Common use of Conditions to the Obligations of Bergen Clause in Contracts

Conditions to the Obligations of Bergen. The obligations of Bergen to consummate the Bergen Merger, or to permit the consummation of the Bergen Merger, are subject to the satisfaction or, if permitted by applicable Law, waiver of the following further conditions: (a) each of the representations and warranties of IVAX contained in this Agreement that is qualified by materiality shall be true and correct on and as of the Effective Time as if made at and as of the Effective Time (other than representations and warranties which address matters only as of a certain date which shall be true and correct as of such certain date) and each of the representations and warranties that is not so qualified shall be true and correct in all material respects on and as of the Effective Time as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be true and correct in all material respects as of such certain date), in each case except as contemplated or permitted by this Agreement, and Bergen shall have received a certificate of the Chairman or President and Chief Financial Officer of IVAX to such effect; (b) IVAX shall have performed or complied in all material respects with all material agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Effective Time and Bergen shall have received a certificate of the Chairman or President and Chief Financial Officer of IVAX to that effect; (c) there shall not have occurred any material adverse change in or effect on the business, assets (including intangible assets), liabilities (contingent or otherwise), condition (financial or otherwise) or results of operations of IVAX and the IVAX Subsidiaries taken as a whole, except for any IVAX Material Adverse Effect Exclusion; (d) Shearman & Sterling, special counsel to Bergen, shall have issued its opinions, such opinions dated on or about the date hereof and on or about the date of the Closing, addressed to Bergen, and reasonably satisfactory to it, based upon customary representations of Bergen and BBI and customary assumptions, to the effect that the Bergen Merger will be treated for federal income tax purposes as a reorganization qualifying under the provisions of Section 368(a) of the Code and that each of Bergen, Bergen Merger Sub and BBI shall be a party to the reorganization within the meaning of Section 368(b) of the Code, which opinions shall not have been withdrawn or modified in any material respect; and (e) IVAX shall have received the opinion described in Section 7.02(d) hereof, in form and substance reasonably satisfactory to Bergen.