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EXHIBIT 10.25
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REGISTRATION RIGHTS AGREEMENT
among
IVAX CORPORATION
and
UBS AG, London Branch
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into
as of the ___ day of ____________, 2001, between IVAX Corporation, a Florida
corporation (the "Company"), and UBS AG, a Swiss banking corporation, acting by
and through its London Branch ("UBS").
WHEREAS, the Company has issued to UBS, and UBS acquired from the
Company, the Options, as defined in Section 1.1; and
WHEREAS, pursuant to the terms and conditions of each of the Options,
the Company has the right, at its election, to deliver to UBS a number of shares
of Common Stock having a value equal to the Cash Settlement amount referred to
in the relevant Option ("Net Share Settlement"); and
WHEREAS, in connection with the Company settling its obligations under
the Options by Net Share Settlement, the Company and UBS are entering into this
Agreement; and
WHEREAS, the Company has elected to discharge its obligations under the
Options by Net Share Settlement;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the Company and UBS hereby agree as follows:
ARTICLE I DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
1.1 OPTIONS. "Options" shall mean the options to sell shares of Common
Stock issued by the Company to UBS pursuant to the terms and conditions of the
Confirmations.
1.2 AGENT. "Agent" shall mean UBS Warburg LLC and any other dealer,
broker, agent or underwriter appointed by UBS to participate in the resale of
the shares by UBS
1.3 COMMISSION. "Commission" shall mean the United States Securities
and Exchange Commission or any successor agency thereto.
1.4 CONFIRMATIONS. "Confirmations" shall mean the Equity Option
Confirmations (UBS Reference Numbers: __________, ________,_________,______ and
_________) setting forth the terms of each of the Options, together with the
Master Agreement incorporated therein, dated as of _______________ ___, 2001
between the parties hereto.
1.5 EXCHANGE ACT. "Exchange Act" shall mean the United States
Securities Exchange Act of 1934, as amended.
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1.6 INITIAL DATE. "Initial Date" shall mean the date five Exchange
Business Days prior to the Expiration Date (as defined in the Confirmations),
as applicable.
1.7 LOCAL BUSINESS DAY. "Local Business Day" shall mean a day on which
commercial banks are open for business (including dealings in foreign exchange
and foreign currency deposits) in New York, New York.
1.8 PRELIMINARY PROSPECTUS. "Preliminary Prospectus" shall mean any
preliminary prospectus relating to the Shares, including all documents
incorporated by reference therein, included in the Registration Statement or
filed with the Commission pursuant to Rule 424(a) of the rules and regulations
of the Commission under the Securities Act; any reference to any amendment or
supplement to the Preliminary Prospectus shall be deemed to include any
documents filed under the Exchange Act after the date of such Preliminary
Prospectus and incorporated by reference therein; and any reference to the
Preliminary Prospectus as amended or supplemented shall be deemed to include the
Preliminary Prospectus as amended or supplemented by any such documents filed
under the Exchange Act after the date of such Preliminary Prospectus and
incorporated by reference therein.
1.9 PROSPECTUS. "Prospectus" shall mean any prospectus relating to the
Shares, including any prospectus supplement relating to the Shares and all
documents incorporated by reference therein, (i) included in the Registration
Statement as of the time that the Registration Statement is declared effective
or (ii) filed with the Commission in connection with the Registration Statement
pursuant to Rule 424(b) of the rules and regulations of the Commission under the
Securities Act; any reference to any amendment or supplement to the Prospectus
shall be deemed to include any documents filed under the Exchange Act after the
date of such Prospectus and incorporated by reference therein; and any reference
to the Prospectus as amended or supplemented shall be deemed to include the
Prospectus as amended or supplemented by any such documents filed under the
Exchange Act after the date of such Prospectus and incorporated by reference
therein.
1.10 REGISTRATION STATEMENT. "Registration Statement" shall mean a
registration statement on Form S-3 (or any applicable successor form then in
effect; provided that if, at the time a registration statement is to be filed,
the Company is not eligible to use Form S-3 or applicable successor form for a
primary offering by or on behalf of the Company, "Registration Statement" shall
mean a registration statement on such form as is then available to the Company),
which is to be filed with the Commission pursuant to Section 4.1 hereof,
covering the resale of the Shares from time to time, including all exhibits
thereto and all documents incorporated by reference in the Prospectus contained
in such Registration Statement at the time it is declared effective, each as
amended at the time the Registration Statement is declared effective.
1.11 SECURITIES ACT. "Securities Act" shall mean the United States
Securities Act of 1933, as amended.
1.12 SHARES. "Shares" shall mean the shares of Common Stock deliverable
by the Company pursuant to the Net Share Settlement election upon exercise or
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termination of the Option, including any Make-Whole Shares (as defined in the
Option) and any other shares of Common Stock included in the Registration
Statement for resale by UBS or an Agent pursuant to the Confirmations or by
agreement between the Company and UBS.
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to UBS and to each Agent that the
following are true and correct as of the date hereof and as of the "Settlement
Date" (as that term is defined in the Confirmations):
2.1 ORGANIZATION AND EXISTENCE OF THE COMPANY. The Company has been
duly organized and is validly existing as a corporation in good standing under
the laws of the State of Florida, with full power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which the ownership or leasing of properties or the conduct of
its business requires such qualification, except to the extent the failure to be
so qualified would not have a material adverse effect on the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect"); and each subsidiary
of the Company has been duly organized and is validly existing as a corporation
and is in good standing under the laws of its jurisdiction of incorporation,
except where the failure to be so would not have a Material Adverse Effect.
2.2 AUTHORIZATION OF TRANSACTIONS AND AGREEMENT. The execution,
delivery and performance of this Agreement have been duly authorized by the
board of directors of the Company. Assuming due execution hereof by UBS, this
Agreement constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application relating to or
affecting enforcement of creditors' rights and the application of equitable
principles in any action, legal or equitable, and except as rights to indemnity
or contribution may be limited by applicable law). The Company has the corporate
power to execute and deliver this Agreement and to consummate the transactions
contemplated herein.
2.3 CAPITALIZATION. (a) As of the date of this Agreement, the Company
has an authorized capitalization as set forth under the heading entitled
["Actual"] in the section of the Registration Statement and the Prospectus
entitled ["Capitalization"] and, as of the time of purchase [and the additional
time of purchase, as the case may be,] the Company shall have an authorized
capitalization as set forth under the heading entitled ["As Adjusted"] in the
section of the Registration Statement and the Prospectus entitled
["Capitalization"].
(b) The outstanding shares of Common Stock have been duly authorized
and validly issued and are fully paid and non-assessable. The Company's
stockholders have no preemptive rights with respect to the Shares. All of the
issued shares of capital stock of each subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable and all
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such shares that are owned directly or indirectly by the Company are free and
clear of all liens, encumbrances, equities or claims, with such exceptions as
would not have a Material Adverse Effect.
(c) The Shares have been duly authorized and, when delivered upon
exercise of the Options will be validly issued, fully paid and nonassessable.
(d) The capital stock of the Company, including the Shares, conforms in
all material respects to the description thereof contained in the Registration
Statement and Prospectus and the certificates for the Shares are in due and
proper form.
2.4 SEC FILINGS AND FINANCIAL STATEMENTS. (a) The Registration
Statement conforms, and the Prospectus and any further amendments or supplements
to the Registration Statement or the Prospectus will conform, in all material
respects to the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of UBS expressly for use therein.
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,
and the rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
or on behalf of UBS expressly for use therein.
(c) The audited consolidated financial statements and unaudited interim
financial statements of the Company contained or incorporated by reference in
the Prospectus have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis and, together with the notes
thereto, present fairly the consolidated financial position of the Company and
its subsidiaries at the dates shown and the consolidated results of their
operations, changes in stockholders' equity and cash flows for the periods then
ended.
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2.5 NO MATERIAL ADVERSE CHANGE. Neither the Company nor any of its
subsidiaries has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any change in the capital stock or long-term debt of the Company or any
of its subsidiaries or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus;
2.6 NO CONFLICTS. The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
sale/leaseback agreement, loan agreement, similar financing agreement or
instrument or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, except for such conflicts, breaches or violations as
would not have a material adverse effect on the Company and its subsidiaries
taken as a whole or on the transactions contemplated by this Agreement or the
Confirmations; nor will such actions result in any violation of the provisions
of the Certificate of Incorporation or by-laws of the Company or any statute
applicable to the Company or any of its subsidiaries or any order, judgment,
decree, rule or regulation applicable to the Company or any of its subsidiaries
of any court or governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their properties except such violations as
would not have a Material Adverse Effect on the Company and its subsidiaries
taken as a whole or on the transactions completed by this Agreement or the
Confirmations; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Company of the transactions contemplated by
this Agreement, except such as may be required under the Securities Act prior to
the resale of Shares and any such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the resale of Shares.
2.7 (a) LITIGATION. Other than as set forth or contemplated in the
Prospectus, there are no actions, suits, claims, investigations or proceedings
pending or threatened to which the Company or any of its subsidiaries or any of
their respective officers is a party or of which any of their respective
properties is subject at law or in equity, or before or by any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency which could reasonably be expected to result in a judgment, decree or
order having a Material Adverse Effect or prevent consummation of the
transactions contemplated hereby;
(b) All legal or governmental proceedings, contracts, leases or
documents of a character required to be described in the Registration Statement
or the Prospectus or to be filled as an exhibit to the Registration Statement
have been so described or filed as required;
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2.8 INDEPENDENCE OF PUBLIC ACCOUNTANTS. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, whose
reports on the consolidated financial statements of the Company and its
subsidiaries are filed with the Commission as part of the Registration Statement
and Prospectus are independent public accountants as required by the Securities
Act and the Exchange Act and the rules and regulations of the Commission
thereunder.
2.9 NOT AN INVESTMENT COMPANY. The Company is not and, and after
giving effect to the offering and sale of the Shares, will not be an "investment
company", as such term is defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act").
2.10 NO REGISTRATION RIGHTS. No person has any right to request or
demand to have any shares of Common Stock or other securities of the Company
registered pursuant to the Registration Statement nor shall any such right be
triggered due to the exercise of the rights granted to UBS herein.
2.11 REGISTRANT'S REQUIREMENTS FOR FORM S-3. The Company meets the
registrant requirements of General Instruction I.A. of Form S-3 under the
Securities Act, as in effect on the date of this Agreement, or any successor
form then in effect.
ARTICLE III REPRESENTATIONS AND WARRANTIES OF UBS
UBS represents and warrants to the Company that the following are true
and correct as of the date hereof and as of the Settlement Date:
3.1 ORGANIZATION AND EXISTENCE OF UBS. UBS is a corporation organized
and existing under the laws of Switzerland, with corporate power and authority
to own its properties and conduct its business.
3.2 AUTHORIZATION OF TRANSACTIONS AND AGREEMENT. The execution,
delivery and performance of this Agreement have been duly authorized by UBS.
Assuming the due execution thereof by the Company, this Agreement constitutes
the legal, valid and binding obligation of UBS, enforceable against UBS in
accordance with its terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application relating to or affecting enforcement of creditors' rights
and the application of equitable principles in any action, legal or equitable,
and except as rights to indemnity or contribution may be limited by applicable
law). UBS has the corporate power to execute and deliver this Agreement and to
consummate the transactions contemplated herein.
ARTICLE IV AGREEMENTS OF THE COMPANY
The Company agrees as follows:
4.1 FILING OF REGISTRATION STATEMENT. (a) The Company has filed or
shall expeditiously file with the Commission a registration statement covering
the resale of the Shares from time to time by UBS and such affiliated entities
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as UBS may designate on securities exchanges or over-the-counter market or in
such other lawful manner as UBS may specify, in a form previously reviewed by
UBS.
(b) If such registration statement has not yet become effective, the
Company shall use its best efforts to cause such registration statement to
become effective no later than the Initial Date. The Company shall (i) use its
best efforts to cause such registration statement to remain in effect from its
effective date until the date on which the Company receives written notice from
UBS that all of the Shares have been resold (the "Effective Period"), (ii)
inform UBS promptly upon notice from the Commission that the Registration
Statement or any amendment has been declared effective, (iii) advise UBS
promptly of any proposed amendment or supplement to the Prospectus after the
effective date thereof and furnish UBS with a draft prior to the filing thereof,
(iv) during the Effective Period, (A) unless the Company is legally required to
so amend or supplement the Prospectus, make no further amendment or any
supplement to the Prospectus after the effective date thereof to which UBS
reasonably objects within two business days after receipt of a draft of the
proposed amendment or supplement and (B) file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, (v) during
the Effective Period, advise UBS, promptly after the Company receives notice
thereof, (A) of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, (B) of the issuance by
the Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Shares, (C) of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, (D) of the
initiation or threatening of any proceeding for any such purpose, or (E) of any
request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information, and (vi) in the event
of the issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Shares or suspending any
such qualification, use promptly its best efforts to obtain the withdrawal of
such order. [The Company shall not include in the Registration Statement any
securities other than the Shares.]
(c) The Company shall be deemed not to have used its best efforts to
keep the Registration Statement effective during the Effective Period if the
Company voluntarily takes any action that would result in UBS not being able to
offer and sell any of its Shares during such period unless such action is
required by applicable law.
4.2 QUALIFICATION OF THE SHARES UNDER STATE SECURITIES LAWS. The
Company shall promptly take, from time to time, such action as UBS may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such of the United States as UBS may request and to comply
with such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions during the Effective Period; PROVIDED THAT, the Company shall
not be required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction.
4.3 PREPARATION OF REGISTRATION STATEMENT; REASONABLE INVESTIGATION.
The Company shall (a) give UBS, any Agent designated by UBS and their
representatives the opportunity to participate in the preparation of the
Registration Statement and, to the extent practicable, each amendment or
supplement thereto and document incorporated by reference therein which is filed
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with the Commission after the filing of the Registration Statement, (b) give
UBS, any Agent designated by UBS and their representatives such access to the
books, records and properties of the Company and its subsidiaries (to the extent
customarily given to those who are underwriters of the Company's securities) and
such opportunities to discuss the business of the Company with its officers and
the independent public accountants who have certified its financial statements
and will have such officers and accountants supply such information as shall be
reasonably requested by UBS, any Agent designated by UBS or their
representatives in connection with a "reasonable investigation" within the
meaning of Section 11(b) of the Securities Act and (c) promptly furnish UBS with
copies of any press release or other public announcement which it intends to
issue, or any report or document which it intends to file under the Exchange Act
with the Commission or other regulatory agency, insofar as such press release,
public announcement, report or other document relates to this Agreement and the
Options, and consider in good faith any comments received from UBS concerning
the timing and content of such press release, public announcement, report or
other document.
4.4 FURNISHING OF PROSPECTUSES; NOTICE TO UBS OF NEED FOR AMENDMENT.
The Company shall furnish UBS with copies of the Prospectus, including any
amendments or supplements thereto, in such quantities as UBS may from time to
time reasonably request. If during the Effective Period any event shall have
occurred as a result of which the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, the Company shall notify UBS in writing and,
as soon as reasonably practicable, shall amend or supplement the Prospectus or
file such document so as to correct such statement or omission or effect such
compliance and shall promptly prepare and furnish to UBS without charge as many
copies as UBS may from time to time reasonably request of any amended Prospectus
or supplement to the Prospectus provided that if the filing of an incorporated
document is required solely to comply with the periodic reporting provisions
under the Exchange Act, such report need not be filed sooner than required by
such provisions and no such written notice to UBS shall be required.
4.5 LISTING OF THE SHARES. The Company shall use its best efforts to
have the Shares listed on the American Stock Exchange ("AMEX").
4.6 DELIVERY OF OPINION AND COMFORT LETTER. On the effective date of
the Registration Statement, the Company shall cause to be furnished to UBS and
to any Agent (i) an opinion of counsel for the Company, dated the effective date
of the Registration Statement, in substantially the form of Exhibit A hereto and
(ii) "comfort" letters signed by the Company's independent public accountants
who have examined and reported on the Company's financial statements included in
the Registration Statement, to the extent permitted by the standards of the
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American Institute of Certified Public Accountants, covering substantially the
same matters with respect to the Registration Statement (and the Prospectus) and
with respect to events subsequent to the date of the financial statements, as
are customarily covered in accountants' "comfort" letters delivered to the
underwriters in underwritten public offerings of securities.
4.7 FURNISHING OF ADDITIONAL INFORMATION. Until the earlier of the
Termination Date or completion of resale of the Shares, the Company shall
furnish to UBS copies of all reports or other communications (financial or
other) generally furnished to stockholders and, as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission (other than requests for confidential treatment filed with the
Commission), AMEX or any national securities exchange on which the Shares or
any class of securities of the Company are listed (such financial statements to
be on a consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally
or to the Commission).
4.8 PAYMENT OF EXPENSES. The Company shall pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, the Prospectus and any amendments and supplements
thereto and the mailing and delivering of copies thereof, (ii) any fees incurred
in connection with listing or approval for listing of the Shares on the AMEX,
(iii) all expenses in connection with the qualification of the Shares for
offering and sale under Sections 4.1 and 4.2 hereof, (iv) the cost of preparing
certificates for the Shares, (v) the cost and charges of any transfer agent or
registrar or dividend disbursing agent, (vi) reasonable brokerage charges,
commissions or underwriting discounts charged by an Agent in connection with the
resale of the Shares and any transfer taxes payable by UBS in connection with
the resale of the Shares, and (vii) all other costs incident to the performance
of the Company's obligations under Article IV hereof which are not otherwise
specifically provided for in this Section. It is understood, however, that
except as provided in this Section 4.9, UBS will pay all of its own costs and
expenses, including the fees of its counsel.
ARTICLE V AGREEMENTS OF UBS
UBS agrees, with respect to the period beginning on the date hereof
through and including the Termination Date, as follows:
5.1 INFORMATION FOR USE IN THE PROSPECTUS. As soon as practicable, but
in no event later than the third Local Business Day following the receipt of a
written request from the Company, UBS shall furnish the Company with such
information regarding UBS and its proposed dispositions of Shares as the Company
may from time to time reasonably request for use in preparing the Registration
Statement and Prospectus, including any amendments or supplements thereto, and
qualifying the Shares under state securities laws.
5.2 SUSPENSION OF DISPOSITION OF SHARES. Upon receipt of written notice
from the Company pursuant to Section 4.4 that an event has occurred as a result
of which, or that the Company has discovered that, the Prospectus, including the
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Prospectus as then amended or supplemented, includes an untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or that for any other reason it shall be appropriate to
amend or supplement the Prospectus, UBS shall immediately discontinue
disposition of the Shares pursuant to the Registration Statement until such time
as UBS shall have received copies of an amended or supplemented Prospectus or
until it receives notice from the Company that dispositions of Shares may be
resumed without amendment or supplementation of the Prospectus. The Termination
Date shall be extended for an additional number of Exchange Business Days during
which UBS's right to sell the Shares was suspended pursuant to the preceding
sentence.
5.3 NOTICE OF COMPLETION. UBS shall notify the Company within three
Local Business Days of completion of its disposition of the Shares.
ARTICLE VI INDEMNIFICATION
6.1 INDEMNIFICATION WITH RESPECT TO THE REGISTRATION STATEMENT. (a) The
Company will indemnify and hold harmless UBS and any Agent against any losses,
claims, damages or liabilities, joint or several, to which UBS and any Agent may
become subject, under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse UBS and any Agent for any reasonable legal or other expenses
reasonably incurred by UBS and any Agent in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any supplement thereto, the Registration
Statement, the Prospectus or any amendment or supplement thereto in reliance
upon and in conformity with written information furnished to the Company by UBS
expressly for use therein. The indemnity agreement contained in this Section
6.1(a) will not apply to amounts paid in settlement of any such loss, claim,
damage or liability if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld).
(b) UBS will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus and any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
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necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus and any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by UBS expressly
for use therein, and will reimburse the Company for any reasonable legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred, provided, however, that the obligations of UBS under this Section
6.1(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage or liability if such settlement is effected without the consent of UBS
(which consent shall not be unreasonably withheld).
(c) Each party entitled to indemnification under this Section 6.1 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 6.1 to the extent such
failure is not prejudicial. No Indemnifying Party in the defense of any such
claim or litigation shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation and no Indemnified Party shall consent to entry of any
judgment or settle such claim or litigation without the prior written consent of
the Indemnifying Party, which consent shall not be unreasonably withheld. Each
Indemnified Party shall furnish such information regarding itself or the claim
in question as an Indemnifying Party may reasonably request in writing and as
shall be reasonably required in connection with defense of such claim and
litigation resulting therefrom.
(d) If the indemnification provided for in this Section 6.1 is
unavailable to or insufficient to hold harmless an Indemnified Party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and the Indemnified Party on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
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material fact relates to information supplied by the Indemnifying Party on the
one hand or the Indemnified Party on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and UBS agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any reasonable legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 6.1 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each "affiliate" (as defined under the
Securities Act) of UBS, to each director and each officer of UBS and of its
affiliates, to each person, if any, who controls UBS, any Agent or any of their
respective affiliates within the meaning of the Securities Act; and the
obligations of UBS under this Section 6.1 shall be in addition to any liability
which UBS may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Securities Act.
ARTICLE VII GENERAL
7.1 NOTICES. (a) Any notice in respect of this Agreement shall be in
writing and may be given in any manner set forth below to the appropriate
address specified in paragraph (b) of this Section 7.1 and will be effective on
the earliest to occur of the dates indicated: (i) if delivered in person by an
employee or agent of the party giving the notice, on the date it is delivered;
(ii) if sent by Federal Express or other courier service, on the delivery date
designated by the sender to the courier service, or if such date is a Saturday,
Sunday or holiday in the location where notice is to be given, the next
following day that is not a Saturday, Sunday or holiday; or (iii) if sent by
certified or registered mail or the equivalent, on the date it is delivered or
its delivery is refused, as reflected in the records of the relevant postal
service or on a return receipt.
(b) Notices shall be given to the addresses reflected below:
If to UBS, to: UBS AG, London Branch
c/o UBS Warburg LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Equity Derivatives - Corporates
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to the above address to the
attention of:
Legal and External Affairs (Equities)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, to: IVAX Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Akerman, Senterfitt & ▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Facsimile: 305-374-5095
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(c) Either party may by notice to the other change the address or
facsimile number at which notices or other communications are to be given to it.
7.2 ENTIRE AGREEMENT. This Agreement, together with the Confirmation
and the Master Agreement referred to therein, constitute the entire agreement
and understanding of the parties with respect to their subject matter and
supersede all oral communications and prior writings with respect thereto.
7.3 NO INCONSISTENT AGREEMENTS. The Company will not on or after the
date of this Agreement enter into any agreement granting any holder or
prospective holder of any securities of the Company any registration rights with
respect to its securities other than rights subordinate to the rights of UBS
hereunder and which do not conflict with the provisions hereof. The Company
represents that the rights granted to UBS hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of the
Company's securities under any agreements.
7.4 GOVERNING LAW AND JURISDICTION. (a) This Agreement shall be
governed by and construed in accordance with New York law (without reference to
choice of law doctrine).
(b) With respect to any suit, action or proceedings relating to this
Agreement ("Proceedings"), each party irrevocably (i) submits to the
non-exclusive jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan in New York City, and
(ii) waives any objection which it may have at any time to the laying of venue
of any Proceedings brought in any such court, waives any claim that such
Proceedings have been brought in an inconvenient forum and further waives the
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right to object, with respect to such Proceedings, that such court does not have
any jurisdiction over such party. Nothing in this Agreement precludes either
party from bringing Proceedings in any other jurisdiction, nor will the bringing
of Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) UBS hereby appoints UBS AG, Stamford Branch, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇▇▇▇, ▇▇, Attention: Legal and External Affairs, to receive, for it and on
its behalf, service of process of any Proceedings. The parties irrevocably
consent to service of process given in the manner provided for notices in
Section 7.1. Nothing in this Agreement will affect the right of either party to
serve process in any other manner permitted by law.
7.5 AMENDMENTS AND WAIVERS. No amendment, modification or waiver in
respect of this Agreement shall be effective unless in writing and executed by
each of the parties. A failure or delay in exercising any right, power or
privilege in respect of this Agreement shall not be presumed to preclude any
subsequent or further exercise of that right, power or privilege or the exercise
of any other right, power or privilege.
7.6 REMEDIES CUMULATIVE. The rights, powers, remedies and privileges
provided in this Agreement are cumulative and not exclusive of any rights,
powers, remedies and privileges provided by law.
7.7 HEADINGS. The headings used in this Agreement are for convenience
of reference only and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
7.8 NO THIRD-PARTY BENEFICIARIES. Except as expressly provided in
Sections 4.3 and 6.1(e), nothing in this Agreement is intended or shall be
construed to confer upon any person other than the parties hereto any right,
remedy or claim under or by reason of this Agreement.
7.9 SURVIVAL. The representations, warranties, indemnities and
agreements contained in this Agreement shall remain in full force and effect,
regardless of any investigation by or on behalf of any party, and shall survive
delivery of the Shares to UBS and resale of the Shares by UBS or any affiliated
entity.
7.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts with the same effect as if the signatures to each counterpart were
upon the same instrument.
7.11 ASSIGNABILITY. This Agreement is not assignable by either party
without the prior written consent of the other; provided that the Company may
assign this Agreement to a successor in interest pursuant to a transfer of all
or substantially all of its assets or pursuant to a consolidation or merger.
7.12 CONFIDENTIAL INFORMATION. Each party shall keep confidential and
shall not disclose or use for any purpose other than as provided for in this
Agreement any data or information designated as confidential by the providing
party.
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IN WITNESS WHEREOF, IVAX CORPORATION and UBS AG, London Branch, by
their duly authorized representatives, have executed this Agreement as of the
day and year first written above.
IVAX CORPORATION
By:
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Title:
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UBS AG, LONDON BRANCH
By:
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Title:
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By:
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Title:
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