Supplemental Agreement - ICN Pharmaceuticals Inc., Banque Paribas (Luxembourg) SA
SUPPLEMENTAL AGREEMENT, dated as of October 14, 1994, between ICN
Merger Corp., a Delaware corporation ("New ICN"), and Banque Parisbas
(Luxembourg) S.A. (the "Principal Exchange Agent"), as principal exchange agent
of the 7-1/4% certificates due February 5, 2001 (the "Certificates") issued by
Pharma Capital Holding, a Guernsey, Channel Island, trust (the "Trust");
WHEREAS on October 16, 1986 Ansbacher (C.I.) Limited ("Ansbacher"), as
trustee for the Trust, ICN Pharmaceuticals, Inc. ("ICN") and certain banks (the
"Banks") entered into a Subscription Agreement (the "Subscription Agreement")
pursuant to which the Trust issued ECU 40,000,000 aggregate principal amount of
the Certificates;
WHEREAS, on October 22, 1986, ICN, the Principal Exchange Agent, and
the Banks entered into an Exchange Agency Agreement (the "Exchange Agency
Agreement") pursuant to which the Principal Exchange Agent was appointed as
principal exchange agent for the exchange of the Certificates in accordance
therewith;
WHEREAS, each Certificate is exchangeable for common stock, $1.00 par
value, of ICN (the "ICN Common Stock") at an exchange price, immediately prior
to the Merger (as defined herein), of $21.1364 (the "Exchange Price");
WHEREAS, on the date hereof, Certificates with an aggregate principal
amount of ECU 16,195,000 are outstanding;
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 Pharmaceuticals,
Inc., Viratek, Inc., ICN Biomedicals, Inc. and New ICN, it is intended that ICN
and certain of its affiliates 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 10 of the Exchange Agency Agreement provides that, in
the event of a merger in which ICN is 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 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 and (b) set forth the 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 Exchange Price per
share of ICN Common Stock immediately prior to such event; and
WHEREAS, New ICN desires to enter into such supplemental agreement
with the Principal Exchange Agent;
NOW THEREFORE, in consideration of the premises herein set forth and
in order to comply with Section 10 of the Exchange Agency Agreement, the
parties hereto agree as follows:
1. In compliance with Section 10 of the Exchange Agency
Agreement, on and after the date hereof until May 30, 1996 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
and the Exchange Agency Agreement in lieu of each share of ICN Common Stock
deliverable to such holder immediately
106
<PAGE> 2
prior to the date hereof, 0.512 shares of common stock, $.01 par value of New
ICN ("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 a share of ICN Common Stock shall be $21.1364,
which amount equals the 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 ratio set forth in Section 1 hereof is the exchange ratio applicable
to the exchange of ICN Common Stock for New ICN Common Stock as provided in the
Merger Agreement.
4. The Exchange Agency 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 or New ICN Common Stock,
which shall be governed by and continued 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:
-------------------------------
John E. Giordani
Director and Vice President
BANQUE PARISBAS
(LUXEMBOURG) S.A.
By:
-------------------------------
107