UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d)
of the Securities Exchange Act of 1934
June 12, 2014
Date of Report (Date of earliest event reported)
FOREST LABORATORIES, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 1-5438 | 11-1798614 | ||
|
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
||
|
909 Third Avenue New York, NY 10022 |
10022-4731 | |||
| (Address of principal executive offices) | (Zip Code) | |||
(212) 421-7850
Registrant’s telephone number, including area code
None
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrants under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01. | Entry into a Material Definitive Agreement. |
On June 12, 2014, Forest Laboratories, Inc. (“ Forest ” or the “ Company ”), a Delaware corporation, entered into a waiver and amendment (the “ Amendment ”) to its registration rights agreements dated as of (i) December 10, 2013 (the “ 2013 Registration Rights Agreement ”) providing for registration rights with respect to its $1,200,000,000 in aggregate principal amount of outstanding 5.00% Senior Notes due 2021 (the “ 5.00% Notes ”) and (ii) January 31, 2014 (the “ 2014 Registration Rights Agreement” and, together with the 2013 Registration Rights Agreement, the “ Registration Rights Agreements ”) providing for registration rights with respect to (A) its $1,050,000,000 in aggregate principal amount of outstanding 4.375% Senior Notes due 2019 (the “ 4.375% Notes ”) and (B) its $750,000,000 in aggregate principal amount of outstanding 4.875% Senior Notes due 2021 (the “ 4.875% Notes ” and, together with the 5.00% Notes and the 4.375% Notes, the “ Notes ”). The Amendment eliminates the registration rights obligations with respect to the Notes upon the provision by Actavis plc of a guarantee of each of the Notes.
On June 12, 2014, the Company entered into a supplemental indenture (the “ 5.00% Supplemental Indenture ”) to its indenture dated as of December 10, 2013 for the issuance of its 5.00% Notes, among the Company and Wells Fargo Bank, National Association, as trustee.
On June 12, 2014, the Company entered into a supplemental indenture (the “ 4.375% Supplemental Indenture ”) to its indenture dated as of January 31, 2014 for the issuance of its 4.375% Notes, among the Company and Wells Fargo Bank, National Association, as trustee.
On June 12, 2014, the Company entered into a supplemental indenture (the “ 4.875% Supplemental Indenture ” and, together with the 5.00% Supplemental Indenture and the 4.375% Supplemental Indenture, the “ Supplemental Indentures ”) to its indenture dated as of January 31, 2014 for the issuance of its 4.875% Notes, among the Company and Wells Fargo Bank, National Association, as trustee.
Each of the Supplemental Indentures removes respective references to the Registration Rights Agreements and removes the respective ability of each of the Notes to accrue Additional Interest pursuant to the Registration Rights Agreement.
| Item 8.01. | Other Events. |
On June 12, 2014, Forest issued a press release announcing that the requisite holders of its Notes had consented to the elimination of registration rights obligations with respect to the Notes in exchange for the provision by Actavis plc of a guarantee of the Notes. A copy of the press release is attached hereto as Exhibit 99.1 and hereby incorporated by reference herein.
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| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
|
Exhibit Number |
Description |
|
| 4.1 | First Supplemental Indenture, dated as of June 12, 2014, to the Indenture dated as of December 10, 2013, between Forest Laboratories, Inc., as issuer, and Wells Fargo Bank, National Association, as trustee | |
| 4.2 | First Supplemental Indenture, dated as of June 12, 2014, to the Indenture dated as of January 31, 2014, between Forest Laboratories, Inc., as issuer, and Wells Fargo Bank, National Association, as trustee | |
| 4.3 | First Supplemental Indenture, dated as of June 12, 2014, to the Indenture dated as of January 31, 2014, between Forest Laboratories, Inc., as issuer, and Wells Fargo Bank, National Association, as trustee | |
| 10.1 | Waiver and Amendment, dated as of June 12, 2014, to the Registration Rights Agreements dated as of December 10, 2013 and January 31, 2014, between Forest Laboratories, Inc., as issuer, and Wells Fargo Bank, National Association, as trustee | |
| 99.1 | Press Release of Forest Laboratories, Inc. entitled “Forest Laboratories, Inc. Announces Receipt of Requisite Consents and Expiration of Consent Solicitations for Certain of its Senior Notes” dated June 12, 2014 | |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Dated: June 13, 2014 | ||
|
Forest Laboratories, Inc. (Registrant) |
||
|
/s/ A. Robert D. Bailey |
||
| Name: | A. Robert D. Bailey | |
| Title: |
Senior Vice President, Chief Legal Officer & General Counsel |
|
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Exhibit 4.1
FIRST SUPPLEMENTAL INDENTURE
This First Supplemental Indenture, dated as of June 12, 2014 (this “ Supplemental Indenture ”), between Forest Laboratories, Inc. (the “ Company ”) and Wells Fargo Bank, National Association, as Trustee (the “Trustee”) under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and delivered an indenture, dated as of December 10, 2013 (the “ Original Indenture ” and, as amended, supplemented, waived or otherwise modified, the “ Indenture ”), providing for the issuance of 5.00% Senior Notes due 2021 of the Company (the “ Notes ”);
WHEREAS, the Company successfully solicited consents from a majority of the Holders to, among other things, amend (i) that certain Registration Rights Agreement, dated December 10, 2013 (the “ Registration Rights Agreement ”), between the Company and Morgan Stanley & Co. LLC, as representative of the several initial purchasers, providing for registration rights with respect to the Notes and (ii) the Indenture to make conforming changes including the removal of references to the Registration Rights Agreement and the removal of the ability of the Notes to accrue Additional Interest pursuant to the Registration Rights Agreement;
WHEREAS, pursuant to Section 9.02 of the Indenture, the Trustee and the Company are authorized to execute and deliver this Supplemental Indenture, with the written consent of Holders of a majority in aggregate principal amount of the Notes, to effectuate the Proposed Amendments;
WHEREAS, pursuant to that certain merger agreement, dated February 17, 2014, by and among Actavis plc (the “ Guarantor ”), various subsidiaries of the Guarantor and the Company, the Guarantor will acquire the Company (the “ Merger ”);
WHEREAS, in connection with the Merger, the Guarantor proposes to guarantee the Notes pursuant to subsequent supplemental indentures to the Indenture (the “ Guarantee Supplemental Indentures ”);
WHEREAS, Holders of at least a majority in aggregate principal amount of the outstanding Notes have consented to the amendments set forth herein in connection with that certain Consent Solicitations Statement relating to the Solicitations of Consents relating to the Notes provided to Holders on May 22, 2014 (the “ Consent Statement ”); and
WHEREAS, the Company has furnished the Trustee with an Officers’ Certificate, a certified copy of the resolution of its Board of Directors, and an Opinion of Counsel complying with the requirements of Sections 9.06, 11.04 and 11.05 of each Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE I
SECTION 1.1 Defined Terms . As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined, except as set forth in Section 2.1 hereof and that the term “Holders” in this Supplemental Indenture shall refer to the term “Holders” as defined in the Indenture and the Trustee acting on behalf or for the benefit of such Holders. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
SECTION 2.1 Amendments .
a. Section 1.01 of the Indenture is hereby amended as follows:
i. The following definitions are deleted in their entirety: “Additional Interest”, “Exchange Notes”, “Exchange Offer”, “ Registration Rights Agreement” and “Shelf Registration Statement”;
ii. The definition of “Additional Notes” is amended by deleting the following language: “and Exchange Notes for such Initial Notes”;
iii. The definition of “Notes” is amended by deleting the following language: “any Exchange Notes and”; and
iv. The definition of “Record Date” is amended by deleting the following language : “or Additional Interest, if any,”.
b. Section 1.02 is amended by deleting the definition of “Additional Interest Notice”.
c. Section 2.01(a) of the Indenture is hereby amended by deleting the entirety of the first sentence and replacing it with the following language:
“Provisions relating to the Initial Notes and Additional Notes are set forth in Appendix A hereto, which is hereby incorporated in and expressly made a part of this Indenture.”.
d. Section 2.02(c) of the Indenture is hereby deleted in its entirety and replaced with the following language:
“On the Issue Date, the Trustee shall, upon receipt of a written order of the Company signed by an Officer (an “ Authentication Order ”), authenticate and deliver the Initial Notes. In addition, at any time, from time to time, the Trustee shall upon receipt of an Authentication Order authenticate and deliver any Additional Notes for an aggregate principal amount specified in such Authentication Order for such Additional Notes issued hereunder.”.
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e. Section 3.07(a) of the Indenture is hereby amended by deleting the following language: “(including Additional Interest)”.
f. Section 4.01(c) of the Indenture is amended by deleting the following language: “Additional Interest, if any, and”.
g. Section 6.01(b) of the Indenture is amended by deleting the following language: “(including Additional Interest)”.
h. Sections 4.01, 6.02, 6.07, 6.08, 8.06, 8.07, 9.02 and 10.01 of the Indenture are amended by deleting the following language wherever it appears: “(including Additional Interest, if any)”.
i. Section 11.17 of the Indenture is hereby deleted in its entirety and replaced with the following language:
“[intentionally omitted.]”.
j. Section 2.2 of Appendix A of the Indenture is hereby deleted in its entirety and replaced with the following language:
“The Trustee shall authenticate and make available for delivery upon receipt of an Authentication Order (a) Initial Notes for original issue on the date hereof in an aggregate principal amount of $1,200,000,000 and (b) subject to the terms of the Indenture, Additional Notes. Such order shall specify the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated and whether the Notes are to be Initial Notes or Additional Notes.”.
k. Section 2.3(c)(iv) of Appendix A of the Indenture is hereby deleted in its entirety and replaced with the following language:
“In the event that a Global Note is exchanged for Definitive Notes pursuant to Section 2.4, such Notes may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of this Section 2.3 (including the certification requirements set forth on the reverse of the Notes intended to ensure that such transfers comply with Rule 144A, Regulation S or such other applicable exemption from registration under the Securities Act, as the case may be) and such other procedures as may from time to time be adopted by the Company.”.
l. Section 2.3(e)(iii) of Appendix A of the Indenture is hereby deleted in its entirety and replaced with the following language:
“After a transfer of any Notes pursuant to an effective registration statement with respect to such Notes, all requirements pertaining to the Restricted Notes Legend on such Notes shall cease to apply and the Registrar shall permit the Holder, or beneficial owner, of any such Note that bears a Restricted Notes Legend to exchange such Note for a Note, or beneficial interest in a Global Note, that does not bear a Restricted Notes Legend.”
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m. Section 2.3(e)(iv) of Appendix A of the Indenture is hereby deleted in its entirety and replaced with the following language:
“[intentionally omitted.]”.
n. Section 2.3(h)(iii) of Appendix A of the Indenture is hereby deleted in its entirety and replaced with the following language:
“[intentionally omitted.]”.
o. Section 2.4 of Appendix A of the Indenture is hereby amended by deleting the following language wherever it may appear:
“or issued in connection with an Exchange Offer”.
p. Section 1 of the Form of Note attached as Exhibit A to the Indenture and Section 1 of the Global Notes are hereby amended as follows:
i. by deleting the following language in the first sentence of each Section: “and shall pay Additional Interest, if any”;
ii. by deleting the following language in the third sentence of each Section: “(including Additional Interest, if any)”; and
iii. by deleting the following language in the penultimate sentence of each Section: “, including Additional Interest, if any,”.
q. Section 2 of the Form of Note attached as Exhibit A to the Indenture and Section 2 of the Global Notes are hereby amended by deleting the following language wherever it appears: “, including Additional Interest, if any,”.
r. Section 11 of the Form of Note attached as Exhibit A to the Indenture and Section 11 of the Global Notes are hereby amended by deleting the following language: “, including the right to receive Additional Interest”.”.
s. Section 14 of the Form of Note attached as Exhibit A to the Indenture and Section 14 of the Global Notes are hereby amended by deleting the following language in the first sentence of the second paragraph: “or the Registration Rights Agreement”.
ARTICLE III
SECTION 3.1 Parties . Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
SECTION 3.2 Governing Law . This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
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SECTION 3.3 Severability Clause . In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 3.4 Effectiveness . Subject to the following sentence, upon the execution and delivery of this Supplemental Indenture between the Company and the Trustee, this Supplemental Indenture shall become effective and the Indenture shall be amended in accordance herewith and every Holder of the Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby. Notwithstanding the foregoing, the amendments to the Indenture provided for in this Supplemental Indenture shall only become operative upon the execution of the Guarantee Supplemental Indentures by the Company (or any successor thereto), the Guarantor and the Trustee.
SECTION 3.5 Ratification of Indenture; Supplemental Indentures Part of Indenture . Except as expressly amended or supplemented hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby. This Supplemental Indenture is an indenture supplemental to the Original Indenture, and the Original Indenture and this Supplemental Indenture shall henceforth be read and construed together for all purposes. In the event of a conflict between the terms and conditions of the Indenture and the terms and conditions of this Supplemental Indenture, then the terms and conditions of this Supplemental Indenture shall prevail. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture.
SECTION 3.6 Counterparts . This Supplemental Indenture may be executed by one or more of the parties to this Supplemental Indenture on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of this Supplemental Indenture by facsimile transmission or other electronic format shall be effective as delivery of a manually executed counterpart hereof.
SECTION 3.7 Headings . The headings of the Articles and the Sections in this Supplemental Indenture are for convenience of reference only, are not part of this Supplemental Indenture and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
SECTION 3.8 Recitals . The recitals contained herein are those of the Company and not the Trustee, and the Trustee assumes no responsibility for the correctness of same. All rights, protections, privileges, indemnities and benefits granted or afforded to the Trustee under the Indenture shall be deemed incorporated herein by this reference and shall be deemed applicable to all actions taken, suffered or omitted by the Trustee under this Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| FOREST LABORATORIES, INC., | ||
| as the Company | ||
| By: |
/s/ A. Robert D. Bailey |
|
| Name: A. Robert D. Bailey | ||
| Title: Senior Vice President, Chief Legal | ||
| Officer & General Counsel | ||
[Signature Page to Proposed Amendment Supplemental Indenture (5.00% Senior Notes)]
| WELLS FARGO BANK, | ||
| NATIONAL ASSOCIATION, as Trustee | ||
| By: |
/s/ Yana Kislenko |
|
| Name: Yana Kislenko | ||
| Title: Vice President | ||
[Signature Page to Proposed Amendment Supplemental Indenture (5.00% Senior Notes)]
Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
This First Supplemental Indenture, dated as of June 12, 2014 (this “ Supplemental Indenture ”), between Forest Laboratories, Inc. (the “ Company ”) and Wells Fargo Bank, National Association, as Trustee (the “Trustee”) under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and delivered an indenture, dated as of January 31, 2014 (the “ Original Indenture ” and, as amended, supplemented, waived or otherwise modified, the “ Indenture ”), providing for the issuance of 4.375% Senior Notes due 2019 of the Company (the “ Notes ”);
WHEREAS, the Company successfully solicited consents from a majority of the Holders to, among other things, amend (i) that certain Registration Rights Agreement, dated January 31, 2014 (the “ Registration Rights Agreement ”), between the Company and Morgan Stanley & Co. LLC, as representative of the several initial purchasers, providing for registration rights with respect to the Notes and (ii) the Indenture to make conforming changes including the removal of references to the Registration Rights Agreement and the removal of the ability of the Notes to accrue Additional Interest pursuant to the Registration Rights Agreement;
WHEREAS, pursuant to Section 9.02 of the Indenture, the Trustee and the Company are authorized to execute and deliver this Supplemental Indenture, with the written consent of Holders of a majority in aggregate principal amount of the Notes, to effectuate the Proposed Amendments;
WHEREAS, pursuant to that certain merger agreement, dated February 17, 2014, by and among Actavis plc (the “ Guarantor ”), various subsidiaries of the Guarantor and the Company, the Guarantor will acquire the Company (the “ Merger ”);
WHEREAS, in connection with the Merger, the Guarantor proposes to guarantee the Notes pursuant to subsequent supplemental indentures to the Indenture (the “ Guarantee Supplemental Indentures ”);
WHEREAS, Holders of at least a majority in aggregate principal amount of the outstanding Notes have consented to the amendments set forth herein in connection with that certain Consent Solicitations Statement relating to the Solicitations of Consents relating to the Notes provided to Holders on May 22, 2014 (the “ Consent Statement ”); and
WHEREAS, the Company has furnished the Trustee with an Officers’ Certificate, a certified copy of the resolution of its Board of Directors, and an Opinion of Counsel complying with the requirements of Sections 9.06, 11.04 and 11.05 of each Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE I
SECTION 1.1 Defined Terms . As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined, except as set forth in Section 2.1 hereof and that the term “Holders” in this Supplemental Indenture shall refer to the term “Holders” as defined in the Indenture and the Trustee acting on behalf or for the benefit of such Holders. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
SECTION 2.1 Amendments .
a. Section 1.01 of the Indenture is hereby amended as follows:
i. The following definitions are deleted in their entirety: “Additional Interest”, “Exchange Notes”, “Exchange Offer”, “ Registration Rights Agreement” and “Shelf Registration Statement”;
ii. The definition of “Additional Notes” is amended by deleting the following language: “and Exchange Notes for such Initial Notes”;
iii. The definition of “Notes” is amended by deleting the following language: “any Exchange Notes and”; and
iv. The definition of “Record Date” is amended by deleting the following language : “or Additional Interest, if any,”.
b. Section 1.02 is amended by deleting the definition of “Additional Interest Notice”.
c. Section 2.01(a) of the Indenture is hereby amended by deleting the entirety of the first sentence and replacing it with the following language:
“Provisions relating to the Initial Notes and Additional Notes are set forth in Appendix A hereto, which is hereby incorporated in and expressly made a part of this Indenture.”.
d. Section 2.02(c) of the Indenture is hereby deleted in its entirety and replaced with the following language:
“On the Issue Date, the Trustee shall, upon receipt of a written order of the Company signed by an Officer (an “ Authentication Order ”), authenticate and deliver the Initial Notes. In addition, at any time, from time to time, the Trustee shall upon receipt of an Authentication Order authenticate and deliver any Additional Notes for an aggregate principal amount specified in such Authentication Order for such Additional Notes issued hereunder.”.
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e. Section 3.07(a) of the Indenture is hereby amended by deleting the following language: “(including Additional Interest)”.
f. Section 4.01(c) of the Indenture is amended by deleting the following language: “Additional Interest, if any, and”.
g. Section 6.01(b) of the Indenture is amended by deleting the following language: “(including Additional Interest)”.
h. Sections 4.01, 6.02, 6.07, 6.08, 8.06, 8.07, 9.02 and 10.01 of the Indenture are amended by deleting the following language wherever it appears: “(including Additional Interest, if any)”.
i. Section 11.17 of the Indenture is hereby deleted in its entirety and replaced with the following language:
“[intentionally omitted.]”.
j. Section 2.2 of Appendix A of the Indenture is hereby deleted in its entirety and replaced with the following language:
“The Trustee shall authenticate and make available for delivery upon receipt of an Authentication Order (a) Initial Notes for original issue on the date hereof in an aggregate principal amount of $1,050,000,000 and (b) subject to the terms of the Indenture, Additional Notes. Such order shall specify the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated and whether the Notes are to be Initial Notes or Additional Notes.”.
k. Section 2.3(c)(iv) of Appendix A of the Indenture is hereby deleted in its entirety and replaced with the following language:
“In the event that a Global Note is exchanged for Definitive Notes pursuant to Section 2.4, such Notes may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of this Section 2.3 (including the certification requirements set forth on the reverse of the Notes intended to ensure that such transfers comply with Rule 144A, Regulation S or such other applicable exemption from registration under the Securities Act, as the case may be) and such other procedures as may from time to time be adopted by the Company.”.
l. Section 2.3(e)(iii) of Appendix A of the Indenture is hereby deleted in its entirety and replaced with the following language:
“After a transfer of any Notes pursuant to an effective registration statement with respect to such Notes, all requirements pertaining to the Restricted Notes Legend on such Notes shall cease to apply and the Registrar shall permit the Holder, or beneficial owner, of any such Note that bears a Restricted Notes Legend to exchange such Note for a Note, or beneficial interest in a Global Note, that does not bear a Restricted Notes Legend.”
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m. Section 2.3(e)(iv) of Appendix A of the Indenture is hereby deleted in its entirety and replaced with the following language:
“[intentionally omitted.]”.
n. Section 2.3(h)(iii) of Appendix A of the Indenture is hereby deleted in its entirety and replaced with the following language:
“[intentionally omitted.]”.
o. Section 2.4 of Appendix A of the Indenture is hereby amended by deleting the following language wherever it may appear:
“or issued in connection with an Exchange Offer”.
p. Section 1 of the Form of Note attached as Exhibit A to the Indenture and Section 1 of the Global Notes are hereby amended as follows:
i. by deleting the following language in the first sentence of each Section: “and shall pay Additional Interest, if any”;
ii. by deleting the following language in the third sentence of each Section: “(including Additional Interest, if any)”; and
iii. by deleting the following language in the penultimate sentence of each Section: “, including Additional Interest, if any,”.
q. Section 2 of the Form of Note attached as Exhibit A to the Indenture and Section 2 of the Global Notes are hereby amended by deleting the following language wherever it appears: “, including Additional Interest, if any,”.
r. Section 11 of the Form of Note attached as Exhibit A to the Indenture and Section 11 of the Global Notes are hereby amended by deleting the following language: “, including the right to receive Additional Interest”.”.
s. Section 14 of the Form of Note attached as Exhibit A to the Indenture and Section 14 of the Global Notes are hereby amended by deleting the following language in the first sentence of the second paragraph: “or the Registration Rights Agreement”.
ARTICLE III
SECTION 3.1 Parties . Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
SECTION 3.2 Governing Law . This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
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SECTION 3.3 Severability Clause . In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 3.4 Effectiveness . Subject to the following sentence, upon the execution and delivery of this Supplemental Indenture between the Company and the Trustee, this Supplemental Indenture shall become effective and the Indenture shall be amended in accordance herewith and every Holder of the Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby. Notwithstanding the foregoing, the amendments to the Indenture provided for in this Supplemental Indenture shall only become operative upon the execution of the Guarantee Supplemental Indentures by the Company (or any successor thereto), the Guarantor and the Trustee.
SECTION 3.5 Ratification of Indenture; Supplemental Indentures Part of Indenture . Except as expressly amended or supplemented hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby. This Supplemental Indenture is an indenture supplemental to the Original Indenture, and the Original Indenture and this Supplemental Indenture shall henceforth be read and construed together for all purposes. In the event of a conflict between the terms and conditions of the Indenture and the terms and conditions of this Supplemental Indenture, then the terms and conditions of this Supplemental Indenture shall prevail. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture.
SECTION 3.6 Counterparts . This Supplemental Indenture may be executed by one or more of the parties to this Supplemental Indenture on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of this Supplemental Indenture by facsimile transmission or other electronic format shall be effective as delivery of a manually executed counterpart hereof.
SECTION 3.7 Headings . The headings of the Articles and the Sections in this Supplemental Indenture are for convenience of reference only, are not part of this Supplemental Indenture and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
SECTION 3.8 Recitals . The recitals contained herein are those of the Company and not the Trustee, and the Trustee assumes no responsibility for the correctness of same. All rights, protections, privileges, indemnities and benefits granted or afforded to the Trustee under the Indenture shall be deemed incorporated herein by this reference and shall be deemed applicable to all actions taken, suffered or omitted by the Trustee under this Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
|
FOREST LABORATORIES, INC., as the Company |
||||
| By: |
/s/ A. Robert D. Bailey |
|||
| Name: | A. Robert D. Bailey | |||
| Title: |
Senior Vice President, Chief Legal
Officer & General Counsel |
|||
[Signature Page to Proposed Amendment Supplemental Indenture (4.375% Senior Notes)]
| WELLS FARGO BANK, | ||
| NATIONAL ASSOCIATION, as Trustee | ||
| By: |
/s/ Yana Kislenko |
|
| Name: Yana Kislenko | ||
| Title: Vice President | ||
[Signature Page to Proposed Amendment Supplemental Indenture (4.375% Senior Notes)]
Exhibit 4.3
FIRST SUPPLEMENTAL INDENTURE
This First Supplemental Indenture, dated as of June 12, 2014 (this “ Supplemental Indenture ”), between Forest Laboratories, Inc. (the “ Company ”) and Wells Fargo Bank, National Association, as Trustee (the “Trustee”) under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and delivered an indenture, dated as of January 31, 2014 (the “ Original Indenture ” and, as amended, supplemented, waived or otherwise modified, the “ Indenture ”), providing for the issuance of 4.875% Senior Notes due 2021 of the Company (the “ Notes ”);
WHEREAS, the Company successfully solicited consents from a majority of the Holders to, among other things, amend (i) that certain Registration Rights Agreement, dated January 31, 2014 (the “ Registration Rights Agreement ”), between the Company and Morgan Stanley & Co. LLC, as representative of the several initial purchasers, providing for registration rights with respect to the Notes and (ii) the Indenture to make conforming changes including the removal of references to the Registration Rights Agreement and the removal of the ability of the Notes to accrue Additional Interest pursuant to the Registration Rights Agreement;
WHEREAS, pursuant to Section 9.02 of the Indenture, the Trustee and the Company are authorized to execute and deliver this Supplemental Indenture, with the written consent of Holders of a majority in aggregate principal amount of the Notes, to effectuate the Proposed Amendments;
WHEREAS, pursuant to that certain merger agreement, dated February 17, 2014, by and among Actavis plc (the “ Guarantor ”), various subsidiaries of the Guarantor and the Company, the Guarantor will acquire the Company (the “ Merger ”);
WHEREAS, in connection with the Merger, the Guarantor proposes to guarantee the Notes pursuant to subsequent supplemental indentures to the Indenture (the “ Guarantee Supplemental Indentures ”);
WHEREAS, Holders of at least a majority in aggregate principal amount of the outstanding Notes have consented to the amendments set forth herein in connection with that certain Consent Solicitations Statement relating to the Solicitations of Consents relating to the Notes provided to Holders on May 22, 2014 (the “ Consent Statement ”); and
WHEREAS, the Company has furnished the Trustee with an Officers’ Certificate, a certified copy of the resolution of its Board of Directors, and an Opinion of Counsel complying with the requirements of Sections 9.06, 11.04 and 11.05 of each Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE I
SECTION 1.1 Defined Terms . As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined, except as set forth in Section 2.1 hereof and that the term “Holders” in this Supplemental Indenture shall refer to the term “Holders” as defined in the Indenture and the Trustee acting on behalf or for the benefit of such Holders. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
SECTION 2.1 Amendments .
a. Section 1.01 of the Indenture is hereby amended as follows:
i. The following definitions are deleted in their entirety: “Additional Interest”, “Exchange Notes”, “Exchange Offer”, “ Registration Rights Agreement” and “Shelf Registration Statement”;
ii. The definition of “Additional Notes” is amended by deleting the following language: “and Exchange Notes for such Initial Notes”;
iii. The definition of “Notes” is amended by deleting the following language: “any Exchange Notes and”; and
iv. The definition of “Record Date” is amended by deleting the following language : “or Additional Interest, if any,”.
b. Section 1.02 is amended by deleting the definition of “Additional Interest Notice”.
c. Section 2.01(a) of the Indenture is hereby amended by deleting the entirety of the first sentence and replacing it with the following language:
“Provisions relating to the Initial Notes and Additional Notes are set forth in Appendix A hereto, which is hereby incorporated in and expressly made a part of this Indenture.”.
d. Section 2.02(c) of the Indenture is hereby deleted in its entirety and replaced with the following language:
“On the Issue Date, the Trustee shall, upon receipt of a written order of the Company signed by an Officer (an “ Authentication Order ”), authenticate and deliver the Initial Notes. In addition, at any time, from time to time, the Trustee shall upon receipt of an Authentication Order authenticate and deliver any Additional Notes for an aggregate principal amount specified in such Authentication Order for such Additional Notes issued hereunder.”.
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e. Section 3.07(a) of the Indenture is hereby amended by deleting the following language: “(including Additional Interest)”.
f. Section 4.01(c) of the Indenture is amended by deleting the following language: “Additional Interest, if any, and”.
g. Section 6.01(b) of the Indenture is amended by deleting the following language: “(including Additional Interest)”.
h. Sections 4.01, 6.02, 6.07, 6.08, 8.06, 8.07, 9.02 and 10.01 of the Indenture are amended by deleting the following language wherever it appears: “(including Additional Interest, if any)”.
i. Section 11.17 of the Indenture is hereby deleted in its entirety and replaced with the following language:
“[intentionally omitted.]”.
j. Section 2.2 of Appendix A of the Indenture is hereby deleted in its entirety and replaced with the following language:
“The Trustee shall authenticate and make available for delivery upon receipt of an Authentication Order (a) Initial Notes for original issue on the date hereof in an aggregate principal amount of $750,000,000 and (b) subject to the terms of the Indenture, Additional Notes. Such order shall specify the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated and whether the Notes are to be Initial Notes or Additional Notes.”.
k. Section 2.3(c)(iv) of Appendix A of the Indenture is hereby deleted in its entirety and replaced with the following language:
“In the event that a Global Note is exchanged for Definitive Notes pursuant to Section 2.4, such Notes may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of this Section 2.3 (including the certification requirements set forth on the reverse of the Notes intended to ensure that such transfers comply with Rule 144A, Regulation S or such other applicable exemption from registration under the Securities Act, as the case may be) and such other procedures as may from time to time be adopted by the Company.”.
l. Section 2.3(e)(iii) of Appendix A of the Indenture is hereby deleted in its entirety and replaced with the following language:
“After a transfer of any Notes pursuant to an effective registration statement with respect to such Notes, all requirements pertaining to the Restricted Notes Legend on such Notes shall cease to apply and the Registrar shall permit the Holder, or beneficial owner, of any such Note that bears a Restricted Notes Legend to exchange such Note for a Note, or beneficial interest in a Global Note, that does not bear a Restricted Notes Legend.”
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m. Section 2.3(e)(iv) of Appendix A of the Indenture is hereby deleted in its entirety and replaced with the following language:
“[intentionally omitted.]”.
n. Section 2.3(h)(iii) of Appendix A of the Indenture is hereby deleted in its entirety and replaced with the following language:
“[intentionally omitted.]”.
o. Section 2.4 of Appendix A of the Indenture is hereby amended by deleting the following language wherever it may appear:
“or issued in connection with an Exchange Offer”.
p. Section 1 of the Form of Note attached as Exhibit A to the Indenture and Section 1 of the Global Notes are hereby amended as follows:
i. by deleting the following language in the first sentence of each Section: “and shall pay Additional Interest, if any”;
ii. by deleting the following language in the third sentence of each Section: “(including Additional Interest, if any)”; and
iii. by deleting the following language in the penultimate sentence of each Section: “, including Additional Interest, if any,”.
q. Section 2 of the Form of Note attached as Exhibit A to the Indenture and Section 2 of the Global Notes are hereby amended by deleting the following language wherever it appears: “, including Additional Interest, if any,”.
r. Section 11 of the Form of Note attached as Exhibit A to the Indenture and Section 11 of the Global Notes are hereby amended by deleting the following language: “, including the right to receive Additional Interest”.”.
s. Section 14 of the Form of Note attached as Exhibit A to the Indenture and Section 14 of the Global Notes are hereby amended by deleting the following language in the first sentence of the second paragraph: “or the Registration Rights Agreement”.
ARTICLE III
SECTION 3.1 Parties . Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
SECTION 3.2 Governing Law . This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
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SECTION 3.3 Severability Clause . In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 3.4 Effectiveness . Subject to the following sentence, upon the execution and delivery of this Supplemental Indenture between the Company and the Trustee, this Supplemental Indenture shall become effective and the Indenture shall be amended in accordance herewith and every Holder of the Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby. Notwithstanding the foregoing, the amendments to the Indenture provided for in this Supplemental Indenture shall only become operative upon the execution of the Guarantee Supplemental Indentures by the Company (or any successor thereto), the Guarantor and the Trustee.
SECTION 3.5 Ratification of Indenture; Supplemental Indentures Part of Indenture . Except as expressly amended or supplemented hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby. This Supplemental Indenture is an indenture supplemental to the Original Indenture, and the Original Indenture and this Supplemental Indenture shall henceforth be read and construed together for all purposes. In the event of a conflict between the terms and conditions of the Indenture and the terms and conditions of this Supplemental Indenture, then the terms and conditions of this Supplemental Indenture shall prevail. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture.
SECTION 3.6 Counterparts . This Supplemental Indenture may be executed by one or more of the parties to this Supplemental Indenture on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of this Supplemental Indenture by facsimile transmission or other electronic format shall be effective as delivery of a manually executed counterpart hereof.
SECTION 3.7 Headings . The headings of the Articles and the Sections in this Supplemental Indenture are for convenience of reference only, are not part of this Supplemental Indenture and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
SECTION 3.8 Recitals . The recitals contained herein are those of the Company and not the Trustee, and the Trustee assumes no responsibility for the correctness of same. All rights, protections, privileges, indemnities and benefits granted or afforded to the Trustee under the Indenture shall be deemed incorporated herein by this reference and shall be deemed applicable to all actions taken, suffered or omitted by the Trustee under this Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
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FOREST LABORATORIES, INC., as the Company |
||
| By: |
/s/ A. Robert D. Bailey |
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Name: A. Robert D. Bailey Title: Senior Vice President, Chief Legal Officer & General Counsel |
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[Signature Page to Proposed Amendment Supplemental Indenture (4.875% Senior Notes)]
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee |
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| By: |
/s/ Yana Kislenko |
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Name: Yana Kislenko Title: Vice President |
||
[Signature Page to Proposed Amendment Supplemental Indenture (4.875% Senior Notes)]
Exhibit 10.1
WAIVER AND AMENDMENT
WAIVER AND AMENDMENT (this “ Amendment ”), dated as of June 12, 2014, between FOREST LABORATORIES, INC., a Delaware corporation (the “ Issuer ”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as trustee (“Trustee”).
RECITALS
WHEREAS, the Issuer and Morgan Stanley & Co. LLC, as representative of the several initial purchasers, have executed and delivered (i) a registration rights agreement dated as of December 10, 2013 (as amended, supplemented or otherwise modified from time to time, the “ 2013 Registration Rights Agreement ”), providing for registration rights with respect to the 5.00% Senior Notes due 2021 (the “ 5.00% Notes ”) issued by the Issuer pursuant to an indenture dated as of December 10, 2013 (as amended, supplemented or otherwise modified from time to time, the “ 5.00% Notes Indenture ”), between the Issuer and the Trustee, and (ii) a registration rights agreement dated as of January 31, 2014 (as amended, supplemented or otherwise modified from time to time, the “ 2014 Registration Rights Agreement ” and, together with the 2013 Registration Rights Agreement, the “ Registration Rights Agreements ”), providing for registration rights with respect to (A) the 4.375% Senior Notes due 2019 (the “ 4.375% Notes ”) issued by the Issuer pursuant to an indenture dated as of January 31, 2014 (as amended, supplemented or otherwise modified from time to time, the “ 4.375% Notes Indenture ”), between the Issuer and the Trustee and (B) the 4.875% Senior Notes due 2021 (the “ 4.875% Notes ” and, together with the 5.00% Notes and the 4.375% Notes, the “ Notes ”) issued by the Issuer pursuant to an indenture dated as of January 31, 2014 (as amended, supplemented or otherwise modified from time to time, the “ 4.875% Notes Indenture ” and, together with the 5.00% Notes Indenture and the 4.375% Notes Indenture, the “ Indentures ”), between the Issuer and the Trustee;
WHEREAS, pursuant to that certain merger agreement dated as of February 17, 2014, by and among Actavis plc (the “ Parent Guarantor ”), various subsidiaries of the Parent Guarantor and the Issuer, the Parent Guarantor will acquire the Issuer (the “ Merger ”);
WHEREAS, in connection with the Merger, the Parent Guarantor proposes to fully, unconditionally and irrevocably guarantee the Notes pursuant to supplemental indentures to the Indentures (collectively, the “ Supplemental Indentures ”);
WHEREAS, Section 6(b) of each Registration Rights Agreement provides that, subject to certain conditions, such Registration Rights Agreement may be amended, and waivers or consents to departures from the provisions of such Registration Rights Agreement may be given, by written agreement with the consent of Holders of a majority in aggregate principal amount of the outstanding Notes to which such Registration Rights Agreement relates affected by such amendment or waiver;
WHEREAS, Holders of at least a majority in aggregate principal amount of the outstanding Notes of each series to which each Registration Rights Agreement relates have consented to the amendments set forth herein in connection with that certain Consent Solicitations Statement relating to the solicitations of consents relating to the Notes provided to Holders on May 22, 2014 (the “ Consent Statement ”);
WHEREAS, this Amendment is authorized by Section 6(b) of each of the Registration Rights Agreements;
WHEREAS, the Issuer has furnished the Trustee with an Officers’ Certificate, a certified copy of the resolution of its Board of Directors, and an Opinion of Counsel complying with the requirements of Sections 9.06, 11.04 and 11.05 of each Indenture; and
WHEREAS, all things necessary to make this Amendment a valid agreement of the Issuer, the Holders and Trustee and a valid amendment to each of the Registration Rights Agreements have been done.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
Section 1. Capitalized Terms .
Capitalized terms used herein without definitions shall have the meanings assigned to them in the Registration Rights Agreements.
Section 2. Amendments to the Registration Rights Agreements .
| (a) | Each Registration Rights Agreement is hereby amended to delete each of the following sections in their entirety: Section 2 (Registration under the 1933 Act); Section 3 (Registration Procedures); and Section 4 (Participation of Broker-Dealers in Exchange Offer). |
| (b) | All definitions set forth in Section 1 of each Registration Rights Agreement that relate to defined terms used solely in sections deleted by this Amendment are hereby deleted in their entirety, and all references to sections of such Registration Rights Agreement that are used exclusively in the text of such Registration Rights Agreement that are being otherwise eliminated by this Amendment shall be deleted in their entirety. |
Section 3. Effectiveness .
Subject to the following sentence, upon the execution and delivery of this Amendment between the Issuer and the Trustee, this Amendment shall become effective and each Registration Rights Agreement shall be amended in accordance herewith and every Holder of the Notes heretofore or hereafter authenticated and delivered under each Indenture shall be bound hereby. Notwithstanding the foregoing, the amendments to each Registration Rights Agreement provided for in this Amendment shall only become operative upon the execution of the Supplemental Indentures by the Parent Guarantor and the Trustee.
Section 4. Ratification of Each Registration Rights Agreement .
Except as expressly amended hereby, each Registration Rights Agreement, including but not limited to Section 5 thereof, is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect. This Amendment shall form a part of each Registration Rights Agreement for all purposes, and every Holder under each Registration Rights Agreement shall be bound hereby. In the event of a conflict between the terms and conditions of each Registration Rights Agreement and the terms and conditions of this Amendment, then the terms and conditions of this Amendment shall prevail. The Trustee makes no representation or warranty as to the validity or sufficiency of this Amendment.
Section 5. Governing Law .
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 6. Counterparts .
The parties may sign any number of copies of this Amendment. Each signed copy shall be an original, but all of them together represent the same agreement. Delivery of an executed counterpart of this Amendment by facsimile transmission or other electronic format shall be effective as delivery of a manually executed counterpart hereof.
Section 7. Effect of Headings .
The Section headings herein are for convenience only and shall not affect the construction thereof.
Section 8. Recitals .
The recitals contained herein are those of the Company and not the Trustee, and the Trustee assumes no responsibility for the correctness of same. All rights, protections, privileges, indemnities and benefits granted or afforded to the Trustee under the Indenture shall be deemed incorporated herein by this reference and shall be deemed applicable to all actions taken, suffered or omitted by the Trustee under this Amendment.
[ Remainder of page intentionally left blank ]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed, all as of the date first above written.
| FOREST LABORATORIES, INC. | ||
| By: |
/s/ A. Robert D. Bailey |
|
| Name: | A. Robert D. Bailey | |
| Title: | Senior Vice President, Chief Legal | |
| Officer & General Counsel | ||
[Signature Page to Waiver and Amendment]
| WELLS FARGO BANK, NATIONAL ASSOCIATION, solely as trustee and at the direction of the Holders | ||
| By: |
/s/ Yana Kislenko |
|
| Name: | Yana Kislenko | |
| Title: | Vice President | |
[Signature Page to Waiver and Amendment]
Exhibit 99.1
Forest Laboratories, Inc. Announces Receipt of Requisite Consents and Expiration of Consent Solicitations for Certain of its Senior Notes
Release Date:
Thursday, June 12, 2014 5:00 pm EDT
NEW YORK – (BUSINESS WIRE) – Forest Laboratories, Inc. (NYSE: FRX) today announced that it had received valid consents (the “Requisite Consents”) from holders of a majority in aggregate principal amount of each series of its securities listed in the table below (the “FRX Notes”) to the elimination of Forest’s contractual registration rights obligations with respect to each series of FRX Notes (the “Proposed Amendments”) (collectively, the “Consent Solicitations”). As consideration for the Requisite Consents, Actavis plc (NYSE: ACT) will fully, unconditionally and irrevocably guarantee (each, a “ACT Guarantee” and, together, the “ACT Guarantees”) each series of FRX Notes, subject to the closing of Actavis’ pending acquisition (the “Acquisition”) of Forest and certain other customary conditions. The terms and conditions of the Consent Solicitations are described in the Offering Memorandum/Consent Solicitation Statement, dated May 22, 2014 (as may be amended or supplemented from time to time, the “Consent Solicitations Statement”).
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Series of FRX Notes |
Aggregate
Principal Amount Outstanding |
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4.375% Senior Notes due 2019 |
U.S. $ | 1.05 billion | ||
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4.875% Senior Notes due 2021 |
U.S. $ | 750 million | ||
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5.00% Senior Notes due 2021 |
U.S. $ | 1.2 billion | ||
The Consent Solicitations expired as of 5:00 p.m. on June 12, 2014 and revocation rights have been terminated. In accordance with the terms of the Consent Solicitations, Forest and the trustee for the FRX Notes will enter into a waiver and amendment to the registration rights agreements applicable to the FRX Notes and supplemental indentures to the indentures for the FRX Notes, which shall include the Proposed Amendments. The Proposed Amendments, however, will not become operative unless and until Actavis fully, unconditionally and irrevocably guarantees the FRX Notes. Assuming the foregoing conditions are satisfied or waived, Actavis will enter into supplemental indentures to the indentures for the FRX Notes promptly following the closing of the Acquisition to provide for the ACT Guarantees.
The ACT Guarantees have not been and will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws. The ACT Guarantees may not be offered or sold in the United States or to any U.S. persons except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and any applicable state securities laws.
Forest has engaged D.F. King & Co., Inc. to act as the Information and Tabulation Agent for the Consent Solicitations. Holders with questions regarding the consent solicitation should contact D.F. King & Co., Inc. at (212) 269-5550 or (800) 967-4617 (toll free) or frx@dfking.com.
This press release is for informational purposes only and does not constitute an offer of the ACT Guarantees or a solicitation of Consents. The information in this press release is subject in all respects to the terms and conditions set forth in the Consent Solicitations Statement. The Consent Solicitations do not constitute an offer of the ACT Guarantees in any jurisdiction in which, or to or from any person to or from whom, it is unlawful to make such offer under applicable securities or “blue sky” or other laws. None of Actavis, Forest, their respective boards of directors, the trustee, the Information and Tabulation Agent, the solicitation agent or any of their respective affiliates makes any recommendation as to whether holders should tender, or refrain from tendering, all or any portion of the principal amount of their FRX Notes pursuant to the Consent Solicitations.
Important Information for Investors and Shareholders
This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. In connection with the proposed merger between Actavis and Forest, Actavis has filed with the Securities and Exchange Commission (the “SEC”) a registration statement on Form S-4 containing a joint proxy statement of Actavis and Forest that also constitutes a prospectus of Actavis. The registration statement was declared effective by the SEC on May 2, 2014. Each of Actavis and Forest has mailed to its stockholders or shareholders the proxy statement/prospectus. In addition, each of Actavis and Forest has filed and will file with the SEC other documents with respect to the proposed transaction. INVESTORS AND SECURITY HOLDERS OF ACTAVIS AND FOREST ARE URGED TO READ THE DEFINITIVE JOINT PROXY STATEMENT/PROSPECTUS AND OTHER DOCUMENTS FILED OR TO BE FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders will be able to obtain free copies of the registration statement and the definitive joint proxy statement/prospectus and other documents filed with the SEC by Actavis and Forest through the website maintained by the SEC at http://www.sec.gov. Copies of the documents filed with the SEC by Actavis will be available free of charge on Actavis’ internet website at www.actavis.com or by contacting Actavis’ Investor Relations Department at (862) 261-7488. Copies of the documents filed with the SEC by Forest will be available free of charge on Forest’s internet website at www.frx.com or by contacting Forest’s Investor Relations Department at (212) 224-6713.
Participants in the Merger Solicitation
Actavis, Forest, their respective directors and certain of their executive officers and employees may be considered participants in the solicitation of proxies in connection with the proposed transaction. Information regarding the persons who may, under the rules of the SEC, be deemed participants in the solicitation of the Actavis and Forest shareholders in connection with the proposed merger will be set forth in the joint proxy statement/prospectus when it is filed with the SEC. Information about the directors and executive officers of Forest is set forth in its proxy statement for its 2013 annual meeting of stockholders, which was filed with the SEC on July 8, 2013 and certain of its Current Reports on Form 8-K. Information about the directors and executive officers of Actavis is set forth in its proxy statement for its 2014 annual meeting of shareholders, which was filed with the SEC on March 28, 2014 and certain of its Current Reports on Form 8-K. Additional information regarding the participants in the proxy solicitations and a description of their direct and indirect interests, by security holdings or otherwise, is contained in the joint proxy statement/prospectus filed with the above-referenced registration statement on Form S-4 and other relevant materials to be filed with the SEC when they become available.
About Forest Laboratories
Forest Laboratories (NYSE:FRX) is a leading, fully integrated, specialty pharmaceutical company largely focused on the United States market. Forest markets a portfolio of branded drug products and develops new medicines to treat patients suffering from diseases principally in five therapeutic areas: central nervous system, cardiovascular, gastrointestinal, respiratory, and anti-infective. Forest’s strategy of acquiring product rights for development and commercialization through licensing, collaborative partnerships and targeted mergers and acquisitions allows Forest to take advantage of attractive late-stage development and commercial opportunities, thereby managing the risks inherent in drug development. In January 2014, Forest acquired Aptalis Pharmaceuticals for $2.9 billion in cash in order to gain access to its GI and Cystic Fibrosis products, including treatments for Ulcerative Proctitis, Duodenal Ulcers, H. Pylori, Anal Fissures, and Pancreatic Insufficiency. In February 2014, Forest and Actavis plc announced an agreement where Forest would be acquired for about $25 billion in cash and stock. The acquisition of Forest by Actavis is contingent upon regulatory and shareholder approvals.
Forest is headquartered in New York, NY. To learn more, visit www.frx.com . Information on our Web site is not incorporated into, and does not form a part of, this press release.
Except for the historical information contained herein, this release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These statements involve a number of risks and uncertainties, including the difficulty of predicting FDA approvals, the acceptance and demand for new pharmaceutical products, the impact of competitive products and pricing, the timely development and launch of new products, and the risk factors listed from time to time in Forest Laboratories’ Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, and any subsequent SEC filings. Forest assumes no obligation to update forward-looking statements contained in this release to reflect new information or future events or developments.
CONTACT:
Forest Laboratories, Inc.
Frank J. Murdolo, 212-224-6714
Vice President – Investor Relations
media.relations@frx.com
or
Amanda Kaufman
Media Relations
amanda.kaufman@frx.com
Ticker Slug:
Ticker : FRX
Exchange: NYSE