SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date of report (Date of earliest event reported): June 2, 1999
ALPHARMA INC.
(Exact Name of Registrant as Specified in Charter)
Delaware 1-8593 22-2095212
(State or Other (Commission File (I.R.S. Employer
Jurisdiction of Number) Identification Number)
Incorporation)
One Executive Drive Fort Lee, New Jersey 07024
(Address of Principal Executive Offices) (Zip code)
Registrant's telephone number, including area code:(201)947-7774
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Item 5. Other Events
On June 2, 1999, the Registrant issued an aggregate of
$170,000,000 principal amount of 3% Convertible Senior
Subordinated Notes due 2006 ("Notes") in transactions exempt from
registration under the Securities Act of 1933, as amended. The
Notes will pay cash interest of 3% per annum, calculated on the
initial principal amount of the Notes. The Notes will mature on
June 1, 2006 at a price of 134.104% of the initial principal
amount. The payment of the principal amount of the Notes at
maturity (or earlier, if the Notes are redeemed by the Registrant
prior to maturity), together with cash interest paid over the
term of the Notes, will yield investors 6.875% per annum. The
Notes are redeemable by the Registrant after June 16, 2002.
The Notes will be convertible at any time prior to maturity,
unless previously redeemed, into 31.1429 shares of the
Registrant's Class A Common stock per $1,000 of initial principal
amount of Notes. This ratio results in an initial conversion
price of $32.11 per share. The number of shares into which a Note
is convertible will not be adjusted for the accretion of
principal or for accrued interest.
This transaction was lead managed by Warburg Dillon Read
LLC, with Bear, Stearns & Co. Inc. and Donaldson, Lufkin &
Jenrette Securities Corporation as co-managers. In addition to
these three firms, CIBC World Markets Corp. and SG Cowen
Securities Corporation also acted as initial purchasers.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits
(c) Exhibits.
Exhibit No. Exhibit Description
4.1 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.
4.2 Registration Rights Agreement, dated as of June 2, 1999, by
and among the Registrant and the initial purchases named therein.
99.1 Press Release
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
ALPHARMA INC.
By: \s\ Jeffrey E. Smith
Jeffrey E. Smith
Executive Vice President
and Chief Financial
Officer
Date: June 17, 1999
ALPHARMA INC.
and
FIRST UNION NATIONAL BANK
as
Trustee
INDENTURE
Dated as of June 2, 1999
$170,000,000 Initial Principal Amount 1
3% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2006
1 Plus an additional $25,500,000 issuable upon
exercise of
an over-allotment option.
CROSS-REFERENCE TABLE
TIA
Indenture
Section
Section
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(b) 7.08;
7.10; 13.02
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.05
(b) 13.03
(c) 13.03
313(a) 7.06
(b)(1) N.A.
(b)(2) 7.06
(c) 7.06; 13.02
(d) 7.06
314(a) 4.02
(b) N.A.
(c)(1) 13.04
(c)(2) 13.04
(c)(3) N.A.
(d) N.A.
(e) 13.05
(f) N.A.
315(a) 7.01(b)
(b) 7.05; 13.02
(c) 7.01(a)
(d) 7.01(c)
(e) 6.11
316(a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
317(a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318(a) 13.01
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions. 1
SECTION 1.02. Other Definitions. 6
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act. 7
SECTION 1.04. Rules of Construction. 7
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating. 8
SECTION 2.02. Execution and Authentication. 9
SECTION 2.03. Registrar, Paying Agent and
Conversion Agent. 10
SECTION 2.04. Paying Agent to Hold Money in
Trust. 11
SECTION 2.05. Securityholder Lists. 11
SECTION 2.06. Transfer and Exchange. 11
SECTION 2.07. Replacement Securities. 12
SECTION 2.08. Outstanding Securities. 12
SECTION 2.09. Securities Held by the Company or
an Affiliate. 13
SECTION 2.10. Temporary Securities. 13
SECTION 2.11. Cancellation. 13
SECTION 2.12. Defaulted Interest. 14
SECTION 2.13. CUSIP Numbers. 14
SECTION 2.14. Deposit of Moneys. 14
SECTION 2.15. Book-Entry Provisions for Global
Securities. 14
SECTION 2.16. Special Transfer Provisions. 16
SECTION 2.17. Restrictive Legends. 20
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee. 21
SECTION 3.02. Selection of Securities to Be
Redeemed. 21
SECTION 3.03. Notice of Redemption. 21
SECTION 3.04. Effect of Notice of Redemption. 23
SECTION 3.05. Deposit of Redemption Price. 23
SECTION 3.06. Securities Redeemed in Part. 23
SECTION 3.07. Repurchase at Option of Holder upon
a Change in Control. 23
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities. 27
SECTION 4.02. Maintenance of Office or Agency. 28
SECTION 4.03. Reports to Holders. 29
SECTION 4.04. Compliance Certificate. 29
SECTION 4.05. Stay, Extension and Usury Laws. 29
SECTION 4.06. Corporate Existence. 30
SECTION 4.07. Notice of Default. 30
ARTICLE FIVE
SUCCESSORS
SECTION 5.01. When Company May Merge, etc. 30
SECTION 5.02. Successor Substituted. 31
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. 31
SECTION 6.02. Acceleration. 33
SECTION 6.03. Other Remedies. 33
SECTION 6.04. Waiver of Past Defaults. 34
SECTION 6.05. Control by Majority. 34
SECTION 6.06. Limitation on Suits. 34
SECTION 6.07. Rights of Holders to Receive
Payment. 35
SECTION 6.08. Collection Suit by Trustee. 35
SECTION 6.09. Trustee May File Proofs of Claim. 35
SECTION 6.10. Priorities. 36
SECTION 6.11. Undertaking for Costs. 36
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee. 37
SECTION 7.02. Rights of Trustee. 38
SECTION 7.03. Individual Rights of Trustee. 39
SECTION 7.04. Trustee's Disclaimer. 39
SECTION 7.05. Notice of Defaults. 39
SECTION 7.06. Reports by Trustee to Holders. 39
SECTION 7.07. Compensation and Indemnity. 40
SECTION 7.08. Replacement of Trustee. 41
SECTION 7.09. Successor Trustee by Merger, etc. 42
SECTION 7.10. Eligibility; Disqualification. 42
SECTION 7.11. Preferential Collection of Claims
Against Company. 42
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's
Obligations. 42
SECTION 8.02. Application of Trust Money. 44
SECTION 8.03. Repayment to Company. 44
SECTION 8.04. Reinstatement. 44
ARTICLE NINE
AMENDMENTS
SECTION 9.01. Without Consent of Holders. 45
SECTION 9.02. With Consent of Holders. 45
SECTION 9.03. Compliance with Trust Indenture
Act. 46
SECTION 9.04. Revocation and Effect of Consents. 46
SECTION 9.05. Notation on or Exchange of
Securities. 47
SECTION 9.06. Trustee Protected. 47
ARTICLE TEN
CONVERSION
SECTION 10.01. Conversion Privilege; Restrictive
Legends. 47
SECTION 10.02. Conversion Procedure. 48
SECTION 10.03. Fractional Shares. 49
SECTION 10.04. Taxes on Conversion. 49
SECTION 10.05. Company to Provide Stock. 50
SECTION 10.06. Adjustment for Change in Capital
Stock. 50
SECTION 10.07. Adjustment for Rights to Purchase
Shares Below Market Price. 51
SECTION 10.08. Adjustment for Other Distributions. 54
SECTION 10.09. Voluntary Adjustment. 55
SECTION 10.10. Current Market Price. 55
SECTION 10.11. When Adjustment May Be Deferred. 55
SECTION 10.12. When No Adjustment Required. 56
SECTION 10.13. Notice of Adjustment. 56
SECTION 10.14. Notice of Certain Transactions. 56
SECTION 10.15. Reorganization of the Company. 57
SECTION 10.16. Company Determination Final. 57
SECTION 10.17. Trustee's Disclaimer. 57
ARTICLE ELEVEN
[RESERVED]
ARTICLE TWELVE
SUBORDINATION
SECTION 12.01. Agreement to Subordinate. 58
SECTION 12.02. Certain Definitions. 58
SECTION 12.03. Liquidation; Dissolution;
Bankruptcy. 59
SECTION 12.04. Company Not to Make Payments with
Respect to Securities in Certain Circumstances.
60
SECTION 12.05. Acceleration of Securities. 60
SECTION 12.06. When Distribution Must Be Paid
Over. 61
SECTION 12.07. Notice by Company. 61
SECTION 12.08. Subrogation. 61
SECTION 12.09. Relative Rights. 62
SECTION 12.10. Subordination May Not Be Impaired
by Company. 62
SECTION 12.11. Distribution or Notice to
Representative. 62
SECTION 12.12. Rights of Trustee and Paying Agent. 62
SECTION 12.13. Officers' Certificate. 63
SECTION 12.14. Obligation of Company
Unconditional. 64
SECTION 12.15. Article 12 Not to Prevent Events of
Default. 64
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls. 65
SECTION 13.02. Notices. 65
SECTION 13.03. Communication by Holders with Other
Holders. 66
SECTION 13.04. Certificate and Opinion as to
Conditions Precedent. 66
SECTION 13.05. Statements Required in Certificate
or Opinion. 67
SECTION 13.06. Rules by Trustee and Agents. 67
SECTION 13.07. Legal Holidays. 67
SECTION 13.08. No Recourse Against Others. 68
SECTION 13.09. Duplicate originals. 68
SECTION 13.10. Governing Law. 68
SECTION 13.11. No Adverse Interpretation of Other
Agreements. 68
SECTION 13.12. Successors. 68
SECTION 13.13. Separability. 68
SECTION 13.14. Table of Contents, Headings, etc. 68
INDENTURE dated as of June 2, 1999 between ALPHARMA
INC., a Delaware corporation (the "Company"), and FIRST UNION
NATIONAL BANK, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders
of the Company's 3% Convertible Senior Subordinated Notes Due
2006 (the "Securities").
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
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. For this purpose, "control" shall
mean the power to direct the management and policies of a person
through the ownership of securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent, Conversion
Agent or co-registrar.
"Board of Directors" means the Board of Directors of
the Company or any committee of the Board authorized to act for
it hereunder.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of
capital stock of the Company and all warrants or options to
acquire such capital stock.
"Class A Common Stock" means the Class A Common Stock,
par value $.20 per share, of the Company.
"Class B Common Stock" means the Class B Common Stock,
par value $.20 per share, of the Company.
"Common Stock" means, collectively, the Class A Common
Stock and the Class B Common Stock.
"Company" means the party named as such above until a
successor replaces it pursuant to the applicable provision
hereof and thereafter means the successor.
"Company Request" or "Company Order" means a written
request or order signed on behalf of the Company by its Chairman
of the Board, its President or any Vice President and by its
Treasurer or an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Convertible Subordinated Notes" means $125,000,000
aggregate principal amount of the Company's 5 3/4% Convertible
Subordinated Notes due 2005, convertible into shares of Class A
Common Stock, and $67,850,000 aggregate principal amount of the
Company's 5_% Convertible Subordinated Notes due 2005,
convertible into shares of Class B Common Stock.
"Corporate Trust Office of the Trustee" shall be at
the address of the Trustee specified in Section 12.02 or such
other address as the Trustee may give notice of to the Company.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Depository" means The Depository Trust Company, its
nominees and successors.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Holder" or "Securityholder" means a person in whose
name a Security is registered on the Registrar's books.
"IAI Global Security" means a permanent Global
Security in registered form representing the aggregate initial
principal amount of securities sold to Institutional Accredited
Investors.
"Indenture" means this Indenture as amended or
supplemented from time to time.
"Industrier" means A.L. Industrier AS.
"Institutional Accredited Investor" means an
"accredited investor" within the meaning of 501(a)(1), (2), (3),
or (7) under the Act that is an institutional investor.
"liquidated damages" has the meaning provided in the
Registration Rights Agreement.
"Maturity Date" means June 1, 2006.
"Officer" means the Chairman of the Board, the
President, any Vice President, the Chief Financial Officer, the
Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by
two Officers or by an Officer and an Assistant Treasurer or an
Assistant Secretary of the Company.
"Opinion of Counsel" means a written opinion from
legal counsel who may be an employee of or counsel for the
Company or other counsel reasonably acceptable to the Trustee.
"person" means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or other agency
or political subdivision thereof.
"principal" of a debt security means the principal of
the security plus the premium, if any, on the security.
"QIB" means a "qualified institutional buyer" within
the meaning of Rule 144A under the Act.
"Redemption Price" means the amount payable to the
Holder of a Security (whether payable by reason of a redemption
by the Company in accordance with Article Three, a Change in
Control in accordance with Section 3.07, upon an Event of
Default or on the Maturity Date). The Redemption Price per
$1,000 initial principal amount of Securities will be calculated
in accordance with the following formula, rounded (if necessary)
to three decimal places with 0.0005 being rounded upwards:
Redemption Price = (Previous Redemption Price x (1 +
r/2)d/p) - AI
For purposes of this formula:
Previous Redemption Price = the Redemption Price on
the interest payment date immediately preceding the
date fixed for redemption (or if the Securities are to
be redeemed or repurchased prior to December 1, 1999,
$1,000) as set out below:
Interest Payment Date Redemption Price
December 1, 1999 $1,019.38
June 1, 2000 1,039.42 December
1, 2000 1,060.15
June 1, 2001 1,081.59
December 1, 2001 1,103.77
June 1, 2002 1,126.71
December 1, 2002 1,150.44
June 1, 2003 1,174.99
December 1, 2003 1,200.38
June 1, 2004 1,226.64
December 1, 2004 1,253.81
June 1, 2005 1,281.91
December 1, 2005 1,310.97
June 1, 2006 1,341.04
r = 6 7/8% expressed as a fraction.
d = number of days (as described in the following
sentence) from and including the
immediately preceding interest payment date (or if the
Securities are to be redeemed or repurchased on or before
December 1, 1999 from and including June 2, 1999) to but
excluding the date fixed for redemption. The number of days
elapsed in any one-month period from date of issuance or any
interest payment date shall be deemed to be 30, and the number
of days elapsed in any incomplete month shall be deemed to be
the number of actual days elapsed (not to exceed 30).
p = 180.
AI = accrued interest from the interest payment
date immediately preceding the date fixed for
redemption or the date of issuance, as
applicable.
The calculation of the Redemption Price at any date shall be
made by the Company and provided to the Trustee in an Officers'
Certificate.
"Registration Rights Agreement" means the Registration
Rights Agreement dated as of June 2, 1999 between the Company
and the Initial Purchasers.
"Regulation S" means Regulation S under the
Securities Act.
"Regulation S Global Security" means a permanent
Global Security in registered form representing the aggregate
initial principal amount of Securities sold in reliance on
Regulation S.
"Restricted Security" means a Security that
constitutes a "Restricted Security" within the meaning of
Rule 144(a)(3) under the Securities Act; provided, however,
that the Trustee shall be entitled to request and conclusively
rely on an Opinion of Counsel with respect to whether any
Security constitutes a Restricted Security.
"Rule 144A Global Security" means a permanent Global
Security in registered form representing the aggregate initial
principal amount of Securities sold in reliance on Rule 144A.
"SEC" means the Securities and Exchange Commission.
"Securities" means the 3% Convertible Senior
Subordinated Notes Due 2006 issued by the Company pursuant to
this Indenture.
"Securities Act" means the Securities Act of 1933, as
amended.
"Securityholder" has the meaning given to such term in
the Registration Rights Agreement.
"subsidiary" means (i) a corporation a majority of
whose capital stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or
indirectly, owned by the Company, by one or more subsidiaries of
the Company or by the Company and one or more subsidiaries
thereof or (ii) any other person (other than a corporation) in
which the Company, one or more subsidiaries thereof or the
Company and one or more subsidiaries thereof, directly or
indirectly, at the date of determination thereof, have at least
majority ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.
Code 77aaa-77bbbb) as in effect on the date of this
Indenture, except as provided in Section 9.03.
"Trustee" means the party named as such in this
Indenture until a successor replaces it in accordance with the
provisions hereof and thereafter means the successor.
"Trust Officer" means any officer of the Trustee
assigned by the Trustee to administer its corporate trust
matters.
SECTION 1.02. Other Definitions.
Term Defined in Section
"Bankruptcy Law" 6.01
"business day" 13.07
"Change in Control" 3.07
"Company Notice" 3.07
"Conversion Agent" 2.03
"Custodian" 6.01
"Event of Default" 6.01
"Global Security" 2.01
"Incumbent Board" 3.07
"Indebtedness" 12.02
"Initial Purchasers" 2.02
"Legal Holiday" 13.07
"Participants" 2.15
"Paying Agent" 2.03
"permitted dividend amount" 10.08
"Physical Securities" 2.01
"Private Placement Legend" 2.17
"Registrar" 2.03
"Representative" 12.02
"Repurchase Date" 3.07
"Repurchase Right" 3.07
"Senior Indebtedness" 12.02
"U.S. Government Obligations" 8.01
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act.
Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by reference in and made a
part of this Indenture.
The following TIA terms used in this Indenture have
the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder or
a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means
the Trustee; and
"obligor" on the indenture securities means the
Company.
All other 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 and not otherwise defined
herein have the meanings so assigned to them.
SECTION 1.04. 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 effect on the date
hereof;
(3) "or" is not exclusive;
(4) words in the singular include the plural and in
the plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) "herein", "hereof" and other words of similar
import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Securities and the Trustee's certificate of
authentication shall be substantially in the form set forth in
Exhibit A, which is incorporated in and forms a part of this
Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each
Security shall be dated the date of its authentication.
Securities offered and sold in reliance on Rule 144A,
Securities offered and sold in reliance on Regulation S and
Securities offered and sold to Institutional Accredited
Investors shall be issued initially in the form of one or more
Global Securities, substantially in the form set forth in
Exhibit A (the "Global Security"), deposited with the Trustee,
as custodian for the Depository, duly executed by the Company
and authenticated by the Trustee as hereinafter provided and
shall bear the legend set forth in Exhibit B. The aggregate
initial principal amount of the Global Security may from time to
time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depository, as
hereinafter provided.
Securities issued in exchange for interests in a
Global Security pursuant to Section 2.16 may be issued and
Securities offered and sold in reliance on any other exemption
from registration under the Securities Act other than as
described in the preceding paragraph shall be issued in the form
of permanent certificated Securities in registered form in
substantially the form set forth in Exhibit A (the "Physical
Securities").
All Notes offered and sold in reliance on
Regulation S shall remain in the form of a Global Security for
forty days after the issue date for the Securities.
SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities for the Company
by manual or facsimile signature. The Company's seal shall be
reproduced on the Securities.
If an Officer whose signature is on a Security no
longer holds that office at the time the Security is
authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated by
the manual signature of the Trustee. The signature shall be
conclusive evidence that the Security has been authenticated
under this Indenture.
Upon a written order of the Company signed by two
Officers or by an Officer and an Assistant Treasurer of the
Company, the Trustee shall authenticate Securities for original
issue in the initial principal amount of $170,000,000 and such
additional initial principal amounts, if any, as shall be
determined pursuant to the next sentence of this Section 2.02.
Upon receipt by the Trustee of an Officers' Certificate stating
that the Initial Purchasers (as defined) have elected to
purchase from the Company a specified initial principal amount
of additional Securities, not to exceed $25,500,000, pursuant to
Section l of the Purchase Agreement dated as of May 27, 1999
between the Company, as issuer, and Warburg Dillon Read LLC,
Bear, Stearns & Co. Inc. and Donaldson, Lufkin & Jenrette
Securities Corporation, as initial purchasers (the "Initial
Purchasers"), the Trustee shall authenticate and deliver such
specified initial principal amount of additional Securities to
or upon the written order of the Company signed as provided in
the immediately preceding sentence. Such Officers' Certificate
must be received by the Trustee not later than June 26, 1999, at
least two full business days prior to the proposed date for
delivery of such additional Securities. The aggregate initial
principal amount of Securities outstanding at any time may not
exceed $195,500,000 except as provided in Section 2.07.
Upon a written order of the Company signed by two
Officers or by an Officer and an Assistant Treasurer of the
Company, the Trustee shall authenticate Securities not bearing
the Private Placement Legend to be issued to the transferee when
sold pursuant to an effective registration statement under
the Securities Act as set forth in Section 2.16(d).
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.
The Securities shall be issuable only in registered
form without coupons and only in denominations of $1,000 initial
principal amount and any integral multiple thereof.
SECTION 2.03. Registrar, Paying Agent and Conversion
Agent.
The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for
exchange ("Registrar"), an office or agency where Securities may
be presented for payment ("Paying Agent") and an office or
agency where Securities may be presented for conversion
("Conversion Agent"). The Registrar shall keep a register of
the Securities and of their transfer and exchange. The Company
may appoint or change one or more co-registrars, one or more
additional paying agents and one or more additional conversion
agents without notice and may act in any such capacity on its
own behalf. The term "Registrar" includes any co-registrar; the
term "Paying Agent" includes any additional paying agent; the
term "Conversion Agent" includes any additional conversion
agent.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee of
the name and address of any Agent not a party to this Indenture.
If the Company fails to maintain a Registrar, Paying Agent or
Conversion Agent, the Trustee shall act as such.
The Company initially appoints the Trustee as Paying
Agent, Registrar and Conversion Agent.
SECTION 2.04. Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit
of the Securityholders or the Trustee all moneys held by the
Paying Agent for the payment of principal of or interest on the
Securities, and shall 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 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
acts as Paying Agent, it shall segregate and hold as a separate
trust fund all money held by it as Paying Agent.
SECTION 2.05. 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 on
or before each interest payment date and at such other times as
the Trustee may request in writing a list, in such form and as
of such date as the Trustee may reasonably require, of the names
and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange.
Where Securities are presented to the Registrar with a
request to register their transfer or to exchange them for an
equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make
the exchange if its requirements for such transaction are met.
To permit registrations of transfer and exchanges, the Trustee
shall authenticate Securities at the Registrar's request. The
Company or the Trustee, as the case may be, shall not be
required (a) to issue, authenticate, register the transfer of or
exchange any Security during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption
of the Securities selected for redemption under Section 3.03 and
ending at the close of business on the day of such mailing, or
(b) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the
unredeemed portion of Securities being redeemed in part.
No service charge shall be made for any registration of
transfer, exchange or conversion of Securities, but the Company
may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with
any transfer, registration of transfer or exchange of
Securities, other than exchanges pursuant to Sections 2.10,
3.06, 9.05 or 10.02 not involving any transfer.
SECTION 2.07. Replacement Securities.
If the Holder of a Security claims that the Security
has been mutilated, lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements are met and,
in the case of a mutilated Security, such mutilated Security is
surrendered to the Trustee. In the case of lost, destroyed or
wrongfully taken Securities, if required by the Trustee or the
Company, an indemnity bond must be provided by the Holder that
is sufficient in the judgment of both to protect the Company,
the Trustee or any Agent from any loss which any of them may
suffer if a Security is replaced. The Company or the Trustee
may charge for its expenses in replacing a Security.
In case any such mutilated, lost, destroyed or
wrongfully taken Security has become or is about to become due
and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security when due.
Every replacement Security is an additional
obligation of the Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the
Securities authenticated by the Trustee except for those
converted, those cancelled by it, those delivered to it for
cancellation and those described in this Section as not
outstanding. A Security does not cease to be outstanding
because the Company or one of its subsidiaries or Affiliates
holds the Security.
If a Security is replaced pursuant to Section 2.07,
it ceases to be outstanding unless the Trustee receives proof
satisfactory to it, or a court holds, that the replaced Security
is held by a bona fide purchaser.
If the Paying Agent (other than the Company) holds on
a redemption date or maturity date money sufficient to pay
Securities payable on that date, then on and after that date,
such Securities shall be deemed to be no longer outstanding and
interest on them shall cease to accrue.
SECTION 2.09. Securities Held by the Company or an
Affiliate.
In determining whether the Holders of the required
aggregate initial principal amount of Securities have concurred
in any direction, waiver or consent, Securities owned by the
Company or a subsidiary 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 knows are so owned
shall be so disregarded.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery,
the Company may prepare and the Trustee shall authenticate
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. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Securities
in exchange for temporary Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar, Paying Agent and
Conversion Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange,
payment or conversion. The Trustee shall cancel all Securities
surrendered for registration of transfer, exchange, payment,
conversion or cancellation and the Trustee may, but shall not be
required to, destroy cancelled Securities and deliver a
certificate of any such destruction to the Company or return
such cancelled Securities to the Company. The Company may not
issue new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation or that any
Securityholder has converted pursuant to Article 10.
SECTION 2.12. Defaulted Interest.
If and to the extent the Company defaults in a payment
of interest on the Securities, it shall pay the defaulted
interest in any lawful manner plus, to the extent not prohibited
by applicable statute or case law, interest payable on the
defaulted interest. It may pay the defaulted interest to the
persons who are Securityholders on a subsequent special record
date. The Company shall fix such record date and payment date.
At least 15 days before the record date, the Company shall mail
to Securityholders a notice that states the record date, payment
date and amount of interest to be paid.
SECTION 2.13. CUSIP Numbers.
The Company in issuing the Securities may use one or
more "CUSIP" numbers, and if so, the Trustee shall use the
CUSIP numbers in notices of redemption or exchange as a
convenience to Holders; provided, however, that no
representation is hereby deemed to be made by the Trustee as to
the correctness or accuracy of the CUSIP numbers printed in the
notice or on the Securities, and that reliance may be placed
only on the other identification numbers printed on the
Securities. The Company shall promptly notify the Trustee of
any change in the CUSIP number.
SECTION 2.14. Deposit of Moneys.
Prior to 11:00 a.m., New York City time, on each
interest payment date, maturity date, redemption date and
Repurchase Date, the Company shall have deposited with the
Paying Agent in immediately available funds money sufficient to
make cash payments, if any, due on such interest payment date,
maturity date, redemption date and Repurchase Date, as the case
may be, in a timely manner which permits the Paying Agent to
remit payment to the Holders on such interest payment date,
maturity date, redemption date and Repurchase Date, as the case
may be.
SECTION 2.15. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be
registered in the name of the Depository or the nominee of such
Depository, (ii) be delivered to the Trustee as custodian for
such Depository and (iii) bear legends as set forth in
Exhibit B.
Members of, or participants in, the Depository
("Participants") shall have no rights under this Indenture with
respect to any Global Security held on their behalf by the
Depository, or the Trustee as its custodian, or under the Global
Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depository or
impair, as between the Depository and Participants, the
operation of customary practices governing the exercise of the
rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited
to transfers in whole, but not in part, to the Depository, its
successors or their respective nominees. Interests of
beneficial owners in the Global Securities may be transferred or
exchanged for Physical Securities in accordance with the rules
and procedures of the Depository and the provisions of Section
2.16. In addition, Physical Securities shall be transferred to
all beneficial owners in exchange for their beneficial interests
in Global Securities if (i) the Depository notifies the Company
that it is unwilling or unable to continue as Depository for any
Global Security and a successor Depository is not appointed by
the Company within 90 days of such notice or (ii) an Event of
Default has occurred and is continuing and the Registrar has
received a written request from the Depository to issue Physical
Securities.
(c) In connection with any transfer or exchange of a
portion of the beneficial interest in a Global Security to
beneficial owners pursuant to paragraph (b), the Registrar shall
(if one or more Physical Securities are to be issued) reflect on
its books and records the date and a decrease in the
aggregate initial principal amount of such Global Security in an
amount equal to the aggregate initial aggregate principal amount
of the beneficial interest in the Global Security to be
transferred, and the Company shall execute and the Trustee shall
authenticate and deliver, one or more Physical Securities of
authorized denominations in an aggregate initial principal
amount equal to the aggregate initial principal amount of the
beneficial interest in the Global Security so transferred.
(d) In connection with the transfer of a Global
Security in its entirety to beneficial owners pursuant to
paragraph (b) of this Section 2.15, such Global Security shall
be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall upon written
instructions from the Company authenticate and deliver, to each
beneficial owner identified by the Depository in exchange for
its beneficial interest in such Global Security, an equal
aggregate initial principal amount of Physical Securities of
authorized denominations.
(e) Any Physical Security constituting a Restricted
Security delivered in exchange for an interest in a Global
Security pursuant to paragraph (b) or (c) of this Section 2.15
shall, except as otherwise provided by Section 2.16, bear the
Private Placement Legend (as defined).
(f) The Holder of any Global Security may grant
proxies and otherwise authorize any Person, including
Participants and Persons that may hold interests through
Participants, to take any action which a Holder is entitled to
take under this Indenture or the Securities.
SECTION 2.16. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited
Investors and Non-U.S. Persons. The following provisions shall
apply with respect to the registration of any proposed transfer
of a Restricted Security to any Institutional Accredited
Investor which is not a QIB or to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any
Restricted Security, whether or not such Security bears
the Private Placement Legend, if (x) the
requested transfer is after the second anniversary of the
issue date for the Securities; provided, however, that
neither the Company nor any Affiliate of the Company has
held any beneficial interest in such Security, or portion
thereof, at any time on or prior to the second
anniversary of the issue date for the Securities or
(y)(1) in the case of a transfer to an Institutional
Accredited Investor which is not a QIB (excluding Non-
U.S. Persons), the proposed transferee has delivered to
the Registrar a certificate substantially in the form of
Exhibit C hereto and any legal opinions and
certifications required thereby and (2) in the case of a
transfer to a Non-U.S. Person, the proposed transferor
has delivered to the Registrar a certificate
substantially in the form of Exhibit D hereto;
(ii) if the proposed transferee is a Participant and
the Notes to be transferred consist of Physical
Securities which after transfer are to be evidenced by an
interest in the Global Security, upon receipt by the
Registrar of (x) written instructions given in accordance
with the Depository's and the Registrar's
procedures and (y) the appropriate certificate, if any,
required by clause (y) of paragraph (i) above, the
Registrar shall register the transfer and reflect on its
books and records the date and an increase in the
aggregate principal amount of the Global Security in an
amount equal to the aggregate initial principal amount of
Physical Securities to be transferred, and the Trustee
shall cancel the Physical Securities so transferred; and
(iii) if the proposed transferor is a Participant
seeking to transfer an interest in the Rule 144A Global
Security, upon receipt by the Registrar of (x) written
instructions given in accordance with the Depository's
and the Registrar's procedures and (y) the appropriate
certificate, if any, required by clause (y) of paragraph
(i) above, the Registrar shall register the transfer and
reflect on its books and records the date and (A) a
decrease in the aggregate initial principal amount of the
Rule 144A Global Security in an amount equal to the
aggregate initial principal amount of the Securities to
be transferred and (B) an increase in the aggregate
initial principal amount of the Regulation S Global
Security or the IAI Global Security, as the case may be,
in an amount equal to the aggregate initial principal
amount of the Securities to be transferred.
(b) Transfers to QIBs. The following provisions
shall apply with respect to the registration of any proposed
transfer of a Restricted Security to a QIB:
(i) the Registrar shall register the transfer of any
Restricted Security, whether or not such Security bears
the Private Placement Legend, if (x) the requested
transfer is after the second anniversary of the issue
date for the Securities; provided, however, that neither
the Company nor any Affiliate of the Company has held any
beneficial interest in such Security, or portion thereof,
at any time on or prior to the second anniversary of the
issue date for the Securities or (y) such transfer is
being made by a proposed transferor who has checked the
box provided for on the form of Security stating, or has
otherwise advised the Company and the Registrar in
writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of
Security stating, or has otherwise advised the Company
and the Registrar in writing, that it is purchasing the
Security for its own account or an account with respect
to which it exercises sole investment discretion and that
it and any such account is a QIB within the meaning of
Rule 144A, and is aware that the sale to it is being made
in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the
transferor is relying upon its foregoing representations
in order to claim the exemption from registration
provided by Rule 144A;
(ii) if the proposed transferee is a Participant and
the Securities to be transferred consist of Physical
Securities which after transfer are to be evidenced by an
interest in the Global Security, upon receipt by the
Registrar of written instructions given
in accordance with the Depository's and Registrar's
procedures, the Registrar shall register the transfer and
reflect on its books and records the date and an increase
in the initial principal amount of the Global Security in
an amount equal to the initial principal amount of
Physical Securities to be transferred, and the Trustee
shall cancel the Physical Security so transferred; and
(iii) if the proposed transferor is a Participant
seeking to transfer an interest in the Regulation S
Global Security or the IAI Global Security, upon receipt
by the Registrar of written instructions given in
accordance with the Depository's and the Registrar's
procedures, the Registrar shall register the transfer and
reflect on its books and records the date and (A) a
decrease in the aggregate initial principal amount of the
Regulation S Global Security or the IAI Global Security,
as the case may be, in an amount equal to the aggregate
initial principal amount of the Securities to be
transferred and (B) an increase in the aggregate initial
principal amount of the Rule 144A Global Security in an
amount equal to the aggregate initial principal amount of
the Securities to be transferred.
(c) Restrictions on Transfer and Exchange of Global
Securities. Notwithstanding any other provisions of this
Indenture, a Global Security may not be transferred as a whole
except by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee
of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(d) Private Placement Legend. Upon the transfer,
exchange or replacement of Securities not bearing the Private
Placement Legend, the Registrar or co-Registrar shall deliver
Securities that do not bear the Private Placement Legend. Upon
the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar or co-Registrar shall
deliver only Securities that bear the Private Placement Legend
unless (i) the requested transfer is after the second
anniversary of the issue date for the Securities (provided,
however, that neither the Company nor any Affiliate of the
Company has held any beneficial interest in such Security, or
portion thereof, at any time prior to or on the second
anniversary of the issue date) for the Securities, (ii) there is
delivered to the Trustee an Opinion of Counsel reasonably
satisfactory to the Company to the effect that neither such
legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the
Securities Act or (iii) such Security has been sold pursuant to
an effective registration statement under the Securities Act and
the Holder selling such Securities has delivered to the
Registrar or co-Registrar a notice in the form of Exhibit E
hereto. Upon the effectiveness of the Shelf Registration
Statement (as defined in the Registration Rights Agreement) the
Company shall deliver to the Trustee a notice of effectiveness,
a Security or Securities, an authentication order in accordance
with Section 2.02 and an opinion of counsel in the form of
Exhibit F hereto and, if required by the Depositary, the Company
shall deliver to the Depositary a letter of representations in a
form reasonably acceptable to the Depositary.
(e) General. By its acceptance of any Security
bearing the Private Placement Legend, each Holder of such a
Security acknowledges the restrictions on transfer of such
Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security
only as provided in this Indenture.
The Registrar shall retain copies of all letters,
notices and other written communications received pursuant to
Section 2.15 or this Section 2.16. The Company shall have the
right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
(f) Transfers of Securities Held by Affiliates. Any
certificate (i) evidencing a Security that has been transferred
to an Affiliate of the Company within two years after the issue
date for the Securities, as evidenced by a notation on the
Assignment Form for such transfer or in the representation
letter delivered in respect thereof or (ii) evidencing a
Security that has been acquired from an Affiliate (other than by
an Affiliate) in a transaction or a chain of transactions not
involving any public offering, shall, until two years after the
last date on which either the Company or any Affiliate of the
Company was an owner of such Security, in each case, bear the
Private Placement Legend, unless otherwise agreed by the Company
(with written notice thereof to the Trustee).
SECTION 2.17. Restrictive Legends.
Each Global Security and Physical Security that
constitutes a Restricted Security shall bear the legend (the
"Private Placement Legend") as set forth in Exhibit A on the
face thereof until after the second anniversary of the later of
the issue date for the Securities and the last date on which the
Company or any Affiliate of the Company was the owner of such
Security (or any predecessor security) (or such shorter period
of time as permitted by Rule 144(k) under the Securities Act or
any successor provision thereunder) (or such longer period of
time as may be required under the Securities Act or applicable
state securities laws in the opinion of counsel for the Company,
unless otherwise agreed by the Company and the Holder thereof).
Each Global Security shall also bear the legend as set
forth in Exhibit B.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company wants to redeem Securities pursuant to
paragraph 6 of the Securities, it shall notify the Trustee at
least 45 days prior to the redemption date (unless a shorter
notice period shall be satisfactory to the Trustee) of the
redemption date and the aggregate initial principal amount of
Securities to be redeemed. If the Company wants to credit
against any such redemption Securities it has not previously
delivered to the Trustee for cancellation (other than Securities
repurchased pursuant to Section 3.07), it shall deliver the
Securities with the notice.
SECTION 3.02. Selection of Securities to Be Redeemed.
If less than all the Securities are to be redeemed,
the Trustee shall select the Securities to be redeemed on either
a pro rata basis or by lot or such other method as the Trustee
shall deem fair and equitable. The Trustee shall make the
selection from Securities outstanding not previously called for
redemption. The Trustee may select for redemption portions of
the principal of Securities that have denominations larger than
$1,000 initial principal amount. Securities and portions of
them it selects shall be in amounts of $1,000 initial principal
amount or whole multiples of $1,000 initial principal amount.
Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for
redemption.
The Registrar need not transfer or exchange any
Securities selected for redemption. Also, the Registrar need
not transfer or exchange any Securities for a period of 15 days
before selecting Securities to be redeemed.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a
redemption date, the Company shall mail by first-class mail a
notice of redemption to each Holder whose Securities are to be
redeemed.
The notice shall identify the Securities and the
aggregate initial principal amount thereof to be redeemed and
shall state:
(1) the redemption date;
(2) the Redemption Price, plus the amount of accrued
and unpaid interest to be paid on the Securities called for
redemption;
(3) the then current conversion rate;
(4) the name and address of the Paying Agent and
Conversion Agent;
(5) the date on which the right to convert the
principal of the Securities called for redemption will
terminate and the place or places where such Securities may
be surrendered for conversion;
(6) that Holders who want to convert Securities must
satisfy the requirements in Article 10;
(7) the paragraph of the Securities pursuant to which
the Securities are to be redeemed;
(8) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption
Price;
(9) that interest on Securities called for redemption
ceases to accrue on and after the redemption date; and
(10) the CUSIP number of the Securities.
The date on which the right to convert the principal
of the Securities called for redemption will terminate shall be
at the close of business on the date that is ten days prior to
the redemption date, or, if the second day before the
redemption date is a Legal Holiday, the close of business on the
next preceding day which is not a Legal Holiday.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at the Company's
expense; provided that the form and content of such notice shall
be prepared by the Company.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called
for redemption become due and payable on the redemption date at
the Redemption Price plus accrued and unpaid interest to the
date of redemption, and, on and after such date (unless the
Company shall default in the payment of the Redemption Price),
such Securities shall cease to bear interest. Upon surrender to
the Paying Agent, such Securities shall be paid at the
Redemption Price plus accrued interest to the redemption date,
unless the redemption date is an interest payment date, in which
case the accrued interest will be paid in the ordinary course.
SECTION 3.05. Deposit of Redemption Price.
On or before the redemption date, the Company shall
deposit with the Paying Agent money in funds immediately
available on the redemption date sufficient to pay the
Redemption Price of and accrued interest on all Securities to be
redeemed on that date. The Paying Agent shall return to the
Company, as soon as practicable, any money not required for that
purpose because of conversion of Securities.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part,
the Company shall execute and the Trustee shall authenticate for
the Holder a new Security equal in initial principal amount to
the unredeemed portion of the Security surrendered.
If any Security selected for partial redemption is
converted in part, the converted portion of such Security shall
be deemed (so far as may be) to be the portion selected for
redemption.
SECTION 3.07. Repurchase at Option of
Holder upon a Change in
Control.
Upon any Change in Control (as defined below) with
respect to the Company, each Holder of Securities shall have the
right (the "Repurchase Right"), at the Holder's option, to
require the Company to repurchase all of such Holder's
Securities, or a portion thereof which is $1,000 or any integral
multiple thereof, on the date (the "Repurchase Date") that is 45
days after the date of the Company Notice (as defined below) at
the Redemption Price set forth in the Securities, plus accrued
and unpaid interest, if any, to the Repurchase Date.
Within 30 days after the occurrence of a Change in
Control, the Company is obligated to mail to all Holders of
record of the Securities a notice (the "Company Notice") of the
occurrence of such Change in Control and the Repurchase Right
arising as a result thereof. The Company shall deliver a copy
of the Company Notice to the Trustee and shall cause a copy of
such notice to be published at the Company's expense in The
Financial Times and The Wall Street Journal or another newspaper
of national circulation. To exercise the Repurchase Right, a
Holder of Securities must deliver on or before the 30th day
after the date of the Company Notice irrevocable written notice
to the Company (or an agent designated by the Company for such
purpose) and the Trustee of the Holder's exercise of such right
together with the Securities with respect to which the right is
being exercised, duly endorsed for transfer.
Each Company Notice shall state:
(1) the Repurchase Date;
(2) the date by which the Repurchase Right must be
exercised;
(3) the Redemption Price, plus the amount of accrued
interest to be paid on the Securities called for
redemption;
(4) a description of the procedure which a Holder
must follow to exercise a Repurchase Right;
(5) that the Securities are to be surrendered for
payment of the Repurchase Price;
(6) that exercise of the Repurchase Right is
irrevocable, and Holders who elect to exercise the
Repurchase Right will forfeit the right to convert
Securities submitted for repurchase;
(7) the then existing conversion rate for conversion
of Securities and the place or places where such Securities
may be surrendered for conversion; and
(8) the CUSIP number of the Securities.
No failure of the Company to give the foregoing notice
shall limit any Holder's right to exercise a Repurchase Right.
In the event any Holder exercises its Repurchase
Right, such Holder's conversion right will terminate upon
receipt of the written notice of exercise of such Repurchase
Right.
To exercise a Repurchase Right a Holder shall deliver
to the Company (if it is acting as its own Paying Agent) or to a
Paying Agent designated by the Company for such purpose in the
Company Notice within the period set forth in the second
paragraph of this Section 3.07, (i) the Option of Holder to
Elect Purchase Notice on the back of the Securities with respect
to which the Repurchase Right is being exercised, duly completed
and signed, with appropriate signature guarantee, and (ii) such
Securities with respect to which the Repurchase Right is being
exercised, duly endorsed for transfer to the Company, and the
Holder of such Securities shall be entitled to receive from the
Company (if it is acting as its own Paying Agent) or such Paying
Agent a nontransferable receipt of deposit evidencing such
deposit.
In the event a Repurchase Right shall be exercised in
accordance with the terms hereof, the Company shall pay or cause
to be paid the applicable Redemption Price (plus accrued
and unpaid interest) with respect to the Securities as to which
the Repurchase Right shall have been exercised to the Holder on
the Repurchase Date.
On or prior to a Repurchase Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in
trust in accordance with Section 2.04) an amount of money (to be
available on the Repurchase Date) sufficient to pay the
Redemption Price (plus accrued and unpaid interest) of all of
the Securities which are to be repurchased on that date.
Both the Company Notice and the notice of the Holder
to the Company having been given as specified in this Section
3.07, the Securities so to be repurchased shall, on the
Repurchase Date, become due and payable at the Redemption Price
applicable thereto (plus accrued and unpaid interest) and from
and after such date (unless the Company shall default in the
payment of the Repurchase Price) such Securities shall cease to
bear interest. Upon surrender of any such Security for
repurchase in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price (plus accrued and
unpaid interest).
If any Security shall not be paid upon surrender
thereof for repurchase, the principal shall, until paid, bear
interest from the Repurchase Date at the rate borne by such
Security on the initial principal amount of such Security.
Any Security which is to be submitted for repurchase
only in part shall be delivered pursuant to this Section 3.07
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by the
Holder thereof or its attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate
and make available for delivery to the Holder of such Security
without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, of the same
tenor and in aggregate initial principal amount equal to the
portion of the aggregate initial principal amount and in
exchange for the portion of the principal of such Security not
submitted for repurchase.
Notwithstanding anything herein to the contrary, if
the option granted to Securityholders to require the redemption
of the Securities upon the occurrence of a Change in Control is
determined to constitute a tender offer, the Company will comply
with all applicable tender offer rules, including Rules 13e-4
and 14e-1 under the Exchange Act, upon the occurrence of a
Change in Control.
As used in this Section 3.07 of the Indenture and in
the Security:
A "Change in Control" of the Company means (i) the
acquisition by any person, entity or "group" within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act (excluding,
for this purpose, the Company or its subsidiaries, or any
employee benefit plan of the Company or its subsidiaries which
acquires beneficial ownership of voting securities of the
Company) of beneficial ownership (within the meaning of Rule 13d-
3 promulgated under the Exchange Act) of shares of Common Stock
sufficient to elect a majority of directors; (ii) persons who,
as of the date of this Indenture, constitute the Board of
Directors (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors,
provided that any person becoming a director subsequent to the
date hereof whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be considered as though such person were a member of the
Incumbent Board; (iii) approval by the stockholders of the
Company of a reorganization, merger or consolidation, in each
case, with respect to which persons who were the stockholders of
the Company immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, beneficially own
shares sufficient to elect a majority of directors in the
election of directors of the reorganized, merged or consolidated
company; or (iv) a liquidation or dissolution of the Company
(other than pursuant to the United States Bankruptcy Code) or
the conveyance, transfer or leasing of all or substantially all
of the assets of the Company to any person; provided, however,
that for the purpose of clauses (i)(iv) above, the terms
"person", "entity" and "group" shall not include (x) Industrier,
(y) the stockholders of Industrier in the case of a distribution
of shares of capital stock of the Company beneficially owned by
Industrier to the shareholders of Industrier, unless a Change in
Control of Industrier has occurred or occurs concurrently with
such a distribution, or in series of related transactions of
which such distribution is a part (determined without regard to
this clause (y) of this proviso) or (z) E.W. Sissener, his
spouse, any heir or descendant of Mr. Sissener or the spouse of
any such heir or descendant or the estate of Mr. Sissener (each,
an "EWS Party"), or any trust or other similar arrangement for
the benefit of any EWS Party or any corporation or other person
or entity controlled by one or more EWS Parties or any group of
which any EWS Party is a member. For purposes of the preceding
sentence, a "liquidation" or "dissolution" shall not be deemed
to include any transfer of Company property solely to any
persons identified in clauses (x), (y) and (z) of the proviso of
such sentence.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the Redemption Price and any
accrued and unpaid interest on the Securities on the dates and
in the manner provided in the Securities. The Redemption Price,
including any accrued and unpaid interest, shall be considered
paid on the date due if the Paying Agent holds (or, if the
Company is acting as Paying Agent, if the Company has segregated
and holds in trust in accordance with Section 2.04) on that date
money sufficient to pay the Redemption Price and any accrued and
unpaid interest.
The Company shall pay interest on any overdue
principal (including accretion) or Redemption Price at the rate
borne by the Securities. The Company shall pay interest on
overdue installments of interest at the same rate to the extent
not prohibited by applicable statute or case law.
SECTION 4.02. Maintenance of Office or Agency.
The Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency where
Securities may be surrendered for registration of transfer or
exchange or conversion and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may
be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one
or more other offices or agencies where the Securities may be
presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for
such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust
Office of the Trustee as an agency of the Company in accordance
with Section 2.03.
The Company also shall comply with the provisions of
TIA 314(a).
SECTION 4.03. Reports to Holders.
(a) The Company (at its own expense) will deliver to
the Trustee within 15 days after the filing of the same with the
Commission, copies of the quarterly and annual reports and of
the information, documents and other reports, if any, which the
Company is required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act.
(b) Notwithstanding that the Company may not be
subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, the Company will promptly provide the
information required by Rule 144A(d)(4) to any Holder that so
requests.
(c) In addition, if and when this Indenture becomes
subject to the TIA, the Company will file a copy of all such
information with the Commission for public availability (unless
the Commission will not accept such a filing) and make such
information available to investors who request it in writing.
The Company will also comply with the other provisions of TIA
314(a).
SECTION 4.04. Compliance Certificate.
The Company shall deliver to the Trustee within 120
days after the end of each fiscal year of the Company an
Officers' Certificate stating whether or not the signers know of
any Default or Event of Default by the Company in performing any
of its obligations under this Indenture or the Securities. If
they do know of any such Default or Event of Default, the
certificate shall describe the Default or Event of Default and
its status.
SECTION 4.05. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead,
or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted,
now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants
that it will not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 4.06. Corporate Existence.
Subject to Article Five, the Company will do or cause
to be done all things necessary to preserve and keep in full
force and effect its corporate existence and the corporate
existence of each subsidiary in accordance with the respective
organizational documents of each subsidiary and the rights
(charter and statutory), licenses and franchises of the Company
and its subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or
franchise, or the corporate existence of any subsidiary, if in
the judgment of the Company, (i) such preservation or existence
is not material to the conduct of business of the Company and
(ii) the loss of such right, license or franchise or the
dissolution of such subsidiary does not have a material adverse
impact on the Holders.
SECTION 4.07. Notice of Default.
In the event that any Default under Section 6.01
hereof shall occur the Company will give prompt written notice
of such Default to the Trustee.
ARTICLE FIVE
SUCCESSORS
SECTION 5.01. When Company May Merge, etc.
The Company shall not consolidate with or merge into,
or transfer or lease all or substantially all of its assets to,
another person unless such other person is a corporation
organized under the laws of the United States, any State thereof
or the District of Columbia and such person assumes by
supplemental indenture all the obligations of the Company under
the Securities and this Indenture, and immediately after giving
effect to the transaction, no default shall exist.
The Company shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers'
Certificate to the foregoing effect and an opinion of Counsel
stating that the proposed transaction and such supplemental
indenture will, upon consummation of the proposed transaction,
comply with this Indenture.
Notwithstanding the foregoing, any subsidiary may
consolidate with, merge into or transfer all or part of its
properties and assets to the Company or any other subsidiary or
subsidiaries.
SECTION 5.02. Successor Substituted.
Upon any consolidation or merger or transfer or lease
of all or substantially all of the assets of the Company in
accordance with Section 5.01, the successor person formed by
such consolidation or into which the Company is merged or to
which such transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, and
shall assume every duty and obligation of, the Company under
this Indenture with the same effect as if such successor
corporation had been named as the Company herein. When the
successor corporation assumes all obligations of the Company
hereunder, all obligations of the predecessor corporation shall
terminate.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest
on any Security when the same becomes due and payable and
the default continues for a period of 30 days, whether or
not such payment shall be prohibited by the provisions of
Article Twelve hereof;
(2) the Company defaults in the payment of the
Redemption Price of any Security when the same becomes due
and payable on the Maturity Date, upon redemption or
otherwise, whether or not such payment shall be prohibited
by the provisions of Article Twelve hereof;
(3) the Company fails to comply with any of its other
agreements in the Securities or this Indenture and the
default continues for the period and after the notice
specified below;
(4) the Company defaults in payment on Indebtedness
at maturity (giving effect to any applicable grace periods
and any extensions thereof) of at least $5,000,000
principal amount;
(5) there has been an acceleration of the final
stated maturity of any Indebtedness of the Company (which
acceleration shall not have been cured, waived, rescinded
or annulled for 30 days) if the aggregate principal amount
of such Indebtedness, together with the principal amount of
any other such Indebtedness which has been accelerated,
aggregates $5,000,000 or more at any time;
(6) 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
of it or for all or substantially all of its property,
or
(D) makes a general assignment for the benefit
of its creditors; or
(7) 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 of the Company for all
or substantially all of its property, or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for
90 consecutive days.
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 similar official under any Bankruptcy Law.
A default under clause (3) or (4) is not an Event of
Default until the Trustee or the Holders of at least 25% in
aggregate initial principal amount of the Securities then
outstanding notify the Company and the Trustee of the default
and the Company does not cure the default within (i) 60 days
after receipt of the notice in the case of clause (3) and
(ii) 30 days after receipt of the notice in the case of
clause (4). The notice must specify the default, demand that it
be remedied and state that the notice is a "Notice of Default".
If the Holders of 25% in aggregate initial principal amount of
the outstanding Securities request the Trustee to give such
notice on their behalf, the Trustee shall do so.
When a default is cured, it ceases.
SECTION 6.02. Acceleration.
If an Event of Default as to which the Trustee has
actual knowledge (other than an Event of Default specified in
Section 6.01(6) or (7)) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in initial
principal amount of the Securities then outstanding by notice to
the Company and the Trustee, may declare the Redemption Price
including any accrued and unpaid interest on all the Securities
to be due and payable. Upon such declaration such principal and
interest shall be due and payable immediately. If an Event of
Default specified in Section 6.01(6) or (7) occurs, the
Redemption Price shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of
the Trustee or any Securityholder. The Holders of a majority in
aggregate initial principal amount of the Securities then
outstanding by written notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not
conflict with any order or decree and if all existing Events of
Default 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.
Notwithstanding any other provision of this Indenture,
if an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to
collect the payment of the Redemption Price, including any
unpaid and accrued interest on the Securities or to enforce the
performance of any provision of the Securities
or this Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Securities 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.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a
majority in aggregate initial principal amount of the Securities
then outstanding by notice to the Trustee may waive any past
Default or Event of Default and its consequences.
When a Default or an Event of Default is waived, it is cured and
ceases.
SECTION 6.05. Control by Majority.
The Holders of a majority in aggregate initial
principal amount of the Securities then outstanding may direct
the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power
conferred on it. 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 would
involve the Trustee in personal liability; provided that the
Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 6.06. Limitation on Suits.
Except as provided in Section 6.07, a Securityholder
may pursue a remedy with respect to this Indenture or the
Securities only if:
(1) the Holder gives to the Trustee written notice of
a continuing Event of Default;
(2) the Holders of at least 25% in aggregate initial
principal amount of the Securities then outstanding make a
written 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 aggregate initial principal amount of the
Securities then outstanding do not give the Trustee a
direction inconsistent with the 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. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture,
the right of any Holder to receive payment of the
Redemption Price, including any unpaid and accrued interest on
the Security, on or after the respective due dates expressed in
the Security, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired
or affected without the consent of the Holder.
Notwithstanding any other provision of this Indenture,
the right of any Holder to bring suit for the enforcement of the
right to convert the Security shall not be impaired or affected
without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(l) or
(2) occurs and is continuing, the Trustee may recover judgment
in its own name and as trustee of an express trust against the
Company for the whole amount of the Redemption Price including
any unpaid and accrued interest.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other
papers or documents as may be necessary or advisable in order to
have the claims of the Trustee, any predecessor Trustee and the
Securityholders allowed in any judicial proceedings relative to
the Company, its creditors or its property.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights
of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section
7.07;
Second: to holders of Senior Indebtedness to the
extent required by Article Twelve;
Third: to Securityholders for amounts due and unpaid
on the Securities for the Redemption Price and any unpaid
and accrued interest, ratably, without preference or
priority of any kind, according to the amounts due and
payable on the Securities for the Redemption Price and any
unpaid and accrued interest, respectively, and
Fourth: to the Company.
The Trustee, upon prior written notice to the Company,
may fix a record date and payment date for any payment by it to
Securityholders pursuant to this Section.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the
suit other than the Trustee of an undertaking to pay the
costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys' fees, against
any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee,
a suit by a Holder pursuant to Section 6.07 or a suit by Holders
of more than 10% in aggregate initial principal amount of the
outstanding Securities.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or
her own affairs.
(b) Except during the continuance of an Event of
Default:
(1) the Trustee need perform only those duties that
are specifically set forth in this Indenture and no others;
and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act
or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section 7.01;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it
is proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(3) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.05.
(d) The Trustee may refuse to perform any duty or
exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(e) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c)
and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the Trustee
need not be segregated from other funds except to the extent
required by law.
SECTION 7.02. Rights of Trustee.
(a) 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; if, however, the Trustee shall
determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney.
(b) 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 such
Officers' Certificate or Opinion of Counsel.
(c) Any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors shall
be sufficiently evidenced by a Board Resolution.
(d) The Trustee may consult with counsel (such
counsel to be reasonably acceptable to the Company) and the
written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(e) The Trustee may act through agents or attorneys
and shall not be responsible for the misconduct or negligence of
any agent or attorney appointed with due care.
(f) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be
authorized or within its discretion, rights or powers hereunder.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity
may become the owner or pledgee of Securities and may otherwise
deal with the Company or an Affiliate thereof with the same
rights it would have if it were not Trustee. Any Agent may do
the same with like rights. The Trustee, however, must comply
with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the
validity or adequacy of this Indenture or the Securities; it
shall not be accountable for the Company's use of the proceeds
from the Securities; and it shall not be responsible for any
statement in the Securities other than its certificate of
authentication.
SECTION 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is
continuing and if it is actually known to the Trustee, the
Trustee shall mail to each Securityholder a notice of the
Default or Event of Default within 30 days after it occurs
unless such Default or Event of Default has been cured or
waived. Except in the case of a Default or Event of Default in
payment of the Redemption Price and any unpaid and accrued
interest on any Security, the Trustee may withhold the notice if
and so long as it in good faith determines that withholding the
notice is in the interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each July 15 beginning with July
15, 2000, the Trustee shall mail to each Securityholder if
required by TIA 313(c) a brief report dated as of such July
15 that complies with TIA 313(a). In such event, the Trustee
also shall comply with TIA 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed by the
Trustee with the SEC and each stock exchange, if any, on which
the Securities are listed. The Company shall promptly notify
the Trustee when the Securities are listed on any stock
exchange.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
such compensation for its services as shall be agreed upon in
writing. 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 out-ofpocket
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any
loss or liability or expense (including the reasonable fees and
expenses of counsel) incurred by it in connection with the
acceptance or administration of this trust and the performance
of its duties hereunder, including the reasonable costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers
and duties hereunder. The Company need not pay for any
settlement made without its consent. The Trustee shall notify
the Company promptly of any claim for which it may seek
indemnification. The Company need not reimburse any expense or
indemnify against any loss or liability incurred by the Trustee
through the Trustee's negligence or bad faith.
To secure the Company's payment obligations in this
Section, the Trustee shall have a lien prior to the Securities
on all money or property held or collected by the Trustee,
except that held in trust to pay the Redemption Price and any
unpaid and accrued interest on particular Securities.
The indemnity obligations of the Company with respect
to the Trustee provided for in this Section 7.07 shall survive
any resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(5) or (6)
occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any
Bankruptcy Law.
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 in
writing 30 business days prior to such resignation. The Holders
of a majority in aggregate initial principal amount of the
Securities then outstanding may remove the Trustee by so
notifying the Trustee and the Company in writing 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 Section 7.10;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a receiver or other public officer takes charge
of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
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. Within one year
after the successor Trustee takes office, the Holders of a
majority in aggregate initial principal amount of the Securities
then outstanding may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
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 at least 10% in
aggregate initial principal amount of the outstanding Securities
may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Holder 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 Securityholders. 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
7.07.
SECTION 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, 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, if such successor corporation is otherwise eligible
hereunder.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a
Trustee who satisfies the requirements of TIA
310(a)(1). The Trustee shall always have a
combined capital and surplus of at least
$50,000,000 as set forth in its most recent
published annual report of condition. The
Trustee shall comply with TIA
310(b).
SECTION 7.11. Preferential Collection
of Claims
Against Company.
The Trustee shall comply with TIA 311(a), excluding
any creditor relationship listed in TIA 311(b). A Trustee who
has resigned or been removed shall be subject to TIA
311(a) to the extent indicated.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations.
The Company may terminate all of its obligations
under this Indenture if all Securities previously authenticated
and delivered (other than mutilated, destroyed, lost or stolen
Securities which have been replaced or paid as provided in
Section 2.07) have been delivered to the Trustee for
cancellation or if:
(1) the Securities mature within six months or all of
them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the
notice of redemption;
(2) the Company irrevocably deposits in trust with
the Trustee money or U.S. Government Obligations sufficient
to pay the Redemption Price and any unpaid and accrued
interest on the Securities to maturity or redemption, as
the case may be. Immediately after making the deposit, the
Company shall give notice of such event to the
Securityholders;
(3) the Company has paid or caused to be paid all
sums then payable by the Company to the Trustee hereunder
as of the date of such deposit; and
(4) the Company has delivered to the Trustee an
opinion of counsel and an Officers' Certificate stating
that all conditions precedent provided for herein relating
to the satisfaction and discharge of this Indenture have
been complied with. The Company may make the deposit only
during the one-year period and only if Article Twelve
permits it.
However, the Company's obligations in Sections 2.03, 2.04, 2.05,
2.06, 2.07, 4.01, 7.07, 7.08 and 8.03, and in Article
Ten, shall survive until the Securities are no longer
outstanding. Thereafter the Company's obligations in Sections
7.07 and 8.03 shall survive.
After a deposit pursuant to this Section 8.01, the
Trustee upon request shall acknowledge in writing the discharge
of the Company's obligations under the Securities and this
Indenture except for those surviving obligations specified
above.
In order to have money available on a payment date to
pay the Redemption Price and any unpaid and accrued interest on
the Securities, the U.S. Government obligations shall be payable
as to the Redemption Price and any unpaid and accrued interest
on or before such payment date in such amounts as will provide
the necessary money.
"U.S. Government Obligations" means direct noncallable
obligations of, or non-callable obligations guaranteed by, the
United States of America for the payment of which the full faith
and credit of the United States of America is pledged.
SECTION 8.02. Application of Trust Money.
The Trustee shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section
8.01. 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 the Redemption
Price and any unpaid and accrued interest on the Securities.
Money and securities so held in trust are not subject to the
subordination provisions of Article Twelve.
SECTION 8.03. Repayment to Company.
The Trustee and the Paying Agent shall promptly pay 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 request any money held by them for the payment
of the Redemption Price and any unpaid and accrued interest that
remains unclaimed for two years; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may, at the expense of the Company, cause to be
published once in a newspaper of general circulation in The City
of New York or cause to be mailed to each Holder, notice stating
that such money remains and that, after a date specified
therein, which shall not be less than 30 days from the date of
such publication or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company. After payment to
the Company, Securityholders entitled to the money must look to
the Company for payment as general creditors unless an
applicable abandoned property law designates another person.
SECTION 8.04. Reinstatement.
If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with
Section 8.01 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and
the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.01 until such time as
the Trustee or Paying Agent is permitted to apply all such money
or U.S. Government Obligations in accordance with Section 8.01;
provided, however, that if the Company has made any payment of
the Redemption Price and any unpaid and accrued interest on any
Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or
Paying Agent.
ARTICLE NINE
AMENDMENTS
SECTION 9.01. Without Consent of Holders.
The Company, with the consent of the Trustee, may
amend or supplement this Indenture or the Securities without
notice to or the consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Sections 5.01 and 10.15;
(3) to provide for uncertificated Securities in
addition to certificated Securities; or
(4) to make any change that does not adversely affect
the rights of any Securityholder.
SECTION 9.02. With Consent of Holders.
The Company, with the consent of the Trustee, may
amend or supplement this Indenture or the Securities without
notice to any Securityholder but with the written consent of the
Holders of at least a majority in aggregate initial principal
amount of the outstanding Securities. Subject to Section 6.07,
the Holders of a majority in aggregate initial principal amount
of the outstanding Securities may waive compliance by the
Company with any provision of this Indenture or the Securities
without notice to any other Securityholder. However, without the
consent of each Securityholder affected, an amendment,
supplement or waiver, including a waiver pursuant to Section
6.04, may not:
(1) reduce the amount of Securities whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment
of interest on any Security;
(3) reduce the Redemption Price of or change the
fixed maturity of any Security (including, without
limitation, the optional redemption provisions or the
Repurchase Right);
(4) waive a default in the payment of the Redemption
Price or any unpaid and accrued interest on any Security;
(5) make any change in Section 6.04, Section 6.07 or
Section 9.02;
(6) make any change that adversely affects the right
to convert any Security; or
(7) make any change that adversely affects the rights
of any Securityholder.
An amendment under this Section may not make any
change that adversely affects the rights under Article Eleven of
any holder of an issue of Senior Indebtedness unless the
holders of the issue pursuant to its terms consent to the
change.
Promptly after an amendment under this Section 9.02
becomes effective, the Company shall mail to Securityholders a
notice briefly describing the amendment.
It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of any
proposed amendment or supplement, but it shall be sufficient if
such consent approves the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment, waiver or supplement to this
Indenture or the Securities shall comply with the TIA as then in
effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is
not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to its Security or
portion of a Security if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver
becomes effective. An amendment, supplement or waiver becomes
effective in accordance with its terms and thereafter binds
every Securityholder.
After an amendment, supplement or waiver becomes
effective with respect to the Securities, it shall bind every
Securityholder unless it makes a change described in any of
clauses (1) through (7) of Section 9.02. In that case the
amendment, supplement or waiver shall bind each Holder of a
Security who has consented to it and, provided that notice of
such amendment, supplement or waiver is reflected on a Security
that evidences the same debt as the consenting Holder's
Security, every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's
Security.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the
terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security as directed and prepared by
the Company about the changed terms and return it to the Holder.
Alternatively, if the Company so determines, the Company in
exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms.
SECTION 9.06. Trustee Protected.
The Trustee need not sign any amendment, supplement or
waiver authorized pursuant to this Article that adversely
affects the Trustee's rights. The Trustee shall be entitled to
receive and rely upon an Opinion of Counsel and an Officers'
Certificate that any supplemental indenture, amendment or waiver
complies with the Indenture.
ARTICLE TEN
CONVERSION
SECTION 10.01. Conversion Privilege; Restrictive Legends.
A Holder of a Security may convert the initial
principal of such Security into Class A Common Stock at any time
during the period stated in paragraph 9 of the Securities. The
number of shares issuable upon conversion of a Security is
determined as follows: multiply each $1,000 of the initial
principal amount to be converted by the conversion rate in
effect on the conversion date. Round the result to the nearest
1/100th of a share.
The initial conversion rate is stated in paragraph 9
of the Securities. The conversion rate is subject to adjustment
in accordance with Sections 10.06 through 10.12.
A Holder may convert a portion of the initial
principal of such Security if the portion is $1,000 initial
principal amount or a whole multiple of $1,000 initial principal
amount. Provisions of this Indenture that apply to conversion
of all of a Security also apply to conversion of a portion of
it.
Any shares issued upon conversion of a Security shall
bear the Private Placement Legend until after the second
anniversary of the later of the issue date for the Securities
and the last date on which the Company or any Affiliate of the
Company was the owner of such shares or the Security (or any
predecessor security) from which such shares were converted (or
such shorter period of time as permitted by Rule 144(k) under
the Securities Act or any successor provision thereunder) (or
such longer period of time as may be required under the
Securities Act or applicable state securities laws in the
Opinion of Counsel for the Company, unless otherwise agreed by
the Company and the Holder thereof).
SECTION 10.02. Conversion Procedure.
To convert a Security a Holder must satisfy the
requirements in paragraph 9 of the Securities. The date on
which the Holder satisfies all those requirements is the
conversion date. As soon as practicable, the Company shall
deliver to the Holder through the Conversion Agent a certificate
for the number of full shares of Class A Common Stock issuable
upon the conversion and a check in lieu of any fractional share.
The person in whose name the certificate is registered shall be
treated as a stockholder of record on and after the conversion
date.
Except as described below, no payment or adjustment
will be made for accrued interest on, or liquidated damages with
respect to, a converted Security or for dividends on any Class A
Common Stock issued on conversion. If any Security is converted
between a record date for the payment of interest and the next
succeeding interest payment date, unless such Security has been
called for redemption on a redemption date between such dates,
such Security must be accompanied by funds equal to the interest
payable to the registered Holder on such interest payment date
on the initial principal amount so converted. A Security
converted on an interest payment date need not be accompanied by
any payment, and the interest on the initial
principal amount of the Security being converted will be paid on
such interest payment date to the registered Holder of such
Security on the immediately preceding record date.
If a Holder converts more than one Security at the
same time, the number of full shares issuable upon the
conversion shall be based on the total initial principal amount
of the Securities converted.
Upon surrender of a Security that is converted in part
the Trustee shall authenticate for the Holder a new Security
equal in initial principal amount to the unconverted portion of
the Security surrendered.
If the last day on which a Security may be converted
is a Legal Holiday in a place where a Conversion Agent is
located, the Security may be surrendered to that Conversion
Agent on the next succeeding day that is not a Legal Holiday.
SECTION 10.03. Fractional Shares.
The Company will not issue fractional shares of Class
A Common Stock upon conversion of Securities and instead will
deliver a check in lieu of the fractional share based upon the
market value of the Class A Common Stock on the last trading day
prior to the conversion date.
SECTION 10.04. Taxes on Conversion.
If a Holder converts its Security, the Company shall
pay any documentary, stamp or similar issue or transfer tax due
on the issue of shares of Class A Common Stock upon the
conversion. However, the Holder shall pay any such tax which is
due because the shares are issued in a name other than the
Holder's name.
SECTION 10.05. Company to Provide Stock.
The Company shall reserve out of its authorized but
unissued Class A Common Stock or its Class A Common Stock held
in treasury enough shares of Class A Common Stock to permit the
conversion of all of the Securities.
All shares of Class A Common Stock which may be issued
upon conversion of the Securities shall be validly issued, fully
paid and non-assessable.
The Company will endeavor to comply with all
securities laws regulating the offer and delivery of shares of
Class A Common Stock upon conversion of Securities and will
endeavor to list such shares on each national securities
exchange on which the Class A Common Stock is listed.
SECTION 10.06. Adjustment for Change in Capital Stock.
If the Company:
(1) pays a dividend or makes a distribution on its
Common Stock in shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock
into a greater number of shares;
(3) combines its outstanding shares of Common Stock
into a smaller number of shares;
(4) pays a dividend or makes a distribution on its
Common Stock in shares of its capital stock other than
Common Stock; or
(5) issues by reclassification of its Common Stock
any shares of its capital stock;
then the conversion privilege and the conversion rate in effect
immediately prior to such action shall be adjusted so that the
Holder of a Security thereafter converted may receive the number
of shares of capital stock of the Company which it would have
owned immediately following such action if it had converted the
Security immediately on or prior to the record date set in
connection with such action.
The adjustment shall become effective immediately
after the record date in the case of a dividend or distribution
and immediately after the effective date in the case of a
subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon
conversion of it may receive shares of two or more classes of
capital stock of the Company, the Board of Directors of the
Company shall determine the allocation of the adjusted
conversion rate between the classes of capital stock. After
such allocation, the conversion privilege and the conversion
rate of each class of capital stock shall thereafter be subject
to adjustment on terms comparable to those applicable to Common
Stock in this Article.
The conversion rate will not be adjusted for
accretion on principal or unpaid interest.
SECTION 10.07. Adjustment for Rights to
Purchase Shares Below
Market Price.
If the Company issues to all holders of its Common
Stock rights, options or warrants entitling such holders for a
period of sixty days or less to subscribe for or purchase
shares of Common Stock, or any securities convertible into or
exchangeable for shares of Common Stock, or rights, options or
warrants to subscribe for or purchase such convertible or
exchangeable securities (excluding rights, options or warrants
to subscribe for or purchase shares of Common Stock or
convertible or exchangeable securities or rights, options, or
warrants therefor issued in transactions described in Section
10.06) at a Price Per Share (as defined and determined
according to the formula given below) lower than the current
market price (see Section 10.10) on the date of such issuance,
the conversion rate shall be adjusted in accordance with the
following formula:
O+N
AC = CC x O+R
M
where
AC = the adjusted conversion rate.
CC = the then current conversion rate.
O = the number of shares of Common Stock outstanding
immediately prior to such issuance.
N = the "Number of Shares," which (i) in the case of rights,
options or warrants to subscribe for or purchase shares
of Common Stock or of securities convertible into or
exchangeable for shares of Common Stock, is the maximum
number of shares of Common Stock initially issuable upon
exercise, conversion or exchange thereof; and (ii) in the
case of rights, options or warrants to subscribe for or
purchase convertible or exchangeable securities, is the
maximum number of shares of Common Stock initially
issuable upon the conversion or exchange of the
convertible or exchangeable securities issuable upon the
exercise of such rights, options or warrants.
R = the proceeds received or receivable by the Company,
which (i) in the case of rights, options or warrants to
subscribe for or purchase shares of Common Stock or of
securities convertible into or exchangeable for shares of
Common Stock, is the total amount received or receivable
by the Company in consideration for the sale and issuance
of such rights, options, warrants or convertible or
exchangeable securities, plus the minimum aggregate
amount of additional consideration, other than the
convertible or exchangeable securities, payable to the
Company upon exercise, conversion or exchange thereof;
and (ii) in the case of rights, options or warrants to
subscribe for or purchase convertible or exchangeable
securities, is the total amount received or receivable by
the Company in consideration for the sale and issuance of
such rights, options or warrants, plus the minimum
aggregate consideration payable to the Company upon the
exercise thereof, plus the minimum aggregate amount of
additional consideration, other than the convertible or
exchangeable securities, payable upon the conversion or
exchange of the convertible or exchangeable securities;
provided that in each case the proceeds received or
receivable by the Company shall be deemed to be the
amount of gross cash proceeds without deducting therefrom
any compensation paid or discount allowed in the sale,
underwriting or purchase thereof by underwriters or
dealers or others performing similar services or any
expenses incurred in connection therewith.
M = the current market price per share of Class A Common
Stock on the date of issue of the rights, options or
warrants to subscribe for or purchase shares of Class A
Common Stock or the securities convertible into or
exchangeable for shares of Common Stock or the rights,
options or warrants to subscribe for or purchase
convertible or exchangeable securities.
"Price Per Share" shall be defined and determined
according to the following formula:
P = R
N
where
P = Price Per Share
and R and N have the meanings assigned above.
If the Company shall issue rights, options, warrants
or convertible or exchangeable securities for a consideration
consisting, in whole or in part, of property other than cash,
the amount of such consideration shall be determined in good
faith by the Board of Directors whose determination shall be
conclusive and evidenced by a resolution of the Board of
Directors filed with the Trustee.
The adjustment shall be made successively whenever any
such rights, options, warrants or convertible or exchangeable
securities are issued, and shall become effective immediately
after the date of issue of such shares, rights, options,
warrants or convertible or exchangeable securities.
To the extent that such rights, options or warrants
expire unexercised or to the extent any convertible or
exchangeable securities are redeemed by the Company or otherwise
cease to be convertible or exchangeable into shares of Common
Stock, the conversion rate shall be readjusted to the conversion
rate which would then be in effect had the adjustment made upon
the date of issuance of such rights, options, warrants or
convertible or exchangeable securities been made upon the basis
of the issuance of rights, options or warrants to subscribe for
or purchase only the number of shares of Common Stock as to
which such rights, options or warrants were actually exercised
and the number of shares of Common Stock that were actually
issued upon the conversion or exchange of the convertible or
exchangeable securities.
SECTION 10.08. Adjustment for Other Distributions.
If the Company distributes to all holders of its
Common Stock any of its assets or debt securities or any rights
or warrants to purchase assets or debt securities of the Company
which assets, debt securities, rights or warrants have an
aggregate fair market value on the date such distribution is
declared in excess of the "permitted dividend amount" (as
defined below), the conversion rate shall be adjusted in
accordance with the formula:
AC = CC x O x M
(O x M)-F
where:
AC = the adjusted conversion rate.
CC = the then current conversion rate.
O = the number of shares of Common Stock
outstanding on the record date mentioned below.
M = the current market price per share of Common
Stock, as defined in Section 10.10, on the
record date mentioned below.
F = the amount by which the fair market value on
the date the distribution is declared of the
assets, securities, rights or warrants
distributed exceeds the permitted dividend
amount. The Board of Directors of the Company
shall make all determinations of the fair
market value in connection with all
distributions and dividends.
The adjustment shall become effective immediately
after the record date for the determination of stockholders
entitled to receive the distribution.
The "permitted dividend amount" on any date shall be
an amount equal to (i) 10% of the current market capitalization
of the Company (the product of the current market price of the
Class A Common Stock and the number of shares of Common Stock
outstanding as of any particular date) minus (ii) the aggregate
of the value of all dividends or distributions (other than
dividends or distributions referred to in Sections 10.06 or
10.07) paid to holders of Common Stock during the twelve month
period ending on such date, provided that with respect to any
amount of a distribution not paid out of retained earnings, the
permitted dividend amount shall be zero, unless the dividend is
paid out of consolidated net income or in the form of common
stock. This Section 10.08 does not apply to reclassifications
or distributions referred to in Section 10.06 or distributions
referred to in Section 10.07.
SECTION 10.09. Voluntary Adjustment.
The Company at any time may reduce the conversion
rate, temporarily or otherwise, by any amount but in no event
shall such conversion rate be less than the par value of the
Class A Common Stock at the time such reduction is made. Such
reduced conversion rate shall remain in effect for so long as
required under applicable law and shall be irrevocable during
such period.
The Company reserves the right to make such reductions
in the conversion rate in addition to those required in the
foregoing provisions as the Company in its discretion shall
determine to be advisable in order that certain stockrelated
distributions hereafter made by the Company to its stockholders
shall not be taxable.
SECTION 10.10. Current Market Price.
In Sections 10.07 and 10.08 the current market price
per share of Class A Common Stock on any date is the average of
the last reported sale prices of a share of Class A Common Stock
on the principal national securities exchange on which the
shares of Common Stock are listed or admitted to trading or on
the Nasdaq National Market, or, if the Class A Common Stock is
not then listed on an exchange or on the Nasdaq National Market,
the closing sale prices (or the quoted closing bid prices if
there were no sales) as reported by NASDAQ, for 30 consecutive
trading days commencing 45 trading days before the date in
question. In the absence of one or more such quotations, the
Board of Directors shall determine the current market price on
the basis of such quotations as it considers appropriate.
SECTION 10.11. When Adjustment May Be Deferred.
No adjustment in the conversion rate will be made
unless such adjustment would require a change of at least 1% in
the conversion rate; provided, however, any adjustment that
would otherwise be required to be made shall be carried forward
and taken into account at the earlier of any subsequent
adjustment or three years after the occurrence of the event
giving rise to the adjustment.
All calculations under this Article shall be made to
the nearest cent or to the nearest 1/100th of a share, as the
case may be.
SECTION 10.12. When No Adjustment Required.
Except as set forth in Section 10.07, the conversion
rate will not be adjusted for the issuance of Common Stock or
any securities convertible into or exchangeable for Common
Stock, or carrying the right to purchase any of the foregoing.
No adjustment will be required for rights to purchase
Common Stock pursuant to any plan of the Company for
reinvestment of dividends or interest, or for a change in the
par value of the Common Stock.
To the extent that Securities become convertible into
cash, no adjustment will be required thereafter as to cash.
SECTION 10.13. Notice of Adjustment.
Whenever the conversion rate is adjusted, the Company
shall promptly mail to Securityholders a notice of the
adjustment. The Company shall file with the Trustee an
Officers' Certificate or a certificate from the Company's
independent public accountants briefly stating the facts
requiring the adjustment and the manner of computing it. The
certificate shall be conclusive evidence that the adjustment is
correct, absent manifest error.
SECTION 10.14. Notice of Certain Transactions.
If:
(1) the Company proposes to take any action that
would require an adjustment in the conversion rate;
(2) the Company proposes to take any action that
would require a supplemental indenture pursuant to Section
10.15; or
(3) there is a proposed liquidation, winding up or
dissolution of the Company,
the Company shall mail to Securityholders a notice stating the
proposed record date for a dividend or distribution or the
proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, transfer, lease,
liquidation or dissolution. The Company shall mail the notice
at least 10 days before such date. Failure to mail the notice
or any defect in it shall not affect the validity of the
transaction.
SECTION 10.15. Reorganization of the Company.
If the Company is a party to a transaction subject to
Section 5.01 or a merger which reclassifies or changes its
outstanding Common Stock, the successor corporation shall enter
into a supplemental indenture.
The supplemental indenture shall provide that the
Holder of a Security may convert it into the kind and amount of
securities, cash or other assets which it would have owned
immediately after the consolidation, merger, transfer or lease
if it had converted the Security immediately before the
effective date of the transaction. The supplemental indenture
shall provide for adjustments which shall be as nearly
equivalent as may be practical to the adjustments provided for
in this Article. The successor Company shall mail to
Securityholders a notice briefly describing the supplemental
indenture.
If this Section applies, Section 10.06 does not apply.
SECTION 10.16. Company Determination Final.
Any determination that the Board of Directors must
make pursuant to this Article is conclusive, absent manifest
error.
SECTION 10.17. Trustee's Disclaimer.
The Trustee has no duty to determine when an
adjustment under this Article or under the terms of the
Securities should be made, how it should be made or what it
should be. Such information shall be timely provided to the
Trustee in an Officer's Certificate. The Trustee has no duty to
determine whether any provisions of a supplemental indenture
under Section 10.15 are correct. The Trustee makes no
representation as to the validity or value of any securities or
assets issued upon conversion of Securities. The Trustee shall
not be responsible for the Company's failure to comply with this
Article. Each Conversion Agent other than the Company shall
have the same protection under this Section 10.17 as the
Trustee.
ARTICLE ELEVEN
[RESERVED]
ARTICLE TWELVE
SUBORDINATION
SECTION 12.01. Agreement to Subordinate.
The Company agrees, and each Securityholder by
accepting a Security agrees, that the indebtedness evidenced by
the Securities and the payment of the Redemption Price and any
unpaid and accrued interest are subordinated in right of
payment, to the extent and in the manner provided in this
Article, to the prior payment in full of all Senior Indebtedness
and that the subordination is for the benefit of the holders of
Senior Indebtedness. The Convertible Subordinated Notes shall
rank junior in right of payment to the Securities.
Money and securities held in trust pursuant to Article
Eight are not subject to the subordination provisions of this
Article Twelve.
SECTION 12.02. Certain Definitions.
"Representative" means the indenture trustee or other
trustee, agent or representative for an issue of Senior
Indebtedness.
"Indebtedness" means, with respect to any person, the
principal of, and premium, if any, and interest on (a) all
indebtedness of such person for borrowed money (including all
indebtedness evidenced by notes, bonds, debentures or other
securities sold by such person for money), (b) all obligations
incurred by such person in the acquisition (whether by way of
purchase, merger, consolidation or otherwise and whether by such
person or another person) of any business, real property
or other assets (except inventory and related items acquired in
the ordinary course of the conduct of the acquiror's usual
business), (c) guarantees by such person of indebtedness
described in clause (a) or (b) of another person, (d) all
renewals, extensions, refundings, deferrals, restructurings,
amendments and modifications of any such indebtedness,
obligation or guarantee, (e) all reimbursement obligations of
such person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such
person, (f) all capital lease obligations of such person and (g)
all net obligations of such person under interest rate swap or
similar agreements of such person.
"Senior Indebtedness" means Indebtedness of the
Company outstanding at any time except Indebtedness that by its
terms is subordinate in right of payment to the Securities or
Indebtedness that is not otherwise senior in right of payment to
the Securities. Senior Indebtedness does not include the
Convertible Subordinated Notes or Indebtedness of the Company to
any of the Company's subsidiaries.
SECTION 12.03. Liquidation; Dissolution; Bankruptcy.
Upon any distribution of assets to creditors of the
Company in a liquidation, winding up or dissolution of the
Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or
its property:
(1) holders of Senior Indebtedness shall be entitled
to receive payment in full of the principal of and interest
(including interest accruing after the commencement of any
such proceeding) to the date of payment on the Senior
Indebtedness before Securityholders shall be entitled to
receive any payment of the Redemption Price or any unpaid
and accrued interest on the Securities; and
(2) until the Senior Indebtedness is paid in full,
any distribution to which Securityholders would be entitled
but for this Article shall be made to holders of Senior
indebtedness as their interests may appear, except the
Securityholders may receive securities that are
subordinated to Senior Indebtedness to at least the same
extent as the Securities.
SECTION 12.04. Company Not to Make Payments
with Respect to Securities in
Certain Circumstances.
No payment of the Redemption Price and any unpaid and
accrued interest may be made by the Company, directly or
indirectly, on the Securities (including any repurchase pursuant
to the exercise of the Repurchase Right) or to acquire any of
the Securities at any time if a default in payment of the
Redemption Price and any unpaid and accrued interest on Senior
Indebtedness exists, unless and until such default shall have
been cured or waived or shall have ceased to exist.
During the continuance of any event of default with respect to
any Senior Indebtedness, as such event of default is defined
under any such Senior Indebtedness or in any agreement pursuant
to which any Senior Indebtedness has been issued (other than
default in payment of the Redemption Price and any unpaid and
accrued interest on any Senior Indebtedness), permitting the
holders thereof to accelerate the maturity thereof, no payment
may be made by the Company, directly or indirectly, with
respect to the Redemption Price and any unpaid and accrued
interest on the Securities for 183 days following written notice
to the Company, from any holder or holders thereof or their
representative or representatives or the trustee or trustees
under any indenture under which any instrument evidencing any
such Senior Indebtedness may have been issued, that such an
event of default has occurred and is continuing. However, if the
maturity of such Senior Indebtedness is accelerated, no payment
may be made on the Securities until such Senior Indebtedness
that has matured has been paid or such acceleration has been
cured or waived.
Regardless of anything to the contrary herein, nothing
shall prevent (a) any payment by the Trustee to the
Securityholders of amounts deposited with it pursuant to Article
Eight or (b) any payment by the Trustee or the Paying Agent as
permitted by Section 12.12. Nothing contained in this Article
Twelve will limit the right of the Trustee or the
Securityholders to take any action to accelerate the maturity of
the securities pursuant to Section 6.02 or to pursue any rights
or remedies hereunder.
SECTION 12.05. Acceleration of Securities.
If payment of the Securities is accelerated because of
an Event of Default, the Company shall promptly notify holders
of Senior Indebtedness of the acceleration.
SECTION 12.06. When Distribution Must Be Paid Over.
In the event that the Company shall make any payment
to the Trustee of the Redemption Price or any unpaid and accrued
interest on the Securities at a time when such payment is
prohibited by Section 12.03 or 12.04, such payment shall be held
by the Trustee, in trust for the benefit of, and shall be paid
forthwith over and delivered to, the holders of Senior
Indebtedness (pro rata as to each of such holders on the basis
of the respective amounts of Senior Indebtedness held by them)
or their Representative or the trustee under the indenture or
other agreement (if any) pursuant to which Senior Indebtedness
may have been issued, as their respective interests may appear,
for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in accordance with its terms, after giving
effects to any concurrent payment or distribution to or for the
holders of Senior Indebtedness.
If a distribution is made to Securityholders, that
because of this Article Twelve should not have been made to
them, the Securityholders who receive the distribution shall
hold it in trust for holders of Senior Indebtedness and pay it
over to them as their interests may appear.
SECTION 12.07. Notice by Company.
The Company shall promptly notify the Trustee and the
Paying Agent in writing of any facts known to the Company that
would cause a payment of the Redemption Price and any unpaid and
accrued interest on the Securities to violate this Article, but
failure to give such notice shall not affect the subordination
of the Securities to the Senior Indebtedness provided in this
Article.
SECTION 12.08. Subrogation.
After all Senior Indebtedness is paid in full and
until the Securities are paid in full, Securityholders shall be
subrogated to the rights of holders of Senior Indebtedness to
receive distributions applicable to Senior Indebtedness to the
extent that distributions otherwise payable to the
Securityholders have been applied to the payment of Senior
Indebtedness. A distribution made under this Article to holders
of Senior Indebtedness which otherwise would have been made to
Securityholders is not, as between the Company and
Securityholders, a payment by the Company on Senior
Indebtedness.
SECTION 12.09. Relative Rights.
This Article defines the relative rights of
Securityholders and holders of Senior Indebtedness. Nothing in
this Indenture shall:
(1) impair, as between the Company and
Securityholders, the obligation of the Company, which is
absolute and unconditional, to pay the Redemption Price and
any unpaid and accrued interest on the Securities in
accordance with their terms;
(2) affect the relative rights of Securityholders and
creditors of the Company other than holders of Senior
Indebtedness; or
(3) prevent the Trustee or any Securityholder from
exercising its available remedies upon a Default or Event
of Default, subject to the rights of holders of Senior
Indebtedness to receive distributions otherwise payable to
Securityholders.
If the Company fails because of this Article to pay
the Redemption Price and any unpaid and accrued interest on a
Security on the due date, the failure is still a Default or
Event of Default.
SECTION 12.10. Subordination May Not Be
Impaired by Company.
No right of any holder of Senior Indebtedness to
enforce the subordination of the indebtedness evidenced by the
Securities shall be impaired by any act or failure to act by the
Company or by its failure to comply with this Indenture.
SECTION 12.11. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice
given to holders of Senior Indebtedness, the distribution may be
made and the notice given to their Representatives.
SECTION 12.12. Rights of Trustee and Paying Agent.
The Trustee or Paying Agent may continue to make
payments on the Securities until it receives written notice of
facts that would cause a payment of the Redemption Price or any
unpaid and accrued interest on the Securities to violate this
Article. Only the Company, a Representative or a holder of an
issue of Senior Indebtedness that has no Representative may give
the notice.
The Trustee shall be entitled to rely on the delivery
to it of a written notice by a person representing himself to be
a holder of Senior Indebtedness (or a Representative on behalf
of such holder) to establish that such notice has been
given by a holder of Senior Indebtedness or a Representative on
behalf of any such holder. In the event that the Trustee
determines in good faith that further evidence is required with
respect to the right of any person who is a holder of Senior
Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Senior Indebtedness held by such person, the
extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the
rights of such person under this Article, and if such evidence
is not furnished the Trustee may defer any payment to such
person pending judicial determination as to the right of such
person to receive such payment or until such time as the Trustee
shall be otherwise satisfied as to the right of such person to
receive such payment.
The Trustee in its individual or any other capacity
may hold Senior Indebtedness with the same rights it would have
if it were not Trustee. Any Agent may do the same with like
rights.
The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness and shall not be
liable to any such holder if it shall mistakenly pay over or
distribute to Securityholders or the Company or any other person
money or assets to which any holders of Senior Indebtedness
shall be entitled by virtue of this Article or otherwise.
SECTION 12.13. Officers' Certificate.
If there occurs an event referred to in Section 12.03
or 12.04, the Company shall promptly give to the Trustee an
Officers' Certificate (on which the Trustee may conclusively
rely) identifying all holders of Senior Indebtedness or their
Representatives and the principal amount of Senior Indebtedness
then outstanding held by each such holder and stating the
reasons why such Officers' Certificate is being delivered to the
Trustee.
SECTION 12.14. Obligation of Company Unconditional.
Nothing contained in this Article Twelve or elsewhere
in this Indenture or in any Security is intended to or shall
impair, as between the Company, its creditors other than holders
of Senior Indebtedness and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the Redemption Price and
any unpaid and accrued interest on the Securities as and when
the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of
the Holders of the Securities and creditors of the Company other
than the holders of the Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the
rights, if any, under this Article Twelve of the holders of
Senior Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
Upon any distribution of assets of the Company referred to in
this Article Twelve, the Trustee, subject to the provisions of
Sections 7.01 and 7.02, and the Holders of the Securities shall
be entitled to rely upon any order or decree by any court of
competent jurisdiction in which such dissolution, winding up,
liquidation or
reorganization proceedings are pending, or a certificate of the
liquidating trustee or agent or other person making any
distribution to the Trustee or the Holders of the Securities,
for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article Twelve. Nothing contained in this Article Twelve
or elsewhere in this Indenture or in any Security is intended to
or shall affect the obligation of the Company to make, or
prevent the Company from making, at any time except during the
pendency of any dissolution, winding up, liquidation or
reorganization proceeding, and except during the continuance of
any default specified in Section 12.04 (not cured or waived),
payments at any time of the Redemption Price and any unpaid and
accrued interest on the Securities.
SECTION 12.15. Article 12 Not to Prevent Events of
Default.
The failure to make a payment of the Redemption Price
and any unpaid and accrued interest on the Securities by reason
of any provision of this Article 12 shall not be construed as
preventing the occurrence of an Event of Default under Section
6.01.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls.
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.
SECTION 13.02. Notices.
Any notice or communication by the Company or the
Trustee to the other is duly given if in writing and delivered
in person, mailed by first-class mail or by express delivery to
the other's address stated in this Section 13.02. The Company or
the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall
be mailed by first-class mail to its address shown on the
register kept by the Registrar. Failure to mail a notice or
communication to a Securityholder or any defect in it shall not
affect its sufficiency with respect to other Securityholders.
If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee and each
Agent at the same time.
All notices or communications shall be in writing.
The Company's address is:
Alpharma Inc.
One Executive Drive
Fort Lee, New Jersey 07024
Attention: Chief Legal Officer
The Trustee's address is:
First Union National Bank
21 South Street, 3rd Floor
Morristown, New Jersey 07960
Attention: Corporate Trust Administration
SECTION 13.03. Communication by Holders with
Other
Holders.
Securityholders may communicate
pursuant to TIA
312(b) with other Securityholders with respect
to their rights under this Indenture or the
Securities. The Company, the Trustee, the
Registrar and anyone else shall have the
protection of TIA 312(c).
SECTION 13.04. 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 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.
Each signer of an Officers' Certificate or an Opinion
of Counsel may (if so stated) rely, effectively, upon an Opinion
of Counsel as to legal matters and an Officers' Certificate as
to factual matters if such signer reasonably and in good faith
believes in the accuracy of the document relied upon.
SECTION 13.05. Statements Required in Certificate
or Opinion.
Each Officers' Certificate or Opinion of Counsel 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 or she has made such examination or investigation as is
necessary to enable him or her 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 13.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or
at a meeting of Securityholders. The Registrar, Paying Agent or
Conversion Agent may make reasonable rules and set reasonable
requirements for their respective functions.
SECTION 13.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on
which banking institutions are not required to be open in The
City of New York, in the State of New York or in the city in
which the Trustee administers its corporate trust business. If
a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not
a Legal Holiday, and no interest shall accrue on that payment
for the intervening period.
A "business day" is a day other than a Legal Holiday.
SECTION 13.08. 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 13.09. Duplicate Originals.
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 13.10. Governing Law.
The laws of the State of New York, without regard to
principles of conflicts of law, shall govern this Indenture and
the Securities.
SECTION 13.11. No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or a
subsidiary. Any such indenture, loan or debt agreement may not
be used to interpret this Indenture.
SECTION 13.12. Successors.
All agreements of the Company in this Indenture and
the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 13.13. Separability.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby
and a Holder shall have no claim therefor against any party
hereto.
SECTION 13.14. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and
headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict
any of the terms or provisions hereof.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the date first above
written.
ALPHARMA INC.
By:
______________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By:
______________________________
Name:
Title:
EXHIBIT A
REGISTERED [Face of Security] REGISTERED
NUMBER DOLLARS
ALPHARMA INC.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A
SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO.
OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED
TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN SECTION 2.16 OF THE INDENTURE.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR
TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS
THE LATER OF (X) TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAW ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL INVESTOR
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF THE
FOREGOING CLAUSE (E), A CERTIFICATE OF TRANSFER (A FORM OF WHICH
MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE) COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE COMPANY AND THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE.
THIS INSTRUMENT HAS BEEN ISSUED WITH ORIGINAL ISSUE
DISCOUNT, AS SUCH TERM IS DEFINED IN SECTION 1271 ET SEQ. OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED. UPON INQUIRY MADE BY
ANY HOLDER HEREOF ADDRESSED TO ALPHARMA INC., ONE EXECUTIVE
DRIVE, FORT LEE, NEW JERSEY 07024, ATTN: TREASURER, ALPHARMA
INC. WILL PROVIDE A STATEMENT SETTING FORTH THE ISSUE PRICE, THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE
AND THE YIELD TO MATURITY WITH RESPECT TO THE INSTRUMENT HELD
BY SUCH HOLDER.
3% CONVERTIBLE SENIOR SUBORDINATED NOTE DUE 2006
ALPHARMA INC., a Delaware corporation (herein called
the "Company"), for value received, hereby promises to pay to
Cede & Co. or registered assigns, 134.104% of the initial
principal sum of Dollars on June 1, 2006, and to
pay interest thereon as provided on the reverse hereof on the
initial principal sum, until the Redemption Price and any
unpaid and accrued interest is paid or duly provided for. The
right to payment of the Redemption Price and any unpaid and
accrued interest is subordinated to the rights of Senior
Indebtedness as set forth in the Indenture referred to on the
reverse side hereof.
Interest Payment Dates: June 1 and December 1, with
the first payment to be made on December 1, 1999.
Record Dates: May 15 and November 15.
The provisions on the back of this certificate are
incorporated as if set forth on the face hereof.
IN WITNESS WHEREOF, ALPHARMA INC. has caused this
instrument to be duly signed.
ALPHARMA INC.
By:
Name:
Title:
By:
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the
Securities referred to in
the within-mentioned
Indenture.
FIRST UNION NATIONAL BANK, as Trustee
By:
Authorized Signatory
Dated:
[REVERSE OF SECURITY]
ALPHARMA INC.
3% CONVERTIBLE SENIOR SUBORDINATED NOTE DUE 2006
1. Interest. Alpharma Inc., a Delaware corporation
(the "Company"), promises to pay interest on the initial
principal amount of this Security at the rate per annum, shown
above. The Company will pay interest semi-annually on June 1 and
December 1 of each year, with the first payment to be made on
December 1, 1999. Interest on the Securities will accrue on the
initial principal amount from the most recent date to which
interest has been paid or, if no interest has been paid, from
June 2, 19991. Interest will be computed on the basis of a 360
day year of twelve 30-day months.
2. Maturity and Yield. The Notes will mature on June
1, 2006 at a price of $1,341.04 per $1,000 of initial principal
amount. The payment of the principal amount of the Notes at
maturity, together with cash interest paid over the term of the
Notes, will yield an investor who holds a Note from the initial
issuance date until maturity 67/8% per annum, calculated on a
semi-annual basis.
3. Method of Payment. The Company will pay
interest on the Securities (except defaulted interest) to the
persons who are registered Holders of Securities at the close
of business on the record date set forth on the face of this Security
next preceding the applicable interest payment date. Holders must
surrender Securities to a Paying Agent to collect the Redemption Price
and any unpaid and accrued interest . The Company will pay the
Redemption Price and any unpaid and accrued interest in money of the
United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may pay the Redemption
Price and any unpaid and accrued interest by check payable in such
money. It may mail an interest check to a Holder's registered address.
4. Paying Agent, Registrar, Conversion Agent.
Initially, First Union National Bank (the "Trustee") will act
as Paying Agent, Registrar and Conversion Agent. The Company
may change any Paying Agent, Registrar or Conversion Agent
without notice. The Company may act in any such capacity.
5. Indenture. The Company issued the Securities
under an Indenture dated as of June 2, 1999 (the "Indenture")
between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S. Code 77aaa-77bbbb) (the "Act") as in effect on
the date of the Indenture. The Securities are subject to all
such terms, and Securityholders are referred to the Indenture
and the Act for a statement of such terms. The Securities are
general unsecured subordinated obligations of the Company
limited to $195,500,000 aggregate initial principal amount,
except as otherwise provided in the Indenture (except for
Securities issued in substitution for destroyed, mutilated, lost
or stolen Securities). Terms used herein which are defined in
the Indenture have the meanings assigned to them in the
Indenture.
6. Optional Redemption. The Securities will be
redeemable at the option of the Company, in whole or in part, at
any time on or after , June 2, 2002, at the redemption price
determined as described below (the "Redemption Price") to the
date of redemption, together with accrued and unpaid cash
interest to such date.
The Redemption Price (whether payable by reason of a
redemption by the Company, a Change in Control (as hereinafter
defined), an event of default or at maturity) shall be
determined so that taking into account cash interest paid and
accrued and unpaid interest, the holder of a Security from the
initial issuance date will receive a yield of 67/8% per annum
(calculated on a semi-annual basis). The Redemption Price will
be calculated in accordance with the following formula, rounded
(if necessary) to three decimal places with 0.0005 being rounded
upwards:
Redemption Price = (Previous Redemption Price x (1 +
r/2)d/p) - AI
For purposes of this formula:
Previous Redemption Price = the Redemption Price on the interest
payment date immediately preceding the date
fixed for redemption (or if the Securities are
to be redeemed or repurchased prior to
, 1999, $1,000) as set out below:
Interest Payment Date Redemption Price
December 1, 1999 $1,019.38
June 1, 2000 1,039.42
December 1, 2000 1,060.15
June 1, 2001 1,081.59
December 1, 2001 1,103.77
June 1, 2002 1,126.71
December 1, 2002 1,150.44
June 1, 2003 1,179.98
December 1, 2003 1,200.38
June 1, 2004 1,226.64
December 1, 2004 1,253.81
June 1, 2005 1,281.91
December 1, 2005 1,310.97
June 1, 2006 1,341.04
r = 67/8% expressed as a fraction.
d = number of days (as described in the following
sentence) from and including the immediately preceding
interest payment date (or if the Securities are to be
redeemed or repurchased on or before December 1, 1999 from and
including June 2, 1999) to but excluding the date fixed for
redemption. The number of days elapsed in any one-month period
from date of issuance or any interest payment date shall be
deemed to be 30, and the number of days elapsed in any
incomplete month shall be deemed to be the number of actual days
elapsed (not to exceed 30).
p = 180.
AI = accrued interest from the interest payment date
immediately preceding the date fixed for redemption or the
date of issuance, as applicable.
In the case of Securities called for redemption on a
redemption date between a record date and the opening of
business on the next succeeding interest payment date, no
interest or liquidated damages will be payable on any such
Securities converted during such period.
7. Notice of Redemption. Notice of redemption will
be mailed at least 30 days but not more than 60 days before the
redemption date to each Holder of Securities to be redeemed at
its registered address. Securities in denominations larger than
$1,000 initial principal amount may be redeemed in part but only
in whole multiples of $1,000 initial principal amount. On and
after the redemption date interest ceases to accrue on
Securities or portions of them called for redemption.
8. Repurchase at Option of Holder. In the event of
a Change in Control with respect to the Company, then each
Holder of the Securities shall have the right, at the Holder's
option, subject to the rights of the holders of Senior
Indebtedness under Article Twelve of the Indenture, to require
the Company to repurchase such Holder's Securities including any
portion thereof which is $1,000 initial principal amount or any
integral multiple thereof on a business day (the "Repurchase
Date") that is 45 days after the date of the Company Notice,
unless otherwise required by applicable law, at a price equal to
the Redemption Price on the Repurchase Date, plus accrued and
unpaid interest and liquidated damages, if any, to the
Repurchase Date.
Within 30 days after the occurrence of the Change in
Control, the Company is obligated to give notice of the
occurrence of such Change in Control to each Holder. Such
notice shall include, among other things, the date by which
Holder must notify the Company of such Holder's intention to
exercise the Repurchase Right and of the procedure which such
Holder must follow to exercise such right. To exercise the
Repurchase Right, a Holder of Securities must deliver on or
before the 30th day after the date of the Company Notice
irrevocable written notice to the Company (or an agent
designated by the Company for such purpose) and the Trustee of
the Holder's exercise of such right together with the Securities
with respect to which the right is being exercised, duly
endorsed for transfer. In the event any Holder exercises its
Repurchase Right, such Holder's conversion right will terminate
upon receipt of the written notice of exercise of such
Repurchase Right.
A "Change in Control" of the Company means (i) the
acquisition by any person, entity or "group" within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act (excluding,
for this purpose, the Company or its subsidiaries, or any
employee benefit plan of the Company or its subsidiaries which
acquires beneficial ownership of voting securities of the
Company) of beneficial ownership (within the meaning of Rule 13d-
3 promulgated under the Exchange Act) of shares of Common Stock
sufficient to elect a majority of directors; (ii) persons who,
as of the date of the Indenture, constitute the Board of
Directors (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors,
provided that any person becoming a director subsequent to the
date hereof whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be considered as though such person were a member of the
Incumbent Board; (iii) approval by the stockholders of the
Company of a reorganization, merger or consolidation, in each
case, with respect to which persons who were the stockholders of
the Company immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, beneficially own
shares sufficient to elect a majority of directors in the
election of directors of the reorganized, merged or consolidated
company or (iv) a liquidation or dissolution of the Company
(other than pursuant to the United States
Bankruptcy Code) or the conveyance, transfer or leasing of all
or substantially all of the assets of the Company to any person;
provided, however, that for the purpose of clauses (i)(iv)
above, the terms "person", "entity" and "group" shall not
include (x) Industrier, (y) the stockholders of Industrier in
the case of a distribution of shares of capital stock of the
Company beneficially owned by Industrier to the shareholders of
Industrier, unless a Change in Control of Industrier has
occurred or occurs concurrently with such a distribution, or in
series of related transactions of which such distribution is a
part, (determined without regard to this clause (y) of this
proviso) or (z) E.W. Sissener, his spouse, any heir or
descendant of Mr. Sissener or the spouse of any such heir or
descendant or the estate of Mr. Sissener (each, an "EWS Party"),
or any trust or other similar arrangement for the benefit of any
EWS Party or any corporation or other person or entity
controlled by one or more EWS Party or any group of which any
EWS Party is a member. For purposes of the preceding sentence,
a "liquidation" or "dissolution" shall not be deemed to include
any transfer of Company property solely to any persons
identified in clauses (x), (y) and (z) of the proviso of such
sentence.
9. Conversion. A Holder of a Security may convert
the initial principal of such Security into Class A Common Stock
of the Company at any time before the close of business on or
prior to June 1, 2006, or, (x) if the Security is called for
redemption by the Company, the Holder may convert it at any time
before the close of business on the date that is ten days before
the date fixed for such redemption, or (y) if the Security is to
be repurchased by the Company pursuant to paragraph 8 hereof,
the Holder may convert it at any time before the close of
business on the date that is one business day before the date
fixed for such repurchase. The initial conversion rate is
31.1429 shares per $1,000 of initial principal amount of
Securities, subject to adjustment in certain circumstances. To
determine the number of shares issuable upon conversion of a
Security, divide the initial principal amount to be converted by
the conversion price in effect on the conversion date and round
the result to the nearest 1/100th share. The Company will
deliver a check in lieu of any fractional share. On conversion
no payment or adjustment for the Redemption Price or any unpaid
and accrued interest , or liquidated damages with respect to,
the Securities will be made. If a Holder surrenders a Security
for conversion between the record date for the payment of
interest and the next interest payment date, such Security, when
surrendered for conversion, must be accompanied by payment of an
amount equal to the interest thereon which the registered Holder
on such record date is to receive.
To convert a Security a Holder must (1) complete and
sign the Conversion Notice, with appropriate signature
guarantee, on the back of the Security, (2) surrender the
Security to a Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the Registrar
or Conversion Agent, (4) pay the amount of interest, if any, the
Holder may be paid as provided in the last sentence of the above
paragraph and (5) pay any transfer or similar tax if required.
A Holder may convert a portion of a Security if the portion is
$1,000 initial principal amount or a whole multiple of $1,000
initial principal amount.
Any shares issued upon conversion of a Security shall
bear the Private Placement Legend until after the second
anniversary of the later of the issue date for the Securities
and the last date on which the Company or any Affiliate of the
Company was the owner of such shares or the Security (or any
predecessor security) from which such shares were converted (or
such shorter period of time as permitted by Rule 144(k) under
the Securities Act or any successor provision thereunder) (or
such longer period of time as may be required under the
Securities Act or applicable state securities laws in the
Opinion of Counsel for the Company, unless otherwise agreed by
the Company and the Holder thereof).
10. Subordination. The Securities are subordinated
in right of payment, in the manner and to the extent set forth
in the Indenture, to the prior payment in full of all Senior
Indebtedness. Each Holder by accepting a Security agrees to
such subordination and authorizes the Trustee to give it effect.
The Securities rank senior in right of payment to the the
Convertible Subordinated Notes (as defined in the Indenture).
11. Denominations, Transfer, Exchange. The
Securities are in registered form without coupons in
denominations of $1,000 initial principal amount and whole
multiples of $1,000 initial principal amount. The transfer of
Securities may be registered and Securities may be exchanged as
provided in the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and
transfer documents. No service charge shall be made for any
such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. The
Registrar need not exchange or register the transfer of any
Security selected for redemption in whole or in part. Also, it
need not exchange or register the transfer of any Securities for
a period of 15 days before the mailing of a notice of redemption
of the Securities selected to be redeemed.
12. Persons Deemed Owners. The registered Holder of
a Security may be treated as the owner of such Security for all
purposes.
13. Merger or Consolidation. The Company shall not
consolidate with, or merge into, or transfer or lease all or
substantially all of its assets to, any person unless, among
other things, the person is organized under the laws of the
United States, any State thereof or the District of Columbia and
such person assumes by supplemental indenture all the
obligations of the Company under the Securities and the
Indenture and after giving effect to the transaction no Default
or Event of Default exists.
Notwithstanding the foregoing, any subsidiary of the
Company may consolidate with, merge into or transfer all or part
of its properties and assets to the Company or any other
subsidiary or subsidiaries of the Company.
14. Amendments, Supplements and Waivers. Subject to
certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at
least a majority in aggregate initial principal amount of the
Securities then outstanding, and any existing Default or Event
of Default may be waived with the consent of the Holders of a
majority in aggregate initial principal amount of the Securities
then outstanding. Without notice to or the consent of any
Securityholder, the Indenture or the Securities may be amended
or supplemented to cure any ambiguity, omission, defect or
inconsistency, to provide for uncertificated Securities in
addition to certificated Securities, to comply with Sections
5.01 and 10.15 of the Indenture or to make any change that does
not adversely affect the rights of any Securityholder.
15. Defaults and Remedies. An Event of Default
includes the occurrence of any or the following: default for 30
days in payment of interest; default in payment of the
Redemption Price at maturity, upon redemption or exercise of a
Repurchase Right or otherwise; default in payment on
Indebtedness at maturity of at least $5,000,000 principal amount
and continuance of such default for 30 days after notice is
given in accordance with the Indenture, or default on
Indebtedness and, as a result, payment of at least $5,000,000
principal amount of Indebtedness is accelerated without such
acceleration having been cured, waived, rescinded, or annulled
for 30 days, failure by the Company for 60 days after notice to
it to comply with any of its other agreements in the Indenture
or the Securities; and certain events of bankruptcy or
insolvency. If any Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in aggregate
principal amount of the Securities then outstanding may declare
all the Securities to be due and payable at the Redemption
Price. 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 initial principal amount of the
Securities then outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing Default or Event of
Default (except a Default or Event of 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. Registration Rights. The Holders are entitled to
shelf registration rights as set forth in the Registration
Rights Agreement (as defined in the Indenture). The Holders
shall be entitled to receive liquidated damages in certain
circumstances, all as set forth in the Registration Rights
Agreement.
17. Trustee Dealings with Company. The Trustee under
the Indenture, or any banking institution serving as successor
Trustee thereunder, 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.
18. No Recourse Against Others. No past, present or
future director, officer, employee or stockholder, as such, of
the Company shall 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.
19. Authentication. This Security shall not be valid
until authenticated by the manual signature of the Trustee or an
authenticating agent.
20. 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.
REQUESTS MAY BE MADE TO:
ALPHARMA INC.
ONE EXECUTIVE DRIVE
FORT LEE, NEW JERSEY 07024
ATTENTION: CHIEF LEGAL OFFICER
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
(please print or type name and address)
the within Security and all rights thereunder, and hereby
irrevocably constitutes and appoints
attorney to transfer the Security on the books of the Company
with full power of substitution in the premises.
Dated:
NOTICE: The signature on this
assignment must correspond
with the name as it appears
upon the face of the within
Security in every particular
without
alteration or enlargement or
any change whatsoever and be
guaranteed by the endorser's
bank or broker.
Signature Guarantee:
In connection with any transfer of this Security
occurring prior to the date which is the earlier of (i) the
date of the declaration by the Commission of the effectiveness
of a registration statement under the Securities Act of 1933,
as amended (the "Securities Act") covering resales of this Note
(which effectiveness shall have been suspended or terminated at
the date of the transfer) and (ii) June 2, 2001 the undersigned
confirms that it has not utilized any general solicitation or
general advertising in connection with transfer:
[Check One]
(1) ____ to the Company or a subsidiary thereof; or
(2) ____ pursuant to and in compliance with Rule 144A
under the Securities Act of 1933, as amended; or
(3) ____ to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933, as amended) that has furnished
to the Trustee a signed letter containing certain
representations and agreements (the form of which
letter can be obtained from the Trustee); or
(4) ____ outside the United States to a "foreign
purchaser" in compliance with Rule 904 of Regulation S
under the Securities Act of 1933, as amended; or
(5) ____ pursuant to the exemption from registration
provided by Rule 144 under the Securities Act of 1933,
as amended; or
(6) ____ pursuant to an effective registration statement
under the Securities Act of 1933, as amended; or
(7) ____ pursuant to another available exemption from the
registration statement requirements of the Securities
Act of 1933, as amended.
and unless the box below is checked, the undersigned confirms
that such Security is not being transferred to an "affiliate" of
the Company as defined in Rule 144 under the Securities Act of
1933, as amended (an "Affiliate"):
The transferee is an Affiliate of the Company.
(If the Security is transferred to an Affiliate, the restrictive
legend must remain on the Security for two years following the
date of the transfer).
Unless one of the items is checked, the Trustee will
refuse to register any of the Securities evidenced by this
certificate in the name of any person other than the registered
Holder thereof; provided, however, that if item (3),(4),(5) or
(7) is checked, the Company or the Trustee may require, prior to
registering any such transfer of the Securities, in their sole
discretion, such written legal opinions, certifications
(including an investment letter in the case of box (3) or (4)
and other information as the Trustee or the Company have
reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Securities Act of 1933,
as amended.
If none of the foregoing items are checked, the
Trustee or Registrar shall not be obligated to register this
Security in the name of any person other than the Holder hereof
unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.16 of the
Indenture shall have been satisfied.
Dated: Signed:
(Sign exactly as name appears on the other
side of this Security)
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is
purchasing this Security for its own account or an account with
respect to which it exercises sole investment discretion and
that it and any such account is a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has
determined transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
NOTICE:To be executed by
an
executive officer
CONVERSION NOTICE
To convert this Security into Class A Common Stock of the
Company, check the box:
To convert only part of this Security, state the initial
principal amount to be converted (must be in multiples of
$1,000):
$
If you want the stock certificate made out in another person's
name, fill in the form below:
(Insert other person's soc. sec. or tax I.D. no.)
(Print or type other person's name, address and zip code)
_______________________________________________________________
Date:______________ Signature(s):
(Sign exactly as your name(s) appear(s) on the other side
of this Security)
Signature(s) guaranteed by:
(All signatures must be guaranteed by a
member of a national securities exchange or of
the National Association of Securities Dealers,
Inc. or by a commercial bank or trust company
located in the United States)
OPTION OF HOLDER TO ELECT PURCHASE NOTICE
If you want to elect to have this Security purchased
by the Company pursuant to Section 3.07 of the Indenture, check
the box:
If you want to elect to have only part of this
Security purchased by the Company pursuant to Section 3.07 of
the Indenture, state the initial principal amount:
$ __________________________________
(in an integral multiple of $1,000)
Date:__________________ Signature(s):
(Sign exactly as your name(s) appear(s) on the other
side of this Security)
Signature(s) guaranteed by:
(All signatures must be guaranteed by a member of a
national securities exchange or of the National
Association of Securities Dealers, Inc. or by a
commercial bank or trust company located in the
United States)
EXHIBIT B
FORM OF LEGEND FOR GLOBAL SECURITY
Any Global Security authenticated and delivered
hereunder shall bear a legend (which would be in addition to
any other legends required in the case of a Restricted
Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE
OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR
ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY
OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
,
[TRUSTEE]
Ladies and Gentlemen:
In connection with our proposed purchase of 3%
Convertible Senior Subordinated Notes due 2006 (the
"Securities") of Alpharma Inc. (the "Company"), we confirm that:
1. We have received a copy of the Offering
Memorandum (the "Offering Memorandum"), dated May 27, 1999,
relating to the Securities and such other information as we deem
necessary in order to make our investment decision. We
acknowledge that we have read and agreed to the matters stated
on page 1 of the Offering Memorandum and in the section entitled
"Notice to Investors" of the Offering Memorandum, including the
restrictions on duplication and circulation of the Offering
Memorandum.
2. We understand that any subsequent transfer of the
Securities is subject to certain restrictions and conditions set
forth in this Indenture relating to the Securities (as described
in the Offering Memorandum) and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the
Securities except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the
"Securities Act") and all applicable state securities laws.
3. We understand that the offer and sale of the
Securities have not been registered under the Securities Act,
and that the Securities may not be offered or sold except as
permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any Securities prior
to the date that is two years after the original issuance of the
Securities, we will do so only (i) to the Company or any of its
subsidiaries, (ii) inside the United States in accordance with
Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act), (iii)
inside the United States to an institutional "accredited
investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-
dealer) to the Trustee (as defined in the Indenture relating to
the Securities), a signed letter containing certain
representations and agreements relating to the restrictions on
transfer of the Securities (the form of which letter can be
obtained from the Trustee), (iv) outside the United States in
accordance with Rule 904 of Regulation S under the Securities
Act, (v) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act (if available), or (vi)
pursuant to an effective registration
statement under the Securities Act, and we further agree to
provide to any person purchasing any of the Securities from us a
notice advising such purchaser that resales of the Securities
are restricted as stated herein.
4. We are not acquiring the Securities for or on
behalf of, and will not transfer the Securities to, any pension
or welfare plan (as defined in Section 3 of the Employee
Retirement Income Security Act of 1974), except as permitted by
law.
5. We understand that, on any proposed resale of
any Securities, we will be required to furnish to the Trustee
and the Company such certification, legal opinions and other
information as the Trustee and the Company may reasonably
require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the
Securities purchased by us will bear a legend to the foregoing
effect.
6. We are an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act) and have such knowledge and experience
in financial and business matters as to be capable of evaluating
the merits and risks of our investment in the Securities, and we
and any accounts for which we are acting are each able to bear
the economic risk of our or their investment, as the case may
be.
7. We are acquiring the Securities purchased by us
for our account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we
exercise sole investment discretion.
You, the Company, the Trustee and others are entitled
to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
Name:
Title:
EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers Pursuant
to Regulation S
[Trustee]
Re: Alpharma Inc. (the "Company")
3% Convertible Subordinated Notes
due 2006 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $
aggregate initial principal amount of the Securities, we confirm
that such sale has been effected pursuant to and in accordance
with Regulation S under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent
that:
(1) the offer of the Securities was not made to
a person in the United States;
(2) either (a) at the time the buy offer was
originated, the transferee was outside the United
States or we and any person acting on our behalf
reasonably believed that the transferee was outside
the United States, or (b) the transaction was executed
in, on or through the facilities of a designated off-
shore securities market and neither we nor any person
acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made
in the United States in contravention of the
requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or
scheme to evade the registration requirements of the
Securities Act; and
(5) we have advised the transferee of the
transfer restrictions applicable to the Securities.
You, the Company and counsel for the Company are
entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party
in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
Authorized Signature
EXHIBIT E
Form of Notice of Transfer Pursuant to Registration Statement
Alpharma Inc.
One Executive Drive
Fort Lee, New Jersey 07024
Attention: Treasurer
[Trustee]
Re: Alpharma Inc. (the "Company") 3%
Convertible
Senior Subordinated Notes Due 2006 (the
"Securities")
Ladies and Gentlemen:
Please be advised that _____________ has transferred
$___________ aggregate principal amount of the Securities or __
shares of the Company's Class A common stock, $0.01 par value per
share, issuable on conversion of the Securities ("Stock")
pursuant to an effective Shelf Registration Statement on Form S3
(File No. 333- ) filed by the Company.
We hereby certify that the prospectus delivery
requirements, if any, of the Securities Act of 1933 as amended,
have been satisfied with respect to the transfer described
above and that the above-named beneficial owner of the
Securities or Stock is named as a "Selling Security Holder" in
the Prospectus dated or in amendments or supplements
thereto, and that the aggregate initial principal amount of the
Securities, or number of shares of Stock transferred are [a
portion of] the Securities or Stock listed in such Prospectus,
as amended or supplemented, opposite such owner's name.
Very truly yours,
_______________________
__
(Name) EXHIBIT
F
Form of Opinion of Counsel in Connection with Registration of
Securities
[Trustee]
Re: Alpharma Inc. (the "Company") 3% Senior
Subordinated Convertible Notes Due 2006
(the "Securities")
Gentlemen:
Reference is made to the Securities issued pursuant to
a certain indenture dated as of June 2, 1999 by and between the
Company and First Union National Bank, as trustee (the
"Trustee"). The Company issued $170.0 million initial principal
amount of Securities on June 2, 1999 in transactions exempt from
registration under the Securities Act of 1933, as amended (the
"Securities Act"). The Company has filed with the Securities
and Exchange Commission (the "SEC") a registration statement on
Form S-3 (number 333-____) (the "Registration Statement")
relating to the registration under the Securities Act of $[
] principal amount of the Securities and the
shares of Class A Common Stock of the Company (the "Shares")
issuable upon conversion of the Securities being registered. The
Registration Statement was declared effective by order of the
SEC dated [_____________].
We have acted as counsel for the Company in
connection with the issuance of the Securities and the
preparation and filing of the Registration Statement and are
familiar with the Securities, the Indenture, the Registration
Statement, the above-mentioned SEC order and such other
documents as are necessary to render this opinion.
Based on the foregoing, it is our opinion that
(1) the Registration Statement has become and is currently
effective under the Securities act so that the Securities
covered thereby and the Shares issuable upon conversion of such
Securities are duly registered under the Securities Act; and (2)
the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended.
Yours truly,
_______________________________
1 For Securities issued pursuant to the exercise of the
Initial Purchasers' option to purchase up to an additional
$25,500,000 of Securities under the fourth paragraph of
Section 2.02, insert date of original issue of Notes.
-2-
$169,900,000 Initial Principal Amount
ALPHARMA INC.
3% Convertible Senior Subordinated Notes Due 2006
REGISTRATION RIGHTS AGREEMENT
June 2, 1999
WARBURG DILLON READ LLC
BEAR, STEARNS & CO. INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
c/o Warburg Dillon Read LLC
299 Park Avenue
New York, New York 10171
Dear Sirs:
Alpharma Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to Warburg Dillon Read LLC,
Donaldson, Lufkin & Jenrette Securities Corporation and Bear
Stearns & Co. Inc., acting as managing initial purchasers on
behalf of the several initial purchasers named in Schedule A
hereto, upon the terms set forth in a purchase agreement of
even date herewith (the "Purchase Agreement"), $169,900,000
aggregate initial principal amount of its 3% Convertible Senior
Subordinated Notes due 2006 (the "Firm Notes"), which are
convertible into Class A Common Stock of the Company, par value
$.20 per share (the "Conversion Shares"), as well as an
additional allotment of up to $25,500,000 initial principal
amount of the same which the Initial Purchasers may
subsequently elect to purchase pursuant to the terms of the
Purchase Agreement (the "Additional Notes" and together with
the Firm Notes, the "Notes"). The Notes will be issued
pursuant to an Indenture, dated as of June 2, 1999 (the
"Indenture") between the Company and First Union National Bank
(the "Trustee"). As an inducement to the Initial Purchasers,
the Company agrees with the Initial Purchasers, for the benefit
of the holders of the Notes (including, without limitation, the
Initial Purchasers) and Conversion Shares (collectively, the
"Securityholders"), as follows:
1. Shelf Registration. (a) The Company shall file with
the Securities and Exchange Commission (the "Commission")
within 90 days after the Closing Date a registration statement
(the "Shelf Registration Statement") on Form S-1 or Form S-3,
if the use of such form is then available, to cover resales of
Transfer Restricted Securities (as defined) by the Holders (as
defined). The Company shall use its best efforts to cause the
Shelf Registration Statement to be declared effective by the
Commission on or prior to 180 days from the Closing Date.
"Transfer Restricted Securities" means each Note and any
Conversion Share until the earlier of the (x) the date on which
such Note or Conversion Share has been effectively registered
under the Securities Act and disposed of, whether or not in
accordance with the Shelf Registration Statement, and (4) the
date on which such Note or Conversion Share may be sold or
transferred pursuant to Rule 144(k) (or any similar provisions
then in force).
(b) The Company shall use its best efforts to cause the
Shelf Registration Statement to be effective for a period of
two years (or for such longer period if extended pursuant to
Section 2(h) below) from the effective date thereof or such
shorter period that will terminate when each Transfer
Restricted Security covered by the Shelf Registration Statement
ceases to be a Transfer Restricted Security (in either case,
such period is referred to as the "Shelf Registration Period").
The Company shall be deemed not to have used its best efforts
to keep the Shelf Registration Statement effective during the
requisite period if it voluntarily takes any action that would
result in Holders of Transfer Restricted Securities covered
thereby not being able to offer and sell such Transfer
Restricted Securities during that period, unless such action is
required by applicable law or otherwise permitted hereunder,
including, without limitation, by Section 2(i) hereof.
(c) Notwithstanding any other provisions of this
Agreement to the contrary, the Company shall cause the Shelf
Registration Statement and the related prospectus and any
amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement, amendment or supplement, (i)
to comply in all material respects with the applicable
requirements of the Securities Act and the rules and
regulations of the Commission and (ii) not to contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading.
2. Registration Procedures. In connection with the
proposed offer and sale of the Transfer Restricted Securities
in accordance with the methods of distribution set forth in the
Shelf Registration Statement (the "Shelf Registration"), the
following provisions apply:
(a) The Company shall prepare and mail to each
Securityholder identified by the Initial Purchasers a
questionnaire requesting such information regarding such
Securityholder and the distribution of Transfer Restricted
Securities as the Company may reasonably require for
inclusion in the Shelf Registration Statement and asking
each such Securityholder to confirm that it will comply
with applicable securities laws, including the Securities
Act. Each Securityholder to whom such questionnaire is
mailed shall deliver a completed questionnaire to the
Company within fifteen days of receipt. The Company will
include in the Shelf Registration Statement as a selling
security holder each Securityholder that returns its
questionnaire within fifteen days of receipt and will use
its best efforts to include in the Shelf Registration
Statement any Securityholder which fails to provide the
Company with a completed questionnaire within fifteen days
of receipt but otherwise provides the requested
information and confirmation prior to the commencement of
the Shelf Registration Period. The Company shall have no
obligation to include in the Shelf Registration Statement
(whether by post-effective amendment, by prospectus
supplement or otherwise) a Securityholder which fails to
provide the Company with a completed questionnaire prior
to the commencement of the Shelf Registration Period.
"Holder" means each Securityholder who (i) is so
identified by the Initial Purchasers within 5 business
days after receipt by the Initial Purchasers of a written
request by the Company and (ii) delivers to the Company a
completed questionnaire containing the required
information and confirmation within such fifteen-day
period or is otherwise included as a selling security
holder in the Shelf Registration Statement.
(b) The Company shall (i) furnish to the Initial
Purchasers, prior to the filing thereof with the
Commission, a copy of the Shelf Registration Statement and
each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that the
Initial Purchasers (with respect to any portion of an
unsold allotment from the original offering) is
participating in the Shelf Registration, the Company shall
use its best efforts to reflect in each such document,
when so filed with the Commission, such comments as the
Initial Purchasers reasonably may propose; and (ii)
include in such Shelf Registration Statement (or amendment
or supplements) the names of the Holders who propose to
sell Transfer Restricted Securities pursuant to the Shelf
Registration Statement as selling securityholders.
(c) The Company shall give written notice to the
Initial Purchasers and Holders of the Transfer Restricted
Securities (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied by an instruction to suspend
the use of the prospectus and any sales pursuant to such
prospectus until the requisite changes have been made):
(i) when the Shelf Registration Statement or any
amendment thereto has been filed with the Commission
and when the Shelf Registration Statement or any post-
effective amendment thereto has become effective;
(ii) of any request by the Commission for
amendments or supplements to the Shelf Registration
Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf
Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the
suspension of the qualification of the Transfer
Restricted Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for
such purpose; and
(v) of the happening of any event that requires
the Company to make changes in the prospectus which
forms a part of the Shelf Registration Statement in
order that the prospectus does not contain an untrue
statement of a material fact nor omits to state a
material fact required to be stated therein or
necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading.
(d) The Company shall make every reasonable effort
to obtain the withdrawal at the earliest possible time, of
any order suspending the effectiveness of the Shelf
Registration Statement.
(e) The Company shall furnish to each Holder of
Transfer Restricted Securities included within the
coverage of the Shelf Registration, without charge, at
least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests
in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(f) The Company shall, during the Shelf Registration
Period, deliver to each Holder of Transfer Restricted
Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the
prospectus (including each preliminary prospectus)
included in the Shelf Registration Statement and any
amendment or supplement thereto as such person may
reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus
or any amendment or supplement thereto by each of the
selling Holders of the Transfer Restricted Securities in
connection with the offering and sale of the Transfer
Restricted Securities covered by the prospectus, or any
amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) Prior to any public offering of the Transfer
Restricted Securities pursuant to any Shelf Registration
Statement, the Company shall register or qualify or
cooperate with the Holders of the Transfer Restricted
Securities included therein and their respective counsel
in connection with the registration or qualification of
the Transfer Restricted Securities for offer and sale
under the securities or "blue sky" laws of such states of
the United States as any Holder of the Transfer Restricted
Securities reasonably requests in writing and do any and
all other acts or things necessary or advisable to enable
the offer and sale in such states of the Transfer
Restricted Securities covered by such Shelf Registration
Statement; provided, however, that the Company shall not
be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii)
take any action which would subject it to general service
of process or to taxation in any jurisdiction where it is
not then so subject.
(h) The Company shall cooperate with the Holders of
the Transfer Restricted Securities to facilitate the
timely preparation and delivery of certificates
representing the Transfer Restricted Securities to be sold
pursuant to any Shelf Registration Statement free of any
restrictive legends and in such denominations and
registered in such names as the Holders may request a
reasonable period of time prior to sales of the Transfer
Restricted Securities pursuant to such Shelf Registration
Statement and prior to settlement of such sales.
(i) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 2(c) above during
the Shelf Registration Period, the Company shall promptly
prepare and file a post-effective amendment to the Shelf
Registration Statement or a supplement to the related
prospectus and any other required document so that, as
thereafter delivered to Holders of the Transfer Restricted
Securities or purchasers of Transfer Restricted
Securities, the prospectus will not contain an untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances
under which they were made, not misleading; provided,
however, that the Company may delay preparing, filing and
distributing any such supplement or amendment (such period
of delay, a "Suspension Period") if the Company determines
in good faith that such supplement or amendment would, in
the reasonable judgment of the Company, (i) interfere with
or affect the negotiation or completion of a transaction
that is being contemplated by the Company (whether or not
a final decision has been made to undertake such
transaction) or (ii) involve initial or continuing
disclosure obligations that are not in the best interests
of the Company's stockholders at such time; provided,
further, that such delay shall not extend for a period of
more than 30 business days in any three-month period or
more than 60 business days in any twelve-month period. If
the Company notifies the Initial Purchasers and the
Holders of the Transfer Restricted Securities in
accordance with paragraphs (ii) through (v) of Section
2(c) above to suspend the use of the prospectus until the
requisite changes to the prospectus have been made, then
the Initial Purchasers and the Holders of the Transfer
Restricted Securities shall suspend use of such
prospectus, and the period of effectiveness of the Shelf
Registration Statement provided for in Section 1(b) above
shall be extended by the number of days from and including
the date of the giving of such notice to and including the
date when the Initial Purchasers and the Holders of the
Transfer Restricted Securities shall have received such
amended or supplemented prospectus pursuant to this
Section 2(i).
(j) Not later than the effective date of the Shelf
Registration Statement, the Company will provide CUSIP
numbers for the Notes and the Conversion Shares registered
under the Shelf Registration Statement and provide the
Trustee with a certificate for the Notes, in a form
eligible for deposit with The Depository Trust Company.
(k) The Company will comply with all rules and
regulations of the Commission to the extent and so long as
they are applicable to the Shelf Registration and will
make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the
Securities Act) an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no
later than 45 days after the end of a 12-month period (or
90 days, if such period is a fiscal year) beginning with
the first month of the Company's first fiscal quarter
commencing after the effective date of the Shelf
Registration Statement, which statement shall cover such
12-month period.
(l) The Company shall cause the Indenture to be
qualified under the Trust Indenture Act of 1939, as
amended, in a timely manner and containing such changes,
if any, as shall be necessary for such qualification. In
the event that such qualification would require the
appointment of a new trustee under the Indenture, the
Company shall appoint a new trustee thereunder pursuant to
the applicable provisions of the Indenture.
(m) The Company may require each Holder of Transfer
Restricted Securities to be sold pursuant to the Shelf
Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of
the Transfer Restricted Securities as the Company may from
time to time reasonably require for inclusion in the Shelf
Registration Statement, and the Company may exclude from
such registration the Transfer Restricted Securities of
any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(n) The Company shall enter into such customary
agreements (including, if requested, an underwriting
agreement in customary form) and take all such other
action, if any, as any Holder which, together with its
"affiliates" (as defined in the Securities Act), holds $40
million or greater in aggregate initial principal amount
of the Transfer Restricted Securities and which, together
with its affiliates, intends to sell at least $40 million
in initial aggregate principal amount of Transfer
Restricted Securities in an underwritten offering, shall
reasonably request in order to facilitate the disposition
of the Transfer Restricted Securities pursuant to any
Shelf Registration; provided, that in no event shall the
Company be required to cause any representatives to attend
any informational or roadshow presentations or pay any
expenses related thereto.
(o) The Company shall (i) make reasonably available
for inspection by the Holders, any underwriter
participating in any disposition pursuant to the Shelf
Registration Statement and any attorney, accountant or
other agent retained by the Holders or any such
underwriter all relevant financial and other records,
pertinent corporate documents and properties of the
Company and (ii) cause the Company's officers, directors,
employees, accountants and auditors to supply all relevant
information reasonably requested by the Holders or any
such underwriter, attorney, accountant or agent in
connection with the Shelf Registration Statement, in each
case, as shall be reasonably necessary to enable such
persons, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information
gathering shall be coordinated on behalf of the Initial
Purchasers and the other parties by one firm of counsel,
which firm shall be Cahill Gordon & Reindel until another
firm shall be designated as described in Section 3 hereof.
(p) The Company, if requested by any Holder of the
Transfer Restricted Securities referred to in paragraph
(n) above, shall cause (i) its counsel to deliver an
opinion relating to the Transfer Restricted Securities in
customary form addressed to such Holder and the managing
underwriters, if any, thereof and dated, in the case of
the initial opinion, the effective date of such Shelf
Registration Statement (it being agreed that the matters
to be covered by such opinion shall include, without
limitation, the good standing of the Company and its
subsidiaries; the qualification of the Company and its
subsidiaries to transact business as foreign corporations;
the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 2(n)
hereof; the due authorization, execution, authentication
and issuance, and the validity and enforceability, of the
applicable Transfer Restricted Securities; to such
counsel's knowledge, the absence of material legal or
governmental proceedings involving the Company and its
subsidiaries; to such counsel's knowledge, the absence of
governmental approvals required to be obtained in
connection with the Shelf Registration Statement, the
offering and sale of the applicable Transfer Restricted
Securities, or any agreement of the type referred to in
Section 2(n) hereof; (ii) cause its counsel to deliver a
statement in customary form relating to the compliance as
to form of such Shelf Registration Statement and any
documents incorporated by reference therein and of the
Indenture with the requirements of the Securities Act and
the Trust Indenture Act, respectively; and, as of the date
of the opinion and as of the effective date of the Shelf
Registration Statement or most recent post-effective
amendment thereto, as the case may be, the absence from
such Shelf Registration Statement and the prospectus
included therein, as then amended or supplemented, and
from any documents incorporated by reference therein of an
untrue statement of a material fact or the omission to
state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading (in the case of any such documents, in the
light of the circumstances existing at the time that such
documents were filed with the Commission under the
Exchange Act); (iii) its officers to execute and deliver
all customary documents and certificates and updates
thereof requested by any underwriters of the applicable
Transfer Restricted Securities; and (iv) its independent
public accountants and the independent public accountants,
if any, with respect to any other entity for which
financial information is provided in the Shelf
Registration Statement to provide to the selling Holder(s)
of the applicable Transfer Restricted Securities and any
underwriter therefor a comfort letter in customary form
and covering matters of the type customarily covered in
comfort letters in connection with primary underwritten
offerings, subject to receipt of appropriate documentation
as contemplated, and only if permitted, by Statement of
Auditing Standards No. 72.
(q) The Company will use its best efforts to (i) if
the Notes have been rated prior to the initial sale of
such Notes, confirm such ratings will apply to the Notes
covered by the Shelf Registration Statement, or (ii) if
the Notes were not previously rated, cause the Notes
covered by the Shelf Registration Statement to be rated
with the appropriate rating agencies, if so requested by
Holders of a majority in aggregate initial principal
amount of Transfer Restricted Securities covered by such
Shelf Registration Statement, or by the managing
underwriters, if any.
(r) In the event that any broker-dealer registered
under the Exchange Act shall underwrite any Transfer
Restricted Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules
(the "Rules") of the National Association of Securities
Dealers, Inc. ("NASD")) thereof, whether as a Holder of
such Transfer Restricted Securities or as an underwriter,
a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Company, if requested
by such broker-dealer, will assist such broker-dealer in
complying with the requirements of such Rules, including,
without limitation, by (i) if such Rules, including Rule
2720, shall so require, engaging a "qualified independent
underwriter" (as defined in Rule 2720) to participate in
the preparation of the Shelf Registration Statement
relating to such Transfer Restricted Securities, to
exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated
by such Shelf Registration Statement is an underwritten
offering or is made through a placement or sales agent, to
recommend the yield of such Transfer Restricted
Securities, (ii) indemnifying any such qualified
independent underwriter to the extent of the
indemnification of underwriters provided in Section 4
hereof and (iii) providing such information to such broker-
dealer as may be required in order for such broker-dealer
to comply with the requirements of the Rules.
(s) The Company shall use its best efforts to take
all other steps necessary to effect the registration of
the Transfer Restricted Securities covered by the Shelf
Registration Statement contemplated hereby.
3. Registration Expenses. The Company shall bear all
fees and expenses incurred in connection with the performance
of its obligations under Sections 1 and 2 hereof whether or not
a Shelf Registration is filed or becomes effective, shall bear
or reimburse the Holders of the Transfer Restricted Securities
covered thereby for the reasonable fees and disbursements of
one firm of counsel, which firm shall be Cahill Gordon &
Reindel until another firm shall be designated by the Holders
of a majority in initial principal amount of the Notes covered
thereby to act as counsel for the Holders in connection
therewith. The Holders shall be responsible for all other fees
and expenses, such as brokerage fees and commissions.
4. Indemnification. (a) To the extent permitted by law,
the Company agrees to indemnify and hold harmless each Holder
of the Transfer Restricted Securities and each person, if any,
who controls such Holder within the meaning of the Securities
Act or the Exchange Act (each Holder and such controlling
persons are referred to collectively as the "Indemnified
Parties") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect
thereof (including, but not limited to, any losses, claims,
damages, liabilities or actions relating to purchases and sales
of the Transfer Restricted Securities) to which each
Indemnified Party may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in the Shelf Registration Statement or
prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Shelf Registration, or
arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such
loss, claim, damage, liability or action in respect thereof;
provided, however, that (i) the Company shall not be liable in
any such case to the extent that such loss, claim, damage or
liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission
made in the Shelf Registration Statement or prospectus or in
any amendment or supplement thereto or in any preliminary
prospectus relating to the Shelf Registration in reliance upon
and in conformity with written information pertaining to a
Holder and furnished to the Company by or on behalf of such
Holder specifically for inclusion therein and (ii) with respect
to any untrue statement or omission or alleged untrue statement
or omission made in any preliminary prospectus relating to the
Shelf Registration Statement, the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any
Holder from whom the person asserting any such losses, claims,
damages or liabilities purchased the Transfer Restricted
Securities concerned, to the extent that a prospectus relating
to such Transfer Restricted Securities was required to be
delivered by such Holder under the Securities Act in connection
with such purchase and any such loss, claim, damage or
liability of such Holder results from the fact that there was
not sent or given to such person, at or prior to the written
confirmation of the sale of such Transfer Restricted Securities
to such person, a copy of the final prospectus if the Company
had previously furnished copies thereof to such Holder;
provided further, however, that this indemnity agreement will
be in addition to any liability which the Company may otherwise
have to such Indemnified Party. The Company shall also
indemnify underwriters, their officers and directors and each
person who controls such underwriters within the meaning of the
Securities Act or the Exchange Act to the same extent as
provided above with respect to the indemnification of the
Holders of the Transfer Restricted Securities if requested by
such Holders.
(b) To the extent permitted by law, each Holder of the
Transfer Restricted Securities, severally and not jointly, will
indemnify and hold harmless the Company and each person, if
any, who controls the Company within the meaning of the
Securities Act or the Exchange Act from and against any losses,
claims, damages or liabilities or any actions in respect
thereof, to which the Company or any such controlling person
may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement or prospectus or
in any amendment or supplement thereto or in any preliminary
prospectus relating to the Shelf Registration, or arise out of
or are based upon the omission or alleged omission to state
therein a material fact necessary to make the statements
therein not misleading, but in each case only to the extent
that the untrue statement or omission or alleged untrue
statement or omission was made in reliance upon and in
conformity with written information pertaining to such Holder
and furnished to the Company by or on behalf of such Holder
specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, shall
reimburse, as incurred, the Company for any legal or other
expenses reasonably incurred by the Company or any such
controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in
respect thereof. This indemnity agreement will be in addition
to any liability which such Holder may otherwise have to the
Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under
this Section 5 of notice of the commencement of any action or
proceeding (including a governmental investigation), such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 5,
notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party will not, in
any event, relieve the indemnifying party from any obligations
to any indemnified party. In case any such action is brought
against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it
may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so
to assume the defense thereof the indemnifying party will not
be liable to such indemnified party under this Section 5 for
any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party
in connection with the defense thereof. No indemnifying party
shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of
such action. An indemnifying party will not be liable for any
settlement of any action or claim effected without its written
consent; provided, however, that such consent will not be
reasonably withheld.
(d) If the indemnification provided for in this Section 4
is unavailable or insufficient to hold harmless an indemnified
party under subsections (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof)
referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the sale of the
Transfer Restricted Securities, pursuant to the Shelf
Registration, or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the indemnifying party or parties on the one
hand and the indemnified party on the other in connection with
the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof)
as well as any other relevant equitable considerations. The
relative fault of the parties shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged
omission to state a material fact relates to information
supplied by the Company on the one hand or such Holder or such
other indemnified party, as the case may be, on the other, and
the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection
(d). Notwithstanding any other provision of this Section 4(d),
the Holders of the Transfer Restricted Securities shall not be
required to contribute any amount in excess of the amount by
which the net proceeds received by such Holders from the sale
of the Transfer Restricted Securities pursuant to a Shelf
Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of
this paragraph (d), each person, if any, who controls such
indemnified party within the meaning of the Securities Act or
the Exchange Act shall have the same rights to contribution as
such indemnified party and each person, if any, who controls
the Company within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the
Company.
(e) The agreements contained in this Section 4 shall
survive the sale of the Transfer Restricted Securities pursuant
to the Shelf Registration Statement and shall remain in full
force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of
any indemnified party.
5. Liquidated Damages Under Certain Circumstances. If
(i) the Shelf Registration Statement is not filed with the
Commission on or prior to 90 days after the Closing Date,
(ii) the Shelf Registration Statement has not been declared
effective by the Commission within 180 days after the Closing
Date or (iii) the Shelf Registration Statement is filed and
declared effective but shall thereafter during the Shelf
Registration Period cease to be effective (without being
succeeded immediately by an additional registration statement
filed and declared effective) or usable for the offer and sale
of Transfer Restricted Securities for a period of time
(including any Suspension Period) which shall exceed 60 days in
the aggregate in any 12-month period (each such event referred
to in clauses (i) through (iii), a "Registration Default"), the
Company will pay liquidated damages to each Holder of Transfer
Restricted Securities (as defined in Section 2(a)). The amount
of liquidated damages payable during any period during which a
Registration Default shall have occurred and be continuing is
that amount which is equal to one-quarter of one percent (25
basis points) per annum per $1,000 initial principal amount
and, if applicable, on an equivalent basis per Conversion Share
(subject to adjustment in the event of stock splits, stock
recombinations, stock dividends and the like) constituting
Transfer Restricted Securities for each 90-day period until the
applicable registration statement is filed and the applicable
registration statement is declared effective or the Shelf
Registration Statement again becomes effective or useable, as
the case may be, up to a maximum amount of liquidated damages
of one and one-quarter percent (125 basis points) per annum per
$1,000 initial principal amount of Notes and, if applicable, on
an equivalent basis per Conversion Share (subject to adjustment
as set forth above) constituting Transfer Restricted
Securities. All accrued liquidated damages shall be paid to
Holders of record by wire transfer of immediately available
funds or by federal funds check by the Company on the regular
interest payment date. Following the cure of all Registration
Defaults or, if earlier, the termination of the Shelf
Registration Period, liquidated damages will cease to accrue
with respect to such Registration Default.
6. Rules 144 and 144A. The Company shall use its best
efforts to file the reports required to be filed by it under
the Securities Act and the Exchange Act in a timely manner and,
if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Notes, make
publicly available other information so long as necessary to
permit sales of their securities pursuant to Rules 144 and
144A. The Company covenants that it will take such further
action as any Holder of Notes may reasonably request, all to
the extent required from time to time to enable such Holder to
sell Notes without registration under the Securities Act within
the limitation of the exemptions provided by Rules 144 and 144A
(including the requirements of Rule 144A(d)(4)). The Company
will provide a copy of this Agreement to prospective purchasers
of Notes identified to the Company by the Initial Purchasers
upon request. Upon the request of any Holder of Notes, the
Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 6 shall be deemed to
require the Company to register any of its securities pursuant
to the Exchange Act.
7. Underwritten Registrations. If any of the Transfer
Restricted Securities covered by any Shelf Registration are to
be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will administer
the offering ("Managing Underwriters") will be selected by the
Company; provided, that such selection is consented to by the
Holders of a majority in aggregate initial principal amount of
Transfer Restricted Securities to be included in such offering,
which consent shall not be unreasonably withheld or delayed.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's
Transfer Restricted Securities on the basis reasonably provided
in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting
arrangements.
8. Miscellaneous.
(a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof
may not be given, except by the Company and the written consent
of the Holders of a majority in initial principal amount of the
Transfer Restricted Securities affected by such amendment,
modification, supplement, waiver or consents.
(b) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand delivery, first-class mail, facsimile transmission, or
overnight air courier:
(1) if to a Holder of the Transfer Restricted
Securities, at the most current address given by such
Holder to the Company.
(2) if to the Initial Purchasers:
Warburg Dillon Read LLC
Bear, Stearns & Co. Inc.
Donaldson, Lufkin & Jenrette Securities
Corporation
as Managing Initial Purchasers
c/o Warburg Dillon Read LLC
299 Park Avenue
New York, NY 10171
Fax No.: (212) 751-2476
Attention: Syndicate Department
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, NY 10005
Fax No.: (212) 269-5420
Attention: Jonathan I. Mark, Esq.
(3) if to the Company, at its address as follows:
Alpharma Inc.
One Executive Drive
P.O. Box 1399
Fort Lee, NJ 07024
Fax No.: (201) 947-5541
Attention: Chief Legal Officer
with a copy to:
Kirkland & Ellis
Citicorp Center
153 E. 53rd Street
New York, NY 10022
Fax No.: (212) 446-4900
Attention: Glen Hess, Esq.
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if
personally delivered; three business days after being deposited
in the mail, postage prepaid, if mailed; when receipt is
acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by
overnight air courier.
(c) No Inconsistent Agreements. The Company has not, as
of the date hereof, entered into, nor shall it, on or after the
date hereof, enter into, any agreement with respect to its
securities that is inconsistent with the rights granted to the
Holders herein or otherwise conflicts with the provisions
hereof.
(d) Successors and Assigns. This Agreement shall be
binding upon the Company and its successors and assigns.
(e) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement. Delivery of an executed
counterpart by facsimile shall be effective as delivery of a
manually executed counterpart thereof.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(h) Severability. If any one or more of the provisions
contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(i) Transfer Restricted Securities Held by the
Company. Whenever the consent or approval of Holders of a
specified percentage of initial principal amount of Transfer
Restricted Securities is required hereunder, Transfer
Restricted Securities held by the Company or its affiliates
(other than subsequent Holders of Transfer Restricted
Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Transfer
Restricted Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of
such required percentage.
[SIGNATURE PAGES FOLLOW]
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement on the Initial
Purchasers and the Company in accordance with its terms.
Very truly yours,
ALPHARMA INC.
By:
Name:
Title:
Accepted and agreed to as
of the date first above written
on behalf of themselves and the
other several Initial Purchasers
named on Schedule A:
WARBURG DILLON READ LLC
BEAR, STEARNS & CO. INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: WARBURG DILLON READ LLC
By:
Name:
Title:
By:
Name:
Title:
SCHEDULE A
Initial Purchasers
Warburg Dillon Read LLC
Bear, Stearns & Co. Inc.
Donaldson, Lufkin & Jenrette Securities Corproation
CIBC World Markets Corp.
SG Cowen Securities Corproation
Fort Lee, NJ
June 2, 1999
Alpharma Issues $170 Million Convertible Senior Subordinated
Notes
Fort Lee, NJ.June 2, 1999.Alpharma Inc. (NYSE:ALO) today
announced that it has issued $170 million Convertible Senior
Subordinated Notes due 2006.
The Notes will pay cash interest of 3% per annum, calculated on
the initial principal amount of the Notes. The Notes will mature
on June 1, 2006 at a price of 134.104% of the initial principal
amount. The payment of the principal amount of the Notes at
maturity (or earlier, if the Notes are redeemed by the Company
prior to maturity), together with cash interest paid over the
term of the Notes, will yield investors 6.875% per annum. The
notes are redeemable by the Company after June 16, 2002.
The Notes will be convertible at any time prior to maturity,
unless previously redeemed, into 31.1429 shares of the Company's
Class A Common stock per $1000 of initial principal amount of
Notes. This ratio results in an initial conversion price of
$32.11 per share. The number of shares into which a Note is
convertible will not be adjusted for the accretion of principal.
This 144A transaction was lead managed by Warburg Dillon Read LLC
with Bear, Stearns & Co. Inc. and Donaldson, Lufkin & Jenrette
participating as co-managers. In addition to these three firms,
CIBC World Markets and SG Cowen also acted as initial purchasers.
Alpharma Inc. (NYSE:ALO) is a multinational pharmaceutical
company that develops, manufactures and markets specialty human
pharmaceutical and animal health products.
###
Co. Contacts: Diane M. Cady, Vice President, Investor Relations
Linda Menzel, IR Associate
(201) 947-7774/(800) 200-9159
All Alpharma press releases may also be accessed on our website
at http://www.alpharma.com
