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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )*
ALPHARMA INC.
- --------------------------------------------------------------------------------
(Name of Issuer)
Class A Common Stock, par value $.20 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
001629 10 4
- --------------------------------------------------------------------------------
(CUSIP Number)
Einar W. Sissener
c/o Alpharma Inc.
One Executive Drive
Fort Lee, New Jersey 07024
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
February 10, 1997
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box o.
Check the following box if a fee is being paid with the statement | |. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filled
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
- ----------------------------- -----------------------------------
CUSIP NO. 001629 10 4 PAGE 2 OF 41 PAGES
-------------------- -------- --------
- ----------------------------- -----------------------------------
- --------------------------------------------------------------------------------
NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1
A. L. Industrier AS
- --------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
2
- --------------------------------------------------------------------------------
SEC USE ONLY
3
- --------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
00, BK
- --------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) OR 2(E) [ ]
5
- --------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Norway
- --------------------------------------------------------------------------------
SOLE VOTING POWER
NUMBER OF 7
9,500,000
------------------------------------------------------
SHARES SHARED VOTING POWER
8
BENEFICIALLY -0-
OWNED BY ------------------------------------------------------
SOLE DISPOSITIVE POWER
EACH 9
9,500,000
REPORTING PERSON
------------------------------------------------------
WITH SHARED DISPOSITIVE POWER
10
-0-
------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
9,500,000
- --------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ]
12
- --------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
40%
- --------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
PAGE 3 OF 41 PAGES
------------ ----------
ITEM 1. SECURITY AND ISSUER.
-------------------
This statement (this "Statement") relates to the Class A common stock, par
value $.20 per share (the "Common Stock"), of Alpharma Inc. (the "Issuer"). The
principal executive office of the Issuer is One Executive Drive, Fort Lee, New
Jersey 07024.
ITEM 2. IDENTITY AND BACKGROUND.
-----------------------
(a) This Statement constitutes the initial Statement on Schedule 13D of A.
L. Industrier AS, a Norwegian corporation ("Industrier") with respect to
1,273,438 shares of Common Stock which will be issuable upon conversion of
1,273,438 newly issued shares of Class B Common Stock of the Issuer which
Industrier committed to acquire from Issuer pursuant to a Stock Subscription and
Purchase Agreement ("Stock Subscription Agreement") dated February 10, 1997.
Until its name change in 1984, Industrier's corporate name was Apothekernes
Laboratorium A.S.
Certain information required by Item 2 concerning directors and executive
officers of Industrier is set forth on Schedule A hereto, which Schedule A is
incorporated herein by reference.
Mr. Einar W. Sissener ("Sissener") is Chairman of the Board of Industrier
and, together with a family controlled private holding company and certain
relatives, beneficially owns approximately 55% of Industrier's outstanding
shares entitled to vote and, accordingly, may be deemed a controlling person of
Industrier.
(b) The address of the principal business office of Industrier is
Harbitzalleen 3, 0275 Oslo, Norway.
(c) Industrier is a holding company which owns, in addition to its
interest in Issuer's shares, controlling and non-controlling interests in
corporations engaged, primarily in Norway and other European countries, in the
food industry, the medical diagnostic industry and other industries and owns
certain real estate interests in Norway.
(d) During the past five years, neither Industrier or to the knowledge of
Industrier any of the executive officers or directors of Industrier, has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the past five years, neither Industrier, or to the knowledge of
Industrier any of the executive officers or directors of Industrier, has been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which such person was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
(f) Industrier is a corporation organized and existing under the laws of
Norway and, to its knowledge, each of its executive officers and directors is a
citizen of Norway.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
-------------------------------------------------
Funds to acquire the shares of Class B Common Stock to be purchased
pursuant to the Stock Subscription Agreement will be obtained from available
corporate funds and, to the extent required, from a bank borrowing. Industrier
has received an irrevocable payment letter from the lending bank providing for a
loan to Industrier of up to the entire purchase price for such shares. The
letter is irrevocable until December 10, 1997. Industrier will pledge up to
2,000,000 shares of the Class B Common Stock to the bank as security for the
loan. Although the terms and documentation of the loan and pledge have not been
completed, the pledge arrangement will not affect Industrier's right to vote or
to receive dividends with respect to the pledged shares (except in the event of
foreclosure).
<PAGE>
PAGE 4 OF 41 PAGES
------------ ----------
ITEM 4. PURPOSE OF TRANSACTION
----------------------
Industrier currently owns beneficially 8,226,562 shares of Class B Common
Stock of Issuer which it acquired in 1983 in exchange for its ownership of all
the capital stock of the Issuer's predecessor. The exchange was pursuant to a
recapitalization transaction that preceded the initial public offering of
Issuer's Common Stock in 1984. The Class B Common Stock entitles the holders
thereof, as a class, to elect a majority of the directors of Issuer and is
convertible, on a share for share basis, into Common Stock. Industrier owns all
of the outstanding shares of Issuer's Class B Common Stock and accordingly has
been a controlling person of Issuer since 1983. Industrier has previously
reported its beneficial ownership of Common Stock (which may be acquired upon
conversion of its Class B Common Stock of Issuer) on Schedule 13G. In 1994
Sissener and other shareholders of Industrier received certain warrants to
purchase shares of Common Stock in a transaction between Issuer and Industrier.
See Item 5 below.
On February 10, 1997, Industrier and Issuer entered into the Stock
Subscription Agreement under which Industrier agreed to purchase from Issuer
1,273,438 newly-issued shares of Class B Common Stock at a price of $16.34 per
share (total consideration: $20,807,976.92). The purposes of the transaction are
to increase Industrier's investment in Issuer and to provide Issuer with
additional equity capital. The acquisition of additional shares of Class B
Common Stock will not increase or otherwise affect Industrier's position as a
controlling person of Issuer because it previously owned (and has no present
intention to dispose of) all outstanding shares of Issuer's Class B Common
Stock. As set forth in the Stock Subscription Agreement, the Issuer intends,
subject to registration under the Securities Act of 1933, to effect a
distribution of special rights to the holders of the Common Stock. Such special
rights will entitle each holder to acquire approximately .16 of a share of
Common Stock at an exercise price of $16.34 per share. The expiration date of
the special rights has not yet been determined, but is expected to be set
between August 15 and November 15, 1997. Although Industrier is not required to
complete the acquisition of the newly issued shares of Class B Common Stock
until the expiration date of the special rights, Industrier has determined to
filed this Schedule 13D at this time.
Except for the special rights distribution referred to above and subject
to such actions as may be taken by the Issuer's Board of Directors in the normal
course of carrying out is responsibilities, Industrier has no present plan or
proposal which relate to or would result in the acquisition or disposition by
any person of securities of Issuer, any extraordinary corporate transaction or
sale of material assets of Issuer, any change in the board of directors (except
as may occur at the next annual meeting of Issuer), any material change in the
Issuer's capitalization, dividend policy, business or corporate structure, any
change in Issuer's charter, bylaws or other instruments which may impede an
acquisition of control of Issuer, causing any class of Issuer's securities to be
delisted or to become eligible for termination of registration under Section
12(g)(4) of the Securities Exchange Act of 1934 or any similar action.
Nothing herein is intended to limit Industrier's right and ability to
suggest to Issuer a plan or proposal for any such action in the future and to
exercise its voting rights in its discretion as holder of the Class B Common
Stock of Issuer to elect a majority of the Issuer's directors.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
------------------------------------
(a) Based on Industrier's beneficial ownership of 9,500,000 shares of
Class B Common Stock (including the 1,273,438 shares which it has committed to
purchase under the Stock Subscription Agreement), Industrier beneficially owns
9,500,000 shares of Common Stock (which it may acquire upon conversion, on a
share-for-share basis, of the Class B Common Stock. Such beneficial ownership of
Common Stock constitutes approximately 40% of the outstanding Common Stock
(assuming conversion of such Class B Common Stock and the issuance of no shares
of Common Stock pursuant to the special rights offering described in item 4
above).
Sissener beneficially owns certain Warrants to purchase an aggregate of
1,383,004 shares of Common Stock, of which 233,250 Warrants (owned by a family
trust owned by Sissener's wife) are currently exercisable and the balance become
exercisable on October 3, 1997. The Warrants have an exercise price of $21.945
(subject to antidilution adjustment upon the occurrence of certain events,
including the special rights distribution described in Item 4 above) and expire,
if not previously exercised, on January 3, 1999.
<PAGE>
PAGE 5 OF 41 PAGES
------------ ----------
(b) The shares of Issuer beneficially owned by Industrier is held of
record by Wangs Fabrik A.S., a wholly-owned subsidiary of Issuer. However,
Industrier possesses sole power to direct voting and disposition of such shares.
Sissener possesses sole power of disposition as to the Warrants beneficially
owned by him.
(c) Industrier has effected no transactions in the Issuer's Common Stock
during the past sixty days except the execution of the Stock Subscription
Agreement described in item 4 above in Oslo, Norway on February 10, 1997.
(d) No person other than Industrier has any right to receive or direct the
receipt of dividends from, or the proceeds from any sale of, the shares of Class
B Common Stock beneficially owned by Industrier or the Common Stock issuance
upon conversion thereof.
(e) Not applicable
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
---------------------------------------------------------------------
TO SECURITIES OF THE ISSUER.
---------------------------
Industrier is not a party to or otherwise subject to any contract,
arrangement, understanding or relationship with any person relating to any
securities of the Issuer, except:
(i) the Stock Subscription Agreement described in item 4 above and filed
as Exhibit I hereto (which contains provisions for Issuer to provide certain
registration rights to Industrier);
(ii) a Control Agreement dated February 7, 1986, as amended from time to
time, (filed as Exhibit II hereto) which prohibits Industrier from selling or
otherwise transferring any shares of Issuer's Class B Common Stock prior to
November 1, 1999 without the prior approval of Issuer's Board of Directors,
except that up to 50% such shares may be pledged pursuant to normal financing
arrangements; and
(iii) up to 2,000,000 shares of the Issuer's Class B Common Stock
beneficially owned by Industrier will be pledged as security for borrowings to
be made to finance the acquisition of shares by Industrier. See Item 3
above.
A Warrant Agreement dated October 3, 1994, between Issuer and The First
National Bank of Boston (filed as Exhibit IV hereto) which sets forth the
provisions of the Warrants to purchase shares of Common Stock beneficially owned
by Sissener.
The provisions of the exhibits referred to in this Item 6 are herein
incorporated by reference.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
---------------------------------
Exhibit I -- Stock Subscription Agreement dated February 10, 1997
(described in item 4)
Exhibit II -- Control Agreement dated February 7, 1986 and amendment
thereto dated December 30, 1996. (described in item 6)
Exhibit III -- Irrevocable Payment Letter dated February 14, 1997
(referred to in Item 3).
Exhibit IV -- Warrant Agreement dated October 3, 1994 (referred to in
Item 6 above).
Exhibit V -- Power of attorney from Industrier to execute and file
reports under ss.13 and 16 of the Securities Exchange Act
of 1934, as amended.
<PAGE>
Page 9 of 41 Pages
EXHIBIT I
EXECUTION COUNTERPART
---------------------
STOCK SUBSCRIPTION AND PURCHASE AGREEMENT
-----------------------------------------
Stock Subscription and Purchase Agreement dated February 10, 1997 by and
between Alpharma Inc., a Delaware corporation, ("Alpharma") and A. L. Industrier
AS, a Norwegian corporation, ("Industrier").
WHEREAS Alpharma currently has two classes of authorized and common stock,
("Common Stock") consisting of Class A Common Stock, $.20 par value per share,
(of which 13,813,516 shares are currently outstanding) (the "Class A Stock") and
Class B Common Stock, $.20 par value per share, (of which 8,226,562 shares are
currently outstanding) (the "Class B Stock"); and
WHEREAS Industrier owns all of the outstanding Class B Stock through its
wholly-owned subsidiary, Wangs Fabrik AS ("Wangs"); and
WHEREAS Alpharma desires to increase its equity base through the issuance
of additional shares of Common Stock and the Board of Directors of Alpharma has
approved the issuance of additional shares of Class B Stock to Industrier (or
Wangs) on the terms set forth herein, including the issuance of rights to
purchase additional Class A Stock to each holder of Class A Stock as provided in
section 5 hereof (the "Rights"); and
WHEREAS Industrier has agreed to make an additional investment in Alpharma
by subscribing for and purchasing newly issued shares of Class B Stock on the
terms set forth herein;
NOW THEREFORE the parties agree as follows:
1. Subscription for Class B Stock. Industrier hereby irrevocably
------------------------------
subscribes for and agrees to purchase from Alpharma, and Alpharma hereby agrees
to issue and sell to Industrier (or if designated by Industrier, Wangs),
1,273,438 shares of Class B Stock (the "New B Shares") for a subscription price
per share of $16.34 being an aggregate subscription consideration of
$20,807,976.92 (the "Subscription Consideration").
2. Payment of Subscription Consideration and Issuance of New B. Shares.
-------------------------------------------------------------------
Industrier shall pay the Subscription Consideration by wire transfer to
Alpharma's account at such bank as Alpharma may designate in United States funds
on the date on which the Rights shall expire (the "Payment Date"). Upon receipt
of the Subscription Consideration, Alpharma shall issue the New B Shares duly
registered in the name of Industrier (or Wangs) and shall deliver to Industrier
(or Wangs) a validly executed certificate evidencing the New B Shares. Such
certificate may contain appropriate legends to reflect applicable securities law
limitations and the existing Control Agreement, as amended, between Industrier
and Alpharma.
1
<PAGE>
Page 10 of 41 Pages
3. Conditions to Purchase of Class B Stock.
---------------------------------------
a. The obligation of Industrier to purchase the New B Shares as
herein provided is subject only to the condition (which may be waived by
Industrier) that Industrier shall receive a written legal opinion of Kirkland &
Ellis dated as of the Payment Date stating that the New B Shares have been
properly authorized and constitute duly issued and outstanding shares of Class B
Stock with the rights, privileges and limitations set forth in Alpharma's
Certificate of Incorporation, as amended;
b. The obligation of Alpharma to issue the New B Shares as herein
provided is subject only to the conditions (which may be waived by Alpharma)
that (i) the Rights shall have been issued to holders of Class A Stock prior to
the Payment Date, (ii) the issuance of the New B Shares shall have complied in
all material respects with the Bylaws and Certificate of Incorporation, as
amended, of Alpharma, the Delaware General Corporation Law and United States
securities laws, and (iii) the shares of Class A stock issuable upon exercise of
the Rights shall have been approved for listing, on a when-issued basis, on the
New York Stock Exchange. Alpharma will use its reasonable best efforts to cause
all conditions in this paragraph b. to be fulfilled.
c. Industrier has received all information which it has requested
regarding financial, operational, personnel and other developments relating to
Alpharma, including copies of Alpharma's report on form 10-K for 1995 and its
reports on form 10-Q for the fiscal quarters ended March 31, 1996, June 30, 1996
and September 30, 1996 and information regarding Alpharma's preliminary
operating results for the fiscal quarter and year ended December 31, 1996, the
impact of Alpharma's operating results on its existing credit agreements and its
recent discussions regarding possible acquisitions and other corporate
developments. Industrier acknowledges that its subscription for New B Shares
hereunder is unconditional and irrevocable (except as provided in section 3(a)
above) and shall not be affected in any way by any financial, operational,
personnel or other development (whether favorable or unfavorable) affecting or
threatening to affect Alpharma. Industrier further acknowledges that certain
information provided to Industrier regarding Alpharma is confidential and that
through certain common officers and/or directors Industrier has received or may
in the future receive confidential information relating to Alpharma, and
Industrier hereby agrees to keep all such information confidential and to use
reasonable effort to cause each officer, director and employee of Industrier to
keep such information confidential.
4. Representations and Warranties
------------------------------
a. Industrier hereby represents and warrants to Alpharma that (i)
this agreement has been duly authorized, executed and delivered on behalf of
Industrier and is a valid and binding agreement of Industrier, enforceable in
accordance with its terms, and (ii) Industrier (or Wangs) will acquire the New B
Shares for investment and without any intent to distribute or resell any of such
shares
2
<PAGE>
Page 11 of 41 Pages
b. Alpharma hereby represents and warrants to Industrier that (i)
this agreement has been duly authorized, executed and delivered on behalf of
Alpharma and is a valid and binding agreement of Alpharma, enforceable in
accordance with its terms; (ii) the New B Shares have been duly authorized and,
when issued to Industrier as herein provided, will be validly issued and the
issuance thereof will not violate any preemptive right of any holder of Class A
Stock or Class B Stock; (iii) the execution and delivery of this agreement by
Alpharma and its performance of its obligations hereunder will not breach,
violate or cause a default under any agreement or commitment binding on Alpharma
or Alpharma's Bylaws or Certificate of Incorporation as amended; and (iv) the
New B Shares will be entitled and subject to the rights, privileges and
limitations set forth in Alpharma's Certificate of Incorporation, as amended.
5. Rights Issuance. Industrier acknowledges that Alpharma intends to
---------------
distribute to the holders of its outstanding Class A Stock on or about April 15,
1997 certain transferable Rights entitling such holders to purchase shares of
Class A Stock at $16.34 per share on or before November 30, 1997. Each holder
will receive the right to purchase approximately .16 share of Class A Stock for
each share of Class A Stock held by such holder on the record date for such
distribution. The Rights and the Class A Stock issuable on exercise thereof are
required to be registered under the Securities Act of 1933 and are intended to
be listed for trading on the New York Stock Exchange. Alpharma intends to take
such actions as are appropriate to effect such registration and listing and may
make such changes in the terms of the Rights as the Board of Directors
determines are appropriate to effect such registration and listing, comply with
applicable law and otherwise carry out the intent and purpose of such Rights
distribution. Industrier agrees to the issuance of such Rights and hereby waives
any right to receive Rights or any similar right to purchase Common Stock of the
Company which it may have under Alpharma's Certificate of Incorporation as a
result of the Rights distribution provided for herein.
6. Registration Rights. Subject to the aforementioned Control Agreement,
-------------------
Alpharma agrees that Industrier (or Wangs) as holder of the New B Shares shall
be entitled to cause Alpharma at any time after the second anniversary of the
Payment Date to register under the Securities Act of 1933, as amended, any of
the Class B Stock owned by Industrier or its subsidiaries (or any Class A Stock)
into which such Class B Stock is convertible. Such registration rights shall be
set forth in a mutually agreeable registration rights agreement which provides
for : (i) up to three demand registrations of at least $30,000,000 of securities
each; (ii) payment by Alpharma of all reasonable expenses except underwriting
commission; (iii) Alpharma's right to defer registration for up to six months
for good corporate purposes; (iv) the selection of mutually acceptable managing
underwriters; (v) unlimited piggy-back registration if acceptable to the
managing underwriters and not adverse to Alpharma's interest; (vi)
non-transferability of the registration rights and (vii) such other terms and
conditions as are customary in private placement registration rights agreements.
The registration rights agreement shall be prepared and agreed to as promptly as
practicable.
3
<PAGE>
Page 12 of 41 Pages
7. Adjustments to Changes in Common Stock. If prior to the Payment Date
--------------------------------------
there occurs (or a record date is established with respect to) a stock split,
stock dividend, recapitalization or other event affecting the Common Stock, the
New B Shares shall be adjusted in an equitable manner so that Industrier shall
be entitled to purchase on the Payment Date the same number of New B Shares
and/or other securities as Industrier would have if it had purchased the New B
Shares immediately prior to the record date for such action and the shares so
purchased had been subject to such action.
8. Miscellaneous
-------------
a. No Third Party Beneficiaries. This Agreement shall not confer
----------------------------
any rights or remedies upon any person other than the parties and their
respective successors and permitted assigns.
b. Entire Agreement. This Agreement (including the documents
----------------
referred to herein) constitutes the entire agreement between the parties with
respect to the New B Shares and supersedes any prior understandings, agreements,
or representations by or among the Parties, written or oral, to the extent they
related in any way to the subject matter hereof.
c. Succession and Assignment. This Agreement shall be binding upon
-------------------------
and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. Neither Party may assign either this Agreement
or any of its rights, interests, or obligations hereunder without the prior
written approval of the other party; provided, however, that the Buyer may
assign any or all of its rights and interests (but not its obligations)
hereunder to Wangs.
d. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
e. Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the domestic laws of the State of Delaware without giving
effect to any choice or conflict of law provision or rule (whether of this State
of Delaware or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Delaware.
f. Amendments and Waivers. No amendment of any provision of this
----------------------
Agreement shall be valid unless the same shall be in writing and signed by each
party hereto. No waiver by any party of any default, misrepresentation, or
breach of warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
* * *
4
<PAGE>
Page 13 of 41 Pages
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
ALPHARMA INC.
By: /s/ Jeffrey Smith
-------------------------------------
Its: V. P. - Finance
------------------------------------
A. L. INDUSTRIER AS
By: /s/ E. W. Sissener Roald Jotun
-------------------------------------
Its: Chairman CEO
------------------------------------
5
<PAGE>
Page 14 of 41 Pages
EXHIBIT II
CONTROL AGREEMENT
WHEREAS, APOTHEKERNES LABORATORIUM A.S. ("AL Oslo") owns approximately
98% of the outstanding shares of Class B Common Stock of A.L. LABORATORIES,
INC., a Delaware corporation (the "Subsidiary"); and
WHEREAS, the Subsidiary has issued and sold in a public offering, and
has outstanding, shares of Class A Common Stock, a second class of stock; and
WHEREAS, AL Oslo, as holder of substantially all the Subsidiary's Class
B Common Stock has the power to elect 75% of the Directors of the Subsidiary and
to cast at least a majority of votes on all other issues submitted to
stockholders, thereby assuring that the holder of the Class B Common Stock
controls the Subsidiary; and
WHEREAS, there has been represented to the existing public stockholders
of the Subsidiary that AL Oslo will control the Subsidiary through its ownership
of the Class B Common Stock and will continue various technology and other
relationships between AL Oslo and the Subsidiary; and
WHEREAS, AL Oslo has previously agreed not to dispose of its Class B
Common Stock prior to November 1, 1986 and the Subsidiary has requested that
such agreement be extended to assure for a longer period of that the Class B
Common Stock is not transferred to any person not affiliated with AL Oslo.
NOW, THEREFORE, in consideration of the reliance of existing public
stockholders of the Subsidiary on the continued control and relationship between
the Subsidiary and AL Oslo, AL Oslo HEREBY AGREES irrevocably that prior to
November 1, 1994 it will not sell or otherwise dispose of the Class B Common
Stock or exchange or convert any of its Class B Common Stock into Class A Common
Stock.
IN WITNESS WHEREOF, AL Oslo has duly executed and delivered this
Agreement as of this 7th day of February, 1986.
APOTHEKERNES LABORATORIUM A.S
By /s/ E.W. Sissener
---------------------------
As its President
-----------------------
AGREED TO and ACCEPTED as of
the date first written above:
A.L. LABORATORIES, INC.
By /s/ Glen E. Hess
---------------------------
As its Secretary
-----------------------
<PAGE>
Page 15 of 41 Pages
EXHIBIT II
AMENDMENT
TO
CONTROL AGREEMENT
WHEREAS, Apothekernes Laboratorium AS (now known as A.L. Industrier AS),
a corporation organized and existing under the laws of the Kingdom of Norway
(A.L. Oslo"), and A.L. Laboratories lnc. (now known as Alpharma Inc.), a
Delaware corporation (the "Company"), are parties to a Control Agreement dated
as of February 7,1986, as previously amended (the "Control Agreement"), pursuant
to which A.L. Oslo irrevocably agreed that, prior to November 1, 1997 (the
"Termination Date"), it would not sell or otherwise dispose of the shares of the
Company's Class B Common Stock (the "Class B Stock") that it owns or exchange or
convert any of such shares into the Company's Class A Common Stock ("Class A
Stock");
WHEREAS, A.L. Oslo and the Company desire to amend the Control Agreement
to extend the Termination Date to November 1,1999 and to permit A.L. Oslo to
pledge, in a bona fide transaction, up to 5,000,000 shares of the Class B Stock
that it owns.
NOW, THEREFORE, A.L. Oslo hereby agrees irrevocably that prior to
November 1, 1999 it will not sell or otherwise dispose of any shares of Class B
Stock that it now or at any time owns or exchange or convert any shares of Class
B Stock that it now or at any time owns into Class A Stock; provided, however,
--------- --------
that A.L. Oslo may pledge, in a bona fide transaction, up to 5,000,000 shares of
the Class B Stock that it now or at any time owns (but in no event more than 50%
of its shares).
IN WITNESS WHEREOF, A.L. Oslo has duly executed and delivered this
Control Agreement as of this 19th day of December, 1996.
A.L. INDUSTRIER AS
(formerly known as
Apothekernes laboratorium AS)
By: /s/ R. Jotun
----------------------------
/s/ E.W. Sissener
----------------------------
Agreed to and accepted as of
December 30, 1996
ALPHARMA INC.
(formerly known as
A.L. Laboratories, Inc.)
By: /s/ Jeffrey Smith
-----------------------
Its: Vice President and
Chief Financial Officer
<PAGE>
Page 16 of 41 Pages
EXHIBIT III
Alpharma Inc.
c/o Alpharma AS
Harbitzalloon 3
P.O. Box 158 Skoyen
0212 OSLO
Oslo, 14 February 1997
EGJ/tek11
IRREVOCABLE PAYMENT LETTER
Reference is made to "Stock Subscription and Purchase Agreement" (the
"Agreement") dated 10 February 1997 between yourselves as issuer and seller and
AL Industrier AS as subscriber and purchser of 1,273,438 shares of class B stock
at a subscription price per share of USD 16,34 being an aggregate subscription
consideration of USD 20,807,976.92 (the "Subscription Consideration")
(the "Bank") has been asked to confirm to you in writing that the
Subscription Consideration will be paid to you in accordance with the terms of
the Agreement. It is clearly stated in the Agreement that the Subscription
Consideration shall be due and payable at the latest on 30 November 1997 (the
"Payment Date").
This is to confirm that, subject to you performing and observing all your
obligations under the Agreement, the Subscription Consideration will be
transferred to you on the Payment Date as set out in the Agreement.
This payment letter shall be irrevocable for as long as the Subscription
Consideration is not paid by AL Industrier AS but in no event beyond 10 December
1997 on which date it shall automatically expire and be considered null and
void.
Yours sincerely
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EXHIBIT IV
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WARRANT AGREEMENT
BETWEEN
A.L. PHARMA INC.
AND
THE FIRST NATIONAL BANK OF BOSTON,
WARRANT AGENT
WARRANTS TO PURCHASE CLASS A COMMON STOCK
October 3, 1994
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This WARRANT AGREEMENT (the "Agreement") is dated as of October 3, 1994, between
A.L. PHARMA INC., a Delaware corporation (the "Company"), and THE FIRST NATIONAL
BANK OF BOSTON, a national banking association, as warrant agent (the "Warrant
Agent").
WHEREAS, the Company proposes to issue Warrants (the "Warrants") entitling the
holders to purchase an aggregate of up to three million, six hundred thousand
(3,600,000) shares ("Shares") of the Company's Class A Common Stock, $.20 par
value (the "Class A Common Stock"); and
WHEREAS, the Warrant Agent, at the request of the Company, has agreed to act as
the agent of the Company in connection with the issuance, registration,
transfer, exchange and exercise of Warrants;
NOW, THEREFORE, in consideration of the premises and mutual agreements herein
set forth, the parties hereto agree as follows:
Section 1. Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter set forth; and the Warrant Agent hereby accepts such
appointment, upon the terms and conditions hereinafter set forth.
Section 2. Amount Issued. Subject to the provisions of this Agreement,
Warrants to purchase no more than three million, six hundred thousand
(3,600,000) Shares may be issued and delivered by the Company hereunder.
Section 3. Form of Warrant Certificates. The certificates evidencing the
Warrants (the "Warrant Certificates") to be delivered pursuant to this Agreement
shall be in registered form only. The Warrant Certificates and the forms of
election to purchase Shares and of assignment to be printed on the reverse
thereof shall be in substantially the form set forth in Exhibit A hereto
together with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange,
any agreement between the Company and any Warrantholder, or as may, consistently
herewith, be determined by the officers executing such Warrants, as evidenced by
their execution of the Warrants.
Section 4. Execution of Warrant Certificates. Warrant Certificates shall
be signed on behalf of the Company by its Chairman of the Board of Directors,
its President, a Vice President or its Treasurer and attested by its Secretary
or Assistant Secretary, under its corporate seal. Each such signature upon the
Warrant Certificates may be in the form of a facsimile signature of the current
or any future Chairman of the Board, President, Vice President, Treasurer,
Secretary or Assistant Secretary and may be imprinted or otherwise reproduced on
the Warrant Certificates and for that purpose the Company may adopt and use the
facsimile signature of any person who shall have been Chairman of the Board,
President, Vice President, Treasurer, Secretary or Assistant Secretary,
notwithstanding the fact that at the time the Warrant Certificates shall be
countersigned and delivered or disposed of such person shall have ceased to hold
such office. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
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If any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer before the Warrant Certificates so
signed shall have been countersigned by the Warrant Agent or disposed of by the
Company, such Warrant Certificates nevertheless may be countersigned and
delivered or disposed of as though such person had not ceased to be such officer
of the Company; and any Warrant Certificate may be signed on behalf of the
Company by any person who, at the actual date of the execution of such Warrant
Certificate, shall be a proper officer of the Company to sign such Warrant
Certificate, although at the date of the execution of this Agreement any such
person was not such officer.
Section 5. Registration and Countersignature. Warrant Certificates shall
be manually countersigned and dated the date of countersignature by the Warrant
Agent and shall not be valid for any purpose unless so countersigned. The
Warrants shall be numbered and shall be registered in a register (the "Warrant
Register") to be maintained by the Warrant Agent.
The Warrant Agent's countersignature on all Warrants shall be in
substantially the form set forth in Exhibit A hereto.
---------
The Company and the Warrant Agent may deem and treat the registered holder
of a Warrant Certificate as the absolute owner thereof (notwithstanding any
notation of ownership or other writing thereon made by anyone), for the purpose
of any exercise thereof or any distribution to the holder thereof and for all
other purposes, and neither the Company nor the Warrant Agent shall be affected
by any notice to the contrary.
Section 6. Registration of Transfers and Exchanges. No Warrant may be
transferred prior to the Restricted Period Termination Date except in a
Permitted Transfer. Prior to the Restricted Period Termination Date, the Warrant
Agent shall not register the transfer of any outstanding Warrant Certificate
except a Permitted Transfer. Following the Restricted Period Termination Date
until the Close of Business on the Expiration Date (as hereinafter defined), the
Warrant Agent shall from time to time register the transfer of any outstanding
Warrant Certificates in the Warrant Register, upon surrender of such Warrant
Certificates, duly endorsed, and, if not surrendered by or on behalf of an
original holder of Warrants or a Permitted Transferee accompanied by a written
instrument or instruments of transfer in form satisfactory to the Warrant Agent,
duly signed by the registered holder or holders thereof or by the duly appointed
legal representative thereof or by a duly authorized attorney, such signature to
be guaranteed by (a) a bank or trust company, (b) a broker or dealer that is a
member of the National Association of Securities Dealers, Inc. (the "NASD"), (c)
a member of a national securities exchange or (d) by an "eligible guarantor
institution" as defined under Rule 17Ad-15 promulgated under the Securities
Exchange Act of 1934, as amended. Upon any such registration of transfer, a new
Warrant Certificate shall be issued to the transferee. For purposes of this
Agreement the "Restricted Period Termination Date" shall be the earlier of
October 3, 1995 or the date on which a registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), covering the Warrants
and Shares shall have been declared effective by the Securities and Exchange
Commission (the "SEC"), and such other action as may be required by federal or
state law relating to the issuance or distribution of securities shall have been
taken, except that with respect to Warrants issued to or held by Einar W.
Sissener or A/S Swekk or holders who acquire such warrants from Einar W.
Sissener or A/S Swekk in a Permitted Transfer, the Restricted Period Termination
Date shall be October 3, 1997. For purposes of this Agreement a "Permitted
Transfer" shall be any of the following: (i) a transfer by operation of law,
(ii) a transfer pursuant to applicable laws of descent and distribution, and
(iii) a transfer to the owners of an entity holder upon the liquidation of such
entity; provided, however, that the restrictions contained in this
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Section 6 and elsewhere in this Agreement shall continue in effect with respect
to any Warrant in the hands of the transferee of a Permitted Transfer. For
purposes of this Agreement, the term "Permitted Transferee" shall mean any
holder who acquired Warrants in a Permitted Transfer.
Warrant Certificates may be exchanged at the option of the holder or
holders thereof, when surrendered to the Warrant Agent at its offices or agency
maintained in New York, New York (or at such other offices or agencies as may be
designated by the Agent) for the purpose of exchanging, transferring and
exercising the Warrants (a "Warrant Agent Office,") or at the offices of any
successor Warrant Agent as provided in Section 18 hereof, for another Warrant
Certificate or other Warrant Certificates of like tenor and representing in the
aggregate a like number of Warrants.
The Warrant Agent is hereby authorized to countersign, in accordance with
the provisions of Section 5 and of this Section 6, and deliver the new Warrant
Certificates required pursuant to the provisions of this Section, and for the
purpose of any distribution of Warrant Certificates contemplated by Section 13.
For purposes of this Agreement, "Affiliate" or "affiliate" means, with
respect to any person, (i) any other person or entity controlling, controlled by
or under common control with such person, and (ii) any officer, director,
partner, trustee, beneficiary or employee of any person referred to in clause
(i) above.
Section 7. Duration and Exercise of Warrants. The Warrants shall expire
at (a) 5:00 p.m. New York City Time (the "Close of Business") on January 3, 1999
or (b) the Close of Business on such later date as shall be determined in the
sole discretion of the Company in a written statement to the Warrant Agent and
with notice to registered holders of Warrants in the manner provided for in
Section 15 (such date of expiration being hereinafter referred to as the
"Expiration Date"). The Warrants shall not be exercisable prior to the
Restricted Period Termination Date. At such time as the Warrants become
exercisable, and thereafter until the Close of Business on the Expiration Date,
the Warrants may be exercised on any business day. After the Close of Business
on the Expiration Date, the Warrants will become void and of no value.
Subject to the provisions of this Agreement, including Section 13, each
Warrant shall entitle the holder thereof to purchase from the Company (and the
Company shall issue and sell to such holder of a Warrant) one fully paid and
nonassessable Share at the price of $21.9450 (U.S.) (such price, as may be
adjusted from time to time as provided in Section 13, being the "Exercise
Price"). The holder of a Warrant shall exercise such holder's right to purchase
Shares by depositing with the Warrant Agent at a Warrant Agent Office the
Warrant Certificate evidencing such Warrant, with the form of election to
purchase on the reverse thereof duly completed and signed by the registered
holder or holders thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney, such signature (if not signed by or on behalf
of an original holder of Warrants or a Permitted Transferee) to be guaranteed in
the manner described in Section 6 hereof, and paying to the Warrant Agent in
lawful money of the United States of America by wire transfer of immediately
available funds or by certified check or official bank check an amount equal to
the Exercise Price multiplied by the number of Shares in respect of which such
Warrants are being exercised.
Subject to Section 9, upon such surrender of a Warrant Certificate and
payment of the Exercise Price, the Warrant Agent shall requisition from the
Company's Class A Common Stock transfer agent (the "Transfer Agent") for
issuance and delivery to or upon the written order of the registered holder of
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such Warrant Certificate and in such name or names as such registered holder may
designate, a certificate or certificates for the Share or Shares issuable upon
the exercise of the Warrant or Warrants evidenced by such Warrant Certificate.
Such certificate or certificates shall be deemed to have been issued and any
person so designated to be named therein shall be deemed to have become the
holder of record of such Share or Shares as of the date of the surrender of such
Warrant Certificate duly executed and payment of the aggregate Exercise Price.
The Warrants evidenced by a Warrant Certificate shall be exercisable, at the
election of the registered holder thereof, either as an entirety or from time to
time for a portion of the number of Warrants specified in the Warrant
Certificate. If less than all of the Warrants evidenced by a Warrant Certificate
surrendered upon the exercise of Warrants are exercised at any time prior to the
Expiration Date, a new Warrant Certificate or Certificates shall be issued for
the number of Warrants evidenced by the Warrant Certificate so surrendered that
have not been exercised, and the Warrant Agent is hereby authorized to
countersign such new Warrant Certificate or Certificates pursuant to the
provisions of Section 6 and this Section 7.
The Warrant Agent shall account promptly to the Company with respect to
Warrants exercised and concurrently pay or deliver to the Company all moneys and
other consideration received by it upon the purchase of Shares through the
exercise of Warrants.
Section 8. Cancellation of Warrants. If the Company shall purchase or
otherwise acquire Warrants, the Warrant Certificates representing such Warrants
shall thereupon be delivered to the Warrant Agent and be cancelled by it and
retired. The Warrant Agent shall cancel all Warrant Certificates surrendered for
exchange, substitution, transfer or exercise in whole or in part. Warrant
Certificates so cancelled shall be delivered by the Warrant Agent to the Company
from time to time upon request.
Section 9. Payment of Taxes. The Company will pay all documentary stamp
taxes attributable to the initial issuance of Warrants and of Shares upon the
exercise of Warrants; provided, that the Company shall not be required to pay
any tax or taxes which may be payable in respect of any transfer involved in the
issue of any Warrant Certificates or any certificates for Shares in a name other
than the registered holder of a Warrant Certificate surrendered upon the
exercise of a Warrant, and the Company shall not be required to issue or deliver
such certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid or
adequate provision has been made for the payment thereof.
Section 10. Mutilated or Missing Warrant Certificates. If any of the
Warrant Certificates shall be mutilated, lost, stolen or destroyed, the Company
may in its discretion issue, and the Warrant Agent shall countersign and
deliver, in exchange and substitution for and upon cancellation of the mutilated
Warrant Certificate, or in lieu of and substitution for the Warrant Certificate
lost, stolen or destroyed, a new Warrant Certificate of like tenor and
representing an equivalent number of Warrants, but only upon receipt of evidence
satisfactory to the Company and the Warrant Agent of such loss, theft or
destruction of such Warrant Certificate and indemnity or bond, if requested,
also satisfactory to them. Applicants for such substitute Warrant Certificates
shall also comply with such other reasonable regulations and pay such other
reasonable charges as the Company or the Warrant Agent may prescribe.
Section 11. Reservation of Shares. For the purpose of enabling it to
satisfy any obligation to issue Shares upon exercise of Warrants, the Company
will at all times through the Close of Business on the Expiration Date, reserve
and keep available, free from preemptive rights and out of its aggregate
authorized but unissued or treasury shares of Class A Common Stock, the number
of Shares deliverable
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upon the exercise of all outstanding Warrants, and the Transfer Agent is hereby
irrevocably authorized and directed at all times to reserve such number of
authorized and unissued or treasury shares of Class A Common Stock as shall be
required for such purpose. The Company will keep a copy of this Agreement on
file with such Transfer Agent and with every transfer agent for any shares of
the Company's capital stock issuable upon the exercise of Warrants pursuant to
Section 12. The Warrant Agent is hereby irrevocably authorized to requisition
from time to time from such Transfer Agent stock certificates issuable upon
exercise of outstanding Warrants, and the Company will supply such Transfer
Agent with duly executed stock certificates for such purpose.
Before taking any action that would cause an adjustment pursuant to
Section 13 reducing the Exercise Price below the then par value (if any) of the
Shares issuable upon exercise of the Warrants, the Company will take any
corporate action that may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and nonassessable
Shares at the Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of the Warrants
will, upon issuance in accordance with the terms of this Agreement, be fully
paid and nonassessable and free from all liens, charges and security interests
created by or imposed upon the Company with respect to the issuance thereof.
Section 12. Registration of Warrants and Shares and Stock Exchange
Listings; Prospectus Delivery. (a) The Company will file with the SEC and use
its best efforts to have declared effective by the first anniversary of the
issuance of the Warrants a registration statement, on Form S-3 or such other
form as is then available for such use by the Company, covering all Warrants and
the Shares. The Company will use it best efforts to keep such registration
statement continuously effective from the date on which it is first declared
effective by the SEC through the Close of Business ten (10) business days
following the Expiration Date; provided however, that if the Company has
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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 Shares acquired as the result of the exercise of a Warrant are owned or
deemed to be owned by such affiliate and that such 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
provided for by this Section 12 effective for so long as necessary to permit
sales of such 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 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 provided for in this Section 12. So long as any Warrants
remain outstanding (and so long as necessary to permit affiliates to sell Shares
in the circumstances and subject to the limitations described in the second
preceding sentence), the Company will take all necessary action (a) to obtain
and keep effective any and all permits, consents and approvals of government
agencies and authorities and to make filings under federal and state securities
acts and laws, which may be or become necessary in connection with the issuance,
sale, transfer and delivery of the Warrant Certificates, the exercise of the
Warrants and the issuance, sale, transfer and delivery of the Shares issued upon
exercise of Warrants, and (b) to have the Warrants (no later than the first
anniversary of the issuance of the Warrants) and the Shares (immediately upon
their issuance upon exercise of Warrants) listed for trading or quotation on the
New York Stock Exchange or, if such listing is in the opinion of the Company
impracticable, on one of the following securities exchanges or 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
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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.
(b) On the date of its effectiveness and on the date of any Warrant sale
or exercise, the Registration Statement will comply in all material respects
with the applicable requirements of the Securities Act and the rules and
regulations thereunder; on the date of its effectiveness, the Registration
Statement will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and, the final prospectus contained
in the Registration Statement, if not filed pursuant to rule 424(b), will not,
and on the date of any filing pursuant to rule 424(b) and upon the date of any
Warrant sale or exercise or any resale by an affiliate, such final prospectus
(together with any supplement thereto) will not, include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(c) The Company will indemnify and hold harmless, to the fullest extent
permitted by law, the holders of Warrants and Shares and each person, if any,
who controls each such holder within the meaning of the Securities Act, from and
against any and all losses, damages, claims, liabilities, joint or several,
costs and expenses (including any amounts paid in any settlement effected with
the Company's consent) to which the holders or any such controlling person may
become subject under the Securities Act, state securities or blue sky laws,
common law or otherwise, insofar as such losses, damages, claims, liabilities
(or actions or proceedings in respect thereof), costs or expenses arise out of
or are based upon (x) any untrue statement or alleged untrue statement of any
material fact contained in the registration statement or included prospectus, as
amended or supplemented, or (y) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they are made, not
misleading, and the Company will reimburse the holders and each such controlling
person of the holders promptly upon demand for any reasonable legal or any other
expenses incurred by them in connection with investigating, preparing to defend
or defending against or appearing as a third-party witness in connection with
such loss, claim, damage, liability, action or proceeding; provided, however,
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that the Company will not be liable to any holder in any such case to the
extent, but only to the extent, that any such loss, damage, liability, cost or
expenses arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
about such holder furnished by such holder or such controlling persons for use
in the preparation thereof, provided further, that the Company shall not be
liable to any person who participates as an underwriter, in the offering or sale
of Registrable Securities or to any other person, if any, who controls such
underwriter, within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of such person's failure to send or give
a copy of the final prospectus prepared by the Company and made available to
such persons, as the same may be then supplemented or amended, to the person
asserting an untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of Registrable
Securities to such person if such statement or omission was corrected in such
final prospectus. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any holder or any
controlling person of the holder, and shall survive the transfer of such
securities by the holder. In the event that indemnity is not available, the
Company agrees to contribute to any and all losses based on the relative faults
of the parties involved as well as other equitable factors which may be
appropriate.
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(d) Each holder of Warrants or Shares covered by any registration
statement contemplated by this Section 12 will severally indemnify and hold
harmless to the fullest extent permitted by law, the Company and each person, if
any, who controls the Company within the meaning of the Securities Act, from and
against any and all losses, damages, claims, liabilities, joint or several,
costs and expenses (including any amounts paid in any settlement effected with
such holder's consent) to which the Company or any such controlling person may
become subject under the Securities Act, state securities or blue sky laws,
common law or otherwise, insofar as such losses, damages, claims, liabilities
(or actions or proceedings in respect thereof), costs or expenses arise out of
or are based upon (x) any untrue statement or alleged untrue statement of any
material fact contained in the registration statement or included prospectus, as
amended or supplemented, or (y) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they are made, not
misleading, or (z) the failure of such holder to send or give a copy of the
final prospectus prepared by the Company and made available to such holder to
any person, and such holder will reimburse the Company and each such controlling
person of the Company promptly upon demand for any reasonable legal or any other
expenses incurred by them in connection with investigating, preparing to defend
or defending against or appearing as a third-party witness in connection with
such loss, claim, damage, liability, action or proceeding to the extent, but
only to the extent, that any such loss, damage, liability, cost or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission so made in conformity with information about
such holder furnished by such holder or such controlling persons for use in the
preparation of such registration statement, prospectus or preliminary prospectus
or any amendment thereof or supplement thereto. Each holder, by accepting
delivery of any Warrant, agrees to be bound by the provisions of this Section
12(d). Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any controlling person of
the Company. In the event that indemnity is not available, each such holder
severally agrees to contribute to any and all losses based on the relative
faults of the parties involved as well as any other equitable factors which may
be appropriate.
(e) If requested by the original holders of not less than 25% of the
outstanding Warrants, the Company and such holders shall enter into an
underwriting agreement with an investment banking firm containing customary
representations, warranties and provisions relating to indemnification and
contribution. In addition, the Company shall use its reasonable efforts to
cooperate with such investment banking firm to facilitate any such offering.
(f) The Company shall make available to the holders of Warrants copies of
the prospectus so that such holders may comply with their prospectus delivery
requirements.
(g) The Company shall pay all out-of-pocket expenses incurred in
connection with the Registration Statement including, without limitation, all
SEC and blue sky registration and filing fees, printing expenses, transfer
agents' and registrars' fees, fees and disbursements of the Company's and the
Warrant holders' counsel (provided however that the Warrant holders are only
entitled to one counsel as a group selected by the holders of a majority of the
Shares) and accountants and fees and disbursements of experts used by the
Company in connection with such registration, provided, that the Company shall
not be required to pay any underwriting discounts or commissions.
(h) The provisions of this Section 12 are for the benefit of the holders
of Warrants and persons who may be deemed to be affiliates of the Company
acquiring Shares upon the exercise of Warrants and shall survive the expiration
and/or exercise of the Warrants.
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Section 13. Adjustment of Exercise Price and Number of Shares Purchasable
or Number of Warrants. The Exercise Price, the number of Shares purchasable upon
the exercise of each Warrant and the number of Warrants outstanding are subject
to adjustment from time to time upon the occurrence of the events enumerated in
this Section 13.
(a) If the Company shall (i) pay a dividend on its shares of Class A
Common Stock in shares of either Class A Common Stock or shares of the Company's
Class B Common Stock, $.20 par value, (ii) subdivide its outstanding shares of
Class A Common Stock, (iii) combine its outstanding shares of Class A Common
Stock into a smaller number of shares of Class A Common Stock or (iv) reclassify
the Class A Common Stock (including any such reclassification in connection with
a consolidation or merger in which the Company is the continuing corporation),
the number of Shares purchasable upon exercise of each Warrant immediately prior
thereto shall be adjusted so that the holder of each Warrant shall be entitled
upon exercise to receive the kind and number of Shares or other securities of
the Company which such holder would have owned or have been entitled to receive
after the happening of any of the events described above, had such Warrant been
exercised immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this paragraph (a) shall
become effective immediately after the effective date of such event retroactive
to the record date, if any, for such event. In addition, in the event of any
reclassification of the Class A Common Stock, references in this Agreement to
Class A Common Stock shall thereafter be deemed to refer to the securities into
which the Class A Common Stock shall have been reclassified.
(b) If the Company shall issue rights, options or warrants to all
holders of its outstanding Class A Common Stock entitling them for a period of
45 days or less to subscribe for or purchase shares of Class A Common Stock at a
price per share that is lower than the market price per share of Class A Common
Stock (as defined in paragraph (f) below) as of the record date mentioned below,
the number of Shares thereafter purchasable upon the exercise of each Warrant
shall be determined by multiplying the number of Shares theretofore purchasable
upon exercise of each Warrant by a fraction, (i) the numerator of which shall be
the number of shares of Class A Common Stock outstanding on the date of issuance
of such rights, options or warrants plus the number of additional shares of
Class A Common Stock offered for subscription or purchase, and (ii) the
denominator of which shall be the number of shares of Class A Common Stock
outstanding on the date of issuance of such rights, options or warrants plus the
number of shares which the aggregate offering price of the total number of
shares of Class A Common Stock so offered would purchase at the market price per
share of Class A Common Stock at such record date (the date of computation
referenced in paragraph (f) below). Such adjustment shall be made whenever such
rights, options or warrants are issued, and shall become effective immediately
on the date of issuance retroactive to the record date for the determination of
stockholders entitled to receive such rights, options or warrants.
For the purposes of adjustments required by paragraph (b) of this Section
13, the shares of Class A Common Stock that the holder of any outstanding
rights, options or warrants shall be entitled to subscribe for or purchase shall
be deemed to be issued and outstanding as of the date of sale, issuance or
distribution of such securities to the extent that an adjustment has been made
for such issuance pursuant to such paragraph (b), and the consideration, if any,
received by the Company therefor shall be deemed to be the consideration
received by the Company for such securities, plus the consideration or premiums
stated in such securities to be paid for the shares of Class A Common Stock
covered thereby.
(c) If the Company shall distribute to all holders of its shares of
Class A Common Stock evidences of its indebtedness or assets (excluding cash
dividends or distributions payable out of
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consolidated earnings or earned surplus and dividends or distributions referred
to in paragraph (a) above) or rights, options or warrants or convertible or
exchangeable securities containing the right to subscribe for or purchase shares
of Class A Common Stock (excluding those referred to in paragraph (b) above),
then in each case the number of Shares thereafter purchasable upon the exercise
of each Warrant shall be determined by multiplying the number of Shares
theretofore purchasable upon the exercise of each Warrant, by a fraction, (i)
the numerator of which shall be the then current market price per share of Class
A Common Stock (as defined in paragraph (f) below) on the date of such
distribution (the date of computation referenced in paragraph (f) below), and
(ii) the denominator of which shall be the then current market price per share
of Class A Common Stock (as defined in paragraph (f) below) on the date of such
distribution (the date of computation referenced in paragraph (f) below), less
the then fair value (as determined in good faith by the Board of Directors of
the Company, whose determination shall be conclusive and shall be evidenced by a
resolution filed with the Warrant Agent) of the portion of the assets or
evidences of indebtedness so distributed or of subscription rights, options or
warrants or convertible or exchangeable securities, in each instance applicable
to one share of Class A Common Stock. Such adjustment shall be made whenever any
such distribution is made, and shall become effective on the date of
distribution retroactive to the record date for the determination of
stockholders entitled to receive such distribution.
(d) For the purpose of any computation under paragraph (b) of this
Section 13, the current or closing market price per share of Class A Common
Stock at any date shall be deemed to be the average of the daily closing prices
(determined as provided in Section 14(c)) for the 15 consecutive trading days
commencing 20 trading days before the date of such computation.
(e) Except for adjustments required by paragraph (k) hereof, no
adjustment in the number of Shares purchasable hereunder shall be required
unless such adjustment would require an increase or decrease of at least one
percent (1%) in the number of Shares purchasable upon the exercise of each
Warrant; provided, however, that any adjustments which by reason of this
paragraph (e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations shall be made to the
nearest cent and to the nearest one-hundredth of a share, as the case may be.
(f) Whenever the number of Shares purchasable upon the exercise of each
Warrant is adjusted as herein provided (whether or not the Company then or
thereafter elects to issue additional Warrants in substitution for an adjustment
in the number of Shares as provided in paragraph (k) hereof), the Exercise Price
payable upon exercise of each Warrant shall be adjusted by multiplying such
Exercise Price immediately prior to such adjustment by a fraction, the numerator
of which shall be the number of Shares purchasable upon the exercise of each
Warrant immediately prior to such adjustment and the denominator of which shall
be the number of Shares so purchasable immediately thereafter.
(g) For the purpose of this Section 13, the term "shares of Class A
Common Stock" shall mean (i) the class of stock designated as the Class A Common
Stock of the Company at the date of this Agreement, or (ii) any other class of
stock resulting from successive changes or reclassification of such shares
consisting solely of changes in par value, or from par value to no par value, or
from no par value to par value. If at any time, as a result of an adjustment
made pursuant to paragraph (a) or (c) above, the holders of Warrants shall
become entitled to purchase any shares of the Company other than shares of Class
A Common Stock, thereafter the provisions of this Agreement with respect to
Shares, including, without limitation, the provisions regarding adjustments to
be made from time to time to the number of such other shares so purchasable upon
exercise of each Warrant and the Exercise Price of such shares, shall apply as
nearly as practicable in an equivalent manner to such other shares.
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(h) Upon the expiration of any rights, options, warrants or conversion or
exchange privileges, if any thereof shall not have been exercised, the Exercise
Price and the number of shares of Class A Common Stock purchasable upon the
exercise of each Warrant shall, upon such expiration, be readjusted and shall
thereafter be such as it would have been had it been originally adjusted (or had
the original adjustment not been required, as the case may be) as if (i) the
only shares of Class A Common Stock so issued were the shares of Class A Common
Stock, if any, actually issued or sold upon the exercise of such rights,
options, warrants or conversion or exchange rights and (ii) such shares of Class
A Common Stock, if any, were issued or sold for the consideration actually
received by the Company upon such exercise plus the aggregate consideration, if
any, actually received by the Company for the issuance, sale or grant of all of
such rights, options, warrants or conversion or exchange rights whether or not
exercised; provided, that no such readjustment shall have the effect of
increasing the Exercise Price or decreasing the number of shares by an amount in
excess of the amount of the adjustment initially made in respect to the
issuance, sale or grant of such rights, options, warrants or conversion or
exchange rights.
(i) The Company in its discretion may elect, on or after the date of any
adjustment required by paragraphs (a) and (b) of this Section 13, to adjust the
number of Warrants in substitution for an adjustment in the number of Shares
purchasable upon the exercise of a Warrant. Each of the Warrants outstanding
after such adjustment of the number of Warrants shall be exercisable for the
same number of Shares as immediately prior to such adjustment. Each Warrant held
of record prior to such adjustment of the number of Warrants shall become that
number of Warrants (calculated to the nearest hundredth) obtained by dividing
the Exercise Price in effect prior to adjustment of the Exercise Price by the
Exercise Price in effect after adjustment of the Exercise Price. The Company
shall notify the holders of Warrants in the same manner as provided in the first
paragraph of Section 15, of its election to adjust the number of Warrants,
indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the date on which
the Exercise Price is adjusted or any day thereafter. Upon each adjustment of
the number of Warrants pursuant to this paragraph (i) the Company shall, as
promptly as practicable, cause to be distributed to holders of record of
Warrants on such record date Warrant Certificates evidencing, subject to Section
14, the additional Warrants to which such holders shall be entitled as a result
of such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for the
Warrant Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Warrant Certificates
evidencing all the Warrants to be issued, executed and registered in the manner
specified in Sections 4, 5 and 6 (and which may bear, at the option of the
Company, the adjusted Exercise Price) and shall be registered in the names of
the holders of record of Warrant Certificates on the record date specified in
the notice.
(j) Except as provided in paragraphs (a) and (b) of this Section 13, no
adjustment to the number of Shares which may be purchased upon exercise of any
Warrant in respect of any dividend shall be made during the term of a Warrant or
upon the exercise of a Warrant.
(k) In case of any consolidation of the Company with or merger of the
Company into another corporation or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety or the Company is a party to a merger or binding share exchange which
reclassifies or changes its outstanding Class A Common Stock, the Company or
such successor or purchasing corporation, as the case may be, shall execute with
the Warrant Agent an agreement, in form and substance substantially equivalent
to this Agreement, that each holder of a Warrant shall have the right
thereafter, subject to terms and conditions substantially equivalent to those
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contained in this Agreement, upon payment of the Exercise Price in effect
immediately prior to such action to purchase upon exercise of each Warrant the
kind and amount of shares and other securities and property which such holder
would have owned or have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance had such Warrant been exercised
immediately prior to such action. The Company shall mail by first-class mail,
postage prepaid, to each registered holder of a Warrant, notice of the execution
of any such agreement. Such agreement shall provide for adjustments, which shall
be as nearly equivalent as may be practicable to the adjustments provided for in
this Section 13. The provisions of this paragraph (k) shall similarly apply to
successive consolidations, mergers, sales or conveyances. The Warrant Agent
shall be under no duty or responsibility to determine the correctness of any
provisions contained in any such agreement relating either to the kind or amount
of shares of stock or other securities or property receivable upon exercise of
Warrants or with respect to the method employed and provided therein for any
adjustments and shall be entitled to rely upon the provisions contained in any
such agreement
(l) Irrespective of any adjustments in the Exercise Price or the number
or kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
Section 14. Fractional Warrants and Fractional Shares.
(a) The Company shall not be required to issue fractions of Warrants on
any distribution of Warrants to holders of Warrant Certificates pursuant to
Section 13(k) or to distribute Warrant Certificates that evidence fractional
Warrants. In lieu of such fractional Warrants there shall be paid to the
registered holders of the Warrant Certificates with regard to which such
fractional Warrants would otherwise be issuable, an amount in cash equal to the
same fraction of the current market value of a full Warrant. For purposes of
this Section 14(a), the current market value of a Warrant shall be the closing
price of one Warrant (as determined pursuant to paragraph (c) below) for the
trading day immediately prior to the date on which such fractional Warrant would
have been otherwise issuable.
(b) Notwithstanding any adjustment pursuant to Section 13 in the number
of Shares purchasable upon the exercise of a Warrant, the Company shall not be
required to issue fractions of Shares upon exercise of the Warrants or to
distribute certificates which evidence fractional Shares. In lieu of fractional
Shares, there shall be paid to the registered holders of Warrant Certificates at
the time such Warrant Certificates are exercised as herein provided an amount in
cash equal to the same fraction of the current market value of a share of Class
A Common Stock minus the equivalent fraction of the exercise price. For purposes
of this Section 14(b), the current market value of a share of Class A Common
Stock shall be the closing price of a share of Class A Common Stock (as
determined pursuant to paragraph (c) below) for the trading day immediately
prior to the date of such exercise.
(c) The closing price for each day shall be the last sale price, regular
way, or, if no such sale takes place on such day, the average of the closing bid
and asked prices, regular way, for such day, in either case as reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if the Warrants
or Class A Common Stock, as the case may be, are not listed or admitted to
trading on such exchange, as reported on the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Warrants or Class A Common Stock, respectively,
is listed or admitted to trading, or if the Warrants or Class A Common Stock, as
the case may be, is not listed or
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admitted to trading on any national securities exchange, as reported on
NASDAQ/NMS or, if the Warrants or Class A Common Stock, as the case may be, is
not listed or admitted to trading on NASDAQ/NMS, as reported on NASDAQ.
Section 15. Notices to Warrantholders. Upon any adjustment of the number
of Shares purchasable upon exercise of each Warrant, the Exercise Price or the
number of Warrants outstanding pursuant to Section 13, the Company within 20
calendar days thereafter shall (i) cause to be filed with the Warrant Agent a
certificate of a firm of independent public accountants of recognized standing
selected by the Company (who may be the regular auditors of the Company) setting
forth the Exercise Price and either the number of Shares purchasable upon
exercise of each Warrant or the additional number of Warrants to be issued for
each previously outstanding Warrant, as the case may be, after such adjustment
and setting forth in reasonable detail the method of calculation and the facts
upon which such adjustment was made, which certificate shall be conclusive
evidence of the correctness of the matters set forth therein, and (ii) cause the
Warrant Agent to give to each of the registered holders of the Warrant
Certificates at such holder's address appearing on the Warrant Register written
notice of such adjustments by first-class mail, postage prepaid. Where
appropriate, such notice may be given in advance and included as a part of the
notice required to be mailed under the other provisions of this Section 15.
If:
(a) the Company shall declare any dividend payable in any securities
upon its shares of Class A Common Stock or make any distribution (other
than a cash dividend declared in the ordinary course) to the holders of
its shares of Class A Common Stock, or
(b) the Company shall offer to the holders of its shares of Class A
Common Stock any additional shares of Class A Common Stock or securities
convertible or exchangeable into shares of Class A Common Stock or any
right to subscribe for or purchase Class A Common Stock, or
(c) there shall be a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation, merger or sale of
all or substantially all of its property, assets and business as an
entirety),
then the Company shall (i) cause written notice of such event to be filed
with the Warrant Agent and shall cause written notice of such event to be given
to each of the registered holders of the Warrant Certificates at such holder's
address appearing on the Warrant Register, by first-class mail, postage prepaid,
and (ii) make a public announcement in a daily morning English language
newspaper of general circulation in New York City, New York, and in a daily
morning Norwegian language newspaper of general circulation in Oslo, Norway, of
such event, such giving of notice and publication to be completed at least 10
calendar days (or 20 calendar days in any case specified in clause (c) above)
prior to the date fixed as a record date or the date of closing the transfer
books for the determination of the stockholders entitled to such dividend,
distribution or subscription rights, or for the determination of stockholders
entitled to vote on such proposed dissolution, liquidation or winding up. Such
notice shall specify such record date or the date of closing the transfer books,
as the case may be. The failure to give the notice required by this Section 15
or any defect therein shall not affect the legality or validity of any dividend,
distribution, right, option, warrant, dissolution, liquidation or winding up or
the vote upon or any other action taken in connection therewith.
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Section 16. Merger, Consolidation or Change of Name of Warrant Agent. Any
corporation into which the Warrant Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation succeeding to the shareholder services business of the Warrant
Agent, shall be the successor to the Warrant Agent hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such corporation would be eligible for appointment
as a successor Warrant Agent under the provisions of Section 18. If at the time
such successor to the Warrant Agent shall succeed under this Agreement, any of
the Warrant Certificates shall have been countersigned but not delivered, any
such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent; and if at that time any of the Warrant Certificates
shall not have been countersigned, any successor to the Warrant Agent may
countersign such Warrant Certificates either in the name of the predecessor
Warrant Agent or in the name of the successor Warrant Agent; in all such cases
such Warrant Certificates shall have the full force provided in the Warrant
Certificates and in this Agreement.
If at any time the name of the Warrant Agent shall be changed and at such
time any of the Warrant Certificates shall have been countersigned but not
delivered, the Warrant Agent whose name has changed may adopt the
countersignature under its prior name; and if at that time any of the Warrant
Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its changed
name; and in all such cases such Warrant Certificates shall have the full force
provided in the Warrant Certificates and in this Agreement.
Section 17. Warrant Agent. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Warrants, by their acceptance
thereof, shall be bound:
(a) The statements contained herein and in the Warrant Certificates shall
be taken as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it. Except as herein
otherwise provided, the Warrant Agent assumes no responsibility with respect to
the execution, delivery or distribution of the Warrant Certificates.
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by the Company nor shall it at any
time be under any duty or responsibility to any holder of a Warrant to make or
cause to be made any adjustment in the Exercise Price or in the number of Shares
issuable upon exercise of any Warrant (except as instructed by the Company), or
to determine whether any facts exist which may require any such adjustments, or
with respect to the nature or extent of or method employed in making any such
adjustments when made.
(c) The Warrant Agent may consult at any time with counsel satisfactory
to it (who may be counsel for the Company) and the Warrant Agent shall incur no
liability or responsibility to the Company or any holder of any Warrant
Certificate in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant Certificate for any action taken in
reliance on any notice, resolution, waiver, consent,
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order, certificate or other paper, document or instrument believed in good faith
by it to be genuine and to have been signed, sent or presented by the proper
party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent under this
Agreement, to reimburse the Warrant Agent upon demand for all expenses, taxes
and governmental charges and other charges of any kind and nature incurred by
the Warrant Agent in the performance of its duties, under this Agreement and to
indemnify the Warrant Agent and save it harmless against any and all losses,
liabilities and expenses, including judgments, costs and reasonable counsel fees
and expenses, for anything done or omitted by the Warrant Agent arising out of
or in connection with this Agreement except as a result of its negligence or bad
faith.
(f) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more registered holders of Warrant
Certificates shall furnish the Warrant Agent with reasonable security and
indemnity for any costs or expenses which may be incurred. All rights of action
under this Agreement or under any of the Warrants may be enforced by the Warrant
Agent without the possession of any of the Warrant Certificates or the
production thereof at any trial or other proceeding related thereto, and any
such action, suit or proceeding instituted by the Warrant Agent shall be brought
in its name as Warrant Agent, and any recovery or judgment shall be for the
ratable benefit of the registered holders of the Warrants, as their respective
rights or interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer or employee
thereof, may buy, sell or deal in any of the Warrants or other securities of the
Company or become pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company or otherwise
act as fully and freely as though they were not the Warrant Agent under this
Agreement, or a stockholder, director, officer or employee of the Warrant Agent,
as the case may be. Nothing herein shall preclude the Warrant Agent from acting
in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions hereof. The
Warrant Agent shall not be liable for anything which it may do or refrain from
doing in connection with this Agreement except for its own negligence or bad
faith.
(i) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Warrant Agent for the carrying out or performing the provisions of this
Agreement.
(j) The Warrant Agent shall not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery hereof (except the
due execution hereof by the Warrant Agent) or in respect of the validity or
execution of any Warrant Certificate (except its countersignature thereof), nor
shall the Warrant Agent by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of the Shares
to be issued pursuant to this Agreement or any Warrant Certificate or as to
whether the Shares will when issued be validly issued, fully paid and
nonassessable or as to the Exercise Price or the number of Shares issuable upon
exercise of any Warrant.
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(k) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the President, any Vice President, the Treasurer, the
Secretary or an Assistant Secretary of the Company, and to apply to such
officers for advice or instructions in connection with its duties, and shall not
be liable for any action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer or in good faith reliance upon
any statement signed by any one of such officers of the Company with respect to
any fact or matter (unless other evidence in respect thereof is herein
specifically prescribed) which may be deemed to be conclusively proved and
established by such signed statement.
Section 18. Change of Warrant Agent. If the Warrant Agent shall resign
(such resignation to become effective not earlier than 60 days after the giving
of written notice thereof to the Company and the registered holders of Warrant
Certificates) or shall become incapable of acting as Warrant Agent or if the
Board of Directors of the Company shall by resolution remove the Warrant Agent
(such removal to become effective not earlier than 30 days after the filing of a
certified copy of such resolution with the Warrant Agent and the giving of
written notice of such removal to the registered holders of Warrant
Certificates), the Company shall appoint a successor to the Warrant Agent. If
the Company shall fail to make such appointment within a period of 30 days after
such removal or after it has been so notified in writing of such resignation or
incapacity by the Warrant Agent or by the registered holder of a Warrant
Certificate (in the case of incapacity), then the registered holder of any
Warrant Certificate may apply to any court of competent jurisdiction for the
appointment of a successor to the Warrant Agent. Pending appointment of a
successor to the Warrant Agent, either by the Company or by such a court, the
duties of the Warrant Agent shall be carried out by the Company. Any successor
Warrant Agent, whether appointed by the Company or by such a court, shall be a
bank or trust company, in good standing, incorporated under the laws of any
state or of the United States of America. As soon as practicable after
appointment of the successor Warrant Agent, the Company shall cause written
notice of the change in the Warrant Agent to be given to each of the registered
holders of the Warrant Certificates at such holder's address appearing on the
Warrant Register. After appointment, the successor Warrant Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as Warrant Agent without further act or deed. The former
Warrant Agent shall deliver and transfer to the successor Warrant Agent any
property at the time held by it hereunder and execute and deliver, at the
expense of the Company, any further assurance, conveyance, act or deed necessary
for the purpose. Failure to give any notice provided for in this Section 18 or
any defect therein, shall not affect the legality or validity of the removal of
the Warrant Agent or the appointment of a successor Warrant Agent, as the case
may be.
Section 19. Warrantholder Not Deemed a Stockholder. Nothing contained in
this Agreement or in any of the Warrant Certificates shall be construed as
conferring upon the holders thereof the right to vote or to receive dividends or
to consent or to receive notice as stockholders in respect of the meetings of
stockholders or for the election of directors of the Company or any other
matter, or any rights whatsoever as stockholders of the Company.
Section 20. Delivery of Prospectus. If the Company is required under
applicable federal or state securities laws to deliver a prospectus upon
exercise of Warrants, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus, and the Warrant Agent agrees that upon the exercise of
any Warrant Certificate by the holder thereof, the Warrant Agent will deliver to
such holder, prior to or concurrently with the delivery of the certificate or
certificates for the Shares issued upon such exercise, a copy of the prospectus.
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Section 21. Notices to Company and Warrant Agent. Any notice or demand
authorized by this Agreement to be given or made by the Warrant Agent or by any
registered holder of any Warrant Certificate to or on the Company shall be
sufficiently given or made if sent by mail, first-class or registered, postage
prepaid, addressed (until another address is filed in writing by the Company
with the Warrant Agent), as follows:
A.L. Pharma Inc.
One Executive Drive
Fort Lee, New Jersey 07024
If the Company shall fail to maintain such office or agency or shall fail
to give such notice of any change in the location thereof, presentation may be
made and notices and demands may be served at the principal office of the
Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by any
registered holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing by the Warrant Agent with the
Company), as follows:
The First National Bank of Boston
150 Royall Street
Mail Stop 45-01-19
Canton, Massachusetts 02021
Attn: Shareholder Services Division
The Warrant Agent maintains a Warrant Agent Office at BancBoston Trust Company
of New York, 55 Broadway, New York, New York 10006.
Section 22. Supplements and Amendments. The Company and the Warrant Agent
may from time to time supplement or amend this Agreement without the approval of
any holders of Warrant Certificates in order to cure any ambiguity, manifest
error or other mistake in this Agreement, or to correct or supplement any
provision contained herein that may be defective or inconsistent with any other
provision herein, or to make any other provisions in regard to matters or
questions arising hereunder that the Company and the Warrant Agent may deem
necessary or desirable and that shall not adversely affect, alter or change the
interests of the holders of the Warrants in any material respect.
Any supplement or amendment of this Agreement which may not be made by the
Company and the Warrant Agent without the approval of holders of Warrant
Certificates pursuant to the preceding paragraph shall require the approval of
the holders of Warrant Certificates entitled to purchase upon exercise thereof a
majority of the Shares which may be purchased upon the exercise of all
outstanding Warrant Certificates at the time that such amendment or supplement
is to be made. Notwithstanding the foregoing, any amendment or supplement to
this Agreement which would change the Expiration Date to a date prior to January
3, 1999 or which would provide for an adjustment to either (i) the number of
Shares purchasable upon exercise of a Warrant or (ii) the exercise price for
which Shares are purchasable upon exercise of a Warrant, in either case, in a
manner not provided for in this agreement and in a manner that would have a
substantial negative impact on the holders of Warrant Certificates, then such
amendment or supplement shall require the consent of the holders of all Warrant
Certificates.
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Section 23. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
Section 24. Termination. This Agreement shall terminate at the Close of
Business on the Expiration Date. Notwithstanding the foregoing, this Agreement
will terminate on any earlier date when all Warrants have been exercised. The
provisions of Section 18 shall survive such termination.
Section 25. Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of New York and for all purposes shall be construed in accordance with the
internal laws of the State of New York without regard to principles of conflict
of law or choice of laws of the State of New York or any other jurisdiction
which would cause the application of any laws other than of the State of New
York.
Section 26. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company, the
Warrant Agent and the registered holders of the Warrant Certificates any legal
or equitable right, remedy or claim under this Agreement, and this Agreement
shall be for the sole and exclusive benefit of the Company, the Warrant Agent
and the registered holders of the Warrant Certificates.
Section 27. Counterparts. This Agreement may be executed in a number of
counterparts and each of such counterparts shall all for purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
Section 28. Headings. The headings of sections of this Agreement have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
* * * * *
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IN WITNESS WHEREOF the parties hereto have caused this Warrant Agreement
to be executed and delivered as of the day and year first above written.
A.L. PHARMA INC.
By /s/ Jeffrey E. Smith
-----------------------------------------
Title: Chief Financial Officer/Executive
Vice President
ATTEST:
/s/ Beth P. Hecht
- --------------------------------
THE FIRST NATIONAL BANK OF BOSTON
By /s/ Katherine S. Anderson
-----------------------------------------
Title: Administration Manager
ATTEST:
- --------------------------------
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EXHIBIT A
[FORM OF FACE OF WARRANT CERTIFICATE]
THIS WARRANT WAS ORIGINALLY ISSUED ON ______________, 1994 AND SUCH
ISSUANCE WAS NOT REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAW. NEITHER THIS
WARRANT NOR THE CLASS A COMMON STOCK OBTAINABLE UPON EXERCISE HEREOF MAY
BE OFFERED OR SOLD, PLEDGED OR OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE OR OTHER SECURITIES LAW COVERING SUCH SECURITY OR
PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENT. THE TRANSFER
AND EXERCISE OF THIS WARRANT ARE ALSO SUBJECT TO THE CONDITIONS ON
TRANSFER AND EXERCISE SPECIFIED IN THE WARRANT AGREEMENT, DATED AS OF
OCTOBER 3, 1994 (AS AMENDED AND MODIFIED FROM TIME TO TIME), BETWEEN THE
ISSUER HEREOF (THE "COMPANY") AND THE FIRST NATIONAL BANK OF BOSTON, AS
WARRANT AGENT; THE COMPANY AND THE WARRANT AGENT EACH RESERVE THE RIGHT TO
REFUSE THE TRANSFER OF THIS WARRANT UNTIL SUCH CONDITIONS HAVE BEEN
FULFILLED WITH RESPECT TO SUCH TRANSFER. UPON WRITTEN REQUEST, A COPY OF
SUCH CONDITIONS SHALL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF
WITHOUT CHARGE.
VOID AFTER JANUARY 3, 1999
No. C- WARRANT TO PURCHASE
SHARES OF CLASS A COMMON STOCK
A.L. PHARMA INC.
WARRANT TO PURCHASE CLASS A COMMON STOCK
This Warrant Certificate certifies that ________________ or registered
assigns, is the registered holder of a Warrant (the "Warrant") of A.L. Pharma
Inc., a Delaware corporation (the "Company"), to purchase the number of shares
(the "Shares") of Class A Common Stock, $.20 par value (the "Class A Common
Stock"), of the Company set forth above. This Warrant expires at the close of
business on January 3, 1999 (the "Expiration Date"), unless such date is
extended at the option of the Company, and entitles the holder to purchase from
the Company the number of fully paid and nonassessable Shares set forth above at
the initial exercise price of $21.9450 (the "Exercise Price"), payable in lawful
money of the United States of America.
Subject to the terms and conditions set forth herein and in the Warrant
Agreement referred to on the reverse hereof, this Warrant may be exercised upon
surrender of this Warrant Certificate and payment of an amount equal to the
Exercise Price multiplied by the number of Shares to be purchased upon exercise
hereof at the office or agency of the Warrant Agent at BancBoston Trust Company
of New York, 55 Broadway, New York, New York 10006 (the "Warrant Agent Office").
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<PAGE>
Page 37 of 41 Pages
The Exercise Price and the number of Shares purchasable upon exercise of
this Warrant are subject to adjustment upon the occurrence of certain events as
set forth in the Warrant Agreement. The holder hereof by accepting this Warrant
Certificate hereby acknowledges and consents to the restrictions regarding
transfer and exercise of this Warrant contained in the Warrant Agreement.
No Warrant may be exercised prior to the earlier of October 3, 1995 or the
date on which a registration statement under the Securities Act covering the
Warrants and the Shares shall have been declared effective by the SEC, and such
other action as may be required by federal or state law relating to the issuance
or distribution of securities shall have been taken (the "Restricted Period
Termination Date"), or after the Close of Business on the Expiration Date,
unless the Company exercises its option to extend such date. After the Close of
Business on the Expiration Date, the Warrants will become void and of no value.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS WARRANT
CERTIFICATE SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR
ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Warrant Certificate shall not be valid unless manually countersigned
by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Certificate to be executed
by its duly authorized officers, and the corporate seal hereunto affixed.
Dated: ________________.
A.L. PHARMA INC.
By
----------------------------------
Title
[CORPORATE SEAL OF A.L. PHARMA INC.]
ATTEST:
By
-----------------------------------
Title
Countersigned:
THE FIRST NATIONAL BANK OF BOSTON
AS WARRANT AGENT
By
-----------------------------------
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<PAGE>
Page 38 of 41 Pages
[FORM OF REVERSE OF WARRANT CERTIFICATE]
A.L. PHARMA INC.
The warrant evidenced by this warrant certificate is part of a duly
authorized issue of Warrants to purchase a maximum of three million, six hundred
thousand (3,600,000) Shares of Class A Common Stock issued pursuant to a Warrant
Agreement, dated as of October 3, 1994 (the "Warrant Agreement"), duly executed
and delivered by the Company and The First National Bank of Boston, as Warrant
Agent (the "Warrant Agent"). The Warrant Agreement hereby is incorporated by
reference in and made a part of this instrument and is should be referred to for
a description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the holders (the
words "holders" or "holder" meaning the registered holders or registered holder)
of the Warrants. A copy of the Warrant Agreement may be inspected at the Warrant
Agent Office and is available upon written request addressed to the Company. All
terms used herein that are defined in the Warrant Agreement have the meanings
assigned to them therein.
Warrants may be exercised to purchase Shares from the Company before the
Close of Business on the Expiration Date, at the Exercise Price set forth on the
face hereof, subject to adjustment as described in the Warrant Agreement. The
holder of the Warrant evidenced by this Warrant Certificate may exercise such
Warrant by surrendering the Warrant Certificate, with the form of election to
purchase set forth hereon properly completed and executed, together with payment
of the aggregate Exercise Price, in lawful money of the United States of
America, and any applicable transfer taxes, by wire transfer of immediately
available funds, certified check or official bank check at the Warrant Agent
Office.
In the event that upon any exercise of the Warrant evidenced hereby the
number of Shares actually purchased shall be less than the total number of
Shares purchasable upon exercise of the Warrant evidenced hereby, there shall be
issued to the holder hereof, or such holder's assignee, a new Warrant
Certificate evidencing a Warrant to purchase the Shares not so purchased. No
adjustment shall be made for any cash dividends on any Shares issuable upon
exercise of this Warrant. After the Close of Business on the Expiration Date,
unexercised Warrants shall become void and of no value.
The Company shall not be required to issue fractions of Shares or any
certificates that evidence fractional Shares. In lieu of such fractional Shares,
there shall be paid to holders of the Warrant Certificates with regard to which
such fractional Shares would otherwise be issuable an amount in cash equal to
the same fraction of the current market value (as determined pursuant to the
Warrant Agreement) of a full Share minus the same fraction of the exercise
price.
Warrant Certificates, when surrendered at the Warrant Agent Office by the
registered holder thereof in person or by a legal representative or attorney
duly authorized in writing, may be exchanged, in the manner and subject to the
limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing a Warrant to purchase in the aggregate a like number of Shares.
Upon due presentment for registration of transfer of this Warrant
Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing a Warrant or Warrants to purchase in
the aggregate a like number of Shares shall be issued to the transferee in
exchange for this Warrant Certificate, subject to the limitations provided in
the Warrant Agreement, without charge, except for any tax or other governmental
charge imposed in connection therewith.
The Company and Warrant Agent may deem and treat the registered holder
hereof as the absolute owner of this Warrant Certificate (notwithstanding any
notation of ownership or other writing hereon made by anyone) for the purpose of
any exercise hereof and for any other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
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<PAGE>
Page 39 of 41 Pages
ELECTION TO EXERCISE
(TO BE EXECUTED UPON EXERCISE OF THE WARRANT)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate to purchase ________ Shares and herewith
tenders in payment for such Shares $________ in lawful money of the United
States of America, in accordance with the terms hereof. The undersigned requests
that a certificate representing such Shares be registered and delivered as
follows:
-----------------------------------------------------------
Name
-----------------------------------------------------------
Address
-----------------------------------------------------------
Delivery Address (if different)
If such number of Shares is less than the aggregate number of Shares purchasable
hereunder, the undersigned requests that a new Warrant Certificate representing
the balance of such Shares be registered and delivered as follows:
-----------------------------------------------------------
Name
-----------------------------------------------------------
Address
-----------------------------------------------------------
Delivery Address (if different)
- --------------------------------- -------------------------------------------
Social Security or Other Taxpayer Signature
Identification Number of Holder
Note: The above signature must correspond
with the name as written upon the face of
this Warrant Certificate in every
particular, without alteration or
enlargement or any change whatsoever. In
addition, the signature of the holder
hereof must be guaranteed.
SIGNATURE GUARANTEED:
- ------------------------
- 22 -
<PAGE>
Page 40 of 41 Pages
ASSIGNMENT
(TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH
HOLDER DESIRES TO TRANSFER THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED, the undersigned registered holder hereby sells assigns
and transfers unto
-----------------------------------------------------------
Name of Assignee
-----------------------------------------------------------
Address of Assignee
this Warrant Certificate, together with all right, title and interest therein,
and does irrevocably constitute and appoint ________________ attorney, to
transfer the within Warrant Certificate on the books of the Warrant Agent, with
full power of substitution.
- ------------------------------------- -------------------------------------
Dated Signature
Note: The above signature must
correspond with the name as written
upon the face of this Warrant
Certificate in every particular,
without alteration or enlargement or
any change whatsoever. In addition, the
signature of the holder hereof must be
guaranteed.
- -------------------------------------
Social Security or Other Taxpayer
Identification Number of Holder
SIGNATURE GUARANTEED:
- -------------------------------------
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<PAGE>
Page 41 of 41 Pages
EXHIBIT V
A. L. INDUSTRIER AS
POWER OF ATTORNEY
On behalf of A. L. Industrier AS (the "Company"), Einar W. Sissener
as Chairman and Roald Jotun as President of the Company, hereby constitute and
appoint Glen E. Hess, Frederick A. Tanne and Stephen P.H. Johnson (each, an
"Attorney"), and each of them, as its true and lawful representatives and
attorneys-in-fact, with full power and authority in its name, place, stead, and
capacity as officers of the Company, to make, execute, sign, acknowledge and
deliver, record or file on its behalf any filings under Sections 13 and 16 of
the Securities and Exchange Act of 1934, as amended, required of the Company in
connection with the Company's beneficial ownership of the common stock of
Alpharma Inc. and to take such other actions related thereto as such Attorney in
his judgment determines to be advisable.
The Company hereby empowers each Attorney acting pursuant hereto to
determine in his discretion the time when, purpose for and manner in which any
power herein conferred upon them shall be exercised, and the conditions,
provisions and covenants of any instruments or documents which may be executed
by him pursuant hereto and to take any action which such Attorney determines to
be advisable to carry out this Power of Attorney.
Dated: February 18, 1997
A. L. INDUSTRIER AS
By: /s/ Einar W. Sissener
---------------------------
Name: Einar W. Sissener
Its: Chairman
By: /s/ Roald Jotun
---------------------------
Name: Roald Jotun
Its: President
