EXHIBIT 10.19(b)
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Amendment is executed this 14th day of August, 2000, by and among
Wakefield Pharmaceuticals, Inc., a Delaware corporation (the "Company"), the
Principal Stockholders (as set forth below), WPI Merger Corporation, a Delaware
corporation ("Merger Sub"), and Ivax Corporation, a Florida corporation
("Parent").
RECITALS
Parent, Merger Sub, the Company and the Principal Stockholders entered
into an Agreement and Plan of Merger dated as of August 3, 2000 (the "Merger
Agreement") pursuant to which the Merger Sub is to merge with and into the
Company, with the Company as the surviving corporation. The parties desire to
amend the Merger Agreement as provided herein.
Therefore, in consideration of the premises and the mutual agreements
stated herein, the parties agree as follows:
1. Capitalized Terms. All capitalized terms not defined herein shall
have the meanings ascribed to them in the Merger Agreement.
2. Exchange Ratio; Conversion of Securities. The following shall be
added to the end of Section 2.5 of the Merger Agreement:
(f) Nothing contained herein shall be deemed to imply that all
of the Merger Shares will be delivered to stockholders of the
Company, and the Company acknowledges that the number of
shares of Parent Common Stock to be delivered to stockholders
will be less than the Merger Shares, in the event that (i)
Parent exercises its rights set forth in Section 2.5(c) hereof
or (ii) any stockholders exercise (and do not withdraw) their
appraisal rights pursuant to Section 262 of the DGCL
("Appraisal Rights").
3. Dissenter or Appraisal Rights. Section 2.7 of the Merger Agreement
is hereby deleted in its entirety and replaced by the following: "2.7
Intentionally Deleted."
4. Proxy Statement. The following sentence shall be added to the end of
Section 4.33 of the Merger Agreement:
The Company Proxy Statement will contain all material
information that is required under Delaware law to be
disclosed to the stockholders in connection with the decision
of whether to exercise their Appraisal Rights.
5. Indemnification by Principal Stockholders.
(a) The following shall be added after Section 6.4(a)(ii) of
the Merger Agreement:
(iii) the aggregate of any amounts payable to stockholders of
the Company, pursuant to the exercise by such stockholders of
Appraisal Rights, in excess of the Fair Market Value of the
shares of Parent Common Stock that would otherwise have been
issuable to such stockholders pursuant to Section 2.5(a) or
2.5(c), as applicable, in absence of the exercise of such
Appraisal Rights.
Section 6.4(a)(iii) of the Merger Agreement shall become
Section 6.4(a)(iv).
(b) The reference to "Section 6.4(a)(iii)" in the third line
of Section 6.4(b) of the Merger Agreement shall be deleted and replaced
by "Section 6.4(a)(iv)."
6. Certain Limitations of Liability. Section 6.6(c) of the Merger
Agreement is hereby amended as follows:
The words "dated as of the date hereof," contained in the fourth line
of the Section shall be deleted and replaced by the following: "in the
form attached as Exhibit 2.5(e) hereto, to be executed at the Effective
Time,"
7. Conditions Precedent to the Obligations of Parent.
(a) The following shall be added to the end of Section 7.1:
(p) Appraisal Rights. Appraisal Rights shall not have
been exercised with respect to more than ten percent (10%) of
all of the issued and outstanding Company Common Stock as of
the Closing.
(b) Section 7.1(f) of the Merger Agreement shall be deleted in
its entirety and replaced by the following:
(f) Representation Letters. Parent shall have
received representation letters from each of the
Company's tockholders either in the form of Exhibit
7.1(f) hereto, representing that such stockholder is
an Accredited Investor and making certain other
investor representations, or (ii) representing that
such stockholder is a purchaser meeting the
requirements of Rule 506(b)(2)(ii) of Regulation D
under the Securities Act; provided that this
condition shall be deemed not to have been met if
more than 35 stockholders do not provide the letter
in clause (i).
2
8. Termination. Section 8.1(b) of the Merger Agreement shall be deleted
in its entirety and replaced by the following:
(b) by the Parent if the Closing has not occurred on or
prior to September 1, 2000 or by either party if the
Closing has not occurred on or prior to September 15,
2000 (as applicable, the "Termination Date"),
provided the failure of the Closing to occur by such
date is not the result of the failure of the party
seeking to terminate this Agreement to perform or
fulfill any of its obligations hereunder;
9. Agreement. Except as expressly provided herein, the Merger Agreement
shall continue unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have each executed and delivered
this Amendment as of the date and year first above written.
PARENT:
IVAX CORPORATION
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------------
Xxxx Xxxxxxxxxx
Vice Chairman and President
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
XXX
Facsimile: (000) 000-0000
MERGER SUB:
WPI MERGER CORPORATION
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------------
Xxxx Xxxxxxxxxx
President
3
COMPANY:
WAKEFIELD PHARMACEUTICALS, INC.
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: President
000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile:
PRINCIPAL STOCKHOLDERS:
/s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxx, M.D.
-----------------------------------------
Xxxx X. Xxxxxx, M.D.
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxx
-----------------------------------------
Xxxxx Xxxxx
/s/ Xxxxxxx Xxxxxxxxx, M.D.
-----------------------------------------
Xxxxxxx Xxxxxxxxx, M.D.
/s/ Xxx X. Xxxxxxxxxxxx, M.D.
-----------------------------------------
Xxx X. Xxxxxxxxxxxx, M.D.
/s/ Xxxxxx Xxxxxxxx, M.D.
-----------------------------------------
Xxxxxx Xxxxxxxx, M.D.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ X. Xxxxx Xxxxxxxx, M.D.
-----------------------------------------
X. Xxxxx Xxxxxxxx, M.D.
4
OMC Profit Sharing Trust
By: /s/ X. Xxxxx Xxxxxxxx, M.D.
------------------------------------------
X. Xxxxx Xxxxxxxx, M.D., Trustee
/s/ Xxx Xxxxxxxx, M.D.
------------------------------------------
Xxx Xxxxxxxx, M.D., Trustee
Xxxxxxxx Investment, LLC, a Mississippi
limited liability company
By: /s/ Xxxxxx Xxxxx Xxxxxxxx, Xx.
------------------------------------------
Xxxxxx Xxxxx Xxxxxxxx, Xx., Manager/Member
/s/ Xxxxx X. Xxxxx, M.D.
--------------------------------------------
Xxxxx X. Xxxxx, M.D.
5
