<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 27, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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)
------------------------
<TABLE>
<S> <C>
DELAWARE 22-2095212
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
ONE EXECUTIVE DRIVE
FORT LEE, NEW JERSEY 07024
TELEPHONE: (201) 947-7774
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL OFFICES)
ROBERT F. WROBEL
VICE PRESIDENT AND CHIEF LEGAL OFFICER
ALPHARMA INC.
ONE EXECUTIVE DRIVE
FORT LEE, NEW JERSEY 07024
TELEPHONE: (201) 947-7774
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPY TO:
GLEN E. HESS, P.C.
KIRKLAND & ELLIS
CITICORP CENTER
153 EAST 53RD STREET
NEW YORK, NEW YORK 10022
(212) 446-4800
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED(1) PRICE(2) REGISTRATION FEE(3)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Debt Securities and Class A Common Stock, par value $.20 per
share..................................................... $250,000,000 $69,500
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Includes shares of Class A Common Stock that may be issued upon conversion
of Debt Securities. Also includes securities issuable upon conversion of
convertible securities for no separate consideration.
(2) Or the equivalent thereof in one or more foreign currencies or composite
currencies, including the Euro. If any Debt Securities are issued at an
original issue discount, then the aggregate initial offering price as so
discounted shall not exceed $250,000,000, notwithstanding that the stated
principal amount of such securities may exceed such amount.
(3) The registration fee has been calculated pursuant to Rule 457(o) and
reflects the offering price rather than the principal amount of any Debt
Securities issued at a discount.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
THE INFORMATION IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT
COVERING THEM HAS BEEN DECLARED EFFECTIVE BY THE SEC. THIS PRELIMINARY
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING
OFFERS TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION, DATED AUGUST 27, 1999
Prospectus
$250,000,000
[ALPHARMA LOGO]
DEBT SECURITIES
CLASS A COMMON STOCK
-------------------------
We may use this prospectus to offer and sell securities from time to time.
The types of securities we may sell include:
<TABLE>
<S> <C>
- - senior debt securities - Class A common stock
- - subordinated debt securities
</TABLE>
We will provide the specific terms of these securities in supplements to
this prospectus prepared in connection with each offering. These terms may
include:
<TABLE>
<S> <C>
In the case of any securities: In the case of debt securities:
- - offering price - denomination or currency
- - size of offering - interest rate
- - underwriting discounts - maturity
- ranking
- whether they may be redeemed prior
to maturity
- whether they are convertible into
common stock
</TABLE>
The securities offered will contain other significant terms and conditions.
Please read this prospectus and the applicable prospectus supplement carefully
before you invest.
THIS INVESTMENT INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON PAGE 1.
Our Class A common stock is traded on the New York Stock Exchange under the
symbol "ALO."
-------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the securities or passed upon the
adequacy or accuracy of the prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 1999.
<PAGE> 3
-------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Forward-Looking Statements.................................. i
Incorporation by Reference.................................. i
Risk Factors................................................ 1
Our Company................................................. 7
Where You Can Find More Information......................... 8
Use of Proceeds............................................. 6
Ratio of Earnings to Fixed Charges.......................... 6
Description of Debt Securities.............................. 9
Description of Capital Stock................................ 15
Book-Entry.................................................. 16
Plan of Distribution........................................ 19
Legal Matters............................................... 20
Experts..................................................... 20
</TABLE>
-------------------------
FORWARD-LOOKING STATEMENTS
This prospectus contains "forward-looking statements," or statements that
are based on current expectations, estimates, and projections rather than
historical facts. We offer these forward-looking statements in reliance on the
safe harbor provisions of the Private Securities Litigation Reform Act of 1995.
Forward-looking statements may prove, in hindsight, to have been inaccurate
because of risks and uncertainties that are difficult to predict. Many of the
risks and uncertainties that we face are included under the caption "Risk
Factors."
We are not obligated to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
In light of these risks, uncertainties and assumptions, the forward-looking
events discussed in this prospectus might not occur.
INCORPORATION BY REFERENCE
We have filed the following documents with the Securities and Exchange
Commission. These documents are incorporated herein by reference as of their
respective dates of filing and shall be deemed to be a part of this prospectus:
1. Our Annual Report on Form 10-K for the year ended December 31, 1998.
2. Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999
and June 30, 1999 and on Form 10-Q/A for the quarter ended June 30,
1999.
3. Our Current Reports on Form 8-K dated February 23, 1999, June 17, 1999
and July 2, 1999.
i
<PAGE> 4
All documents and reports which we file pursuant to Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 after the date of this
prospectus are also incorporated by reference in this prospectus and will be
deemed a part of this prospectus from the date of filing of the document or
report.
Statements contained in documents incorporated or deemed to be incorporated
by reference after the date of this prospectus will modify statements in any
other subsequently filed documents to the extent the new information differs
from the old information. Any statements modified or superseded will no longer
constitute a part of this prospectus in their original form.
We will provide you without charge, upon request, with a copy of any or all
of the documents referred to above which have been or may be incorporated in the
prospectus by reference, other than exhibits to such documents unless the
exhibits themselves are specifically incorporated by reference. Requests for
such copies should be directed to Alpharma Inc., One Executive Drive, Fort Lee,
New Jersey 07024, Attention: Investor Relations Department (telephone number:
(201) 947-7774).
ii
<PAGE> 5
RISK FACTORS
You should carefully consider the following risks as well as other
information contained in this prospectus before deciding to invest in any
offered securities.
OUR SUBSTANTIAL INDEBTEDNESS COULD LIMIT OUR ABILITY TO OBTAIN ADDITIONAL
FINANCING, LIMIT OUR OPERATING FLEXIBILITY AND MAKE US MORE VULNERABLE TO
ECONOMIC DOWNTURNS.
As of June 30, 1999, we had total outstanding long-term indebtedness of
approximately $600 million, or approximately 69% of our total capitalization. In
addition, we had $93 million of availability under our revolving credit facility
and short-term European line, subject to the satisfaction of the financial tests
and maintenance of the financial ratios we describe in this document and our
other public filings. These tests and covenants include an interest coverage
ratio, total debt to EBITDA and equity to asset ratio. This level of
indebtedness could:
- limit our ability to obtain additional financing
- limit our operating flexibility as a result of covenants contained in our
credit facility
- make us more vulnerable to economic downturns and
- limit our ability to pursue other business opportunities.
Also, we are vulnerable to fluctuations in interest rates since
approximately $294 million of our debt at June 30, 1999 was at variable interest
rates. We believe that we are more leveraged than many of our competitors.
Our acquisition of the Isis Group resulted in an equity to total asset
ratio under our revolving credit facility of 24.5% as of June 30, 1999. A ratio
of below 25% requires an increase in the interest rate margin under our
revolving credit facility of .75%. We are required to increase the equity to
total asset ratio under our revolving credit facility to at least 25% by
December 18, 1999. A failure to meet this minimum ratio by December 18, 1999
would constitute an event of default under our revolving credit facility and
would have a material adverse effect on us.
POTENTIAL ACQUISITIONS MAY REDUCE OUR EARNINGS, BE DIFFICULT TO INTEGRATE INTO
OUR COMPANY AND REQUIRE ADDITIONAL FINANCING.
We search for and evaluate acquisitions which will provide new product and
market opportunities, leverage existing assets and add critical mass.
Acquisitions commonly involve risks and may have a material effect on our
results of operations. Any acquisitions we make may fail to accomplish our
strategic objectives, may not be successfully integrated with our operations and
may not perform as expected. In addition, based on current acquisition prices in
the pharmaceutical industry, acquisitions could initially be dilutive to our
earnings and add significant intangible assets and related goodwill amortization
charges. Our acquisition strategy will require additional debt or equity
financing, resulting in additional leverage and dilution of ownership,
respectively. We may not be able to finance acquisitions on terms satisfactory
to us.
1
<PAGE> 6
WE ARE SUBJECT TO GOVERNMENT REGULATIONS AND ACTIONS THAT INCREASE OUR COSTS AND
COULD PREVENT US FROM MARKETING OR SELLING SOME OF OUR PRODUCTS IN CERTAIN
COUNTRIES.
The research, development, manufacturing and marketing of our products are
subject to extensive government regulation. Government regulation includes
inspection of and controls over testing, manufacturing, safety, efficacy,
labeling, record keeping, sale and distribution of pharmaceutical products. The
U.S. and other governments regularly review manufacturing operations.
Noncompliance with applicable requirements can result in fines, recall or
seizure of products, suspension of production and debarment of individuals or
our company from obtaining new drug approvals. Government regulation
substantially increases the cost of manufacturing, developing and selling our
products.
We have filed applications to market our products with the United States
Food and Drug Administration and other regulatory agencies both in the U.S. and
internationally. The timing of receipt of approvals of these applications can
significantly affect future revenues and income. This is particularly
significant with respect to human pharmaceuticals at the end of third parties'
patent protection. There can be no assurance that we will obtain new product
approvals in a timely manner, if ever. Failure to obtain approvals, or to obtain
them when expected, could have a material adverse effect on our business. We
also have affiliations, license agreements and other arrangements with
companies, such as Ascent Pediatrics, Inc., which arrangements depend on
regulatory approvals sought by such companies.
The European Union and five non-EU countries have banned the use of
bacitracin zinc, a feed antibiotic growth promoter, in livestock feeds effective
July 1, 1999. Our initial effort to reverse this action by means of a court
injunction from the Court of First Instance of the European Court was denied. We
are making further attempts to reverse or limit this action, with particular
emphasis on political means. Although we may not succeed, we believe that strong
scientific evidence exists to refute the EU position. In addition, other
countries are considering a similar ban. If the loss of bacitracin zinc sales is
limited to the European Union and those countries that have already taken
similar action, we do not anticipate a material adverse effect. If either (a)
other countries more important to our sales of bacitracin-based products ban
these products or (b) the European Union (or countries or customers within the
EU) acts to prevent the importation of meat products from countries that allow
the use of bacitracin-based products, we could be materially affected. We cannot
predict whether the present bacitracin zinc ban will be expanded.
OUR FOREIGN OPERATIONS ARE SUBJECT TO ADDITIONAL ECONOMIC AND POLITICAL RISKS.
Our foreign operations are subject to currency exchange fluctuations and
restrictions, political instability in some countries, and uncertainty as to the
enforceability of, and government control over, commercial rights.
Some of our foreign operations, particularly in Indonesia where we have a
manufacturing facility and Brazil where we have recently added significant
sales, are being affected by wide currency fluctuations and decreased economic
activity in these regions and, in case of Indonesia, by social and political
unrest. While our present exposure to economic factors in these regions is not
material, they are important areas for anticipated future growth.
2
<PAGE> 7
We sell products in many countries that are recognized to be susceptible to
significant foreign currency risk. These products are generally sold for U.S.
dollars, which eliminates the direct currency risk but increases credit risk if
the local currency devalues significantly and it becomes more difficult for
customers to purchase U.S. dollars required to pay us. Recent acquisitions in
Europe may increase the foreign currency risk.
OUR OPERATING RESULTS HAVE VARIED IN THE PAST AND MAY CONTINUE TO DO SO.
Our businesses may experience variations in revenues and net income as a
result of many factors, including acquisitions, delays in the introduction of
new products, success or failures of strategic alliances and joint ventures,
management actions and the general conditions of the pharmaceutical and animal
health industries.
MANY OF OUR COMPETITORS HAVE MORE RESOURCES THAN WE HAVE.
All of our businesses operate in highly competitive markets and many of our
competitors are substantially larger and have greater financial, technical and
marketing resources. As a result, we may be at a disadvantage in our ability to
develop and market new products to meet competitive demands.
WE HAVE BEEN AND WILL CONTINUE TO BE AFFECTED BY THE COMPETITIVE AND CHANGING
NATURE OF THE PHARMACEUTICAL INDUSTRY.
Our U.S. generic pharmaceutical business has historically been subject to
intense competition. As patents and other bases for market exclusivity expire,
prices typically decline as generic competitors enter the marketplace. Normally,
there is a further unit price decline as the number of generic competitors
increases. The timing of these price decreases is unpredictable and can result
in a significantly curtailed period of profitability for a generic product. In
addition, brand-name manufacturers frequently take actions to prevent or
discourage the use of generic equivalents through marketing and regulatory
activities and litigation.
Generic pharmaceutical market conditions in the U.S. were further
exacerbated in the second half of 1996 by a fundamental shift in industry
distribution, purchasing and stocking patterns resulting from increased
importance of sales to major wholesalers and a concurrent reduction in sales to
private label generic distributors. We believe that this trend continues to
date. Wholesaler programs generally require lower prices on products sold, lower
inventory levels kept at the wholesaler and fewer manufacturers selected to
provide products to the wholesaler's own marketing programs.
The factors which have adversely affected the U.S. generic pharmaceutical
industry may also affect some or all of the markets in which the international
pharmaceutical division operates. In addition, in Europe we are encountering
price pressure from imports of identical products from lower priced markets
under EU laws of free movement of goods. Parallel imports could lead to lower
volume growth. Our international pharmaceutical division is also affected by
general governmental initiatives to reduce drug prices. Both parallel imports
and governmental cost containment could cause lower prices in certain markets
including the Nordic countries where we have significant sales.
It is difficult for us to respond to competitive challenges because of the
significance of relatively few major customers, such as large wholesalers and
chain stores, a rapidly changing market and uncertainty of timing of new product
approvals.
3
<PAGE> 8
FUTURE INABILITY TO OBTAIN RAW MATERIALS OR PRODUCTS FROM CONTRACT MANUFACTURERS
COULD SERIOUSLY AFFECT OUR OPERATIONS.
We currently purchase many of our raw materials and other products from
single suppliers. Although we have not experienced difficulty to date, we may
experience supply interruptions in the future and may have to obtain substitute
materials or products. If we had to obtain substitute materials or products, we
would require additional regulatory approvals. Any significant interruption of
supply from our suppliers could have a material adverse effect on our
operations.
OUR BUSINESS IS AFFECTED BY THE POLICIES OF THIRD-PARTY PAYORS, SUCH AS INSURERS
AND MANAGED CARE ORGANIZATIONS.
Our commercial success with respect to generic products depends, in part,
on the availability of adequate reimbursement from third-party health care
payors, such as government and private health insurers and managed care
organizations. Third-party payors are increasingly challenging the pricing of
medical products and services and their reimbursement practices may prevent us
from maintaining our present product price levels. In addition, the market for
our products may be limited by third-party payors who establish lists of
approved products and do not provide reimbursement for products not listed.
SOME OF OUR PRODUCTS MAY BE SUBJECT TO PRODUCT LIABILITY CLAIMS.
Continuing studies are being conducted by the industry, government agencies
and others. These studies increasingly employ sophisticated methods and
techniques and can call into question the utilization, safety and efficacy of
previously marketed products. In some cases, these studies have resulted in the
removal of products from the market and have given rise to claims for damages
from previous users. Our business could be harmed by such actions.
OUR RELATIONSHIP WITH OUR CONTROLLING STOCKHOLDER COULD LEAD TO CONFLICTS OF
INTEREST.
A.L. Industrier AS, or Industrier, is the beneficial owner of 100% of the
outstanding shares of the Class B common stock. Industrier also owns $67.8
million of our 5 3/4% convertible subordinated notes due 2005 which are
convertible into Class B common stock. As a result of its stock ownership,
Industrier controls Alpharma and is presently entitled to elect two-thirds of
the members of our board of directors. Einar Sissener, Chairman of the Board and
Chairman of the Office of the Chief Executive of Alpharma, controls a majority
of Industrier's outstanding shares and is Chairman of Industrier. In addition,
Mr. Sissener beneficially owns 338,668 shares of Class A common stock. Gert
Munthe, President and Chief Executive Officer of Alpharma, is the son-in-law of
Mr. Sissener and a director of Industrier.
Alpharma and Industrier engage in various transactions from time to time,
and conflicts of interest are present with respect to the terms of such
transactions. All contractual arrangements between Alpharma and Industrier are
subject to review by, or ratification of, a committee of our board of directors
consisting of one or more directors who are unaffiliated with Industrier, as to
the fairness of the terms and conditions of such arrangements to Alpharma.
4
<PAGE> 9
THE MARKET PRICE OF OUR COMMON STOCK MAY BE HIGHLY VOLATILE BECAUSE OF INTERNAL
AND EXTERNAL FACTORS.
The stock market has from time to time experienced significant price and
volume fluctuations that may be unrelated to the operating performance of
particular companies. In addition, the market price of our Class A common stock,
like the stock prices of many publicly traded pharmaceutical companies, has been
and may continue to be highly volatile. The sale by our major shareholders or
members of our management of shares of common stock, management actions,
announcements of technological innovations or new commercial products by
Alpharma or its competitors, publicity regarding actual or potential medical
results relating to marketed products, regulatory developments in either the
U.S. or foreign countries, public concern as to the safety of pharmaceutical and
animal health products, factors present in foreign operations, the loss of
suppliers or contract manufacturers, third-party reimbursement pressures,
potential liability for current products and economic and other external
factors, as well as period-to-period fluctuations in financial results, among
other factors, may have a significant impact on the market price of the Class A
common stock.
5
<PAGE> 10
USE OF PROCEEDS
Unless the applicable prospectus supplement provides otherwise, we intend
to use the net proceeds from the sale of the offered securities to reduce our
indebtedness and for general corporate purposes, including capital expenditures
and acquisitions. We believe that any issuance of equity offered by this
prospectus will enhance our ability to finance future acquisitions, including
incurring additional debt. We may reborrow any amounts that we repay under our
credit facility. We are evaluating several possible acquisition candidates but,
other than as incorporated by reference or described in this prospectus, we
currently have no agreement or understanding regarding any material acquisition.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
Alpharma and its subsidiaries on a consolidated basis for each of the periods
indicated. We calculated the ratio of earnings to fixed charges by dividing
earnings by total fixed charges. Earnings consist of pretax income plus fixed
charges and amortization of capitalized interest less capitalized interest.
Fixed charges consist of interest expense on all indebtedness (including
amortization of deferred debt issuance costs) and a portion of rent expense
(33%) we estimated to be the interest component of those rentals.
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
- -------------------------------- --------------
1994 1995 1996 1997 1998 1999
- ---- ---- ---- ---- ---- --------------
<S> <C> <C> <C> <C> <C>
1.07x 2.24x --(1) 2.31x 2.29x 2.31x
</TABLE>
- -------------------------
(1) Earnings in 1996 were not sufficient to cover fixed charges. The deficiency
of earnings was $16.4 million.
6
<PAGE> 11
OUR COMPANY
We are a multinational pharmaceutical company that develops, manufactures
and markets specialty human pharmaceutical and animal health products. We
manufacture and market approximately 620 pharmaceutical products for human use
and 40 animal health products. We conduct our business in more than 60 countries
and have approximately 3,200 employees at 40 sites in 22 countries. For the year
ended December 31, 1998, we generated revenue of over $600 million and operating
income of $65 million.
Our human pharmaceutical business is the largest manufacturer and marketer
of generic liquid and topical pharmaceuticals in the U.S. In addition, we have
leading and expanding positions internationally, especially in Europe, where we
have leading positions in branded generic in the Nordic countries and a
substantial generic pharmaceutical market presence in the UK, Netherlands,
Germany and France, through recent acquisitions. Further, through our fine
chemicals division, we are the world's leading producer of bacitracin,
bacitracin zinc and polymixin, which are important pharmaceutical grade
antibiotics. Our human pharmaceutical business generated approximately $420
million of revenue, or approximately 70% of our total revenues, for the year
ended December 31, 1998. On June 18, 1999 we acquired Isis Pharma and Isis
Puren, the German generic businesses of Schwarz Pharma AG. The acquisition
consisted of sales personnel, product registrations, patents and trademarks.
Isis had 1998 revenues in Germany of approximately $75 million and has about 200
employees, of which 140 are in the sales force. Schwarz Pharma has agreed to
continue to supply some of the more substantial Isis products for a period of
four years and all remaining products for one year. Approximately 80% of Isis'
sales consist of cardiovascular products. The most important product of Isis is
the cardiovascular drug Pentalong(TM).
Our animal health business is a leading provider of animal feed additives
for the poultry, cattle and swine industries, as well as vaccines for the
aquaculture industry. We are the market leader in the manufacture and sale of
bacitracin-based feed additives sold under the trade names BMD(R)and Albac. In
addition, we believe that we have a significant market share with several other
of our feed additives, including those sold under our Deccox and 3-Nitro(R)
brands. In aquatic animal health, we believe we are a leader in the development,
manufacture and marketing of vaccines for use in immunizing farmed fish against
disease. Our animal health business generated approximately $185 million of
revenue, or approximately 30% of our total revenues, for the year ended December
31, 1998.
We were originally organized as A.L. Laboratories, Inc., a wholly owned
subsidiary of Apothekernes Laboratorium A.S., a Norwegian healthcare company,
the predecessor company to A.L. Industrier AS. In 1994, we acquired the
complementary human pharmaceutical and animal health business of our parent
company and subsequently changed our name to Alpharma Inc. to operate worldwide
as one corporate entity.
Our principal executive offices are located at One Executive Drive, Fort
Lee, New Jersey 07024.
7
<PAGE> 12
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy these reports, statements and
other information at the SEC's public reference rooms at:
- Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549;
- Seven World Trade Center, 13th Floor, New York, New York 10048; or
- Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661.
In addition, our Class A common stock and our convertible subordinated
notes due 2005 are traded on the New York Stock Exchange under the symbols "ALO"
and "ALO5 DOS" respectively and reports, proxy and information statements and
other information about us can also be inspected at the offices of the Exchange,
20 Broad Street, New York, New York 10005.
Please call the SEC at 1-800-SEC-0330 for further information on the
operation of the public reference rooms. You can also request copies of these
documents, for a copying fee, by writing to the SEC.
Our SEC filings can also be reviewed by accessing the SEC's Internet site
at http://www.sec.gov, which contains reports, proxy and information statements
and other information.
8
<PAGE> 13
DESCRIPTION OF DEBT SECURITIES
We will issue debt securities in one or more series under an indenture
between our company and First Union National Bank, as Trustee, the form of which
we have filed as an exhibit to the Registration Statement. The following
summaries of certain provisions of the indenture are not complete and are
qualified in their entirety by express reference to the indenture and the
securities resolutions or the indentures supplemental thereto (copies of which
have been or will be filed with the Commission). Capitalized terms used in this
section without definition have the meanings given to them in the indenture.
GENERAL
The indenture does not limit the amount of debt securities that can be
issued thereunder and provides that the debt securities may be issued from time
to time in one or more series pursuant to the terms of one or more securities
resolutions or supplemental indentures. As of the date of this prospectus, there
were no debt securities outstanding under the indenture. The debt securities
will be unsecured and will have the ranking set forth in the terms of any
supplements to this prospectus.
TERMS
We will determine the terms of the debt securities at the time or times of
sale. We will provide the specific terms of each series in supplements to this
prospectus. Reference is made to the prospectus supplement for the following
terms, if applicable, of the debt securities offered thereby:
- designation, aggregate principal amount, currency or composite currency
and denominations
- terms of any redemption at the option of Holders
- price and, if an index formula or other method is used, the method for
determining amounts of principal or interest
- maturity date and other dates, if any, on which principal will be payable
- interest rate (which may be fixed or variable), if any
- date or dates from which interest will accrue and on which interest will
be payable, and the record dates for the payment of interest
- place or places where principal and interest will be payable and on which
interest will be payable, and the record dates for the payment of
interest
- tax indemnity provisions
- terms of any mandatory or optional redemption by us including any sinking
fund
- terms of any conversion or exchange right
- if the debt securities provide that payments of principal or interest may
be made in a currency other than that in which debt securities are
denominated, the manner for determining the payments
9
<PAGE> 14
- portion of principal payable upon acceleration of a Discounted Debt
Security (as defined below)
- ranking
- whether and upon what terms debt securities may be defeased
- manner of paying principal and interest
- any events of default or the covenants in addition to or in lieu of those
set forth in the indenture
- provisions for electronic issuance of debt securities or for debt
securities in uncertificated form
- any additional provisions or other special terms not inconsistent with
the provisions of the indenture, including any terms that may be required
or advisable under United States or other applicable laws or regulations,
or advisable in connection with the marketing of the debt securities.
We may issue debt securities of any series as registered debt securities,
bearer debt securities or uncertificated debt securities, and in denominations
as specified in the terms of the series. (Section 2.01)
In connection with its original issuance, no bearer debt security will be
offered, sold or delivered to any location in the United States, and a bearer
debt security in definitive form may be delivered in connection with its
original issuance only upon presentation of a certificate in a form prescribed
by us to comply with United States laws and regulations. (Section 2.04)
Registration of transfer of registered debt securities may be requested
upon surrender thereof at any agency of ours maintained for that purpose and
upon fulfillment of all other requirements of the agent. (Sections 2.03 and
2.07)
Under the indenture we may issue debt securities as Discounted Debt
Securities to be offered and sold at a substantial discount from the principal
amount thereof. Special United States federal income tax and other
considerations applicable thereto will be described in the prospectus supplement
relating to the Discounted Debt Securities. "Discounted Debt Security" means a
debt security where the amount of principal due upon acceleration is less than
the stated principal amount. (Section 2.10)
CERTAIN COVENANTS
Unless otherwise specified in the applicable prospectus supplement, the
debt securities will not be secured by any properties or assets and will
represent unsecured debt of our company.
Any restrictive covenants which may apply to a particular series of debt
securities will be described in the prospectus supplement relating to that
series. The indenture does not limit our ability to enter into sale and
leaseback transactions.
Unless otherwise indicated in a prospectus supplement, these covenants, if
applicable, do not afford holders of the debt securities protection in the event
of a highly leveraged or other transaction involving us that may adversely
affect holders of the debt securities.
10
<PAGE> 15
SUCCESSOR OBLIGOR
Unless otherwise specified in the securities resolution establishing a
series of debt securities, we shall not consolidate with or merge into, or
transfer all or substantially all of our assets to, any person in any
transaction in which we are not the survivor, unless:
(1) the person is organized under the laws of the United States or a
State thereof or is organized under the laws of a foreign jurisdiction and
consents to the jurisdiction of the courts of the United States or a State
thereof;
(2) the person assumes by supplemental indenture all of our
obligations under the indenture, the debt securities and any coupons; and
(3) immediately after the transaction no Default (as defined) exists.
The successor shall be substituted for us, and thereafter all of our
obligations under the indenture, the debt securities and any coupons shall
terminate. (Section 5.01)
EXCHANGE OF DEBT SECURITIES
Registered debt securities may be exchanged for an equal aggregate
principal amount of registered debt securities of the same series and date of
maturity in the authorized denominations as may be requested upon surrender of
the registered debt securities at an agency of ours maintained for that purpose
and upon fulfillment of all other requirements of the agent. (Section 2.07)
DEFAULT AND REMEDIES
Unless the securities resolution establishing the series otherwise provides
(in which event the prospectus supplement will so state), an "Event of Default"
with respect to a series of debt securities will occur if:
(1) we default in any payment of interest on any debt securities of
the series when the same becomes due and payable and the Default continues
for a period of 60 days;
(2) we default in the payment of the principal and premium, if any, of
any debt securities of the series when the same becomes due and payable at
maturity or upon redemption, acceleration or otherwise and the default
shall continue for five or more days;
(3) we default in the payment or satisfaction of any sinking fund
obligation with respect to any debt securities of a series as required by
the securities resolution establishing the series and the Default continues
for a period of 60 days;
(4) we default in the performance of any of its other agreements
applicable to the series and the Default continues for 90 days after the
notice specified below;
(5) pursuant to or within the meaning of any Bankruptcy Law:
(a) we commence a voluntary case,
(b) we consent to the entry of an order for relief against us in an
involuntary case,
11
<PAGE> 16
(c) we consent to the appointment of a Custodian for us or for all
or substantially all of our property, or
(d) we make a general assignment for the benefit of our creditors;
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(a) is for relief against us in an involuntary case,
(b) appoints a Custodian for us or for all or substantially all of
our property, or
(c) orders that we be liquidated, and the order or decree remains
unstayed and in effect for 60 days; or
(7) there occurs any other Event of Default provided for in the
series. (Section 6.01)
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal
or State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or a similar official under any Bankruptcy Law.
(Section 6.01)
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default. A Default under subparagraph (4) above is not an
Event of Default until the Trustee or the Holders of at least 33 1/3% in
principal amount of the series notify us of the Default and we do not cure the
Default within the time specified after receipt of the notice. (Section 6.01)
The Trustee may require indemnity satisfactory to it before it enforces the
indenture or the debt securities of the series. (Section 7.01) Subject to
certain limitations, Holders of a majority in principal amount of the debt
securities of the series may direct the Trustee in its exercise of any trust or
power with respect to the series. (Section 6.05) Except in the case of Default
in payment on a series, the Trustee may withhold from Securityholders of the
series notice of any continuing Default (except a Default in payment of
principal or interest) if it determines that withholding notice is in their
interest. (Section 7.04) We are required to furnish the Trustee annually a brief
certificate as to our compliance with all conditions and covenants under the
indenture. (Section 4.04)
The failure to redeem any debt securities subject to a Conditional
Redemption (as defined) is not an Event of Default if any event on which the
redemption is so conditioned does not occur and is not waived before the
scheduled redemption date. (Section 6.01)
The indenture does not have a cross-default provision. Thus, a default by
us on any other debt, including any other series of debt securities, would not
constitute an Event of Default.
AMENDMENTS AND WAIVERS
The indenture and the debt securities or any coupons of the series may be
amended, and any default may be waived as follows: Unless the securities
resolution otherwise provides (in which event the prospectus supplement will so
state), the debt securities and the indenture may be amended with the consent of
the Holders of a majority in principal amount of the debt securities of all
series affected voting as one class. (Section 9.02) Unless the securities
resolution otherwise provides (in which event the prospectus
12
<PAGE> 17
supplement will so state), a Default on a particular series may be waived with
the consent of the Holders of a majority in principal amount of the debt
securities of the series. (Section 6.04)
However, without the consent of each Holder affected, no amendment or
waiver may:
(1) reduce the amount of debt securities whose Holders must consent to
an amendment or waiver;
(2) reduce the interest on or change the time for payment of interest
on any debt security;
(3) change the fixed maturity of any debt security;
(4) reduce the principal of any non-Discounted Debt Security or reduce
the amount of the principal of any Discounted Debt Security that would be
due on acceleration thereof;
(5) change the currency in which the principal or interest on a debt
security is payable;
(6) make any change that materially adversely affects the right to
convert any debt security; or
(7) waive any Default in payment of interest on or principal of a debt
security. (Sections 6.04 and 9.02)
Without the consent of any Holder, the indenture or the debt securities may
be amended:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for assumption of Company obligations to Holders in the
event of a merger or consolidation requiring the assumption;
(3) to provide that specific provisions of the indenture shall not
apply to a series of debt securities not previously issued;
(4) to create a series and establish its terms;
(5) to provide for a separate trustee for one or more series; or
(6) to make any change that does not materially adversely affect the
rights of any Holder. (Section 9.01)
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Debt securities of a series may be defeased in accordance with their terms
and, unless the securities resolution establishing the terms of the series
otherwise provides, as set forth below. We at any time may terminate as to a
series all of our obligations (except for certain obligations, including
obligations with respect to the defeasance trust and obligations to register the
transfer or exchange of a debt security, to replace destroyed, lost or stolen
debt securities and coupons and to maintain paying agencies in respect of the
debt securities) with respect to the debt securities of the series and any
related coupons and the indenture ("legal defeasance"). We at any time may
terminate as to a series our obligations with respect to the debt securities and
coupons of the series under any
13
<PAGE> 18
restrictive covenants which may be applicable to a particular series ("covenant
defeasance").
We may exercise our legal defeasance option notwithstanding our prior
exercise of our covenant defeasance option. If we exercise our legal defeasance
option, a series may not be accelerated because of an Event of Default. If we
exercise our covenant defeasance option, a series may not be accelerated by
reference to any restrictive covenants which may be applicable to that series.
(Section 8.01)
To exercise either defeasance option as to a series, we must:
(1) irrevocably deposit in trust (the "defeasance trust") with the
Trustee or another trustee money or U.S. Government Obligations, deliver a
certificate from a nationally recognized firm of independent accountants
expressing their opinion that the payments of principal and interest when
due on the deposited U.S. Government Obligations, without reinvestment,
plus any deposited money without investment will provide cash at the times
and in the amounts as will be sufficient to pay the principal and interest
when due on all debt securities of that series to maturity or redemption,
as the case may be, and
(2) comply with certain other conditions.
In particular, we must obtain an opinion of tax counsel that the defeasance
will not result in recognition of any gain or loss to holders for Federal income
tax purposes. "U.S. Government Obligations" means direct obligations of the
United States or an instrumentality of the United States, the payment of which
is unconditionally guaranteed by the United States, which, in either case, have
the full faith and credit of the United States of America pledged for payment
and which are not callable at the issuer's option, or certificates representing
an ownership interest in those obligations. (Section 8.02)
REGARDING THE TRUSTEE
First Union National Bank will act as Trustee for debt securities issued
under the indenture and, unless otherwise indicated in a prospectus supplement,
the Trustee will also act as Registrar and Paying Agent with respect to the debt
securities. (Section 2.03)
14
<PAGE> 19
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock currently consists of: (i) 50,000,000 shares
of Class A common stock, of which 18,036,351 shares were outstanding as of June
30, 1999, (ii) 15,000,000 shares of Class B common stock, $.20 par value per
share, of which 9,500,000 shares were issued and outstanding as of June 30,
1999, and (iii) 500,000 shares of preferred stock, par value $1.00 per share,
none of which were issued and outstanding as of June 30, 1999. The following
description of our capital stock is a summary of provisions of our amended and
restated certificate of incorporation and is qualified in its entirety by the
provisions of that document which has been filed with the SEC. As of June 30,
1999, the Class A common stock was held of record by approximately 1,788
stockholders.
COMMON STOCK
The Class A common stock and the Class B common stock are identical in all
respects, including with respect to the right to receive dividends, except as
follows: (1) the holders of the Class A common stock are currently entitled as
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 Board of Directors), and the
holders of the Class B common stock are entitled as a class to elect the
remaining directors; (2) on all other matters submitted to a vote of
stockholders, the holders of the Class A common stock are entitled to one vote
per share of Class A common stock held, and the holders of the Class B common
stock are entitled to four votes per share of Class B common stock held; (3) the
holders of the Class B common stock have the right at any time and from time to
time to convert each share of Class B common stock into one share of Class A
common stock; and (4) shares of Class A common stock may be declared and paid as
dividends on shares of both Class A common stock and Class B common stock;
shares of Class B common stock may be declared and paid as dividends on shares
of both Class A common stock and Class B common stock; shares of Class A common
stock may be declared and paid as dividends on shares of Class A common stock
and shares of Class B common stock may be declared and paid as dividends on
shares of Class B common 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 common stock and each outstanding share of Class B common stock. The
special voting rights of the holders of the Class A common stock as reflected in
clause (1) above terminate if the number of outstanding shares of Class A common
stock is less than 10% of the aggregate number of issued and outstanding shares
of Class A common stock and Class B common stock, and the special voting rights
of the holders of the Class B common stock as reflected in clauses (1) and (2)
above terminate if the number of issued and outstanding shares of Class B common
stock is less than 12 1/2% of such aggregate number, in each case as determined
on the record for the stockholder vote.
We 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 Alpharma, holders of the Class A common
stock and the Class B common stock are entitled to share ratably in any assets
available for distribution to stockholders after payment of all our obligations,
and payments due in respect of any other of our senior securities, 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 common stock, conversion rights.
15
<PAGE> 20
PREFERRED STOCK
We may issue the preferred stock in one or more series, with designations,
relative rights, powers, priorities, preferences and limitations thereof as the
Board of Directors, without any stockholder action, may determine, provided that
we may not limit the right of the holders of Class A common stock, voting as a
class, to elect no less than 25% of the Board of Directors by granting voting
rights to any series of preferred stock.
TRANSFER AGENT
BankBoston, N.A. is the transfer agent for the common stock.
BOOK-ENTRY
DTC will act as securities depository for the debt securities. The debt
securities will be issued only as fully registered securities registered in the
name of Cede & Co. (DTC's partnership nominee). One or more fully registered
global certificates will be issued for the debt securities representing the
aggregate principal amount of the debt securities and will be deposited with
DTC.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the 1934 Act, as
amended. DTC holds securities that its participants (the "Direct Participants")
deposit with DTC. DTC also facilitates the settlement among Direct Participants
of securities transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in Direct
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Direct Participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange, Inc., and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly (the "Indirect Participants," and
together with the Direct Participants, the "Participants"). The rules applicable
to DTC and its Participants are on file with the SEC.
Purchases of the debt securities within the DTC system must be made by or
through Direct Participants which will receive a credit for the debt securities
on DTC's records. The ownership interest of each actual purchaser of each debt
security (a "Beneficial Owner") will in turn be recorded on the Direct and
Indirect Participants' respective records. Beneficial Owners will not receive
written confirmation from DTC of their purchase, but Beneficial Owners are
expected to receive written confirmations providing details of the transaction,
as well as periodic statements of their holdings, from the Direct or Indirect
Participant through which the Beneficial Owner entered into the transaction.
Transfers of ownership interest in the debt securities will be effected by
entries made on the books of Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interest in debt securities except in the event that use of the book-entry
system for the debt securities is discontinued.
16
<PAGE> 21
The deposit of the debt securities with DTC and their registration in the
name of Cede & Co. effect no change in beneficial ownership. DTC has no
knowledge of the actual Beneficial Owners of the debt securities; DTC's records
reflect only the identity of the Direct Participants to whose accounts the debt
securities are credited, which may or may not be the Beneficial Owners. The
Participants will remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other direct communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the debt
securities of an issue are being redeemed, DTC's practice will determine by lot
the amount of the interest of each Direct Participant in the series to be
redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to the debt
securities. Under its usual procedures, DTC mails an omnibus proxy (an "Omnibus
Proxy") to the Participants as soon as possible after the record date. The
Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the debt securities are credited on the record
date (identified in a listing attached to the Omnibus Proxy).
Principal, premium, if any, and interest on the debt securities will be
paid to DTC. DTC's practice is to credit Direct Participants' accounts on the
relevant payment date in accordance with their respective holdings shown on
DTC's records unless DTC has reason to believe that it will not receive payment
on the payment date. Payments by Participants to Beneficial Owners will be
governed by standing instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer form or registered in
"street-name," and will be the responsibility of the Participant and not of DTC,
the underwriters, or us, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of principal, premium, if any, and
interest to DTC is the responsibility of us or the Trustee. Disbursement of
these payments to Direct Participants is the responsibility of DTC, and
disbursement of these payments to the Beneficial Owners is the responsibility of
Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the debt securities at any time by giving reasonable notice to us.
Under those circumstances and in the event that a successor securities
depository is not obtained, certificates for the debt securities are required to
be printed and delivered. In addition, we may decide to discontinue use of the
system of book-entry transfers through DTC (or any successor securities
depository). In that event, certificates for the debt securities will be printed
and delivered.
We will not have any responsibility or obligation to Participants or to the
persons for whom they act as nominees with respect to the accuracy of the
records of DTC, its nominees or any Direct or Indirect Participant with respect
to any ownership interest in the debt securities, or with respect to payments or
providing of notice to the Direct Participants, the Indirect Participants or the
Beneficial Owners.
So long as Cede & Co. is the registered owner of the debt securities, as
nominee of DTC, references herein to holders of the debt securities shall mean
Cede & Co. or DTC and shall not mean the Beneficial Owners of the debt
securities.
17
<PAGE> 22
DTC management is aware that some computer applications, systems, and the
like for processing data ("Systems") that are dependent upon calendar dates,
including dates before, on, and after January 1, 2000, may encounter "year 2000
problems." DTC has informed its Participants and other members of the financial
community (the "Industry") that it has developed and is implementing a program
so that its Systems, as the same relate to the timely payment of distributions
(including principal and income payments) to security holders, book-entry
deliveries, and settlement of trades within DTC, continue to function
appropriately. This program includes a technical assessment and remediation
plan, each of which is complete. Additionally, DTC's plan includes a testing
phase, which is expected to be completed within appropriate time frames.
However, DTC's ability to perform properly its services is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as third party vendors from whom DTC licenses software and hardware, and
third party vendors on whom DTC relies for information or the provision of
services, including telecommunication and electrical utility service providers,
among others. DTC has informed the industry that it is contracting (and will
continue to contract) third party vendors from whom DTC acquires services to:
(i) impress upon them the importance of such services being year 2000 compliant;
and (ii) determine the extent of their efforts for year 2000 remediation (and,
as appropriate, testing) of their services. In addition, DTC is in the process
of developing such contingency plans as it deems appropriate.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from DTC.
18
<PAGE> 23
PLAN OF DISTRIBUTION
The Company may sell securities through underwriters or dealers, directly
to one or more purchasers or through agents. The applicable prospectus
supplement will set forth the terms of the offering of any securities,
including:
- the names of any underwriters or agents
- the proceeds to the Company from the sale
- any other items constituting underwriters' compensation
- any discounts or concessions allowed or re-allowed or paid to dealers
- the purchase price of the securities
- any underwriting discounts
- any initial public offering price
- any securities exchanges on which the securities may be listed
If underwriters are used in the sale, securities will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. Those securities may
be offered to the public either through underwriting syndicates represented by
managing underwriters or by underwriters without a syndicate. Unless otherwise
set forth in the applicable prospectus supplement, the obligations of the
underwriters to purchase those securities will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase all of those
securities if any of them are purchased. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time. Only underwriters named in a prospectus supplement
are deemed to be underwriters in connection with the securities offered thereby.
We may sell securities directly or through agents designated by us from
time to time. Any agent involved in the offer or sale of securities will be
named, and any commissions payable by us to the agent will be set forth in the
applicable prospectus supplement. Unless otherwise indicated in the applicable
prospectus supplement, the agent will act on a best efforts basis for the period
of its appointment.
If so indicated in a prospectus supplement with respect to securities, we
will authorize agents, underwriters or dealers to solicit offers by certain
institutions to purchase securities from us at the public offering price set
forth in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on the date or dates stated in the prospectus
supplement. Each contract will be for an amount not less than, and the aggregate
principal amount of the securities sold pursuant to the contracts shall be not
less nor more than, the respective amounts stated in the prospectus supplement.
Institutions with whom the contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and
19
<PAGE> 24
charitable institutions, and other institutions, but will in all cases be
subject to our approval. The contracts will not be subject to any conditions
except:
(1) the purchase by an institution of the securities covered by its
contract shall not at the time of delivery be prohibited under the laws of
any jurisdiction in the United States to which the institution is subject,
and
(2) if the securities are being sold to underwriters, we shall have
sold to the underwriters the total principal amount of the securities less
the principal amount thereof covered by the contracts.
The underwriters will not have any responsibility in respect of the
validity or performance of the contracts.
If dealers are utilized in the sale of any securities, we will sell those
securities to the dealers, as principal. Any dealer may then resell those
securities to the public at varying prices to be determined by the dealer at the
time of resale. The name of any dealer and the terms of the transaction will be
set forth in the prospectus supplement with respect to the securities being
offered thereby.
It has not been determined whether any series of securities will be listed
on a securities exchange. Underwriters will not be obligated to make a market in
any series of securities. We cannot predict the level of trading activity in, or
the liquidity of, any series of securities.
Any underwriters, dealers or agents participating in the distribution of
securities may be deemed to be underwriters, and any discounts or commissions
received by them on the sale or resale of securities may be deemed to be
underwriting discounts and commissions under the Securities Act of 1933. Agents
and underwriters may be entitled under agreements entered into with us to
indemnification by us against certain liabilities, including liabilities under
the Securities Act of 1933, or to contribution with respect to payments that the
agents or underwriters may be required to make in respect thereof. Agents and
underwriters may be customers of, engaged in transactions with, or perform
services for, us or our affiliates in the ordinary course of business.
LEGAL MATTERS
Kirkland & Ellis, New York, New York (a partnership that includes
professional corporations) will pass upon legal matters regarding the issuance
of the securities and the validity of the common stock being issuable upon
conversion of the securities. Mr. Glen E. Hess has been a director of Alpharma
since 1983. Mr. Hess's professional corporation is a partner of Kirkland &
Ellis, a law firm which since 1978 has performed significant legal services for
Alpharma.
EXPERTS
The financial statements incorporated in this prospectus by reference to
the Annual Report on Form 10-K for the year ended December 31, 1998, have been
so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
20
<PAGE> 25
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$250,000,000
[ALPHARMA LOGO]
-------------------------
PROSPECTUS
-------------------------
, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 26
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses of the Registrant in connection
with the issuance and distribution of the securities being registered, other
than underwriting discounts and commissions. All such amounts are estimates,
other than the fees payable to the Securities and Exchange Commission.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 69,500
Legal fees and expenses..................................... 150,000
Accounting fees and expenses................................ 50,000
Printing.................................................... 200,000
Trustee's fees and expenses................................. 8,500
Miscellaneous............................................... 22,000
Total.................................................. $ 500,000*
</TABLE>
- -------------------------
* All expenses, except the Securities and Exchange Commission registration fee,
are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
permits a Delaware corporation to limit the personal liability of its directors
in accordance with the provisions set forth therein. The Restated Certificate of
Incorporation of the Registrant provides that the personal liability of its
directors shall be limited to the fullest extent permitted by applicable law.
Section 145 of the General Corporation Law of the State of Delaware
contains provisions permitting corporations organized thereunder to indemnify
directors, officers, employees or agents against expenses, judgments and fines
reasonably incurred and against certain other liabilities in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
person was or is a director, officer, employee or agent of the corporation. The
Restated Certificate of Incorporation of the Registrant provide for
indemnification of its directors and officers to the fullest extent permitted by
applicable law.
II-1
<PAGE> 27
ITEM 16. EXHIBITS.
The following exhibits are filed pursuant to Item 601 of Regulation S-K:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
2.1 Sale and purchase agreement between Schwarz Pharma AG,
Alpharma GmbH & Co. KG and Alpharma Inc. dated June 18, 1999
was filed as Exhibit 2.1 of the Company's Form 8-K dated as
of July 2, 1999, and is incorporated by reference.
2.2 Agreement for the sale and purchase of the issued share
capital of Cox Investments Limited, dated April 30, 1998
between Hoechst AG, Alpharma (U.K.) Limited, and Alpharma
Inc. was filed as Exhibit 2.1 of the Company's Form 8-K,
dated as of May 7, 1998 and is incorporated by reference.
4.1A Form of Indenture.
4.1B Form of Securities Resolution.
4.2 Reference is made to Article Fourth of the Amended and
Restated Certificate of Incorporation of the Company which
is filed as Exhibit 3.1 to the Company's 1998 Annual Report
on Form 10-K and is incorporated by reference.
4.3 Indenture, dated as of March 30, 1998, by and among the
Company and First Union National Bank, as trustee, with
respect to the 5 3/4% Convertible Subordinated Notes due
2005 was filed as Exhibit 4.1 of the Company's Form 8-K
dated as of March 30, 1998 and is incorporated by reference.
4.4 Note Purchase Agreement dated March 5, 1998 and Amendment
No. I thereto dated March 25, 1998 by and between the
Company and A.L. Industrier A.S. was filed as Exhibit 1.2 of
the Company's Form 8-K dated as of March 30, 1998 and is
incorporated by reference.
4.5 $300,000,000 Credit Agreement among Alpharma U.S. Inc., as
Borrower, Union Bank of Norway, as agent and arranger, and
Den norske Bank AS, as co-arranger, dated January 20, 1999
was filed as Exhibit 10.2 to the Company's 1998 Annual
Report on Form 10-K and is incorporated by reference.
4.6 Parent Guaranty, made by the Company in favor of Union Bank
of Norway, as agent and arranger, and Den norske Bank AS, as
co-arranger, dated January 20, 1999, was filed as Exhibit
10.7 to the Company's 1998 Annual Report on Form 10-K and is
incorporated by reference.
4.7 Indenture dated as of June 2, 1999, by and between the
Registrant and First Union National Bank, as trustee, with
respect to the 3% Convertible Senior Subordinated Notes due
2006, was filed as Exhibit 4.1 to the Company's Form 8-K
dated as of June 16, 1999 and is incorporated by reference.
5.1 Opinion of Kirkland & Ellis regarding legality of securities
being registered.
12.1 Statement re: computation of ratio of earnings to fixed
charges.
23.1 Consent of PricewaterhouseCoopers, LLP.
23.2 Consent of Kirkland & Ellis (included in Exhibit 5.1).
24.1 Powers of Attorney (included signature pages of Registration
Statement).
25.1 Statement of eligibility of Trustee, on Form T-1.
</TABLE>
II-2
<PAGE> 28
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission 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 the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
II-3
<PAGE> 29
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-4
<PAGE> 30
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Lee, New Jersey, as of August 27, 1999.
ALPHARMA INC.
By: /s/ ROBERT F. WROBEL
------------------------------------
Robert F. Wrobel
Vice President and Chief Legal
Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Jeffrey E. Smith and Robert F. Wrobel and each of
them, as true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution for him and in his name, place and stead, in any
and all capacities to sign any and all amendments (including pre-effective and
post-effective amendments) to this Registration Statement (and any registration
statement filed pursuant to Rule 462(b) under the Securities Act), and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and as of the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ EINAR W. SISSENER Chairman and Director August 27, 1999
- --------------------------------------------------- (Principal Executive Officer)
Einar W. Sissener
/s/ GERT W. MUNTHE President and Chief Executive August 27, 1999
- --------------------------------------------------- Officer and Director
Gert W. Munthe
/s/ JEFFREY E. SMITH Vice President, Finance and August 27, 1999
- --------------------------------------------------- Chief Financial Officer
Jeffrey E. Smith (Principal Financial Officer
and Principal Accounting
Officer)
/s/ I. ROY COHEN Director August 27, 1999
- ---------------------------------------------------
I. Roy Cohen
</TABLE>
II-5
<PAGE> 31
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ THOMAS GIBIAN Director August 27, 1999
- ---------------------------------------------------
Thomas Gibian
/s/ GLEN E. HESS Director August 27, 1999
- ---------------------------------------------------
Glen E. Hess
/s/ ERIK G. TANDBERG Director August 27, 1999
- ---------------------------------------------------
Erik G. Tandberg
/s/ PETER G. TOMBROS Director August 27, 1999
- ---------------------------------------------------
Peter G. Tombros
/s/ ERIK HORNNAESS Director August 27, 1999
- ---------------------------------------------------
Erik Hornnaess
/s/ OYVIN A. BROYMER Director August 27, 1999
- ---------------------------------------------------
Oyvin A. Broymer
</TABLE>
II-6
<PAGE> 32
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
2.1 Sale and purchase agreement between Schwarz Pharma AG,
Alpharma GmbH & Co. KG and Alpharma Inc. dated June 18, 1999
was filed as Exhibit 2.1 of the Company's Form 8-K dated as
of July 2, 1999, and is incorporated by reference.
2.2 Agreement for the sale and purchase of the issued share
capital of Cox Investments Limited, dated April 30, 1998
between Hoechst AG, Alpharma (U.K.) Limited, and Alpharma
Inc. was filed as Exhibit 2.1 of the Company's Form 8-K,
dated as of May 7, 1998 and is incorporated by reference.
4.1A Form of Indenture.
4.1B Form of Securities Resolution.
4.2 Reference is made to Article Fourth of the Amended and
Restated Certificate of Incorporation of the Company which
is filed as Exhibit 3.1 to the Company's 1998 Annual Report
on Form 10-K and is incorporated by reference.
4.3 Indenture, dated as of March 30, 1998, by and among the
Company and First Union National Bank, as trustee, with
respect to the 5 3/4% Convertible Subordinated Notes due
2005 was filed as Exhibit 4.1 of the Company's Form 8-K
dated as of March 30, 1998 and is incorporated by reference.
4.4 Note Purchase Agreement dated March 5, 1998 and Amendment
No. I thereto dated March 25, 1998 by and between the
Company and A.L. Industrier A.S. was filed as Exhibit 1.2 of
the Company's Form 8-K dated as of March 30, 1998 and is
incorporated by reference.
4.5 $300,000,000 Credit Agreement among Alpharma U.S. Inc., as
Borrower, Union Bank of Norway, as agent and arranger, and
Den norske Bank AS, as co-arranger, dated January 20, 1999
was filed as Exhibit 10.2 to the Company's 1998 Annual
Report on Form 10-K and is incorporated by reference.
4.6 Parent Guaranty, made by the Company in favor of Union Bank
of Norway, as agent and arranger, and Den norske Bank AS, as
co-arranger, dated January 20, 1999, was filed as Exhibit
10.7 to the Company's 1998 Annual Report on Form 10-K and is
incorporated by reference.
4.7 Indenture dated as of June 2, 1999, by and between the
Registrant and First Union National Bank, as trustee, with
respect to the 3% Convertible Senior Subordinated Notes due
2006, was filed as Exhibit 4.1 to the Company's Form 8-K
dated as of June 16, 1999 and is incorporated by reference.
5.1 Opinion of Kirkland & Ellis regarding legality of securities
being registered.
12.1 Statement re: computation of ratio of earnings to fixed
charges.
23.1 Consent of PricewaterhouseCoopers, LLP.
23.2 Consent of Kirkland & Ellis (included in Exhibit 5.1).
24.1 Powers of Attorney (included signature pages of Registration
Statement).
25.1 Statement of eligibility of Trustee, on Form T-1.
</TABLE>
<PAGE> 1
Exhibit 4.1A
- --------------------------------------------------------------------------------
ALPHARMA INC.
--------------------
DEBT SECURITIES
INDENTURE
--------------------
DATED AS OF , 199
[TRUSTEE]
<PAGE> 2
PARTIAL CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
INDENTURE SECTION TIA SECTION
<S> <C>
2.05................................ 317(b)
2.06................................ 312(a)
2.11................................ 316(a) (last sentence)
4.05................................ 314(a)(4)
6.03................................ 317(a)(1)
6.04................................ 316(a)(1)(B)
6.06................................ 316(a)(1)(A)
6.07................................ 317(a)(1)
7.01................................ 315(a), 315(d)
7.04................................ 315(b)
7.05................................ 313(a)
7.07................................ 310(a), 310(b)
7.09................................ 310(a)(2)
8.02................................ 310(a), 310(b)
9.04................................ 316(c)
10.01............................... 318(a)
10.02............................... 313(c)
10.03............................... 314(c)(1), 314(c)(2)
10.04............................... 314(e)
</TABLE>
-i-
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 1 -- DEFINITIONS............................................ 1
SECTION 1.01. Definitions.......................................... 1
SECTION 1.02. Other Definitions.................................... 4
SECTION 1.03. Rules of Construction................................ 4
ARTICLE 2 -- THE SECURITIES......................................... 5
SECTION 2.01. Issuable in Series................................... 5
SECTION 2.02. Execution and Authentication......................... 7
SECTION 2.03. Agents............................................... 8
SECTION 2.04. Bearer Securities.................................... 8
SECTION 2.05. Paying Agent to Hold Money in Trust.................. 9
SECTION 2.06. Securityholder Lists................................. 9
SECTION 2.07. Transfer and Exchange................................ 10
SECTION 2.08. Replacement Securities............................... 11
SECTION 2.09. Outstanding Securities............................... 11
SECTION 2.10. Discounted Debt Securities........................... 11
SECTION 2.11. Treasury Securities.................................. 12
SECTION 2.12. Global Securities.................................... 12
SECTION 2.13. Temporary Securities................................. 13
SECTION 2.14. Cancellation......................................... 13
SECTION 2.15. Defaulted Interest................................... 13
ARTICLE 3 -- REDEMPTION............................................. 14
SECTION 3.01. Notices to Trustee................................... 14
SECTION 3.02. Selection of Securities to Be Redeemed............... 14
SECTION 3.03. Notice of Redemption................................. 14
SECTION 3.04. Effect of Notice of Redemption....................... 15
SECTION 3.05. Payment of Redemption Price.......................... 16
SECTION 3.06. Securities Redeemed in Part.......................... 16
ARTICLE 4 -- COVENANTS.............................................. 17
SECTION 4.01. Payment of Securities................................ 17
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 4.02. Overdue Interest..................................... 17
SECTION 4.03. Compliance Certificate............................... 17
SECTION 4.04. SEC Reports.......................................... 17
ARTICLE 5 -- SUCCESSORS............................................. 18
SECTION 5.01. When Company May Merge, etc.......................... 18
ARTICLE 6 -- DEFAULTS AND REMEDIES.................................. 18
SECTION 6.01. Events of Default.................................... 18
SECTION 6.02. Acceleration......................................... 20
SECTION 6.03. Other Remedies....................................... 20
SECTION 6.04. Waiver of Past Defaults.............................. 21
SECTION 6.05. Control by Majority.................................. 21
SECTION 6.06. Limitation on Suits.................................. 21
SECTION 6.07. Collection Suit by Trustee........................... 22
SECTION 6.08. Priorities........................................... 22
ARTICLE 7 -- TRUSTEE................................................ 23
Section 7.01. Certain Duties and Responsibilities.................. 23
SECTION 7.02. Rights of Trustee.................................... 23
SECTION 7.03. Individual Rights of Trustee......................... 24
SECTION 7.04. Trustee's Disclaimer................................. 25
SECTION 7.05. Notice of Defaults................................... 25
SECTION 7.06. Reports by Trustee to Holders........................ 25
SECTION 7.07. Compensation and Indemnity........................... 25
SECTION 7.08. Replacement of Trustee............................... 26
SECTION 7.09. Successor Trustee by Merger, etc..................... 27
SECTION 7.10. Trustee's Capital and Surplus........................ 27
ARTICLE 8 -- DISCHARGE OF INDENTURE................................. 28
SECTION 8.01. Defeasance........................................... 28
SECTION 8.02. Conditions to Defeasance............................. 28
SECTION 8.03. Application of Trust Money........................... 30
SECTION 8.04. Repayment to Company................................. 30
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 9 -- AMENDMENTS............................................. 30
SECTION 9.01. Without Consent of Holders........................... 30
SECTION 9.02. With Consent of Holders.............................. 31
SECTION 9.03. Compliance with Trust Indenture Act.................. 32
SECTION 9.04. Effect of Consents................................... 32
SECTION 9.05. Notation on or Exchange of Securities................ 32
SECTION 9.06. Trustee Protected.................................... 32
ARTICLE 10 -- MISCELLANEOUS......................................... 33
SECTION 10.01. Trust Indenture Act................................. 33
SECTION 10.02. Notices............................................. 33
SECTION 10.03. Certificate and Opinion as to Conditions Precedent.. 34
SECTION 10.04. Statements Required in Certificate or Opinion....... 35
SECTION 10.05. Rules by Company and Agents......................... 35
SECTION 10.06. No Lien Created, etc................................ 35
SECTION 10.07. Legal Holidays...................................... 35
SECTION 10.08. No Recourse Against Others.......................... 36
SECTION 10.09. Duplicate Originals................................. 36
SECTION 10.10. Governing Law....................................... 36
</TABLE>
-iv-
<PAGE> 6
INDENTURE dated as of , 1999 between ALPHARMA
INC., a corporation organized and existing under the laws of the State of
Delaware (hereinafter called the "Company"), and [TRUSTEE] as Trustee
("Trustee").
Each party agrees as follows for the benefit of the Holders of the
Company's debt securities issued under this Indenture:
ARTICLE 1 -- DEFINITIONS
SECTION 1.01. Definitions.
"AFFILIATE" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
"AGENT" means any Registrar or Paying Agent.
"AUTHORIZED NEWSPAPER" means a newspaper that is:
(1) printed in the English language or in an official language of
the country of publication;
(2) customarily published on each business day in the place of
publication; and
(3) of general circulation in the relevant place or in the financial
community of such place.
Whenever successive publications in an Authorized Newspaper are
required, they may be made on the same or different business days and in the
same or different Authorized Newspapers.
"BEARER SECURITY" means a Security payable to bearer.
"BOARD" means the Board of Directors of the Company or any
authorized committee of the Board.
"CAPITAL STOCK" means any and all shares, interests, participations
or other equivalents (however designated) of capital stock of any person and all
warrants or options to acquire such capital stock.
<PAGE> 7
-2-
"COMPANY" means the party named as such above until a successor
replaces it and thereafter means the successor.
"CORPORATE TRUST OFFICE" shall mean an office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the date of the execution of this Indenture is located at
[TRUSTEE'S ADDRESS], or at any other time at such other address as the Trustee
may designate from time to time by notice to the Holders.
"COUPON" means an interest coupon for a Bearer Security.
"DEFAULT" means any event which is, or after notice or passage of
time would be, an Event of Default (as defined below).
"DISCOUNTED DEBT SECURITY" means a Security where the amount of
principal due upon acceleration is less than the stated principal amount.
"HOLDER" or "SECURITYHOLDER" means the person in whose name a
Registered Security is registered and the bearer of a Bearer Security or coupon.
"INDENTURE" means this Indenture and any Securities Resolution as
amended from time to time.
"LIEN" means mortgage, pledge, security interest or other lien.
"OFFICER" means the Chairman, any Vice-Chairman, the President, any
Executive or Senior Vice President, any Vice-President, the Treasurer or any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers
of the Company, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion from legal counsel who
is acceptable to the Trustee, and delivered to the Trustee. The counsel may be
an employee of or counsel to the Company.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust,
<PAGE> 8
-3-
unincorporated organization or government or any agency or political subdivision
thereof.
"PRINCIPAL" of a debt security means the principal of the security
plus the premium, if and when applicable, on the security.
"REGISTERED SECURITY" means a Security registered as to principal
and interest by the Registrar.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the debt securities issued under this Indenture.
"SECURITIES RESOLUTION" means a resolution authorizing a series
adopted by the Board or by a committee of Officers or an Officer pursuant to
Board delegation.
"SERIES" means a series of Securities or the Securities of the
series.
"SUBSIDIARY" of any person means (i) a corporation more than 50% of
the outstanding voting stock of which is owned, directly or indirectly, by such
person or by one or more other Subsidiaries of such person or by such person and
one or more Subsidiaries thereof or (ii) any other person (other than a
corporation) in which such person, or one or more Subsidiaries of such person or
such person and one or more Subsidiaries thereof, directly or indirectly, has at
least a majority ownership and power to direct the policy, management and
affairs thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section
77aaa-77bbbb), as amended.
"TRADING DAY" means each day on which the securities exchange or
quotation system which is used to determine the Market Price is open for trading
or quotation.
"TRUSTEE" means the party named as such above until a successor
replaces it and thereafter means the successor.
"TRUST OFFICER" when used with respect to the Trustee, means any
officer assigned to the Corporate Trust Office, having direct responsibility for
the administration of this In-
<PAGE> 9
-4-
denture, and also, with respect to a particular matter, any other officer, to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"UNITED STATES" means the United States of America, its territories
and possessions and other areas subject to its jurisdiction.
SECTION 1.02. Other Definitions.
<TABLE>
<CAPTION>
TERM DEFINED IN SECTION
<S> <C>
"ACTUAL KNOWLEDGE" 7.01
"BANKRUPTCY LAW" 6.01
"CONDITIONAL REDEMPTION" 3.04
"CUSTODIAN" 6.01
"LEGAL HOLIDAY" 10.06
"PAYING AGENT" 2.03
"REGISTRAR" 2.03
"TREASURY REGULATIONS" 2.04
"U.S. GOVERNMENT OBLIGATIONS" 8.02
</TABLE>
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted
accounting principles in the United States;
(3) generally accepted accounting principles are those applicable
from time to time;
(4) all terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC
rule under the TIA have the meanings assigned to them by such
definitions;
(5) "OR" is not exclusive; and
<PAGE> 10
-5-
(6) words in the singular include the plural, and in the plural
include the singular.
ARTICLE 2 -- THE SECURITIES
SECTION 2.01. Issuable in Series.
The aggregate principal amount of Securities that may be issued
under this Indenture is unlimited. The Securities may be issued from time to
time in one or more series. Each series shall be created by a Securities
Resolution that establishes the terms of the series, which may include the
following:
(1) the title of the series;
(2) the aggregate principal amount of the series;
(3) the interest rate, if any, or method of calculating the
interest rate;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on Registered
Securities;
(6) the dates when principal and interest are payable;
(7) the manner of paying principal and interest;
(8) the places where principal and interest are payable;
(9) the Registrar and Paying Agent;
(10) the terms of any mandatory or optional redemption by the
Company or any third party including any sinking fund;
(11) the terms of any redemption at the option of Holders or put by
the Holders;
(12) the denominations in which Securities are issuable;
<PAGE> 11
-6-
(13) whether Securities will be issuable as Registered Securities,
Bearer Securities or uncertificated Securities;
(14) whether and upon what terms Registered Securities, Bearer
Securities and uncertificated Securities may be exchanged;
(15) whether any Securities will be represented by a Security in
global form;
(16) the terms of any global Security;
(17) the terms of any tax indemnity;
(18) the currencies (including any composite currency) in which
principal or interest may be paid;
(19) if payments of principal or interest may be made in a currency
other than that in which Securities are denominated, the
manner for determining such payments;
(20) if amounts of principal or interest may be determined by
reference to an index, formula or other method, the manner for
determining such amounts;
(21) provisions for electronic issuance of Securities or for
Securities in uncertificated form;
(22) the portion of principal payable upon acceleration of a
Discounted Debt Security;
(23) whether any Events of Default or covenants in addition to or
in lieu of those set forth in this Indenture have been added;
(24) whether and upon what terms Securities may be defeased;
(25) the forms of the Securities or any coupon, which may be in the
form of Exhibit A or B;
(26) any terms that may be required by or advisable under U.S.
laws; and
<PAGE> 12
-7-
(27) any other terms not inconsistent with this Indenture.
All Securities of one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series.
The creation and issuance of a series and the authentication and
delivery thereof are not subject to any conditions precedent.
SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities by manual or facsimile
signature. The Company's seal shall be reproduced on the Securities. An Officer
shall sign any coupons by facsimile signature.
If an Officer whose signature is on a Security or its coupons no
longer holds that office at the time the Security is authenticated or delivered,
the Security and coupons shall nevertheless be valid.
A Security and its coupons shall not be valid until the Security is
authenticated by the manual signature of the Trustee. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated the date of its original
issuance or as provided in the Securities Resolution.
Securities may have notations, legends or endorsements required by
law, stock exchange rule, agreement or usage.
In the event Securities are issued in electronic or other
uncertificated form, such Securities may be validly issued without the
signatures or seal contemplated by this Section 2.02.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
<PAGE> 13
-8-
SECTION 2.03. Agents.
The Company shall maintain an office or agency where Securities may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Securities may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Securities and of their transfer and
exchange.
The Company may appoint more than one Registrar or Paying Agent for
a series. The Company shall notify the Trustee of the name and address of any
Agent not a party to this Indenture. If the Company does not appoint or maintain
a Registrar or Paying Agent for a series, the Trustee shall act as such.
SECTION 2.04. Bearer Securities.
U.S. laws and Treasury Regulations restrict sales or exchanges of
and payments on Bearer Securities. Therefore, except as provided below:
(1) Bearer Securities will be offered, sold or delivered only
outside the United States and will be delivered in connection
with its original issuance only upon presentation of a
certificate in a form prescribed by the Company to comply with
U.S. laws and regulations.
(2) Bearer Securities will not be issued in exchange for
Registered Securities.
(3) All payments of principal and interest (including original
issue discount) on Bearer Securities will be made outside the
United States by a Paying Agent located outside the United
States unless the Company determines that:
(A) such payments may not be made by such Paying Agent
because the payments are illegal or prevented by
exchange controls as described in Treasury Regulation
Section 1.163-5(c)(2)(v); and
(B) making the payments in the United States would not have
an adverse tax effect on the Company.
<PAGE> 14
-9-
If there is a change in the relevant provisions of U.S. laws or
Treasury Regulations or the judicial or administrative interpretation thereof, a
restriction set forth in paragraph (1), (2) or (3) above will not apply to a
series if the Company determines that the relevant provisions no longer apply to
the series or that failure to comply with the relevant provisions would not have
an adverse tax effect on the Company or on Securityholders or cause the series
to be treated as "registration-required" obligations under U.S. law.
The Company shall notify the Trustee of any determinations by the
Company under this Section.
"TREASURY REGULATIONS" means regulations of the U.S. Treasury
Department under the Internal Revenue Code of 1986, as amended.
SECTION 2.05. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent for a series other than
the Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of the persons entitled thereto all money held by the Paying Agent for
the payment of principal of or interest on the series, and will notify the
Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying
Agent to pay all money so held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent shall have no further liability for the
money.
If the Company or an Affiliate acts as Paying Agent for a series, it
shall segregate and hold as a separate trust fund all money held by it as Paying
Agent for the series.
SECTION 2.06. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee semiannually and at such other times as the Trustee may request a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Holders of Regis-
<PAGE> 15
-10-
tered Securities and Holders of Bearer Securities whose names are on the list
referred to below.
The Registrar shall keep a list of the names and addresses of
Holders of Bearer Securities who file a request to be included on such list. A
request will remain in effect for two years, and successive requests may be
made.
Whenever the Company or the Trustee is required to mail a notice to
all Holders of Registered Securities of a series, it also shall mail the notice
to Holders of Bearer Securities of the series whose names are on the list.
Whenever the Company is required to publish a notice to all Holders
of Bearer Securities of a series, it also shall mail the notice to such of them
whose names are on the list.
SECTION 2.07. Transfer and Exchange.
Where Registered Securities of a series are presented to the
Registrar with a request to register a transfer or to exchange them for an equal
principal amount of Registered Securities of other denominations of the same
series, the Registrar shall register the transfer or make the exchange if its
requirements for such transactions are met. To permit registrations of transfer
and exchanges, the Trustee shall authenticate Registered Securities and Bearer
Securities at the Registrar's written request.
The Registrar may require a Holder to pay a sum sufficient to cover
any taxes imposed on a transfer or exchange.
If a series provides for Registered and Bearer Securities and for
their exchange, Bearer Securities may be exchanged for Registered Securities and
Registered Securities may be exchanged for Bearer Securities as provided in the
Securities or the Securities Resolution if the requirements of the Registrar for
such transactions are met and in the case of the exchange of registered
securities for bearer securities if Section 2.04 permits the exchange.
The Company may elect not to exchange or register the transfer of
any Security for a period of 15 days before a selection of Securities to be
redeemed.
<PAGE> 16
-11-
SECTION 2.08. Replacement Securities.
If the Holder of a Security or coupon claims that it has been lost,
destroyed or wrongfully taken, then, in the absence of notice to the Company or
the Trustee that the Security or coupon has been acquired by a protected
purchaser, the Company shall issue a replacement Security or coupon if the
Company and the Trustee receive:
(1) evidence satisfactory to them of the loss, destruction or
taking;
(2) an indemnity bond satisfactory to them; and
(3) payment of a sum sufficient to cover their expenses and any
taxes for replacing the Security or coupon.
A replacement Security shall have coupons attached corresponding to those, if
any, on the replaced Security.
Every replacement Security or coupon is an additional obligation of
the Company.
SECTION 2.09. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a protected purchaser.
If Securities are considered paid under Section 4.01, they cease to
be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or
an Affiliate holds the Security.
SECTION 2.10. Discounted Debt Securities.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, the principal
amount of a Discounted Debt
<PAGE> 17
-12-
Security shall be the amount of principal that would be due as of the date of
such determination if payment of the Security were accelerated on that date.
SECTION 2.11. Treasury Securities.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, Securities
owned by the Company or an Affiliate shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee actually
knows are so owned shall be so disregarded.
SECTION 2.12. Global Securities.
If the Securities Resolution so provides, the Company may issue some
or all of the Securities of a series in temporary or permanent global form. A
global Security may be in registered form, in bearer form with or without
coupons or in uncertificated form. A global Security shall represent that amount
of Securities of a series as specified in the global Security or as endorsed
thereon from time to time. At the Company's request, the Trustee shall endorse a
global Security to reflect the amount of any increase or decrease in the
Securities represented thereby.
The Company may issue a global Security only to a depository
designated by the Company. A depository may transfer a global Security only as a
whole to its nominee or to a successor depository.
The Securities Resolution may establish, among other things, the
manner of paying principal and interest on a global Security and whether and
upon what terms a beneficial owner of an interest in a global Security may
exchange such interest for definitive Securities.
The Company, an Affiliate, the Trustee and any Agent shall not be
responsible for any acts or omissions of a depository, for any depository
records of beneficial ownership interests or for any transactions between the
depository and beneficial owners.
<PAGE> 18
-13-
SECTION 2.13. Temporary Securities.
Until definitive Securities of a series are ready for delivery, the
Company may use temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Temporary Securities
may be in global form. Temporary Bearer Securities may have one or more coupons
or no coupons. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities in exchange for temporary
Securities.
SECTION 2.14. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities and coupons surrendered to them for payment, exchange or
registration of transfer. The Trustee shall cancel all Securities or coupons
surrendered for payment, registration of transfer, exchange or cancellation. The
Trustee also will cancel all Bearer Securities and unmatured coupons unless the
Company requests the Trustee to hold the same for redelivery. Any Bearer
Securities so held shall be considered delivered for cancellation under Section
2.09. The Trustee shall dispose of cancelled Securities and coupons in
accordance with its record retention policies in effect at the time or shall
deliver them to the Company upon the written request of the Company.
Unless the Securities Resolution otherwise provides, the Company may
not issue new Securities to replace Securities that the Company has paid or that
the Company has delivered to the Trustee for cancellation.
SECTION 2.15. Defaulted Interest.
If the Company defaults in a payment of interest on Registered
Securities, it need not pay the defaulted interest to Holders on the regular
record date. The Company may fix a special record date for determining Holders
entitled to receive defaulted interest, or the Company may pay defaulted
interest in any other lawful manner. At least ___ days before the special record
date, the Company shall give the Holders of Registered Securities a notice that
states the record date, payment date and amount of interest to be paid.
<PAGE> 19
-14-
ARTICLE 3 -- REDEMPTION
SECTION 3.01. Notices to Trustee.
Securities of a series that are redeemable before maturity shall be
redeemable in accordance with their terms and, unless the Securities Resolution
otherwise provides, in accordance with this Article.
In the case of a redemption by the Company, the Company shall notify
the Trustee of the redemption date and the principal amount of Securities to be
redeemed. The Company shall notify the Trustee at least 45 days before the
redemption date unless a shorter notice is satisfactory to the Trustee.
If the Company is required to redeem Securities, it may reduce the
principal amount of Securities required to be redeemed to the extent that it is
permitted a credit against such redemption requirement by the terms of the
Securities Resolution and notifies the Trustee of the amount of such credit and
the basis for it. If the reduction is based on a credit for acquired or redeemed
Securities that the Company has not previously delivered to the Trustee for
cancellation, the Company shall deliver the Securities at the same time as the
notice.
SECTION 3.02. Selection of Securities to Be Redeemed.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select the Securities to be redeemed from Securities outstanding
not previously called for redemption by a method the Trustee considers fair and
appropriate. The Trustee shall make the selection from Securities of the series
outstanding not previously called for redemption. The Trustee may select for
redemption portions of the principal of Securities having denominations larger
than the minimum denomination for the series. Securities and portions thereof
selected for redemption shall be in amounts equal to the minimum denomination
for the series or an integral multiple thereof. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days before a redemption date, the Company shall mail a
notice of redemption by first-class mail to
<PAGE> 20
-15-
each Holder of Registered Securities whose Securities are to be redeemed.
If Bearer Securities are to be redeemed, the Company shall publish a
notice of redemption in an Authorized Newspaper as provided in the Securities.
A notice shall identify the Securities of the series to be redeemed
and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption, together with all
coupons, if any, maturing after the redemption date, must be
surrendered to the Paying Agent to collect the redemption
price;
(5) that interest on Securities called for redemption ceases to
accrue on and after the redemption date;
(6) whether the redemption by the Company is mandatory or
optional; and
(7) whether the redemption is conditional as provided in Section
3.04, and if so, the terms of the conditions, and that, if the
conditions are not satisfied or are not waived by the Company,
the Securities will not be redeemed and such a failure to
redeem will not constitute an Event of Default.
A redemption notice given by publication need not identify
Registered Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
SECTION 3.04. Effect of Notice of Redemption.
Except as provided below, once notice of redemption is given,
Securities called for redemption become due and payable on the redemption date
at the redemption price stated in the notice.
<PAGE> 21
-16-
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such redemption as described
in such notice ("Conditional Redemption"), and such notice of Conditional
Redemption shall be of no effect unless all such conditions to the redemption
have occurred on or before such date or have been waived by the Company in its
sole discretion.
SECTION 3.05. Payment of Redemption Price.
On or before the redemption date, the Company shall deposit with the
Paying Agent money sufficient to pay the redemption price of and accrued
interest on all Securities to be redeemed on that date.
When the Holder of a Security surrenders it for redemption in
accordance with the redemption notice, the Company shall pay to the Holder on
the redemption date the redemption price and accrued interest to such date,
except that:
(1) the Company will pay any such interest (except defaulted
interest) to Holders on the record date of Registered
Securities if the redemption date occurs on an interest
payment date; and
(2) the Company will pay any such interest to Holders of coupons
that mature on or before the redemption date upon surrender of
such coupons to the Paying Agent.
Coupons maturing after the redemption date on a called Security are
void absent a payment default on that date. Nevertheless, if a Holder surrenders
for redemption a Bearer Security missing any such coupons, the Company may
deduct the face amount of such coupons from the redemption price. If thereafter
the Holder surrenders to the Paying Agent the missing coupons, the Company will
return the amount so deducted. The Company may waive surrender of the missing
coupons if it receives an indemnity bond satisfactory to the Company.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder and the Company shall deliver to the Holder a
new Security of the same series equal in principal amount to the unredeemed
portion of the Security surrendered.
<PAGE> 22
-17-
ARTICLE 4 -- COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on a series in
accordance with the terms of the Securities for the series, any related coupons,
and this Indenture. Principal and interest on a series shall be considered paid
on the date due if the Paying Agent for the series holds on that date money
sufficient to pay all principal and interest then due on the series.
SECTION 4.02. Overdue Interest.
Unless the Securities Resolution otherwise provides, the Company
shall pay interest on overdue principal of a Security of a series at the rate
(or yield to maturity in the case of a Discounted Debt Security) borne by the
series; the Company shall pay interest on overdue installments of interest at
the same rate or yield to maturity to the extent lawful.
SECTION 4.03. Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, a brief certificate signed by the
principal executive officer, principal financial officer or principal accounting
officer of the Company, as to the signer's knowledge of the Company's compliance
with all conditions and covenants under this Indenture (determined without
regard to any period of grace or requirement of notice provided herein).
Any other obligor on the Securities shall also deliver to the
Trustee such a certificate as to its compliance with this Indenture within 120
days after the end of each of its fiscal years.
The certificates need not comply with Section 10.04.
SECTION 4.04. SEC Reports.
The Company shall file with the Trustee, within 15 days after the
Company is required to file the same with the SEC, copies of the annual reports
and of the information, documents, and other reports (or such portions of the
foregoing as the SEC may prescribe) which the Company is required to file
<PAGE> 23
-18-
with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934.
Any other obligor on the Securities shall do likewise as to the
above items which it is required to file with the SEC pursuant to those
sections.
ARTICLE 5 -- SUCCESSORS
SECTION 5.01. When Company May Merge, etc.
Unless the Securities Resolution establishing a series otherwise
provides with respect to that series, the Company shall not consolidate with or
merge into, or transfer all or substantially all of its assets to, any person in
any transaction in which the Company is not the survivor unless:
(1) the person is organized under the laws of the United States or
a State thereof or is organized under the laws of a foreign
jurisdiction and consents to the jurisdiction of the courts of
the United States or a State thereof;
(2) the person assumes by supplemental indenture all the
obligations of the Company under this Indenture, the
Securities and any coupons; and
(3) immediately after the transaction no Default exists.
The successor shall be substituted for the Company, and thereafter
all obligations of the Company under this Indenture, the Securities and any
coupons shall terminate.
ARTICLE 6 -- DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
Unless the Securities Resolution otherwise provides, an "EVENT OF
DEFAULT" on a series occurs if:
(1) the Company defaults in any payment of interest on any
Securities of the series when the same
<PAGE> 24
-19-
becomes due and payable and the Default continues for a period
of 60 days;
(2) the Company defaults in the payment of the principal and
premium, if any, of any Securities of the series when the same
becomes due and payable at maturity or upon redemption,
acceleration or otherwise, and such default shall continue for
five or more days;
(3) the Company defaults in the payment or satisfaction of any
sinking fund obligation with respect to any Securities of the
series as required by the Securities Resolution establishing
such series and the Default continues for a period of 60 days;
(4) the Company defaults in the performance of any of its other
agreements applicable to the series and the Default continues
for 90 days after the notice specified below;
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian for it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors;
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary
case,
(B) appoints a Custodian for the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company;
<PAGE> 25
-20-
and the order or decree remains unstayed and in effect for 60
days; or
(7) there occurs any other Event of Default provided for in the
series.
The term "BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
Federal or State law for the relief of debtors. The term "CUSTODIAN" means any
receiver, trustee, assignee, liquidator or a similar official under any
Bankruptcy Law.
A Default under clause (4) is not an Event of Default until the
Trustee or the Holders of at least 33-1/3% in principal amount of the series
notify the Company of the Default and the Company does not cure the Default
within the time specified after receipt of the notice. The notice must specify
the Default, demand that it be remedied and state that the notice is a "Notice
of Default." If Holders notify the Company of a Default, they shall notify the
Trustee at the same time.
The failure to redeem any Security subject to a Conditional
Redemption is not an Event of Default if any event on which such redemption is
so conditioned does not occur and is not waived before the scheduled redemption
date.
SECTION 6.02. Acceleration.
If an Event of Default occurs and is continuing on a series, the
Trustee by notice to the Company, or the Holders of at least 33-1/3% in
principal amount of the series by notice to the Company and the Trustee, may
declare the principal of and accrued interest on all the Securities of the
series to be due and payable immediately. Discounted Debt Securities may provide
that the amount of principal due upon acceleration is less than the stated
principal amount.
The Holders of a majority in principal amount of the series by
notice to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default on the series have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing on a series, the
Trustee may pursue any available remedy to collect
<PAGE> 26
-21-
principal or interest then due on the series, to enforce the performance of any
provision applicable to the series, or otherwise to protect the rights of the
Trustee and Holders of the series.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or coupons or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Unless the Securities Resolution otherwise provides, the Holders of
a majority in principal amount of a series by notice to the Trustee may waive an
existing Default on the series and its consequences except:
(1) a Default in the payment of the principal of or interest on
the series, or
(2) a Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Securityholder
affected.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of a series may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or of exercising any trust or power conferred on the Trustee,
with respect to the series. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, is unduly prejudicial to
the rights of other Securityholders or if the Trustee shall determine that the
action or direction might involve the Trustee in personal liability.
SECTION 6.06. Limitation on Suits.
A Securityholder of a series may pursue a remedy with respect to the
series only if:
(1) the Holder gives to the Trustee notice of a continuing Event
of Default on the series;
<PAGE> 27
-22-
(2) the Holders of at least 33-1/3% in principal amount of the
series make a request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the series do not give the Trustee a
direction inconsistent with such request.
A Securityholder may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. Collection Suit by Trustee.
If an Event of Default in payment of interest, principal or sinking
fund specified in Section 6.01(1), (2) or (3) occurs and is continuing on a
series, the Trustee may recover judgment in its own name and as trustee of an
express trust against the Company for the whole amount of principal and interest
remaining unpaid on the series.
SECTION 6.08. Priorities.
If the Trustee collects any money for a series pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.06;
Second: to Securityholders of the series for amounts due and unpaid
for principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable for principal and interest,
respectively; and
Third: to the Company.
<PAGE> 28
-23-
The Trustee may fix a payment date for any payment to
Securityholders.
ARTICLE 7 -- TRUSTEE
Section 7.01. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided
by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affect the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 7.02. Rights of Trustee.
(1) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter
stated in the document.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel.
The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on the Certificate or
Opinion.
(3) The Trustee may act through agents, attorneys, custodians and
nominees and shall not be responsible for the misconduct or
negligence of any agent, attorney, custodian or nominee
appointed with due care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
<PAGE> 29
-24-
(5) The Trustee may refuse to perform any duty or exercise any
right or power which it reasonably believes may expose it to
any loss, liability or expense unless it receives indemnity
satisfactory to it against such loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the
Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by
law.
(7) The Trustee shall have no duty with respect to a Default
unless it has actual knowledge of the Default. As used herein,
the term "actual knowledge" means the actual fact or statement
of knowing, without any duty to make any investigation with
regard thereto.
(8) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized
and within its powers.
(9) Any Agent shall have the same rights and be protected to the
same extent as if it were Trustee.
(10) The Trustee shall not be required to give any bond or surety
in respect of the performance of its powers and duties
hereunder.
(11) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities or coupons and may otherwise deal with the
Company or an Affiliate with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights.
<PAGE> 30
-25-
SECTION 7.01. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities or any coupons; it shall not be accountable
for the Company's use of the proceeds from the Securities; it shall not be
responsible for any statement in the Securities or any coupons other than its
authentication.
SECTION 7.05. Notice of Defaults.
If a Default occurs and is continuing on a series and if the Trustee
has actual knowledge of such Default, the Trustee shall mail a notice of the
Default within 90 days after it occurs to Holders of Registered Securities of
the series. Except in the case of a Default in payment on a series, the Trustee
may withhold the notice if and so long as a committee of its Trust Officers in
good faith determines that withholding the notice is in the interest of Holders
of the series. The Trustee shall withhold notice of a Default described in
Section 6.01(4) until at least 90 days after it occurs.
SECTION 7.02. Reports by Trustee to Holders.
Any report required by TIA Section 313(a) to be mailed to
Securityholders shall be mailed by the Trustee on or before July 15 of each
year.
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange on which any Securities are
listed. The Company shall notify the Trustee when any Securities are listed on a
stock exchange.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee and hold it harmless against
any loss or liability incurred by it in connection with the acceptance or
administration of the trust or trusts hereunder. The Trustee shall notify the
Company
<PAGE> 31
-26-
promptly of any claim for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or willful
misconduct.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities and any coupons on all money
or property held or collected by the Trustee, except that held in trust to pay
principal or interest on particular securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(5) or (6) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section shall survive any termination or
discharge of this Indenture (including without limitation any termination under
any Bankruptcy Law) and the resignation or removal of the Trustee.
SECTION 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee with the Company's
consent.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with TIA Section 310(a)
or Section 310(b) or with Section 7.09;
(2) the Trustee is adjudged a bankrupt or an insolvent;
<PAGE> 32
-27-
(3) a Custodian or other public officer takes charge of the
Trustee or its property;
(4) the Trustee becomes incapable of acting; or
(5) an event of the kind described in Section 6.01(5) or (6)
occurs with respect to the Trustee.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with TIA Section 310(a) or Section
310(b) or with Section 7.09, any Securityholder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Registered Securities. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.06.
SECTION 7.0903. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10. Trustee's Capital and Surplus.
The Trustee, or the bank holding company of which the Trustee is a
wholly owned Subsidiary, at all times shall have a combined capital and surplus
of at least $50,000,000 as set
<PAGE> 33
-28-
forth in its most recent published report of financial condition.
ARTICLE 8 -- DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance.
Securities of a series may be defeased in accordance with their
terms and, unless the Securities Resolution otherwise provides, in accordance
with this Article.
The Company at any time may terminate as to a series all of its
obligations under this Indenture, the Securities of the series and any related
coupons ("legal defeasance option"). The Company at any time may terminate as to
a series its obligations, if any, under any restrictive covenants which may be
applicable to a particular series ("covenant defeasance option"). However, in
the case of the legal defeasance option, the Company's obligations in Sections
2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.06, 7.07 and 8.04 shall survive until the
Securities of the series are no longer outstanding; thereafter the Company's
obligations in Section 7.06 shall survive.
The Company may exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option. If the Company exercises
its legal defeasance option, a series may not be accelerated because of an Event
of Default. If the Company exercises its covenant defeasance option, a series
may not be accelerated by reference to any restrictive covenants which may be
applicable to such series.
The Trustee upon request shall acknowledge in writing the discharge
of those obligations or restrictions that the Company terminates by defeasance.
SECTION 8.02. Conditions to Defeasance.
The Company may exercise as to a series its legal defeasance option
or its covenant defeasance option if:
(1) the Company irrevocably deposits in trust with the Trustee or
another trustee money or U.S. Government Obligations;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of inde-
<PAGE> 34
-29-
pendent accountants expressing their opinion that the payments
of principal and interest when due on the deposited
noncallable U.S. Government Obligations without reinvestment
plus any deposited money without investment will provide cash
at such times and in such amounts as will be sufficient to pay
principal and interest when due on all the Securities of the
series to maturity or redemption, as the case may be;
(3) the Company deliver to the Trustee an Officers' certificate
stating that immediately after the deposit no Default exists;
(4) the Company deliver an Officers' Certificate stating that the
deposit does not constitute a default under any other
agreement binding on the Company;
(5) the deposit does not cause the Trustee to have a conflicting
interest under TIA Section 310(a) or Section 310(b) as to
another series;
(6) the Company delivers to the Trustee an Opinion of Counsel to
the effect that Holders of the series will not recognize
income, gain or loss for Federal income tax purposes as a
result of the defeasance; and
(7) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.01(5) or (6) occurs
that is continuing at the end of the period.
Before or after a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations of (i) the
United States or (ii) an agency or instrumentality of the United States, the
payment of which is unconditionally guaranteed by the United States, which, in
either case, have the full faith and credit of the United States pledged for
payment and which are not callable at the issuer's option, or certificates
representing an ownership interest in such obligations.
<PAGE> 35
-30-
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.02. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal and interest on
Securities of the defeased series.
SECTION 8.04. Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over to the
Company upon request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon
written request any money held by them for the payment of principal or interest
that remains unclaimed for two years. After payment to the Company,
Securityholders entitled to the money must look to the Company for payment as
unsecured general creditors unless an abandoned property law designates another
person and all liability of the Trustee and paying agent with respect to such
money shall cease.
ARTICLE 9 -- AMENDMENTS
SECTION 9.01. Without Consent of Holders.
The Company and the Trustee may amend this Indenture, the Securities
or any coupons without the consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 5.01(2).
(3) to provide that specific provisions of this Indenture shall
not apply to a series not previously issued;
(4) to create a series and establish its terms;
(5) to provide for a separate Trustee for one or more series; or
<PAGE> 36
-31-
(6) to make any change that does not materially adversely affect
the rights of any Securityholder.
SECTION 9.02. With Consent of Holders.
Unless the Securities Resolution otherwise provides, the Company and
the Trustee may amend this Indenture, the Securities and any coupons with the
written consent of the Holders of a majority in principal amount of the
Securities of all series affected by the amendment voting as one class. However,
without the consent of each Securityholder affected, an amendment under this
Section may not:
(1) reduce the amount of Securities whose Holders must consent to
an amendment;
(2) reduce the interest on or change the time for payment of
interest on any Security;
(3) change the fixed maturity of any Security;
(4) reduce the principal of any non-Discounted Debt Security or
reduce the amount of principal of any Discounted Debt Security
that would be due upon an acceleration thereof;
(5) change the currency in which principal or interest on a
Security is payable;
(6) make any change that materially adversely affects the right to
convert any Security; or
(7) make any change in Section 6.04 or 9.02, except to increase
the amount of Securities whose Holders must consent to an
amendment or waiver or to provide that other provisions of
this Indenture cannot be amended or waived without the consent
of each Securityholder affected thereby.
An amendment of a provision included solely for the benefit of one
or more series does not affect Securityholders of any other series.
Securityholders need not consent to the exact text of a proposed
amendment or waiver; it is sufficient if they consent to the substance thereof.
<PAGE> 37
-32-
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment pursuant to Section 9.01 or 9.02 shall be set forth
in a supplemental indenture (except any amendment pursuant to Section 9.01(4),
which may be set forth in a Securities Resolution) that complies with the TIA.
If a provision of the TIA requires or permits a provision of this
Indenture and the TIA provision is amended, then the Indenture provision shall
be automatically amended to like effect.
SECTION 9.04. Effect of Consents.
An amendment or waiver becomes effective in accordance with its
terms and thereafter binds every Securityholder entitled to consent to it.
A consent to an amendment or waiver by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security that
evidences the same debt as the consenting Holder's Security. Any Holder or
subsequent Holder may revoke the consent as to his Security if the Trustee
receives notice of the revocation before the amendment or waiver becomes
effective.
The Company may fix a record date for the determination of Holders
of Registered Securities entitled to give a consent. The record date shall not
be less than 10 nor more than 60 days prior to the first written solicitation of
Securityholders.
SECTION 9.05. Notation on or Exchange of Securities.
The Company may place an appropriate notation about an amendment or
waiver on any Security thereafter authenticated. The Company may issue in
exchange for affected Securities and the Trustee shall authenticate new
Securities that reflect the amendment or waiver.
SECTION 9.06. Trustee Protected.
The Trustee need not sign any supplemental indenture that adversely
affects its rights. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment or supplement or waiver
authorized pursuant to this Article is authorized or permitted
<PAGE> 38
-33-
by this Indenture, and that such amendment or supplement or waiver constitutes
the legal, valid and binding obligation of the Company.
ARTICLE 10 -- MISCELLANEOUS
SECTION 10.01. Trust Indenture Act.
The provisions of TIA Sections 310 through 317 that impose
duties on any person (including the provisions automatically deemed included
herein unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not expressly set forth herein.
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
SECTION 10.02. Notices.
Any notice by one party to another is duly given if in writing and
delivered in person, sent by facsimile transmission confirmed by mail or mailed
by first-class mail to the other's address shown below:
Company:
Alpharma Inc.
One Executive Drive
Fort Lee, New Jersey 07024
Fax: (201) 947-5541
Trustee:
[ADDRESS OF TRUSTEE]
A party by notice to the other parties may designate additional or
different addresses for subsequent notices.
Any notice mailed to a Securityholder shall be mailed to his address
shown on the register kept by the Registrar or on the list referred to in
Section 2.06. Failure to mail a no-
<PAGE> 39
-34-
tice to a Securityholder or any defect in a notice mailed to a Securityholder
shall not affect the sufficiency of the notice mailed to other Securityholders
or the sufficiency of any published notice.
If a notice is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice to Securityholders, it shall mail a
copy to the Trustee and each Agent at the same time.
If in the Company's opinion it is impractical to mail a notice
required to be mailed or to publish a notice required to be published, the
Company may give such substitute notice as the Trustee approves. Failure to
publish a notice as required or any defect in it shall not affect the
sufficiency of any mailed notice.
All notices shall be in the English language, except that any
published notice may be in an official language of the country of publication.
A "notice" includes any communication required by this Indenture.
SECTION 10.03. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall if so requested furnish
to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied
with.
<PAGE> 40
-35-
SECTION 10.04. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 10.05. Rules by Company and Agents.
The Company may make reasonable rules for action by or a meeting of
Securityholders. An Agent may make reasonable rules and set reasonable
requirements for its functions.
SECTION 10.06. No Lien Created, etc.
Except as provided in Section 7.06, this Indenture and the
Securities do not create a Lien, charge or encumbrance on any property of the
Company or any Subsidiary.
SECTION 10.07. Legal Holidays.
A "LEGAL HOLIDAY" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open. If a payment date is a Legal Holiday
at a place of payment, unless the Securities Resolution establishing a series
otherwise provides with respect to Securities of the series, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
<PAGE> 41
-36-
SECTION 10.08. No Recourse Against Others.
All liability described in the Securities of any director, officer,
employee or stockholder, as such, of the Company is waived and released.
SECTION 10.09. Duplicate Originals.
The parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
SECTION 10.10. Governing Law.
The laws of the State of New York shall govern this Indenture, the
Securities and any coupons, unless federal law governs.
<PAGE> 42
S-1
SIGNATURES
Dated: , ALPHARMA INC.
By_______________________________________
Name:
Title:
Dated: , [TRUSTEE]
By_______________________________________
Name:
Title:
<PAGE> 43
EXHIBIT A
A Form of Registered Security
No. $
ALPHARMA INC.
[Title of Security]
Alpharma Inc.
promises to pay to
or registered assigns
the principal sum of Dollars on ,
Interest Payment Dates:
Record Dates:
Dated:
ALPHARMA INC.
by
(SEAL)_____________________________________
Authenticated: Chairman of the Board
[Name of Trustee], as
Trustee
By
_____________________ ____________________________________
Authorized Signature Vice President
A-1
<PAGE> 44
ALPHARMA INC.
[Title of Security]
[Explanatory Notes follow Exhibit B]
1. INTEREST.(1)
Alpharma Inc. ("Company"), a corporation organized and existing
under the laws of the State of Delaware, promises to pay interest on
the principal amount of this Security at the rate per annum shown
above. The Company will pay interest on and of
each year commencing , 19__. Interest on the
Securities will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from ,
19__. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT.(2)
The Company will pay interest on the Securities to the persons who
are registered holders of Securities at the close of business on the
record date for the next interest payment date, except as otherwise
provided in the Indenture. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay
principal and interest in money of the United States that at the
time of payment is legal tender for payment of public and private
debts. The Company may pay principal and interest by check payable
in such money. It may mail an interest check to a holder's
registered address.
3. AGENTS.
Initially, Attention: , will
act as Paying Agent and Registrar. The Company may change any Paying
Agent or Registrar without notice or provide for more than one such
agent. The Company or any Affiliate may act in any such capacity.
4. INDENTURE.
The Company issued the securities of this series ("Securities")
under an Indenture dated as of
A-2
<PAGE> 45
, ("Indenture") between the Company and
("Trustee"). The terms of the Securities include
those stated in the Indenture and in the Securities Resolution
creating the Securities and those made part of the Indenture by the
Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb), as
amended. Securityholders are referred to the Indenture, the
Securities Resolution and the Act for a statement of such terms.
5. OPTIONAL REDEMPTION.(3)
On or after , the Company may redeem all the
Securities at any time or some of them from time to time at the
following redemption prices (expressed in percentages of principal
amount), plus accrued interest to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
and thereafter at 100%.
6. MANDATORY REDEMPTION.(4)
The Company will redeem $ principal amount of Securities
on and on each thereafter through
at a redemption price of 100% of principal
amount, plus accrued interest to the redemption date.(5) The Company
may reduce the principal amount of Securities to be redeemed
pursuant to this paragraph by subtracting 100% of the principal
amount (excluding premium) of any Securities (i) that the Company
has acquired or that the Company has redeemed other than pursuant to
this paragraph and (ii) that the Company has delivered to the
Registrar for cancellation. The Company may so subtract the same
Security only once.
7. ADDITIONAL OPTIONAL REDEMPTION.(6)
In addition to redemptions pursuant to the above paragraph(s), the
Company may redeem not more than $ principal amount of
Securities on and on each thereafter
A-3
<PAGE> 46
through at a redemption price of 100% of principal
amount, plus accrued interest to the redemption date.
8. NOTICE OF REDEMPTION.(7)
Notice of redemption will be mailed at least 30 days before the
redemption date to each holder of Securities to be redeemed at his
registered address.
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such redemption as
described in such notice ("Conditional Redemption") and such notice
of Conditional Redemption shall be of no effect unless all such
conditions to the redemption have occurred before such date or have
been waived by the Company.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Securities are in registered form without coupons in
denominations of $1,0008 and whole multiples of $1,000. The transfer
of Securities may be registered and Securities may be exchanged as
provided in the Indenture. The Trustee may require a holder, among
other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or the
Indenture. The Trustee need not exchange or register the transfer of
any Security or portion of a Security selected for redemption. Also,
it need not exchange or register the transfer of any Securities for
a period of 15 days before a selection of Securities to be redeemed.
10. PERSONS DEEMED OWNERS.
The registered holder of a Security may be treated as its owner for
all purposes.
11. AMENDMENTS AND WAIVERS.
Subject to certain exceptions, the Indenture or the Securities may
be amended with the consent of the holders of a majority in
principal amount of the securities of all series affected by the
amendment.(9) Subject to certain exceptions, a default on a series
A-4
<PAGE> 47
may be waived with the consent of the holders of a majority in
principal amount of the series.
Without the consent of any Securityholder, the Indenture or the
Securities may be amended, among other things, to cure any
ambiguity, omission, defect or inconsistency; to provide for
assumption of Company obligations to Securityholders; or to make any
change that does not materially adversely affect the rights of any
Securityholder.
12. RESTRICTIVE COVENANTS.(10)
The Securities are unsecured general obligations of the Company
limited to $ principal amount. The Indenture does not limit
other unsecured debt.
13. SUCCESSORS.
When a successor assumes all the obligations of the Company under
the Securities and the Indenture, the Company will be released from
those obligations.
14. DEFEASANCE PRIOR TO REDEMPTION OR MATURITY.(11)
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the
Indenture if the Company deposits with the Trustee money or U.S.
Government Obligations for the payment of principal and interest on
the Securities to redemption or maturity. U.S. Government
Obligations are securities backed by the full faith and credit of
the United States of America or certificates representing an
ownership interest in such Obligations.
15. DEFAULTS AND REMEDIES.
An Event of Default(12) includes: default for 60 days in payment of
interest on the Securities; default in payment of principal on the
Securities; default for 60 days in payment or satisfaction of any
sinking fund obligation; default by the Company for a specified
period after notice to it in the performance of any of its other
agreements applicable to the Securities; certain events of
bankruptcy or insolvency; and
A-5
<PAGE> 48
any other Event of Default provided for in the series. If an Event
of Default occurs and is continuing, the Trustee or the holders of
at least 33-1/3% in principal amount of the Securities may declare
the principal(13) of all the Securities to be due and payable
immediately. Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, holders
of a majority in principal amount of the Securities may direct the
Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing default
(except a default in payment of principal or interest) if it
determines that withholding notice is in their interests. The
Company must furnish an annual compliance certificate to the
Trustee.
16. TRUSTEE DEALINGS WITH COMPANY.
, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and
may otherwise deal with the Company or its Affiliates, as if it were
not Trustee.
17. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
18. AUTHENTICATION.
This Security shall not be valid until authenticated by a manual
signature of the Registrar.
A-6
<PAGE> 49
19. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Securityholder
or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entirety), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE AND THE SECURITIES RESOLUTION WHICH
CONTAINS THE TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO:
ALPHARMA INC., ONE EXECUTIVE DRIVE, FORT LEE, NEW JERSEY 07024, ATTENTION:
TREASURER.
A-7
<PAGE> 50
EXHIBIT B
A Form of Bearer Security
No. $
ALPHARMA INC.
[Title of Security]
[Explanatory Notes follow ]
Alpharma Inc.
promises to pay to bearer
the principal sum of Dollars on ,
Interest Payment Dates:
Dated:
ALPHARMA INC.
(SEAL) by
Authenticated: ________________________________
Chairman of the Board
[Name of Trustee], as
Trustee
By
____________________________ ________________________________
Authorized Signature Vice President
B-1
<PAGE> 51
ALPHARMA INC.
[Title of Security]
1. INTEREST.(1)
Alpharma Inc. ("Company"), a corporation organized and existing
under the laws of the State of Delaware, promises to pay to bearer
interest on the principal amount of this Security at the rate per
annum shown above. The Company will pay interest on and of
each year commencing , 19__. Interest on the Securities
will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from , 19__. Interest
will be computed on the basis of a 360-day year of twelve 30-day
months.
2. METHOD OF PAYMENT.(2)
Holders must surrender Securities and any coupons to a Paying Agent
to collect principal and interest payments. The Company will pay
principal and interest in money of the United States that at the
time of payment is legal tender for payment of public and private
debts. The Company may pay principal and interest by check payable
in such money.
3. AGENTS.
Initially, , Attention: , will
act as Paying Agent and Registrar. The Company may change any Paying
Agent or Registrar without notice or provide for more than one such
agent. The Company or any Affiliate may act in any such capacity.
4. INDENTURE.
The Company issued the securities of this series ("Securities")
under an Indenture dated as of , ("Indenture") between
the Company and ("Trustee"). The terms of the Securities
include those stated in the Indenture and the Securities Resolution
and those made part of the Indenture by the Trust Indenture Act of
1939 (15 U.S.
B-2
<PAGE> 52
Code Sections 77aaa-77bbbb), as amended. Securityholders are
referred to the Indenture, the Securities Resolution and the Act for
a statement of such terms.
5. OPTIONAL REDEMPTION.(3)
On or after , the Company may redeem all the Securities
at any time or some of them from time to time at the following
redemption prices (expressed in percentages of principal amount),
plus accrued interest to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
and thereafter 100%.
6. MANDATORY REDEMPTION.(4)
The Company will redeem $ principal amount of Securities
on and on each thereafter through at
a redemption price of 100% of principal amount, plus accrued
interest to the redemption date.(5) The Company may reduce the
principal amount of Securities to be redeemed pursuant to this
paragraph by subtracting 100% of the principal amount (excluding
premium) of any Securities (i) that the Company has acquired or that
the Company has redeemed other than pursuant to this paragraph and
(ii) that the Company has delivered to the Registrar for
cancellation. The Company may so subtract the same Security only
once.
7. ADDITIONAL OPTIONAL REDEMPTION.(6)
In addition to redemptions pursuant to the above paragraph(s), the
Company may redeem not more than $ principal amount of
Securities on and on each thereafter through
at a redemption price of 100% of principal amount, plus accrued
interest to the redemption date.
B-3
<PAGE> 53
8. NOTICE OF REDEMPTION.(7)
Notice of redemption will be published once in an Authorized
Newspaper in the City of New York and if the Securities are listed
on any stock exchange located outside the United States and such
stock exchange so requires, in any other required city outside the
United States at least 30 days before the redemption date. Notice of
redemption also will be mailed to holders who have filed their names
and addresses with the Transfer Agent within the two preceding
years. A holder of Securities may miss important notices if he fails
to maintain his name and address with the Transfer Agent.
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such redemption as
described in such notice ("Conditional Redemption") and such notice
of Conditional Redemption shall be of no effect unless all such
conditions to the redemption have occurred before such date or have
been waived by the Company.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Securities are in bearer form with coupons in denominations of
$5,0008 and whole multiples of $5,000. The Securities may be
transferred by delivery and exchanged as provided in the Indenture.
Upon an exchange, the Trustee may require a holder, among other
things, to furnish appropriate documents and to pay any taxes and
fees required by law or the Indenture. The Trustee need not exchange
any Security or portion of a Security selected for redemption. Also,
it need not exchange any Securities for a period of 15 days before a
selection of Securities to be redeemed.
10. PERSONS DEEMED OWNERS.
The holder of a Security or coupon may be treated as its owner for
all purposes.
11. AMENDMENTS AND WAIVERS.
Subject to certain exceptions, the Indenture or the Securities may
be amended with the consent of the
B-4
<PAGE> 54
holders of a majority in principal amount of the securities of all
series affected by the amendment.9 Subject to certain exceptions, a
default on a series may be waived with the consent of the holders of
a majority in principal amount of the series.
Without the consent of any Securityholder, the Indenture or the
Securities may be amended, among other things, to cure any
ambiguity, omission, defect or inconsistency; to provide for
assumption of Company obligations to Securityholders; or to make any
change that does not materially adversely affect the rights of any
Securityholder.
12. RESTRICTIVE COVENANTS.(10)
The Securities are unsecured general obligations of the Company
limited to $ principal amount. The Indenture does not
limit other unsecured debt.
13. SUCCESSORS.
When a successor assumes all the obligations of the Company under
the Securities, any coupons and the Indenture, the Company will be
released from those obligations.
14. DEFEASANCE PRIOR TO REDEMPTION OR MATURITY.(11)
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities, any coupons and
the Indenture if the Company deposits with the Trustee money or U.S.
Government Obligations for the payment of principal and interest on
the Securities to redemption or maturity. U.S. Government
Obligations are securities backed by the full faith and credit of
the United States of America or certificates representing an
ownership interest in such Obligations.
15. DEFAULTS AND REMEDIES.
An Event of Default(12) includes: default for 60 days in payment of
interest on the Securities; default in payment of principal on the
Securities; default for 60 days in payment or satisfaction of any
sinking
B-5
<PAGE> 55
fund obligation; default by the Company for a specified period after
notice to it in the performance of any of its other agreements
applicable to the Securities; certain events of bankruptcy or
insolvency; and any other Event of Default provided for in the
series. If an Event of Default occurs and is continuing, the Trustee
or the holders of at least 33-1/3% in principal amount of the
Securities may declare the principal(13) of all the Securities to be
due and payable immediately.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, holders of a majority in
principal amount of the Securities may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing default (except a default
in payment of principal or interest) if it determines that
withholding notice is in their interests. The Company must furnish
annual compliance certificates to the Trustee.
16. TRUSTEE DEALINGS WITH COMPANY.
, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and
may otherwise deal with the Company or its Affiliates, as if it were
not Trustee.
17. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
B-6
<PAGE> 56
18. AUTHENTICATION.
This Security shall not be valid until authenticated by a manual
signature of the Registrar.
19. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Securityholder
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entirety), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE AND THE SECURITIES RESOLUTION WHICH
CONTAINS THE TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO:
ALPHARMA INC., ONE EXECUTIVE DRIVE, FORT LEE, NEW JERSEY 07024, ATTENTION:
TREASURER.
B-7
<PAGE> 57
[FACE OF COUPON]
...............
[$]............
Due............
ALPHARMA INC.
[Title of Security]
Unless the Security attached to this coupon has been called for
redemption, Alpharma Inc. (the "Company") will pay to bearer, upon surrender,
the amount shown hereon when due. This coupon may be surrendered for payment to
any Paying Agent listed on the back of this coupon unless the Company has
replaced such Agent. Payment may be made by check. This coupon represents
months' interest.
ALPHARMA INC.
By_______________________________________
[REVERSE OF COUPON]
PAYING AGENTS
B-8
<PAGE> 58
NOTES TO EXHIBITS A AND B
(1) If the Security is not to bear interest at a fixed rate per annum,
insert a description of the manner in which the rate of interest is to
be determined. If the Security is not to bear interest prior to
maturity, so state.
(2) If the method or currency of payment is different, insert a statement
thereof.
(3) If applicable. A restriction on redemption or refunding or any provision
applicable to its redemption other may be added.
(4) Such provisions as are applicable, if any.
(5) If the Security is a Discounted Debt Security, insert amount to be
redeemed or method of calculating such amount.
(6) If applicable. Also insert, if applicable, provisions for repayment of
Securities at the option of the Securityholder.
(7) If applicable.
(8) If applicable. Insert additional or different denominations and terms as
appropriate.
(9) If different terms apply, insert a brief summary thereof.
(10) If applicable. If additional or different covenants apply, insert a
brief summary thereof.
(11) If applicable. If different defeasance terms apply, insert a brief
summary thereof.
(12) If additional or different Events of Default apply, insert a brief
summary thereof.
(13) If the Security is a Discounted Debt Security, set forth the amount due
and payable upon an Event of Default.
Note: U.S. tax law may require certain legends on Discounted Debt and Bearer
Securities.
1
<PAGE> 59
EXHIBIT C
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
-----------------------------------------
: :
: :
-----------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________ agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
Date: _______________ Your Signature:________________________
________________________
(Sign exactly as your name appears on the other side of this Security)
C-1
<PAGE> 1
EXHIBIT 4.1B
SECURITIES RESOLUTION NO.
OF
ALPHARMA INC.
I, , Secretary of Alpharma Inc. (the "Company"), do hereby
certify that the attached is a true and correct copy of Securities Resolution
No. duly adopted by the of the Company pursuant to authorization delegated
to him by the Committee of the Board of Directors of the company at
a meeting called and held on the day of ; that a quorum of said Board
Committee was present at said meeting and voted throughout; and I do further
certify that said resolution has not been rescinded and remains in full force
and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
corporate seal of ALPHARMA INC. this day of .
By:_________________________________
Name:
Title:
[CORPORATE SEAL]
<PAGE> 2
[ ]% [ ] NOTES DUE [ ]
SECURITIES RESOLUTION NO. [ ]
OF
ALPHARMA INC.
The actions described below are taken by the Board of Directors (the
"Board") of ALPHARMA INC. (the "Company"), or by an Officer or committee of
Officer or committee of Officers pursuant to Board delegation, in accordance
with resolutions adopted by the Board as of [ ], resolutions adopted by the
Committee of the Board as of [ ], and Section 2.02 of the Indenture dated as of
[ ] (the "Indenture") between the Company and [ ], Trustee. Terms used herein
and not defined have the same meaning given such terms in the Indenture.
RESOLVED, that a new series of Debt Securities is authorized as follows:
1. The title of the series is [ ]% [ ] Notes due [ ]
("Notes").
2. The form of the Notes shall be substantially in the form of Exhibit
1 hereto.
3. The Notes shall have the terms set forth in Exhibit 1.
4. The Notes shall be sold to the underwriter(s) named in the
Prospectus Supplement dated [ ] on the following terms:
Price to Public:
Underwriting Discount:
Closing Date:
This Securities Resolution shall be effect as of [ ].
<PAGE> 1
Exhibit 5.1
August 27, 1999
Alpharma Inc.
One Executive Drive
Fort Lee, NJ 07024
Ladies and Gentlemen:
We are acting as special counsel to Alpharma Inc., a Delaware
corporation (the "Corporation"), in connection with its registration statement
on Form S-3 (the "Registration Statement"), being filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the
"Securities Act"), on the date hereof in connection with the proposed offer and
sale of the following securities (collectively, the "Securities") of the
Corporation having an aggregate initial offering price of up to $250,000,000:
(i) senior debt securities (the "Senior Debt Securities");
(ii) subordinated debt securities (the "Subordinated Debt
Securities," and together with the Senior Debt Securities, the
"Debt Securities"); and
(iii) Class A common stock, par value $.20 per share (the "Common
Stock"), of the Corporation.
The Securities may be offered in separate series, in amounts, at
prices, and on terms to be set forth in the prospectus and one or more
supplements to the prospectus (collectively, the "Prospectus") constituting a
part of the Registration Statement, and in the Registration Statement.
The Debt Securities are to be issued under one or more indentures
generally in the form incorporated by reference as Exhibit 4.1 to the
Registration Statement (the "Indentures").
Certain terms of the Securities to be issued by the Corporation from
time to time will be approved by the Board of Directors of the Corporation or a
committee thereof or certain authorized officers of the Corporation as part of
the corporate action taken and to be taken (the "Corporate Proceedings") in
connection with issuance of the Securities. We have examined or are otherwise
familiar with the Amended and Restated Certificate of Incorporation of the
Corporation, the Bylaws of the Corporation, as amended, the Registration
Statement, such of the Corporate Proceedings as have occurred as of the date
hereof, and such other documents, records and instruments as we have deemed
necessary or appropriate for the purposes of this opinion letter.
<PAGE> 2
For purposes of this opinion letter, we have assumed the authenticity
of all documents submitted to us as originals, the conformity to the originals
of all documents submitted to us as copies and the authenticity of the originals
of all documents submitted to us as copies. We have also assumed the legal
capacity of all natural persons, 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 other than
the Corporation and the due authorization, execution and delivery of all
documents by the parties thereto other than the Corporation. As to any facts
material to the opinions expressed herein, we have relied upon the statements
and representations of officers and other representations of the Corporation and
others.
Our advice on every legal issue addressed in this letter is based
exclusively on the internal laws of the State of New York, the General
Corporation Law of the State of Delaware and the federal law of the United
States of America, and represents our opinion as to how that issue would be
resolved were it to be considered by the highest court in the jurisdiction which
enacted such law. The manner in which any particular issue would be treated in
any actual court case would depend in part on facts and circumstances particular
to the case, and this opinion letter is not intended to guarantee the outcome of
any legal dispute which may arise in the future.
Based upon and subject to the foregoing qualifications, assumptions and
limitations and the further limitations set forth below, we hereby advise you
that in our opinion:
(i) the Debt Securities, when authorized and sold as contemplated
in the Registration Statement, will be validly issued by the
Corporation and will constitute valid and legally binding
obligations of the Corporation, enforceable in accordance with
their terms; and
(ii) the Common Stock, when authorized and sold as contemplated in
the Registration Statement, will be validly issued by the
Corporation and will be duly authorized, fully paid and
non-assessable.
The foregoing opinions assume that (i) the consideration designated in
the applicable Corporate Proceedings for any Common Stock shall have been
received by the Corporation in accordance with applicable law; (ii) the
applicable Indenture shall have been duly authorized, executed and delivered by
all parties thereto other than the Corporation; (iii) the Registration Statement
shall have become effective under the Securities Act; and (iv) the applicable
Indenture shall have become duly qualified under the Trust Indenture Act of
1939, as amended.
Our opinion in paragraph (i) of this opinion letter is subject to: (A)
the effect of bankruptcy, insolvency, fraudulent conveyance and other similar
laws and judicially developed doctrines in this area such as substantive
consolidation and equitable subordination; (B) the effect of general principles
of equity; and (C) other commonly recognized statutory and judicial constraints
on enforceability including statutes of limitations. "General principles of
equity" include but are not limited to: principles which limit the availability
of specific performance and injunctive relief;
2
<PAGE> 3
principles which limit the availability of a remedy under certain circumstances
where another remedy has been elected; principles requiring reasonableness, good
faith and fair dealing in the performance and enforcement of an agreement by the
party seeking enforcement; principles which may permit a party to cure a
material failure to perform its obligations; and principles affording equitable
defenses such as waiver, laches and estoppel. It is possible that some of the
terms of the Debt Securities and the Indenture may not prove enforceable against
the Corporation for reasons other than those listed in this opinion letter
should an actual enforcement action be brought, but (subject to all the
exceptions, qualifications, exclusions and other limitations in this letter)
such unenforceability would not in our opinion prevent the holders of the Debt
Securities from realizing the principal benefits purported to be provided by the
Debt Securities and the Indenture.
We do not find it necessary for the purposes of this opinion, and
accordingly we do not purport to cover herein, the application of the securities
of "Blue Sky" laws of the various states to the Securities.
This opinion letter is limited to the specific issues addressed herein,
and no opinion may be inferred or implied beyond that expressly stated herein.
We assume no obligation to revise or supplement this opinion should the present
laws of the State of New York, the General Corporation Law of the State of
Delaware or the federal law of the United States be changed by legislative
action, judicial decision or otherwise.
We hereby consent to the filing of this opinion letter with the
Commission as Exhibit 5.1 to the Registration Statement. We also consent to the
reference to our firm under the heading "Legal Matters" in the Registration
Statement. In giving this consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933 or the rules and regulations of the Commission.
Very truly yours,
/s/ Kirkland & Ellis
KIRKLAND & ELLIS
3
<PAGE> 1
ALPHARMA INC. AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(In thousands, except for ratio data)
<TABLE>
<CAPTION>
Six months Six months
ended ended
June 30, June 30,
--------------------------------------------------------- ---------- ----------
1994 1995 1996 1997 1998 1998 1999
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Income before provision
for income taxes $ 1,736 $ 30,228 $(16,226) $ 27,750 $ 38,983 $ 13,949 $ 23,987
Add:
Portion of rents representative of
the interest factor 1,838 1,858 2,193 1,942 2,222 1,056 1,104
Interest on indebtedness 15,355 21,993 19,976 18,581 25,613 10,979 16,323
Amortization of debt expense 246 302 302 309 1,313 339 657
Amortization of interest capitalized 313 386 397 380 408 204 230
-------- -------- -------- -------- -------- -------- --------
INCOME AS ADJUSTED $ 19,488 $ 54,767 $ 6,642 $ 48,962 $ 68,539 $ 26,527 $ 42,301
======== ======== ======== ======== ======== ======== ========
FIXED CHARGES
Interest on indebtedness (a) $ 15,355 $ 21,993 $ 19,976 $ 18,581 $ 25,613 $ 10,979 $ 16,323
Interest capitalized (b) 722 318 572 407 744 351 250
Amortization of debt expense (c ) 246 302 302 309 1,313 339 657
Rent expense 5,513 5,574 6,578 5,825 6,665 3,169 3,312
Portion of rents representative of
the interest factor (d) 1,838 1,858 2,193 1,942 2,222 1,056 1,104
-------- -------- -------- -------- -------- -------- --------
Fixed charges (a+b+c+d) $ 18,161 $ 24,471 $ 23,043 $ 21,239 $ 29,892 $ 12,725 $ 18,334
======== ======== ======== ======== ======== ======== ========
RATIO OF EARNINGS TO FIXED CHARGES 1.07 2.24 -- 2.31 2.29 2.08 2.31
======== ======== ======== ======== ======== ======== ========
</TABLE>
<PAGE> 1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 24, 1999 relating to the
financial statements, which appears in Alpharma Inc.'s Annual Report on Form
10-K for the year ended December 31, 1998. We also consent to the reference to
us under the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Florham Park, New Jersey
August 26, 1999
<PAGE> 1
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)
FIRST UNION NATIONAL BANK
(Name of Trustee)
22-1147033
(Jurisdiction of Incorporation or (I.R.S. Employer
Organization if not a U.S. National Bank) Identification No.)
301 SOUTH COLLEGE STREET, CHARLOTTE, NORTH CAROLINA 28288-0630
(Address of Principal Executive Offices) (Zip Code)
ALPHARMA INC.
(Name of Obligor)
DELAWARE 22-2095212
(State of Incorporation) (I.R.S. Employer
Identification No.)
ONE EXECUTIVE DRIVE, FORT LEE, NJ 07024
(Address of Principal Executive Offices) (Zip Code)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT:
Comptroller of the Currency, Washington, D.C. Board of
Governors of the Federal Reserve System, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The Trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING SECURITIES
OF THE TRUSTEE:
COL. A COL. B
------ ------
TITLE OF CLASS AMOUNT OUTSTANDING
Not applicable
ITEM 4. TRUSTEESHIP UNDER OTHER INDENTURES:
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING INFORMATION:
(a) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER
INDENTURE.
Not Applicable
(b) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE
CLAIM THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF
SECTION 310(b)(1) OF THE ACT ARISES AS A RESULT OF THE
TRUSTEESHIP UNDER ANY SUCH OTHER INDENTURE, INCLUDING A
STATEMENT AS TO HOW THE INDENTURE SECURITIES WILL RANK AS
COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER
INDENTURE.
Not Applicable.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR REPRESENTATIVE
OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY EACH SUCH PERSON
HAVING ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH CONNECTION.
Not Applicable
2
<PAGE> 3
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
------ ------ ------ ------
<S> <C> <C> <C>
Name of Owner Title of Class Amount owned Percentage of Voting
beneficially securities represented by
amount given in Col. C.
</TABLE>
Not Applicable
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
------ ------ ------ ------
<S> <C> <C> <C>
Name of Owner Title of Class Amount owned Percentage of Voting
beneficially securities represented by
amount given in Col. C.
</TABLE>
Not Applicable
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR OWNED
BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR THE OBLIGATIONS IN DEFAULT BY
THE TRUSTEE.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
------ ------ ------ ------
<S> <C> <C> <C>
Name of Owner Title of Class Amount owned Percentage of Voting
beneficially securities represented by
amount given in Col. C.
</TABLE>
Not Applicable
ITEM 9. SECURITIES OF THE UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR, FURNISH
THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH UNDERWRITER ANY
OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
3
<PAGE> 4
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
- ------ ------ ------ ------
<S> <C> <C> <C>
NAME OF ISSUER AND TITLE AMOUNT OUTSTANDING AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
OF CLASS OR HELD AS COLLATERAL SECURITY REPRESENTED BY AMOUNT
FOR OBLIGATIONS IN DEFAULT BY GIVEN IN COL. C.
TRUSTEE
</TABLE>
Not Applicable
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR
OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH THE
FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
- ------ ------ ------ ------
<S> <C> <C> <C>
NAME OF ISSUER AND TITLE AMOUNT OUTSTANDING AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
OF CLASS OR HELD AS COLLATERAL SECURITY REPRESENTED BY AMOUNT
FOR OBLIGATIONS IN DEFAULT BY GIVEN IN COL. C.
TRUSTEE
</TABLE>
Not Applicable
- --------------------------------------------------------------------------------
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
- --------------------------------------------------------------------------------
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF THE
TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH PERSON
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
- ------ ------ ------ ------
<S> <C> <C> <C>
NAME OF ISSUER AND TITLE AMOUNT OUTSTANDING AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
OF CLASS OR HELD AS COLLATERAL SECURITY REPRESENTED BY AMOUNT
FOR OBLIGATIONS IN DEFAULT BY GIVEN IN COL. C.
TRUSTEE
</TABLE>
Not Applicable
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE TRUSTEE,
FURNISH THE FOLLOWING INFORMATION:
<TABLE>
<CAPTION>
COL. A COL. B COL. C
- ------ ------ ------
<S> <C> <C>
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE .
</TABLE>
Not Applicable
4
<PAGE> 5
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
None
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE HAS
BEEN DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
None
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Not Applicable
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED
UNDER THE ACT.
Not Applicable
ITEM 16. LISTS OF EXHIBITS.
1* -COPY OF ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
2 -NO CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS IS FURNISHED SINCE THIS AUTHORITY IS CONTAINED IN THE
ARTICLES OF ASSOCIATION OF THE TRUSTEE.
3* -COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE
CORPORATE TRUST POWERS.
4* -COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, AS NOW IN
EFFECT.
5 -NOT APPLICABLE
6 -THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321 (b) OF THE
ACT.
7* -A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE
PUBLISHED PURSUANT TO THE LAW OR THE REQUIREMENTS OF ITS
SUPERVISING OR EXAMINING AUTHORITY.
8 -NOT APPLICABLE
9 -NOT APPLICABLE
- --------------------------------------------------------------------------------
*EXHIBITS THUS DESIGNATED HAVE HERETOFORE BEEN FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION, HAVE NOT BEEN AMENDED SINCE FILING AND ARE INCORPORATED
HEREIN BY REFERENCE (SEE EXHIBIT T-1 REGISTRATION NUMBER 333-79101).
IN ANSWERING ANY ITEM IN THIS STATEMENT OF ELIGIBILITY AND QUALIFICATION WHICH
RELATES TO MATTERS PECULIARLY WITHIN THE KNOWLEDGE OF THE OBLIGOR OR OF ITS
DIRECTORS OR OFFICERS, OR AN UNDERWRITER FOR THE OBLIGOR, THE UNDERSIGNED, FIRST
UNION NATIONAL BANK, HAS RELIED UPON INFORMATION FURNISHED TO IT BY THE OBLIGOR
OR SUCH UNDERWRITER.
5
<PAGE> 6
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939 THE
TRUSTEE, FIRST UNION NATIONAL BANK, A NATIONAL BANKING ASSOCIATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE UNITED STATES, HAS DULY CAUSED THIS STATEMENT OF
ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, ALL IN THE CITY OF MORRISTOWN, AND STATE OF NEW JERSEY, ON THE 18TH
DAY OF AUGUST, 1999.
FIRST UNION NATIONAL BANK
(TRUSTEE)
BY:/S/ CHRISTOPHER E.GOLABEK
-------------------------
VICE PRESIDENT
(CORPORATE SEAL)
6
<PAGE> 7
EXHIBIT T-6
CONSENT OF TRUSTEE
PURSUANT TO THE REQUIREMENTS OF SECTION 321 (b) OF THE TRUST INDENTURE ACT OF
1939, AND IN CONNECTION WITH THE PROPOSED ISSUE OF ALPHARMA INC., WE HEREBY
CONSENT THAT REPORTS OF EXAMINATIONS BY FEDERAL, STATE, TERRITORIAL OR DISTRICT
AUTHORITIES MAY BE FURNISHED BY SUCH AUTHORITIES TO THE SECURITIES AND EXCHANGE
COMMISSION UPON REQUEST THEREFOR.
FIRST UNION NATIONAL BANK
BY: /S/ CHRISTOPHER E. GOLABEK
------------------------------
VICE PRESIDENT
MORRISTOWN, NJ
AUGUST 18, 1999
7
