Exhibit 10.14
INTERDEBTOR AGREEMENT
THIS INTERDEBTOR AGREEMENT (this "Agreement") is entered
into as of this ___ day of March 2002, by and between ICN Pharmaceuticals, Inc.,
a Delaware corporation ("ICN"), and its wholly-owned subsidiary, Ribapharm Inc.
("Ribapharm").
RECITALS
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 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.
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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.
6. 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.
7. 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.
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▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to Ribapharm:
Ribapharm Inc.
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▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The parties hereto may change their addresses and
transmission numbers for notices by notice in the manner provided in this
Section.
6. 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
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PRINCIPLES THEREOF) AS TO ALL MATTERS, INCLUDING MATTERS OF VALIDITY,
CONSTRUCTION, EFFECT, PERFORMANCE AND REMEDIES.
7. 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.
8. 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, DATED
______ 2002, RELATING TO THE INITIAL PUBLIC OFFERING BY RIBAPHARM.
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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: ______________________________
Name:
Title:
RIBAPHARM ICN.
By: ______________________________
Name:
Title:
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