EXHIBIT 1
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This SHARING AGREEMENT (this "Agreement") is made as of March 8, 2002
by and between Iridian Asset Management LLC ("Iridian") and Franklin Mutual
Advisers, LLC ("Franklin").
RECITALS:
WHEREAS, each of Iridian and Franklin is a beneficial owner of the
common stock of ICN Pharmaceuticals, Inc. ("ICN"); and
WHEREAS, Iridian and Franklin share an interest in maximizing the value
of ICN's common stock;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth in this Agreement, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Consultation on Purchases or Sales. Each of Iridian and Franklin
shall consult with the other prior to any purchase or sale of any shares of
ICN's common stock ("Shares"), and will promptly notify the other of any such
purchase or sale, including the number of shares purchased or sold, the purchase
or sales price, the date of the transaction and the manner in which the
transaction was effected.
2. Consultation on Voting. Each of Iridian and Franklin shall consult
with the other prior to voting its respective Shares on any matter subject to a
stockholder vote and shall notify the other regarding how any Shares have been
voted.
3. Schedule 13D Filings.
(a) Franklin acknowledges that (i) Iridian and certain affiliated
persons have filed a Statement on Schedule 13G with the Securities and Exchange
Commission ("SEC") with respect to their beneficial ownership of Shares, (ii) as
a result of this Agreement and other matters, Iridian and such affiliated
persons will be filing a Statement on Schedule 13D with the SEC with respect to
their beneficial ownership of Shares and (iii) as a result of the agreements set
forth herein, Franklin may be deemed to be a member of a group with Iridian and
such affiliated persons for purposes thereof.
(b) Franklin agrees to file separately or join with Iridian and such
other persons in filing any Statement on Schedule 13D or amendment thereto as
may be required by law (each, a "Schedule 13D Filing").
(c) Each of Iridian and Franklin agrees to provide to the other (and to
cause any other persons with whom it has made or will make a Schedule 13D Filing
to provide to the other) all information necessary to effect any Schedule 13D
Filing.
(d) Each of Iridian and Franklin agrees to consult with the other prior
to adopting any plans or proposals which relate to or would result in any of the
actions required to be set forth in parts (a) through (j) of Item 4 of Schedule
13D.
4. Sharing of Expenses. Effective from and after the date hereof and
unless and until this agreement is terminated by either party hereto
(hereinafter, the "Term"), each of the parties hereto agrees to pay its
"Proportionate Share" (as defined below) of any expenses reasonably incurred by
either party hereto in connection with the parties' investment in Shares and the
parties' joint efforts made to maximize the value thereof (collectively,
"Expenses"), including, without limitation: (i) legal expenses incurred in
connection with Schedule 13D Filings and any other filings with the SEC, legal
and other expenses incurred in connection with communications with ICN, its
stockholders or other persons interested in ICN (such as printing, mailing,
telephone, travel and related costs), and fees or expenses of proxy solicitors,
accountants, consultants or other third parties ("Third Party Expenses"); (ii)
Indemnifiable Expenses; and (iii) Contribution Expenses (as such capitalized
terms are hereinafter defined); provided, however, that no party hereto shall be
obligated to pay its Proportionate Share of any Third Party Expense unless,
prior to incurrence of any such Expense, the nature of, and reasons for,
incurrence of such Expense shall have been discussed between the parties hereto
and approved by the party to be so obligated. Each of the parties will promptly
upon request reimburse the other party for its "Proportionate Share" of any
Expenses paid or advanced by such other party. Unless otherwise agreed, each
party shall account to the other party for Expenses paid or advanced during any
month prior to the conclusion of the immediately following month.
For purposes hereof, the following terms shall have the following
meanings:
"Proportionate Share" of each party hereto shall mean, with respect to
any Expenses, a fraction, the numerator of which is equal to the number of
Shares beneficially owned by such party on the earlier to occur of (i) the last
day of the calendar month in which such Expenses were incurred or (ii) the day
this Agreement is terminated in accordance with paragraph 7 hereof and the
denominator of which is the aggregate number of Shares beneficially owned by
both parties as of such date.
"Indemnifiable Expenses" shall mean all expense, liability and loss
(including attorneys' fees, judgments, fines and amounts paid or to be paid in
any settlement by a party hereto and approved in advance by the other, such
approval not to be unreasonably withheld) actually incurred or suffered by
either party hereto in connection with any present or future threatened, pending
or contemplated investigation, claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative (collectively, "Indemnifiable
Litigation"), to which either of the parties hereto is made a party or is
threatened to be made a party by reason of any action or inaction taken or
omitted in connection with the ownership of ICN common stock, including any
efforts to maximize the value thereof. Notwithstanding anything to the contrary
contained herein, a party hereto shall not have any obligation to indemnify or
hold harmless the other for any Indemnifiable Expense arising out of such other
party's fraud, willful misconduct or gross negligence. For purposes of
paragraphs 4 and 6 "willful misconduct" shall include, but not be limited to,
(i) an intentionally untrue statement of a material fact, or (ii) an intentional
omission to state a material fact necessary in order to make the statements
made, in light of the circumstances under which they were made, not misleading,
in each case, as such material facts are required to be disclosed under
applicable state or federal securities laws.
5. Notice of Claims for Expenses. Each party hereto seeking to be paid
a portion of any Indemnifiable or Contribution Expenses by the other party shall
give the other party hereto notice in writing as soon as practicable of any
claim made against it for which indemnification will or could be sought under
this agreement. No failure to give such notice shall relieve any party hereto
from any obligation to pay Indemnifiable or Contribution Expenses hereunder,
except to the extent such failure shall materially and adversely affect and
prejudice the other party hereto.
6. Cooperation; Contribution. The parties shall jointly cooperate in
the defense of any Indemnifiable Litigation. In the event that a party's right
to indemnification as provided herein is for any reason not available or
insufficient to hold such party harmless to the extent provided herein, the
parties hereto agree to contribute to the aggregate expense, liability or loss
(including legal or other expenses reasonably incurred in connection with
investigating or defending the same) involved in proportion to their respective
Proportionate Shares ("Contribution Expense"). Each of the parties hereto agrees
that it would not be just and equitable if contribution were determined by any
other method of allocation. Notwithstanding anything to the contrary contained
herein, a party shall not be entitled to contribution for any Contribution
Expense from the other for any liability or expenses arising out of such party's
fraud, willful misconduct or gross negligence.
7. Termination. Either party may terminate this Agreement at any time
by delivering a written notice of termination to the other party.
Notwithstanding any such termination, the provisions of paragraphs 4, 5 and 6
will survive termination of this Agreement as to any Expenses incurred or claims
asserted with respect to periods ending on or prior to the date of its
termination. Upon a termination of this Agreement by either party, the parties,
except as provided under this paragraph 7, shall have no further obligation to
the other.
8. Entire Agreement. This Agreement is the only agreement between the
parties hereto with respect to the subject matter hereof. Nothing in this
Agreement shall be construed or be deemed to create a partnership, joint venture
or similar relationship among the parties hereto and the only obligations of the
parties to one another hereunder shall be as expressly set forth herein.
10. Counterparts. This Agreement may be signed in counterparts, each of
which shall be deemed to be an original instrument, and shall together
constitute one and the same agreement.
11. Governing Law. This Agreement shall be governed by the laws of the
State of New York without regard to the principles thereof regarding the
conflict or choice of law.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officer of each party hereto as of the date first above
written.
IRIDIAN ASSET MANAGEMENT LLC
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Principal
FRANKLIN MUTUAL ADVISERS, LLC
By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
Title: Assistant Vice President
