<PAGE>
As filed with the Securities and Exchange Commission on September 21, 1995
Registration No. 33-60029
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
Amendment No. 1 to
FORM S-3
Registration Statement
Under the Securities Act of 1933
--------------------------
ALPHARMA INC.
(Exact name of registrant as specified in its charter)
--------------------------
Delaware 22-2095212 2834
(State or other (I.R.S. Employer (Primary Standard
jurisdiction of Identification Number) Industrial
incorporation or Classification Code
organization) Number)
One Executive Drive
Fort Lee, New Jersey 07024
(201) 947-7774
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Beth P. Hecht
Corporate Counsel and Secretary
One Executive Drive
Fort Lee, New Jersey 07024
(201) 947-7774
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
--------------------------
Copies to:
Glen E. Hess, P.C.
Kirkland & Ellis
Citicorp Center
153 East 53rd Street
New York, New York 10022-4675
(212) 446-4800
--------------------------
Approximate date of commencement of proposed sale to the public:
From time to time, as soon as practicable after the effective date of this
Registration Statement, as determined by market conditions.
--------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [_]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box: [X]
================================================================================
<PAGE>
CROSS-REFERENCE SHEET
Furnished Pursuant to Item 501(b) of Regulation S-K
<TABLE>
<CAPTION>
Item
No. Form S-3 Item Number and Caption Location in Caption or Prospectus
-- --------------------------------- ---------------------------------
<C> <S> <C>
1 Forepart of the Registration Statement and Outside
Front Cover Page of Prospectus Outside front cover page of Prospectus
2 Inside Front and Outside Back Cover Page of
Prospectus Inside front cover page of Prospectus
3 Summary Information; Risk Factors; Ratio of Earnings Not Applicable; Risk Factors;
to Fixed Charges Not Applicable
4 Use of Proceeds Use of Proceeds
5 Determination of Offering Price Not Applicable
6 Dilution Not Applicable
7 Selling Securityholders Selling Security Holders
8 Plan of Distribution Plan of Distribution
9 Description of Securities to be Registered Description of Class A Stock and
Warrants
10 Interest of Named Experts and Counsel Legal Matters; Experts
11 Material Changes The Company
12 Incorporation of Certain Information by Reference Incorporation of Certain Information by
Reference
13 Disclosure of Commission Position on Indemnification
for Securities Act Liabilities Not Applicable
</TABLE>
<PAGE>
SUBJECT TO COMPLETION, DATED SEPTEMBER 21, 1995
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PROSPECTUS
ALPHARMA INC.
2,450,246 Shares of Class A Common Stock
Warrants to Purchase 491,674 Shares of Class A Common Stock
This Prospectus relates to (i) issuances by ALPHARMA INC., a Delaware
corporation (the "Company"), of up to 2,450,246 shares of the Company's Class A
Common Stock, par value $.20 per share (the "Class A Stock"), upon exercise of
certain of the Company's warrants to purchase Class A Stock (the "Warrants");
(ii) reoffers and resales of Warrants to purchase up to 372,156 shares of Class
A Stock by certain holders of the Warrants specified under "Selling
Securityholders" below who may be deemed to be affiliates of the Company (the
"Affiliate Warrantholders"); (iii) reoffers and resales of Warrants to purchase
up to 119,518 shares of Class A Stock by certain holders of Warrants specified
under "Selling Securityholders" below who received their Warrants from the
Company pursuant to an exemption from the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act"), in reliance on
Section 4(2) thereof (such persons together with the Affiliate Warrantholders
being hereinafter referred to as the "Selling Securityholders"); and (iv)
reoffers and resales by the Affiliate Warrantholders of up to 372,156 shares of
Class A Stock purchased by such persons upon exercise of their Warrants. The
Warrants include all warrants issued in connection with the Combination
Transaction (as defined below), other than the warrants issued to the Sissener
Parties (as defined below). The shares of Class A Stock issuable upon exercise
of the Warrants are herein referred to as the "Warrant Shares."
As part of the consideration for the Company's acquisition of the
pharmaceutical, animal health, aquatic animal health and bulk antibiotics
businesses of A.L. Industrier AS (formerly known as Apothekernes Laboratorium
A.S), a Norwegian corporation ("A.L. Industrier"), on October 3, 1994 (the
"Combination Transaction"), the Company issued warrants to purchase 3,600,000
shares of Class A Stock pursuant to a Norwegian tender offer to the
shareholders of A.L. Industrier. Such warrants were issued pursuant to
exemptions from the registration requirements of the Securities Act in reliance
upon Regulation S promulgated thereunder and Section 4(2) thereof. The initial
exercise price of the Warrants is $21.945 per share of Class A Stock, subject
to certain antidilution adjustments (the "Exercise Price"). The Warrants are
exercisable at the holder's option for a period commencing on or after the
effective date of the registration statement of which this Prospectus is a part
(the "Registration Statement") and ending at 5:00 p.m., New York City time, on
January 3, 1999 (the "Expiration Date"). See "Description of the Class A Stock
and Warrants" for a summary of the features of the Class A Stock and Warrants.
If and when all of the Warrants have been exercised, the Company will receive
proceeds of approximately $53.8 million. The Company will not receive any of
the proceeds from the sale of Warrants or Class A Stock by the Selling
Securityholders.
--------------------------------
The Class A Stock is listed on the New York Stock Exchange under the symbol
"ALO." The closing sales price of the Class A Stock on the New York Stock
Exchange on September 20, 1995 was $22.00 per share. The Company intends to
file an application to the New York Stock Exchange for the listing of the
Warrants.
--------------------------------
See "Risk Factors" for a discussion of certain considerations relevant to an
investment in the Class A Stock and the Warrants.
--------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
--------------------------------
<TABLE>
<CAPTION>
Underwriting
Discounts and Proceeds to
Price to Public Commissions Issuer(1)
------------------ --------------- -------------
<S> <C> <C> <C>
Class A Stock Issuable
Upon Exercise of
Warrants
Per Share................. $21.945(2) N/A $21.945
Total..................... $53,770,648 N/A $53,770,648
</TABLE>
----------------------
(1) Before deducting estimated expenses of $102,042 payable by the
Company relating to the issuance of the Warrant Shares.
(2) This represents the initial Exercise Price of the Warrants.
The date of this Prospectus is September 21, 1995
<PAGE>
No dealer, salesman or other person is authorized to give any information
or to make any representations other than those contained or incorporated by
reference in this Prospectus and, if given or made, such information or
representation must not be relied upon as having been authorized by the Company.
This Prospectus and any supplement hereto shall not constitute an offer to sell,
or the solicitation of any offer to buy, any securities other than the Class A
Stock or Warrants to which it relates, nor does it constitute an offer to or
solicitation of any person in any state or jurisdiction in which such
solicitation or offer would be unlawful. All information contained in this
Prospectus is as of the date of this Prospectus. Neither the delivery of this
Prospectus nor any sale made hereunder, shall under any circumstances, create an
implication that there has been no change in the affairs of the Company since
the date hereof, or that the information contained herein is correct as of any
time subsequent to the date hereof.
No action has been or will be taken by the Company that would permit a
public offering of the Class A Stock or the Warrants or the circulation or
distribution of this Prospectus or any offering material in relation to the
Company, the Class A Stock or the Warrants in any country or jurisdiction where
action for that purpose may be required other than the United States.
TABLE OF CONTENTS
Page
----
Available Information...................................... 4
Incorporation of Certain Information by Reference.......... 5
The Company................................................ 5
Risk Factors............................................... 6
Use of Proceeds............................................ 8
Description of Class A Stock and Warrants.................. 9
Shares Eligible for Future Sale............................ 11
Selling Securityholders.................................... 11
Plan of Distribution....................................... 12
Legal Matters.............................................. 14
Experts.................................................... 14
AVAILABLE INFORMATION
The Company is subject to the reporting and other informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy materials and other
information with the Securities and Exchange Commission (the "Commission").
Such reports, proxy material and other information can be inspected and copied
at the public reference facilities maintained by the Commission at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the following Regional
Offices of the Commission: Chicago Regional Office, 500 West Madison Street,
Suite 9400, Chicago, Illinois 60661-2511 and New York Regional Office, 7 World
Trade Center, 13th Floor, New York, New York 10048. Copies of such material can
also be obtained from the Public Reference Section of the Commission, Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In
addition, certain of such materials are also available through the Commission's
Electronic Data Gathering and Retrieval System ("EDGAR").
This Prospectus constitutes a part of the Registration Statement on Form
S-3 filed by the Company with the Commission under the Securities Act. This
Prospectus omits certain of the information contained in the Registration
Statement and the exhibits thereto. For further information with respect to the
Company and the securities offered hereby, reference is made to the Registration
Statement and the exhibits thereto, copies of which are on file at the offices
of the Commission and may be obtained upon payment of the fee prescribed by the
Commission, or may be examined without charge at the offices of the Commission.
Statements contained in this Prospectus or in any document incorporated in this
Prospectus by reference as to the contents of any contract or other document
referred to herein or therein are not necessarily complete, and, in each
instance, reference is made to the copy of such contract or other document filed
as an exhibit to the Registration Statement or such other document, each such
statement being qualified in all respects by such reference.
2
<PAGE>
The Common Stock of the Company is listed and traded on the New York Stock
Exchange. Reports, proxy statements and other information concerning the
Company may be inspected at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents have been filed with the Commission and are
incorporated by reference into this Prospectus:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994.
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1995.
(c) The Company's Current Report on Form 8-K dated May 22, 1995.
(d) The description of the Class A Stock contained in the Company's Proxy
Statement for its Special Meeting of Stockholders held on September
27, 1994 which was filed with the Commission on August 22, 1994.
(e) The Company's Proxy Statement for its Annual Meeting of Stockholders
held on June 7, 1995.
(f) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1995.
(g) The Company's Information Statement pursuant to Section 14(c) of the
Securities Exchange Act of 1934, filed with the Commission on
September 12, 1995.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the termination of the offering of the Class A Stock and Warrants
offered hereby shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of such documents.
Any statement contained herein or in any document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus and the Registration Statement of which it is a
part to the extent that a statement contained herein or therein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus or such Registration Statement.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents referred to
above which have been or may be incorporated in the Prospectus by reference,
other than exhibits to such documents unless the exhibits themselves are
specifically incorporated by reference. Requests for such copies should be
directed to ALPHARMA INC., One Executive Drive, Fort Lee, New Jersey 07024,
Attention: Investor Relations Manager (telephone number: (201) 947-7774).
THE COMPANY
The Company is a multinational pharmaceutical company engaged in
developing, manufacturing and marketing specialty generic and proprietary human
pharmaceuticals and animal health products. The Company has two principal
business segments: human pharmaceuticals and animal health.
The human pharmaceuticals business segment is comprised of three operating
divisions. The U.S. Pharmaceuticals Division (the "USPD") develops,
manufactures and markets specialty generic human pharmaceuticals in the United
States. The International Pharmaceuticals Division develops, manufactures and
markets a broad range of generic and specialty dosage-form human
pharmaceuticals, oral health care products, adhesive bandages and surgical tapes
under proprietary brands primarily in the Nordic and other Western European
countries and Indonesia. The Fine Chemicals Division develops, manufactures and
markets bulk pharmaceutical antibiotics to the pharmaceutical industry
worldwide.
The animal health business segment consists of two operating divisions.
The Animal Health Division develops, manufactures and markets feed additives and
animal health products for animals raised for commercial food production
3
<PAGE>
worldwide. The Aquatic Animal Health Division develops, manufactures and
markets vaccines for use in immunizing farmed fish against disease.
The Company maintains dual corporate headquarters. Its principal executive
offices in the United States are located at One Executive Drive, Fort Lee, New
Jersey 07024 (telephone number: (201) 947-7774) and its principal executive
offices in Norway are located at Harbitzaleen 3, N-0212 Oslo, Norway (telephone
number: (+47) 22 52 90 00).
RISK FACTORS
Prospective investors should consider carefully the following matters, in
addition to the other information concerning the Company and its business
contained in this Prospectus or incorporated herein by reference, before
purchasing the securities offered hereby.
General Risk Related to International Operations
The Company derives a substantial portion of its revenues and operating
income from its foreign operations. These foreign operations are subject to
various risks which are not present in domestic operations, including currency
exchange fluctuations and restrictions, restrictions on imports, government
price controls, restrictions on the level or remittance of dividends, interest,
royalties and other payments, the need for governmental approval of new
operations and/or existing operations and other corporate actions, political
instability and uncertainty, uncertainty as to the enforceability of commercial
rights and trademarks and various types of local participation in operations
(such as local equity ownership and, as required in several European countries,
employee representation on boards of directors and other committees).
Exchange Rates
The fluctuations of currencies have and will continue to impact operations
of the Company since a substantial portion of its revenues (approximately 38% in
1994) are derived outside of the United States. The Company's currency
fluctuation risks can generally be categorized as (i) transaction exposure
(i.e., the cash flow risk of converting foreign cash flows (receipts and
payments) into the functional currency of the operating entity); (ii)
translation exposure (i.e., the accounting risk of converting the value of net
earnings and balance sheet assets from foreign currencies to U.S. dollars); and
(iii) economic exposure (i.e., the operating risk of competing with other
companies that have a cost or financing base substantially in a currency other
than that of the Company or its subsidiaries). The Company cannot predict
future currency fluctuations or their impact on the Company's results.
Competition
The human pharmaceutical and animal health product businesses are highly
competitive and many of the Company's competitors are substantially larger and
have greater financial, technical and marketing resources than the Company.
There can be no assurance that the Company will be able to compete effectively
with respect to the development, manufacture, marketing or sale of its products.
Certain of the Company's competitors presently have similar products on the
market and new products under development. As more competitors obtain the
necessary approvals to manufacture and sell similar and/or new products from
government agencies, the profit margins on such products may be reduced. In
addition, parallel imports (i.e., imports of competing products from neighboring
countries) may also result in lower volume growth and downward pressure on
prices in some product and market areas, most notably in Europe.
Government Regulation
The development, manufacturing and marketing of most of the Company's
products are subject to comprehensive government regulation in the U.S., Norway,
Denmark and other countries. Government regulation includes detailed inspection
of and controls over manufacturing practices and procedures, requires approvals
to market products, and can result in the recall of products and suspension of
production. Such government regulation substantially increases the cost of
producing human pharmaceutical and animal health products. Approval of the U.S.
Food and Drug Administration ("FDA") is required before any new prescription or
over-the-counter drug products or any animal health drug can be marketed in the
United States. Analogous governmental and agency approvals are similarly
required before
4
<PAGE>
such products are marketed in other countries. The process of obtaining
required regulatory approvals from the FDA and analogous foreign regulatory
authorities takes a number of years and involves the performance of scientific
tests and clinical trials and the expenditure of substantial resources.
There can be no assurance that the FDA and foreign regulatory agencies will
grant regulatory approvals to market new products or, if granted, that such
regulatory approvals will be received in a timely fashion to permit successful
commercialization of such products. The Company has been impacted in previous
years by delays in the receipt of approvals from the FDA for new products and
supplemental approvals for certain existing products. In addition, continuing
studies of the proper utilization, safety and efficacy of pharmaceuticals and
animal health products are being conducted by industry, government agencies and
others. Such studies can call into question the utilization, safety and
efficacy of previously marketed products and in some cases have resulted, and
may in the future result, in the discontinuance of their marketing, and in
certain countries, give rise to claims for damages from persons who believe they
have been injured as a result of their use. There is also the possibility that
future legislative or regulatory developments might have an adverse effect on
the Company.
The Company's manufacturing operations are required to comply with current
good manufacturing practices ("CGMP") as interpreted by the FDA and, in
countries outside the United States, with similar regulations. This concept
encompasses all aspects of the production process, including validation and
record keeping, and involves changing and evolving standards. It also means
that the Company is subject to periodic on-site inspections by the FDA to ensure
compliance with CGMP and by other analogous foreign agencies to ensure
compliance with similar regulations. Two of the Company's subsidiaries in the
USPD, Barre-National, Inc. and Able Laboratories, Inc., are parties to separate
consent decrees with the FDA (the "Consent Decrees") which specify the
standards each subsidiary must achieve in meeting CGMP. Therefore, continuing
compliance with CGMP is a difficult and expensive part of regulatory compliance.
The evolving and complex nature of regulatory requirements, the broad
authority and discretion of the FDA and analogous foreign agencies, and the
increased level of regulatory oversight have resulted in a higher possibility
that from time to time the Company will be adversely affected by regulatory
actions despite its ongoing efforts and commitment to achieve and maintain full
compliance with all regulatory requirements.
The levels of revenues and profitability of pharmaceutical companies in
general (including the Company) may also be affected by the continuing efforts
of U.S. and foreign governmental and third party payors to contain or reduce the
costs of healthcare by a variety of measures. In many countries where the
Company does business, including some of the Scandinavian countries, the initial
prices of human pharmaceuticals are dependent upon governmental approval or
clearance under governmental reimbursement schemes usually based on costs or
prices of comparable products and subsequent price increases may also be
regulated. In addition, certain European governments have not allowed price
increases in the past three years. Such changes and efforts at reform may have
a material adverse effect on the business, financial condition and profitability
of the Company.
Relationship of the Company and A.L. Industrier; Controlling Stockholder
A.L. Industrier, as the beneficial owner of 100% of the outstanding shares
of the Company's Class B Common Stock, par value $.20 per share (the "Class B
Stock," and together with the Class A Stock, the "Common Stock"), is presently
entitled to elect 66 2/3% of the members of the Company's Board of Directors and
to cast in excess of a majority of the votes generally entitled to be cast on
matters presented to the Company's stockholders. The Class B Stock represents
approximately 38.0% of the total Common Stock outstanding on August 31, 1995.
Accordingly, A.L. Industrier is able to exert substantial control over the
Company and its policies.
In connection with the Combination Transaction, A.L. Industrier and the
Company's Norwegian subsidiary, Apothekernes Laboratorium AS ("A.L. Oslo"),
entered into a lease (the "Skoyen Lease") pursuant to which A.L. Industrier
leases to A.L. Oslo the land and facility in Oslo, Norway where the principal
administrative offices and fermentation plant for certain of the businesses
purchased in the Combination Transaction are located. The Skoyen Lease has a
term of 20 years. A.L. Oslo also entered into an administrative services
agreement with A.L. Industrier pursuant to which A.L. Oslo performs certain
administrative services for A.L. Industrier. The initial term of such agreement
is three years and will be automatically extended for one-year terms thereafter
unless terminated by either of the parties thereto. In addition, A.L. Oslo
sells certain products, primarily multivitamins and adhesive products, to a
subsidiary of A.L. Industrier for distribution to retail food stores. All
transactions with A.L. Industrier are subject to review by, and in certain
circumstances prior approval of, the Audit Committee of the Company's Board of
Directors.
5
<PAGE>
Mr. Einar W. Sissener, a director and the Chairman and Chief Executive
Officer of the Company and Chairman of A.L. Industrier, controls a total of
138,232 ordinary shares of A.L. Industrier's capital stock (representing
approximately 34.6% of the outstanding A.L. Industrier shares), consisting of
52,462 A.L. Industrier shares he owns directly, 70,770 A.L. Industrier shares
owned by A/S Swekk, his family-controlled private holding company ("Swekk," and
together with Mr. Sissener, the "Sissener Parties") and 15,000 owned by EWS
Stiftelse Trust, a trust for the benefit of Mr. Sissener's son, of which Mr.
Sissener is chairman of the Board of Trustees. In addition, Mr. Sissener has
the authority to vote an additional 64,850 A.L. Industrier shares (representing
approximately 16.2% of the outstanding A.L. Industrier shares) owned by other
members of the Sissener family.
Possible Effect of Warrants
The Warrants provide an opportunity to profit from a rise in the market
price of the Company's Class A Stock and, if exercised, will cause dilution to
the other common stockholders. Further, the terms on which the Company may
obtain financing during that period may be affected by the existence of the
Warrants. The holders of the Warrants may exercise such Warrants at a time when
the Company might be able to obtain additional capital through a new offering of
securities on more favorable terms. In addition, the possibility for the
simultaneous exercise of large amounts of Warrants may affect the value of the
Warrants and Warrant Shares to the holders thereof and may cause volatility in
the market for such securities.
Debt and Interest Rates
The Company is a party to various agreements under which it has borrowed,
or may in the future borrow, funds, on both a short-term and a long-term
basis. A substantial portion of this short-term and long-term debt is at
variable interest rates. Therefore, a significant increase in interest rates in
the U.S. or Europe may have a material adverse effect on the Company's results
of operations.
On September 28, 1994 the Company signed a $185,000,000 credit agreement
("1994 Credit Facility") with a consortium of banks arranged by the Union Bank
of Norway and Den norske Bank A.S. The 1994 Credit Facility contains various
financial covenants including the maintenance of minimum equity to assets,
current asset and interest coverage ratios. The equity to asset ratio requires
the Company to maintain stockholders' equity (plus adjustments) of at least 30%
of total assets. At June 30, 1995, the ratio computed in accordance with the
terms of the 1994 Credit Facility was 35%. This ratio, if not waived or
modified by the banks, would in effect require the Company to issue equity in
the near term if significant additional funding for acquisitions or other
purposes is required beyond that currently planned for its operating needs.
As of June 30, 1995, the Company's long-term indebtedness was
approximately $222.7 million and total common stockholders' equity was
approximately $197.2 million. As a result of debt service requirements and
applicable financial covenants, material adverse developments affecting the
business of the Company could adversely affect the Company's ability to meet
ongoing competitive pressures or to take advantage of business opportunities and
could result in reductions in planned expenditures to continue to meet
restrictive financial covenants. In 1993 and 1994 the Company's cash flow from
operating activities was not sufficient to fund capital expenditures and
acquisitions and approximately $106.0 million of debt was incurred. Capital
expenditures and possible acquisitions in 1995 may exceed cash flow from
operating activities. Scheduled loan repayments are approximately $13 million
in 1995 and 1996 but increase to $19 million in 1997, $28 million in 1998, and
$90 million in 1999. While the Company believes it has adequate financial
resources available to it for planned 1995 expenditures, it may require equity
financing, additional borrowing capacity or asset sales to provide for capital
expenditures or debt repayments in future periods.
USE OF PROCEEDS
As the Warrants are exercised, the Company will receive the Exercise Price
multiplied by the number of Warrant Shares being purchased upon exercise of such
Warrants. If and when all of the Warrants have been exercised, the Company will
receive proceeds of approximately $53.8 million. Such proceeds are to be used
for general corporate purposes, including funding of working capital and
repayment of debt. Funds not required immediately for such purposes may be
invested temporarily in short-term marketable securities. The Company will not
receive any of the proceeds upon the sale of the Warrants or Warrant Shares by
the Selling Securityholders.
6
<PAGE>
DESCRIPTION OF CLASS A STOCK AND WARRANTS
Class A Stock
The Company's authorized capital stock currently consists of: (i)
40,000,000 shares of Class A Stock, of which 13,413,344 shares were issued and
outstanding as of August 31, 1995, (ii) 15,000,000 shares of Class B Stock, of
which 8,226,562 shares were issued and outstanding as of August 31, 1995, and
(iii) 500,000 shares of Preferred Stock, par value $1.00 per share, of which
none was outstanding as of August 31, 1995.
The Class A Stock and the Class B Stock are identical in all respects,
including with respect to the right to receive dividends, except as follows:
(i) the holders of the Class A Stock are currently entitled as a class to elect
33 1/3% of the Board of Directors (rounded to the nearest whole number, but not
less than two members of the Company's Board of Directors), and the holders of
the Class B Stock are entitled as a class to elect the remaining directors; (ii)
on all other matters submitted to a vote of stockholders, the holders of the
Class A Stock are entitled to one vote per share of Class A Stock held, and the
holders of the Class B Stock are entitled to four votes per share of Class B
Stock held; (iii) the holders of the Class B Stock have the right at any time
and from time to time to convert each share of Class B Stock into one share of
Class A Stock; and (iv) shares of Class A Stock may be declared and paid as
dividends on shares of both Class A Stock and Class B Stock, shares of Class B
Stock may be declared and paid as dividends on shares of both Class A Stock and
Class B Stock, or shares of Class A Stock may be declared and paid as dividends
on shares of Class A Stock and shares of Class B Stock may be declared and paid
as dividends on shares of Class B Stock and in any such case the same number of
shares must be declared and paid as dividends in respect of each outstanding
share of Class A Stock and each outstanding share of Class B Stock. The special
voting rights of the holders of the Class A Stock as reflected in clause (i)
above terminate if the number of outstanding shares of Class A Stock is less
than 10% of the aggregate number of outstanding shares of Class A Stock and
Class B Stock, and the special voting rights of the holders of the Class B Stock
as reflected in clauses (i) and (ii) above terminate if the number of
outstanding shares of Class B Stock is less than 12 1/2% of such aggregate
number, in each case as determined on the record date for the stockholder vote.
The Company may not subdivide or combine either class of Common Stock
without at the same time combining or subdividing shares of the other class of
Common Stock in the same proportion. Upon liquidation of the Company, holders
of the Class A Stock and the Class B Stock are entitled to share ratably in any
assets available for distribution to stockholders after payment of all
obligations of the Company, and payments due in respect of any other senior
securities of the Company, including any shares of Preferred Stock. Holders of
Common Stock do not have cumulative voting rights or preemptive, subscription
or, except as set forth above with respect to the Class B Stock, conversion
rights.
Warrants
General. The Warrants have been issued in registered form pursuant to
the terms of a warrant agreement (the "Warrant Agreement") dated October 3, 1994
between the Company and The First National Bank of Boston, as the warrant agent
(the "Warrant Agent"), a copy of which is filed as an exhibit to the Company's
Annual Report on Form 10-K incorporated herein by reference. The statements
herein relating to the Warrants and the Warrant Agreement are summaries and are
subject to the detailed provisions of the Warrant Agreement, to which reference
is hereby made for a complete statement of those provisions. Whenever
particular provisions of the Warrant Agreement or terms defined therein are
referred to herein, those provisions or definitions are incorporated by
reference as part of the statements made, and the statements are qualified in
their entirety by that reference.
The Warrants represent a portion of the warrants issued by the Company
in the Combination Transaction. In the Combination Transaction, the Company
issued warrants to purchase an aggregate of 3,600,000 shares of Class A Stock
(representing approximately 14.3% of the total Common Stock outstanding as of
August 31, 1995, assuming all warrants had been exercised at such date) pursuant
to the Warrant Agreement. All of the warrants issued pursuant to the Warrant
Agreement have identical terms, except that the warrants held by the Sissener
Parties (the "Sissener Warrants") are not exercisable or transferable (except
for certain permitted transfers) until October 3, 1997.
Exercise of Warrants. Each Warrant entitles the registered holder
thereof to purchase one share of Class A Stock at the initial Exercise Price of
$21.945 per share, subject to certain antidilution adjustments. The Exercise
Price is payable in cash only. The Warrants are exercisable, at the holder's
option, as a whole or from time to time in part at any time, beginning after the
date that the Registration Statement of which this Prospectus constitutes a part
becomes effective and ending at 5:00 p.m., New York City time, on January 3,
1999 in accordance with the terms of the Warrants
7
<PAGE>
and the Warrant Agreement. The Company may at its option extend the Expiration
Date of the Warrants for such period as it may determine. However, so long as
the Sissener Parties own the Sissener Warrants, any such change in the terms of
the Warrants is subject to certain restrictions on transactions with interested
parties pursuant to the General Corporation Law of the State of Delaware.
Notice of such change in the Expiration Date will be given to the Warrant Agent
and the holders of the Warrants. The Company will not be required to issue any
fractional shares of Class A Stock or, under certain circumstances, any
fractional Warrants. Holders of Warrants will receive cash in lieu of any such
fractional shares or Warrants.
Certain Adjustments. No adjustment in the Exercise Price or the
number of Warrant Shares purchasable upon exercise of the Warrants will be made
for any cash dividends or distributions payable out of consolidated earnings or
earned surplus. The Exercise Price and the number of Warrant Shares purchasable
upon exercise of each Warrant are subject to adjustment upon (1) the payment of
a dividend by the Company on its shares of Class A Stock in shares of Class A
Stock or Class B Stock, (2) any subdivision, combination, or reclassification of
the Class A Stock, (3) any distribution by the Company generally to the holders
of the Class A Stock of certain rights, options, or warrants to subscribe for or
purchase shares of Class A Stock at a price per share lower than the then
current market price per share, or (4) any distribution by the Company generally
to the holders of the Class A Stock of evidences of indebtedness or assets
(excluding certain cash dividends or distributions), or other rights, options,
warrants or convertible or exchangeable securities containing the right to
subscribe for or purchase Class A Stock. No adjustment in the Exercise Price or
the number of Warrant Shares purchasable upon exercise of the Warrants will be
required until cumulative adjustments would require a change of at least 1% in
the number of Warrant Shares purchasable upon exercise of the Warrants. In lieu
of adjusting the number of shares of Class A Stock issuable upon exercise of
each Warrant, the Company may elect to adjust the number of outstanding
Warrants.
Notwithstanding the foregoing, in case of a consolidation, merger,
sale or conveyance of the property of the Company as an entirety or
substantially as an entirety, the holder of each outstanding Warrant shall
continue to have the right to exercise the Warrant for the kind and amount of
shares and other securities and property receivable by a holder of the number of
shares of Class A Stock for which such Warrants were exercisable immediately
prior thereto.
Transferability. Any Warrant may be transferred, split up, combined
or exchanged for another Warrant or Warrants entitling the registered holder
thereof to purchase a like number of shares of Class A Stock as the Warrant
certificate or certificates surrendered. Certificates may be exchanged for
other certificates in different denominations representing Warrants to purchase
the same aggregate number of shares at any time.
No Rights as Holder of Class A Stock. No holder of Warrants shall be
entitled to vote or consent or receive dividends or be deemed for any other
purpose the holder of Class A Stock or of any other securities of the Company
that may at any time be issuable upon the exercise of the Warrants until the
Warrants are properly exercised as provided in the Warrant Agreement.
Certain Registration Rights. The Warrants were issued pursuant to
exemptions from the registration requirements of the Securities Act, in reliance
on Regulation S promulgated under, and Section 4(2) of, the Securities Act.
Pursuant to the Warrant Agreement, the Company is obligated to file with the
Commission and use its best efforts to cause the Registration Statement to
become effective by October 3, 1995. The Company is also obligated to use its
best efforts to keep the Registration Statement continuously effective from the
date on which it is declared effective by the Commission through the tenth
business day following the Expiration Date or in the case of any affiliate of
the Company, until the earlier of (x) such time as may be necessary to permit
sale of such affiliate's Warrant Shares or (y) the second anniversary of the
Expiration Date. Pursuant to the Warrant Agreement, the Company is obligated to
take all action necessary to list the Warrants and the Warrant Shares for
trading or quotation on the New York Stock Exchange or, if such listing is in
the opinion of the Company impracticable, on another national securities
exchange or an over-the-counter quotation system as the Company's Board of
Directors deems appropriate to facilitate the trading of the Warrants and the
Warrant Shares.
8
<PAGE>
SHARES ELIGIBLE FOR FUTURE SALE
Sales of significant amounts of shares of the Class A Stock in the
public market may have an adverse effect on the prevailing market price. In the
Combination Transaction, the Company issued, pursuant to exemptions from the
registration requirements of the Securities Act in reliance on Regulation S
promulgated thereunder and Section 4(2) thereof, (i) Warrants to purchase
491,674 shares of Class A Stock (approximately 2.9% of the shares of Class A
Stock outstanding on August 31, 1995, assuming all warrants had been exercised
at such date) to the Selling Securityholders, (ii) warrants to purchase
1,149,755 shares of Class A Stock (approximately 6.8% of the shares of Class A
Stock outstanding on August 31, 1995, assuming all warrants had been exercised
at such date) to the Sissener Parties, and (iii) Warrants to purchase 1,958,571
shares of Class A Stock (approximately 11.5% of the shares of Class A Stock
outstanding on August 31, 1995, assuming all warrants had been exercised at such
date) to certain other A.L. Industrier shareholders (the "Other Warrants").
The Warrants issued to the Selling Securityholders may be sold from
time to time after the date of this Prospectus. See "Plan of Distribution --
Distribution of Warrants and Warrant Shares by Selling Securityholders." In
addition, after the date of this Prospectus, the holders of the Other Warrants
may sell their Warrants from time to time pursuant to an exemption from the
registration requirements of the Securities Act in reliance on Section 4(1)
thereof.
The Sissener Warrants are identical to the Warrants in all respects,
except that the Sissener Parties are not permitted to exercise their warrants
before October 3, 1997, and may not transfer the Sissener Warrants prior to
October 3, 1997 except in a transfer by operation of law, a transfer pursuant to
applicable laws of descent and distribution, or a transfer to the owners of an
entity holder upon the liquidation of such entity. The Company expects to file
with the Commission a registration statement (the "Sissener Registration
Statement") relating to the Sissener Warrants and the shares of Class A Stock
issuable upon exercise thereof so that such securities are freely tradeable in
the United States on and after October 3, 1997. Pursuant to the Warrant
Agreement, the Company agreed to use its best efforts to keep each of the
Registration Statement and the Sissener Registration Statement continuously
effective from the date on which it is declared effective by the Commission
through the tenth business day following the Expiration Date or in the case of
any affiliate of the Company, until the earlier of (x) such time as may be
necessary to permit sales of such affiliate's Warrant Shares or (y) the second
anniversary of the Expiration Date.
SELLING SECURITYHOLDERS
The following table sets forth (i) the name of each Selling
Securityholder, (ii) any position, office, or other material relationship the
Selling Securityholder has had in the last three years with the Company or its
predecessors or affiliates, (iii) the number of Warrants owned at May 31, 1995
by and to be sold for the account of such Selling Securityholder and the number
of Warrant Shares obtainable upon exercise of the Warrants owned by such Selling
Securityholder and to be sold for the account of such person pursuant to this
Prospectus unless otherwise noted, (iv) the percentage of Warrants outstanding
at August 31, 1995 owned by such Selling Securityholder, (v) the number of
shares of Class A Stock owned by such Selling Securityholder at August 31, 1995,
assuming no Warrants held by such Selling Securityholder are exercised, (vi) the
number of shares of Class A Stock owned by such Selling Securityholder at August
31, 1995, assuming all Warrants held by such Selling Securityholder are
exercised, and (vii) the percentage of Class A Stock outstanding at August 31,
1995 owned by such Selling Securityholder, assuming all Warrants are
exercised.
9
<PAGE>
<TABLE>
<CAPTION>
Number of Shares of Class A Shares of Class Percentage of
Warrants Owned Stock Owned at A Stock Owned Class A Stock
at Percentage of August 31, 1995 at August 31, 1995 Outstanding at
August 31, 1995/ Total Number of Assuming No Assuming All August 31, 1995
Warrant Shares Warrants Warrants Held Warrants Held Assuming All
Selling Obtainable Upon Outstanding at by Such Person by Such Person Warrants are
Securityholder Exercise August 31, 1995(1) are Exercised are Exercised Exercised(2)
----------------------------- ---------------- ------------------ ------------------ ------------------ ----------------
<S> <C> <C> <C> <C> <C>
Evelyn A. Connors+ 5,691.30 * 0 5,691.30 *
EWS Stiftelse (3) 139,950.00 3.9 0 139,950.00 *
Thor Kristiansen (4) 4,665.00 * 0 4,665.00 *
Geraldine Leonhardt+ 18,660.00 * 0 18,660.00 *
James W. Leonhardt Trust+ 18,660.00 * 0 18,660.00 *
William S. Leonhardt Trust+ 18,660.00 * 9,187.00 27,847.00 *
W.S. Leonhardt Trust+ 18,660.00 * 0 18,660.00 *
Jannick Lindback+ 1,866.00 * 0 1,866.00 *
Kjersti Sissener Munthe(5) 110,094.00 3.1 0 110,094.00 *
Kari Sissener(6) 93,300.00 2.6 0 93,300.00 *
Janet Small+ 18,660.00 * 0 18,660.00 *
Georg W. Sverdrup (7) 18,660.00 * 4,500.00(8) 23,160.00 *
Erik G. Tandberg (9) 74.64 * 0 74.64 *
Lynne Toth+ 18,660.00 * 0 18,660.00 *
Anniken Edwin Wiik(10) 139.95 * 0 139.95 *
Ingrid Wiik (11) 5,271.45 * 33.3 5,304.75 *
</TABLE>
-----------------
+ This Prospectus does not relate to the resale or reoffer of Warrants Shares
held by such person.
* Less than 1%.
(1) Warrants to purchase an aggregate of 3,600,000 shares of Class A Stock were
outstanding at August 31, 1995.
(2) Assumes warrants to purchase an aggregate of 3,600,000 shares of Class A
Stock have been exercised.
(3) EWS Stiftelse is a trust fund established for the benefit of the son of
Einar W. Sissener. Mr. Sissener is the Chairman of the Board of Trustees
for this fund.
(4) Mr. Kristiansen has been Vice President of the Company and the President of
the Company's Fine Chemicals Division since October 3, 1994.
(5) Ms. Munthe is the wife of Gert W. Munthe, who has been a director of the
Company since June 20, 1994, and is a daughter of Einar W. Sissener.
(6) Ms. Kari Sissener is the wife of Einar W. Sissener.
(7) Mr. Sverdrup has been a director of the Company since June 20, 1994.
(8) These shares of Class A Stock are owned by Unger-Vetlesen Medical Fund.
Mr. Sverdrup has advised the Company that, as Chairman of the Board of
Unger-Vetlesen Medical Fund, he has sole voting power with respect to, and
may be deemed to be the beneficial owner of, such shares.
(9) Mr. Tandberg has been a director of the Company since June 20, 1994.
(10) Ms. Anniken Wiik is the daughter of Ingrid Wiik.
(11) Ms. Ingrid Wiik has been Vice President of the Company and the President of
the Company's International Pharmaceuticals Division since October 3, 1994.
PLAN OF DISTRIBUTION
Distribution of Class A Stock by the Company
Upon the exercise of each Warrant from time to time, the Company shall
deliver the shares of Class A Stock to the Warrant Agent for delivery to a
holder of a Warrant who is exercising such Warrant. The Warrants are
exercisable at the option of the holder thereof, on or after the date hereof
prior to the Expiration Date.
10
<PAGE>
Distribution of Warrants and Warrants Shares by Selling Securityholders
The Company has been advised that the Selling Securityholders may sell
their Warrants from time to time and that the Affiliate Warrantholders may sell
their Warrant Shares from time to time in one or more of the following
transactions:
(a) privately negotiated transactions between the Selling Securityholders
and a purchaser;
(b) offerings through underwriters, dealers or agents who may receive
compensation in the form of underwriting discounts, concessions or commissions
from the Selling Securityholders and/or the purchasers of such securities for
whom they act as agents;
(c) transactions or distributions (including block trades) on the New
York Stock Exchange or other United States or foreign stock exchanges where
unlisted trading privileges are available;
(d) transactions or distributions in the over-the-counter market;
(e) sales through broker-dealers (whether or not on exchanges) acting
as agents for the Selling Securityholder or to broker-dealers who may purchase
the securities as principals and thereafter sell such securities; or
(f) where applicable, a combination of any of the foregoing.
In addition, any Warrants or Warrant Shares covered by this Prospectus
which qualify for sale pursuant to Rule 144 or Rule 144A promulgated under the
Securities Act may be sold under Rule 144 or Rule 144A rather than pursuant to
this Prospectus.
Pursuant to the Warrant Agreement, if original holders of not less
than 25% of the outstanding Warrants so request, the Company has agreed to enter
into an underwriting agreement with such holders and an investment banking firm
containing customary representations, warranties and provisions relating to
indemnification and contribution. In addition, the Company has agreed to use
its reasonable efforts to cooperate with such investment banking firm to
facilitate any such offering. Any underwriter will be identified, and any
underwriting compensation paid by the Selling Securityholder to underwriters or
agents in connection with the offering of the Warrants or Warrant Shares and any
discounts, concessions or commissions allowed by underwriters to participating
dealers will be described, to the extent required, in a prospectus supplement.
In addition, upon notification to the Company by a Selling Securityholder that
any material arrangement has been entered into with a broker or dealer for the
sale of shares through a block trade, special offering or secondary distribution
or a purchase by a broker or dealer, a supplement to this Prospectus identifying
the participating brokers or dealers and describing any compensation to be paid
by the Selling Securityholder to such person will be filed with the Commission,
if required, pursuant to Rule 424 under the Securities Act. Underwriters,
dealers and agents participating in the distribution of the Warrants or Warrant
Shares may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the Warrants or
Warrant Shares may be deemed to be underwriting discounts and commissions under
the Securities Act.
Pursuant to the Warrant Agreement, the Company is obligated to use its
best efforts to keep the Registration Statement covering all Warrants and
Warrant Shares continuously effective from the date on which it is first
declared effective by the Commission through the close of business ten (10)
business days following the Expiration Date; provided however, that if the
Company has received a written request from any person who in the judgment of
the Company may be deemed to be an affiliate of the Company (as that term is
defined in Rule 144 promulgated under the Securities Act), prior to the
Expiration Date that any Warrant Shares acquired are owned or deemed to be owned
by such affiliate and that such Warrant Shares will be owned or will be deemed
to be owned by such affiliate on and after the Expiration Date, then the Company
shall use its best efforts to keep the Registration Statement of the Warrant
Agreement effective for so long as necessary to permit sales of such Warrant
Shares to be made by such affiliate but in no event longer than the second
anniversary of the Expiration Date. So long as any unexpired Warrants remain
outstanding prior to the Expiration Date and if required in order to comply with
the Securities Act, the Company agrees that it will file such post-effective
amendments to the Registration Statement as necessary.
Pursuant to the Warrant Agreement, the Company is obligated to list
the Warrants and Warrant Shares for trading or quotation on the New York Stock
Exchange. If such listing is in the opinion of the Company impracticable, the
Company has agreed to list the Warrants and Warrant Shares on one of the
following securities exchanges or
11
<PAGE>
securities markets, as the board of directors of the Company deems appropriate
to facilitate the trading of the Warrants: (i) another national securities
exchange; (ii) quotation on the National Association of Security Dealers
Automated Quotations system ("NASDAQ") or the National Association of Security
Dealers Automated Quotation/National Market System ("NASDAQ/NMS"); or (iii) such
other over-the-counter quotation system.
Pursuant to the Warrant Agreement, the Company has agreed to indemnify
the holders of Warrants and Warrant Shares and each person who controls such
holder, and each holder of Warrants or Warrant Shares will indemnify the Company
and each person who controls the Company, against certain liabilities, including
liabilities under the Securities Act.
Pursuant to the Warrant Agreement, the Company is obligated to pay all
out-of-pocket expenses (other than underwriting discounts and commissions)
incurred in connection with the Registration Statement including, without
limitation, all Commission and blue sky registration and filing fees, printing
expenses, transfer agents' and registrars' fees, fees and disbursements of the
Company's and the Warrantholders' counsel (provided however that the
Warrantholders are only entitled to one counsel as a group selected by the
holders of a majority of the Warrant Shares) and accountants and fees and
disbursements of experts used by the Company in connection with such
registration. The Selling Securityholders are solely responsible from paying
any underwriting or brokerage discounts or commissions with respect to the sale
of their Warrants and Warrant Shares offered hereby.
LEGAL MATTERS
The validity of the issuance of the Warrants and Warrant Shares will
be passed upon for the Company by Kirkland & Ellis. Mr. Glen E. Hess has been a
director of the Company since 1983. Mr. Glen E. Hess's professional corporation
is a partner of Kirkland & Ellis, a law firm which since 1978 has performed
significant legal services for the Company.
EXPERTS
The consolidated financial statements and financial statement schedule
of the Company as of December 31, 1994 and 1993, and for each of the three years
in the period ended December 31, 1994, included in the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1994 incorporated by
reference herein and elsewhere in the Registration Statement, have been
incorporated by reference in reliance on the report of Coopers & Lybrand L.L.P.,
independent accountants, upon the authority of said firm as experts in
accounting and auditing.
12
<PAGE>
PART II -- INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses, other than underwriting
discounts and commissions, paid or payable in connection with the issuance and
distribution of the securities being registered. All the amounts shown are
estimates except for the Commission registration fee and NYSE filing fee. All
of the following expenses will be paid by the Company.
<TABLE>
<S> <C>
Commission registration fee................................ $ 18,542
NYSE filing fee............................................ 43,500
Accounting fees and expenses............................... 15,000
Legal fees and expenses.................................... 25,000
--------
Total $102,042
========
</TABLE>
Item 15. Indemnification of Directors and Officers.
Section 102 of the General Corporation Law of the State of Delaware ("GCL")
allows a corporation to eliminate the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except in cases where the director breached his duty of
loyalty, failed to act in good faith, engaged in intentional misconduct or a
knowing violation of law, authorized the unlawful payment of a dividend or
approved an unlawful stock redemption or repurchase or obtained an improper
personal benefit. The Company's Amended and Restated Certificate of
Incorporation ("Amended Certificate of Incorporation") contains a provision
which eliminates directors' personal liability as set forth above.
The Amended Certificate of Incorporation and the Company's Amended and
Restated Bylaws provide that the Company shall indemnify its directors and
officers to the fullest extent permitted by Section 145 of the GCL; provided,
--------
however, that, except with respect to proceedings to enforce rights to
-------
indemnification, the Company shall indemnify any such indemnitee in connection
with a proceeding (or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the Company's Board of Directors.
Section 145 of the GCL provides that a Delaware corporation has the power to
indemnify its officers and directors in certain circumstances.
Subsection (a) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director or officer acted in good faith in
a manner reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding,
provided that such director or officer had no cause to believe his or her
conduct was unlawful.
Subsection (b) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that such person acted in any of the capacities
set forth above, against expenses (including attorneys' fees) actually and
reasonably incurred in connection with the defense or settlement of such action
or suit provided that such director or officer acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which such director or officer shall have been adjudged to
be liable for negligence or misconduct in the performance of his or her duty to
the corporation unless and only to the extent that the Court of Chancery or the
court in which such action was brought shall determine that despite the
adjudication of liability such director or officer is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
Section 145 of the GCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsections (a) and (b) or in the defense of any
II-1
<PAGE>
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith.
Section 145 of the GCL further provides that indemnification provided
therein shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; and empowers the corporation to purchase and
maintain insurance on behalf of a director or officer of the corporation against
any liability asserted against him or her or incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
Pursuant to the Amended Certificate of Incorporation, if a claim for
indemnification (including the advancement of expenses) is not paid in full by
the Company within forty-five days after a written claim has been received by
the Company, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Company to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee also shall be entitled to be paid the
expense of prosecuting or defending such suit.
The Company maintains insurance policies for general officers' and
directors' liability insurance and fiduciary liability insurance covering all of
the Company's directors and officers in certain instances where by law they may
not be indemnified by the Company.
In addition, pursuant to the Warrant Agreement, the Selling
Securityholders have agreed to indemnify the Company's directors, officers and
control persons against certain liabilities in connection with the Selling
Securityholders' offers of the Warrants and Warrant Shares registered hereby,
including liabilities under the Securities Act.
Item 16. Exhibits.
--------
The following is a list of exhibits to this Registration Statement.
<TABLE>
<CAPTION>
Exhibit No. Description of Document Page No.
----------- ----------------------- -------
<C> <S> <C>
**3.1 Certificate of Amendment of the Certificate of
Incorporation of A.L. Pharma Inc. dated September 15,
1995 and filed with the Secretary of State of Delaware
on September 15, 1995 --
*4.1 Amended and Restated Certificate of Incorporation of
A.L. Pharma Inc., (as the Company was formerly known)
dated September 30, 1994 and filed with the Secretary of
State of Delaware on October 3, 1994 (Incorporated by
reference to Exhibit 3.1 to the Company's Annual Report
on Form 10-K (File No. 1-8593) for the fiscal year ended
December 31, 1994) --
*4.2 Amended and Restated Bylaws of A.L. Pharma Inc., (as the
Company was formerly known) effective as of October 3,
1994 (Incorporated by reference to Exhibit 3.1 to the
Company's Annual Report on Form 10-K (File No. 1-8593)
for the fiscal year ended December 31, 1994) --
*4.3 Warrant Agreement (the "Warrant Agreement") dated
October 3, 1994 between the Company and the First
National Bank of Boston, as Warrant Agent (Incorporated
by reference to Exhibit 4.2 of the Company's Annual
Report on Form 10-K (File No 1-8593) for the fiscal year
ended December 31, 1994) --
*4.4 Form of Warrant Certificate (included as Exhibit A to
the Warrant Agreement) --
*5 Opinion and consent of Kirkland & Ellis
**23.1 Consent of Coopers & Lybrand L.L.P.
*23.2 Consent of Kirkland & Ellis (included in Exhibit 5) --
*24 Power of Attorney (included on the signature pages to --
this Registration Statement)
</TABLE>
----------
* Previously filed.
** Filed herewith.
II-2
<PAGE>
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Amendment to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fort Lee, New Jersey on September 21, 1995.
ALPHARMA INC.
By: /s/ Jeffrey E. Smith
----------------------------------------------
Name: Jeffrey E. Smith
Title: Vice President, Finance and Chief
Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature to this
Registration Statement appears below hereby appoints Jeffrey E. Smith and Beth
P. Hecht, and each of them, any one of whom may act without the joinder of the
others, as his or her attorney-in-fact with full power of substitution and
resubstitution to sign on his or her behalf individually and in the capacity
stated below, and to sign and file all amendments and post-effective amendments
to this Registration Statement and any and all other documents that may be
required in connection with the filing of this Registration Statement, which
amendments may make such changes and additions to this Registration Statement
as such attorney-in-fact may deem necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<C> <S>
Date: September 21, 1995 *
---------------------------------------
Einar W. Sissener
Chairman, Director and Chief Executive
Officer (Principal Executive Officer)
Date: September 21, 1995 *
---------------------------------------
Jeffrey E. Smith
Vice President, Finance and Chief
Financial Officer (Principal Financial
Officer and Principal Accounting
Officer)
Date: September 21, 1995 *
---------------------------------------
James Balog
Director, Chairman of Audit Committee
Date: September 21, 1995 *
---------------------------------------
I. Roy Cohen
Director, Chairman of Executive
Committee
Date: September 21, 1995 *
---------------------------------------
Thomas G. Gibian
Director, Chairman of Compensation
Committee
Date: September 21, 1995 *
---------------------------------------
Glen E. Hess
Director
</TABLE>
II-4
<PAGE>
<TABLE>
<C> <S>
Date: September 21, 1995 *
---------------------------------------
Gert W. Munthe
Director
Date: September 21, 1995 *
---------------------------------------
Georg W. Sverdrup
Director
Date: September 21, 1995 *
---------------------------------------
Erik G. Tandberg
Director
Date: September 21, 1995 *
---------------------------------------
Peter G. Tombros
Director
Date: September 21, 1995 /s/ Jeffrey E. Smith
---------------------------------------
Jeffrey E. Smith
Attorney-In-Fact
</TABLE>
---------------
*Filed previously.
II-5
<PAGE>
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description of Document Page No.
----------- ----------------------- -------
<C> <S> <C>
**3.1 Certificate of Amendment of the Certificate of
Incorporation of A.L. Pharma Inc. dated September 15, 1995
and filed with the Secretary of State of Delaware on
September 15, 1995 --
*4.1 Amended and Restated Certificate of Incorporation of
A.L. Pharma Inc., (as the Company was formerly known)
dated September 30, 1994 and filed with the Secretary of
State of Delaware on October 3, 1994 (Incorporated by
reference to Exhibit 3.1 to the Company's Annual Report
on Form 10-K (File No. 1-8593) for the fiscal year ended
December 31, 1994) --
*4.2 Amended and Restated Bylaws of A.L. Pharma Inc., (as the
Company was formerly known) effective as of October 3,
1994 (Incorporated by reference to Exhibit 3.1 to the
Company's Annual Report on Form 10-K (File No. 1-8593)
for the fiscal year ended December 31, 1994) --
*4.3 Warrant Agreement (the "Warrant Agreement") dated
October 3, 1994 between the Company and the First
National Bank of Boston, as Warrant Agent (Incorporated
by reference to Exhibit 4.2 of the Company's Annual
Report on Form 10-K (File No 1-8593) for the fiscal year
ended December 31, 1994) --
*4.4 Form of Warrant Certificate (included as Exhibit A to
the Warrant Agreement) --
*5 Opinion and consent of Kirkland & Ellis
**23.1 Consent of Coopers & Lybrand L.L.P.
*23.2 Consent of Kirkland & Ellis (included in Exhibit 5) --
*24 Power of Attorney (included on the signature pages to --
this Registration Statement)
</TABLE>
----------
* Previously filed.
** Filed herewith.
<PAGE>
EXHIBIT 3.1
-----------
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
A.L. PHARMA INC.
Pursuant to Sections 242 of the Delaware Corporation Law of the State
of Delaware, the undersigned, being the Secretary of A.L. Pharma Inc., a
Delaware corporation (the "Corporation") does hereby certify the following:
FIRST: The name of the Corporation is A.L. Pharma Inc.
SECOND: The original Certificate of Incorporation of the Corporation
was filed with the Secretary of State of Delaware on September 6, 1983.
THIRD: The Certificate of Incorporation of the Corporation is
hereby amended to effect a change in Article I thereof, relating to the name of
the Corporation, accordingly Article I of the Certificate of Incorporation shall
be amended to read in its entirety as follows:
"ARTICLE I
The name of the Corporation is ALPHARMA INC."
FOURTH: The amendment to the Certificate of Incorporation of the
Corporation effected hereby was approved by the Board of Directors of the
Corporation, and by unanimous written consent of the Class B Stockholders which
have the right to vote the majority of the votes entitled to be cast on matters
presented to the Corporation's stockholders.
IN WITNESS WHEREOF, the undersigned affirms as true the foregoing
under penalties of perjury, and has executed this Certificate this 15th day of
September, 1995.
A.L. PHARMA INC.
By: /s/ Beth P. Hecht
-----------------------------------
Name: Beth P. Hecht
Title: Secretary
<PAGE>
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-3 (File No. 33-60029) of our report dated March 1, 1995, on our audits of
the consolidated financial statements and financial statement schedule of
ALPHARMA INC. and subsidiaries (formerly A.L. Pharma Inc.) as of December 31,
1994 and 1993 and for each of the three years in the period ended December 31,
1994, which report is included in the Company's Annual Report on Form 10-K for
the year ended December 31, 1994. We also consent to the reference to our firm
under the caption "Experts."
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Parsippany, New Jersey
September 21, 1995
