-3-
EXHIBIT 1.1
$125,000,000
ALPHARMA INC.
5-3/4% Convertible Subordinated Notes
Due 2005
PURCHASE AGREEMENT
March 25, 1998
PURCHASE AGREEMENT
March 25, 1998
SBC WARBURG DILLON READ INC.
CIBC OPPENHEIMER CORP.
XXXXX & COMPANY
c/o SBC WARBURG DILLON READ INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Alpharma Inc. (the Company) proposes to issue and
sell to SBC Warburg Dillon Read Inc., CIBC Xxxxxxxxxxx Corp.
and Xxxxx & Company (the Initial Purchasers) $125,000,000
aggregate principal amount of its 5-3/4% Convertible
Subordinated Notes Due 2005 (the Firm Notes). In addition,
solely for the purpose of covering over-allotments, the Company
proposes to grant to the Initial Purchasers the option to
purchase from the Company up to an additional $18,750,000
aggregate principal amount of the Company's 5-3/4% Convertible
Subordinated Notes due 2005 (the Additional Notes). The Firm
Notes and the Additional Notes are hereinafter collectively
sometimes referred to as the Notes. The Notes are convertible
into the Class A Common Stock of the Company, par value $.20
per share (the Shares).
The Notes are to be issued pursuant to an indenture
(the Indenture) to be dated as of March 30, 1998, between the
Company and First Union National Bank, as trustee. Copies of
the Indenture, in substantially final form, have been delivered
to each of the Initial Purchasers.
The Company and the Initial Purchasers agree as
follows:
1. Sale and Purchase: Upon the basis of the warranties and
representations and the other terms and conditions herein set
forth, the Company agrees to sell to the respective Initial
Purchasers and each of the Initial Purchasers, severally and
not jointly, agrees to purchase from the Company, the aggregate
principal amount of Firm Notes set forth opposite the name of
such Initial Purchaser in Schedule A hereto in each case at a
purchase price of 97% of the principal amount thereof.
In addition, the Company hereby grants to the Initial
Purchasers the option to purchase, and upon the basis of the
representations and warranties and the other terms and
conditions herein set forth, the Initial Purchasers shall have
the right to purchase, severally and not jointly, from the
Company, ratably in accordance with the aggregate principal
amount of Firm Notes to be purchased by each of them, all or a
portion of the Additional Notes as may be necessary to cover
overallotments made in connection with the offering of the Firm
Notes, at a purchase price of 97% of the principal amount
thereof, plus accrued interest, if any, from March 30, 1998 to
the additional time of purchase (as hereinafter defined). This
option may be exercised at any time (but not more than once) on
or before the thirtieth day following the date hereof, by
written notice to the Company. Such notice shall set forth the
aggregate principal amount of Additional Notes as to which the
option is being exercised, and the date and time when the
Additional Notes are to be delivered (such date and time being
herein referred to as the additional time of purchase);
provided, however, that the additional time of purchase shall
not be earlier than the time of purchase (as defined below) nor
earlier than the second business day1 after the date on which
the option shall have been exercised nor later than the tenth
business day after the date on which the option shall have been
exercised. The principal amount of Additional Notes to be sold
to each Initial Purchaser shall be equal to the principal
amount of Notes which bears the same proportion to the
aggregate principal amount of Additional Notes being purchased
as the principal amount of Firm Notes set forth opposite the
name of such Initial Purchaser on Schedule A hereto bears to
the aggregate principal amount of Firm Notes (subject, in each
case, to such adjustment as you may determine to eliminate
Notes not in multiples of $1,000).
2. Payment and Delivery: Payment of the purchase price for
the Firm Notes shall be made to the Company by Federal (same
day) funds, against delivery of the certificates for the Firm
Notes to you through the facilities of the Depository Trust
Company (the DTC) in the form of a global certificate or
certificates, registered in the name of Cede & Co., the nominee
of DTC, at the offices of Xxxxxxxx & Xxxxx in New York City,
for the respective accounts of the Initial Purchasers. Such
payment and delivery shall be made at 10:00 A.M., New York City
time, on March 30, 1998 (unless another time shall be agreed to
by you and the Company). The time at which such payment and
delivery are actually made is hereinafter sometimes called the
time of purchase. Certificates for the Firm Notes shall be
delivered to you in definitive form in such names and in such
denominations as you shall specify. For the purpose of
expediting the checking of the certificates for the Firm Notes
by you, the Company agrees to make such certificates available
to you for such purpose at least one full business day
preceding the time of purchase.
Payment of the purchase price for the Additional
Notes shall be made at the additional time of purchase in the
same manner and at the same office as the payment for the Firm
Notes. Certificates for the Additional Notes shall be
delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day
preceding the additional time of purchase. For the purpose of
expediting the checking of the certificates for the Additional
Notes by you, the Company agrees to make such certificates
available to you for such purpose at least one full business
day preceding the additional time of purchase.
3. Representations and Warranties of the Company: The
Company represents and warrants to each of the Initial
Purchasers that:
(a) The Company has prepared a preliminary offering
memorandum, dated March 6, 1998 (the Preliminary Offering
Memorandum) and an offering memorandum, dated March 25, 1998
(the Offering Memorandum), in connection with the offering of
the Notes. Any reference to the Preliminary Offering
Memorandum or the Offering Memorandum shall be deemed to refer
to and include the Company's Annual Report on Form 10-K for the
year ended December 31, 1997 and all documents subsequently
filed with the United States Securities and Exchange Commission
(the Commission) pursuant to Section 13(a), 13(c) or 15(d) of
the United States Securities Exchange Act of 1934, as amended
(the Exchange Act), on or prior to the date of the Offering
Memorandum, and any reference to the Preliminary Offering
Memorandum or the Offering Memorandum, as the case may be, as
amended or supplemented, as of any specified date, shall be
deemed to include (i) any documents filed with the Commission
pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
after the date of the Preliminary Offering Memorandum or the
Offering Memorandum, as the case may be, and prior to such
specified date and (ii) any Additional Issuer Information (as
defined in Section 5(f) furnished by the Company prior to the
completion of the distribution of the Notes and all documents
filed under the Exchange Act and so deemed to be included in
the Preliminary Offering Memorandum or the Offering Memorandum,
as the case may be, or any amendment or supplement thereto are
hereinafter called the "Exchange Act Reports." The Exchange
Act Reports, when they were or are filed with the Commission,
conformed or will conform in all material respects with the
requirements of the Exchange Act and the rules and regulations
of the Commission thereunder. The Preliminary Offering
Memorandum or the Offering Memorandum and any amendments or
supplements thereto and the Exchange Act Reports did not and
will not, as of their respect dates, contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by any of the Initial Purchasers
expressly for use therein;
(b) As of December 31, 1997, the Company had an authorized
capitalization as set forth under the heading entitled "Actual"
in the section of the Offering Memorandum entitled
"Capitalization" and, as adjusted for the Offering and the
issuance of the Industrier Note, as of December 31, 1997, the
Company would have had an authorized capitalization as set
forth under the heading entitled "As Adjusted for the Offering
and the issuance of the Industrier Note" in the section of the
Offering Memorandum entitled "Capitalization"; all of the
issued and outstanding shares of capital stock of the Company
have been duly and validly authorized and issued and are fully
paid and non-assessable; the Company has been duly incorporated
and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with full power and
authority to own its properties and conduct its business as
described in the Offering Memorandum, to execute and deliver
this Agreement, the Registration Rights Agreement (as defined)
and the Indenture and to issue and sell the Notes and to issue
Shares upon conversion of the Notes as herein contemplated;
(c) the Company and each of its subsidiaries (the
Subsidiaries) are duly qualified or licensed by and are in good
standing in each jurisdiction in which they conduct their
respective businesses and in which the failure, individually or
in the aggregate, to be so licensed or qualified would have a
material adverse effect on the operations, business or
condition of the Company and its Subsidiaries, taken as a whole
(a Material Adverse Effect); and the Company and each of its
Subsidiaries are in compliance in all respects with the laws,
orders, rules, regulations and directives issued or
administered by such jurisdictions, except where the failure to
be in compliance would not have a Material Adverse Effect;
(d) neither the Company nor any of its Subsidiaries is in
breach of, or in default under (nor has any event occurred
which with notice, lapse of time, or both would constitute a
breach of, or default under), its respective charter or by-laws
or in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, bank loan or credit agreement or other
agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them is bound, and
the execution, delivery and performance of this Agreement, the
Registration Rights Agreement and the Indenture and the
issuance of the Notes and the Shares and consummation of the
transactions contemplated hereby and thereby will not conflict
with, or result in any breach of or constitute a default under
(nor constitute any event which with notice, lapse of time, or
both would constitute a breach of, or default under), any
provisions of the charter or by-laws of the Company or any of
its Subsidiaries or under any provision of any license,
indenture, mortgage, deed of trust, bank loan or credit
agreement or other agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which any of them
or their respective properties may be bound or affected, or
under any federal, state, local or foreign law, regulation or
rule or any decree, judgment or order applicable to the Company
or any of its Subsidiaries, except in each case where such
breach or default would not have a Material Adverse Effect;
(e) the Indenture has been duly authorized by the Company and
when executed and delivered by the Company will be a legal,
valid and binding agreement of the Company enforceable in
accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights
generally and general principles of equity;
(f) The Registration Rights Agreement substantially in the
form as attached hereto as Exhibit A between the Company and
the Initial Purchasers (the Registration Rights Agreement) has
been duly authorized by the Company and when executed and
delivered by the Company will be a legal, valid and binding
agreement of the Company enforceable in accordance with its
terms, except (a) as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and general
principles of equity and (b) the rights to indemnity and
contribution may be limited by applicable law;
(g) the Notes have been duly authorized by the Company and
when executed and delivered by the Company will constitute
legal, valid and binding obligations of the Company in
accordance with their terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally and general principles of equity; the Shares
initially issuable upon conversion of the Notes have been duly
authorized and validly reserved for issuance upon conversion of
the Notes and are free of statutory and contractual preemptive
rights and are sufficient in number to meet current conversion
requirements, and such Shares, when so issued upon such
conversion in accordance with the terms of the Indenture, will
be duly and validly issued and fully paid and nonassessable;
(h) this Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding
agreement of the Company enforceable in accordance with its
terms except (a) as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and general
principles of equity and (b) the rights to indemnity and
contribution may be limited by applicable law;
(i) the Notes, the Registration Rights Agreement, the
Indenture and the capital stock of the Company, including the
Shares, conform in all material respects to the description
thereof contained in the Offering Memorandum;
(j) no approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in
connection with the issuance and sale of the Notes and the
Shares as contemplated hereby other than as may be required
under the securities or blue sky laws of the various
jurisdictions in which the Notes and the Shares are being
offered by the Initial Purchasers;
(k) Xxxxxxx & Xxxxxxx L.L.P., whose reports on the
consolidated financial statements of the Company and its
Subsidiaries are included in the Offering Memorandum, are
independent public accountants as required by the Securities
Act of 1933, as amended (the Act), and the applicable published
rules and regulations thereunder;
(l) each of the Company and its Subsidiaries has all necessary
licenses, authorizations, consents and approvals (collectively
Consents) and has made all necessary filings required under any
federal, state, local or foreign law, regulation or rule
(Filings), and has obtained all necessary Consents from other
persons, in order to conduct its respective business, except
where the failure to have any such Consent or to have made any
such Filing would not have a Material Adverse Effect; neither
the Company nor any of its Subsidiaries is in violation of, or
in default under, any such license, authorization, consent or
approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable
to the Company or any of its Subsidiaries the effect of which
would have a Material Adverse Effect;
(m) there are no actions, suits or proceedings pending or
threatened against the Company or any of its Subsidiaries or
any of their respective properties, at law or in equity, or
before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency
which would result in a judgment, decree or order having a
Material Adverse Effect;
(n) the Company and each Subsidiary have filed on a timely
basis all necessary federal, state and foreign income,
franchise and other tax returns and has paid all taxes shown
thereon as due, and the Company has no knowledge of any tax
deficiency which has been or might be asserted against the
Company or any Subsidiary which might have a Material Adverse
Effect; all material tax liabilities are adequately provided
for within the financial statements of the Company;
(o) the Company and its Subsidiaries maintain insurance of the
types and in the amounts reasonably believed to be adequate for
their business and consistent with insurance coverage
maintained by similar companies in similar businesses, all of
which insurance is in full force and effect;
(p) neither the Company nor its Subsidiaries are involved in
any material labor dispute or disturbance nor, to the knowledge
of the Company, is any such dispute or disturbance threatened;
(q) except as described in the Offering Memorandum, the
Company and each Subsidiary own or possess adequate licenses or
other rights to use all patents, patent applications,
trademarks, trademark applications, service marks, service mark
applications, trade names, copyrights, manufacturing processes,
formulae, trade secrets, know-how, franchises, and other
material intangible property and assets (collectively,
Intellectual Property) necessary to the conduct of their
businesses as conducted and as proposed to be conducted as
described in the Offering Memorandum, except where the failure
to do so would not have a Material Adverse Effect; the Company
has no knowledge that it or any Subsidiary lacks or will be
unable to obtain any rights or licenses to use any of the
Intellectual Property necessary to conduct the business now
conducted or proposed to be conducted by it as described in the
Offering Memorandum, except as described in the Offering
Memorandum and except where the failure to have or obtain such
rights or licenses would not have a Material Adverse Effect;
the Offering Memorandum fairly and accurately describes the
Company's rights with respect to the Intellectual Property; the
Company has not received any notice of infringement or of
conflict with rights or claims of others with respect to any
Intellectual Property; the Company is not aware of any patents
of others which are infringed upon by potential products or
processes referred to in the Offering Memorandum in such a
manner as to have a Material Adverse Effect, except as
described in the Offering Memorandum;
(r) the audited financial statements included in the Offering
Memorandum present fairly the consolidated financial position
of the Company and its Subsidiaries as of the dates indicated
and the consolidated results of operations and changes in
financial position of the Company and its Subsidiaries for the
periods specified; such financial statements have been prepared
in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved;
(s) subsequent to the respective dates as of which information
is given in the Offering Memorandum, and except as may be
otherwise stated in the Offering Memorandum, there has not been
(A) any material and unfavorable change, financial or
otherwise, in the business, properties, prospects, regulatory
environment, results of operations or condition (financial or
otherwise), present or prospective, of the Company and its
Subsidiaries taken as a whole, (B) any transaction, which is
material to the Company and its Subsidiaries taken as a whole,
entered into by the Company or either of its Subsidiaries or
(C) any obligation, contingent or otherwise, directly or
indirectly, incurred by the Company or any of its Subsidiaries
which is material to the Company and its Subsidiaries taken as
a whole;
(t) the Company has obtained the agreement of certain of its
directors and officers not to sell, contract to sell, grant any
option to sell or otherwise dispose of, directly or indirectly,
any Shares or securities convertible into or exchangeable for
Shares or warrants or other rights to purchase Shares for a
period of 90 days after the date of the Offering Memorandum
(u) the Control Agreement between the Company and A.L.
Industrier A/S (Industrier) dated as of February 7, 1986, as
amended on October 3, 1994 and December 19, 1996 (the Control
Agreement), is in full force and effect;
(v) when the Notes are issued and delivered pursuant to this
Agreement, the Notes will not be of the same class (within the
meaning of Rule 144A under the Act) as securities of the
Company which are listed on a national securities exchanged
registered under Section 6 of the Exchange Act or quoted in a
U.S. automated inter-dealer quotation system;
(w) none of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from
the sale of the Notes) will violate or result in a violation of
Section 7 of the Exchange Act, or any regulation promulgated
thereunder, including, without limitation, Regulations G, T, U,
and X of the Board of Governors of the Federal Reserve System;
(x) prior to the date hereof, neither the Company nor, to the
Company's knowledge, any of its affiliates has taken any action
which is designed to or which has constituted or which might
have been expected to cause or result in stabilization or
manipulation of the price of any security of the Company in
connection with the offering of the Notes, except as permitted
by this Agreement;
(y) subject to compliance by the Initial Purchasers with the
representations and agreements contained in Section 4, neither
the Company nor any person acting on its behalf (other than the
Initial Purchasers, as to whom the Company makes no
representations) has offered or sold the Notes by means of any
general solicitation or general advertising within the meaning
of Rule 502(c) under the Act or, with respect to Notes sold
outside the United States to non-U.S. persons (as defined in
Rule 902 under the Act), by means of any directed selling
efforts within the meaning of Rule 902 under the act, and the
Company, to the Company's knowledge, any affiliate of the
Company and any person acting on its or their behalf have
complied with and will implement the "offering restriction"
within the meaning of such Rule 902; and
(z) within the preceding six months, neither the Company nor
any other person acting on behalf of the Company has offered or
sold to any person any Notes or any securities of the same or a
similar class as the Notes, other than Notes offered or sold to
the Initial Purchasers hereunder and the $67.9 million
aggregate principal amount of its convertible subordinated
notes being issued and sold to Industrier pursuant to the Note
Purchase Agreement by and between the Company and Industrier;
the Company will take reasonable precautions designed to insure
that any offer or sale, direct or indirect, in the United
States or to any U.S. person (as defined in Rule 902 under the
Act) of any Notes or any substantially similar security issued
by the Company, within six months subsequent to the date on
which the distribution of the Notes has been completed (as
notified to the Company by the Initial Purchasers), is made
under restrictions and other circumstances reasonably designed
not to affect the status of the offer and sale of the Notes in
the United States and to U.S. persons contemplated by this
Agreement as transactions exempt from the registration
provisions of the Act (the foregoing will not prevent offers
and sales made pursuant to a shelf registration statement in
accordance with the Registration Rights Agreement).
4. The Initial Purchasers propose to offer the Notes for sale
upon the terms and conditions set forth in this Agreement and
the Offering Memorandum, and each Initial Purchaser hereby
represents and warrants to and agrees with the Company,
severally and not jointly, that:
(a) it will offer and sell the Notes only: (i) to persons who
it reasonably believes are "qualified institutional buyers"
(QIBs) within the meaning of Rule 144A under the Act in
transactions meeting the requirements of Rule 144A and
(ii) outside the United States to certain persons in compliance
with Regulation S under the Act;
(b) it is a QIB within the meaning of Rule 144A; and
(c) it will not offer or sell the Notes by any form of general
solicitation, general advertising, including, but not limited
to, the methods described in Rule 502(c) under the Act.
5. Certain Covenants of the Company: The Company hereby
agrees:
(a) the Company will prepare the Offering Memorandum in a form
approved by the Initial Purchasers and will make no amendment
or supplement to the Offering Memorandum which shall be
disapproved by the Initial Purchasers promptly after reasonable
notice thereof;
(b) promptly from time to time, the Company will take such
action as any of the Initial Purchasers may reasonably request
to qualify the Notes and the Shares for offering and sale under
the securities laws of such jurisdictions as such Initial
Purchaser may request and will comply with such laws so as to
permit the continuance of sales and dealing therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Notes; provided, that in connection
therewith the Company shall not be required to qualify as a
foreign corporation, to file a general consent to service of
process in any jurisdiction or subject the Company to any tax
in any such jurisdiction where it is not now so subject;
(c) the Company will furnish each Initial Purchaser with two
copies of the Offering Memorandum and each amendment or
supplement thereto with the independent accountants' report(s)
in the Offering Memorandum, and any amendment or supplement
containing amendments to the financial statements covered by
such report(s), signed by the accountants, and additional
copies thereof in such quantities as any Initial Purchaser may
from time to time reasonably request, and if, at any time prior
to the expiration of nine months after the date of the Offering
Memorandum, any event shall have occurred as a result of which
the Offering Memorandum as then amended or supplemented would
include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made when such Offering Memorandum is delivered, not
misleading, or, if for any other reason it shall be necessary
or desirable during such same period to amend or supplement the
Offering Memorandum, the Company will notify the Initial
Purchasers and upon any Initial Purchaser's request will
prepare and furnish without charge to such Initial Purchaser
and to any dealer in securities as many copies as any Initial
Purchaser may from time to time reasonably request of an
amended Offering Memorandum or a supplement to the Offering
Memorandum which will correct such statement or omission or
effect such compliance;
(d) during the period beginning from the date hereof and
continuing until the date 90 days after the date of the
Offering Memorandum, the Company will not sell, contract to
sell or otherwise dispose of, any Shares or any securities that
are convertible into or exchangeable for Shares (other than (i)
pursuant to employee stock option or employee stock purchase
plans existing on, or upon the conversion or exchange of
convertible or exchangeable securities or upon exercise of
warrants outstanding as of, the date of this Agreement, (ii)
the Industrier Note and the shares of Class B Common Stock of
the Company issuable upon conversion thereof or (iii) as
contemplated by the Registration Rights Agreement) without the
prior written consent of the Initial Purchasers;
(e) at any time when the Company is not subject to Section 13
or 15(d) of the Exchange Act and so long as any of the Notes
(or Shares issued upon conversion thereof) are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act,
for the benefit of holders from time to time of the Notes, the
Company will furnish at its expense, upon request, to holders
of Notes and prospective purchasers of Notes information (the
Additional Issuer Information) satisfying the requirements of
subsection (d)(4)(i) of Rule 144A under the Act;
(f) the Company will use its best efforts to cause the Notes
to be eligible for the PORTAL trading system of the National
Association of Securities Dealers, Inc. (PORTAL);
(g) for so long as the Notes remain outstanding, the Company
will furnish to each of the Initial Purchasers copies of all
reports or other communications (financial or other) furnished
to stockholders of the Company, and will deliver to the Initial
Purchasers (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed by the
Company with the Commission or any securities exchange on which
the Notes or any class of securities of the Company is listed;
and (ii) such additional information concerning the business
and financial condition of the Company as the Initial
Purchasers may from time to time reasonably request (such
financial statements to be on a consolidated basis to the
extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its stockholders generally
or to the Commission);
(h) the Company will use the net proceeds received by it from
the sale of the Notes pursuant to this Agreement in the manner
specified in the Offering Memorandum under the caption "Use of
Proceeds";
(i) the Company will reserve and keep available at all times
free of preemptive rights, shares of stock for the purpose of
enabling the Company to satisfy any obligations to issue shares
of its stock upon conversion of the Notes;
(j) the Company will use its best efforts to list, subject to
notice of issuance, the Shares on the New York Stock Exchange;
(k) to pay all expenses, fees and taxes (other than any
transfer taxes and fees and disbursements of counsel for the
Initial Purchasers except as set forth under Section 6 hereof
and (iii) and (iv) below) in connection with (i) the
preparation and filing of the Preliminary Offering Memorandum
and the Offering Memorandum and the printing and furnishing of
copies of each thereof to the Initial Purchasers and to dealers
(including costs of mailing and shipment), (ii) the
preparation, issuance, execution, authentication and delivery
of the Notes and the Shares, (iii) the word processing and/or
printing of this Agreement, the Indenture, and the reproduction
and/or printing and furnishing of copies of each thereof to the
Initial Purchasers and to dealers (including costs of mailing
and shipment), (iv) the qualification of the Notes and the
Shares for offering and sale under state laws (including the
legal fees and filing fees and other disbursements of counsel
for the Initial Purchasers) and the printing and furnishing of
copies of any blue sky surveys or legal investment surveys to
the Initial Purchasers and to dealers, (v) any listing of the
Notes on PORTAL, (vi) any fees payable to investment rating
agencies with respect to the Notes and (vii) the performance of
the Company's other obligations hereunder.
6. Reimbursement of Initial Purchasers' Expenses: If the
Notes are not delivered for any reason other than the default
by one or more of the Initial Purchasers in its or their
respective obligations hereunder, the Company shall reimburse
the Initial Purchasers for all of their out-of-pocket expenses,
including the fees and disbursements of their counsel.
7. Conditions of Initial Purchasers' Obligations: The
several obligations of the Initial Purchasers hereunder are
subject to the accuracy of the representations and warranties
on the part of the Company on the date hereof and at the time
of purchase (and the several obligations of the Initial
Purchasers at the additional time of purchase are subject to
the accuracy of the representations and warranties on the part
of the Company on the date hereof and at the time of purchase
(unless previously waived) and at the additional time of
purchase, as the case may be), the performance by the Company
of its obligations hereunder and to the following conditions:
(a) The Company shall furnish to you at the time of purchase
and at the additional time of purchase, as the case may be, an
opinion of Xxxxxxxx & Xxxxx, counsel for the Company, addressed
to the Initial Purchasers and dated the time of purchase or the
additional time of purchase, as the case may be, with
reproduced copies thereof for each of the other Initial
Purchasers and in form satisfactory to Xxxxxx Xxxxxx & Xxxxxxx,
counsel for the Initial Purchasers, substantially in the form
of Exhibit B hereto.
(b) The Company shall furnish to you at the time of purchase
and at the additional time of purchase, as the case may be, an
opinion of Xxxxxx X. Xxxxxx, Vice President and Chief Legal
Officer for the Company, addressed to the Initial Purchasers
and dated the time of purchase or the additional time of
purchase, as the case may be, in form satisfactory to Xxxxxx
Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers,
substantially in the form of Exhibit C hereto.
(c) You shall have received from Xxxxxxx & Xxxxxxx L.L.P.
comfort letters dated, respectively, as of the date of this
Agreement and the time of purchase and additional time of
purchase, as the case may be, and addressed to the Initial
Purchasers in the forms heretofore approved by the Initial
Purchasers.
(d) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of
Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers,
dated the time of purchase or the additional time of purchase,
as the case may be.
In addition, such counsel shall state that such
counsel have participated in conferences with officers and
other representatives of the Company, counsel for the
Company, representatives of the independent public
accountants of the Company and representatives of the
Initial Purchasers at which the contents of the Offering
Memorandum and related matters were discussed and,
although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Offering
Memorandum (except as to the matters referred to under
paragraph 7 of Exhibit B), on the basis of the foregoing
(relying as to materiality to a large extent upon the
opinions of officers and other representatives of the
Company), no facts have come to the attention of such
counsel which lead them to believe that the Memorandum
contained an untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Offering Memorandum as of its date
contained an untrue statement of a material fact or
omitted 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 (it being understood that such counsel need
express no comment with respect to the financial
statements and schedules and other financial and
statistical data included in the Offering Memorandum.
(e) The Company shall furnish to you at the time of purchase
or the additional time of purchase, as the case may be, an
opinion of XxXxxxx & Xxxxx, United States regulatory counsel
for the Company, addressed to the Initial Purchasers and dated
the time of purchase or additional time of purchase, as the
case may be, in form satisfactory to Xxxxxx Xxxxxx & Xxxxxxx,
counsel for the Initial Purchasers, stating that the
descriptions in the Offering Memorandum of the statutes,
regulations and legal or governmental proceedings or procedures
relating to the Food and Drug Administration (the FDA) and the
FDA approval process relating to the Company's or any of its
Subsidiaries' products are accurate in all material respects
and are a fair summary of those statutes, regulations,
proceedings or procedures.
(f) The Company shall furnish to you at the time of purchase
or the additional time of purchase, as the case may be, an
opinion of Bird & Bird, the European Union regulatory counsel
for the Company, addressed to the Initial Purchasers and dated
the time of purchase or additional time of purchase, as the
case may be, in form satisfactory to Xxxxxx Xxxxxx & Xxxxxxx,
counsel for the Initial Purchasers, stating that:
(i) the descriptions under the heading "Business-Government
Regulation" in the Offering Memorandum of the statutes,
regulations and legal or governmental proceedings or procedures
relating to the regulatory apparatus of the European Union and
the approval process of the European Union are accurate in all
material respects and are a fair summary of those statutes,
regulations, proceedings or procedures; and
(ii) the second sentence under the heading "Business-
Government Regulation-General" in the Offering Memorandum has
been reviewed by such counsel and is an accurate statement of
the law of Norway.
(g) Prior to the time of purchase or the additional time of
purchase, as the case may be, the Offering Memorandum shall not
contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(h) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the
case may be, (i) no material and unfavorable change, financial
or otherwise (other than as referred to in the Offering
Memorandum), in the business, condition or prospects of the
Company and its Subsidiaries taken as a whole shall occur or
become known and (ii) no transaction which is material and
unfavorable to the Company shall have been entered into by the
Company or any of its Subsidiaries.
(i) The Company will, at the time of purchase or the
additional time of purchase, as the case may be, deliver to you
a certificate of its chief financial officer to the effect that
the representations and warranties of the Company set forth in
this Agreement and the conditions set forth in paragraph (h)
and paragraph (i) have been met and are true and correct as of
each such date.
(j) You shall have received copies of each of the agreements
referred to in Section 3(t).
(k) The Control Agreement shall be in full force and effect.
(l) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness
of any statement in the Offering Memorandum as of the time of
purchase and the additional time of purchase, as the case may
be, as you may reasonably request.
(m) The Company shall perform such of its obligations under
this Agreement as are to be performed by the terms hereof at or
before the time of purchase and at or before the additional
time of purchase, as the case may be.
(n) The Notes and the Shares shall have been designated for
trading on PORTAL, subject only to notice of issuance at or
prior to the time of purchase.
(o) Between the time of execution of this Agreement and the
time of purchase or additional time of purchase, as the case
may be, there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any intended or
potential downgrading or (ii) any review or possible change
that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company or any
subsidiary of the Company by any "nationally recognized
statistical rating organization", as that term is defined in
Rule 436(g)(2) promulgated under the Act.
8. Termination: The obligations of the several Initial
Purchasers hereunder shall be subject to termination in the
absolute discretion of you or the Initial Purchasers if, since
the time of execution of this Agreement or the respective dates
as of which information is given in the Offering Memorandum,
(y) there has been any material adverse and unfavorable change,
financial or otherwise (other than as referred to in the
Offering Memorandum), in the business, condition or prospects
of the Company and its Subsidiaries taken as a whole, which
would, in your judgment or in the judgment of the Initial
Purchasers, make it impracticable to market the Notes, or (z)
there shall have occurred any downgrading, or any notice shall
have been given of (i) any intended or potential downgrading or
(ii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or
guaranteed by the Company or any subsidiary of the Company by
any "nationally recognized statistical rating organization", as
that term is defined in Rule 436(g)(2) promulgated under the
Act or, if, at any time prior to the time of purchase or, with
respect to the purchase of any Additional Notes, the additional
time of purchase, as the case may be, trading in securities on
the New York Stock Exchange shall have been suspended or
minimum prices shall have been established on the New York
Stock Exchange, or if a banking moratorium shall have been
declared either by the United States or New York State
authorities, or if the United States shall have declared war in
accordance with its constitutional processes or there shall
have occurred any material outbreak or escalation of
hostilities or other national or international calamity or
crisis of such magnitude in its effect on the financial markets
of the United States as, in your judgment or in the judgment of
the Initial Purchasers, to make it impracticable to market the
Notes.
If you or the Initial Purchasers elect to terminate
this Agreement as provided in this Section 8, the other party
shall be notified promptly by letter or telegram.
If the sale to the Initial Purchasers of the Notes,
as contemplated by this Agreement, is not carried out by the
Initial Purchasers for any reason permitted under this
Agreement or if such sale is not carried out because the
Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or
liability under this Agreement (except to the extent provided
in Sections 5(k), 6 and 9 hereof), and the Initial Purchasers
shall be under no obligation or liability to the Company under
this Agreement (except to the extent provided in Section 9
hereof).
9. Indemnity by the Company and the Initial Purchasers:
(a) The Company agrees to indemnify, defend and hold harmless
each Initial Purchaser, its directors and officers, and any
person who controls any Initial Purchaser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from
and against any loss, expense, liability or claim (including
the reasonable cost of investigation) which, jointly or
severally, any such Initial Purchaser or person may incur under
the Act, the Exchange Act or otherwise, insofar as such loss,
expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Offering Memorandum (the term Offering
Memorandum for the purpose of this Section 9 being deemed to
include the Preliminary Offering Memorandum), or arises out of
or is based upon any omission or alleged omission to state a
material fact required to be stated in the Offering Memorandum
or necessary to make the statements made therein not
misleading, except insofar as any such loss, expense, liability
or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in
conformity with information furnished in writing by any Initial
Purchaser through you to the Company expressly for use with
reference to such Initial Purchaser in the Offering Memorandum
or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such
information required to be stated in the Offering Memorandum or
necessary to make such information not misleading.
If any action is brought against an Initial Purchaser
or any such person in respect of which indemnity may be sought
against the Company pursuant to the foregoing paragraph, such
Initial Purchaser or such person shall promptly notify the
Company in writing of the institution of such action and the
Company shall assume the defense of such action, including the
employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses;
provided, however, that the omission to so notify the Company
shall not relieve the Company from any liability which it may
have to any Initial Purchaser or any such person or otherwise
except to the extent the Company is prejudiced by such
omission. Such Initial Purchaser or controlling person shall
have the right to employ its own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense
of the Initial Purchaser or such person unless the employment
of such counsel shall have been authorized in writing by the
Company in connection with the defense of such action or the
Company shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties
shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional
to those available to the Company (in which case the Company
shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by the Company and
paid as incurred (it being understood, however, that the
Company shall not be liable for the expenses of more than one
separate counsel in any one action or series of related actions
in the same jurisdiction representing the indemnified parties
who are parties to such action). The Company shall not be
liable for any settlement of any such claim or action effected
without its written consent, but if settled with the written
consent of the Company, the Company agrees to indemnify and
hold harmless any Initial Purchaser and any such person from
and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more
than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement and (iii)
such indemnified party shall have given the indemnifying party
at least 30 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened proceeding 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 claims that are the
subject matter of such proceeding.
(b) Each Initial Purchaser severally agrees to indemnify,
defend and hold harmless the Company, its directors and
officers and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange
Act from and against any loss, expense, liability or claim
(including the reasonable cost of investigation) which, jointly
or severally, the Company or any such person may incur under
the Act or otherwise, insofar as such loss, expense, liability
or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in
conformity with information furnished in writing by or on
behalf of such Initial Purchaser through you to the Company
expressly for use with reference to such Initial Purchaser in
the Offering Memorandum or arises out of or is based upon any
omission or alleged omission to state a material fact in
connection with such information required to be stated in the
Offering Memorandum or necessary to make such information not
misleading.
If any action is brought against the Company or any
such person in respect of which indemnity may be sought against
any Initial Purchaser pursuant to the foregoing paragraph, the
Company or such person shall promptly notify such Initial
Purchaser in writing of the institution of such action and such
Initial Purchaser shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to
such indemnified party and payment of all fees and expenses;
provided, however, that the omission to notify such Initial
Purchaser shall not relieve such Initial Purchaser from any
liability which it may have to the Company or any such person
or otherwise. The Company or such person shall have the right
to employ its own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of the Company
or such person unless the employment of such counsel shall have
been authorized in writing by such Initial Purchaser shall not
have employed counsel to have charge of the defense of such
action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it
or them which are different from or additional to those
available to such Initial Purchaser (in which case such Initial
Purchaser shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties, but
such Initial Purchaser may employ counsel and participate in
the defense thereof but the fees and expenses of such counsel
shall be at the expense of such Initial Purchaser), in any of
which events such fees and expenses shall be borne by such
Initial Purchaser and paid as incurred (it being understood,
however, that such Initial Purchaser shall not be liable for
the expenses of more than one separate counsel in any one
action or series of related actions in the same jurisdiction
representing the indemnified parties who are parties to such
action). No Initial Purchaser shall be liable for any
settlement of such claim or action effected without the written
consent of the Initial Purchaser, but if settled with the
written consent of such Initial Purchaser, such Initial
Purchaser agrees to indemnify and hold harmless the Company and
any such person from and against any loss or liability by
reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the
second sentence of this paragraph, then the indemnifying party
agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after
receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall
have given the indemnifying party at least 30 days' prior
notice of its intention to settle. No indemnifying party
shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened
proceeding 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 claims that are the subject matter of
such proceeding.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and
(b) of this Section 9 in respect of any losses, expenses,
liabilities or claims referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, expenses,
liabilities or claims (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the
one hand and the Initial Purchasers on the other hand from the
offering of the Notes or (ii) if the allocation provided by
clause (i) above 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 Company on the one hand and of the Initial
Purchasers on the other in connection with the statements or
omissions which resulted in such losses, expenses, liabilities
or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Company
on the one hand and the Initial Purchasers on the other shall
be deemed to be in the same proportion as the total proceeds
from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the
Company bear to the underwriting discounts and commissions
received by the Initial Purchasers. The relative fault of the
Company on the one hand and of the Initial Purchasers on the
other shall be determined by reference to, among other things,
whether the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission relates to
information supplied by the Company or by the Initial
Purchasers and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party
as a result of the losses, claims, damages and liabilities
referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in
connection with investigating or defending any claim or action.
(d) The Company and the Initial Purchasers agree that it would
not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in subsection (c) above.
Notwithstanding the provisions of this Section 9, no Initial
Purchaser shall be required to contribute any amount in excess
of the amount by which the total price at which the Notes
underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such
Initial Purchaser has 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
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and
representations of the Company contained in this Agreement
shall remain in full force and effect regardless of any
investigation made by on behalf of any Initial Purchaser, its
directors or officers or any person who controls any Initial
Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, or by or on behalf of the
Company, its directors and officers or any person who controls
the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of
the Notes. The Company and each Initial Purchaser agree
promptly to notify the others of the commencement of any
litigation or proceeding against it and, in the case of the
Company, against any of the Company's officers and directors,
in connection with the issuance and sale of the Notes, or in
connection with the Offering Memorandum.
10. Notices: Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in
writing or by telegram and, if to the Initial Purchasers, shall
be sufficient in all respects if delivered or sent to SBC
Warburg Dillon Read Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X.
10022, Attention: Syndicate Department and, if to the Company,
shall be sufficient in all respects if delivered or sent to the
Company at the offices of the Company at Xxx Xxxxxxxxx Xxxxx,
X.X. Box 1399, Fort Xxx, NJ 07024, Attention: Chief Legal
Officer.
11. Construction: This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New
York. The section headings in this Agreement have been
inserted as a matter of convenience of reference and are not a
part of this Agreement.
12. Parties at Interest: The Agreement herein set forth has
been and is made solely for the benefit of the Initial
Purchasers and the Company and the controlling persons,
directors and officers referred to in Section 9 hereof, and
their respective successors, assigns, executors and
administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from the
Initial Purchasers) shall acquire or have any right under or by
virtue of this Agreement.
13. Counterparts: This Agreement may be signed by the parties
in counterparts which together shall constitute one and the
same agreement among the parties.
14. Miscellaneous: SBC Warburg Dillon Read Inc., an indirect,
wholly owned subsidiary of Swiss Bank Corporation, is not a
bank and is separate from any affiliated bank, including any
U.S. branch or agency of Swiss Bank Corporation. Because SBC
Warburg Dillon Read Inc. is a separately incorporated entity,
it is solely responsible for its own contractual obligations
and commitments, including obligations with respect to sales
and purchases of securities. Securities sold, offered or
recommended by SBC Warburg Dillon Read Inc. are not deposits,
are not insured by the Federal Deposit Insurance Corporation,
are not guaranteed by a branch or agency, and are not otherwise
an obligation or responsibility of a branch or agency.
A lending affiliate of SBC Warburg Dillon Read Inc.
may have lending relationships with issuers of securities
underwritten or privately placed by SBC Warburg Dillon Read
Inc. To the extent required under the securities laws,
prospectuses and other disclosure documents for securities
underwritten or privately placed by SBC Warburg Dillon Read
Inc. will disclose the existence of any such lending
relationships and whether the proceeds of the issue will be
used to repay debts owed to affiliates of SBC Warburg Dillon
Read Inc.
If the foregoing correctly sets forth the
understanding between the Company and the Initial Purchasers,
please so indicate in the space provided below for the purpose,
whereupon this letter and your acceptance shall constitute a
binding agreement between the Company and the Initial
Purchasers, severally.
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
SBC WARBURG DILLON READ INC.
CIBC XXXXXXXXXXX CORP.
XXXXX & COMPANY
BY: SBC WARBURG DILLON READ INC.
By:
Name:
Title:
By:
Name:
Title:
SCHEDULE A
Principal Amount
Initial Purchaser of Firm Notes___
SBC WARBURG DILLON READ INC. $87,500,000
CIBC XXXXXXXXXXX CORP. 18,750,000
XXXXX & COMPANY 18,750,000
__________________
Total ........
$125,000,000
1
_______________________________
1 As used herein "business day" shall mean a day on which
the New York Stock Exchange is open for trading.
1
