-21-
EXHIBIT 4.2
$125,000,000
ALPHARMA INC.
5-3/4% Convertible Notes Due 2005
REGISTRATION RIGHTS AGREEMENT
March 25, 1998
SBC WARBURG DILLON READ INC.
CIBC OPPENHEIMER CORP.
▇▇▇▇▇ & COMPANY
c/o SBC WARBURG DILLON READ INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Alpharma Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to SBC Warburg Dillon Read Inc.,
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. and ▇▇▇▇▇ & Company (the "Initial
Purchasers"), upon the terms set forth in a purchase agreement
of even date herewith (the "Purchase Agreement"), $125,000,000
aggregate principal amount of its 5-3/4% Convertible
Subordinated Notes due 2005, which are convertible into Class A
Common Stock of the Company, par value $.20 per share (the
"Conversion Shares"), as well as an additional allotment of up
to $18,750,000 of the same which the Initial Purchasers may
subsequently elect to purchase pursuant to the terms of the
Purchase Agreement (the "Notes"). The Notes will be issued
pursuant to an Indenture, dated as of March 30, 1998 (the
"Indenture") among the Company and First Union National Bank
(the "Trustee"). As an inducement to the Initial Purchasers,
the Company agrees with the Initial Purchasers, for the benefit
of the holders of the Notes (including, without limitation, the
Initial Purchasers) and Conversion Shares (collectively, the
"Securityholders"), as follows:
1. Shelf Registration. (a) The Company shall file with
the Securities and Exchange Commission (the "Commission")
within 90 days after the Closing Date a registration statement
(the "Shelf Registration Statement") on Form S-1 or Form S-3,
if the use of such form is then available, to cover resales of
Transfer Restricted Securities (as defined) by the Holders (as
defined). The Company shall use its best efforts to cause the
Shelf Registration Statement to be declared effective by the
Commission on or prior to 150 days from the Closing Date.
"Transfer Restricted Securities" means each Note and any
Conversion Share until the date on which such Note or
Conversion Share has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf
Registration Statement, the date on which such Note or
Conversion Share is distributed to the public pursuant to Rule
144 under the Securities Act of 1933, as amended (the
"Securities Act") or the date on which such Note or Conversion
Share may be sold or transferred pursuant to Rule 144(k) (or
any similar provisions then in force).
(b) The Company shall cause the Shelf Registration
Statement to be effective for a period of two years (or for
such longer period if extended pursuant to Section 2(h) below)
from the effective date thereof or such shorter period that
will terminate when each Transfer Restricted Security covered
by the Shelf Registration Statement ceases to be a Transfer
Restricted Security (in either case, such period is referred to
as the "Shelf Registration Period"). The Company shall be
deemed not to have used its best efforts to keep the Shelf
Registration Statement effective during the requisite period if
it voluntarily takes any action that would result in Holders of
Transfer Restricted Securities covered thereby not being able
to offer and sell such Transfer Restricted Securities during
that period, unless such action is required by applicable law
or otherwise permitted hereunder, including, without
limitation, by Section 2(i) hereof.
(c) Notwithstanding any other provisions of this
Agreement to the contrary, the Company shall cause the Shelf
Registration Statement and the related prospectus and any
amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement, amendment or supplement, (i)
to comply in all material respects with the applicable
requirements of the Securities Act and the rules and
regulations of the Commission and (ii) not to contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading.
2. Registration Procedures. In connection with the
proposed offer and sale of the Transfer Restricted Securities
in accordance with the methods of distribution set forth in the
Shelf Registration Statement (the "Shelf Registration"), the
following provisions apply:
(a) The Company shall prepare and mail to each
Securityholder identified by the Initial Purchasers a
questionnaire requesting such information regarding such
Securityholder and the distribution of Transfer Restricted
Securities as the Company may reasonably require for
inclusion in the Shelf Registration Statement and asking
each such Securityholder to confirm that it will comply
with applicable securities laws, including the Securities
Act. Each Securityholder to whom such questionnaire is
mailed shall deliver a completed questionnaire to the
Company within fifteen days of receipt. The Company will
include in the Shelf Registration Statement as a selling
security holder each Securityholder that returns its
questionnaire within fifteen days of receipt and will use
its best efforts to include in the Shelf Registration
Statement any Securityholder which fails to provide the
Company with a completed questionnaire within fifteen days
of receipt but otherwise provides the requested
information and confirmation prior to the commencement of
the Shelf Registration Period. The Company shall have no
obligation to include in the Shelf Registration Statement
a Securityholder which fails to provide the Company with a
completed questionnaire prior to the commencement of the
Shelf Registration Period. "Holder" means each
Securityholder who (i) is so identified by the Initial
Purchasers as promptly as practicable but in no event
later than 35 days after the date hereof and (ii) delivers
to the Company a completed questionnaire containing the
required information and confirmation within such fifteen-
day period or is otherwise included as a selling security
holder in the Shelf Registration Statement.
(b) The Company shall (i) furnish to the Initial
Purchasers, prior to the filing thereof with the
Commission, a copy of the Shelf Registration Statement and
each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that the
Initial Purchasers (with respect to any portion of an
unsold allotment from the original offering) is
participating in the Shelf Registration, the Company shall
use its best efforts to reflect in each such document,
when so filed with the Commission, such comments as the
Initial Purchasers reasonably may propose; and (ii)
include in such Shelf Registration Statement (or amendment
or supplements) the names of the Holders who propose to
sell Transfer Restricted Securities pursuant to the Shelf
Registration Statement as selling securityholders.
(c) The Company shall give written notice to the
Initial Purchasers and Holders of the Transfer Restricted
Securities (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied by an instruction to suspend
the use of the prospectus and any sales pursuant to such
prospectus until the requisite changes have been made):
(i) when the Shelf Registration Statement or any
amendment thereto has been filed with the Commission
and when the Shelf Registration Statement or any post-
effective amendment thereto has become effective;
(ii) of any request by the Commission for
amendments or supplements to the Shelf Registration
Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf
Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the
suspension of the qualification of the Transfer
Restricted Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for
such purpose; and
(v) of the happening of any event that requires
the Company to make changes in the prospectus which
forms a part of the Shelf Registration Statement in
order that the prospectus does not contain an untrue
statement of a material fact nor omits to state a
material fact required to be stated therein or
necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading.
(d) The Company shall make every reasonable effort
to obtain the withdrawal at the earliest possible time, of
any order suspending the effectiveness of the Shelf
Registration Statement.
(e) The Company shall furnish to each Holder of
Transfer Restricted Securities included within the
coverage of the Shelf Registration, without charge, at
least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests
in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(f) The Company shall, during the Shelf Registration
Period, deliver to each Holder of Transfer Restricted
Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the
prospectus (including each preliminary prospectus)
included in the Shelf Registration Statement and any
amendment or supplement thereto as such person may
reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus
or any amendment or supplement thereto by each of the
selling Holders of the Transfer Restricted Securities in
connection with the offering and sale of the Transfer
Restricted Securities covered by the prospectus, or any
amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) Prior to any public offering of the Transfer
Restricted Securities pursuant to any Shelf Registration
Statement, the Company shall register or qualify or
cooperate with the Holders of the Transfer Restricted
Securities included therein and their respective counsel
in connection with the registration or qualification of
the Transfer Restricted Securities for offer and sale
under the securities or "blue sky" laws of such states of
the United States as any Holder of the Transfer Restricted
Securities reasonably requests in writing and do any and
all other acts or things necessary or advisable to enable
the offer and sale in such states of the Transfer
Restricted Securities covered by such Shelf Registration
Statement; provided, however, that the Company shall not
be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii)
take any action which would subject it to general service
of process or to taxation in any jurisdiction where it is
not then so subject.
(h) The Company shall cooperate with the Holders of
the Transfer Restricted Securities to facilitate the
timely preparation and delivery of certificates
representing the Transfer Restricted Securities to be sold
pursuant to any Shelf Registration Statement free of any
restrictive legends and in such denominations and
registered in such names as the Holders may request a
reasonable period of time prior to sales of the Transfer
Restricted Securities pursuant to such Shelf Registration
Statement and prior to settlement of such sales.
(i) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 2(c) above during
the Shelf Registration Period, the Company shall promptly
prepare and file a post-effective amendment to the Shelf
Registration Statement or a supplement to the related
prospectus and any other required document so that, as
thereafter delivered to Holders of the Transfer Restricted
Securities or purchasers of Transfer Restricted
Securities, the prospectus will not contain an untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances
under which they were made, not misleading; provided,
however, that the Company may delay preparing, filing and
distributing any such supplement or amendment (such period
of delay, a "Suspension Period") if the Company determines
in good faith that such supplement or amendment would, in
the reasonable judgment of the Company, (i) interfere with
or affect the negotiation or completion of a transaction
that is being contemplated by the Company (whether or not
a final decision has been made to undertake such
transaction) or (ii) involve initial or continuing
disclosure obligations that are not in the best interests
of the Company's stockholders at such time; provided,
further, that such delay shall not extend for a period of
more than 30 business days in any three-month period or
more than 60 business days in any twelve-month period. If
the Company notifies the Initial Purchasers and the
Holders of the Transfer Restricted Securities in
accordance with paragraphs (ii) through (v) of Section
2(c) above to suspend the use of the prospectus until the
requisite changes to the prospectus have been made, then
the Initial Purchasers and the Holders of the Transfer
Restricted Securities shall suspend use of such
prospectus, and the period of effectiveness of the Shelf
Registration Statement provided for in Section 1(b) above
shall be extended by the number of days from and including
the date of the giving of such notice to and including the
date when the Initial Purchasers and the Holders of the
Transfer Restricted Securities shall have received such
amended or supplemented prospectus pursuant to this
Section 2(i).
(j) Not later than the effective date of the Shelf
Registration Statement, the Company will provide CUSIP
numbers for the Notes and the Conversion Shares registered
under the Shelf Registration Statement and provide the
Trustee with a certificate for the Notes, in a form
eligible for deposit with The Depository Trust Company.
(k) The Company will comply with all rules and
regulations of the Commission to the extent and so long as
they are applicable to the Shelf Registration and will
make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the
Securities Act) an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no
later than 45 days after the end of a 12-month period (or
90 days, if such period is a fiscal year) beginning with
the first month of the Company's first fiscal quarter
commencing after the effective date of the Shelf
Registration Statement, which statement shall cover such
12-month period.
(l) The Company shall cause the Indenture to be
qualified under the Trust Indenture Act of 1939, as
amended, in a timely manner and containing such changes,
if any, as shall be necessary for such qualification. In
the event that such qualification would require the
appointment of a new trustee under the Indenture, the
Company shall appoint a new trustee thereunder pursuant to
the applicable provisions of the Indenture.
(m) The Company may require each Holder of Transfer
Restricted Securities to be sold pursuant to the Shelf
Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of
the Transfer Restricted Securities as the Company may from
time to time reasonably require for inclusion in the Shelf
Registration Statement, and the Company may exclude from
such registration the Transfer Restricted Securities of
any Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such
request.
(n) The Company shall enter into such customary
agreements (including, if requested, an underwriting
agreement in customary form) and take all such other
action, if any, as any Holder which, together with its
"affiliates" (as defined in the Securities Act), holds $40
million or greater in aggregate principal amount of the
Transfer Restricted Securities and which, together with
its affiliates, intends to sell at least $40 million in
aggregate principal amount of Transfer Restricted
Securities in an underwritten offering, shall reasonably
request in order to facilitate the disposition of the
Transfer Restricted Securities pursuant to any Shelf
Registration; provided, that in no event shall the Company
be required to cause any representatives to attend any
informational or roadshow presentations or pay any
expenses related thereto.
(o) The Company shall (i) make reasonably available
for inspection by the Holders, any underwriter
participating in any disposition pursuant to the Shelf
Registration Statement and any attorney, accountant or
other agent retained by the Holders or any such
underwriter all relevant financial and other records,
pertinent corporate documents and properties of the
Company and (ii) cause the Company's officers, directors,
employees, accountants and auditors to supply all relevant
information reasonably requested by the Holders or any
such underwriter, attorney, accountant or agent in
connection with the Shelf Registration Statement, in each
case, as shall be reasonably necessary to enable such
persons, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information
gathering shall be coordinated on behalf of the Initial
Purchasers and the other parties, by one firm of counsel,
which firm shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ until another
firm shall be designated as described in Section 3 hereof.
(p) The Company, if requested by any Holder of the
Transfer Restricted Securities referred to in paragraph
(n) above, shall cause (i) its counsel to deliver an
opinion relating to the Transfer Restricted Securities in
customary form addressed to such Holder and the managing
underwriters, if any, thereof and dated, in the case of
the initial opinion, the effective date of such Shelf
Registration Statement (it being agreed that the matters
to be covered by such opinion shall include, without
limitation, the good standing of the Company and its
subsidiaries; the qualification of the Company and its
subsidiaries to transact business as foreign corporations;
the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 2(n)
hereof; the due authorization, execution, authentication
and issuance, and the validity and enforceability, of the
applicable Transfer Restricted Securities; to such
counsel's knowledge, the absence of material legal or
governmental proceedings involving the Company and its
subsidiaries; to such counsel's knowledge, the absence of
governmental approvals required to be obtained in
connection with the Shelf Registration Statement, the
offering and sale of the applicable Transfer Restricted
Securities, or any agreement of the type referred to in
Section 2(n) hereof; (ii) cause its counsel to deliver a
statement in customary form relating to the compliance as
to form of such Shelf Registration Statement and any
documents incorporated by reference therein and of the
Indenture with the requirements of the Securities Act and
the Trust Indenture Act, respectively; and, as of the date
of the opinion and as of the effective date of the Shelf
Registration Statement or most recent post-effective
amendment thereto, as the case may be, the absence from
such Shelf Registration Statement and the prospectus
included therein, as then amended or supplemented, and
from any documents incorporated by reference therein of an
untrue statement of a material fact or the omission to
state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading (in the case of any such documents, in the
light of the circumstances existing at the time that such
documents were filed with the Commission under the
Exchange Act); (iii) its officers to execute and deliver
all customary documents and certificates and updates
thereof requested by any underwriters of the applicable
Transfer Restricted Securities; and (iv) its independent
public accountants and the independent public accountants,
if any, with respect to any other entity for which
financial information is provided in the Shelf
Registration Statement to provide to the selling Holder(s)
of the applicable Transfer Restricted Securities and any
underwriter therefor a comfort letter in customary form
and covering matters of the type customarily covered in
comfort letters in connection with primary underwritten
offerings, subject to receipt of appropriate documentation
as contemplated, and only if permitted, by Statement of
Auditing Standards No. 72.
(q) The Company will use its best efforts to (i) if
the Notes have been rated prior to the initial sale of
such Notes, confirm such ratings will apply to the Notes
covered by the Shelf Registration Statement, or (ii) if
the Notes were not previously rated, cause the Notes
covered by the Shelf Registration Statement to be rated
with the appropriate rating agencies, if so requested by
Holders of a majority in aggregate principal amount of
Transfer Restricted Securities covered by such Shelf
Registration Statement, or by the managing underwriters,
if any.
(r) In the event that any broker-dealer registered
under the Exchange Act shall underwrite any Transfer
Restricted Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules
(the "Rules") of the National Association of Securities
Dealers, Inc. ("NASD")) thereof, whether as a Holder of
such Transfer Restricted Securities or as an underwriter,
a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Company will assist
such broker-dealer in complying with the requirements of
such Rules, including, without limitation, by (i) if such
Rules, including Rule 2720, shall so require, engaging a
"qualified independent underwriter" (as defined in Rule
2720) to participate in the preparation of the Shelf
Registration Statement relating to such Transfer
Restricted Securities, to exercise usual standards of due
diligence in respect thereto and, if any portion of the
offering contemplated by such Shelf Registration Statement
is an underwritten offering or is made through a placement
or sales agent, to recommend the yield of such Transfer
Restricted Securities, (ii) indemnifying any such
qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 4
hereof and (iii) providing such information to such broker-
dealer as may be required in order for such broker-dealer
to comply with the requirements of the Rules.
(s) The Company shall use its best efforts to take
all other steps necessary to effect the registration of
the Transfer Restricted Securities covered by the Shelf
Registration Statement contemplated hereby.
3. Registration Expenses. The Company shall bear all
fees and expenses incurred in connection with the performance
of its obligations under Sections 1 and 2 hereof whether or not
a Shelf Registration is filed or becomes effective, shall bear
or reimburse the Holders of the Transfer Restricted Securities
covered thereby for the reasonable fees and disbursements of
one firm of counsel, which firm shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ until another firm shall be designated by the Holders
of a majority in principal amount of the Notes covered thereby
to act as counsel for the Holders in connection therewith. The
Holders shall be responsible for all other fees and expenses,
such as brokerage fees and commissions.
4. Indemnification. (a) To the extent permitted by law,
the Company agrees to indemnify and hold harmless each Holder
of the Transfer Restricted Securities and each person, if any,
who controls such Holder within the meaning of the Securities
Act or the Exchange Act (each Holder and such controlling
persons are referred to collectively as the "Indemnified
Parties") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect
thereof (including, but not limited to, any losses, claims,
damages, liabilities or actions relating to purchases and sales
of the Transfer Restricted Securities) to which each
Indemnified Party may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in the Shelf Registration Statement or
prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Shelf Registration, or
arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such
loss, claim, damage, liability or action in respect thereof;
provided, however, that (i) the Company shall not be liable in
any such case to the extent that such loss, claim, damage or
liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission
made in the Shelf Registration Statement or prospectus or in
any amendment or supplement thereto or in any preliminary
prospectus relating to the Shelf Registration in reliance upon
and in conformity with written information pertaining to a
Holder and furnished to the Company by or on behalf of such
Holder specifically for inclusion therein and (ii) with respect
to any untrue statement or omission or alleged untrue statement
or omission made in any preliminary prospectus relating to the
Shelf Registration Statement, the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any
Holder from whom the person asserting any such losses, claims,
damages or liabilities purchased the Transfer Restricted
Securities concerned, to the extent that a prospectus relating
to such Transfer Restricted Securities was required to be
delivered by such Holder under the Securities Act in connection
with such purchase and any such loss, claim, damage or
liability of such Holder results from the fact that there was
not sent or given to such person, at or prior to the written
confirmation of the sale of such Transfer Restricted Securities
to such person, a copy of the final prospectus if the Company
had previously furnished copies thereof to such Holder;
provided further, however, that this indemnity agreement will
be in addition to any liability which the Company may otherwise
have to such Indemnified Party. The Company shall also
indemnify underwriters, their officers and directors and each
person who controls such underwriters within the meaning of the
Securities Act or the Exchange Act to the same extent as
provided above with respect to the indemnification of the
Holders of the Transfer Restricted Securities if requested by
such Holders.
(b) To the extent permitted by law, each Holder of the
Transfer Restricted Securities, severally and not jointly, will
indemnify and hold harmless the Company and each person, if
any, who controls the Company within the meaning of the
Securities Act or the Exchange Act from and against any losses,
claims, damages or liabilities or any actions in respect
thereof, to which the Company or any such controlling person
may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement or prospectus or
in any amendment or supplement thereto or in any preliminary
prospectus relating to the Shelf Registration, or arise out of
or are based upon the omission or alleged omission to state
therein a material fact necessary to make the statements
therein not misleading, but in each case only to the extent
that the untrue statement or omission or alleged untrue
statement or omission was made in reliance upon and in
conformity with written information pertaining to such Holder
and furnished to the Company by or on behalf of such Holder
specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, shall
reimburse, as incurred, the Company for any legal or other
expenses reasonably incurred by the Company or any such
controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in
respect thereof. This indemnity agreement will be in addition
to any liability which such Holder may otherwise have to the
Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under
this Section 5 of notice of the commencement of any action or
proceeding (including a governmental investigation), such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 5,
notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party will not, in
any event, relieve the indemnifying party from any obligations
to any indemnified party. In case any such action is brought
against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it
may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so
to assume the defense thereof the indemnifying party will not
be liable to such indemnified party under this Section 5 for
any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party
in connection with the defense thereof. No indemnifying party
shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of
such action. An indemnifying party will not be liable for any
settlement of any action or claim effected without its written
consent; provided, however, that such consent will not be
reasonably withheld.
(d) If the indemnification provided for in this Section 4
is unavailable or insufficient to hold harmless an indemnified
party under subsections (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof)
referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the sale of the
Transfer Restricted Securities, pursuant to the Shelf
Registration, or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the indemnifying party or parties on the one
hand and the indemnified party on the other in connection with
the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof)
as well as any other relevant equitable considerations. The
relative fault of the parties shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged
omission to state a material fact relates to information
supplied by the Company on the one hand or such Holder or such
other indemnified party, as the case may be, on the other, and
the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection
(d). Notwithstanding any other provision of this Section 4(d),
the Holders of the Transfer Restricted Securities shall not be
required to contribute any amount in excess of the amount by
which the net proceeds received by such Holders from the sale
of the Transfer Restricted Securities pursuant to a Shelf
Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of
this paragraph (d), each person, if any, who controls such
indemnified party within the meaning of the Securities Act or
the Exchange Act shall have the same rights to contribution as
such indemnified party and each person, if any, who controls
the Company within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the
Company.
(e) The agreements contained in this Section 4 shall
survive the sale of the Transfer Restricted Securities pursuant
to the Shelf Registration Statement and shall remain in full
force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of
any indemnified party.
5. Liquidated Damages Under Certain Circumstances. If
(i) the Shelf Registration Statement is not filed with the
Commission on or prior to 90 days after the Closing Date,
(ii) the Shelf Registration Statement has not been declared
effective by the Commission within 150 days after the Closing
Date or (iii) the Shelf Registration Statement is filed and
declared effective but shall thereafter during the Shelf
Registration Period cease to be effective (without being
succeeded immediately by an additional registration statement
filed and declared effective) or usable for the offer and sale
of Transfer Restricted Securities for a period of time
(including any Suspension Period) which shall exceed 60 days in
the aggregate in any 12-month period (each such event referred
to in clauses (i) through (iii), a "Registration Default"), the
Company will pay liquidated damages to each Holder of Transfer
Restricted Securities. The amount of liquidated damages
payable during any period during which a Registration Default
shall have occurred and be continuing is that amount which is
equal to one-quarter of one percent (25 basis points) per annum
per $1,000 principal amount and, if applicable, on an
equivalent basis per Conversion Share (subject to adjustment in
the event of stock splits, stock recombinations, stock
dividends and the like) constituting Transfer Restricted
Securities for each 90-day period until the applicable
registration statement is filed and the applicable registration
statement is declared effective or the Shelf Registration
Statement again becomes effective or useable, as the case may
be, up to a maximum amount of liquidated damages of one and one-
quarter percent (125 basis points) per annum per $1,000
principal amount of Notes and, if applicable, on an equivalent
basis per Conversion Share (subject to adjustment as set forth
above) constituting Transfer Restricted Securities. All
accrued liquidated damages shall be paid to Holders of record
by wire transfer of immediately available funds or by federal
funds check by the Company on the regular interest payment
date. Following the cure of all Registration Defaults or, if
earlier, the termination of the Shelf Registration Period,
liquidated damages will cease to accrue with respect to such
Registration Default.
6. Rules 144 and 144A. The Company shall use its best
efforts to file the reports required to be filed by it under
the Securities Act and the Exchange Act in a timely manner and,
if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Notes, make
publicly available other information so long as necessary to
permit sales of their securities pursuant to Rules 144 and
144A. The Company covenants that it will take such further
action as any Holder of Notes may reasonably request, all to
the extent required from time to time to enable such Holder to
sell Notes without registration under the Securities Act within
the limitation of the exemptions provided by Rules 144 and 144A
(including the requirements of Rule 144A(d)(4)). The Company
will provide a copy of this Agreement to prospective purchasers
of Notes identified to the Company by the Initial Purchasers
upon request. Upon the request of any Holder of Notes, the
Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 6 shall be deemed to
require the Company to register any of its securities pursuant
to the Exchange Act.
7. Underwritten Registrations. If any of the Transfer
Restricted Securities covered by any Shelf Registration are to
be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will administer
the offering ("Managing Underwriters") will be selected by the
Company; provided, that such selection is consented to by the
Holders of a majority in aggregate principal amount of Transfer
Restricted Securities to be included in such offering, which
consent shall not be unreasonably withheld or delayed.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's
Transfer Restricted Securities on the basis reasonably provided
in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting
arrangements.
8. Miscellaneous.
(a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof
may not be given, except by the Company and the written consent
of the Holders of a majority in principal amount of the
Transfer Restricted Securities affected by such amendment,
modification, supplement, waiver or consents.
(b) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand delivery, first-class mail, facsimile transmission, or
overnight air courier:
(1) if to a Holder of the Transfer Restricted
Securities, at the most current address given by such
Holder to the Company.
(2) if to the Initial Purchasers:
SBC Warburg Dillon Read Inc.
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp.
▇▇▇▇▇ & Company
c/o SBC Warburg Dillon Read Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Syndicate Department
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
(3) if to the Company, at its address as follows:
Alpharma Inc.
One Executive Drive
P.O. Box 1399
Fort ▇▇▇, NJ 07024
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Legal Officer
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Citicorp Center
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Esq.
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if
personally delivered; three business days after being deposited
in the mail, postage prepaid, if mailed; when receipt is
acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by
overnight air courier.
(c) No Inconsistent Agreements. The Company has not, as
of the date hereof, entered into, nor shall it, on or after the
date hereof, enter into, any agreement with respect to its
securities that is inconsistent with the rights granted to the
Holders herein or otherwise conflicts with the provisions
hereof.
(d) Successors and Assigns. This Agreement shall be
binding upon the Company and its successors and assigns.
(e) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(h) Severability. If any one or more of the provisions
contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(i) Transfer Restricted Securities Held by the
Company. Whenever the consent or approval of Holders of a
specified percentage of principal amount of Transfer Restricted
Securities is required hereunder, Transfer Restricted
Securities held by the Company or its affiliates (other than
subsequent Holders of Transfer Restricted Securities if such
subsequent Holders are deemed to be affiliates solely by reason
of their holdings of such Transfer Restricted Securities) shall
not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement on the Initial
Purchasers and the Company in accordance with its terms.
Very truly yours,
ALPHARMA INC.
By:
Name:
Title:
Accepted and agreed to as
of the date first above written,
on behalf of themselves and the
other Initial Purchasers
SBC WARBURG DILLON READ INC.
CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP.
▇▇▇▇▇ & COMPANY
By: SBC WARBURG DILLON READ INC.
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title: