Exhibit b.4(c)(1)
AGREEMENT
AGREEMENT made as of this 23rd day of December 1996 by and
among ICN Pharmaceuticals, Inc., a Delaware corporation ("ICN"),
and those persons identified as purchasers on Schedule A annexed
hereto and made a part hereof (collectively referred to herein as
the "Buyer").
W I T N E S S E T H:
--------------------
WHEREAS, ICN is the issuer of common stock, par value $.01
per share (the "ICN Common Stock"), and Siemens Medical Systems,
Inc., a Delaware corporation ("Seller"), and ICN are party to an
agreement (the "Seller's Put") pursuant to which Seller has the
right to require ICN to purchase 964,833 shares of ICN Common
Stock owned by Seller ("Seller's Shares") at the Siemens Put
Price (as hereinafter defined);
WHEREAS, ICN does not desire Seller to exercise Seller's Put
and is willing to enter into this Agreement in order to induce
Buyer to purchase Seller's Shares from Seller in extinction of
Seller's Put; and
WHEREAS, Buyer is willing to purchase the Seller's Shares
(to be allocated to each Buyer as set forth on Schedule A annexed
hereto), all on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual premises
herein set forth and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Act of Bankruptcy" shall mean if ICN (i) is dissolved
(other than pursuant to a consolidation, amalgamation or
merger); (ii) becomes insolvent or is unable to pay its
debts or fails or admits in writing its inability generally
to pay its debts as they become due; (iii) makes a general
assignment, arrangement or composition with or for the
benefit of its creditors; (iv) institutes or has instituted
against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or
insolvency law or other similar law affecting creditors
rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or
petition instituted or presented against it, such proceeding
or petition (A) results in a judgment of insolvency or
bankruptcy or the entry of an order for relief or the making
of an order for its winding-up or liquidation or (B) is not
dismissed, discharged, stayed or restrained in each case
within 30 days of the institution or presentation thereof;
(v) has a resolution passed for its winding-up, official
management or liquidation (other than pursuant to a
consolidation, amalgamation or merger); (vi) seeks or
becomes subject to the appointment of an administrator,
provisional liquidator, conservator, receiver, trustee,
custodian or other similar official for it or for all or
substantially all its assets; (vii) has a secured party take
possession of all or substantially all its assets or has a
distress, execution, attachment, sequestration or other
legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party
maintains possession, or any such process is not dismissed,
discharged, stayed or restrained, in each case within 30
days thereunder; (viii) causes or is subject to any event
with respect to it which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the events
specified in clauses (i) to (vii) (inclusive); or (ix) takes
any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing acts.
"Base Price" shall mean (a) an ICN Price Per Share
equal to $24.75 with respect to sales of Shares occurring
during the First Year, (b) an ICN Price Per Share equal to
$27.25 with respect to sales of Shares occurring during the
Second Year, and (c) an ICN Price Per Share equal to $30.00
with respect to sales of Shares occurring during the Third
Year.
"Business Day" shall mean a day other than a Saturday,
Sunday or a legal holiday on which the Principal Market is
not open for trading.
"Earliest Exercise Date" shall mean the first to occur
of: (i) January 10, 2000, (ii) the date the ICN Price Per
Share closing price on the Principal Market is $15.00 per
share or less on 20 trading days out of any 30 consecutive
trading days; (iii) the day on which the ICN Price Per Share
dosing price on the Principal Market is $12.00 per share or
less, or (iv) the day on which a Material Adverse Event
occurs.
"Final Exercise Date" shall mean 5:00 p.m. (PST) on the
fifth Business Day following January 10, 2000.
"First Year" shall mean the period commencing on the
date of the Closing and ending on the day preceding the
first anniversary thereof.
"Guaranteed Share Price" shall mean an ICN Price Per
Share of $30.00 (provided, however, that if the Earliest
Exercise Date is prior to the third anniversary of the
Closing, the "Guaranteed Share Price" shall be $22.50 plus
an incremental increase at the annual rate of 10% for the
period from the Closing to the date of exercise of the Put)
increased by the amount, if any, of any dividends or other
distributions declared with respect to the Shares being
purchased and sold pursuant to the Put on or prior to the
Put Closing and payable after the Put Closing; provided,
however, that the Shares being purchased and sold pursuant
to the Put were not outstanding on the record date for such
dividend or other distribution.
"ICN Payment" shall mean the sum of the Shelf Shares
Purchase Price and the Put Premium.
"ICN Price Per Share" as used in this Agreement shall
mean the price for one share of ICN Common Stock at the
relevant date and time on the Principal Market; provided,
however, if between the date hereof and the calculation of
such ICN Price Per Share there has been a forward or reverse
stock split, stock dividends, spin off, any distribution
paid with respect to any such shares (other than cash
dividends or distribution of assets), or other
recapitalization or reclassification of any such securities,
the ICN Price Per Share shall be adjusted to reflect the
price which would be paid for all of the securities which
are derived from one share of ICN Common Stock issued and
outstanding on the date hereof.
"Material Adverse Effect" shall mean in connection with
ICN or any of its subsidiaries, any change or effect that is
materially adverse to the business, results of operations,
properties (including intangible properties), condition
(financial or otherwise), assets or liabilities of ICN and
its subsidiaries taken as or a whole and taking into
consideration any change or effect occurring during the
period between the Closing and the relevant date of
determination that is materially favorable to the business,
results of operations, properties (including intangible
properties), condition (financial or otherwise), assets or
liabilities of ICN and its subsidiaries taken as a whole.
"Material Adverse Event" shall mean (i) any breach in
any material respect by ICN of any of its representations,
warranties or agreements set forth in this Agreement, (ii)
ICN commits an Act of Bankruptcy, (iii) a change, condition
or event occurs that has or would be reasonably likely to
have a Material Adverse Effect, or (iv) trading in the ICN
Common Stock is suspended by the Securities and Exchange
Commission on the Principal Market (except for any
suspension of trading for a period of 7 consecutive days on
which trading is conducted on such Principal Market, other
than as a result of the suspension of trading in securities
in general).
"NYSE" shall mean the New York Stock Exchange.
"Premium Price" shall mean (a) an ICN Price Per Share
equal to $27.25 with respect to sales of Shares occurring
during the First Year, (b) an ICN Price Per Share equal to
$32.25 with respect to sales of Shares occurring during the
Second Year, and (c) an ICN Price Per Share equal to $37.50
with respect to sales of Shares occurring during the Third
Year.
"Principal Market" shall mean the principal national
securities exchange or market on which ICN Common Stock is
traded which, as of the date hereof, is the NYSE.
"Put" shall mean the absolute and irrevocable right
being granted by ICN to Buyer under the terms of this
Agreement providing Buyer with the right, exercisable from
time to time in its sole and absolute discretion, to require
ICN to purchase any part or all of the Put Shares from
Buyer, all on the terms and conditions set forth in this
Agreement.
"Put Closing" shall mean a closing to be held at the
offices of ICN on the first Business Day at least three
Business Days after the date of the Put Notice as specified
in the Put Notice.
"Put Notice" shall mean and include the irrevocable
written notices given by Buyer to ICN from time to time
notifying ICN of Buyer's intent to exercise its rights with
respect to any part or all of the Put Shares pursuant to the
Put being granted by ICN to Buyer under the terms of this
Agreement.
"Put Premium" shall mean the excess of $22.50 over the
prevailing ICN Price Per Share on the Principal Market on
December 23, 1996, at the time the Seller's Shares are
purchased by Buyer, times the number of Shares.
"Put Shares" shall mean 1,064,833 shares of ICN Common
Stock as to which a Put is being granted by ICN to Buyer
pursuant to the terms of this Agreement and all of the
securities which have derived from the Put Shares whether by
reason of any forward or reverse stock split, stock
dividend, spin off, any distribution paid with respect to
any Put Shares (other than cash dividends or distribution of
assets), or other recapitalization or reclassification of
any Put Shares.
"Second Year" shall mean the period commencing on the
first anniversary of the Closing and ending on the date
preceding the day the second anniversary of the Closing.
"Shares" shall mean, collectively, the Seller's Shares
purchased by Buyer from Seller and the Shelf Shares.
"Shelf Shares" shall mean the 100,000 shares of ICN
Common Stock being purchased by Buyer from ICN under the
terms of this Agreement pursuant to the shelf registration
statement which has been declared effective by the
Securities and Exchange Commission, which shares are being
purchased by Buyer at the prevailing ICN Price Per Share on
the Principal Market on December 23, 1996, at the time the
Seller's Shares are purchased by Buyer, and which shares ICN
is in the process of listing on the NYSE.
"Shelf Shares Purchase Price" shall mean the prevailing
ICN Price Per Share on the Principal Market on December 23,
1996, at the time the Seller's Shares are purchased by
Buyer, times the number of Seller's Shares.
"Siemens Put Price" shall mean an amount determined as
follows: (a) $23.512493872 per share of Seller's Shares
times the number of Seller's Shares plus (b) the amount
equal to the interest which would accrue for the period
September 28, 1996, through and including the Closing on an
amount equal to $23.512493872 times the number of Seller's
Shares (i.e., the price at which Seller would have otherwise
put such Seller's Shares to ICN) at an annual interest rate
equal to one percent (1%) plus that rate from time to time
during the period from September 28, 1996, to the Closing
announced by Bank of America, N.T. & S.A. by its San
Francisco headquarters office as its prime or reference
rate.
"Siemens Shortfall" shall mean the excess of the
Siemens Put Price over the payment made by Buyer to Siemens
pursuant to Section 2.
"Third Year" shall mean the period commencing on the
second anniversary of the Closing and ending on the Final
Exercise Date.
2. Buyer's Purchase of Seller's Shares. Buyer hereby
agrees to purchase Seller's Shares on December 23, 1996, at the
prevailing ICN Price Per Share on the Principal Market on
December 23, 1996, at the xxxx Xxxxxx'x Shares are purchased by
Buyer. Each of the parties hereto acknowledges that Buyer's
obligation to purchase Seller's Shares is contingent and
conditioned upon Seller's agreement to sell Seller's Shares to
Buyer. Each of the parties hereto further acknowledges that its
entering into this Agreement and the consummation of the
transactions contemplated hereby is premised on Buyer's purchase
of Seller's Shares on the terms and conditions set forth herein.
If Buyer's is unable for any reason to purchase all of Seller's
Shares on the terms and conditions set forth herein, this
Agreement shall be deemed null and void, and neither party hereto
shall have any further obligation to the other party hereto under
this Agreement other than ICN's obligation to pay Buyer's legal
fees as set forth in Section 5, below.
3. The Closing. The closing of the transactions
contemplated hereby shall take place on December 23, 1996, at
which time Buyer and ICN will make the following deliveries and
payments: (a) Buyer will pay to ICN the ICN Payment, which
Payment will be made as follows: (i) Buyer will wire transfer to
Seller in immediately available funds the lesser of (y) the ICN
Payment and (z) the Siemens Shortfall and (ii) any balance of the
ICN Payment will be paid to ICN, and (b) ICN will (i) deliver to
Buyer the Shelf Shares by the transfer or deposit thereof in the
accounts designated by Buyer on Schedule A annexed hereto or as
otherwise directed by Buyer and (ii) grant Buyer the Put provided
for in this Agreement.
4. Conditions to Closing. In addition to the condition
set forth in Section 2, above, it shall be a condition to the
obligations of Buyer hereunder that at or prior to the Closing
(a) ICN shall have executed this Agreement and granted to Buyer
the Put option contemplated herein, (b) all of the
representations and warranties of ICN be true and correct in all
material respects as at the Closing, (c) no event shall have
occurred which would give Buyer the right to accelerate the Put
by reason of an Earliest Exercise Date having occurred, (d) no
litigation shall have been threatened or commenced relating to
the transactions contemplated herein, and (e) Buyer shall have
received a written opinion in form and substance satisfactory to
Buyer from ICN's counsel.
5. Expenses. The reasonable fees and expenses of Xxxxxx &
Xxxxxxx, counsel for the Buyer, shall be paid by ICN.
6. Representations and Warranties of Parties. (a) ICN
represents and warrants to Buyer as follows:
(i) The Shares are duly registered under the
Securities Act of 1933, as amended ("Act"), and in the hands
of Buyer will be tradeable without further registration
under the Act.
(ii) ICN is in full and timely compliance in all
material respects with all of the reporting requirements
required of it under the Securities and Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder and the listing requirements of the NYSE and its
rules relating to securities traded on such exchange;
(iii) There is no basis to believe that an event
presently exists or is likely to occur which would give
Buyer the right to accelerate the Put by reason of an
Earliest Exercise Date having occurred;
(iv) It has full power and authority to enter into this
Agreement and perform the transactions contemplated hereby
and this Agreement is enforceable against it in accordance
with its terms;
(v) The provisions of this Agreement and the
transactions contemplated hereby, including, without
limitation, the Put and the issuance of the Shelf Shares,
have been duly and validly authorized by all necessary
corporate action and do not violate (subject to section 160
of the Delaware General Corporation Law) the terms of its
charter, by-laws or other governing instruments and do not
breach, and are not a basis for a breach of, any agreement,
undertaking, understanding, or any law, rule or regulation
of any government, of any governmental or quasi governmental
agency, or of any self-regulatory body, to which it is
subject or by which it or its property or assets are bound;
and
(vi) The Shelf Shares, when issued to Buyer, will be
fully paid and non-assessable and shall be free and clear of
any security interests, claims, liens, pledges, options,
encumbrances, charges, agreements, voting trusts, proxies or
other arrangements, restrictions or other legal or equitable
limitations of any kind.
(b) Buyer represents and warrants to ICN that such
Buyer is purchasing the Put and the Put Shares for its own
account without any present intention or legal arrangement
(whether or not legally binding) to sell any Put Shares to
or through any person or entity and that the Put Shares may
not be sold, assigned or otherwise transferred except in
accordance with applicable Federal securities laws and the
terms of this Agreement. Buyer further represents and
warrants to ICN that Buyer is a sophisticated investor (as
described in Rule 506(b)(2)(ii) of Regulation D promulgated
under the Securities Act of 1933, as amended, ("Regulation
D")) and an accredited investor (as defined in Rule 501 of
Regulation D), and such Buyer has such experience in
business and financial matters so that it is capable of
evaluating the merits and risks of an investment in the Put
Shares.
7. ICN Grant of Put to Buyer. (a) In order to induce Buyer
to purchase the Shares from Seller, and in consideration of the
payment by Buyer to ICN of the Put Premium and the right of ICN
to receive payment pursuant to Section 8, below, ICN grants to
Buyer the absolute and irrevocable right, at Buyer's sole option
(the "Put"), by irrevocable written notice to ICN (the "Put
Notice"), to require ICN to purchase, for cash at a Put Closing,
any part or all of the Put Shares at a purchase price equal to
the Guaranteed Share Price. The Put shall not be exercisable
until the "Earliest Exercise Date" and shall not be exercisable
after the Final Exercise Date. The Put shall become effective
upon the Closing of the purchase and sale of the Seller's Shares.
(b) The number of Put Shares shall be reduced by one-
third (1/3) if prior to the first anniversary of the
Closing, the ICN Price Per Share closing price on the
Principal Market is $24.75 per share or more on 20 trading
days out of any 30 consecutive trading days; provided,
however, that the total number of shares of ICN Common Stock
traded on the Principal Market on such 20 trading days
exceeds 2,000,000 shares in the aggregate; and provided,
further that no such reduction shall apply after the
Earliest Exercise Date (other than an Earliest Exercise Date
occurring by reason of January 10, 2000).
(c) In addition to any reduction of Put Shares
pursuant to subsection 7(b), above, the number of Put Shares
shall be reduced by one-third (1/3) of the number of Put
Shares if during the period on or after the first and prior
to the second anniversary of the Closing prior to the first
anniversary of the Closing, the ICN Price Per Share closing
price on the Principal Market is $27.25 per share or more on
20 trading days out of any 30 consecutive trading days;
provided, however, that the total number of shares of ICN
Common Stock traded on the Principal Market on such 20
trading days exceeds 2,000,000 shares in the aggregate; and
provided, further, that no such reduction shall apply after
the Earliest Exercise Date (other than an Earliest Exercise
Date occurring by reason of January 10, 2000).
(d) In addition to any reduction of Put Shares
pursuant to subsections 7(b) and 7(c), above, the number of
Put Shares shall be reduced by one-third (1/3) of the number
of Put Shares if during the period on or after the second
and prior to the third anniversary of the Closing the ICN
Price Per Share closing price on the Principal Market is
$30.00 per share or more on 20 trading days out of any 30
consecutive trading days; provided, however, that the total
number of shares of ICN Common Stock traded on the Principal
Market on such 20 trading days exceeds 2,000,000 shares in
the aggregate; and provided, further, that no such reduction
shall apply after the Earliest Exercise Date (other than an
Earliest Exercise Date occurring by reason of January 10,
2000).
(e) In the event a Buyer sells any Shares prior to the
end of the Third Year at a price in excess of the applicable
Premium Price for such year in which such sales are made,
the number of Put Shares shall be reduced by the number of
shares so sold; provided, however, that no such sale of
Shares at a premium price shall result in any reduction in
the number of Put Shares in any year in which the Put Shares
have been reduced by one-third (1/3) as provided above
unless Buyer has sold more than one-third (1/3) of the
Shares during such year; provided, however, that no such
reduction shall apply after the Earliest Exercise Date
(other than an Earliest Exercise Date occurring by reason of
January 10, 2000).
(f) The Put Closing shall take place at 10:30 a.m.
local time at the principal executive offices of ICN at
which time and place Buyer shall deliver to ICN certificates
representing the Put Shares to be sold to ICN with duly
executed stock powers attached and ICN shall deliver to
Buyer by wire transfer of immediately available funds in the
amount of the Guaranteed Share Price times the number of Put
Shares to be sold. ICN shall pay any applicable stock
transfer taxes. It shall be a condition to closing that the
Put Shares be delivered to ICN in good marketable form, free
and clear of any security interests, claims, liens, pledges,
options, encumbrances, charges, agreements, voting trusts,
proxies or other arrangements, restrictions or other legal
or equitable limitations of any kind.
8. Participation of ICN in Certain Sales of Shares. In
the event a Buyer sells any Shares prior to the end of the Third
Year at a price in excess of the applicable Base Price for the
year in which such sales are made, such Buyer shall pay to ICN
one-third (1/3) of the excess over the Base Price times the
number of Shares sold; provided, however this provision shall not
apply after the Earliest Exercise Date (other than an Earliest
Exercise Date occurring by reason of January 10, 2000). In the
event that Buyer does not exercise the Put with respect to all of
the Put Shares by the Final Exercise Date and the ICN Price Per
Share closing price on the Principal Market on the Final Exercise
Date exceeds the applicable Base Price, Buyer shall pay to ICN
one-third (1/3) of the excess times the number of Shares then
owned by Buyer.
9. Breach by ICN at Put Closing. In the event ICN fails
to tender the full amount due at a Put Closing in the form
required, Buyer shall have no duty to mitigate damages and Buyer
may retain the Put Shares with all rights hereunder to compel ICN
to purchase and pay for such Put Shares or may sell any part or
all of the Put Shares from time to time one or more open market
transaction(s) on the NYSE or any other market on which such
securities are traded, or in one or more private sales with or
without notice to ICN, and Buyer shall have the right, in
addition to all other remedies it may have at law or in equity,
to recover from ICN the excess, if any, of the Guaranteed Share
Price times the number of Put Shares sold over the proceeds to
Buyer (net of any expenses incurred in making such sale) from
such sale. In the event such proceeds of sale exceed the amount
Buyer would have received from ICN, Buyer shall retain such
excess and ICN shall have no interest therein, nor shall any such
excess be deemed a set off against any other liability of ICN to
Buyer whether by reason of other Put Shares sold at a different
price or otherwise. In addition to the foregoing, ICN shall
reimburse Buyer for all of its costs (including, without
limitation, reasonable legal fees) incurred in enforcing its
rights under this Agreement.
10. Transfer of Put. Buyer may not assign or otherwise
transfer any or all of its rights under the Put except from time
to time to any accounts over which The Palladin Group, L.P. or
Xxxxxxx Xxxxxx exercises discretionary investment authority.
Buyer shall give written notice to ICN of each such assignment or
transfer.
11. Notices. All notices to be given pursuant to this
Agreement shall be effective only if in writing and delivered
personally against receipt therefore; sent through the United
States Post Office by certified mail, return receipt requested,
postage prepaid transmitted by facsimile with a hard copy sent by
certified mail, as aforesaid; or sent by courier with
confirmation copy sent by certified mail, as aforesaid; in each
event to the address and with a copy to the persons set forth
below or to such other person and address within the United
States of America as any party hereto shall designate by written
notice similarly given.
If to Buyer, to the address set forth on Schedule A attached
hereto with a copy to:
Xxxxxx & Whitney LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
If to ICN:
ICN Pharmaceuticals, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, X.X. 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
Such notice shall be effective upon receipt if delivered
personally, on the day transmitted, if transmitted by facsimile,
or on the second Business Day after the day on which placed in
the custody and control of the United States Post Office, if
sent by certified mail, or in the hands of a courier, if sent by
courier.
12. Survival of Representations and Warranties. All
representations and warranties set forth herein shall be deemed
to have been made, and shall be true, both as of the date hereof
and as of the Closing. All covenants, agreements,
representations and warranties contained herein shall survive the
Closing.
13. Complete Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the matters
set forth herein and supersedes all prior agreements and
understandings, written or oral, among the parties with respect
to such matters.
14. Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of New York,
without regard for conflicts of law principles.
15. Partial Invalidity. The invalidity or partial
invalidity of any portion of this Agreement shall not invalidate
the remainder thereof, and such remainder shall remain in full
force and effect.
16. Amendment and Waiver. Any amendment or waiver of any
term or condition of this Agreement must be in writing signed by
the parties to such term or condition, or by the party to be
charged with a waiver. Any waiver shall be limited to the one
event, and no wavier shall be deemed to have occurred by course
of conduct or by any delay or failure of any party hereto in
enforcing any right or remedy hereunder.
17. Parties in Interest; Assignment. This Agreement shall
inure to the benefit of and be binding upon the parties hereto
and their respective permitted successors and assigns. Except as
otherwise provided in Section 10, above, neither this Agreement
nor any of the rights or obligations provided for herein may be
assigned except by a written instrument executed by all parties
hereto.
18. Arbitration. Any dispute or controversy arising out of
or relating to this Agreement shall be settled by arbitration in
New York, New York by a panel of three arbitrators in accordance
with the rules of the NYSE except that the power of the
arbitrators shall be limited to enforcing the express terms and
conditions of this Agreement, they shall state in writing the
reasons for their award, and they shall not be empowered to award
punitive damages. The judgment of the arbitrators shall be final
and binding on the parties hereto and may be entered in any court
of competent jurisdiction.
19. Counterparts. This Agreement may be executed in one or
more counterparts, by original or facsimile signature, each of
which shall be deemed an original agreement, and all of which
together shall be deemed to be one and the same instrument.
20. Consent to Jurisdiction. THIS AGREEMENT MAY BE
ENFORCED IN ANY FEDERAL COURT OR STATE COURT SITTING IN NEW YORK,
NEW YORK AND THE PARTIES HERETO CONSENT TO THE JURISDICTION AND
VENUE OF ANY SUCH COURT AND WAIVE ANY ARGUMENT THAT VENUE IN SUCH
FORUMS IS NOT CONVENIENT. THE PARTIES HERETO AGREE THAT DEMAND
FOR ARBITRATION OR SERVICE OF PROCESS IN RESPECT OF ANY ACTION OR
PROCEEDINGS COMMENCED UNDER THE ARBITRATION PROVISIONS OF THIS
AGREEMENT OR IN ANY SUCH COURT MAY BE MADE PERSONALLY ON THEM
OUTSIDE THE STATE OF NEW YORK, THAT SUCH DEMAND OR SERVICE OR
PROCESS SHALL BE AS FULLY EFFECTIVE FOR ALL PURPOSES AS IF MADE
WITHIN THE STATE OF NEW YORK AND THAT IT WILL NOT RAISE ANY
OBJECTION TO THE JURISDICTION OF ANY COURT BASED ON SERVICE OF
PROCESS SO MADE. IN THE EVENT ANY PARTY HERETO COMMENCES ANY
ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR
CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE
RELATIONSHIP CREATED BY THIS AGREEMENT, THE OTHER PARTY AT ITS
OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF
THE JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER
CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE
DISMISSED WITHOUT PREJUDICE.
21. Waiver of Jury Trial. EACH OF THE PARTIES HERETO, BY
ACCEPTANCE OF THIS AGREEMENT, IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
IN WITNESS WHEREOF each of the parties hereto has caused
this Agreement to be duly executed as of the day and year first
above written.
ICN PHARMACEUTICALS, INC.
By:
----------------------------------
Its:
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RAMIUS FUND LTD.
HALIFAX FUND X.X.
XXXXXXX PARTNERS L.P.
PALLADIN PARTNERS I LTD.
HICK INVESTMENT LTD.
GLENEAGLES FUND
By:THE PALLADIN GROUP, L.P.,
As Investment Manager
By:Palladin Capital Management, LLC,
Its General Partner
By:
-----------------------------------
Xxxxxxx Xxxxxx, President
SCHEDULE A
Allocation of Shares Among Buyer
Dollar($) Shares
----------- --------
Ramius Fund, Ltd. 10,008,742.50 444,833
- Siemens 9,242,748 344,833
- ICN 765,994.50 100,000
Halifax Fund, L.P. 6,075,000 270,000
Gershon Partners, L.P. 1,012,500 45,000
Palladin Partners, Ltd. 3,037,500 135,000
Hick Investment, Ltd. 2,025,000 90,000
Gleneagles Fund 1,800,000 80,000
TOTAL: $23,958,742.50 1,064,833
