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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 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 REPORT REPORTED) FEBRUARY 28, 1995
------------------------
R.P. SCHERER CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 13-3523163
(State of Incorporation) (I.R.S. Employer Identification Number)
2075 WEST BIG BEAVER ROAD, TROY, MICHIGAN 48084
(Address of principal executive offices) (Zip code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (810) 649-0900
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ITEM 5. OTHER EVENTS
(a) R.P. Scherer International Corporation (CIK #0000087243, File Number
1-10872), a wholly-owned subsidiary of R.P. Scherer Corporation
(CIK#0000855106, File Number 33-30999), was merged with and into R.P. Scherer
Corporation effective February 28, 1995. All rights and obligations of R.P.
Scherer International Corporation contained in the indenture under which the 6
3/4% Senior Notes due 2004 were issued were expressly assumed by R.P. Scherer
Corporation in a supplemental indenture dated February 28, 1995. Additionally,
R.P. Scherer Corporation entered into an assumption agreement with banks
participating in R.P. Scherer International Corporation's bank credit facility,
through which it has assumed the rights and obligations of R.P. Scherer
International Corporation under the bank credit facility.
Such merger was done for administrative purposes only, and will have
essentially no impact on R.P. Scherer Corporation's financial results or
position.
(b) Exhibits to this Form 8-K
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EXHIBIT NUMBER DESCRIPTION
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4.1 First Supplemental Indenture dated as of February 28, 1995, between R.P. Scherer International
Corporation, R.P. Scherer Corporation and Comerica Bank, Trustee. Filed herewith.
4.2 Assumption Agreement, dated as of February 28, 1995, among R.P. Scherer Corporation, Comerica Bank, NBD
Bank, N.A., Societe Generale, The Bank of Nova Scotia, and ABN AMRO Bank N.V. Filed herewith.
4.3 Certificate of Ownership Merging R.P. Scherer International Corporation into R.P. Scherer Corporation, dated
February 27, 1995, and Certification of Filing with the State of Delaware Office of the Secretary of State.
Filed herewith.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned, hereunto duly authorized.
R.P. SCHERER CORPORATION
-------------------------
(Registrant)
Date: March 3, 1995 By: /s/ Thomas J. Stuart
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Thomas J. Stuart, Controller
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EXHIBIT INDEX
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<CAPTION>
Exhibit
No. Description Page
- ------- ----------- ----
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4.1 First Supplemental Indenture dated as of February
28, 1995, between the R.P. Scherer International
Corporation, R.P. Scherer Corporation and Comerica
Bank, Trustee. Filed herewith.
4.2 Assumption Agreement, dated as of February 28, 1995,
among R.P. Scherer Corporation, Comerica Bank, NBD
Bank, N.A., Societe Generale, The Bank of Nova Scotia,
and ABN AMRO Bank N.V. Filed herewith.
4.3 Certificate of Ownership Merging R.P. Scherer
International Corporation into R.P. Scherer Corporation,
dated February 27, 1995, and Certification of Filing with
the State of Delaware Office of the Secretary of State.
Filed herewith.
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EXHIBIT 4.1
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (the "First Supplemental Indenture"),
dated as of February 28, 1995, by and among R. P. Scherer International
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware and having its principal office at 2075 W. Big Beaver Road,
P.O. Box 7060, Troy, Michigan 48007-7060 (the "Company"); R. P. Scherer
Corporation, a corporation duly organized and existing under the law of the
State of Delaware, the parent corporation of the Company and having its
principal office at 2075 W. Big Beaver Road, P.O. Box 7060, Troy, Michigan
48007-7060 (the "Parent Corporation"); and Comerica Bank, a state bank
organized and existing under the laws of the State of Michigan and having its
principal Corporate Trust Office at 411 W. Lafayette, M.C. 3461, Detroit,
Michigan 48226, as Trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an Indenture dated as of January 1, 1994 (the "Original
Indenture"), to provide for the issuance from time to time of securities
evidencing the Company's unsecured indebtedness (the "Debt Securities");
WHEREAS, pursuant to Resolutions of the Pricing Committee of the Board of
Directors of the Company held January 12, 1994 and January 20, 1994, the
Company issued $100,000,000 principal amount of Debt Securities under the
Original Indenture in the form of 6 3/4% Senior Notes due 2004 (the "Senior
Notes");
WHEREAS, the Company has merged with and into the Parent Corporation
pursuant to Section 253 of the General Corporation Law of Delaware (the
"Merger");
WHEREAS, Section 901 of the Original Indenture authorizes the execution of
the First Supplement Indenture, without the consent of any Holders of Debt
Securities or coupons, to evidence the succession of the Parent Corporation to
the Company, and the assumption by the Parent Corporation of the covenants of
the Company in the Original Indenture and in the Debt Securities issued
thereunder; and
WHEREAS, the execution and delivery of this First Supplemental Indenture
has been in all respects authorized, and all acts, conditions and requirements
necessary to constitute this First Supplement Indenture, when duly executed and
delivered, a valid, legal and binding instrument in accordance with the terms
and for the purposes herein expressed, have been satisfied and completed.
NOW, THEREFORE, the Company, the Parent Corporation and the Trustee hereby
agree as following:
1. The Parent Corporation hereby expressly assumes the due and punctual
payment of the principal of (and premium, if any) and interest, if any
(including all additional amounts, if any payable pursuant to Sections 516 or
1008 of the Original Indenture) on, and any sinking fund payment in respect of,
all the Senior Notes and of any Debt Securities to be issued hereafter pursuant
to the Original Indenture, and any related coupons, and the performance of
every covenant of the Original Indenture on the part of the Company to be
performed or observed.
2. The Trustee hereby acknowledges receipt of an Officers' Certificate and
Opinion of Counsel, copies of which are attached hereto, each stating that the
Merger and this First Supplement Indenture comply with all the terms and
conditions of Article VIII of the Original Indenture and that the Merger
complies with all conditions precedent of the Original Indenture relating to a
merger of the Company into another Person.
3. All terms used herein not specifically defined in this First Supplement
Indenture which are defined in the Original Indenture shall have the meanings
ascribed to them in the Original Indenture.
4. From and after the execution and delivery of this First Supplement
Indenture, the Original Indenture shall been deemed to be amended as herein
provided. Except as modified and amended by this First Supplemental Indenture,
the Original Indenture shall continue in full force and effect, and none of the
obligations or covenants existing or to exist thereunder shall be released,
diminished or impaired, except as set forth herein.
5. This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have caused this First Supplemental
Indenture to be executed in their respective corporate names by their duly
authorized officers, all as of the date first written above.
R. P. SCHERER INTERNATIONAL CORPORATION
By: /s/ Nicole S. Williams
----------------------
Its: Secretary
---------
R. P. SCHERER CORPORATION
By: /s/ Nicole S. Williams
----------------------
Its: Secretary
---------
COMERICA BANK, as Trustee
By: /s/ James Kowalski
------------------
Its: Authorized Signatory
Trust Administrator
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EXHIBIT 4.2
Execution Copy
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT ("Assumption Agreement") is made as of the 28th
day of February, 1995 by and among Comerica Bank, NBD Bank, formerly known as
NBD Bank, N.A., Societe Generale, The Bank of Nova Scotia and ABN-AMRO Bank,
N.V. (individually "Bank", and collectively "Banks"), NBD Bank, as
administrative agent for the Banks (in such capacity, "Administrative Agent"),
Comerica Bank, as documentation agent for the Banks (in such capacity,
"Documentation Agent"), and R.P. Scherer Corporation, a Delaware corporation
("Parent").
RECITALS
A. R.P. Scherer International Corporation, a Delaware corporation
("Company"), the Permitted Borrowers (as defined below), Administrative Agent,
Documentation Agent and the Banks entered into that certain R.P. Scherer
International Corporation Amended and Restated $175,000,000 Credit Agreement
dated as of March 30, 1994 (as amended from time to time, the "Credit
Agreement") under which the Banks committed to extend certain credit to the
Company and the Permitted Borrowers (as identified in the Credit Agreement) on
the terms set forth therein.
B. Pursuant to the Credit Agreement, the Company executed and delivered to
the Administrative Agent and the Documentation Agent (collectively, the
"Agents"), for the benefit of the Banks, among other Loan Documents, those
certain Revolving Credit Notes, Letter of Credit Agreements and the Company
Guaranty (each such capitalized term being defined in the Credit Agreement).
C. Also pursuant to the Credit Agreement (and as defined therein), Parent
executed and delivered to the Agents, for the benefit of the Banks, that
certain Parent Guaranty.
D. The Company and Parent have advised the Agents and the Banks of the
contemplated merger ("Merger") of Company into the Parent pursuant to the
Certificate of Ownership dated February 28, 1995 ("Merger Documents") to take
place concurrently with the execution and delivery by the parties hereto of
this Assumption Agreement, and such Merger is permitted in accordance with
Section 8.2(d) of the Credit Agreement, provided that the Parent comply with
the requirements set forth in Section 8.2(d) thereof, including, without
limitation, the execution and delivery of a written assumption agreement.
E. Parent has entered into this Assumption Agreement with Agents and the
Banks for purposes of complying with Section 8.2(d) of the Credit Agreement.
NOW THEREFORE, the undersigned agree as follows:
1. Concurrently with the Effective Date (as defined below), Parent hereby:
(a) expressly assumes and agrees to be bound, as direct obligor, by the
obligations of the Company under the Credit Agreement, the Notes, the Company
Guaranty, the Letter of Credit Agreements and all other Loan Documents executed
by it at any time pursuant to or in connection with the Credit Agreement as
fully as though Parent originally executed such documents;
(b) acknowledges and confirms that, by operation of law pursuant to the
Merger, Parent has succeeded to and become bound by, as the case may be, all
rights and obligations of the Company under the Loan Documents; and
(c) acknowledges and confirms that (i) by virtue of the Merger and this
Assumption Agreement, Parent has become the direct and primary obligor on all
of the obligations of Company to Agents and the
<PAGE> 2
Banks under the Credit Agreement and the other Loan Documents (including
without limitation all Indebtedness of Company thereunder), having previously
been obligated thereon as guarantor under the Parent Guaranty and (ii) all
references in the Credit Agreement and the other Loan Documents to the Company
shall be deemed to be references to Parent.
2. Parent hereby represents and warrants that, concurrently with the
execution and delivery of this Assumption Agreement:
(a) execution, delivery, and performance of this Assumption Agreement
are within its corporate powers, have been duly authorized, are not in
contravention of law or the terms of Parent's Articles of Incorporation or
Bylaws and do not require the consent or approval of any governmental body,
agency or authority, and the Credit Agreement, the Notes, the Company Guaranty
and the Letter of Credit Agreements and all other Loan Documents previously
executed and delivered by Company to Agents and the Banks will be the valid and
binding obligations of Parent in accordance with their respective terms;
(b) the continuing representations and warranties of Company set forth
in Sections 6.1 through 6.21 of the Credit Agreement and in paragraphs 5(a) -
5(g) of the Parent Guaranty, which Parent hereby ratifies and confirms as of
the date hereof (as to Parent), are true and correct on and as of the date of
this Assumption Agreement with the same force and effect as made on and as of
the date hereof;
(c) by virtue of the occurrence of the Merger, Parent has succeeded by
operation of applicable law (as confirmed by an opinion of counsel in form and
substance satisfactory to Agents and the Banks) to all of the obligations of
Company under the Credit Agreement and the other Loan Documents, including
without limitation, the Indebtedness of Company thereunder; and
(d) no Default or Event of Default under the Credit Agreement or any of
the other Loan Documents has occurred and is continuing as of the date hereof.
3. This Assumption Agreement shall become effective ("Effective Date")
upon:
(a) execution and delivery by the parties hereto of this Assumption
Agreement;
(b) the effectiveness of the Merger in accordance with this Assumption
Agreement and the Merger Documents; and
(c) receipt by Agent of (i) an opinion of counsel to the Parent in form
and substance satisfactory to Agent and the Banks confirming the effectiveness
of the Merger and Parent's succession, by operation of law, to the rights and
obligations of Company under the Credit Agreement and the other Loan Documents,
and also confirming the enforceability against the Company in accordance with
its terms of the Assumption Agreement, (ii) duly executed renewal and
replacement Revolving Credit Notes ("Replacement Notes") from the Parent
substantially in the form of those Notes previously issued by Company under the
Credit Agreement ("Original Notes") to evidence Parent's assumption, as direct
obligor, of Company's obligations thereunder and (iii) certified copies of the
Merger Documents and certified resolutions of the Board of Directors of Parent
authorizing the Merger and Parent's execution, delivery and performance of this
Assumption Agreement.
4. Capitalized terms used in this Assumption Agreement and not otherwise
defined herein shall have the meanings assigned to them in the Credit
Agreement, or if not defined therein, in the other Loan Documents.
5. This Assumption Agreement shall not be deemed to amend or alter in any
respect the terms and conditions of the Credit Agreement, any of the Notes
issued thereunder (except for the renewal of the Original Notes by the
Replacement Notes), the Company Guaranty or any of the other Loan Documents, or
to constitute a waiver by Banks or Agents of any right or remedy under the
Credit Agreement, any of the Notes issued thereunder or under the Company
Guaranty or any of the other Loan Documents. To the extent that Company shall
at any time be determined to remain obligated or to have obligations under the
Credit Agreement or any of the other Loan
<PAGE> 3
Documents, the Parent Guaranty shall remain enforceable against Parent
according to its terms, including without limitation section 8.8 thereof.
6. This Assumption Agreement may be executed in counterpart, in accordance
with Section 13.10 of the Credit Agreement.
WITNESS the due execution hereof as of the day and year first above written.
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COMERICA BANK, R.P. SCHERER CORPORATION
as Documentation Agent
By:/s/ Phyllis McCann By:/s/ Nicole S. Williams
Its:Assistant Vice President Its:Secretary
One Detroit Center 2075 West Big Beaver Road
500 Woodward Avenue Troy, Michigan 48084
Detroit, Michigan 48226 Attn: Nicole S. Williams
Attention: Phyllis D. McCann
BANKS: COMERICA BANK
By: /s/ Phyllis McCann
Its:Assistant Vice President
One Detroit Center
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Phyllis D. McCann
Telex No. 235808
Facsimile No. (313) 222-9514
NBD BANK, formerly known as NBD Bank, N.A.
By: /s/ Kelly J. Cotton
Its: Vice President
Michigan Banking Division
2nd Floor
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Kelly Cotton
Telex:
Facsimile No. 313-225-1671
SOCIETE GENERALE
By: /s/ Giles Demeulenaere
</TABLE>
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Its: Vice President
34th Floor
181 West Madison
Chicago, Illinois 60602
Attention: Gilles Demeulenaere
Telex: 190130 SECHIUT
Facsimile No. 312-578-5099
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
Its: Senior Mgr. Loan Operations
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Attention: F.C.H. Ashby
Telex: 00542319
Facsimile No. 404-888-8998
ABN AMRO BANK N.V.
By:/s/ Robert J. Graff
Its:Vice President
And By: /s/ John Ellenwood
Its: Vice President
135 S. LaSalle Street
Suite 525
Chicago, Illinois 60603
Attention: Robert J. Graff
Telex: 6732700
Facsimile No. (312) 606-8435
<PAGE> 5
CONSENT AND AGREEMENT
Each of the undersigned hereby:
(a) fully consents to the terms and provisions of this Assumption
Agreement and the consummation of the transactions contemplated hereby;
(b) agrees that its obligations as Guarantor under the Permitted
Borrowers Guaranty (as defined in the Credit Agreement) are hereby ratified and
confirmed and shall remain in full force and effect as set forth therein, and
acknowledges that it has no defense, offset or counterclaim with respect to its
obligations as Guarantor, as aforesaid, or otherwise in connection with the
Credit Agreement or this Assumption Agreement;
(c) represents and warrants that, after giving effect to this Assumption
Agreement, its representations and warranties contained in Sections 6.1 through
6.21 of the Credit Agreement are true and correct on and as of the Effective
Date hereof with the same force and effect as if made on as of such Effective
Date;
(d) Each of the undersigned acknowledges that this Consent and Agreement
hereto is a condition to the Agents and the Banks entering into this Assumption
Agreement and it is in its interest and to its financial benefit to execute
this Consent and Agreement.
Dated: February 28, 1995
<PAGE> 6
F&F HOLDING GMBH
By: /s/ Nicole S. Williams
Its: Attorney
c/o R.P. Scherer International
Corporation
2075 West Big Beaver Road
Troy, Michigan 48084
Attention: Nicole S. Williams
c/o R.P. Scherer International
R. P. SCHERER CANADA INC.
By: /s/ Nicole S. Williams
Its: Attorney
c/o R.P. Scherer International
Corporation
2075 West Big Beaver Road
Troy, Michigan 48084
Attention: Nicole S. Williams
R.P. SCHERER LIMITED
By: /s/ Nicole S. Williams
Its: Attorney
c/o R.P. Scherer International
Corporation
2075 West Big Beaver Road
Troy, Michigan 48084
Attention: Nicole S. Williams
SCHERER DDS LIMITED
By: /s/ Nicole S. Williams
Its: Attorney
c/o R.P. Scherer International
Corporation
2075 West Big Beaver Road
Troy, Michigan 48084
Attention: Nicole S. Williams
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R.P. SCHERER HOLDINGS LTD.
By: /s/ Nicole S. Williams
Its: Attorney
c/o R.P. Scherer International
Corporation
2075 West Big Beaver Road
Troy, Michigan 48084
Attention: Nicole S. Williams
R.P. SCHERER HOLDINGS PTY. LTD.
By: /s/ Nicole S. Williams
Its: Attorney
c/o R.P. Scherer International
Corporation
2075 West Big Beaver Road
Troy, Michigan 48084
Attention: Nicole S. Williams
R.P. SCHERER PTY. LTD.
By: /s/ Nicole S. Williams
Its: Attorney
c/o R.P. Scherer International
Corporation
2075 West Big Beaver Road
Troy, Michigan 48084
Attention: Nicole S. Williams
R.P. SCHERER S.A.
By: /s/ Nicole S. Williams
Its: Attorney
c/o R.P. Scherer International
Corporation
2075 West Big Beaver Road
Troy, Michigan 48084
Attention: Nicole S. Williams
<PAGE> 8
R.P. SCHERER S.p.A.
By: /s/ Nicole S. Williams
Its: Attorney
c/o R.P. Scherer International
Corporation
2075 West Big Beaver Road
Troy, Michigan 48084
Attention: Nicole S. Williams
<PAGE> 1
EXHIBIT 4.3
CERTIFICATE OF OWNERSHIP
MERGING
R.P. SCHERER INTERNATIONAL CORPORATION
into
R.P. SCHERER CORPORATION
(Pursuant to Section 253 of the General Corporation Law of Delaware)
R.P. Scherer Corporation, a corporation incorporated on the 25th day of
April, 1989, pursuant to the provisions of the General Corporation Law of the
State of Delaware (the "Corporation");
DOES HEREBY CERTIFY that this Corporation owns 100% of the capital stock of
R.P. Scherer International Corporation, a corporation incorporated on the 5th
day of May, 1969, pursuant to the provisions of the General Corporation Law of
Delaware, and that this Corporation, by a resolution of its Board of Directors
duly adopted at a meeting held on the 16th day of December, 1994, determined to
and did merge into itself said R.P. Scherer International Corporation effective
11:59 p.m. on February 28, 1995, which resolution is in the following words to
wit:
WHEREAS, this Corporation lawfully owns 100% of the outstanding stock of
R.P. Scherer International Corporation, a corporation organized and existing
under the laws of the State of Delaware; and
WHEREAS, this Corporation desire to merge into itself the said R.P. Scherer
International Corporation and to be possessed of all the estate, property,
rights, privileges and franchises of said corporation.
NOW, THEREFORE, BE IT RESOLVED, that this Corporation merge into itself said
R.P. Scherer International Corporation and assumes all of its liabilities and
obligations;
FURTHER RESOLVED, that the Chairman, the President, any Vice President, the
Controller, and the Secretary of this Corporation (the "Authorized Officers")
be, and each of them hereby is, authorized and directed to make and execute,
under the corporate seal of this Corporation, a Certificate of Ownership
setting forth a copy of the resolutions to merge said R.P. Scherer
International Corporation and assume its liabilities and obligations, and the
date of adoption thereof, and to file the same in the office of the Secretary
of State of Delaware, and a certified copy thereof in the office of the
Recorder of Deeds of Kent County; and
FURTHER RESOLVED, that the Authorized Officers of this Corporation be, and
each of them hereby is, authorized and directed to take such other actions and
to execute and deliver such other documents, whether within or without the
State of Delaware, which may in the discretion of such officers be necessary or
proper to effect said merger, the execution thereof to be conclusive evidence
of authorization hereunder.
IN WITNESS WHEREOF, said R.P. Scherer Corporation has caused its corporate
seal to be affixed and this certificate to be signed by Aleksandar Erdeljan,
its President, and attested by Nicole S. Williams, its Secretary, this 27th day
of February, 1995.
R.P. SCHERER CORPORATION
By: /s/ Aleksandar Erdeljan
-----------------------
Aleksandar Erdeljan
President
ATTEST:
/s/ Nicole S. Williams
----------------------
Nicole S. Williams
Secretary
<PAGE> 2
(Letterhead of State of Delaware Office of the Secretary of State)
I, Edward J. Freel, Secretary of State of the State of Delaware, do hereby
certify the attached is a true and correct copy of the certificate of
ownership, which merges:
"R.P. Scherer International Corporation", a Delaware Corporation,
with and into "R.P. Scherer Corporation" under the name of "R.P. Scherer
Corporation", a corporation organized and existing under the laws of the state
of Delaware, as received and filed in this office the twenty-eighth day of
February, A.D. 1995, at 8:30 o'clock A.M.
A certified copy of this certificate has been forwarded to the Kent Country
recorder of deeds for recording.
[Seal]
/s/ Edward J. Freel
Edward J. Freel, Secretary of State
Authentication: 7423005
Date: 02/28/95
