EXHIBIT 5
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of November 10,
1996, among BERGEN XXXXXXXX CORPORATION, a New Jersey corporation ("Bergen"),
and FROST-NEVADA, LIMITED PARTNERSHIP, a Nevada limited partnership, and DR.
XXXXXXX XXXXX (each, a "Shareholder").
W I T N E S S E T H:
WHEREAS, as of the date hereof, the Shareholders own (directly
or indirectly, either beneficially or of record) 15,123,684 shares of common
stock, par value $.10 per share, of IVAX Corporation ("IVAX Common Stock"), a
Florida corporation ("IVAX"), (all such shares of IVAX Common Stock owned by the
Shareholders and any shares hereafter acquired by the Shareholders prior to the
termination of this Agreement are referred to herein as the "Shares");
WHEREAS, BBI Healthcare Corporation, a Delaware corporation
("BBI"), IVAX, Bergen, BBI-I Sub, Inc., a Florida corporation and a wholly owned
subsidiary of BBI ("IVAX Merger Sub"), and BBI-B Sub, Inc., a New Jersey
corporation and a wholly owned subsidiary of BBI ("Bergen Merger Sub"), propose
to enter into, simultaneously herewith, an Agreement and Plan of Merger (the
"Merger Agreement"; capitalized terms used but not defined in this Agreement
shall have the meanings ascribed to them in the Merger Agreement), which
provides, upon the terms and subject to the conditions thereof, for (i) the
acquisition by BBI of IVAX Common Stock through the merger of IVAX Merger Sub
with and into IVAX (the "IVAX Merger"), (ii) the acquisition by BBI of the Class
A common stock, par value $1.50 per share, of Bergen ("Bergen Common Stock"),
through the merger of Bergen Merger Sub with and into Bergen (the "Bergen
Merger" and, together with the IVAX Merger, the "Mergers") and (iii) the receipt
by the shareholders of each of IVAX and Bergen of shares of common stock, par
value $.01 per share, of BBI ("BBI Common Stock"), in proportion to their
interests in IVAX and Bergen, respectively; and
WHEREAS, as a condition to the willingness of Bergen to enter
into the Merger Agreement and the Bergen Stock Option Agreement, Bergen has
requested that each Shareholder agree, and, in order to induce Bergen to enter
into the Merger Agreement and the Bergen Stock Option Agreement, each
Shareholder has agreed, severally and not jointly, subject to the terms and
conditions of this Agreement, to vote such Shareholder's Shares in connection
with the requisite approval of the Merger Agreement and the Mergers.
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NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth in
this Agreement and in the Merger Agreement, the parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF
THE SHAREHOLDERS
Each Shareholder, severally and not jointly, hereby represents
and warrants to Bergen as follows:
SECTION 1.01. Due Organization; Authority Relative to this
Agreement. Such Shareholder (if it is a corporation, partnership or other legal
entity) is duly organized and validly existing under the laws of the
jurisdiction of its incorporation or organization. Such Shareholder has all
necessary power and authority (corporate or otherwise) to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. Such Shareholder has full legal capacity to
execute and deliver this Agreement. The execution and delivery of this Agreement
by such Shareholder and the consummation by such Shareholder of the transactions
contemplated hereby have been duly and validly authorized by all necessary
action (corporate or otherwise) and no other proceedings (corporate or
otherwise) on the part of such Shareholder are necessary to authorize this
Agreement or to consummate such transactions. This Agreement has been duly
executed and delivered by such Shareholder and, assuming the due authorization,
execution and delivery by Bergen and the other Shareholders, constitutes a
legal, valid and binding obligation of such Shareholder, enforceable against
such Shareholder in accordance with its terms.
SECTION 1.02. Consents; No Conflict. The execution and
delivery of this Agreement by such Shareholder do not, and the performance by
such Shareholder of its obligations pursuant to this Agreement and the
consummation of the transactions contemplated hereby will not, (i) require any
consent, approval, authorization or permit of, or filing with or notification to
(other than pursuant to the HSR Act or foreign competition, antitrust or
investment law, if applicable) any Governmental Entity, (ii) conflict with or
violate any provision of the Certificate of Incorporation or Bylaws or
equivalent organizational documents of such Shareholder (if it is a corporation,
partnership or other legal entity), (iii) assuming that all consents, approvals,
authorizations and permits described in this Section 1.02 have been obtained and
all filings and notifications described in this Section 1.02 have been made,
conflict with or violate any Law applicable to such Shareholder or by which any
property or asset of such Shareholder is bound or affected or (iv) result in any
breach of or constitute a default (or an event which with the giving of
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notice or lapse of time or both would become a default) under, or give to others
any right of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or other encumbrance on any property or asset of such
Shareholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation,
except, with respect to clauses (iii) and (iv), for any such conflicts,
violations, breaches, defaults or other occurrences which would neither,
individually or in the aggregate, prevent or materially delay the performance by
such Shareholder of any of the obligations of such Shareholder pursuant to this
Agreement.
SECTION 1.03. Title to Shares. The Shareholders are the record
or beneficial owners of 15,123,684 Shares, free and clear of all security
interests, liens, claims, pledges, options, rights of first refusal, agreements,
limitations on voting rights, charges and other encumbrances of any nature
whatsoever (other than pursuant to this Agreement).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF BERGEN
Bergen hereby represents and warrants to each of the
Shareholders as follows:
SECTION 2.01. Due Organization; Authority Relative to this
Agreement. Bergen is duly organized and validly existing under the laws of the
State of New Jersey. Bergen has all necessary corporate power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Bergen and the consummation by Bergen of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action and no other corporate proceedings on the part of Bergen are
necessary to authorize this Agreement or to consummate such transactions. This
Agreement has been duly executed and delivered by Bergen and, assuming the due
authorization, execution and delivery by the Shareholders, constitutes a legal,
valid and binding obligation of Bergen, enforceable against Bergen in accordance
with its terms.
SECTION 2.02. No Conflict; Required Filings and Consents. The
execution and delivery of this Agreement by Bergen do not, and the performance
by Bergen of its obligations pursuant to this Agreement and the consummation of
the transactions contemplated hereby will not, (i) require any consent,
approval, authorization or permit of, or filing with or notification to (other
than pursuant to the HSR Act or foreign competition, antitrust or investment
law, if applicable) any Governmental Entity, (ii) conflict with or violate any
provision of the Certificate of Incorporation or Bylaws of Bergen or any
equivalent organizational documents of any Bergen Subsidiary, (iii) assuming
that all consents, approvals, authorizations and permits described in this
Section 2.02 have been
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obtained and all filings and notifications described in this Section 2.02 have
been made, conflict with or violate any Law applicable to Bergen or any Bergen
Subsidiary or by which any property or asset of Bergen or any Bergen Subsidiary
is bound or affected or (iv) except as set forth in Section 4.05(a) of the
Bergen Disclosure Schedule, result in any breach of or constitute a default (or
an event which with the giving of notice or lapse of time or both would become a
default) under, or give to others any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or other
encumbrance on any property or asset of Bergen or any Bergen Subsidiary pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation, except, with respect to
clauses (iii) and (iv), for any such conflicts, violations, breaches, defaults
or other occurrences which would neither, individually or in the aggregate,
prevent or materially delay the performance by Bergen of its obligations
pursuant to this Agreement.
ARTICLE III
TRANSFER AND VOTING OF SHARES
SECTION 3.01. Transfer of Shares. During the Voting Term (as
defined below), and except as otherwise provided herein, the Shareholder shall
not (a) sell, pledge or otherwise dispose of any of its Shares, (b) deposit its
Shares into a voting trust or enter into a voting agreement or arrangement with
respect to such Shares or grant any proxy with respect thereto or (c) enter into
any contract, option or other arrangement or undertaking with respect to the
direct or indirect acquisition or sale, assignment, transfer or other
disposition of any of its Shares; provided, however, that, in the event the
Merger Agreement is terminated for a cause pursuant to which Bergen is entitled
to the payment of the amount specified in Section 8.05(b) of the Merger
Agreement, each Shareholder shall be permitted to take any such action described
in clause (a), (b) or (c) above during the period following such termination;
provided further that such transaction shall not be with a person (as defined in
the Merger Agreement) by or on behalf of which a Competing Transaction shall
have been made, or with any affiliate or associate (as such terms are defined in
Rule 12b-2 under the Exchange Act) of any such person.
SECTION 3.02. Voting of Shares; Further Assurances. (a) Each
Shareholder, by this Agreement, during and for the Voting Term, with respect to
those Shares that it owns of record at the time of such vote, hereby agrees to
vote each of such Shares at every annual, special or adjourned meeting of the
stockholders of IVAX (or pursuant to any consent, certificate or other document
relating to IVAX that the laws of the State of Florida may permit or require)
(i) in favor of the approval of the Merger Agreement and the Mergers, (ii)
against any proposal for any recapitalization, merger, sale of assets or other
business combination between IVAX and any person or entity (other than the
Mergers)
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or any other action or agreement that would result in any of the conditions to
IVAX's obligations under the Merger Agreement not being fulfilled, and (iii) in
favor of any other matter relating to consummation of the transactions
contemplated by the Merger Agreement. Each Shareholder further agrees to cause
the Shares owned by it beneficially at the time of such vote to be voted in
accordance with the foregoing.
(b) For the purposes of this Agreement, "Voting Term" shall
mean the period from the execution of this Agreement until the earliest of (i)
the Effective Time, (ii) 12 months after the termination of the Merger
Agreement, if the Merger Agreement is terminated for a cause pursuant to which
Bergen is entitled to the payment of the amount specified in Section 8.05(b) of
the Merger Agreement, or (iii) the termination of the Merger Agreement for any
other cause.
(c) Each Shareholder agrees to sign a letter in the form
attached as Exhibit 6.05(a) to the Merger Agreement, on behalf of himself or
itself, pursuant to which it shall acknowledge its status as an affiliate of
IVAX and agree to certain restrictions on its rights to dispose of the BBI
Common Stock which each Shareholder shall receive as a result of the IVAX
Merger.
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01. Amendment. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
SECTION 4.02. Waiver. Any of the parties hereto may (a) extend
the time for or waive compliance with the performance of any obligation or other
act of any other party hereto or (b) waive any inaccuracy in the representations
and warranties contained herein or in any document delivered pursuant hereto.
Any such extension or waiver shall be valid if set forth in an instrument in
writing signed by the party or parties to be bound thereby.
SECTION 4.03. Fees and Expenses. Except as otherwise provided
herein or in Section 8.05 of the Merger Agreement, all Expenses incurred in
connection with this Agreement shall be paid by the party incurring such
Expenses.
SECTION 4.04. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
telecopy or facsimile, by registered or certified mail (postage prepaid, return
receipt requested) or by a nationally
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recognized courier service to the respective parties as specified in Section
9.02 of the Merger Agreement or, with respect to such Shareholders, at the
following addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section 4.04 or, in the case of
Bergen, Section 9.02 of the Merger Agreement):
if to either Shareholder:
c/o IVAX Corporation
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A.
2200 Museum Tower Building
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq.
Telecopier: (000) 000-0000
SECTION 4.05. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
Law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a mutually
acceptable manner to the fullest extent permitted by applicable Law in order
that the transactions contemplated hereby may be consummated as originally
contemplated to the fullest extent possible.
SECTION 4.06. Assignment; Binding Effect; Benefit. Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of Law or
otherwise) without the prior written consent of the other parties hereto except
in connection with a transfer of Shares pursuant to the proviso to Section 3.01
(in which case, none of the provisions of this Agreement shall be binding upon
or inure to the benefit of such transferee with respect to such Shares). Subject
to the preceding sentence, this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. Notwithstanding anything contained in this Agreement to the
contrary, nothing in this Agreement, express or implied, is intended to confer
on any person other than the parties hereto or their respective
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successors and permitted assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
SECTION 4.07. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
were not performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or in equity.
SECTION 4.08. Governing Law. Except to the extent that the
Laws of the jurisdiction of organization of any party hereto, or any other
jurisdiction, are mandatorily applicable to the matters arising under or in
connection with this Agreement, this Agreement shall be governed by the Laws of
the State of New York. All actions and proceedings arising out of or relating to
this Agreement shall be heard and determined in any New York state or federal
court sitting in The City of New York.
SECTION 4.09. Consent to Jurisdiction; Venue. (a) Each of the
parties hereto irrevocably submits to the exclusive jurisdiction of the state
courts of New York and to the jurisdiction of the United States District Court
for the Southern District of New York, for the purpose of any action or
proceeding arising out of or relating to this Agreement and each of the parties
hereto irrevocably agrees that all claims in respect to such action or
proceeding may be heard and determined exclusively in any New York state or
federal court sitting in The City of New York. Each of the parties hereto agrees
that a final judgment in any action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by Law.
(b) Each of the parties hereto irrevocably consents to the
service of any summons and complaint and any other process in any other action
or proceeding relating hereto, on behalf of itself or its property, by the
personal delivery of copies of such process to such party. Nothing in this
Section 4.09 shall affect the right of any party hereto to serve legal process
in any other manner permitted by Law.
SECTION 4.10. Headings. The descriptive headings contained in
this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
SECTION 4.11. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
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SECTION 4.12. Entire Agreement. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings among the parties with
respect thereto. No addition to or modification of any provision of this
Agreement shall be binding upon any party hereto unless made in writing and
signed by all parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or caused this Agreement to be executed by their respective officers
thereunto duly authorized as of the date first written above.
BERGEN XXXXXXXX CORPORATION
By: _______________________________________
Name:
Title:
FROST-NEVADA, LIMITED PARTNERSHIP
By: Frost-Nevada Corporation, its general
partner
By: _________________________________
Name:
Title:
____________________________________________
Dr. Xxxxxxx Xxxxx
