EXHIBIT 10.1
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of November 10, 1996 (this
"Agreement"), between IVAX CORPORATION, a Florida corporation ("IVAX"), and
BERGEN XXXXXXXX CORPORATION, a New Jersey corporation ("Bergen").
W I T N E S S E T H:
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 the common stock, par value $.10 per share, of IVAX ("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, in proportion to their interests in IVAX and Bergen, respectively; and
WHEREAS, as a condition to the willingness of IVAX to enter
into the Merger Agreement and the IVAX Stock Option Agreement, IVAX has required
that Bergen agree, and in order to induce IVAX to enter into the Merger
Agreement and the IVAX Stock Option Agreement, Bergen has agreed to grant IVAX
an option to purchase 9,953,076 newly issued or treasury shares of Bergen Common
Stock, representing approximately 19.9% of the issued and outstanding shares of
Bergen Common Stock, in accordance with the terms of this Agreement;
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:
2
ARTICLE I
THE STOCK OPTION
SECTION 1.01. Grant of Stock Option. Bergen hereby grants to
IVAX, as of the close of trading on the NYSE on November 11, 1996 (the "Grant
Date"), an irrevocable option (the "Stock Option") to purchase up to 9,953,076
shares of Bergen Common Stock (the "Option Shares") at a cash purchase price per
Option Share equal to the closing price of shares of Bergen Common Stock on the
NYSE Composite Tape on the Grant Date (the "Purchase Price"), subject to the
terms and conditions set forth herein.
SECTION 1.02. Exercise of Stock Option. (a) Subject to the
conditions set forth in Section 1.03 and to any additional requirements of Law,
the Stock Option may be exercised by IVAX, in whole or in part, at any time or
from time to time after the occurrence of an Exercise Event (as defined below)
and prior to the Termination Date (as defined below).
(b) An "Exercise Event" shall occur for purposes of this
Agreement upon the occurrence of any event or circumstance which, pursuant to
the terms of Section 8.05(c) of the Merger Agreement, entitles IVAX to the
payment by Bergen of the amount specified therein.
(c) The "Termination Date" shall occur for purposes of this
Agreement upon the first to occur of any of the following:
(i) the Effective Time;
(ii) the date which is 90 days after the occurrence of an
Exercise Event (unless prior thereto the Option shall have been
exercised); or
(iii) the termination of the Merger Agreement in any manner in
which IVAX would not be entitled pursuant to Section 8.05(c) of the
Merger Agreement to payment of the amount specified therein.
(d) In the event IVAX wishes to exercise the Stock Option,
IVAX shall send a written notice (a "Stock Exercise Notice") to Bergen
specifying the total number of Option Shares IVAX wishes to purchase, the
denominations of the certificate or certificates evidencing such Option Shares
which IVAX wishes to receive, a date (subject to the earlier satisfaction or
waiver of the conditions set forth in Section 1.03) (a "Closing Date"), which
shall be a business day (as defined in the Merger Agreement) which is not later
than 10 business days and not earlier than the fifth business day after delivery
of such notice, and place for the closing of such purchase (a "Closing").
Notwithstanding the foregoing, Bergen
3
shall have the right, exercisable by written notice to IVAX within three
Business Days after receipt of a Stock Exercise Notice, to elect to treat such
Stock Exercise Notice as a Cash Exercise Notice pursuant to Section 1.02(e) for
all purposes of this Agreement, and to pay to IVAX an amount in cash equal to
the Spread (as defined below) within 10 business days following receipt of such
Stock Exercise Notice.
(e) If at any time the Stock Option is then exercisable
pursuant to the terms of Section 1.02(a) hereof, IVAX may elect, in lieu of
exercising the Stock Option to purchase Option Shares as provided in Section
1.02(a) hereof, to send a written notice to Bergen (a "Cash Exercise Notice";
either a Cash Exercise Notice or a Stock Exercise Notice, an "Exercise Notice")
specifying a date not later than 10 business days and not earlier than the fifth
business day following the date such notice is given on which date Bergen shall
pay to IVAX an amount in cash equal to the Spread (as defined below) multiplied
by such number of Option Shares as IVAX shall specify. As used herein, "Spread"
shall mean the excess, if any, over the Purchase Price of the higher of (x) if
applicable, the highest price per share of Bergen Common Stock paid by any
person in a Competing Transaction (the "Competing Purchase Price") or (y) the
closing price of the shares of Bergen Common Stock on the NYSE Composite Tape on
the last trading day immediately prior to the date of the Cash Exercise Notice
(the "Closing Price"). If the Competing Purchase Price includes any property
other than cash, the Competing Purchase Price shall be the sum of (i) the fixed
cash amount, if any, included in the Competing Purchase Price plus (ii) the fair
market value of such other property. If such other property consists of
securities with an existing public trading market, the average of the closing
prices (or the average of the closing bid and asked prices if closing prices are
unavailable) for such securities in their principal public trading market on the
five trading days ending five days prior to the date of the Cash Exercise Notice
shall be deemed to equal the fair market value of such property. If such other
property consists of something other than cash or securities with an existing
public trading market and, as of the payment date for the Spread, agreement on
the value of such other property has not been reached, the Competing Purchase
Price shall be deemed to be the amount of any cash included in the Competing
Purchase Price plus the fair market value of such other property (as determined
by a nationally recognized investment banking firm jointly selected by IVAX and
Bergen). For this purpose, the parties shall use their reasonable commercial
efforts to cause any determination of the fair market value of such other
property to be made within three business days after the date of delivery of the
Cash Exercise Notice. Upon exercise of its right to receive the Spread pursuant
to this Section 1.02(e) or Bergen electing to treat a Stock Exercise Notice as a
Cash Exercise Notice pursuant to Section 1.02(d), the obligations of Bergen to
deliver Option Shares pursuant to Section 1.03 shall be terminated with respect
to such number of Option Shares for which IVAX shall have elected to be paid the
Spread. If at the time payment of the Spread by Bergen is due, Bergen shall not
have consummated a Competing Transaction, Bergen may elect to pay the Spread in
cash or in shares of Bergen Common Stock, valued at the closing
4
price of shares of Bergen Common Stock on the NYSE Composite Tape on the
business day prior to such payment (the "Closing Date Price").
SECTION 1.03. Conditions to Closing. The obligation of Bergen
to deliver Option Shares or pay the Spread, as applicable, upon any exercise of
the Stock Option is subject to the following conditions:
(a) Such delivery or payment would not in any material respect
violate, or otherwise cause the material violation of, Section 312.03
of the NYSE Listed Company Manual ("Section 312.03") or any material
Law, including, without limitation, the HSR Act, applicable thereto;
and
(b) There shall be no preliminary or permanent injunction or
other final, non-appealable judgment by a court of competent
jurisdiction preventing or prohibiting such exercise of the Stock
Option, the delivery of the Option Shares or payment of the Spread in
respect of such exercise.
SECTION 1.04. Closings. At each Closing, (i) in the event of a
Closing pursuant to Section 1.02(d) or 1.02(e) if Bergen shall have elected to
pay the Spread in shares of Bergen Common Stock, Bergen shall deliver to IVAX a
certificate or certificates evidencing the applicable number of Option Shares
(in the denominations specified therein), and IVAX shall purchase each such
Option Share from Bergen at the Purchase Price or the Closing Date Price, as the
case may be, or (ii) in the event of any other Closing pursuant to Section
1.02(e), Bergen shall deliver to IVAX cash in an amount determined pursuant to
Section 1.02(e). All payments made pursuant to this Agreement shall be made by
wire transfer of immediately available funds. Certificates evidencing Option
Shares delivered hereunder may, at Bergen's election, contain the following
legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE
WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933 OR AN EXEMPTION THEREFROM.
Bergen shall, upon the written request of the holder thereof, issue such holder
a new certificate evidencing such Option Shares without such legend in the event
(x) such Option Shares have been registered pursuant to the Securities Act, (y)
such Option Shares have been sold in reliance on and in accordance with Rule 144
under the Securities Act or (z) such holder shall have delivered to Bergen an
opinion of counsel, in form and substance reasonably satisfactory to Bergen, to
the effect that subsequent transfers of such Option Shares may be effected
without registration under the Securities Act.
5
SECTION 1.05. Adjustments upon Share Issuances, Changes in
Capitalization, Etc. (a) In the event of any change in Bergen Common Stock or in
the number of outstanding shares of Bergen Common Stock by reason of a stock
dividend, split-up, recapitalization, combination, exchange of shares or similar
transaction or any other extraordinary change in the corporate or capital
structure of Bergen (including, without limitation, the declaration or payment
of an extraordinary dividend of cash, securities or other property), the type
and number of shares or securities to be issued by Bergen upon exercise of the
Stock Option shall be adjusted appropriately, and proper provision shall be made
in the agreements governing such transaction, so that IVAX shall receive upon
exercise of the Stock Option the number and class of shares or other securities
or property that IVAX would have received in respect of Bergen Common Stock if
the Stock Option had been exercised immediately prior to such event, or the
record date therefor, as applicable and elected to the fullest extent it would
have been permitted to elect, to receive such securities, cash or other
property.
(b) In the event that Bergen shall enter into an agreement
(other than the Merger Agreement) (i) to consolidate with or merge into any
person, other than IVAX or any IVAX Subsidiary, and shall not be the continuing
or surviving corporation of such consolidation or merger, (ii) to permit any
person, other than IVAX or any IVAX Subsidiary, to merge into Bergen and Bergen
shall be the continuing or surviving corporation, but, in connection with such
merger, the then outstanding shares of Bergen Common Stock shall be changed into
or exchanged for stock or other securities of Bergen or any other person or cash
or any other property or then outstanding shares of Bergen Common Stock shall
after such merger represent less than 50% of the outstanding shares and share
equivalents of the surviving corporation or (iii) to sell or otherwise transfer
all or substantially all of its assets to any person, other than IVAX or any
IVAX Subsidiary, then, and in each such case, proper provision shall be made in
the agreements governing such transaction so that IVAX shall receive upon
exercise of the Stock Option the number and class of shares or other securities
or property that IVAX would have received in respect of Bergen Common Stock if
the Stock Option had been exercised immediately prior to such transaction, or
the record date therefor, as applicable and elected to the fullest extent it
would have been permitted to elect, to receive such securities, cash or other
property.
(c) The provisions of this Agreement, including, without
limitation, Sections 1.01, 1.02, 1.04 and 3.02, shall apply with appropriate
adjustments to any securities for which the Stock Option becomes exercisable
pursuant to this Section 1.05.
6
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF BERGEN
Bergen hereby represents and warrants to IVAX as follows:
SECTION 2.01. 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 and the Bergen Rights
Agreement has been amended to exempt IVAX from the definition of "Acquiring
Person" contained in such agreement. This Agreement has been duly executed and
delivered by Bergen and, assuming the due authorization, execution and delivery
by IVAX, constitutes a legal, valid and binding obligation of Bergen,
enforceable against Bergen in accordance with its terms.
SECTION 2.02. Authority to Issue Shares. Bergen has taken all
necessary corporate action to authorize and reserve and permit it to issue, and
at all times from the date hereof through the Termination Date shall have
reserved, all the Option Shares issuable pursuant to this Agreement, and Bergen
shall take all necessary corporate action to authorize and reserve and permit it
to issue all additional shares of Bergen Common Stock or other securities which
may be issued pursuant to Section 1.05, all of which, upon their issuance and
delivery in accordance with the terms of this Agreement, shall be duly
authorized, validly issued, fully paid and nonassessable, shall be delivered
free and clear of all security interests, liens, claims, pledges, options,
rights of first refusal, agreements, limitations on IVAX's voting rights,
charges and other encumbrances of any nature whatsoever (other than this
Agreement) and shall not be subject to any preemptive rights.
SECTION 2.03. 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, state securities and "blue sky" laws and the regulations of the NYSE, 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 2.03
have been obtained and all filings
7
and notifications described in this Section 2.03 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 or on any Option Shares 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 any of its obligations
pursuant to this Agreement.
ARTICLE III
COVENANTS OF BERGEN
SECTION 3.01. Listing; Other Action. (a) Bergen shall, at its
expense, use all reasonable efforts to cause the Option Shares to be approved
for listing on the NYSE, subject to notice of issuance, as promptly as
practicable following an Exercise Event, and shall provide prompt notice to the
NYSE of the issuance of each Option Share, except to the extent the delivery of
the Option Shares can be satisfied with shares of Bergen Common Stock held in
treasury by Bergen.
(b) Bergen shall use all reasonable efforts to take, or cause
to be taken, all appropriate action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable Laws to consummate and make
effective the transactions contemplated hereunder, including, without
limitation, using all reasonable efforts to obtain all licenses, permits,
consents, approvals, authorizations, qualifications and orders of Governmental
Entities. Without limiting the generality of the foregoing, Bergen shall when
required in order to effect the transactions contemplated hereunder make all
necessary filings, and thereafter make any other required or appropriate
submissions, under the HSR Act and shall supply as promptly as practicable to
the appropriate Governmental Entity any additional information and documentary
material that may be requested pursuant to the HSR Act.
(c) Bergen shall not take any action in order to cause
intentionally the exercise of the Stock Option to violate Section 312.03.
SECTION 3.02. Registration. (a) In the event that IVAX shall
desire to sell any of the Option Shares within three years after the purchase of
such Option Shares
8
pursuant hereto, and such sale requires, in the opinion of counsel to IVAX,
which opinion shall be reasonably satisfactory to Bergen and its counsel,
registration of such Option Shares under the Securities Act, Bergen shall
cooperate with IVAX and any underwriters in registering such Option Shares for
resale, including, without limitation, promptly filing a registration statement
which complies with the requirements of applicable federal and state securities
laws and entering into an underwriting agreement with such underwriters upon
such terms and conditions as are customarily contained in underwriting
agreements with respect to secondary distributions; provided, however, that
Bergen shall not be required to have declared effective more than two
registration statements hereunder and shall be entitled to delay the filing or
effectiveness of any registration statement for up to 120 days if the offering
would, in the judgment of the Board of Directors of Bergen, require premature
disclosure of any material corporate development or otherwise interfere with or
adversely affect any pending or proposed offering of securities of Bergen or any
other material transaction involving Bergen. IVAX agrees to use all reasonable
efforts to cause, and to cause any underwriters of any sale or other disposition
to cause, any sale or other disposition pursuant to such registration statement
to be effected on a widely distributed basis so that upon consummation thereof
no purchaser or transferee shall acquire beneficially more than 1% of the then
outstanding voting power of Bergen.
(b) If the Bergen Common Stock is registered pursuant to the
provisions of this Section 3.02, Bergen agrees (i) to furnish copies of the
registration statement and prospectus relating to the Option Shares covered
thereby in such numbers as IVAX may from time to time reasonably request and
(ii) if any event shall occur as a result of which it becomes necessary to amend
or supplement any registration statement or prospectus, to prepare and file
under the applicable securities laws such amendments and supplements as may be
necessary to keep available for at least 90 days a prospectus covering the
Bergen Common Stock meeting the requirements of such securities laws, and to
furnish IVAX such numbers of copies of the registration statement and prospectus
as amended or supplemented as may reasonably be requested. Bergen shall bear the
cost of the registration, including, but not limited to, all registration and
filing fees, printing expenses, and fees and disbursements of counsel and
accountants for Bergen, except that IVAX shall pay the fees and disbursements of
its counsel and the underwriting fees and selling commissions applicable to the
shares of Bergen Common Stock sold by IVAX. Bergen shall indemnify and hold
harmless IVAX, its affiliates and its officers and directors from and against
any and all losses, claims, damages, liabilities and expenses arising out of or
based upon any statements contained in, omissions or alleged omissions from,
each registration statement filed pursuant to this paragraph; provided, however,
that this provision shall not apply to any loss, liability, claim, damage or
expense to the extent it arises out of any untrue statement or omission made in
reliance upon and in conformity with written information furnished to Bergen by
IVAX, its affiliates and its officers and other representatives expressly for
use in any registration statement (or any amendment thereto) or any preliminary
prospectus filed pursuant to this paragraph. Bergen shall also indemnify and
hold harmless each underwriter
9
and each person who controls any underwriter within the meaning of either the
Securities Act or the Exchange Act against any and all losses, claims, damages,
liabilities and expenses arising out of or based upon any statements contained
in, omissions or alleged omissions from, each registration statement filed
pursuant to this paragraph; provided, however, that this provision shall not
apply to any loss, liability, claim, damage or expense to the extent it arises
out of any untrue statement or omission made in reliance upon and in conformity
with written information furnished to Bergen by the underwriters expressly for
use in any registration statement (or any amendment thereto) or any preliminary
prospectus filed pursuant to this paragraph.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF IVAX
IVAX hereby represents and warrants to Bergen as follows:
SECTION 4.01. Authority Relative to this Agreement. IVAX is
duly organized and validly existing under the laws of the State of Florida. IVAX
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 IVAX and the consummation by IVAX 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 IVAX are necessary to authorize this
Agreement or to consummate such transactions. This Agreement has been duly
executed and delivered by IVAX and, assuming the due authorization, execution
and delivery by Bergen, constitutes a legal, valid and binding obligation of
IVAX, enforceable against IVAX in accordance with its terms.
SECTION 4.02. No Conflict; Required Filings and Consents. The
execution and delivery of this Agreement by IVAX do not, and the performance by
IVAX 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,
state securities and "blue sky" laws and the regulations of the AMEX, if
applicable) any Governmental Entity, (ii) conflict with or violate any provision
of the Articles of Incorporation or Bylaws of IVAX or any equivalent
organizational documents of any IVAX Subsidiary, (iii) assuming that all
consents, approvals, authorizations and permits described in this Section 4.02
have been obtained and all filings and notifications described in this Section
4.02 have been made, conflict with or violate any Law applicable to IVAX or any
IVAX Subsidiary or by which any property or asset of IVAX or any IVAX Subsidiary
is bound or affected or (iv) except as set forth in Section 3.05(a) of the IVAX
10
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 IVAX or any IVAX 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 IVAX of any of its obligations
pursuant to this Agreement.
ARTICLE V
COVENANTS OF IVAX
IVAX hereby covenants and agrees as follows:
SECTION 5.01. Distribution. IVAX shall acquire the Option
Shares for investment purposes only and not with a view to any distribution
thereof in violation of the Securities Act, and shall not sell any Option Shares
purchased pursuant to this Agreement except in compliance with the Securities
Act and applicable state securities and "blue sky" laws.
ARTICLE VI
TERMINATION OF AGREEMENT
SECTION 6.01. Termination. This Agreement, other than the
rights and obligations of IVAX and Bergen under Sections 3.01, 3.02 and 5.01 and
Article VII, shall terminate on the Termination Date.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendment. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
SECTION 7.02. Waiver. Either party hereto may (a) extend the
time for or waive compliance with the performance of any obligation or other act
of the other party
11
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 7.03. 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 7.04. 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 recognized courier service to the
respective parties at their addresses as specified in Section 9.02 of the Merger
Agreement.
SECTION 7.05. 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 7.06. 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 without the prior written consent of
the other party. 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 successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
SECTION 7.07. 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.
12
SECTION 7.08. 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 7.09. 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 7.09 shall affect the right of any party hereto to serve legal process
in any other manner permitted by Law.
SECTION 7.10. 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 7.11. 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.
SECTION 7.12. Entire Agreement. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior agreements and understandings between 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.
13
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
IVAX CORPORATION
By: _________________________
Name:
Title:
BERGEN XXXXXXXX CORPORATION
By: _________________________
Name:
Title:
