EXHIBIT 2.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
AND
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT AND AMENDMENT NO. 1 TO STOCK
PURCHASE AGREEMENT (this "Assignment and Amendment") is made and executed as of
the 17th day of June, 1997 by and among X. XXXXX OF AMERICA INC., a Pennsylvania
corporation ("BOA"), X. XXXXX MEDICAL INC., a Pennsylvania corporation ("BBM"),
and IVAX CORPORATION, a Florida corporation ("Seller").
RECITALS
A. BOA is a party to that certain Stock Purchase Agreement (the
"Purchase Agreement") by and between Seller and BOA, as Purchaser.
B. BOA and Seller wish to amend certain provisions of the Purchase
Agreement as provided herein.
C. As permitted by Section 15.5 of the Purchase Agreement, BOA wishes
to transfer and assign to BBM the Agreement and all of BOA's rights, interests
and obligations thereunder, and BBM wishes to accept such assignment and to
assume from BOA all of BOA's obligations under the Purchase Agreement, all on
the terms and conditions set forth herein.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the premises and covenants
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. All terms not otherwise defined herein shall have the
meanings given them in the Purchase Agreement.
2. AMENDMENTS TO AGREEMENT.
(a) BOA and Seller hereby amend Section 1.98 of the Purchase Agreement to
read in its entirety as follows:
"1.98 'PURCHASER' shall have the meaning set forth in the introductory
paragraph of this Agreement."
(b) BOA and Seller hereby amend Section 11.2(b) of the Purchase Agreement
to read in its entirety as follows:
"(b) PURCHASER agrees and, to the extent the Closing occurs, shall
cause BBM and each XxXxx Company to jointly and severally agree, to
indemnify and hold SELLER harmless from any Indemnified Liabilities
which result from or arise out of the breach of any representation,
warranty, covenant or agreement made by PURCHASER in this Agreement, in
any Schedule or Exhibit to this Agreement, in any Ancillary Agreement
or in any certificate furnished or to be furnished by or on behalf of
PURCHASER under this Agreement."
(c) BOA and Seller hereby amend Section 15.2 of the Purchase Agreement to
read in its entirety as follows:
"15.2 PERFORMANCE OF LEASE OBLIGATIONS. PURCHASER agrees that, if SELLER
does not obtain the termination of SELLER's guarantee of certain
obligations of XxXxx pursuant to the lease by XxXxx of XxXxx'x facility
in Carrollton, Texas, then PURCHASER shall, from and after the Closing,
cause XxXxx to faithfully and timely perform all obligations of XxXxx
pursuant to such lease including, without limitation, the payment of
rent and the performance or observance of all covenants of XxXxx
thereunder. PURCHASER further agrees to hold harmless and indemnify
SELLER and its shareholders, directors, officers, employees,
representatives, agents, successors and assigns from and against any
Indemnified Liabilities which result from or arise out of any breach by
XxXxx of its obligations under such lease in accordance with the
provisions of Article 11 hereof."
(d) BOA and Seller hereby amend Section 11.14(a) of the Purchase Agreement
to read in its entirety as follows:
"(a) With respect to the indemnity obligation set forth in Section 11.2
herein, SELLER and PURCHASER shall not be required to indemnify and
hold harmless the other until the aggregate amount of the Indemnified
Liabilities owed to the Indemnified Party hereunder exceeds Seven
Million Five Hundred Thousand Dollars ($7,500,000) (the "Basket
Amount"); provided, however, that at such time as such Indemnified
Liabilities exceed the Basket Amount, the Indemnifying Party shall pay
to the Indemnified Party Three Million Seven Hundred Fifty Thousand
Dollars ($3,750,000) plus any and all other Indemnified Liabilities
resulting from the indemnity obligation pursuant to Section 11.2 in
excess of such Seven Million Five Hundred Thousand Dollars ($7,500,000)
amount. Nothwithstanding the foregoing, none of the limitations in this
Section 11.14(a) shall be applicable to any breach of any covenant or
agreement of a party hereto contained herein, or to any breach of any
of SELLER'S representations or warranties set forth in Section 4.5
hereof other than those contained in the first sentence of Section 4.5
or with respect to the BioMed Shares."
1. ASSIGNMENT BY BOA TO BBM. BOA hereby assigns to BBM all of BOA's
rights and interests under the Agreement.
2. ASSUMPTION BY BBM. BBM hereby accepts BOA's assignment to BBM
hereunder of all of BOA's rights and interests under the Agreement and
BBM hereby unconditionally and expressly assumes all of BOA's duties
and obligations under the Purchase Agreement in BOA's place and stead
and shall faithfully perform the same.
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3. ACKNOWLEDGMENT OF BOA. BOA hereby acknowledges that the assignment
by BOA to BBM of its rights and interests and the assumption of BOA's
duties and obligations pursuant to this Assignment and Amendment shall
not operate in any way to modify, relieve or discharge any of the
obligations of BOA under the Purchase Agreement. BOA and BBM remain
jointly and severally liable for all obligations and liabilities of
PURCHASER under the Purchase Agreement.
4. CONSENT OF SELLER. Seller hereby expressly consents to the assignment
and assumption provided for in Sections 3 and 4 hereof.
IN WITNESS WHEREOF, the parties have executed this Assignment and
Amendment as of the date first above written.
BOA: X. Xxxxx of America Inc. BBM: X. Xxxxx Medical Inc.
/S/ XXXXXX X. XXXXXXXX /S/ XXXXXX X. XXXXXXXX
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by Xxxxxx X. Xxxxxxxx, Chairman by Xxxxxx X. Xxxxxxxx, Chairman
and Chief Executive Officer and Chief Executive Officer
ACKNOWLEDGED AND AGREED
SELLER: IVAX CORPORATION
/S/ XXXXX X. XXXXXXX
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by Xxxxx X. Xxxxxxx, Senior Vice President,
Corporate Development
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