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As filed with the Securities and Exchange Commission on February 25, 2010
Registration Statement No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
King Pharmaceuticals, Inc.
(Exact name of Registrant as specified in its charter)
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Tennessee
(State or other jurisdiction of
incorporation or organization)
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54-1684963
(I.R.S. Employer Identification No.) |
501 Fifth Street
Bristol, Tennessee 37620
(423) 989-8000
(Address, including zip code, and telephone number,
including area code, of Registrants principal executive offices)
Brian A. Markison
Chairman of the Board,
President and Chief Executive Officer
King Pharmaceuticals, Inc.
501 Fifth Street
Bristol, Tennessee 37620
(423) 989-8000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With copies to:
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J. Allen Overby
Bass, Berry & Sims PLC
150 Third Avenue, Suite 2800
Nashville, TN 37201
(615) 742-6200
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James W. Elrod
Chief Legal Officer and Secretary
King Pharmaceuticals, Inc.
501 Fifth Street
Bristol, Tennessee 37620
(423) 989-8000 |
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Approximate date of commencement of proposed sale to the public: From time to time after this
registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box. þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. þ
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act.
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Large accelerated filer þ
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Accelerated filer o
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Non-accelerated filer o
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Smaller Reporting Company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Maximum |
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Maximum |
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Amount of |
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Title of Each Class of |
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Amount to be |
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Offering Price Per |
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Aggregate Offering |
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Registration |
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Securities to be Registered |
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Registered(1) |
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Unit(2) |
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Price(2) |
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Fee(3) |
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Debt Securities |
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Common Stock, no par value per share |
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Preferred Stock, no par value per share |
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Warrants |
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Subscription Rights(4) |
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Total |
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(1) |
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An indeterminate amount of debt securities, common stock, preferred stock, warrants and
subscription rights are being registered hereunder at indeterminate prices. Pursuant to Rule 416
under the Securities Act of 1933, as amended, this Registration Statement also covers any
additional securities that may become issuable pursuant to stock splits, stock dividends or similar
transactions, without the need for any post-effective amendment. This Registration Statement
includes such indeterminate principal amount, liquidation amount or number of senior or
subordinated debt securities or preferred stock and common stock as may be issued upon conversion
or exchange of any senior or subordinated debt securities or preferred stock that provide for
conversion or exchange into other securities. Separate consideration may or may not be received by
the Registrant for securities that are issuable on exercise, conversion or exchange of other
securities. |
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The proposed maximum per unit and aggregate offering prices per class of security will be
determined from time to time by the Registrant in connection with the issuance by the Registrant of
the securities registered hereunder. |
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The Registrant is deferring payment of the registration fee pursuant to Rule 456(b) and is
omitting this information in reliance on Rule 456(b) and Rule 457(r). |
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The subscription rights to purchase debt securities or common or preferred stock of the
Registrant will be issued without consideration. |
PROSPECTUS
Debt Securities
Common Stock
Preferred Stock
Warrants
Subscription Rights
From time to time, we may offer to sell debt securities, common stock and preferred stock,
either separately or evidenced by warrants or subscription rights to purchase such securities.
This prospectus describes some of the general terms that may apply to these securities. The
specific terms of any securities to be offered will be described in supplements to this prospectus
that contain specific information about the offering and the terms of the securities. The debt
securities, preferred stock, warrants and subscription rights may be convertible, exercisable or
exchangeable for common or preferred stock or other securities of ours.
We may offer and sell these securities to or through one or more underwriters, dealers and
agents, or directly to purchasers. An accompanying prospectus supplement will set forth the names
of any underwriters or agents involved in the sale of securities in respect of which this
prospectus is being delivered, the principal amounts, if any, to be purchased by underwriters and
the compensation, if any, of such underwriters or agents.
Our common stock is traded on the New York Stock Exchange under the symbol KG.
Our principal executive offices are located at 501 Fifth Street, Bristol, Tennessee 37620. Our
telephone number is (423) 989-8000.
This prospectus may not be used to offer or consummate sales of these securities unless
accompanied by a prospectus supplement.
Investing in our securities involves a high degree of risk. You should consider carefully the
information under the caption Risk Factors on page 8 of this prospectus and included in our most
recent Annual Report on Form 10-K filed with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, as supplemented or revised by our subsequent Quarterly
Reports on Form 10-Q and under the caption Risk Factors in any applicable prospectus supplement,
before you invest in any of our securities.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is February 25, 2010.
TABLE OF CONTENTS
YOU SHOULD ONLY RELY ON THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS
AND IN A PROSPECTUS SUPPLEMENT. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT
INFORMATION. IF ANYONE PROVIDES YOU WITH DIFFERENT OR INCONSISTENT INFORMATION, YOU SHOULD NOT RELY
ON IT. WE WILL NOT MAKE AN OFFER TO SELL THESE SECURITIES IN ANY JURISDICTION WHERE THE OFFER AND
SALE IS NOT PERMITTED. YOU SHOULD ASSUME THAT THE INFORMATION APPEARING IN THIS PROSPECTUS, AS WELL
AS INFORMATION WE PREVIOUSLY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION AND INCORPORATED BY
REFERENCE, IS ACCURATE ONLY AS OF ITS DATE. OUR BUSINESS, FINANCIAL CONDITION, RESULTS OF
OPERATIONS AND PROSPECTS MAY HAVE CHANGED SINCE THOSE DATES.
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement that we filed with the Securities and
Exchange Commission, or the SEC, utilizing a shelf registration process. Under this shelf
process, we may sell any combination of the securities registered in one or more offerings from
time to time. Each time we sell securities, we will provide a prospectus supplement and may provide
other offering materials that will contain specific information about the terms of that offering.
The prospectus supplement or other offering materials may also add, update or change information
contained in this prospectus. Before purchasing any securities, you should read both this
prospectus and any prospectus supplement or other offering materials, together with the additional
information described under the headings Where You Can Find Additional Information and
Incorporation of Information by Reference in this prospectus.
This prospectus and any accompanying prospectus supplement do not contain all of the
information included in the registration statement. We have omitted parts of the registration
statement in accordance with the rules and regulations of the SEC. For further information, we
refer you to the registration statement on Form S-3 of which this prospectus is a part, including
its exhibits. Statements contained in this prospectus and any accompanying prospectus supplement
about the provisions or contents of any agreement or other document are not necessarily complete.
If the SECs rules and regulations require that an agreement or document be filed as an exhibit to
the registration statement, please see that agreement or document for a complete description of
these matters.
Unless expressly stated or the context otherwise requires, the terms we, our, us, the
company, Registrant and King refer to King Pharmaceuticals, Inc., a Tennessee corporation, and
its consolidated subsidiaries.
FORWARD-LOOKING STATEMENTS
This prospectus, including any accompanying prospectus supplement and the documents
incorporated by reference herein and therein, contains statements that are forward-looking
statements as defined within the meaning of Section 21E of the Securities Exchange Act of 1934, as
amended (the Exchange Act), and Section 27A of the Securities Act of 1933, as amended (the
Securities Act). Forward-looking statements give our current expectations or forecasts of future
events. All statements other than statements of current or historical fact contained in this
prospectus or any accompanying prospectus supplement, including statements regarding our future
financial position, business strategy, budgets, projected costs, and plans and objectives of
management for future operations, are forward-looking statements. The words anticipate,
believe, continue, estimate, expect, intend, may, plan, projects, will, and
similar expressions, as they relate to us, are intended to identify forward-looking statements.
These statements are not guarantees of future performance and are based on our current plans and
actual future activities, and our results of operations may be materially different from those set
forth in the forward-looking statements as a result of various factors, including, among other
things:
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the potential of, including anticipated net sales and prescription trends for, our
branded prescription pharmaceutical products, particularly Skelaxin®, Avinza®,
Thrombin-JMI®, Flector® Patch, Embeda®, Levoxyl®, Altace® and Cytomel®; |
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expectations regarding the enforceability and effectiveness of product-related patents,
including, in particular, patents related to Skelaxin®, Avinza®, and Adenoscan®; |
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expected trends and projections with respect to particular products, reportable segment
and income and expense line items; |
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the adequacy of our liquidity and capital resources; |
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anticipated capital expenditures; |
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the development, approval and successful commercialization of Remoxy®, Acurox® Tablets,
CorVueTM and other products; |
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the cost of and the successful execution of our growth and restructuring strategies;
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anticipated developments and expansions of our business; |
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our plans for the manufacture of some of our products, including products manufactured
by third parties; |
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the potential costs, outcomes and timing of research, clinical trials and other
development activities involving pharmaceutical products, including, but not limited to,
the timing or outcomes of regulatory processes or the magnitude and timing of potential payments to third parties in connection with
development activities; |
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the development of product line extensions; |
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the expected timing of the initial marketing of certain products; |
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products developed, acquired or in-licensed that may be commercialized; |
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our intent, beliefs or current expectations, primarily with respect to our future
operating performance; |
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expectations regarding sales growth, gross margins, manufacturing productivity, capital
expenditures and effective tax rates; |
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expectations regarding the outcome of various pending legal proceedings including the
Skelaxin®, Avinza® and EpiPen® patent challenges, litigation, and other legal proceedings
described in our periodic reports; |
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expectations regarding our financial condition and liquidity as well as future cash
flows and
earnings; and |
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expectations regarding our ability to liquidate our holdings of auction rate securities
and the temporary nature of unrealized losses recorded in connection with some of those
securities. |
Many of these risks, uncertainties and other factors are beyond our control and are difficult
to predict. New factors may also emerge from time to time that could adversely affect our business.
It is not possible for us to predict all of the factors that may from time to time affect our
business or to assess the potential impact of each such factor. We caution readers not to place
undue reliance on any such forward-looking statements, which speak only as of the date on which
they are made, and, except to fulfill our obligations under the United States securities laws, we
undertake no obligation to update any such statement to reflect events or circumstances after the
date on which it is made. We qualify all of the information presented in this prospectus and any
accompanying prospectus supplement (and the information incorporated by reference herein and
therein), and particularly our forward-looking statements, by the cautionary statements described
above and in the section of this prospectus entitled Risk Factors.
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THE COMPANY
We are a vertically integrated pharmaceutical company that performs basic research and
develops, manufactures, markets and sells branded prescription pharmaceutical products and animal
health products. By vertically integrated, we mean that we have the following capabilities:
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research and development |
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distribution |
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manufacturing |
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sales and marketing |
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packaging |
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business development |
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quality control and assurance |
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regulatory management |
Branded prescription pharmaceutical products are innovative products sold under a brand name
that have, or previously had, some degree of market exclusivity. Our branded prescription pharmaceuticals
include neuroscience products (primarily pain medicines), hospital products, and legacy brands, all
of which are for
use in humans. Our auto-injector business manufactures acute care medicines for use in
humans that are delivered using an auto-injector. Our animal health business is focused on medicated feed
additives and water-soluble therapeutics primarily for poultry, cattle, and swine.
Our corporate strategy is focused on specialty markets, particularly specialty-driven branded
prescription pharmaceutical markets. We believe our target markets have significant potential and
our organization is aligned to focus on these markets. Our growth in specialty markets is achieved
through both acquisitions and organic growth. Our strategy focuses on growth through the
acquisition of novel branded prescription pharmaceutical products and technologies that we believe
complement the commercial footprint we have established in the neuroscience and hospital markets.
We strive to be a leader in developing and commercializing innovative, clinically-differentiated
therapies and technologies in these target, specialty-driven markets. We may also seek company
acquisitions that add commercialized products or products in development, technologies or sales and
marketing capabilities to our existing platforms or that otherwise complement our operations. We
also have a commitment to research and development and advancing the products and technologies in
our development pipeline.
We work to achieve organic growth by maximizing the potential of our currently marketed
products through sales and marketing and product life-cycle management. By product
life-cycle management, we mean the extension of the economic life of products, including seeking
and obtaining necessary governmental approvals, by securing from the U.S. Food and Drug
Administration additional approved uses (indications) for our products, developing and producing
different strengths, producing different package sizes, developing new dosage forms, and developing
new product formulations. We market our branded prescription pharmaceutical products, primarily
through a dedicated sales force, to general/family practitioners, internal medicine physicians,
neurologists, pain specialists, surgeons and hospitals across the United States and in Puerto Rico.
Through a team of internal sales professionals, our auto-injector business markets a portfolio
of acute care auto-injector products to the pre-hospital emergency services market, which includes
U.S. federal, state and local governments, public health services, emergency medical personnel and
first responders and approved foreign governments.
Our animal health products of our wholly-owned subsidiary Alpharma Inc. are marketed through a
staff of trained sales and technical service and marketing employees, many of whom are
veterinarians and nutritionists. Sales offices are located in the U.S., Europe, Canada, Mexico,
South America and Asia. Elsewhere, our animal health products are sold primarily through the use of
distributors and other third-party sales companies.
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King was incorporated under the laws of the State of Tennessee in 1993. Our shares of common
stock are traded on the New York Stock Exchange under the symbol KG. Our principal executive
offices are located at 501 Fifth Street, Bristol, Tennessee 37620, and our telephone number is
(423) 989-8000. Our web site address is www.kingpharm.com. Please note that our web site address is
provided as an inactive textual reference only. The information provided on our web site is not
part of this prospectus and is therefore not incorporated by reference unless such information is
otherwise specifically referenced elsewhere in this prospectus.
RISK FACTORS
Investing in our securities involves risks. You are advised to read carefully the information
under the caption Item 1A. Risk Factors in our most recent annual report filed on Form 10-K and
other documents we incorporate by reference into this prospectus and any additional risk factors
and information set forth under Item 1A. Risk Factors in our quarterly reports on Form 10-Q, and
in documents we file with the SEC after this prospectus and which are incorporated by reference
into this prospectus, as described below under the heading Incorporation of Information by
Reference. Before making an investment decision, you should carefully consider these risks as well
as other information we incorporate by reference in this prospectus. The risks and uncertainties
that we have described are not the only ones facing us. The prospectus supplement applicable to
each offering of securities will contain additional information about risks applicable to an
investment in us and our securities.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratios of earnings to fixed charges for each of the periods
indicated. We have not presented the Ratio of Combined Fixed Charges and Preference Dividends to
Earnings because we currently have no preference securities outstanding.
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Fiscal Year Ended December 31, |
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2009 |
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2008 |
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2006 |
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2005 |
Ratio of Earnings
to Fixed Charges(1) |
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2.5x |
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(2 |
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9.6x |
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17.0x |
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11.0x |
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(1) |
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For purposes of computing this consolidated ratio earnings
consist of income (loss) from continuing operations before: |
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income taxes and discontinued operations plus |
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Fixed Charges and capitalized interest. |
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Fixed Charges consist of: |
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all interest expense; |
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the portion of net rental expense which is deemed representative of the interest factor; |
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the amorization expense of debt issuance costs; and |
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capitalized interest. |
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For the year ended December 31, 2008, earnings were
inadequate to cover fixed charges by approximately
$219,175,000. |
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USE OF PROCEEDS
Unless otherwise specified in an applicable prospectus supplement, we currently intend to use
the proceeds we receive from the offered securities for general corporate purposes, which include
potential acquisitions of, or investments in, companies and products that complement our business,
research and development, capital expenditures, additions to working capital, the repayment or
refinancing of all or a portion of any indebtedness outstanding at a particular time, repurchases
of any notes outstanding at a particular time and any other purpose specified in any prospectus
supplement. The amount of securities offered from time to time pursuant to this prospectus or any
prospectus supplement, and the precise amounts and timing of the application of net proceeds from
the sale of these securities, will depend on our funding requirements, whether related to
acquisitions or general corporate purposes. If at the time of an issuance of securities we elect to
make different or more specific use of proceeds than described in this prospectus, such use will be
described in the prospectus supplement relating to those securities.
DESCRIPTION OF DEBT SECURITIES
We summarize below some of the provisions that will apply to the debt securities unless the
applicable prospectus supplement provides otherwise. This summary may not contain all information
that is important to you. The complete terms of the debt securities will be contained in the
applicable notes. The debt securities will be included or incorporated by reference as exhibits to
the registration statement of which this prospectus is a part. You should read the provisions of
the debt securities. You should also read the prospectus supplement, which will contain additional
information and which may update or change some of the information below.
General
This prospectus describes certain general terms and provisions of the debt securities. The
debt securities will be issued under an indenture between us and a trustee to be designated prior
to the issuance of the debt securities. When we offer to sell a particular series of debt
securities, we will describe the specific terms for the securities in a supplement to this
prospectus. The prospectus supplement will also indicate whether the general terms and provisions
described in this prospectus apply to a particular series of debt securities.
We may issue, from time to time, debt securities, in one or more series, that will consist of
either our senior debt (senior debt securities), our senior subordinated debt (senior
subordinated debt securities), our subordinated debt (subordinated debt securities) or our
junior subordinated debt (junior subordinated debt securities and, together with the senior
subordinated debt securities and the subordinated debt securities, the subordinated securities).
Debt securities, whether senior, senior subordinated, subordinated or junior subordinated, may be
issued as convertible debt securities or exchangeable debt securities.
We have summarized herein certain terms and provisions of the form of indenture (the
indenture). The summary is not complete and is qualified in its entirety by reference to the
actual text of the indenture. The indenture is incorporated by reference as an exhibit to the
registration statement of which this prospectus is a part. You should read the indenture for the
provisions which may be important to you. The indenture is subject to and governed by the Trust
Indenture Act of 1939, as amended.
The indenture does not limit the amount of debt securities which we may issue. We may issue
debt securities up to an aggregate principal amount as we may authorize from time to time which
securities may be in any currency or currency unit designated by us. The terms of each series of
debt securities will be established by or pursuant to (a) a supplemental indenture, (b) a
resolution of our board of directors, or (c) an officers certificate pursuant to authority granted
under a resolution of our board of directors. The prospectus supplement will describe the terms of
any debt securities being offered, including:
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the title of the debt securities; |
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the limit, if any, upon the aggregate principal amount or issue price of the
securities of a series;
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ranking of the specific series of debt securities relative to other outstanding
indebtedness, including subsidiaries debt; |
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the price or prices at which the debt securities will be issued; |
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the designation, aggregate principal amount and authorized denominations; |
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the issue date or dates of the series and the maturity date of the series; |
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whether the securities will be issued at par or at a premium over or a discount from
their face amount; |
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the interest rate, if any, and the method for calculating the interest rate and
basis upon which interest shall be calculated; |
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the right, if any, to extend interest payment periods and the duration of the
extension; |
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the interest payment dates and the record dates for the interest payments; |
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any mandatory or optional redemption terms or prepayment, conversion, sinking fund
or exchangeability or convertibility provisions; |
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the currency of denomination of the securities; |
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the place where we will pay principal, premium, if any, and interest, if any, and
the place where the debt securities may be presented for transfer; |
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if payments of principal of, premium, if any, or interest, if any, on the debt
securities will be made in one or more currencies or currency units other than that or
those in which the debt securities are denominated, the manner in which the exchange
rate with respect to these payments will be determined; |
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if other than denominations of $1,000 or multiples of $1,000, the denominations the
debt securities will be issued in; |
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whether the debt securities will be issued in the form of global securities or
certificates; |
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the applicability of and additional provisions, if any, relating to the defeasance
of the debt securities; |
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the portion of principal amount of the debt securities payable upon declaration of
acceleration of the maturity date, if other than the principal amount; |
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the currency or currencies, if other than the currency of the United States, in
which principal and interest will be paid; |
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the dates on which premium, if any, will be paid; |
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any addition to or change in the Events of Default described in this prospectus or
in the indenture with respect to the debt securities and any change in the acceleration
provisions described in this prospectus or in the indenture with respect to the debt
securities; |
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any addition to or change in the covenants described in the prospectus or in the
indenture with respect to the debt securities;
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our right, if any, to defer payment of interest and the maximum length of this
deferral period; and |
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other specific terms, including any additional events of default or covenants. |
We may issue debt securities at a discount below their stated principal amount. Even if we do not
issue the debt securities below their stated principal amount, for United States federal income tax
purposes the debt securities may be deemed to have been issued with a discount because of certain
interest payment characteristics. We will describe in any applicable prospectus supplement the
United States federal income tax considerations applicable to debt securities issued at a discount
or deemed to be issued at a discount, and will describe any special United States federal income
tax considerations that may be applicable to the particular debt securities.
Senior Debt
Senior debt securities will rank equally and pari passu with all of our other unsecured and
unsubordinated debt from time to time outstanding.
Subordinated Debt
The indenture does not limit our ability to issue subordinated debt securities. Any
subordination provisions of a particular series of debt securities will be set forth in the
supplemental indenture, board resolution or officers certificate related to that series of debt
securities and will be described in the relevant prospectus supplement.
If this prospectus is being delivered in connection with a series of subordinated debt
securities, the accompanying prospectus supplement or the information incorporated by reference in
this prospectus will set forth the approximate amount of senior indebtedness outstanding as of the
end of the most recent fiscal quarter.
Conversion or Exchange Rights
Debt securities may be convertible into or exchangeable for our other securities or property.
The terms and conditions of conversion or exchange will be set forth in the supplemental indenture,
board resolution or officers certificate related to that series of debt securities and will be
described in the relevant prospectus supplement. The terms will include, among others, the
following:
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the conversion or exchange price; |
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the conversion or exchange period; |
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provisions regarding the ability of us or the holder to convert or exchange the debt
securities; |
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events requiring adjustment to the conversion or exchange price; and |
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provisions affecting conversion or exchange in the event of our redemption of the debt
securities. |
Merger, Consolidation or Sale of Assets
The indenture prohibits us from merging into or consolidating with any other person or
selling, leasing or conveying substantially all of our assets and the assets of our subsidiaries,
taken as a whole, to any person, unless:
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either we are the continuing corporation or the successor corporation or the person
which acquires by sale, lease or conveyance substantially all our or our subsidiaries
assets is a corporation organized under the laws of the United States, any state thereof,
or the District of Columbia, and expressly assumes the due and punctual payment of the
principal of, and premium, if any, and interest, if any, on all the debt securities and the
due performance of every covenant of the indenture to be performed or
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observed by us, by supplemental indenture satisfactory to the trustee, executed and
delivered to the trustee by such corporation; |
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immediately after giving effect to such transactions, no Event of Default described
under the caption Events of Default and Remedies below or event which, after notice or
lapse of time or both would become an Event of Default, has happened and is continuing; and |
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we have delivered to the trustee an officers certificate and an opinion of counsel each
stating that such transaction and such supplemental indenture comply with the indenture
provisions relating to merger, consolidation and sale of assets. |
Upon any consolidation or merger with or into any other person or any sale, conveyance, lease,
or other transfer of all or substantially all of our or our subsidiaries assets to any person, the
successor person shall succeed, and be substituted for, us under the indenture and each series of
outstanding debt securities, and we shall be relieved of all obligations under the indenture and
each series of outstanding debt securities to the extent we were the predecessor person.
Events of Default and Remedies
When we use the term Event of Default in the indenture with respect to the debt securities
of any series, we mean:
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default in paying interest on the debt securities when it becomes due and the
default continues for a period of 30 days or more; |
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default in paying principal, or premium, if any, on the debt securities when
due; |
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default in the payment of any sinking or purchase fund or analogous obligation
when the same becomes due, and such default continues for 30 days or more; |
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default in the performance, or breach, of any covenant or warranty in the
indenture (other than defaults specified in clause (1), (2) or (3) above) and the
default or breach continues for a period of 60 days or more after we receive written
notice of such default from the trustee or we and the trustee receive notice from the
holders of at least 25% in aggregate principal amount of the outstanding debt
securities of the series; |
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certain events of bankruptcy, insolvency, reorganization, administration or
similar proceedings with respect to us have occurred; and |
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any other Events of Default provided with respect to debt securities of that
series that is set forth in the applicable prospectus supplement accompanying this
prospectus. |
No Event of Default with respect to a particular series of debt securities (except as to
certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an Event of
Default with respect to any other series of debt securities. The occurrence of certain Events of
Default or an acceleration under the indenture may constitute an event of default under certain of
our other indebtedness outstanding from time to time. Unless otherwise provided by the terms of an
applicable series of debt securities, if an Event of Default under the indenture occurs with
respect to the debt securities of any series and is continuing, then the trustee or the holders of
not less than 51% of the aggregate principal amount of the outstanding debt securities of that
series may by written notice require us to repay immediately the entire principal amount of the
outstanding debt securities of that series (or such lesser amount as may be provided in the terms
of the securities), together with all accrued and unpaid interest and premium, if any. In the
case of an Event of Default resulting from certain events of bankruptcy, insolvency or
reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if
any, on all outstanding debt securities will become and be immediately due and payable without any
declaration or other act on the part of the trustee or any holder of outstanding debt securities.
We refer you to the prospectus supplement relating to any series of debt
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securities that are discount securities for the particular provisions relating to acceleration
of a portion of the principal amount of such discount securities upon the occurrence of an Event of
Default.
After a declaration of acceleration, the holders of a majority in aggregate principal amount
of outstanding debt securities of any series may rescind this accelerated payment requirement if
all existing Events of Default, except for nonpayment of the principal on the debt securities of
that series that has become due solely as a result of the accelerated payment requirement, have
been cured or waived and if the rescission of acceleration would not conflict with any judgment or
decree. The holders of a majority in aggregate principal amount of the outstanding debt securities
of any series also have the right to waive past defaults, except a default in paying principal or
interest on any outstanding debt security, or in respect of a covenant or a provision that cannot
be modified or amended without the consent of all holders of the debt securities of that series.
No holder of any debt security may seek to institute a proceeding with respect to the
indenture unless such holder has previously given written notice to the trustee of a continuing
Event of Default, the holders of not less than 51% in aggregate principal amount of the outstanding
debt securities of the series have made a written request to the trustee to institute proceedings
in respect of the Event of Default, the holder or holders have offered reasonable indemnity to the
trustee and the trustee has failed to institute such proceeding within 60 days after it received
this notice. In addition, within this 60-day period the trustee must not have received directions
inconsistent with this written request by holders of a majority in aggregate principal amount of
the outstanding debt securities of that series. These limitations do not apply, however, to a suit
instituted by a holder of a debt security for the enforcement of the payment of principal, interest
or any premium on or after the due dates for such payment.
During the existence of an Event of Default actually known to a responsible officer of the
trustee, the trustee is required to exercise the rights and powers vested in it under the indenture
and use the same degree of care and skill in its exercise as a prudent person would under the
circumstances in the conduct of that persons own affairs. If an Event of Default has occurred and
is continuing, the trustee is not under any obligation to exercise any of its rights or powers at
the request or direction of any of the holders unless the holders have offered to the trustee
security or indemnity reasonably satisfactory to the trustee. Subject to certain provisions, the
holders of a majority in aggregate principal amount of the outstanding debt securities of any
series have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the trustee, or exercising any trust, or power conferred on the trustee.
The trustee will, within 90 days after receiving notice of any default, give notice of the
default to the holders of the debt securities of that series, unless the default was already cured
or waived. Unless there is a default in paying principal, interest or any premium when due, the
trustee can withhold giving notice to the holders if it determines in good faith that the
withholding of notice is in the interest of the holders. In the case of a default specified in
clause (4) above describing Events of Default, no notice of default to the holders of the debt
securities of that series will be given until 60 days after the occurrence of the event of default.
The indenture requires us, within 120 days after the end of our fiscal year, to furnish to the
trustee a statement as to compliance with the indenture. The indenture provides that the trustee
may withhold notice to the holders of debt securities of any series of any Event of Default (except
in payment on any debt securities of that series) with respect to debt securities of that series if
it in good faith determines that withholding notice is in the interest of the holders of those debt
securities.
Modification and Waiver
The indenture may be amended or modified without the consent of any holder of debt securities
in order to:
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evidence a successor to the trustee; |
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cure ambiguities, defects or inconsistencies;
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provide for the assumption of our obligations in the case of a merger or
consolidation or transfer of all or substantially all of our assets that complies with
the covenant described under Merger, Consolidation or Sale of Assets; |
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make any change that would provide any additional rights or benefits to the holders
of the debt securities of a series; |
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add guarantors or co-obligors with respect to the debt securities of any series; |
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secure the debt securities of a series; |
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establish the form or forms of debt securities of any series; |
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add additional Events of Default with respect to the debt securities of any series; |
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add additional provisions as may be expressly permitted by the Trust Indenture Act; |
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maintain the qualification of the indenture under the Trust Indenture Act; or |
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make any change that does not adversely affect in any material respect the interests
of any holder. |
Other amendments and modifications of the indenture or the debt securities issued may be made
with the consent of the holders of not less than a majority in aggregate principal amount of the
outstanding debt securities of each series affected by the amendment or modification. However, no
modification or amendment may, without the consent of the holder of each outstanding debt security
affected:
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change the maturity date or the stated payment date of any payment of premium or
interest payable on the debt securities; |
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reduce the principal amount, or extend the fixed maturity, of the debt securities; |
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change the method of computing the amount of principal or any interest of any debt
security; |
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change or waive the redemption or repayment provisions of the debt securities; |
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change the currency in which principal, any premium or interest is paid or the place
of payment; |
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reduce the percentage in principal amount outstanding of debt securities of any
series which must consent to an amendment, supplement or waiver or consent to take any
action; |
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impair the right to institute suit for the enforcement of any payment on the debt
securities; |
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waive a payment default with respect to the debt securities; |
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reduce the interest rate or extend the time for payment of interest on the debt
securities; |
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adversely affect the ranking or priority of the debt securities of any series; or |
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release any guarantor or co-obligor from any of its obligations under its guarantee
or the indenture, except in compliance with the terms of the indenture. |
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Satisfaction, Discharge and Covenant Defeasance
We may terminate our obligations under the indenture with respect to the outstanding debt
securities of any series, when:
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all debt securities of any series issued that have been
authenticated and delivered have been delivered to the trustee for
cancellation; or |
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all the debt securities of any series issued that have not been
delivered to the trustee for cancellation have become due and payable, will
become due and payable within one year, or are to be called for redemption
within one year and we have made arrangements satisfactory to the trustee for
the giving of notice of redemption by such trustee in our name and at our
expense, and in each case, we have irrevocably deposited or caused to be
deposited with the trustee sufficient funds to pay and discharge the entire
indebtedness on the series of debt securities; and |
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we have paid or caused to be paid all other sums then due and payable under the
indenture; and |
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we have delivered to the trustee an officers certificate and an opinion of counsel,
each stating that all conditions precedent under the indenture relating to the
satisfaction and discharge of the indenture have been complied with. |
We may elect to have our obligations under the indenture discharged with respect to the
outstanding debt securities of any series (legal defeasance). Legal defeasance means that we
will be deemed to have paid and discharged the entire indebtedness represented by the outstanding
debt securities of such series under the indenture, except for:
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the rights of holders of the debt securities to receive principal, interest and any
premium when due; |
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our obligations with respect to the debt securities concerning issuing temporary
debt securities, registration of transfer of debt securities, mutilated, destroyed,
lost or stolen debt securities and the maintenance of an office or agency for payment
for security payments held in trust; |
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the rights, powers, trusts, duties and immunities of the trustee; and |
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the defeasance provisions of the indenture. |
In addition, we may elect to have our obligations released with respect to certain covenants
in the indenture (covenant defeasance). If we so elect, any failure to comply with these
obligations will not constitute a default or an event of default with respect to the debt
securities of any series. In the event covenant defeasance occurs, certain events, not including
non-payment, bankruptcy and insolvency events, described under Events of Default and Remedies
will no longer constitute an event of default for that series.
In order to exercise either legal defeasance or covenant defeasance with respect to
outstanding debt securities of any series:
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we must irrevocably have deposited or caused to be deposited with the trustee as
trust funds for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to the benefits of the holders of the debt
securities of a series: |
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U.S. government obligations (or equivalent government
obligations in the case of debt securities denominated in other than U.S.
dollars or a specified currency) that will provide, not later than one day
before the due date of any payment, money in an amount; or |
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a combination of money and U.S. government obligations (or
equivalent government obligations, as applicable), |
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in each case sufficient, in the written opinion (with respect to U.S. or
equivalent government obligations or a combination of money and U.S. or
equivalent government obligations, as applicable) of a nationally recognized
firm of independent public accountants to pay and discharge, and which shall
be applied by the trustee to pay and discharge, all of the principal
(including mandatory sinking fund payments), interest and any premium at due
date or maturity; |
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in the case of legal defeasance, we have delivered to the trustee an opinion of
counsel stating that, under then applicable Federal income tax law, the holders of the
debt securities of that series will not recognize income, gain or loss for Federal
income tax purposes as a result of the deposit, defeasance and discharge to be effected
and will be subject to the same Federal income tax as would be the case if the deposit,
defeasance and discharge did not occur; |
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in the case of covenant defeasance, we have delivered to the trustee an opinion of
counsel to the effect that the holders of the debt securities of that series will not
recognize income, gain or loss for Federal income tax purposes as a result of the
deposit and covenant defeasance to be effected and will be subject to the same Federal
income tax as would be the case if the deposit and covenant defeasance did not occur; |
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no event of default or default with respect to the outstanding debt securities of
that series has occurred and is continuing at the time of such deposit after giving
effect to the deposit or, in the case of legal defeasance, no default relating to
bankruptcy or insolvency has occurred and is continuing at any time on or before the
91st day after the date of such deposit, it being understood that this condition is not
deemed satisfied until after the 91st day; |
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the legal defeasance or covenant defeasance will not cause the trustee to have a
conflicting interest within the meaning of the Trust Indenture Act, assuming all debt
securities of a series were in default within the meaning of such Act; |
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the legal defeasance or covenant defeasance will not result in a breach or violation
of, or constitute a default under, any other agreement or instrument to which we are a
party; |
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if prior to the stated maturity date, notice shall have been given in accordance
with the provisions of the indenture. |
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the legal defeasance or covenant defeasance will not result in the trust arising
from such deposit constituting an investment company within the meaning of the
Investment Company Act of 1940, as amended, unless the trust is registered under such
Act or exempt from registration; and |
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we have delivered to the trustee an officers certificate and an opinion of counsel
stating that all conditions precedent with respect to the defeasance or covenant
defeasance have been complied with. |
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Covenants
We will set forth in the applicable prospectus supplement any restrictive covenants applicable
to any issue of debt securities.
Paying Agent and Registrar
The trustee will initially act as paying agent and registrar for all debt securities. We may
change the paying agent or registrar for any series of debt securities without prior notice, and we
or any of our subsidiaries may act as paying agent or registrar.
Forms of Securities
Each debt security will be represented either by a certificate issued in definitive form to a
particular investor or by one or more global securities representing the entire issuance of the
series of debt securities. Certificated securities will be issued in definitive form and global
securities will be issued in registered form. Definitive securities name you or your nominee as
the owner of the security, and in order to transfer or exchange these securities or to receive
payments other than interest or other interim payments, you or your nominee must physically deliver
the securities to the trustee, registrar, paying agent or other agent, as applicable. Global
securities name a depositary or its nominee as the owner of the debt securities represented by
these global securities. The depositary maintains a computerized system that will reflect each
investors beneficial ownership of the securities through an account maintained by the investor
with its broker/dealer, bank, trust company or other representative, as we explain more fully
below.
Global Securities
We may issue the registered debt securities in the form of one or more fully registered global
securities that will be deposited with a depositary or its custodian identified in the applicable
prospectus supplement and registered in the name of that depositary or its nominee. In those
cases, one or more registered global securities will be issued in a denomination or aggregate
denominations equal to the portion of the aggregate principal or face amount of the securities to
be represented by registered global securities. Unless and until it is exchanged in whole for
securities in definitive registered form, a registered global security may not be transferred
except as a whole by and among the depositary for the registered global security, the nominees of
the depositary or any successors of the depositary or those nominees.
If not described below, any specific terms of the depositary arrangement with respect to any
securities to be represented by a registered global security will be described in the prospectus
supplement relating to those securities. We anticipate that the following provisions will apply to
all depositary arrangements.
Ownership of beneficial interests in a registered global security will be limited to persons,
called participants, that have accounts with the depositary or persons that may hold interests
through participants. Upon the issuance of a registered global security, the depositary will
credit, on its book-entry registration and transfer system, the participants accounts with the
respective principal or face amounts of the securities beneficially owned by the participants. Any
dealers, underwriters or agents participating in the distribution of the securities will designate
the accounts to be credited. Ownership of beneficial interests in a registered global security
will be shown on, and the transfer of ownership interests will be effected only through, records
maintained by the depositary, with respect to interests of participants, and on the records of
participants, with respect to interests of persons holding through participants. The laws of some
states may require that some purchasers of securities take physical delivery of these securities in
definitive form. These laws may impair your ability to own, transfer or pledge beneficial
interests in registered global securities.
So long as the depositary, or its nominee, is the registered owner of a registered global
security, that depositary or its nominee, as the case may be, will be considered the sole owner or
holder of the securities represented by the registered global security for all purposes under the
indenture. Except as described below, owners of beneficial interests in a registered global
security will not be entitled to have the securities represented by
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the registered global security registered in their names, will not receive or be entitled to
receive physical delivery of the securities in definitive form and will not be considered the
owners or holders of the securities under the indenture. Accordingly, each person owning a
beneficial interest in a registered global security must rely on the procedures of the depositary
for that registered global security and, if that person is not a participant, on the procedures of
the participant through which the person owns its interest, to exercise any rights of a holder
under the indenture. We understand that under existing industry practices, if we request any
action of holders or if an owner of a beneficial interest in a registered global security desires
to give or take any action that a holder is entitled to give or take under the indenture, the
depositary for the registered global security would authorize the participants holding the relevant
beneficial interests to give or take that action, and the participants would authorize beneficial
owners owning through them to give or take that action or would otherwise act upon the instructions
of beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt securities represented by a
registered global security registered in the name of a depositary or its nominee will be made to
the depositary or its nominee, as the case may be, as the registered owner of the registered global
security. Neither we nor the trustee or any other agent of ours or the trustee will have any
responsibility or liability for any aspect of the records relating to payments made on account of
beneficial ownership interests in the registered global security or for maintaining, supervising or
reviewing any records relating to those beneficial ownership interests.
We expect that the depositary for any of the securities represented by a registered global
security, upon receipt of any payment of principal, premium, interest or other distribution of
underlying securities or other property to holders on that registered global security, will
immediately credit participants accounts in amounts proportionate to their respective beneficial
interests in that registered global security as shown on the records of the depositary. We also
expect that payments by participants to owners of beneficial interests in a registered global
security held through participants will be governed by standing customer instructions and customary
practices, as is now the case with the securities held for the accounts of customers in bearer form
or registered in street name, and will be the responsibility of those participants.
If the depositary for any of these securities represented by a registered global security is
at any time unwilling or unable to continue as depositary or ceases to be a clearing agency
registered under the Exchange Act, and a successor depositary registered as a clearing agency under
the Exchange Act is not appointed by us within 90 days, we will issue securities in definitive form
in exchange for the registered global security that had been held by the depositary. Any
securities issued in definitive form in exchange for a registered global security will be
registered in the name or names that the depositary gives to the trustee or other relevant agent of
ours or theirs. It is expected that the depositarys instructions will be based upon directions
received by the depositary from participants with respect to ownership of beneficial interests in
the registered global security that had been held by the depositary.
Unless we state otherwise in a prospectus supplement, the Depository Trust Company (DTC)
will act as depositary for each series of debt securities issued as global securities. DTC has
advised us that DTC is a limited-purpose trust company created to hold securities for its
participating organizations (collectively, the Participants) and to facilitate the clearance and
settlement of transactions in those securities between Participants through electronic book-entry
changes in accounts of its Participants. The Participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other organizations. Access to DTCs
system is also available to other entities such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a Participant, either directly or
indirectly (collectively, the Indirect Participants). Persons who are not Participants may
beneficially own securities held by or on behalf of DTC only through the Participants or the
Indirect Participants. The ownership interests in, and transfers of ownership interests in, each
security held by or on behalf of DTC are recorded on the records of the Participants and the
Indirect Participants.
Governing Law
The indenture and each series of debt securities are governed by, and construed in accordance
with, the laws of the State of New York.
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DESCRIPTION OF CAPITAL STOCK
We may from time to time offer shares of our common stock or preferred stock pursuant to this
prospectus. This section describes the general terms of our capital stock. A prospectus supplement
may provide information that is different from this prospectus. If the information in the
prospectus supplement with respect to our capital stock being offered differs from this prospectus,
you should rely on the information in the prospectus supplement. A copy of our third amended and
restated charter has been incorporated by reference from our filings with the SEC as an exhibit to
this registration statement. Our capital stock and the rights of the holders of our capital stock
are subject to the provisions of applicable law, our third amended and restated charter, or
charter, and our second amended and restated bylaws, or bylaws, the rights of the holders of our
preferred stock, if any, with respect to common stock, as well as the terms of our senior
indebtedness and subordinated indebtedness, if any.
The following description of our capital stock and any description of our capital stock in a
prospectus supplement may not be complete and is subject to, and qualified in its entirety by
reference to, Tennessee law and the actual terms and provisions contained in our charter and
bylaws, each as amended or restated from time to time.
General
Our authorized capital stock consists of 600,000,000 shares of common stock, no par value, and
15,000,000 shares of preferred stock, no par value. There were
248,472,497 shares of common stock
outstanding and no shares of preferred stock outstanding as of February 23, 2010.
The issued and outstanding shares of common stock are validly issued, fully paid and
nonassessable. Subject to the prior rights of any preferred stock, the holders of outstanding
shares of common stock are entitled to receive dividends out of assets legally available therefor
at such times and in such amounts as the board of directors may from time to time determine. The
shares of common stock are not redeemable or convertible, and the holders thereof have no
preemptive or subscription rights to purchase any of our securities. Upon our liquidation,
dissolution or winding up, the holders of common stock are entitled to receive pro rata our assets
that are legally available for distribution after payment of all debts and other liabilities and
subject to the prior rights of any holders of preferred stock then outstanding. Each outstanding
share of common stock is entitled to one vote on all matters submitted to a vote of shareholders.
The common stock is listed on the New York Stock Exchange under the symbol KG.
Preferred Stock
While there are currently no shares of preferred stock outstanding, the board of directors has
the authority to authorize the issuance of shares of preferred stock in series, and may, at the
time of issuance, determine the rights, preferences and limitations of each series without any
further action by the shareholders (subject to certain provisions of the charter). Satisfaction of
any dividend preferences of outstanding shares of preferred stock would reduce the amount of funds
available for the payment of dividends on shares of common stock. Additionally, holders of shares
of preferred stock would also be entitled to receive a preference payment in the event of our
liquidation, dissolution or winding-up before any payment is made to the holders of shares of
common stock. Under certain circumstances, the issuance of shares of preferred stock may have the
effect of delaying, deferring or preventing a change in control of our company, or could delay or
prevent a transaction that might otherwise give our shareholders an opportunity to realize a
premium over the then prevailing market price of the common stock. The board of directors, without
shareholder approval, may issue shares of preferred stock with voting and conversion rights which
could adversely affect the holders of shares of common stock. These terms will be described in a
prospectus supplement related to any future offering of preferred stock.
Certain Provisions of the Charter and Bylaws and Statutory Provisions
At the 2007 annual meeting, our shareholders approved an amendment to the companys charter to
provide for the annual election of directors beginning, for each class of directors, at the
expiration of the classs current term. Prior to such amendment, the board of directors was divided
into three classes, with each class serving for three years, and one class being elected each year.
Because the amendment provides that the annual election of directors begins at the expiration of
each class of directors, Kings board of directors will continue to remain partially classified
until the 2010 annual meeting. Until such time, the partial classification of the board of
directors may
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discourage a third party from making a tender offer or otherwise attempting to gain control of our
company and may have the effect of maintaining the incumbency of the board of directors.
The bylaws provide that special meetings of our shareholders can be called only by a majority
of the entire board of directors or by certain officers. In addition, the bylaws provide that
shareholders seeking to bring business before or to nominate directors at any annual meeting of
shareholders must provide timely notice thereof in writing. To be timely, the shareholders notice
must be delivered to, or mailed and received at, our principal executive offices not less than 120
days and not later the close of business of the 90th day prior to the one-year anniversary of the
date of the prior years annual meeting of shareholders; provided, however, that in the event that
the annual meeting is called for a date that is not within 30 days before or after such anniversary
date, in order to be timely, a shareholders notice must be delivered to, or mailed to and received
by, the Secretary at the principal executive offices of the Corporation not earlier than the close
of business on the 120th day prior to such annual meeting and not later than the close of business
on the 10th day following the day on which notice of the date of the annual meeting was mailed or
public announcement of the date of the annual meeting was made, whichever first occurs. The bylaws
also specify the requirements for a shareholders notice to be in proper written form, which
includes certain disclosures that are required to be made by shareholders proposing nominations or
other business. These provisions restrict the ability of shareholders to bring matters before the
shareholders or to make nominations for directors at meetings of shareholders.
Our bylaws also provide that a majority of the remaining directors then in office, though less
than a quorum, will be empowered to fill any vacancy on the board of directors that arises during
the term of a director. Additionally, the charter contains a provision that requires the
affirmative vote of the holders of at least 80% of the outstanding shares of our common stock to
amend the following provisions:
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such supermajority vote provision of the charter; |
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the provision of the charter regarding declassification of the board of
directors; |
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the provision of the bylaws regarding special meetings; |
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the provision of the bylaws regarding business that can be brought before a
shareholder meeting; and |
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the provision of the bylaws regarding nominations of directors. |
We are also subject to some anti-takeover provisions provided under Tennessee law, which are
described below.
Business Combination Statute. Tennessees Business Combination Act provides that a party
owning 10.0% or more of the outstanding voting shares of a resident domestic corporation (this
party is called an interested shareholder) cannot engage in a business combination with the
resident domestic corporation unless the combination (i) takes place at least five years after the
interested shareholder first acquired 10.0% or more of the resident domestic corporation, and (ii)
either (A) is approved by at least two-thirds of the non-interested voting shares of the resident
domestic corporation or (B) satisfies certain fairness conditions specified in the Business
Combination Act.
A business combination with an entity can proceed without delay when approved by the target
corporations board of directors before that entity becomes an interested shareholder, or the
resident corporation may enact a charter amendment or bylaw to remove itself entirely from the
Business Combination Act. This charter amendment or bylaw must be approved by a majority of the
shareholders who have held shares for more than one year prior to the vote and may not take effect
for at least two years after the vote. We have not adopted a charter or bylaw amendment removing
the company from coverage under the Business Combination Act.
The Business Combination Act further provides an exemption from liability for officers and
directors of resident domestic corporations who do not approve proposed business combinations or
charter amendments and bylaws removing their corporations from the Business Combination Acts
coverage. This exemption from liability is available as long as the officers and directors act in
good faith belief that the proposed business combination
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would adversely affect their corporations employees, customers, suppliers, or the communities in
which their corporation operates and when these factors are permitted to be considered by the board
of directors under the charter.
Control Share Acquisition Act. If opted into, the Tennessee Control Share Acquisition Act
strips a purchasers shares of voting rights any time an acquisition of shares in a covered
Tennessee corporation brings the purchasers voting power to one-fifth, one-third or a majority of
all voting power. The purchasers voting rights can be re-established only by a majority vote of
the other shareholders. The purchaser may demand a meeting of shareholders to conduct such a vote.
The purchaser can demand a meeting for this purpose before acquiring a control share only if it
holds at least 10.0% of outstanding shares and announces a good faith intention to make the control
share acquisition. To date, we have not opted into the Tennessee Control Share Acquisition Act.
Tennessee Investor Protection Act. The Tennessee Investor Protection Act, or TIPA, provides
that no offeror beneficially owning 5% or more of any class of equity securities of the offeree
company, any of which was purchased within the preceding year, may make a takeover offer (as
defined in TIPA) for any class of equity security of the offeree company if after completion the
offeror would be a beneficial owner of more than 10% of any class of outstanding equity securities
of the company unless the offeror, before making such purchase: (1) makes a public announcement of
his or her intention with respect to changing or influencing the management or control of the
offeree company; (2) makes a full, fair and effective disclosure of such intention to the person
from whom he or she intends to acquire such securities; and (3) files with the Tennessee
Commissioner of Commerce and Insurance (the Commissioner) and the offeree company a statement
signifying such intentions and containing such additional information as may be prescribed by the
Commissioner.
The offeror must provide that any equity securities of an offeree company deposited or
tendered pursuant to a takeover offer may be withdrawn by an offeree at any time within seven days
from the date the offer has become effective following filing with the Commissioner and the offeree
company and public announcement of the terms or after 60 days from the date the offer has become
effective. If the takeover offer is for less than all the outstanding equity securities of any
class, such an offer must also provide for acceptance of securities pro rata if the number of
securities tendered is greater than the number the offeror has offered to accept and pay for. If
such an offeror varies the terms of the takeover offer before its expiration date by increasing the
consideration offered to offerees, the offeror must pay the increased consideration for all equity
securities accepted, whether accepted before or after the variation in the terms of the offer.
Tennessee Greenmail Act. The Tennessee Greenmail Act prohibits us from purchasing or agreeing
to purchase any of our securities, at a price higher than fair market value, from a holder of 3% or
more of any class of our securities who has beneficially owned the securities for less than two
years. We can make this purchase if the majority of the outstanding shares of each class of voting
stock issued by us approves the purchase or we make an offer of at least equal value per share to
all holders of shares of that class.
The effect of the foregoing Tennessee acts may make a change of control of us harder by
delaying, deferring or preventing a tender offer or takeover attempt that you might consider to be
in your best interest, including those attempts that might result in the payment of a premium over
the market price for your shares. They may also promote the continuity of our management by making
it harder for you to remove or change the incumbent members of the board of directors.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock Transfer & Trust
Company.
DESCRIPTION OF WARRANTS
We may issue warrants from time to time in one or more series for the purchase of our common
stock, debt securities or preferred stock or any combination of those securities. Warrants may be
issued independently or together with any shares of common stock, shares of preferred stock or debt
securities offered by any prospectus supplement and may be attached to or separate from common
stock, preferred stock or debt securities. We will issue
21
each series of warrants under a separate warrant agreement between us and a bank or trust
company as warrant agent, as specified in the applicable prospectus supplement.
The warrant agent will act solely as our agent in connection with the warrants and will not
act for or on behalf of warrant holders. The following sets forth certain general terms and
provisions of the warrants that may be offered under this registration statement. Further terms of
the warrants and the applicable warrant agreement will be set forth in the applicable prospectus
supplement.
The applicable prospectus supplement will describe the terms of the warrants in respect of
which this prospectus is being delivered, including, where applicable, the following:
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the title of the warrants; |
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the total number of warrants; |
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the currency, currencies, including composite currencies or currency units,
in which the price of the warrants may be payable; |
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the type and number of securities purchasable upon exercise of such
warrants; |
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the designation and terms of the other securities, if any, with which such
warrants are issued and the number of such warrants issued with each such offered
security; |
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the date, if any, on and after which the warrants and the related
securities will be separately transferable; |
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if applicable, the date on which the right to exercise the warrants shall
commence and the date on which this right shall expire; |
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the price at which each security purchasable upon exercise of such warrants
may be purchased; |
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if applicable, the minimum or maximum amount of the warrants which may be
exercised at any one time; |
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information with respect to book-entry procedures, if any; |
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any anti-dilution protection; |
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a discussion of U.S. federal income tax considerations relating to the
warrants; and |
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any other terms of the warrants including terms, procedures and limitations
relating to the exchange and exercise of the warrants. |
Warrants may be exchanged for new warrants of different denominations, may be presented for
registration of transfer, and may be exercised at the corporate trust office of the warrant agent
or any other office indicated in the prospectus supplement. Before the exercise of their warrants,
holders of warrants will not have any of the rights of holders of shares of common stock, shares of
preferred stock or debt securities purchasable upon exercise, including the right to receive
payments of principal of, any premium on, or any interest on, the debt securities purchasable upon
such exercise or to enforce the covenants in the indenture or to receive payments of dividends, if
any, on the shares common stock or preferred stock purchasable upon such exercise or to exercise
any applicable right to vote.
Exercise of Warrants
Each warrant will entitle the holder to purchase a principal amount of debt securities or a
number of shares of common stock or preferred stock at an exercise price as shall in each case be
set forth in, or calculable from, the prospectus supplement relating to those warrants. Warrants
may be exercised at the times set forth in the prospectus
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supplement relating to such warrants. After the close of business on the expiration date (or
any later date to which the expiration date may be extended by us), unexercised warrants will
become void. Subject to any restrictions and additional requirements that may be set forth in the
prospectus supplement relating thereto, warrants may be exercised by delivery to the warrant agent
of the certificate evidencing the warrants properly completed and duly executed and of payment as
provided in the prospectus supplement of the amount required to purchase the debt securities or
shares of common stock or shares of preferred stock purchasable upon such exercise. The exercise
price will be the price applicable on the date of payment in full, as set forth in the prospectus
supplement relating to the warrants. Upon receipt of the payment and the certificate representing
the warrants to be exercised properly completed and duly executed at the corporate trust office of
the warrant agent or any other office indicated in the prospectus supplement, we will, as soon as
practicable, issue and deliver the debt securities, shares of common stock or shares of preferred
stock purchasable upon such exercise. If fewer than all of the warrants represented by that
certificate are exercised, a new certificate will be issued for the remaining amount of warrants.
DESCRIPTION OF SUBSCRIPTION RIGHTS
The following description of subscription rights provides certain general terms and provisions
of subscription rights that we may offer. Each series of subscription rights will be issued under a
separate rights agreement to be entered into between us and a bank or trust company, as rights
agent, all as set forth in the prospectus supplement relating to the particular issue of
subscription rights. The rights agent will act solely as our agent in connection with the
certificates relating to the subscription rights of such series and will not assume any obligation
or relationship of agency or trust for or with any holders of subscription rights certificates or
beneficial owners of subscription rights. These subscription rights may be issued independently or
together with any other security offered hereby and may be attached to or separate from such
security. These subscription rights may or may not be transferable by the person receiving the
subscription rights in such offering. In connection with any offering of subscription rights, we
may enter into a standby underwriting, backstop, or other arrangement with one or more underwriters
or other persons pursuant to which the underwriters or other persons may be required to purchase
all or a portion of any securities remaining unsubscribed for after such offering.
Certain other terms of any subscription rights will be described in the applicable prospectus
supplement. To the extent that any particular terms of any subscription rights described in a
prospectus supplement differ from any of the terms described in this prospectus, then those
particular terms described in this prospectus shall be deemed to have been superseded by that
prospectus supplement. The description in the applicable prospectus supplement of any subscription
rights we offer will not necessarily be complete and will be qualified in its entirety by reference
to the applicable subscription rights certificate, which will be filed as an exhibit to the
registration statement of which this prospectus is a part or to a document that is incorporated or
deemed to be incorporated by reference in this prospectus. For more information on how you may
obtain copies of any subscription rights certificate if we offer subscription rights, see Where
You Can Find Additional Information. We urge you to read the applicable subscription rights
certificate and any applicable prospectus supplement in their entirety.
General
Reference is made to the applicable prospectus supplement for the terms of the subscription
rights to be offered, including (where applicable):
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the date for determining the stockholders entitled to the subscription
rights distribution; |
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the price, if any, for the subscription rights; |
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the exercise price, or a formula for the determination of the exercise
price, payable for each share of common stock, share of preferred stock or debt
security upon the exercise of the subscription rights; |
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the title and number of subscription rights issued;
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the number and terms of the shares of common stock or preferred stock or
the amount and terms of the debt securities which may be purchased per subscription
right; |
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the extent to which the subscription rights are transferable; |
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the date on which the right to exercise the subscription rights shall
commence, and the date on which the subscription rights shall expire (subject to any
extension); |
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the extent to which the subscription rights may include an
over-subscription privilege with respect to unsubscribed securities; |
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if applicable, the material terms of any standby underwriting, backstop or
other purchase arrangement entered into by us in connection with the offering of
subscription rights; |
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if applicable, the procedures for adjusting the exercise price and number
of shares of common stock or preferred stock purchasable upon the exercise of each
subscription right upon the occurrence of certain events, including stock splits,
reverse stock splits, combinations, subdivisions or reclassifications of common stock
or preferred stock; |
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the effect of any merger, consolidation, sale or other disposition of our
business on the subscription rights; |
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the terms of any rights to redeem or call the subscription rights; |
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if applicable, a discussion of certain U.S. federal income tax
consequences; and |
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any other terms of the subscription rights, including the terms, procedures
and limitations relating to the exercise of the subscription rights. |
Exercise of Subscription Rights
Each subscription right will entitle the holder to purchase such number of shares of common
stock or preferred stock or such amount of debt securities, as the case may be, at such exercise
price as shall be set forth in, or shall be determinable as set forth in, the applicable prospectus
supplement. Subscription rights may be exercised at the times and in the manner set forth in the
applicable prospectus supplement. After the close of business on the expiration date set forth in
the applicable prospectus supplement, the subscription rights will become void. The applicable
prospectus supplement will specify how the exercise price of any subscription right is to be paid.
Upon receipt of payment of the exercise price and, if required, the certificate representing the
subscription rights being exercised properly completed and duly executed at the office or agency
designated for that purpose, we will promptly deliver the securities to be delivered upon such
exercise. If less than all of the subscription rights represented by such subscription certificate
are exercised, a new subscription certificate will be issued for the remaining subscription rights.
If we so indicate in the applicable prospectus supplement, holders of the subscription rights may
surrender securities as all or part of the exercise price for subscription rights. We may determine
to offer any unsubscribed offered securities directly to stockholders, persons other than
stockholders, to or through agents, underwriters or dealers or through a combination of such
methods, including pursuant to standby underwriting, backstop or other arrangements, as set forth
in the applicable prospectus supplement.
No Rights as Holders of Shares or Debt Securities
Holders of subscription rights to purchase shares of common stock or preferred stock will not
be entitled, by virtue of being such holders, to vote, consent or receive notice as holders of our
outstanding shares in respect of any meeting of holders of our shares for the election of our
directors or any other matter, or to exercise any other rights whatsoever as holders of our shares,
or to receive any distributions, if any, on our shares. Holders of subscription rights to purchase
debt securities will not be entitled, by virtue of being such holders, to receive principal,
premium, if any, or interest payments, on the debt securities purchasable upon exercise or to
enforce covenants in the applicable indenture.
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PLAN OF DISTRIBUTION
We may sell the securities from time to time in one or more transactions, including block
transactions and transactions on the New York Stock Exchange or on a delayed or continuous basis,
in each case, through agents, underwriters or dealers, directly to one or more purchasers, through
a combination of any of these methods of sale, or in any other manner, as provided in the
applicable prospectus supplement. The securities may be sold at a fixed price or prices, which may
be changed, or at market prices prevailing at the time of sale, at prices relating to the
prevailing market prices or at negotiated prices. The consideration may be cash or another form
negotiated by the parties. Agents, underwriters or broker-dealers may be paid compensation for
offering and selling the securities. That compensation may be in the form of discounts, concessions
or commissions to be received from us or from the purchasers of the securities. We will identify
the specific plan, including any underwriters, dealers, agents or direct purchasers and their
compensation, in the applicable prospectus supplement. Underwriters, dealers and agents
participating in the distribution of the securities may be deemed to be underwriters, and any
discounts and commissions received by them from us or from purchasers of the securities and any
profit realized by them on resale of the securities may be deemed to be underwriting discounts and
commissions under the Securities Act. If such dealers or agents were deemed to be underwriters,
they may be subject to statutory liabilities under the Securities Act. Underwriters, dealers and
agents may be entitled, under agreements entered into with us, to indemnification against and
contribution toward certain civil liabilities, including liabilities under the Securities Act.
Offers to purchase the securities may be solicited by agents designated by us from time to
time. Any such agent involved in the offer or sale of the securities will be named, and any
commissions payable by the company to such agent will be set forth in the prospectus supplement.
Unless otherwise indicated in the prospectus supplement, any such agent will be acting on a best
efforts basis for the period of its appointment. Any such agent may be deemed to be an underwriter,
as that term is defined in the Securities Act, of the securities so offered and sold.
If an underwriter or underwriters are utilized in the sale of securities, we will execute an
underwriting agreement with such underwriter or underwriters at the time an agreement for such sale
is reached, and the names of the specific managing underwriter or underwriters, as well as any
other underwriters, and the terms of the transactions, including compensation of the underwriters
and dealers, if any, will be set forth in the prospectus supplement, which will be used by the
underwriters to resell the securities.
If a dealer is utilized in the sale of the securities, we will sell such securities to the
dealer, as principal. The dealer may then resell such securities to the public at varying prices to
be determined by such dealer at the time of resale. The name of the dealer and the terms of the
transactions will be set forth in the prospectus supplement relating thereto.
Offers to purchase the securities may be solicited directly by us and sales thereof may be
made by us directly to institutional investors or others. The terms of any such sales, including
the terms of any bidding or auction prices, if utilized, will be described in the prospectus
supplement relating thereto.
Agents, underwriters and dealers may be entitled under agreements that may be entered into
with us to indemnification by us against certain liabilities, including liabilities under the
Securities Act, and any such agents, underwriters or dealers, or their affiliates may be customers
of, engage in transactions with or perform services for us in the ordinary course of business.
If so indicated in the prospectus supplement, we will authorize agents and underwriters to
solicit offers by certain institutions to purchase debt securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery contracts (Contracts)
providing for payment and delivery on the date stated in the prospectus supplement. Such Contracts
will be subject to only those conditions set forth in the prospectus supplement. Each Contract will
be for an amount not less than, and the principal amount of securities sold pursuant to Contracts
shall not be less nor more than, the respective amounts stated in such prospectus supplement.
Institutions with which Contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational and charitable
institutions and other institutions, but will in all cases be subject to our approval. Contracts
will not be subject to any conditions except (i) the purchase by an institution of the securities
covered by its Contract shall not at the time of delivery be prohibited
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under the laws of any jurisdiction in the United States to which such institution is subject
and (ii) we shall have sold to such underwriters the total principal amount of the securities less
the principal amount thereof covered by Contracts. A commission indicated in the prospectus
supplement will be paid to underwriters and agents soliciting purchases of debt securities pursuant
to Contracts accepted by us.
The securities may also be resold by security holders in the manner provided in the applicable
prospectus supplement.
LEGAL MATTERS
Certain legal matters will be passed upon for King by Bass, Berry & Sims PLC, Nashville,
Tennessee. Any underwriters or agents will be represented by their own legal counsel, who will be
passing upon certain legal matters for the underwriters and will be identified in the applicable
prospectus supplement.
EXPERTS
The audited consolidated financial statements of King and the effectiveness of internal
control over financial reporting incorporated in this prospectus by reference to our Annual Report
on Form 10-K for the fiscal year ended December 31, 2009, have been so incorporated in reliance on
the reports of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given
on the authority of said firm as experts in auditing and accounting.
INCORPORATION OF INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the information we file with them, which means
that we can disclose important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this prospectus, and information
that we file later with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below (except the information contained in such
documents to the extent that it is furnished and not filed):
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Annual Report on Form 10-K for the year ended December 31, 2009 filed on
February 25, 2010. |
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Current Report on Form 8-K filed on February 12, 2010. |
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The description of our capital stock contained in our Registration Statement on
Form 8-A filed on May 12, 2000, including any amendments or reports filed for the
purpose of updating such description. |
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All documents filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act after this prospectus and prior to the termination of the offering. |
Notwithstanding the foregoing, we are not incorporating by reference any information furnished
under Item 2.02 or Item 7.01 of any Current Report on Form 8-K (including financial statements or
exhibits relating thereto furnished pursuant to Item 9.01).
Any statement contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this prospectus to the extent
that a statement contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein or in any prospectus supplement modifies or
supersedes such statement. Any statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this prospectus.
You may request, and we will provide, a copy of our filings incorporated by reference at no
cost, by writing or telephoning us at the following address:
King Pharmaceuticals, Inc.
501 Fifth Street
Bristol, Tennessee 37620
Attn: Assistant Secretary
Telephone: (423) 989-8000
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This prospectus is part of a registration statement that we have filed with the SEC relating
to the securities to be offered. This prospectus does not contain all of the information we have
included in the registration statement and the accompanying exhibits and schedules in accordance
with the rules and regulations of the SEC and we refer you to the omitted information. You should
rely only on the information contained in this prospectus, any prospectus supplement or free
writing prospectus or any document to which we have referred you. We have not authorized anyone
else to provide you with information that is different. This prospectus and any prospectus
supplement or free writing prospectus may be used only where it is legal to sell these securities.
The information in this prospectus or any prospectus supplement or free writing prospectus is
current only as of the date on the front of these documents.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the
SEC. Our SEC filings are also available over the Internet at the SECs web site at
http://www.sec.gov. You may also read and copy any document we file at the SECs public reference
room at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 to obtain information on the operation of the public reference room. Our web site
address is www.kingpharm.com. Please note that our web site address is provided as an inactive
textual reference only. The information provided on our web site is not part of this prospectus or
the prospectus supplement, and is therefore not incorporated by reference unless such information
is otherwise specifically referenced elsewhere in this prospectus or the prospectus supplement. We
make available free of charge through our web site our Annual Report on Form 10-K, Quarterly
Reports on Form 10-Q, Current Reports on Form 8-K, Proxy Statement on Schedule 14A and all
amendments to those reports as soon as reasonably practicable after such material is electronically
filed with or furnished to the SEC.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth an estimate of costs and expenses to be paid by us in
connection with the distribution of the securities being registered by this registration statement.
In addition to the costs and expenses estimated below, we may pay any selling commissions and
brokerage fees and any applicable fees and disbursements with respect to the securities registered
by this registration statement that we may sell, but these fees cannot be predicted with any
certainty at this time. All of the amounts shown are estimates:
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Securities and Exchange Commission Fee |
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New York Stock Exchange Listing Fee |
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Printing and Engraving Expenses |
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Legal Fees and Expenses |
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Accounting Fees and Expenses |
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Miscellaneous |
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Total |
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** |
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Omitted because the registration fee is being deferred pursuant to Rule 456(b). |
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Estimated expenses are not presently known. |
Item 15. Indemnification of Directors and Officers.
The Tennessee Business Corporation Act, or TBCA, provides that a corporation may indemnify any
of its directors and officers against liability incurred in connection with a proceeding if: (a)
such person acted in good faith; (b) in the case of conduct in an official capacity with the
corporation, he reasonably believed such conduct was in the corporations best interests; (c) in
all other cases, he reasonably believed that his conduct was at least not opposed to the best
interests of the corporation; and (d) in connection with any criminal proceeding, such person had
no reasonable cause to believe his conduct was unlawful. In actions brought by or in the right of
the corporation, however, the TBCA provides that no indemnification may be made if the director or
officer was adjudged to be liable to the corporation. The TBCA also provides that in connection
with any proceeding charging improper personal benefit to an officer or director, no
indemnification may be made if such officer or director is adjudged liable on the basis that such
personal benefit was improperly received. In cases where the director or officer is wholly
successful, on the merits or otherwise, in the defense of any proceeding instigated because of his
or her status as a director or officer of a corporation, the TBCA mandates that the corporation
indemnify the director or officer against reasonable expenses incurred in the proceeding. The TBCA
provides that a court of competent jurisdiction, unless the corporations charter provides
otherwise, upon application, may order that an officer or director be indemnified for reasonable
expenses incurred if, in consideration of all relevant circumstances, the court determines that
such individual is fairly and reasonably entitled to indemnification, notwithstanding the fact that
(a) such officer or director was adjudged liable to the corporation in a proceeding by or in the
right of the corporation; (b) such officer or director was adjudged liable on the basis that
personal benefit was improperly received by him; or (c) such officer or director breached his duty
of care to the corporation.
Our charter provides that our directors, officers and employees will be entitled to all
indemnification rights and protections available under Tennessee law. Our bylaws provide that our
directors and officers will be indemnified and advanced expenses with respect to claims of
liabilities arising out of service as a director or officer to the fullest extent allowed by
Tennessee law. In addition, the bylaws provide that in the event we indemnify or make any
advancement of expenses, our Secretary will, in writing, report such action to the shareholders
with or before the notice of the next shareholders meeting.
The TBCA also permits the inclusion of a provision in the charter of a Tennessee
corporation that, with certain exceptions, eliminates the personal monetary liability of directors
to the corporation or its shareholders for a
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breach of the duty of care. Our charter provides that our directors shall not have or owe any
personal liability to us or our shareholders for monetary damages for breach of fiduciary duty as a
director. The provision, however, does not eliminate or limit the liability of a director for:
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a breach of the directors duty of loyalty to us or our shareholders; |
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an act or omission not in good faith or which involves intentional misconduct or a
knowing violation of law; or |
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an unlawful distribution. |
In addition, we maintain liability insurance for our directors and officers and the
directors and officers of our subsidiaries.
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Item 16. Exhibits.
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Exhibit |
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Number |
|
Exhibit Description |
1.1*
|
|
Form of Underwriting Agreement |
|
|
|
1.2*
|
|
Form of Underwriting Agreement for Debt Securities |
|
|
|
2.1
|
|
Stock and Asset Purchase Agreement among Alpharma Inc., Alpharma
(Luxembourg) S.ar.l., Alpharma Bermuda G.P., and Alpharma
International (Luxembourg) S.ar.l., Alfanor 7152 AS (under
change of name to Otnorbidco AS), Otdenholdco ApS and
Otdelholdco Inc., dated February 6, 2008 (Previously filed as an Exhibit to the Registrants Current Report on Form 8-K filed on February
7, 2008 and incorporated by reference herein) |
|
|
|
2.2
|
|
Agreement and Plan of Merger, dated as of November 23, 2008,
among King Pharmaceuticals, Inc., Albert Acquisition Corp. and
Alpharma Inc. (Previously filed as an Exhibit to the Registrants Current Report on Form 8-K filed on November
24, 2008 and incorporated by reference herein) |
|
|
|
3.1
|
|
Third Amended and Restated Charter of King Pharmaceuticals, Inc. (Previously filed as
an Exhibit to the Registrants Quarterly Report on Form 10-Q filed on August 7, 2007,
and incorporated by reference herein) |
|
|
|
3.2
|
|
Second Amended and Restated Bylaws of King Pharmaceuticals, Inc. (Previously filed as an
Exhibit to the Registrants Current Report on Form 8-K, filed September 17, 2009, and
incorporated by reference herein) |
|
|
|
4.1
|
|
Specimen certificate representing the Registrants common stock (Previously filed as an
Exhibit to the Registrants Registration Statement on Form S-1 (File No. 333-38753),
filed October 24, 1997, as amended, and incorporated by reference herein) |
|
|
|
4.2*
|
|
Form of Preferred Stock Certificate and Form of Designation of Preferred Stock |
|
|
|
4.3
|
|
Form of Indenture |
|
|
|
4.4*
|
|
Form of Debt Security |
|
|
|
4.5*
|
|
Form of Warrant Agreement (including Form of Warrant Certificate) |
|
|
|
4.6*
|
|
Form of Subscription Rights Agreement (Including Form of Subscription Rights Certificate) |
|
|
|
5.1
|
|
Opinion of Bass, Berry & Sims PLC |
|
|
|
12.1
|
|
Statement of computation of consolidated ratio of earnings to fixed charges |
|
|
|
23.1
|
|
Consent of PricewaterhouseCoopers LLP |
|
|
|
23.2
|
|
Consent of Bass, Berry & Sims PLC (included in Exhibit 5.1) |
II-3
|
|
|
Exhibit |
|
|
Number |
|
Exhibit Description |
24.1
|
|
Power of Attorney (included in Part II of this Registration Statement) |
|
|
|
* |
|
To be filed, if necessary, as an exhibit to a post-effective amendment to this registration
statement or as an exhibit to a Current Report on Form 8-K and incorporated herein by reference. |
Item 17. Undertakings.
(a) |
|
The undersigned Registrant hereby undertakes: |
|
(1) |
|
To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement: |
|
(i) |
|
To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the Securities Act); |
|
|
(ii) |
|
To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
registration statement; and |
|
|
(iii) |
|
To include any material information with respect to the plan
of distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement; |
|
|
|
|
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the SEC by the Registrant pursuant to Sections 13 or
15(d) of the Securities Exchange Act of 1934, as amended (the Exchange
Act) that are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement. |
|
(2) |
|
That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof. |
|
|
(3) |
|
To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering. |
|
|
(4) |
|
That, for the purpose of determining liability under the Securities Act to any
purchaser: |
|
(i) |
|
Each prospectus filed by the Registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration
statement; and |
|
|
(ii) |
|
Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by Section 10(a) of
the Securities Act shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule
430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such
|
II-4
|
|
|
date shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration statement to
which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to
such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date. |
|
(5) |
|
That, for the purpose of determining liability of the Registrant under the
Securities Act to any purchaser in the initial distribution of the securities, the
undersigned Registrant undertakes that in a primary offering of securities of the
undersigned Registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following communications, the
undersigned Registrant will be a seller to the purchaser and will be considered to
offer or sell such securities to such purchaser: |
|
(i) |
|
Any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed pursuant to Rule 424; |
|
|
(ii) |
|
Any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned Registrant or used or referred to by the
undersigned Registrant; |
|
|
(iii) |
|
The portion of any other free writing prospectus relating to
the offering containing material information about the undersigned Registrant
or its securities provided by or on behalf of the undersigned Registrant; and |
|
|
(iv) |
|
Any other communication that is an offer in the offering made
by the undersigned Registrant to the purchaser. |
|
(b) |
|
The undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the Registrants annual report pursuant to Section
13(a) or 15(d) of the Exchange Act and (and, where applicable, each filing of an employee
benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. |
|
|
(c) |
|
The undersigned registrant hereby undertakes to supplement the prospectus, after the
expiration of the subscription period, to set forth the results of the subscription offer, the
transactions by the underwriters during the subscription period, the amount of unsubscribed
securities to be purchased by the underwriters, and the terms of any subsequent reoffering
thereof. If any public offering by the underwriters is to be made on terms differing from
those set forth on the cover page of the prospectus, a post-effective amendment will be filed
to set forth the terms of such offering. |
|
|
(d) |
|
Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to directors, officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction |
II-5
|
|
|
the question whether such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue. |
|
|
(e) |
|
The undersigned Registrant hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust
Indenture Act (Act) in accordance with the rules and regulations prescribed by the SEC under
section 305(b)(2) of the Act. |
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Bridgewater, State of New Jersey, on February 25, 2010.
|
|
|
|
|
|
KING PHARMACEUTICALS, INC.
|
|
|
By: |
/s/ Brian A. Markison
|
|
|
|
Brian A. Markison |
|
|
|
Chairman of the Board,
President and Chief Executive Officer |
|
II-7
SIGNATURE PAGE AND POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears below hereby
constitutes and appoints Brian A. Markison and John Squicciarino (with full power to each of them
to act alone) as his true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him and in his name, place and stead in any and all capacities to sign any
and all amendments or post-effective amendments to this Registration Statement, and to file the
same with all exhibits thereto and other documents in connection therewith, with the Securities and
Exchange Commission, to sign any and all applications, registration statements, notices or other
document necessary or advisable to comply with the applicable state securities laws, and to file
the same, together with all other documents in connection therewith, with the appropriate state
securities authorities, granting unto said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, thereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been
signed by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
Signature |
|
Capacity |
|
Date |
|
|
|
|
|
/s/ BRIAN A. MARKISON
Brian A. Markison
|
|
Chairman, President and Chief Executive
Officer (Principal Executive Officer)
|
|
February 25, 2010 |
|
|
|
|
|
/s/ JOSEPH SQUICCIARINO
Joseph Squicciarino
|
|
Chief Financial Officer
(Principal Financial and Accounting Officer)
|
|
February 25, 2010 |
|
|
|
|
|
/s/ TED G. WOOD
Ted G. Wood
|
|
Director
|
|
February 25, 2010 |
|
|
|
|
|
/s/ KEVIN S. CRUTCHFIELD
Kevin S. Crutchfield
|
|
Director
|
|
February 25, 2010 |
|
|
|
|
|
|
|
Director |
|
|
Earnest W. Deavenport, Jr.
|
|
|
|
|
|
|
|
|
|
/s/ ELIZABETH M. GREETHAM
Elizabeth M. Greetham
|
|
Director
|
|
February 25, 2010 |
|
|
|
|
|
/s/ PHILIP A. INCARNATI
Philip A. Incarnati
|
|
Director
|
|
February 25, 2010 |
|
|
|
|
|
/s/ GREGORY D. JORDAN
Gregory D. Jordan
|
|
Director
|
|
February 25, 2010 |
|
|
|
|
|
/s/ R. CHARLES MOYER
R. Charles Moyer
|
|
Director
|
|
February 25, 2010 |
II-8
|
|
|
|
|
Signature |
|
Capacity |
|
Date |
|
|
|
|
|
/s/ D. GREG ROOKER
D. Greg Rooker
|
|
Director
|
|
February 25, 2010 |
|
|
|
|
|
/s/ DERACE L. SCHAFFER, M.D.
Derace L. Schaffer, M.D.
|
|
Director
|
|
February 25, 2010 |
II-9
EXHIBIT INDEX
|
|
|
Exhibit |
|
|
Number |
|
Exhibit Description |
1.1*
|
|
Form of Underwriting Agreement |
|
|
|
1.2*
|
|
Form of Underwriting Agreement for Debt Securities |
|
|
|
2.1
|
|
Stock and Asset Purchase Agreement among Alpharma Inc., Alpharma
(Luxembourg) S.ar.l., Alpharma Bermuda G.P., and Alpharma
International (Luxembourg) S.ar.l., Alfanor 7152 AS (under
change of name to Otnorbidco AS), Otdenholdco ApS and
Otdelholdco Inc., dated February 6, 2008 (Previously filed as an Exhibit to the Registrants Current Report on Form 8-K filed on February
7, 2008 and incorporated by reference herein) |
|
|
|
2.2
|
|
Agreement and Plan of Merger, dated as of November 23, 2008,
among King Pharmaceuticals, Inc., Albert Acquisition Corp. and
Alpharma Inc. (Previously filed as an Exhibit to the Registrants Current Report on Form 8-K filed on November
24, 2008 and incorporated by reference herein) |
|
|
|
3.1
|
|
Third Amended and Restated Charter of King Pharmaceuticals, Inc. (Previously filed as
an Exhibit to the Registrants Quarterly Report on Form 10-Q filed on August 7, 2007,
and incorporated by reference herein) |
|
|
|
3.2
|
|
Second Amended and Restated Bylaws of King Pharmaceuticals, Inc. (Previously filed as an
Exhibit to the Registrants Current Report on Form 8-K, filed September 17, 2009, and
incorporated by reference herein) |
|
|
|
4.1
|
|
Specimen certificate representing the Registrants common stock (Previously filed as an
Exhibit to the Registrants Registration Statement on Form S-1 (File No. 333-38753),
filed October 24, 1997, as amended, and incorporated by reference herein) |
|
|
|
4.2*
|
|
Form of Preferred Stock Certificate and Form of Designation of Preferred Stock |
|
|
|
4.3
|
|
Form of Indenture |
|
|
|
4.4*
|
|
Form of Debt Security |
|
|
|
4.5*
|
|
Form of Warrant Agreement (including Form of Warrant Certificate) |
|
|
|
4.6*
|
|
Form of Subscription Rights Agreement (Including Form of Subscription Rights Certificate) |
|
|
|
5.1
|
|
Opinion of Bass, Berry & Sims PLC |
|
|
|
12.1
|
|
Statement of computation of consolidated ratio of earnings to fixed charges |
|
|
|
23.1
|
|
Consent of PricewaterhouseCoopers, LLP |
II-10
|
|
|
Exhibit |
|
|
Number |
|
Exhibit Description |
23.2
|
|
Consent of Bass, Berry & Sims PLC (included in Exhibit 5.1) |
|
|
|
24.1
|
|
Power of Attorney (included in Part II of this Registration Statement) |
|
|
|
* |
|
To be filed, if necessary, as an exhibit to a post-effective amendment to this registration
statement or as an exhibit to a Current Report on Form 8-K and incorporated herein by reference. |
II-10