SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
Amendment No. 5(1)
ICN PHARMACEUTICALS, INC.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
44 8924 100
(CUSIP Number)
Victor Lewkow, Esq. Walter M. Epstein, Esq.
Cleary Gottlieb Steen & Hamilton Davis & Gilbert LLP
One Liberty Plaza 1740 Broadway
New York, NY 10006 New York, New York 10019
(212) 225-2000 (212) 468-4800
(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications)
August 24, 2000
---------------
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-l(e), (f) or (g), check the following box |_|.
Note. Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 4 Pages)
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(1) The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP No. 44 8924 100 SCHEDULE 13D Page 2 of 4 Pages
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
SSP - Special Situations Partners, Inc.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
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7 SOLE VOTING POWER
6,734,300(1)
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY None
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 6,734,300(1)
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
None
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,734,300(1)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.5%(1)
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14 TYPE OF REPORTING PERSON*
IV
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(1) See Item 5
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The Statement in Schedule 13D, dated and filed on November 15, 1999
by SSP - Special Situations Partners, Inc. ("SSP"), the reporting person, with
the Securities and Exchange Commission (the "SEC") relating to the Common Stock
$.01 par value per share of ICN Pharmaceuticals, Inc., as amended by (i)
Schedule 13D/A, Amendment No. 1, dated and filed by SSP with the SEC on December
6, 1999, (ii) Schedule 13D/A Amendment No. 2 dated and filed by SSP with the SEC
on June 14, 2000, (iii) Schedule 13D/A Amendment No. 3 dated and filed by SSP
with the SEC on June 28, 2000, and (iv) Schedule 13D/A Amendment No. 4 dated
July 24, 2000 and filed with the SEC on July 27, 2000 is hereby further amended
by adding thereto the information set forth below. Capitalized terms used and
not otherwise defined herein shall have the meanings ascribed to them in the
Schedule 13D, unless the context otherwise requires.
Item 4. Purpose of Transaction.
On July 24, 2000 representatives of SSP met with the Company's
Chairman and an outside director of the Company to discuss the restructuring of
the Company as proposed by SSP. SSP's plan involves the splitting of the company
into three completely separate and independent companies. Based on the positive
reaction of Mr. Panic, Chairman and CEO of the Company, SSP believed that the
meeting was constructive and that a solution supported by the Company's Board
and endorsed by its stockholders was achievable. The parties agreed at the
meeting on the next steps necessary to finalize the plan. Those steps are
recorded in a memo to file dated July 25, 2000 by Eric Knight, Managing Director
of SSP (a copy of which is attached hereto as Exhibit 1 and incorporated herein
by reference). Mr. Knight's memo to file of July 25, 2000 was forwarded to Mr.
Panic at Mr. Panic's specific request on July 27, 2000.
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On July 27, 2000, Mr. Knight met with Mr. Lorello of UBS Warburg,
financial advisors to the Company. By letter dated July 28, 2000 (a copy of
which is attached hereto as Exhibit 2 and incorporated herein by reference) Dr.
Tito Tettamanti, Chairman of the Board of SSP, wrote to Mr. Panic informing Mr.
Panic that the meeting of Mr. Knight and Mr. Lorello on July 27, 2000 had been
"a waste of time" principally because Mr. Lorello refused to discuss any aspects
of SSP's plan because he had not received instructions from Mr. Panic. In the
letter, SSP informed Mr. Panic with respect to Mr. Panic's two major concerns
with the SSP plan (i) that a telephone conversation among Mr. Knight, Mr.
McDonald, the Company's corporate development director, and SSP's tax advisor
confirmed that there does not appear to be any major tax difficulties in
implementing SSP's plan, and (ii) that Mr. Lorello told Mr. Knight that UBS
Warburg does not foresee any problem in refinancing ICN's senior debt. SSP
proposed to Mr. Panic that a detailed analysis of SSP's plan be submitted to the
Company's Board and that SSP's tax advisor meet with the Company's tax counsel.
Dr. Tettamanti cautioned Mr. Panic that if swift, positive action were not
forthcoming by the Company, including an immediate meeting between the parties,
that SSP would have to further amend its 13D to indicate the lack of progress.
By letter dated July 31, 2000 from Mr. Panic to Dr. Tettamanti (a copy of
which is attached hereto as Exhibit 3 and incorporated herein by reference) Mr.
Panic assured
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Dr. Tettamanti that the Company is giving "serious consideration" to SSP's plan
and that "if at all possible, we will do it. Should there be any problems, we
will inform you. If we have any additional suggestions, we will also be in
contact with you."
On August 4, 2000, Mr. Knight was contacted by an independent Director of
the Company who asked at what price SSP would sell its stock in the Company. In
response, Mr. Knight called Mr. Panic and indicated that SSP was not interested
in selling stock currently as SSP believes the Company is undervalued and SSP
was working on a plan to maximize the stockholder value. Mr. Knight added that
were the Company to be involved in a takeover situation he believed that a price
of $45 to $50 would be acceptable to most stockholders. Mr. Panic said that he
intended to contact his three largest stockholders to ask at what price they
would sell their stock.
On August 8, 2000 Mr. Knight informed Mr. Panic by letter including an
accompanying chart (a copy of which is attached hereto as Exhibit 4 and
incorporated herein by reference) of the precipitous decline in the stock of
Nycomed Amersham immediately upon its announcement of its plans to float 10% of
the stock of its biotech subsidiary, a plan analogous to the Company's plan to
sell stock in Ribapharm.
On August 24, 2000, following the previous day's filing by the Company of
its amended Ribapharm registration statement, by letter from Dr. Tettamanti to
Mr. Panic (a copy of which is attached hereto as Exhibit 5 and incorporated
herein by reference), SSP emphasized its serious concern about the Company's
persistence in following "the [Company's] ill conceived restructuring plan," a
concern voiced by other large ICN stockholders. SSP informed Mr. Panic that by
filing the amended Ribapharm registration statement and by announcing to the
press that it had no plans to spin off Ribapharm that the Company had misled
SSP. SSP informed Mr. Panic that SSP would file an amended 13D because SSP now
believed that the statement that SSP and the Company remained in negotiations or
that progress was being made on SSP's proposal appeared to be no longer correct.
SSP informed the Company that in the absence of progress SSP would oppose the
Ribapharm IPO by every means legally available, including litigation,
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if appropriate, and if necessary, may nominate a slate of directors at the next
annual stockholders meeting. SSP also stated its intention to invite third
parties to submit expressions of interest to acquire or merge with Ribapharm
and/or ICN.
Item 7. Material to be filed as Exhibits.
Attached hereto as Exhibit 1 is the memo to file of Eric Knight dated July
25, 2000 relating to the meeting of Eric Knight and Dr. Tito Tettamanti with
Milan Panic and an independent Director of the Company, which was transmitted to
Mr. Panic on July 27, 2000 at Mr. Panic's request.
Attached hereto as Exhibit 2 is the letter of Dr. Tito Tettamanti dated
July 28, 2000 to Milan Panic relating to the meeting between Eric Knight and Ben
Lorello and its disappointing results.
Attached hereto as Exhibit 3 is the letter of Milan Panic dated July 31,
2000 to Dr. Tito Tettamanti relating to the Company's continued interest in
pursuing the SSP plan.
Attached hereto as Exhibit 4 is the letter of Eric Knight dated August 8,
2000 to Milan Panic relating to Nycomed Amersham's public offering of 10% of the
stock of its subsidiary AP Biotech.
Attached hereto as Exhibit 5 is the letter of Dr. Tito Tettamanti dated
August 24, 2000 to Milan Panic relating to SSP's opposing the Ribapharm IPO
and amending its 13D in the absence of progress on SSP's plan.
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After reasonable inquiry and to the best of the undersigned's knowledge
and belief, the undersigned hereby certifies that the information set forth in
this statement is true, complete and correct.
Dated: August 25, 2000 SSP - SPECIAL SITUATIONS PARTNERS, INC.
By: /s/ Eric Knight
------------------------------------------
Name: Eric Knight
Title: Managing Director
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Exhibit 1
To: File
Subject: Notes from meeting on 24/07/00
Attendees: MP, JFK, TT, EK
Date: 25/07/00
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o MP began by announcing that the IPO of Riba was planned for the first week
of September.
o The Board of Riba would be changed and would include:
>> Dr Smith Chairman
>> Dr Lau CEO
>> Mr Meier COO/CFO (not Director)
>> Dr Verling (Chairman of Hepatology Associates)
>> Dr Turrchten (Ares Serono)
>> Dr Guillemin (Nobel Prize winner)
>> Mr Kroll (ex-Schroders)
o Aim to float 10% to 20% of share capital and to raise between $250m and
$480m.
o Agreed that we could bring in 2 or 3 directors for Riba.
o TT replied:
a) ICN is a sound company with more than satisfactory results.
b) Despite this the share price is grossly undervalued. Why? Two main
reasons:
1. Market scared for Eastern Europe and Russia
2. Market scared of MP having absolute power
c) No proposal or IPO will have an effect on the market if these two problems
are not addressed i.e. need to break up ICN into three really independent,
focussed and transparent companies run by different and genuinely
independent Board of Directors and management - no conflict of interest.
o EK then repeated SSP's proposal of a restructuring into 3 parts:
1. International (Europe + Russia). MP Chairman and CEO. Shares
distributed as a dividend. Likely that emerging markets funds would
be interested in such a security. MP indicated that he would like to
raise approx. $300m cash for expansion and investment in Russia. No
negative tax consequences.
2. Specialty Pharma (North America & Latin America generic drugs). MP
non-executive Chairman. Strong CEO to be appointed. Independent
Board of Directors. Shares would be distributed to ICN shareholders
as a dividend. No negative tax consequences.
3. Biotech (Riba). What remains of ICN will be Riba with the above
proposed Board of Directors and management structure. No negative
tax consequences. Share with big potential for merger with Biotech
company. (MP also emphasised ability to take advantage of existing
tax losses.)
o MP considered solution appealing but seemed to recall that there might be
a tax problem.
o MP mentioned WDR's concern that the shares of ICN International might not
be well received. TT suggested that this could be overcome through a book
building exercise and a period of restriction for shares held by certain
large holders could be conceivable.
o MP said he would back a full break up for September if we could get it to
work from a tax perspective.
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o MP said the existing Prospectus of Riba could be used and adapted to new
structure. Cash raised would be used to repay current debt of $600m (but
Riba with $180m cash flow may easily support $600m debt).
o MP informed us that WDR suggested submitting the restructuring proposal to
an EGM.
o MP invited EK to contact WDR (Ben Lorello in NY or Doug McCutchen in
London).
o TT and EK agreed to support MP in selling the idea to existing
shareholders which MP envisaged would be the major problem.
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Exhibit 2
[LETTERHEAD OF STERLING INVESTMENT HOLDINGS LIMITED]
Mr. Milan Panic
Chairman and CEO
ICN Pharmaceuticals Inc.
3300 Hyland Avenue
Costa Mesa, CA 92626
28 July, 2000
Dear Mr. Panic,
I presume that Mr. Lorello has briefed you concerning his meeting yesterday
evening with Mr. Knight. Mr. Lorello informed Mr. Knight that he had not
received instructions from you and consequently, it was all too easy for him to
refuse to discuss any aspect of the plan which we formulated in Nice on Monday
24 July. This resulted in the meeting being a waste of time.
Frankly, following the positive outcome of our meeting in Nice - which was
mentioned in our latest 13-D at your request - I am surprised and disappointed
at your advisor's unhelpful attitude even though the position which he chose to
take is (procedurally) correct. Mr. Knight postponed his return to Europe
specially to meet Mr. Lorello and was also prepared to meet him in Europe had
this been more convenient.
Based on the telephone conversation which Mr. Knight and Mr Alster, a tax
partner at Cleary Gottlieb, had with Mr. McDonald, your corporate development
director, on Tuesday 25 July, it appears that the plan which we discussed and
agreed to investigate for you does not pose any major difficulties from a tax
point of view. Mr. Knight was also told by Mr. Lorello that UBS Warburg does not
foresee any problem in refinancing ICN's senior debt, which was the other major
concern you had.
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In order to take matters forward, we believe that a more detailed analysis needs
to be prepared urgently for submission to the Board - preferably with input from
your advisors if they are prepared to take a constructive attitude. In parallel,
we would like to suggest that Mr. Alster meet with his counterpart at Fried
Frank in order to establish conclusively that the proposed restructuring will be
acceptable from a tax point of view.
Until now, we were convinced that you had chosen to pursue an alternative route
which would benefit from support from ICN's major shareholders. Yesterday's
meeting with your advisors unfortunately puts this into doubt and we will have
no choice but to amend our 13-D if action is not taken swiftly to redress this.
A serious working meeting needs to be arranged with your advisors for the
beginning of next week in London or Monte-Carlo.
The notice of the annual shareholders meeting could be mailed any day now and it
would be regrettable if shareholder reaction were to jeopardise the possibility
of reaching a mutually satisfactory solution along the lines of what we were
discussing in Nice.
Yours sincerely,
/s/ Tito Tettamanti
Tito Tettamanti
Chairman
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Exhibit 3
[Letterhead of ICN Pharmaceuticals, Inc.]
July 31, 2000
Mt. Tito Tettamanti
Chairman
Sterling Investment Holdings Limited
C/o Fidinam (Monte Carlo) SAM
Monte Carlo Palace
7 Boulevard des Mavlins
Monte Carlo, 98000 Monaco
Dear Mr. Tettamanti:
As promised, I did try to meet with Mr. Lorello, and also tried to
organize a telephone conversation with him following our meeting in Nice. Our
two completely different schedules prohibited us from accomplishing this,
however, even though I was unable to meet with him or speak with him personally,
I did leave with his assistant, verbal instructions regarding his meeting with
Mr. Knight. I understand that Mr. Lorello decided to listen to the proposal and
not make any commitments at the time.
This does not mean, however, that we are not giving this serious
consideration. If at all possible, we will do it. Should there be any problems,
we will inform you. If we have any additional suggestions, we will also be in
contact with you.
Please be assured that your proposal is under discussion and
consideration.
Sincerely,
/s/ Milan Panic
Milan Panic
mo
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Exhibit 4
[LETTERHEAD OF SSP - SPECIAL SITUATIONS PARTNERS INC.]
Mr Milan Panic
Chairman and CEO
ICN Pharmaceuticals Inc.
3300 Hyland Avenue
Costa Mesa, CA 92626
By fax : + 1 714 641 7228
8 August, 2000
Dear Mr Panic,
You may be interested to see the attached graph which shows what happened
yesterday when Nycomed Amersham announced improved first half results and plans
to float 10% of AP Biotech in the autumn.
AP Biotech is a world leader in the fields of protein purification and drug
screening systems used for genomics research, one of the hottest segments of the
market. Analyst estimates of the value of AP Biotech range from $ 4 billion to $
6 billion (which is equivalent to the entire market cap of Nycomed Amersham).
There can be little doubt that the stock will be placed successfully by the
underwriters, who will make money, but the shareholders of the parent have
collectively lost approximately $600 million as a result of this move which was
designed supposedly to unlock shareholder value.
Nycomed Amersham is unable to sell more than 10% for technical (accounting)
reasons.
In a similar vein, we have no doubt as to Warburg's ability to place Ribapharm
shares, subject to the Board changes which we discussed, but the real issue is
the impact on ICN's share price. We remain convinced that the market price will
only reflect the true value of ICN if the Company is split into three completely
separate and independent companies, along the lines of what we have proposed.
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It is interesting to note that Merrill Lynch also came to a similar conclusion
with respect to Nycomed Amersham in its report which was published on 2 May
2000(1).
Yours sincerely
/s/ Eric Knight
Eric Knight
Managing Director
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(1) " We concluded from our sum of the parts valuation that a full demerger
could yield a theoretical upside of greater than 20% for investors who hold
shares in both businesses [ie Nycomed Amersham and AP Biotech]. This could be
the best option for releasing shareholder value in the short term, albeit at the
potential expense of the synergies between the groups. We believe that the most
likely scenario is a partial IPO of a minority share of AP Biotech ... This
option would release some shareholder value, although not as much potentially as
a full demerger of AP Biotech." (page 34)
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Nycomed Amersham stock price*
--------------------------------------
Date Time Price
--------------------------------------
08/04/00 13:00 696
14:00 706
15:00 696
16:00 703
17:30 698
08/07/00 07:30 688
08:30 651
09:30 655
10:30 649
11:30 653
12:30 645
13:30 645
14:30 654
15:30 645
16:30 653
17:30 646
08/08/00 07:30 651
08:30 647
09:30 637
10:30 644
11:30 643
12:30 642
--------------------------------------
* This chart is a tabulated version of a graph provided on Bloomberg.
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Exhibit 5
[LETTERHEAD OF SSP - SPECIAL SITUATIONS PARTNERS INC.]
Mr. Milan Panic
Chairman and CEO
ICN Pharmaceuticals Inc.
3300 Hyland Avenue
Costa Mesa, CA 92626
By fax : +1 714 641 7228
24 August, 2000
Dear Mr. Panic,
Although the amended Ribapharm registration statement which was filed with the
SEC yesterday came as no surprise, the fact that you have chosen to persist with
the ill conceived restructuring plan announced by ICN on 15 June, with a few
minor changes, is very worrying for ICN's shareholders. This has been confirmed
to us by a number of ICN's largest shareholders during the course of the day.
The market gave you a very clear message when the ICN share price collapsed
following your initial announcement in June and a number of large institutional
shareholders have also made their dissatisfaction known to you, in private and
in public. You have chosen to disregard this, but the market is not easily
fooled.
In view of this situation, I would like to make the following observations:
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1. The changes announced yesterday fundamentally change nothing. ICN will
continue to own and control a majority of Ribapharm's stock and will consolidate
the subsidiary for accounting and tax purposes. The market was hoping for a
complete separation of ICN and Ribapharm, which would have given Ribapharm stock
to the ICN shareholders and permitted Ribapharm to be valued on a standalone
basis, but this issue is not at all resolved by yesterday's amendments.
2. The market's reaction to yesterday's announcement was, once again, entirely
predictable. While the concept of highlighting a subsidiary's value to enhance
the value of the parent is valid in theory, in practice this often does not
work, particularly when there are other fundamental reasons for the
under-valuation. Only two weeks ago, we brought to your attention the fact that
the market value of Nycomed Amersham plc fell substantially on the day it
announced plans to float 10% of AP Biotech - and it has fallen further since
then. AP Biotech is a world leader in the fields of protein purification and
drug screening systems used for genomics research, one of the hottest segments
of the market, and its anticipated market capitalisation is approximately equal
to that of its parent. The similarities with the ICN/ Ribapharm situation are
quite striking and should have been noted.
3. When we met on 24 July, we discussed with you SSP's restructuring proposal,
which involves splitting ICN into three completely separate and independent
companies. Your reaction to our proposal was extremely positive and you even
showed us a page from a written presentation by UBS Warburg to your Board in
which they conclude that a full breakup of ICN is the path which will release
maximum shareholder value. It is surprising to us that the Board is not pursuing
the route which its advisors have recommended as a means to maximise shareholder
value.
4. During our meeting of 24 July, you asked Mr. Knight to contact your Business
Development Manager and a representative of UBS Warburg in order to explain our
plan to them in detail. Based on these meetings, one by telephone with our tax
advisors present and the other in person, it appears that neither tax
considerations nor ICN's senior debt pose insurmountable obstacles to the
implementation of our plan.
5. With regard to our plan, following our meeting of 24 July and our letter of
28 July, you confirmed to us by letter that "If at all possible we will do it.
Should there be any problem, we will inform you. If we have any additional
suggestions, we will also be in contact with you." During the previous week, you
also asked Mr. Knight (by telephone) to state in our 13-d that we had had a
constructive meeting on 24 July and that we had agreed on how to move forward.
We were happy to do so, since we believed this to be true.
In light of the amended Ribapharm registration statement and the comments made
to the press by Mr David Watt, ICN's representative, concerning your plans to
remain
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Chairman of ICN's remaining North American and Eastern European operations and
there being no plans to spin off or otherwise do anything with ICN's remaining
stake in Ribapharm, we believe that you have misled us.
SSP cannot mislead the market by maintaining the impression that negotiations
are still under way or that progress is being made with respect to our proposal
if this is not the case. Accordingly, we will now amend our 13-d to reflect
this.
In the absence of progress, you should assume that we will oppose the IPO of
Ribapharm by every means legally available to us, including challenging its
validity in the Courts. If necessary, we may also decide to nominate a slate of
directors at the next Annual Stockholders Meeting, and if so will make the
appropriate filings in due course. In order to maximise shareholder value, we
intend also to invite third parties to submit expressions of interest to acquire
or merge with Ribapharm and / or ICN.
Yours sincerely,
/s/ Tito Tettamanti
Tito Tettamanti
Chairman
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