EXHIBIT 10.2
REDEMPTION AGREEMENT
This REDEMPTION AGREEMENT (the "Agreement") is entered into as of the 5th
day of November, 2002 (the "Effective Date"), by and among IVAX DIAGNOSTICS,
INC., a Delaware corporation (the "Company"), TITANIUM HOLDINGS GROUP, INC., a
Nevada corporation ("Titanium"), XXXXXXX X. XXXXX, a natural person ("Xxxxx"
and, together with Titanium, the "Sellers"), XXXXXX XXXX, a natural person
("Etra"), and XXXXXXX XXXXXX, a natural person ("Xxxxxx").
PRELIMINARY STATEMENTS
WHEREAS, Titanium, Xxxxx, Xxxx and Xxxxxx are each the record and
beneficial owners of that number of shares of the Common Stock, par value $0.01
per share, of the Company (the "Common Stock") set forth opposite to their
respective names on Exhibit A hereto; and
WHEREAS, the Sellers desire to sell to the Company, and the Company desires
to redeem from the Sellers, free and clear of all Liens (as hereinafter
defined), an aggregate of 871,473 shares of Common Stock (the "Purchased
Shares") upon the terms and subject to the conditions of this Agreement; and
WHEREAS, Titanium, Etra, and Xxxxxx (the "Optionors") desire to grant the
Company an option to acquire from the Optionors, free and clear of all Liens, an
aggregate additional 657,125 shares of Common Stock (the "Option Shares") upon
the terms and subject to the conditions of this Agreement; and
WHEREAS, as a condition to the willingness of the Company to enter into
this Agreement, the Company has requested that Titanium, Davis, Etra, and Xxxxxx
each agree, and, in order to induce the Company to enter into this Agreement,
each of them have agreed to certain limitations on their ownership of certain of
their remaining shares of Common Stock and to certain other undertakings;
NOW, THEREFORE, in consideration of the premises and the terms, covenants
and agreements set forth herein, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
PURCHASE AND SALE OF PURCHASED SHARES
1.1 Purchase and Sale of Purchased Shares. Upon the terms and subject to
the conditions set forth herein, at the Closing (as hereinafter defined) each
Seller shall sell, assign, transfer and deliver to the Company, and the Company
shall purchase and redeem from each Seller, the respective number of Purchased
Shares set forth opposite such Seller's name on Exhibit A attached hereto, free
and clear of all liens, claims, charges, pledges, security interests or other
encumbrance of
any nature whatsoever (collectively, "Liens"), for a purchase price equal to the
closing price of the Company's Common Stock on October 24, 2002, as reflected on
the American Stock Exchange, per Purchased Share (the "Purchase Price").
1.2 Closing. The consummation of the sale and purchase of the Purchased
Shares contemplated by this Agreement (the "Closing") shall take place
concurrently with the execution and delivery of this Agreement at such place as
the parties may mutually agree upon. The date on which the Closing takes place
shall be hereinafter referred to as the "Closing Date." At the Closing, Sellers
shall effect the sale of the Purchased Shares, as herein provided, by delivery
to Buyer of stock certificates representing the Purchased Shares duly endorsed
in blank for transfer, with all required stock transfer tax stamps, if any,
affixed thereto, and Buyer shall effect the purchase of the Purchased Shares, as
herein provided, by delivering or causing the delivery to Sellers of the
aggregate Purchase Price with respect to the Purchased Shares acquired from such
Seller at such specified account designated by each Seller and in such amounts
as reflected in Exhibit A. On the Closing Date, in consideration for the release
granted by Section 6.1 hereof, the grant of the Options (as defined below), and
the covenants set forth in Article V hereof, the Company shall grant the release
of Titanium, Davis, Etra, and Xxxxxx contemplated by Section 6.2 hereof and
shall also pay into an account designated by Titanium, Davis, Etra, and Xxxxxx,
a cash payment in the aggregate amount of $217,868.25, to be divided among them
in such manner as they may mutually agree.
ARTICLE II
OPTIONS
2.1 Grant of Options to Purchase Option Shares. Each of the Optionors
hereby grants to the Company an option (each an "Option" and, collectively, the
"Options") to purchase and redeem from such Optionor the respective number of
Option Shares set forth opposite such Optionor's name on Exhibit A hereto, free
and clear of all Liens, at an exercise price of $4.00 per Option Share (the
"Exercise Price").
2.2 Exercise of Options. The Company may exercise any Option, in whole or
in part, at any time and from time to time on or before eighteen (18) months
after the Effective Date (the "Expiration Date") by written notice to the
Optionor (each an "Exercise Notice"). The Exercise Notice shall specify the
number of Option Shares as to which the Company desires to exercise such Option,
a date not less than five (5) days nor more than sixty (60) days after the date
of the Exercise Notice on which the Option Closing (as hereinafter defined)
shall be held, and the place of the Option Closing.
2.3 Option Closing. The consummation of the purchase and redemption of any
Option Shares (an "Option Closing") shall take place at the time and place
specified in the Company's Exercise Notice. The date on which the Option Closing
takes place shall be hereinafter referred to as the "Option Closing Date." At
the Option Closing, the applicable Optionor shall effect the sale of the Option
Shares as to which the Company has exercised the underlying option, as herein
provided, by delivery to the Company of stock certificates representing the
Option Shares as to which the Option has been exercised duly endorsed in blank
for transfer, with all required stock transfer tax stamps, if any, affixed
thereto, and the Company shall effect the purchase of such Option Shares, as
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herein provided, by delivering or causing the delivery to such Optionor of the
aggregate Exercise Price with respect to such Option Shares acquired from such
Optionor and, if necessary, a balance certificate in respect of any Option
Shares not then acquired.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
In order to induce Titanium, Davis, Etra, and Xxxxxx to enter into this
Agreement and to consummate the transactions contemplated hereby, the Company
makes the representations and warranties set forth below to each of Titanium,
Davis, Etra, and Xxxxxx, all of which shall survive the Closing.
3.1 Organization. The Company is a corporation validly existing under the
laws of the State of Delaware whose status is active. The Company has all
requisite right, power and authority to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby.
3.2 Authorization; Enforceability. The execution, delivery, and
performance of this Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby have been duly authorized by all
requisite corporate action on the part of the Company and, upon execution by all
the parties hereto, this Agreement will constitute the legal, valid, and binding
obligation of the Company, enforceable against it in accordance with its terms,
except to the extent that its enforcement is limited by bankruptcy, insolvency,
reorganization, or other laws relating to or affecting the enforcement of
creditors' rights generally and by general principles of equity.
3.3 No Violation or Conflict. The execution, delivery, and performance of
this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not violate or conflict with
any provision of law or regulation, or any provision of the Company's Articles
of Incorporation or Bylaws, or, to the knowledge of the Company, any writ,
order, judgment, or decree of any court or governmental or regulatory authority.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TITANIUM, XXXXX XXXX AND XXXXXX
In order to induce the Company to enter into this Agreement and to
consummate the transactions contemplated hereby, Titanium, Davis, Etra, and
Xxxxxx, jointly and severally, make the representations and warranties set forth
below to the Company, all of which shall survive the Closing.
4.1 Organization; Capacity. Titanium is a corporation validly existing and
in good standing under the laws of the State of Nevada. Titanium has all
requisite right, power and authority to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby.
4.2 Authorization; Enforceability. The execution, delivery, and
performance of this Agreement by Titanium and the consummation by Titanium of
the transactions contemplated hereby
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have been duly authorized by all requisite corporate action on the part of
Titanium. This Agreement has been duly executed and delivered by each of
Titanium, Davis, Etra, and Xxxxxx, and, upon due execution by the Company, will
constitute the legal, valid, and binding obligations of each of Titanium, Davis,
Etra, and Xxxxxx, enforceable against each of them in accordance with its terms,
except to the extent that its enforcement is limited by bankruptcy, insolvency,
reorganization, or other laws relating to or affecting the enforcement of
creditors' rights generally and by general principles of equity.
4.3 No Violation or Conflict. The execution, delivery and performance of
this Agreement by each Seller and the consummation by each Seller of the
transactions contemplated hereby do not and will not violate or conflict with
any provision of law or regulation, or any provision of Titanium's Articles of
Incorporation or Bylaws or, to the knowledge of each of Titanium, Xxxxx, Xxxx or
Xxxxxx, any writ, order, judgment, or decree of any court or governmental or
regulatory authority.
4.4 Title to Shares. Each of Titanium, Davis, Etra, and Xxxxxx are the
record and beneficial owner of the number of shares of Purchased Shares, Option
Shares and Additional Lock-up Shares (as defined below) set forth opposite to
their respective names on Exhibit A and the Purchased Shares and Option Shares
are owned by each of them, as applicable, free and clear of any Liens,
including, without limitation, claims, or rights under any voting trust
agreements, shareholder or partnership agreements, or other contracts,
agreements, arrangements, or understandings. Except as set forth on Exhibit A,
none of Titanium, Xxxxx, Xxxx nor Xxxxxx own or have the right to acquire any
shares of Common Stock. At the Closing, each Seller will transfer and convey,
and the Company will acquire, good and valid title to the Purchased Shares, free
and clear of all Liens. At each Option Closing, each Optionor whose Option
Shares are being redeemed will transfer and convey, and the Company will
acquire, good and valid title to the Option Shares to be acquired, free and
clear of all Liens. Titanium, Davis, Etra, and Xxxxxx each hereby acknowledge
that the Company and its Affiliates (as defined below) may have information that
is not available to the public and that may be material in making an investment
decision in the Common Stock. Each Seller and each Optionor, with full knowledge
of the foregoing, has decided to sell to the Company their Purchased Shares or
grant to the Company an Option, as applicable, and each of them hereby
acknowledges that, but for their representations and warranties contained in
this Agreement, the Company would not purchase the Purchased Shares or agree to
receive the Options. Titanium, Davis, Etra, and Xxxxxx each hereby acknowledge
and confirm that they are not relying on any representation or warranty other
than those expressly contained in this Agreement and that neither the Company,
nor any of its Affiliates, nor any of their respective employees, officers,
directors, members, or agents has (i) given any investment advice or rendered
any opinion to Titanium, Davis, Etra, or Xxxxxx as to whether the transactions
contemplated by this Agreement are prudent or advisable; or (ii) made any
representations or warranties about the prudence or advisability of the
transactions contemplated by this Agreement, the financial condition, results of
operation, business or future prospects of the Company or as to any other matter
not expressly contained in this Agreement.
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ARTICLE V
COVENANTS
Titanium, Davis, Etra, and Xxxxxx agree to perform the covenants set forth
below.
5.1 Public Announcements. Neither Titanium, Davis, Etra, nor Xxxxxx will,
directly or indirectly, issue any press release or make any public statement
with respect to this Agreement or the transactions contemplated hereby without
the prior written consent of the Company, except as may be required by
applicable law. Titanium, Xxxxx, Xxxx and Xxxxxx recognize and acknowledge that
the Company is required to disclose the existence of this Agreement and the
transactions contemplated hereby, and to include a copy of this Agreement, in
public filings to be made with the Securities and Exchange Commission (the
"SEC"). The Company recognizes and acknowledges that Titanium is required to
disclose the existence of this Agreement and the transactions contemplated
hereby, and to include a copy of this Agreement, in public filings to be made
with the SEC.
5.2 Restriction on Transfer. Until the Expiration Date, neither Etra,
Xxxxxx nor Titanium will, directly or indirectly, transfer, assign, sell, loan,
pledge, grant any rights with respect to, or otherwise dispose of (a
"Transfer"), whether by operation of law or otherwise, any of the Option Shares
owned by them to any Person other than the Company or its Affiliates. For
purposes of this Agreement, "Affiliate" means an entity controlled by,
controlling or under common control with the Company. Additionally, until the
Expiration Date, neither Titanium nor Etra will, directly or indirectly,
Transfer any of the other (307,125 with respect to Titanium and 150,000 with
respect to Etra) shares of Common Stock held by it or he, as the case may be,
which are not Option Shares (the "Additional Lock-up Shares") to any person or
entity other than the Company.
5.3 Limitation on Ownership of Voting Securities; Certain Undertakings.
Titanium, Davis, Etra, and Xxxxxx each covenant and agree that, from and after
the Closing and until the Expiration Date, they will not, singly or as part of a
"partnership, limited partnership, syndicate, or other "group" (as those terms
are used within the meaning of Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended), directly or indirectly, through one or more intermediaries
or otherwise:
a. act, alone or in concert with others (including through contract
or by providing financing for another party), to seek or offer to control, in
any manner, the management, Board of Directors or policies of the Company;
b. solicit, seek or offer to effect, negotiate with, or provide any
information or make any statement or proposal to any person or entity with a
view to forming a group or make any public announcement or proposal or offer
whatsoever, with respect to: (i) any form of business combination or similar
transaction involving the Company or any of its subsidiaries, including, without
limitation, a merger, tender or exchange offer, or liquidation of assets or (ii)
any form of restructuring, recapitalization or similar transaction with respect
to the Company or any of its subsidiaries; or
c. instigate, encourage or assist any third party to do any of the
foregoing.
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5.4 Restrictive Legends. Titanium, Etra, and Xxxxxx each agree that the
Company shall be entitled to place a restrictive legend concerning the
restrictions contemplated by this Agreement on any certificates representing the
Option Shares and Additional Lock-up Shares of which any of them is the
beneficial owner and to place corresponding "stop transfer" instructions with
its transfer agent. The restrictive legend shall state in the same, or
substantially similar language, the following:
"These securities are subject to restrictions on the
transfer, sale, assign, loan pledge, and grant of rights or
other disposition (a "Transfer"), pursuant to the Redemption
Agreement, dated as of November 4, 2002, by and between IVAX
Diagnostics, Inc., Titanium Holdings Group, Inc., Xxxxxxx X.
Xxxxx, Xxxxxx Xxxx, and Xxxxxxx Xxxxxx. The limitation on
Transfer will be effective until May 4, 2004, at which time
these securities shall NOT be subject to this restriction on
Transfer."
Each of Titanium, Etra, and Xxxxxx agree to submit a request to their respective
brokers to obtain certificated shares of any of the Option Shares or Additional
Lock-up Shares within five (5) days after the date of this Agreement. Each of
Titanium, Etra and Xxxxxx further agree to use their respective best efforts to
deliver or cause to be delivered to the Company's transfer agent for the
imprinting of the restrictive legend contemplated by this Section 5.4 within
sixty (60) days after the date of this Agreement all certificates representing
the Option Shares and Additional Lock-up Shares. Nothing herein shall be
construed to prohibit any of Titanium, Davis, Etra, and Xxxxxx from the Transfer
of any securities of the Company other than the Option Shares and Additional
Lock-up Shares, whether presently held or hereafter acquired.
5.5 Further Assurances. The parties shall deliver any and all other
instruments or documents required to be delivered pursuant to, or necessary or
proper in order to give effect to, the provisions of this Agreement, including,
without limitation, all necessary stock powers and such other instruments of
transfer as may be necessary or desirable to transfer ownership of the Purchased
Shares or the Option Shares (for each Option that is exercised) and to
consummate the transactions contemplated by this Agreement.
5.6 Confidentiality. Each of Titanium, Xxxxx, Xxxx and Xxxxxx acknowledges
that all confidential or proprietary information with respect to the business
and operations of the Company are valuable, special and unique. Neither
Titanium, Davis, Etra, nor Xxxxxx shall at any time after the Closing Date
disclose, directly or indirectly, to any Person, or use or purport to authorize
any Person to use, any confidential or proprietary information with respect to
the Company, whether or not for their own benefit, without the prior written
consent of the Company, including without limitation, information as to the
financial condition, results of operations, customers, suppliers, products,
sources, leads or methods of obtaining new products or business, computer
systems, marketing strategies, or any other information relating to the Company
which could reasonably be regarded as confidential or proprietary, but not
including information which is or shall become generally available to the public
other than as a result of an unauthorized disclosure, directly or indirectly, by
any of Titanium, Davis, Etra, and Xxxxxx. Each of Titanium, Davis, Etra, and
Xxxxxx acknowledge that the Company would not enter into this Agreement without
the assurance that all such confidential and proprietary information will be
used for the exclusive benefit of the Company.
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5.7 Continuing Obligations. Each of Titanium, Davis, Etra, and Xxxxxx
acknowledge that the Company would be irreparably harmed and that monetary
damages would not provide an adequate remedy to the Company in the event the
covenants contained in this Article V were not complied with in accordance with
their terms. Accordingly, each of Titanium, Davis, Etra, and Xxxxxx agree that
any breach or threatened breach by any of them of any of their obligations shall
entitle the Company, without posting any bond or other security, to injunctive
and other equitable relief to secure the enforcement of these provisions, in
addition to any other remedies which may be available to the Company, and that
the Company shall be entitled to receive from Titanium, Davis, Etra, and Xxxxxx,
as applicable reimbursement for all attorneys= fees and expenses incurred by the
Company if it prevails in enforcing these provisions.
ARTICLE VI
RELEASES
6.1 Release of Company. Each of Titanium, Davis, Etra, and Xxxxxx hereby
unconditionally and irrevocably releases and forever discharges, the Company and
each of its Affiliates, including, without limitation, IVAX Corporation, a
Florida corporation ("IVAX"), and each of their respective officers, directors,
employees and agents, from any and all claims, liabilities, obligations,
damages, or indebtedness of any nature, whether accrued or unaccrued, asserted
or unasserted, and whether known or unknown, which ever existed, now exist, or
may hereafter exist, by reason of any tort, breach of contract, violation of law
or other act or failure to act which shall have occurred at or prior to the date
hereof (each a "Claim"); provided, however, that the foregoing release by Xxxxx
or Xxxxxx shall not apply to any Claim, which they may have against the Company,
or, solely with respect to Xxxxx, a Claim against IVAX arising out of its
limited guarantee of the Company's indemnity obligations, pursuant to: (i) the
provisions of the Company's Certificate of Incorporation or Bylaws relating to
the indemnification of the Company's officers and directors, (ii) the provisions
of Section 145 of the General Corporation Law of the State of Delaware, (iii)
any Claim relating to payments made or applied under the provisions of a
Director or Officer insurance policy, or (iv) any valid indemnification
agreement, including for Xxxxx, the Indemnification Agreement dated as of August
1, 2002 between Xxxxx and the Company. It is specifically intended that such
releases are to be effective regardless of whether the basis for any claim or
right released shall be known to or anticipated by Titanium, Davis, Etra, or
Xxxxxx.
6.2 Release of Titanium, Davis, Etra, and Xxxxxx. Each of the Company and
IVAX hereby unconditionally and irrevocably release and forever discharge,
Titanium, Davis, Etra, and Xxxxxx and each of their respective officers,
directors, employees and agents, from any and all Claims. It is specifically
intended that this release is to be effective regardless of whether the basis
for any claim or right released shall be known to or anticipated by the Company.
6.3 Indemnification Obligations. From and after the date hereof, Xxxxx and
Xxxxxx shall retain all rights that they may have with respect to the Company
pursuant to (i) the provisions of the Company's Certificate of Incorporation or
Bylaws relating to the indemnification of the Company's officers and directors,
(ii) the provisions of Section 145 of the General Corporation Law of the State
of Delaware, (iii) any applicable Director and Officer Insurance Policy of the
Company, or (iv) any
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valid indemnification agreement, including for Xxxxx, the Indemnification
Agreement dated as of August 1, 2002 between Xxxxx and the Company.
ARTICLE VII
MISCELLANEOUS
7.1 Notices. Any notice, request, demand or other communication required
or permitted under this Agreement shall be in writing and shall be delivered
personally or sent by certified U.S. mail, return receipt requested, postage
prepaid, by facsimile or by prepaid overnight courier, in each case, to the
parties at the names and addresses set forth below (or at such other addresses
as shall be specified by the parties by like notice).
If to Titanium, then to:
Titanium Holdings Group, Inc.
0000 Xxxxxxx
Xxx Xxxxxxx, Xxxxx 00000-0000
Facsimile: 000-000-0000
with a copy to:
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx #0000
Xxx Xxxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxxxxx
Facsimilie: 000-000-0000
If to Xxxxx, then to:
Xxxxxxx X. Xxxxx
Titanium Holdings Group, Inc.
0000 Xxxxxxx
Xxx Xxxxxxx, Xxxxx 00000-0000
Facsimile: 000-000-0000
If to Etra, then to:
Xxxxxx Xxxx
0000 00xx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
If to Xxxxxx then to:
Xxxxxxx Xxxxxx
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000-0000
Facsimile: 000-000-0000
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If to the Company, then to:
IVAX Diagnostics, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: 000-000-0000
with copies to:
IVAX Corporation
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Facsimile: 000-000-0000
and
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxxxx & Xxxxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx, Esq.
Facsimile No.: 000-000-0000
Such notices, demands, claims and other communications shall be deemed
given when actually received, or: (a) in the case of delivery by overnight
service with guaranteed next day delivery, the next day or the day designated
for delivery, (b) in the case of certified U.S. mail, five (5) days after
deposit in the U.S. mail, or (c) in the case of facsimile, the date upon which
the transmitting party received confirmation of receipt by facsimile, telephone
or otherwise.
7.2 Assignment. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, executors, legal
representatives, successors and permitted assigns. Other than the Options, which
shall be freely assignable by the Company in whole or in part, no party hereto
may assign this Agreement or any rights hereunder, in whole or in part, except
that the Company may assign this Agreement to its Affiliates; provided, however,
that any assignee shall assume the assignor's obligations hereunder.
7.3 Waiver and Amendment. Any representation, warranty, covenant,
agreement, term or condition of this Agreement which may legally be waived, may
be waived, or the time of performance thereof extended, at any time by the party
hereto entitled to the benefit thereof, and any term, condition, covenant or
agreement may be amended by the parties hereto at any time. Any such waiver,
extension or amendment shall be in writing.
7.4 Governing Law. This Agreement has been entered into and shall be
construed and enforced in accordance with the laws of the State of Florida
without reference to the choice of law principles thereof.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed and
delivered this Agreement as of the day and year first above written.
IVAX DIAGNOSTICS, INC.
By: /s/ Xxxxxxx X'Xxxx
--------------------------
Name: Xxxxxxx X'Xxxx
Title: President and CEO
TITANIUM HOLDINGS GROUP, INC.
By: /s/ Xxxxxx Xxxx
--------------------------
Name: Xxxxxx Xxxx
Title: Chairman of the Board
/s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx Xxxx
--------------------------
Xxxxxx Xxxx
/s/ Xxxxxxx Xxxxxx
--------------------------
Xxxxxxx Xxxxxx
IVAX CORPORATION
solely for the limited purpose of agreeing to
the provisions of Article VI of this Agreement
By: /s/ Xxxxxx X. Xxxxx
------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and General Counsel
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