EXHIBIT III
[EXECUTION VERSION]
$33,857,150 principal amount of 5 3/4% Convertible
(Class B) Subordinated Notes Due 2005 of Alpharma Inc.
Note Pledge Agreement
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This NOTE PLEDGE AGREEMENT, dated March 30, 1998 (this "Agreement"),
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is made and entered into by and between AL Industrier AS, a corporation
organized and existing under the laws of the Kingdom of Norway (the "Pledgor"),
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and Den norske Bank ASA ("DnB"), a banking corporation organized and existing
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under the laws of the Kingdom of Norway, as agent (in such capacity, the
"Secured Party") for itself and the banks and financial institutions listed on
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Exhibit 1 to the Loan Agreement defined below (collectively, the "Lenders").
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W I T N E S S E T H:
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WHEREAS, the Pledgor has entered into the Loan Facility Agreement,
dated March 30, 1998 (the "Loan Agreement"), with the Secured Party and the
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Lenders;
WHEREAS, all capitalized terms used herein and not defined herein
shall have the respective meanings accorded to them in the Loan Agreement;
WHEREAS, in order to induce the Secured Party and the Lenders to enter
into the Loan Agreement and to perform their respective obligations thereunder,
the Pledgor has agreed to enter into this Agreement and to pledge the Pledged
Notes (as such term is hereinafter defined) in order to secure the Obligations
(as such term is hereinafter defined); and
WHEREAS, pursuant to Clause 8.3(c) of the Loan Agreement, the Pledgor
has agreed 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 Notes") in order to
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secure its obligations under the Loan Agreement;
NOW THEREFORE, in consideration of the premises and in order to induce
the Lenders to extend the Loan to the Pledgor, the Secured Party and the Pledgor
hereby agree as follows:
SECTION 1. Pledge. The Pledgor hereby pledges, assigns,
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hypothecates, transfers and delivers to the Secured Party, and grants to the
Secured Party a security interest in,
the Pledged Notes, and in any instruments which evidence such Pledged Notes,
and, except as expressly set forth in Section 3(c) of this Agreement, in all
proceeds thereof and therefrom (collectively, the "Pledged Collateral").
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SECTION 2. Security for Obligations. This Agreement secures the
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payment and performance of all obligations of the Pledgor 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 are referred
to in this Agreement as the "Obligations").
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SECTION 3. Delivery of Pledged Collateral.
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(a) Delivery of Pledged Notes. All instruments which represent or
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evidence the Pledged Notes shall, on the later to occur of (i) the execution and
delivery of this Agreement by the Pledgor, or (ii) the issuance of the Pledged
Notes by Alpharma Inc., a Delaware corporation ("Alpharma"), be delivered by the
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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, so long as an Event of Default shall have occurred and be continuing (i)
to transfer to or to register in the name of the Secured Party or its nominee
any or all of the Pledged Collateral, subject to the restrictions on Transfer
set forth in Section 12(a)(ii) hereof, and (ii) to exchange instruments
representing or evidencing the Pledged Collateral for instruments of smaller or
larger denominations.
(b) Notice to Alpharma Inc. Pledgor shall, upon execution and
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delivery of this Agreement, notify the issuer of the Pledged Notes, Alpharma, in
writing of its pledge of the Pledged Notes 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 Notes
contemplated under this Agreement, and shall obtain the written consent and
agreement thereto of Alpharma.
(c) Rights under Pledged Notes. While the Pledged Notes are in the
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possession of the Secured Party and unless and until an Event of Default shall
have occurred, the Pledgor shall be entitled to receive payments of principal,
premium (if any), and interest on the Pledged Notes subject to the lien and
security interest granted to the Secured Party, provided, however, that the
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Pledgor shall not be entitled to exercise, or permit any other party to
exercise, any other right under the
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Pledged Notes, including, without limitation, any right of conversion,
redemption, repurchase or exchange, unless, simultaneously with such exercise,
(i) in the case of any conversion or exchange of the Pledged Notes, the Pledgor
will, at its expense, 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 of the Secured Party in the shares, notes or other
securities received by the Pledgor upon any such conversion or exchange of the
Pledged Notes, or (ii) in the case of any redemption or repurchase of the
Pledged Notes, any amounts received by the Pledgor pursuant to such redemption
of repurchase shall be applied by the Pledgor in prepayment of the Loan in
accordance with Section 8.2(f) of the Loan Agreement.
SECTION 4. Representations, Warranties and Covenants of the Pledgor.
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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 Notes, 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 Notes 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 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 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
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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 Notes have been duly authorized,
executed, and delivered and authenticated by the Trustee and consideration equal
to the face amount thereof has been paid to Alpharma; (g) the use of proceeds
received by the Pledgor under the Loan Agreement will not violate 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
Notes 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 Notes 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 Notes; and (i) the Pledgor is not
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 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
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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. Rights under Pledged Notes. Upon the occurrence and
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during the continuance of an Event of Default, all rights of Pledgor under the
Pledged Notes 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 rights.
SECTION 7. Other B Notes. If, while the Loan Agreement is in effect,
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the Pledgor shall become entitled to receive any other B Note in addition to, in
substitution of, or in exchange for, any Pledged Notes, 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 49.9% of the same forthwith
to the Secured Party in accordance with the
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terms and provisions of this Agreement, as additional Pledged Collateral to
secure the Obligations. All instruments which represent or evidence any B Note
in addition to, in substitution of, or in exchange for, any Pledged Notes shall,
upon the issuance thereof by Alpharma, 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. Any sums paid upon or in respect of the
Pledged Notes upon the liquidation or dissolution of Alpharma shall similarly be
paid over to the Secured Party to be held by it as additional Pledged Collateral
for the Obligations.
SECTION 8. Transfers and Other Liens. The Pledgor agrees that it
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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
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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
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 payment of principal, premium (if any), and interest 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
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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
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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
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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
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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 cure periods under the Loan
Agreement (the "Default Cure Period") forthwith sell, assign, give option or
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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
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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, (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 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 Alpharma.
(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, the issuer of the Pledged
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Notes. As such, the Secured Party acknowledges that any Transfer of such
Pledged Notes 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 Notes 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
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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 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
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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 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
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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
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determine 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 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
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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;
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(iii) to make available to noteholders, 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,
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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 not misleading (the "Indemnified Liabilities"); provided that Pledgor
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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
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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 Pledgor under
Section 6 of the Note Purchase Agreement dated March 5, 1998, between the
Pledgor and Alpharma. 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
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of the Pledged Notes 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 Notes, 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 of the fact that
the price at which the Pledged Notes 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
the Convertible (Class A) Subordinated Notes Due 2005 of Alpharma, even if the
Secured Party accepts the first offer received and does not offer the Pledged
Notes 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
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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
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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
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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 hereunder, and (iv) the
failure by Pledgor to perform or observe any of the provisions hereof. All
obligations provided for in this Section 17 shall survive the repayment of the
Loan, the termination of this Agreement and the Loan Agreement, and the
discharge or repayment of the Obligations.
SECTION 18. Security Interest Absolute. All rights of the Secured
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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;
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(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
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this Agreement, nor consent to any departure by Pledgor herefrom, 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
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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, as Agent
X.X. Xxx 0000 Xxxxxxx
X-0000 Xxxx
Xxxxxx
Telefax No.: x00 00 00 00 00
Attention: Credit Administration
If to the Pledgor, at:
AL Industrier AS
X.X. Xxx 000 Xxxxx
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,
12
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 any default on the part of the Pledgor 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. To the extent that under the laws of the Kingdom of Norway, Norwegian
laws are not applicable to the creation and perfection of the security interest
in the Pledged Notes granted hereby, the parties hereto hereby agree that
Articles 8 and 9 of the Uniform Commercial Code as in effect in the State of
Delaware on the date of this Agreement govern such creation and perfection.
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
13
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 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.
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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.
AL INDUSTRIER AS
By: ____________________
Name:
Title:
DEN NORSKE BANK ASA, as Agent
By: ______________________
Name:
Title:
Attachment: Exhibit 1
Description of Pledged Notes
Exhibit 1
---------
to Note Pledge Agreement
------------------------
The notes pledged to the Secured Party are Thirty-Three Million Eight
Hundred Fifty-Seven Thousand One Hundred Fifty Dollars ($33,857,150) principal
amount of 5 3/4% Convertible (Class B) Subordinated Notes due 2005 issued by
Alpharma Inc. (formerly A.L. Laboratories, Inc.), a corporation organized and
existing under the laws of the State of Delaware, evidenced by the following
instruments:
Note No. Date of Issue Principal Amount Issue Price
-------- ------------- ---------------- -----------
2 3/30/98 $33,857,150 $33,857,150
