Exhibit 99.1
INTERDEBTOR AGREEMENT
THIS INTERDEBTOR AGREEMENT (this "Agreement") is entered into as of
this 8th day of April 2002, by and between ICN Pharmaceuticals, Inc., a
Delaware corporation ("ICN"), and its wholly-owned subsidiary, Ribapharm
Inc. ("Ribapharm").
RECITALS
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WHEREAS, Pursuant to an Offering Memorandum dated July 13, 2001, ICN
sold in a private placement, $400,000,000 aggregate principal amount (and
an additional $125,000,000 aggregate principal amount to cover
over-allotments) of 6 1/2% Convertible Subordinated Notes due 2008 (the
"Notes");
WHEREAS, the Notes were issued and sold pursuant to the Purchase
Agreement (the "Purchase Agreement"), dated as of July 13, 2001, among ICN,
Ribapharm, and UBS Warburg LLC (the "Initial Purchaser"), the Indenture
(the "Indenture"), dated as of July 18, 2001, among ICN, Ribapharm and The
Bank of New York, as trustee, and the Registration Rights Agreement (the
"Registration Rights Agreement"), dated as of July 18, 2001 among ICN,
Ribapharm, and the Initial Purchaser;
WHEREAS, Ribapharm has filed a registration statement to effect the
Ribapharm IPO (as defined in the Indenture);
WHEREAS, ICN intends to distribute its remaining interest in Ribapharm
in the Ribapharm Spin-Off (as defined in the Indenture);
WHEREAS, ICN and Ribapharm entered into a letter agreement, dated July
18, 2001 (the "Letter Agreement") to clarify their relationship with
respect to certain provisions of the Notes; and
WHEREAS, each of ICN and Ribapharm believe that it is in their best
interest and in the best interest of their respective stockholders to amend
and restate the Letter Agreement in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Primary Obligor. While upon the earlier of a Ribapharm IPO or
a Ribapharm Spin-Off, Ribapharm will become a joint and several obligor of
the Notes, as between ICN and Ribapharm, ICN and Ribapharm agree that ICN
shall be responsible for all payments of principal, premium, if any,
interest and any other payments under the Notes, including Ribapharm's
obligation to make an offer to repurchase the Notes upon a Change in
Control of Ribapharm or ICN. In the event Ribapharm makes any such payments
under the Notes for any reason, ICN shall promptly reimburse Ribapharm for
these payments. Notwithstanding the foregoing, Ribapharm shall be
responsible for the payment of liquidated damages pursuant to Section 5 of
the Registration Rights Agreement caused by Ribapharm's failure to comply
with its obligations to file and maintain an effective Registration
Statement.
2. Amendments. This Agreement may not be amended or modified in
any respect except by a written agreement signed by both of the parties
hereto and in accordance with the following:
a. This Agreement may be amended or modified on behalf of
ICN by a written instrument signed by an authorized
officer of ICN.
b. (i) Any amendment or modification to this Agreement
that does not adversely affect the rights of Ribapharm
may be made by a written instrument signed by an
authorized officer of Ribapharm; and (ii) any other
amendment or modification of this Agreement may be made
by a written instrument signed by an authorized officer
of Ribapharm only after such amendment or modification
has been approved by the affirmative vote of at least a
majority of the then outstanding shares of common stock
of Ribapharm, par value $0.01 per share ("Ribapharm
Common Stock"), excluding any shares of Ribapharm
Common Stock then beneficially owned by ICN.
3. Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and 0 shall in no way be affected, impaired or invalidated. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and
restrictions without including any of such which may be hereafter declared
invalid, void or unenforceable.
4. Successors and Assigns. This Agreement shall be binding upon
the parties hereto and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Except with respect to a
merger of either party with another person, neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by
either party hereto without the prior written consent of the other party.
5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
6. Headings. The paragraph headings used in this Agreement are
for convenience only and shall not affect the interpretation of any of the
provisions hereof.
7. Definitions. All capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in (or by reference
in) the Purchase Agreement, Indenture and Registration Rights Agreement, as
applicable.
8. Entire Agreement. This Agreement shall constitute the entire
agreement between the parties hereto with respect to the subject matter
hereof and shall supersede all prior agreements and understandings, whether
written or oral, between the parties with respect to such subject matter,
including, without limitation, the Letter Agreement.
9. Notices. All notices, requests and demands to or upon the
parties to be effective shall be in writing (or by telex, fax or similar
electronic transfer confirmed in writing) and shall be deemed to have been
duly given or made (i) when delivered by hand or (ii) if given by mail,
when deposited in the mails by certified mail, return receipt requested, or
(iii) if by telex, fax or similar electronic transfer, when sent and
receipt has been confirmed, addressed as follows:
If to ICN:
ICN Pharmaceuticals, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to Ribapharm:
Ribapharm Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The parties hereto may change their addresses and transmission
numbers for notices by notice in the manner provided in this Section.
10. CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF) AS TO ALL
MATTERS, INCLUDING MATTERS OF VALIDITY, CONSTRUCTION, EFFECT, PERFORMANCE
AND REMEDIES.
11. WAIVER OF TRIAL BY JURY. ICN AND RIBAPHARM HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT. EACH OF ICN AND RIBAPHARM
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A
BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON THE WAIVER IN ENTERING INTO
THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS. EACH OF ICN AND RIBAPHARM WARRANTS AND REPRESENTS
THAT EACH HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL
COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS.
12. EFFECTIVENESS. THIS AGREEMENT SHALL BECOME EFFECTIVE UPON THE
TIME OF PURCHASE OF THE FIRM SHARES, AS DEFINED IN THE UNDERWRITING
AGREEMENT, BY AND AMONG ICN, RIBAPHARM AND THE UNDERWRITERS NAMED THEREIN
RELATING TO THE RIBAPHARM IPO.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective officers as of the date first
written above.
ICN PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President,
Associate General Counsel and
Assistant Corporate Secretary
RIBAPHARM INC.
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President and Secretary
