the
Revolving Credit Facility and (b) letters of credit outstanding.
The Company's obligations under the Senior Credit Facility are
unconditionally guaranteed on a senior basis by each direct and indirect
majority owned U.S. subsidiary of the Company (collectively, the
"Subsidiaries"). In addition, the Senior Credit Facility is
collateralized by substantially all of the real and personal property of
the Company.
The Senior Credit Facility contains a number of covenants that, among
other things, restrict the ability of the Company and its subsidiaries
to dispose of assets, incur additional indebtedness or guaranty
obligations, repurchase or redeem capital stock or repay subordinated
indebtedness (including the Notes), except in accordance with the
subordination provisions, pay dividends or make capital distributions,
enter into sale and leaseback transactions, make investments, make
acquisitions, engage in mergers or consolidations, make capital
expenditures, engage in certain transactions with affiliates, make
loans, change its fiscal year, change its business and otherwise
restrict corporate activities.
On February 27, 1998, the Company entered into a $195,000 credit
agreement ("Credit Agreement"). The Company used the proceeds from the
Credit Agreement to finance the Warner Lambert Acquisition (Note 6), and
pay off the $40,000 Term Loan and outstanding borrowings under the
Revolver as of February 27, 1998. The Credit Agreement was paid in full
on December 22, 1998 with proceeds from the Senior Credit Facility.
F-16
<PAGE> 53
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
9. Long-term Debt, continued:
On November 26, 1997, the Company entered into a $12,000 Senior Secured
Revolving Credit Facility (the "Revolver") and a $40,000 Senior Secured
Term Loan ("Term Loan"), collectively referred to as the "Financing". As
December 31, 1997, $40,000 was outstanding under the term loan and
$6,152 was outstanding under the Revolver. The Financing was repaid in
February 1998 with proceeds from the Credit Agreement.
The Company has entered into two interest rate swap agreements
designated as a partial hedge of the Company's variable rate debt. The
purpose of these swaps is to fix interest rates on variable rate debt
and reduce certain exposures to interest rate fluctuations. At December
31, 1998, the Company had interest rate swaps with a notional amount of
$100,000. Under these agreements the Company pays a weighted average
fixed rate of 5.5% and receives a rate equivalent to the three-month and
one-month LIBOR. The notional amounts do not represent in amounts
exchanged by the parties. The agreements expire in the year 2001.
The aggregate maturities of long-term debt (excluding capital lease
obligations - Note 7) at December 31, 1998 are as follows:
<TABLE>
<S> <C>
1999 $ 12,936
2000 18,735
2001 26,279
2002 33,841
2003 41,406
Thereafter 392,750
--------
$525,947
========
</TABLE>
10. Notes Payable:
During 1997, the Company entered into a financing agreement to make
certain payments for machinery and equipment. As of December 31, 1997,
the Company had a demand note payable plus interest at prime plus .33%
with $557 outstanding. The Note payable was paid in 1998.
During December 1997, the Company entered into an agreement to finance
certain insurance costs with a note payable. The balance of the note
payable at December 31, 1997 was $359. The note payable has an interest
rate of 7.8% and was paid in 1998.
11. Financial Instruments:
The following disclosures of the estimated fair values of financial
instruments are made in accordance with the requirements of SFAS
No. 107, "Disclosures About Fair Value of Financial Instruments."
The estimated fair value amounts have been determined by the Company
using available market information and appropriate valuation
methodologies.
F-17
<PAGE> 54
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
11. Financial Instruments, continued:
CASH AND CASH EQUIVALENTS, ACCOUNTS RECEIVABLE AND ACCOUNTS PAYABLE -
The carrying amounts of these items are a reasonable estimate of their
fair values.
LONG-TERM DEBT AND NOTES PAYABLE - The carrying amounts of the Company's
long-term debt and notes payable approximate fair value. The fair value
of the Company's long-term debt, including the current portion, at
December 31, 1997 and 1998, is estimated to be approximately $56,000 and
$572,500, respectively, using discounted cash flow analyses and based on
the Company's incremental borrowing rates for similar types of borrowing
arrangements.
INTEREST RATE SWAPS - The estimated fair market value of the interest
rate swap agreements at December 31, 1998, as determined by the issuing
financial institution and based on the estimated termination values, was
an unrealized loss of approximately $2,787.
12. Income Taxes:
The net income tax expense (benefit) is summarized as follows:
<TABLE>
<CAPTION>
1996 1997 1998
----- ------- --------
<S> <C> <C> <C>
Current $(635) $ 4,948 $ 16,336
Deferred 528 (980) (940)
----- ------- --------
Total (benefit) expense $(107) $ 3,968 $ 15,396
===== ======= ========
</TABLE>
A reconciliation of the difference between the federal statutory tax
rate and the effective income tax rate as a percentage of income (loss)
before income taxes and extraordinary item is as follows:
<TABLE>
<CAPTION>
1996 1997 1998
------ ------ ------
<S> <C> <C> <C>
Federal statutory tax rate (34.0)% 34.0% 35.0%
State income taxes, net of federal benefit -- 3.0 3.3
Permanent differences 2.3 0.4 0.1
Other 0.9 0.1 (0.6)
------ ------ ------
Effective tax rate (30.8)% 37.5% 37.8%
====== ====== ======
</TABLE>
F-18
<PAGE> 55
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
12. Income Taxes, continued:
The tax effects of temporary differences that give rise to significant
portions of the deferred tax assets and liability are as follows:
<TABLE>
<CAPTION>
1997 1998
------- -------
<S> <C> <C>
Allowance for doubtful accounts $ 238 $ 389
Uniform cost capitalization 117 228
Accrued expenses 528 101
State net operating loss carryforward 413 793
Accrued liabilities 1,239 5,164
------- -------
Total deferred tax assets 2,535 6,675
------- -------
Property, plant and equipment (3,135) (3,840)
Intangible assets (1,226) (3,721)
Miscellaneous (165) (165)
------- -------
Total deferred tax liabilities (4,526) (7,726)
------- -------
Net deferred tax liability $(1,991) $(1,051)
======= =======
</TABLE>
The Company's state net operating loss carryforward of approximately
$24.0 million expires in 2013. Management has determined, based on both
their ability to carryback earnings to prior years and existing deferred
tax liabilities, it is more likely than not that the deferred tax assets
will be realizable and no valuation allowance has been recorded.
13. Benefit Plans:
The Company maintains a defined contribution employee benefit plan which
covers all employees over 21 years of age. The plan allows for
employees' salary deferrals, which are matched by the Company up to a
specific amount under provisions of the plan. Company contributions
during the years ended December 31, 1996, 1997 and 1998, were $278, $307
and $1,066, respectively. The plan also provides for discretionary
profit-sharing contributions by the Company.
F-19
<PAGE> 56
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
14. Commitments and Contingencies:
In May 1998, the Company was named as a co-defendant in a wrongful death
and survival action in the District Court of Gregg County, Texas. The
action demands an unspecified amount. This action relates to the
manufacture of the anorexigenic product for SmithKline.
Many distributors, marketers and manufacturers of anorexigenic drugs
have been subject to claims relating to the use of these drugs. The
Company is a defendant in various lawsuits which claim damages for
personal injury arising from the Company's production of the
anorexigenic drug, phentermine, under contract for SmithKline.
Generally, the lawsuits allege that the defendants (1) misled users of
the products with respect to the dangers associated with them, (2)
failed to adequately test the products and (3) knew or should have known
about the negative effects of the drugs, and should have informed the
public about the risks of such negative effects. The actions generally
have been brought by individuals in their own right and have been filed
in various state and federal jurisdictions throughout the United States.
They seek, among other things, compensatory and punitive damages and/or
court supervised medical monitoring of persons who have ingested the
product. The Company expects to be named in additional lawsuits related
to the company's production of the anorexigenic drug under contract for
SmithKline.
While the Company cannot predict the outcome of these suits, the Company
believes that the claims against it are without merit and intends to
vigorously pursue all defenses available to it. The Company is being
indemnified in all of these suits by SmithKline for which it
manufactured the anorexigenic product, provided that neither the
lawsuits nor the associated liabilities are based upon the independent
negligence or intentional acts of the Company, and intends to submit a
claim for all unreimbursed costs to its product liability insurance
carrier. However, in the event that SmithKline is unable to satisfy or
fulfill its obligations under the indemnity, the Company would have to
defend the lawsuit and be responsible for damages, if any, which are
awarded against it or for amounts in excess of the Company's product
liability coverage.
The Parkedale Facility was one of six facilities owned by Warner-Lambert
subject to a Consent Decree of Permanent Injunction issued August 1993
in United States of America V. Warner-Lambert Company and Melvin R.
Goodes and Lodewijk J.R. DeVink (U.S. Dist. Ct., Dist. of N.J.) (the
"Consent Decree"). The Parkedale Facility is currently manufacturing
pharmaceutical products subject to the Consent Decree which prohibits
the manufacture and delivery of specified drug products unless, among
other things, the products conform to current good manufacturing
practices and are produced in accordance with an approved abbreviated
new drug application or new drug application. The Company is in the
process of petitioning for, and if appropriate, obtaining relief from
the Consent Decree.
The Company is involved in various routine legal proceedings incident to
the ordinary course of its business. Management believes that the
outcome of all pending legal proceedings in the aggregate will not have
a material adverse effect on the Company's consolidated financial
position, results of operation or cash flow.
F-20
<PAGE> 57
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
15. Segment Information:
Effective December 31, 1998 the Company adopted SFAS No. 131,
"Disclosures About Segments of an Enterprise and Related Information".
SFAS No. 131 establishes standards for the way public business
enterprises report information about operating segments. SFAS No. 131
also establishes standards for related disclosures about products and
services, geographic areas, and major customers. The adoption of SFAS
No. 131 did not affect the Company's results of operations or financial
position. However, prior year disclosures have been reclassified to
conform with the provisions of this statement.
The Company's business is classified into two reportable segments;
Branded Pharmaceuticals and Contract Manufacturing. Branded
Pharmaceuticals include a variety of branded prescription products over
four therapeutic areas, including cardiovascular, anti-infective,
vaccines and biologicals and women's health products. These branded
prescription products have been aggregated because of the similiarity in
regulatory environment, manufacturing process, method of distribution,
and type of customer. Contract Manufacturing represents contract
manufacturing services provided for pharmaceutical and biotechnology
companies. The classification all other primarily includes generic
pharmaceutical, companion animal health products and development
services.
The Company primarily evaluates its segments based on gross profit.
Reportable segments were separately identified based on revenues, gross
profit and total assets.
F-21
<PAGE> 58
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
15. Segment Information, continued:
The following represents selected information for the Company's
operating segments for the periods indicated:
<TABLE>
<CAPTION>
For the years ended December 31,
--------------------------------------
1996 1997 1998
-------- --------- ---------
<S> <C> <C> <C>
Total revenues:
Branded pharmaceuticals $ 2,939 $ 37,912 $ 125,399
Contract manufacturing 10,890 7,962 54,734
All Other 7,128 3,015 6,453
Eliminations (500) (980) (23,123)
-------- --------- ---------
Consolidated total revenues $ 20,457 $ 47,909 $ 163,463
======== ========= =========
Gross profit (loss):
Branded pharmaceuticals $ 2,659 $ 33,165 $ 94,452
Contract manufacturing 2,809 (187) (531)
All Other 6,207 1,897 5,490
-------- --------- ---------
Consolidated gross profit $ 11,675 $ 34,875 $ 99,411
======== ========= =========
<CAPTION>
As of December 31,
------------------------
1997 1998
--------- ---------
<S> <C> <C>
Total assets:
Branded pharmaceuticals $ 73,640 $ 522,218
Contract manufacturing 30,334 144,614
All Other 918 1,735
Eliminations (29) (396)
--------- ---------
Consolidated total assets $ 104,863 $ 668,171
========= =========
</TABLE>
Capital expenditures of $1,069, $1,379 and $8,099 for the years ended
December 31, 1996, 1997 and 1998, respectively, are substantially
utilized for contract manufacturing purposes.
16. Related Party Transactions:
Affiliated Company
The Company owned a 6% interest in a privately held, affiliated
pharmaceutical company. In 1996, the Company sold its investment for
$2,052, resulting in a gain of $1,760. The Company's share of earnings
in this affiliated company was not material and was included in other
income in the consolidated statement of operations.
The United Company
In connection with its purchase of Cortisporin in 1997, the Company
received $8,750 from The United Company for 3,047,355 common shares.
F-22
<PAGE> 59
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
16. Related Party Transactions, continued:
Other
Certain management and employees of the Company sit on the board of
directors of a private foundation. The Company made contributions to
this foundation and expensed approximately $245, $994 and $247 for the
years ended December 31, 1996, 1997 and 1998, respectively. At December
31, 1997 and 1998, the Company had receivables from this foundation of
approximately $1,671 and $596, respectively, for expenses paid by the
Company on their behalf. The receivables are collateralized by common
shares of the Company held by the foundation and are included in
shareholders' equity.
For the year ended December 31, 1998, the Company had paid Bourne & Co.,
Inc., an affiliate of a director and since January 1999, an officer of
the Company, $2,475 for consulting services. In connection with the
Altace Acquisition and related financing, Bourne & Co., Inc., received
$1,250 in January 1999, which was recorded in accrued expenses as of
December 31, 1998. For the years ended December 31, 1996 and 1997, the
Company had paid Bourne & Co., Inc., approximately $92 and $651
respectively, for its advisory services in the acquisition of the
Cortisporin product line and $62 for consulting services for the year
ended December 31, 1997.
In September 1998, the Company purchased for approximately $350 the
primary residence of an officer of the Company in connection with his
relocation to the Parkedale Facility. The Company believes the purchase
price was at fair market value and currently holds the property for
sale.
In October 1996, the Company issued 1,386,230 common shares to
shareholders and members of management of which 699,711 common shares
were financed by notes receivable of approximately $2,100.
The Company paid a certain shareholder $160 for consulting fees during
the year ended December 31, 1996.
17. Stockholders' Equity:
Stock Dividend:
The Company paid a 15% stock dividend on all common shares issued and
outstanding as of November 1, 1996. Common shares of 906,883 were
distributed. The dividend was charged to retained earnings in the amount
of $2,585, which was based on market value at the time of the
transaction of $3 per share. The weighted average shares and all per
share amounts included in the accompanying consolidated financial
statements and notes are based on the increased number of shares giving
retroactive effect to the stock dividend.
F-23
<PAGE> 60
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
17. Stockholders' Equity, continued:
Stock Split:
On November 15, 1997, the shareholders approved a stock split of 2.8
common shares for each share of the Company's common shares outstanding.
The stock split has been reflected in the average shares outstanding,
shares outstanding and income (loss) per share amounts in the balance
sheets, statements of operations and changes in shareholders' equity.
Stock Option Plans:
The 1997 Incentive and Nonqualified Stock Option Plan for Employees (the
"1997 Stock Option Plan") was adopted in 1997. In February 1998, the
Company adopted the 1998 Non-employee Director Stock Option Plan (the
"1998 Stock Option Plan"), The aggregate number of shares which may be
issued under the 1997 and 1998 Stock Option Plans shall not exceed
3,500,000, (3,200,000 and 300,000, respectively).
During 1998, the Company granted 222,750 options of common stock to
employees under the 1997 Stock Option Plan at an exercise price equal to
fair market value at date of grant. As of December 31, 1998, the Company
had 220,200 options outstanding of which 54,375 are vested and
exercisable. Options under the 1997 Stock Option Plan vest at various
times over 24 months and expire 10 years from the date of grant.
During 1998, the Company granted 50,000 options of common stock to its
directors under the 1998 Stock Option Plan at an exercise price equal to
the initial public offering price of $14.00 per share. The options vested
immediately upon grant. As of December 31, 1998, the Company had 50,000
options vested and outstanding. Options under the 1998 Stock Option Plan
expire 10 years from the date of grant.
The Company has adopted the disclosure only provision of SFAS No. 123,
"Accounting for Stock Based Compensation." Accordingly, since options
were granted at fair value, no compensation cost has been recognized for
stock options granted to date. Had compensation cost for these plans been
determined for options granted, consistent with SFAS No. 123, the
Company's net income and diluted income per share would have decreased to
the following pro forma amounts for the year ended December 31, 1998:
<TABLE>
<CAPTION>
1998
----------
<S> <C>
Income before extraordinary item:
As reported $ 25,321
==========
Pro Forma $ 24,520
==========
Net income:
As reported $ 20,910
==========
Pro Forma $ 20,109
==========
Diluted income per share:
Income before extraordinary item:
As reported $ 0.84
==========
Pro Forma $ 0.81
==========
Net income:
As reported $ 0.69
==========
Pro Forma $ 0.67
==========
</TABLE>
F-24
<PAGE> 61
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
17. Stockholders' Equity. Continued:
The fair value of each option grant is estimated on the date of grant
using the Black-Scholes option pricing model with the following
weighted-average assumptions used for grants in 1998: expected lives of
ranging from 3 years to 4 years; expected volatility of approximately
72%; expected dividend yield of $0 and risk-free interest rates ranging
from 4.91% to 5.46%.
A summary of the status of the Company's Plans of December 31, 1998 and
changes during the year ended December 31, 1998 is presented in the
table below:
<TABLE>
<CAPTION>
1997 Stock Option Plan 1998 Stock Option Plan
------------------------ ----------------------
Weighted Weighted
Average Average
Exercise Exercise
Shares Price Shares Price
---------- ------ ------- ------
<S> <C> <C> <C> <C>
Shares under option:
Outstanding at January 1, 1998 -- $ -- -- $ --
Granted 222,750 14.02 50,000 14.00
Exercised -- -- -- --
Forfeited (2,550) 14.00 -- --
---------- ------ ------- ------
Outstanding at December 31, 1998 220,200 $14.02 50,000 $14.00
========== ====== ======= ======
Weighted average fair value
of options granted N/A $ 8.10 N/A $ 7.14
========== ====== ======= ======
Options available for grant
at December 31, 1998 2,979,800 N/A 250,000 N/A
========== ====== ======= ======
</TABLE>
Options outstanding at December 31, 1998 have exercise prices between
$14.00 and $15.25, with a weighted average exercise price of $14.02 and
a remaining contractual life of approximately 9.5 years.
Other Equity Transactions:
On November 14, 1997, the Company's shareholders approved:
A new class of preferred shares, with preference terms and rights to be
determined by the Board of Directors. The Company is authorized to issue
up to 15 million shares.
An amendment to the Company's Articles of Incorporation to increase the
number of authorized common shares from 10 million shares of no par
value to 150 million shares of no par value.
A dividend of one preferred share purchase right (a "Right") for each
common share outstanding. Such rights entitle the registered holder
under certain circumstances to purchase from the Company one-thousandth
of a share of a newly created series of the Company's preferred shares,
at a price of $60 per one-thousandth shares of Preferred Stock, subject
to adjustment.
F-25
<PAGE> 62
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
17. Stockholders' Equity, continued:
The Company closed the sale of 4,104,730 shares of common stock at
$14.00 per share on June 30, 1998. The net proceeds to the Company from
the sale of stock in the initial public offering after deducting
underwriting discounts and commissions and offering expenses were
approximately $50,117.
The following table sets forth a reconciliation of the gross IPO
proceeds to the net IPO proceeds.
<TABLE>
<S> <C>
Gross IPO proceeds $57,466
Underwriters discounts and commissions 4,118
IPO expenses paid in 1998 2,521
IPO expenses paid in 1997 710
-------
Net equity provided from IPO $50,117
=======
</TABLE>
18. Income (Loss) Per Share:
The basic and diluted income (loss) before extraordinary item per share
was determined as follows:
<TABLE>
<CAPTION>
1996 1997 1998
---------- ---------- -----------
<S> <C> <C> <C>
Income (loss) before extraordinary
item available to common shareholders $ (240) $ 6,612 $ 25,321
========== ========== ===========
Basic income (loss) per share:
Weighted average common shares 15,440,465 26,270,103 30,127,527
---------- ---------- -----------
Basic (loss) income per common share $ (0.02) $ 0.26 $ 0.84
========== ========== ===========
Diluted income (loss) per share
Weighted average common shares 15,440,465 26,270,103 30,127,527
Effect of stock options -- -- 29,891
---------- ---------- -----------
Weighted average common shares
plus assumed conversions 15,440,465 26,270,103 30,157,418
---------- ---------- -----------
Diluted income (loss) per share $ (0.02) $ 0.26 $ 0.84
========== ========== ===========
</TABLE>
F-26
<PAGE> 63
KING PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(in thousands, except share data)
19. Quarterly Financial Information (Unaudited):
The following table sets forth summary quarterly financial information
for the years ended December 31, 1997 and 1998:
<TABLE>
<CAPTION>
1997 By Quarter First Second Third Fourth
- --------------- ------- ------- ------- -------
<S> <C> <C> <C> <C>
Total revenues $ 8,786 $12,066 $12,735 $14,322
Gross profit 6,723 8,913 8,978 10,261
Operating income 1,906 3,911 3,297 4,243
Net income 921 1,984 1,650 2,057
Basic and diluted income per common share (1) 0.04 0.07 0.06 0.07
<CAPTION>
1998 By Quarter First Second Third Fourth
- --------------- ------- ------- ------- -------
<S> <C> <C> <C> <C>
Total revenues $24,977 $40,264 $48,089 $50,133
Gross profit 17,613 26,216 27,568 28,014
Operating income 9,690 14,812 15,349 15,587
Income before extraordinary item 4,361 6,388 7,310 7,262
Net income 4,075 6,388 7,310 3,137
Basic and diluted income per common share:
Income before extraordinary item 0.15 0.23 0.23 0.23
Net income 0.15 0.23 0.23 0.08
</TABLE>
(1) Quarterly amounts do not add to annual amounts due to the effect
of rounding on a quarterly basis.
20. Subsequent Events
On March 3, 1999, the Company issued $150,000 of 10.75% of Senior
Subordinated Notes due 2009. Net proceeds of approximately $144,000 were
used to repay outstanding indebtedness under the Senior Credit Facility
($69,000) and the Seller Note ($75,000). The debt is guaranteed by the
Company's wholly-owned subsidiaries Monarch Pharmaceuticals, Inc.,
Parkedale Pharmaceuticals, Inc. and King Pharmaceuticals of Nevada, Inc.
In addition, the Company increased its borrowing capacity under its
Revolving Credit Facility to $100,000.
F-27
<PAGE> 64
In accordance with Section 13 or 15(d) of the Exchange Act, the
registrant has caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
KING PHARMACEUTICALS, INC.
By: /s/ John M. Gregory
---------------------------------
Chairman of the Board
Date: March 26, 1999
In accordance with the requirements of the Exchange Act, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
- --------- -------- ----
<S> <C> <C>
/s/ John M. Gregory Chairman of the Board (principal executive officer) March 26, 1999
/s/ Brian G. Shrader Chief Financial Officer (principal financial and March 26, 1999
accounting officer)
/s/ Jefferson J. Gregory Director March 26, 1999
/s/ Joseph R. Gregory Director March 26, 1999
/s/ Ernest C. Bourne Director March 26, 1999
Lois A. Clarke Director March __, 1999
/s/ Frank W. De Friece, Jr. Director March 26, 1999
/s/ D. Greg Rooker Director March 26, 1999
/s/ Ted G. Wood Director March 26, 1999
</TABLE>
<PAGE> 65
REPORT OF INDEPENDENT ACCOUNTANTS
Our report on the financial statements of King Pharmaceuticals, Inc. is
included on page F-1 of this Form 10-K. In connection with our audits of such
financial statements, we have also audited the related financial statement
schedule listed under Item 14 of this Form 10-K.
In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as a whole,
presents fairly, in all material respects, the information required to be
included therein.
PRICEWATERHOUSECOOPERS LLP
Greensboro, North Carolina
February 15, 1999
S-1
<PAGE> 66
KING PHARMACEUTICALS, INC.
Schedule II. Valuation and Qualifying Accounts
(In thousands)
<TABLE>
<CAPTION>
Column C
----------------------------
Column A Column B Additions Column D Column E
--------------------------- ---------- ---------------------------- ---------- ----------
Charged
Balances at Charged to (Credited) Balance at
Beginning Costs and to Other End of
of Period Expenses Accounts Deductions(1) Period
--------- -------- -------- ------------- ------
<S> <C> <C> <C> <C> <C>
Allowance for doubtful
accounts, deducted from
accounts receivable in the
balance sheets:
Year ended December 31, 1998 $638 $1,169 $ -- $405 $1,402
Year ended December 31, 1997 $ 93 565 -- 20 $ 638
Year ended December 31, 1996 $ 93 -- -- -- $ 93
</TABLE>
- ------------
(1) Amounts represent write-offs of accounts.
S-2
<PAGE> 1
CONFORMED COPY
================================================================================
CREDIT AGREEMENT
Dated as of February 27, 1998,
as amended and restated as of
December 22, 1998
among
KING PHARMACEUTICALS, INC.,
THE LENDERS NAMED HEREIN,
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent,
as Collateral Agent and
as Swingline Lender,
FIRST UNION NATIONAL BANK
as Issuing Bank
and
FIRST UNION NATIONAL BANK
and
NATIONSBANK, N.A.,
as Syndication Agents
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
Definitions
<S> <C>
SECTION 1.01. Defined Terms ................................................ 2
SECTION 1.02. Terms Generally .............................................. 22
ARTICLE II
The Credits
SECTION 2.01. Commitments .................................................. 23
SECTION 2.02. Loans......................................................... 23
SECTION 2.03. Borrowing Procedure .......................................... 25
SECTION 2.04. Evidence of Debt; Repayment of Loans ......................... 25
SECTION 2.05. Fees.......................................................... 26
SECTION 2.06. Interest on Loans ............................................ 27
SECTION 2.07. Default Interest ............................................. 27
SECTION 2.08. Alternate Rate of Interest ................................... 27
SECTION 2.09. Termination and Reduction of Commitments ..................... 28
SECTION 2.10. Conversion and Continuation of Borrowings .................... 28
SECTION 2.11. Repayment of Term Borrowings ................................. 30
SECTION 2.12. Prepayment ................................................... 32
SECTION 2.13. Mandatory Prepayments ........................................ 32
SECTION 2.14. Reserve Requirements; Change in Circumstances ................ 34
SECTION 2.15. Change in Legality ........................................... 36
SECTION 2.16. Indemnity .................................................... 36
SECTION 2.17. Pro Rata Treatment ........................................... 37
SECTION 2.18. Sharing of Setoffs ........................................... 37
SECTION 2.19. Payments ..................................................... 38
SECTION 2.20. Taxes......................................................... 38
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate ........................................... 39
SECTION 2.22. Swingline Loans .............................................. 40
SECTION 2.23. Letters of Credit ............................................ 42
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers ......................................... 46
SECTION 3.02. Authorization ................................................ 46
SECTION 3.03. Enforceability ............................................... 46
SECTION 3.04. Governmental Approvals ....................................... 46
SECTION 3.05. Financial Statements ......................................... 47
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
SECTION 3.06. No Material Adverse Change ................................... 47
SECTION 3.07. Title to Properties; Possession Under Leases ................. 47
SECTION 3.08. Subsidiaries ................................................. 48
SECTION 3.09. Litigation; Compliance with Laws ............................. 48
SECTION 3.10. Agreements ................................................... 49
SECTION 3.11. Federal Reserve Regulations .................................. 49
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act ... 49
SECTION 3.13. Use of Proceeds .............................................. 49
SECTION 3.14. Tax Returns .................................................. 49
SECTION 3.15. No Material Misstatements .................................... 49
SECTION 3.16. Employee Benefit Plans ....................................... 50
SECTION 3.17. Environmental Matters ........................................ 50
SECTION 3.18. Insurance .................................................... 50
SECTION 3.19. Security Documents ........................................... 51
SECTION 3.20. Location of Real Property and Leased Premises ................ 51
SECTION 3.21. Labor Matters ................................................ 52
SECTION 3.22. Solvency ..................................................... 52
SECTION 3.23. Year 2000..................................................... 52
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events ............................................ 52
SECTION 4.02. First Credit Event ........................................... 53
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties ......................... 56
SECTION 5.02. Obligations and Taxes ........................................ 56
SECTION 5.03. Financial Statements, Reports, etc............................ 56
SECTION 5.04. Litigation and Other Notices ................................. 57
SECTION 5.05. Employee Benefits ............................................ 58
SECTION 5.06. Maintaining Records; Access to Properties and Inspections .... 58
SECTION 5.07. Use of Proceeds .............................................. 58
SECTION 5.08. Compliance with Environmental Laws ........................... 58
SECTION 5.09. Preparation of Environmental Reports ......................... 58
SECTION 5.10. Further Assurances ........................................... 59
SECTION 5.11. Hedging Arrangements ......................................... 59
</TABLE>
<PAGE> 4
ARTICLE VI
Negative Covenants
<TABLE>
<S> <C>
SECTION 6.01. Indebtedness ................................................. 59
SECTION 6.02. Liens ........................................................ 60
SECTION 6.03. Sale and Lease-Back Transactions ............................. 61
SECTION 6.04. Investments, Loans and Advances .............................. 62
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions .... 62
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends .............................. 63
SECTION 6.07. Transactions with Affiliates ................................. 63
SECTION 6.08. Business of Borrower and Subsidiaries......................... 63
SECTION 6.09. Fiscal Year................................................... 63
SECTION 6.10. Leverage Ratio ............................................... 63
SECTION 6.11. Consolidated Interest Expense Coverage Ratio.................. 64
SECTION 6.12. Consolidated Net Worth ....................................... 64
SECTION 6.13. Consolidated Fixed Charge Coverage Ratio...................... 64
SECTION 6.14. Amendment of Material Documents ........................... 64
SECTION 6.15. Prepayments, Redemptions and Repurchases of Debt.............. 65
ARTICLE VII
Events of Default............................................. 65
ARTICLE VIII
The Administrative Agent and the Collateral Agent............. 67
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices ...................................................... 70
SECTION 9.02. Survival of Agreement ........................................ 70
SECTION 9.03. Binding Effect ............................................... 70
SECTION 9.04. Successors and Assigns ....................................... 71
SECTION 9.05. Expenses; Indemnity .......................................... 74
SECTION 9.06. Right of Setoff .............................................. 75
SECTION 9.07. Applicable Law ............................................... 75
SECTION 9.08. Waivers; Amendment ........................................... 76
SECTION 9.09. Interest Rate Limitation ..................................... 77
SECTION 9.10. Entire Agreement ............................................. 77
SECTION 9.11. WAIVER OF JURY TRIAL ......................................... 77
SECTION 9.12. Severability ................................................. 78
SECTION 9.13. Counterparts ................................................. 78
</TABLE>
<PAGE> 5
<TABLE>
<S> <C>
SECTION 9.14. Headings ..................................................... 78
SECTION 9.15. Jurisdiction; Consent to Service of Process .................. 78
SECTION 9.16. Confidentiality .............................................. 79
Schedule 1.01(a) Existing Letters of Credit
Schedule 1.01(b) Guarantors
Schedule 1.01(c) Mortgaged Properties
Schedule 2.01 Commitments
Schedule 3.07(a) Certain Encumbrances
Schedule 3.07(c) Condemnation Proceeds
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.17 Environmental Matters
Schedule 3.18 Insurance
Schedule 3.19(d) Mortgage Filing Offices
Schedule 3.20(a) Owned Property
Schedule 3.20(b) Leased Property
Schedule 6.01 Existing Indebtedness
Schedule 6.02 Existing Liens
Schedule 6.04(a) Existing Investments
Schedule 6.04(b) Existing Loans
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D Form of Guarantee Agreement
Exhibit E Form of Indemnity, Subrogation and
Contribution Agreement
Exhibit F Form of Pledge Agreement
Exhibit G Form of Security Agreement
Exhibit H Form of Opinion of Corporate Counsel of
the Borrower
Exhibit I-1 Form of Mortgage
Exhibit I-2 Form of Deed of Trust
Exhibit J Form of Escrow Agreement
Exhibit K-1 Form of Bridge Loan Agreement
Exhibit K-2 Form of Exchange Note Indenture
Exhibit L Form of Reaffirmation Agreement
</TABLE>
<PAGE> 6
AMENDED AND RESTATED CREDIT AGREEMENT dated
as of February 27, 1998, as amended and restated as
of December 22, 1998 (this "Agreement") among KING
PHARMACEUTICALS, INC., a Tennessee corporation (the
"Borrower"), the Lenders (as defined in Article I),
CREDIT SUISSE FIRST BOSTON, a bank organized under
the laws of Switzerland, acting through its New York
Branch, as administrative agent (in such capacity,
the "Administrative Agent"), as collateral agent (in
such capacity, the "Collateral Agent") and as
swingline lender (in such capacity, the "Swingline
Lender") for the Lenders, First Union National Bank,
as issuing bank (in such capacity, the "Issuing
Bank") for the Lenders and First Union National Bank
and NationsBank, N.A., as syndication agents (in such
capacity, the "Syndication Agents" and, together with
the Administrative Agent and the Collateral Agent,
the "Agents") for the Lenders.
The Borrower, the Administrative Agent, the Collateral Agent and
certain of the Lenders entered into this Agreement as of February 27, 1998 (as
in effect immediately prior to the date hereof, the "Original Credit
Agreement"). The parties hereto desire to amend and restate the Original Credit
Agreement in order to permit and provide funding for the consummation of the
Acquisition (as defined herein) and to make certain other changes as set forth
herein.
Hoechst Marion Roussel, Inc. (the "Seller") and the Borrower (such term
and each other capitalized term used but not otherwise defined herein having the
meaning assigned to such term in Article I), have entered into the General
Products Agreement dated as of December 17, 1998 and certain related agreements
(collectively, the "Asset Purchase Agreement "), pursuant to which the Borrower
has agreed to purchase the assets described therein (such purchase being called
the "Acquisition" and the assets so purchased being called the "Purchased
Assets") for $287,500,000 in cash and $75,000,000 aggregate principal amount of
Seller Notes.
The Borrower has requested the Lenders to extend credit in the form of
(a) Tranche A Term Loans on the Closing Date, in an aggregate principal amount
not in excess of $150,000,000, (b) Tranche B Term Loans on the Closing Date, in
an aggregate principal amount not in excess of $275,000,000, and (c) Revolving
Loans at any time and from time to time on or after the Closing Date and prior
to the Revolving Credit Maturity Date, in an aggregate principal amount at any
time outstanding not in excess of $75,000,000. The Borrower has requested the
Swingline Lender to extend credit, at any time and from time to time prior to
the Revolving Credit Maturity Date, in the form of Swingline Loans in an
aggregate principal amount at any time outstanding not in excess of $5,000,000.
The Borrower has requested the Issuing Bank to issue letters of credit, in an
aggregate face amount at any time outstanding not in excess of $10,000,000, to
support payment obligations incurred in the ordinary course of business by the
Borrower and the Subsidiaries and to support the obligation of the Borrower to
pay interest on the Seller Notes. The proceeds of the Term Loans and
approximately $21,500,000 of the proceeds of the Revolving Loans are to be used
by the Borrower on the Closing Date solely (i) to finance the Acquisition, (ii)
to refinance certain existing indebtedness of the Borrower, including all
indebtedness outstanding under the Original Credit Agreement and (iii) to pay
the fees and expenses related to the Acquisition. The proceeds of the Revolving
Loans made after the Closing Date
<PAGE> 7
2
and of the Swingline Loans are to be used by the Borrower and the Subsidiaries
to provide working capital for use in the ordinary course of their businesses
and for other general corporate purposes, including acquisitions.
The Lenders and the Swingline Lender are willing to extend such credit
to the Borrower, and the Issuing Bank is willing to issue Letters of Credit for
the account of the Borrower or any Wholly Owned Subsidiary, on the terms and
subject to the conditions set forth herein. Accordingly, the parties hereto
agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR Loan" shall mean any ABR Term Loan, ABR Revolving Loan or
Swingline Loan.
"ABR Revolving Loan" shall mean any Revolving Loan bearing interest at
a rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR Term Loan" shall mean any Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Acquisition" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Additional Securities" shall mean up to $200,000,000 aggregate
principal amount of the Borrower's subordinated notes, having (a) subordination
provisions (including provisions for the release of any subordinated
guarantees), covenants and events of default not less favorable to the Lenders
or the Borrower than those in the Exchange Note Indenture, (b) no maturity or
scheduled prepayment, scheduled repurchase, scheduled defeasance or scheduled
redemption prior to one year after the Tranche B Maturity Date and (c) mandatory
prepayment, mandatory redemption, or similar provisions not less favorable to
the Lenders or the Borrower than those in the Exchange Note Indenture, and
otherwise on terms that at the time of issuance are customary for publicly
offered subordinated debt.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum equal to the
product of (a) the LIBO Rate in effect for such Interest Period and (b)
Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to such
term in Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A.
<PAGE> 8
3
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount
of the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal
to the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms of the definition thereof, the Alternate Base Rate shall be determined
without regard to clause (b) of the preceding sentence until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurodollar Loan or ABR Loan which constitutes part of a Revolving Credit
Borrowing or a Tranche A Term Borrowing, or with respect to the Commitment Fees,
as the case may be, the applicable percentage set forth below under the caption
"Eurodollar Spread", "ABR Spread" or "Fee Percentage", as the case may be, based
upon the Leverage Ratio as of the fiscal quarter end next preceding the most
recent Determination Date:
<TABLE>
<CAPTION>
Eurodollar ABR Fee
Leverage Ratio Spread Spread Percentage
- -------------- -------- ------ ----------
<S> <C> <C> <C>
Category 1
- ----------
Greater than or equal to 3.50 to 1.00 3.25% 2.25% 0.50%
Category 2
- ----------
Less than 3.50 to 1.00 but greater
than or equal to 3.00 to 1.00 3.00% 2.00% 0.50%
Category 3
- ----------
Less than 3.00 to 1.00 but greater
than or equal to 2.50 to 1.00 2.75% 1.75% 0.50%
Category 4
- ----------
Less than 2.50 to 1.00 but greater
than or equal to 2.00 to 1.00 2.50% 1.50% 0.50%
Category 5 2.25% 1.25% .50%
- ----------
Less than 2.00 to 1.00
</TABLE>
; provided that until the delivery of financial statements for the quarter ended
June 30, 1999, the Applicable Percentage shall be determined by reference to
Category 1. Notwithstanding the foregoing, at any time when the Borrower has
failed to deliver the financial statements
<PAGE> 9
4
and certificates required by Section 5.03(a) or (b), and at any time after the
occurrence and during the continuance of an Event of Default, the Applicable
Percentage shall be determined by reference to Category 1.
"Asset Purchase Agreement" shall have the meaning assigned to such term
in the preamble to this Agreement.
"Asset Sale" shall mean the sale, transfer or other disposition (by way
of merger or otherwise, and including any casualty event or condemnation that
results in the receipt of any insurance or condemnation proceeds) by any Loan
Party or any of the Subsidiaries to any person (other than a sale or transfer to
any Loan Party) of (a) any capital stock of any of the Subsidiaries or (b) any
other assets (other than inventory, obsolete or worn out assets, scrap and
Permitted Investments, in each case disposed of in the ordinary course or
business) of the Borrower or any of the Subsidiaries; provided that the
following shall not be deemed an "Asset Sale" for purposes of this Agreement:
(i) any asset sale or series of related asset sales described in clause (b)
above resulting in Net Cash Proceeds not in excess of $500,000, (ii) the sale of
any asset encumbered by Liens of third-party creditors permitted under Section
6.02(a) and (iii) sales of any brand name pharmaceutical product lines in an
aggregate amount not to exceed $50,000,000 during any calendar year if (w) the
Borrower advises the Administrative Agent in writing that it will utilize the
Net Cash Proceeds of each such sale within six months of the date of closing of
such sale to purchase additional brand name pharmaceutical product lines, (x)
after giving pro forma effect to each such sale as if it had occurred at the
beginning of the most recent period of four fiscal quarters for which financial
statements shall have been delivered pursuant to Section 5.03(a) or (b), as
applicable, the Borrower is in compliance with the financial covenants set forth
in Sections 6.10, 6.11, 6.12 and 6.13, (y) the Net Cash Proceeds of such sale
are promptly deposited in an escrow account with the Administrative Agent,
pursuant to an escrow agreement substantially in the form of Exhibit J, and held
in such account pending any such purchase during such six-month period, and (z)
the Borrower in fact uses such Net Cash Proceeds to purchase additional brand
name pharmaceutical product lines within such six-month period, provided that
the aggregate amount held in the account referred to in clause (y) above shall
not exceed $50,000,000 at any time, and any amount in such account in excess of
$50,000,000 will be deemed to constitute Net Cash Proceeds of an Asset Sale and
promptly applied as provided in Section 2.13(c).
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit C.
"Bridge Loans" shall mean the loans deemed made pursuant to the Bridge
Loan Agreement.
<PAGE> 10
5
"Bridge Loan Agreement" shall mean the Agreement dated as of the date
hereof among the Borrower, the Lenders named therein, First Union Investors,
Inc. and NationsBridge, L.L.C., as syndication agents, and Credit Suisse First
Boston, as administrative agent, substantially in the form of Exhibit K-1
hereto, as in effect on the date hereof and as hereafter amended as permitted
hereby.
"Business Day" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City, New York are authorized or required by law to
close; provided, however, that when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" shall mean, for any period, (a) additions to
property, plant and equipment and other capital expenditures of the Borrower and
its consolidated Subsidiaries that are (or would be) set forth in a consolidated
statement of cash flows of the Borrower for such period prepared in accordance
with GAAP and (b) Capital Lease Obligations incurred by the Borrower and its
consolidated Subsidiaries during such period.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
A "Change in Control" shall be deemed to have occurred if (a) any
person or group (within the meaning of Rule 13d-5 of the Securities Exchange Act
of 1934, as amended, as in effect on the date hereof) shall own directly or
indirectly, beneficially or of record, shares representing more than 20% of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Borrower (other than the ownership of shares of the
Borrower's capital stock, directly or indirectly, beneficially or of record, by
any of the Permitted Holders or The United Company, a Virginia corporation;
provided that any such capital stock ownership by The United Company shall not
result in The United Company or any group of which The United Company is a
member, directly or indirectly, Controlling the Borrower); (b) a majority of the
seats (other than vacant seats) on the board of directors of the Borrower shall
at any time be occupied by persons who were neither (i) nominated by the board
of directors of the Borrower, nor (ii) appointed by directors so nominated; (c)
any change in control (or similar event, however denominated) with respect to
the Borrower or any of the Subsidiaries shall occur under and as defined in any
indenture or agreement in respect of Indebtedness to which the Borrower or any
of the Subsidiaries is a party; (d) the Permitted Holders shall not beneficially
own, directly or indirectly, shares representing at least 30% of the aggregate
ordinary voting power represented by the outstanding capital stock of the
Borrower; or (e) any person or group shall otherwise directly or indirectly
Control the Borrower.
"Closing Date" shall mean the date of the first Credit Event on or
after the Restatement Date.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
<PAGE> 11
6
"Collateral" shall mean all the "Collateral" as defined in any Security
Document and shall include the Mortgaged Properties.
"Collateral Requirement" shall mean, at any time, that (a) the Pledge
Agreement (or a supplement referred to in Section 23 thereof) shall have been
duly executed by the Borrower and each Subsidiary (other than any Foreign
Subsidiary), existing from time to time, owning any outstanding capital stock or
Indebtedness of the Borrower or any other Subsidiary, shall have been delivered
to the Collateral Agent and shall be in full force and effect, and all the
outstanding capital stock of the Subsidiaries shall have been duly and validly
pledged thereunder to the Collateral Agent for the ratable benefit of the
Secured Parties and certificates representing such shares, accompanied by
instruments of transfer and stock powers endorsed in blank, shall be in the
actual possession of the Collateral Agent; provided that the Borrower and the
Subsidiaries shall not be required to pledge more than 65% of the capital stock
of any Foreign Subsidiary; (b) the Security Agreement (or a supplement referred
to in Section 7.15 thereof) shall have been duly executed by the Borrower and
each Subsidiary (other than any Foreign Subsidiary), existing from time to time,
and shall have been delivered to the Collateral Agent and shall be in full force
and effect, and each document (including each Uniform Commercial Code financing
statement) required by law or reasonably requested by the Administrative Agent
to be filed, registered or recorded in order to create in favor of the
Collateral Agent for the benefit of the Secured Parties a valid, legal and
perfected first-priority security interest in and lien on the Collateral subject
to the Security Agreement (subject to any Lien expressly permitted by Section
6.02) shall have been so filed, registered or recorded and evidence thereof
delivered to the Collateral Agent; (c) the Indemnity, Subrogation and
Contribution Agreement (or a supplement referred to in Section 12 thereof) shall
have been executed by the Borrower and each other Loan Party, shall have been
delivered to the Collateral Agent and shall be in full force and effect; (d)
each of the Mortgages, in form and substance satisfactory to the Lenders,
relating to each of the Mortgaged Properties shall have been duly executed by
the parties thereto and delivered to the Collateral Agent and shall be in full
force and effect; (e) each of such Mortgaged Properties shall not be subject to
any Lien other than those permitted under Section 6.02; (f) each of such
Mortgages shall have been filed and recorded in the appropriate recording office
(or a lender's title insurance policy, in form and substance acceptable to the
Collateral Agent, insuring such Security Document as a first lien on such
Mortgaged Property (subject to any Lien permitted by Section 6.02) shall have
been received by the Collateral Agent) and, in connection therewith, the
Collateral Agent shall have received evidence satisfactory to it of each such
filing and recordation (or such Lender's title insurance policy); and (g) the
Collateral Agent shall have received such other documents, including a policy or
policies of title insurance issued by a nationally recognized title insurance
company, together with such endorsements, coinsurance and reinsurance as may be
requested by the Collateral Agent and the Lenders, insuring the Mortgages as
valid first liens on the Mortgaged Properties, free of Liens other than those
permitted under Section 6.02, together with such surveys, abstracts, appraisals
and legal opinions required to be furnished pursuant to the terms of the
Mortgages or as reasonably requested by the Collateral Agent or the Lenders.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, Term Loan Commitments and Swingline Commitment.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
<PAGE> 12
7
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated November 1998.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net
Income for such period, plus, without duplication and to the extent deducted
from revenues in determining Consolidated Net Income, the sum for such period of
(a) the aggregate amount of Consolidated Interest Expense, (b) the aggregate
amount of letter of credit fees paid, (c) the aggregate amount of income tax
expense, (d) all amounts attributable to depreciation and amortization, (e) all
extraordinary charges, (f) all other non-cash charges and (g) all non-recurring
cash charges related to (i) any severance costs and restructuring charges
related to severance that the Borrower may incur from time to time in an
aggregate amount not to exceed $500,000 and (ii) the Acquisition and the
financing thereof, and minus, without duplication and to the extent added to
revenues in determining Consolidated Net Income for such period, all
extraordinary gains during such period, all as determined on a consolidated
basis with respect to the Borrower and the Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" shall mean, for any period,
the ratio of (a) Consolidated EBITDA for such period, minus Capital Expenditures
during such period to (b) the sum of (i) Consolidated Interest Expense for such
period, (ii) the aggregate amount of cash taxes paid by the Borrower and the
Subsidiaries during such period, (iii) cash dividends on capital stock declared
by the Borrower or any of the Subsidiaries during such period (other than any
such dividend payable to the Borrower or any of its Wholly Owned Subsidiaries)
and (iv) scheduled principal payments of Indebtedness made by the Borrower or
any of the Subsidiaries during such period (other than any such payment made to
the Borrower or any of its Wholly Owned Subsidiaries).
"Consolidated Interest Expense" shall mean, for any period, the
interest expense, both expensed and capitalized (including the interest
component in respect of Capital Lease Obligations), accrued or paid by the
Borrower and the Subsidiaries during such period, determined on a consolidated
basis in accordance with GAAP. For purposes of the foregoing, interest expense
shall be determined exclusive of deferred financing costs and the amortization
thereof and after giving effect to any net payments made or received by the
Borrower and the Subsidiaries with respect to Hedging Agreements.
"Consolidated Interest Expense Coverage Ratio" shall mean, for any
period, the ratio of (a) Consolidated EBITDA for such period to (b) Consolidated
Interest Expense for such period.
"Consolidated Net Income" shall mean, for any period, net income or
loss of the Borrower and the Subsidiaries for such period, as determined on a
consolidated basis in accordance with GAAP, provided that there shall be
excluded (a) the income of any person in which any other person (other than the
Borrower or any of the Subsidiaries or any director holding qualifying shares in
compliance with applicable law) has a joint interest, except to the extent of
the amount of dividends or other distributions actually paid to the Borrower or
any of the Subsidiaries by such person during such period, (b) the loss of any
person (other than a consolidated Subsidiary) in which any other person (other
than the Borrower and any of the Subsidiaries or any director holding qualifying
shares in compliance with applicable law) has a joint interest, except to the
extent of the aggregate investment of the Borrower and any of the Subsidiaries
in such person during such period, and (c) the income (or loss) of any person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated
<PAGE> 13
8
with the Borrower or any of the Subsidiaries or the date that person's assets
are acquired by the Borrower or any of the Subsidiaries.
"Consolidated Net Worth" shall mean, as at any date of determination,
the consolidated stockholders' equity of the Borrower and the Subsidiaries, as
determined on a consolidated basis in accordance with GAAP.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Determination Date" shall mean each day that is the 45th day after the
end of any of the first three fiscal quarters, or the 90th day after the end of
the final fiscal quarter, in any fiscal year of the Borrower.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any Governmental Authority or any
person for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon (a) the existence, or
the continuation of the existence, of a Release (including sudden or non-sudden,
accidental or non-accidental Releases), (b) exposure to any Hazardous Material,
(c) the presence, use, handling, generation, transportation, storage, treatment
or disposal of any Hazardous Material or (d) the violation or alleged violation
of any Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and
future treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including, but not limited to, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. ss.ss.
9601 et seq. (collectively "CERCLA"), the Solid Waste Disposal Act, as amended
by the Resource Conservation and Recovery Act of 1976 and the Hazardous and
Solid Waste Amendments
<PAGE> 14
9
of 1984, 42 U.S.C. ss.ss. 6901 et seq., the Federal Water Pollution Control Act,
as amended, 33 U.S.C. ss.ss. 1251 et seq., the Clean Air Act of 1970, as amended
42 U.S.C. ss.ss. 7401 et seq., the Toxic Substances Control Act of 1976, 15
U.S.C. ss.ss. 2601 et seq., the Occupational Safety and Health Act of 1970, as
amended, 29 U.S.C. ss.ss. 651 et seq., the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. ss.ss. 11001 et seq., the Safe Drinking
Water Act of 1974, as amended, 42 U.S.C. ss.ss. 300(f) et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. ss.ss. 5101 et seq., and any similar or
implementing state or local law, and all amendments or regulations promulgated
under any of the foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Issuance" shall mean any issuance and sale by the Borrower, or
by any Subsidiary to a person other than the Borrower or another Subsidiary
(other than under any employee benefit plan), of any capital stock or any
rights, warrants or options in respect thereof (other than upon the exercise of
the Warrants).
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan; (b) the adoption of any amendment to a Plan that would require the
provision of security pursuant to Section 401(a)(29) of the Code or Section 307
of ERISA; (c) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (d) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (e) the incurrence of any liability under
Title IV of ERISA with respect to the termination of any Plan or the withdrawal
or partial withdrawal of the Borrower or any of its ERISA Affiliates from any
Plan or Multiemployer Plan; (f) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (g) the receipt by the Borrower or any ERISA Affiliate of any notice
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA; (h) the occurrence of a "prohibited
transaction" with respect to which the Borrower or any of the Subsidiaries is a
"disqualified person" (within the meaning of Section 4975 of the Code) or with
respect to which the Borrower or any such Subsidiary could otherwise be liable;
and (i) any other event or condition with respect to a Plan or Multiemployer
Plan that could reasonably be expected to result in liability of the Borrower.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
<PAGE> 15
10
"Eurodollar Loan" shall mean any Eurodollar Revolving Loan or
Eurodollar Term Loan.
"Eurodollar Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Term Loan" shall mean any Term Loan bearing interest at a
rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Excess Cash Flow" shall mean, for any fiscal year, the sum (without
duplication) of:
(a) Consolidated Net Income, adjusted to exclude any gains or
losses attributable to any Asset Sale and any sale by the Borrower of a
brand name pharmaceutical product line excluded from the definition of
"Asset Sale" in Section 1.01 pursuant to the conditions set forth
therein; plus
(b) depreciation, amortization and other non-cash charges or
losses deducted in determining Consolidated Net Income for such period;
plus
(c) the sum of (i) the amount, if any, by which Net Working
Capital decreased during such period, plus (ii) the amount, if any, by
which the consolidated deferred revenues of the Borrower and its
consolidated Subsidiaries increased during such period, plus (iii) the
aggregate principal amount of Capital Lease Obligations and other
Indebtedness incurred during such period to finance Capital
Expenditures, to the extent that mandatory principal payments in
respect of such Indebtedness would not be excluded from clause (f)
below when made; minus
(d) the sum of (i) any non-cash gains included in determining
such consolidated net income (or loss) for such period, plus (ii) the
amount, if any, by which Net Working Capital increased during such
period, plus (iii) the amount, if any, by which the consolidated
deferred revenues of the Borrower and its consolidated Subsidiaries
decreased during such period; minus
(e) Capital Expenditures for such period; minus
(f) the aggregate principal amount of Indebtedness repaid or
prepaid by the Borrower and its consolidated Subsidiaries during such
period, excluding (i) Indebtedness in respect of Revolving Loans and
Letters of Credit or in respect of other revolving credit or similar
facilities, (ii) mandatory prepayments of Term Loans, (iii) repayments
or prepayments of Indebtedness financed by incurring other
Indebtedness, to the extent that mandatory principal payments in
respect of such other Indebtedness would, pursuant to this clause (f),
be deducted in determining Excess Cash Flow when made, (iv)
Indebtedness referred to in clauses (e), (f) and (g) of Section 6.01
and (v) voluntary prepayments of Indebtedness other than Term Loans.
<PAGE> 16
11
"Exchange Note Indenture" shall mean an Indenture substantially in the
form of Exhibit K-2 hereto (with such changes as shall have been approved by the
Agents) between the Borrower, as issuer, and Union Planters Bank, N.A., as
trustee, as amended from time to time as permitted hereby.
"Exchange Notes" shall mean up to $75,000,000 aggregate principal
amount of the Borrower's senior subordinated notes due December 22, 2008, issued
under the Exchange Note Indenture.
"Excluded Taxes" shall mean, with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located (provided, however,
that none of any Lender, the Issuing Bank or any other recipient shall be deemed
to be located in any jurisdiction solely as a result of receiving any payments
under, or taking any other action related to, any loan under this or any other
agreement), (b) any branch profits taxes imposed by the United States of America
or any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 2.21(a)), any withholding tax that
(i) is in effect and would apply to amounts payable to such Foreign Lender at
the time such Foreign Lender becomes a party to this Agreement (or designates a
new lending office), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to any withholding tax pursuant to Section 2.20(a) or (ii) is
attributable to such Foreign Lender's failure to comply with Section 2.20(e).
"Existing Letter of Credit" shall mean each Letter of Credit previously
issued for the account of the Borrower that (a) is outstanding on the date
hereof and (b) is listed on Schedule 1.01(a).
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for the day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter" shall mean the Fee Letter dated November 28, 1998, between
the Borrower and the Agents.
"Fees" shall mean the Commitment Fees, the Administrative Agent Fees,
the L/C Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
<PAGE> 17
12
"Foreign Lender" shall mean any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean United States generally accepted accounting
principles applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Granting Lender" shall have the meaning assigned to such term in
Section 9.04(i).
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that the
term "Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business.
"Guarantee Agreement" shall mean the Guarantee Agreement, substantially
in the form of Exhibit D, made by the Guarantors in favor of the Collateral
Agent for the benefit of the Secured Parties.
"Guarantee Requirement" shall mean, at any time, that the Guarantee
Agreement (or a supplement referred to in Section 20 thereof) shall have been
executed by the Borrower and each Subsidiary (other than any Foreign Subsidiary)
existing from time to time, shall have been delivered to the Collateral Agent
and shall be in full force and effect.
"Guarantors" shall mean the Borrower, each person listed on Schedule
1.01(b) and each other person that becomes party to a Guarantee Agreement as a
Guarantor, and the permitted successors and assigns of each such person.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes, hazardous or toxic substances or wastes, pollutants,
solid, liquid or gaseous wastes, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" shall mean any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
<PAGE> 18
13
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid, (d) all obligations of such
person under conditional sale or other title retention agreements relating to
property or assets purchased by such person, (e) all obligations of such person
issued or assumed as the deferred purchase price of property or services
(excluding trade accounts payable and accrued obligations incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
person, whether or not the obligations secured thereby have been assumed, (g)
all Guarantees by such person of Indebtedness of others, (h) all Capital Lease
Obligations of such person, (i) all obligations of such person in respect of
Hedging Agreements and (j) all obligations of such person as an account party in
respect of letters of credit and bankers' acceptances. The Indebtedness of any
person shall include the Indebtedness of any partnership in which such person is
a general partner.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnitee" shall have the meaning assigned to such term in Section
9.05(b).
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit E, among the Borrower, the Guarantors and the Collateral Agent.
"Interest Payment Date" shall mean, with respect to any Loan, each day
that is the last day of an Interest Period applicable to the Borrowing of which
such Loan is a part and the date of any prepayment of such Borrowing or
conversion of such Borrowing to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
preceding Interest Period applicable thereto and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, or 3 months thereafter, as the Borrower
may elect, (b) as to any ABR Borrowing (other than a Swingline Loan), the period
commencing on the date of such Borrowing or on the last day of the preceding
Interest Period applicable thereto and ending on the earliest of (i) the next
succeeding March 31, June 30, September 30 or December 31, (ii) the Revolving
Credit Maturity Date, Tranche A Maturity Date or Tranche B Maturity Date, as
applicable, and (iii) the date such Borrowing is converted to a Borrowing of a
different Type in accordance with Section 2.10 or repaid or prepaid in
accordance with Section 2.11 or 2.12 and (c) as to any Swingline Loan, the
period commencing on the date of such Loan and ending on the fifth Business Day
thereafter; provided, however, that if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
<PAGE> 19
14
"International Manufacturing Agreement" shall mean the International
Products Manufacturing Agreement dated as of December 17, 1998, between the
Seller and the Borrower.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.05(c).
"L/C Commitment" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.23.
"L/C Disbursement" shall mean a payment or disbursement made by the
Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate principal amount of all L/C Disbursements that have not yet been
reimbursed at such time. The L/C Exposure of any Revolving Credit Lender at any
time shall mean its Pro Rata Percentage of the aggregate L/C Exposure at such
time.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01 (other than any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance. Unless the context clearly indicates otherwise, the term "Lenders"
shall include the Swingline Lender.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.23 and any Existing Letter of Credit.
"Leverage Ratio" shall mean, at any time, the ratio of (a) Total Debt
at such time to (b) Consolidated EBITDA for the most recently ended period of
four fiscal quarters, all as determined on a consolidated basis in accordance
with GAAP; provided that for purposes of calculating the Leverage Ratio, the
Borrower's Consolidated EBITDA for the four-fiscal- quarter periods ending on
March 31, 1999, June 30, 1999 and September 30, 1999, shall be deemed to equal
the Borrower's Consolidated EBITDA for the period commencing on January 1, 1999,
and ending on (i) March 31, 1999, multiplied by 4, (ii) June 30, 1999,
multiplied by 2, and (iii) September 30, 1999, multiplied by 4/3, as applicable.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate per annum determined by the Administrative Agent
at approximately 11:00 a.m., London time, on the date which is two Business Days
prior to the beginning of such Interest Period by reference to the British
Bankers' Association Interest Settlement Rates for deposits in dollars (as set
forth by any service selected by the Administrative Agent which has been
nominated by the British Bankers' Association as an authorized information
vendor for the purpose of displaying rates) for a period equal to such Interest
Period, provided that, to the extent that an interest rate is not ascertainable
pursuant to the foregoing provisions of this definition, the "LIBO Rate" shall
be the interest rate per annum determined by the Administrative Agent equal to
the average of the rates per annum (rounded upwards, if necessary, to the next
1/16 of 1%) at which deposits in dollars are offered for such Interest Period by
two major banks selected by the Administrative Agent in the London interbank
<PAGE> 20
15
market in London, England at approximately 11:00 a.m., London time, on the date
which is two Business Days prior to the beginning of such Interest Period. In
the event that such rate is not available at such time for any reason, then the
"LIBO Rate" with respect to such Eurodollar Borrowing for such Interest Period
shall be the rate (rounded upwards, if necessary, to the next 1/16 of 1%) at
which dollar deposits of an amount equal to the applicable Loans and for a
maturity comparable to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit, the
Guarantee Agreement, the Security Documents and the Indemnity, Subrogation and
Contribution Agreement.
"Loan Parties" shall mean the Borrower and each Subsidiary that is, or
is required by this Agreement to be, a party to the Guarantee Agreement or any
Security Document.
"Loans" shall mean the Revolving Loans, the Term Loans and the
Swingline Loans.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, assets, results of operations, financial condition or prospects of
the Borrower and the Subsidiaries, taken as a whole, (b) the validity or
enforceability of any of the Loan Documents or any other documents entered into
in connection with the Transactions or the other transactions contemplated
thereby or the rights, remedies and benefits available to the parties
thereunder.
"Moody's" shall mean Moody's Investors Service, Inc.
"Mortgaged Properties" shall mean the real properties and leasehold and
subleasehold interests in real properties specified on Schedule 1.01(c) and all
other real properties having a fair market value in excess of $500,000 and
leasehold and subleasehold interests in real properties having a fair market
value in excess of $500,000 hereafter acquired by any of the Loan Parties.
"Mortgages" shall mean mortgages, deeds of trust, leasehold mortgages,
assignments of leases and rents, modifications and other security documents
satisfactory to the Collateral Agent. Each mortgage shall be substantially in
the form of Exhibit I-1 and each deed of trust shall be substantially in the
form of Exhibit I-2.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
<PAGE> 21
16
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the
cash proceeds thereof, including any cash received in respect of any non-cash
proceeds, but only as and when received, and any insurance or condemnation
proceeds, net of (i) costs of sale (including payment of the outstanding
principal amount of, premium or penalty, if any, interest and other amounts on
any Indebtedness (other than Loans) required to be repaid under the terms
thereof as a result of such Asset Sale), (ii) taxes paid or payable in the year
such Asset Sale occurs or in the following year as a direct result thereof and
(iii) amounts provided as a reserve, in accordance with GAAP, against any
liabilities under any indemnification obligations associated with such Asset
Sale (provided that, to the extent and at the time any such amounts are released
from such reserve, such amounts shall constitute Net Cash Proceeds), and (b)
with respect to any Equity Issuance or any issuance or other disposition of
Indebtedness for borrowed money, the cash proceeds thereof net of underwriting
commissions or placement fees and expenses directly incurred in connection
therewith.
"Net Working Capital" shall mean, at any date, (a) the consolidated
current assets of the Borrower and its consolidated Subsidiaries as of such date
(excluding cash and Permitted Investments) minus (b) the consolidated current
liabilities of the Borrower and its consolidated Subsidiaries as of such date
(excluding current liabilities in respect of Indebtedness). Net Working Capital
at any date may be a positive number or negative number. Net Working Capital
increases when it becomes more positive or less negative and decreases when it
becomes less positive or more negative.
"Note Purchase Agreements" shall mean the agreements substantially in
the form thereof attached to the Bridge Loan Agreement (a) between the Seller
and the Agents and (b) between Hoechst Marion Roussel Deutschland GmbH and the
Agents, both as in effect on the date hereof and as hereafter amended as
permitted hereby.
"Obligations" shall mean all obligations defined as "Obligations" in
the Guarantee Agreement and the Security Documents.
"Original Credit Agreement" shall have the meaning assigned to such
term in the preamble to this Agreement.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Perfection Certificate" shall mean the Perfection Certificate
substantially in the form of Annex 1 to the Security Agreement.
"Permitted Holders" shall mean John M. Gregory, Joan P. Gregory,
Jefferson J. Gregory, Terri D. White-Gregory, Joseph R. Gregory, Hershel P.
Blessing, Mary Ann Blessing, James E. Gregory, Dr. R. Henry Richards, Jeanie
Richards, Fred Jarvis and Mary Gregory-Jarvis their respective estates, spouses,
ancestors and lineal descendants, the legal representatives of any of the
foregoing and the trustees of any bona fide trusts of which the foregoing are
the sole beneficiaries or the grantors, or any person of which the foregoing
<PAGE> 22
17
"beneficially owns" (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934) voting securities representing at least 66-2/3% of the
total voting power of all classes of ordinary voting stock of such person
(exclusive of any matters as to which class voting rights exist), including S.J.
L.L.C. and Kingsway L.L.C. to the extent such entities adhere to the
aforementioned minimum beneficial ownership requirements.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 180 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days of the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof that has a combined capital and surplus
and undivided profits of not less than $500,000,000; and
(d) other investment instruments approved in writing by the
Required Lenders and offered by financial institutions which have a
combined capital and surplus and undivided profits of not less than
$500,000,000.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, substantially in
the form of Exhibit F, between the Borrower, each Subsidiary owning capital
stock or Indebtedness of the Borrower or any other Subsidiary and the Collateral
Agent for the benefit of the Secured Parties.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime rate in
effect at its principal office in New York City, New York; each change in the
Prime Rate shall be effective on the date such change is publicly announced as
being effective.
"Pro Rata Percentage" of any Revolving Credit Lender at any time shall
mean the percentage of the Total Revolving Credit Commitment represented by such
Lender's
<PAGE> 23
18
Revolving Credit Commitment. In the event the Revolving Credit Commitments shall
have been terminated, the Pro Rata Percentages of the Revolving Credit Lenders
shall be determined by reference to the Revolving Credit Commitments most
recently in effect (giving effect to any assignments pursuant to Section 9.04).
"Purchased Assets" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Reaffirmation Agreement" shall mean the Agreement dated as of December
22, 1998, between the Borrower and the Administrative Agent in satisfaction of
the Guarantee Requirement and the Collateral Requirement as of the Restatement
Date.
"Register" shall have the meaning assigned to such term in Section
9.04(d).
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Fund" shall mean, with respect to any Lender that is a fund
that invests in loans, any other fund that invests in loans and is managed by
the same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment or within any building, structure,
facility or fixture.
"Remedial Action" shall mean (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions
required by any Governmental Authority or voluntarily undertaken to: (i) clean
up, remove, treat, abate or in any other way address any Hazardous Material in
the environment; (ii) prevent the Release or threat of Release, or minimize the
further Release of any Hazardous Material so it does not migrate or endanger or
threaten to endanger public health, welfare or the environment; or (iii) perform
studies and investigations in connection with, or as a precondition to, clause
(i) or (ii) above.
"Required Lenders" shall mean, at any time, Lenders having Loans
(excluding Swingline Loans), L/C Exposures, Swingline Exposures and unused
Revolving Credit and Term Loan Commitments representing at least 51% of the sum
of all Loans outstanding (excluding Swingline Loans), L/C Exposures, Swingline
Exposures and unused Revolving Credit and Term Loan Commitments at such time;
provided that such Lenders include (a) Lenders having Revolving Loans, L/C
Exposures, Swingline Exposures and unused Revolving Credit Commitments
representing at least 25% of the sum of all such Revolving Loans, L/C Exposures,
Swingline Exposures and Revolving Credit Commitments outstanding at such time,
(b) Lenders having Tranche A Term Loans and unused Tranche A Commitments
representing at least 25% of the sum of all Tranche A Term Loans and unused
Tranche A Commitments at such time and (c) Lenders having Tranche B Term Loans
and unused Tranche B Commitments representing at least 25% of the sum of all
Tranche B Term Loans and unused Tranche B Commitments at such time.
<PAGE> 24
19
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Restatement Date" shall mean December 22, 1998.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Revolving Credit Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender, plus the aggregate amount at such time of such
Lender's L/C Exposure, plus the aggregate amount at such time of such Lender's
Swingline Exposure.
"Revolving Credit Lender" shall mean a Lender that has a Revolving
Credit Commitment (or that had such a Commitment at the time the Revolving
Credit Commitments were terminated).
"Revolving Credit Maturity Date" shall mean December 22, 2004.
"Revolving Loans" shall mean the revolving loans made by the Lenders to
the Borrower pursuant to clause (c) of Section 2.01. Each Revolving Loan shall
be a Eurodollar Revolving Loan or an ABR Revolving Loan.
"S&P" shall mean Standard & Poor's.
"SPC" shall have the meaning assigned to such term in Section 9.04(i).
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement.
"Security Agreement" shall mean the Security Agreement, substantially
in the form of Exhibit G, between the Borrower, the Subsidiaries (other than any
Foreign Subsidiary) and the Collateral Agent for the benefit of the Secured
Parties.
"Security Documents" shall mean the Mortgages, the Security Agreement,
the Pledge Agreement, the Reaffirmation Agreement and each of the security
agreements, mortgages and other instruments and documents executed and delivered
pursuant to any of the foregoing or pursuant to Section 5.10.
"Seller" shall have the meaning assigned to such term in the preamble
to this Agreement.
<PAGE> 25
20
"Seller Notes" shall mean $75,000,000 aggregate principal amount of the
Borrower's Senior Subordinated Notes due December 22, 2007, issued pursuant to
the Seller Note Agreement.
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board for Eurocurrency Liabilities (as defined in Regulation
D of the Board). Such reserve percentages shall include those imposed pursuant
to such Regulation D. Eurodollar Loans shall be deemed to constitute
Eurocurrency Liabilities and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D. Statutory Reserves
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make loans pursuant to Section 2.22, as the same may be reduced from
time to time pursuant to Section 2.09.
"Swingline Exposure" shall mean at any time the aggregate principal
amount at such time of all outstanding Swingline Loans. The Swingline Exposure
of any Revolving Credit Lender at any time shall equal its Pro Rata Percentage
of the aggregate Swingline Exposure at such time.
"Swingline Loan" shall mean any loan made by the Swingline Lender
pursuant to Section 2.22.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Borrowing" shall mean a Borrowing comprised of Tranche A Term
Loans or Tranche B Term Loans.
"Term Loan Commitments" shall mean the Tranche A Commitments and the
Tranche B Commitments.
"Term Loan Repayment Dates" shall mean the Tranche A Term Loan
Repayment Dates and the Tranche B Term Loan Repayment Dates as set forth in
Section 2.11(a).
"Term Loans" shall mean the Tranche A Term Loans and the Tranche B Term
Loans.
<PAGE> 26
21
"Total Debt" shall mean, as of any date of determination, without
duplication, the aggregate principal amount of Indebtedness of the Borrower and
the Subsidiaries outstanding as of such date, determined on a consolidated basis
in accordance with GAAP (other than Indebtedness of the type referred to in
clause (j) of the definition of the term "Indebtedness", except to the extent of
any unreimbursed drawings thereunder).
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such time.
"Tranche A Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche A Term Loans as set forth on Schedule
2.01 or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Tranche A Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04.
"Tranche A Lender" shall mean a Lender with a Tranche A Commitment or
with outstanding Tranche A Term Loans.
"Tranche A Maturity Date" shall mean December 22, 2004.
"Tranche A Term Borrowing" shall mean a Borrowing comprised of Tranche
A Term Loans.
"Tranche A Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a)(i).
"Tranche A Term Loans" shall mean the term loans made by the Lenders to
the Borrower pursuant to clause (a) of Section 2.01. Each Tranche A Term Loan
shall be either a Eurodollar Term Loan or an ABR Term Loan.
"Tranche B Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche B Term Loans as set forth on Schedule
2.01 or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Tranche B Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04.
"Tranche B Lender" shall mean a Lender with a Tranche B Commitment or
with outstanding Tranche B Term Loans.
"Tranche B Maturity Date" shall mean December 22, 2006.
"Tranche B Term Borrowing" shall mean a Borrowing comprised of Tranche
B Term Loans.
"Tranche B Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a)(ii).
<PAGE> 27
22
"Tranche B Term Loans" shall mean the term loans made by the Lenders to
the Borrower pursuant to clause (b) of Section 2.01. Each Tranche B Term Loan
shall be either a Eurodollar Term Loan or an ABR Term Loan.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Transition Services Agreement" shall mean the Transition Services
Agreement dated as of December 17, 1998, between the Seller and the Borrower.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, the term "Rate" shall include
the Adjusted LIBO Rate and the Alternate Base Rate.
"U.S. Manufacturing Agreement" shall mean the U.S. Product
Manufacturing Agreement dated as of December 17, 1998, between the Seller,
Hoechst Marion Roussel Deutschland GMBH, a German limited liability company and
the Borrower.
"Warrants" shall mean the warrants of the Borrower issued pursuant to
the Warrant Agreement dated as of December 18, 1998, between the Borrower and
Union Planters Bank, N.A., as warrant agent.
"Wholly Owned Subsidiary" shall mean a Subsidiary of which securities
(except for directors' qualifying shares) or other ownership interests
representing 100% of the equity or 100% of the ordinary voting power or 100% of
the general partnership interests are, at the time any determination is being
made, owned, controlled or held, directly or indirectly, by the Borrower or one
or more wholly owned subsidiaries of the Borrower.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance
<PAGE> 28
23
herewith. All computations required to be made hereunder to demonstrate pro
forma compliance with any covenant after giving effect to any acquisition,
investment, sale, disposition or similar event shall reflect on a pro forma
basis such event and, to the extent applicable, the historical earnings and cash
flows associated with the assets acquired or disposed of and any related
incurrence or reduction of Indebtedness, but shall not take into account any
projected synergies or similar benefits expected to be realized as a result of
such event.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, (a) to make a Tranche A Term Loan to the
Borrower on the Closing Date in a principal amount not to exceed its Tranche A
Commitment, (b) to make a Tranche B Term Loan to the Borrower on the Closing
Date in a principal amount not to exceed its Tranche B Commitment and (c) to
make Revolving Loans to the Borrower, at any time and from time to time on or
after the Closing Date and until the earlier of the Revolving Credit Maturity
Date and the termination of the Revolving Credit Commitment of such Lender in
accordance with the terms hereof, in an aggregate principal amount at any time
outstanding that will not result in such Lender's Revolving Credit Exposure
exceeding such Lender's Revolving Credit Commitment, provided that no more than
$40,000,000 of Revolving Loans will be drawn on the Closing Date. Within the
limits set forth in clause (c) of the preceding sentence and subject to the
terms, conditions and limitations set forth herein, the Borrower may borrow, pay
or prepay and reborrow Revolving Loans. Amounts paid or prepaid in respect of
Term Loans may not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan (other than Swingline Loans) shall
be made as part of a Borrowing consisting of Loans made by the Lenders ratably
in accordance with their applicable Commitments; provided, however, that the
failure of any Lender to make any Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make any
Loan required to be made by such other Lender). Except for Loans deemed made
pursuant to paragraph (f) below, the Loans comprising any Borrowing shall be in
an aggregate principal amount that is (i) an integral multiple of $1,000,000 and
not less than $1,000,000 or (ii) equal to the remaining available balance of the
applicable Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
pursuant to Section 2.03. Notwithstanding anything to the contrary contained
herein, all Borrowings made on the Closing Date shall be ABR Borrowings. Each
Swingline Loan shall be an ABR Loan. Each Lender may at its option make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement. Borrowings of more than one Type may be outstanding at
the same time; provided, however, that the Borrower shall not be entitled to
request any Borrowing that, if made, would result in more than ten Eurodollar
Borrowings outstanding
<PAGE> 29
24
hereunder at any time. For purposes of the foregoing, Borrowings having
different Interest Periods, regardless of whether they commence on the same
date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to paragraph (f) below,
each Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account in New
York City as the Administrative Agent may designate not later than 12:00 (noon),
New York City time, and the Administrative Agent shall promptly credit the
amounts so received to an account in the name of the Borrower designated by the
Borrower in the applicable Borrowing Request or, if a Borrowing shall not occur
on such date because any condition precedent herein specified shall not have
been met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, a rate determined by the Administrative Agent
to represent its cost of overnight or short-term funds (which determination
shall be conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such Borrowing for purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Borrowing if the Interest Period requested
with respect thereto would end after the Revolving Credit Maturity Date.
(f) If the Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.23(e) in respect of any L/C
Disbursement within the time specified in such Section, the Issuing Bank will
promptly notify the Administrative Agent of the amount of such L/C Disbursement
and the Administrative Agent will promptly notify each Revolving Credit Lender
of such amount and its Pro Rata Percentage thereof. Each Revolving Credit Lender
shall pay by wire transfer of immediately available funds to the Administrative
Agent not later than 2:00 p.m., New York City time, on such date (or, if such
Revolving Credit Lender shall have received such notice later than 12:00 (noon),
New York City time, on any day, not later than 11:00 a.m., New York City time,
on the immediately following Business Day), an amount equal to such Lender's Pro
Rata Percentage of such L/C Disbursement (it being understood that such amount
shall be deemed to constitute an ABR Revolving Loan of such Lender and such
payment shall be deemed to have reduced the L/C Exposure), and the
Administrative Agent will promptly pay to the Issuing Bank amounts so received
by it from the Revolving Credit Lenders. The Administrative Agent will promptly
pay to the Issuing Bank any amounts received by it from the Borrower pursuant to
Section 2.23(e) prior to the time that any Revolving Credit Lender makes any
payment
<PAGE> 30
25
pursuant to this paragraph (f); any such amounts received by the Administrative
Agent thereafter will be promptly remitted by the Administrative Agent to the
Revolving Credit Lenders that shall have made such payments and to the Issuing
Bank, as their interests may appear. If any Revolving Credit Lender shall not
have made its Pro Rata Percentage of such L/C Disbursement available to the
Administrative Agent as provided above, such Lender and the Borrower severally
agree to pay interest on such amount, for each day from and including the date
such amount is required to be paid in accordance with this paragraph to but
excluding the date such amount is paid, to the Administrative Agent for the
account of the Issuing Bank at (i) in the case of the Borrower, a rate per annum
equal to the interest rate applicable to ABR Revolving Loans pursuant to Section
2.06(a), and (ii) in the case of such Lender, for the first such day, the
Federal Funds Effective Rate, and for each day thereafter, the Alternate Base
Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing
(other than a Swingline Loan or a deemed Borrowing pursuant to Section 2.02(f),
as to which this Section 2.03 shall not apply), the Borrower shall hand deliver
or telecopy to the Administrative Agent a duly completed Borrowing Request (a)
in the case of a Eurodollar Borrowing, not later than 12:00 (noon), New York
City time, three Business Days before a proposed Borrowing, and (b) in the case
of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the
Business Day of a proposed Borrowing. Each Borrowing Request shall be
irrevocable, shall be signed by or on behalf of the Borrower and shall specify
the following information: (i) whether the Borrowing then being requested is to
be a Tranche A Term Borrowing, a Tranche B Term Borrowing or a Revolving Credit
Borrowing, and, subject to the second sentence of Section 2.02(b), whether such
Borrowing is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of
such Borrowing (which shall be a Business Day), (iii) the number and location of
the account to which funds are to be disbursed (which shall be an account that
complies with the requirements of Section 2.02(c)); (iv) the amount of such
Borrowing; and (v) if such Borrowing is to be a Eurodollar Borrowing, the
Interest Period with respect thereto; provided, however, that, notwithstanding
any contrary specification in any Borrowing Request, each requested Borrowing
shall comply with the requirements set forth in Section 2.02. If no election as
to the Type of Borrowing is specified in any such notice, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period with respect to any
Eurodollar Borrowing is specified in any such notice, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. The
Administrative Agent shall promptly advise the applicable Lenders of any notice
given pursuant to this Section 2.03 (and the contents thereof), and of each
Lender's portion of the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender (i) the then unpaid principal amount of each Revolving
Loan on the Revolving Credit Maturity Date, (ii) the then unpaid principal
amount of each Swingline Loan on the last day of the Interest Period applicable
to such Loan or, if earlier, on the Revolving Credit Maturity Date and (iii) the
principal amount of each Term Loan of such Lender as provided in Section 2.11.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
<PAGE> 31
26
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower or any Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) above shall be prima facie evidence of the existence and amounts of
the obligations therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the event
any Lender shall request and receive a promissory note payable to such Lender
and its registered assigns, the interests represented by such note shall at all
times (including after any assignment of all or part of such interests pursuant
to Section 9.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender,
through the Administrative Agent, on the last business day of March, June,
September and December in each year and on the date on which the last of the
Commitments of such Lender shall expire or be terminated as provided herein, a
commitment fee (a "Commitment Fee") equal to the Applicable Percentage per annum
in effect from time to time on the average daily unused amount of the
Commitments of such Lender (other than the Swingline Commitment) during the
preceding quarter (or other period commencing with the date hereof or ending
with the date on which the last of the Commitments of such Lender shall expire
or be terminated). All Commitment Fees shall be computed on the basis of the
actual number of days elapsed in a year of 365 days. The Commitment Fee due to
each Lender shall commence to accrue on the date hereof and shall cease to
accrue on the date on which the last of the Commitments of such Lender shall
expire or be terminated as provided herein. For purposes of calculating
Commitment Fees only, no portion of the Revolving Credit Commitments shall be
deemed utilized by virtue of any Swingline Loan being outstanding.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administrative fees set forth in the Fee Letter at the times and in
the amounts specified therein (the "Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender,
through the Administrative Agent, on the last business day of March, June,
September and December of each year and on the date on which the Revolving
Credit Commitment of such Lender shall be terminated as provided herein, a fee
(an "L/C Participation Fee") calculated on such Lender's Pro Rata Percentage of
the average daily aggregate L/C Exposure (excluding the portion thereof
attributable to unreimbursed L/C Disbursements) during the preceding quarter (or
shorter period commencing with the date hereof or ending with the Revolving
Credit Maturity Date or the date on which all Letters of Credit have been
canceled or have expired and the Revolving Credit Commitments of all Lenders
shall have been terminated) at a rate equal to the Applicable Percentage from
time to time used to determine the interest rate on Revolving Credit Borrowings
comprised of Eurodollar Loans pursuant to Section 2.06, and (ii) to the Issuing
Bank with respect to each Letter of Credit the standard fronting, issuance and
drawing fees specified from time to time by the Issuing Bank (the "Issuing Bank
Fees").
<PAGE> 32
27
All L/C Participation Fees and Issuing Bank Fees shall be computed on the basis
of the actual number of days elapsed in a year of 360 days.
All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the Issuing Bank. Once paid, none of the Fees shall be refundable under any
circumstances; provided, however, that the foregoing shall in no event
constitute a waiver of or otherwise affect any claims the Borrower may have
against any other party to this Agreement. Notwithstanding any other provision
in this Section 2.05, any Fees accrued hereunder prior to the Restatement Date
will be deemed to have accrued at the rates provided for in this Agreement as in
effect prior to the Restatement Date.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing, including each Swingline
Loan, shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be, when the Alternate
Base Rate is determined by reference to the Prime Rate and over a year of 360
days at all other times) at a rate per annum equal to the Alternate Base Rate
plus (x) in the case of Revolving Loans and Tranche A Term Loans, the Applicable
Percentage in effect from time to time and (y) in the case of Tranche B Term
Loans, 2.75%.
(b) Subject to the provisions of Section 2.07, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus (x) in the case of Revolving Loans and Tranche A Term Loans, the Applicable
Percentage in effect from time to time and (y) in the case of Tranche B Term
Loans, 3.75%.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest
Period or day within an Interest Period, as the case may be, shall be determined
by the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
the Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to but excluding the date of actual
payment (after as well as before judgment) (a) in the case of overdue principal,
at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus 2%
per annum and (b) in all other cases, at the rate per annum applicable at such
time to ABR Loans plus 2% per annum.
SECTION 2.08. Alternate Rate of Interest. In the event and on each
occasion that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not exceed
the cost to any Lender of making or maintaining its Eurodollar Loan during such
Interest Period, or that reasonable means do not exist for ascertaining the
Adjusted LIBO Rate, the Administrative Agent shall, as soon as practicable
thereafter, give
<PAGE> 33
28
written or telecopy notice of such determination to the Borrower and the
Lenders. In the event of any such determination, until the Administrative Agent
shall have advised the Borrower and the Lenders that the circumstances giving
rise to such notice no longer exist, any request by the Borrower for a
Eurodollar Borrowing pursuant to Section 2.03 or 2.10 shall be deemed to be a
request for an ABR Borrowing. Each determination by the Administrative Agent
hereunder shall be conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Term
Loan Commitments shall automatically terminate at 5:00 p.m., New York City time,
on the Closing Date. The Revolving Credit Commitments, the Swingline Commitment
and the L/C Commitment shall automatically terminate at 5:00 p.m., New York City
time, on the Revolving Credit Maturity Date. Notwithstanding the foregoing, all
the Commitments shall automatically terminate at 5:00 p.m., New York City time,
on December 31, 1998, if the initial Credit Event shall not have occurred by
such time.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Tranche A Commitments, the Tranche B Commitments or the Revolving Credit
Commitments; provided, however, that (i) each partial reduction of the Tranche A
Commitments, the Tranche B Commitments or the Revolving Credit Commitments shall
be in an integral multiple of $1,000,000 and in a minimum amount of $5,000,000
and (ii) the Total Revolving Credit Commitment shall not be reduced to an amount
that is less than the sum of the Aggregate Revolving Credit Exposure at the
time.
(c) The Revolving Credit Commitments shall be automatically reduced at
the time and by the amount of any prepayment of Revolving Loans or cash
collateralization of Letters of Credit that is required (or that would be
required if the Revolving Credit Commitments were utilized in full) pursuant to
Section 2.13 (other than Section 2.13(g)(i)(B)).
(d) Each reduction in the Tranche A Commitments, the Tranche B
Commitments or the Revolving Credit Commitments hereunder shall be made ratably
among the Lenders in accordance with their respective applicable Commitments.
The Borrower shall pay to the Administrative Agent for the account of the
applicable Lenders, on the date of each termination or reduction, the Commitment
Fees on the amount of the Commitments so terminated or reduced accrued to but
excluding the date of such termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 (noon), New York City time, one
Business Day prior to conversion, to convert any Eurodollar Borrowing into an
ABR Borrowing, (b) not later than 12:00 (noon), New York City time, three
Business Days prior to conversion or continuation, to convert any ABR Borrowing
(other than a Swingline Loan) into a Eurodollar Borrowing or to continue any
Eurodollar Borrowing as a Eurodollar Borrowing for an additional Interest
Period, and (c) not later than 12:00 (noon), New York City time, three Business
Days prior to conversion, to convert the Interest Period with respect to any
Eurodollar Borrowing to another permissible Interest Period, subject in each
case to the following:
(i) each conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts
of the Loans comprising the converted or continued Borrowing;
<PAGE> 34
29
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a)
and (b) regarding the principal amount and maximum number of Borrowings
of the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the
new Loan of such Lender resulting from such conversion and reducing the
Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued interest on any Eurodollar Loan
(or portion thereof) being converted shall be paid by the Borrower at
the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower
shall pay, upon demand, any amounts due to the Lenders pursuant to
Section 2.16;
(v) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as
a Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be
converted into or continued as a Eurodollar Borrowing by reason of the
immediately preceding clause shall be automatically converted at the
end of the Interest Period in effect for such Borrowing into an ABR
Borrowing;
(vii) no Interest Period may be selected for any Tranche A
Term Borrowing or Tranche B Term Borrowing that is a Eurodollar
Borrowing that would end later than a Term Loan Repayment Date
occurring on or after the first day of such Interest Period if, after
giving effect to such selection, the aggregate outstanding amount of
(A) the Tranche A Term Borrowings or Tranche B Term Borrowings, as the
case may be, that are Eurodollar Borrowings with Interest Periods
ending on or prior to such Term Loan Repayment Date and (B) the Tranche
A Term Borrowings or Tranche B Term Borrowings, as the case may be,
that are ABR Borrowings would not be at least equal to the principal
amount of Tranche A Term Borrowings or Tranche B Term Borrowings to be
paid on such Term Loan Repayment Date; and
(viii) upon notice to the Borrower from the Administrative
Agent given at the request of the Required Lenders, after the
occurrence and during the continuance of a Default or Event of Default,
no outstanding Loan may be converted into, or continued as, a
Eurodollar Loan.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurodollar Borrowing or
an ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given
<PAGE> 35
30
notice in accordance with this Section 2.10 to continue any Borrowing into a
subsequent Interest Period (and shall not otherwise have given notice in
accordance with this Section 2.10 to convert such Borrowing), such Borrowing
shall, at the end of the Interest Period applicable thereto (unless repaid
pursuant to the terms hereof), automatically be continued into a new Interest
Period as an ABR Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) (i) The Borrower shall
pay to the Administrative Agent, for the accounts of the Lenders, on the dates
set forth below, or if any such date is not a Business Day, on the next
preceding Business Day (each such date being a "Tranche A Term Loan Repayment
Date"), a principal amount of the Tranche A Term Loans equal to the amount set
forth below for such date (subject to adjustment from time to time pursuant to
Sections 2.11(b), 2.12 and 2.13(i)), together in each case with accrued and
unpaid interest on the principal amount to be paid to but excluding the date of
such payment:
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
March 31, 1999 1,875,000
June 30, 1999 1,875,000
September 30, 1999 1,875,000
December 31, 1999 1,875,000
March 31, 2000 3,750,000
June 30, 2000 3,750,000
September 30, 2000 3,750,000
December 31, 2000 3,750,000
March 31, 2001 5,625,000
June 30, 2001 5,625,000
September 30, 2001 5,625,000
December 31, 2001 5,625,000
March 31, 2002 7,500,000
June 30, 2002 7,500,000
September 30, 2002 7,500,000
December 31, 2002 7,500,000
March 31, 2003 9,375,000
June 30, 2003 9,375,000
September 30, 2003 9,375,000
December 31, 2003 9,375,000
March 31, 2004 9,375,000
June 30, 2004 9,375,000
September 30, 2004 9,375,000
December 22, 2004 9,375,000
</TABLE>
(ii) The Borrower shall pay to the Administrative Agent, for the
accounts of the Lenders, on the dates set forth below or, if any such date is
not a Business Day, on the next preceding Business Day (each such date being a
"Tranche B Term Loan Repayment Date"), a principal amount of the Tranche B Term
Loans equal to the amount set forth below for such date (subject to adjustment
from time to time pursuant to Sections 2.11(b), 2.12 and
<PAGE> 36
31
2.13(i)), together in each case with accrued and unpaid interest on the
principal amount to be paid to but excluding the date of such payment:
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
March 31, 1999 687,500
June 30, 1999 687,500
September 30, 1999 687,500
December 31, 1999 687,500
March 31, 2000 687,500
June 30, 2000 687,500
September 30, 2000 687,500
December 31, 2000 687,500
March 31, 2001 687,500
June 30, 2001 687,500
September 30, 2001 687,500
December 31, 2001 687,500
March 31, 2002 687,500
June 30, 2002 687,500
September 30, 2002 687,500
December 31, 2002 687,500
March 31, 2003 687,500
June 30, 2003 687,500
September 30, 2003 687,500
December 31, 2003 687,500
March 31, 2004 687,500
June 30, 2004 687,500
September 30, 2004 687,500
December 31, 2004 687,500
March 31, 2005 32,312,500
June 30, 2005 32,312,500
September 30, 2005 32,312,500
December 31, 2005 32,312,500
March 31, 2006 32,312,500
June 30, 2006 32,312,500
September 30, 2006 32,312,500
December 22, 2006 32,312,500
</TABLE>
(b) In the event and on each occasion that any Term Loan Commitments
shall be reduced or shall expire or terminate other than as a result of the
making of a Term Loan, the installments payable on each Term Loan Repayment Date
shall be reduced pro rata by an aggregate amount equal to the amount of such
reduction, expiration or termination.
(c) To the extent not previously paid, all Tranche A Term Loans and
Tranche B Term Loans shall be due and payable on the Tranche A Maturity Date and
Tranche B Maturity Date, respectively, together with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of
payment.
<PAGE> 37
32
(d) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Prepayment. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, upon at
least three Business Days' prior written or telecopy notice (or telephone notice
promptly confirmed by written or telecopy notice) to the Administrative Agent
before 11:00 a.m., New York City time; provided, however, that each partial
prepayment shall be in an amount that is an integral multiple of $1,000,000 and
not less than $1,000,000.
(b) If an Event of Default has occurred or is continuing, optional
prepayments of Term Loans shall be allocated pro rata between the
then-outstanding Tranche A Term Loans and Tranche B Term Loans and applied pro
rata against the remaining scheduled installments of principal due in respect of
the Tranche A Term Loans and Tranche B Term Loans under Sections 2.11(a)(i) and
(ii), respectively. If no Event of Default has occurred or is continuing,
optional prepayments of Term Loans shall be allocated between the Tranche A Term
Loans and the Tranche B Term Loans as directed by the Borrower.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty.
All prepayments under this Section 2.12 shall be accompanied by accrued interest
on the principal amount being prepaid to the date of payment.
(d) Notwithstanding the foregoing, any voluntary prepayment of Tranche
B Term Loans made at any time (i) from the Closing Date until the first
anniversary thereof will be in an amount equal to 102% of the principal amount
of such loans prepaid and (ii) from the first anniversary of the Closing Date
until the second anniversary of the Closing Date will be in an amount equal to
101% of the principal amount of such loans prepaid.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any
termination of all the Revolving Credit Commitments, the Borrower shall repay or
prepay all its outstanding Revolving Credit Borrowings and all outstanding
Swingline Loans on the date of such termination. In the event of any partial
reduction of the Revolving Credit Commitments, then (i) at or prior to the
effective date of such reduction, the Administrative Agent shall notify the
Borrower and the Revolving Credit Lenders of the Aggregate Revolving Credit
Exposure after giving effect thereto and (ii) if the Aggregate Revolving Credit
Exposure would exceed the Total Revolving Credit Commitment after giving effect
to such reduction or termination, then the Borrower shall, on the date of such
reduction or termination, repay or prepay Revolving Credit Borrowings or
Swingline Loans (or a combination thereof) in an amount sufficient to eliminate
such excess.
(b) Not later than the third Business Day following the completion of
any Asset Sale, the Borrower shall apply 100% of the Net Cash Proceeds received
with respect thereto to prepay outstanding Term Loans in accordance with
paragraph (i) below (or, after the Term Loans shall have been prepaid in full,
to prepay Revolving Loans or Swingline Loans or, if no such Loans are
outstanding, to cash collateralize Letters of Credit).
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(c) In the event that, at any time, (i) the Borrower does not use any
or all of the Net Cash Proceeds (deposited in an account with the Administrative
Agent pursuant to clause (iii) of the proviso contained in the definition of
"Asset Sale" in Section 1.01) from the sale of a brand name pharmaceutical
product line to purchase additional brand name pharmaceutical product lines
within six months of the date of closing of such sale or (ii) the aggregate
amount deposited in all such accounts exceeds $50,000,000 (any such amounts
described in clause (i) or (ii) above being called "Excess Proceeds"), the
Borrower shall apply 100% of the Excess Proceeds to prepay outstanding Term
Loans in accordance with paragraph (i) below (or, after the Term Loans shall
have been prepaid in full, to prepay Revolving Loans or Swingline Loans or, if
no such Loans are outstanding, to cash collateralize Letters of Credit).
(d) In the event and on each occasion that an Equity Issuance occurs,
the Borrower shall, substantially simultaneously with (and in any event not
later than the third Business Day next following) the occurrence of such Equity
Issuance, apply 50% of the Net Cash Proceeds therefrom (excluding any Net Cash
Proceeds used to repay or prepay the Seller Notes, the Bridge Loans or the
Exchange Notes) to prepay outstanding Term Loans in accordance with paragraph
(i) below (or, after the Term Loans shall have been prepaid in full, to prepay
Revolving Loans or Swingline Loans or, if no such Loans are outstanding, to cash
collateralize Letters of Credit).
(e) Not later than the earlier of (i) 90 days after the end of each
fiscal year of the Borrower, commencing with the fiscal year ending December 31,
1998, and (ii) the date on which the financial statements with respect to such
fiscal year are delivered pursuant to Section 5.03(a), the Borrower shall prepay
outstanding Term Loans in accordance with paragraph (i) below (or, after the
Term Loans shall have been prepaid in full, to prepay Revolving Loans or
Swingline Loans or, if no such Loans are outstanding, to cash collateralize
Letters of Credit) in an aggregate principal amount equal to 50% of Excess Cash
Flow for such fiscal year.
(f) In the event that the Borrower or any Subsidiary shall receive Net
Cash Proceeds from the incurrence or disposition of any Indebtedness (other than
Indebtedness permitted under Section 6.01), the Borrower shall, substantially
simultaneously with (and in any event not later than the third Business Day next
following) the receipt of such Net Cash Proceeds, apply an amount equal to 100%
of such Net Cash Proceeds to prepay outstanding Term Loans in accordance with
paragraph (i) below (or, after the Term Loans shall have been prepaid in full,
to prepay Revolving Loans or Swingline Loans or, if no such Loans are
outstanding, to cash collateralize Letters of Credit).
(g) In the event that the Borrower or any Subsidiary shall receive Net
Cash Proceeds in excess of $75,000,000 from the incurrence of Indebtedness
permitted under clause (d) of Section 6.01, the Borrower shall, substantially
simultaneously with (and in any event not later than the Business Day next
following) the receipt of such Net Cash Proceeds, (i) apply such excess Net Cash
Proceeds (A) first, to prepay outstanding Term Loans in accordance with
paragraph (i) below (or, after the Term Loans shall have been prepaid in full,
to prepay Revolving Loans or Swingline Loans or, if no such Loans are
outstanding, to cash collateralize Letters of Credit) until the amount prepaid
under this clause (A) shall equal $50,000,000, and (B) then, to prepay Revolving
Loans (without any reduction of the Revolving Credit Commitments) until the
amount prepaid under this clause (B) shall equal $25,000,000 (or, if less than
$25,000,000 in Revolving Loans are outstanding at such time, to prepay Tranche A
Term Loans).
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(h) In the event the Borrower or any Subsidiary shall receive or hold
Net Cash Proceeds from any Asset Sale, Equity Issuance or incurrence of
Indebtedness or other amounts that would, if not applied to the prepayment of
senior Indebtedness or to purchase assets, be required to be applied to prepay,
redeem, repurchase or defease any Indebtedness that is subordinated in right of
payment to any of the Obligations (except as contemplated by Section 6.15), and
if the Borrower shall not apply such Net Cash Proceeds to the voluntary
prepayment of the Loans or to purchase assets, in either case in such manner as
to avoid the requirement that subordinated Indebtedness be so prepaid, redeemed,
repurchased or defeased, the Borrower shall, prior to the date on which such Net
Cash Proceeds or other amounts would be required to be applied to prepay,
redeem, repurchase or defease any such subordinated Indebtedness, apply an
amount equal to 100% of such Net Cash Proceeds or other amounts to prepay
outstanding Term Loans in accordance with paragraph (i) below (or, after the
Term Loans shall have been prepaid in full, to prepay Revolving Loans or
Swingline Loans or, if no such Loans are outstanding, to cash collateralize
Letters of Credit).
(i) Mandatory prepayments of outstanding Term Loans under this
Agreement shall, subject to paragraph (l) below, be allocated pro rata between
the then-outstanding Tranche A Term Loans and Tranche B Term Loans and applied
pro rata against the remaining scheduled installments of principal due in
respect of Tranche A Term Loans or Tranche B Term Loans under Section 2.11(a)(i)
and (ii), respectively.
(j) The Borrower shall deliver to the Administrative Agent, at the time
of each prepayment required under this Section 2.13, (i) a certificate signed
by a Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent
practicable, at least three days prior written notice of such prepayment. Each
notice of prepayment shall specify the prepayment date, the Type of each Loan
being prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject
to Section 2.16, but shall otherwise be without premium or penalty.
(k) Amounts to be applied pursuant to this Section 2.13 to the
prepayment of Term Loans and Revolving Loans shall be applied first to reduce
outstanding ABR Term Loans or ABR Revolving Loans, as the case may be, and then
to prepay Eurodollar Term Loans or Eurodollar Revolving Loans, as the case may
be.
(l) Any Tranche B Lender may elect, by notice to the Administrative
Agent in writing (or by telephone or telecopy promptly confirmed in writing) at
least one Business Day prior to any prepayment of Tranche B Term Loans required
to be made by the Borrower for the account of such Lender pursuant to this
Section 2.13, to cause all or a portion of such prepayment to be applied instead
to prepay Tranche A Term Loans in accordance with paragraph (i) above (and any
prepayment or portion thereof as to which such an election is made shall be so
applied); provided that no Tranche B Lender shall be entitled to make such
election to the extent that at the time thereof no Tranche A Term Loans are
outstanding.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender or the Issuing
Bank of the principal of or interest on any
<PAGE> 40
35
Eurodollar Loan made by such Lender or any Fees or other amounts payable
hereunder (other than changes in respect of taxes imposed on the overall net
income of such Lender or the Issuing Bank by the jurisdiction in which such
Lender or the Issuing Bank has its principal office or by any political
subdivision or taxing authority therein), or shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by any Lender or the
Issuing Bank (except any such reserve requirement which is reflected in the
Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the
London interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or participation
therein, and the result of any of the foregoing shall be to increase the cost to
such Lender or the Issuing Bank of making or maintaining any Eurodollar Loan or
increase the cost to any Lender of issuing or maintaining any Letter of Credit
or purchasing or maintaining a participation therein or to reduce the amount of
any sum received or receivable by such Lender or the Issuing Bank hereunder
(whether of principal, interest or otherwise) by an amount deemed by such Lender
or the Issuing Bank to be material, then the Borrower will pay to such Lender or
the Issuing Bank, as the case may be, upon demand such additional amount or
amounts as will compensate such Lender or the Issuing Bank, as the case may be,
for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change after the date hereof in any
such law, rule, regulation, agreement or guideline (whether such law, rule,
regulation, agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or the Issuing Bank or any Lender's or the
Issuing Bank's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Governmental Authority
has or would have the effect of reducing the rate of return on such Lender's or
the Issuing Bank's capital or on the capital of such Lender's or the Issuing
Bank's holding company, if any, as a consequence of this Agreement or the Loans
made or participations in Letters of Credit purchased by such Lender pursuant
hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a
level below that which such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company could have achieved but for such applicability,
adoption, change or compliance (taking into consideration such Lender's or the
Issuing Bank's policies and the policies of such Lender's or the Issuing Bank's
holding company with respect to capital adequacy) by an amount deemed by such
Lender or the Issuing Bank to be material, then from time to time the Borrower
shall pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank
or such Lender's or the Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as applicable, as specified in paragraph (a) or (b), together
with supporting documentation or computations, above shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the Issuing Bank the amount shown as due on any such certificate
delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing
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36
Bank's right to demand such compensation. The protection of this Section shall
be available to each Lender and the Issuing Bank regardless of any possible
contention of the invalidity or inapplicability of the law, rule, regulation,
agreement, guideline or other change or condition that shall have occurred or
been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
ABR Loans will not thereafter (for such duration) be converted into
Eurodollar Loans), whereupon any request for a Eurodollar Borrowing (or
to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing for an additional Interest Period) shall, as to
such Lender only, be deemed a request for an ABR Loan (or a request to
continue an ABR Loan as such for an additional Interest Period or to
convert a Eurodollar Loan into an ABR Loan, as the case may be), unless
such declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar
Loans made by it be converted to ABR Loans, in which event all such
Eurodollar Loans shall be automatically converted to ABR Loans as of
the effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of (a) any event, other than a default by such Lender in the
performance of its obligations hereunder, which results in (i) such Lender
receiving or being deemed to receive any amount on account of the principal of
any Eurodollar Loan prior to the end of the Interest Period in effect therefor,
(ii) the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of
the Interest Period with respect to any Eurodollar Loan, in each case other than
on the last day of the Interest Period in effect therefor, or (iii) any
Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be
made pursuant to a conversion or continuation under Section 2.10) not being made
after notice of such Loan shall have been given by the Borrower hereunder (any
of the events referred to in this clause (a) being called a "Breakage
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37
Event") or (b) any default in the making of any payment or prepayment required
to be made hereunder. In the case of any Breakage Event, such loss shall include
an amount equal to the excess, as reasonably determined by such Lender, of (i)
its cost of obtaining funds for the Eurodollar Loan that is the subject of such
Breakage Event for the period from the date of such Breakage Event to the last
day of the Interest Period in effect (or that would have been in effect) for
such Loan over (ii) the amount of interest likely to be realized by such Lender
in redeploying the funds released or not utilized by reason of such Breakage
Event for such period. A certificate of any Lender setting forth any amount or
amounts which such Lender is entitled to receive pursuant to this Section 2.16,
together with supporting documentation or computations, shall be delivered to
the Borrower and shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as provided below in this
Section 2.17 with respect to Swingline Loans and as required under Sections
2.13(k) and 2.15, each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each payment of the Commitment
Fees, each reduction of the Term Loan Commitments or the Revolving Credit
Commitments and each conversion of any Borrowing to or continuation of any
Borrowing as a Borrowing of any Type shall be allocated pro rata among the
Lenders in accordance with their respective applicable Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Loans). For purposes of
determining the available Revolving Credit Commitments of the Lenders at any
time, each outstanding Swingline Loan shall be deemed to have utilized the
Revolving Credit Commitments of the Lenders (including those Lenders which shall
not have made Swingline Loans) pro rata in accordance with such respective
Revolving Credit Commitments. Each Lender agrees that in computing such Lender's
portion of any Borrowing to be made hereunder, the Administrative Agent may, in
its discretion, round each Lender's percentage of such Borrowing to the next
higher or lower whole dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans or L/C Disbursement as a result of which the unpaid principal
portion of its Tranche A Term Loans, Tranche B Term Loans and Revolving Loans
and participations in L/C Disbursements shall be proportionately less than the
unpaid principal portion of the Tranche A Term Loans, Tranche B Term Loans and
Revolving Loans and participations in L/C Disbursements of any other Lender, it
shall be deemed simultaneously to have purchased from such other Lender at face
value, and shall promptly pay to such other Lender the purchase price for, a
participation in the Tranche A Term Loans, Tranche B Term Loans and Revolving
Loans and L/C Exposure, as the case may be, of such other Lender, so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate unpaid principal amount of the Tranche A Term
Loans, Tranche B Term Loans and Revolving Loans and L/C Exposure and
participations in Tranche A Term Loans, Tranche B Term Loans and Revolving Loans
and L/C Exposure held by all the Lenders; provided, however, that (i) if any
such participations are purchased pursuant to this Section 2.18 and the payment
giving rise thereto shall thereafter be recovered, such participations shall be
rescinded to the extent of such recovery and the purchase price restored without
interest, and (ii) the provisions of this paragraph shall not be construed to
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apply to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in L/C Disbursements to any assignee or participant,
other than to the Borrower or any of the Subsidiaries or any Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
expressly consents to the foregoing arrangements and agrees that any Lender
holding a participation in a Term Loan or Revolving Loan or L/C Disbursement
deemed to have been so purchased may exercise any and all rights of banker's
lien, setoff or counterclaim with respect to any and all moneys owing by the
Borrower to such Lender by reason of such participation as fully as if such
Lender had made a Loan directly to the Borrower in the amount of such
participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not later
than 1:00 p.m., New York City time, on the date when due in immediately
available dollars, without setoff, defense or counterclaim. Any amounts received
after such time on any date may, in the discretion of the Administrative Agent,
be deemed to have been received on the next succeeding Business Day for purposes
of calculating interest thereon. Each such payment (other than (i) Issuing Bank
Fees, which shall be paid directly to the Issuing Bank, (ii) principal of and
interest on Swingline Loans, which shall be paid directly to the Swingline
Lender except as otherwise provided in Section 2.22(e) and (iii) payments
pursuant to Sections 2.14, 2.16, 2.20 and 9.05 shall be made directly to the
persons entitled thereto and payments pursuant to other Loan Documents shall be
made to the persons specified therein) shall be made to the Administrative Agent
at its offices at Eleven Madison Avenue, New York, New York 10010, or as
otherwise directed.
(b) The Administrative Agent shall distribute any such payments
received by it for the account of any other person to the appropriate recipient
promptly following receipt thereof. Whenever any payment (including principal of
or interest on any Borrowing or any Fees or other amounts) hereunder or under
any other Loan Document shall become due, or otherwise would occur, on a day
that is not a Business Day, such payment may be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of interest or Fees, if applicable.
(c) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed L/C
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed L/C Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed
L/C Disbursements then due to such parties.
SECTION 2.20. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank, as the case may be, receives an amount equal to the sum it would
have
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39
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or the Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall, after having received from the
Borrower notice of the availability of such exemptions from or reductions of
withholding tax, as well as all such appropriate documentation prescribed by
applicable law, deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate.
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
the Issuing Bank delivers a notice described in Section 2.15 or (iii) the
Borrower is required to pay any amount to any Lender or the Issuing Bank or any
Governmental Authority on account of any Lender or the Issuing Bank pursuant to
Section 2.20, the Borrower may, at its sole expense and effort (including with
respect to the processing and recordation fee referred to in Section 9.04(b)),
upon notice to such Lender or the Issuing Bank and the Administrative Agent,
require such Lender or the Issuing Bank to transfer and assign, without recourse
(in accordance with and subject to the restrictions contained in Section 9.04),
all of its interests, rights and obligations under this Agreement to an assignee
that shall assume such assigned obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (w) such assignment
will result in a reduction in the claim for compensation under Section 2.14 or
in the withdrawal of the notice under Section 2.14 or in the reduction of
payments under
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Section 2.20, as the case may be, (x) such assignment shall not conflict with
any law, rule or regulation or order of any court or other Governmental
Authority having jurisdiction, (y) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Credit
Commitment is being assigned, of the Issuing Bank and the Swingline Lender),
which consent shall not unreasonably be withheld, and (z) the Borrower or such
assignee shall have paid to the affected Lender or the Issuing Bank in
immediately available funds an amount equal to the sum of the principal of and
interest accrued to the date of such payment on the outstanding Loans or L/C
Disbursements of such Lender or the Issuing Bank, respectively, plus all Fees
and other amounts accrued for the account of such Lender or the Issuing Bank
hereunder (including any amounts under Section 2.14 and Section 2.16); provided
further that, if prior to any such transfer and assignment the circumstances or
event that resulted in such Lender's or the Issuing Bank's claim for
compensation under Section 2.14 or notice under Section 2.15 or the amounts paid
pursuant to Section 2.20, as the case may be, cease to cause such Lender or the
Issuing Bank to suffer increased costs or reductions in amounts received or
receivable or reduction in return on capital, or cease to have the consequences
specified in Section 2.15, or cease to result in amounts being payable under
Section 2.20, as the case may be (including as a result of any action taken by
such Lender or the Issuing Bank pursuant to paragraph (b) below), or if such
Lender or the Issuing Bank shall waive its right to claim further compensation
under Section 2.14 in respect of such circumstances or event or shall withdraw
its notice under Section 2.15 or shall waive its right to further payments under
Section 2.20 in respect of such circumstances or event, as the case may be, then
such Lender or the Issuing Bank shall not thereafter be required to make any
such transfer and assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation
under Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice
described in Section 2.15 or (iii) the Borrower is required to pay any amount to
any Lender, the Issuing Bank or any Governmental Authority on account of any
Lender or the Issuing Bank, pursuant to Section 2.20, then such Lender or the
Issuing Bank shall use reasonable efforts (which shall not require such Lender
or the Issuing Bank to incur an unreimbursed loss or unreimbursed cost or
expense or otherwise take any action inconsistent with its internal policies or
legal or regulatory restrictions or suffer any disadvantage or burden deemed by
it to be significant) (x) to file any certificate or document reasonably
requested in writing by the Borrower or (y) to assign its rights and delegate
and transfer its obligations hereunder to another of its offices, branches or
affiliates, if such filing or assignment would reduce its claims for
compensation under Section 2.14 or enable it to withdraw its notice pursuant to
Section 2.15 or would reduce amounts payable pursuant to Section 2.20, as the
case may be, in the future. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender or the Issuing Bank in connection with
any such filing or assignment, delegation and transfer.
SECTION 2.22. Swingline Loans. (a) Swingline Commitment. Subject to the
terms and conditions and relying upon the representations and warranties herein
set forth, the Swingline Lender agrees to make loans to the Borrower at any time
and from time to time on and after the Closing Date and until the earlier of the
Revolving Credit Maturity Date and the termination of the Revolving Credit
Commitments in accordance with the terms hereof, in an aggregate principal
amount at any time outstanding that will not result in (i) the aggregate
principal amount of all Swingline Loans exceeding $5,000,000 or (ii) the
Aggregate Revolving Credit Exposure, after giving effect to any Swingline Loan,
exceeding the Total Revolving Credit Commitment. Each Swingline Loan shall be in
a principal amount that is an integral multiple of $500,000. Within the
foregoing limits, the Borrower
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may borrow, pay or prepay and reborrow Swingline Loans hereunder, subject to the
terms, conditions and limitations set forth herein.
(b) Swingline Loans. The Borrower shall notify the Administrative Agent
by telecopy, or by telephone (confirmed by telecopy), not later than 10:00 a.m.,
New York City time, on the day of a proposed Swingline Loan. Such notice shall
be delivered on a Business Day, shall be irrevocable and shall refer to this
Agreement and shall specify the requested date (which shall be a Business Day)
and amount of such Swingline Loan. The Administrative Agent will promptly advise
the Swingline Lender of any notice received from the Borrower pursuant to this
paragraph (b). The Swingline Lender shall make each Swingline Loan available to
the Borrower by means of a credit to the general deposit account of the Borrower
with the Swingline Lender by 3:00 p.m., New York City time, on the day such
Swingline Loan is so requested.
(c) Prepayment. The Borrower shall have the right at any time and from
time to time to prepay any Swingline Loan, in whole or in part, upon giving
written or telecopy notice (or telephone notice promptly confirmed by written,
or telecopy notice) to the Swingline Lender and to the Administrative Agent
before 12:00 (noon), New York City time, on the date of prepayment at the
Swingline Lender's address for notices specified on Schedule 2.01. All principal
payments of Swingline Loans shall be accompanied by accrued interest on the
principal amount being repaid to the date of payment.
(d) Interest. Each Swingline Loan shall be an ABR Loan and, subject to
the provisions of Section 2.07, shall bear interest as provided in Section
2.06(a).
(e) Participations. The Swingline Lender may, by written notice given
to the Administrative Agent not later than 10:00 a.m., New York City time, on
any Business Day, require the Revolving Credit Lenders to acquire participations
on such Business Day in all or a portion of the Swingline Loans outstanding.
Such notice shall specify the aggregate amount of Swingline Loans in which
Revolving Credit Lenders will participate. The Administrative Agent will,
promptly upon receipt of such notice, give notice to each Revolving Credit
Lender, specifying in such notice such Lender's Pro Rata Percentage of such
Swingline Loan or Loans. In furtherance of the foregoing, each Revolving Credit
Lender hereby irrevocably, absolutely and unconditionally agrees, upon receipt
of notice as provided above, to pay to the Administrative Agent, for the account
of the Swingline Lender, such Revolving Credit Lender's Pro Rata Percentage of
such Swingline Loan or Loans. Each Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this
paragraph is irrevocable, absolute and unconditional and shall not be affected
by any circumstance whatsoever, including the occurrence and continuance of a
Default or an Event of Default or the termination of the Revolving Credit
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever; provided, however, that no
Lender shall be obligated to acquire participations in any Swingline Loan if a
Default or Event of Default exists and the Required Lenders have instructed the
Swingline Lender not to lend Swingline Loans. Each Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available funds,
in the same manner as provided in Section 2.02(c) with respect to Loans made by
such Lender (and Section 2.02(c) shall apply, mutatis mutandis, to the payment
obligations of the Lenders) and the Administrative Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Lenders. The
Administrative Agent shall notify the Borrower of any participations in any
Swingline Loan acquired pursuant to this paragraph and thereafter payments in
respect of such Swingline Loan shall be made to the
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42
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower in respect of a Swingline Loan after
receipt by the Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Administrative Agent; any such amounts
received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Lenders that shall have made their payments pursuant
to this paragraph and to the Swingline Lender, as their interests may appear.
The purchase of participations in a Swingline Loan pursuant to this paragraph
shall not relieve the Borrower of any default in the payment thereof.
SECTION 2.23. Letters of Credit. (a) General. The Borrower may request
the issuance of a Letter of Credit for its own account or for the account of any
Wholly Owned Subsidiary, in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank, at any time and from time to time while the
Revolving Credit Commitments remain in effect. This Section shall not be
construed to impose an obligation upon the Issuing Bank to issue any Letter of
Credit that is inconsistent with the terms and conditions of this Agreement.
(b) Notice of Issuance; Certain Conditions. In order to request the
issuance of a Letter of Credit, the Borrower shall hand deliver or telecopy to
the Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance) a notice requesting the issuance of a Letter of
Credit and setting forth the date of issuance, the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) below), the amount of
such Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare such Letter of Credit. A
Letter of Credit shall be issued only if, and upon issuance of each Letter of
Credit the Borrower shall be deemed to represent and warrant that, after giving
effect to such issuance (A) the L/C Exposure shall not exceed $10,000,000 and
(B) the Aggregate Revolving Credit Exposure shall not exceed the Total Revolving
Credit Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date and except that the Letters of Credit issued to support
the interest obligations of the Borrower on the Seller Notes shall expire on
December 27, 1999.
(d) Participations. By the issuance of a Letter of Credit and without
any further action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each Revolving Credit Lender, and each such Lender hereby
acquires from the applicable Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Pro Rata Percentage of the aggregate amount
available to be drawn under such Letter of Credit, effective upon the issuance
of such Letter of Credit. In consideration and in furtherance of the foregoing,
each Revolving Credit Lender hereby irrevocably, absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender's Pro Rata Percentage of each L/C Disbursement made by the Issuing
Bank and not reimbursed by the Borrower forthwith on the date due as provided in
Section 2.02(f). Each Revolving Credit Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is irrevocable, absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default or the termination of the
Revolving Credit Commitments,
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43
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, the Borrower shall pay or cause the Subsidiary
for whose account such Letter of Credit shall have been issued to pay to the
Administrative Agent an amount equal to such L/C Disbursement not later than two
hours after the Borrower shall have received notice from the Issuing Bank that
payment of such draft will be made, or, if the Borrower shall have received such
notice later than 10:00 a.m., New York City time, on any Business Day, not later
than 10:00 a.m., New York City time, on the immediately following Business Day.
(f) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other
right that the Borrower, any other party guaranteeing, or otherwise
obligated with, the Borrower, any Subsidiary or other Affiliate thereof
or any other person may at any time have against the beneficiary under
any Letter of Credit, the Issuing Bank, the Administrative Agent or any
Lender or any other person, whether in connection with this Agreement,
any other Loan Document or any other related or unrelated agreement or
transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; and
(vi) any other act, or omission to act, or delay of any kind
of the Issuing Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of the
Borrower's obligations hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing
<PAGE> 49
44
Bank's gross negligence or wilful misconduct in determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof; it is understood that the Issuing Bank may accept documents that appear
on their face to be in substantial compliance with the terms of a Letter of
Credit, without responsibility for further investigation, and make payment under
such Letter of Credit, unless, in the Issuing Bank's judgment, it has received
information that proves any such documents to be forged or fraudulent; provided
that the Issuing Bank shall not be liable in any respect for any error made as a
result of, or damages resulting from, the exercise of its judgment with regard
to any such documents if such judgment is made in good faith. The parties hereto
expressly agree that (i) the Issuing Bank's exclusive reliance on the documents
presented to it under such Letter of Credit as to any and all matters set forth
therein, including reliance on the amount of any draft presented under such
Letter of Credit, whether or not the amount due to the beneficiary thereunder
equals the amount of such draft and whether or not any document presented
pursuant to such Letter of Credit proves to be insufficient in any respect, if
such document on its face appears to be in substantial compliance with the term
of a Letter of Credit, and whether or not any other statement or any other
document presented pursuant to such Letter of Credit proves to be forged,
fraudulent or invalid or any statement therein proves to be inaccurate or untrue
in any respect whatsoever and (ii) any noncompliance in any immaterial respect
of the documents presented under such Letter of Credit with the terms thereof
shall, in each case, be deemed not to constitute wilful misconduct or gross
negligence of the Issuing Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly as possible
give telephonic notification, confirmed by telecopy, to the Administrative Agent
and the Borrower of such demand for payment and whether the Issuing Bank has
made or will make an L/C Disbursement thereunder; provided that any failure to
give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Revolving Credit Lenders with
respect to any such L/C Disbursement. The Administrative Agent shall promptly
give each Revolving Credit Lender notice thereof.
(h) Interim Interest. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the Borrower shall
reimburse such L/C Disbursement in full on such date, the unpaid amount thereof
shall bear interest for the account of the Issuing Bank, for each day from and
including the date of such L/C Disbursement, to but excluding the earlier of the
date of payment by the Borrower or the date on which interest shall commence to
accrue thereon as provided in Section 2.02(f), at the rate per annum that would
apply to such amount if such amount were an ABR Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing Bank may
resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to the Issuing Bank, the Administrative Agent and
the Lenders. Subject to the next succeeding paragraph, upon the acceptance of
any appointment as the Issuing Bank hereunder by a Lender that shall agree to
serve as a successor Issuing Bank, such successor shall succeed to and become
vested with all the interests, rights and obligations of the retiring Issuing
Bank and the retiring Issuing Bank shall be discharged from its obligations to
issue additional Letters of Credit hereunder. At the time such removal or
resignation shall become effective, the Borrower shall pay all accrued and
unpaid fees pursuant to Section 2.05(c)(ii). The acceptance of any appointment
as the Issuing Bank hereunder by a successor Lender shall
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be evidenced by an agreement entered into by such successor, in a form
satisfactory to the Borrower and the Administrative Agent, and, from and after
the effective date of such agreement, (i) such successor Lender shall have all
the rights and obligations of the previous Issuing Bank under this Agreement and
the other Loan Documents and (ii) references herein and in the other Loan
Documents to the term "Issuing Bank" shall be deemed to refer to such successor
or to any previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. After the resignation or removal of the
Issuing Bank hereunder, the retiring Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement and the other Loan Documents with respect to Letters of
Credit issued by it prior to such resignation or removal, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Credit Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit) thereof and of the amount
to be deposited, deposit in an account with the Collateral Agent, for the
benefit of the Revolving Credit Lenders, an amount in cash equal to the L/C
Exposure as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse the Issuing Bank for L/C
Disbursements for which it has not been reimbursed, (ii) be held for the
satisfaction of the reimbursement obligations of the Borrower for the L/C
Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Credit Lenders holding
participations in outstanding Letters of Credit representing greater than 50% of
the aggregate undrawn amount of all outstanding Letters of Credit), be applied
to satisfy the Obligations. If the Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured
or waived.
(k) Reporting Requirements of Issuing Bank. Within two Business Days
following the last day of each calendar month and on the last day of each March,
June, September and December, the Issuing Bank shall deliver to the
Administrative Agent a report detailing all activity during the preceding
calendar month with respect to any Letters of Credit issued by the Issuing Bank,
including the face amount, the account party, the beneficiary and the expiration
date of such Letters of Credit and any other information with respect thereto as
may be requested by the Administrative Agent.
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ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Agents, the Issuing Bank
and each of the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower and each of the
Subsidiaries (a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has all
requisite power and authority to own its property and assets and to carry on its
business as now conducted and as proposed to be conducted, (c) is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the
corporate power and authority to execute, deliver and perform its obligations
under each of the Loan Documents and each other agreement or instrument
contemplated hereby to which it is or will be a party and, in the case of the
Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by
each Loan Party of each of the Loan Documents, the Seller Notes, the Seller Note
Agreement, the Bridge Loan Agreement, the Exchange Notes, the Exchange Note
Indenture and the Additional Securities, the Borrowings hereunder, the creation
of the Liens provided for in the Security Documents and the completion of the
Acquisition (collectively, the "Transactions") (a) have been duly authorized by
all requisite corporate and, if required, stockholder action and (b) will not
(i) violate (A) any provision of law, statute, rule or regulation, or of the
certificate or articles of incorporation or other constitutive documents or
by-laws of the Borrower or any of the Subsidiaries, (B) any order of any
Governmental Authority or (C) any provision of any indenture, agreement or other
instrument to which the Borrower or any of the Subsidiaries is a party or by
which any of them or any of their property is or may be bound, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, or give rise to any right to accelerate
or to require the prepayment, repurchase or redemption of any obligation under
any such indenture, agreement or other instrument or (iii) result in the
creation or imposition of any Lien upon or with respect to any property or
assets now owned or hereafter acquired by the Borrower or any of the
Subsidiaries (other than any Lien created hereunder or under the Security
Documents).
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by the Borrower and constitutes, and each other Loan Document when
executed and delivered by each Loan Party thereto will constitute, a legal,
valid and binding obligation of the Borrower or such Loan Party enforceable
against the Borrower or such Loan Party in accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except for
(a) the filing of Uniform Commercial Code financing statements and filings with
the United States Patent and Trademark Office and the United States Copyright
Office, (b) recordation of the Mortgages, (c) filing requirements of the United
States Food and Drug Administration that arise as a result of the transfer by
the Seller to the Borrower pursuant to the Asset Purchase Agreement
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of the product Registrations (as such term is defined in the Asset Purchase
Agreement) and (d) such as have been made or obtained and are in full force and
effect.
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore
furnished to the Lenders its consolidated and consolidating balance sheets and
statements of income, stockholders' equity and cash flows (a) as of the end of
and for each fiscal year in the three-fiscal year period ended December 31,
1997, audited by and accompanied by the opinion of PricewaterhouseCoopers LLP,
independent public accountants, and (b) as of the end of and for the fiscal
quarter and the portion of the fiscal year ended September 30, 1998, reviewed
and commented on by PricewaterhouseCoopers LLP. Such financial statements
present fairly the financial condition and results of operations and cash flows
of the Borrower and its consolidated Subsidiaries as of such dates and for such
periods. Such balance sheets and the notes thereto disclose all material
liabilities, direct or contingent, of the Borrower and its consolidated
Subsidiaries as of the dates thereof. Such financial statements were prepared in
accordance with GAAP applied on a consistent basis and are in compliance with
the requirements of Regulation S-X of the Securities Act of 1933, as amended,
except for departures from such requirements reflected in the financial
statements delivered to the Agents prior to the date hereof and included in the
Confidential Information Memorandum and are not materially inconsistent with
financial statements previously provided to the Agents and, if applicable, the
Lenders.
(b) The Borrower has heretofore delivered to the Lenders its unaudited
pro forma consolidated balance sheet and statements of income as of the end of
and for the fiscal year ended December 31, 1997, and as of the end of and for
the final quarter and the portion of the fiscal year ended September 30, 1998,
in each case prepared giving effect to the Transactions as if they had occurred
on such date and reviewed and commented on by PricewaterhouseCoopers LLP. Such
financial statements have been prepared in good faith by the Borrower, based on
the assumptions used to prepare the pro forma financial information contained in
the Confidential Information Memorandum (which assumptions are believed by the
Borrower on the date hereof and on the Closing Date to be reasonable), are based
on the best information available to the Borrower as of the date of delivery
thereof, accurately reflect all adjustments required to be made to give effect
to the Transactions and present fairly on a pro forma basis the estimated
consolidated financial position of the Borrower and its consolidated
Subsidiaries as of such dates, assuming that the Transactions had actually
occurred at such dates.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, results of operations, financial
condition or prospects of the Borrower and the Subsidiaries including the assets
acquired by the Borrower as part of the Acquisition, taken as a whole, since
December 31, 1997.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) The
Borrower and each of the Subsidiaries has good and marketable title to, or valid
leasehold interests in, all its material properties and assets (including all
Mortgaged Properties), except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to utilize
such properties and assets for their intended purposes. All such material
properties and assets are free and clear of Liens, other than Liens expressly
permitted by Section 6.02, and no material portion of any Mortgaged Property is
subject to any lease, license, sublease or other agreement granting to any
person any right to use, occupy or enjoy the same, except as set forth on
Schedule 3.07(a).
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(b) The Borrower and each Subsidiary has complied with all obligations
under all material leases to which it is a party and all such leases are in full
force and effect. The Borrower and each Subsidiary enjoys peaceful and
undisturbed possession under all such material leases.
(c) Except as set forth on Schedule 3.07(c), the Borrower has not
received any notice of, and has no knowledge of, any pending or contemplated
condemnation proceeding affecting any Mortgaged Property or any sale or
disposition thereof in lieu of condemnation.
(d) Neither the Borrower nor any of the Subsidiaries is obligated under
any right of first refusal, option or other contractual right to sell, assign or
otherwise dispose of any Mortgaged Property or any interest therein.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing
Date a list of all Subsidiaries and the direct or indirect ownership interest of
the Borrower therein. The shares of capital stock or other ownership interests
so indicated on Schedule 3.08 are fully paid and non-assessable and are owned by
the Borrower, directly or indirectly, free and clear of all Liens (except for
the Liens under the Loan Documents).
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth
on Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of the Subsidiaries or any business, property or rights of any such person (i)
that involve any Loan Document or the Transactions, (ii) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect, (iii) that could materially and adversely
affect the ability of the Borrower to fully and timely perform its obligations
under the documents executed in connection with the Transactions or the ability
of the parties to consummate the Transactions or (iv) that have or would have,
individually or in the aggregate, a reasonable likelihood of restraining,
preventing or imposing burdensome conditions on the Transactions.
(b) The Borrower and each Subsidiary is in compliance with all laws,
regulations, consent decrees (including the Consent Decree of Permanent
Injunction entered into the United States District Court for the District of New
Jersey in Civil Action No. 93-3525 styled as United States of America v.
Warner-Lambert Company, a corporation, and Melvin R. Goodes and Lodewijk J.R. De
Vink, individuals) and orders of any Governmental Authority applicable to it
(including, without limitation, employee health and safety, margin regulations
and Environmental Laws) or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the failure to comply,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. No Default has occurred and is continuing.
(c) None of the Borrower or any of the Subsidiaries or any of their
respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permit) or any
restrictions of record or agreements affecting the Mortgaged Property, or is in
default with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
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SECTION 3.10. Agreements. (a) Neither the Borrower nor any of the
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in default in
any manner under any provision of any indenture or other agreement or instrument
evidencing Indebtedness, or any other material agreement or instrument to which
it is a party or by which it or any of its properties or assets are or may be
bound, where such default could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) Neither the Borrower nor
any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation U or
X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. Neither the Borrower nor any of the Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of
the Loans and will request the issuance of Letters of Credit only for the
purposes specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of the Borrower and the Subsidiaries
has filed or caused to be filed all Federal, state, local and foreign tax
returns or materials required to have been filed by it and has paid or caused to
be paid all taxes due and payable by it and all assessments received by it,
except taxes that are being contested in good faith by appropriate proceedings
and for which the Borrower or such Subsidiary, as applicable, shall have set
aside on its books adequate reserves.
SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto contained,
contains or will contain any material misstatement of fact or omitted, omits or
will omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were, are or will be made,
not misleading; provided that to the extent any such information, report,
financial statement, exhibit or schedule was based upon or constitutes a
forecast or projection, the Borrower represents only that it acted in good faith
and utilized reasonable assumptions and due care in the preparation of such
information, report, financial statement, exhibit or schedule.
SECTION 3.16. Employee Benefit Plans. Each of the Borrower and its
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event
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has occurred or is reasonably expected to occur that, when taken together with
all other such ERISA Events, could reasonably be expected to result in material
liability of the Borrower or any of its ERISA Affiliates. The present value of
all benefit liabilities under each Plan (based on those assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the last annual valuation date applicable thereto, exceed the fair market value
of the assets of such Plan, and the present value of all benefit liabilities of
all underfunded Plans (based on those assumptions used to fund each such Plan)
did not, as of the last annual valuation dates applicable thereto, exceed the
fair market value of the assets of all such underfunded Plans.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule
3.17:
(a) The properties owned, leased or operated by the Borrower and the
Subsidiaries (the "Properties") do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute, or constituted a violation of,
(ii) require Remedial Action under, or (iii) could reasonably be expected to
give rise to liability under, Environmental Laws, which violations, Remedial
Actions and liabilities, in the aggregate, could result in a Material Adverse
Effect;
(b) The Properties and all operations of the Borrower and the
Subsidiaries are in compliance, and in the last five years have been in
compliance, with all Environmental Laws and all necessary Environmental Permits
have been obtained and are in effect, except to the extent that such
non-compliance or failure to obtain any necessary permits, in the aggregate,
could not result in a Material Adverse Effect;
(c) There have been no Releases or threatened Releases at, from, under
or proximate to the Properties or otherwise in connection with the operations of
the Borrower or the Subsidiaries, which Releases or threatened Releases, in the
aggregate, could result in a Material Adverse Effect;
(d) Neither the Borrower nor any of the Subsidiaries has received any
notice of an Environmental Claim in connection with the Properties or the
operations of the Borrower or the Subsidiaries or with regard to any person
whose liabilities for environmental matters the Borrower or the Subsidiaries has
retained or assumed, in whole or in part, contractually, by operation of law or
otherwise, which, in the aggregate, could result in a Material Adverse Effect,
nor do the Borrower or the Subsidiaries have reason to believe that any such
Environmental Claim is being threatened; and
(e) Hazardous Materials have not been transported from the Properties,
nor have Hazardous Materials been generated, treated, stored or disposed of at,
on or under any of the Properties in a manner that could give rise to liability
under any Environmental Law, nor have the Borrower or the Subsidiaries retained
or assumed any liability, contractually, by operation of law or otherwise, with
respect to the generation, treatment, storage or disposal of Hazardous
Materials, which transportation, generation, treatment, storage or disposal, or
retained or assumed liabilities, in the aggregate, could result in a Material
Adverse Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by the Borrower or by the
Borrower for the Subsidiaries as of the date hereof and the Closing Date. As of
each such date, such insurance is in full force and effect and all premiums have
been duly paid. The Borrower and the
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Subsidiaries have insurance in such amounts and covering such risks and
liabilities as are in accordance with normal industry practice.
SECTION 3.19. Security Documents. (a) The Pledge Agreement is effective
to create in favor of the Collateral Agent, for the ratable benefit of the
Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement), and when the Collateral is
delivered to the Collateral Agent the Pledge Agreement will constitute a fully
perfected first priority Lien on and security interest in all right, title and
interest of each pledgor thereunder in such Collateral, in each case prior and
superior in right to any other person.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Security
Agreement), and when financing statements in appropriate form are filed in the
offices specified on Schedule 6 to the Perfection Certificate the Security
Agreement will constitute a fully perfected Lien on and security interest in all
right, title and interest of the grantors thereunder in such Collateral (other
than the Intellectual Property, as defined in the Security Agreement), in each
case prior and superior in right to any other person, other than with respect to
Liens expressly permitted by Section 6.02.
(c) When the Security Agreement is filed in the United States Patent
and Trademark Office and the United States Copyright Office, the Security
Agreement will constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in the Intellectual
Property (as defined in the Security Agreement), in each case prior and superior
in right to any other person (it being understood that subsequent recordings in
the United States Patent and Trademark Office and the United States Copyright
Office may be necessary to perfect a lien on registered trademarks, trademark
applications and copyrights acquired by the grantors after the date hereof).
(d) The Mortgages are effective to create in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable Lien on all of the Loan Parties' right, title and interest in and to
the Mortgaged Properties and the proceeds thereof, and when the Mortgages are
filed in the offices specified on Schedule 3.19(d), the Mortgages shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties in the Mortgaged Properties and the proceeds
thereof, in each case prior and superior in right to any other person, other
than with respect to the rights of persons pursuant to Liens expressly permitted
by Section 6.02.
SECTION 3.20. Location of Real Property and Leased Premises. (a)
Schedule 3.20(a) lists completely and correctly as of the Closing Date all real
property owned by the Borrower and the Subsidiaries and the addresses thereof.
The Borrower and the Subsidiaries own in fee all the real property set forth on
Schedule 3.20(a).
(b) Schedule 3.20(b) lists completely and correctly as of the Closing
Date all real property leased by the Borrower and the Subsidiaries and the
addresses thereof. The Borrower and the Subsidiaries have valid leases in all
the real property set forth on Schedule 3.20(b).
SECTION 3.21. Labor Matters. As of the date hereof and the Closing
Date, there are no strikes, lockouts or slowdowns against the Borrower or any of
the Subsidiaries pending
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or, to the knowledge of the Borrower, threatened. The hours worked by and
payments made to employees of the Borrower and the Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing with such matters. All payments due from the
Borrower or any of the Subsidiaries, or for which any claim may be made against
the Borrower or any of the Subsidiaries, on account of wages and employee health
and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of the Borrower or the applicable Subsidiary. The
consummation of the Transactions will not give rise to any right of termination
or right of renegotiation on the part of any union under any collective
bargaining agreement to which the Borrower or any of the Subsidiaries is bound.
SECTION 3.22. Solvency. (a) Immediately after the consummation of the
Transactions to occur on the Closing Date and immediately following the making
of each Loan made on the Closing Date and after giving effect to the application
of the proceeds of such Loans, (i) the fair value of the assets of each Loan
Party, at a fair valuation, will exceed its debts and liabilities, subordinated,
contingent or otherwise; (ii) the present fair saleable value of the property of
each Loan Party will be greater than the amount that will be required to pay the
probable liability of its debts and other liabilities, subordinated, contingent
or otherwise, as such debts and other liabilities become absolute and matured;
(iii) each Loan Party will be able to pay its debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (iv) each Loan Party will not have unreasonably small
capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted following the Closing
Date.
SECTION 3.23. Year 2000. The Borrower and the Subsidiaries have (i)
developed plans, utilizing internal resources, to ensure that their information
systems are capable of properly utilizing dates beyond December 31, 1999 (the
"Year 2000" issue), (ii) upgraded or replaced many of their accounting and
traffic systems, including the conversion to new software which is Year 2000
compliant and (iii) evaluated their other principal computer systems and
determined that they are substantially Year 2000 compliant. The Borrower and the
Subsidiaries are taking measures to seek to work with their relevant customers,
suppliers and other service providers to ensure that their systems are Year 2000
compliant. Based upon the information available to it, the Borrower does not
believe that the consequences to it and its Subsidiaries of the Year 2000 issue
will result in a Default or a Material Adverse Effect.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing,
including each Borrowing of a Swingline Loan, and on the date of each issuance
of a Letter of Credit (each such event being called a "Credit Event"):
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(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 (or such notice shall have been deemed
given in accordance with Section 2.03) or, in the case of the issuance of a
Letter of Credit, the Issuing Bank and the Administrative Agent shall have
received a notice requesting the issuance of such Letter of Credit as required
by Section 2.23(b) or, in the case of the Borrowing of a Swingline Loan, the
Swingline Lender and the Administrative Agent shall have received a notice
requesting such Swingline Loan as required by Section 2.22(b).
(b) The representations and warranties set forth in Article III shall
be true and correct in all material respects on and as of the date of such
Credit Event with the same effect as though made on and as of such date, except
to the extent such representations and warranties expressly relate to an earlier
date.
(c) The Borrower and each other Loan Party shall be in compliance with
all the terms and provisions set forth herein and in each other Loan Document on
its part to be observed or performed, and at the time of and immediately after
such Credit Event, no Event of Default or Default shall have occurred and be
continuing.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrower on the date of such Credit Event as to the satisfaction
of the conditions set forth in paragraphs (b) and (c) of this Section 4.01. In
the case of the Credit Events occurring on the Closing Date, the conditions set
forth in paragraphs (b) and (c) of this Section 4.01 shall be construed giving
effect to the Acquisition and to the acquisition by the Borrower of any
Subsidiaries acquired by it pursuant thereto.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of
itself, the Lenders and the Issuing Bank, a favorable written opinion
of Kyle P. Macione, corporate counsel for the Borrower, substantially
to the effect set forth in Exhibit H, (A) dated the Closing Date, (B)
addressed to the Agents, the Issuing Bank and the Lenders, and (C)
covering such other matters relating to the Loan Documents and the
Transactions as the Agents shall reasonably request, and the Borrower
hereby requests such counsel to deliver such opinions.
(b) The Administrative Agent shall have received (i) a copy of
the certificate or articles of incorporation, including all amendments
thereto, of each Loan Party, certified as of a recent date by the
Secretary of State of the state of its organization, and a certificate
as to the good standing of each Loan Party as of a recent date, from
such Secretary of State; (ii) a certificate of the Secretary or
Assistant Secretary of each Loan Party dated the Closing Date and
certifying (A) that attached thereto is a true and complete copy of the
by-laws of such Loan Party as in effect on the Closing Date and at all
times since a date prior to the date of the resolutions described in
clause (B) below, (B) that attached thereto is a true and complete copy
of resolutions duly adopted by the Board of Directors of such Loan
Party authorizing the execution, delivery and performance of the Loan
Documents to which such person is a party and, in the case of the
Borrower, the Borrowings hereunder, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect,
(C) that the certificate or articles of incorporation of such Loan
Party have not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished pursuant to
clause (i) above, and (D) as to the incumbency
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and specimen signature of each officer executing any Loan Document or
any other document delivered in connection herewith on behalf of such
Loan Party; (iii) a certificate of another officer as to the incumbency
and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to (ii) above; and (iv) such other
documents as the Lenders, the Issuing Bank or Cravath, Swaine & Moore,
counsel for the Administrative Agent, may reasonably request.
(c) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial Officer
of the Borrower, confirming compliance with the conditions precedent
set forth in paragraphs (b) and (c) of Section 4.01.
(d) All Loans outstanding hereunder prior to the Closing Date
shall have been prepaid in full together with all interest accrued
thereon to the date of prepayment. The Administrative Agent shall have
received all Fees and other amounts due and payable hereunder on or
prior to the Closing Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Borrower hereunder or under any other Loan
Document. The Administrative Agent shall have received on the date
hereof all Commitment Fees, L/C Participation Fees and Issuing Bank
Fees accrued under the Original Credit Agreement through such date,
whether or not at the time due and payable under the Original Credit
Agreement.
(e) The Collateral Requirement shall have been satisfied.
(f) The conditions set forth in paragraphs (b) and (c) of
Section 4.01 shall be construed giving effect to the Acquisition and to
the acquisition by the Borrower of any Subsidiaries acquired by it
pursuant thereto.
(g) The Collateral Agent shall have received a Perfection
Certificate dated the Closing Date and duly executed by a Responsible
Officer of the Borrower.
(h) The Guarantee Requirement shall have been satisfied.
(i) The Agents shall have received audited financial
information relating to the Purchased Assets in form and detail and
covering periods satisfactory to them, including, without limitation,
an audit by the Borrower's accountants of the Purchased Assets for
fiscal years 1996 and 1997 and at least through the nine-month period
ending September 30, 1998. Such financial statements present fairly the
financial condition of the Purchased Assets as of such dates and for
such periods. Such balance sheets and the notes thereto disclose all
material liabilities, direct or contingent, of the Purchased Assets as
of the dates thereof.
(j) The Administrative Agent shall have received a copy of, or
a certificate as to coverage under, the insurance policies required by
applicable provisions of the Security Documents, each of which shall be
endorsed or otherwise amended to include a "standard" or "New York"
lender's loss payable endorsement and to name the Collateral Agent as
additional insured, in form and substance satisfactory to the
Administrative Agent.
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(k) All requisite Governmental Authorities and other third
parties shall have approved or consented to the Transactions and the
other transactions contemplated in connection therewith to the extent
required, in each case to the extent failure to obtain such consent or
approval could have a Material Adverse Effect or could materially and
adversely affect the rights or remedies of the Lenders, the
Administrative Agent, the Issuing Bank or the Swingline Lender and
there shall be no action by any Governmental Authority, actual or
threatened, that has a reasonable likelihood of restraining, preventing
or imposing burdensome conditions on the Transactions or the other
transactions contemplated in connection therewith.
(l) The Administrative Agent shall be reasonably satisfied
with (i) the material terms and conditions of each agreement entered
into in connection with the Acquisition, including without limitation,
the Asset Purchase Agreement, the U.S. Manufacturing Agreement, the
International Manufacturing Agreement and the Transaction Services
Agreement and (ii) all material legal, tax and accounting matters
related to the Acquisition.
(m) The Acquisition shall have been, or substantially
simultaneously with the initial Credit Event shall be, consummated in
accordance with the Asset Purchase Agreement and applicable law,
without any amendment to or waiver of any material terms or conditions
of the Asset Purchase Agreement not approved by the Lenders. The
Lenders and the Issuing Bank shall have received executed copies of the
Asset Purchase Agreement and all certificates, opinions and other
documents delivered in connection therewith, all certified by a
Financial Officer as complete and correct.
(n) The Seller Notes shall have been issued to the Seller
under the Seller Note Agreement as part of the consideration for the
Purchased Assets.
(o) The Note Purchase Agreements shall have been executed and
delivered by the parties thereto and shall have become effective.
(p) The Bridge Loan Agreement shall have been executed and
delivered by the parties thereto and shall have become effective.
(q) After giving effect to the Transactions, the Borrower and
the Subsidiaries shall have outstanding no Indebtedness for borrowed
money or preferred stock other than (i) Indebtedness under the Loan
Documents, (ii) the Seller Notes and (iii) other Indebtedness permitted
under Section 6.01, the terms and conditions of which (including terms
and conditions relating to the interest rates, fees, amortization,
maturity, subordination, covenants, events of default or remedies)
shall be reasonably satisfactory in all respects to the Administrative
Agent.
ARTICLE V
Affirmative Covenants
The Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan, all Fees and all other expenses
or amounts payable under any Loan Document shall have been paid in full and all
Letters of Credit have been canceled or have expired and all amounts drawn
thereunder have been reimbursed in full, unless the Required
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Lenders shall otherwise consent in writing, the Borrower will, and will cause
each of the Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated; comply
in all material respects with all applicable laws, rules, regulations (including
any zoning, building, Environmental Law, ordinance, code or approval or any
building permits or any restrictions of record or agreements affecting the
Mortgaged Properties) and decrees and orders of any Governmental Authority,
whether now in effect or hereafter enacted; and at all times maintain and
preserve all property material to the conduct of such business and keep such
property in good repair, working order and condition and from time to time make,
or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times.
SECTION 5.02. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise that, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided, however,
that such payment and discharge shall not be required with respect to any such
tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Borrower
shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP and such contest operates to suspend collection of the
contested obligation, tax, assessment or charge and enforcement of a Lien and,
in the case of a Mortgaged Property, there is no risk of forfeiture of such
property.
SECTION 5.03. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent, which shall deliver to each
Lender:
(a) within 90 days after the end of each fiscal year, its
consolidated and consolidating balance sheets and related statements of
operations, stockholders' equity and cash flows showing the financial
condition of the Borrower and its consolidated Subsidiaries as of the
close of such fiscal year and the results of its operations and the
operations of such Subsidiaries during such year, all audited by
PricewaterhouseCoopers LLP or other independent public accountants of
recognized national standing acceptable to the Required Lenders and
accompanied by an opinion of such accountants (which shall not be
qualified in any material respect) to the effect that such consolidated
financial statements fairly present the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated and consolidating
balance sheets and related
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statements of operations, stockholders' equity and cash flows showing
the financial condition of the Borrower and its consolidated
Subsidiaries as of the close of such fiscal quarter and the results of
its operations and the operations of such Subsidiaries during such
fiscal quarter and the then elapsed portion of the fiscal year, all
certified by one of its Financial Officers as fairly presenting the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit
adjustments;
(c) concurrently with any delivery of financial statements
under sub-paragraph (a) or (b) above, a certificate of the accounting
firm or Financial Officer opining on or certifying such statements
(which certificate, when furnished by an accounting firm, may be
limited to accounting matters and disclaim responsibility for legal
interpretations) (i) certifying that (x) no Event of Default or Default
has occurred or, if such an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto and (y) to the
knowledge of such accounting firm or Financial Officer, the passage of
time will not reveal an Event of Default or a Default and (ii) setting
forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the covenants
contained in Sections 6.10, 6.11, 6.12 and 6.13;
(d) on or prior to each date of delivery of the Borrower's
year-end financial statements pursuant to Section 5.03(a), the Borrower
shall provide to each Lender a business plan for the following five
years, in a form satisfactory to the Administrative Agent;
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any of the Subsidiaries with the Securities
and Exchange Commission, or any Governmental Authority succeeding to
any or all of the functions of said Commission, or with any national
securities exchange, or distributed to its shareholders, as the case
may be; and
(f) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
the Borrower or any of the Subsidiaries, or compliance with the terms
of any Loan Document, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.04. Litigation and Other Notices. Furnish to the
Administrative Agent, the Issuing Bank and each Lender prompt written notice of
the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to
be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Affiliate thereof
that could reasonably be expected to result in a Material Adverse
Effect; and
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(c) any other development that has resulted in, or could
reasonably be expected to result in, a Material Adverse Effect.
SECTION 5.05. Employee Benefits. (a) Comply in all material respects
with the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent as soon as possible after, and in any event within 10 days
after any Responsible Officer of the Borrower or any ERISA Affiliate knows or
has reason to know that, any ERISA Event has occurred that, alone or together
with any other ERISA Events that have occurred could reasonably be expected to
result in liability of the Borrower and/or the Subsidiaries in an aggregate
amount exceeding $1,000,000 or requiring payments exceeding $500,000 in any
year, a statement of a Financial Officer of the Borrower setting forth details
as to such ERISA Event and the action, if any, that the Borrower proposes to
take with respect thereto.
SECTION 5.06. Maintaining Records; Access to Properties and
Inspections. Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law are made of
all dealings and transactions in relation to its business and activities.
Subject to the provisions of Section 9.16, each Loan Party will, and will cause
each of the Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender to visit and inspect the financial records
and the properties of the Borrower or any of the Subsidiaries at reasonable
times and as often as reasonably requested and to make extracts from and copies
of such financial records, and permit any representatives designated by the
Administrative Agent or any Lender to discuss the affairs, finances and
condition of the Borrower or any of the Subsidiaries with the officers thereof
and independent accountants therefor.
SECTION 5.07. Use of Proceeds. Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement.
SECTION 5.08. Compliance with Environmental Laws. Comply, and cause all
lessees and other persons occupying its Properties to comply, in all material
respects with all Environmental Laws and Environmental Permits applicable to its
operations and Properties; obtain and renew all Environmental Permits necessary
for its operations and Properties; and conduct any Remedial Action in accordance
with Environmental Laws; provided, however, that neither the Borrower nor any of
the Subsidiaries shall be required to undertake any Remedial Action to the
extent that its obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being maintained with respect to
such circumstances.
SECTION 5.09. Preparation of Environmental Reports. If a Default caused
by reason of a breach of Section 3.17 or 5.08 shall have occurred and be
continuing, at the request of the Required Lenders through the Administrative
Agent, provide to the Lenders within 45 days after such request, at the expense
of the Borrower, an environmental site assessment report for the Properties
which are the subject of such default prepared by an environmental consulting
firm acceptable to the Administrative Agent and indicating the presence or
absence of Hazardous Materials and the estimated cost of any compliance or
Remedial Action in connection with such Properties.
SECTION 5.10. Further Assurances. Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust)
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that may be required under applicable law, or that the Required Lenders, the
Administrative Agent or the Collateral Agent may reasonably request, in order to
cause the Guarantee Requirement and the Collateral Requirement to be satisfied
at all times.
SECTION 5.11. Hedging Arrangements. Enter into or have in effect, not
later than June 30, 1999, and thereafter maintain in effect for a period of not
less than two years, one or more Hedging Agreements with any of the Lenders or
other financial institutions reasonably satisfactory to the Administrative
Agent, on customary terms, the effect of which is to limit for a period of two
years the total amount of Indebtedness of the Borrower bearing interest at
floating rates to 30% of the total amount of Indebtedness of the Borrower.
ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Lender that, so long as
this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document have been paid in full
and all Letters of Credit have been canceled or have expired and all amounts
drawn thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, and will not cause or
permit any of the Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness for borrowed money existing on the date
hereof and set forth in Schedule 6.01, but not any extensions, renewals
or replacements of such Indebtedness;
(b) Indebtedness created hereunder and under the other Loan
Documents;
(c) Indebtedness consisting of (i) the Seller Notes; (ii) the
Bridge Loans; and (iii) the Exchange Notes, in an aggregate outstanding
principal amount for all such Indebtedness in an aggregate amount equal
to $75,000,000 plus any interest paid through the issuance of the
Exchange Notes in accordance with the terms of the Exchange Note
Indenture;
(d) Indebtedness consisting of Additional Securities in an
aggregate outstanding principal amount for all such Indebtedness not in
excess of $200,000,000; provided, that the first $75,000,000 of Net
Cash Proceeds from the issuance and sale of such Indebtedness shall be
used to repay or prepay the Indebtedness permitted under clause (c)
above and the remaining Net Cash Proceeds of such Indebtedness shall be
applied as required under Section 2.13(g);
(e) Indebtedness of the Borrower to any Wholly Owned
Subsidiary and of any Wholly Owned Subsidiary to the Borrower or any
other Wholly Owned Subsidiary;
<PAGE> 65
60
(f) Guarantees by the Borrower of the Indebtedness of any
Wholly Owned Subsidiary and by any Wholly Owned Subsidiary of the
Borrower or any other Wholly Owned Subsidiary;
(g) Indebtedness consisting of purchase money Indebtedness or
Capital Lease Obligations incurred in the ordinary course of business
after Closing Date to finance Capital Expenditures; provided that the
aggregate principal amount of any Indebtedness or Capital Lease
Obligations incurred pursuant to this clause (e) at any time shall not
exceed $10,000,000;
(h) Extensions, renewals and replacements of Indebtedness
referred to in clause (a) to the extent the principal amount of such
Indebtedness is not increased, the weighted average life to maturity of
such Indebtedness is not decreased, such Indebtedness, if subordinated
to the Loans, remains so subordinated on terms not less favorable to
the Lenders and the original obligors in respect of such Indebtedness
remain the only obligors thereon;
(i) other Indebtedness in an aggregate principal amount not
exceeding $5,000,000; provided that all such Indebtedness shall be
unsecured; and
(j) Indebtedness of the Borrower created under Hedging
Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities and
not for speculative purposes.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect thereof, or assign or transfer any such income
or revenues or rights in respect thereof except:
(a) Liens on property or assets of the Borrower and the
Subsidiaries existing on the date hereof and set forth in Schedule
6.02; provided that such Liens shall extend only to those assets to
which they extend on the date hereof and shall secure only those
obligations which they secure on the date hereof;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any of the Subsidiaries;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition, (ii) such Lien does not apply to any
other property or assets of the Borrower or any of the Subsidiaries and
(iii) such Lien does not (A) materially interfere with the use,
occupancy and operation of any asset or property subject thereto, (B)
materially reduce the fair market value of such asset or property but
for such Lien or (C) result in any material increase in the cost of
operating, occupying or owning or leasing such asset or property;
(d) Liens for taxes not yet due or which are being contested
in compliance with Section 5.02;
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61
(e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business and securing obligations that are not due and payable or that
are being contested in compliance with Section 5.02;
(f) pledges and deposits made in the ordinary course of
business in compliance with workmen's compensation, unemployment
insurance and other social security laws or regulations;
(g) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capital
Lease Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(h) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate,
are not substantial in amount and do not materially detract from the
value of the property subject thereto or interfere with the ordinary
conduct of the business of the Borrower or any of the Subsidiaries; and
(i) purchase money security interests in real property,
improvements thereto or equipment hereafter acquired (or, in the case
of improvements, constructed) by the Borrower or any of the
Subsidiaries; provided that (i) such security interests secure
Indebtedness permitted by Section 6.01, (ii) such security interests
are incurred, and the Indebtedness secured thereby is created, within
90 days after such acquisition (or construction), (iii) the
Indebtedness secured thereby does not exceed 80% of the lesser of the
cost or the fair market value of such real property, improvements or
equipment at the time of such acquisition (or construction) and (iv)
such security interests do not apply to any other property or assets of
the Borrower or any of the Subsidiaries.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred; provided, however, that the
Borrower may enter into any such arrangement to the extent that the aggregate
fair market value of the property thereafter rented or leased shall not exceed
$6,000,000.
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SECTION 6.04. Investments, Loans and Advances. Purchase, hold or
acquire any capital stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) investments by the Borrower existing on the date hereof as
set forth on Schedule 6.04(a) or resulting from the Acquisition in the
capital stock of Subsidiaries;
(b) loans by the Borrower to the King Pharmaceuticals
Benevolent Fund, Inc., a Virginia corporation and an Affiliate of the
Borrower, existing on the date hereof and set forth on Schedule
6.04(b);
(c) acquisitions expressly permitted under section 6.05; and
(d) Permitted Investments.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. Merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
any substantial part of its assets (whether now owned or hereafter acquired) or
any capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in
one transaction or a series of transactions) all or any substantial part of the
assets of any other person (including by means of a merger or consolidation in
which the surviving person is the Borrower or a Wholly Owned Subsidiary), except
that (a) the Borrower and any of the Subsidiaries may purchase and sell
inventory in the ordinary course of business, (b) the Borrower or any of the
Subsidiaries may purchase brand name pharmaceutical product lines from any third
party pursuant to clause (iii) of the proviso contained in the definition of
"Asset Sale" in Section 1.01 pursuant to the conditions set forth therein, (c)
if (i) at the time thereof and immediately after giving effect thereto no Event
of Default or Default shall have occurred and be continuing and (ii) the
Borrower shall have delivered to the Administrative Agent calculations
demonstrating pro forma compliance with the covenants contained in Sections
6.10, 6.11, 6.12 and 6.13 as of the end of and for the most recent period of
four fiscal quarters for which financial statements shall have been delivered
pursuant to Section 5.03(a) or (b), giving effect to such acquisition and the
incurrence of any related Indebtedness as if they had occurred at the beginning
of such period, the Borrower or any of the Subsidiaries may acquire all or any
substantial part of the assets of any other person (including by means of a
merger or consolidation in which the surviving person is the Borrower or a
Wholly Owned Subsidiary) if the consideration paid in such acquisition consists
solely of (A) common stock of the Borrower, or proceeds of the issuance of
common stock of the Borrower remaining after the prepayments required under
Section 2.13(d) have been made or (B) cash in an amount equal to proceeds of
Indebtedness permitted under Section 6.01(d) remaining after the prepayments
required under Section 2.13(g) have been made (but only, in the case of either
of clause (A) or clause (B), if such proceeds were received within 12 months
prior to such acquisition) and (d) if at the time thereof and immediately after
giving effect thereto no Event of Default or Default shall have occurred and be
continuing (i) any Wholly Owned Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation and (ii) any
Wholly Owned Subsidiary may merge into or consolidate with any other Wholly
Owned Subsidiary in a transaction in which the surviving entity is a Wholly
Owned Subsidiary and no person other than the Borrower or a Wholly Owned
Subsidiary receives any consideration.
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SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends. (a) Declare or pay, directly or indirectly, any
dividend or make any other distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, with respect to
any shares of its capital stock or directly or indirectly redeem, purchase,
retire or otherwise acquire for value (or permit any Subsidiary to purchase or
acquire) any shares of any class of its capital stock or set aside any amount
for any such purpose; provided, however, that (i) (x) any Subsidiary may declare
and pay dividends or make other distributions on its capital stock and (y) the
Borrower may declare and pay dividends or make other distributions on its
capital stock in an aggregate amount up to $1,000,000; provided that no Event of
Default shall have occurred and be continuing, and (ii) the Borrower may grant
options, and distribute shares of capital stock upon the exercise thereof,
pursuant to the terms of the 1997 Incentive and Nonqualified Stock Option Plan
for Employees of King Pharmaceuticals, Inc. and the 1998 Non-Employee Director
Stock Option Plan.
(b) Permit any Subsidiary to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Subsidiary to (i) pay any dividends or
make any other distributions on its capital stock or any other equity interest
or (ii) make or repay any loans or advances to the Borrower or to any other
Subsidiary.
SECTION 6.07. Transactions with Affiliates. Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates (other
than the Borrower or any Subsidiary), except that the Borrower or any Subsidiary
may engage in any of the foregoing transactions in the ordinary course of
business at prices and on terms and conditions not less favorable to the
Borrower or such Subsidiary than could be obtained on an arm's-length basis from
unrelated third parties.
SECTION 6.08. Business of Borrower and Subsidiaries. Engage at any time
in any business or business activity other than the business currently conducted
by it and business activities reasonably incidental thereto.
SECTION 6.09. Fiscal Year. Change the end of its fiscal year from
December 31 to any other date.
SECTION 6.10. Leverage Ratio. Permit the Leverage Ratio at any time
during any of the periods set forth below to be in excess of the ratio set forth
below opposite such period:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Closing Date to March 31, 1999 5.25 to 1.00
April 1, 1999 to June 30, 1999 5.25 to 1.00
July 1, 1999 to September 30, 1999 5.00 to 1.00
October 1, 1999 to December 31, 1999 4.75 to 1.00
January 1, 2000 to March 31, 2000 4.50 to 1.00
April 1, 2000 to June 30, 2000 4.25 to 1.00
</TABLE>
<PAGE> 69
64
<TABLE>
<S> <C>
July 1, 2000 to September 30, 2000 4.25 to 1.00
October 1, 2000 to December 31, 2000 4.00 to 1.00
January 1, 2001 to December 31, 2001 3.50 to 1.00
January 1, 2002 to December 31, 2002 3.00 to 1.00
Thereafter 2.50 to 1.00
</TABLE>
For purposes of calculating the Leverage Ratio, the Borrower's Consolidated
EBITDA for the four-fiscal-quarter periods ending on March 31, 1999, June 30,
1999, and September 30, 1999, shall be deemed to equal the Borrower's
Consolidated EBITDA for the period commencing on January 1, 1999, and ending on
(i) March 31, 1999, multiplied by 4, (ii) June 30, 1999, multiplied by 2, and
(iii) September 30, 1999, multiplied by 4/3, as applicable.
SECTION 6.11. Consolidated Interest Expense Coverage Ratio. Permit the
Consolidated Interest Expense Coverage Ratio for any four-fiscal-quarter period
(or such lesser number of fiscal quarters as shall have elapsed since December
31, 1998) ending on any date set forth below to be less than the ratio set forth
below opposite such date.
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Closing Date to March 31, 1999 2.00 to 1.00
April 1, 1999 to June 30, 1999 2.00 to 1.00
July 1, 1999 to September 30, 1999 2.00 to 1.00
October 1, 1999 to December 31, 1999 2.00 to 1.00
January 1, 2000 to March 31, 2000 2.25 to 1.00
April 1, 2000 to June 30, 2000 2.25 to 1.00
July 1, 2000 to September 30, 2000 2.50 to 1.00
October 1, 2000 to December 31, 2000 2.50 to 1.00
January 1, 2001 to December 31, 2001 2.75 to 1.00
January 1, 2002 to December 31, 2002 3.25 to 1.00
Thereafter 3.75 to 1.00
</TABLE>
SECTION 6.12. Consolidated Net Worth. Permit Consolidated Net Worth on
the last day of any fiscal quarter ending after December 31, 1998, to be less
than the sum of (i) $85,000,000 plus (ii) 75% of the cumulative Consolidated Net
Income plus (iii) 50% of Net Cash Proceeds of Equity Issuances by the Borrower
for each fiscal quarter ending after December 31, 1998 (excluding any fiscal
quarter for which Consolidated Net Income is negative).
SECTION 6.13. Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any four fiscal-quarter period (or
such lesser number of fiscal quarters as shall have elapsed since December 31,
1998), beginning with the period ending on March 30, 1999, to be less than 1.10
to 1.00.
SECTION 6.14 Amendment of Material Documents. Amend, modify or waive
any of its rights under (a) the Asset Purchase Agreement or (b) any other
material agreements or instruments of the Borrower or the Subsidiaries,
including any agreements or instruments evidencing or governing Indebtedness, if
any such amendment, modification or waiver could reasonably be expected to
result in a Material Adverse Effect or to be adverse to the rights or interests
of the Lenders.
<PAGE> 70
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SECTION 6.15 Prepayments, Redemptions and Repurchases of Debt. (a) Make
or commit to make any payment (including by way of payment, prepayment,
redemption, purchase or defeasance), whether in cash, property, securities or a
combination thereof, other than scheduled (or with respect to senior
indebtedness held by a person that is not an Affiliate of the obligor,
mandatory) payments of principal and interest as and when due (to the extent not
prohibited by applicable subordination provisions), in respect of any
Indebtedness for borrowed money (other than Indebtedness under the Loan
Documents and intercompany Indebtedness) of the Borrower or any of the
Subsidiaries, other than the refinancing of Seller Notes, Bridge Loans or
Exchange Notes with the proceeds of Additional Securities or the repayment of
Seller Notes, Bridge Loans or Exchange Notes with the Net Cash Proceeds of an
Equity Issuance as contemplated by Section 2.13(d), (b) permit the Seller Notes
to mature unless they are (i) simultaneously converted to Bridge Loans or (ii)
simultaneously refinanced in whole with proceeds of the Additional Securities or
an Equity Issuance as contemplated by Section 2.13(d) or (c) permit the Bridge
Loans to mature unless they are (i) simultaneously converted into Exchange Notes
or (ii) simultaneously refinanced in whole with proceeds of the Additional
Securities or an Equity Issuance as contemplated by Section 2.13(d).
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or
in connection with any Loan Document or the Borrowings or issuances of
Letters of Credit hereunder, or any representation, warranty, statement
or information contained in any report, certificate, financial
statement or other instrument furnished in connection with or pursuant
to any Loan Document, shall prove to have been false or misleading in
any material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of
any Loan or any reimbursement with respect to any L/C Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any interest on
any Loan or any Fee or L/C Disbursement or any other amount (other than
an amount referred to in (b) above) due under any Loan Document, when
and as the same shall become due and payable, and such default shall
continue unremedied for a period of three Business Days;
(d) default shall be made in the due observance or performance
by the Borrower or any of the Subsidiaries of any covenant, condition
or agreement contained in Section 5.01(a), 5.04, 5.06 or 5.07 or in
Article VI;
(e) default shall be made in the due observance or performance
by the Borrower or any of the Subsidiaries of any covenant, condition
or agreement contained in any Loan Document (other than those specified
in (b), (c) or (d) above)
<PAGE> 71
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and such default shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent or any Lender to the
Borrower;
(f) (i) the Borrower or any of the Subsidiaries shall fail to
pay any principal or interest, regardless of amount, due in respect of
any Indebtedness in a principal amount in excess of $1,000,000, when
and as the same shall become due and payable, (ii) the Borrower or any
of the Subsidiaries shall fail to observe or perform any other term,
covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any such Indebtedness, or any other
event or condition shall occur, if the effect of any failure or other
event or condition referred to in this clause (ii) is to cause, or to
permit the holder or holders of such Indebtedness or a trustee on its
or their behalf (with or without the giving of notice, the lapse of
time or both) to cause, such Indebtedness to become due or to be
required to be repurchased or redeemed prior to its stated maturity or
(iii) an event of default or similar event, however denominated, shall
occur under the Seller Notes, the Seller Note Agreement, the Bridge
Loan Agreement or the Additional Securities;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Borrower or any of
the Subsidiaries, or of a substantial part of the property or assets of
the Borrower or a Subsidiary, under Title 11 of the United States Code,
as now constituted or hereafter amended, or any other Federal, state or
foreign bankruptcy, insolvency, receivership or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of the
Subsidiaries or for a substantial part of the property or assets of the
Borrower or a Subsidiary or (iii) the winding-up or liquidation of the
Borrower or any of the Subsidiaries; and such proceeding or petition
shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(h) the Borrower or any of the Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner,
any proceeding or the filing of any petition described in (g) above,
(iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the
Borrower or any of the Subsidiaries or for a substantial part of the
property or assets of the Borrower or any of the Subsidiaries, (iv)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for
the benefit of creditors, (vi) become unable, admit in writing its
inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the
foregoing;
(i) one or more judgments for the payment of money in an
aggregate amount in excess of $1,000,000 shall be rendered against the
Borrower, any of the Subsidiaries or any combination thereof and the
same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to levy upon assets or
properties of the Borrower or any of the Subsidiaries to enforce any
such judgment;
<PAGE> 72
67
(j) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other such ERISA
Events, could reasonably be expected to result in liability of the
Borrower and its ERISA Affiliates in an aggregate amount exceeding
$2,500,000 or to require payments exceeding $1,000,000 in any year;
(k) any Guarantee purported to be created by the Guarantee
Agreement shall cease to be, or shall be asserted by the Borrower or
any other Loan Party not to be, a valid and enforceable Guarantee of
the Obligations, or any security interest purported to be created by
any Security Document shall cease to be, or shall be asserted by the
Borrower or any other Loan Party not to be, a valid, perfected, first
priority (except as otherwise expressly provided in this Agreement or
such Security Document) security interest in the securities, assets or
properties covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Collateral Agent
to maintain possession of certificates representing securities pledged
under the Pledge Agreement and except to the extent that such loss is
covered by a lender's title insurance policy and the related insurer
promptly after such loss shall have acknowledged in writing that such
loss is covered by such title insurance policy; or
(l) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder
and under any other Loan Document, shall become forthwith due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrower, anything contained herein or
in any other Loan Document to the contrary notwithstanding; and in any event
with respect to the Borrower described in paragraph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of the Borrower accrued hereunder and under any other
Loan Document, shall automatically become due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein or in any other Loan
Document to the contrary notwithstanding.
ARTICLE VIII
The Administrative Agent and the Collateral Agent
In order to expedite the transactions contemplated by this Agreement,
Credit Suisse First Boston is hereby appointed to act as Administrative Agent
and Collateral Agent on behalf of the Lenders and the Issuing Bank (for purposes
of this Article VIII, the Administrative Agent and the Collateral Agent are
referred to collectively as the "Agents"). Each of the Lenders and each assignee
of any such Lender, hereby irrevocably authorizes the
<PAGE> 73
68
Agents to take such actions on behalf of such Lender or assignee or the
Issuing Bank and to exercise such powers as are specifically delegated to the
Agents by the terms and provisions hereof and of the other Loan Documents,
together with such actions and powers as are reasonably incidental thereto. The
Administrative Agent is hereby expressly authorized by the Lenders and the
Issuing Bank, without hereby limiting any implied authority, (a) to receive on
behalf of the Lenders and the Issuing Bank all payments of principal of and
interest on the Loans, all payments in respect of L/C Disbursements and all
other amounts due to the Lenders hereunder, and promptly to distribute to each
Lender or the Issuing Bank its proper share of each payment so received; (b) to
give notice on behalf of each of the Lenders to the Borrower of any Event of
Default specified in this Agreement of which the Administrative Agent has actual
knowledge acquired in connection with its agency hereunder; and (c) to
distribute to each Lender copies of all notices, financial statements and other
materials delivered by the Borrower or any other Loan Party pursuant to this
Agreement or the other Loan Documents as received by the Administrative Agent.
Without limiting the generality of the foregoing, the Agents are hereby
expressly authorized to execute any and all documents (including releases) with
respect to the Collateral and the rights of the Secured Parties with respect
thereto, as contemplated by and in accordance with the provisions of this
Agreement and the Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to the Borrower or any other
Loan Party on account of the failure of or delay in performance or breach by any
Lender or the Issuing Bank of any of its obligations hereunder or to any Lender
or the Issuing Bank on account of the failure of or delay in performance or
breach by any other Lender or the Issuing Bank or the Borrower or any other Loan
Party of any of their respective obligations hereunder or under any other Loan
Document or in connection herewith or therewith. Each of the Agents may execute
any and all duties hereunder by or through agents or employees and shall be
entitled to rely upon the advice of legal counsel selected by it with respect to
all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any
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69
such resignation, the Required Lenders shall have the right to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring Agent
gives notice of its resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent which shall be a bank with an office in New
York, New York, having a combined capital and surplus of at least $500,000,000
or an Affiliate of any such bank. Upon the acceptance of any appointment as
Agent hereunder by a successor bank, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After the Agent's resignation hereunder, the provisions of this
Article and Section 9.05 shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was acting as Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any of the
Subsidiaries or other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the
amount of its pro rata share (based on its Commitments hereunder) of any
expenses incurred for the benefit of the Lenders by the Agents, including
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, that shall not have been reimbursed by the Borrower
and (b) to indemnify and hold harmless each Agent and any of its directors,
officers, employees or agents, on demand, in the amount of such pro rata share,
from and against any and all liabilities, taxes, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by or asserted
against it in its capacity as Agent or any of them in any way relating to or
arising out of this Agreement or any other Loan Document or any action taken or
omitted by it or any of them under this Agreement or any other Loan Document, to
the extent the same shall not have been reimbursed by the Borrower or any other
Loan Party; provided that no Lender shall be liable to an Agent or any such
other indemnified person for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of such Agent or any of its directors, officers, employees or agents.
Each Revolving Credit Lender agrees to reimburse each of the Issuing Bank and
its directors, officers, employees and agents, in each case, to the same extent
and subject to the same limitations as provided above for the Agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
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ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Notices and other communications provided for
herein and in the other Loan Documents shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 501 Fifth Street, Bristol, TN
37620, Attention of John Gregory (Telecopy No. (423) 989-8006), with a
copy to Kyle P. Macione at the above address (Telecopy No. (423)
274-8677);
(b) if to the Administrative Agent, to Credit Suisse First
Boston, Eleven Madison Avenue, New York, NY 10010, Attention of David
Dodd (Telecopy No. (212) 325-8304), with a copy to Robert Finney at the
above address (Telecopy No. (212) 325-8319); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant
to which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Bank and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the
Issuing Bank, regardless of any investigation made by the Lenders or the Issuing
Bank or on their behalf, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any Fee or any other
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated. The provisions of Sections 2.14, 2.16, 2.20 and 9.05
shall remain operative and in full force and effect regardless of the expiration
of the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitments,
the expiration of any Letter of Credit, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral
Agent, any Lender or the Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon
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and inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, the Administrative
Agent, the Issuing Bank or the Lenders that are contained in this Agreement
shall bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of any or all of its Commitments and the Loans at the time owing to it);
provided, however, that (i) except in the case of an assignment to another
Lender or an Affiliate or Related Fund of the assigning Lender or another
Lender, (x) the Borrower, unless an Event of Default shall have occurred and be
continuing, and the Administrative Agent (and, in the case of any assignment of
a Revolving Credit Commitment, the Issuing Bank and the Swingline Lender) must
give their prior written consent to such assignment (which consent shall not be
unreasonably withheld) and (y) the amount of the Revolving Credit Commitment and
the Term Loan Commitment or outstanding Term Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 in the aggregate (or, if less, the
entire remaining amount of such Lender's Commitment or outstanding Term Loans)
and (ii) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire and any tax form as
required by the Internal Revenue Service. In the case of assignments made in
connection with the primary syndication, assignments made to any person will be
aggregated with any assignments made to any Affiliate or Related Fund of such
person for purposes of determining compliance with the $5,000,000 minimum
assignment requirement set forth in clause (y) above. Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.04, and payment from and
after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five Business Days after the execution thereof,
(A) the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement and (B) the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.16, 2.20 and 9.05, as well as to any Fees accrued
for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Term Loan Commitment and Revolving Credit Commitment, and the outstanding
balances of its Term Loans and Revolving Loans, in each case without giving
effect to assignments thereof which have not become effective, are as set forth
in such Assignment and Acceptance, (ii) except as set forth in (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or
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the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto, or the financial condition of the Borrower
or any of the Subsidiaries or the performance or observance by the Borrower or
any of the Subsidiaries of any of its obligations under this Agreement, any
other Loan Document or any other instrument or document furnished pursuant
hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the most recent financial statements referred to in Section 3.05(a) or delivered
pursuant to Section 5.03 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, the Collateral Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (vi) such assignee appoints
and authorizes the Administrative Agent and the Collateral Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Administrative Agent and the Collateral Agent,
respectively, by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive and the Borrower, the Administrative Agent, the Issuing Bank, the
Collateral Agent and the Lenders may treat each person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register and any
Assignments and Acceptances delivered to the Administrative Agent pursuant to
this Section 9.04(d) shall be available for inspection by the Borrower, the
Issuing Bank, the Collateral Agent and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder) and any tax form required by the Internal Revenue Service, a
processing and recordation fee of $3,500 and, if required, the written consent
of the Borrower, the Swingline Lender, the Issuing Bank and the Administrative
Agent to such assignment, the Administrative Agent shall (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower, Lenders, the
Issuing Bank and the Swingline Lender. No assignment shall be effective unless
it has been recorded in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Swingline
Lender, the Issuing Bank or the Administrative Agent sell participations to one
or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
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remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.14, 2.16 and 2.20 to the same extent as if they were Lenders and (iv) the
Borrower, the Administrative Agent, the Issuing Bank and the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrower relating to the
Loans or L/C Disbursements and to approve any amendment, modification or waiver
of any provision of this Agreement (other than amendments, modifications or
waivers decreasing any fees payable hereunder or the amount of principal of or
the rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans,
increasing or extending the Commitments or releasing all or substantially all
the Guarantors or the Collateral).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16 and, in the case of any assignee, the Administrative Agent shall
provide the Borrower with an execution copy of such agreement.
(h) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto. In
order to facilitate such an assignment to a Federal Reserve Bank, the Borrower
shall, at the request of the assigning Lender, duly execute and deliver to the
assigning Lender a promissory note or notes evidencing the Loans made to the
Borrower by the assigning Lender hereunder.
(i) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC"), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower, the option to provide to the
Borrower all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to the Borrower pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to make any Loan and
(ii) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial
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paper or other senior indebtedness of any SPC, it will not institute against, or
join any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary in this Section 9.04, any SPC may (i) with notice to,
but without the prior written consent of, the Borrower and the Administrative
Agent and without paying any processing fee therefor, assign all or a portion of
its interests in any Loans to the Granting Lender or to any financial
institutions (consented to by the Borrower and the Administrative Agent)
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC. This section may not be amended without the
written consent of the SPC.
(j) The Borrower shall not assign or delegate any of its rights or
duties hereunder without the prior written consent of the Administrative Agent,
the Issuing Bank and each Lender, and any attempted assignment without such
consent shall be null and void.
(k) In the event that S&P, Moody's and Thompson's BankWatch (or
InsuranceWatch Ratings Service, in the case of Lenders that are insurance
companies (or Best's Insurance Reports, if such insurance company is not rated
by Insurance Watch Ratings Service)) shall, after the date that any Lender
becomes a Revolving Credit Lender, downgrade the long-term certificate deposit
ratings of such Lender, and the resulting ratings shall be below BBB-, Baa3 and
C (or BB, in the case of a Lender that is an insurance company (or B, in the
case of an insurance company not rated by InsuranceWatch Ratings Service)), then
the Issuing Bank shall have the right, but not the obligation, at its own
expense, upon notice to such Lender and the Administrative Agent, to replace (or
to request the Borrower to use its reasonable efforts to replace) such Lender
with an assignee (in accordance with and subject to the restrictions contained
in paragraph (b) above), and such Lender hereby agrees to transfer and assign
without recourse (in accordance with and subject to the restrictions contained
in paragraph (b) above) all its interests, rights and obligations in respect of
its Revolving Credit Commitment to such assignee; provided, however, that (i) no
such assignment shall conflict with any law, rule and regulation or order of any
Governmental Authority and (ii) the Issuing Bank or such assignee, as the case
may be, shall pay to such Lender in immediately available funds on the date of
such assignment the principal of and interest accrued to the date of payment on
the Loans made by such Lender hereunder and all other amounts accrued for such
Lender's account or owed to it hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay all
out-of-pocket expenses incurred by the Administrative Agent, the Collateral
Agent, the Syndication Agents, the Issuing Bank and the Swingline Lender in
connection with the syndication of the credit facilities provided for herein and
the preparation and administration of this Agreement and the other Loan
Documents or in connection with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions hereby or thereby
contemplated shall be consummated) or incurred by the Administrative Agent, the
Collateral Agent or any Lender in connection with the enforcement or protection
of its rights in connection with this Agreement and the other Loan Documents or
in connection with the Loans made or Letters of Credit issued hereunder,
including the fees, charges and disbursements of Cravath, Swaine & Moore,
counsel for the Administrative Agent and the Collateral Agent, local real estate
counsel retained by the Collateral Agent in connection with the Mortgages and,
in connection with any such enforcement or protection, the fees, charges
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and disbursements of any other counsel for the Administrative Agent, the
Collateral Agent or any Lender.
(b) The Borrower agrees to indemnify the Administrative Agent, the
Collateral Agent, each Lender and the Issuing Bank, each Affiliate of any of the
foregoing persons and each of their respective directors, trustees, officers,
employees, agents and controlling persons (each such person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including reasonable
counsel fees, charges and disbursements, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the
execution or delivery of this Agreement or any other Loan Document or any
agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated thereby, (ii) the use of
the proceeds of the Loans or issuance of Letters of Credit, (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto, or (iv) any actual or alleged
presence, Release or threatened Release of Hazardous Materials on any property
presently or formerly owned, leased or operated by the Borrower or any of the
Subsidiaries, or any Environmental Claim related in any way to the Borrower or
the Subsidiaries; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, the Collateral Agent, any
Lender or the Issuing Bank. All amounts due under this Section 9.05 shall be
payable on written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, except to the extent prohibited by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender (or its
Affiliates) to or for the credit or the account of the Borrower against any of
and all the obligations of the Borrower now or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other
Loan Document and although such obligations may be unmatured. The rights of each
Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED,
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THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION),
INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS")
AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Borrower, the Administrative Agent, the Collateral Agent, any Lender or the
Issuing Bank in exercising any power or right hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Borrower, the Administrative Agent, the Collateral Agent, the Issuing Bank
and the Lenders hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or any other Loan Document or consent
to any departure by the Borrower or any other Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) below,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan or any date for reimbursement of an L/C Disbursement,
or waive or excuse any such payment or any part thereof, or decrease the rate of
interest on any Loan or L/C Disbursement, without the prior written consent of
each Lender affected thereby, (ii) change or extend the Commitment or decrease
or extend the date for payment of the Commitment Fees of any Lender without the
prior written consent of such Lender, (iii) amend or modify the provisions of
Section 2.17 or 9.04(j), the provisions of this Section, the definition of the
term "Required Lenders" or release any Guarantor whose total assets represent at
the time of such release more than 10% of the total assets of the Borrower and
its consolidated Subsidiaries or all or any substantial part of the Collateral
without the prior written consent of each Lender, (iv) waive or change the
allocation between Tranche A Term Loans and Tranche B Term Loans of any
prepayment pursuant to Section 2.12 or 2.13 without the prior written consent of
(A) Lenders holding at least 66-2/3% of the aggregate outstanding principal
amount of the Tranche A Term Loans and (B) Lenders holding at least 66-2/3% of
the aggregate outstanding principal amount of the Tranche B Term Loans (v) amend
Section 2.13(l) without the prior written consent of the Lenders holding a
majority of the aggregate outstanding principal amount of the Tranche B Term
Loans or (vi) permit any other credit facility or any new tranche of Loans
hereunder to be secured by the Collateral except as expressly permitted herein
without the approval of Lenders having Loans (excluding Swingline Loans), L/C
Exposures, Swingline Exposures and unused Revolving Credit Commitments and Term
Loan Commitments representing at least 66-2/3% of the sum of all such Loans,
Exposures and Commitments outstanding at such time; provided further that (i) no
such agreement that by its terms adversely affects the rights of the Revolving
Credit Lenders, the Tranche A Lenders or the Tranche B Lenders in a manner
different from its effect on the other classes of Lenders shall become effective
unless approved by a majority in interest of the class or classes of Lenders so
adversely affected (voting as a single group) and (ii) no such agreement shall
amend, modify or otherwise
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affect the rights or duties of the Administrative Agent, the Collateral Agent,
the Issuing Bank or the Swingline Lender hereunder or under any other Loan
Document without the prior written consent of the Administrative Agent, the
Collateral Agent, the Issuing Bank or the Swingline Lender. Notwithstanding the
foregoing, if the Borrower shall request the release of any Collateral to be
sold as part of any Asset Sale and shall deliver to the Collateral Agent a
certificate to the effect that such Asset Sale and the disposition of the
proceeds thereof will comply with the terms of this Agreement, the Collateral
Agent, if satisfied that the applicable certificate is correct, shall, without
the consent of any Lender, execute and deliver all such instruments as may be
required to effect the release of such Collateral.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
9.09 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and the
other Loan Documents constitute the entire contract between the parties relative
to the subject matter hereof. Any other previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement and
the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining
<PAGE> 83
78
provisions contained herein and therein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against the Borrower or its properties in the courts of
any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.16. Confidentiality. The Administrative Agent, the Collateral
Agent, the Issuing Bank and each of the Lenders agrees to keep confidential (and
to use its best efforts to cause its respective agents and representatives to
keep confidential) the Information (as defined below) and all copies thereof,
extracts therefrom and analyses or other materials based thereon, except that
the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender
shall be permitted to disclose Information (a) to such of its respective
officers,
<PAGE> 84
79
directors, employees, agents, affiliates and representatives as need to know
such Information, (b) to any direct or indirect counterparty in swap agreements
or such contractual counterparty's professional advisors (so long as such
contractual counterparty or professional advisors to such contractual
counterparty agree to be bound by the provisions of this Section 9.16), (c) to
the extent requested by any regulatory authority, including the National
Association of Insurance Commissioners or any successor entity thereto, (d) to
the extent otherwise required by applicable laws and regulations or by any
subpoena or similar legal process, (e) in connection with any suit, action or
proceeding (i) relating to the enforcement of its rights hereunder or under the
other Loan Documents or (ii) for purposes of establishing a "due diligence"
defense or (f) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section 9.16 or (ii) becomes
available to the Administrative Agent, the Issuing Bank, any Lender or the
Collateral Agent on a nonconfidential basis from a source other than the
Borrower; provided, however, that the Administrative Agent, the Collateral
Agent, the Issuing Bank and/or any Lender, as the case may be, shall provide the
Borrower, to the extent practicable, with advance notice of any disclosure of
information referred to in clauses (d) and (e) above. For the purposes of this
Section, "Information" shall mean all financial statements, certificates,
reports, agreements and information (including all analyses, compilations and
studies prepared by the Administrative Agent, the Collateral Agent, the Issuing
Bank or any Lender based on any of the foregoing) that are received from the
Borrower and related to the Borrower, any shareholder of the Borrower or any
employee, customer or supplier of the Borrower, other than any of the foregoing
that were available to the Administrative Agent, the Collateral Agent, the
Issuing Bank or any Lender on a nonconfidential basis prior to its disclosure
thereto by the Borrower, and that are in the case of Information provided after
the date hereof, clearly identified at the time of delivery as confidential. The
provisions of this Section 9.16 shall remain operative and in full force and
effect regardless of the expiration and term of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
<PAGE> 85
80
KING PHARMACEUTICALS, INC.,
by
/s/ Brian G. Shrader
-----------------------------------
Name: Brian G. Shrader
Title: Chief Financial Officer
CREDIT SUISSE FIRST BOSTON, as
Administrative Agent and as Collateral Agent,
by
/s/ Julia P. Kingsbury
-----------------------------------
Name: Julia P. Kingsbury
Title: Vice President
by
/s/ William S. Lutkins
-----------------------------------
Name: William S. Lutkins
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
by
/s/ Julia P. Kingsbury
-----------------------------------
Name: Julia P. Kingsbury
Title: Vice President
by
/s/ William S. Lutkins
-----------------------------------
Name: William S. Lutkins
Title: Vice President
FIRST UNION NATIONAL BANK,
by
/s/ David B. Straut
-----------------------------------
Name: David B. Straut
Title: Senior Vice President
NATIONSBANK, N.A.,
by
/s/ Michael D. Monte
-----------------------------------
Name: Michael D. Monte
Title: Senior Vice President
<PAGE> 86
81
BANK POLSKA KASA OPIEKI S.A.,
PEKAO GROUP, NEW YORK BRANCH,
by
/s/ Harvey Winter
-----------------------------------
Name: Harvey Winter
Title: Vice President
FIRST TENNESSEE BANK,
by
/s/ Kevin L. Jessee
-----------------------------------
Name: Kevin L. Jessee
Title: Community Bank President
SOCIETE GENERALE,
by
/s/ Louis P. Laville, III
-----------------------------------
Name: Louis P. Laville, III
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.,
by
/s/ Richard P. DeGrey
-----------------------------------
Name: Richard P. DeGrey
Title: Vice President
ARCHIMEDES FUNDING II, LTD., by ING
Capital Advisors, Inc., as Collateral
Manager,
by
/s/ Helen Y. Rhee
-----------------------------------
Name: Helen Y. Rhee
Title: Vice President &
Portfolio Manager
<PAGE> 87
82
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, LDC, by
ING Capital Advisors, Inc., as Investment
Advisor,
by
/s/ Helen Y. Rhee
-----------------------------------
Name: Helen Y. Rhee
Title: Vice President &
Portfolio Manager
CYPRESSTREE INVESTMENT FUND, LLC.
By CypressTree Investment Management Company,
Inc. its Managing Member,
by
/s/ Timothy M. Barns
-----------------------------------
Name: Timothy M. Barns
Title: Managing Director
CYPRESSTREE INSTITUTIONAL FUND, LLC
By CypressTree Investment Management Company,
Inc. its Managing Member,
by
/s/ Timothy M. Barns
-----------------------------------
Name: Timothy M. Barns
Title: Managing Director
NORTH AMERICAN SENIOR FLOATING RATE FUND
By CypressTree Investment Management
Company, Inc., as Portfolio Manager,
by
/s/ Timothy M. Barns
-----------------------------------
Name: Timothy M. Barns
Title: Managing Director
FRANKLIN FLOATING RATE TRUST,
by
/s/ Chauncey Lufkin
-----------------------------------
Name: Chauncey Lufkin
Title: Vice President
<PAGE> 88
83
KZH III LLC,
by
/s/ Virginia Conway
-----------------------------------
Name: Virginia Conway
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC,
by
/s/ Virginia Conway
-----------------------------------
Name: Virginia Conway
Title: Authorized Agent
KZH RIVERSIDE LLC,
by
/s/ Virginia Conway
-----------------------------------
Name: Virginia Conway
Title: Authorized Agent
KZH STERLING LLC,
by
/s/ Virginia Conway
-----------------------------------
Name: Virginia Conway
Title: Authorized Agent
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.,
by
/s/ Colleen M. Cunniffe
-----------------------------------
Name: Colleen M. Cunniffe
Title: Authorized Signatory
METROPOLITAN LIFE INSURANCE COMPANY,
by
/s/ James R. Dingler
-----------------------------------
Name: James R. Dingler
Title: Director
<PAGE> 89
84
MORGAN STANLEY DEAN WITTER PRIME
INCOME TRUST,
by
/s/ Sheila Finnerty
-----------------------------------
Name: Sheila Finnerty
Title: Vice President
OSPREY INVESTMENTS PORTFOLIO,
by Citibank, N.A., as Manager,
by
/s/ Steven Kaufman
-----------------------------------
Name: Steven Kaufman
Title: Vice President
STEIN ROE & FARNHAM INCORPORATED, AS
AGENT FOR KEYPORT LIFE INSURANCE
COMPANY,
by
/s/ Brian W. Good
-----------------------------------
Name: Brian W. Good
Title: Vice President
& Portfolio Manager
TORONTO DOMINION (NEW YORK), INC.,
by
/s/ Jorge A. Garcia
-----------------------------------
Name: Jorge A. Garcia
Title: Vice President
TRAVELERS CORPORATE LOAN FUND, INC.,
by Travelers Asset Management International
Corporation,
by
/s/ Allen R. Cantrell
-----------------------------------
Name: Allen R. Cantrell
Title: Investment Officer
<PAGE> 1
Exhibit 21.1
Subsidiaries State of Incorporation
- ------------ ----------------------
Monarch Pharmaceuticals, Inc. Tennessee
Parkedale Pharmaceuticals, Inc. Michigan
King Pharmaceuticals of Nevada, Inc. Nevada
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<EXCHANGE-RATE> 1
<CASH> 1,159
<SECURITIES> 0
<RECEIVABLES> 41,068
<ALLOWANCES> (1,402)
<INVENTORY> 26,556
<CURRENT-ASSETS> 75,610
<PP&E> 101,280
<DEPRECIATION> (7,299)
<TOTAL-ASSETS> 668,171
<CURRENT-LIABILITIES> 44,522
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 101,436
<TOTAL-LIABILITY-AND-EQUITY> 668,171
<SALES> 158,180
<TOTAL-REVENUES> 163,463
<CGS> 64,052
<TOTAL-COSTS> 108,025
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 14,866
<INCOME-PRETAX> 40,717
<INCOME-TAX> 15,396
<INCOME-CONTINUING> 20,910
<DISCONTINUED> 0
<EXTRAORDINARY> (4,411)
<CHANGES> 0
<NET-INCOME> 20,910
<EPS-PRIMARY> .69
<EPS-DILUTED> .69
</TABLE>
