Supplemental Agreement - ICN Pharmaceuticals Inc. and E. Gutzwiller & Cie.
SUPPLEMENTAL AGREEMENT, dated as of October 14, 1994, between ICN
Merger Corp., a Delaware corporation ("New ICN"), and E. Gutzwiller & Cie. (the
"Principal Conversion Agent"), as principal conversion agent of the 3-1/4%
Swiss Franc Subordinated Convertible Bonds due March 25, 1997 (the "Bonds")
issued by ICN Pharmaceuticals, Inc. ("ICN") in an aggregate principal amount of
SFr. 60,000,000.
WHEREAS, on February 20, 1987, ICN and Fintrelex, SA, as
representative of a consortium of Swiss financial institutions (the "Banks")
entered into a Public Bond Issue Agreement pursuant to which ICN issued the
Bonds and, concurrently therewith, ICN, the Principal Conversion Agent and the
Banks entered into a Conversion Agency Agreement (the "Conversion Agency
Agreement") pursuant to which the Principal Conversion Agent was appointed as
principal conversion agent for the conversion of the Bonds in accordance with
the Conversion Provisions attached to the Conversion Agency Agreement (the
"Conversion Provisions");
WHEREAS, each Bond is convertible as follows: (i) entirely into
shares of common stock, $1.00 par value (the "ICN Common Stock"), of ICN, at a
conversion price immediately prior to the Merger (as defined herein) of US$
26.1438 per share (the "ICN Conversion Price"), (ii) entirely into bearer
shares of stock of CIBA-GEIGY Ltd. (the "CIBA-GEIGY Shares") at a conversion
price of SFr. 800 per share (the "CIBA-GEIGY Conversion Price" and, together
with the ICN Conversion Price, the "Conversion Prices") or (iii) into a
combination of ICN Common Stock and CIBA-GEIGY Shares at the Conversion Prices
stated above;
WHEREAS, on the date hereof, Bonds with an aggregate principal amount
of SFr. 6,168,000 are outstanding;
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 6 of the Conversion Provisions 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
Conversion Agent which shall (a) provide that the holder of each Bond then
outstanding shall have the right to receive thereafter during the period such
Bond shall be convertible upon conversion thereof in lieu of each share of ICN
Common Stock deliverable upon such conversion 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 ICN Conversion Price for the shares
and/or other securities and/or property and/or cash so issueable, which shall
be an amount equal to the ICN Conversion 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 Conversion Agent;
NOW THEREFORE, in consideration of the premises herein set forth and
in order to comply with Section 6 of the Conversion Agreement, the parties
hereto agree as follows:
1. In compliance with Section 6 of the Conversion Provisions, on and
after the date hereof until March 6, 1997, the holder of each Bond shall be
entitled to receive, upon exchange of his or her Bond in accordance with the
provisions of the Terms of the Bonds and the Conversion Agency Agreement, 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").
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2. On and after the date hereof the conversion price (the "Conversion
Price") for such 0.512 shares of New ICN Common Stock deliverable to the holder
of a Bond upon conversion thereof in lieu of one share of ICN Common Stock
shall be $26.1438, which amount equals the ICN Conversion Price in effect
immediately prior to the Merger.
3. New ICN hereby represents and warrants to the Principal Conversion
Agent for the benefit of the holders of the Bonds 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 Conversion Agency Agreement and the Terms of the Bonds are
confirmed and preserved in all respects other than as modified pursuant to
Section 1 hereof.
5. This Supplemental Agreement shall become effective 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
conversion of the Bonds into ICN 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
E. GUTZWILLER & CIE., Banquiers
By:
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