STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of November 10, 1996 (this
"Agreement"), between BERGEN XXXXXXXX CORPORATION, a New Jersey corporation
("Bergen"), and IVAX CORPORATION, a Florida corporation ("IVAX").
W I T N E S S E T H:
WHEREAS, BBI Healthcare Corporation, a Delaware corporation
("BBI"), IVAX, Bergen, BBI-I Sub, Inc., a Florida corporation and a wholly owned
subsidiary of BBI ("IVAX Merger Sub"), and BBI-B Sub, Inc., a New Jersey
corporation and a wholly owned subsidiary of BBI ("Bergen Merger Sub"), propose
to enter into, simultaneously herewith, an Agreement and Plan of Merger (the
"Merger Agreement"; capitalized terms used but not defined in this Agreement
shall have the meanings ascribed to them in the Merger Agreement), which
provides, upon the terms and subject to the conditions thereof, for (i) the
acquisition by BBI of the common stock, par value $.10 per share, of IVAX ("IVAX
Common Stock"), through the merger of IVAX Merger Sub with and into IVAX (the
"IVAX Merger"), (ii) the acquisition by BBI of the Class A common stock, par
value $1.50 per share, of Bergen ("Bergen Common Stock") through the merger of
Bergen Merger Sub with and into Bergen (the "Bergen Merger" and, together with
the IVAX Merger, the "Mergers") and (iii) the receipt by the shareholders of
each of IVAX and Bergen of shares of common stock, par value $.01 per share, of
BBI, in proportion to their interests in IVAX and Bergen, respectively; and
WHEREAS, as a condition to the willingness of Bergen to enter
into the Merger Agreement and the Bergen Stock Option Agreement, Bergen has
required that IVAX agree, and in order to induce Bergen to enter into the Merger
Agreement and the Bergen Stock Option Agreement, IVAX has agreed to xxxxx Xxxxxx
an option to purchase 30,177,342 newly issued shares of IVAX Common Stock,
representing approximately 19.9% of the issued and outstanding shares of IVAX
Common Stock, in accordance with the terms of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth in
this Agreement and in the Merger Agreement, the parties hereto agree as follows:
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ARTICLE I
THE STOCK OPTION
SECTION 1.01. Grant of Stock Option. IVAX hereby grants to
Bergen, as of the close of trading on the AMEX on November 11, 1996 (the "Grant
Date") an irrevocable option (the "Stock Option") to purchase up to 30,177,342
shares of IVAX Common Stock (the "Option Shares") at a cash purchase price per
Option Share equal to the closing price of shares of IVAX Common Stock on the
AMEX on the Grant Date (the "Purchase Price"), subject to the terms and
conditions set forth herein.
SECTION 1.02. Exercise of Stock Option. (a) Subject to the
conditions set forth in Section 1.03 and to any additional requirements of Law,
the Stock Option may be exercised by Bergen, in whole or in part, at any time or
from time to time after the occurrence of an Exercise Event (as defined below)
and prior to the Termination Date (as defined below).
(b) An "Exercise Event" shall occur for purposes of this
Agreement upon the occurrence of any event or circumstance which, pursuant to
the terms of Section 8.05(b) of the Merger Agreement, entitles Bergen to the
payment by IVAX of the amount specified therein.
(c) The "Termination Date" shall occur for purposes of this
Agreement upon the first to occur of any of the following:
(i) the Effective Time;
(ii) the date which is 90 days after the occurrence of an
Exercise Event (unless prior thereto the Option shall have been
exercised); or
(iii) the termination of the Merger Agreement in any manner in
which Bergen would not be entitled pursuant to Section 8.05(b) of the
Merger Agreement to payment of the amount specified therein.
(d) In the event Bergen wishes to exercise the Stock Option,
Bergen shall send a written notice (a "Stock Exercise Notice") to IVAX
specifying the total number of Option Shares Bergen wishes to purchase, the
denominations of the certificate or certificates evidencing such Option Shares
which Bergen wishes to receive, a date (subject to the earlier satisfaction or
waiver of the conditions set forth in Section 1.03) (a "Closing Date"), which
shall be a business day (as defined in the Merger Agreement) which is not later
than 10 business days and not earlier than the fifth business day after delivery
of such notice, and place for the closing of such purchase (a "Closing").
Notwithstanding the foregoing, IVAX
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shall have the right, exercisable by written notice to Bergen within three
Business Days after receipt of a Stock Exercise Notice, to elect to treat such
Stock Exercise Notice as a Cash Exercise Notice pursuant to Section 1.02(e) for
all purposes of this Agreement, and to pay to Bergen an amount in cash equal to
the Spread (as defined below) within 10 business days following receipt of such
Stock Exercise Notice.
(e) If at any time the Stock Option is then exercisable
pursuant to the terms of Section 1.02(a) hereof, Bergen may elect, in lieu of
exercising the Stock Option to purchase Option Shares as provided in Section
1.02(a) hereof, to send a written notice to IVAX (a "Cash Exercise Notice";
either a Cash Exercise Notice or a Stock Exercise Notice, an "Exercise Notice")
specifying a date not later than 10 business days and not earlier than the fifth
business day following the date such notice is given on which date IVAX shall
pay to Bergen an amount in cash equal to the Spread (as defined below)
multiplied by such number of Option Shares as Bergen shall specify. As used
herein, "Spread" shall mean the excess, if any, over the Purchase Price of the
higher of (x) if applicable, the highest price per share of IVAX Common Stock
paid by any person in a Competing Transaction (the "Competing Purchase Price")
or (y) the closing price of the shares of IVAX Common Stock on the AMEX on the
last trading day immediately prior to the date of the Cash Exercise Notice (the
"Closing Price"). If the Competing Purchase Price includes any property other
than cash, the Competing Purchase Price shall be the sum of (i) the fixed cash
amount, if any, included in the Competing Purchase Price plus (ii) the fair
market value of such other property. If such other property consists of
securities with an existing public trading market, the average of the closing
prices (or the average of the closing bid and asked prices if closing prices are
unavailable) for such securities in their principal public trading market on the
five trading days ending five days prior to the date of the Cash Exercise Notice
shall be deemed to equal the fair market value of such property. If such other
property consists of something other than cash or securities with an existing
public trading market and, as of the payment date for the Spread, agreement on
the value of such other property has not been reached, the Competing Purchase
Price shall be deemed to be the amount of any cash included in the Competing
Purchase Price plus the fair market value of such other property (as determined
by a nationally recognized investment banking firm jointly selected by IVAX and
Bergen). For this purpose, the parties shall use their reasonable commercial
efforts to cause any determination of the fair market value of such other
property to be made within three business days after the date of delivery of the
Cash Exercise Notice. Upon exercise of its right to receive the Spread pursuant
to this Section 1.02(e) or IVAX electing to treat a Stock Exercise Notice as a
Cash Exercise Notice pursuant to Section 1.02(d), the obligations of IVAX to
deliver Option Shares pursuant to Section 1.03 shall be terminated with respect
to such number of Option Shares for which Bergen shall have elected to be paid
the Spread. If at the time payment of the Spread by IVAX is due, IVAX shall not
have consummated a Competing Transaction, IVAX may elect to pay the Spread in
cash or in shares of IVAX Common Stock, valued at the closing price of shares of
IVAX Common Stock on the AMEX on the business day prior to such payment (the
"Closing Date Price").
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SECTION 1.03. Conditions to Closing. The obligation of IVAX to
deliver Option Shares or pay the Spread, as applicable, upon any exercise of the
Stock Option is subject to the following conditions:
(a) Such delivery or payment would not in any material respect
violate, or otherwise cause the material violation of, Section 713 of
the AMEX Company Guide ("Section 713") or any material Law, including,
without limitation, the HSR Act, applicable thereto; and
(b) There shall be no preliminary or permanent injunction or
other final, non-appealable judgment by a court of competent
jurisdiction preventing or prohibiting such exercise of the Stock
Option, the delivery of the Option Shares or payment of the Spread in
respect of such exercise.
SECTION 1.04. Closings. Subject to the provisions of Section
8.05(b) or (c) of the Merger Agreement, as the case may be, at each Closing, (i)
in the event of a Closing pursuant to Section 1.02(d) or 1.02(e) if IVAX shall
have elected to pay the Spread in shares of IVAX Common Stock, IVAX shall
deliver to Bergen a certificate or certificates evidencing the applicable number
of Option Shares (in the denominations specified therein), and Bergen shall
purchase each such Option Share from IVAX at the Purchase Price or the Closing
Date Price, as the case may be, or (ii) in the event of any other Closing
pursuant to Section 1.02(e), IVAX shall deliver to Bergen cash in an amount
determined pursuant to Section 1.02(e). All payments made pursuant to this
Agreement shall be made by wire transfer of immediately available funds.
Certificates evidencing Option Shares delivered hereunder may, at IVAX's
election, contain the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE
WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933 OR AN EXEMPTION THEREFROM.
IVAX shall, upon the written request of the holder thereof, issue such holder a
new certificate evidencing such Option Shares without such legend in the event
(x) such Option Shares have been registered pursuant to the Securities Act, (y)
such Option Shares have been sold in reliance on and in accordance with Rule 144
under the Securities Act or (z) such holder shall have delivered to IVAX an
opinion of counsel, in form and substance reasonably satisfactory to IVAX, to
the effect that subsequent transfers of such Option Shares may be effected
without registration under the Securities Act.
SECTION 1.05. Adjustments upon Share Issuances, Changes in
Capitalization, Etc. (a) In the event of any change in IVAX Common Stock or in
the
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number of outstanding shares of IVAX Common Stock by reason of a stock dividend,
split-up, recapitalization, combination, exchange of shares or similar
transaction or any other extraordinary change in the corporate or capital
structure of IVAX (including, without limitation, the declaration or payment of
an extraordinary dividend of cash, securities or other property), the type and
number of shares or securities to be issued by IVAX upon exercise of the Stock
Option shall be adjusted appropriately, and proper provision shall be made in
the agreements governing such transaction, so that Bergen shall receive upon
exercise of the Stock Option the number and class of shares or other securities
or property that Bergen would have received in respect of IVAX Common Stock if
the Stock Option had been exercised immediately prior to such event, or the
record date therefor, as applicable and elected to the fullest extent it would
have been permitted to elect, to receive such securities, cash or other
property.
(b) In the event that IVAX shall enter into an agreement
(other than the Merger Agreement) (i) to consolidate with or merge into any
person, other than Bergen or any Bergen Subsidiary, and shall not be the
continuing or surviving corporation of such consolidation or merger, (ii) to
permit any person, other than Bergen or any Bergen Subsidiary, to merge into
IVAX and IVAX shall be the continuing or surviving corporation, but, in
connection with such merger, the then outstanding shares of IVAX Common Stock
shall be changed into or exchanged for stock or other securities of IVAX or any
other person or cash or any other property or then outstanding shares of IVAX
Common Stock shall after such merger represent less than 50% of the outstanding
shares and share equivalents of the surviving corporation or (iii) to sell or
otherwise transfer all or substantially all of its assets to any person, other
than Bergen or any Bergen Subsidiary, then, and in each such case, proper
provision shall be made in the agreements governing such transaction so that
Bergen shall receive upon exercise of the Stock Option the number and class of
shares or other securities or property that Bergen would have received in
respect of IVAX Common Stock if the Stock Option had been exercised immediately
prior to such transaction, or the record date therefor, as applicable and
elected to the fullest extent it would have been permitted to elect, to receive
such securities, cash or other property.
(c) The provisions of this Agreement, including, without
limitation, Sections 1.01, 1.02, 1.04 and 3.02, shall apply with appropriate
adjustments to any securities for which the Stock Option becomes exercisable
pursuant to this Section 1.05.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF IVAX
IVAX hereby represents and warrants to Bergen as follows:
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SECTION 2.01. Authority Relative to this Agreement. IVAX is
duly organized and validly existing under the laws of the State of Florida. IVAX
has all necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by IVAX and the consummation by IVAX of the transactions contemplated hereby
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. This Agreement has been duly
executed and delivered by IVAX and, assuming the due authorization, execution
and delivery by Bergen, constitutes a legal, valid and binding obligation of
IVAX, enforceable against IVAX in accordance with its terms. This Agreement is
not required to be adopted by the Board of Directors of IVAX for purposes of
Section 607.0902 of the FBCA or any other Law of similar effect applicable to
IVAX.
SECTION 2.02. Authority to Issue Shares. IVAX has taken all
necessary corporate action to authorize and reserve and permit it to issue, and
at all times from the date hereof through the Termination Date shall have
reserved, all the Option Shares issuable pursuant to this Agreement, and IVAX
shall take all necessary corporate action to authorize and reserve and permit it
to issue all additional shares of IVAX Common Stock or other securities which
may be issued pursuant to Section 1.05, all of which, upon their issuance and
delivery in accordance with the terms of this Agreement, shall be duly
authorized, validly issued, fully paid and nonassessable, shall be delivered
free and clear of all security interests, liens, claims, pledges, options,
rights of first refusal, agreements, limitations on Bergen's voting rights,
charges and other encumbrances of any nature whatsoever (other than this
Agreement) and shall not be subject to any preemptive rights.
SECTION 2.03. No Conflict; Required Filings and Consents. The
execution and delivery of this Agreement by IVAX do not, and the performance by
IVAX of its obligations pursuant to this Agreement and the consummation of the
transactions contemplated hereby will not, (i) require any consent, approval,
authorization or permit of, or filing with or notification to (other than
pursuant to the HSR Act or foreign competition, antitrust or investment law,
state securities and "blue sky" laws and the regulations of the AMEX, if
applicable) any Governmental Entity, (ii) conflict with or violate any provision
of the Articles of Incorporation or Bylaws of IVAX or any equivalent
organizational documents of any IVAX Subsidiary, (iii) assuming that all
consents, approvals, authorizations and permits described in this Section 2.03
have been obtained and all filings and notifications described in this Section
2.03 have been made, conflict with or violate 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 (iv) except as set forth in Section 3.05(a) of the IVAX
Disclosure Schedule, result in any breach of or constitute a default (or an
event which with the giving of 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
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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 clauses (iii) and (iv), for any such conflicts,
violations, breaches, defaults or other occurrences which would neither,
individually or in the aggregate, prevent or materially delay the performance by
IVAX of any of its obligations pursuant to this Agreement.
ARTICLE III
COVENANTS OF IVAX
SECTION 3.01. Listing; Other Action. (a) IVAX shall, at its
expense, use all reasonable efforts to cause the Option Shares to be approved
for listing on the AMEX, subject to notice of issuance, as promptly as
practicable following an Exercise Event, and shall provide prompt notice to the
AMEX of the issuance of each Option Share.
(b) IVAX shall use all reasonable efforts to take, or cause to
be taken, all appropriate action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable Laws to consummate and make
effective the transactions contemplated hereunder, including, without
limitation, using all reasonable efforts to obtain all licenses, permits,
consents, approvals, authorizations, qualifications and orders of Governmental
Entities. Without limiting the generality of the foregoing, IVAX shall when
required in order to effect the transactions contemplated hereunder make all
necessary filings, and thereafter make any other required or appropriate
submissions, under the HSR Act and shall supply as promptly as practicable to
the appropriate Governmental Entity any additional information and documentary
material that may be requested pursuant to the HSR Act.
(c) IVAX shall not take any action in order to cause
intentionally the exercise of the Stock Option to violate Section 713.
SECTION 3.02. Registration. (a) In the event that Bergen shall
desire to sell any of the Option Shares within three years after the purchase of
such Option Shares pursuant hereto, and such sale requires, in the opinion of
counsel to Bergen, which opinion shall be reasonably satisfactory to IVAX and
its counsel, registration of such Option Shares under the Securities Act, IVAX
shall cooperate with Bergen and any underwriters in registering such Option
Shares for resale, including, without limitation, promptly filing a registration
statement which complies with the requirements of applicable federal and state
securities laws and entering into an underwriting agreement with such
underwriters upon such terms and conditions as are customarily contained in
underwriting agreements with respect to secondary distributions; provided,
however, that IVAX shall not be required to have declared effective more than
two registration statements hereunder and shall be entitled
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to delay the filing or effectiveness of any registration statement for up to 120
days if the offering would, in the judgment of the Board of Directors of IVAX,
require premature disclosure of any material corporate development or otherwise
interfere with or adversely affect any pending or proposed offering of
securities of IVAX or any other material transaction involving IVAX. Bergen
agrees to use all reasonable efforts to cause, and to cause any underwriters of
any sale or other disposition to cause, any sale or other disposition pursuant
to such registration statement to be effected on a widely distributed basis so
that upon consummation thereof no purchaser or transferee shall acquire
beneficially more than 1% of the then outstanding voting power of IVAX.
(b) If the IVAX Common Stock is registered pursuant to the
provisions of this Section 3.02, IVAX agrees (i) to furnish copies of the
registration statement and prospectus relating to the Option Shares covered
thereby in such numbers as Bergen may from time to time reasonably request and
(ii) if any event shall occur as a result of which it becomes necessary to amend
or supplement any registration statement or prospectus, to prepare and file
under the applicable securities laws such amendments and supplements as may be
necessary to keep available for at least 90 days a prospectus covering the IVAX
Common Stock meeting the requirements of such securities laws, and to furnish
Bergen such numbers of copies of the registration statement and prospectus as
amended or supplemented as may reasonably be requested. IVAX shall bear the cost
of the registration, including, but not limited to, all registration and filing
fees, printing expenses, and fees and disbursements of counsel and accountants
for IVAX, except that Bergen shall pay the fees and disbursements of its counsel
and the underwriting fees and selling commissions applicable to the shares of
IVAX Common Stock sold by Bergen. IVAX shall indemnify and hold harmless Bergen,
its affiliates and its officers and directors from and against any and all
losses, claims, damages, liabilities and expenses arising out of or based upon
any statements contained in, omissions or alleged omissions from, each
registration statement filed pursuant to this paragraph; provided, however, that
this provision shall not apply to any loss, liability, claim, damage or expense
to the extent it arises out of any untrue statement or omission made in reliance
upon and in conformity with written information furnished to IVAX by Bergen, its
affiliates and its officers and other representatives expressly for use in any
registration statement (or any amendment thereto) or any preliminary prospectus
filed pursuant to this paragraph. IVAX shall also indemnify and hold harmless
each underwriter and each person who controls any underwriter within the meaning
of either the Securities Act or the Exchange Act against any and all losses,
claims, damages, liabilities and expenses arising out of or based upon any
statements contained in, omissions or alleged omissions from, each registration
statement filed pursuant to this paragraph; provided, however, that this
provision shall not apply to any loss, liability, claim, damage or expense to
the extent it arises out of any untrue statement or omission made in reliance
upon and in conformity with written information furnished to IVAX by the
underwriters expressly for use in any registration statement (or any amendment
thereto) or any preliminary prospectus filed pursuant to this paragraph.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BERGEN
Bergen hereby represents and warrants to IVAX as follows:
SECTION 4.01. Authority Relative to this Agreement. Bergen is
duly organized and validly existing under the laws of the State of New Jersey.
Bergen has all necessary corporate power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Bergen and the consummation by Bergen of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action and no
other corporate proceedings on the part of Bergen are necessary to authorize
this Agreement or to consummate such transactions. This Agreement has been duly
executed and delivered by Bergen and, assuming the due authorization, execution
and delivery by IVAX, constitutes a legal, valid and binding obligation of
Bergen, enforceable against Bergen in accordance with its terms.
SECTION 4.02. No Conflict; Required Filings and Consents. The
execution and delivery of this Agreement by Bergen do not, and the performance
by Bergen of its obligations pursuant to this Agreement and the consummation of
the transactions contemplated hereby will not, (i) require any consent,
approval, authorization or permit of, or filing with or notification to (other
than pursuant to the HSR Act or foreign competition, antitrust or investment
law, state securities and "blue sky" laws and the regulations of the NYSE, if
applicable) any Governmental Entity, (ii) conflict with or violate any provision
of the Certificate of Incorporation or Bylaws of Bergen or any equivalent
organizational documents of any Bergen Subsidiary, (iii) assuming that all
consents, approvals, authorizations and permits described in this Section 4.02
have been obtained and all filings and notifications described in this Section
4.02 have been made, conflict with or violate any Law applicable to Bergen or
any Bergen Subsidiary or by which any property or asset of Bergen or any Bergen
Subsidiary is bound or affected or (iv) except as set forth in Section 4.05(a)
of the Bergen Disclosure Schedule, result in any breach of or constitute a
default (or an event which with the giving of 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 Bergen or any Bergen Subsidiary
or on any Option Shares pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation, except, with respect to clauses (iii) and (iv), for any such
conflicts, violations, breaches, defaults or other occurrences which would
neither, individually or in the aggregate, prevent or materially delay the
performance by Bergen of any of its obligations pursuant to this Agreement.
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ARTICLE V
COVENANTS OF BERGEN
Bergen hereby covenants and agrees as follows:
SECTION 5.01. Distribution. Bergen shall acquire the Option
Shares for investment purposes only and not with a view to any distribution
thereof in violation of the Securities Act, and shall not sell any Option Shares
purchased pursuant to this Agreement except in compliance with the Securities
Act and applicable state securities and "blue sky" laws.
ARTICLE VI
TERMINATION OF AGREEMENT
SECTION 6.01. Termination. This Agreement, other than the
rights and obligations of IVAX and Bergen under Sections 3.01, 3.02 and 5.01 and
Article VII, shall terminate on the Termination Date.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendment. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
SECTION 7.02. Waiver. Either party hereto may (a) extend the
time for or waive compliance with the performance of any obligation or other act
of the other party hereto or (b) waive any inaccuracy in the representations and
warranties contained herein or in any document delivered pursuant hereto. 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 7.03. Fees and Expenses. Except as otherwise provided
herein or in Section 8.05 of the Merger Agreement, all Expenses incurred in
connection with this Agreement shall be paid by the party incurring such
expenses.
SECTION 7.04. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to
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have been duly given upon receipt) by delivery in person, by telecopy or
facsimile, by registered or certified mail (postage prepaid, return receipt
requested) or by a nationally recognized courier service to the respective
parties at their addresses as specified in Section 9.02 of the Merger Agreement.
SECTION 7.05. 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 contemplated hereby 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 to the fullest extent permitted by applicable Law in order
that the transactions contemplated hereby may be consummated as originally
contemplated to the fullest extent possible.
SECTION 7.06. 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 without the prior written consent of
the other party. 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 permitted assigns. Notwithstanding anything contained
in this Agreement to the contrary, nothing in this Agreement, express or
implied, is intended to confer on any person other than the parties hereto or
their respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
SECTION 7.07. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
were not 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 in equity.
SECTION 7.08. Governing Law. 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 matters arising under or in
connection with this Agreement, this Agreement shall be governed by the Laws of
the State of New York. All actions and proceedings arising out of or relating to
this Agreement shall be heard and determined in any New York state or federal
court sitting in The City of New York.
SECTION 7.09. Consent to Jurisdiction; Venue. (a) Each of the
parties hereto irrevocably submits to the exclusive jurisdiction of the state
courts of New York and to the jurisdiction of the United States District Court
for the Southern District of New York, for the purpose of any action or
proceeding arising out of or relating to this Agreement and
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each of the parties hereto irrevocably agrees that all claims in respect to such
action or proceeding may be heard and determined exclusively in any New York
state or federal court sitting in The City of New York. Each of the parties
hereto agrees that a final judgment in any action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by Law.
(b) Each of the parties hereto irrevocably consents to the
service of any summons and complaint and any other process in any other action
or proceeding relating hereto, on behalf of itself or its property, by the
personal delivery of copies of such process to such party. Nothing in this
Section 7.09 shall affect the right of any party hereto to serve legal process
in any other manner permitted by Law.
SECTION 7.10. 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 7.11. 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 7.12. Entire Agreement. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior agreements and understandings between 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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
BERGEN XXXXXXXX CORPORATION
By: ________________________
Name:
Title:
IVAX CORPORATION
By: ________________________
Name:
Title:
