Supplemental Agreement - ICN Pharmaceuticals Inc and Bank Leu AG
SUPPLEMENTAL AGREEMENT, dated as of October 14, 1994, between ICN
Merger Corp., a Delaware corporation ("New ICN"), and Bank Leu AG (the
"Principal Exchange Agent"), as principal exchange agent of the 5-5/8%
certificates due February 5, 2001 (the "Certificates") issued by Xr Capital
Holding, a Guernsey, Channel Island, trust (the "Trust");
WHEREAS on September 17, 1986 Ansbacher (Guernsey) Limited
("Ansbacher"), as trustee for the Trust, ICN Pharmaceuticals, Inc. ("ICN"), SPI
Pharmaceuticals, Inc. ("SPI") and Banque Gutzwiller, Kurz, Bungener, S.A.
("Gutzwiller") as representative of a consortium of Swiss financial
institutions (the "Banks") entered into a Subscription Agreement (the
"Subscription Agreement") pursuant to which the Trust issued SFr. 100,000,000
aggregate principal amount of the Certificates, and, concurrently therewith,
ICN, SPI, Gutzwiller and the Banks entered into an Exchange Agency Agreement
(the "Exchange Agency Agreement") pursuant to which Gutzwiller was appointed as
principal exchange agent for the exchange of the Certificates in accordance
with the Exchange Provisions attached to the Exchange Agency Agreement (the
"Exchange Provisions");
WHEREAS, each Certificate is exchangeable as follows: (i) 100% of its
face amount for common stock, $1.00 par value (the "ICN Common Stock"), of ICN
at an exchange price immediately prior to the Merger (as defined herein) of
$24.09638554 (the "ICN Exchange Price") or (ii) 50% of its face amount for ICN
Common Stock at the ICN Exchange Price and 50% of its face amount into common
stock, $.01 par value, of SPI (the "SPI Common Stock") at an exchange price
immediately prior to the Merger of $20.74824 (the "SPI Exchange Price");
WHEREAS, on the date hereof, Certificates with an aggregate principal
amount of SFr. 66,510,000 are outstanding;
WHEREAS, Gutzwiller previously changed its name to Bank Leu (Geneva)
S.A. and Bank Leu (Geneva) S.A. was subsequently merged into the Principal
Exchange Agent;
WHEREAS, in November 1992, the name of the Trustee changed from
Ansbacher (C.I.) Limited to International Bank & Trust Company and on September
29, 1994, the name of the Trustee changed from International Bank and Trust
Company (Guernsey) Limited to Ansbacher (Guernsey) Limited;
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated
as of August 1, 1994 (the "Merger Agreement"), among ICN, SPI, Viratek, Inc.,
ICN Biomedicals, Inc. and New ICN, it is intended that ICN, SPI and one or more
affiliates of ICN and SPI will be merged into New ICN (the "Merger");
WHEREAS, New ICN will be the surviving corporation of the Merger and,
upon the effectiveness thereof, New ICN will change its name to ICN
Pharmaceuticals, Inc.;
WHEREAS, Section 6 of the Exchange Provisions provides that, in the
event of a merger in which ICN or SPI are not the surviving corporation, the
surviving corporation shall enter into a supplemental agreement with the
principal exchange agent which shall (a) provide that the holder of each
Certificate then outstanding shall have the right to receive thereafter during
the period such Certificate shall be exchangeable upon exchange thereof in lieu
of each share of ICN Common Stock or SPI Common Stock deliverable upon such
exchange immediately prior to such event, only the kind and amount of shares
and/or other securities and/or property and/or cash which are receivable, upon
such merger by a holder of one share of ICN Common Stock or SPI Common Stock,
as the case may be, and (b) set forth the Applicable Exchange Price (as defined
therein) for the shares and/or other securities and/or property and/or cash so
issueable, which shall be an amount equal to the Applicable Exchange Price per
share of ICN Common Stock or SPI Common Stock, as the case may be, immediately
prior to such event; and
WHEREAS, New ICN desires to enter into such supplemental agreement;
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NOW THEREFORE, in consideration of the premises herein set forth and
in order to comply with Section 6 of the Exchange Provisions, the parties
hereto agree as follows:
1. In compliance with Section 6 of the Exchange Provisions, on
and after the date hereof until January 10, 2001 the holder of each Certificate
shall be entitled to receive upon exchange of his or her Certificate in
accordance with the provisions of the terms of the Certificates (the "Terms of
the Certificates") and the Exchange Provisions, (a) in lieu of each share of
ICN Common Stock deliverable to such holder immediately prior to the date
hereof, 0.512 shares of common stock, $.01 par value, of New ICN (the "New ICN
Common Stock") and (b) in lieu of each share of the SPI Common Stock
deliverable to such holder immediately prior to the date hereof one share of
New ICN Common Stock.
2. On and after the date hereof the exchange price for such 0.512
shares of New ICN Common Stock deliverable to the holder of a Certificate upon
exchange thereof in lieu of one share of ICN Common Stock shall be
$24.09638554, which amount equals the ICN Exchange Price in effect immediately
prior to the Merger, and the exchange price for such share of New ICN Common
Stock deliverable to a holder of a Certificate upon exchange thereof in lieu of
one share of SPI Common Stock shall be $20.74824, which amount equals the SPI
Exchange Price in effect immediately prior to the Merger.
3. New ICN hereby represents and warrants to the Principal
Exchange Agent for the benefit of the holders of the Certificates that the
exchange ratios set forth in Section 1 hereof are the exchange ratios
applicable to the exchange of ICN Common Stock and SPI Common Stock for New ICN
Common Stock as provided in the Merger Agreement.
4. The Exchange Agreement and the Terms of the Certificates are
confirmed and preserved in all respects other than as modified pursuant to
Section 1 hereof.
5. This Supplemental Agreement shall become effective immediately
upon the filing of the Certificate of Merger evidencing the Merger with the
Secretary of State of the state of Delaware.
6. 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. This Supplemental Agreement shall be construed in accordance
with and governed by the laws of Switzerland, except as to matters regarding
the exchange of the Certificates for ICN Common Stock, SPI Common Stock or New
ICN Common Stock, which shall be governed by and construed in accordance with
the law of Delaware.
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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John E. Giordani
Director and Vice President
BANK LEU AG
By:
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