Exhibit 2.1
SECOND AMENDMENT AGREEMENT
This SECOND AMENDMENT AGREEMENT (this "Second Amendment Agreement") is
made and entered into as of 30 October 1997 by and between ▇.
▇▇▇▇▇▇▇▇-▇▇ ▇▇▇▇▇ Ltd., ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇-▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ("Seller") on the one hand and ICN Puerto Rico, Inc. with
registered offices at American International Plaza, Eighth Floor, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ("Buyer"), a
wholly-owned subsidiary of ICN Pharmaceuticals, Inc., ICN Plaza, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("ICN") and ICN acting either as a
direct party to this Agreement with respect to certain matters or as a
guarantor of performance by Buyer hereunder on the other hand.
WHEREAS Seller, Buyer and ICN have entered into an Asset Purchase
Agreement dated 20 June 1997 (the "Asset Purchase Agreement");
WHEREAS Seller, Buyer and ICN have entered into an Amendment Agreement
to the Asset Purchase Agreement dated 7 August 1997 (the "Amendment
Agreement");
WHEREAS on 30 October 1997 Affiliates of Seller and ICN have entered
into asset purchase agreements for among other things the execution of
the Option to purchase additional U.S. assets under Article 2.8 of the
Asset Purchase Agreement (the "US Asset Purchase Agreements");
WHEREAS Seller, Buyer and ICN wish to further amend the Asset Purchase
Agreement, as amended;
NOW THEREFORE, the parties hereto agree to further amend Art. 3.2.3 of the
Agreement by adding the following new paras:
"It is restated and confirmed that any capital gains (as defined in
the Asset Purchase Agreement) realised by Seller through the sale of
shares of Common Stock or Preferred Stock shall belong to ICN,
provided that the parties herewith agree that any sales proceeds above
US$55 per share of Common Stock and common stock resulting from
conversion of Preferred Stock shall belong to Seller, and provided
that the portion belonging to ICN may be retained by Seller as
collateral for payment of the purchase prices under the US Asset
Purchase Agreements.
ICN herewith authorises, instructs and orders Seller, and Seller
herewith undertakes, to pay, out of such realised capital gains to
which ICN is entitled pursuant to the Agreements (as amended including
by the preceding paragraph of the present Second Amendment Agreement)
retained by Seller pursuant to the Amendment Agreement (which are not
used or retained as collateral by Seller for other purposes pursuant
to the Asset Purchase Agreement or the Amendment Agreement), on behalf
of ICN, the purchase prices due by ICN to Affiliates of Seller under
the US Asset Purchase Agreements at the closing of these US Asset
Purchase Agreements. The parties hereto agree that the closing under
the US Asset Purchase Agreements shall only take place, if and when
Seller, Seller's Affiliates and ICN have agreed in writing on a mode
of payment for the purchase prices under the US Asset Purchase
Agreements in full, provided that ICN is at any time entitled to make
up the shortfall by direct payment to the sellers under the US Asset
Purchase Agreements."
The remainder of the Asset Purchase Agreement, as amended by the
Amendment Agreement, shall remain in effect unchanged, including
without limitation the clauses pertaining to the rights and
obligations of Seller and ICN in connection with Public Debt Offering
(as defined in the Asset Purchase Agreement), provided that the
portion of such Public Debt Offering referenced in paragraph 3.2.11 of
the Asset Purchase Agreement (as amended) may also be considered in
defining the mode of payment for the purchase prices under the US
Asset Purchase Agreements.
IN WITNESS WHEREOF, this Agreement has been signed by duly authorized
representatives of each of the parties hereto as of the date first
above written.
▇. ▇▇▇▇▇▇▇▇-▇▇ ▇▇▇▇▇ LTD ICN PUERTO RICO, INC.
By:______________________________ By:______________________________
Name:____________________________ Name:____________________________
Title:___________________________ Title:___________________________
ICN PHARMACEUTICALS, INC.
By:______________________________
Name:____________________________
Title:___________________________
GUARANTY
The undersigned hereby irrevocably and unconditionally guarantees the
performance by ICN Puerto Rico, Inc. and its Affiliates of all their
respective obligations under this Amendment and the ancillary
documents entered pursuant thereto.
ICN PHARMACEUTICALS, INC.
By:______________________________
Name:____________________________
Title:___________________________