EXHIBIT 10.44
March 23, 2000
Andrx Corporation
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Pursuant to an Agreement and Plan of Merger and Reorganization dated
March 23, 2000 (the "Agreement") by and among Andrx Corporation, a Florida
corporation ("Andrx"), Cybear, Inc., a Delaware corporation ("Cybear"), New
Andrx Corporation, a Delaware corporation ("New Andrx") and two wholly owned
subsidiaries of New Andrx, the parties agreed to enter into a reorganization
(the "Reorganization"). Section 6(l) of the Agreement required Cybear to obtain
an agreement from Xx. Xxxxxx X. Xxxxxxx and Xxxx Xxxxx to vote in favor of the
Agreement and the Cybear Merger. Defined terms not defined herein are otherwise
as defined in the Agreement. In connection with the Reorganization, the
undersigned agree as follows:
1. Provided the Agreement is still in effect on the day of the Cybear
Stockholders Meeting, Xx. Xxxxxx X. Xxxxxxx and Xxxx Xxxxx hereby agree to vote
in favor of the Agreement and the Cybear Merger.
2. This letter agreement may not be amended except by a prior written
consent signed on behalf of all of the parties hereto.
3. This letter agreement shall be governed by the laws of the State of
Florida.
4. This letter agreement may be signed in one or more counterparts,
each of which shall be deemed to be an original but all which together shall be
deemed to constitute a single instrument.
5. Whenever possible, each provision or portion of any provision of
this letter 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 letter 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 provisions or portion
of any provision in such jurisdiction, and this letter agreement will be
reformed, construed and enforced in such jurisdiction, and this letter 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.
6. Each of the parties hereto recognizes and acknowledges that a breach
by it of any covenants or agreements contained in this letter 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.
Very truly yours,
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Xx. Xxxxxx X. Xxxxxxx
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Xxxx Xxxxx
CYBEAR, INC., a Delaware Corporation
By:
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Name:
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Title:
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