Supplemental Agreement - ICN Pharmaceuticals Inc. and Ansbacher (Guernsey) Ltd.
SUPPLEMENTAL AGREEMENT, dated as of October 31, 1994, between ICN
Pharmaceuticals, Inc. a Delaware corporation with principal offices at 3300
Hyland Avenue, Costa Mesa, California 92626, United States of America ("ICN"),
ICN Subsidiary Corp., a Delaware corporation ("New Biomedicals"), ICN Merger
Corp., a Delaware corporation whose principal office is at 3300 Hyland Ave.,
Costa Mesa, California 92626, United States of America ("New ICN"), and
Ansbacher (Guernsey) Limited, as trustee for Bio Capital Holding (the
"Trustee").
WHEREAS, on January 26, 1987, pursuant to a bond issue agreement ("the
Bond Issue Agreement") of the same date between ICN and the Trustee, the
Trustee purchased 15 series of Zero Coupon ECU Bonds due each February 17, 1988
through 2002 (the "Bonds") issued by ICN Biomedicals, Inc. ("Biomedicals") and
guaranteed by ICN Pharmaceuticals, Inc. ("ICN") pursuant to a Guaranty, dated
February 17, 1987 (the "Guaranty");
WHEREAS, on the date hereof, the aggregate future payments of the
Bonds through maturity would be SFr. 17,430,600;
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated
August 1, 1994, among New ICN, ICN, Biomedicals, SPI Pharmaceuticals, Inc. and
Viratek, Inc., as amended, ICN and certain affiliates of ICN, other than
Biomedicals, will be merged (the "ICN Merger") into New ICN and Biomedicals
will be merged into New Biomedicals (the "Biomedicals Merger" and together with
the ICN Merger, the "Mergers");
WHEREAS, New ICN will be the surviving corporation of the Merger and
New Biomedicals will be the surviving corporation of the Biomedicals Merger
and, upon the effectiveness of the Mergers, New ICN will change its name to ICN
Pharmaceuticals, Inc. and New Biomedicals will change its name to ICN
Biomedicals, Inc.;
WHEREAS, New ICN desires to assume all obligations of ICN under the
Guaranty, the Terms of the Bonds, the Bond Issue Agreement and the Bio Capital
Holding Trust Instrument, dated January 26, 1987 (the "Trust Instrument"),
between Biomedicals, ICN and the Trustee and New Biomedicals desires to assume
all obligations of Biomedicals under the Bonds and the Trust Instrument;
NOW THEREFORE, in consideration of the premises herein set forth the
parties hereto agree as follows:
1. Assumption. In satisfaction of the requirements of Section 9(f) of
the Terms of the Bonds and in consideration of the respective obligations
undertaken herein, New ICN hereby expressly and unconditionally agrees to have
the rights and assumes any and all obligations of ICN under the Guaranty, the
Terms of the Bonds, the Bond Issue Agreement, the Trust Instrument and New
Biomedicals hereby expressly and unconditionally assumes any and all
obligations of Biomedicals under the Terms of the Bonds and the Trust
Instrument.
2. Release. The Trustee shall release ICN from its obligation to the
Trustee under the Terms of the Bonds, the bond Issue Agreement, and the Trust
Instrument and ICN shall release the Trustee from its obligations to ICN
thereunder and the Trustee and ICN shall each be released from further
obligations tot he other thereunder and their respective rights against each
other shall be discharged.
3. Confirmation. The Guaranty, the Terms of the Bonds and the Trust
Instrument (mutatis mutandis) are in all respects confirmed and preserved.
4. Effectiveness. Subject to clause 5 hereof, this Agreement shall
become effective immediately upon the filing of the Certificates of Merger
evidencing the Mergers with the Secretary of State of the State of Delaware -
("the Merger Date").
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5. Conditions Precedent. This Agreement shall be conditional upon
there having been delivered to the Trustee on or prior to the Merger Date in
agreed form an opinion from Richards, Layton & Finger relating to the Merger
and such other resolutions, consents, authorities, agreements and documents
relating to this Agreement as the Trustee may reasonably require.
6. Counterparts. This Supplemental Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
7. Governing Law. This Supplemental Agreement shall be construed in
accordance with and governed by the laws of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Agreement to be duly executed, as of the date and year first above written.
ICN MERGER CORP.
By:
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Name: John E. Giordani
Titles: Director and Vice President
ICN BIOMEDICALS, INC.
By:
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ICN SUBSIDIARY CORP.
By:
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ANSBACHER (GUERNSEY) LIMITED,
as trustee for Bio Capital Holding
By:
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ICN PHARMACEUTICALS, INC.
By:
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