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STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of August 9, 1999
("Agreement"), is made and entered into by and among Teva Pharmaceuticals USA,
Inc., a Delaware corporation ("Parent"), Caribou Merger Corporation, a wholly
owned subsidiary of Parent and a Delaware corporation ("Merger Sub"), and
Hoechst Corporation, a Delaware corporation (the "Stockholder").
WITNESSETH:
WHEREAS, on the date hereof, Parent, Merger Sub, and Xxxxxx
Pharmaceutical, Inc., a Delaware corporation (the "Company"), entered into an
Agreement and Plan of Merger (as such agreement may hereafter be amended,
restated or renewed from time to time, the "Merger Agreement"), pursuant to
which Merger Sub will commence the Offer. Capitalized terms used and not defined
herein shall have the respective meanings ascribed to them in the Merger
Agreement;
WHEREAS, the Stockholder is the Beneficial Owner (as defined
below) and has the sole right to vote and dispose of 9,934,100 shares of the
Company Common Stock; and
WHEREAS, as an inducement and a condition to their entering
into the Merger Agreement and incurring the obligations set forth therein,
Parent and Merger Sub have required that the Stockholder enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained herein and in
the Merger Agreement, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Affiliate" means, with respect to any specified Person, any
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Person
specified; provided that the Company shall not be deemed an Affiliate of the
Stockholder.
(b) "Beneficially Own" or "Beneficial Owner" or "Beneficial
Ownership" with respect to any securities shall mean having "beneficial
ownership" of such securities (as determined pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a Person shall include securities Beneficially
Owned by Persons with whom such
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Person would constitute a "group" within the meaning of Section 13(d)(3) of the
Exchange Act.
(c) "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other entity.
(d) "Representative" means, with respect to any Person, as
applicable, such Person's officers, directors, employees, agents and
representatives (including any investment banker, financial advisor, agent,
representative or expert retained by or acting on behalf of such Person or its
subsidiaries).
(e) "Termination Event" shall mean the first to occur of (i) the
Effective Time; (ii) the termination of the Merger Agreement by any party
thereto in accordance with its terms; (iii) Merger Sub's failure to commence the
Offer within five (5) business days following the date of the initial public
announcement of the Offer; (iv) the termination of the Offer, or expiration of
the Offer without Merger Sub's having accepted for payment and paid for all
shares of Company Common Stock tendered pursuant thereto, provided that
Stockholder's right to terminate pursuant to this clause (iv) shall not be
available to Stockholder if it is then in material breach of this Agreement and
such breach has been the proximate cause of the Offer having so expired or
having been terminated; (v) any modification of any term or condition of the
Offer which would require the prior written consent of the Company pursuant to
Section 1.01(b) of the Merger Agreement in the form executed and delivered as of
the date hereof (whether or not such consent is obtained); and (iv) December 31,
1999.
2. AGREEMENT TO TENDER; VOTING OF THE SHARES.
(a) During the period commencing on the date hereof and until a
Termination Event, the Stockholder shall (i) validly tender and sell (and not
withdraw), pursuant to and in accordance with the terms of the Offer, not later
than the fifth business day after the receipt by the Stockholder of the offer to
purchase, transmittal letter and other relevant Offer Documents (or as soon as
practicable thereafter as shall be permitted by the relevant court or
governmental authority), the Shares (for purposes of this Agreement the "Shares"
shall mean, collectively, 9,934,100 shares of Company Common Stock Beneficially
Owned by the Stockholder on the date hereof (the "Existing Shares") and any
shares of Company Common Stock acquired by the Stockholder after the date hereof
and prior to a Termination Event, whether upon exercise of options, warrants or
rights, the conversion or exchange of convertible or exchangeable securities, or
by means of purchase, dividend, distribution or otherwise); provided that at any
time after October 31, 1999, the Stockholder shall be permitted to withdraw up
to 4,967,050 Shares in order to sell and transfer such withdrawn shares in
compliance with Section 6(a)
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hereof, and (ii) at any meeting of the Company's stockholders (whether annual or
special, and whether or not an adjourned or postponed meeting), however called
or in connection with any written consent of the Company's stockholders, vote
(or cause to be voted) all of its Shares (x) in favor of the Merger, the
execution and delivery by the Company of the Merger Agreement and the approval
and adoption of the Merger and the terms thereof and each of the other actions
contemplated by the Merger Agreement and this Agreement and any actions required
in furtherance thereof and hereof; (y) against any action or agreement that
would (A) result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement or of
such Stockholder under this Agreement or (B) impede, interfere with, delay,
postpone, or adversely affect the Merger or the transactions contemplated
thereby or hereby; and (z) except as otherwise agreed to in writing in advance
by Parent or Merger Sub, against the following actions (other than the Merger
and the transactions contemplated by the Merger Agreement and this Agreement):
(A) any extraordinary corporate transaction, such as a merger, consolidation or
other business combination, involving the Company or any of its subsidiaries;
(B) any sale, lease or transfer of a material amount of the assets or business
of the Company or its subsidiaries, or any reorganization, restructuring,
recapitalization, special dividend, dissolution, liquidation or winding up of
the Company or its subsidiaries; (C) any change in the present capitalization of
the Company, including any proposal to sell any equity interest in the Company
or any of its subsidiaries or any amendment of the Certificate of Incorporation
or By-laws of the Company; (D) any change in the majority of the Company's Board
of Directors; (E) any other change in the Company's corporate structure or
business; and (F) any other action which is intended or could reasonably be
expected to impede, interfere with, delay, postpone, discourage or adversely
affect the Merger, the transactions contemplated by the Merger Agreement or this
Agreement or the contemplated economic benefits of any of the foregoing. The
Stockholder shall not enter into any agreement, arrangement or understanding
with any Person the effect of which would be inconsistent with or violative of
the provisions and agreement contained in this Section 2(a).
(b) The Stockholder hereby acknowledges that Merger Sub's obligation
to accept for payment shares of the Company Common Stock purchased pursuant to
the Offer, including the Shares, is subject to the terms and conditions of the
Offer. Upon the terms and subject to the conditions of the Offer, Parent shall
cause Merger Sub to accept for payment and pay for all shares of Company Common
Stock (including the Shares) validly tendered and not withdrawn pursuant to the
Offer as soon as Merger Sub is permitted to do so under applicable law.
(c) The Stockholder shall permit Merger Sub to publish and to
disclose in the Offer Documents and, if
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stockholder approval is required under applicable law, the Proxy Statement, if
any (including all documents and schedules filed with the SEC), the
Stockholder's identity and ownership of the Company Common Stock and the
Stockholder's commitments, arrangements and understandings under this Agreement.
Parent and Merger Sub shall permit the Stockholder to disclose the terms of this
Agreement in the Stockholder's Schedule 13D with respect to the Shares and in
any prospectus or offering circular for a Hoechst Offering permitted by Section
6(a) hereof.
3. TERMINATION AND TERMINATION FEE. Except as provided in this Section
3, all liabilities and obligations of the Stockholder under this Agreement shall
terminate upon a Termination Event. The Stockholder shall pay to Parent
$10,000,000 in cash in same day funds if the Merger Agreement is terminated in
accordance with its terms and the proximate cause of such termination has been
the Stockholder's breach of any of its representations or warranties under this
Agreement or the Stockholder's breach or failure to perform any of its covenants
or agreements under this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The Stockholder
hereby represents and warrants to Parent and Merger Sub as follows:
(a) OWNERSHIP OF SHARES. The Stockholder is the Beneficial Owner of
the Shares. As of the date hereof, the Existing Shares constitute all of the
shares of the Company Common Stock owned of record or Beneficially Owned by the
Stockholder. The Stockholder has sole power to issue instructions with respect
to the matters set forth in Section 2 hereof, sole power of disposition, sole
power to demand appraisal rights and sole power to agree to all of the matters
set forth in this Agreement, in each case with respect to the Shares with no
material limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) ORGANIZATION, STANDING AND CORPORATE POWER. The Stockholder is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, and the Stockholder has the corporate power and
authority to enter into and perform all of its obligations under this Agreement
and to consummate the transactions contemplated hereby.
(c) NO CONFLICTS. (i) Except for filings under the Exchange Act or
the HSR Act no filing with, and no permit, authorization, consent or approval
of, any state or federal public body or authority is necessary for the execution
of this Agreement by the Stockholder and the consummation by the Stockholder of
the transactions contemplated hereby, except where the failure to obtain such
consent, permit, authorization, approval or filing would not interfere with the
Stockholder's ability to perform its obligations hereunder, and (ii) none of
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the execution and delivery of this Agreement by the Stockholder, the
consummation by the Stockholder of the transactions contemplated hereby or
compliance by the Stockholder with any of the provisions hereof shall (x)
conflict with or result in any breach of the charter or by-laws of the
Stockholder, (y) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which the Stockholder is a
party or by which the Stockholder or any of the Stockholder's properties or
assets may be bound, including, without limitation, the Corporate Governance and
Standstill Agreement, by and among the Company and the Stockholder, dated as of
October 8, 1993 and as amended (the "Standstill Agreement"), or (z) violate any
order, writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to the Stockholder or any of the Stockholder's properties or assets,
in each such case except to the extent that any conflict, breach, default or
violation would not interfere with the ability of the Stockholder to perform its
obligations hereunder.
(d) EXECUTION, DELIVERY AND PERFORMANCE. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of the Stockholder. This Agreement constitutes the valid and binding
obligation of Stockholder and is enforceable in accordance with its terms,
except as enforceability may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally and general principles of equity.
(e) NO ENCUMBRANCES. Subject to Section 6(a), the Shares are now,
and at all times during the term hereof will be, held by the Stockholder, or by
a nominee or custodian for the benefit of the Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever, except this
Agreement, the Standstill Agreement and applicable securities laws.
(f) RELIANCE. The Stockholder understands and acknowledges that
Parent and Merger Sub are entering into the Merger Agreement, and are incurring
the obligations set forth therein, in reliance upon the Stockholder's execution
and delivery of this Agreement.
5. REPRESENTATIONS OF PARENT AND MERGER SUB. Parent and Merger Sub
hereby represent and warrant to the Stockholder as follows:
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(a) ORGANIZATION, STANDING AND CORPORATE POWER. Parent is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and Merger Sub is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and each
has adequate corporate power and authority to own its properties and carry on
its business as presently conducted. Each of Parent and Merger Sub has the
corporate power and authority to enter into and perform all of its obligations
under this Agreement and to consummate the transactions contemplated hereby.
(b) NO CONFLICTS. (i) Except, for filings under the Exchange Act and
the HSR Act, no filing with, and no permit, authorization, consent or approval
of, any state or federal public body or authority is necessary for the execution
of this Agreement by either Parent or Merger Sub and the consummation by Parent
and Merger Sub of the transactions contemplated hereby, except where the failure
to obtain such consent, permit, authorization, approval or filing would not
interfere with its ability to perform their respective obligations hereunder,
and (ii) none of the execution and delivery of this Agreement by Parent or
Merger Sub, the consummation by Parent or Merger Sub of the transactions
contemplated hereby or compliance by Parent and Merger Sub with any of the
provisions hereof shall (x) conflict with or result in any breach of any
applicable organizational documents applicable to Parent or Merger Sub, (y)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Parent or Merger Sub is a party or
by which Parent or Merger Sub or any of Parent's or Merger Sub's properties or
assets may be bound, or (z) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to Parent or Merger Sub
or any of Parent's or Merger Sub's properties or assets, in each such case
except to the extent that any conflict, breach, default or violation would not
interfere with the ability of Parent or Merger Sub to perform their respective
obligations hereunder.
(c) EXECUTION, DELIVERY AND PERFORMANCE. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Parent and Merger Sub. This Agreement constitutes the valid and
binding obligations of Parent and Merger Sub and is enforceable in accordance
with its terms, except as enforceability may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally and general principles of equity.
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6. CERTAIN COVENANTS
(a) RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE. Prior to
the occurrence of a Termination Event, except as required by this Agreement, the
Stockholder shall not directly or indirectly without the prior written consent
of Parent and Merger Sub: (i) offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares, or any interest therein, (ii) grant any proxies or powers
of attorney, deposit any of the Shares into a voting trust or enter into a
voting agreement, understanding or arrangement with respect to any of the
Shares, or (iii) take any action that could reasonably be expected to (x) make
any representation or warranty of Stockholder contained in this Agreement untrue
or incorrect; (y) result in a breach by Stockholder of its obligations under
this Agreement or a breach by the Company of its obligations under the Merger
Agreement; or (z) have the effect of preventing or disabling the Stockholder
from performing the Stockholder's obligations under this Agreement.
Notwithstanding the foregoing or anything else in this Agreement or the Merger
Agreement to the contrary, the Stockholder, the Company and their
Representatives shall be permitted (i) from and after the date hereof, to take
customary actions in preparation for a registered or unregistered secondary
offering (a "Hoechst Offering") of up to 4,967,050 of the Shares (including,
without limitation, conducting discussions and negotiations with prospective
placement agents and due diligence activities involving the Company, and
drafting any related registration statement or offering circular); (ii) after
September 30, 1999, to file with the Securities and Exchange Commission any
registration statement for a Hoechst Offering, distribute any related prospectus
or other offering circular for a Hoechst Offering and any amendments or
supplements thereto to prospective investors, and commence marketing efforts
with respect to a Hoechst Offering; and (iii) after October 31, 1999, to
consummate any Hoechst Offering with respect to a maximum of 4,967,050 Shares;
provided, that sales of such Shares shall be made to no more than ten (10)
Persons and the Stockholder shall cause each Person who or which acquires Shares
in any Hoechst Offering to agree in writing, in form and substance reasonably
satisfactory to Parent, to have with respect to such Shares the same rights and
obligations hereunder as the Stockholder (except that no such Person shall have
the right to withdraw Shares from the Offer or transfer such Shares other than
pursuant to the Offer). Any breach by any such Person of any such obligations
shall be deemed a breach of this Agreement by the Stockholder.
(b) RESTRICTIVE LEGEND. The Stockholder shall, until the occurrence
of a Termination Event, place the following legend on any and all certificates
representing any Shares:
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THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT
TO THAT CERTAIN STOCKHOLDERS AGREEMENT, DATED AS OF
AUGUST 9, 1999, BY AND AMONG TEVA PHARMACEUTICALS
USA, INC., CARIBOU MERGER CORPORATION AND HOECHST
CORPORATION, AND ANY TRANSFER OF SUCH SHARES IN
VIOLATION OF THE TERMS OF SUCH AGREEMENT SHALL BE
NULL AND VOID AND OF NO EFFECT WHATSOEVER.
(c) WAIVER OF APPRAISAL RIGHTS. The Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that the Stockholder
may have.
(d) NO SOLICITATION.
(i) Until the occurrence of a Termination Event, except with
respect to directors of the Company serving at the request of the Stockholder or
its Affiliates (whose actions shall be restricted by the terms of the Merger
Agreement), and except in connection with a Hoescht Offering permitted hereby,
the Stockholder and its Affiliates shall not, and shall instruct their
respective Representatives not to, (A) directly or indirectly solicit, initiate,
or encourage (including by way of furnishing nonpublic information or
assistance), or take any other action to facilitate, any inquiries or proposals
from any Person that constitute, or may reasonably be expected to lead to, an
Acquisition Proposal, (B) enter into, maintain, or continue discussions or
negotiations with any party (other than Parent or Merger Sub) in furtherance of
such inquiries or to obtain an Acquisition Proposal, (C) agree to or endorse any
Acquisition Proposal, or (D) authorize or permit the Stockholder's or any of its
Affiliates' Representatives to take any such action.
(ii) Until the occurrence of a Termination Event, without the
prior written consent of Parent, and except in connection with a Hoechst
Offering permitted hereby, the Stockholder and its Affiliates shall not, and
shall instruct their respective Representatives not to, issue any press release
or make any public statement or take any action that would otherwise require any
public disclosure concerning the Merger, the Offer or the transactions
contemplated by the Merger Agreement or this Agreement; provided, however, that
the Stockholder may, without the prior written consent of Parent, issue such
press release or make such public statement or take such action as may upon the
advice of counsel be required by law, if it has provided prior notice to Parent
and used all reasonable efforts to consult with Parent.
(e) STOP TRANSFER. Prior to a Termination Event, the Stockholder
shall not request that the Company register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any of the
Shares, unless such transfer is made in compliance with this Agreement.
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(f) HSR ACT. Stockholder acknowledges that its ultimate parent
entity (which is currently Hoechst AG, but which would be Celanese AG upon the
proposed demerger of Celanese AG from Hoechst AG) is the "acquired person"
within the meaning of the HSR Act with respect to the transaction contemplated
by the Merger Agreement by virtue of such entity's indirect ownership of the
Shares. Accordingly, Stockholder shall fulfill or cause such entity to fulfill
the obligations of Section 7.03(a) of the Merger Agreement relating to HSR
filings with respect to the Company.
(g) FURTHER ASSURANCES. From time to time, at the other parties'
reasonable request and without further consideration, the Stockholder, Parent
and Merger Sub shall execute and deliver such additional documents as may be
reasonably necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the tender of the Shares by the Stockholder
contemplated by Section 2 of this Agreement.
7. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) RECAPITALIZATION. In the event of a stock dividend or
distribution, or any change in shares of Company Common Stock by reason of any
stock dividend, split-up, recapitalization, combination, exchange of shares of
Company Common Stock or the like, the term "Shares" shall be deemed to refer to
and include the Shares as well as all such stock dividends and distributions and
any shares into which or for which any or all of the Shares may changed or
exchanged.
(c) ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned or delegated, in
whole or in part, by operation of law or otherwise, by any of the parties hereto
without the prior written consent of the other parties, except that Merger Sub
may assign its rights and obligations, in whole or in part, to any of its
Affiliates, but no such assignment shall relieve Merger Sub of its obligations
hereunder if such assignee does not perform such obligations, and except that
the Stockholder may assign its rights and obligations hereunder in compliance
with Section 6(a) hereof. Subject to the preceding sentence, this Agreement will
be binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
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(d) AMENDMENT, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) 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 received if so given) by hand delivery, or by mail
(registered or certified mail, postage prepaid, return receipt requested), or by
any courier service, such as Federal Express, providing proof of delivery, or by
transmission by telecopy, confirmed received. All communications hereunder shall
be delivered to the respective parties at the following addresses:
If to Parent or Merger Sub: Teva Pharmaceuticals USA, Inc.
000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: President
Fax: (000) 000-0000
copies to: Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
If to the Stockholder: Hoechst Corporation
00 Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Facsimile: 000-000-0000
Attention: President
copies to: Xxxxx Xxxxxxxx
Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP
0000 Xxx Xxxx Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: 000-000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
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(f) SEVERABILITY. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity, including, without
limitation, pursuant to Section 3 hereof.
(h) REMEDIES CUMULATIVE. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
(i) NO WAIVER. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(j) NO THIRD-PARTY BENEFICIARIES. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto.
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(k) GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
(l) DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(m) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement. This Agreement shall not
be effective as to any party hereto until such time as this Agreement or a
counterpart thereof has been executed and delivered by each party hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their duly authorized officers effective as of the date and
year first above written.
TEVA PHARMACEUTICALS USA, INC.
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: President and CEO
CARIBOU MERGER CORPORATION
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Executive Vice President
HOECHST CORPORATION
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: President
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