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Securities Pledge Agreement
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This PLEDGE AGREEMENT, dated June 27, 1997 (the "Agreement"), is made and
entered into by and between Wangs Fabrik AS, a corporation organized and
existing under the laws of the Kingdom of Norway (the "Pledgor"), and Den norske
Bank ASA, a banking corporation organized and existing under the laws of the
Kingdom of Norway (the "Secured Party").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, AL Industrier, a corporation organized and existing under the laws
of the Kingdom of Norway (the "Borrower") has entered into the Loan Facility
Agreement, dated June 19, 1997 (the "Loan Agreement"), with the Secured Party;
WHEREAS, all capitalized terms used herein and not defined herein shall
have the respective meanings accorded to them in the Loan Agreement;
WHEREAS, the Pledgor is a wholly owned subsidiary of the Borrower and, in
order to induce the Secured Party to enter into the Loan Agreement, desires to
enter into this Agreement and to pledge the Pledged Shares (as such term is
hereinafter defined) in order to secure the Obligations (as such term is
hereinafter defined); and
WHEREAS, pursuant to Clause 7.3(b) of the Loan Agreement, the Borrower has
agreed to cause the Pledgor to grant to the Secured Party a first priority
pledge of, in and over the securities identified in Exhibit 1 to this Agreement
(all such securities are collectively hereinafter referred to as the "Pledged
Shares") in order to secure the obligations of the Borrower under the Loan
Agreement;
NOW THEREFORE, in consideration of the premises and in order to induce the
Secured Party to extend the Loan to the Borrower, the Secured Party and the
Pledgor hereby agree as follows:
SECTION 1. Pledge. The Pledgor hereby pledges, assigns, hypothecates,
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transfers and delivers to the Secured Party, and grants to the Secured Party a
security interest in, the Pledged Shares, and in any certificates which evidence
such Pledged Shares, and, except as expressly set forth in Section 3(c) of this
Agreement, in all proceeds thereof and therefrom (collectively, the "Pledged
Collateral").
Page 13 of 47 Pages
SECTION 2. Security for Obligations. This Agreement secures the payment
------------------------
and performance of all obligations of the Borrower now or hereafter existing
under the Loan Agreement, whether for principal, interest, fees, expenses or
otherwise, and all obligations of the Pledgor now or hereafter existing under
this Agreement (all such obligations of the Pledgor and Borrower are
collectively referred to in this Agreement as the "Obligations").
SECTION 3. Delivery of Pledged Collateral.
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(a) Certificated Shares. All certificates or instruments which represent
-------------------
or evidence the Pledged Shares shall, simultaneously with the execution and
delivery of this Agreement by the Pledgor, be delivered by the Pledgor to, and
be held by or on behalf of, the Secured Party pursuant hereto, and shall be in
suitable form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Secured Party. The Secured Party shall have the right to
register in the name of the Secured Party as pledgee hereunder any or all of the
Pledged Collateral.
(b) Notice to Alpharma Inc. Pledgor shall, upon execution and delivery of
----------------------
this Agreement, notify the issuer of the Pledged Shares, Alpharma Inc., a
Delaware corporation ("Alpharma"), in writing of its pledge of the Pledged
Shares and request in writing that Alpharma take all such action, if any, as may
be necessary or required under the laws of the State of Delaware to give full
and complete legal force, effect and recognition to the creation and perfection
of the pledge of the Pledged Shares contemplated under this Agreement.
(c) While the Pledged Shares are in possession of the Secured Party and
unless and until an Event of Default shall have occurred, the Pledgor shall
retain ownership of and each and all of the voting rights, dividend rights,
liquidation rights and other rights of the Pledged Shares subject to the lien
and security interest granted to the Secured Party.
SECTION 4. Representations, Warranties and Covenants of the Pledgor. The
--------------------------------------------------------
Pledgor represents and warrants, and so long as this Agreement is in effect
shall be deemed continuously to represent and warrant, that (a) it is the legal
record and beneficial owner of, and has good and (subject to applicable
securities laws) marketable title to, the Pledged Shares, subject to no lien or
encumbrance whatsoever, except the lien created by this Agreement; (b) it has
full power, authority and legal right to pledge all the Pledged Shares pursuant
to this Agreement; (c) this Agreement has been duly authorized, executed and
delivered by the Pledgor and constitutes a legal, valid and binding obligation
of the Pledgor enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of creditors' rights generally and except
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as enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law); (d) no
consent of any other person (including, without limitation, stockholders or
creditors of the Pledgor), and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing or
declaration with, any governmental authority, domestic or foreign, is required
to be obtained by the Pledgor in connection with the execution, delivery and
performance of this Agreement, other than those that have been obtained prior to
the date hereof and other than filings for disclosure purposes pursuant to the
Securities and Exchange Act of 1934; (e) the execution, delivery and performance
of this Agreement will not violate any provisions of any applicable law or
regulation or of any order, judgment, writ, award or decree of any court,
arbitrator or governmental authority, domestic or foreign, or of the certificate
of incorporation or by-laws of Alpharma or of the Pledgor, or of any securities
issued by the Pledgor, or of any mortgage, indenture, lease, contract, or other
agreement, instrument or undertaking to which the Pledgor is a party, or which
purports to be binding upon the Pledgor or upon any of its assets, and will not
result in the creation or imposition of any lien or other encumbrance on any of
the assets of the Pledgor except as contemplated by this Agreement; (f) all of
the Pledged Shares have been duly and validly issued, are fully paid and non-
assessable; (g) neither the use of proceeds received by the Borrower under the
Loan Agreement, nor the pledge of the Pledged Shares under this Agreement,
violates Regulation G, T, U or X of the Board of Governors of the United States
Federal Reserve System as now or from time to time hereafter in effect; (h) the
pledge of the Pledged Shares and the perfection of such pledge, as contemplated
in Section 3 of this Agreement, creates a legal, valid and enforceable lien on,
and a first perfected security interest in, the Pledged Shares and the proceeds
thereof and therefrom, subject to no prior lien or other encumbrance, or to any
agreement purporting to grant to any third party a lien or other encumbrance on
the property or assets of the Pledgor which would include the Pledged Shares;
(i) pursuant to the provisions of Section 8.c. of the Stock Subscription and
Purchase Agreement, dated February 10, 1997, by and between Borrower and
Alpharma (the "Stock Purchase Agreement"), Borrower has assigned all of its
rights and interests under the Stock Purchase Agreement to the Pledgor in order
lawfully to permit the Pledgor to enter into this Agreement and to pledge the
Pledged Shares to the Secured Party hereunder; and (j) neither the Pledgor nor
the Borrower is an "investment company" as such term is defined in Section 3 of
the Investment Company Act of 1940. The Pledgor covenants and agrees that it
will (i) defend the Secured Party's right, title and security interest in and to
the Pledged Collateral against the claims and demands of all entities, and (ii)
have like title to and right to pledge any other property at any time hereafter
pledged to the Secured Party
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as Pledged Collateral hereunder, and will likewise defend the Secured Party's
right thereto and security interest therein.
SECTION 5. Further Assurances. The Pledgor agrees that at any time and
------------------
from time to time, at its expense it will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable, or that the Secured Party may reasonably request, in
order to perfect and protect the security interest intended to be granted
hereby, and to enable the Secured Party to exercise and enforce its rights and
remedies hereunder with respect to any of the Pledged Collateral.
SECTION 6. Voting Rights. Upon the occurrence and during the continuance
-------------
of an Event of Default, all rights of Pledgor to exercise the voting and other
consensual rights which it would otherwise be entitled to exercise shall cease,
and all such rights shall thereupon become vested in the Secured Party, which
shall thereupon have the sole right to exercise such voting and other consensual
rights.
SECTION 7. Stock Dividends and Distributions. If, while this Agreement is
---------------------------------
in effect, the Pledgor shall become entitled to receive or shall receive any
additional securities representing a stock dividend upon (or a distribution in
connection with any reclassification or increase or reduction of capital by, or
issued in connection with any reorganization of, Alpharma), or in addition to,
in substitution of, or in exchange for, any Pledged Shares, or otherwise, the
Pledgor agrees to accept the same and to hold the same in trust on behalf of and
for the benefit of the Secured Party and to pledge the same forthwith to the
Secured Party in accordance with the terms and provisions of this Agreement, as
additional Collateral to secure the Obligations. Any sums paid upon or in
respect of the Pledged Shares upon the liquidation or dissolution of Alpharma
thereof shall similarly be paid over to the Secured Party to be held by it as
additional Collateral for the Obligations.
SECTION 8. Transfers and Other Liens. The Pledgor agrees that it will not
-------------------------
(i) sell or otherwise dispose of, or grant any option or warrant with respect
to, any of the Pledged Collateral or enter into any agreement to do any of the
foregoing, or (ii) create or permit to exist any lien or other encumbrance upon
or with respect to any of the Pledged Collateral, except for liens or other
encumbrances in favor of the Secured Party.
SECTION 9. Secured Party Appointed Attorney-in-Fact. The Pledgor hereby
----------------------------------------
appoints the Secured Party attorney-in-fact, with full authority in the place
and stead of Pledgor and in the name of Pledgor or otherwise, from time to time
in the Secured Party's discretion, to take any action and to execute any
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instrument which the Secured Party may deem necessary or advisable to accomplish
any of the purposes expressly set forth in this Agreement, including, without
limitation, if and only if an Event of Default has occurred and is continuing,
to receive, endorse and collect all instruments made payable to Pledgor
representing any dividend, interest payment or other distribution in respect of
the Pledged Collateral or any part thereof and to give full discharge for the
same.
SECTION 10. Secured Party May Perform. If Pledgor fails to perform any
-------------------------
agreement contained herein, the Secured Party may itself perform, or cause the
performance of, such agreement, and the expenses of the Secured Party incurred
in connection therewith shall be payable by Pledgor under Section 17 of this
Agreement.
SECTION 11. Reasonable Care. The Secured Party shall be deemed to have
---------------
exercised reasonable care in the custody and preservation of any Pledged
Collateral in its possession if the Pledged Collateral is accorded treatment
substantially equal to that which the Secured Party accords its own property, it
being understood that the Secured Party shall not have any responsibility for
(i) ascertaining or taking action with respect to conversions, exchanges, tender
offers or other matters relative to any of the Pledged Collateral, whether or
not the Secured Party has or is deemed to have knowledge of such matters, or
(ii) taking any necessary steps to preserve rights against any entity with
respect to any of the Pledged Collateral.
SECTION 12. Remedies upon Default. (a) Upon the occurrence and during the
---------------------
continuance of any Event of Default under the Loan Agreement, the Secured Party
without demand of performance or other demand, advertisement or notice of any
kind (except the notice specified below of time and place of public or private
sale) to or upon the Pledgor or any other entity (all and each of which demands,
advertisements and notices are hereby expressly waived by the Pledgor), may (i)
forthwith collect, receive, appropriate and realize upon the Pledged Collateral,
or any part thereof, and (ii) if an Event of Default is continuing after
expiration of all applicable grace and cure periods under the Loan Agreement
(the "Default Cure Period") forthwith sell, assign, give option or options to
purchase, contract to sell or otherwise dispose of and deliver (each, a
"Transfer") the Pledged Collateral, or any part thereof, in one or more parcels
at public or private sale or sales, at any exchange, broker's board or at the
Secured Party's offices or elsewhere, (A) upon such terms and conditions as the
Secured Party may deem advisable, (B) at such prices as the Secured Party may
deem best, but not less than eighty percent (80%) of the then current market
price of the Class A shares of common stock of Alpharma, Inc., (C) for cash or
on credit or for future delivery without assumption of any credit risk, (D) with
the right to the Secured Party upon any such sale
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or sales, public or private, to purchase the whole or any part of the Pledged
Collateral so sold, free of any right or equity of redemption in the Pledgor,
which right or equity is hereby expressly waived and released by the Pledgor,
and (E) provided that prior to any such Transfer, the Secured Party shall give
written notice thereof to the Board of Directors of the Issuer.
(b) The Secured Party hereby acknowledges that the Pledgor is a "control
person" (as such term is defined in Rule 405 of the Securities Act of 1933, as
amended (the "Securities Act")) of Alpharma Inc., a Delaware corporation and
issuer of the Pledged Shares (the "Issuer"). As such, the Secured Party
acknowledges that any Transfer of such Pledged Shares by the Secured Party might
require registration under the Securities Act of 1933. In any event, the
Secured Party hereby covenants that it shall not make any Transfer of the
Pledged Securities in a manner which conflicts with the Securities Act.
(c) The Secured Party shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, after deducting all costs
and expenses of every kind incurred therein or incidental to the care,
safekeeping or otherwise of any and all of the Pledged Collateral or in any way
related to the rights of the Secured Party hereunder, including reasonable
attorneys' fees and legal expenses, to the payment in whole or in part, of the
Obligations, in such order as the Secured Party may elect, and only after so
paying over such net proceeds and after the payment by the Secured Party of any
other amount required by any provision of law, need the Secured Party account
for the surplus, if any, to the Pledgor. After the Default Cure Period has
lapsed and the Secured Party intends to exercise its remedy under Section
12(a)(ii) hereof, the Pledgor agrees that the Secured Party need not give more
than five days notice of the time and place of any public sale, or of the time
after which a private sale or other intended disposition is to take place, and
that such notice is reasonable notification of such matters. No notification
need be given to the Pledgor if it has signed after default a statement
renouncing or modifying any right to notification of sale or other intended
disposition. In addition to the rights and remedies granted to it in this
Agreement and in any other instrument or agreement securing, evidencing or
related to any of the Obligations, the Secured Party shall have all the rights
and remedies of a secured party under applicable law. The Pledgor shall remain
liable for any deficiency if the proceeds of any sale or other disposition of
the Pledged Collateral are insufficient to pay all the Obligations and all other
amounts to which the Secured Party is entitled, and shall also be liable for the
fees of any attorneys employed by the Secured Party to collect such deficiency.
(d) Instead of exercising the power of sale provided in Section 12(a)(ii)
hereof, the Secured Party may proceed by a suit or suits at law or in equity to
foreclose the pledge under this Agreement and sell the Pledged Collateral or any
portion
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thereof under a judgment or decree of a court or courts of competent
jurisdiction.
(e) The Secured Party, as attorney-in-fact pursuant to Section 9 hereof
may, in the name and stead of the Pledgor, make and execute all conveyances,
assignments and transfers of the Pledged Collateral sold pursuant to Section
12(a) hereof or Section 12(b) hereof, and the Pledgor hereby ratifies and
confirms all that the Secured Party, as said attorney-in-fact, shall so do by
virtue hereof. Nevertheless, the Pledgor shall, if so requested by the Secured
Party, ratify and confirm any sale or sales by executing and delivering to the
Secured Party, or to any purchaser or purchasers of the Pledged Collateral, all
such instruments as may, in the judgment of the Secured Party, be advisable for
the purpose.
(f) The receipt of the Secured Party for the purchase money paid at any
such sale made by it shall be a sufficient discharge therefor to any purchaser
of the Pledged Collateral, or any portion thereof, sold as aforesaid; and no
such purchaser (or the representatives or assigns of such purchaser), after
paying such purchase money and receiving such receipt, shall be bound to see to
the application of such purchase money or any part thereof, or in any manner
whatsoever be answerable for any loss, misapplication or nonapplication of any
such purchase money, or any part thereof, or be bound to inquire as to the
authorization, necessity, expediency or regularity of any such sale.
(g) No sale or other disposition of all or any part of the Pledged
Collateral by the Secured Party pursuant to this Agreement shall be deemed to
relieve the Pledgor or the Borrower of its obligations in respect of any
Obligations except to the extent the proceeds thereof are applied by the Secured
Party to the payment of such Obligations.
SECTION 13. Secured Party's Right of Set-off. Pledgor recognizes and
--------------------------------
agrees that with respect to any time or other deposit, certificate of deposit or
any other balance of account standing to the credit of Pledgor on the books of
the Secured Party wherever located, the Secured Party has a right of set-off to
the full extent permitted by law. Pledgor further agrees that the Secured Party
may exercise such right of set-off at any time when an Event of Default under
the Loan Agreement shall occur, regardless of the stated maturity of any time
deposit or other such credit balance.
SECTION 14. Registration Rights. (a) If the Secured Party shall determine
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to exercise its right to sell all or any of the Pledged Collateral pursuant to
Section 12(a)(ii) of this Agreement, Pledgor agrees that, upon request of the
Secured Party, Pledgor will, at its own expense, use its best efforts to cause
Alpharma to:
(i) execute and deliver all such instruments and documents, and do or
cause to be done all such other acts
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and things, as may be necessary or, in the opinion of the Secured Party,
advisable to register such Pledged Collateral under the provisions of the
United States Securities Act of 1933, as amended, and any rules or
regulations promulgated thereunder (the "Securities Act"), and to cause the
registration statement related thereto to become effective and to remain
effective for such period as prospectuses are required by law to be
furnished, and to make all amendments and supplements thereto and to the
related prospectus which, in the opinion of the Secured Party, are necessary
or advisable, all in conformity with the requirements of the Securities Act;
(ii) use its best efforts to qualify the Pledged Collateral under
the state securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of the Pledged Collateral, as requested
by the Secured Party;
(iii) to make available to security holders, as soon as
practicable, an earnings statement which will satisfy the provisions of
Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may
be necessary to make such sale of the Pledged Collateral or any part thereof
valid and binding and in compliance with applicable law.
(b) Pledgor agrees to indemnify, pay and hold the Secured Party and each
underwriter (within the meaning of Section 2(11) of the Securities Act) and the
officers, directors, employees and agents of the Secured Party and each
underwriter and each Person controlling (within the meaning of the Securities
Act) the Secured Party or any underwriter (collectively called the
"Indemnitees") harmless from and against, any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs, expenses
and disbursements of any kind or nature whatsoever (including, without
limitation, the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or judicial
proceeding, whether or not such Indemnitee shall be designated a party thereto),
which may be imposed on, incurred by, or asserted against such Indemnitee, in
any manner related to or arising out of any actual or alleged untrue statement
of any material fact contained in any such registration statement or
qualification statement or any similar document, or any part thereof or
amendment or supplement thereto, or any actual or alleged omission to state any
material fact required to be stated in any such registration statement,
qualification statement or any similar document, or any part thereof or
amendment or supplement thereto, or necessary to make the statements contained
therein
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not misleading (the "Indemnified Liabilities"); provided that Pledgor shall have
no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities
on account of any actual or alleged untrue statement contained in, or any actual
or alleged omission from, any information furnished in writing to Pledgor by
such person specifically for use in such registration statement, qualification
statement, or similar document. To the extent that the undertaking to
indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, Pledgor shall
contribute the maximum portion which it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by the Indemnitees or any of them. All obligations provided for in
this paragraph of Section 14 shall survive the repayment of the Loan, the
termination of this Agreement and the Loan Agreement, and the discharge or
repayment of the Obligations. Pledgor further acknowledges the impossibility of
ascertaining the amount of damages which would be suffered by the Secured Party
by reason of the failure by Pledgor to perform any of the covenants contained in
this Section and, consequently, agrees that, if Pledgor shall fail to perform
any of such covenants, it shall pay, as liquidated damages and not as a penalty,
an amount equal to the lesser of (i) the value of the Pledged Collateral on the
date the Secured Party shall demand compliance with this Section less the
proceeds of the sale of any of the Pledged Collateral pursuant to this Section
14, or (ii) the Obligations. Upon such payment, the Secured Party will deliver
to Pledgor any part of the Pledged Collateral with respect to which such payment
is made.
(c) In order further to provide the Secured Party with the rights to which
it is entitled under Section 14(a) of this Agreement, subject to the
restrictions contained therein and in Section 12(a)(ii) hereof, Pledgor hereby
assigns to the Secured Party the Registration Rights of the Borrower and Pledgor
under Section 6 of the Stock Purchase Agreement with respect to 1,273,438 of the
Pledged Shares. Pledgor represents that Alpharma has consented in writing to
the assignment of such rights to the Secured Party hereunder.
SECTION 15. Private Sale. Subject to the restrictions on Transfers of the
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Pledged Shares set forth in Section 12(a)(ii) hereof, (a) the Pledgor recognizes
that the Secured Party may be unable to effect a public sale of any or all the
Pledged Shares, by reason of certain prohibitions contained in the Securities
Act, and accordingly that the Secured Party may be compelled to resort to one or
more private sales thereof to a restricted group of purchasers who will be
obliged to agree, among other things, to acquire such securities for their own
account, for investment and not with a view to the distribution and resale
thereof. The Pledgor acknowledges and agrees that any such private sale shall
be deemed to have been made in a commercially reasonable manner, and waives any
claims against the Secured Party arising by reason
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of the fact that the price at which the Pledged Shares may be sold in a private
sale may be less than the price which might have been obtained in a public sale
or was less than the aggregate amount of the Obligations or the stock exchange
market price of shares of Alpharma of the same class as the Pledged Shares, even
if the Secured Party accepts the first offer received and does not offer the
Pledged Shares to more than one possible Purchaser. The Secured Party shall be
under no obligation to delay a sale of any of the Pledged Collateral for the
period of time necessary to permit the registration of such securities for
public sale under the Securities Act, or under applicable state securities laws.
(b) The Pledgor agrees to use its best efforts to do or cause to be done
all such other acts and things as may be necessary to make such sale or sales of
any portion of or all the Pledged Collateral valid and binding and in compliance
with any and all applicable laws, regulations, orders, writs, injunctions,
decrees or awards of any and all courts, arbitrators or governmental
instrumentalities, domestic or foreign, having jurisdiction over any such sale
or sales, all at the Pledgor's expense. The Pledgor further agrees that a
breach of any of the covenants contained in this Section 15 will cause
irreparable injury to the Secured Party, that the Secured Party has no adequate
remedy at law in respect of such breach and, as a consequence, agrees that each
and every covenant contained in this paragraph shall be specifically enforceable
against the Pledgor. The Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants except for
a defense that no Event of Default has occurred under the Loan Agreement.
SECTION 16. Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 17. Indemnity and Expenses. Pledgor shall on demand indemnify the
----------------------
Secured Party from and against any and all claims, losses and liabilities
growing out of or resulting from this Agreement (including, without limitation,
enforcement of this Agreement). Pledgor shall upon demand pay to the Secured
Party the amount of any and all expenses, including the fees and expenses of its
counsel and of any experts and agents, which the Secured Party may incur in
connection with (i) the preparation and administration of this Agreement, (ii)
the custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Pledged Collateral, (iii) the exercise or
enforcement of any of the rights of the Secured Party
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hereunder, and (iv) the failure by Pledgor to perform or observe any of the
provisions hereof.
SECTION 18. Security Interest Absolute. All rights of the Secured Party
--------------------------
and security interests hereunder, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of the Loan Agreement
or any instrument related thereto;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other amendment or
waiver under, or any consent to any departure from, the Loan Agreement;
(iii) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of, or consent to
departure from, any guaranty for all or any of the Obligations; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Pledgor or a third-party
pledgor.
SECTION 19. Amendments. No amendment or waiver of any provision of this
----------
Agreement, nor consent to any departure by Pledgor here from, shall in any event
be effective unless the same shall be in writing and signed by the Secured
Party, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 20. Addresses for Notices. All notices and other communications
---------------------
provided for under this Agreement shall be in writing and shall be addressed as
follows:
If to the Secured Party, at:
Den norske Bank ASA
X.X. Xxx 0000 Xxxxxxx
X-0000 Xxxx
Xxxxxx
Telefax No.: x00 00 00 00 00
Attention: Credit Administration
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If to the Pledgor, at:
Wangs Fabrik AS
X.X. Xxx 000 Xxxxxx
0000 Xxxx
Xxxxxx
Telefax No.: x00 00 00 00 00
Attention: Xxxxxx Xxxxxxxx
or to such other address as one party may notify the other in writing. Notices
sent by letter or telefax shall be effective upon receipt. Each party shall
confirm by letter any telefax notice to the other party to this Agreement.
SECTION 21. Continuing Security Interest; Transfer of Facility. This
--------------------------------------------------
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (i) remain in full force and effect until payment in full of the Loan
and all other Obligations then due and owing, (ii) be binding upon the Pledgor,
its successors and assigns, and (iii) inure to the benefit of the Secured Party
and its successors, transferees and assigns. Without limiting the generality of
the foregoing clause (iii), the Secured Party may assign or otherwise transfer
the Loan, in whole or in part, to any other person or entity, and such other
person or entity shall thereupon become vested with all the benefits in respect
thereof granted to the Secured Party herein or otherwise. Upon the payment in
full of the Loan and all other Obligations then due and owing, Pledgor shall be
entitled to the return, upon its request and at its expense, of such of the
Pledged Collateral as shall not have been sold or otherwise applied pursuant to
the terms hereof.
SECTION 22. No Waiver; Cumulative Remedies. Each right, power and remedy
------------------------------
herein specifically granted to the Secured Party or otherwise available to it at
law or in equity or otherwise shall be cumulative, and shall be in addition to
every other right, power and remedy herein specifically given or now or
hereafter existing at law, in equity or otherwise; and each right, power and
remedy, whether specifically granted herein or otherwise existing, may be
exercised at any time and from time to time as often and in such order as may be
deemed expedient by the Secured Party in its complete discretion; and the
exercise or commencement of exercise of any right, power or remedy shall not be
construed as a waiver of the right to exercise, at the same time or thereafter,
the same or any other right, power or remedy. No delay or omission by the
Secured Party in exercising any such right or power, or in pursuing any such
remedy, shall impair any such right, power or remedy, or be construed to be a
waiver of
12
Page 24 of 47 Pages
any default on the part of the Pledgor or Borrower or an acquiescence therein.
No waiver by the Secured Party of any breach or default of or by the Pledgor
hereunder shall be deemed to be a waiver of any other similar, previous or
subsequent breach or default.
SECTION 23. Governing Law; Terms. This Agreement shall be governed by and
--------------------
be construed in accordance with the internal laws of the Kingdom of Norway.
SECTION 24. Submission to Jurisdiction; Agent for Service of Process. (a)
--------------------------------------------------------
The Pledgor hereby irrevocably submits to the non-exclusive jurisdiction of any
state or federal court sitting in the County of New York, State of New York, in
connection with any action or proceeding arising out of or related to this
Agreement, or any other Security Document, or the transactions contemplated
hereby or thereby, irrevocably consents to the service of process in such
actions, and, to the maximum extent permitted by law, waives irrevocably any
objection to venue or objections in the nature of forum non conveniens that it
----- --- ----------
may have.
(b) The Pledgor hereby irrevocably appoints C T Corporation System (the
"Process Agent"), with an office on the date hereof at 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Xxxxxx Xxxxxx, as its agent to receive on behalf of itself and
its property service of copies of the summons and complaint and any other
process which may be served in any such action or proceeding. Such service may
be made by mailing or delivering a copy of such process to the Pledgor in care
of the Process Agent (or any successor thereto, as the case may be) at such
Process Agent's above address (or the address of any successor thereto, as the
case may be), and the Pledgor hereby irrevocably authorizes and directs the
Process Agent (and any successor thereto) to accept such service on its behalf.
The Pledgor shall appoint a successor agent for service of process should the
agency of C T Corporation System terminate for any reason, and further shall at
all times maintain an agent for service of process in New York, New York, so
long as there shall be outstanding any Obligations hereunder. The Pledgor shall
give notice to the Secured Party of any appointment of successor agents for
service of process, and shall obtain from each successor agent a letter of
acceptance of appointment and promptly deliver the same to the Secured Party.
As an alternative method of service, the Pledgor also irrevocably consents to
the service of any and all process in any such action or proceeding by the
mailing of copies of such process to it at its address specified in Section 20
hereof. The Pledgor agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Section 24 shall affect the right of the Secured Party to serve legal process in
any other manner permitted by law, or
13
Page 25 of 47 Pages
affect the right of the Secured Party to bring any action or proceeding against
the Pledgor or its properties in the courts of any other jurisdiction.
SECTION 25. WAIVER OF JURY TRIAL. BOTH PLEDGOR AND SECURED PARTY HEREBY
--------------------
IRREVOCABLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE LOAN AGREEMENT, OR
ANY OTHER SECURITY DOCUMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
14
Page 26 of 47 Pages
IN WITNESS WHEREOF, Pledgor and the Secured Party have each caused this
Pledge Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first above written.
WANGS FABRIK AS
By: /s/Xxxxx Jotun; Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Jotun; Xxxxxx Xxxxxxxx
Title: Administrative Director;
V.P. of Finance
DEN NORSKE BANK ASA
By: /s/Pal Skoe
-------------------------------
Name: Pal Skoe
Title: Sr. Vice President
Attachment: Exhibit 1
Description of Pledged Securities
15
Page 27 of 47 Pages
Exhibit 1
---------
to Securities
-------------
Pledge Agreement
----------------
The Securities pledged to the Secured Party are Two Million
(2,000,000) shares of Class B Common Stock, $0.20 par value, of Alpharma Inc.
(formerly A.L. Laboratories, Inc.), a corporation organized and existing under
the laws of the State of Delaware.
