EXHIBIT 10.2
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TRANSACTION AGREEMENT
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Among
HAFSLUND NYCOMED AS,
IVAX CORPORATION,
and
IVAX NYCOMED CORPORATION
Dated as of October 18, 1995
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TABLE OF CONTENTS
Page
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ARTICLE I
ORGANIZATION OF IVAX NYCOMED AND ACQUISITION SUB
SECTION 1.01. IVAX NYCOMED Organization .............................. 4
SECTION 1.02. Acquisition Sub Organization ........................... 4
ARTICLE II
THE MERGER
SECTION 2.01. The Merger ............................................ 5
SECTION 2.02. Effective Time; Closing ............................... 5
SECTION 2.03. Effect of the Merger .................................. 5
SECTION 2.04. Articles of Incorporation; By-Laws .................... 5
SECTION 2.05. Directors and Officers of the Surviving Corporation.... 6
SECTION 2.06. Conversion of Capital Stock ........................... 6
SECTION 2.07. Exchange of Certificates .............................. 6
SECTION 2.08. Stock Transfer Books .................................. 10
SECTION 2.09. Stock Options ......................................... 10
ARTICLE III
THE SHARE EXCHANGE
SECTION 3.01. Nycomed Organization .................................. 12
SECTION 3.02. Purchase and Sale of the Medical Businesses Between
Hafslund Nycomed and Nycomed .............. 12
SECTION 3.03. Purchase and Sale of the Nycomed Shares Pursuant to the
Share Exchange ............................ 12
SECTION 3.04. Closing of Share Exchange ............................. 13
SECTION 3.05. Closing Deliveries by Hafslund Nycomed ................ 13
SECTION 3.06. Closing Deliveries by IVAX NYCOMED .................... 13
ARTICLE IV
THE DEMERGER
SECTION 4.01. Holdings Organization.................................. 13
ii
SECTION 4.02. Contribution of the IVAX NYCOMED Share Consideration
to Holdings ............................... 14
SECTION 4.03. Distribution of Holdings Shares to Hafslund Nycomed
Shareholders .............................. 14
SECTION 4.04. Exchange of Holdings Shares for IVAX NYCOMED Shares... 16
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF IVAX
SECTION 5.01. Organization and Qualification; Subsidiaries .......... 17
SECTION 5.02. Articles of Incorporation and By-Laws ................. 18
SECTION 5.03. Capitalization ........................................ 18
SECTION 5.04. Authority Relative to This Agreement .................. 19
SECTION 5.05. No Conflict; Required Filings and Consents ............ 19
SECTION 5.06. Permits; Compliance with Laws ......................... 20
SECTION 5.07. SEC Filings; Financial Statements ..................... 21
SECTION 5.08. Absence of Certain Changes or Events .................. 22
SECTION 5.09. Employee Benefit Plans; Labor Matters ................. 23
SECTION 5.10. Accounting and Tax Matters ............................ 24
SECTION 5.11. Contracts; Debt Instruments ........................... 25
SECTION 5.12. Litigation ............................................ 25
SECTION 5.13. Environmental Matters ................................. 25
SECTION 5.14. Trademarks, Patents and Copyrights .................... 26
SECTION 5.15. Taxes ................................................. 27
SECTION 5.16. Opinion of Financial Advisor .......................... 27
SECTION 5.17. Brokers ............................................... 28
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF HAFSLUND NYCOMED
SECTION 6.01. Organization and Qualification; Subsidiaries .......... 28
SECTION 6.02. Articles of Association ............................... 28
SECTION 6.03. Capitalization ........................................ 29
SECTION 6.04. Authority Relative to This Agreement .................. 29
SECTION 6.05. No Conflict; Required Filings and Consents; Transfer of
Medical Businesses ........................ 30
SECTION 6.06. Permits; Compliance with Laws ......................... 31
SECTION 6.07. Stock Exchange and SEC Filings; Financial Statements .. 32
SECTION 6.08. Absence of Certain Changes or Events; No Activities ... 33
SECTION 6.09. Employee Benefit Plans; Labor Matters ................. 33
iii
SECTION 6.10. Accounting and Tax Matters ............................ 35
SECTION 6.11. Contracts; Debt Instruments ........................... 36
SECTION 6.12. Litigation ............................................ 36
SECTION 6.13. Environmental Matters ................................. 36
SECTION 6.14. Trademarks, Patents and Copyrights .................... 37
SECTION 6.15. Taxes ................................................. 38
SECTION 6.16. Opinion of Financial Advisor .......................... 38
SECTION 6.17. Brokers ............................................... 38
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF
IVAX NYCOMED
SECTION 7.01. Representations and Warranties of IVAX NYCOMED ........ 38
ARTICLE VIII
COVENANTS
SECTION 8.01. Conduct of Business by IVAX Pending the Closing ....... 40
SECTION 8.02. Conduct of Business by Hafslund Nycomed Pending the
Closing ................................... 43
SECTION 8.03. Cooperation; Steering Committee ....................... 45
SECTION 8.04. Notices of Certain Events ............................. 46
SECTION 8.05. Access to Information; Confidentiality ................ 46
SECTION 8.06. No Solicitation of Transactions ....................... 47
SECTION 8.07. Pooling ............................................... 48
SECTION 8.08. Letters of Accountants ................................ 48
SECTION 8.09. Plan of Reorganization ................................ 48
SECTION 8.10. Performance of Holdings, Nycomed and Acquisition Sub
Obligations ............................... 48
SECTION 8.11. Transfer of Assets of the Medical Businesses to Nycomed;
Non-Assignable Assets ....................................... 49
SECTION 8.12. Further Action; Consents; Filings ..................... 50
[SECTION 8.13. Approval of Corporate Assembly ....................... 50
ARTICLE IX
ADDITIONAL AGREEMENTS
SECTION 9.01. Registration Statement; Proxy Statement ............... 51
iv
SECTION 9.02. Stockholders' Meetings ................................ 53
SECTION 9.03. Employee Benefits Matters ............................. 54
SECTION 9.04. Directors' and Officers' Indemnification and Insurance. 54
SECTION 9.05. Pooling Affiliates .................................... 55
SECTION 9.06. Public Announcements .................................. 56
SECTION 9.07. Stock Exchange Listings ............................... 56
SECTION 9.08. Amendment of Nycomed Purchase and Sale Agreement ...... 57
SECTION 9.09. Lease of Hafslund Manner .............................. 57
ARTICLE X
CONDITIONS TO THE TRANSACTIONS
SECTION 10.01. Conditions to the Obligations of Each Party to Consummate
the Transactions ........................... 57
SECTION 10.02. Conditions to the Obligations of IVAX ................. 60
SECTION 10.03. Conditions to the Obligations of Hafslund Nycomed,
Holdings and Nycomed ....................... 61
ARTICLE XI
TERMINATION, AMENDMENT AND WAIVER
SECTION 11.01. Termination .......................................... 62
SECTION 11.02. Effect of Termination ................................ 65
SECTION 11.03. Amendment ............................................ 65
SECTION 11.04. Waiver ............................................... 65
SECTION 11.05. Fees and Expenses .................................... 66
ARTICLE XII
GENERAL PROVISIONS
SECTION 12.01. Non-Survival of Representations, Warranties and
Agreements ................................ 68
SECTION 12.02. Notices .............................................. 68
SECTION 12.03. Certain Definitions .................................. 70
SECTION 12.04. Severability ......................................... 71
SECTION 12.05. Assignment; Binding Effect; Benefit .................. 71
SECTION 12.06. Incorporation of Exhibits ............................ 71
SECTION 12.07. Specific Performance ................................. 71
SECTION 12.08. Governing Law; Governing Language .................... 72
v
SECTION 12.09. Submission to Jurisdiction; Venue .................... 72
SECTION 12.10. Headings ............................................. 73
SECTION 12.11. Counterparts ......................................... 73
SECTION 12.12. Entire Agreement ..................................... 73
EXHIBIT 1.01(a) Specified Officers of IVAX NYCOMED
EXHIBIT 1.01(b)(i) Form of Articles of Incorporation of IVAX NYCOMED
EXHIBIT 1.01(b)(ii) Form of IVAX NYCOMED By-Laws
EXHIBIT 1.02 Form of Articles of Incorporation of Acquisition Sub
EXHIBIT 3.01(b) Form of Articles of Association of Nycomed
EXHIBIT 3.02 Forms of Ancillary Nycomed Purchase and Sale Agreement
EXHIBIT 4.01(c) Form of Articles of Association of Holdings
EXHIBIT 4.02 Form of Demerger Plan
EXHIBIT 8.10(a) Form of Amendment to this Agreement
EXHIBIT 8.10(c) Form of Holdings/IVAX NYCOMED Agreement
EXHIBIT 9.05(a) Form of Affiliate Letter for Affiliates of IVAX
EXHIBIT 9.05(b) Form of Affiliate Letter for Affiliates of Hafslund
Nycomed
GLOSSARY OF DEFINED TERMS
Acquisition Sub Recitals
affiliate section 12.03(a)
Agreement Preamble
Amendment section 8.10(a)
AMEX section 2.07(e)
Articles of Merger section 2.02
beneficial owner section 12.03(b)
Blue Sky Laws section 5.05(b)(i)
business day section 12.03(c)
CERCLA section 5.13
Certificates section 2.07(a)
Class A Exchange Ratio section 4.03(a)
Class B Exchange Ratio section 4.03(a)
Closing section 2.02
Code Recitals
Competing Transaction section 8.06(b)
Confidentiality Agreement section 8.05(b)
Demerger Distribution section 4.03(a)
Demerger Exchange Ratios section 4.03(a)
Demerger Filing section 6.05(b)
Demerger Plan section4.02
Demerger Recitals
Xxxxxx Read section 5.16
Effective Time section 2.02
Energy Business Recitals
Energy Business Option section 4.03(b)
Environmental Laws section 5.13(d)
Environmental Permits section 5.13(d)
ERISA section 5.09(a)
European Exchanges section 6.05(b)
Exchange Act section 5.05(b)(i)
Exchange Agent section 2.07(a)
Exchange Facilities section 4.04
Exchange Fund section 2.07(a)
Exchange Period section 4.04
Expenses section 11.05(a)
FBCA Recitals
FDA section 5.06(a)
FDCA section 5.06(b)
Governmental Entity section 5.05(b)
II
Hazardous Materials section 5.13
HSR Act section 5.05(b)(i)
Hafslund Nycomed Preamble
Hafslund Nycomed Authorized Agent section 12.09
Hafslund Nycomed Benefit Plans section 6.09(a)
Hafslund Nycomed Common Stock Recitals
Hafslund Nycomed Class A Common Stock Recitals
Hafslund Nycomed Class B Common Stock Recitals
Hafslund Nycomed Disclosure Schedule section 6.03
Hafslund Nycomed Foreign Benefit Plan section 6.09(c)
Hafslund Nycomed Material Adverse Effect section 6.01
Hafslund Nycomed Material Contract section 6.11
Hafslund Nycomed Options section 4.03(b)
Hafslund Nycomed Parties section 10.02(a)
Hafslund Nycomed Permits section 6.06
Hafslund Nycomed Reports section 6.07(a)
Hafslund Nycomed Stock Options Plans section 4.03(b)
Hafslund Nycomed Subsidiaries section 6.01
Hafslund Nycomed Termination Fee section 11.05(c)
Holdings Recitals
Holdings Voting Agreement section 8.10(c)
Holdings Common Stock Recitals
IRS section 5.09(a)(i)
IVAX Preamble
IVAX Authorized Agent section 12.09
IVAX Benefit Plans section 5.09(a)
IVAX Common Stock Recitals
IVAX Disclosure Schedule section 5.03
IVAX Excess Shares section 2.07(e)
IVAX Foreign Benefit Plan section 5.09(c)
IVAX Material Adverse Effect section 5.01
IVAX Material Contract section 5.11
IVAX Options section 2.09(a)
IVAX Permits section 5.06(a)
IVAX Reports section 5.07(a)
IVAX Shares Trust section 2.07(e)
IVAX Stock Option Plans section 2.09(a)
IVAX Stockholders' Meeting section 9.01(a)(i)
IVAX Subordinated Notes section 5.03
IVAX Subsidiaries section 5.01
IVAX Termination Fee section 11.05(b)
IVAX NYCOMED Preamble
III
IVAX NYCOMED Common Stock Recitals
IVAX NYCOMED Option section 4.03(b)
IVAX NYCOMED Share Consideration 3.03
knowledge section 12.03(e)
Law section 5.06(b)
London Courts section 12.09
Medical Businesses Recitals
Merger Recitals
Merger Exchange Ratio section 2.06(a)
Xxxxxxx Xxxxx section 6.16
NOK section 12.03(f)
Nycomed Preamble
Nycomed Common Stock Recitals
Nycomed Purchase and Sale Agreements section 3.02
Nycomed Shares section 3.03
NYSE section 6.05(b)
OSE section 6.05(b)
person section 12.03(g)
Pooling Affiliate section 9.05(a)
Proxy Statement section 9.01(a)(iii)
Registration Statement section 9.01(a)(ii)
Regulations Recitals
Representatives section 8.05(a)
SEC Recitals
Securities Act section 5.05(b)(i)
Share Exchange Recitals
Share Exchange Share Issuance Recitals
Steering Committee section 8.03(b)
Stockholders' Meetings section 9.02
subsidiary(ies) section 12.03(h)
Substitute Option section 2.09(a)
Surviving Corporation section 2.01
Taxes section 5.15
Terminating Hafslund Nycomed Breach section 11.01(h)
Terminating IVAX Breach section 11.01(g)
Third Party Provisions section 12.05
Transactions Recitals
"$" section 12.03(d)
TRANSACTION AGREEMENT
TRANSACTION AGREEMENT dated as of October 18, 1995 (this
"AGREEMENT") among HAFSLUND NYCOMED AS, a corporation organized under the laws
of the Kingdom of Norway ("HAFSLUND NYCOMED"; after the consummation of the
Demerger, Hafslund Nycomed shall be known as Hafslund AS, "HAFSLUND"), IVAX
CORPORATION, a Florida corporation ("IVAX"), and IVAX NYCOMED CORPORATION, a
Florida corporation ("IVAX NYCOMED").
W I T N E S S E T H :
WHEREAS, the Boards of Directors of IVAX and Hafslund Nycomed
have determined that it is consistent with and in furtherance of their
respective long-term business strategies and fair to and in the best interests
of their respective companies and stockholders to combine their respective
businesses (other than Hafslund Nycomed's Norwegian business of generating
hydroelectric power and transmitting, buying and selling electric power (the
"ENERGY BUSINESS")) in a "merger of equals" transaction to be effected as set
forth in this Agreement;
WHEREAS, upon the terms and subject to the conditions of this
Agreement and of the Nycomed Purchase and Sale Agreement (as defined below),
Hafslund Nycomed shall sell to Nycomed AS, a corporation to be organized by
Hafslund Nycomed under the laws of the Kingdom of Norway and which will be a
wholly owned subsidiary of Hafslund Nycomed ("NYCOMED"), and Nycomed shall
purchase and assume from Hafslund Nycomed, all of Hafslund Nycomed's businesses,
assets and liabilities other than the Energy Business and the assets and
liabilities related to the Energy Business (such businesses, assets and
liabilities purchased and sold being the "MEDICAL BUSINESSES");
WHEREAS, Hafslund Nycomed and IVAX have organized IVAX NYCOMED
and have caused IVAX NYCOMED to issue to each of them 50% of its outstanding
capital stock;
WHEREAS, upon the terms and subject to the conditions of this
Agreement, IVAX NYCOMED will acquire from Hafslund Nycomed all the issued and
outstanding shares of common stock, with a nominal value of NOK 1,000.00 per
share, of Nycomed (the "NYCOMED COMMON STOCK") for a specified number of shares
of common stock, par value $.01 per share, of IVAX NYCOMED (the "IVAX NYCOMED
COMMON STOCK") (such exchange of shares being the "SHARE EXCHANGE");
WHEREAS, upon the terms and subject to the conditions of this
Agreement, Hafslund Nycomed (A) shall contribute to IVAX NYCOMED B AS, a
corporation to be
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organized by Hafslund Nycomed under the laws of the Kingdom of Norway and which
will be a wholly owned subsidiary of Hafslund Nycomed ("HOLDINGS"), all shares
of IVAX NYCOMED Common Stock owned by Hafslund Nycomed, including the shares of
IVAX NYCOMED Common Stock received by Hafslund Nycomed in the Share Exchange and
(B) shall distribute, or cause to be distributed, to its shareholders all of its
shares of common stock, with a nominal value of NOK 4.00 per share, of Holdings
(the "HOLDINGS COMMON STOCK") (such contribution and distribution of shares of
Holdings Common Stock being the "DEMERGER");
WHEREAS, upon the terms and subject to the conditions of this
Agreement, IVAX NYCOMED will acquire all the issued and outstanding shares of
common stock, par value $.10 per share, of IVAX (the "IVAX COMMON STOCK")
pursuant to the merger (the "MERGER"; and, together with the Share Exchange and
the Demerger, the "TRANSACTIONS") of Acquisition Sub, a corporation to be
organized under the laws of the State of Florida by IVAX NYCOMED and which will
be a wholly owned subsidiary of IVAX NYCOMED ("ACQUISITION SUB"), with and into
IVAX in accordance with the Business Corporation Act of the State of Florida
(the "FBCA"), as more fully described below;
WHEREAS, as a result of the Transactions, (i) Nycomed will be
a wholly owned subsidiary of IVAX NYCOMED, (ii) IVAX will be a wholly owned
subsidiary of IVAX NYCOMED, (iii) the shareholders of IVAX will become
shareholders of IVAX NYCOMED, (iv) the shareholders of Hafslund Nycomed will
become shareholders of Holdings and (iv) Holdings will become a shareholder of
IVAX NYCOMED;
WHEREAS, it is the intention of the parties hereto that the
holders of Holdings Common Stock and holders of IVAX NYCOMED Common Stock shall,
to the fullest extent possible, participate equally, on a pro rata basis, in the
economic and other rights, benefits and burdens of ownership of IVAX NYCOMED
Common Stock, as if each holder of Holdings Common Stock were a direct owner of
a number of shares of IVAX NYCOMED Common Stock equal to the number of shares of
Holdings Common Stock held by such holder of Holdings Common Stock multiplied by
the Share Ratio (as defined in the Holdings Voting Agreement referred to below),
and that neither the holders of Holdings Common Stock nor the direct holders of
IVAX NYCOMED Common Stock should enjoy any greater or lesser economic or other
rights, benefits and burdens of ownership of IVAX NYCOMED Common Stock;
WHEREAS, the Board of Directors of IVAX has adopted this
Agreement and approved the Transactions, including the Merger, as contemplated
by this Agreement and has recommended that the holders of IVAX Common Stock vote
to approve this Agreement and the terms of the Merger as contemplated by this
Agreement;
3
WHEREAS, the Board of Directors and shareholders of IVAX
NYCOMED have adopted this Agreement and approved the Transactions, including the
Share Exchange and the issuance of shares of IVAX NYCOMED Common Stock pursuant
to the terms of the Share Exchange (the "SHARE EXCHANGE SHARE ISSUANCE"), as
contemplated by this Agreement;
WHEREAS, the Board of Directors of Hafslund Nycomed has
adopted this Agreement and approved the Transactions, including the Share
Exchange and the Demerger, as contemplated by this Agreement and has recommended
that the holders of shares of Class A Common Stock, with a nominal value of NOK
5 per share, of Hafslund Nycomed (the "HAFSLUND NYCOMED CLASS A COMMON STOCK")
and shares of Class B Common Stock, with a nominal value of NOK 5 per share, of
Hafslund Nycomed (the "HAFSLUND NYCOMED CLASS B COMMON STOCK"; and, together
with the Hafslund Nycomed Class A Common Stock, the "HAFSLUND NYCOMED COMMON
STOCK") vote to approve this Agreement, the Share Exchange and the Demerger;
WHEREAS, this Agreement and the terms of the Merger
contemplated by this Agreement have been adopted by the Board of Directors of
IVAX NYCOMED and shall be approved by IVAX NYCOMED as sole stockholder of
Acquisition Sub in accordance with the FBCA;
WHEREAS, for United States federal income tax purposes, the
Merger is intended to qualify as a reorganization under the provisions of
Section 368(a) of the United States Internal Revenue Code of 1986, as amended
(the "CODE"), and the Treasury Regulations (the "REGULATIONS") thereunder;
WHEREAS, the parties intend that the Transactions will be
accounted for under applicable Norwegian and United States accounting rules and
applicable United States Securities and Exchange Commission (the "SEC")
accounting standards as a "pooling of interests" for financial accounting
purposes;
WHEREAS, concurrently with the execution of this Agreement and
as an inducement to IVAX to enter into this Agreement, certain stockholders of
Hafslund Nycomed have entered into Voting Agreements pursuant to which such
stockholders, among other things, have agreed to vote certain of the outstanding
shares of Hafslund Nycomed Class A Common Stock and certain of the outstanding
shares of Hafslund Nycomed Class B Common Stock in favor of the approval of this
Agreement, the Share Exchange and the Demerger; and
WHEREAS, concurrently with the execution of this Agreement and
as an inducement to Hafslund Nycomed to enter into this Agreement, certain
stockholders of IVAX have entered into Voting Agreements pursuant to which such
stockholders, among other
4
things, have agreed to vote certain of the outstanding shares of IVAX Common
Stock in favor of the approval of this Agreement and the Merger.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
ORGANIZATION OF IVAX NYCOMED AND ACQUISITION SUB
SECTION 1.01. IVAX NYCOMED ORGANIZATION. (a) Immediately prior
to the Effective Time, IVAX and Hafslund Nycomed shall take all necessary action
to (i) cause the full Board of Directors of IVAX NYCOMED at the Effective Time
to consist of (A) 10 persons who are currently directors of IVAX, or selected by
the board of directors of IVAX, and mutually agreeable to Hafslund Nycomed and
IVAX and (B) 10 persons who are currently directors of Hafslund Nycomed, or
selected by the board of directors of Hafslund Nycomed, and mutually agreeable
to Hafslund Nycomed and IVAX and (ii) cause to be confirmed as officers of IVAX
NYCOMED the persons listed on Exhibit 1.01(a), each to the office listed
opposite such person's name.
(b) IVAX and Hafslund Nycomed shall take all action necessary
to cause (i) the Articles of Incorporation and (ii) the By-Laws of IVAX NYCOMED,
as of the time the Registration Statement shall become effective, to be in the
form attached hereto as Exhibits 1.01(b)(i) and 1.01(b)(ii), respectively. The
Articles of Incorporation of IVAX NYCOMED shall provide, among other things,
that the name of IVAX NYCOMED shall be "IVAX NYCOMED CORPORATION".
(c) Until the Effective Time, except as otherwise expressly
provided in this Agreement, (i) IVAX NYCOMED shall not acquire any assets or
incur any liabilities of any kind and (ii) IVAX NYCOMED shall not conduct any
business of any kind.
SECTION 1.02. ACQUISITION SUB ORGANIZATION. (a) As promptly as
practicable after the date of this Agreement, IVAX NYCOMED shall incorporate, or
cause the incorporation of, Acquisition Sub as a wholly owned subsidiary of IVAX
NYCOMED under the laws of the State of Florida. Except as otherwise provided in
this Agreement, Acquisition Sub shall not conduct any business of any kind.
(b) IVAX NYCOMED shall take all action necessary to cause the
Articles of Incorporation of Acquisition Sub, as of the time the Registration
Statement shall have become effective, to be in the form attached hereto as
Exhibit 1.02.
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ARTICLE II
THE MERGER
SECTION 2.01. THE MERGER. Provided that this Agreement shall
not have been terminated in accordance with Section 11.01, upon the terms and
subject to the conditions set forth in this Agreement, and in accordance with
Section 607.1101 of the FBCA, at the Effective Time (as defined in Section
2.02), Acquisition Sub shall be merged with and into IVAX. As a result of the
Merger, the separate corporate existence of Acquisition Sub shall cease, and
IVAX shall be the surviving corporation of the Merger (the "SURVIVING
CORPORATION"); PROVIDED, HOWEVER, that the parties hereto agree to amend this
agreement, in a manner consistent with the intention of this Article II, to
provide for the merger of IVAX with and into Acquisition Sub in the event that
IVAX requests such an amendment.
SECTION 2.02. EFFECTIVE TIME; CLOSING. Provided that this
Agreement shall not have been terminated in accordance with Section 11.01, as
promptly as practicable after the satisfaction or, if permissible and effected
as provided in Section 11.04, waiver of the conditions set forth in Article X
(or such other date as may be agreed to in writing by Hafslund Nycomed and
IVAX), and substantially contemporaneously with the distribution of shares of
Holdings Common Stock pursuant to the Demerger, IVAX NYCOMED shall cause the
Merger to be consummated by filing articles of merger (the "ARTICLES OF MERGER")
with the Florida Department of State in such form as required by, and executed
in accordance with, Section 607.1105 of the FBCA (the date and time of such
filing, or such later date or time as set forth therein, being the "EFFECTIVE
TIME"). Immediately prior to the filing of the Articles of Merger, a closing
(the "CLOSING") will be held at the offices of Shearman & Sterling, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, unless another time, date or place is
agreed to in writing by the parties hereto.
SECTION 2.03. EFFECT OF THE MERGER. At the Effective Time, the
effect of the Merger shall be as provided in Section 607.1106 of the FBCA.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time, all the property, rights, privileges, powers and franchises of
IVAX and Acquisition Sub shall be vested in the Surviving Corporation, and all
debts, liabilities and duties of IVAX and Acquisition Sub shall become the
debts, liabilities and duties of the Surviving Corporation.
SECTION 2.04. ARTICLES OF INCORPORATION; BY-LAWS. At the
Effective Time, (a) the Articles of Incorporation of the Surviving Corporation
shall be amended and restated in their entirety to read as the Articles of
Incorporation of Acquisition Sub as in effect immediately prior to the Effective
Time and (b) the By-Laws of Acquisition Sub, as in effect
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immediately prior to the Effective Time, shall become the By-Laws of the
Surviving Corporation.
SECTION 2.05. DIRECTORS AND OFFICERS OF THE SURVIVING
CORPORATION. (a) The directors of Acquisition Sub at the Effective Time shall,
from and after the Effective Time, become the directors of the Surviving
Corporation until their successors shall have been elected or appointed or
qualified or until their earlier death, resignation or removal in accordance
with the Surviving Corporation's Articles of Incorporation and By-Laws and (b)
the officers of IVAX at the Effective Time shall, from and after the Effective
Time, be the officers of the Surviving Corporation until their successors shall
have been elected or appointed or qualified or until their earlier death,
resignation or removal in accordance with the Surviving Corporation's Articles
of Incorporation and By-Laws.
SECTION 2.06. CONVERSION OF CAPITAL STOCK. At the Effective
Time, by virtue of the Merger and without any action on the part of IVAX,
Acquisition Sub, IVAX NYCOMED or the holders of any shares of IVAX Common Stock:
(a) each share of IVAX Common Stock issued and outstanding
immediately prior to the Effective Time (other than any shares of IVAX
Common Stock to be cancelled pursuant to Section 2.06(b)) shall be
converted, subject to Section 2.07(e), into the right to receive one
share of IVAX NYCOMED Common Stock (the "MERGER EXCHANGE RATIO");
(b) each share of IVAX Common Stock held in the treasury of
IVAX and each share of IVAX Common Stock owned by IVAX NYCOMED or any
direct or indirect wholly owned subsidiary of IVAX NYCOMED or of IVAX
shall be cancelled and extinguished without any conversion thereof and
no payment shall be made with respect thereto;
(c) each issued and outstanding share of common stock, par
value $.01 per share, of Acquisition Sub will be converted into one
validly issued, fully paid and nonassessable share of common stock of
the Surviving Corporation; and
(d) each share of IVAX NYCOMED Common Stock held by IVAX or
any direct or indirect wholly owned subsidiary of IVAX shall be
cancelled and extinguished without any conversion thereof and no
payment shall be made with respect thereto.
SECTION 2.07. EXCHANGE OF CERTIFICATES. (a) EXCHANGE AGENT.
IVAX NYCOMED shall deposit, or shall cause to be deposited, promptly after the
Effective Time with a bank or trust company designated by IVAX and reasonably
satisfactory to IVAX NYCOMED (the "EXCHANGE AGENT"), for the benefit of the
holders of certificates that,
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immediately prior to the Effective Time, represented outstanding shares of IVAX
Common Stock (the "CERTIFICATES"), for exchange in accordance with this Article
III through the Exchange Agent, certificates representing the shares of IVAX
NYCOMED Common Stock issuable pursuant to Section 2.06(a) (such certificates for
shares of IVAX NYCOMED Common Stock, together with any dividends or
distributions with respect thereto, being hereinafter referred to as the
"EXCHANGE FUND"). IVAX NYCOMED shall give the Exchange Agent irrevocable
instructions to deliver the shares of IVAX NYCOMED Common Stock contemplated to
be issued pursuant to Section 2.06 out of the Exchange Fund as promptly as
practicable after the Effective Time. Except as contemplated by Section 2.07(f)
hereof, the Exchange Fund shall not be used for any other purpose.
(b) EXCHANGE PROCEDURES. As promptly as practicable after the
Effective Time, IVAX NYCOMED shall cause the Exchange Agent to mail to each
registered holder of a Certificate (i) a letter of transmittal (which shall be
in customary form, shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon proper delivery of the
Certificates to the Exchange Agent) and (ii) instructions for use in effecting
the surrender of the Certificates in exchange for certificates representing
shares of IVAX NYCOMED Common Stock and cash in lieu of any fractional shares.
Upon surrender to the Exchange Agent of a Certificate for exchange, together
with such letter of transmittal, duly executed and completed in accordance with
the instructions thereto, and such other documents as may be reasonably required
pursuant to such instructions, the holder of such Certificate shall be entitled
to receive in exchange therefor a certificate representing that number of whole
shares of IVAX NYCOMED Common Stock that such holder has the right to receive in
respect of such Certificate (after taking into account all shares of IVAX Common
Stock then held by such holder), cash in lieu of any fractional shares of IVAX
NYCOMED Common Stock to which such holder is entitled pursuant to Section
2.07(e) and any dividends or other distributions to which such holder is
entitled pursuant to Section 2.07(c), and the Certificate so surrendered shall
forthwith be cancelled. In the event of a transfer of ownership of IVAX Common
Stock that is not registered in the transfer records of IVAX, a certificate
representing the proper number of shares of IVAX NYCOMED Common Stock, cash in
lieu of any fractional shares of IVAX NYCOMED Common Stock to which such holder
is entitled pursuant to Section 2.07(e) and any dividends or other distributions
to which such holder is entitled pursuant to Section 2.07(c) may be issued to a
transferee if the Certificate representing such shares of IVAX Common Stock is
presented to the Exchange Agent, accompanied by all documents required to
evidence and effect such transfer and by evidence that any applicable stock
transfer taxes have been paid. Until surrendered as contemplated by this Section
2.07, each Certificate shall be deemed at all times after the Effective Time to
represent only the right to receive upon such surrender a certificate or
certificates representing shares of IVAX NYCOMED Common Stock, cash in lieu of
any fractional shares of IVAX NYCOMED Common Stock to which such holder is
entitled pursuant to Section 2.07(e) and any dividends or other distributions to
which such holder is entitled pursuant to Section 2.07(c).
8
(c) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES OF IVAX
NYCOMED COMMON STOCK. No dividends or other distributions declared or made after
the Effective Time with respect to the shares of IVAX NYCOMED Common Stock with
a record date after the Effective Time shall be paid to the holder of any
unsurrendered IVAX Certificates with respect to the shares of IVAX NYCOMED
Common Stock represented thereby, and no cash payment in lieu of any fractional
shares shall be paid to any such holder pursuant to Section 2.07(e), until the
holder of such Certificates shall surrender such Certificates. Subject to the
effect of escheat, tax or any other applicable United States, Norwegian or other
law, statute, ordinance, rule, regulation, order, judgment or decree, following
surrender of any such Certificates, there shall be paid to the holder of the
Certificates representing whole shares of IVAX NYCOMED Common Stock issued in
exchange therefor, without interest, (i) promptly, the amount of any cash
payable with respect to a fractional share of IVAX NYCOMED Common Stock to which
such holder is entitled pursuant to Section 2.07(e) and the amount of dividends
or other distributions with a record date after the Effective Time and
theretofore declared or made with respect to such whole shares of IVAX NYCOMED
Common Stock but unpaid because of such holder's failure to surrender such
Certificates and (ii) at the appropriate payment date, the amount of dividends
or other distributions, with a record date after the Effective Time but prior to
surrender and a payment date occurring after surrender, payable with respect to
such whole shares of IVAX NYCOMED Common Stock.
(d) NO FURTHER RIGHTS IN SHARES OF IVAX COMMON STOCK. All
shares of IVAX NYCOMED Common Stock issued upon conversion of the shares of IVAX
Common Stock in accordance with the terms hereof (and any cash paid pursuant to
Section 2.07(c) or (e)) shall be deemed to have been issued in full satisfaction
of all rights pertaining to such shares of IVAX Common Stock.
(e) NO FRACTIONAL SHARES. No certificates or scrip
representing fractional shares of IVAX NYCOMED Common Stock shall be issued upon
the surrender for exchange of Certificates, and such fractional share interests
will not entitle the owner thereof to vote or to any other rights of a
stockholder of IVAX NYCOMED. Each holder of a fractional share interest shall be
paid an amount in cash representing such holder's proportionate interest in the
net proceeds from the sale by the Exchange Agent on behalf of all such holders
of the aggregate of the fractions of shares of IVAX NYCOMED Common Stock that
would otherwise be issued to such holders ("IVAX EXCESS SHARES"). The sale of
the IVAX Excess Shares by the Exchange Agent shall be executed on the American
Stock Exchange, Inc. (the "AMEX") through one or more member firms of the AMEX
and shall be executed in round lots to the extent practicable. Until the net
proceeds of such sale or sales have been distributed to the former holders of
shares of IVAX Common Stock, IVAX NYCOMED will cause the Exchange Agent to hold
such proceeds in trust for the holders of such fractional share interests (the
"IVAX SHARES TRUST"). IVAX NYCOMED shall pay all commissions, transfer taxes and
other out-of-pocket transaction costs, including the expenses and
9
compensation, of the Exchange Agent incurred in connection with such sale of the
IVAX Excess Shares. The Exchange Agent shall determine the portion of the IVAX
Shares Trust to which each former holder of shares of IVAX Common Stock shall be
entitled, if any, by multiplying the amount of the aggregate net proceeds
comprising the IVAX Shares Trust by a fraction the numerator of which is the
amount of the fractional shares of IVAX NYCOMED Common Stock to which such
former holder of shares of IVAX Common Stock is entitled and the denominator of
which is the aggregate amount of fractional share interests to which all holders
of IVAX Common Stock are entitled. As soon as practicable after the
determination of the amount of cash, if any, to be paid to former holders of
shares of IVAX Common Stock in lieu of any fractional shares of IVAX NYCOMED
Common Stock interests, the Exchange Agent shall make available such amounts to
such former holders of shares of IVAX Common Stock without interest.
(f) TERMINATION OF EXCHANGE FUND. Any portion of the Exchange
Fund which remains undistributed to the former holders of shares of IVAX Common
Stock for six months after the Effective Time shall be delivered to IVAX
NYCOMED, upon demand, and any holders of Certificates shall thereafter look only
to IVAX NYCOMED for shares of IVAX NYCOMED Common Stock, any cash in lieu of
fractional shares of IVAX NYCOMED Common Stock to which they are entitled
pursuant to Section 2.07(e) and any dividends or other distributions with
respect to the shares of IVAX NYCOMED Common Stock to which they are entitled
pursuant to Section 2.07(c). Any portion of the Exchange Fund remaining
unclaimed by holders of Certificates as of a date which is immediately prior to
such time as such amounts would otherwise escheat to or become property of any
governmental entity shall, to the extent permitted by applicable Law, become the
property of IVAX NYCOMED free and clear of any claims or interest of any person
previously entitled thereto.
(g) NO LIABILITY. Neither IVAX NYCOMED nor the Surviving
Corporation shall be liable to any holder of shares of IVAX Common Stock for any
such shares (or dividends or distributions with respect thereto), or cash
delivered to a public official pursuant to any abandoned property, escheat or
similar Law.
(h) WITHHOLDING RIGHTS. Each of the Surviving Corporation and
IVAX NYCOMED shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement to any holder of shares of IVAX
Common Stock such amounts as it is required to deduct and withhold with respect
to the making of such payment under the Code, or any provision of federal, state
or local tax law of the United States, Norway or any other jurisdiction. To the
extent that amounts are so withheld by the Surviving Corporation or IVAX
NYCOMED, as the case may be, such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to the holder of the shares of
IVAX Common Stock in respect of which such deduction and withholding were made
by the Surviving Corporation or IVAX NYCOMED, as the case may be.
10
(i) LOST CERTIFICATES. If any Certificate shall have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Certificate to be lost, stolen or destroyed and, if
required by the Surviving Corporation, the posting by such person of a bond, in
such reasonable amount as the Surviving Corporation may direct, as indemnity
against any claim that may be made against it with respect to such Certificate,
the Exchange Agent will issue in exchange for such lost, stolen or destroyed
Certificate the shares of IVAX NYCOMED Common Stock, any cash in lieu of
fractional shares of IVAX NYCOMED Common Stock to which the holders thereof are
entitled pursuant to Section 2.07(e) and any dividends or other distributions to
which the holders thereof are entitled pursuant to Section 2.07(c).
SECTION 2.08. STOCK TRANSFER BOOKS. At the Effective Time, the
stock transfer books of IVAX shall be closed and there shall be no further
registration of transfers of shares of IVAX Common Stock thereafter on the
records of IVAX. From and after the Effective Time, the holders of Certificates
representing shares of IVAX Common Stock outstanding immediately prior to the
Effective Time shall cease to have any rights with respect to shares of IVAX
Common Stock represented thereby, except as otherwise provided herein or by Law.
On or after the Effective Time, any Certificates presented to the Exchange Agent
or IVAX NYCOMED for any reason shall be converted into shares of IVAX NYCOMED
Common Stock, any cash in lieu of fractional shares of IVAX NYCOMED Common Stock
to which the holders thereof are entitled pursuant to Section 2.07(e) and any
dividends or other distributions to which the holders thereof are entitled
pursuant to Section 2.07(c).
SECTION 2.09. STOCK OPTIONS. (a) Pursuant to amendments
effected in accordance with Section 9.03 hereof, all options (the "IVAX
OPTIONS") outstanding, whether or not exercisable and whether or not vested at
the Effective Time under IVAX's 1994 Stock Option Plan or 1985 Stock Option Plan
or any plans assumed by IVAX in connection with any acquisition, business
combination or similar transaction (collectively, the "IVAX STOCK OPTION
PLANS"), shall remain outstanding following the Effective Time. At the Effective
Time, the IVAX Options shall, by virtue of the Merger and without any further
action on the part of IVAX or the holder thereof, be assumed by IVAX NYCOMED in
such manner that IVAX NYCOMED (i) is a corporation "assuming a stock option in a
transaction to which Section 424(a) applied" within the meaning of Section 424
of the Code or (ii) to the extent that Section 424 of the Code does not apply to
any such IVAX Options, would be such a corporation were Section 424 of the Code
applicable to such IVAX Options. From and after the Effective Time, all
references to IVAX in the IVAX Stock Option Plans, Employee Savings Plan and the
applicable stock option agreements issued thereunder shall be deemed to refer to
IVAX NYCOMED, which shall have assumed the IVAX Stock Option Plans as of the
Effective Time by virtue of this Agreement and without any further action. Each
IVAX Option assumed by IVAX NYCOMED (each a "SUBSTITUTE OPTION") shall be
exercisable upon the same terms and conditions as under the applicable IVAX
Stock Option Plan and the
11
applicable option agreement issued thereunder, except that (A) each such
Substitute Option shall be exercisable for, and represent the right to acquire,
that whole number of shares of IVAX NYCOMED Common Stock (rounded up or down to
the nearest whole share) equal to the number of shares of IVAX Common Stock
subject to such IVAX Option multiplied by the Merger Exchange Ratio; and (B) the
option price per share of IVAX NYCOMED Common Stock shall be an amount equal to
the option price per share of IVAX Common Stock subject to such IVAX Option in
effect immediately prior to the Effective Time divided by the Merger Exchange
Ratio (the option price per share, as so determined, being rounded upward to the
nearest full cent). Notwithstanding anything in this Section 2.09 or in Section
9.03 to the contrary, any specified treatment of the IVAX Options which shall be
inconsistent with accounting for the Transactions as a "pooling of interests"
for financial accounting purposes shall be modified to the extent necessary to
make such treatment consistent with "pooling of interests" accounting treatment.
(b) As soon as practicable after the Effective Time, IVAX
NYCOMED shall deliver to each holder of an outstanding IVAX Option an
appropriate notice setting forth such holder's rights pursuant thereto and such
IVAX Option shall continue in effect on the same terms and conditions (including
any antidilution provisions, and subject to the adjustments required by this
Section 2.09 after giving effect to the Merger). IVAX NYCOMED shall comply with
the terms of all such IVAX Options and ensure, to the extent required by, and
subject to the provisions of, the IVAX Stock Option Plans that IVAX Options
which qualified as incentive stock options under Section 422 of the Code prior
to the Effective Time continue to qualify as incentive stock options after the
Effective Time. IVAX NYCOMED shall take all corporate action necessary to
reserve for issuance a sufficient number of shares of IVAX NYCOMED Common Stock
for delivery upon exercise of Substitute Options pursuant to the terms set forth
in this Section 2.09. As soon as practicable after the Effective Time, the
shares of IVAX NYCOMED Common Stock subject to IVAX Options will be covered by
an effective registration statement on Form S-8 (or any successor form) or
another appropriate form and IVAX NYCOMED shall use its best efforts to maintain
the effectiveness of such registration statement or registration statements for
so long as Substitute Options remain outstanding. In addition, IVAX NYCOMED
shall use all reasonable efforts to cause the shares of IVAX NYCOMED Common
Stock subject to IVAX Options to be listed on the AMEX, the London Stock
Exchange and such other exchanges as IVAX NYCOMED shall determine.
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ARTICLE III
THE SHARE EXCHANGE
SECTION 3.01. NYCOMED ORGANIZATION. (a) As promptly as
practicable after the date of this Agreement, Hafslund Nycomed shall incorporate
Nycomed as a wholly owned subsidiary of Hafslund Nycomed under the laws of the
Kingdom of Norway. Except as otherwise expressly provided in this Agreement, (i)
Hafslund Nycomed shall not contribute to Nycomed, and Nycomed shall not
otherwise acquire or assume, any assets or liabilities of any kind and (ii)
Nycomed shall not conduct any business of any kind.
(b) Hafslund Nycomed shall take all action necessary to cause
the Articles of Association of Nycomed, as of the time the Registration
Statement shall have become effective, to be in the form attached hereto as
Exhibit 3.01(b). The Articles of Association of Nycomed shall provide, among
other things, that the name of Nycomed shall be "NYCOMED AS".
SECTION 3.02. PURCHASE AND SALE OF THE MEDICAL BUSINESSES
BETWEEN HAFSLUND NYCOMED AND NYCOMED. Upon the satisfaction or, to the extent
permitted by applicable law, waiver of the conditions to the consummation of the
Transactions set forth in Article X of this Agreement, and immediately prior to
the Effective Time, Hafslund Nycomed shall (a) make a capital contribution to
Nycomed in an amount equal to NOK 150,000 plus the Purchase Price Credit (as
defined in the Nycomed Purchase and Sale Agreement), and (b) sell to Nycomed,
and Nycomed shall purchase from Hafslund Nycomed and assume the liabilities of,
the Medical Businesses. Such purchase and sale and assumption of liabilities
shall be effected pursuant to, and in accordance with, the terms contained in
the Purchase and Sale Agreement to be entered into between Hafslund Nycomed and
Nycomed (such Purchase and Sale Agreement being the "NYCOMED PURCHASE AND SALE
AGREEMENT") and in Purchase and Sale Agreements between certain Hafslund Nycomed
Subsidiaries and Nycomed (the "ANCILLARY NYCOMED PURCHASE AND SALE AGREEMENTS")
substantially in the forms attached hereto as Exhibit 3.02.
SECTION 3.03. PURCHASE AND SALE OF THE NYCOMED SHARES PURSUANT
TO THE SHARE EXCHANGE. Upon the satisfaction or, to the extent permitted by
applicable law, waiver of the conditions to the Transactions set forth in
Article X of this Agreement, and immediately prior to the Effective Time, at the
Closing, Hafslund Nycomed shall sell to IVAX NYCOMED, and IVAX NYCOMED shall
purchase from Hafslund Nycomed, all of the shares of Nycomed Common Stock (the
"NYCOMED SHARES") in exchange for (a) the issuance and sale to Hafslund Nycomed
of that number of shares of IVAX NYCOMED Common Stock equal to the number of
shares of Hafslund Nycomed Common Stock then outstanding, less the number of
shares of Hafslund Nycomed Common Stock then held by Hafslund Nycomed or any
affiliate of Hafslund Nycomed (the "IVAX NYCOMED SHARE
13
CONSIDERATION") and (b) the undertaking by IVAX NYCOMED to reimburse certain
expenses as provided in Section 8 of the Holdings Voting Agreement.
SECTION 3.04. CLOSING OF SHARE EXCHANGE. Upon the terms and
subject to the conditions of this Agreement, the issuance, sale and purchase of
the Nycomed Shares in exchange for the IVAX NYCOMED Share Consideration shall
take place at the same time and place as the Closing contemplated by Section
2.02.
SECTION 3.05. CLOSING DELIVERIES BY HAFSLUND NYCOMED. At the
Closing, Hafslund Nycomed shall deliver or cause to be delivered to IVAX
NYCOMED:
(a) evidence of ownership and transfer of the Nycomed
Shares, in form reasonably satisfactory to IVAX NYCOMED;
(b) a receipt for the IVAX NYCOMED Share Consideration;
and
(c) the opinions, certificates and other documents
required to be delivered by Hafslund Nycomed pursuant to Article X.
SECTION 3.06. CLOSING DELIVERIES BY IVAX NYCOMED. At the
Closing, IVAX NYCOMED shall deliver to Hafslund Nycomed:
(a) stock certificates evidencing the IVAX NYCOMED Share
Consideration, in form satisfactory to Hafslund Nycomed; and
(b) the opinions, certificates and other documents
required to be delivered by IVAX NYCOMED pursuant to Article X.
ARTICLE IV
THE DEMERGER
SECTION 4.01. HOLDINGS ORGANIZATION. (a) Immediately prior to
the Demerger, Hafslund Nycomed shall incorporate, or cause the incorporation of
Holdings, as an "aksjeselskap" under the laws of the Kingdom of Norway. Except
as otherwise provided in this Agreement, (i) Hafslund Nycomed shall not
contribute or otherwise transfer to Holdings, and Holdings shall not otherwise
acquire or assume, any assets or liabilities of any kind and (ii) Holdings shall
not conduct any business of any kind.
(b) Immediately prior to the Effective Time, Holdings shall,
and Hafslund Nycomed shall cause Holdings to, take all necessary action to (i)
cause the full Board of
14
Directors of Holdings at the Effective Time to consist of (A) four persons
designated by Hafslund Nycomed and mutually agreeable to Hafslund Nycomed and
IVAX and (B) one person who is currently a director of IVAX and is mutually
agreeable to Hafslund Nycomed and IVAX and (ii) cause to be confirmed as
managing director ("administrerende direktor") of Holdings a person nominated by
Hafslund Nycomed and mutually agreeable to Hafslund Nycomed and IVAX.
(c) Hafslund Nycomed shall take all action necessary to cause
the Articles of Association of Holdings, as of the time the Registration
Statement shall have become effective, to be in the form attached hereto as
Exhibit 4.01(c). The Articles of Association of Holdings shall provide, among
other things, that the name of Holdings shall be "IVAX Hafslund Nycomed B AS".
SECTION 4.02. CONTRIBUTION OF THE IVAX NYCOMED SHARE
CONSIDERATION TO HOLDINGS. Upon the satisfaction or, to the extent permitted by
applicable law, waiver of the conditions to the consummation of the Transactions
set forth in Article X of this Agreement, and immediately prior to the Effective
Time, Hafslund Nycomed shall contribute to Holdings all shares of IVAX NYCOMED
Common Stock then held by Hafslund Nycomed. Such contribution shall be effected
pursuant to, and in accordance with, the Demerger Plan (the "DEMERGER PLAN")
dated the date of this Agreement substantially in the form of Exhibit 4.02
hereto.
SECTION 4.03. DISTRIBUTION OF HOLDINGS SHARES TO HAFSLUND
NYCOMED SHAREHOLDERS. (a) Substantially contemporaneously with the contribution
of the shares of IVAX NYCOMED Common Stock pursuant to Section 4.02, Hafslund
Nycomed shall distribute to (i) the holders of shares of Hafslund Nycomed Class
A Common Stock, one share of Holdings Common Stock per share of Hafslund Nycomed
Class A Common Stock (the "CLASS A EXCHANGE RATIO") and (ii) the holders of
shares of Hafslund Nycomed Class B Common Stock, one share of Holdings Common
Stock per share of Hafslund Nycomed Class B Common Stock (the "CLASS B EXCHANGE
RATIO"; and, together with the Class A Exchange Ratio, "DEMERGER EXCHANGE
RATIOS"; the distributions made pursuant to this Section 4.03(a) being,
collectively, the "DEMERGER DISTRIBUTION"). The Demerger Distribution shall be
effected in accordance with the terms of the Demerger Plan.
(b) HAFSLUND NYCOMED OPTIONS. (i) All options (the "HAFSLUND
NYCOMED OPTIONS") outstanding, whether or not exercisable and whether or not
vested at the Effective Time under Hafslund Nycomed's Option Plan (the "HAFSLUND
NYCOMED STOCK OPTION PLAN"), shall be cancelled at the Effective Time. Each
Hafslund Nycomed Option so cancelled shall be replaced by (A) an option to
acquire an equal number of shares of IVAX NYCOMED Common Stock (each a "IVAX
NYCOMED OPTION"), and (B) an option to acquire an equal number of shares of
Hafslund Class B Common Stock (each an "ENERGY BUSINESS OPTION"), each of which
shall be exercisable upon the same terms and conditions as under the
15
applicable Hafslund Nycomed Stock Option Plan and the applicable option
agreement issued thereunder, as such terms and conditions shall be amended as
hereinafter provided. Notwithstanding anything to the contrary in this Section
4.03(b), any specified treatment of the Hafslund Nycomed Options which shall be
inconsistent with accounting for the Transactions as a "pooling of interests"
for financial accounting purposes shall be modified to the extent necessary to
make such treatment consistent with "pooling of interests" accounting treatment.
(ii) Each such IVAX NYCOMED Option and each such Energy
Business Option shall be exercisable as promptly as practicable after
the establishment of an option price per share for such option pursuant
to Section 4.03(b)(iii) or 4.03(b)(iv) below, as the case may be.
(iii) With respect to each such IVAX NYCOMED Option, the
option price per share of IVAX NYCOMED Common Stock shall be an amount,
calculated in Norwegian Kroner, equal to (1) the option price per share
of Hafslund Nycomed Common Stock subject to such Hafslund Nycomed
Option in effect immediately prior to the Effective Time multiplied by
(2) a fraction, the numerator of which shall be the average trading
price per share of IVAX NYCOMED Common Stock on the AMEX for the twenty
trading days commencing on the fifth trading day following the
Effective Time and the denominator of which shall be the sum of (x) the
average trading price per share of IVAX NYCOMED Common Stock on the
AMEX for the twenty trading days commencing on the fifth trading day
following the Effective Time plus (y) the average trading price per
share of Hafslund Class B Common Stock on the OSE for the twenty
trading days commencing on the fifth trading day following the
Effective Time (the option price per share, as so determined, being
rounded upward to the nearest full cent).
(iv) With respect to each Energy Business Option, the option
price per share of Hafslund Class B Common Stock shall be an amount,
calculated in Norwegian Kroner, equal to (1) the option price per share
of Hafslund Class B Common Stock subject to such Energy Business Option
in effect immediately prior to the Effective Time multiplied by (2) a
fraction, the numerator of which shall be the average trading price per
share of Hafslund Class B Common Stock on the OSE for the twenty
trading days commencing on the fifth trading day following the
Effective Time and the denominator of which shall be the sum of (x) the
average trading price per share of IVAX NYCOMED Common Stock on the
AMEX for the twenty trading days commencing on the fifth trading day
following the Effective Time plus (y) the average trading price of
Hafslund Class B Common Stock on the OSE for the twenty trading days
commencing on the fifth trading day following the Effective Time (the
option price per share, as so determined, being rounded upward to the
nearest full cent).
16
(v) As soon as practicable after the Effective Time, IVAX
NYCOMED shall deliver to each holder of an outstanding IVAX NYCOMED
Option an appropriate notice setting forth such holder's rights
pursuant to the corresponding IVAX NYCOMED Option. IVAX NYCOMED shall
comply with the terms of all such IVAX NYCOMED Options. IVAX NYCOMED
shall take all corporate action necessary to reserve for issuance a
sufficient number of shares of IVAX NYCOMED Common Stock for delivery
upon exercise of IVAX NYCOMED Options pursuant to the terms set forth
in this Section 4.03. As soon as practicable after the Effective Time,
the shares of IVAX NYCOMED Common Stock subject to Hafslund Nycomed
Options will be covered by an effective registration statement on Form
S-8 (or any successor form) or another appropriate form and IVAX
NYCOMED shall use its best efforts to maintain the effectiveness of
such registration statement or registration statements for so long as
IVAX NYCOMED Options remain outstanding. In addition, IVAX NYCOMED
shall use all reasonable efforts to cause the shares of IVAX NYCOMED
Common Stock subject to Hafslund Nycomed Options to be listed on the
AMEX, the London Stock Exchange and such other exchanges as it may
determine.
(vi) As soon as practicable after the Effective Time, Hafslund
shall deliver to each holder of an outstanding Energy Business Option
an appropriate notice setting forth such holder's rights. Hafslund
shall comply with the terms of all such Energy Business Options.
Hafslund shall take all corporate action necessary to reserve for
issuance a sufficient number of shares of Hafslund Class B Common Stock
for delivery upon exercise of Energy Business Options pursuant to the
terms set forth in this Section 4.03. In addition, Hafslund shall use
all reasonable efforts to cause the shares of Hafslund Class B Common
Stock subject to Energy Business Options to be listed on the OSE and
such other exchanges as it may determine.
SECTION 4.04. EXCHANGE OF HOLDINGS SHARES FOR IVAX NYCOMED
SHARES. Following the date of the Closing, holders of shares of Holdings Common
Stock may exchange any number of shares of Holdings Common Stock for an equal
number of shares of IVAX NYCOMED Common Stock. Holdings and IVAX NYCOMED shall
take all necessary action to maintain for a ten year period following the
Closing the necessary facilities (the "EXCHANGE FACILITIES") to permit such
exchanges of shares to occur; PROVIDED, HOWEVER, in the event that the number of
shares of Holdings Common Stock outstanding that are held by shareholders of
Holdings other than IVAX NYCOMED at any time falls below 10% of the total number
of shares of Holdings Common Stock then outstanding, IVAX NYCOMED may terminate
the Exchange Facilities by publicly announcing that the Exchange Facilities will
terminate on the date that is one year from the date of such announcement and
the Exchange Facilities shall terminate on such date. Holdings and IVAX NYCOMED
shall cause the Exchange Facilities to permit exchanges to occur during each 30
day period (an "EXCHANGE PERIOD") that commences on the third Business Day
following a public
17
announcement by IVAX NYCOMED of its earnings and other relevant results for the
most recent quarter; PROVIDED, HOWEVER, that if IVAX NYCOMED determines in good
faith that the exchange of shares during any such Exchange Period shall
materially interfere with, or require premature disclosure of, any material
financing, acquisition, reorganization or business combination or other material
corporate event involving IVAX NYCOMED or any of its subsidiaries, then upon
written notice to Holdings, IVAX NYCOMED shall be entitled to suspend exchanges
of shares for a period of up to 30 Business Days; PROVIDED FURTHER, that the
applicable Exchange Period shall be extended by the number of days of any such
suspension; PROVIDED FURTHER, that if at any time IVAX NYCOMED shall own more
than 35% of the Holdings Common Stock entitled to vote for directors at a
general meeting of the shareholders of Holdings, then upon written notice to
Holdings, IVAX NYCOMED shall be entitled to suspend the exchange of shares until
such time as such Holdings Common Stock held by IVAX NYCOMED has been converted
to "Non-Voting Stock" as provided in Section 3 of the Holdings Voting Agreement.
Notwithstanding anything to the contrary in Section 12.09, solely with respect
to any action seeking to enforce the provisions of this Section 4.04, Holdings
and IVAX NYCOMED agree and consent to the exclusive jurisdiction of, and service
of process and venue in, the Oslo City Court (Oslo Byrett), located in Oslo,
Norway. Each of Holdings and IVAX NYCOMED waives any objections or immunities to
jurisdiction to which it may otherwise be entitled or become entitled
(including, without limitation, sovereign immunity, immunity to pre-judgment
attachment, post-judgment attachment and execution) in any legal suit, action or
proceeding against it solely arising out of this Section 4.04 which is
instituted in such court.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF IVAX
IVAX hereby represents and warrants to Hafslund Nycomed that:
SECTION 5.01. ORGANIZATION AND QUALIFICATION; SUBSIDIARIES.
Each of IVAX and each subsidiary of IVAX (the "IVAX SUBSIDIARIES") has been duly
organized and is validly existing and in good standing (to the extent
applicable) under the laws of the jurisdiction of its incorporation or
organization, as the case may be, and has the requisite power and authority and
all necessary governmental approvals to own, lease and operate its properties
and to carry on its business as it is now being conducted, except where the
failure to be so organized, existing or in good standing or to have such power,
authority and governmental approvals would not, individually or in the
aggregate, have an IVAX Material Adverse Effect (defined below). Each of IVAX
and each IVAX Subsidiary is duly qualified or licensed to do business, and is in
good standing (to the extent applicable), in each jurisdiction where the
character of the properties owned, leased or operated by it or the nature of its
business makes such qualification or licensing necessary, except for such
failures
18
to be so qualified or licensed and in good standing that would not, individually
or in the aggregate, have an IVAX Material Adverse Effect. For purposes of this
Agreement, "IVAX MATERIAL ADVERSE EFFECT" means any change in or effect on the
business of IVAX and the IVAX Subsidiaries that is, or is reasonably likely to
be, materially adverse to the business, assets (including intangible assets),
liabilities (contingent or otherwise), condition (financial or otherwise) or
results of operations of IVAX and the IVAX Subsidiaries taken as a whole.
SECTION 5.02. ARTICLES OF INCORPORATION AND BY-LAWS. The
copies of IVAX's Articles of Incorporation and By-Laws that are set forth as
exhibits to IVAX's Registration Statement on Form 8-B dated July 28, 1993 are
complete and correct copies thereof. Such Articles of Incorporation and By-Laws
are in full force and effect. IVAX is not in violation of any of the provisions
of its Articles of Incorporation or By-Laws.
SECTION 5.03. CAPITALIZATION. The authorized capital stock of
IVAX consists of 250,000,000 shares of IVAX Common Stock. As of September 30,
1995, (i) 117,463,366 shares of IVAX Common Stock are issued and outstanding,
all of which are validly issued, fully paid and nonassessable, (ii) no shares of
IVAX Common Stock are held in the treasury of IVAX or by the IVAX Subsidiaries,
(iii) 10,820,423 shares of IVAX Common Stock are reserved for future issuance
pursuant to the IVAX Stock Option Plans, (iv) 2,945,669 shares of IVAX Common
Stock are reserved for future issuance pursuant to the terms of IVAX's 6 1/2%
Convertible Subordinated Notes due November 15, 2001 (the "IVAX SUBORDINATED
NOTES"), (v) 286,469 shares of IVAX Common Stock are reserved for future
issuance pursuant to the terms of IVAX's 9% Convertible Subordinated Debentures
due 1995 (the "IVAX SUBORDINATED DEBENTURES") and (vi) 219,374 shares of IVAX
Common Stock are reserved for future issuance pursuant to the terms of IVAX's
Employee Savings Plan. Except for the IVAX Options granted pursuant to the IVAX
Stock Option Plans, shares of IVAX Common Stock issuable upon the conversion of
the IVAX Subordinated Notes and the IVAX Subordinated Debentures or pursuant to
agreements or arrangements described in Section 5.03 of the Disclosure Schedule
delivered by IVAX to Hafslund Nycomed prior to the execution of (and forming
part of) this Agreement (the "IVAX DISCLOSURE SCHEDULE"), there are no options,
warrants or other rights, agreements, arrangements or commitments of any
character to which IVAX is a party or by which IVAX is bound relating to the
issued or unissued capital stock of IVAX or any IVAX Subsidiary or obligating
IVAX or any IVAX Subsidiary to issue or sell any shares of capital stock of, or
other equity interests in, IVAX or any IVAX Subsidiary. All shares of IVAX
Common Stock subject to issuance as aforesaid, upon issuance prior to the
Effective Time on the terms and conditions specified in the instruments pursuant
to which they are issuable, will be duly authorized, validly issued, fully paid
and nonassessable. Except as set forth in Section 5.03 of the IVAX Disclosure
Schedule, there are no outstanding contractual obligations of IVAX or any IVAX
Subsidiary to repurchase, redeem or otherwise acquire any shares of IVAX Common
Stock or any capital stock of any IVAX Subsidiary. Except as disclosed in
Section 5.03 of the IVAX Disclosure Schedule, each outstanding share of capital
stock of each IVAX
19
Subsidiary is duly authorized, validly issued, fully paid and nonassessable and
each such share owned by IVAX or another IVAX Subsidiary is free and clear of
all security interests, liens, claims, pledges, options, rights of first
refusal, agreements, limitations on IVAX's or such other IVAX Subsidiary's
voting rights, charges and other encumbrances of any nature whatsoever, except
where the failure to own such shares free and clear would not, individually or
in the aggregate, have an IVAX Material Adverse Effect. Except as set forth in
Section 5.03 of the IVAX Disclosure Schedule, there are no material outstanding
contractual obligations of IVAX or any IVAX Subsidiary to provide funds to, or
make any material investment (in the form of a loan, capital contribution or
otherwise) in, any IVAX Subsidiary or any other person.
SECTION 5.04. AUTHORITY RELATIVE TO THIS AGREEMENT. IVAX has
all necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
Transactions to be consummated by IVAX. The execution and delivery of this
Agreement by IVAX and the consummation by IVAX of such Transactions 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 (other than, with respect to the
Merger, the approval of this Agreement by the holders of a majority of the
outstanding shares of IVAX Common Stock and the filing and recordation of the
Articles of Merger as required by the FBCA and, with respect to the Share
Exchange Share Issuance, the approval of the holders of a majority of the
outstanding shares of IVAX Common Stock voting with respect thereto at the IVAX
Stockholders' Meeting). This Agreement has been duly authorized and validly
executed and delivered by IVAX and, assuming the due authorization, execution
and delivery by the other parties hereto, constitutes a legal, valid and binding
obligation of IVAX, enforceable against IVAX in accordance with its terms.
SECTION 5.05. NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a)
The execution and delivery of this Agreement by IVAX do not, and the performance
of this Agreement by IVAX will not, (i) conflict with or violate any provision
of the Articles of Incorporation or By-Laws of IVAX or any equivalent
organizational documents of any IVAX Subsidiary, (ii) assuming that all
consents, approvals, authorizations and other actions described in Section
5.05(b) have been obtained and all filings and obligations described in Section
5.05(b) have been made, conflict with or violate any Law (as defined in Section
5.06(b)) 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 (iii) except as set
forth in Section 5.05(a) of the IVAX Disclosure Schedule, result in any breach
of or constitute a default (or an event which with 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
20
clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults
or other occurrences which would neither, individually or in the aggregate, (A)
have an IVAX Material Adverse Effect nor (B) prevent or materially delay the
performance of this Agreement by IVAX.
(b) The execution and delivery of this Agreement by IVAX do
not, and the performance of this Agreement by IVAX will not, require any
consent, approval, authorization or permit of, or filing by IVAX with or
notification by IVAX to, any domestic or foreign governmental or regulatory
authority ("GOVERNMENTAL ENTITY"), except (i) for applicable requirements of the
Securities Exchange Act of 1934, as amended (together with the rules and
regulations promulgated thereunder, the "EXCHANGE ACT"), the Securities Act of
1933, as amended (together with the rules and regulations promulgated
thereunder, the "SECURITIES ACT"), state securities or "blue sky" laws ("BLUE
SKY LAWS"), the AMEX, state takeover laws, the premerger notification
requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, and the rules and regulations thereunder (the "HSR ACT"), such filings
as are required under applicable European competition laws, filing and
recordation of the Articles of Merger as required by the FBCA, and as set forth
in Section 5.05(b) of the IVAX Disclosure Schedule and (ii) where failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not (A) prevent or materially delay consummation
of the Transactions, (B) otherwise prevent IVAX from performing its material
obligations under this Agreement or (C) individually or in the aggregate, have
an IVAX Material Adverse Effect.
SECTION 5.06. PERMITS; COMPLIANCE WITH LAWS. (a) Each of IVAX
and the IVAX Subsidiaries is in possession of all franchises, grants,
authorizations, licenses, permits, easements, variances, exceptions, consents,
certificates, approvals and orders of any Governmental Entity, including,
without limitation, the United States Food and Drug Administration (the "FDA")
and similar authorities in Norway or other jurisdictions, necessary for IVAX or
any IVAX Subsidiary to own, lease and operate its properties or to carry on its
business as it is now being conducted (the "IVAX PERMITS"), except where the
failure to have, or the suspension or cancellation of, any of the IVAX Permits
would not, individually or in the aggregate, have an IVAX Material Adverse
Effect, and, as of the date of this Agreement, no suspension or cancellation of
any of the IVAX Permits is pending or, to the knowledge of IVAX, threatened,
except where the failure to have, or the suspension or cancellation of, any of
the IVAX Permits would not, individually or in the aggregate, have an IVAX
Material Adverse Effect. Neither IVAX nor any IVAX Subsidiary is in conflict
with, or in default or violation of, (i) 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 (ii) any IVAX Permits, except in the case of clauses (i)
and (ii) for any such conflicts, defaults or violations that would not,
individually or in the aggregate, have an IVAX Material Adverse Effect.
21
(b) "LAW" means any federal, state or local statute, law,
ordinance, regulation, rule, code, order, other requirement or rule of law of
the United States, Norway or any other jurisdiction, including, without
limitation, the United States Food, Drug and Cosmetics Act (the "FDCA") and any
other similar act or law.
(c) Except as disclosed in the IVAX Reports or in Section
5.06(c) of the IVAX Disclosure Schedule or as would not, individually or in the
aggregate, have an IVAX Material Adverse Effect:
(i) all manufacturing operations of IVAX and the IVAX
Subsidiaries are being conducted in substantial compliance with
applicable good manufacturing practices as such businesses are
presently conducted;
(ii) none of IVAX, the IVAX Subsidiaries or any of their
respective officers, employees or agents has made any untrue statement
of a material fact or fraudulent statement to the FDA or similar
governmental agency, failed to disclose a material fact required to be
disclosed to the FDA or similar governmental agency, or committed an
act, made a statement or failed to make a statement that could
reasonably be expected to provide a basis for the FDA or similar
governmental agency to invoke its policy respecting "Fraud, Untrue
Statements of Material Facts, Bribery, and Illegal Gratuities" or
similar governmental policy, rule, regulation or law;
(iii) neither IVAX nor any of the IVAX Subsidiaries has
received any written notice that the FDA or similar governmental agency
has commenced, or threatened to initiate, any action to withdraw its
approval or request the recall of any product of IVAX or any of the
IVAX Subsidiaries, or commenced, or overtly threatened to initiate, any
action to enjoin production at any facility of IVAX or any of the IVAX
Subsidiaries;
(iv) as to each article of drug, cosmetics or vitamin
manufactured and/or distributed by IVAX or any of the IVAX
Subsidiaries, such article is not adulterated or misbranded within the
meaning of the FDCA or any similar governmental act or Law of any
jurisdiction; and
(v) none of IVAX, the IVAX Subsidiaries or any of their
respective officers, employees, agents, subsidiaries or affiliates has
been convicted of any crime or engaged in any conduct for which
debarment or similar punishment is mandated by any applicable Law.
SECTION 5.07. SEC FILINGS; FINANCIAL STATEMENTS. (a) IVAX has
timely filed all forms, reports and documents required to be filed by it with
the SEC or the AMEX
22
since January 1, 1993 through the date of this Agreement (collectively and as
amended, the "IVAX REPORTS"). The IVAX Reports (i) were prepared in accordance
with the requirements of the Securities Act, the Exchange Act or the AMEX, as
the case may be, and (ii) did not at the time they were filed contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading. No IVAX
Subsidiary is subject to the periodic reporting requirements of the Exchange Act
or required to file any form, report or other document with the SEC, the AMEX,
any other stock exchange or any other comparable Governmental Entity.
(b) Each of the consolidated financial statements (including,
in each case, any notes thereto) contained in the IVAX Reports was prepared in
accordance with United States generally accepted accounting principles applied
on a consistent basis throughout the periods indicated (except as may be
indicated in the notes thereto) and each presented fairly, in all material
respects, the consolidated financial position of IVAX and the consolidated IVAX
Subsidiaries as at the respective dates thereof and for the respective periods
indicated therein, except as otherwise noted therein (subject, in the case of
unaudited statements, to normal and recurring year-end adjustments which were
not and are not expected, individually or in the aggregate, to have an IVAX
Material Adverse Effect).
(c) Except as and to the extent set forth on the consolidated
balance sheet of IVAX and the consolidated IVAX Subsidiaries as of December 31,
1994, including the notes thereto, none of IVAX or any IVAX Subsidiary has any
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise) that would be required to be reflected on a balance sheet or in
notes thereto prepared in accordance with United States generally accepted
accounting principles, except for liabilities or obligations incurred in the
ordinary course of business since January 1, 1995 that would not, individually
or in the aggregate, have an IVAX Material Adverse Effect.
SECTION 5.08. ABSENCE OF CERTAIN CHANGES OR EVENTS. Since
January 1, 1995, except as contemplated by or as disclosed in this Agreement, as
set forth in Section 5.08 of the IVAX Disclosure Schedule or as disclosed in any
IVAX SEC Report filed since January 1, 1995, IVAX and the IVAX Subsidiaries have
conducted their businesses only in the ordinary course and in a manner
consistent with past practice and, since such date, there has not been (i) any
IVAX Material Adverse Effect, (ii) any event that could reasonably be expected
to prevent or materially delay the performance of this Agreement by IVAX, (iii)
any material change by IVAX in its accounting methods, principles or practices,
(iv) any declaration, setting aside or payment of any dividend or distribution
in respect of the shares of IVAX Common Stock or any redemption, purchase or
other acquisition of any of IVAX's securities or (v) any increase in the
compensation or benefits or establishment of any bonus, insurance, severance,
deferred compensation, pension, retirement, profit sharing, stock option
(including, without limitation, the granting of stock options, stock
appreciation
23
rights, performance awards or restricted stock awards), stock purchase or other
employee benefit plan, or any other increase in the compensation payable or to
become payable to any executive officers of IVAX or any IVAX Subsidiary except
in the ordinary course of business consistent with past practice.
SECTION 5.09. EMPLOYEE BENEFIT PLANS; LABOR MATTERS. (a) With
respect to each material employee benefit plan, program, arrangement and
contract (including, without limitation, any "employee benefit plan", as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) maintained or contributed to by IVAX or any IVAX Subsidiary,
or with respect to which IVAX or any IVAX Subsidiary could incur liability under
Section 4069, 4212(c) or 4204 of ERISA (the "IVAX BENEFIT PLANS"), IVAX has made
available to Hafslund Nycomed a true and correct copy of (i) such IVAX Benefit
Plan, (ii) each trust agreement relating to such IVAX Benefit Plan, (iii) the
most recent actuarial report or valuation relating to an IVAX Benefit Plan
subject to Title IV of ERISA, and (iv) the most recent determination letter, if
any, issued by the Internal Revenue Service (the "IRS") with respect to any IVAX
Benefit Plan qualified under Section 401(a) of the Code.
(b) Except as set forth in Section 5.09(b) of the IVAX
Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has
occurred and, to the knowledge of IVAX, there exists no condition or set of
circumstances in connection with which IVAX or any IVAX Subsidiary could be
subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the
Code or any other applicable Law which would have an IVAX Material Adverse
Effect.
(c) In addition to the foregoing, and except as set forth in
Section 5.09(c) of the IVAX Disclosure Schedule or except as would not have an
IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not
subject to United States Law (a "IVAX FOREIGN BENEFIT PLAN"):
(i) all employer and employee contributions to each IVAX
Foreign Benefit Plan required by Law or by the terms of such IVAX
Foreign Benefit Plan have been made or, if applicable, accrued in
accordance with normal accounting practices and a pro rata contribution
for the period from the date hereof to and including the Effective Time
has been made or accrued in accordance with normal accounting
principles;
(ii) the fair market value of the assets of each funded IVAX
Foreign Benefit Plan, the liability of each insurer for any IVAX
Foreign Benefit Plan funded through insurance or the book reserve
established for any IVAX Foreign Benefit Plan, together with any
accrued contributions, is sufficient to procure or provide for the
accrued benefit obligations, as of the Effective Time, with respect to
all current and former participants in such plan according to the
actuarial assumptions and valuations
24
most recently used to determine employer contributions to such IVAX
Foreign Benefit Plan and no transaction contemplated by this Agreement
shall cause such assets or insurance obligations to be less than such
benefit obligations; and
(iii) each IVAX Foreign Benefit Plan required to be registered
has been registered and has been maintained in good standing with
applicable regulatory authorities.
(d) Except as set forth in Section 5.09(d) of the IVAX
Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party to any
collective bargaining or other labor union contract applicable to persons
employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement
is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this
Agreement, there is no labor dispute, strike or work stoppage against IVAX or
any IVAX Subsidiary pending or threatened in writing which may interfere with
the respective business activities of IVAX or any IVAX Subsidiary, except where
such dispute, strike or work stoppage would not have an IVAX Material Adverse
Effect. As of the date of this Agreement, to the knowledge of IVAX, none of
IVAX, any IVAX Subsidiary, or any of their respective representatives or
employees, has committed any unfair labor practice in connection with the
operation of the respective businesses of IVAX or any IVAX Subsidiary, and there
is no charge or complaint against IVAX or any IVAX Subsidiary by the National
Labor Relations Board or any comparable governmental agency pending or
threatened in writing, except where such unfair labor practice, charge or
complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has made available to Hafslund Nycomed true and
complete copies of (i) all severance and employment agreements with officers of
IVAX and each IVAX Subsidiary who in the fiscal year ended December 31, 1994
received a base salary in excess of $200,000; (ii) all severance programs and
policies of IVAX and each IVAX Subsidiary with or relating to its employees; and
(iii) all plans, programs, agreements and other arrangements of IVAX and each
IVAX Subsidiary with or relating to its employees who in the fiscal year ended
December 31, 1994 received a base salary in excess of $200,000 which contain
change of control provisions.
(f) Except as provided in Section 5.09(f) of the IVAX
Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan
provides retiree medical or retiree life insurance benefits to any person.
SECTION 5.10. ACCOUNTING AND TAX MATTERS. Except as disclosed
in the IVAX Reports, neither IVAX nor, to the knowledge of IVAX, any of its
affiliates has taken or agreed to take any action (other than actions
contemplated by this Agreement) that would prevent the Merger, the Share
Exchange and the Demerger from qualifying for "pooling of interests" accounting
treatment under applicable United States accounting rules, including,
25
without limitation, applicable SEC accounting standards, or would prevent the
Merger from constituting a transaction qualifying under Section 368(a) of the
Code. IVAX is not aware of any agreement, plan or other circumstance that would
prevent the Merger from so qualifying under Section 368(a) of the Code.
SECTION 5.11. CONTRACTS; DEBT INSTRUMENTS. Except as disclosed
in the IVAX Reports or in Section 5.11 of the IVAX Disclosure Schedule, there is
no contract or agreement that is material to the business, financial condition
or results of operations of IVAX and the IVAX Subsidiaries taken as a whole
(each, a "IVAX MATERIAL CONTRACT"). Neither IVAX nor any IVAX Subsidiary is in
violation of or in default under (nor does there exist any condition which with
the passage of time or the giving of notice would cause such a violation of or
default under) any loan or credit agreement, note, bond, mortgage, indenture or
lease, or any other contract, agreement, arrangement or understanding to which
it is a party or by which it or any of its properties or assets is bound, except
for violations or defaults that would not, individually or in the aggregate,
result in an IVAX Material Adverse Effect. Set forth in Section 5.11 of the IVAX
Disclosure Schedule is a description of any material changes to the amount and
terms of the indebtedness of IVAX and its subsidiaries as described in the notes
to the financial statements incorporated in IVAX's Form 10-K for the year ended
December 31, 1994.
SECTION 5.12. LITIGATION. Except as disclosed in the IVAX
Reports or in Section 5.12 of the IVAX Disclosure Schedule, there is no suit,
claim, action, proceeding or investigation pending or, to the knowledge of IVAX,
threatened against IVAX or any IVAX Subsidiary before any Governmental Entity
that, individually or in the aggregate, is reasonably likely to have an IVAX
Material Adverse Effect. Except as disclosed in the IVAX Reports or in Section
5.12 of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is
subject to any outstanding order, writ, injunction or decree which, insofar as
can be reasonably foreseen, individually or in the aggregate, would have an IVAX
Material Adverse Effect.
SECTION 5.13. ENVIRONMENTAL MATTERS. Except as disclosed in
the IVAX Reports or in Section 5.13 of the IVAX Disclosure Schedule or as would
not, individually or in the aggregate, have an IVAX Material Adverse Effect:
(a) IVAX and the IVAX Subsidiaries (i) are in compliance with
all applicable Environmental Laws (as defined below), (ii) hold all
Environmental Permits (as defined below) and (iii) are in compliance
with their respective Environmental Permits.
(b) None of IVAX or any IVAX Subsidiary has received any
written request for information, or been notified that it is a
potentially responsible party,
26
under CERCLA (defined below) or any similar Law of any state, locality
or any other jurisdiction.
(c) None of IVAX or any IVAX Subsidiary has entered into or
agreed to any consent decree or order or is subject to any judgment,
decree or judicial order relating to compliance with Environmental
Laws, Environmental Permits or the investigation, sampling, monitoring,
treatment, remediation, removal or cleanup of Hazardous Materials
(defined below) and, to the knowledge of IVAX, no investigation,
litigation or other proceeding is pending or threatened in writing with
respect thereto.
(d) None of the real property owned or leased by IVAX or any
IVAX Subsidiary is listed or, to the knowledge of IVAX, proposed for
listing on the "National Priorities List" under CERCLA, as updated
through the date hereof, or any similar list of sites in the United
States or any other jurisdiction requiring investigation or cleanup.
For purposes of this Agreement:
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended as of the date
hereof.
"ENVIRONMENTAL LAWS" means any federal, state or local
statute, law, ordinance, regulation, rule, code or order of the United
States, Norway or any other jurisdiction and any enforceable judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to pollution
or protection of the environment or natural resources, including,
without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials, as in effect as of the date of this Agreement.
"ENVIRONMENTAL PERMITS" means any permit, approval,
identification number, license and other authorization required under
any applicable Environmental Law.
"HAZARDOUS MATERIALS" means (a) any petroleum, petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials or polychlorinated biphenyls or (b) any
chemical, material or substance defined or regulated as toxic or
hazardous or as a pollutant or contaminant or waste under any
applicable Environmental Law.
SECTION 5.14. TRADEMARKS, PATENTS AND COPYRIGHTS. Except as
set forth in Section 5.14 of the IVAX Disclosure Schedule, and as would not,
individually or in the
27
aggregate, have an IVAX Material Adverse Effect, IVAX and the IVAX Subsidiaries
own or possess adequate licenses or other valid rights to use all patents,
patent rights, trademarks, trademark rights, trade names, trade dress, trade
name rights, copyrights, service marks, trade secrets, applications for
trademarks and for service marks, know-how and other proprietary rights and
information used or held for use in connection with the business of IVAX and the
IVAX Subsidiaries as currently conducted, and IVAX is unaware of any assertion
or claim challenging the validity of any of the foregoing. The conduct of the
business of IVAX and the IVAX Subsidiaries as currently conducted does not and
will not conflict in any way with any patent, patent right, license, trademark,
trademark right, trade dress, trade name, trade name right, service xxxx or
copyright of any third party that, individually or in the aggregate, would have
an IVAX Material Adverse Effect. To the knowledge of IVAX, there are no
infringements of any proprietary rights owned by or licensed by or to IVAX or
any IVAX Subsidiary that, individually or in the aggregate, would have an IVAX
Material Adverse Effect.
SECTION 5.15. TAXES. Except as set forth in Section 5.15 of
the IVAX Disclosure Schedule and except for such matters that would not have an
IVAX Material Adverse Effect, (a) IVAX and each of the IVAX Subsidiaries have
timely filed or will timely file all returns and reports required to be filed by
them with any taxing authority with respect to Taxes for any period ending on or
before the Effective Time, taking into account any extension of time to file
granted to or obtained on behalf of IVAX and the IVAX Subsidiaries, (b) all
Taxes shown to be payable on such returns or reports that are due prior to the
Effective Time have been paid or will be paid, (c) as of the date hereof, no
deficiency for any material amount of Tax has been asserted or assessed by a
taxing authority against IVAX or any of the IVAX Subsidiaries and (d) IVAX and
each of the IVAX Subsidiaries have provided adequate reserves in their financial
statements for any Taxes that have not been paid, whether or not shown as being
due on any returns. As used in this Agreement, "TAXES" shall mean any and all
taxes, fees, levies, duties, tariffs, imposts and other charges of any kind
(together with any and all interest, penalties, additions to tax and additional
amounts imposed with respect thereto) imposed by any government or taxing
authority, including, without limitation: taxes or other charges on or with
respect to income, franchises, windfall or other profits, gross receipts,
property, sales, use, capital stock, payroll, employment, social security,
workers' compensation, unemployment compensation or net worth; taxes or other
charges in the nature of excise, withholding, ad valorem, stamp, transfer, value
added or gains taxes; license, registration and documentation fees; and
customers' duties, tariffs and similar charges.
SECTION 5.16. OPINION OF FINANCIAL ADVISOR. Xxxxxx, Read &
Co. Inc. ("XXXXXX READ") has delivered to the board of directors of IVAX its
written opinion to the effect that, as of the date of this Agreement, the Merger
Exchange Ratio is fair, from a financial point of view, to IVAX's stockholders.
Xxxxxx Read has authorized the inclusion of
28
its opinion in the Proxy Statement and IVAX will promptly, after the date of
this Agreement, deliver a signed copy of such opinion to Hafslund Nycomed.
SECTION 5.17. BROKERS. No broker, finder or investment banker
(other than Xxxxxx Read) is entitled to any brokerage, finder's or other fee or
commission in connection with the Transactions based upon arrangements made by
or on behalf of IVAX. IVAX has heretofore made available to Hafslund Nycomed a
complete and correct copy of all agreements between IVAX and Xxxxxx Read
pursuant to which such firm would be entitled to any payment relating to the
Transactions.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF HAFSLUND NYCOMED
Hafslund Nycomed hereby represents and warrants to IVAX that:
SECTION 6.01. ORGANIZATION AND QUALIFICATION; SUBSIDIARIES.
Each of Hafslund Nycomed and each subsidiary of Hafslund Nycomed (the "HAFSLUND
NYCOMED SUBSIDIARIES") has been duly organized and is validly existing and in
good standing (to the extent applicable) under the laws of the jurisdiction of
its incorporation or organization, as the case may be, and has the requisite
power and authority and all necessary governmental approvals to own, lease and
operate its properties and to carry on its business as it is now being
conducted, except where the failure to be so organized, existing or in good
standing or to have such power, authority and governmental approvals would not,
individually or in the aggregate, have a Hafslund Nycomed Material Adverse
Effect (defined below). Each of Hafslund Nycomed and each Hafslund Nycomed
Subsidiary is duly qualified or licensed to do business, and is in good standing
(to the extent applicable), in each jurisdiction where the character of the
properties owned, leased or operated by it or the nature of its business makes
such qualification or licensing necessary, except for such failures to be so
qualified or licensed and in good standing that would not, individually or in
the aggregate, have a Hafslund Nycomed Material Adverse Effect. For purposes of
this Agreement, "HAFSLUND NYCOMED MATERIAL ADVERSE EFFECT" means any change in
or effect on the Medical Businesses that is, or is reasonably likely to be,
materially adverse to the business, assets (including intangible assets),
liabilities (contingent or otherwise), condition (financial or otherwise) or
results of operations of the Medical Businesses taken as a whole.
SECTION 6.02. ARTICLES OF ASSOCIATION. The copy of Hafslund
Nycomed's Articles of Association delivered by Hafslund Nycomed to IVAX prior to
the date of this Agreement is a complete and correct copy thereof. Such Articles
of Association are in full force and effect. Hafslund Nycomed is not in
violation of any of the provisions of its Articles of Association or any of its
other corporate organization documents.
29
SECTION 6.03. CAPITALIZATION. As of the date hereof, the share
capital of Hafslund Nycomed is NOK 502,675,600, divided into (i) 60,608,138
shares of issued and outstanding Hafslund Nycomed Class A Common Stock, all of
which are validly issued and fully paid, and (ii) 39,926,982 shares of issued
and outstanding Hafslund Nycomed Class B Common Stock, all of which are validly
issued and fully paid. Except for options to acquire approximately 3,000,000
shares of Hafslund Nycomed Class B Common Stock outstanding under the Hafslund
Nycomed Stock Option Plan and pursuant to the transactions contemplated by this
Agreement, there are no warrants or other rights, agreements, arrangements or
commitments of any character to which Hafslund Nycomed is a party or by which
Hafslund Nycomed is bound relating to the share capital of Hafslund Nycomed or
any Hafslund Nycomed Subsidiary or obligating Hafslund Nycomed or any Hafslund
Nycomed Subsidiary to issue or sell any shares of capital stock of, or other
equity interests in, Hafslund Nycomed or any Hafslund Nycomed Subsidiary. Except
as set forth in Section 6.03 of the Disclosure Schedule delivered by Hafslund
Nycomed to IVAX prior to the execution of (and forming part of) this Agreement
(the "HAFSLUND NYCOMED DISCLOSURE SCHEDULE") and except for the transactions
contemplated by this Agreement, there are no outstanding contractual obligations
of Hafslund Nycomed or any Hafslund Nycomed Subsidiary to repurchase, redeem or
otherwise acquire any Hafslund Nycomed Stock or any capital stock of any
Hafslund Nycomed Subsidiary. Except as disclosed in Section 6.03 of the
Disclosure Schedule, each outstanding share of capital stock of each Hafslund
Nycomed Subsidiary is duly authorized, validly issued and fully paid and each
such share owned by Hafslund Nycomed or another Hafslund Nycomed Subsidiary is
free and clear of all security interests, liens, claims, pledges, options,
rights of first refusal, agreements, limitations on Hafslund Nycomed's or such
other Hafslund Nycomed Subsidiary's voting rights, charges and other
encumbrances of any nature whatsoever, except where the failure to own such
shares free and clear would not, individually or in the aggregate, have a
Hafslund Nycomed Material Adverse Effect. Except as set forth in Section 6.03 of
the Hafslund Nycomed Disclosure Schedule and except for the transactions
contemplated by this Agreement, there are no material outstanding contractual
obligations of Hafslund Nycomed or any Hafslund Nycomed Subsidiary not made in
the ordinary course of business to provide funds to, or make any material
investment (in the form of a loan, capital contribution or otherwise) in, any
Hafslund Nycomed Subsidiary or any other person.
SECTION 6.04. AUTHORITY RELATIVE TO THIS AGREEMENT. Hafslund
Nycomed has all necessary corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder. The execution and
delivery of this Agreement by Hafslund Nycomed and the consummation by Hafslund
Nycomed of such Transactions have been duly and validly authorized by all
necessary corporate action and no other corporate proceedings on the part of
Hafslund Nycomed are necessary to authorize this Agreement or to consummate such
Transactions except for the approval by Hafslund Nycomed's Corporate Assembly
and the requisite vote of the holders of Hafslund Nycomed Common Stock of the
Demerger and the Share Exchange. This Agreement has been duly authorized and
validly
30
executed and delivered by Hafslund Nycomed and, assuming the due authorization,
execution and delivery by each of the other parties hereto, constitutes a legal,
valid and binding obligation of Hafslund Nycomed, enforceable against Hafslund
Nycomed in accordance with its terms.
SECTION 6.05. NO CONFLICT; REQUIRED FILINGS AND CONSENTS;
TRANSFER OF MEDICAL BUSINESSES. (a) The execution and delivery of this
Agreement by Hafslund Nycomed do not, and the performance of this Agreement by
Hafslund Nycomed will not, (i) assuming due approval and adoption of all
amendments thereto contemplated by this Agreement in connection with the Share
Exchange and the Demerger, conflict with or violate any provision of the
Articles of Association or other corporate organization documents of Hafslund
Nycomed or any equivalent organizational documents of any Hafslund Nycomed
Subsidiary, (ii) assuming that all consents, approvals, authorizations and other
actions described in Section 6.05(b) have been obtained and all filings and
obligations described in Section 6.05(b) have been made, conflict with or
violate any Law applicable to Hafslund Nycomed or any Hafslund Nycomed
Subsidiary or by which any property or asset of Hafslund Nycomed or any Hafslund
Nycomed Subsidiary is bound or affected or (iii) except as set forth in Section
6.05(a) of the Hafslund Nycomed Disclosure Schedule and for the rights granted
to creditors under applicable Norwegian Law as a result of the Demerger, result
in any breach of or constitute a default (or an event which with 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 Hafslund
Nycomed or any Hafslund Nycomed Subsidiary pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation, except, with respect to clauses (ii) and (iii),
for any such conflicts, violations, breaches, defaults or other occurrences
which would neither, individually or in the aggregate, (A) have a Hafslund
Nycomed Material Adverse Effect nor (B) prevent or materially delay the
performance of this Agreement by Hafslund Nycomed.
(b) The execution and delivery of this Agreement by Hafslund
Nycomed do not, and the performance of this Agreement by Hafslund Nycomed will
not, require any consent, approval, authorization or permit of, or filing with
or notification to, any Governmental Entity, except (i) for applicable
requirements of the Oslo Stock Exchange (the "OSE"), applicable requirements of
the Exchange Act, the Securities Act, Blue Sky Laws, the New York Stock
Exchange, Inc. (the "NYSE"), the Frankfurt, Vienna, London and Copenhagen stock
exchanges (the "EUROPEAN EXCHANGES"), the premerger notification requirements of
the HSR Act, such filings as are required under applicable European competition
laws, the filing of a notification to the Norwegian Ministry of Industry
pursuant to the Norwegian Business Acquisition Act of 1994, the filing of
certain notices with the Norwegian Register of Business Enterprises in
connection with the Demerger (the "DEMERGER FILING") and as set forth in Section
6.05 of the Hafslund Nycomed Disclosure Schedule and
31
(ii) where failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not (A) prevent or
materially delay consummation of the Transactions, (B) otherwise prevent
Hafslund Nycomed from performing its material obligations under this Agreement
and (C) individually or in the aggregate, have a Hafslund Nycomed Material
Adverse Effect.
(c) Upon the consummation of the transactions contemplated by
the Nycomed Purchase and Sale Agreements, Nycomed shall own (or possess all of
Hafslund Nycomed's rights to) all the assets used in or held for use in the
Medical Businesses.
SECTION 6.06. PERMITS; COMPLIANCE WITH LAWS. (a) Each of
Hafslund Nycomed and the Hafslund Nycomed Subsidiaries is in possession of all
franchises, grants, authorizations, licenses, permits, easements, variances,
exceptions, consents, certificates, approvals and orders of any Governmental
Entity, including, without limitation, the FDA or any similar Norwegian entity
or entity of any other jurisdiction, necessary for Hafslund Nycomed or any
Hafslund Nycomed Subsidiary to own, lease and operate its properties or to carry
on the Medical Businesses as they are now being conducted (the "HAFSLUND NYCOMED
PERMITS"), except where the failure to have, or the suspension or cancellation
of, any of the Hafslund Nycomed Permits would not, individually or in the
aggregate, have a Hafslund Nycomed Material Adverse Effect, and, as of the date
of this Agreement, no suspension or cancellation of any of the Hafslund Nycomed
Permits is pending or, to the knowledge of Hafslund Nycomed, threatened, except
where the failure to have, or the suspension or cancellation of, any of the
Hafslund Nycomed Permits would not, individually or in the aggregate, have a
Hafslund Nycomed Material Adverse Effect. Neither Hafslund Nycomed nor any
Hafslund Nycomed Subsidiary is in conflict with, or in default or violation of,
(i) any Law applicable to Hafslund Nycomed or any Hafslund Nycomed Subsidiary or
by which any property or asset of Hafslund Nycomed or any Hafslund Nycomed
Subsidiary is bound or affected or (ii) any Hafslund Nycomed Permits, except in
the case of each of clauses (i) and (ii) for any such conflicts, defaults or
violations that would not, individually or in the aggregate, have a Hafslund
Nycomed Material Adverse Effect.
(b) Except as disclosed in the Hafslund Nycomed SEC Reports or
in Section 6.06(b) of the Hafslund Nycomed Disclosure Schedule or as would not,
individually or in the aggregate, have a Hafslund Nycomed Material Adverse
Effect:
(i) all manufacturing operations of Hafslund Nycomed and the
Hafslund Nycomed Subsidiaries relating to the Medical Businesses are
being conducted in substantial compliance with applicable good
manufacturing practices as such businesses are currently conducted;
(ii) none of Hafslund Nycomed, the Hafslund Nycomed
Subsidiaries or any of their respective officers, employees or agents
involved in the Medical Businesses
32
has made any untrue statement of a material fact or fraudulent
statement to the FDA or similar governmental agency, failed to disclose
a material fact required to be disclosed to the FDA or similar
governmental agency, or committed an act, made a statement or failed to
make a statement that could reasonably be expected to provide a basis
for the FDA to invoke its policy respecting "Fraud, Untrue Statements
of Material Facts, Bribery, and Illegal Gratuities" or similar
governmental policy or Law;
(iii) neither Hafslund Nycomed nor any of the Hafslund Nycomed
Subsidiaries has received any written notice that the FDA or similar
governmental agency has commenced, or threatened to initiate, any
action to withdraw its approval or request the recall of any product of
Hafslund Nycomed or any of the Hafslund Nycomed Subsidiaries relating
to the Medical Businesses, or commenced, or overtly threatened to
initiate, any action to enjoin production at any facility of Hafslund
Nycomed or any of the Hafslund Nycomed Subsidiaries relating to the
Medical Businesses;
(iv) as to each article of drug, cosmetics or vitamin
manufactured and/or distributed by Hafslund Nycomed or any of the
Hafslund Nycomed Subsidiaries in the conduct of the Medical Businesses,
such article is not adulterated or misbranded within the meaning of the
FDCA or similar Norwegian Law or Law of any other jurisdiction; and
(v) none of Hafslund Nycomed, the Hafslund Nycomed
Subsidiaries or any of their respective officers, employees, agents,
subsidiaries or affiliates involved in the Medical Businesses has been
convicted of any crime or engaged in any conduct for which debarment or
similar punishment is mandated.
SECTION 6.07. STOCK EXCHANGE AND SEC FILINGS; FINANCIAL
STATEMENTS. (a) Hafslund Nycomed has timely filed all forms, reports and
documents required to be filed by it with the SEC or the OSE since January 1,
1993 through the date of this Agreement (collectively and as amended, the
"HAFSLUND NYCOMED REPORTS"). The Hafslund Nycomed Reports (i) were prepared in
accordance with the requirements of the Securities Act, the Exchange Act, the
OSE or Norwegian Laws or regulations, as the case may be, and (ii) did not at
the time they were filed contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements made therein, in the light of the circumstances under which
they were made, not misleading. No Hafslund Nycomed Subsidiary is subject to the
periodic reporting requirements of the Exchange Act or required to file any
form, report or other document with the SEC, the OSE, any other stock exchange
or any other comparable Governmental Entity.
33
(b) Each of the consolidated financial statements (including,
in each case, any notes thereto) contained in the Hafslund Nycomed Reports was
prepared in accordance with Norwegian generally accepted accounting principles
applied on a consistent basis throughout the periods indicated (except as may be
indicated in the notes thereto) and each presented fairly, in all material
respects, the consolidated financial position and results of operations of
Hafslund Nycomed and the consolidated Hafslund Nycomed Subsidiaries as at the
respective dates thereof and for the respective periods indicated therein,
except as otherwise noted therein (subject, in the case of unaudited statements,
to normal and recurring year-end adjustments which were not and are not
expected, individually or in the aggregate, to have a Hafslund Nycomed Material
Adverse Effect).
(c) Except as and to the extent set forth on the consolidated
balance sheet of Hafslund Nycomed and the consolidated Hafslund Nycomed
Subsidiaries as of December 31, 1994, including the notes thereto, none of
Hafslund Nycomed or any of the Hafslund Nycomed Subsidiaries has any liabilities
or obligations of any nature (whether accrued, absolute, contingent or
otherwise) that would be required to be reflected on a balance sheet or in notes
thereto prepared in accordance with Norwegian generally accepted accounting
principles, except for liabilities or obligations incurred in the ordinary
course of business since January 1, 1995 that would not, individually or in the
aggregate, have a Hafslund Nycomed Material Adverse Effect.
SECTION 6.08. ABSENCE OF CERTAIN CHANGES OR EVENTS; NO
ACTIVITIES. Since January 1, 1995, except as contemplated by or as disclosed in
this Agreement, as set forth in Section 6.08 of the Hafslund Nycomed Disclosure
Schedule or as disclosed in any Hafslund Nycomed Report filed since January 1,
1995, Hafslund Nycomed and the Hafslund Nycomed Subsidiaries have conducted the
Medical Businesses only in the ordinary course and in a manner consistent with
past practice and, since such date, there has not been (i) any Hafslund Nycomed
Material Adverse Effect, (ii) any event that could reasonably be expected to
prevent or materially delay the performance of this Agreement by Hafslund
Nycomed, (iii) any material change by Hafslund Nycomed in its accounting
methods, principles or practices, (iv) any declaration, setting aside or payment
of any dividend or distribution in respect of the shares of Hafslund Nycomed
Common Stock or any redemption, purchase or other acquisition of any of Hafslund
Nycomed's securities or (v) any increase in the compensation or benefits or
establishment of any bonus, insurance, severance, deferred compensation,
pension, retirement, profit sharing, stock option (including, without
limitation, the granting of stock options, stock appreciation rights,
performance awards or restricted stock awards), stock purchase or other employee
benefit plan, or any other increase in the compensation payable or to become
payable to any executive officers of Hafslund Nycomed or any Hafslund Nycomed
Subsidiary involved in the Medical Businesses except in the ordinary course of
business consistent with past practice.
34
SECTION 6.09. EMPLOYEE BENEFIT PLANS; LABOR MATTERS. (a) With
respect to each material employee benefit plan, program, arrangement and
contract (including, without limitation, any "employee benefit plan", as defined
in Section 3(3) of ERISA maintained or contributed to by Hafslund Nycomed or any
Hafslund Nycomed Subsidiary, or with respect to which Hafslund Nycomed or any
Hafslund Nycomed Subsidiary could incur liability under Section 4069, 4212(c) or
4204 of ERISA (the "HAFSLUND NYCOMED BENEFIT PLANS"), Hafslund Nycomed has made
available to IVAX a true and correct copy of (i) such Hafslund Nycomed Benefit
Plan, (ii) each trust agreement relating to such Hafslund Nycomed Benefit Plan,
(iii) the most recent actuarial report or valuation relating to a Hafslund
Nycomed Benefit Plan subject to Title IV of ERISA and (iv) the most recent
determination letter, if any, issued by the IRS with respect to any Hafslund
Nycomed Benefit Plan qualified under Section 401(a) of the Code.
(b) Except as set forth in Section 6.09(b) of the Hafslund
Nycomed Disclosure Schedule, with respect to the Hafslund Nycomed Benefit Plans,
no event has occurred and, to the knowledge of Hafslund Nycomed, there exists no
condition or set of circumstances in connection with which Hafslund Nycomed or
any Hafslund Nycomed Subsidiary could be subject to any liability under the
terms of such Hafslund Nycomed Benefit Plans, ERISA, the Code or any applicable
Law which would have a Hafslund Nycomed Material Adverse Effect.
(c) In addition to the foregoing, and except as set forth in
Section 6.09(c) of the Hafslund Nycomed Disclosure Schedule or except as would
not have a Hafslund Nycomed Material Adverse Effect, with respect to each
Hafslund Nycomed Benefit Plan that is not subject to United States Law (a
"HAFSLUND NYCOMED FOREIGN BENEFIT PLAN"):
(i) all employer and employee contributions to each Hafslund
Nycomed Foreign Benefit Plan required by Law or by the terms of such
Hafslund Nycomed Foreign Benefit Plan have been made or, if applicable,
accrued in accordance with normal accounting practices and a pro rata
contribution for the period from the date hereof to and including the
Effective Time has been made or accrued in accordance with normal
accounting principles;
(ii) the fair market value of the assets of each funded
Hafslund Nycomed Foreign Benefit Plan, the liability of each insurer
for any Hafslund Nycomed Foreign Benefit Plan funded through insurance
or the book reserve established for any Hafslund Nycomed Foreign
Benefit Plan, together with any accrued contributions, is sufficient to
procure or provide for the accrued benefit obligations, as of the
Effective Time, with respect to all current and former participants in
such plan according to the actuarial assumptions and valuations most
recently used to determine employer contributions to such Hafslund
Nycomed Foreign Benefit Plan and no transaction
35
contemplated by this Agreement shall cause such assets or insurance
obligations to be less than such benefit obligations; and
(iii) each Hafslund Nycomed Foreign Benefit Plan required to
be registered has been registered and has been maintained in good
standing with applicable regulatory authorities.
(d) Except as set forth in Section 6.09(d) of the Hafslund
Nycomed Disclosure Schedule, neither Hafslund Nycomed nor any Hafslund Nycomed
Subsidiary is a party to any collective bargaining or other labor union contract
applicable to persons employed in the Medical Businesses (including corporate
employees) by Hafslund Nycomed or any Hafslund Nycomed Subsidiary and no such
collective bargaining agreement is being negotiated by Hafslund Nycomed or any
Hafslund Nycomed Subsidiary. As of the date of this Agreement, there is no labor
dispute, strike or work stoppage against Hafslund Nycomed or any Hafslund
Nycomed Subsidiary pending or threatened in writing that may interfere with the
respective business activities of Hafslund Nycomed or any Hafslund Nycomed
Subsidiary in the Medical Businesses, except where such dispute, strike or work
stoppage would not have a Hafslund Nycomed Material Adverse Effect. As of the
date of this Agreement, to the knowledge of Hafslund Nycomed, none of Hafslund
Nycomed, any Hafslund Nycomed Subsidiary or any of their respective
representatives or employees has committed any unfair labor practices in
connection with the operation of the respective Medical Businesses of Hafslund
Nycomed or any Hafslund Nycomed Subsidiary, and there is no charge or complaint
alleging any unfair labor practice against Hafslund Nycomed or any Hafslund
Nycomed Subsidiary by the National Labor Relations Board or any other agency of
any other jurisdiction pending or threatened in writing with respect to such
Medical Businesses, except where such unfair labor practice, charge or complaint
would not have a Hafslund Nycomed Material Adverse Effect.
(e) Hafslund Nycomed has made available to IVAX true and
complete copies of (i) all severance and employment agreements with executive
officers of Hafslund Nycomed and each Hafslund Nycomed Subsidiary who in the
fiscal year ended December 31, 1994 received a base salary in excess of NOK
1,250,000; (ii) all severance programs and policies of Hafslund Nycomed and each
Hafslund Nycomed subsidiary with or relating to its employees; and (iii) all
plans, programs, agreements and other arrangements of Hafslund Nycomed and each
Hafslund Nycomed Subsidiary with or relating to its employees who in the fiscal
year ended December 31, 1994 received a base salary in excess of NOK 1,250,000
which contain change of control provisions.
(f) Except as provided in Section 6.09(f) of the Hafslund
Nycomed Disclosure Schedule or as otherwise required by Law, no Hafslund Nycomed
Benefit Plan provides retiree medical or retiree life insurance benefits to any
person.
36
SECTION 6.10. ACCOUNTING AND TAX MATTERS. Except as disclosed
in the Hafslund Nycomed Reports, neither Hafslund Nycomed nor, to the knowledge
of Hafslund Nycomed, any of its affiliates has taken or agreed to take any
action (other than actions contemplated by this Agreement) that would prevent
the Share Exchange and the Demerger from qualifying for "pooling of interests"
accounting treatment under applicable Norwegian accounting rules or would
prevent the Demerger from constituting a transaction in which, for Norwegian
income tax purposes Hafslund Nycomed stockholders will not recognize taxable
income or gain. Hafslund Nycomed is not aware of any agreement, plan or other
circumstance that would prevent the Demerger from so qualifying under applicable
Norwegian Tax Laws.
SECTION 6.11. CONTRACTS; DEBT INSTRUMENTS. Except as disclosed
in the Hafslund Nycomed Reports filed prior to the date of this Agreement or in
Section 6.11 of the Hafslund Nycomed Disclosure Schedule, there is no contract
or agreement that is material to the business, financial condition or results of
operations of the Medical Businesses taken as a whole (each, a "HAFSLUND NYCOMED
MATERIAL CONTRACT"). Neither Hafslund Nycomed nor any Hafslund Nycomed
Subsidiary is in violation of or in default under (nor does there exist any
condition which upon the passage of time or the giving of notice would cause
such a violation of or default under) any loan or credit agreement, note, bond,
mortgage, indenture or lease, or any other contract, agreement, arrangement or
understanding to which it is a party or by which it or any of its properties or
assets is bound, except for violations or defaults that would not, individually
or in the aggregate, result in a Hafslund Nycomed Material Adverse Effect. Set
forth in Section 6.11 of the Hafslund Nycomed Disclosure Schedule is a
description of any material changes to the amounts and terms of the indebtedness
of Hafslund Nycomed and its subsidiaries as described in Hafslund Nycomed's Form
20-F for the year ended December 31, 1994.
SECTION 6.12. LITIGATION. Except as disclosed in the Hafslund
Nycomed Reports or in Section 6.12 of the Hafslund Nycomed Disclosure Schedule,
there is no suit, claim, action, proceeding or investigation pending or, to the
knowledge of Hafslund Nycomed, threatened against Hafslund Nycomed or any
Hafslund Nycomed Subsidiary before any Governmental Entity which, individually
or in the aggregate, is reasonably likely to have a Hafslund Nycomed Material
Adverse Effect. Except as disclosed in the Hafslund Nycomed Reports or in
Section 6.12 of the Hafslund Nycomed Disclosure Schedule, neither Hafslund
Nycomed nor any Hafslund Nycomed Subsidiary is subject to any outstanding order,
writ, injunction or decree which, insofar as can be reasonably foreseen,
individually or in the aggregate, would have a Hafslund Nycomed Material Adverse
Effect.
SECTION 6.13. ENVIRONMENTAL MATTERS. Except as disclosed in
the Hafslund Nycomed Reports or in Section 6.13 of the Hafslund Nycomed
Disclosure Schedule or as would not, individually or in the aggregate, have a
Hafslund Nycomed Material Adverse Effect:
37
(a) Hafslund Nycomed and the Hafslund Nycomed Subsidiaries (i)
are in compliance with all applicable Environmental Laws, (ii) hold all
Environmental Permits and (iii) are in compliance with their
Environmental Permits.
(b) None of Hafslund Nycomed or any Hafslund Nycomed
Subsidiary has received any written request for information, or been
notified that it is a potentially responsible party, under CERCLA or
any similar Law of any state, locality or any other jurisdiction.
(c) None of Hafslund Nycomed or any Hafslund Nycomed
Subsidiary has entered into or agreed to any consent decree or order or
is subject to any judgment, decree or judicial order relating to
compliance with Environmental Laws, Environmental Permits or the
investigation, sampling, monitoring, treatment, remediation, removal or
cleanup of Hazardous Materials, and to the knowledge of Hafslund
Nycomed, no investigation, litigation or other proceeding is pending or
threatened in writing with respect thereto.
(d) None of the real property owned or leased by Hafslund
Nycomed or any Hafslund Nycomed Subsidiary is listed or, to the
knowledge of Hafslund Nycomed, proposed for listing on the "National
Priorities List" under CERCLA, as updated through the date hereof, or
any similar list of sites in the United States or any other
jurisdiction requiring investigation or cleanup.
SECTION 6.14. TRADEMARKS, PATENTS AND COPYRIGHTS. Except as
set forth in Section 6.14 of the Hafslund Nycomed Disclosure Schedule, and as
would not, individually or in the aggregate, have a Hafslund Nycomed Material
Adverse Effect, Hafslund Nycomed and the Hafslund Nycomed Subsidiaries own or
possess adequate licenses or other valid rights to use all patents, patent
rights, trademarks, trademark rights, trade names, trade dress, trade name
rights, copyrights, service marks, trade secrets, applications for trademarks
and for service marks, know-how and other proprietary rights and information
used or held for use in connection with the Medical Businesses as currently
conducted and Hafslund Nycomed is unaware of any assertion or claim challenging
the validity of any of the foregoing. The conduct of the Medical Businesses of
Hafslund Nycomed and the Hafslund Nycomed Subsidiaries as currently conducted
does not and will not conflict in any way with any patent, patent right,
license, trademark, trademark right, trade dress, trade name, trade name right,
service xxxx or copyright of any third party that, individually or in the
aggregate, would have a Hafslund Nycomed Material Adverse Effect. To the
knowledge of Hafslund Nycomed, there are no infringements of any proprietary
rights owned by or licensed by or to Hafslund Nycomed or any Hafslund Nycomed
Subsidiary and used in the Medical Businesses that, individually or in the
aggregate, would have a Hafslund Nycomed Material Adverse Effect.
38
SECTION 6.15. TAXES. Except as set forth in Section 6.15 of
the Hafslund Nycomed Disclosure Schedule and except for such matters that would
not have a Hafslund Nycomed Material Adverse Effect, (a) Hafslund Nycomed and
each of the Hafslund Nycomed Subsidiaries have timely filed or will timely file
all returns and reports required to be filed by them with any taxing authority
with respect to Taxes for any period ending on or before the Effective Time,
taking into account any extension of time to file granted to or obtained on
behalf of Hafslund Nycomed and the Hafslund Nycomed Subsidiaries, (b) all Taxes
shown to be payable on such returns or reports that are due prior to the
Effective Time have been paid or will be paid, (c) as of the date hereof, no
deficiency for any material amount of Tax has been asserted or assessed by a
taxing authority against Hafslund Nycomed or any of the Hafslund Nycomed
Subsidiaries and (d) Hafslund Nycomed and each of the Hafslund Nycomed
Subsidiaries have provided adequate reserves in their financial statements for
any Taxes that have not been paid, whether or not shown as being due on any
returns.
SECTION 6.16. OPINION OF FINANCIAL ADVISOR. Xxxxxxx Xxxxx &
Co., Inc. ("XXXXXXX XXXXX") has delivered to the board of directors of Hafslund
Nycomed its written opinion to the effect that, as of the date of this
Agreement, the proposed consideration to be received by Holdings in exchange for
the Medical Businesses in connection with the Transactions is fair to Hafslund
Nycomed's shareholders, from a financial point of view, taking into account the
ownership structure of IVAX NYCOMED Common Stock through Holdings. Xxxxxxx Xxxxx
has authorized the inclusion of its opinion in the Proxy Statement and Hafslund
Nycomed will promptly, after the date of this Agreement, deliver a signed copy
of such opinion to IVAX.
SECTION 6.17. BROKERS. No broker, finder or investment banker
(other xxxx Xxxxxxx Xxxxx) is entitled to any brokerage, finder's or other fee
or commission in connection with the Transactions based upon arrangements made
by or on behalf of Hafslund Nycomed. Hafslund Nycomed has heretofore made
available to IVAX a complete and correct copy of all agreements between Hafslund
Nycomed and Xxxxxxx Xxxxx pursuant to which such firm would be entitled to any
payment relating to the Transactions.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF
IVAX NYCOMED
SECTION 7.01. REPRESENTATIONS AND WARRANTIES OF IVAX NYCOMED.
IVAX NYCOMED hereby represents and warrants, to Hafslund Nycomed and IVAX that:
(a) IVAX NYCOMED has been duly organized and is validly
existing and in good standing (to the extent applicable) under the laws of the
State of Florida, and has the
39
requisite power and authority and all necessary governmental approvals to own,
lease and operate its properties and to carry on its business as it is now being
conducted, except where the failure to be so organized, existing or in good
standing or to have such power, authority and governmental approvals would not,
individually or in the aggregate, have a material adverse effect on the ability
of IVAX NYCOMED to consummate the Transactions. IVAX NYCOMED is duly qualified
or licensed to do business, and is in good standing (to the extent applicable),
in each jurisdiction where the character of the properties owned, leased or
operated by it or the nature of its business makes such qualification or
licensing necessary, except for such failures to be so qualified or licensed and
in good standing that would not, individually or in the aggregate, have a
material adverse effect on the ability of IVAX NYCOMED to consummate the
Transactions.
(b) IVAX NYCOMED has heretofore made available to each of
Hafslund Nycomed and IVAX a complete and correct copy of its organizational
documents, including its Articles of Incorporation and By-Laws. Such
organizational documents are in full force and effect. IVAX NYCOMED is not in
violation of any of the provisions of its organizational documents.
(c) As of the date of this Agreement, (i) the authorized
capital stock of IVAX NYCOMED consists of 1,000,000,000 shares of IVAX NYCOMED
Common Stock and 5,000,000 shares of preferred stock, and (ii) 100 shares of
IVAX NYCOMED Common Stock are issued and outstanding, all of which are validly
issued, fully paid and nonassessable; and no shares of preferred stock are
issued and outstanding. No shares of IVAX NYCOMED capital stock are held in the
treasury of IVAX NYCOMED. Except as provided in this Agreement, there are no
options, warrants or other rights, agreements, arrangements or commitments of
any character relating to the issued or unissued capital stock of IVAX NYCOMED
or obligating IVAX NYCOMED to issue or sell any shares of capital stock of, or
other equity interests in, IVAX NYCOMED. The IVAX NYCOMED Common Stock to be
issued in connection with the Transactions, when issued as contemplated herein,
will be duly authorized, validly issued, fully paid and nonassessable and will
not be issued in violation of any preemptive rights.
(d) IVAX NYCOMED has all necessary corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution and delivery of this Agreement by IVAX NYCOMED and the
consummation by IVAX NYCOMED of the Transactions have been duly and validly
authorized by all necessary corporate action and no other corporate proceedings
on the part of IVAX NYCOMED are necessary to authorize this Agreement or to
consummate such Transactions. This Agreement has been duly authorized and
validly executed and delivered by IVAX NYCOMED and, assuming the due
authorization, execution and delivery by the other parties hereto, constitutes a
legal, valid and binding obligation of IVAX NYCOMED, enforceable against IVAX
NYCOMED in accordance with its terms.
40
(e) (i) The execution and delivery of this Agreement by IVAX
NYCOMED does not, and the performance of this Agreement by IVAX NYCOMED will
not, (A) conflict with or violate any provision of the Articles of Incorporation
or By-Laws of IVAX NYCOMED or (B) assuming that all consents, approvals,
authorizations and other actions described in Section 7.01(e)(ii) have been
obtained and all filings and obligations described in Section 7.01(e)(ii) have
been made, conflict with or violate any Law applicable to IVAX NYCOMED or by
which any property or asset of IVAX NYCOMED is bound or affected.
(ii) The execution and delivery of this Agreement by IVAX
NYCOMED does not, and the performance of this Agreement by IVAX NYCOMED will
not, require any consent, approval, authorization or permit of, or filing with
or notification to, any Governmental Entity, except (A) for applicable
requirements of the Exchange Act, the Securities Act, Blue Sky Laws, the AMEX,
state takeover laws, the premerger notification requirements of the HSR Act and
such filings as are required under applicable European competition laws and (B)
where failure to obtain such consents, approvals, authorizations or permits, or
to make such filings or notifications, would not (x) prevent or materially delay
consummation of the Transactions or (y) otherwise prevent IVAX NYCOMED from
performing its material obligations under this Agreement.
(f) IVAX NYCOMED has not, prior to the date of this
Agreement, or except as contemplated by this Agreement, prior to the Effective
Time, conducted any business other than the holding of all shares of Acquisition
Sub Common Stock.
ARTICLE VIII
COVENANTS
SECTION 8.01. CONDUCT OF BUSINESS BY IVAX PENDING THE CLOSING.
IVAX agrees that, between the date of this Agreement and the Effective Time,
except as set forth in Section 8.01 of the IVAX Disclosure Schedule or as
contemplated by any other provision of this Agreement, unless Hafslund Nycomed
shall otherwise agree in writing, which agreement shall not be unreasonably
withheld or delayed, (1) the businesses of IVAX and the IVAX Subsidiaries shall
be conducted only in, and IVAX and the IVAX Subsidiaries shall not take any
action except in, the ordinary course of business consistent with past practice
and (2) IVAX shall use its reasonable best efforts to keep available the
services of such of the current officers, significant employees and consultants
of IVAX and the IVAX Subsidiaries and to preserve the current relationships of
IVAX and the IVAX Subsidiaries with such of the customers, suppliers and other
persons with which IVAX or any IVAX Subsidiary has significant business
relations as IVAX deems reasonably necessary in order to preserve substantially
intact its business organization. By way of amplification and not limitation,
41
except as set forth in Section 8.01 of the IVAX Disclosure Schedule or as
contemplated by any other provision of this Agreement, neither IVAX nor any IVAX
Subsidiary shall, between the date of this Agreement and the Effective Time,
directly or indirectly, do, or agree to do, any of the following without the
prior written consent of Hafslund Nycomed, which consent shall not be
unreasonably withheld or delayed:
(a) amend or otherwise change its Articles of Incorporation
or By-Laws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, transfer, lease,
license, guarantee, encumber, or authorize the issuance, sale, pledge,
disposition, grant or encumbrance of, (i) any shares of capital stock
of IVAX or any IVAX Subsidiary of any class, or securities convertible
or exchangeable or exercisable for any shares of such capital stock, or
any options, warrants or other rights of any kind to acquire any shares
of such capital stock, or any other ownership interest (including,
without limitation, any phantom interest), of IVAX or any IVAX
Subsidiary (except for the issuance of (A) a maximum of 10,302,823
shares of IVAX Common Stock issuable pursuant to the IVAX Options
outstanding on the date of this Agreement and the issuance, in the
ordinary course of business, consistent with past practices and on
terms no more favorable than customary prior grants, of IVAX Options to
acquire 1,500,000 shares of IVAX Common Stock plus the number of shares
of IVAX Common Stock previously reserved for issuance pursuant to the
IVAX Stock Option Plans in effect on the date of this Agreement and the
shares of IVAX Common Stock issuable pursuant to such IVAX Options, in
accordance with the terms of the IVAX Stock Option Plans; (B) a maximum
of 505,843 shares of IVAX Common Stock issuable pursuant to the IVAX
Subordinated Notes and the IVAX Subordinated Debentures; and (C) shares
of IVAX Common Stock issuable as consideration for acquisitions
permitted by clause (i) of paragraph (c) of this Section 8.01); or (ii)
any property or assets of IVAX or any IVAX Subsidiary, except in the
ordinary course of business and in a manner consistent with past
practice or in an aggregate amount not in excess of $50,000,000;
(c) (i) acquire (including, without limitation, by merger,
consolidation, or acquisition of stock or assets) any interest in any
corporation, partnership, other business organization, person or any
division thereof or any assets, other than acquisitions of assets
(excluding the acquisition of a business or substantially all of the
stock or assets thereof) in the ordinary course of business consistent
with past practice, and any acquisitions for consideration, calculated
as of the date of execution of the definitive agreement for any such
acquisition that is not, in the aggregate for all such acquisitions, in
excess of $15,000,000; (ii) incur any indebtedness for borrowed money
or issue any debt securities or assume, guarantee or endorse, or
otherwise as an accommodation become responsible for, the obligations
of any person for
42
borrowed money, except for (A) indebtedness for borrowed money incurred
in the ordinary course of business and consistent with past practice or
incurred to refinance outstanding indebtedness for borrowed money
existing on the date of this Agreement, (B) other indebtedness for
borrowed money with a maturity of not more than one year in a principal
amount not, in the aggregate, in excess of $50,000,000 or (C)
indebtedness for borrowed money incurred to finance acquisitions
permitted by clause (i) of this paragraph (c); (iii) terminate, cancel
or request any material change in, or agree to any material change in,
any IVAX Material Contract or enter into any contract or agreement
material to the business, results of operations or financial condition
of IVAX and the IVAX Subsidiaries taken as a whole, in either case
other than in the ordinary course of business, consistent with past
practice; (iv) make or authorize any capital expenditure, other than
capital expenditures in the ordinary course of business consistent with
past practice that are not, in the aggregate, in excess of $150,000,000
for IVAX and the IVAX Subsidiaries taken as a whole; or (v) enter into
or amend any contract, agreement, commitment or arrangement that, if
fully performed, would not be permitted under this Section 8.01(c);
(d) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with
respect to any of its capital stock, other than (i) any dividends not
in excess of $.04 per share of IVAX Common Stock for the six months
ending December 31, 1995 and (ii) any IVAX Subsidiary may pay dividends
or make other distributions to IVAX;
(e) reclassify, combine, split, subdivide or redeem, purchase
or otherwise acquire, directly or indirectly, any of its capital stock;
(f) increase the compensation payable or to become payable to
its officers or employees, except for increases in accordance with past
practices in salaries or wages of employees or officers of IVAX or any
IVAX Subsidiary, or, except in accordance with past practices, grant
any rights to severance or termination pay to, or enter into any
employment or severance agreement with, any director, officer or other
employee of IVAX or any IVAX Subsidiary, or establish, adopt, enter
into or amend any collective bargaining, bonus, profit sharing, thrift,
compensation, stock option, restricted stock, pension, retirement,
deferred compensation, employment, termination, severance or other
plan, agreement, trust, fund, policy or arrangement for the benefit of
any director, officer or employee, except to the extent required by
applicable Law or the terms of a collective bargaining agreement;
(g) take any action with respect to accounting policies or
procedures, other than actions in the ordinary course of business and
consistent with past practice or as required by United States generally
accepted accounting principles;
43
(h) make any tax election or settle or compromise any
material federal, state or local United States, Norwegian or any other
jurisdiction income tax liability other than those made in the ordinary
course of business consistent with past practice and those for which
specific reserves have been recorded on the consolidated balance sheet
of IVAX and the consolidated IVAX Subsidiaries dated as of December 31,
1994 and only to the extent of such reserves; or
(i) authorize or enter into any formal or informal agreement
or otherwise make any commitment to do any of the foregoing.
SECTION 8.02. CONDUCT OF BUSINESS BY HAFSLUND NYCOMED PENDING
THE CLOSING. Hafslund Nycomed agrees that, between the date of this Agreement
and the Effective Time, except as set forth in Section 8.02 of the Hafslund
Nycomed Disclosure Schedule or as contemplated by any other provision of this
Agreement or the Nycomed Purchase and Sale Agreement, unless IVAX shall
otherwise agree in writing, which agreement shall not be unreasonably withheld
or delayed, (1) the business of Hafslund Nycomed and the Hafslund Nycomed
Subsidiaries shall be conducted only in, and the Hafslund Nycomed and the
Hafslund Nycomed Subsidiaries shall not take any action except in, the ordinary
course of business consistent with past practice and (2) Hafslund Nycomed shall
use its reasonable best efforts to keep available the services of such of the
current officers, significant employees and consultants of Hafslund Nycomed and
the Hafslund Nycomed Subsidiaries and to preserve the current relationships of
Hafslund Nycomed and the Hafslund Nycomed Subsidiaries with such of the
customers, suppliers and other persons with which Hafslund Nycomed or any
Hafslund Nycomed Subsidiary has significant business relations as Hafslund
Nycomed deems reasonably necessary in order to preserve substantially intact its
business organization. By way of amplification and not limitation, except as set
forth in Section 8.02 of the Hafslund Nycomed Disclosure Schedule or as
contemplated by any other provision of this Agreement, neither Hafslund Nycomed
nor any Hafslund Nycomed Subsidiary shall, between the date of this Agreement
and the Effective Time, directly or indirectly, do, or agree to do, any of the
following without the prior written consent of IVAX, which consent shall not be
unreasonably withheld or delayed:
(a) amend or otherwise change its Articles of Association or
equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, transfer, lease,
license, guarantee, encumber, or authorize the issuance, sale, pledge,
disposition, grant, transfer, lease, license, guarantee or encumbrance
of, (i) any shares of its capital stock of any class, or securities
convertible or exchangeable or exercisable for any shares of such
capital stock, or any options, warrants or other rights of any kind to
acquire any shares of such capital stock, or any other ownership
interest (including, without limitation, any phantom interest), of
Hafslund Nycomed or any Hafslund Nycomed Subsidiary
44
(except for the issuance of shares of Hafslund Nycomed Common Stock
issuable as consideration for acquisitions permitted by clause (i) of
paragraph (c) of this Section 8.02) or (ii) any property or assets of
Hafslund Nycomed or any Hafslund Nycomed Subsidiary, except in the
ordinary course of business and in a manner consistent with past
practice or in an aggregate amount not in excess of NOK 312,500,000;
(c) (i) acquire (including, without limitation, by merger,
consolidation, or acquisition of stock or assets) any interest in any
corporation, partnership, other business organization, person or any
division thereof or any assets, other than acquisitions of assets in
the ordinary course of business consistent with past practice, any
acquisitions for consideration, calculated as of the date of execution
of the definitive agreement for any such acquisition that is not, in
the aggregate for all such acquisitions, in excess of NOK 93,750,000;
(ii) incur any indebtedness for borrowed money or issue any debt
securities or assume, guarantee or endorse, or otherwise as an
accommodation become responsible for, the obligations of any person for
borrowed money, except for (A) indebtedness for borrowed money incurred
in the ordinary course of business and consistent with past practice or
incurred to refinance outstanding indebtedness for borrowed money
existing on the date of this Agreement, (B) other indebtedness for
borrowed money with a maturity of not more than one year in a principal
amount not, in the aggregate, in excess of NOK 312,500,000 or (C)
indebtedness for borrowed money incurred to finance acquisitions
permitted by clause (i) of this paragraph (c); (iii) terminate, cancel
or request any material change in, or agree to any material change in,
any Hafslund Nycomed Material Contract or enter into any contract or
agreement material to the business, results of operations or financial
condition of Hafslund Nycomed and the Hafslund Nycomed Subsidiaries
taken as a whole, in either case other than in the ordinary course of
business, consistent with past practice; (iv) make or authorize any
capital expenditure, other than capital expenditures in the ordinary
course of business consistent with past practice that are not, in the
aggregate, in excess of NOK 937,350,000 for Hafslund Nycomed and the
Hafslund Nycomed Subsidiaries taken as a whole; or (v) enter into or
amend any contract, agreement, commitment or arrangement that, if fully
performed, would not be permitted under this Section 8.02(c);
(d) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with
respect to any of its capital stock, other than that any Hafslund
Nycomed Subsidiary, other than Hafslund Invest AS, may pay dividends or
make other distributions to Hafslund Nycomed;
45
(e) reclassify, combine, split, subdivide or redeem, purchase
or otherwise acquire, directly or indirectly, any of its capital stock;
(f) increase the compensation payable or to become payable to
its officers or employees, except for increases in accordance with past
practices in salaries or wages of employees or officers of Hafslund
Nycomed or any Hafslund Nycomed Subsidiary, or, except in accordance
with past practices, grant any rights to severance or termination pay
to, or enter into any employment or severance agreement with, any
director, officer or other employee of Hafslund Nycomed or any Hafslund
Nycomed Subsidiary, or establish, adopt, enter into or amend any
collective bargaining, bonus, profit sharing, thrift, compensation,
stock option, restricted stock, pension, retirement, deferred
compensation, employment, termination, severance or other plan,
agreement, trust, fund, policy or arrangement for the benefit of any
director, officer or employee, except to the extent required by
applicable Law or the terms of a collective bargaining agreement;
(g) take any action with respect to accounting policies or
procedures, other than actions in the ordinary course of business and
consistent with past practice;
(h) make any tax election or settle or compromise any
material federal, state or local Norwegian, United States or any other
jurisdiction income tax liability other than in the ordinary course of
business consistent with past practice and those for which specific
reserves have been recorded on the consolidated balance sheet of
Hafslund Nycomed and the consolidated Hafslund Nycomed Subsidiaries
dated as of December 31, 1994 and only to the extent of such reserves;
or
(i) authorize or enter into any formal or informal agreement
or otherwise make any commitment to do any of the foregoing.
SECTION 8.03. COOPERATION; STEERING COMMITTEE. (a) Hafslund
Nycomed and IVAX shall coordinate and cooperate in connection with (i) the
preparation of the Registration Statement and the Proxy Statement, (ii)
determining whether any action by or in respect of, or filing with, any
Governmental Entity is required, or any actions, consents, approvals or waivers
are required to be obtained from parties to any IVAX Material Contracts or
Hafslund Nycomed Material Contracts, in connection with the consummation of the
Transactions, (iii) filing any listing application with any stock exchange, (iv)
obtaining any consents, amendments or waivers, or refinancing any debt of
Hafslund Nycomed or IVAX under any credit agreement or similar financing
arrangement and (v) seeking any such actions, consents, approvals or waivers or
making any such filings, furnishing information required in connection therewith
or with the Registration Statement and the Proxy Statement and timely seeking to
obtain any such actions, consents, approvals or waivers.
46
(b) Upon the execution and delivery of this Agreement,
Hafslund Nycomed and IVAX will establish a committee (the "STEERING COMMITTEE")
for the purpose of, to the extent permitted by applicable Laws, facilitating the
efficient combination of the respective businesses of Hafslund Nycomed and IVAX
as promptly as practicable following the Effective Time. The Steering Committee
will consist of a number of members mutually agreed to by Hafslund Nycomed and
IVAX, an equal number of whom shall be designated by Hafslund Nycomed and IVAX,
respectively. The Steering Committee will be dissolved as of the Effective Time.
SECTION 8.04. NOTICES OF CERTAIN EVENTS. Each of Hafslund
Nycomed and IVAX shall give prompt notice to the other of (i) any notice or
other communication from any person alleging that the consent of such person is
or may be required in connection with the Transactions, (ii) any notice or other
communication from any Governmental Entity in connection with the Transactions,
(iii) any actions, suits, claims, investigations or proceedings commenced or, to
its knowledge, threatened in writing against, relating to or involving or
otherwise affecting Hafslund Nycomed, IVAX or their subsidiaries that relate to
the consummation of the Transactions; (iv) the occurrence of a default or event
that, with notice or lapse of time or both, will become a default under any IVAX
Material Contract or Hafslund Nycomed Material Contract; and (v) any change that
is reasonably likely to result in an IVAX Material Adverse Effect or a Hafslund
Nycomed Material Adverse Effect or is likely to delay or impede the ability of
either IVAX or Hafslund Nycomed to consummate the Transactions or to fulfill its
obligations set forth in this Agreement.
SECTION 8.05. ACCESS TO INFORMATION; CONFIDENTIALITY. (a)
Except as required pursuant to any confidentiality agreement or similar
agreement or arrangement to which Hafslund Nycomed or IVAX or any of their
respective subsidiaries is a party or pursuant to applicable Law or the
regulations or requirements of any stock exchange or other regulatory
organization with whose rules the parties are required to comply, from the date
of this Agreement to the Effective Time, Hafslund Nycomed and IVAX shall (and
shall cause their respective subsidiaries to): (i) provide to the other (and its
officers, directors, employees, accountants, consultants, legal counsel, agents
and other representatives (collectively, "REPRESENTATIVES")) access at
reasonable times upon prior notice to the officers, employees, agents,
properties, offices and other facilities of the other and its subsidiaries and
to the books and records thereof and (ii) furnish promptly such information
concerning the business, properties, contracts, assets, liabilities, personnel
and other aspects of the other party and its subsidiaries as the other party or
its Representatives may reasonably request. No investigation conducted pursuant
to this Section 8.05 shall affect or be deemed to modify any representation or
warranty made in this Agreement.
(b) The parties shall comply with, and shall cause their
respective Representatives to comply with, all of their respective obligations
under the Confidentiality
47
Agreement dated July 11, 1995 (the "CONFIDENTIALITY AGREEMENT") between Hafslund
Nycomed and IVAX with respect to the information disclosed pursuant to this
Section 8.05.
SECTION 8.06. NO SOLICITATION OF TRANSACTIONS. (a) Each party
to this Agreement will not, directly or indirectly, and will instruct its
officers, directors, employees, subsidiaries, agents or advisors or other
representatives (including, without limitation, any investment banker, attorney
or accountant retained by it), not to, directly or indirectly, solicit, initiate
or knowingly encourage (including by way of furnishing nonpublic information),
or take any other action knowingly to facilitate, any inquiries or the making of
any proposal or offer (including, without limitation, any proposal or offer to
its stockholders) that constitutes, or may reasonably be expected to lead to,
any Competing Transaction (as defined below), or enter into or maintain or
continue discussions or negotiate with any person or entity in furtherance of
such inquiries or to obtain a Competing Transaction, or agree to or endorse any
Competing Transaction, or authorize or permit any of the officers, directors or
employees of such party or any of its subsidiaries, or any investment banker,
financial advisor, attorney, accountant or other representative retained by such
party or any of such party's subsidiaries, to take any such action; PROVIDED,
HOWEVER, that nothing contained in this Section 8.06 shall prohibit the Board of
Directors of Hafslund Nycomed or IVAX from furnishing information to, or
entering into discussions or negotiations with, any person in connection with an
unsolicited (from the date of this Agreement) proposal by such person to acquire
such party pursuant to a merger, consolidation, share exchange, tender offer,
exchange offer, business combination or other similar transaction or to acquire
all or substantially all of the assets of such party or any of its subsidiaries,
if, and only to the extent that, (i) such Board of Directors, after consultation
with outside legal counsel (which may include its regularly engaged outside
legal counsel), determines in good faith that such action is required for such
Board of Directors to comply with its duties to its stockholders imposed by
applicable Law and (ii) prior to furnishing such information to, or entering
into discussions or negotiations with, such person, such party uses its
reasonable best efforts to obtain from such person an executed confidentiality
agreement on terms no less favorable to the Company than those contained in the
Confidentiality Agreement. Each party to this Agreement shall notify the other
parties promptly if any proposal or offer, or any inquiry or contact with any
person with respect thereto, regarding a Competing Transaction is made. Each
party to this Agreement immediately shall cease and cause to be terminated all
existing discussions or negotiations with any parties conducted heretofore with
respect to a Competing Transaction. Each party to this Agreement agrees not to
release any third party from, or waive any provision of, any confidentiality or
standstill agreement to which it is a party.
(b) A "COMPETING TRANSACTION" means any of the following
involving Hafslund Nycomed or IVAX, as the case may be (other than the
Transactions contemplated by this Agreement): (i) a merger, consolidation, share
exchange, business combination or other similar transaction; (ii) any sale,
lease, exchange, transfer or other disposition of 25% or more of the assets of
such party and its subsidiaries, taken as a whole; (iii) a tender offer
48
or exchange offer for 25% or more of the outstanding voting securities of such
party; (iv) in the case of Hafslund Nycomed, any solicitation in opposition to
the Demerger and Share Exchange or (v) in the case of IVAX, any solicitation in
opposition to adoption by IVAX's stockholders of this Agreement and approval of
the Merger.
SECTION 8.07. POOLING. From and after the date of this
Agreement and until the Effective Time, none of the parties hereto, or any of
their respective subsidiaries or other affiliates, shall knowingly take any
action, or knowingly fail to take any action, other than actions which such
party is required to take or abstain from taking pursuant to this Agreement, the
Holdings Voting Agreement or the Nycomed Purchase and Sale Agreement, which
action or failure to act is reasonably likely to jeopardize the treatment of the
Transactions, including the Merger, the Share Exchange and the Demerger as a
"pooling of interests" for accounting purposes. Between the date of this
Agreement and the Effective Time, each of the parties hereto shall take all
reasonable actions necessary to cause the characterization of the Transactions,
including the Merger, the Share Exchange and the Demerger as a pooling of
interests for accounting purposes.
SECTION 8.08. LETTERS OF ACCOUNTANTS. Each of IVAX and
Hafslund Nycomed shall use its reasonable best efforts to cause to be delivered
to the other a "comfort" letter of Xxxxxx Xxxxxxxx LLP, IVAX's and Hafslund
Nycomed's independent public accountants, dated and delivered as of the time the
Registration Statement shall have become effective and as of the Effective Time,
and addressed to the other, in form and substance reasonably satisfactory to the
recipient thereof and reasonably customary in scope and substance for letters
delivered by independent public accountants in connection with transactions such
as those contemplated by this Agreement.
SECTION 8.09. PLAN OF REORGANIZATION. This Agreement is
intended to constitute a "plan of reorganization" within the meaning of Section
1.368-2(g) of the income tax regulations promulgated under the Code. From and
after the date of this Agreement and until the Effective Time, each party hereto
shall use its reasonable best efforts to cause the Merger to qualify, and will
not, without the prior written consent of the parties hereto, knowingly take any
actions or cause any actions to be taken which could prevent the Merger from
qualifying, as a reorganization under the provisions of Section 368(a) of the
Code. Following the Effective Time, and consistent with any such consent,
neither the Surviving Corporation, IVAX NYCOMED, Holdings, Hafslund Nycomed nor
any of their affiliates shall knowingly take any action or knowingly cause any
action to be taken which would cause the Merger to fail to qualify as a
reorganization under Section 368(a) of the Code.
SECTION 8.10. PERFORMANCE OF HOLDINGS, NYCOMED AND ACQUISITION
SUB OBLIGATIONS. (a) Prior to the Effective Time the parties to this Agreement
shall enter into an amendment (the "AMENDMENT") to this Agreement substantially
in the form of Exhibit 8.10(a) to this Agreement to include Holdings, Nycomed
and Acquisition Sub as parties to this
49
Agreement. Hafslund Nycomed shall cause Holdings and Nycomed, and IVAX NYCOMED
shall cause Acquisition Sub, to enter into the Amendment and become parties to
this Agreement.
(b) Prior to the Effective Time, Hafslund Nycomed shall cause
Holdings and Nycomed, and IVAX NYCOMED shall cause Acquisition Sub, to perform
all of their respective obligations required to be performed prior to the
Effective Time contained in this Agreement. Prior to the execution of the
Amendment, (A) each reference in this Agreement to any obligation of Holdings or
Nycomed shall be deemed to be an obligation of Hafslund Nycomed to cause
Holdings or Nycomed, as the case may be, to perform their respective obligations
hereunder, and (B) each reference in this Agreement to any obligation of
Acquisition Sub shall be deemed to be an obligation of IVAX NYCOMED to cause
Acquisition Sub to perform its obligations hereunder.
(c) Prior to the Effective Time, Hafslund Nycomed shall cause
Holdings to enter into an agreement (the "HOLDINGS VOTING AGREEMENT") with IVAX
NYCOMED, in the form of Exhibit 8.10(c) hereto, regarding, among other matters,
the voting by Holdings of shares of IVAX NYCOMED Common Stock held by Holdings.
SECTION 8.11. TRANSFER OF ASSETS OF THE MEDICAL BUSINESSES TO
NYCOMED; NON-ASSIGNABLE ASSETS. (a) In the event that, after the Effective Time,
any asset properly belonging to the Medical Businesses has not been transferred
to Nycomed by Hafslund Nycomed or any asset properly belonging to the Energy
Business has been transferred to Nycomed by Hafslund Nycomed, each of the
parties hereto shall use its best efforts to take, or cause to be taken, all
appropriate action, and do, or cause to be done, all things necessary, proper or
advisable under applicable Law or otherwise to promptly cause the transfer of
such asset to Nycomed or to Hafslund Nycomed, as the case may be.
(b) To the extent that any material license, permit,
contract, lease or other right or asset included in the Medical Businesses (a
"NON-ASSIGNABLE ASSET"), is not capable of being assigned, transferred,
subleased or sublicensed without the consent or waiver of the issuer thereof or
the other party thereto or any third party (including any Governmental Entity),
or if such assignment, transfer, sublease or sublicense would constitute a
breach thereof or a violation of any Law, then none of this Agreement or any
Nycomed Purchase and Sale Agreement shall constitute an assignment, transfer,
sublease or sublicense of such Non-Assignable Asset, or an attempted assignment,
transfer, sublease or sublicense of such Non-Assignable Asset. Each of the
parties hereto shall use its best efforts, and shall cooperate with each other,
to obtain all consents and waivers necessary to convey all of the Non-Assignable
Assets in accordance with this Agreement and the Nycomed Purchase and Sale
Agreements. To the extent the necessary consents and waivers, including, without
limitation, necessary consents of any Governmental Entity, cannot be obtained
prior to the Closing in respect of any Non-Assignable Asset, the parties hereto
shall use their best efforts
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to establish arrangements that are reasonable and lawful as to both the intended
transferor and the intended transferee of such Non-Assignable Asset, and which
provide to the person to which such Non-Assignable Asset is to be transferred
the full benefits (economic and otherwise) and burdens of such Non-Assignable
Asset for the remainder of its term or useful life without incurring any
obligations to the intended transferor.
SECTION 8.12. FURTHER ACTION; CONSENTS; FILINGS. Upon the
terms and subject to the conditions hereof, each of the parties hereto shall use
its reasonable best efforts to (i) take, or cause to be taken, all appropriate
action, and do, or cause to be done, all things necessary, proper or advisable
under applicable Law or otherwise to consummate and make effective the
Transactions, (ii) obtain from Governmental Entities any consents, licenses,
permits, waivers, approvals, authorizations or orders required to be obtained or
made by Hafslund Nycomed, IVAX or IVAX NYCOMED or any of their subsidiaries in
connection with the authorization, execution and delivery of this Agreement and
the consummation of the Transactions and (iii) make all necessary filings, and
thereafter make any other required or appropriate submissions, with respect to
this Agreement and the Transactions required under (A) the rules and regulations
of the OSE or the European Exchanges, (B) the Securities Act, the Exchange Act
and any other applicable federal or state securities Laws, (C) the HSR Act, (D)
applicable European competition laws, (E) the Norwegian Business Acquisition Act
of 1994 and (F) any other applicable Law. The parties hereto shall cooperate and
consult with each other in connection with the making of all such filings,
including by providing copies of all such documents to the nonfiling party and
its advisors prior to filing, and none of the parties will file any such
document if any of the other parties shall have reasonably objected to the
filing of such document. No party to this Agreement shall consent to any
voluntary extension of any statutory deadline or waiting period or to any
voluntary delay of the consummation of the Transactions at the behest of any
Governmental Entity without the consent and agreement of the other parties to
this Agreement, which consent shall not be unreasonably withheld or delayed.
SECTION 8.13. APPROVAL OF CORPORATE ASSEMBLY. Within ten
calendar days of the date of this Agreement, Hafslund Nycomed shall submit this
Agreement to a meeting of its corporate assembly for approval.
ARTICLE IX
ADDITIONAL AGREEMENTS
SECTION 9.01. REGISTRATION STATEMENT; PROXY STATEMENT. (a) As
promptly as practicable after the execution of this Agreement, Hafslund Nycomed
and IVAX shall jointly prepare and IVAX NYCOMED shall file with the SEC and the
OSE a document or documents that will constitute (i) the proxy statement of IVAX
relating to the special meeting
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of IVAX's stockholders (the "IVAX STOCKHOLDERS' MEETING") to be held to consider
approval of this Agreement and the Merger, (ii) the prospectuses forming part of
the registration statement on Form S-4 of IVAX NYCOMED and Form F-4 of Holdings
(together with all amendments thereto, the "REGISTRATION STATEMENT"), in
connection with the registration under the Securities Act of (A) the IVAX
NYCOMED Common Stock to be issued to the stockholders of IVAX pursuant to the
Merger and to Holdings pursuant to the Share Exchange Share Issuance and (B) the
Holdings Common Stock to be issued to the Hafslund Nycomed stockholders pursuant
to the Demerger, and (iii) the demerger prospectus with respect to the Demerger
relating to the Hafslund Nycomed Stockholders' Meeting to consider approval of
the Demerger (such document, together with any amendments thereof or supplements
thereto, the "PROXY STATEMENT"). Copies of the Proxy Statement shall be provided
to the NYSE, the AMEX, the OSE and the European Exchanges in accordance with the
rules of such exchanges. Each of the parties hereto shall use its reasonable
best efforts to cause the Registration Statement to become effective as promptly
as practicable, and, prior to the effective date of the Registration Statement,
IVAX NYCOMED and Holdings shall take all or any action required under any
applicable Laws in connection with the issuance of shares of common stock
pursuant to the Merger, the Share Exchange Share Issuance and the Demerger.
Hafslund Nycomed or IVAX, as the case may be, shall furnish all information
concerning Hafslund Nycomed or IVAX as the other party may reasonably request in
connection with such actions and the preparation of the Registration Statement
and Proxy Statement. As promptly as practicable after the effective date of the
Registration Statement, the Proxy Statement will be mailed to the stockholders
of Hafslund Nycomed and IVAX, or, in the case of Hafslund Nycomed, Norwegian or
other required language translations or summaries thereof, as may be necessary
or appropriate, will be provided to its stockholders. Each of the parties hereto
shall cause the Proxy Statement to comply as to form and substance in all
material respects with the applicable requirements of (i) the Exchange Act, (ii)
the NYSE, the AMEX, the OSE and the European Exchanges, (iii) the Securities
Act, (iv) Norwegian Law and (v) the FBCA.
(b) (i) The Proxy Statement shall include the recommendation
of the Board of Directors of IVAX to the stockholders of IVAX that they vote in
favor of approval of this Agreement and the Share Exchange Share Issuance;
PROVIDED, HOWEVER, that the Board of Directors of IVAX may, at any time prior to
the Effective Time, withdraw, modify or change any such recommendation to the
extent that the Board of Directors of IVAX determines in good faith, after
consultation with outside legal counsel (who may be IVAX's regularly engaged
outside legal counsel), that such withdrawal, modification or change of its
recommendation is consistent with the exercise of its duties to IVAX's
stockholders under applicable Law. In addition, the Proxy Statement will include
the opinion of Xxxxxx Read referred to in Section 5.16.
(ii) The Proxy Statement shall include the recommendation of
the Board of Directors of Hafslund Nycomed to the stockholders of Hafslund
Nycomed that they approve
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the Demerger and the Share Exchange; PROVIDED, HOWEVER, that the Board of
Directors of Hafslund Nycomed may, at any time prior to the Effective Time,
withdraw, modify or change any such recommendation to the extent that the Board
of Directors of Hafslund Nycomed determines in good faith after consultation
with outside legal counsel (who may be Hafslund Nycomed's regularly engaged
outside legal counsel) that such withdrawal, modification or change of its
recommendation is consistent with the exercise of its duties to Hafslund
Nycomed's stockholders under applicable Law. In addition, the Proxy Statement
will include the opinion of Xxxxxxx Xxxxx referred to in Section 6.16.
(c) No amendment or supplement to the Proxy Statement or the
Registration Statement will be made without the approval of Hafslund Nycomed and
IVAX, which approval shall not be unreasonably withheld or delayed. Each of the
parties hereto will advise the other parties, promptly after it receives notice
thereof, of the time when the Registration Statement has become effective or any
supplement or amendment has been filed, of the issuance of any stop order, of
the suspension of the qualification of IVAX NYCOMED Common Stock or Holdings
Common Stock issuable in connection with the Merger, the Share Exchange Share
Issuance and the Demerger for offering or sale in any jurisdiction, or of any
request by the SEC, the NYSE, the AMEX, the OSE or the European Exchanges for
amendment of the Proxy Statement or the Registration Statement or comments
thereon and responses thereto or requests by the SEC for additional information.
(d) The information supplied by Hafslund Nycomed for
inclusion in the Registration Statement and the Proxy Statement shall not, at
(i) the time the Registration Statement is filed with the SEC, (ii) if
different, the time the Registration Statement is declared effective, (iii) the
time the Proxy Statement (or any amendment thereof or supplement thereto) is
first mailed to the stockholders of Hafslund Nycomed and IVAX, (iv) the time of
the IVAX Stockholders' Meeting, (v) the time of the Hafslund Nycomed
Stockholders' Meeting and (vi) the Effective Time, contain any untrue statement
of a material fact or fail to state any 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. If, at any time prior
to the Effective Time, any event or circumstance relating to Hafslund Nycomed or
any Hafslund Nycomed Subsidiary, or their respective officers or directors,
should be discovered by Hafslund Nycomed that should be set forth in an
amendment or a supplement to the Registration Statement or Proxy Statement,
Hafslund Nycomed shall promptly inform IVAX. All documents that Hafslund Nycomed
is responsible for filing in connection with the Transactions will comply as to
form and substance in all material aspects with the applicable requirements of
the OSE, the AMEX, the European Exchanges, the FBCA, the Securities Act and the
Exchange Act.
(e) The information supplied by IVAX for inclusion in the
Registration Statement and the Proxy Statement shall not, at (i) the time the
Registration Statement is filed with the SEC, (ii) if different, the time the
Registration Statement is declared effective,
53
(iii) the time the Proxy Statement (or any amendment thereof or supplement
thereto) is first mailed to the stockholders of IVAX and Hafslund Nycomed, (iv)
the time of the IVAX Stockholders' Meeting, (v) the time of the Hafslund Nycomed
Stockholders' Meeting and (vi) the Effective Time, contain any untrue statement
of a material fact or fail to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading. If
at any time prior to the Effective Time any event or circumstance relating to
IVAX or any IVAX Subsidiary, or their respective officers or directors, should
be discovered by IVAX that should be set forth in an amendment or a supplement
to the Registration Statement or Proxy Statement, IVAX shall promptly inform
Hafslund Nycomed. All documents that IVAX is responsible for filing with the SEC
in connection with the Transactions will comply as to form and substance in all
material respects with the applicable requirements of the OSE, the AMEX, the
European Exchanges, the FBCA, the Securities Act and the Exchange Act.
SECTION 9.02. STOCKHOLDERS' MEETINGS. IVAX shall call and hold
the IVAX Stockholders' Meeting and Hafslund Nycomed shall call the Hafslund
Nycomed Stockholders' Meeting (collectively, the "STOCKHOLDERS' MEETINGS") as
promptly as practicable for the purpose of voting upon, in the case of IVAX, the
approval of this Agreement and the Merger and, in the case of Hafslund Nycomed,
the approval of the Demerger and the Share Exchange, and Hafslund Nycomed and
IVAX shall use their reasonable best efforts to hold the Stockholders' Meetings
on the same day and as soon as practicable after the date on which the
Registration Statement becomes effective; PROVIDED, HOWEVER, that neither IVAX
nor Hafslund Nycomed, as the case may be, shall be required to hold its
respective Stockholders' Meeting if its Board of Directors determines in good
faith after consultation with outside legal counsel (who may be such party's
regularly engaged outside legal counsel) that doing so would not be consistent
with such Board of Directors' duties to its stockholders under applicable Law.
IVAX shall use its reasonable best efforts to solicit from its stockholders
proxies in favor of the approval of this Agreement and the Merger and shall take
all other action necessary or advisable to secure the vote or consent of
stockholders required by the FBCA or applicable stock exchange requirement to
obtain such approval, except to the extent that the Board of Directors of IVAX
determines in good faith after consultation with outside legal counsel (who may
be IVAX's regularly engaged outside legal counsel) that doing so would not be
consistent with its duties to IVAX's stockholders under applicable Law. Hafslund
Nycomed shall use its reasonable best efforts to solicit from its stockholders
proxies in favor of the approval of this Agreement, the Share Exchange and the
Demerger, and shall take all other action necessary or advisable to secure the
vote or consent of stockholders required by Norwegian Law to obtain such
approvals, except to the extent that the Board of Directors of Hafslund Nycomed
determines in good faith after consultation with outside legal counsel (who may
be Hafslund Nycomed's regularly engaged outside legal counsel) that doing so
would not be consistent with its duties to Hafslund Nycomed's stockholders under
applicable Law. As promptly as practicable after the date of this Agreement,
Hafslund Nycomed shall call and hold a "preliminary" meeting of its
54
stockholders for the purpose of obtaining "preliminary" approval of the Demerger
(which preliminary approval shall be subject to confirmation at the
Stockholders' Meeting of Hafslund Nycomed referred to above). Hafslund Nycomed
shall use its reasonable best efforts to solicit from its stockholders proxies
in favor of the "preliminary" approval of the Demerger.
SECTION 9.03. EMPLOYEE BENEFITS MATTERS. IVAX shall amend the
IVAX Stock Option Plans (i) to permit the assumption by IVAX NYCOMED of the IVAX
Options at the Effective Time on the terms and conditions set forth in Section
2.09 of this Agreement and (ii) such that the IVAX Options issued pursuant to
IVAX's 1994 Stock Option Plan do not terminate upon the consummation of the
Transactions. IVAX NYCOMED shall adopt the 1994 Stock Option Plan and shall
amend such plan to provide for the issuance of 10 million shares of IVAX NYCOMED
Common Stock by the Compensation and Stock Option Committee of IVAX NYCOMED.
Prior to the Effective Time, each of IVAX and Hafslund Nycomed shall, as
shareholders of IVAX NYCOMED, approve the adoption and amendment of such plan by
IVAX NYCOMED.
SECTION 9.04. DIRECTORS' AND OFFICERS' INDEMNIFICATION AND
INSURANCE. (a) The By-Laws of the Surviving Corporation shall contain the
provisions that are set forth, as of the date of this Agreement, in the By-Laws
of IVAX pertaining to the indemnification of directors, officers, employees,
fiduciaries and agents, which provisions shall not be amended, repealed or
otherwise modified for a period of six years from the Effective Time in any
manner that would affect adversely the rights thereunder of individuals who at
or at any time prior to the Effective Time were directors, officers, employees,
fiduciaries or agents of IVAX. IVAX NYCOMED shall guaranty the obligations of
the Surviving Corporation under these provisions of the By-Laws.
(b) For a period of six years after the Effective Time, IVAX
NYCOMED shall cause to be maintained in effect the current directors' and
officers' liability insurance policies maintained by IVAX and Hafslund Nycomed
(provided that IVAX NYCOMED may, and in the event of the cancellation or
termination of such policies IVAX NYCOMED shall, substitute therefor policies
reasonably satisfactory to the indemnified parties of at least the same coverage
containing terms and conditions which are no less advantageous) with respect to
claims arising from facts or events that occurred prior to the Effective Time.
(c) This Section 9.04 is intended to be for the benefit of,
and shall be enforceable by, the indemnified parties, their heirs and personal
representatives and shall be binding on IVAX NYCOMED and the Surviving
Corporation and their respective successors and assigns.
(d) Notwithstanding anything to the contrary contained
herein, the Surviving Company shall, and IVAX NYCOMED shall cause the Surviving
Company to,
55
assume and perform all obligations of IVAX arising under each Indemnification
Agreement entered into, prior to the date hereof, between IVAX and certain
officers and directors of IVAX.
(e) If IVAX NYCOMED or any of its successors or assigns (i)
shall consolidate with or merge into any other corporation or entity and shall
not be the continuing or surviving corporation or entity of such consolidation
or merger or (ii) shall transfer all or substantially all of its properties and
assets to any individual, corporation or other entity, then and in each such
case, proper provisions shall be made so that the successors and assigns of IVAX
NYCOMED shall assume all of the obligations set forth in this Section 9.04.
SECTION 9.05. POOLING AFFILIATES. (a) No later than 60 days
from the date of this Agreement, IVAX shall deliver to Hafslund Nycomed a list
of names and addresses of those persons who were, in IVAX's reasonable judgment,
on such date, affiliates within the meaning of Rule 145 of the rules and
regulations promulgated under the Securities Act or applicable SEC accounting
releases with respect to pooling-of-interests accounting treatment (each such
person being a "POOLING AFFILIATE") of IVAX. IVAX shall provide Hafslund Nycomed
with such information and documents as Hafslund Nycomed shall reasonably request
for purposes of reviewing such list. IVAX shall use its reasonable best efforts
to deliver or cause to be delivered to Hafslund Nycomed, prior to the Effective
Time, an affiliate letter in the form attached hereto as Exhibit 9.05(a),
executed by each of the Pooling Affiliates of IVAX identified in the foregoing
list and of any person who shall have become a Pooling Affiliate of IVAX
subsequent to the delivery of such list.
(b) No later than 60 days from the date of this Agreement,
Hafslund Nycomed shall deliver to IVAX a list of names and addresses of those
persons who were, in Hafslund Nycomed's reasonable judgment, on such date,
Pooling Affiliates of Hafslund Nycomed. Hafslund Nycomed shall provide IVAX such
information and documents as IVAX shall reasonably request for purposes of
reviewing such list. Hafslund Nycomed shall use its reasonable best efforts to
deliver or cause to be delivered to IVAX, prior to the Effective Time, an
affiliate letter in the form attached hereto as Exhibit 9.05(b), executed by
each of the Pooling Affiliates of Hafslund Nycomed identified in the foregoing
list and of any person who shall have become a Pooling Affiliate of Hafslund
Nycomed subsequent to the delivery of such list.
(c) If any Pooling Affiliate refuses to provide an affiliate
letter, IVAX or Hafslund Nycomed, as the case may be, shall in lieu of receipt
of such letter be entitled to place appropriate legends on the certificates
evidencing the IVAX NYCOMED Common Stock or Holdings Common Stock, as
applicable, to be received by such Pooling Affiliates pursuant to the terms of
this Agreement, and to issue appropriate stock transfer instructions to the
transfer agent for the IVAX NYCOMED Common Stock or Holdings Common Stock,
56
as applicable, to the effect that the shares of the IVAX NYCOMED Common Stock or
Holdings Common Stock received or to be received by such Pooling Affiliate
pursuant to the terms of this Agreement, and to issue appropriate stock transfer
instructions to the transfer agent for such common stock, to the effect that the
shares of the common stock received or to be received by such affiliate pursuant
to the terms of this Agreement may only be sold, transferred or otherwise
conveyed, and the holder thereof may only reduce his interest in or risks
relating to such shares of common stock, pursuant to an effective registration
statement under the Securities Act or in accordance with the provisions of
Paragraph (d) of Rule 145 promulgated under the Securities Act or pursuant to an
exemption provided from registration under the Securities Act and, in any event,
only after financial results covering at least 30 days of operations of IVAX
NYCOMED after the Effective Date shall have been published. The foregoing
restrictions on the transferability of common stock shall apply to all purported
sales, transfers and other conveyances of the shares of common stock received or
to be received by such affiliate pursuant to this Agreement and to all purported
reductions in the interest in or risks relating to such shares of the IVAX
NYCOMED or Holdings Common Stock whether or not such Pooling Affiliate has
exchanged the certificates previously evidencing such Pooling Affiliate's shares
of such common stock for certificates evidencing the shares of common stock into
which such shares of common stock were converted. The Proxy Statement and the
Registration Statement shall disclose the foregoing provisions in a reasonably
prominent manner.
SECTION 9.06. PUBLIC ANNOUNCEMENTS. The initial press release
concerning the Transactions shall be a joint press release and, thereafter,
Hafslund Nycomed and IVAX shall consult with each other before issuing any press
release or otherwise making any public statements with respect to this Agreement
or any Transaction and shall not issue any such press release or make any such
public statement without the prior written approval of the other party, except
to the extent required by applicable Law or the requirements of the OSE, the
NYSE, the AMEX or the European Exchanges, in which case the issuing party shall
use its reasonable best efforts to consult with the other party before issuing
any such release or making any such public statement.
SECTION 9.07. STOCK EXCHANGE LISTINGS. (a) Hafslund Nycomed
shall use its reasonable best efforts to cause the shares of Holdings Common
Stock to be issued in the Demerger to be approved for listing on the OSE and the
Copenhagen Stock Exchange, subject to official notice of issuance, prior to the
Effective Time. Hafslund Nycomed and IVAX shall use their reasonable best
efforts to cause the shares of IVAX NYCOMED Common Stock to be issued in the
Merger and the Share Exchange to be approved for listing on the AMEX and the
London stock exchange and such other exchanges as it may determine, subject to
official notice of issuance, prior to the Effective Time.
(b) Notwithstanding anything in this Agreement, neither
Hafslund Nycomed nor any other party hereto shall have any obligation to
maintain any listing of the
57
shares of Holdings Common Stock after such time as the number of shares of
Holdings Common Stock outstanding that are held by shareholders of Holdings
other than IVAX NYCOMED falls below 10% of the total number of shares of
Holdings Common Stock then outstanding.
SECTION 9.08. AMENDMENT OF NYCOMED PURCHASE AND SALE
AGREEMENT. As promptly as practicable after the date hereof, Hafslund Nycomed
and IVAX shall cooperate in the preparation of an unaudited balance sheet as of
September 30, 1995 for the Energy Business and an unaudited balance sheet as of
September 30, 1995 for the Medical Businesses. After such preparation, Hafslund
Nycomed shall continue to keep financial records consistent with those used to
prepare such balance sheets. The parties hereto shall, promptly after such
preparation, consult with Xxxxxx Xxxxxxxx to determine whether, based on, among
other things, the presentation of the assets, liabilities and equities reflected
on such balance sheets, the Nycomed Purchase and Sale Agreement requires
modification in order to preserve the ability of the parties to account for the
Transactions as a "pooling of interests" for financial accounting purposes. To
facilitate Xxxxxx Xxxxxxxx'x analysis, Hafslund Nycomed shall grant to Xxxxxx
Xxxxxxxx such access to the books and records of Hafslund Nycomed as Xxxxxx
Xxxxxxxx may reasonably request. If the Nycomed Purchase and Sale Agreement is
inconsistent with "pooling of interests" accounting treatment, the parties
hereto agree to cooperate and negotiate in good faith with a view to reaching a
mutually satisfactory solution to enable the parties to account for the
Transactions as a "pooling of interests" for financial accounting purposes.
SECTION 9.09. LEASE OF HAFSLUND MANOR. Prior to the Closing
Date, Hafslund Nycomed and IVAX NYCOMED shall enter into a lease agreement for
the lease by IVAX NYCOMED from Hafslund Nycomed, for a period of fifteen years,
of Hafslund Manor, such lease agreement to contain customary terms mutually
agreeable to Hafslund Nycomed and IVAX NYCOMED.
ARTICLE X
CONDITIONS TO THE TRANSACTIONS
SECTION 10.01. CONDITIONS TO THE OBLIGATIONS OF EACH PARTY TO
CONSUMMATE THE TRANSACTIONS. The obligations of the parties hereto to consummate
the Transactions, or to permit the consummation of the Transactions, are subject
to the satisfaction or, if permitted by applicable Law, waiver of the following
conditions:
(a) the Registration Statement shall have been declared
effective by the SEC under the Securities Act and no stop order
suspending the effectiveness of the
58
Registration Statement shall have been issued by the SEC and no
proceeding for that purpose shall have been initiated by the SEC;
(b) the Proxy Statement shall have been approved by the OSE
and the European Exchanges and no stop order suspending the
effectiveness of the Proxy Statement shall have been issued by the OSE
or any of the European Exchanges and no proceeding for that purpose
shall have been initiated by the OSE or any of the European Exchanges;
(c) each of this Agreement and the Merger shall have been
duly approved by the requisite vote of stockholders of IVAX;
(d) each of the Demerger and the Share Exchange shall have
been duly approved by the requisite vote of the stockholders of
Hafslund Nycomed;
(e) no court of competent jurisdiction shall have issued or
entered any order, writ, injunction or decree, and no other
Governmental Entity shall have issued any order, which is then in
effect and has the effect of making any of the Transactions illegal or
otherwise prohibiting their consummation;
(f) any waiting period (and any extension thereof) applicable
to the consummation of the Transactions under the HSR Act, any other
applicable competition, merger control or similar Law, including,
without limitation Council Regulation (EEC) No. 4064/89 and the
Norwegian Business Acquisition Act of 1994, shall have expired or been
terminated;
(g) all consents, approvals and authorizations legally
required to be obtained to consummate the Transactions shall have been
obtained from all Governmental Entities, except where the failure to
obtain any such consent, approval or authorization would not result in
a change in or have an effect on the business of IVAX or Hafslund
Nycomed that is, or is reasonably likely to be, materially adverse to
the business, assets (including intangible assets), liabilities
(contingent or otherwise), condition (financial or otherwise) or
results of operations of IVAX NYCOMED and its respective subsidiaries,
taken as a whole, assuming for purposes of this clause (g) that the
Transactions have been consummated;
(h) Xxxxxx Xxxxxxxx LLP, as the independent public accountant
of each of IVAX and Hafslund Nycomed, shall have issued an opinion,
addressed to Hafslund Nycomed and IVAX, that the Transactions,
including each of the Merger, the Share Exchange and the Demerger will
qualify for "pooling of interests" accounting treatment under
applicable U.S. and Norwegian accounting rules, including, without
limitation, applicable SEC accounting standards;
59
(i) (A) Shearman & Sterling shall have issued its opinion,
addressed to IVAX, IVAX NYCOMED, Holdings and Hafslund Nycomed and
reasonably satisfactory to them, based upon customary representations
of IVAX and IVAX NYCOMED and, if required, Holdings and Hafslund
Nycomed, and customary assumptions, to the effect that the Merger will
be treated for federal income tax purposes as a reorganization
qualifying under the provisions of Section 368(a) of the Code and that
each of IVAX, IVAX NYCOMED and Acquisition Sub will be a party to the
reorganization within the meaning of Section 368(b) of the Code, such
opinion to be dated on or about the date that is two business days
prior to the date the Proxy Statement is first mailed to stockholders
of IVAX and Hafslund Nycomed, which opinion shall not have been
withdrawn or modified in any material respect;
(B) Wiersholm, Mellbye & Bech shall have issued its opinion,
addressed to IVAX, IVAX NYCOMED, Holdings and Hafslund Nycomed, based
upon customary representations of Hafslund Nycomed and, if required,
IVAX NYCOMED and IVAX, and customary assumptions to the effect that,
under the income tax laws of Norway, the Hafslund Nycomed stockholders
will not recognize taxable income or gain as a result of the Demerger,
such opinion to be dated on or about the date two business days prior
to the date that the Proxy Statement is first mailed to stockholders of
IVAX and Hafslund Nycomed, which opinion shall not have been withdrawn
or modified in any material respect;
(C) Xxxxxx, Xxxxx & Xxxxxxx LLP shall have issued its
opinion, addressed to IVAX, IVAX NYCOMED, Holdings, Hafslund Nycomed
and Nycomed and reasonably satisfactory to them, based upon customary
representations of IVAX, IVAX NYCOMED, Holdings, Hafslund Nycomed and
Nycomed, and customary assumptions, to the effect that the transactions
through which Nycomed acquires the Medical Businesses from Hafslund
Nycomed, the Share Exchange and the Demerger will not trigger income or
gain subject to United States federal income tax for which IVAX
NYCOMED, Nycomed or any of their subsidiaries (including any
subsidiaries conducting the Medical Businesses) would be liable, such
opinion to be dated on or about the date that is two business days
prior to the date the Proxy Statement is first mailed to stockholders
of IVAX and Hafslund Nycomed, which opinion shall not have been
withdrawn or modified in any material respect;
(D) Wiersholm, Mellbye & Bech shall have issued its opinion,
addressed to IVAX, IVAX NYCOMED, Holdings, Hafslund Nycomed and Nycomed
and reasonably satisfactory to them, based upon customary
representations of IVAX, IVAX NYCOMED, Holdings, Hafslund Nycomed and
Nycomed, and customary assumptions, to the effect that under the laws
of Norway, the transactions through which Nycomed acquires the Medical
Businesses from Hafslund Nycomed, the Share Exchange and the Demerger
will not give rise to any material income tax liability
60
imposed by the Kingdom of Norway (or any political subdivision thereof)
for which IVAX NYCOMED, Nycomed or any of their subsidiaries (including
any subsidiaries conducting the Medical Businesses) or any shareholder
thereof would be liable, such opinion to be dated on or about the date
that is two business days prior to the date the Proxy Statement is
first mailed to stockholders of IVAX and Hafslund Nycomed, which
opinion shall not have been withdrawn or modified in any material
respect;
(j) the shares of IVAX NYCOMED Common Stock to be issued
pursuant to the Merger and the Share Exchange shall have been
authorized for listing on the AMEX and the London stock exchange
subject to official notice of issuance;
(k) the shares of Holdings Common Stock to be issued pursuant
to the Demerger shall have been authorized for listing on the OSE
subject to official notice of listing;
(l) the notice period applicable to the Demerger Filing shall
have expired;
(m) the Norwegian government or its Ministry of Finance shall
have issued an exemption letter to the effect that the Share Exchange
qualifies for tax free treatment for Hafslund Nycomed, Holdings and
Hafslund Nycomed stockholders under Norwegian tax laws (subject to
terms and conditions set forth in such exemption letter reasonably
satisfactory to IVAX and Hafslund Nycomed) and such letter shall not
have been modified or withdrawn; and
(n) the weighted average rate of interest payable on all debt
for borrowed money of each of the Energy Business and the Medical
Business after the refinancing thereof pursuant to the Demerger Plan
shall not exceed the LIBOR Rate by more than 5.00% per annum or another
appropriate base rate together with a comparable interest rate spread.
The "LIBOR RATE" means the interest rate per annum at which deposits in
U.S. dollars are offered by the principal office of Citibank in London,
England to prime banks in the London interbank market at 11:00 A.M.
(London Time) two business days prior to the Effective Time in an
amount substantially equal to the total amount of such refinanced debt
and for a period equal to six months.
SECTION 10.02. CONDITIONS TO THE OBLIGATIONS OF IVAX. The
obligations of IVAX to consummate the Transactions, or to permit the
consummation of the Transactions, are subject to the satisfaction or, if
permitted by applicable Law, waiver of the following further conditions:
(a) each of the representations and warranties of each of
Hafslund Nycomed, Holdings and Nycomed (together, the "HAFSLUND NYCOMED
PARTIES") contained in this Agreement that is qualified by materiality
shall be true and correct on and as of the Effective Time as if made on
and as of such date (other than
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representations and warranties which address matters only as of a
certain date which shall be true and correct as of such certain date)
and each of the representations and warranties that is not so qualified
shall be true and correct in all material respects on and as of the
Effective Time as if made on and as of such date (other than
representations and warranties which address matters only as of a
certain date which shall be true and correct in all material respects
as of such certain date), in each case except as contemplated or
permitted by this Agreement, and IVAX shall have received a certificate
of the Chairman, President or Chief Financial Officer of each of the
Hafslund Nycomed Parties to such effect;
(b) each of the Hafslund Nycomed Parties shall have performed
or complied in all material respects with all material agreements and
covenants required by this Agreement to be performed or complied with
by it on or prior to the Effective Time and IVAX shall have received a
certificate of the Chairman, President or Chief Financial Officer of
Hafslund Nycomed to that effect;
(c) no event or events shall have occurred, or be reasonably
likely to occur, which, individually or in the aggregate, have, or
could have, a Hafslund Nycomed Material Adverse Effect; and
(d) IVAX NYCOMED and Holdings shall have entered into the
Holdings Voting Agreement.
SECTION 10.03. CONDITIONS TO THE OBLIGATIONS OF HAFSLUND
NYCOMED, HOLDINGS AND NYCOMED. The obligations of Hafslund Nycomed, Holdings and
Nycomed to consummate the Transactions, or to permit the consummation of the
Transactions, are subject to the satisfaction or, if permitted by applicable
Law, waiver of the following further conditions:
(a) each of the representations and warranties of IVAX
contained in this Agreement that is qualified by materiality shall be
true and correct on and as of the Effective Time as if made on and as
of such date (other than representations and warranties which address
matters only as of a certain date which shall be true and correct as of
such certain date) and each of the representations and warranties that
is not so qualified shall be true and correct in all material respects
on and as of the Effective Time as if made on and as of such date
(other than representations and warranties which address matters only
as of a certain date which shall be true and correct in all material
respects as of such certain date), in each case except as contemplated
or permitted by this Agreement, and Hafslund Nycomed shall have
received a certificate of the Chairman, President or Chief Financial
Officer of IVAX to such effect;
62
(b) IVAX shall have performed or complied in all material
respects with all material agreements and covenants required by this
Agreement to be performed or complied with by it on or prior to the
Effective Time and Hafslund Nycomed shall have received a certificate
of the Chairman, President or Chief Financial Officer of IVAX to that
effect;
(c) No event or events shall have occurred, or be reasonably
likely to occur, which, individually or in the aggregate, have, or
could have, an IVAX Material Adverse Effect; and
(d) IVAX NYCOMED shall have entered into the Holdings Voting
Agreement.
SECTION 10.04. CONDITIONS TO THE OBLIGATIONS OF IVAX NYCOMED
AND ACQUISITION SUB. The obligations of IVAX NYCOMED and Acquisition Sub to
consummate the Transactions, or to permit the consummation of the Transactions,
are subject to the satisfaction or, if permitted by applicable Law, waiver of
the following further conditions:
(a) the conditions set forth in Sections 10.01, 10.02(a),
10.02(b), 10.02(c), 10.03(a), 10.03(b) and 10.03(c) shall have been
satisfied or, if permitted by applicable Law, waived; and
(b) Holdings shall have entered into the Holdings Voting
Agreement.
ARTICLE XI
TERMINATION, AMENDMENT AND WAIVER
SECTION 11.01. TERMINATION. This Agreement may be terminated
and the Transactions may be abandoned at any time prior to the Effective Time,
notwithstanding any requisite adoption and approval of this Agreement, as
follows:
(a) by mutual written consent duly authorized by the Boards
of Directors of each of Hafslund Nycomed and IVAX;
(b) by either Hafslund Nycomed or IVAX, if the Effective Time
shall not have occurred on or before June 30, 1996; PROVIDED, HOWEVER,
that the right to terminate this Agreement under this Section 11.01(b)
shall not be available to any party whose failure to fulfill any
obligation under this Agreement shall have caused, or resulted in, the
failure of the Effective Time to occur on or before such date;
63
(c) by either Hafslund Nycomed or IVAX, if any order, writ,
injunction or decree preventing the consummation of the Merger, the
Share Exchange or the Demerger shall have been entered by any court of
competent jurisdiction and shall have become final and nonappealable;
(d) by Hafslund Nycomed, if (i) the Board of Directors of
IVAX withdraws, modifies or changes its recommendation of this
Agreement and the Merger in a manner adverse to Hafslund Nycomed or its
stockholders or shall have resolved to do so, (ii) the Board of
Directors of IVAX shall have recommended to the stockholders of IVAX a
Competing Transaction or shall have resolved to do so, or (iii) a
tender offer or exchange offer for 25% or more of the outstanding
shares of capital stock of IVAX is commenced, and the Board of
Directors of IVAX fails to recommend against acceptance of such tender
offer or exchange offer by its stockholders (including by taking no
position with respect to the acceptance of such tender offer or
exchange offer by its stockholders);
(e) by IVAX, if (i) the Board of Directors of Hafslund
Nycomed withdraws, modifies or changes its recommendation of the Share
Exchange and the Demerger in a manner adverse to IVAX or its
stockholders or shall have resolved to do so, (ii) the Board of
Directors of Hafslund Nycomed shall have recommended to the
stockholders of Hafslund Nycomed a Competing Transaction or shall have
resolved to do so, or (iii) a tender offer or exchange offer for 25% or
more of the outstanding shares of capital stock of Hafslund Nycomed is
commenced, and the Board of Directors of Hafslund Nycomed fails to
recommend against acceptance of such tender offer or exchange offer by
its stockholders (including by taking no position with respect to the
acceptance of such tender offer or exchange offer by its stockholders);
(f) by Hafslund Nycomed or IVAX, (i) if this Agreement and
the Merger shall fail to receive the requisite vote for approval at the
IVAX Stockholders' Meeting or any adjournment or postponement thereof,
or (ii) if the Share Exchange and the Demerger shall fail to receive
the requisite votes for approval at the Hafslund Nycomed Stockholders'
Meeting;
(g) by Hafslund Nycomed, upon a breach of any material
representation, warranty, covenant or agreement on the part of IVAX set
forth in this Agreement, or if any representation or warranty of any
IVAX Party shall have become untrue, in either case such that the
conditions set forth in Section 10.03 would not be satisfied
("TERMINATING IVAX BREACH"); PROVIDED, HOWEVER, that, if such
Terminating IVAX Breach is curable by such IVAX Party through the
exercise of its best reasonable efforts and for so long as such IVAX
Party continues to exercise such best reasonable efforts, Hafslund
Nycomed may not terminate this Agreement under this
64
Section 11.01(g); and PROVIDED FURTHER that the preceding proviso shall
not in any event be deemed to extend the date set forth in paragraph
(b) of this Section 11.01;
(h) by IVAX, upon breach of any material representation,
warranty, covenant or agreement on the part of any Hafslund Nycomed
Party set forth in this Agreement, or if any representation or warranty
of any Hafslund Nycomed Party shall have become untrue, in either case
such that the conditions set forth in Section 10.02 would not be
satisfied ("TERMINATING HAFSLUND NYCOMED BREACH"); PROVIDED, HOWEVER,
that, if such Terminating Hafslund Nycomed Breach is curable by such
Hafslund Nycomed Party through the exercise of its best reasonable
efforts and for so long as such Hafslund Nycomed Party continues to
exercise such best reasonable efforts, IVAX may not terminate this
Agreement under this Section 11.01(h); and, PROVIDED FURTHER that the
preceding proviso shall not in any event be deemed to extend the date
set forth in paragraph (b) of this Section 11.01;
(i) by Hafslund Nycomed, if the Board of Directors of Hafslund
Nycomed shall, following receipt of advice of outside legal counsel
(who may be Hafslund Nycomed's regularly engaged outside legal counsel)
that failure to so terminate would be inconsistent with its duties to
its stockholders under applicable Law, have withdrawn, modified or
changed its recommendation of the approval of the Demerger and the
Share Exchange in a manner adverse to IVAX and, on or prior to such
date, any person (other than IVAX) shall have made a public
announcement or otherwise communicated to Hafslund Nycomed and its
stockholders with respect to a Competing Transaction that, as
determined by the Board of Directors of Hafslund Nycomed after
consultation with its outside legal counsel (who may be its regularly
engaged outside legal counsel) and financial advisers, contains terms
more favorable to the stockholders of Hafslund Nycomed than those
provided for in the Transactions; PROVIDED, HOWEVER, that Hafslund
Nycomed may not terminate this Agreement pursuant to this subsection
(i) until three business days have elapsed following delivery to IVAX
of written notice of such determination of Hafslund Nycomed (which
written notice will inform IVAX of the material terms and conditions of
the Competing Transaction); PROVIDED FURTHER, HOWEVER, that such
termination under this Section 11.01(i) shall not be effective until
Hafslund Nycomed has made payment to IVAX of the amounts required to be
paid pursuant to Section 11.05(c);
(j) by IVAX, if the Board of Directors of IVAX shall,
following receipt of advice of outside legal counsel (who may be IVAX's
regularly engaged outside legal counsel) that failure to so terminate
would be inconsistent with its duties to its stockholders under
applicable Law, have withdrawn, modified or changed its recommendation
of the adoption of this Agreement and the Merger in a manner adverse to
Hafslund Nycomed and, on or prior to such date, any person (other than
Hafslund Nycomed) shall have made a public announcement or otherwise
65
communicated to IVAX and its stockholders with respect to a Competing
Transaction that, as determined by the Board of Directors of IVAX after
consultation with its outside legal counsel (who may be its regularly
engaged outside legal counsel) and financial advisers, contains terms
more favorable to the stockholders of IVAX than those provided for in
the Transactions; PROVIDED, HOWEVER, that IVAX may not terminate this
Agreement pursuant to this subsection (j) until three business days
have elapsed following delivery to Hafslund Nycomed of written notice
of such determination of IVAX (which written notice will inform
Hafslund Nycomed of the material terms and conditions of the Competing
Transaction); PROVIDED FURTHER, HOWEVER, that such termination under
this Section 11.01(j) shall not be effective until IVAX has made
payment to Hafslund Nycomed of the amounts required to be paid pursuant
to Section 11.05(b); or
(k) by IVAX, if the corporate assembly of Hafslund Nycomed has
not approved this Agreement within ten calendar days of the date
hereof.
SECTION 11.02. EFFECT OF TERMINATION. Except as provided in
Section 12.01, in the event of termination of this Agreement pursuant to Section
11.01, this Agreement shall forthwith become void, there shall be no liability
under this Agreement on the part of any Hafslund Nycomed Party or any IVAX Party
or any of their respective officers or directors, and all rights and obligations
of each party hereto shall cease, subject to the remedies of the parties set
forth in Section 11.05(b), (c) and (d); PROVIDED, HOWEVER, that nothing herein
shall relieve any party from liability for the wilful breach of any of its
representations and warranties or the wilful breach of any of its covenants or
agreements set forth in this Agreement.
SECTION 11.03. AMENDMENT. This Agreement may be amended by the
parties hereto by action taken by or on behalf of their respective Boards of
Directors at any time prior to the Effective Time; PROVIDED, HOWEVER, that,
after the approval of this Agreement by the stockholders of IVAX or Hafslund
Nycomed, as the case may be, no amendment may be made that would reduce the
amount or change the type of consideration into which each share of IVAX Common
Stock or Hafslund Nycomed Common Stock, as the case may be, shall be converted
upon consummation of the Transactions. This Agreement may not be amended except
by an instrument in writing signed by the parties hereto.
SECTION 11.04. WAIVER. At any time prior to the Effective
Time, any party hereto may (a) extend the time for the performance of any
obligation or other act of any other party hereto, (b) waive any inaccuracy in
the representations and warranties contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any agreement or condition
contained herein. Any waiver of a condition set forth in Section 10.01, or any
determination that such a condition has been satisfied, will be effective only
if made in writing by each of IVAX and Hafslund Nycomed and, unless otherwise
66
specified in such writing, shall thereafter operate as a waiver (or
satisfaction) of such condition for any and all purposes of this Agreement. 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 11.05. FEES AND EXPENSES. (a) Except as set forth in
this Section 11.05, all Expenses (as defined below) incurred in connection with
this Agreement and the Transactions shall be paid by the party incurring such
Expenses, whether or not the Merger, the Share Exchange or the Demerger is
consummated, except that Hafslund Nycomed and IVAX each shall pay one-half of
all Expenses incurred solely for printing, filing and mailing the Registration
Statement and the Proxy Statement and all SEC and other regulatory filing fees
incurred in connection with the Registration Statement and the Proxy Statement,
and the fee required to be paid in connection with the HSR Act. "EXPENSES", as
used in this Agreement, shall include all reasonable out-of-pocket expenses
(including, without limitation, all fees and expenses of counsel, accountants,
investment bankers, experts and consultants to a party hereto and its
affiliates) incurred by a party or on its behalf in connection with or related
to the authorization, preparation, negotiation, execution and performance of
this Agreement, the preparation, printing, filing and mailing of the
Registration Statement and the Proxy Statement, the solicitation of stockholder
approvals, the filing of HSR Act notice and all other matters related to the
closing of the Transactions.
(b) IVAX agrees that, if:
(A) IVAX shall terminate this Agreement pursuant to
Section 11.01(j),
(B) (x) Hafslund Nycomed shall terminate this Agreement
pursuant to Section 11.01(d) and (y) at the time of such termination,
there shall exist a Competing Transaction with respect to IVAX, or
(C) (i) Hafslund Nycomed shall terminate this Agreement
pursuant to Section 11.01(f)(i), (ii) at the time of such failure to so
approve this Agreement there shall exist or have been proposed a
Competing Transaction with respect to IVAX and (iii) within 12 months
thereafter, IVAX shall enter into a definitive agreement with respect
to any Competing Transaction or any Competing Transaction shall be
consummated,
then, in the case of (A), prior to such termination, in the case of (B),
promptly after such termination, or, in the case of (C), promptly after the
execution and delivery of such agreement or such consummation, IVAX shall pay to
Hafslund Nycomed an amount equal to $50 million (the "IVAX TERMINATION FEE").
67
(c) Hafslund Nycomed agrees that, if:
(A) Hafslund Nycomed shall terminate this Agreement
pursuant to Section 11.01(i),
(B) (x) IVAX shall terminate this Agreement pursuant to
Section 11.01(e) and (y) at the time of such termination, there shall
exist a Competing Transaction with respect to Hafslund Nycomed, or
(C) (i) IVAX shall terminate this Agreement pursuant to
Section 11.01(f)(ii), (ii) at the time of such failure to so approve
this Agreement there shall exist or have been proposed a Competing
Transaction with respect to Hafslund Nycomed and (iii) within 12 months
thereafter, Hafslund Nycomed shall enter into a definitive agreement
with respect to any Competing Transaction or any Competing Transaction
shall be consummated,
then, in the case of (A), prior to such termination, in the case of (B),
promptly after such termination, or, in the case of (C), promptly after the
execution and delivery of such agreement or such consummation, Hafslund Nycomed
shall pay to IVAX an amount equal to $50 million (the "HAFSLUND NYCOMED
TERMINATION FEE").
(d) Each of Hafslund Nycomed and IVAX agrees that the payments
provided for in Section 11.05(b) and (c) shall be the sole and exclusive
remedies of the parties upon a termination of this Agreement pursuant to Section
11.01(d), (e), (f), (i) or (j), as the case may be, and such remedies shall be
limited to the payments stipulated in Section 11.05(b) and (c), regardless of
the circumstances giving rise to such termination; PROVIDED, HOWEVER, that
nothing herein shall relieve any party from liability for the wilful breach of
any of its representations and warranties or the wilful breach of any of its
covenants or agreements set forth in this Agreement.
(e) Any payment required to be made pursuant to Section
11.05(b) or (c) shall be made to the party entitled to receive such payment not
later than two business days after delivery to the other party of notice of
demand for payment and shall be made by wire transfer of immediately available
funds to an account designated by the party entitled to receive payment in the
notice of demand for payment delivered pursuant to this Section 11.05(e).
(f) In the event that Hafslund Nycomed or IVAX, as the case
may be, shall fail to pay the Hafslund Nycomed Termination Fee or the IVAX
Termination Fee, as the case may be, the amount of any such Hafslund Nycomed
Termination Fee or IVAX Termination Fee shall be increased to include the costs
and expenses actually incurred or accrued by the other (including, without
limitation, fees and expenses of counsel) in
68
connection with the collection under and enforcement of this Section 11.05,
together with interest on such unpaid Hafslund Nycomed Termination Fee or IVAX
Termination Fee, commencing on the date that such Hafslund Nycomed Termination
Fee or IVAX Termination Fee became due, at a rate equal to the rate of interest
publicly announced by Citibank, N.A., from time to time, in the City of New
York, as such bank's Base Rate plus 1.00%.
ARTICLE XII
GENERAL PROVISIONS
SECTION 12.01. NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
AGREEMENTS. The representations, warranties and agreements in this Agreement and
in any certificate delivered pursuant hereto shall terminate at the Effective
Time or upon the termination of this Agreement pursuant to Section 11.01, as the
case may be, except that the agreements set forth in Articles II, III and IV and
Sections 4.04, 8.09, 8.11 and 9.04, and this Article XII shall survive the
Effective Time, those set forth in Sections 8.05(b) and 11.05 and this Article
XII shall survive termination, and those set forth in Section 9.06 shall survive
for a period of 90 days after termination of this Agreement. Each party agrees
that, except for the representations and warranties contained in this Agreement
and the respective Disclosure Schedules, no party hereto has made any other
representations and warranties, and each party hereby disclaims any other
representations and warranties made by itself or any of its officers, directors,
employees, agents, financial and legal advisors or other representatives with
respect to the execution and delivery of this Agreement or the transactions
contemplated herein, notwithstanding the delivery or disclosure to any other
party or any party's representatives of any documentation or other information
with respect to any one or more of the foregoing.
SECTION 12.02. 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 and facsimile, by registered or certified mail (postage prepaid, return
receipt requested) or by an internationally recognized courier service to the
respective parties at the following addresses (or at such other address for a
party as shall be specified in a notice given in accordance with this Section
12.02):
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if to any Hafslund Nycomed Party:
Hafslund Nycomed AS
Corporate Headquarters
Xxxxxxxxxxxxx 00
XX Xxx 0000 Xxxxxxxxx
X-0000 Xxxx
Attention: Xxxx Thyness
Telecopier: 00-0000-0000
with a copy to each of:
Wiersholm, Mellbye & Bech
Kirkegaten 15
Postboks 400 Sentrum
N-0103 Oslo, Norway
Attention: Jan-Xxxxxxx Xxxxxxxxxx
Telecopier: 47-2241-0600
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
if to any IVAX Party:
IVAX Corporation
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, General Counsel
Telecopier: (000) 000-0000
with a copy to each of:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Telecopier: (000) 000-0000
70
Thommessen Xxxxxxxx Xxxxx Xxxx AS
Advokatfirma
Tollbodgaten
Oslo, Norway
Attention: Xxxx Xxxx Xxxxxxxx
Telecopier: 00-0000-0000
SECTION 12.03. CERTAIN DEFINITIONS. For purposes of this
Agreement, the term:
(a) "AFFILIATE" has the meaning specified in Rule 144
promulgated by the SEC under the Securities Act;
(b) "BENEFICIAL OWNER" with respect to any shares of capital
stock means a person who shall be deemed to be the beneficial owner of
such shares (i) which such person or any of its affiliates or
associates (as such term is defined in Rule 12b-2 promulgated under the
Exchange Act) beneficially owns, directly or indirectly, (ii) which
such person or any of its affiliates or associates has, directly or
indirectly, (A) the right to acquire (whether such right is exercisable
immediately or subject only to the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
consideration rights, exchange rights, warrants or options, or
otherwise, or (B) the right to vote pursuant to any agreement,
arrangement or understanding, or (iii) which are beneficially owned,
directly or indirectly, by any other persons with whom such person or
any of its affiliates or associates or person with whom such person or
any of its affiliates or associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock;
(c) "BUSINESS DAY" means any day on which the principal
offices of the SEC in Washington, D.C. are open to accept filings, or,
in the case of determining a date when any payment is due, any day on
which banks are not required or authorized to close in The City of New
York, USA or in Oslo, Norway;
(d) "$" means United States Dollars.
(e) "KNOWLEDGE" means, with respect to any matter in question,
that the executive officers of Hafslund Nycomed or IVAX, as the case
may be, (i) have actual knowledge of such matter, or (ii) after due
investigation, should have known of such matter;
(f) "NOK" means Norwegian Kroner;
71
(g) "PERSON" means an individual, corporation, partnership,
limited partnership, syndicate, person (including, without limitation,
a "PERSON" as defined in Section 13(d)(3) of the Exchange Act), trust,
association or entity or government, political subdivision, agency or
instrumentality of a government; and
(h) "SUBSIDIARY" or "SUBSIDIARIES" of any person means any
corporation, limited liability company, partnership, joint venture or
other legal entity of which such person (either alone or through or
together with any other subsidiary of such person) owns, directly or
indirectly, more than 50% of the stock or other equity interests, the
holders of which are generally entitled to vote for the election of the
board of directors or other governing body of such corporation or other
legal entity.
SECTION 12.04. 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 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 in
order that the Transactions be consummated as originally contemplated to the
fullest extent possible.
SECTION 12.05. ASSIGNMENT; BINDING EFFECT; BENEFIT. Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of Law or
otherwise) without the prior written consent of the other parties. 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 assigns.
Notwithstanding anything contained in this Agreement to the contrary, except for
the provisions of Sections 4.04 and 9.04 (the "THIRD PARTY PROVISIONS"), nothing
in this Agreement, expressed or implied, is intended to confer on any person
other than the parties hereto or their respective successors and assigns any
rights, remedies, obligations or liabilities under or by reason of this
Agreement. The Third Party Provisions may be enforced by the beneficiaries
thereof.
SECTION 12.06. INCORPORATION OF EXHIBITS. The Hafslund Nycomed
Disclosure Schedule, the IVAX Disclosure Schedule and all Exhibits attached
hereto and referred to herein are hereby incorporated herein and made a part of
this Agreement for all purposes as if fully set forth herein.
SECTION 12.07. SPECIFIC PERFORMANCE. The parties hereto
agree that irreparable damage would occur in the event any provision of this
Agreement was not
72
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 equity.
SECTION 12.08. GOVERNING LAW; GOVERNING LANGUAGE. 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
Transactions or to matters arising under or in connection with this Agreement,
this Agreement shall be governed by, and construed in accordance with, the laws
of the State of New York. The parties acknowledge that, at the request and for
the benefit of Hafslund Nycomed, this Agreement may be translated into Norwegian
and other languages. The parties agree that this English version shall in all
respects be the controlling version of this Agreement.
SECTION 12.09. SUBMISSION TO JURISDICTION; VENUE. Subject to
the provisions of Section 4.04, the parties hereto unconditionally and
irrevocably agree and consent to the exclusive jurisdiction of, and service of
process and venue in, any applicable courts sitting in London, England (the
"LONDON COURTS") for the purpose of any action, suit or proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby and
further agree not to commence any such action, suit or proceeding except in any
such court. Each party irrevocably waives any objections or immunities to
jurisdiction to which it may otherwise be entitled or become entitled (including
sovereign immunity, immunity to pre-judgment attachment, post-judgment
attachment and execution) in any legal suit, action or proceeding against it
arising out of or relating to this Agreement or the transactions contemplated
hereby which is instituted in any such court. Hafslund Nycomed shall appoint a
person reasonably satisfactory to IVAX as its authorized agent (the "HAFSLUND
NYCOMED AUTHORIZED AGENT") upon whom process may be served in any such action
arising out of or relating to this Agreement or the transactions contemplated
hereby which may be instituted in the London Courts by any other party hereto.
Such appointment shall be irrevocable. Hafslund Nycomed agrees to take any and
all action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Hafslund Nycomed Authorized Agent and
written notice of such service to Hafslund Nycomed shall be deemed, in every
respect, effective service of process upon Hafslund Nycomed. IVAX shall appoint
a party reasonably satisfactory to Hafslund Nycomed as its authorized agent (the
"IVAX AUTHORIZED AGENT") upon whom process may be served in any such action
arising out of or relating to this Agreement or the transactions contemplated
hereby which may be instituted in the London Courts by any other party hereto.
Such appointment shall be irrevocable. IVAX agrees to take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the IVAX Authorized Agent and written notice of such
service to IVAX shall be deemed, in every respect, effective service of process
upon IVAX.
73
SECTION 12.10. 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 12.11. 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 12.12. ENTIRE AGREEMENT. This Agreement (including the
Exhibits, the Hafslund Nycomed Disclosure Schedule and the IVAX Disclosure
Schedule) and the Confidentiality Agreement constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings among the parties with respect thereto. No
addition to or modification of any provision of this Agreement shall be binding
upon any party hereto unless made in writing and signed by all parties hereto.
IN WITNESS WHEREOF, Hafslund Nycomed, IVAX and IVAX NYCOMED
have caused this Agreement to be executed as of the date first written above by
their respective officers thereunto duly authorized.
HAFSLUND NYCOMED AS
By /s/ XXXXX XXXXX
---------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
IVAX CORPORATION
By /s/ XXXXXXX XXXXX
------------------------------
Name: Xxxxxxx Xxxxx, M.D.
Title: Chairman and Chief
Executive Officer
IVAX NYCOMED CORPORATION
By /s/ XXXXXXX XXXXX
------------------------------
Name: Xxxxxxx Xxxxx, M.D.
Title: Chairman
By /s/ XXXXX XXXXX
------------------------------
Name: Xxxxx Xxxxx
Title: President and Chief
Executive Officer
