EXHIBIT 10.18
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into as of
the 19th day of June, 2000 (the "Closing Date"), by and between Alfa Centura
Holdings NV, a Netherlands Antilles corporation (the "Seller") and IVAX
Corporation, a Florida corporation (the "Buyer").
Preliminary Statements
WHEREAS, Seller owns all of the issued and outstanding shares of Common
Stock (the "Common Stock") of Xxxxxxx B.V., a Netherlands corporation (the
"Company");
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, all of the shares of Common Stock owned by Seller (the "Shares")
upon the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the terms,
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
In addition to terms defined elsewhere in this Agreement, the following
terms when used in this Agreement shall have the meanings indicated below:
"Affiliate" means any Person which controls, is controlled by or is
under common control with the Company. Except as otherwise indicated, "control"
means the direct or indirect ownership of fifty percent (50%) or more of the
voting or income interest in such Person, or such other relationship as, in
fact, constitutes actual control.
"Assignment Agreement" means the Assignment and Guarantee Agreement,
dated as of the Closing Date, by and between the Buyer and the Seller whereby
the Seller assigns all of its all of its right, title and interest under
Indemnification Agreement, dated as of the Closing Date, by and among
Laboratorios XXXXX, C.A., a Venezuelan corporation, Xxxxxxx Xxxxx Novo, Oly
Prego, Xxxxxxx Xxxxx Xxxxxx, and Xxxxxx Xxxxxxx Xxxxx Xxxxxx and to guarantee
the obligations due thereunder.
"Escrow Agreement" means the Escrow Agreement, dated as of the Closing
Date, by and among the Seller, the Buyer and Akerman, Senterfitt & Xxxxxx, P.A.
as escrow agent.
"GAAP" means the U.S. Generally Accepted Accounting Principles.
"Intellectual Property" means any or all of the following owned, used
or controlled by the Company or its subsidiaries: (a) all inventions (whether
patentable or unpatentable and whether or not reduced to practice), all
improvements thereto, and all patents, patent applications, and patent
disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and reexaminations thereof; (b)
all trademarks, service marks, trade dress, logos, trade names, and corporate
names, together with all translations, adaptations, derivations, and
combinations thereof and including all goodwill associated therewith, and all
applications, registrations, and renewals in connection therewith; (c) all
copyrightable works, all copyrights, and all applications, registrations, and
renewals in connection therewith; (d) all trade secrets and confidential
business information (including databases, ideas, research and development,
know-how, formulas, compositions, manufacturing and production processes and
techniques, technical data, designs, drawings, specifications, customer and
supplier lists, pricing and cost information, and business and marketing plans
and proposals); (e) all computer programs and software (including data and
source and object codes and related documentation); (f) all other property
rights and all licenses and sublicenses granted by or to the Company or its
subsidiaries that relate to any of the foregoing; and (g) all copies and
tangible embodiments thereof (in whatever form or medium).
"Investment" means, with respect to any Person, advances, loans or
extensions of credit to any other Person, any purchases or commitments to
purchase any stock, bonds, notes, debentures or other securities of any other
Person, and any other investment in any other Person, including partnerships,
joint ventures or other similar arrangements with any Person.
"Liabilities" means any liabilities, claims, obligations or
indebtedness of any nature whatsoever (whether accrued, absolute, contingent or
otherwise).
"Liens" means any liens, claims, charges, rights, pledges, security
interests, mortgages, options, title defects or other encumbrances, restrictions
or limitations of any nature whatsoever.
"Person" means any natural person, corporation, unincorporated
organization, partnership, association, joint stock company, joint venture,
trust or government, or any agency or political subdivision of any government,
or any other entity.
"Securities" means the common stock of Buyer, par value $.10 per share.
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Taxes" means any federal, state, local or foreign income, gross
receipts, franchise, estimated, alternative minimum, add-on minimum, sales, use,
transfer, registration, value added, excise, natural resources, severance,
stamp, occupation, premium, windfall profit, environmental, customs, duties,
real property, personal property, capital stock, social security, unemployment,
disability, payroll, license, employee or other withholding, or other tax or
governmental charge, of any kind whatsoever, including any interest, penalties
or additions to tax or additional amounts in respect of the foregoing; the
foregoing shall include any transferee or secondary liability for a Tax and any
liability assumed by agreement or arising as a result of being (or ceasing to
be)
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a member of any affiliated group (or being included (or required to be included)
in any tax return relating thereto).
"Working Capital" means the current assets minus the current
liabilities, as reflected on the balance sheet of the Company, calculated in
accordance with GAAP.
ARTICLE II
PURCHASE AND SALE OF SHARES; PURCHASE PRICE
2.1 Purchase and Sale of Shares. Subject to the terms and conditions
set forth herein, Seller hereby sells, assigns, transfers and delivers to Buyer
and Buyer hereby purchases from Seller all of Seller's right, title and interest
in and to the Shares, free and clear of all Liens.
2.2 Purchase Price. In consideration of the sale, assignment, transfer
and delivery of the Shares by Seller to Buyer, Buyer hereby pays the purchase
price of Thirty Million United States Dollars (US$30,000,000) (the "Purchase
Price") by delivery to (i) the Seller of a number of Securities equal to
Twenty-Two Million United States Dollars (US$22,000,000) (the "Exchange
Securities") divided by the average of the closing prices per share of the
Securities, as reported by Bloomberg, for the 5 trading days immediately
preceding the Closing Date (the "Average Price"), (ii) the Seller of Four
Million Five Hundred Thousand United States Dollars (US$4,500,000) in
immediately available funds, and (iii) Akerman Senterfitt & Xxxxxx, P.A., as
escrow agent, (the "Escrow Agent") of a number of Exchange Securities (the
"Escrow Property") equal to Three Million Five Hundred Thousand United States
Dollars (US$3,500,000) divided by the Average Price to be held in escrow for
security of the obligations due hereunder and under the Assignment Agreement
pursuant to the terms of the Escrow Agreement.
2.3 Fractional Shares. In lieu of fractional shares, Buyer shall
deliver to Seller cash or a company check in the amount of the fractional share
otherwise issuable to the Seller multiplied by the Average Price.
ARTICLE III
CLOSING
3.1 Closing Date. The Closing Date is the day of execution of this
Agreement.
3.2. Deliveries of the Seller and the Company. The Seller and the
Company hereby deliver the following to the Buyer:
(a) stock certificates representing all of the Shares, duly
endorsed or accompanied by duly executed instruments of
transfer; as provided by the Laws of The Netherlands;
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(b) resignations, dated as of the Closing Date, of all directors
of the Company;
(c) an opinion of Adele P. Van der Pluijm-Vrede, Netherlands
Antilles counsel to the Seller, in the form of Schedule
3.2(c);
(d) an opinion of Wouters Advocaten & Notarissen Dutch counsel to
the Seller and the Company, in the form of Schedule 3.2(d);
and
(e) an executed copy of the Escrow Agreement.
3.3. Deliveries of the Buyer. The Buyer will deliver to the Seller
within ten (10) business days after the Closing Date the Purchase Price for the
Shares as established in Section 2.2.
3.4. Preparation of Closing Balance Sheet. Within sixty (60) days of
the Closing, the Buyer shall prepare, in accordance with GAAP, (i) a closing
balance sheet of the Company, on a consolidated basis, as of the Closing Date
(the "Closing Balance Sheet") and (ii) a calculation of the Working Capital of
the Company, on a consolidated basis, as of the Closing Date and shall deliver
such documents to the Seller. If the aggregate amount of Working Capital as of
the Closing Date is less than $12,000,000 or if aggregate amount of cash is less
than $6,976,000, then, subject to Section 3.5, commencing ten (10) business days
after delivery of the Closing Balance Sheet, the aggregate Purchase Price shall
be adjusted downward dollar-for-dollar in the amount of the greater of (i)
$6,976,000 minus the aggregate amount of cash reflected on the Closing Balance
Sheet and (ii) $12,000,000 minus the aggregate amount of Working Capital
reflected on the Closing Balance Sheet (the "Working Capital Deficiency" and the
Seller shall pay to Buyer by wire transfer of immediately available funds an
amount equal to the Working Capital Deficiency. At its option, and at any time
of from time to time after the determination of any Working Capital Deficiency,
Buyer shall be entitled to recover from the Escrow Property pursuant to the
terms of the Escrow Agreement all or any portion of the Working Capital
Deficiency not theretofore paid by the Seller.
3.5. Disputes. Notwithstanding anything in this Article 3 to the
contrary, if there is any Working Capital Deficiency and the Seller disputes any
item contained on the Closing Date Balance Sheet, then the Seller shall notify
Buyer in writing of each disputed item (collectively, the "Disputed Amounts")
and specify the amount thereof in dispute within ten (10) business days after
the delivery of the Closing Date Balance Sheet. If Buyer and Seller cannot
resolve any such dispute, then such dispute shall be resolved by an independent
nationally recognized accounting firm which is reasonably acceptable to the
Buyer and the Seller (the "Independent Accounting Firm"). The determination of
the Independent Accounting Firm shall be made as promptly as practicable and
shall be final and binding on the parties, absent manifest error which error may
only be corrected by such Independent Accounting Firm. Any expenses relating to
the engagement of the Independent Accounting Firm shall be allocated between the
Buyer and the Seller so that the Seller's aggregate share of such costs shall
bear the same proportion to the total costs that the Disputed Amounts
unsuccessfully contested by the Seller (as finally determined by the Independent
Accounting Firm) bear to the total of the Disputed Amounts so submitted to the
Independent Accounting Firm. Pending resolution of any such dispute by the
Independent Accounting Firm, no such Disputed
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Amount shall be due to Buyer. Once any such Disputed Amount is finally
determined to be due to Buyer, Buyer may proceed to recover such amount in the
manner set forth in Section 3.4.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer makes the representations and warranties set forth below to Seller
as of the date of this Agreement.
4.1 Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida. Buyer has
all requisite right, power and authority to execute, deliver and perform this
Agreement.
4.2 Authorization; Enforceability. The execution, delivery and
performance of this Agreement by Buyer and the consummation by Buyer of the
transactions contemplated hereby have been duly authorized by all requisite
corporate action on part of Buyer. This Agreement has been duly executed and
delivered by Buyer, and constitutes the legal, valid and binding obligation of
Buyer, enforceable in accordance with its terms.
4.3 No Violation or Conflict. The execution, delivery and performance
of this Agreement by Buyer and the consummation by Buyer of the transactions
contemplated hereby (a) do not and will not violate or conflict with any
provision of law or regulation, or any rule, ruling, interpretation, writ,
order, judgment or decree of any court or governmental or regulatory authority,
or any provision of Buyer's Articles of Incorporation or Bylaws; and (b) do not
and will not, with or without the passage of time or the giving of notice,
result in the breach of, or constitute a default, cause the acceleration of
performance, or require any consent under, or result in the creation of any Lien
upon any property or assets of Buyer pursuant to any material instrument or
agreement to which Buyer is a party or by which Buyer or its properties may be
bound or affected, other than instruments or agreements as to which consent
shall have been obtained at or prior to the Closing Date.
4.4 Registration Statement. The Exchange Securities will be issued
pursuant to Buyer's Registration Statement on Form S-4, No. 33-60847 (the
"Registration Statement"). Buyer has delivered to the Seller a copy of the
prospectus, dated January 19, 2000, included in the Registration Statement, and
has made available to the Seller a true and complete copy of all documents
incorporated by reference therein. As of the respective dates they were filed
with the Commission, none of such documents (including the Registration
Statement) contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading. Buyer has filed, and will timely file, all requisite
amendments to the Registration Statement which may be required through the
Closing Date and will promptly provide the Seller with a copy of any such
amendments.
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4.5 Validity of Exchange Securities; Listing. When issued and delivered
in accordance with this Agreement, the Exchange Securities shall be duly and
validly authorized, issued and outstanding, fully paid and non-assessable, shall
not have been issued in violation of the preemptive rights of any Person, and
shall be registered under the Securities Act and listed for trading on the
American Stock Exchange.
4.6 Brokers. Buyer has not employed any financial advisor, broker or
finder and has not incurred and will not incur any broker's, finder's,
investment banking or similar fees, commissions or expenses, in connection with
the transactions contemplated by this Agreement which would be payable by
Seller.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller makes the representations and warranties set forth below to
Buyer as of the date of this Agreement.
5.1 Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of The Netherlands. The Company is
duly qualified to transact business in all jurisdictions where the ownership or
leasing of its properties or the conduct of its business requires such
qualification; each jurisdiction in which the Company is so qualified and each
location where the Company has an office or place of business is listed on
Schedule 5.1. The Company has all requisite right, power and authority to own or
lease and operate its properties, and to conduct its business as presently
conducted.
5.2 Capacity; Enforceability. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the Netherlands
Antilles. Seller has the capacity and authority to execute, deliver and perform
this Agreement. The execution, delivery and performance of this Agreement by the
Seller and the consummation by the Seller of the transactions contemplated
hereby have been duly authorized by all requisite corporate action on the part
of the Seller. This Agreement and all other documents to be executed and
delivered by the Seller and the Company pursuant to this Agreement have been
duly executed and delivered by the Seller and the Company, and constitute the
legal, valid and binding obligations of the Seller and the Company, enforceable
against the Seller and the Company in accordance with their terms.
5.3 No Violation or Conflict. The execution, delivery and performance
of this Agreement by the Seller and the Company and the consummation of the
transactions contemplated hereby (a) do not and will not violate or conflict
with any provision of law or regulation, or any rule, ruling, interpretation,
writ, order, judgment or decree of any court or governmental or regulatory
authority, or any provision of the Articles of Incorporation or Bylaws of the
Company or its subsidiaries; and (b) do not and will not, with or without the
passage of time or the giving of notice, result in the breach of, or constitute
a default, or cause the
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acceleration of performance or the termination for change of control or give the
right of termination for change of control or require any consent under, or
result in the creation of any Lien upon any property or assets of Seller
(including, without limitation, the Shares), the Company or its subsidiaries
pursuant to any instrument or agreement to which Seller, the Company or its
subsidiaries is a party or by which Seller, the Company or its subsidiaries or
any of their respective properties may be bound or affected.
5.4 Consent of Governmental Authorities. No consent, approval or
authorization of, or registration, qualification or filing with any governmental
or regulatory authority of The Netherlands, Netherlands Antilles or Venezuela,
is required to be made by Seller, the Company or its subsidiaries in connection
with the execution, delivery or performance of this Agreement by Seller or the
Company, or the consummation by Seller or the Company of the transactions
contemplated hereby.
5.5 Brokers. Seller has not employed any financial advisor, broker or
finder and has not incurred and will not incur any broker's, finder's,
investment banking or similar fees, commissions or expenses, in connection with
the transactions contemplated by this Agreement which would be payable by Buyer.
5.6 Corporate Records. The stock records and minute books of the
Company and the Subsidiaries (true, correct and complete copies of which Seller
has heretofore provided to Seller or its Assignee) fully reflect all issuances,
transfers and redemptions of the Company's Common Stock and each of the
Subsidiaries common stock, correctly show the total number of shares of the
Company's Common Stock and each of the Subsidiary's common stock issued and
outstanding on the date hereof, contain true, correct and complete copies of the
Company's and each of the Subsidiary's Articles of Incorporation and Bylaws or
other similar organization documents, in each case as amended and currently in
force. Such minute books also contain complete and accurate records of all
meetings and other corporate actions of the board of directors, committees of
the board of directors, incorporators and shareholders of the Company and each
of the Subsidiaries from their respective dates of incorporation to the date
hereof All matters requiring the authorization or approval of the board of
directors, a committee of the board of directors, the incorporators, or the
shareholders of the Company and each of the Subsidiaries have been duly and
validly authorized and approved by them.
5.7 Capitalization. The authorized capital stock of the Company
consists of two hundred (200) shares of Common Stock, of which forty (40) shares
are issued and outstanding. No class of equity securities of the Company exists
other than the Common Stock. All voting rights with respect to the Company are
vested solely in the Common Stock. The Company has no treasury shares. All
outstanding shares of the Company's Common Stock have been duly authorized, are
validly issued and outstanding, and are fully paid and nonassessable. No
securities issued by the Company from its date of incorporation to the date
hereof were issued in violation of the securities laws of any jurisdiction or
the preemptive rights of any Person. There are no dividends which have accrued
or been declared but are unpaid on the Common Stock of the Company. All Taxes of
any nature or kind required to be paid in connection with the issuance and any
transfers of the Company's Common Stock have been paid. All authorizations
required to be obtained from or registrations required to be effected with any
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Person in connection with the issuances of securities of the Company from the
date of its incorporation to the date hereof have been obtained or effected and
all securities of the Company have been issued and are held in accordance with
the provisions of all applicable securities and other laws. The Shares
constitute one hundred percent (100%) of the issued and outstanding capital
stock of the Company and are legally and beneficially owned in their entirety by
Seller.
5.8 Rights, Warrants, Options. There are no outstanding (a) securities
or instruments convertible into or exercisable for any of the Common Stock or
other equity interests of the Company; (b) options, warrants, subscriptions or
other rights to acquire Common Stock or other equity interests of the Company;
(c) debt securities with any voting rights or convertible into securities with
voting rights; or (d) commitments, agreements or understandings of any kind,
including, without limitation, shareholders' agreement, rights of first refusal,
voting agreements, voting trusts, registration rights agreements, preemptive
rights, employee benefit arrangements or other similar agreements, relating to
any Common Stock or other equity interests of the Company, or the issuance or
repurchase by the Company of (1) any Common Stock or other equity interests of
the Company or (2) an such securities or instruments convertible into or
exercisable for Common Stock or other equity interests of the Company. The
Company has not outstanding stock appreciation , phantom stock rights or any
similar rights.
5.9 Title to Shares. Seller is the record and beneficial owners of the
Shares and owns the Shares free and clear of any Liens, including, without
limitation, claims or rights under any voting trust agreements, shareholder
agreements or other agreements. At the Closing, Seller transfers and conveys,
and Buyer acquires, good and valid title to the Shares, free and clear of all
Liens, encumbrances, pledges, security interests and claims whatsoever.
5.10 Investments. Except as set forth on Schedule 5.10, the Company has
no Investments.
5.11 No operations. Since its incorporation, the Company has not
engaged in any operations, bought or sold any assets, incurred any Liabilities,
entered into any agreements or otherwise engaged in any business activities.
5.12 Absence of Undisclosed Liabilities. The Company has no Liabilities
or any unrealized or anticipated losses, and there is no basis for assertion
against the Company of any such Liability or loss.
5.13 Working Capital. As of the Closing Date, the Company and its
subsidiaries will have Working Capital in the amount of at least Twelve Million
United States Dollars (US$12,000,000), of which at least Six Million Nine
Hundred Seventy-Six Thousand United States Dollars (US$6,976,000) must be in
cash.
5.14 Bank Accounts; Powers of Attorney. The Company has no bank
accounts. Schedule 5.14 is a complete and accurate list of the names of all
persons, if any, holding powers of attorney from the Company.
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5.15 Tax Matters. Seller has delivered to Buyer true, correct and
complete copies of each of the tax returns filed by the Company since 1995. All
tax returns and other documents required to be filed with respect to the
Company, its business, operations or assets or the Shares have been timely filed
in the manner prescribed by law in all jurisdictions in which such returns and
documents are required to be filed. All of the foregoing as filed are true,
correct and complete and reflect accurately all Liability for Taxes of any
nature or kind of the Company for the periods to which such returns and
documents relate, and all amounts shown as owing thereon have been fully paid or
adequately disclosed and fully reserved against in the Financial Statements and
the books and records of the Company. All Taxes of any nature or kind, if any,
collectible or payable by the Company or relating to or chargeable against any
of its assets, revenues or income through December 31, 1999, were fully
collected and paid by such date or provided for by adequate reserves in the
Balance Sheet, and all similar items due through the Closing Date will have been
fully paid by that date. No taxing authority has audited the records of the
Company or notified the Company of its intention to audit such records in the
past five (5) years. No claims or deficiencies have been asserted or are pending
against the Company with respect to any Taxes or other governmental charges or
levies of any nature or kind which have not been paid or otherwise satisfied or
for which accruals or reserves have not been made in the Balance Sheet. There
exists no reasonable basis for the making of any such claims, and no such claims
have been threatened. No Taxes are owed by the Company relating to its
organizational structure. The Company has not waived any restrictions on
assessment or collection of Taxes of any nature or kind or consented to the
extension of any statute of limitations relating to taxation. Neither the Seller
nor the Company has any tax Liability of any nature or kind that could result in
any Lien being imposed on the Shares. Seller has paid all Taxes due with respect
to the Shares. No tax, assessment, imposition, charge, penalty or interest of
any kind will arise, become due or be accelerated that Buyer or the Company will
be liable or responsible for payment as a result of the sale of the Shares to
Buyer or any of the other transactions contemplated hereby.
5.16 Compliance with Laws. The Company is in compliance with all
applicable laws, rules, regulations, rulings, interpretations, orders and
decrees of The Netherlands and any other country where it conducts its business
or operations and has not been charged with any alleged violation or
nonconformity with local or foreign laws, rules, regulations, rulings,
interpretations, orders or decrees.
5.17 Licenses and Permits. The Company has all permits, licenses,
certificates of authority, orders and approvals of, and has made all filings,
applications and registrations with, all local or foreign governmental or
regulatory bodies that are required to be obtained, maintained or made in order
to permit the Company to own its assets and to carry on its business as
presently conducted (the "Permits"). All such Permits are current and in full
force and effect, and, there is no proceeding pending or threatened.
5.18 Related Parties. Neither Seller nor any director, officer,
employee, consultant, agent or attorney of the Company nor any Affiliate of
Seller or the Company (individually a "Related Party" and collectively the
"Related Parties") nor any Affiliate of any Related Party (a) owns, directly or
indirectly, any interest or has made any Investment in any Person which is a
competitor, potential competitor, supplier or customer of the Company; (b) owns,
directly or indirectly, in whole or in part, any property, asset or right, real,
personal or
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mixed, tangible or intangible (including, but not limited to, any of the
Intellectual Property) which is utilized in the operation of the business of the
Company or necessary or desirable to the business of the Company as presently
conducted or as contemplated to be conducted; or (c) has an interest or
Investment in or is, directly or indirectly, a party to any commitment or other
arrangement or relationship (whether or not in writing) pertaining or relating
to the business, operations or assets of the Company.
5.19 Full Disclosure. No representation or warranty of Seller or the
Company contained in this Agreement, and none of the statements or information
concerning Seller or the Company contained in this Agreement or the exhibits and
the schedules hereto, contains any untrue statement of a material fact nor will
such representations, warranties, covenants or statements taken as a whole omit
a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
5.20 Financial Statements. Seller has previously delivered to Buyer
true and complete copies of (a) the balance sheets of Laboratorios Xxxxx, X.X.
(Caracas) and its subsidiaries ("Elmor") for the fiscal years ended December 31,
1999, 1998, 1997, 1996 and 1995 and the related statements of income, cash flows
and changes in shareholders' equity of the Elmor for the years ended December
31, 1999, 1998, 1997, 1996 and 1995 including any related notes, certified by
the Company's or independent certified public accountants pursuant to their
audit of the financial records of the Elmor, and (b) the balance sheet of Elmor
as of May 31, 2000 (the "May 2000 Balance Sheet") and the statements of income,
cash flows and changes in shareholders' equity for the five month period ended
May 31, 2000, certified by the Seller and the Company's or Subsidiaries' chief
financial officer (collectively, the "Financial Statements"). All such financial
statements, including the Financial Statements (a) have been prepared in
accordance with the books of account and records of Elmor; (b) fairly present,
and are, true, correct and complete statements in all material respects of the
financial condition and the results of operations of Elmor at the dates and for
the periods specified in those statements; and (c) have been prepared in
accordance with generally accepted accounting principles consistently applied
with prior periods. Elmor has maintained their respective accounting books and
supporting documentation for the last 10 years.
5.21 Guaranties. The Company is not a party to any Guaranty, and no
Person is a party to any Guaranty for the benefit of the Company.
5.22 Investigations; Litigation. There is no pending or threatened
investigation, inquiry or hearing by any governmental agency against or
adversely and there is no action, demand, suit, proceeding or claim, pending or,
threatened, against or affecting the Company or the Seller's ability to execute
this Agreement or consummate the actions contemplated hereby. Neither the
Company, its Affiliates nor any of their directors, officers, employees or
agents, in their respective capacities as such, is a party to any, and there are
no pending or threatened, legal, administrative, arbitral or other proceedings,
claims, suits, or actions of any nature against the Company or its Affiliates or
any of their directors, officers, employees or agents, in their respective
capacities as such, or involving any property or assets of the Company or its
Affiliates.
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There is no outstanding order, writ, injunction or decree of any court,
government or governmental agency against, or affecting the Company or its
assets or business.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 General Release. Seller hereby unconditionally and irrevocably
releases and forever discharges, effective as of the Closing Date, the Company,
and its officers, directors, employees and agents, from any and all rights,
claims, demands, judgments, obligations, liabilities and damages, whether
accrued or unaccrued, asserted or unasserted, and whether known or unknown,
relating to the Company which ever existed, now exist, or may hereafter exist,
by reason of any tort, breach of contract, violation of law or other act or
failure to act which shall have occurred at or prior to the Closing Date, or in
relation to any other liabilities of the Company to the Seller. The Seller
expressly intends that the foregoing release shall be effective regardless of
whether the basis for any claim or right hereby released shall have been known
to or anticipated by the Seller.
6.2 Seller Restrictions on Sale. Seller understands and acknowledges
that the Exchange Securities will be registered with the Securities and Exchange
Commission ("SEC") under the Securities Act on a Registration Statement on Form
S-4. However, Seller further understands and acknowledges that any sale,
transfer or disposition by them of any of the Exchange Securities may, under
current law, be made only (i) in accordance with the provisions of paragraph (d)
of Rule 145 under the Securities Act, (ii) pursuant to an effective registration
statement under the Securities Act or (iii) upon receipt by Buyer of an opinion
of counsel reasonably acceptable to Buyer, or a "no-action" letter obtained by
it from the SEC, to the effect that such sale, transfer or disposition is
otherwise exempt from registration under the Securities Act.
6.3 Confidentiality. Seller and the Company acknowledge that the
Intellectual Property and all other confidential or proprietary information with
respect to the business and operations of the Company and its subsidiaries is
valuable, special and unique. Seller and the Company shall not at any time after
the Closing Date disclose, directly or indirectly, to any Person, or use or
purport to authorize any Person to use, any confidential or proprietary
information with respect to the Company or its subsidiaries, whether or not for
Seller's or the Company's benefit, without the prior written consent of Buyer.
Seller and the Company acknowledge that Buyer would not enter into this
Agreement without the assurance that all such confidential and proprietary
information will be used for the exclusive benefit of the Company and its
subsidiaries.
6.4 Indemnification. The Seller agrees to indemnify and hold harmless
Buyer, and its directors, officers, shareholders, employees, agents and
subsidiaries and their respective assigns from, against and in respect of, the
full amount of any and all Liabilities, damages, claims, deficiencies, fines,
assessments, losses, taxes, penalties, interest, costs and expenses, including,
without limitation, reasonable fees and disbursements of counsel (collectively,
the
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"Indemnified Losses") arising from, in connection with, or incident to (i) any
breach or violation of any of the Sellers' representations, warranties,
covenants or agreements contained in this Agreement; (ii) the business or
operations of the Company or Sellers before the Closing Date; (iii) any and all
actions, suits, proceedings, demands, assessments or judgments, incidental to
any of the foregoing and (iv) any Working Capital Deficiency.
6.5 Additional Tax Agreements. Seller will file an election via
certified mail with the Internal Revenue Service Center, Xxxxxxxxxxxx, XX 00000
prior to or at Closing to be a foreign entity with a single owner electing to be
disregarded as a separate entity from its date of incorporation on Internal
Revenue Service Form 8832 (the "Entity Classification Election"). In addition,
prior to or at closing, Seller shall cause its shareholder as sole shareholder
of Seller to file Internal Revenue Service Form SS-4 (Application for Employer
Identification Number) via certified mail with the Internal Revenue Service
Center, Attn: Entity Control, Xxxxxxxxxxxx XX 00000. A copy of all the executed
Internal Revenue Service Form 8832 and Form SS-4 filing along with a copy of the
certified mail receipts is required to be provided to Buyer prior to or at
Closing. Furthermore, Seller agrees to provide Buyer with a copy of each of the
Internal Revenue Service approvals and/or notifications relating to Entity
Classification Election. If Seller has not received approval from the Internal
Revenue Service within 120 days of filing the Entity Classification Election,
then the Seller is required to contact the Internal Revenue Service to inquire
about the status of the Entity Classification Election and notify Buyer of the
results of the inquiry regarding such status.
ARTICLE VII
MISCELLANEOUS
7.1 Notices. Any notice, request, demand or other communication
required or permitted under this Agreement shall be in writing and shall be
delivered personally or sent by certified mail, return receipt requested,
postage prepaid, or sent by facsimile or prepaid overnight courier to the
parties at the names and addresses set forth below (or at such other addresses
as shall be specified by the parties by like notice).
If to Seller, then to:
Alfa Centura Holdings NV
00 Xxxx Xxxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx Antilles
Attn: Xxxxxx Xxxxxxx
Phone: (0000) 000-0000
Fax: (0000) 000-0000
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If to Buyer, then to:
IVAX Corporation
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attn: President
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
IVAX Corporation
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attn: General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
Such notices, demands, claims and other communications shall be deemed
given when actually received, or (a) in the case of delivery by overnight
service with guaranteed next day delivery, the next day or the day designated
for delivery, (b) in the case of certified mail, ten (10) days after deposit in
the mail, or (c) in the case of facsimile, the date upon which the transmitting
party received confirmation of receipt by facsimile, telephone or otherwise.
7.2 Further Assurances. The parties shall deliver any and all other
instruments or documents required to be delivered pursuant to, or necessary or
proper in order to give effect to, the provisions of this Agreement, including
without limitation, all necessary stock powers and such other instruments of
transfer as may be necessary or desirable to transfer ownership of the Shares
and to consummate the transactions contemplated by this Agreement.
7.3 Entire Agreement. This Agreement and the exhibits and schedules to
this Agreement contain every obligation and understanding between the parties
relating to the subject matter hereof and merge all prior discussions,
negotiations and agreements, if any, between them, and none of the parties shall
be bound by any representations, warranties, covenants, or other understandings,
other than as expressly provided or referred to herein. This Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties.
7.4 Assignment. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, executors, legal
representatives, successors and permitted assigns. No party hereto may assign
this Agreement or any rights hereunder, in whole or in part without the written
consent of the other party, except that Buyer may assign this Agreement to any
of its Affiliates.
7.5 Waiver. No waiver by any party hereto of its rights under any
provision of this Agreement shall constitute a waiver of such party's rights
under such provisions at any other time or a waiver of such party's rights under
any other provision of this Agreement. No failure
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by any party hereto to take any action against any breach of this Agreement or
default by another party shall constitute a waiver of the former party's right
to enforce any provision of this Agreement or to take action against such breach
or default or any subsequent breach or default by such other party.
7.6 No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any Person
other than the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and permitted assigns, any
rights or remedies under or by reason of this Agreement.
7.7 Severability. In the event that any one or more of the provisions
contained in this Agreement shall be declared invalid, void or unenforceable,
the remainder of the provisions of this Agreement shall remain in full force and
effect, and such invalid, void or unenforceable provision shall be interpreted
as closely as possible to the manner in which it was written.
7.8 Expenses. All expenses (including, without limitation, financial
advisory fees, legal fees and expenses, broker and finder fees, fees and
expenses of accountants) incurred by each party in connection with the
transactions contemplated hereby (hereunder referred to as "Expenses") will be
borne by the party incurring such Expenses, provided that any Expenses incurred
by Seller or the Company prior to the Closing Date shall be borne solely by
Seller.
7.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
7.10 Consent to Jurisdiction; Venue. This Agreement shall be subject to
the exclusive jurisdiction of the courts of Miami-Dade County, Florida. The
parties irrevocably waive, to the fullest extent permitted by law, any objection
which they may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Agreement, or any judgment
entered by any court in respect hereof brought in the State of Florida, and
further irrevocably waive any claim that any suit, action or proceeding brought
in Miami-Dade County, Florida has been brought in an inconvenient forum.
7.11 Injunctive Relief. It is possible that remedies at law may be
inadequate and, therefore, the parties hereto shall be entitled to equitable
relief including, without limitation, injunctive relief, specific performance or
other equitable remedies in addition to all other remedies provided hereunder or
available to the parties hereto at law or in equity.
7.12 Governing Law. This Agreement has been entered into and shall be
construed and enforced in accordance with the laws of the State of Florida,
without giving effect to conflict of law principles.
7.13 Jurisdiction; Venue. Any suit, action or proceeding against any
party with respect to this Agreement or any judgment entered by any court in
respect of this Agreement shall be brought in the courts of the State of Florida
in Miami-Dade County, Florida, or in the
00
X.X. Xxxxxxxx Xxxxx for the Southern District of Florida, and the parties hereto
accept the exclusive jurisdiction of those courts for the purpose of any such
suit, action or proceeding. In addition, the parties irrevocably waive, to the
fullest extent permitted by law, any objection which they may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement, or any judgment entered by any court in respect
hereof brought in Miami-Dade County, Florida, and further irrevocably waive any
claim that any suit, action or proceeding brought in Miami-Dade County, Florida
was brought in an inconvenient forum.
7.14 English Version. In the event that this Agreement is translated
into a language other than English, the English version of this Agreement shall
control all questions of interpretation with respect thereto.
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IN WITNESS WHEREOF, the parties hereto have each executed and delivered
this Agreement as of the day and year first above written.
Buyer: IVAX Corporation
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice Chairman and President
SELLER: Alfa Centura Holdings NV
By: /s/ Xxxx Xxxxxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxxxx Xxxxx
Title: Attorney-in-Fact
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