<PAGE>
As filed with the Securities and Exchange Commission on July 17, 1997
Registration No. 33-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------
ALPHARMA INC.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 22-2095212 2834
(State or other jurisdiction of (I.R.S. Employer (Primary Standard Industrial
incorporation or organization) Identification Number) Classification Code Number)
</TABLE>
ONE EXECUTIVE DRIVE
FORT LEE, NEW JERSEY 07024
(201) 947-7774
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
BETH P. HECHT
CORPORATE COUNSEL AND SECRETARY
ONE EXECUTIVE DRIVE
FORT LEE, NEW JERSEY 07024
(201) 947-7774
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
--------------------
Copies to:
GLEN E. HESS, P.C.
KIRKLAND & ELLIS
CITICORP CENTER
153 EAST 53RD STREET
NEW YORK, NEW YORK 10022-4675
(212) 446-4800
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time, as soon as practicable after the effective date of this
Registration Statement, as determined by market conditions.
--------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [_]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box: [X]
-
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering: [_]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering: [_]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box: [_]
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TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED OFFERING PRICE AGGREGATE REGISTRATION FEE
REGISTERED PER SHARE OFFERING PRICE
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Rights to purchase Class A
Common Stock (1)............ 2,262,686(2) $0 $0 $0(3)
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
Class A Common Stock,
par value $.20 per share (4) 2,262,686(2) $16.34(5) $36,972,290 $11,204
Total
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</TABLE>
(1) This Registration Statement relates to the Company's rights (the "Rights")
to purchase its Class A Common Stock, par value $.20 per share, (the "Class
A Stock"), which will be issued as a dividend to holders of the Class A
Stock, and to the shares deliverable upon exercise of the Rights. This
Registration Statement also relates to resales and reoffers of certain of
these Rights by holders thereof who may be deemed to be affiliates of the
Company.
(2) Pursuant to Rule 416(a) of the Securities Act of 1933, this Registration
Statement also relates to any and all Rights issued hereby due to the
rounding up of Rights distributed hereby to the nearest whole number for
each recipient thereof, and the Rights Shares issuable upon exercise
thereof.
(3) Since both the Rights and Right Shares are being registered for distribution
under this Registration Statement, for purposes of Rule 457 there is no
separate registration fee for the Rights.
(4) These shares of Class A Stock are deliverable upon exercise of the Rights.
This Registration Statement also relates to resales and reoffers of certain
of these shares of Class A Stock to be purchased by certain holders of
Rights who may be deemed to be affiliates of the Company upon exercise of
their Rights.
(5) The subscription price for purchase of a share of Class A Stock upon
exercise of the Rights.
--------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
AN AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES
ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH
DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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<PAGE>
CROSS-REFERENCE SHEET
Furnished Pursuant to Item 501(b) of Regulation S-K
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Item
No. Form S-3 Item Number and Caption Location in Caption or Prospectus
- --- -------------------------------- ---------------------------------
<S> <C> <C>
1 Forepart of the Registration Statement and Outside Outside front cover page of Prospectus
Front Cover Page of Prospectus
2 Inside Front and Outside Back Cover Page of Inside front cover page of Prospectus
Prospectus
3 Summary Information; Risk Factors; Ratio of Earnings Not Applicable; Risk Factors; Not
to Fixed Charges Applicable
4 Use of Proceeds Use of Proceeds
5 Determination of Offering Price Not Applicable
6 Dilution Not Applicable
7 Selling Securityholders Not Applicable
8 Plan of Distribution Not Applicable
9 Description of Securities to be Registered The Rights Offering
10 Interest of Named Experts and Counsel Legal Matters; Experts
11 Material Changes The Company
12 Incorporation of Certain Information by Reference Incorporation of Certain Information by
Reference
13 Disclosure of Commission Position on Indemnification Not Applicable
for Securities Act Liabilities
</TABLE>
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED July 17, 1997
PROSPECTUS
ALPHARMA INC.
2,262,686 SHARES OF CLASS A COMMON STOCK
RIGHTS TO PURCHASE 2,262,686 SHARES OF CLASS A COMMON STOCK
Alpharma, Inc., a Delaware corporation (the "Company") is issuing on this
date of this Prospectus as a dividend to the holders (the "Holders") of its
Class A Common Stock, par value $.20 per share, (the "Class A Stock") of
record on [JULY 25], 1997 (the "Record Date"), certain subscription rights
(the "Rights"). Each Right will entitle the holder thereof to purchase one
share of Class A Stock at a subscription price of $16.34 per share (the
"Subscription Price").
Each Record Holder will receive one-sixth of a Right for each share of
Class A Stock held by such holder on the Record Date. No fractional Rights or
cash in lieu thereof will be distributed by the Company, and the number of
Rights to be distributed to each Record Holder will be rounded up to the
nearest whole number. Each Right will be exercisable for one share of Class A
Stock. Such shares of Class A Stock issuable upon exercise of the Rights are
referred to herein as "Right Shares." Once a holder of Rights (a "Right
Holder") has exercised such Rights, such exercise may not be revoked. The
Rights will be evidenced by transferable certificates (each, a "Subscription
Certificate"). The Rights are exercisable at the holder's option for a period
(the "Subscription Period") commencing on or after the effective date of the
registration statement of which this Prospectus is a part (the "Registration
Statement"), and ending at 5:00 p.m., New York City time, on November 25, 1997
(the "Expiration Date"). Holders of Rights are encouraged to consider
carefully the exercise or sale of Rights by the Expiration Date. After the
Expiration Date, unexercised Rights will be null and void.
The Rights will not be listed for trading on any securities exchange and
there can be no assurance that a market for the Rights will develop or as to
the price at which the Rights may trade if a market develops. See "RISK
FACTORS -- Uncertain Market for the Rights" herein.
This Prospectus relates to (i) issuance by the Company of Rights to
purchase up to 2,262,686 shares of Class A Stock (plus such additional
Rights as are necessary due to rounding); (ii) issuances by the Company of up
to 2,262,686 shares of Class A Stock, upon exercise of the Rights (plus such
additional Shares as are necessary due to rounding); and (iii) reoffers and
resales by certain holders of the Rights who may be deemed affiliates of the
Company of (a) Rights held by such persons, and (b) shares of Class A Stock
purchased by such persons upon exercise of their Rights. The issuance of the
Rights hereunder and sale by the Company of Right Shares upon exercise of the
Rights are referred to collectively herein as the "Rights Offering".
--------------------------------
The Class A Stock is listed on the New York Stock Exchange under the symbol
"ALO." The closing sales price of the Class A Stock on the New York Stock
Exchange on [AUGUST 28], 1997 was $_____ per share.
--------------------------------
SEE "RISK FACTORS" FOR A DISCUSSION OF CERTAIN CONSIDERATIONS CONCERNING THE
RIGHTS AND AN INVESTMENT IN THE CLASS A STOCK.
--------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
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Underwriting
Discounts and
Price to Public Commissions Proceeds to Issuer(1)
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<S> <C> <C> <C>
Class A Stock Issuable Upon Exercise of
Rights
Per Share............................ $ 16.34(2) N/A $ 16.34
Total................................ $36,972,290 N/A $36,972,290
</TABLE>
- ----------
(1) Before deducting estimated expenses of $_______ payable by the Company
relating to the issuance of the right Shares.
(2) This represents the Subscription Price of the Rights.
The date of this Prospectus is ______________, 1997
<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON IS AUTHORIZED TO GIVE ANY INFORMATION
OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY.
THIS PROSPECTUS AND ANY SUPPLEMENT HERETO SHALL NOT CONSTITUTE AN OFFER TO SELL,
OR THE SOLICITATION OF ANY OFFER TO BUY, ANY SECURITIES OTHER THAN THE CLASS A
STOCK OR RIGHTS TO WHICH IT RELATES, NOR DOES IT CONSTITUTE AN OFFER TO OR
SOLICITATION OF ANY PERSON IN ANY STATE OR JURISDICTION IN WHICH SUCH
SOLICITATION OR OFFER WOULD BE UNLAWFUL. ALL INFORMATION CONTAINED IN THIS
PROSPECTUS IS AS OF THE DATE OF THIS PROSPECTUS. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER, SHALL UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF, OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO THE DATE HEREOF.
NO ACTION HAS BEEN OR WILL BE TAKEN BY THE COMPANY THAT WOULD PERMIT A
PUBLIC OFFERING OF THE CLASS A STOCK OR THE RIGHTS OR THE CIRCULATION OR
DISTRIBUTION OF THIS PROSPECTUS OR ANY OFFERING MATERIAL IN RELATION TO THE
COMPANY, THE CLASS A STOCK OR THE RIGHTS IN ANY COUNTRY OR JURISDICTION WHERE
ACTION FOR THAT PURPOSE MAY BE REQUIRED OTHER THAN THE UNITED STATES.
TABLE OF CONTENTS
PAGE
----
Available Information.............................. 5
Incorporation of Certain Information by Reference.. 6
The Company........................................ 6
Risk Factors....................................... 7
Background of the Offering......................... 8
Use of Proceeds.................................... 8
The Rights Offering................................ 9
Certain Federal Income Tax Consequences............ 12
Legal Matters...................................... 14
Experts............................................ 14
AVAILABLE INFORMATION
The Company is subject to the reporting and other informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy materials and other
information with the Securities and Exchange Commission (the "Commission").
Such reports, proxy material and other information can be inspected and copied
at the public reference facilities maintained by the Commission at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the following Regional
Offices of the Commission: Chicago Regional Office, 500 West Madison Street,
Suite 9400, Chicago, Illinois 60661-2511 and New York Regional Office, 7 World
Trade Center, 13th Floor, New York, New York 10048. Copies of such material can
also be obtained from the Public Reference Section of the Commission, Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In
addition, certain of such materials are also available through the Commission's
Electronic Data Gathering and Retrieval System ("EDGAR"). In addition, the
Commission maintains a Website that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission, at http://www.sec.gov.
This Prospectus constitutes a part of the Registration Statement on Form S-
3 filed by the Company with the Commission under the Securities Act. This
Prospectus omits certain of the information contained in the Registration
Statement and the exhibits thereto. For further information with respect to the
Company and the securities offered hereby, reference is made to the Registration
Statement and the exhibits thereto, copies of which are on file at the offices
of the Commission and may be obtained upon payment of the fee prescribed by the
Commission, or may be examined without charge at the offices of the Commission.
Statements contained in this Prospectus or in any document incorporated in this
Prospectus by reference as to the contents of any contract or other document
referred to herein or therein are not necessarily complete, and, in each
instance, reference is made to the copy of such contract or other document filed
as an exhibit to the Registration Statement or such other document, each such
statement being qualified in all respects by such reference.
5
<PAGE>
The Class A Stock of the Company is listed and traded on the New York Stock
Exchange. Reports, proxy statements and other information concerning the
Company may be inspected at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents have been filed with the Commission and are
incorporated by reference into this Prospectus:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
(b) The Company's quarterly report on Form 10-Q for the fiscal quarter
ended March 31, 1997.
(c) The Company's Current Report on Form 8-K dated February 10, 1997.
(d) The Company's Current Report on Form 8-K dated June 27, 1997.
(e) The description of the Class A Stock contained in the Company's Proxy
Statement for its Special Meeting of Stockholders held on September 27, 1994
which was filed with the Commission on August 22, 1994.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the termination of the offering of the Class A Stock and Rights offered
hereby shall be deemed to be incorporated by reference in this Prospectus and to
be a part hereof from the date of filing of such documents.
Any statement contained herein or in any document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus and the Registration Statement of which it is a
part to the extent that a statement contained herein or therein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus or such Registration Statement.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents referred to
above which have been or may be incorporated in the Prospectus by reference,
other than exhibits to such documents unless the exhibits themselves are
specifically incorporated by reference. Requests for such copies should be
directed to Alpharma Inc., One Executive Drive, Fort Lee, New Jersey 07024,
Attention: Vice President, Investor Relations (telephone number: (201) 947-
7774).
THE COMPANY
The Company is a multinational pharmaceutical company which develops,
manufactures and markets specialty generic and proprietary human pharmaceuticals
and animal health products. The Company has two principal business segments:
human pharmaceuticals and animal health.
The human pharmaceuticals business segment is comprised of three operating
divisions. The U.S. Pharmaceuticals Division (the "USPD") develops,
manufactures and markets specialty generic human pharmaceuticals in the United
States. The International Pharmaceuticals Division ("IPD") develops,
manufactures and markets a broad range of generic and specialty dosage-form
human pharmaceuticals, oral health care products, adhesive bandages and surgical
tapes under proprietary brands primarily in the Nordic and other Western
European countries and Indonesia. The Fine Chemicals Division ("FCD") develops,
manufactures and markets bulk pharmaceutical antibiotics to the pharmaceutical
industry worldwide.
The animal health business segment consists of two operating divisions.
The Animal Health Division ("AHD") develops, manufactures and markets feed
additives and animal health products for animals raised for commercial food
production worldwide. The Aquatic Animal Health Division develops, manufactures
and markets vaccines primarily for use in immunizing farmed fish against
disease.
The Company maintains dual corporate headquarters through Alpharma Inc. in
the United States and through its Alpharma AS subsidiary in Norway. Its
principal executive offices in the United States are located at One Executive
6
<PAGE>
Drive, Fort Lee, New Jersey 07024 (telephone number: (201) 947-7774) and its
principal executive offices in Norway are located at Harbitzaleen 3, N-0212
Oslo, Norway (telephone number: (+47) 22 52 90 00).
RISK FACTORS
Prospective investors should consider carefully the following matters, in
addition to the other information concerning the Company and its business
contained in this Prospectus or incorporated herein by reference, before
purchasing the securities offered hereby.
UNCERTAIN MARKET FOR THE RIGHTS
The Rights will not be listed for trading on any securities exchange, and
thus there is no assurance that a market for the Rights will develop or as to
the price at which the Rights will trade if a market develops. In addition, any
over-the-counter market that may develop may be volatile and unreliable.
PREMIUM SUBSCRIPTION PRICE FOR EXERCISE OF RIGHTS; MARKET CONDITIONS
The Subscription Price of the Rights was determined in January, 1997 by the
Board of Directors of the Company, taking into account the purchase price per
share of Class B Stock pursuant to an agreement under which 1,273,438 shares of
the Company's Class B Common Stock were sold to the Company's controlling
stockholders. (See "RECENT DEVELOPMENTS -- Class B Stock Purchase"). At the
time the Subscription Price was approved by the Board of Directors, the
Subscription Price was equal to approximately 125% of the then current market
price of the Class A Stock. Although on the date of this Prospectus, the
Subscription Price may be less than the market price, the Subscription Price may
be less than or greater than the market price at any time prior to the
Expiration Date (such period commencing on the date of this Prospectus and
ending on the Expiration Date, the "Subscription Period). The following table
shows the high and low trading price for the Class A Stock for the six months
immediately preceding the date of this Prospectus:
Market Price NYSE High Low
----------------- ---- ---
January 1997 $15.125 $11.375
February 1997 $14.625 $12.500
March 1997 $14.625 $13.125
April 1997 $14.750 $13.500
May 1997 $17.250 $14.625
June 1997 $18.125 $15.875
Following the Expiration Date, a subscribing Right Holder may or may not be
able to sell shares of Class A Stock purchased in the Rights Offering at a price
equal to or greater than the Subscription Price. When made, the election of a
Right Holder to exercise Rights in the Rights Offering is irrevocable.
Moreover, until certificates are delivered, subscribing Right Holders may not be
able to sell the Class A Stock that they have purchased in the Rights Offering.
Certificates representing shares of Class A Stock purchased pursuant to the
Rights Offering will be delivered to subscribers as soon as practicable after
the date of purchase thereof. No interest will be paid to Right Holders on
funds delivered to the Subscription Agent (as hereinafter defined) pursuant to
the exercise of Rights pending delivery of Right Shares to such holders.
IMPACT OF RIGHTS OFFERING ON HOLDERS OF COMMON STOCK; DILUTION
It is anticipated that the Right Holders will exercise their Rights only if
and when the Subscription Price is below the prevailing market price. Right
Holders who exercise their Rights will preserve their proportionate interest in
their equity ownership and voting power of the Company on a fully-diluted basis.
Right Holders who sell all or a portion of their Rights or do not exercise their
Rights may experience a decrease in their proportionate interest in the equity
ownership and voting power of the Company. A sale of Rights may not compensate
a holder for all or any part of the reduction in the market value of such
stockholder's shares of Class A Stock, if any, resulting from the Rights
Offering. Stockholders who do not exercise or sell their Rights will relinquish
any value inherent in the Rights.
7
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COMPETITION AND INDUSTRY FACTORS
The human pharmaceutical and animal health product businesses are highly
competitive and many of the Company's competitors are substantially larger and
have greater financial, technical and marketing resources than the Company. In
addition, all of the Company's principal businesses are subject to substantial
governmental regulation involving approval of products and manufacturing
processes and other matters, and the Company has incurred significant costs in
recent years to comply with applicable regulations. Certain of the Company's
competitors presently have products similar to the Company's on the market and
new products under development. There can be no assurance that the Company will
be able to compete effectively with respect to the development, manufacture,
marketing or sale of its products. As more competitors obtain the necessary
approvals to manufacture and sell similar and/or new products from government
agencies, the profit margins on such products may be reduced. In addition,
especially with regard to the business conducted by the USPD, innovator
companies often try to prevent or discourage the use of generic pharmaceuticals
through marketing and regulatory activities and litigation and some innovators
also introduce generic versions of their own branded products prior to
expiration of the patents for such drugs, which may result in a greater market
share for those companies following patent expiration. Parallel imports (i.e.,
imports of identical products from lower priced markets under the European Union
free trade clause) may also adversely affect IPD in Europe by lowering volume
growth and creating downward pressure on prices in some product and market
areas. There is a general trend of consolidation within the customer base for
pharmaceutical and animal health products. At present, none of the Company's
businesses is dependent upon any one customer. However, if consolidation
continues, the Company could become dependent on individual customers as certain
customers increase their size and market share. In 1996, the U.S. generic
pharmaceutical industry experienced a fundamental shift in distribution,
purchasing and stocking patterns which resulted in accelerated price erosion and
significant volume swings as inventories were adjusted. Programs initiated by
U.S. national wholesalers fueled the trend of lower prices as they reduced the
market share of private label pharmaceutical distributors. In addition, there
is continued pressure on the healthcare industry to reduce costs, which may
adversely affect the Company's profit margin. These industry trends had a
material adverse impact on the Company's earnings in 1996.
BACKGROUND OF THE OFFERING
As a result of discussions concerning a possible equity investment in
the Company by A.L. Industrier AS ("Industrier") in late 1996 and early 1997,
the Company entered into an agreement dated February 10, 1997 (as amended on
June 27, 1997) under which Industrier agreed to purchase 1,273,438 newly issued
shares of Class B Common Stock par value $.20 per share ("Class B Stock") from
the Company at the purchase price of $16.34 per share or $20,807,977 in the
aggregate (the "Class B Stock Purchase"). Industrier was the controlling
shareholder of the Company prior to and following the Class B Stock Purchase and
owns all of the outstanding 9,500,000 shares of Class B Stock. The Class B
Stock Purchase was approved by the Board of Directors after review and
recommendation of the transaction by the Audit Committee. In connection with
the review and the approval of the Class B Stock Purchase, the Audit Committee
recommended and the Board of Directors approved the distribution to the Class A
stockholders of certain special Rights to purchase shares of Class A stock at
$16.34 per share which is being made through the Rights Offering as set forth in
this Registration Statement. The Class B Stock Purchase was originally
scheduled to close on the same date the Rights expired but, at the request of
the Company, closed on June 27, 1997 (with the Company agreeing to make a
payment to Industrier to compensate for the cost to Industrier of the earlier
purchase of the Class B Stock).
USE OF PROCEEDS
As the Rights are exercised, the Company will receive the Subscription
Price multiplied by the number of Right Shares being purchased upon exercise of
such Rights. If all of the Rights are exercised, the Company will receive
proceeds of approximately $37.0 million. Such proceeds will be used for
general corporate purposes, including funding of working capital and repayment
of debt outstanding under the Company's revolving credit facility. The Company
will not receive any of the proceeds upon the sale of the Rights or Right Shares
by the Holders or Class A Stockholders. The proceeds from the Class B Stock
Purchase ($20,807,967) (see "BACKGROUND OF THE OFFERING") was used for the same
purposes as the proceeds of the Rights Offering.
8
<PAGE>
THE RIGHTS OFFERING
THE RIGHTS
The Company is distributing the Rights, at no cost, to the Record
Holders (such distribution, the "Rights Offering"). The Company will distribute
one-sixth of a Right for each share of Class A Stock held of record on the
Record Date. The Rights will be evidenced by transferable Subscription
Certificates.
No fractional Rights will be issued or paid. The number of Rights
distributed to each Record Holder will be rounded up to the nearest whole
number. No Subscription Certificate may be divided in such a way as to permit
the holder to receive a greater number of Rights than the number to which such
Subscription Certificate entitles its holder, except that a depositary, bank,
trust company, and securities broker or dealer holding shares of Class A Stock
on the Record Date for more than one beneficial owner may by delivering a
written request by 5:00 p.m., New York City time, on a date which is ten
business days from the effective date of this Registration Statement,
upon proper showing to the Subscription Agent (as hereinafter defined), exchange
its Subscription Certificate to obtain a Subscription Certificate for the number
of Rights to which all such beneficial owners in the aggregate would have been
entitled had each been a Record Holder. The Company reserves the right to refuse
to issue any such Subscription Certificate if such issuance would be
inconsistent with the principle that each beneficial owner's holdings will be
rounded up to the nearest whole Right.
EXPIRATION DATE OF THE SUBSCRIPTION PERIOD
The Rights will expire at 5:00 p.m., New York City time, on the
Expiration Date. After the Expiration Date, unexercised Rights will be null and
void. The Company will not be obligated to honor any purported exercise of
Rights received by the Subscription Agent after the Expiration Date, regardless
of when the documents relating to such exercise were sent, except pursuant to
the Guaranteed Delivery Procedures described below.
SUBSCRIPTION PRIVILEGE
Each Right will entitle the holder thereof to receive, upon payment of
the Subscription Price, one share of Class A Stock. Certificates representing
shares of Class A Stock purchased upon payment of the Subscription Price (the
"Subscription Privilege") will be delivered to subscribers as soon as
practicable after such purchase.
EXERCISE OF RIGHTS
Rights may be exercised by delivering to the Subscription Agent, on or
prior to 5:00 p.m., New York City time, on the Expiration Date, the properly
completed and executed Subscription Certificate evidencing such Rights with any
required signatures guaranteed, together with payment in full of the
Subscription Price for each Right Share subscribed for pursuant to the
Subscription Privilege. Such payment in full must be made by check or bank
draft drawn upon a U.S. bank or postal, telegraphic or express money order
payable to BankBoston, N.A., as Subscription Agent. The Subscription Price will
be deemed to have been received by the Subscription Agent only upon (i)
clearance of any uncertified check, or (ii) receipt by the Subscription Agent of
any certified check or bank draft drawn upon a U.S. bank or any postal,
telegraphic or express money order. If paying by uncertified personal check,
please note that the funds paid thereby may take at least five business days to
clear. Accordingly, holders of Rights who wish to pay the Subscription Price by
means of uncertified personal check are urged to make payment sufficiently in
advance of the Expiration Date to ensure that such payment is received and
clears by such date and are urged to consider payment by means of certified or
cashier's check or money order.
If a Right Holder wishes to exercise Rights, but time will not permit
such holder to cause the Subscription Certificate or Subscription Certificates
evidencing such Rights to reach the Subscription Agent on or prior to the
Expiration Date, such Rights may nevertheless be exercised if all of the
following conditions (the "Guaranteed Delivery Procedures") are met:
(i) such holder has caused payment in full of the Subscription Price for
each Right Share being subscribed for pursuant to the Subscription Privilege
to be received (in the manner set forth above) by the Subscription Agent on or
prior to the Expiration Date;
(ii) the Subscription Agent receives, on or prior to the Expiration Date, a
guarantee notice (a "Notice of Guaranteed Delivery"), substantially in the
form provided with the Instruction as to Use of Alpharma Inc. Subscription
Certificates (the "Instructions") distributed with the Subscription
Certificates, from a member firm of a registered national securities exchange
or a member of the National Association of Securities Dealers, Inc. (the
"NASD"), or from a commercial bank or trust company having an office or
correspondent in the United States (each,
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<PAGE>
an "Eligible Institution"), stating the name of the exercising Right Holder,
the number of Rights represented by the Subscription Certificate or
Subscription Certificates held by such exercising Right Holder, the number of
Right Shares being subscribed for pursuant to the Subscription Privilege, and
guaranteeing the delivery to the Subscription Agent of any Subscription
Certificate evidencing such Rights within three New York Stock Exchange
trading days following the date of the Notice of Guaranteed Delivery; and
(iii) the properly completed Subscription Certificate or Subscription
Certificates evidencing the Rights being exercised, with any required
signatures guaranteed, is received by the Subscription Agent within five New
York Stock Exchange trading days following the date of the Notice of
Guaranteed Delivery relating thereto. The Notice of Guaranteed Delivery may
be delivered to the Subscription Agent in the same manner as Subscription
Certificates at the addresses set forth above, or may be transmitted to the
Subscription Agent by telegram or facsimile transmission (telecopy no. (617)
575-2233). Additional copies of the form of Notice of Guaranteed Delivery are
available upon request from the Information Agent, whose address and telephone
numbers are set forth under "INFORMATION AGENT".
Unless a Subscription Certificate (i) provides that the shares of Class A
Stock to be issued pursuant to the exercise of Rights represented thereby are to
be delivered to the holder of such Rights or (ii) is submitted for the account
of an Eligible Institution, signatures on such Subscription Certificate must be
guaranteed by an Eligible Institution.
Holders who hold shares of Class A Stock for the account of others, such as
brokers, trustees or depositaries for securities, should notify the respective
beneficial owners of such shares as soon as possible to ascertain such
beneficial owners' intentions and to obtain instructions with respect to the
Rights. If the beneficial owner so instructs, the record holder of such Right
should complete Subscription Certificates and submit them to the Subscription
Agent with the proper payment. In addition, beneficial owners of Class A Stock
or Rights held through such a holder should contact the holder and request the
holder to effect transactions in accordance with the beneficial owner's
instructions.
If either the number of Rights being exercised is not specified on a
Subscription Certificate, or the payment delivered is not sufficient to pay the
full aggregate Subscription Price for all shares of Class A Stock stated to be
subscribed for, the Right Holder will be deemed to have exercised the maximum
number of Rights that could be exercised for the amount of the payment delivered
by such Right Holder. Any excess payment remaining after the foregoing
allocation will be returned to the Right Holder as soon as practicable by mail,
without interest or deduction.
The instructions accompanying the Subscription Certificates should be read
carefully and followed in detail. DO NOT SEND SUBSCRIPTION CERTIFICATES TO THE
COMPANY.
THE METHOD OF DELIVERY OF SUBSCRIPTION CERTIFICATES AND PAYMENT OF THE
SUBSCRIPTION PRICE TO THE SUBSCRIPTION AGENT WILL BE AT THE ELECTION AND RISK OF
THE RIGHT HOLDERS, BUT IF SENT BY MAIL IT IS RECOMMENDED THAT SUCH CERTIFICATES
AND PAYMENTS BE SENT BY REGISTERED MAIL, PROPERLY INSURED, WITH RETURN RECEIPT
REQUESTED, AND THAT A SUFFICIENT NUMBER OF DAYS BE ALLOWED TO ENSURE DELIVERY TO
THE SUBSCRIPTION AGENT AND CLEARANCE OF PAYMENT PRIOR TO 5:00 P.M., NEW YORK
CITY TIME, ON THE EXPIRATION DATE. BECAUSE UNCERTIFIED PERSONAL CHECKS MAY TAKE
AT LEAST FIVE BUSINESS DAYS TO CLEAR, YOU ARE STRONGLY URGED TO PAY, OR ARRANGE
FOR PAYMENT, BY MEANS OF CERTIFIED OR CASHIER'S CHECK, MONEY ORDER OR WIRE
TRANSFER OF FUNDS.
All questions concerning the timeliness, validity, form and eligibility of
any exercise of Rights will be determined by the Company, whose determinations
will be final and binding. The Company in its sole discretion may waive any
defect or irregularity, or permit a defect or irregularity to be corrected
within such time as it may determine, or reject the purported exercise of any
Right. Subscriptions will not be deemed to have been received or accepted until
all irregularities have been waived or cured within such time as the Company
determines in its sole discretion. Neither the Company nor the Subscription
Agent will be under any duty to give notification of any defect or irregularity
in connection with the submission of Subscription Certificates or incur any
liability for failure to give such notification.
Any questions or requests for assistance concerning the method of
exercising Rights or requests for additional copies of this Prospectus, the
Instructions or the Notice of Guaranteed Delivery should be directed to the
Company.
NO REVOCATION
ONCE A HOLDER OF RIGHTS HAS EXERCISED THE SUBSCRIPTION PRIVILEGE, SUCH
EXERCISE MAY NOT BE REVOKED.
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METHOD OF TRANSFERRING RIGHTS
Rights may be purchased or sold through usual investment channels,
including banks and brokers commencing on the first day of the Subscription
Period. However, the Rights will not be listed for trading on any securities
exchange and there is no assurance that any market for the Rights will develop.
See "RISK FACTORS -- Uncertain Market for the Rights."
The Rights evidenced by a single Subscription Certificate may be
transferred in whole by endorsing the Subscription Certificate for transfer in
accordance with the accompanying Instructions. A portion of the Rights
evidenced by a single Subscription Certificate (but not fractional Rights) may
be transferred by delivering to the Subscription Agent a Subscription
Certificate properly endorsed for transfer, with instructions to register such
portion of the Rights evidenced thereby in the name of the transferee (and to
issue a new Subscription Certificate to the transferee evidencing such
transferred Rights). In such event, a new Subscription Certificate evidencing
the balance of the Rights will be issued to the Right Holder or, if the Right
Holder so instructs, to an additional transferee.
Holders wishing to transfer all or a portion of their Rights (but not
fractional Rights) should allow a sufficient amount of time prior to the
Expiration Date for (i) the transfer instructions to be received and processed
by the Subscription Agent, (ii) a new Subscription Certificate to be issued and
transmitted to the transferee or transferees with respect to transferred Rights,
and to the transferor with respect to retained Rights, if any, and (iii) the
Rights evidenced by such new Subscription Certificates to be exercised or sold
by the recipients thereof. Neither the Company nor the Subscription Agent shall
have any liability to a transferee or transferor of Rights if Subscription
Certificates are not received in time for exercise or sale prior to the
Expiration Date.
Except for the fees charged by the Subscription Agent (which will be paid
by the Company as described above), all commissions, fees and other expenses
(including brokerage commissions and transfer taxes) incurred in connection with
the purchase, sale or exercise of Rights will be for the account of the
transferor of the Rights, and none of such commissions, fees or expenses will be
paid by the Company or the Subscription Agent.
The Company anticipates that the Rights will be eligible for transfer
through, and that the exercise of the Subscription Privilege may be effected
through, the facilities of the Depository Trust Company.
OFFEREES IN NON-QUALIFIED STATES AND FOREIGN JURISDICTIONS
The Company will make reasonable efforts to comply with the securities laws
of all states in the United States and all foreign jurisdictions in which
persons entitled to subscribe for shares of Class A Stock reside.
Notwithstanding the foregoing, the Company will not be required to make the
Rights Offering available to or to issue shares of Class A Stock to any holder
of Class A Stock who is resident in a state or other jurisdiction in which the
Company deems, in its sole discretion, that the costs associated with the
compliance with applicable securities law are excessive relative to the benefit
conferred or in which offers or sales may be unlawful.
SUBSCRIPTION AGENT
The address and telecopy number to which the Subscription Certificates and
payment of the Subscription Price should be delivered is:
BankBoston, N.A.
150 Royall Street
Mail Stop 45-02-53
Canton, Massachusetts 02021
Attn: Corporate Reorganization
Telecopier: (617) 575-2233
11
<PAGE>
INFORMATION AGENT
The Company has appointed D.F. King as Information Agent for the Rights
Offering. Any questions or requests for additional copies of the Prospectus,
the Instructions or the Notice of Guaranteed Delivery may be directed to the
Information Agent at the following address and telephone number:
D.F. King
77 Water Street
New York, New York 10005
Telephone: (212) 269-5550
DESCRIPTION OF COMMON STOCK
The Company's authorized capital stock currently consists of: (i)
40,000,000 shares of Class A Stock, of which 13,576,114 shares were issued and
outstanding as of June 30, 1997, (ii) 15,000,000 shares of Class B Stock, of
which 9,500,000 shares were issued and outstanding as of June 30, 1997, and
(iii) 500,000 shares of Preferred Stock, par value $1.00 per share, of which
none was outstanding as of June 30, 1997.
The Class A Stock and the Class B Stock are identical in all respects,
including with respect to the right to receive dividends, except as follows:
(i) the holders of the Class A Stock are currently entitled as a class to elect
33 1/3% of the Board of Directors (rounded to the nearest whole number, but not
less than two members of the Company's Board of Directors), and the holders of
the Class B Stock are entitled as a class to elect the remaining directors; (ii)
on all other matters submitted to a vote of stockholders, the holders of the
Class A Stock are entitled to one vote per share of Class A Stock held, and the
holders of the Class B Stock are entitled to four votes per share of Class B
Stock held; (iii) the holders of the Class B Stock have the right at any time
and from time to time to convert each share of Class B Stock into one share of
Class A Stock; and (iv) shares of Class A Stock may be declared and paid as
dividends on shares of both Class A Stock and Class B Stock, shares of Class B
Stock may be declared and paid as dividends on shares of both Class A Stock and
Class B Stock, or shares of Class A Stock may be declared and paid as dividends
on shares of Class A Stock and shares of Class B Stock may be declared and paid
as dividends on shares of Class B Stock and in any such case the same number of
shares must be declared and paid as dividends in respect of each outstanding
share of Class A Stock and each outstanding share of Class B Stock. The special
voting rights of the holders of the Class A Stock as reflected in clause (i)
above terminate if the number of outstanding shares of Class A Stock is less
than 10% of the aggregate number of outstanding shares of Class A Stock and
Class B Stock, and the special voting rights of the holders of the Class B Stock
as reflected in clauses (i) and (ii) above terminate if the number of
outstanding shares of Class B Stock is less than 12 1/2% of such aggregate
number, in each case as determined on the record date for the stockholder vote.
The Company may not subdivide or combine either class of Common Stock
without at the same time combining or subdividing shares of the other class of
Common Stock in the same proportion. Upon liquidation of the Company, holders
of the Class A Stock and the Class B Stock are entitled to share ratably in any
assets available for distribution to stockholders after payment of all
obligations of the Company, and payments due in respect of any other senior
securities of the Company, including any shares of Preferred Stock. Holders of
Common Stock do not have cumulative voting rights or preemptive, subscription
or, except as set forth above with respect to the Class B Stock, conversion
rights.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following discussion is a general summary of the material United States
federal income tax consequences of the rights offering (the "Rights Offering"),
receipt, transfer, exercise and lapse of the Rights to the Company shareholders
that receive the Rights in the Rights Offering. The discussion does not address
all aspects of federal income taxation that may be applicable to Company
shareholders in light of their status or personal investment circumstances, nor
does it address the federal income tax consequences to Company shareholders that
are subject to special federal income tax treatment, including (without
limitation) foreign persons, insurance companies, tax-exempt entities,
retirement plans, dealers in securities, persons who acquired their Common Stock
pursuant to the exercise of employee stock options or otherwise as compensation,
and persons who hold their Class A Stock as part of a "straddle", "hedge" or
"conversion transaction." In addition, the discussion does not address the
effect of any applicable state, local or foreign tax laws, or the effect of any
federal tax laws other than those pertaining to the federal income tax. As a
result each Company shareholder should consult his or her own tax advisor to
determine the specific tax consequences to such shareholder of the receipt,
exercise or lapse of the Rights. The discussion is based upon the Internal
Revenue Code of 1986, as amended (the "Code"), regulations proposed or
promulgated thereunder, judicial precedent relating thereto, and current
administrative rulings and practice, all of which are subject to change. Any
such change, which may be retroactive,
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<PAGE>
could alter the tax consequences discussed herein. The discussion assumes that
shares of Class A Stock are held as capital assets (within the meaning of
Section 1221 of the Code).
FEDERAL INCOME TAX CONSEQUENCES TO COMPANY.
The Company will not recognize gain or loss from the Rights Offering, or
from the exercise or lapse, of the Rights.
FEDERAL INCOME TAX CONSEQUENCES TO SHAREHOLDERS.
Shareholders who receive their Rights in the Rights Offering will have the
following federal income tax consequences:
Receipt of the Rights. A shareholder will not recognize any gain or loss
upon the receipt of Rights in the Rights Offering.
Basis of the Rights. A shareholder's tax basis in Rights received in the
Rights Offering and subsequently allowed to lapse will be zero. Except as
provided in the following sentence, a shareholder's tax basis in Rights received
in the Rights Offering and subsequently exercised also will be zero. If,
however, either (i) the fair market value of the Rights on the date of the
Rights Offering is 15% or more of the fair market value (on the date of the
Rights Offering) of the Class A Stock with respect to which they are received or
(ii) the shareholder properly elects, in accordance with procedures set forth in
Treasury Regulation Section 1.307-2, to allocate part of his or her basis in
such Class A Stock to the Rights (the "Basis Election"), then the shareholder's
basis in such Class A Stock will be allocated between the Class A Stock and the
Rights in proportion to the fair market value of each on the date of Rights
Offering.
The Company, based on current market prices of the Class A stock believes
that it is unlikely that the value of a Right on the proposed date of issuance
will be 15% or more of the fair market value of the Class A Stock with respect
to which such Right is distributed. As a result, shareholders desiring to
allocate a portion of their Class A Stock basis to Rights that will be exercised
may wish to consider making a Basis Election.
Transfer of the Rights. A shareholder who sells the Rights received in the
Rights Offering will recognize gain or loss equal to the difference between the
sale proceeds and such shareholder's basis (if any) in the Rights sold. Such
gain or loss will generally be capital gain or loss, long-or short-term
depending upon whether the shareholder has held the rights for more than one
year.
Exercise of the Rights; basis and holding period of Class A Stock. A
shareholder will not recognize any gain or loss upon the exercise of Rights
received in the Rights Offering. A shareholder's basis in Class A Stock
acquired through exercise of the Rights will be equal to the sum of the
Subscription Price therefor and the shareholder's basis in such Rights (if any).
A shareholder's holding period for the Class A Stock acquired through exercise
of the rights will begin on the date the Rights are exercised.
Lapse of the Rights. A shareholder will not recognize any gain or loss
upon the lapse of Rights received in the Rights Offering. No adjustment in
respect of Rights allowed to lapse will be made to the basis of Class A Stock
owned by such a shareholder.
THE FOREGOING IS A GENERAL DISCUSSION OF THE MATERIAL FEDERAL INCOME TAX
CONSEQUENCES OF THE RIGHTS OFFERING TO CERTAIN COMPANY SHAREHOLDERS AND DOES NOT
TAKE INTO ACCOUNT THE PARTICULAR FACTS AND CIRCUMSTANCES OF EACH COMPANY
SHAREHOLDER'S TAX STATUS AND ATTRIBUTES. AS A RESULT, THE FEDERAL INCOME TAX
CONSEQUENCES ADDRESSED IN THE FOREGOING DISCUSSION MAY NOT APPLY TO EACH COMPANY
SHAREHOLDER. ACCORDINGLY, EACH COMPANY SHAREHOLDER SHOULD CONSULT HIS OR HER
OWN TAX ADVISOR REGARDING THE SPECIFIC TAX CONSEQUENCES OF THE RIGHTS OFFERING,
INCLUDING THE APPLICATION AND EFFECT OF FEDERAL, STATE, LOCAL AND FOREIGN TAX
LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN FEDERAL AND OTHER TAX LAWS.
EFFECT OF THE RIGHTS OFFERING ON WARRANTS OF THE COMPANY
As part of the consideration for the Company's acquisition of the
pharmaceutical, animal health, aquatic animal health and bulk antibiotics
businesses of A.L. Industrier on October 3, 1994, the Company issued warrants
(the "Warrants") to purchase 3,600,000 shares of Class A Stock to the
shareholders of Industrier, pursuant to a Norwegian tender offer. The Warrants
generally became exercisable on September 21, 1995 and expire on January 3,
1999, except
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that the Warrants issued to or held by Einar W. Sissener, Director and Chief
Executive Officer of the Company and certain closely held corporations and
trusts controlled by Mr. Sissener are not exercisable until October 3, 1997.
The Warrants are listed for trading on the New York Stock Exchange.
The exercise price of the Warrants is $21.945 per share of Class A Stock,
subject to certain anti-dilution adjustments purchasable thereunder. Upon
issuance of the Rights and depending on the value of the Rights and the market
price of the Class A Stock, the exercise price of the Warrants may be reduced
and the amount of shares of Class A Stock issuable upon exercise of each Warrant
may be increased pursuant to the terms of the Warrant Agreement dated October 3,
1994 between the Company and BankBoston, N.A., as warrant agent.
LEGAL MATTERS
The validity of the issuance of the Rights and Right Shares will be passed
upon for the Company by Kirkland & Ellis. Mr. Glen E. Hess has been a director
of the Company since 1983. Mr. Glen E. Hess's professional corporation is a
partner of Kirkland & Ellis, a law firm which since 1978 has performed
significant legal services for the Company.
EXPERTS
The consolidated financial statements of the Company as of December
31, 1996 and 1995, and for each of the three years in the period ended December
31, 1996, included in the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996 incorporated by reference herein and elsewhere in
the Registration Statement, have been incorporated by reference in reliance on
the report of Coopers & Lybrand L.L.P., independent accountants, upon the
authority of said firm as experts in accounting and auditing.
14
<PAGE>
PART II -- INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses, other than underwriting
discounts and commissions, paid or payable in connection with the issuance and
distribution of the securities being registered. All the amounts shown are
estimates except for the Commission registration fee. All of the following
expenses will be paid by the Company.
Commission registration fee................................ $11,204
Accounting fees and expenses............................... $ 10,000
Legal fees and expenses....................................
Miscellaneous..............................................
----------
Total $
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the General Corporation Law of the State of Delaware ("GCL")
allows a corporation to eliminate the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except in cases where the director breached his duty of
loyalty, failed to act in good faith, engaged in intentional misconduct or a
knowing violation of law, authorized the unlawful payment of a dividend or
approved an unlawful stock redemption or repurchase or obtained an improper
personal benefit. The Company's Amended and Restated Certificate of
Incorporation ("Amended Certificate of Incorporation") contains a provision
which eliminates directors' personal liability as set forth above.
The Amended Certificate of Incorporation and the Company's Amended and
Restated Bylaws provide that the Company shall indemnify its directors and
officers to the fullest extent permitted by Section 145 of the GCL; provided,
--------
however, that, except with respect to proceedings to enforce rights to
- -------
indemnification, the Company shall indemnify any such indemnitee in connection
with a proceeding (or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the Company's Board of Directors.
Section 145 of the GCL provides that a Delaware corporation has the power to
indemnify its officers and directors in certain circumstances.
Subsection (a) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director or officer acted in good faith in
a manner reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding,
provided that such director or officer had no cause to believe his or her
conduct was unlawful.
Subsection (b) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that such person acted in any of the capacities
set forth above, against expenses (including attorneys' fees) actually and
reasonably incurred in connection with the defense or settlement of such action
or suit provided that such director or officer acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which such director or officer shall have been adjudged to
be liable for negligence or misconduct in the performance of his or her duty to
the corporation unless and only to the extent that the Court of Chancery or the
court in which such action was brought shall determine that despite the
adjudication of liability such director or officer is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
Section 145 of the GCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith.
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Section 145 of the GCL further provides that indemnification provided
therein shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; and empowers the corporation to purchase and
maintain insurance on behalf of a director or officer of the corporation against
any liability asserted against him or her or incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
Pursuant to the Amended Certificate of Incorporation, if a claim for
indemnification (including the advancement of expenses) is not paid in full by
the Company within forty-five days after a written claim has been received by
the Company, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Company to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee also shall be entitled to be paid the
expense of prosecuting or defending such suit.
The Company maintains insurance policies for general officers' and
directors' liability insurance and fiduciary liability insurance covering all of
the Company's directors and officers in certain instances where by law they may
not be indemnified by the Company.
II-2
<PAGE>
ITEM 16. EXHIBITS.
The following is a list of exhibits to this Registration Statement.
<TABLE>
<CAPTION>
Exhibit No. Description of Document
- ----------- -----------------------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of A.L. Pharma
Inc., (as the Company was formerly known) dated September 30, 1994
and filed with the Secretary of State of Delaware on October 3,
1994 (Incorporated by reference to Exhibit 3.1 to the Company's
Annual Report on Form 10-K (File No. 1-8593) for the fiscal year
ended December 31, 1994).
4.2 Certificate of Amendment of the Certificate of Incorporation of
A.L. Pharma Inc. (as the Company was formerly known) dated
September 15, 1995 and filed with the Secretary of State of
Delaware on September 15, 1995. (Incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement on Form S-3
(File No. 33-60029) filed on September 21, 1995.)
4.3 Amended and Restated Bylaws of A.L. Pharma Inc., (as the Company
was formerly known) effective as of October 3, 1994 (Incorporated
by reference to Exhibit 3.2 to the Company's Annual Report on Form
10-K (File No. 1-8593) for the fiscal year ended December 31,
1994).
4.4 Form of Rights Agreement between Alpharma Inc. and BankBoston,
N.A. Subscription Agent, dated as of (including Form of Right
Certificate).
5 Opinion and consent of Kirkland & Ellis.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Kirkland & Ellis (included in Exhibit 5).
24 Power of Attorney (included on the signature pages to this
Registration Statement).
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
II-3
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(b) That, for purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Amendment to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fort Lee, New Jersey on July 17, 1997.
ALPHARMA INC.
By: /s/ Jeffrey E. Smith
--------------------------------------------------
Name: Jeffrey E. Smith
Title: Vice President, Finance and Chief
Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature to
this Registration Statement appears below hereby appoints Jeffrey E. Smith and
Beth P. Hecht, and each of them, any one of whom may act without the joinder of
the others, as his or her attorney-in-fact with full power of substitution and
resubstitution to sign on his or her behalf individually and in the capacity
stated below, and to sign and file all amendments and post-effective amendments
to this Registration Statement and any and all other documents that may be
required in connection with the filing of this Registration Statement, which
amendments may make such changes and additions to this Registration Statement
as such attorney-in-fact may deem necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C>
Date: July 17, 1997 /s/ Einar W. Sissener
----------------------------------------
Name: Einar W. Sissener
Title: Chairman, Director and Chief Executive
Officer (Principal Executive Officer)
Date: July 17, 1997 /s/ Jeffrey E. Smith
----------------------------------------
Name: Jeffrey E. Smith
Title: Vice President, Finance and Chief Financial
Officer (Principal Financial Officer and
Principal Accounting Officer)
Date: July 17, 1997 /s/ I. Roy Cohen
----------------------------------------
Name: I. Roy Cohen
Title: Director
Date: July 17, 1997 /s/ Thomas G. Gibian
----------------------------------------
Name: Thomas G. Gibian
Title: Director
Date: July 17, 1997 /s/ Glen E. Hess
----------------------------------------
Name: Glen E. Hess
Title: Director
Date: July 17, 1997 /s/ Gert W. Munthe
----------------------------------------
Name: Gert W. Munthe
Title: Director
Date: July 17, 1997 /s/ Erik G. Tandberg
----------------------------------------
Name: Erik G. Tandberg
Title: Director
Date: July 17, 1997 /s/ Peter G. Tombros
----------------------------------------
Name: Peter G. Tombros
Title: Director
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. INDEX OF EXHIBITS
- ----------- -----------------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of A.L. Pharma Inc., (as the
Company was formerly known) dated September 30, 1994 and filed with the
Secretary of State of Delaware on October 3, 1994 (Incorporated by reference to
Exhibit 3.1 to the Company's Annual Report on Form 10-K (File No. 1-8593) for
the fiscal year ended December 31, 1994).
4.2 Certificate of Amendment of the Certificate of Incorporation of A.L. Pharma
Inc. (as the Company was formerly known) dated September 15, 1995 and filed with
the Secretary of State of Delaware on September 15, 1995. (Incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on Form S-3
(File No. 33-60029) filed on September 21, 1995.)
4.3 Amended and Restated Bylaws of A.L. Pharma Inc., (as the Company was
formerly known) effective as of October 3, 1994 (Incorporated by reference to
Exhibit 3.2 to the Company's Annual Report on Form 10-K (File No. 1-8593) for
the fiscal year ended December 31, 1994).
4.4 Form of Rights Agreement between Alpharma Inc. and BankBoston, N.A. as Subscription
Agent, dated as of _____________________________ (including Form of Right Certificate).
5 Opinion and consent of Kirkland & Ellis.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Kirkland & Ellis (included in Exhibit 5).
24 Power of Attorney (included on the signature pages to this Registration
Statement).
</TABLE>
<PAGE>
EXHIBIT 4.4
-----------
Rights Agreement
between
Alpharma Inc.
and
BankBoston, N.A.,
Subscription Agent
Rights to Purchase Class A Common Stock
____ __, 1997
<PAGE>
EXHIBIT 4.4
-----------
This RIGHT AGREEMENT (the "Agreement") is dated as of ____ __, 1997, between
Alpharma Inc., a Delaware corporation (the "Company"), and BankBoston, a
national banking association, as subscription agent (the "Subscription Agent").
WHEREAS, the Company proposes to issue Rights (the "Rights") entitling the
holders thereof to purchase (a) an aggregate of up to TWO MILLION, TWO HUNDRED
SIXTY-TWO THOUSAND, SIX HUNDRED EIGHTY-SIX (2,262,686) shares of the Company's
Class A Common Stock, $.20 par value (the "Class A Common Stock") plus (b)
additional shares which the holders thereof are entitled to purchase due to the
rounding of the number of Rights up to the nearest whole number (the "Rounding
Shares"). The Whole Shares and Rounding Shares are referred to collectively as
the "Shares"; and
WHEREAS, the Subscription 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 the Rights;
NOW, THEREFORE, in consideration of the premises and mutual agreements herein
set forth, the parties hereto agree as follows:
Section 1. Appointment of Subscription Agent. The Company hereby appoints
the Subscription Agent to act as agent for the Company in accordance with the
instructions hereinafter set forth; and the Subscription Agent hereby accepts
such appointment, upon the terms and conditions hereinafter set forth.
Section 2. Amount Issued. (a) Subject to the provisions of this Agreement,
Rights to purchase TWO MILLION, TWO HUNDRED SIXTY-TWO THOUSAND, SIX HUNDRED
EIGHTY-SIX (2,262,686) Whole Shares and the Rounding Shares may be issued and
delivered by the Company hereunder. The Company shall deliver to holders of
Class A Common Stock as of July 25, 1997 (the "Record Date") (the "Record
Holders") one-sixth of a Right for each share of Class A Common Stock held of
record on the Record Date. No fractional rights or cash in lieu thereof will be
issued or paid. The number of Rights distributed to each Record Holder will be
rounded up to the nearest whole number. Each Right shall entitle the holder
thereof to purchase one share of Class A Common Stock at a price of $16.34 per
share upon exercise of the Right as herein provided.
Section 3. Form of Subscription Certificates. (a) The Rights shall be
evidenced by certificates (the "Subscription Certificates") to be delivered
pursuant to this Agreement in registered form only. The Subscription
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 holder of a Right
(a "Rightholder"), or as may, consistently herewith, be determined by the
officers executing such Subscription Certificates, as evidenced by their
execution of such Subscription Certificates.
(b) No Subscription Certificate may be divided in such a way as to
permit the holder to receive a greater number of Rights than the number to which
such Subscription Certificate entitles its holder, except that a depositary,
bank, trust company, and securities broker or dealer holding shares of Class A
Common Stock on the Record Date for more than one beneficial owner may by
delivering a written request
-1-
<PAGE>
EXHIBIT 4.4
-----------
by 5:00 p.m., New York City time, on a date which is ten business days from the
effective date of the Registration Statement, as hereinafter defined and, upon
proper showing to the Subscription Agent, exchange its Subscription Certificate
to obtain a Subscription Certificate for the number of Rights to which all such
beneficial owners in the aggregate would have been entitled had each been a
Record Holder. The Company reserves the right to refuse to issue any such
Subscription Certificate if such issuance would be inconsistent with the
principle that each beneficial owner's holdings will be rounded up to the
nearest whole Right.
Section 4. Execution of Subscription Certificates. Subscription
Certificates shall be signed on behalf of the Company by its Chairman,
President, a Vice President or its Treasurer and attested by its Secretary or
Assistant Secretary, under its corporate seal. Each such signature upon the
Subscription Certificates may be in the form of a facsimile signature of the
current or any future Chairman, President, Vice President, Treasurer, Secretary
or Assistant Secretary and may be imprinted or otherwise reproduced on the
Subscription Certificates and for that purpose the Company may adopt and use the
facsimile signature of any person who shall have been Chairman, President, Vice
President, Treasurer, Secretary or Assistant Secretary, notwithstanding the fact
that at the time the Subscription 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 Subscription
Certificates.
If any officer of the Company who shall have signed any of the Subscription
Certificates shall cease to be such officer before the Subscription Certificates
so signed shall have been countersigned by the Subscription Agent or disposed of
by the Company, such Subscription 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 Subscription Certificate may be signed on behalf
of the Company by any person who, at the actual date of the execution of such
Subscription Certificate, shall be a proper officer of the Company to sign such
Subscription Certificate, although at the date of the execution of this
Agreement any such person was not such officer.
Section 5. Registration and Countersignature. Subscription Certificates
shall be manually countersigned and dated the date of countersignature by the
Subscription Agent and shall not be valid for any purpose unless so
countersigned. The Subscription Certificates shall be numbered and shall be
registered in a register (the "Rights Register") to be maintained by the
Subscription Agent.
The Subscription Agent's countersignature on all Subscription Certificates
shall be in substantially the form set forth in Exhibit A hereto.
---------
The Company and the Subscription Agent may deem and treat the registered
holder of a Subscription 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
Subscription Agent shall be affected by any notice to the contrary.
Section 6. Registration of Transfers and Exchanges. Until the Close of
Business on the Expiration Date (as hereinafter defined), the Subscription Agent
shall from time to time register the transfer of any outstanding Subscription
Certificates in the Rights Register, upon surrender of such Subscription
Certificates, duly endorsed, and, if not surrendered by or on behalf of an
original holder of Subscription Certificates or a transferee thereof,
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Subscription Agent, duly signed by the registered holder or
holders thereof or by the duly appointed legal
-2-
<PAGE>
EXHIBIT 4.4
-----------
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
Subscription Certificate shall be issued to the transferee.
Subscription Certificates may be exchanged at the option of the holder or
holders thereof, when surrendered to the Subscription 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 Rights (a "Subscription Agent Office,") or at the offices of any
successor Subscription Agent as provided in Section 18 hereof, for another
Subscription Certificate or other Subscription Certificates of like tenor and
representing in the aggregate a like number of Rights.
The Subscription Agent is hereby authorized to countersign, in accordance
with the provisions of Section 5 and of this Section 6, and deliver the new
Subscription Certificates required pursuant to the provisions of this Section,
and for the purpose of any distribution of Subscription 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 Rights; Subscription Price. (a) The
Rights shall expire at (i) 5:00 p.m. New York City time (the "Close of
Business") on November 25, 1997 or (ii) 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 Subscription Agent and with notice to registered Rightholders
in the manner provided for in Section 15 (such date of expiration being
hereinafter referred to as the "Expiration Date"). At such time as the Rights
become exercisable, and thereafter until the Close of Business on the Expiration
Date, the Rights may be exercised on any business day. After the Close of
Business on the Expiration Date, the Rights will become void and of no value.
(b) (i) Subject to the provisions of this Agreement, including Section 13,
each Right shall entitle the holder thereof to purchase from the Company (and
the Company shall issue and sell to such holder of a Right) one fully paid and
nonassessable Share at the price of $16.34 (U.S.) (such price being the
"Subscription Price"). The holder of a Right shall exercise such holder's right
to purchase Shares by depositing with the Subscription Agent at a Subscription
Agent Office, the Subscription Certificate evidencing such Right, 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 Rights) to be guaranteed in the
manner described in Section 6 hereof, and paying to the Subscription Agent in
lawful money of the United States of America by certified check or official bank
check an amount equal to the Subscription Price multiplied by the number of
Shares in respect of which such Rights are being exercised.
(ii) If a Right Holder wishes to exercise Rights, but time will not
permit such holder to cause the Subscription Certificate or Subscription
Certificates evidencing such Rights to reach the Subscription Agent on or prior
to the Expiration Date, such Rights may nevertheless be exercised if all of the
following conditions (the "Guaranteed Delivery Procedures") are met:
-3-
<PAGE>
EXHIBIT 4.4
-----------
(A) such holder has caused payment in full of the Subscription Price
for each Share being subscribed to be received (in the manner set forth in
(i) above) by the Subscription Agent on or prior to the Expiration Date;
(B) the Subscription Agent receives, on or prior to the Expiration
Date, a guarantee notice (a "Notice of Guaranteed Delivery"), substantially
in the form provided with the Instruction as to Use of Alpharma Inc.
Subscription Certificates (the "Instructions") distributed with the
Subscription Certificates, from a member firm of a registered national
securities exchange or a member of the National Association of Securities
Dealers, Inc. (the "NASD"), or from a commercial bank or trust company
having an office or correspondent in the United States (each, an "Eligible
Institution"), stating the name of the exercising Right Holder, the number
of Rights represented by the Subscription Certificate or Subscription
Certificates held by such exercising Right Holder, the number of Shares
being subscribed for and guaranteeing the delivery to the Subscription
Agent of any Subscription Certificate evidencing such Rights within five
New York Stock Exchange trading days following the date of the Notice of
Guaranteed Delivery; and
(C) the properly completed Subscription Certificate or Subscription
Certificates evidencing the Rights being exercised, with any required
signatures guaranteed, is received by the Subscription Agent within five
New York Stock Exchange trading days following the date of the Notice of
Guaranteed Delivery relating thereto. The Notice of Guaranteed Delivery
may be delivered to the Subscription Agent in the manner set forth in
Section 20 hereof.
Unless a Subscription Certificate (i) provides that the shares of Class A
Common Stock to be issued pursuant to the exercise of Rights represented thereby
are to be delivered to the holder of such Rights or (ii) is submitted for the
account of an Eligible Institution, signatures on such Subscription Certificate
must be guaranteed by an Eligible Institution.
(c) Subject to Section 9, upon such surrender of a Subscription Certificate
and payment of the Subscription Price, the Subscription 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 such Subscription 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 Right or Rights evidenced by such Subscription
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 Subscription Certificate duly executed and payment of the
aggregate Subscription Price. The Subscription Price will be deemed to have
been received by the Subscription Agent only upon (i) clearance of any
uncertified check, or (ii) receipt by the Subscription Agent of any certified
check or bank draft drawn upon a U.S. bank or any postal, telegraphic or express
money order. The Rights evidenced by a Subscription 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 Rights specified in
the Subscription Certificate. If less than all of the Rights evidenced by a
Subscription Certificate surrendered upon the exercise of Rights are exercised
at any time prior to the Expiration Date, a new Subscription Certificate or
Certificates shall be issued for the number of Rights evidenced by the
Subscription Certificate so surrendered that have not been exercised, and the
Subscription Agent is hereby authorized to countersign such new Subscription
Certificate or Certificates pursuant to the provisions of Section 6 and this
Section 7.
-4-
<PAGE>
EXHIBIT 4.4
-----------
(d) The Subscription Agent shall account promptly to the Company with
respect to Rights 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 Rights.
(e) If either the number of Rights being exercised is not specified on a
Subscription Certificate, or the payment delivered is not sufficient to pay the
full aggregate Subscription Price for all shares of Class A Common Stock stated
to be subscribed for, the Right Holder will be deemed to have exercised the
maximum number of Rights that could be exercised for the amount of the payment
delivered by such Right Holder. If the payment delivered by the Right Holder
exceeds the aggregate Subscription Price for the number of Rights evidenced by
the Subscription Certificate(s) delivered by such Right Holder, the payment will
be applied, until depleted, to subscribe for shares of Class A Common Stock.
Any excess payment remaining after the foregoing allocation will be returned to
the Right Holder as soon as practicable by mail, without interest or deduction.
Section 8. Cancellation of Rights. If the Company shall purchase or
otherwise acquire Rights, the Subscription Certificates representing such Rights
shall thereupon be delivered to the Subscription Agent and be cancelled by it
and retired. The Subscription Agent shall cancel all Subscription Certificates
surrendered for exchange, substitution, transfer or exercise in whole or in
part. Subscription Certificates so cancelled shall be delivered by the
Subscription 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 Rights and of Shares upon the
exercise of Rights; 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 Subscription Certificates or any certificates for Shares in a name
other than the registered holder of a Subscription Certificate surrendered upon
the exercise of a Right, 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 Subscription Certificates. If any of the
Subscription Certificates shall be mutilated, lost, stolen or destroyed, the
Company may in its discretion issue, and the Subscription Agent shall
countersign and deliver, in exchange and substitution for and upon cancellation
of the mutilated Subscription Certificate, or in lieu of and substitution for
the Subscription Certificate lost, stolen or destroyed, a new Subscription
Certificate of like tenor and representing an equivalent number of Rights, but
only upon receipt of evidence satisfactory to the Company and the Subscription
Agent of such loss, theft or destruction of such Subscription Certificate and
indemnity or bond, if requested, also satisfactory to them. Applicants for such
substitute Subscription Certificates shall also comply with such other
reasonable regulations and pay such other reasonable charges as the Company or
the Subscription Agent may prescribe.
Section 11. Reservation of Shares. For the purpose of enabling it to
satisfy any obligation to issue Shares upon exercise of Rights, 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 upon the exercise of all outstanding Rights, 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 Rights
pursuant to Section 12. The Subscription Agent is hereby irrevocably authorized
to requisition from
-5-
<PAGE>
EXHIBIT 4.4
-----------
time to time from such Transfer Agent stock certificates issuable upon exercise
of outstanding Rights, 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(b) reducing the Subscription Price below the then par value (if any) of the
Shares issuable upon exercise of the Rights, 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
Subscription Price as so adjusted.
The Company covenants that all Shares issued upon exercise of the Rights
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 Rights and Shares; Prospectus Delivery. (a)
The Company has filed with the SEC a registration statement, on Form S-3 (the
"Registration Statement") which has been declared effective. The Company will
use it best efforts to keep the Registration Statement continuously effective
from the date hereof through the Close of Business ten (10) business days
following the Expiration Date; provided however, that if the Company has
-------- -------
received a written request from any person who in the judgment of the Company
may be deemed to be an affiliate of the Company, (as that term is defined in
Rule 144 promulgated under the Securities Act) prior to the Expiration Date that
any Shares acquired as the result of the exercise of a Right 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 first
anniversary of the Expiration Date. So long as any unexpired Rights 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 Rights
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 Subscription Certificates, the exercise of
the Rights and the issuance, sale, transfer and delivery of the Shares issued
upon exercise of Rights, and (b) to have the Rights (as of the date hereof) and
the Shares (immediately upon their issuance upon exercise of Rights) listed for
trading or quotation on such over-the-counter quotation system as the Company
deems advisable.
(b) On the date of its effectiveness and on the date of any Right 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 Right
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.
-6-
<PAGE>
EXHIBIT 4.4
-----------
Section 13. Adjustment of Subscription Price and Number of Shares
Purchasable or Number of Rights. (a) Except as provided in Section 13(b) below,
the Subscription Price and the number of Shares purchasable upon the exercise of
each Right shall not be adjusted during the term of the Rights or upon exercise
of any Right or Rights.
(b) 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 Right immediately prior
thereto shall be adjusted so that the holder of each Right 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 Right been
exercised immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this paragraph (b) 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.
(c) 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 Subscription Agent an agreement, in form and substance substantially
equivalent to this Agreement, that each holder of a Subscription Certificate
shall have the right thereafter, subject to terms and conditions substantially
equivalent to those contained in this Agreement, upon payment of the
Subscription Price in effect immediately prior to such action to purchase upon
exercise of each Right 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
Right been exercised immediately prior to such action. The Company shall mail
by first-class mail, postage prepaid, to each registered holder of a Right,
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
(b) shall similarly apply to successive consolidations, mergers, sales or
conveyances. The Subscription 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 Rights 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
Section 14. Fractional Rights and Fractional Shares. The Company shall
issue one-sixth of a Right for each share of Class A Common Stock held by a
Record Holder on the Record Date. The Company shall not distribute fractional
Rights or Subscription Certificates that evidence fractional Rights. The number
of Rights to be distributed to each Record Holder will be rounded up to the
nearest whole number. Each Right will be exercisable for one share of Class A
Common Stock.
Section 15. Notices to Rightholders. If:
-7-
<PAGE>
EXHIBIT 4.4
-----------
(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 Subscription Agent and shall cause written notice of such event to be
given to each of the registered holders of the Subscription Certificates at such
holder's address appearing on the Rights 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.
Section 16. Merger, Consolidation or Change of Name of Subscription Agent.
Any corporation into which the Subscription 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 Subscription Agent shall be a party, or
any corporation succeeding to the shareholder services business of the
Subscription Agent, shall be the successor to the Subscription 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 Subscription Agent under the provisions of Section
18. If at the time such successor to the Subscription Agent shall succeed under
this Agreement, any of the Subscription Certificates shall have been
countersigned but not delivered, any such successor to the Subscription Agent
may adopt the countersignature of the original Subscription Agent; and if at
that time any of the Subscription Certificates shall not have been
countersigned, any successor to the Subscription Agent may countersign such
Subscription Certificates either in the name of the predecessor Subscription
Agent or in the name of the successor Subscription Agent; in all such cases such
Subscription Certificates shall have the full force provided in the Subscription
Certificates and in this Agreement.
If at any time the name of the Subscription Agent shall be changed and at
such time any of the Subscription Certificates shall have been countersigned but
not delivered, the Subscription Agent whose name has changed may adopt the
countersignature under its prior name; and if at that time any of the
Subscription Certificates shall not have been countersigned, the Subscription
Agent may countersign such Subscription Certificates either in its prior name or
in its changed name; and in all such cases such Subscription Certificates shall
have the full force provided in the Subscription Certificates and in this
Agreement.
-8-
<PAGE>
EXHIBIT 4.4
-----------
Section 17. Subscription Agent. The Subscription 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 Subscription
Certificates, by their acceptance thereof, shall be bound:
(a) The statements contained herein and in the Subscription Certificates
shall be taken as statements of the Company, and the Subscription Agent assumes
no responsibility for the correctness of any of the same except such as describe
the Subscription Agent or action taken or to be taken by it. Except as herein
otherwise provided, the Subscription Agent assumes no responsibility with
respect to the execution, delivery or distribution of the Subscription
Certificates.
(b) The Subscription 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 Subscription 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 Right to make or
cause to be made any adjustment in the Subscription Price or in the number of
Shares issuable upon exercise of any Subscription (except as instructed by the
Company)
(c) The Subscription Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Subscription
Agent shall incur no liability or responsibility to the Company or any holder of
any Subscription 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 Subscription Agent shall incur no liability or responsibility to
the Company or to any holder of any Subscription Certificate for any action
taken in reliance on any notice, resolution, waiver, consent, 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 Subscription Agent reasonable
compensation for all services rendered by the Subscription Agent under this
Agreement, to reimburse the Subscription Agent upon demand for all expenses,
taxes and governmental charges and other charges of any kind and nature incurred
by the Subscription Agent in the performance of its duties, under this Agreement
and to indemnify the Subscription 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 Subscription
Agent arising out of or in connection with this Agreement except as a result of
its negligence or bad faith.
(f) The Subscription 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 Subscription
Certificates shall furnish the Subscription 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 Rights may be enforced by the
Subscription Agent without the possession of any of the Subscription
Certificates or the production thereof at any trial or other proceeding related
thereto, and any such action, suit or proceeding instituted by the Subscription
Agent shall be brought in its name as Subscription Agent, and any recovery or
judgment shall be for the ratable benefit of the registered holders of the
Rights, as their respective rights or interests may appear.
(g) The Subscription Agent, and any stockholder, director, officer or
employee thereof, may buy, sell or deal in any of the Rights 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 Subscription Agent
under this Agreement, or
-9-
<PAGE>
EXHIBIT 4.4
-----------
a stockholder, director, officer or employee of the Subscription Agent, as the
case may be. Nothing herein shall preclude the Subscription Agent from acting
in any other capacity for the Company or for any other legal entity.
(h) The Subscription Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions hereof.
The Subscription 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 Subscription Agent for the carrying out or performing the provisions of
this Agreement.
(j) The Subscription 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 Subscription Agent) or in respect of the
validity or execution of any Subscription Certificate (except its
countersignature thereof), nor shall the Subscription 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
Subscription Certificate or as to whether the Shares will when issued be validly
issued, fully paid and nonassessable or as to the Subscription Price or the
number of Shares issuable upon exercise of any Right.
(k) The Subscription Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman, 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 Subscription Agent. If the Subscription 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
Subscription Certificates) or shall become incapable of acting as Subscription
Agent or if the Board of Directors of the Company shall by resolution remove the
Subscription Agent (such removal to become effective not earlier than 30 days
after the filing of a certified copy of such resolution with the Subscription
Agent and the giving of written notice of such removal to the registered holders
of Subscription Certificates), the Company shall appoint a successor to the
Subscription 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 Subscription Agent or by the registered
holder of a Subscription Certificate (in the case of incapacity), then the
registered holder of any Subscription Certificate may apply to any court of
competent jurisdiction for the appointment of a successor to the Subscription
Agent. Pending appointment of a successor to the Subscription Agent, either by
the Company or by such a court, the duties of the Subscription Agent shall be
carried out by the Company. Any successor Subscription 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 Subscription
Agent, the Company shall cause written notice of the change in the Subscription
Agent to be given to each of the registered holders of the Subscription
Certificates at such holder's address appearing on the Rights Register. After
appointment, the successor Subscription Agent shall
-10-
<PAGE>
EXHIBIT 4.4
-----------
be vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Subscription Agent without further act or deed. The
former Subscription Agent shall deliver and transfer to the successor
Subscription 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 Subscription Agent or the appointment of a successor
Subscription Agent, as the case may be.
Section 19. Rightholder Not Deemed a Stockholder. Nothing contained in
this Agreement or in any of the Subscription 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; provided,
however, that Section 19 shall be construed as limiting the rights of any holder
of a Subscription Certificate, which rights were conferred other than pursuant
to this Agreement.
Section 20. Delivery of Prospectus. If the Company is required under
applicable federal or state securities laws to deliver a prospectus upon
exercise of Rights, the Company will furnish to the Subscription Agent
sufficient copies of a prospectus, and the Subscription Agent agrees that upon
the exercise of any Subscription Certificate by the holder thereof, the
Subscription 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.
Section 21. Notices to Company and Subscription Agent. Any notice or
demand authorized by this Agreement to be given or made by the Subscription
Agent or by any registered holder of any Subscription 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 Subscription Agent), as follows:
Alpharma Inc.
One Executive Drive
Fort Lee, New Jersey 07024
Attention: Corporate Counsel
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
Subscription Agent.
Any notice pursuant to this Agreement to be given by the Company or by any
registered holder of any Subscription Certificate to the Subscription Agent
shall be sufficiently given if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Subscription Agent
with the Company), as follows:
BankBoston, N.A.
150 Royall Street
Mail Stop 45-01-19
Canton, Massachusetts 02021
Attn: Shareholder Services Division
-11-
<PAGE>
EXHIBIT 4.4
-----------
The Subscription Agent maintains a Subscription 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 Subscription
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Subscription 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 Subscription
Agent may deem necessary or desirable and that shall not adversely affect, alter
or change the interests of the holders of the Rights in any material respect.
Any supplement or amendment of this Agreement which may not be made by the
Company and the Subscription Agent without the approval of holders of
Subscription Certificates pursuant to the preceding paragraph shall require the
approval of the holders of Subscription Certificates entitled to purchase upon
exercise thereof a majority of the Shares which may be purchased upon the
exercise of all outstanding Subscription 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 provide for an adjustment
to either (i) the number of Shares purchasable upon exercise of a Right or (ii)
the exercise price for which Shares are purchasable upon exercise of a Right, 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 Subscription
Certificates, then such amendment or supplement shall require the consent of the
holders of all Subscription Certificates.
Section 23. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Subscription Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
Section 24. Termination. This Agreement shall terminate the Close of
Business on the date which is five New York Stock Exchange trading days after
the Expiration Date. The provisions of Section 12 shall survive such
termination.
Section 25. Governing Law. This Agreement and each Subscription
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
Subscription Agent and the registered holders of the Subscription 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
Subscription Agent and the registered holders of the Subscription 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.
-12-
<PAGE>
EXHIBIT 4.4
-----------
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.
* * * * *
-13-
<PAGE>
EXHIBIT 4.4
-----------
IN WITNESS WHEREOF the parties hereto have caused this Rights Agreement to
be executed and delivered as of the day and year first above written.
ALPHARMA INC.
By:
----------------------------------
Name:
Title: Chief Financial Officer/
Executive Vice President
Attest:
- ---------------------------------
BANKBOSTON, N.A.
By
---------------------------------
Name:
Title:
Attest:
- ----------------------------------
-14-
<PAGE>
EXHIBIT 4.4
-----------
EXHIBIT A
[FORM OF FACE OF SUBSCRIPTION CERTIFICATE]
THIS RIGHT WAS ORIGINALLY ISSUED ON ______________, 1997 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
RIGHT 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 RIGHT ARE ALSO SUBJECT TO THE CONDITIONS ON TRANSFER AND
EXERCISE SPECIFIED IN THE RIGHTS AGREEMENT, DATED AS OF __________, 1997
(AS AMENDED AND MODIFIED FROM TIME TO TIME), BETWEEN THE ISSUER HEREOF (THE
"COMPANY") AND THE FIRST NATIONAL BANK OF BOSTON, AS SUBSCRIPTION AGENT;
THE COMPANY AND THE SUBSCRIPTION AGENT EACH RESERVE THE RIGHT TO REFUSE THE
TRANSFER OF THIS RIGHT 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 [NOVEMBER 25], 1997
No. C- RIGHT TO PURCHASE
SHARES OF CLASS A COMMON STOCK
ALPHARMA INC.
RIGHT TO PURCHASE CLASS A COMMON STOCK
This Subscription Certificate certifies that ________________ or
registered assigns, is the registered holder of a Right (the "Right") of
Alpharma 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 ____ __, 1997 (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 subscription price of $16.34 per Share (the "Subscription Price"),
payable in lawful money of the United States of America.
Subject to the terms and conditions set forth herein and in the Rights
Agreement referred to on the reverse hereof, this Right may be exercised upon
surrender of this Subscription Certificate and payment of an amount equal to the
Subscription Price multiplied by the number of Shares to be purchased upon
exercise hereof at the office or agency of the Subscription Agent at BancBoston
Trust Company of New York, 55 Broadway, New York, New York 10006 (the
"Subscription Agent Office").
The Subscription Price and the number of Shares purchasable upon
exercise of this Right are subject to adjustment upon the occurrence of certain
events as set forth in the Rights Agreement. The holder hereof
-15-
<PAGE>
EXHIBIT 4.4
-----------
by accepting this Subscription Certificate hereby acknowledges and consents to
the restrictions regarding transfer and exercise of this Right contained in the
Rights Agreement.
No Right may be exercised prior to the earlier of __________, 1997 or
the date on which a registration statement under the Securities Act covering the
Rights 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 Rights will become void and of no value.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
SUBSCRIPTION 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 Subscription
Certificate shall not be valid unless manually countersigned by the Subscription
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: ________________.
ALPHARMA INC.
By:
---------------------------------
Name:
Title:
[CORPORATE SEAL OF ALPHARMA INC.]
Attest:
By:
--------------------------------
Name:
Title:
Countersigned:
BANKBOSTON, N.A.
as Subscription Agent
By:
--------------------------------
Name:
Title:
- -------------------------------------------------------------
-16-
<PAGE>
EXHIBIT 4.4
-----------
[FORM OF REVERSE OF SUBSCRIPTION CERTIFICATE]
ALPHARMA INC.
The right evidenced by this subscription certificate is part of a duly
authorized issue of Rights to purchase a maximum of TWO MILLION, TWO HUNDRED
SIXTY-TWO THOUSAND, SIX HUNDRED EIGHTY-SIX (2,262,686) Shares of Class A
Common Stock issued pursuant to a Rights Agreement, dated as of __________, 1997
(the "Rights Agreement"), duly executed and delivered by the Company and
BankBoston, N.A., as Subscription Agent (the "Subscription Agent"). The Rights
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
Subscription Agent, the Company and the holders (the words "holders" or "holder"
meaning the registered holders or registered holder) of the Rights. A copy of
the Rights Agreement may be inspected at the Subscription Agent Office and is
available upon written request addressed to the Company. All terms used herein
that are defined in the Rights Agreement have the meanings assigned to them
therein.
Rights may be exercised to purchase Shares from the Company before the
Close of Business on the Expiration Date, at the Subscription Price set forth on
the face hereof, subject to adjustment as described in the Rights Agreement.
The holder of the Right evidenced by this Subscription Certificate may exercise
such Right by surrendering the Subscription Certificate, with the form of
election to purchase set forth hereon properly completed and executed, together
with payment of the aggregate Subscription 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
Subscription Agent Office.
In the event that upon any exercise of the Right evidenced hereby the
number of Shares actually purchased shall be less than the total number of
Shares purchasable upon exercise of the Right evidenced hereby, there shall be
issued to the holder hereof, or such holder's assignee, a new Subscription
Certificate evidencing a Right to purchase the Shares not so purchased. After
the Close of Business on the Expiration Date, unexercised Rights 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.
Subscription Certificates, when surrendered at the Subscription 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 Rights Agreement, but without payment
of any service charge, for another Subscription Certificate or Subscription
Certificates of like tenor evidencing a Right to purchase in the aggregate a
like number of Shares.
Upon due presentment for registration of transfer of this Subscription
Certificate at the Subscription Agent Office, a new Subscription Certificate or
Subscription Certificates of like tenor and evidencing a Right or Rights to
purchase in the aggregate a like number of Shares shall be issued to the
transferee in exchange for this Subscription Certificate, subject to the
limitations provided in the Rights Agreement, without charge, except for any tax
or other governmental charge imposed in connection therewith.
The Company and Subscription Agent may deem and treat the registered
holder hereof as the absolute owner of this Subscription 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 Subscription Agent shall be affected by any notice
to the contrary.
-17-
<PAGE>
EXHIBIT 4.4
-----------
ELECTION TO EXERCISE
(TO BE EXECUTED UPON EXERCISE OF THE RIGHT)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Subscription 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 Subscription 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 Subscription 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:
- -----------------------------------
-18-
<PAGE>
EXHIBIT 4.4
-----------
ASSIGNMENT
(TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH
HOLDER DESIRES TO TRANSFER THE SUBSCRIPTION CERTIFICATE)
FOR VALUE RECEIVED, the undersigned registered holder hereby sells assigns
and transfers unto
---------------------------------------
Name of Assignee
---------------------------------------
Address of Assignee
this Subscription Certificate, together with all right, title and interest
therein, and does irrevocably constitute and appoint ________________ attorney,
to transfer the within Subscription Certificate on the books of the Subscription
Agent, with full power of substitution.
- ---------------------------------- ------------------------------------------
Dated Signature
Note: The above signature must correspond
with the name as written upon the face of
this Subscription 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:
- -----------------------------------
-19-
<PAGE>
EXHIBIT 5
---------
Kirkland & Ellis
Citicorp Center
153 East 53rd Street
New York, New York 10022-4675
(212) 446-4800
July 17, 1997
Alpharma Inc.
One Executive Drive
P.O. Box 1399
Fort Lee, NJ 07024
Ladies and Gentlemen:
We have acted as counsel to Alpharma Inc., a Delaware corporation (the
"Company"), in connection with the filing of the Company's registration
statement on Form S-3 with the Securities and Exchange Commission on or about
July 17, 1997 (the "Registration Statement"), under the Securities Act of
1933, as amended. The Registration Statement is being filed in connection with
the Company's registration of (a) rights to purchase up to 2,262,686 shares
of Class A Common Stock (plus such additional Rights as are necessary due to
rounding) (the "Rights"), (b) 2,262,686 shares (plus such additional Shares as
are necessary due to rounding) (the "Shares") of Class A Common Stock of the
Company, par value $.20 per share (the "Class A Stock"), issuable upon exercise
of those Rights not repurchased by the Company, and (c) reoffers and resales by
certain holders of Rights who might be deemed affiliates of the Company of (i)
Rights held by such persons and (ii) Shares issuable upon exercise of such
Rights.
We are familiar with the proceedings to date with respect to such
offering and have examined such records, documents and matters of law and
satisfied ourselves as to such matters of fact as we have considered relevant
for purposes of this opinion.
For purposes of this opinion, we have assumed the authenticity of all
documents submitted to us as originals and the conformity to the originals of
all documents submitted to us as copies. We have also assumed the genuineness
of the signatures of persons signing all documents in connection with which
this opinion is rendered, the authority of such persons signing on behalf of
the parties thereto, and the due authorization, execution and delivery of all
documents by the parties thereto.
We are of the opinion that:
1. When the Shares shall have been issued upon exercise of the Rights in
accordance with the Rights Agreement to be executed between the
Company and the BankBoston, N.A. as Subscription Agent, a form of
which is attached as an exhibit to the Registration Statement, and the
Registration Statement shall have become effective, the Shares will be
legally issued, fully paid and non-assessable.
2. The Rights have been duly authorized and validly issued.
This opinion shall be limited to the laws of the State of New York,
the General Corporation Law of the State of Delaware and the federal
laws of the United States of America.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Kirkland & Ellis
KIRKLAND & ELLIS
II-7
<PAGE>
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Alpharma Inc. on Form S-3 of our report dated March 5, 1997, on our audits of
the consolidated financial statements of Alpharma Inc. and subsidiaries as of
December 31, 1996 and 1995 and for each of the three years in the period ended
December 31, 1996, which report is included in the Company's Annual Report on
Form 10-K for the year ended December 31, 1996. We also consent to the
reference to our firm under the caption "Experts."
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Parsippany, New Jersey
July 10, 1997
