SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): OCTOBER 18, 1995
IVAX CORPORATION
8800 N.W. 36TH STREET, MIAMI, FLORIDA 33178
305-590-2200
Commission File Number
1-09623
Incorporated under the laws of the I.R.S. Employer Identification Number
STATE OF FLORIDA 16-1003559
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ITEM 5. OTHER EVENTS.
GENERAL
On October 18, 1995, IVAX Corporation ("IVAX") entered into a
Transaction Agreement (the "Agreement"), with Hafslund Nycomed AS, a corporation
organized under the laws of the Kingdom of Norway ("Hafslund Nycomed"), and IVAX
NYCOMED Corporation, a newly-formed Florida corporation ("IVAX NYCOMED"),
pursuant to which IVAX and the medical businesses of Hafslund Nycomed will
become wholly-owned subsidiaries of IVAX NYCOMED. A copy of the Agreement is
included as Exhibit 10.2 to this Form 8-K.
TRANSACTION STRUCTURE
The business combination will be effected as described in this
paragraph. IVAX will become a wholly-owned subsidiary of IVAX NYCOMED and the
IVAX shareholders will receive common shares of IVAX NYCOMED pursuant to the
merger of a newly formed subsidiary of IVAX NYCOMED ("Acquisition Sub") with
IVAX (the "Merger"). Hafslund Nycomed's medical businesses will become a
wholly-owned subsidiary of IVAX NYCOMED pursuant to the following series of
transactions: (1) Hafslund Nycomed will form a new, wholly-owned Norwegian
subsidiary, called "Nycomed AS" ("Nycomed"), to which it will transfer the
assets and liabilities of its medical businesses pursuant to a Purchase and Sale
Agreement and related documents (the "Purchase and Sale Agreement"); (2)
Hafslund Nycomed will transfer all of its shares of Nycomed to IVAX NYCOMED in
exchange for newly-issued shares of IVAX NYCOMED (the "Share Exchange"); (3)
Hafslund Nycomed will contribute its shares in IVAX NYCOMED to a newly formed,
wholly-owned Norwegian subsidiary of Hafslund Nycomed to be called "IVAX NYCOMED
B AS" ("Holdings"); and (4) Hafslund Nycomed will demerge Holdings by
distributing all of the shares of Holdings to its shareholders (the "Demerger
Transaction"). Hafslund Nycomed will retain its Norwegian energy business. The
Merger and the steps described in (1) through (4) above will occur substantially
simultaneously.
Immediately after completion of the transaction: (1) IVAX NYCOMED will
own 100% of the shares of each of IVAX and Nycomed (Hafslund Nycomed's medical
businesses); (2) Hafslund Nycomed's shareholders will own 100% of the shares of
Holdings, which, in turn, will own shares of IVAX NYCOMED; (3) Hafslund
Nycomed's shareholders will own 100% of the shares of Hafslund Nycomed, which
will change its name to "Hafslund AS" and will consist solely of Hafslund
Nycomed's Norwegian energy business; and (4) IVAX's shareholders will own shares
in IVAX NYCOMED.
TRANSACTION CONSIDERATION
IVAX FOR IVAX NYCOMED. Pursuant to the Merger, each outstanding share
of IVAX common stock will be converted into the right to receive one share of
IVAX NYCOMED common stock.
NYCOMED FOR IVAX NYCOMED. Pursuant to the Share Exchange, IVAX NYCOMED
will issue to Hafslund Nycomed, in exchange for all of the shares of Nycomed,
one share of IVAX NYCOMED common stock for each share of Hafslund Nycomed common
stock outstanding.
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STOCK EXCHANGE LISTINGS
Following consummation of the transaction, the common stock of IVAX
NYCOMED is expected to be listed on the American and London Stock Exchanges, and
the common stock of Holdings is expected to be listed on the Oslo and Copenhagen
Stock Exchanges.
BOARD OF DIRECTORS OF IVAX NYCOMED
Upon consummation of the transaction, the board of directors of IVAX
NYCOMED will consist of an equal number of directors selected by each of IVAX
and Hafslund Nycomed.
MANAGEMENT OF IVAX NYCOMED
Following the transaction, Phillip Frost, M.D., currently the Chairman
and Chief Executive Officer of IVAX, will be the Executive Chairman of IVAX
NYCOMED. Svein Aaser, currently the Managing Director of Hafslund Nycomed, will
be the President and Chief Executive Officer of IVAX NYCOMED.
CORPORATE GOVERNANCE OF HOLDINGS
The Articles of Association of Holdings will provide that: (1) the
purpose of the company will be limited to the ownership of shares of IVAX
NYCOMED; (2) IVAX NYCOMED will have the right to appoint one of the five members
of the board of directors of Holdings; and (3) the foregoing provisions of the
Articles of Association may not be amended except by a supermajority vote of the
Holdings shareholders. The form of the Articles of Association of Holdings is
included as Exhibit 10.9 to this Form 8-K.
In addition, IVAX NYCOMED and Holdings will enter into an agreement
(the "Holdings Agreement") designed to make Holdings "transparent" for purposes
of the corporate governance of IVAX NYCOMED. Among other things, the agreement
will: (1) require that any matter which is presented to the shareholders of IVAX
NYCOMED for a vote also be presented to the shareholders of Holdings; (2)
require that Holdings vote its shares of IVAX NYCOMED in the same proportion as
the shares of Holdings were voted; and (3) require that Holdings pass through to
its shareholders any dividends received from IVAX NYCOMED. A copy of the
Holdings Agreement is included as Exhibit 10.6 to this Form 8-K.
RIGHT TO EXCHANGE HOLDINGS SHARES
After consummation of the transaction, the shareholders of Holdings
will have the right, during specified window periods, to exchange their shares
of Holdings for newly issued shares of
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IVAX NYCOMED on a one-for-one basis. This exchange right will be available to
such shareholders for a period of up to 10 years, or until such time as the
number of outstanding shares of Holdings held by public shareholders falls below
10% of the total number of shares of Holdings common stock then outstanding. As
a result of this exchange mechanism, Holdings will, over time, be increasingly
owned by IVAX NYCOMED, although it will continue to hold the shares of IVAX
NYCOMED received in the Share Exchange. The shares of Holdings held by IVAX
NYCOMED will be voted as provided in the Holdings Agreement.
ACCOUNTING TREATMENT
The business combination is expected to be accounted for as a pooling
of interests. The receipt of a letter from Arthur Andersen LLP to this effect is
a condition to completion of the business combination.
TAX CONSEQUENCES TO IVAX SHAREHOLDERS
The Merger of IVAX with Acquisition Sub is expected to qualify as a
tax-free reorganization under Section 368(a) of the Internal Revenue Code.
Accordingly, (1) no gain or loss will be recognized by IVAX, Acquisition Sub,
IVAX NYCOMED, or the IVAX shareholders as a result of the Merger, (2) the basis
of the IVAX NYCOMED common stock received by IVAX shareholders in the Merger
will be the same as their basis in the IVAX common stock surrendered in the
Merger, and (3) the holding period of the IVAX NYCOMED common stock received by
IVAX shareholders in the Merger will include the holding period of the IVAX
common stock surrendered in the Merger. The receipt of a legal opinion to this
effect is a condition to completion of the business combination.
SHAREHOLDER APPROVAL
Under Florida law, the Merger will require the approval of a majority
of the outstanding shares of IVAX.
Under Norwegian law, the Demerger Transaction and the Share Exchange
will require the approval of at least two-thirds of the Hafslund Nycomed Class A
common stock voting at a special meeting called for such purpose, as well as
two-thirds of the total number of Hafslund Nycomed Class A common stock and
Class B common stock represented at such meeting.
VOTING AGREEMENTS
Certain shareholders of IVAX holding approximately 19% of IVAX's
outstanding shares and certain shareholders of Hafslund Nycomed holding
approximately 10% of Hafslund Nycomed's outstanding shares have entered into
agreements pursuant to which such persons have agreed to vote their shares in
favor of the transaction (collectively, the "Voting Agreements"). Copies of the
Voting Agreements are included as Exhibits 10.3 and 10.4 to this Form 8-K.
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REGULATORY APPROVALS
Consummation of the transactions is subject to various regulatory
approvals, including the expiration or termination of the waiting periods under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the
Norwegian Business Acquisition Act of 1993, as amended, the approval of
appropriate governmental authorities under certain European competition laws,
and expiration of a three month Norwegian "creditors' notice period" under the
Norwegian Companies Act of 1976, as amended.
CONDITIONS TO CLOSING
The obligation of each party to consummate the transaction will be
subject to the following conditions, among others: (1) the effectiveness of the
registration statement relating to the IVAX NYCOMED common stock to be issued in
the transaction; (2) the clearance of the applicable disclosure document by the
Oslo Stock Exchange; (3) the approval of the transaction by the shareholders of
Hafslund Nycomed and the shareholders of IVAX; (4) the receipt of all required
governmental consents and approvals, as described under "Regulatory Approvals"
above; (5) the receipt of an opinion from Arthur Andersen LLP that the
transaction will be accounted for as a pooling of interests; (6) the receipt of
opinions of counsel as to certain tax matters relating to the transaction and
the confirmation of the grant of an exemption from the Norwegian government to
the effect that the Share Exchange is tax-free to Hafslund Nycomed and Nycomed;
and (7) the acceptance of Holdings and IVAX NYCOMED shares for listing on the
specified stock exchanges.
The foregoing descriptions of the Agreement, the Purchase and Sale
Agreement, the Voting Agreements, the Holdings Agreement, and the Articles of
Association of Holdings are qualified in their entirety by the full text of such
agreements and documents, copies of which are included as exhibits to this
Current Report on Form 8-K. The business combination is expected to be
consummated in the first half of 1996. There can be no assurance, however, that
the business combination will be consummated, or, if consummated, that it will
be on the same terms described above and in the Agreement.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
10.1 Press Release of IVAX Corporation ("IVAX")
and Hafslund Nycomed AS ("Hafslund Nycomed")
relating to the proposed business
combination.
10.2 Transaction Agreement, dated as of October 18, 1995,
among Hafslund Nycomed, IVAX and IVAX NYCOMED
Corporation, a newly-formed Florida corporation
("IVAX NYCOMED").*
10.3 Voting Agreement, dated as of October 18, 1995,
between IVAX and certain stockholders of Hafslund
Nycomed.
10.4 Voting Agreement, dated as of October 18, 1995,
between Hafslund Nycomed and certain stockholders
of IVAX.
10.5 Form of Purchase and Sale Agreement to be
entered into between Hafslund Nycomed and Nycomed.*
10.6 Form of Agreement to be entered into between
Holdings and IVAX NYCOMED.
10.7 Form of Articles of Incorporation of IVAX NYCOMED.
10.8 Form of Bylaws of IVAX NYCOMED.
10.9 Form of Articles of Association of Holdings.
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* Certain exhibits and schedules to this document have not been filed.
The Registrant agrees to furnish a copy of any omitted schedule or exhibit to
the Securities and Exchange Commission upon request.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
IVAX CORPORATION
/s/ Armando A. Tabernilla
-------------------------------
Armando A. Tabernilla
Vice President -- Legal Affairs
and General Counsel
Date: October 26, 1995
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EXHIBIT 10.1
FOR IMMEDIATE RELEASE
IVAX AND HAFSLUND NYCOMED ANNOUNCE MERGER OF EQUALS FORMING
NEW MULTI-NATIONAL, HEALTH CARE PRODUCTS COMPANY
SUMMARY
IVAX (Miami, Florida), the world's largest generic drug company, and Hafslund
Nycomed (Oslo, Norway), the world's largest diagnostic imaging contrast agent
company, today announced the proposed merger of their complementary health care
businesses. This new company, IVAX NYCOMED CORPORATION, will have an estimated
combined market capitalization of $6.5 billion and will employ over 13,000
people worldwide.
THE MERGER
bullet IVAX NYCOMED unites world leaders in generic pharmaceuticals and
diagnostic imaging contrast media, creating a powerful force in the
research, development, manufacturing and marketing of innovative and
affordable health care products.
bullet IVAX NYCOMED will direct, on a coordinated, global scale, a generic
drug program that is the largest in the world, and a powerful hospital
products program led by a diagnostic imaging contrast media business
with a leading position in the $3.3 billion contrast media industry.
bullet Phillip Frost, Chairman and CEO of IVAX, will become Executive
Chairman of IVAX NYCOMED. Svein Aaser, President and CEO of Hafslund
Nycomed, will become President and CEO. IVAX and Hafslund Nycomed
directors will have equal representation on the new Board of Directors.
bullet The management expects that the combination of IVAX and Hafslund
Nycomed will result in a company with combined 1995 revenues in excess
of $2.5 billion, a stronger balance sheet, significantly greater cash
flow from operations, and more predictable and more stable earnings.
bullet Shareholders of IVAX and Hafslund Nycomed will receive shares in the
merged IVAX NYCOMED on a 1:1 exchange basis. Hafslund Nycomed's energy
business will be separated from the combined health care products
company. Pending stockholder and regulatory approvals, closing is
expected in the first half of 1996.
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BENEFITS OF THE MERGER
bullet The resulting company will be by far the largest generic drug company
in the world. It will offer a broad generic drug portfolio, a selection
of branded drugs, and an array of products featuring specialized drug
delivery technologies.
bullet Hafslund Nycomed's leading position in the contrast media segment of
the diagnostic imaging business will be augmented by IVAX's intravenous
solutions products, giving the new company a broader and more
competitive product portfolio.
bullet Manufacturing efficiencies, improved productivity and cost savings
through coordinated sourcing of raw materials and packaging components.
bullet Strengthened R&D capacity in both pharmaceuticals and diagnostic
imaging. The integration and scale of the combined R&D program, and the
greater resources available to it, are expected to improve the
company's new drug development success rate and R&D efficiencies.
bullet Substantial synergies, principally from improved marketing and
distribution channels, expected to account for an incremental yearly
pre-tax contribution of $100 million by the third year of operation.
Phillip Frost, M.D., IVAX' Chairman and CEO, said of the merger, "IVAX and
Hafslund Nycomed - both pioneers and world leaders in their respective
industries - will be combined into one unified, powerful company with the
financial strength, product base, global reach, and the scientific and technical
expertise necessary to excel in the rapidly changing and ever competitive health
care industry. Together, we will be committed to one goal: providing superior
health care products that meet the needs of patients, payors and society
worldwide, by maintaining leadership positions in diagnostic imaging products
and generic pharmaceuticals and developing and marketing hospital and innovative
pharmaceutical products in targeted therapeutic areas. We will meet these needs
in two ways: by providing high quality, affordable generic pharmaceuticals which
provide patients and payors with a lower cost alternative to existing therapies,
and by providing innovative products that either fill important therapeutic or
diagnostic voids, or that represent significant advances over existing
products."
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Svein Aaser, Hafslund Nycomed's President and CEO, offered his view of the
combination: "The merger presents tremendous opportunities to enhance revenues
through the registration and sale of IVAX' generic drugs in markets where
Hafslund Nycomed is strong, particularly in the Nordic countries. The alliance
of Hafslund Nycomed's world-leading contrast media business with IVAX'
intravenous solutions business, which will permit both businesses to reap the
benefits of our excellent global hospital relationships and complementary
product lines, will enhance revenues as well. In addition, we will marry our
leading research and development programs to produce the largest and most
prolific generic drug and contrast imaging development programs in the world.
Although we will enjoy cost savings in the process, we are not so much trimming
fat as we are adding lean muscle, and we will emerge as a dynamic new health
care products company that is far stronger than its constituent parts -- and far
stronger than its competitors."
This merger of equals transaction will be treated as a pooling-of-interests
under both U.S. and Norwegian accounting standards. Dr. Phillip Frost and Mr.
Terje Mikalsen, the Chairman and largest individual shareholders of IVAX and
Hafslund Nycomed, respectively, have agreed to vote their shares in favor of the
merger. Merrill Lynch, financial advisor to Hafslund Nycomed, assisted in all
aspects of the negotiations, and rendered a fairness opinion to the Board of
Directors of Hafslund Nycomed. The Board of Directors of IVAX received an
opinion from Dillon Read & Co. Inc. as to the fairness of the merger.
NOTES TO EDITORS
IVAX is a holding company with subsidiaries involved in generic and branded
pharmaceuticals, intravenous solutions and related products, medical
diagnostics, personal care products, and specialty chemicals.
Hafslund Nycomed is primarily engaged in the R&D, production, distribution and
licensing of medical imaging contrast media, a broad range of prescription and
OTC therapeutic drugs, and in the generation and transmission of hydroelectric
power.
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ENQUIRIES:
IVAX
Michael W. Fipps, Chief Financial (1) 305-590 2318
Officer
Joseph Jones, Investor Relations (1) 305-590-2423
Armando A. Tabernilla, General (1) 305-590 2401
Counsel
HAFSLUND NYCOMED
Eric Cameron, Corporate (47) 2296-3449
Communications
Alex Gundersen, Investor Relations (47) 2296-3483
FINSBURY
Rupert Younger (44) 171 251-3801
Roland Rudd (44) 171 251-3801
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FULL TEXT
IVAX AND HAFSLUND NYCOMED
ANNOUNCE MERGER OF EQUALS FORMING NEW
MULTI-NATIONAL HEALTH CARE PRODUCTS COMPANY
bullet STRATEGIC $6.5 BILLION TRANSACTION UNITES WORLD LEADERS IN
GENERIC PHARMACEUTICALS AND DIAGNOSTIC IMAGING CONTRAST MEDIA.
bullet MERGER CREATES POWERFUL GLOBAL HEALTH CARE PRODUCTS COMPANY
WITH STRONG BALANCE SHEET AND CASH FLOW FROM DIVERSIFIED
REVENUE SOURCES.
bullet LEADING GENERICS BUSINESS: MERGER STRENGTHENS WORLD'S LARGEST
GENERIC DRUG COMPANY; CREATES WORLD'S MOST COMPREHENSIVE
GENERIC DRUG DEVELOPMENT PROGRAM; BROADENS GENERIC DRUG
PORTFOLIO; CREATES WORLD'S LARGEST GENERIC DRUG DISTRIBUTION
NETWORK.
bullet STRONG HOSPITAL PRODUCTS BUSINESS: STRONG HOSPITAL PRODUCTS
COMPANY LED BY WORLD'S LARGEST IMAGING CONTRAST MEDIA COMPANY
AND ESTABLISHED INTRAVENOUS SOLUTIONS BUSINESS; EXTENSIVE
HOSPITAL DISTRIBUTION CHANNELS IN PLACE; INNOVATIVE PRODUCTS
IN DEVELOPMENT.
bullet COMPLEMENTARY GEOGRAPHIC STRENGTHS AND COORDINATED GLOBAL
MARKETING AND DISTRIBUTION NETWORKS.
bullet TARGETED R&D PROGRAMS FOR INNOVATIVE DRUGS AND DIAGNOSTIC
IMAGING PRODUCTS; ADVANCED PIPELINE IN IMPORTANT THERAPEUTIC
AREAS.
bullet IVAX AND HAFSLUND NYCOMED SHAREHOLDERS EXCHANGE SHARES ON A
1:1 BASIS; HAFSLUND NYCOMED ENERGY BUSINESS NOT INCLUDED IN
COMBINED HEALTHCARE COMPANY; CLOSING EXPECTED IN FIRST HALF
1996.
MIAMI, FLORIDA and OSLO, NORWAY - October 18, 1995. IVAX Corporation
(AMEX:IVX) and Hafslund Nycomed Corporation (NYSE:HN) today jointly announced
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the execution of a definitive agreement to combine their complementary health
care products businesses in a transaction that will unite the world's largest
generic drug company and the world's largest diagnostic imaging contrast media
company. The $6.5 billion transaction will create a new multi-national leader in
the research, development, manufacturing and marketing of high-quality and
affordable health care products.
The new company, named IVAX NYCOMED CORPORATION, will direct, on a coordinated,
global scale, a generic drug program that, in terms of revenues, is nearly twice
the size of its nearest competitor, as well as a powerful hospital products
program led by a diagnostic imaging contrast media business that holds a leading
position in this $3.3 billion industry. In 1995 the two companies expect
combined revenues in excess of $2.5 billion. Together, IVAX and Hafslund Nycomed
will be strategically positioned to meet the needs of patients, payors and
society in the increasingly competitive global health care products market.
THE UNION OF WORLD LEADERS IN GENERIC DRUGS AND IMAGING AGENTS
IVAX Corporation, headquartered in Miami, Florida, is the world's largest
generic drug company and a leader in the intravenous solutions industry.
Hafslund Nycomed Corporation, headquartered in Oslo, Norway, is the world's
largest diagnostic imaging contrast media company and also has a strong presence
in generic and proprietary pharmaceuticals in key European markets. The two
companies will combine their respective skills, global distribution channels and
resources in order to succeed on an even grander scale in the research,
development, manufacture and sale of a broad range of generic and innovative
pharmaceuticals, contrast media for X-ray, magnetic resonance imaging ("MRI"),
nuclear medicine and ultrasound applications, large volume intravenous solutions
and related products, and specialized, proprietary drug delivery technologies.
The combined company will possess the advanced science and technology, critical
mass and efficiencies of scale necessary to maintain and extend its sizable lead
in these industries.
Phillip Frost, M.D., IVAX' Chairman and CEO, said of the merger, "IVAX and
Hafslund Nycomed - both pioneers and world leaders in their respective
industries - will be combined into one unified, powerful company with the
financial strength, product base, global reach, and the scientific and technical
expertise necessary to excel in the rapidly changing and ever competitive health
care industry. Together, we will be committed to one goal: providing superior
health care products that meet the needs of patients, payors and society
worldwide, by maintaining leadership positions in diagnostic imaging products
and generic pharmaceuticals and developing and marketing hospital and innovative
pharmaceutical products in targeted therapeutic areas. We will meet these needs
in two ways: by providing high quality, affordable generic pharmaceuticals which
provide patients and payors with a lower cost alternative to existing therapies,
and by providing innovative products that either fill important therapeutic or
diagnostic voids, or that represent significant advances over existing
products."
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Svein Aaser, Hafslund Nycomed's President and CEO, offered his view of the
combination: "The merger presents tremendous opportunities to enhance revenues
through the registration and sale of IVAX' generic drugs in markets where
Hafslund Nycomed is strong. The alliance of Hafslund Nycomed's world-leading
contrast media business with IVAX' intravenous solutions business, which will
permit both businesses to reap the benefits of our excellent global hospital
relationships and complementary product lines, will enhance revenues as well. In
addition, we will marry our leading research and development programs to produce
the largest and most prolific generic drug and contrast imaging development
programs in the world. Although we will enjoy cost savings in the process, we
are not so much trimming fat as we are adding lean muscle, and we will emerge as
a dynamic new health care products company that is far stronger than its
constituent parts -- and far stronger than its competitors."
Both CEOs agree that the combination of IVAX and Hafslund Nycomed is a wonderful
strategic fit, largely due to the reciprocal growth strategies employed by the
companies over the last few years. Both companies have emphasized the global
expansion of their businesses, recognizing that the patient populations of our
respective homelands make up just a small fraction of the world's patient
population. To this end, the combination springboards both companies into the
established international markets of the other. To another, equally critical
strategic end, both companies have also undertaken prudent strategies to
diversify their sources of revenue. IVAX did so through the 1994 acquisition of
McGaw, its intravenous products subsidiary, whose business is very compatible
with Hafslund Nycomed's contrast media business. Hafslund Nycomed did so by
building its pharmaceuticals subsidiary, Nycomed Pharma, whose business
complements IVAX' generic business. Each company's emerging business augments
the other's established, world-leading business, so that the combined company's
revenue stream is derived from diverse sources, featuring both stability and
high growth potential.
THE BUSINESS OF THE COMBINED COMPANIES
The scale of IVAX NYCOMED's operations will be substantial, with over 13,000
employees worldwide, over 1,300 of which will be coordinated in one of the
largest, most comprehensive R&D programs in the generic drug and contrast media
industries.
GENERIC PHARMACEUTICAL BUSINESS. Generic pharmaceutical products are
therapeutically identical to their brand name counterparts, but are generally
sold at lower, more affordable prices. To maximize generic sales and margins,
IVAX NYCOMED's generic drug program will focus on the development of difficult
to replicate drugs and drugs for which large patient populations exists. Its
generic mission will be to offer not only the broadest line of generic drugs
available, but to offer an array of products featuring specialty or niche
technologies not generally offered by other broad line suppliers. These
technologies include sustained release products, soft gelatin capsules, sterile
liquid products in blow-fill-seal containers, creams and ointments, and a
variety of metered dose inhalers for respiratory diseases.
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Generic drug sales of this new giant will be by far the largest in the world --
nearly twice the size of its nearest competitor. The combined company will have
1995 generic drug revenues exceeding $1 billion. It will have an extensive
manufactured generic drug portfolio featuring several hundred products in a
broad range of therapeutic categories; a team of over 100 scientists and staff
working exclusively on the development of new generic applications for
submission to regulatory bodies around the world; more than 70 active generic
projects; and annual generic R&D expenditures exceeding the industry average.
Management believes that a generic drug R&D program on such a scale will result
in an improved success rate in the generic drug approval process. In the
increasingly competitive generic industry, new generic drug approvals are
generally considered critical for success, and IVAX' generic drug pipeline has
been among the industry's most prolific. In 1995, IVAX has received, to date,
more U.S. generic drug approvals than any other company.
IMAGING CONTRAST MEDIA BUSINESS. Hafslund Nycomed is the global leader in the
development of safe and effective contrast agents for all major diagnostic
imaging technologies: X-ray, MRI and ultrasound. Contrast agents are an
essential component of imaging diagnostics. By improving the contrast of the
images obtained physicians can better detect and pinpoint abnormalities in body
organs and other soft tissues without invasive surgery.
Hafslund Nycomed pioneered the development of X-ray contrast agents, including
the non-ionic agents which are safer and better tolerated than the older ionic
agents. Hafslund Nycomed's lead X-ray product, Omnipaque(Registered trademark),
is a highly stable non-ionic contrast agent with excellent safety and tolerance
profiles for a wide range of diagnostic applications. It has annual worldwide
sales of over $1 billion, commands a 40% world market share, and is the
top-selling hospital product in the United States.
Hafslund Nycomed has also developed a new X-ray diagnostic product called
Visipaque(Registered trademark), a non-ionic dimeric contrast medium. While most
currently available non-ionic X-ray contrast media have only three X-ray
absorbing iodine atoms per particle, Visipaque contains six. In addition,
Visipaque is isotonic to human blood, has a biological profile that is well
suited for cardiovascular procedures, and is one of the safest X-ray contrast
agents available. Visipaque has already been approved for sale in nine
countries, including the United Kingdom, Germany, Spain and Norway. In the U.S.,
Visipaque has received an "approvable letter" from the FDA, and Hafslund Nycomed
expects to launch Visipaque in the U.S. by late 1995 or early 1996.
Omniscan(Registered trademark) is a non-ionic gadolinium-based contrast medium
developed by Hafslund Nycomed for MRI applications. The non-ionic nature of
Omniscan makes it a potentially safer and more effective MRI contrast medium
than available ionic agents, particularly for procedures requiring rapid
injection of large doses. Hafslund Nycomed developed Omniscan primarily as an
MRI contrast medium for the central nervous system but intends to expand its use
for general vascular applications, as well. Another MRI contrast
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medium, Abdoscan, was developed for the general detection of diseases in the
gastrointestinal region.
The contrast media development strategy of the combined company will be to
maintain its world-dominant position in X-ray contrast agents and to be on the
leading edge of advancements in contrast technologies for the growing MRI,
ultrasound and nuclear technologies. In that regard, Hafslund Nycomed has
promising programs for the development of an organ-specific contrast agent for
X-ray CAT scans of the liver, an MRI liver agent, nano-particle X-ray agents for
the lymph and gastrointestinal systems, a next generation ultrasound perfusion
contrast agent, and targeting peptide compounds for nuclear medicine.
Like its generic drug business, IVAX NYCOMED's contrast media business will be
the largest in the world. Management believes that its R&D efforts will permit
IVAX NYCOMED to maintain Hafslund Nycomed's tradition as a pioneer of advanced
contrast media technology.
INTRAVENOUS SOLUTIONS AND RELATED PRODUCTS. Through its McGaw subsidiary, IVAX
manufactures and sells a broad line of large and small volume intravenous
solutions and related products, including basic and specialty nutrition
solutions, blood plasma expanders, and a line of sophisticated intravenous
infusion pumps. IVAX is developing a proprietary admixture system called
Duplex(Trademark) which holds tremendous potential as a delivery system for a
range of injectable drugs and is believed to be superior to competing systems.
With the Duplex system, the IV solution and drug to be mixed with it are held in
separate compartments of the same IV bag until needed. The seal separating them
is then broken prior to administration, resulting in rapid and efficient mixing.
IVAX' IV solutions business is compatible with Hafslund Nycomed's contrast media
business. Both companies sell primarily to hospital markets and, in that
respect, IVAX' line, including Duplex, when marketed, will benefit substantially
from access to Hafslund Nycomed's excellent U.S. hospital relationships, as it
will from access to Hafslund Nycomed's international hospital distribution
channels. IVAX' intravenous solutions bags, made from its proprietary
Excel(Registered trademark) plastic, are expected to be adapted for use with
Hafslund Nycomed's contrast imaging media. Because Excel bags do not emit toxic
hydrogen chloride gas like competing PVC plastics when incinerated, Hafslund
Nycomed's contrast media products, in addition to being technologically
superior, will have environmental advantages.
PROPRIETARY DRUG PROGRAM. IVAX NYCOMED's proprietary pharmaceuticals program
will focus on the development of innovative drugs which fill important
therapeutic voids or which represent significant advances over existing
pharmaceutical therapies. Areas receiving particular attention are urology,
oncology, CNS, respiratory, pain and hospital products. Some of the most
promising products under development are Elmiron(Registered trademark) to treat
the debilitating bladder disease known as interstitial cystitis (marketed in
Canada; NDA filed in the U.S.); Cervene(Trademark) to control central nervous
system damage following ischemic
9
<PAGE>
stroke (Phase III trials); nalmefene to reverse the effects of narcotic
anesthesia and overdoses (licensed to Ohmeda in U.S. and Canada; NDA approved;
marketed in the U.S.; to be registered worldwide by IVAX); nalmefene for the
treatment of alcoholism (Phase II trials); paclitaxel for the treatment of
ovarian, breast and other cancers (Phase III trials); Lornoxicam, a safe,
reliable and effective non-steroidal analgesic/anti- rheumatic for the treatment
of post-operative pain; and CNS anti cancer, an agent consisting of a target
seeking carrier protein and a modified bacterial toxin against brain tumours;
and hemoregulatory peptide, a substance that stimulates the relief of growth
factors in the bone marrow and accelerates regeneration of cells in the blood
and immune systems.
IVAX NYCOMED will have a powerful respiratory drug franchise centered around its
expertise with a variety of metered dose inhaler technologies. Worldwide, IVAX
has sold tens of millions of conventional metered dose inhalers containing
albuterol, beclomethasone, and cromolyn sodium. IVAX has an application pending
in the U.S. for a conventional metered dose inhaler version of albuterol. This
particular product is already being sold in the U.K., Canada and 25 other
countries. In 1995, IVAX received approval to market a variety of asthma
medications, including albuterol and beclomethasone, in its innovative, patented
breath activated inhaler called Easi-Breathe(Trademark) in the United Kingdom
and Ireland, and applications are pending in other countries. Unlike
conventional inhalers, which require the patient to coordinate the manual
discharge of the medication with the act of inhaling, Easi-Breathe releases the
exact dosage automatically upon the patient's inhalation, minimizing the
coordination problems experienced by over half of all patients using inhalers.
IVAX NYCOMED will also dedicate considerable resources to the completion of
IVAX' advanced, promising programs for the development of non-CFC and multi-dose
dry powder inhalers.
SUMMARY OF THE TRANSACTION
The steps involved in the combination of IVAX CORPORATION and Hafslund Nycomed,
which will occur substantially simultaneously, are as follows: IVAX NYCOMED
CORPORATION is a newly organised Florida Corporation. IVAX will become a
wholly-owned subsidiary of IVAX NYCOMED and IVAX shareholders will receive
common shares of IVAX NYCOMED on a one-for-one basis. Hafslund Nycomed's medical
businesses will be transferred to a wholly-owned subsidiary of Hafslund Nycomed
called "NYCOMED AS," and Hafslund Nycomed shareholders will receive shares in
IVAX NYCOMED on a one-for-one basis through share ownership of a Norwegian
holding company called IVAX NYCOMED B. Hafslund Nycomed will retain its energy
business and change its name to "Hafslund AS." After completion of the merger:
IVAX NYCOMED will own 100% of the shares of each of IVAX and NYCOMED AS (the
company holding Hafslund Nycomed's medical businesses); Hafslund Nycomed's
shareholders will own 100% of the shares of IVAX NYCOMED B (which will, in turn,
hold shares of IVAX NYCOMED for the benefit of IVAX NYCOMED B's shareholders);
Hafslund Nycomed's shareholders will in addition own 100% of the shares of
Hafslund AS; and IVAX' shareholders will own shares in IVAX NYCOMED.
10
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After the merger IVAX NYCOMED CORPORATION would, assuming the merger was
completed today, have approximately 218 million shares outstanding. Hafslund
Nycomed's shareholders will through NYCOMED B own one common share of IVAX
NYCOMED CORPORATION for each share of Hafslund Nycomed, which in the aggregate
will be approximately 46% of the common shares of IVAX NYCOMED CORPORATION, and
will in addition own all of the shares of Hafslund AS (the company holding
Hafslund Nycomed's Norwegian energy business). IVAX' shareholders will own one
common share of IVAX NYCOMED CORPORATION for each common share of IVAX, which in
the aggregate will be approximately 54% of the common shares of IVAX NYCOMED
CORPORATION.
Shares of IVAX NYCOMED are expected to be traded on the American and London
Stock Exchanges. Shares of IVAX NYCOMED B are expected to be traded on the Oslo
and Copenhagen Stock Exchanges. Hafslund AS shares are expected to be listed on
the Oslo Stock Exchange.
The transaction will be accounted for as a pooling-of-interests under both U.S.
and Norwegian accounting standards.
The merger between IVAX NYCOMED CORPORATION and IVAX will be a tax-free
transaction under US tax rules to all IVAX U.S. shareholders. Hafslund Nycomed's
exchange of shares of NYCOMED AS for common shares of IVAX NYCOMED CORPORATION
will, subject to grant of tax relief from the Norwegian government, be tax-free.
The Norwegian Ministry of Finance has advised Hafslund Nycomed that it will
support the grant of such tax relief. The demerger of Hafslund Nycomed will be
tax-free. The demerger of Hafslund Nycomed will have tax consequences for
certain of Hafslund Nycomed's non-Norwegian shareholders. For Hafslund Nycomed's
US shareholders at the time of the closing, the demerger is expected to be
treated as the distribution of a dividend. For Hafslund Nycomed's UK
shareholders at the time of the closing, the demerger is expected to lead to
capital gains taxation. For Hafslund Nycomed's Danish shareholders at the time
of the closing, the demerger would under generally applicable Danish tax rules
be treated as the distribution of a dividend, but Hafslund Nycomed will file an
application seeking capital gains treatment instead of dividend treatment. The
Danish tax authorities' response to such application is expected to be available
in late November.
The transaction has been approved by the Board of Directors of both companies
and is contingent upon approval by both companies' shareholders and by various
regulatory and governmental agencies in the U.S. and Norway. Shareholders of
IVAX (including Dr. Frost) holding an aggregate of 19% of IVAX' outstanding
shares have agreed to vote their shares in favor of the merger. The members of
the Board of Hafslund Nycomed, holding an aggregate of 10% of Hafslund Nycomed's
outstanding shares, have also agreed to vote their shares in favor of the
merger. Merrill Lynch, financial advisor to Hafslund Nycomed, assisted in all
aspects of the negotiations, and rendered a fairness
11
<PAGE>
opinion to the Board of Directors of Hafslund Nycomed. The Board of Directors of
IVAX received an opinion from Dillon Read as to the fairness of the merger.
The merger is contingent upon approval by both companies' shareholders and
various regulatory and governmental agencies in the U.S. and Norway. Closing is
expected to take place during the first half of 1996.
COMBINED LEADERSHIP
Consistent with the merger of equals transaction structure, the IVAX NYCOMED
Board of Directors will be comprised of an equal number of directors designated
by each company. Senior management of IVAX and Hafslund Nycomed will be combined
to form the global management team. Phillip Frost, M.D., IVAX' founder,
Chairman, Chief Executive Officer and largest individual shareholder, will serve
as Chairman of the Board of IVAX NYCOMED. Svein Aaser, presently Hafslund
Nycomed's President and Chief Executive Officer, will serve as IVAX NYCOMED's
President and Chief Executive Officer. Both Dr. Frost and Mr. Aaser will be
active in the management and affairs of IVAX NYCOMED. Terje Mikalsen, Hafslund
Nycomed's Chairman, will be Vice Chairman of IVAX NYCOMED and Chairman of the
Executive Committee. Isaac Kaye, Deputy Chief Executive Officer of IVAX and head
of IVAX' United Kingdom operations, will be Deputy Chairman of IVAX NYCOMED. It
is expected that Dr. Frost will be the largest individual shareholder of the new
company.
Reflecting the multi-national scope of its business, IVAX NYCOMED will maintain
its coordinating international headquarters in London and its United States
headquarters in Miami, with a main office in Oslo. The combined company will
have over 13,000 employees worldwide and have operations in more than 40
countries including the U.S., the Nordic Region, Benelux, UK and Ireland,
Germany, France, Russia, Eastern Europe and China.
The transaction places a value on IVAX NYCOMED in excess of $6.5 billion based
on the closing price of IVAX shares on October 15, 1995. Subject to final board
approval, dividends are expected to be paid on an annual basis, and are expected
to be $.16 per IVAX NYCOMED common share during 1996. The shareholders of IVAX
NYCOMED B shares will receive their dividends in Norwegian Kroners.
SYNERGIES AND OTHER BENEFITS OF THE MERGER
COMPLEMENTARY WORLDWIDE DISTRIBUTION OPERATIONS. The combined company is
expected to significantly benefit from operating synergies by coordinating
global marketing and distribution networks. The combination will afford IVAX the
opportunity to maximize sales of existing and new products in the markets where
Hafslund Nycomed is strong. Similarly, Hafslund Nycomed can maximize sales of
its products in markets where IVAX has a leading presence, particularly the U.S.
and the U.K., where IVAX is, in terms of units sold, the largest pharmaceutical
company.
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BROAD PRODUCT PORTFOLIO. IVAX NYCOMED will offer a broad generic drug portfolio
featuring several hundred manufactured products in a broad range of therapeutic
categories, in addition to a range of branded drugs. Management expects that the
wider portfolio of products offered by the combined company will permit IVAX
NYCOMED to better meet the needs of the increasing number of institutions and
other large volume purchasers which prefer buying from fewer sources, permitting
them to "one stop shop."
COMPLEMENTARY HOSPITAL PRODUCTS BUSINESSES. The combination will result in a
larger, stronger hospital products business with global distribution channels.
Hafslund Nycomed's imaging and IVAX' McGaw subsidiary principally market their
hospital products to institutions which tend to be very sophisticated and
cost-conscious. The combined company will benefit from the strong and, in some
cases, exclusive hospital relationships enjoyed by Hafslund Nycomed and McGaw,
particularly Hafslund Nycomed's hospital ties resulting from its world
leadership position in the medical imaging business. In addition, Hafslund
Nycomed's existing marketing infrastructure in Europe should enable McGaw to
more effectively expand the geographic scope of its business and launch its new
Duplex-based products internationally.
MANUFACTURING EFFICIENCIES. International expansion of markets will require
increased production, which will permit IVAX NYCOMED to benefit from
manufacturing efficiencies, including greater utilization of existing
facilities, cost savings derived from coordinated sourcing of raw materials and
packaging components, and the elimination of redundancies.
R&D EFFICIENCIES. IVAX NYCOMED's R&D program will be coordinated globally and
consolidated where appropriate to take advantage of complementary R&D skills and
projects. The integration and scale of the combined R&D program, and the greater
resources available to it, are expected to enhance the efficiency and
productivity of the company's new drug development program. The greater
financial resources of the combined companies will provide sufficient funds for
Hafslund Nycomed to maintain and advance its leadership position in the contrast
media industry, will enable IVAX NYCOMED to pursue a broader generic drug
development program, and will permit it to more effectively pursue targeted
development programs for innovative drugs.
SOUND FINANCIAL POSITION. IVAX NYCOMED will begin operations with a sound
balance sheet. Because the merger will be accounted for as a pooling of
interests, there will be no costs associated with the amortization of goodwill.
IVAX NYCOMED's strong cash flow and relatively low debt ratio will permit it to
pursue strategic acquisitions and invest in the development of existing and new
businesses, technologies and research programs.
IVAX' revenues and net profits for the first nine months of 1995 are expected to
be approximately $900 million and $79 million (or $.66 per share), which include
estimated revenues and net profits of $310 million and $27 million (or $.23 per
share) for the 1995 third quarter. IVAX' third quarter was adversely affected by
a decline in the gross margin
13
<PAGE>
in its U.S. generic drug business resulting from delays associated with the
launch of certain of its recently approved, higher margin manufactured products
and competitive pressures for existing products. IVAX and Hafslund Nycomed are
each expected to announce their actual financial results for the third quarter
and first nine months of 1995 in early November 1995.
FAVORABLE IMPACT OF MERGER ON RESULTS AND CASH FLOW. Due to the nature of
Hafslund Nycomed's business, including its leadership position in the contrast
imaging products market, management expects that the combination of IVAX with
Hafslund Nycomed will, in general, result in a corporation with significantly
greater cash flow from operations and more predictable and more stable earnings.
It will also provide revenues from two diverse sources of revenue, mitigating
the impact of fluctuations in either the generic or contrast media industries.
OTHER SYNERGIES. Synergies will principally arise from additional sales due to
the improved marketing and distribution channels of the combined company. The
global expansion of both companies' businesses should generate higher income,
and the coordination of R&D, marketing, manufacturing and administration should
reduce operating expenses. Together, the synergies associated with the
transaction may account for an incremental yearly pre-tax contribution of up to
$100 million by the third year of operation.
ANTICIPATED REVENUE DRIVERS
Following the merger, IVAX NYCOMED is expected to experience short term revenue
growth related to the introduction of each company's existing products into the
markets of the other, as well as from the launch of new generic drugs as they
are approved. In the intermediate-term, revenues are expected to show further
improvement as IVAX NYCOMED's specialized drug delivery technologies, such as
its Duplex(Registered trademark) admixture system and its conventional, breath
activated and dry powder inhalers reach global markets. In the long term,
revenue growth is expected to further improve as various important proprietary
pharmaceuticals, such as Elmiron, Cervene and paclitaxel, and new contrast
media, are approved and marketed around the world.
--------------------
IVAX Corporation, headquartered in Miami, Florida, is a holding company with
subsidiaries engaged in the research, development, manufacturing and marketing
of generic and branded pharmaceuticals, intravenous solutions and related
products, IN VITRO diagnostics, personal care products and specialty chemicals.
Hafslund Nycomed Corporation, headquartered in Oslo, Norway, is a pioneer in the
development of some of the safest, most effective and most broadly distributed
imaging contrast agents available. It also manufactures a range of branded and
generic prescription and OTC drugs and consumer health care products. It also
has a division, not part of the proposed merger, engaged in the production of
hydroelectric power.
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APPENDIX 2
DESCRIPTION OF IVAX' BUSINESS
IVAX Corporation (AMEX:IVX), headquartered in Miami, Florida, is a diversified,
multi-national health care company with subsidiaries engaged in the research,
development, manufacture and sale of branded and generic pharmaceuticals,
intravenous solutions and related products, IN VITRO diagnostics, personal care
products and specialty chemicals. Founded in 1987, IVAX has grown to become the
largest generic pharmaceutical company in the world with one of the most
extensive generic drug development programs in the industry. IVAX had 1994
revenues of $1.13 billion and has over 8,000 employees working in facilities
around the world.
IVAX' goal is to develop, manufacture and market high-quality health care
products to patients, providers and payors of health care around the world. To
that end, IVAX has built a generic drug development program focusing on those
products which are either difficult to replicate or which are used to treat
large patient populations. Thus far in 1995, IVAX' generic drug program has been
as prolific as any in the industry. In addition to generics, IVAX is dedicated
to the development of proprietary drugs, and at present has a variety of
promising projects in important therapeutic categories, including cancer,
interstitial cystitis, and central nervous system damage caused by stroke. IVAX
also has expertise with a variety of specialized drug delivery systems,
including extended release drug formulations, soft gelatin capsules,
blow-fill-seal packaged products, and conventional, breath-activated, and
multi-dose dry powder inhalers. IVAX' Norton Healthcare subsidiary is the
largest pharmaceutical company in the U.K. in terms of units sold. IVAX' McGaw
subsidiary is a United States leader in intravenous solutions and related
products, and has promising new products in development, including the
innovative Duplex(Trademark) admixture system. International expansion is an
important part of IVAX' overall growth strategy and, in addition to leadership
positions in North America, the U.K. and Ireland, IVAX has extended its
operations into the Czech and Slovak Republics, Russia, Poland, Italy, Hong
Kong, Germany, China, Puerto Rico and the U.S. Virgin Islands. FORTUNE has named
IVAX on its list of the 100 Fastest Growing Companies four times, most recently
in 1995. FORBES, in its 1995 Annual Report on American Industry, ranked IVAX
first of all companies in terms of five-year annual earnings per share growth.
<PAGE>
APPENDIX 3
DESCRIPTION OF HAFSLUND NYCOMED'S BUSINESS
Hafslund Nycomed (NYSE:HN) is a multi-national pharmaceutical company,
specializing in diagnostic imaging contrast media and multi-source
pharmaceuticals. From its headquarters in Oslo, Norway, the company employs
5,800 people at operating locations in 39 countries. In 1994, Hafslund Nycomed
had revenues of $1,245 million and net income of $143 million. Six month 1995
revenues and net income were $782 million and $119 million, respectively. (These
figures include the contribution of Hafslund Nycomed's energy business, which
accounted for approximately ten percent of revenues and income. The energy
business is not included in the intended merger). Annual R&D expenditures were
approximately 13% of pharmaceutical revenues.
The subsidiary Nycomed Imaging is the global leader in the development of safe
and effective contrast agents for all four major diagnostic imaging modalities:
X-ray, ultrasound, magnetic resonance imaging (MRI) and nuclear medicine.
Contrast agents are an essential component of imaging diagnostics, allowing
physicians to detect diseases or abnormalities in body organs and other soft
tissue without invasive surgery. Nycomed Imaging pioneered in the development of
NON-IONIC contrast agents, which have fewer and less serious side effects than
the older, ionic agents. Its lead X-ray product, Omnipaque, has worldwide sales
of over $1 billion a year and is the top-selling hospital product in the United
States. Nycomed Imaging has manufacturing facilities in Norway, France, Ireland,
the USA, Puerto Rico and China. The main products are Omnipaque, Imagopaque and
Visipaque (X-ray); and Omniscan (MRI). The products are marketed in about 110
countries worldwide, with approximately 80 percent of all contrast agent sales
being handled by the company's own marketing network. Research and development
activities are carried out in Norway, the USA, Sweden and France. Products in
development include an organ-specific contrast agent for X-ray CAT scans of the
liver, an MRI liver agent, nano-particulate X-ray agents for the lymph and
gastrointestinal systems a [third-generation] ultrasound perfusion contrast
agent, and targeting peptide compounds for nuclear medicine.
Nycomed Pharma is involved in four main therapeutic areas: prescription drugs,
generic drugs/consumer health, diagnostics and medical equipment. It is among
the four largest pharmaceutical companies in the Nordic countries, it has a
sizable presence in Belgium/Netherlands and Austria/Germany, and its marketing
network covers most of Europe, including the former USSR, Eastern Europe, and
China. The company also has considerable export activities, Japan being its
largest market. Nycomed Pharma has manufacturing facilities in Norway, Denmark,
Austria, Belgium and Estonia, and R&D activities in Norway, Austria, Denmark,
Belgium and Germany.
<PAGE>
APPENDIX 4
FACTS ABOUT THE COMBINED COMPANY
NAME: IVAX NYCOMED CORPORATION
PRINCIPAL ADDRESSES:
LONDON OFFICE: To Be Determined
MIAMI OFFICE: 8800 N.W. 36th Street
Miami, FL 33178
OSLO OFFICE: Slemdalsveien 37
N-0301 Oslo, Norway
STATE OF INCORPORATION: Florida
EXCHANGES: American and London
SHARES OUTSTANDING: 218 million
EMPLOYEES: Over 13,000 in more than 40
countries
1994 PRO FORMA FINANCIAL HIGHLIGHTS:
REVENUES: $2,380 million
NET INCOME: $ 234 million
1994 PRO FORMA REVENUE STREAM BY PRODUCT LINE:
PHARMACEUTICALS: $1,176 million
IMAGING CONTRAST MEDIA: $ 505 million
INTRAVENOUS: $ 338 million
OTHER: $ 199 million
<PAGE>
APPENDIX 5
BIOGRAPHIES OF CHIEF EXECUTIVE OFFICERS
PHILLIP FROST, M.D.
Dr. Frost, age 58, has served as Chairman of the Board of Directors and Chief
Executive Officer of IVAX Corporation since 1987. He founded IVAX in 1987, and
is presently its largest shareholder, holding approximately 12.2% of IVAX
outstanding stock. Dr. Frost was Chairman of the Board of Directors of Key
Pharmaceuticals, Inc. from 1972 to 1986. He was the Chairman of the Department
of Dermatology at Mt. Sinai Medical Center of Greater Miami, Miami Beach,
Florida from 1972 to 1990. He is Vice Chairman of the Board of Directors of
North American Vaccine, Inc., and a director of American Exploration Company
(oil and gas exploration and production), Intercontinental Bank, Napro
BioTherapeutics, Inc. (biopharmaceutical research and development), and Whitman
Medical Corp. (proprietary education), as well as a trustee of the University of
Miami and a member of the Board of Governors of the American Stock Exchange.
SVEIN AASER
Mr. Aaser, age 49, has served as President and Chief Executive of Hafslund
Nycomed since 1987. He graduated from the Norwegian School of Economics and
Business Administration. He was Managing Director of Storebrand Skade A/S before
joining the Company in 1987. He is also a member of the Norwegian Export
Council, the Norwegian Swedish Chamber of Commerce and Det norske Veritas, and
member of the Corporate Assembly of Den norske Bank, UNI Storebrand and Norsk
Hydro. He has served as Managing Director of Nora Food Products and as President
of the Confederation of Norwegian Business and Industry.
EXHIBIT 10.2
- ---------------------------------------------------------------------------
-------------------------------
TRANSACTION AGREEMENT
------------------------------
Among
HAFSLUND NYCOMED AS,
IVAX CORPORATION,
and
IVAX NYCOMED CORPORATION
Dated as of October 18, 1995
- ---------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
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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
<PAGE>
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
Dillon 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)
<PAGE>
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
<PAGE>
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)
Merrill Lynch 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)
<PAGE>
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
<PAGE>
2
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;
<PAGE>
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
<PAGE>
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.
<PAGE>
5
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, 599
Lexington Avenue, New York, NY 10022, 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
<PAGE>
6
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,
<PAGE>
7
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).
<PAGE>
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
<PAGE>
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.
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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
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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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12
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
<PAGE>
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
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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
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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).
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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
<PAGE>
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
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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
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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
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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 Hart-Scott-Rodino 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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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,
<PAGE>
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,
<PAGE>
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
<PAGE>
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 mark 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. Dillon, Read &
Co. Inc. ("DILLON 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.
Dillon Read has authorized the inclusion of
<PAGE>
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 Dillon 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 Dillon 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.
<PAGE>
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
<PAGE>
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
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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
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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.
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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.
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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
<PAGE>
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.
<PAGE>
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:
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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 mark 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.
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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. Merrill Lynch &
Co., Inc. ("MERRILL LYNCH") 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. Merrill Lynch
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 than Merrill Lynch) 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 Merrill Lynch 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
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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.
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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,
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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
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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;
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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
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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;
<PAGE>
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.
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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
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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
<PAGE>
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 Arthur Andersen 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
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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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50
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 Dillon 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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52
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 Merrill Lynch 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,
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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
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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,
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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,
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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
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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 Arthur Andersen 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 Arthur Andersen's analysis, Hafslund Nycomed shall grant to Arthur
Andersen such access to the books and records of Hafslund Nycomed as Arthur
Andersen 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
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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) Arthur Andersen 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;
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(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) Morgan, Lewis & Bockius 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
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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;
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(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;
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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
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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
<PAGE>
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
<PAGE>
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").
<PAGE>
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
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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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69
if to any Hafslund Nycomed Party:
Hafslund Nycomed AS
Corporate Headquarters
Slemdalsveien 37
PO Box 5010 Majorstua
N-0301 Oslo
Attention: Erik Thyness
Telecopier: 47-2296-3611
with a copy to each of:
Wiersholm, Mellbye & Bech
Kirkegaten 15
Postboks 400 Sentrum
N-0103 Oslo, Norway
Attention: Jan-Fredrik Wilhelmsen
Telecopier: 47-2241-0600
Morgan, Lewis & Bockius LLP
2000 One Logan Square
Philadelphia, PA 19103-6993
Attention: Howard L. Shecter
Telecopier: (215) 963-5299
if to any IVAX Party:
IVAX Corporation
8800 N.W. 36th Street
Miami, Florida 33178
Attention: Armando A. Tabernilla, General Counsel
Telecopier: (305) 590-2615
with a copy to each of:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Attention: Peter D. Lyons
Telecopier: (212) 848-7179
<PAGE>
70
Thommessen Krefting Greve Lund AS
Advokatfirma
Tollbodgaten
Oslo, Norway
Attention: Carl Erik Krefting
Telecopier: 47-2242-3557
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;
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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
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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.
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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.
<PAGE>
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/ SVEIN AASER
---------------------------
Name: Svein Aaser
Title: Managing Director
IVAX CORPORATION
By /s/ PHILLIP FROST
------------------------------
Name: Phillip Frost, M.D.
Title: Chairman and Chief
Executive Officer
IVAX NYCOMED CORPORATION
By /s/ PHILLIP FROST
------------------------------
Name: Phillip Frost, M.D.
Title: Chairman
By /s/ SVEIN AASER
------------------------------
Name: Svein Aaser
Title: President and Chief
Executive Officer
EXHIBIT 10.3
VOTING AGREEMENT
VOTING AGREEMENT (this "AGREEMENT") dated as of October 18,
1995 among IVAX CORPORATION, a Florida corporation ("IVAX"), and each other
person and entity listed on the signature pages hereof (each, a "STOCKHOLDER").
W I T N E S S E T H:
WHEREAS, as of the date hereof, each Stockholder owns
(directly or indirectly, either beneficially or of record) the number of shares
of Class A Common Stock, with a nominal value of NOK 5 per share, and the number
of shares of Class B Common Stock, with a nominal value of NOK 5 per share, of
Hafslund Nycomed AS, a corporation organized under the laws of the Kingdom of
Norway ("HAFSLUND NYCOMED"), set forth opposite such Stockholder's name on
EXHIBIT A hereto (all such shares of common stock owned by the Stockholders and
any shares hereafter acquired by the Stockholders prior to the termination of
this Agreement are referred to herein as the "SHARES");
WHEREAS, Hafslund Nycomed, IVAX and IVAX Nycomed Corporation,
a Florida corporation ("IVAX NYCOMED"), propose to enter into, simultaneously
herewith, a Transaction Agreement (the "TRANSACTION AGREEMENT") which provides,
upon the terms and subject to the conditions thereof, for (i) the sale by
Hafslund Nycomed of its businesses (other than its Norwegian business of
generating hydroelectric power and transmitting, buying and selling electric
power) to Nycomed AS, a corporation organized under the laws of the Kingdom of
Norway and a wholly owned subsidiary of Hafslund Nycomed ("NYCOMED"), and, in
connection with such sale, the distribution of shares of common stock of
Holdings to Hafslund Nycomed stockholders (the "DEMERGER"); (ii) the acquisition
by IVAX Nycomed from Hafslund Nycomed of all of the shares of Nycomed in
exchange for newly issued shares of IVAX Nycomed (the "SHARE EXCHANGE"); and
(iii) the merger of Acquisition Sub, a Florida corporation and a wholly owned
subsidiary of IVAX Nycomed ("ACQUISITION SUB"), with and into IVAX (the
"MERGER"; and, together with the Demerger and the Share Exchange, the
"TRANSACTIONS"); and
WHEREAS, as a condition to the willingness of IVAX to enter
into the Transaction Agreement, IVAX has requested that each Stockholder agree,
and, in order to induce IVAX to enter into the Transaction Agreement, each
Stockholder has agreed, severally and not jointly, to vote such Stockholder's
Shares in connection with the requisite approval of the Demerger and the Share
Exchange.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements and covenants set forth herein and in the Transaction
Agreement, the parties hereto agree as follows:
<PAGE>
2
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents
and warrants to IVAX as follows:
SECTION 1.01. DUE ORGANIZATION, ETC. Such Stockholder (if it
is a corporation, partnership or other legal entity) is duly organized and
validly existing under the laws of the jurisdiction of its incorporation or
organization. Such Stockholder has full power and authority (corporate or
otherwise) to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary action (corporate or otherwise) on the part of such
Stockholder. This Agreement has been duly executed and delivered by or on behalf
of such Stockholder and, assuming its due authorization, execution and delivery
by IVAX, constitutes a legal, valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms.
SECTION 1.02. TITLE TO SHARES. Such Stockholder is the record
or beneficial owner of its Shares free and clear of any proxy or voting
restriction other than pursuant to this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
IVAX
IVAX hereby represents and warrants to each of the
Stockholders as follows:
SECTION 2.01. DUE ORGANIZATION, ETC. IVAX is duly organized
and validly existing under the laws of the State of Florida. IVAX has full power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of IVAX. This Agreement has been
duly executed and delivered by or on behalf of IVAX and, assuming its due
authorization, execution and delivery by the Stockholders, constitutes a legal,
valid and binding obligation of IVAX, enforceable against IVAX in accordance
with its terms.
<PAGE>
3
ARTICLE III
TRANSFER AND VOTING OF SHARES
SECTION 3.01. TRANSFER OF SHARES. During the Voting Term (as
defined below), and except as otherwise provided herein, each Stockholder shall
not (a) sell, pledge (other than by Permitted Liens (as defined below)) or
otherwise dispose of any of its Shares, (b) deposit its Shares into a voting
trust or enter into a voting agreement or arrangement with respect to such
Shares or grant any proxy with respect thereto or (c) enter into any contract,
option or other arrangement or undertaking with respect to the direct or
indirect acquisition or sale, assignment, transfer or other disposition of any
Shares. The exercise of rights or remedies pursuant to bona fide pledges of
Shares to banks or other financial institutions ("PERMITTED LIENS") are not
restricted by this Agreement.
SECTION 3.02. VOTING OF SHARES; FURTHER ASSURANCES. (a) Each
Stockholder, by this Agreement, during and for the Voting Term, with respect to
those Shares that it owns of record, does hereby agree to vote each of such
Shares at every annual, special or adjourned meeting of the stockholders of
Hafslund Nycomed (or pursuant to any consent, certificate or other document
relating to Hafslund Nycomed that the law of Norway may permit or require) (i)
in favor of the approval of the Demerger and the Share Exchange, (ii) against
any proposal for any recapitalization, merger, sale of assets or other business
combination between Hafslund Nycomed and any person or entity (other than the
Transactions) or any other action or agreement that would result in any of the
conditions to Hafslund Nycomed's obligations under the Transaction Agreement not
being fulfilled, and (iii) in favor of any other matter relating to consummation
of the transactions contemplated by the Transaction Agreement. Each Stockholder
further agrees to cause the Shares owned by it beneficially to be voted in
accordance with the foregoing.
(b) For the purposes of this Agreement, "VOTING TERM" shall
mean the period from the execution of this Agreement until the earlier of the
termination of the Transaction Agreement and the Effective Time (as defined
therein).
(c) Each Stockholder agrees to sign a letter in the form
attached as Exhibit 9.05(b) to the Transaction Agreement, on behalf of himself
or itself, pursuant to which it will acknowledge its status as an affiliate of
Hafslund Nycomed and agree to certain restrictions on its rights to dispose of
the IVAX Nycomed B AS Common Stock which each Stockholder will receive as a
result of the Demerger.
(d) Each Stockholder shall perform such further acts and
execute such further documents and instruments as may reasonably be required in
order to vest in IVAX the power to carry out the provisions of this Agreement.
<PAGE>
4
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01. 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 to the fullest extent
permitted by applicable law to the end that the transactions contemplated hereby
are fulfilled to the extent possible.
SECTION 4.02. ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement of the parties and supersedes all prior agreements and
undertakings, both written and oral, between the parties, or any of them, with
respect to the subject matter hereof.
SECTION 4.03. ASSIGNMENT. This Agreement shall not be assigned
by operation of law or otherwise. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors, heirs,
personal representatives, legal representatives and permitted assigns.
SECTION 4.04. WAIVER AND AMENDMENT. Any representation,
warranty, covenant, term or condition of this Agreement which may legally be
waived, may be waived, or the time of performance thereof extended, at any time
by the parties hereto entitled to the benefit thereof, and any term, condition
or covenant hereof may be amended by the parties hereto at any time. Any such
waiver, extension or amendment shall be evidenced by an instrument in writing
executed on behalf of the appropriate party. No waiver by any party hereto,
whether express or implied, of its rights under any provision of this Agreement
shall constitute a waiver of such party's rights under such provisions at any
other time or a waiver of such party's rights under any other provision of this
Agreement. No failure by any party hereto to take any action against any breach
of this Agreement or default by another party shall constitute a waiver of the
former party's right to enforce any provision of this Agreement or to take
action against such breach or default or any subsequent breach or default by
such other party.
SECTION 4.05. PARTIES IN INTEREST. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
<PAGE>
5
SECTION 4.06. 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 4.07. GOVERNING LAW; GOVERNING LANGUAGE. Except to the
extent that the laws of Norway or the State of Florida are mandatorily
applicable to the Demerger or the Merger, 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 the Stockholders, this
Agreement may be translated into Norwegian. The parties agree that this English
version shall in all respects be the controlling version of this Agreement.
SECTION 4.08. SUBMISSION TO JURISDICTION; VENUE. The parties
hereto unconditionally and irrevocably agree and consent to the exclusive
jurisdiction of, and service of process and venue in, the applicable courts
located 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. The Stockholders shall appoint a party reasonably acceptable to IVAX
as their authorized agent (the "STOCKHOLDER 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. Each of
the Stockholders 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
Stockholder Authorized Agent and written notice of such service to any
Stockholder shall be deemed, in every respect, effective service of process upon
such Stockholder. IVAX shall appoint a party reasonably acceptable to the
Stockholders 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.
SECTION 4.09. COUNTERPARTS. This Agreement may be executed
in one or more counterparts, and by the different parties hereto in separate
counterparts, each of which
<PAGE>
6
when executed shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
IVAX CORPORATION
By /s/ PHILLIP FROST
---------------------------------
Name: Phillip Frost
Title: President and CEO
/s/ TERJE MIKALSEN
---------------------------------
Name: Terje Mikalsen
/s/ HARALD SCHOLDAGER
---------------------------------
Name: Harald Scholdager
/s/ TORE LAERDAL
---------------------------------
Name: Tore Laerdal
/s/ TERJE O. OLSSON
---------------------------------
Name: Terje O. Olsson
/s/ JOHN HENRIK JOHANSEN
---------------------------------
Name: John Henrik Johansen
/s/ LAILA STEINE
---------------------------------
Name: Laila Steine
/s/ PETER J. KEILGAST
---------------------------------
Name: Peter J. Keilgast
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT A
NAME OF STOCKHOLDER NUMBER OF SHARES OF HAFSLUND NYCOMED
COMMON STOCK OWNED BENEFICIALLY AND
OF RECORD
NAME OF STOCKHOLDER NO. CLASS A SHARES NO. CLASS B SHARES
- ------------------- ------------------ ------------------
<S> <C> <C>
Terje Mikalsen, Chairman 8,431,256 717,130
Harald Schjoldager, Vice-Chairman 9,530 4,763
Tore Laerdal 150,000 37,500
Terje O. Olsson 71 51
John Henrik Johansen 1,486 442
Laila Steine 34 79
Peter J. Kielgast 200 596
</TABLE>
EXHIBIT 10.4
VOTING AGREEMENT
VOTING AGREEMENT (this "AGREEMENT") dated as of October 18,
1995 among Hafslund Nycomed AS, a corporation organized under the laws of the
Kingdom of Norway ("HAFSLUND NYCOMED"), and each other person and entity listed
on the signature pages hereof (each, a "STOCKHOLDER").
W I T N E S S E T H:
WHEREAS, as of the date hereof, each Stockholder owns
(directly or indirectly, either beneficially or of record) the number of shares
of Common Stock, par value $.10 per share, of IVAX Corporation, a corporation
organized under the laws of the state of Florida ("IVAX"), set forth opposite
such Stockholder's name on EXHIBIT A hereto (all such shares of Common Stock
owned by the Stockholders and any shares hereafter acquired by the Stockholders
prior to the termination of this Agreement are referred to herein as the
"SHARES");
WHEREAS, Hafslund Nycomed, IVAX and IVAX Nycomed Corporation,
a Florida corporation ("IVAX NYCOMED"), propose to enter into, simultaneously
herewith, a Transaction Agreement (the "TRANSACTION AGREEMENT") which provides,
upon the terms and subject to the conditions thereof, for (i) the sale by
Hafslund Nycomed of its businesses (other than its Norwegian business of
generating hydroelectric power and transmitting, buying and selling electric
power) to Nycomed AS, a corporation organized under the laws of the Kingdom of
Norway and a wholly owned subsidiary of Hafslund Nycomed ("NYCOMED"), and, in
connection with such sale, the distribution of shares of common stock of
Holdings to Hafslund Nycomed's stockholders (the "DEMERGER"); (ii) the
acquisition by IVAX Nycomed from Hafslund Nycomed of all of the shares of
Nycomed in exchange for newly issued shares of IVAX Nycomed (the "SHARE
EXCHANGE"); and (iii) the merger of Acquisition Sub, a Florida corporation and a
wholly owned subsidiary of IVAX Nycomed ("ACQUISITION SUB"), with and into IVAX
(the "MERGER"; and, together with the Demerger and the Share Exchange, the
"TRANSACTIONS"); and
WHEREAS, as a condition to the willingness of Hafslund Nycomed
to enter into the Transaction Agreement, Hafslund Nycomed has requested that
each Stockholder agree, and, in order to induce Hafslund Nycomed to enter into
the Transaction Agreement, each Stockholder has agreed, severally and not
jointly, to vote such Stockholder's Shares in connection with the requisite
approval of the Merger.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements and covenants set forth herein and in the Transaction
Agreement, the parties hereto agree as follows:
<PAGE>
2
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents
and warrants to Hafslund Nycomed as follows:
SECTION 1.01. DUE ORGANIZATION, ETC. Such Stockholder (if it
is a corporation, partnership or other legal entity) is duly organized and
validly existing under the laws of the jurisdiction of its incorporation or
organization. Such Stockholder has full power and authority (corporate or
otherwise) to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary action (corporate or otherwise) on the part of such
Stockholder. This Agreement has been duly executed and delivered by or on behalf
of such Stockholder and, assuming its due authorization, execution and delivery
by Hafslund Nycomed, constitutes a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms.
SECTION 1.02. TITLE TO SHARES. Such Stockholder is the record
or beneficial owner of its Shares free and clear of any proxy or voting
restriction other than pursuant to this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
HAFSLUND NYCOMED
Hafslund Nycomed hereby represents and warrants to each of the
Stockholders as follows:
SECTION 2.01. DUE ORGANIZATION, ETC. Hafslund Nycomed is duly
organized and validly existing under the laws of the Kingdom of Norway. Hafslund
Nycomed has full power and authority to execute and deliver this Agreement and
to consummate the transactions contemplated hereby. The execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of Hafslund
Nycomed. This Agreement has been duly executed and delivered by or on behalf of
Hafslund Nycomed and, assuming its due authorization, execution and delivery by
the Stockholders, constitutes a legal, valid and binding obligation of Hafslund
Nycomed, enforceable against Hafslund Nycomed in accordance with its terms.
<PAGE>
3
ARTICLE III
TRANSFER AND VOTING OF SHARES
SECTION 3.01. TRANSFER OF SHARES. During the Voting Term (as
defined below), and except as otherwise provided herein, each Stockholder shall
not (a) sell, pledge (other than by Permitted Liens (as defined below)) or
otherwise dispose of any of its Shares, (b) deposit its Shares into a voting
trust or enter into a voting agreement or arrangement with respect to such
Shares or grant any proxy with respect thereto or (c) enter into any contract,
option or other arrangement or undertaking with respect to the direct or
indirect acquisition or sale, assignment, transfer or other disposition of any
Shares. The exercise of rights or remedies pursuant to bona fide pledges of
Shares to banks or other financial institutions ("PERMITTED LIENS") are not
restricted by this Agreement.
SECTION 3.02. VOTING OF SHARES; FURTHER ASSURANCES. (a) Each
Stockholder, by this Agreement, during and for the Voting Term, with respect to
those Shares that it owns of record, does hereby agree to vote each of such
Shares at every annual, special or adjourned meeting of the stockholders of IVAX
(or pursuant to any consent, certificate or other document relating to IVAX that
the law of the state of Florida may permit or require) (i) in favor of the
approval of Merger, (ii) against any proposal for any recapitalization, merger,
sale of assets or other business combination between IVAX and any person or
entity (other than the Transactions) or any other action or agreement that would
result in any of the conditions to IVAX's obligations under the Transaction
Agreement not being fulfilled, and (iii) in favor of any other matter relating
to consummation of the transactions contemplated by the Transaction Agreement.
Each Stockholder further agrees to cause the Shares owned by it beneficially to
be voted in accordance with the foregoing.
(b) For the purposes of this Agreement, "VOTING TERM" shall
mean the period from the execution of this Agreement until the earlier of the
termination of the Transaction Agreement and the Effective Time (as defined
therein).
(c) Each Stockholder agrees to sign a letter in the form
attached as Exhibit 9.05(a) to the Transaction Agreement, on behalf of himself
or itself, pursuant to which it will acknowledge its status as an affiliate of
IVAX and agree to certain restrictions on its rights to dispose of the IVAX
Nycomed Common Stock which each Stockholder will receive as a result of the
Merger.
(d) Each Stockholder shall perform such further acts and
execute such further documents and instruments as may reasonably be required in
order to vest in Hafslund Nycomed the power to carry out the provisions of this
Agreement.
<PAGE>
4
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01. 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 to the fullest extent
permitted by applicable law to the end that the transactions contemplated hereby
are fulfilled to the extent possible.
SECTION 4.02. ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement of the parties and supersedes all prior agreements and
undertakings, both written and oral, between the parties, or any of them, with
respect to the subject matter hereof.
SECTION 4.03. ASSIGNMENT. This Agreement shall not be assigned
by operation of law or otherwise. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors, heirs,
personal representatives, legal representatives and permitted assigns.
SECTION 4.04. WAIVER AND AMENDMENT. Any representation,
warranty, covenant, term or condition of this Agreement which may legally be
waived, may be waived, or the time of performance thereof extended, at any time
by the parties hereto entitled to the benefit thereof, and any term, condition
or covenant hereof may be amended by the parties hereto at any time. Any such
waiver, extension or amendment shall be evidenced by an instrument in writing
executed on behalf of the appropriate party. No waiver by any party hereto,
whether express or implied, of its rights under any provision of this Agreement
shall constitute a waiver of such party's rights under such provisions at any
other time or a waiver of such party's rights under any other provision of this
Agreement. No failure by any party hereto to take any action against any breach
of this Agreement or default by another party shall constitute a waiver of the
former party's right to enforce any provision of this Agreement or to take
action against such breach or default or any subsequent breach or default by
such other party.
SECTION 4.05. PARTIES IN INTEREST. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
<PAGE>
5
SECTION 4.06. 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 4.07. GOVERNING LAW; GOVERNING LANGUAGE. Except to the
extent that the laws of Norway or the State of Florida are mandatorily
applicable to the Demerger or the Merger, 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 the Stockholders, this
Agreement may be translated into Norwegian. The parties agree that this English
version shall in all respects be the controlling version of this Agreement.
SECTION 4.08. SUBMISSION TO JURISDICTION; VENUE. The parties
hereto unconditionally and irrevocably agree and consent to the exclusive
jurisdiction of, and service of process and venue in, the applicable courts
located 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. The Stockholders shall appoint a party reasonably acceptable to
Hafslund Nycomed as their authorized agent (the "STOCKHOLDER 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. Each of the Stockholders 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 Stockholder Authorized Agent and written notice of
such service to any Stockholder shall be deemed, in every respect, effective
service of process upon such Stockholder. Hafslund Nycomed shall appoint a party
reasonably acceptable to the Stockholders 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.
<PAGE>
6
SECTION 4.09. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
<PAGE>
7
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
HAFSLUND NYCOMED AS
By /s/ SVEIN AASER
-----------------------------------
Name: Svien Aaser
Title: President and CEO
PHILLIP FROST
/s/ PHILLIP FROST
---------------------------------
Name: Phillip Frost
AZURE LIMITED, as trustee for
CHARTER TRUST COMPANY,
as trustee for I. KAYE FAMILY
TRUST
By /s/ G.R.L. SNELLING
---------------------------------
Name: G.R.L. Snelling
Title: Trustee
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT A
NAME OF STOCKHOLDER NUMBER OF SHARES OF IVAX COMMON
STOCK OWNED BENEFICIALLY AND OF RECORD
NAME OF STOCKHOLDER COMMON SHARES
- ------------------- -------------
<S> <C>
Phillip Frost 13,905,970
I. Kaye Family Trust 7,988,493
</TABLE>
EXHIBIT 10.5
PURCHASE AND SALE
AGREEMENT
DATED , 1995
BETWEEN
HAFSLUND NYCOMED AS
AS SELLER
AND
NYCOMED AS
AS PURCHASER
in respect of the sale by Hafslund Nycomed AS
of its Medical Businesses
to Nycomed AS
<PAGE>
TABLE OF CONTENTS
1. INTERPRETATION..................................................... 2
1.1 Interpretation..................................................... 2
1.2 Definitions........................................................ 2
2. SALE AND PURCHASE.................................................. 7
3. THE MEDICAL BUSINESSES CLOSING BALANCE SHEET/ THE
PURCHASE PRICE CREDIT CALCULATION / THE CONSOLIDATED
ENERGY CLOSING BALANCE SHEET....................................... 8
4. CERTAIN PROVISIONS REGARDING THE SELLER'S LOANS AND
FINANCIAL AGREEMENTS............................................... 8
5. THE RETAINED WORKING CAPITAL....................................... 9
6. PENSIONS AND BENEFITS.............................................. 11
7. INDEMNIFICATION/APPORTIONMENT...................................... 12
8. THE CLOSING ....................................................... 13
9. CONDITIONS PRECEDENT............................................... 14
10. MISCELLANEOUS...................................................... 14
10.1 Service Requirements............................................... 14
10.2 Employees.......................................................... 14
10.3 Change of Name..................................................... 15
10.4 No Recourse........................................................ 15
10.5 Expenses........................................................... 15
10.6 Further Assurances; Cooperation.................................... 15
10.7 Post Closing....................................................... 16
10.8 Governing Law...................................................... 16
10.9 English Language................................................... 16
EXHIBITS
1. DESCRIPTION OF ENERGY COMPANIES
2. CORPORATE EMPLOYEES
3. LIST OF MEDICAL COMPANIES
4. CONTINGENT TAX MATTERS
<PAGE>
1
THIS AGREEMENT is entered into on this day of , 1995
Between:
(1) HAFSLUND NYCOMED AS, a Norwegian joint stock limited company having
its registered office at [ADDRESS] ("SELLER"); and
(2) NYCOMED AS, a Norwegian joint stock limited company having
its registered office at [ADDRESS] ("PURCHASER")
WHEREAS:
A. The Purchaser is a wholly owned subsidiary of the Seller to be
capitalised by the Seller with an initial share capital of NOK 150,000
and to be further capitalised by an increase in capitalization in an
amount equal to the Book Value of the Transferred Assets (as
hereinafter defined) less the sum of (i) the Book Value of the
Transferred Liabilities (as hereinafter defined), and (ii) NOK 150,000.
B. Pursuant to a transaction agreement dated as of October 18, 1995 (the
"TRANSACTION AGREEMENT"), made between the Seller, IVAX Corporation, a
Florida corporation ("IVAX"), and IVAX NYCOMED CORPORATION, a Florida
corporation, it has been agreed that the Seller and IVAX will combine
their respective businesses (other than the Energy Business, as
hereinafter defined) in a "merger of equals" transaction to be effected
as set out in the Transaction Agreement.
C. The Seller believes that the Energy Business which will be retained by
the Seller pursuant to the terms of this Agreement is in terms of
debt-equity ratio, working capital and other characteristics consistent
with the operating history of such business as operated by the Seller.
D. Under the terms of the Transaction Agreement, the Seller has agreed to
sell and transfer to the Purchaser the Seller's businesses, assets and
liabilities, other than the Energy Business and the assets and
liabilities related to the Energy Business.
E. Under the terms of the Transaction Agreement and pursuant to a transfer
agreement dated as of the date hereof, the Seller's subsidiary A/S
Vamma Fossekompagni will transfer to the Purchaser all of its shares in
Hafslund Invest a.s.
F. Under the terms of the Transaction Agreement and pursuant to a transfer
agreement dated as of the date hereof, the Seller's subsidiary Hafslund
Eiendom AS will transfer to the Seller 15% of its net claim for a
refund of taxes paid in connection with the disposal of Unitor AS
Shares.
<PAGE>
2
G. The parties hereto have agreed to enter into this Agreement to
effect the purchase and sale described in Recital D above.
NOW THEREFORE, the parties hereby agree as follows:
1. INTERPRETATION
1.1 INTERPRETATION
1.1.1 Where used herein or in any amendment or supplement hereto,
unless the context otherwise requires, words and phrases
defined in the Recitals hereto and Article 1.2 shall have the
meaning set out therein.
1.1.2 Headings are for convenience of reference only and shall not
affect the construction or interpretation hereof.
1.1.3 Words importing the singular include the plural and vice versa
and words importing gender include all genders.
1.2 DEFINITIONS
1.2.1 The following terms, when used herein, shall have the meanings
ascribed thereto in the Transaction Agreement:
"business day", "Effective Time" and "Medical Businesses".
1.2.2 When used herein, the following terms shall have the meanings
set out below unless the context otherwise requires:
"BOOK VALUE" means the book value as shown on the Medical Businesses
Closing Balance Sheet or the Consolidated Energy Closing Balance Sheet.
"CLOSING" shall have the meaning set forth in Article 8.
"COLLECTIVE PLANS" shall have the meaning set forth in Article 6.1.
"CONSOLIDATED ENERGY CLOSING BALANCE SHEET" shall have the meaning set
forth in Article 3.1.
"CONTINGENT TAX CLAIM" shall have the meaning set forth in Article 7.5.
"CORPORATE EMPLOYEES" means the employees of the Seller whose
employment is common to the group, as listed in Exhibit 2.
<PAGE>
3
"ENERGY BUSINESS" means the Seller's and the Energy Companies'
Norwegian business of generating hydroelectric power and transmitting,
buying and selling electric power.
"ENERGY COMPANIES" means those of the Seller's subsidiaries listed in
Exhibit 1 hereto which constitute all the subsidiaries of the Seller
engaged in the Energy Business.
"EXCLUDED ASSETS" means 15% of the claim by the Seller for repayment
with interest of a tax amount of approximately NOK 85,000,000
previously paid to cover a disputed tax assessment for Actinor AS for
the financial year 1985, and all of the Seller's assets Related To the
Energy Business and/or the Hafslund Manor, including, without
limitation, the following assets:
(i) accounts receivable Related To the Energy Business and/or
the Hafslund Manor,
(ii) inventories Related To the Energy Business and/or the
Hafslund Manor,
(iii) repurchased notes under the Hafslund a.s 1985/2015 loan in the
aggregate principal amount of NOK 91,698,000 presently held by
the Seller (or, in the case of repayment of any such notes
prior to the Closing, cash equal to the net repaid amount),
(iv) cash and bank deposits to the extent retained by the Seller
as part of the Retained Working Capital pursuant to
Article 5 below,
(v) real estate Related To the Energy Business and/or the
Hafslund Manor,
(vi) personal property Related To the Energy Business and/or
the Hafslund Manor,
(vii) patents, trademarks and other intellectual property rights
Related To the Energy Business and/or the Hafslund Manor,
(viii) rights under contracts Related To the Energy Business and/or
the Hafslund Manor,
(ix) all shares of the Energy Companies,
(x) accounts receivable from the Energy Companies,
(xi) insurance policies Related To the Energy Business and/or the
Hafslund Manor,
(xii) loans to the Retained Employees, furniture, office equipment
and relevant files and records primarily used by the Retained
Employees and all other assets Related To the Retained
Employees, and
(xiii) the books and records Related To the Energy Business.
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4
"EXCLUDED LIABILITIES" means all of the Seller's liabilities Related To
the Energy Business and/or the Hafslund Manor, including, without
limitation, the following liabilities:
(i) accounts payable Related To the Energy Business and/or the
Hafslund Manor,
(ii) accrued taxes and other tax liabilities Related To the Energy
Business and/or the Hafslund Manor,
(iii) liabilities Related To present and future litigation or
arbitration and other known or unknown contingent liabilities
Related To the Energy Business and/or the Hafslund Manor,
(iv) liabilities under contracts Related To the Energy Business
and/or the Hafslund Manor,
(v) accounts payable to the Energy Companies,
(vi) the Retained Loan and such debt as may be included in the
calculation of the Retained Working Capital,
(vii) liabilities under insurance policies Related To the Energy
Business and/or the Hafslund Manor,
(viii) liability for deposits made by the Retained Employees with the
Seller, the liabilities allocated to the Seller pursuant to
Article 6 and all other liabilities Related To the Retained
Employees, and
(ix) all liabilities Related To the Excluded Assets.
"FUTURE ADJUSTMENT AMOUNT" shall have the meaning set forth in
Article 6.1.6.
"GAAP" means generally accepted accounting principles in Norway.
"HAFSLUND MANOR" means the Hafslund Manor and related farmland and
other real property in Sarpsborg, Norway.
"INDEMNIFIED LIABILITY" shall have the meaning set forth in
Article 7.1.
"INDEMNIFIED PARTY" shall have the meaning set forth in Article 7.1.
"INDEMNIFYING PARTY" shall have the meaning set forth in Article 7.1.
"MAINTENANCE CONSENTS" shall have the meaning set forth in Article 4.1.
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5
"MEDICAL BUSINESS CLOSING BALANCE SHEET" shall have the meaning set
forth in Article 3.1.
"MEDICAL COMPANIES" means those subsidiaries of the Seller listed in
Exhibit 3 hereto.
"PURCHASE PRICE CREDIT CALCULATION" shall have the meaning set forth in
Article 3.1.
"RETAINED EMPLOYEES" means employees of the Seller who after the
closing of the transactions contemplated by this Agreement and the
allocation of Corporate Employees provided for in Article 10.2 will
remain employees of the Seller.
"RETAINED LOAN" means the Hafslund a.s NOK 200,000,000 floating rate
Notes 1985/2015, outstanding amount as of 30 September 1995 NOK
160,000,000.
"RETAINED WORKING CAPITAL" shall mean the difference between the sum of
current assets and the sum of current liabilities shown on the
Consolidated Energy Closing Balance Sheet, except that for the purpose
of calculating the Retained Working Capital
(i) to the extent (a) expenses allocated to the Seller pursuant to
Article 4.4 and/or Article 10.5, (b) receipt of all or any
part of the Seller's 15% share of the claim of the Seller for
repayment with interest of a tax amount of approximately NOK
85,000,000 previously paid to cover a disputed tax assessment
for Actinor AS for the financial year 1985 and/or (c) the
Seller's 15% share of the liability for Contingent Tax Claims
pursuant to Article 7.5 have impacted the amount of any
current assets or current liabilities shown on the
Consolidated Energy Closing Balance Sheet, such items shall be
added back, and
(ii) assets and/or provisions reflecting the items referred to in
(i) above shall be disregarded.
"RELATED TO" means primarily related to, used primarily in connection
with or arising primarily out of.
"TRANSFER CONSENTS" shall have the meaning set forth in Article 4.3.1.
"TRANSFERRED ASSETS" means 85% of the claim by the Seller for repayment
of a tax amount of approximately NOK 85,000,000 previously paid to
cover a disputed tax assessment for Actinor AS for the financial year
1985, and all of the Seller's assets, except the Excluded Assets,
including, without limitation:
(i) accounts receivable,
(ii) inventories,
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6
(iii) all cash, bank deposits, commercial paper, notes, debentures,
bonds, receivables and shares except to the extent retained by
the Seller as part of the Retained Working Capital pursuant to
Article 5 below,
(iv) real estate,
(v) personal property,
(vi) patents, trademarks and other intellectual property rights,
(vii) rights under contracts,
(viii) rights under the Transferred Financial Instruments,
(ix) all shares of the Medical Companies, except the shares of
Hafslund Invest a.s. which will be transferred to the
Purchaser from A/S Vamma Fossekompagni pursuant to a separate
transfer agreement as provided in Recital E hereto,
(x) insurance policies,
(xi) loans to the Transferred Employees, furniture, office
equipment and files, the assets allocated to the Purchaser
pursuant to Article 6 and all other assets Related To the
Transferred Employees, and
(xii) the books and records Related To the Medical Business.
"TRANSFERRED EMPLOYEES" means employees of the Seller who after the
closing of the transactions contemplated by this Agreement and the
allocation of Corporate Employees provided for in Article 10.2 will be
employees of the Purchaser.
"TRANSFERRED FINANCIAL INSTRUMENTS" shall have the meaning set forth
in Article 4.3
"TRANSFERRED LIABILITIES" means all other liabilities of the Seller,
except the Excluded Liabilities, including, without limitation:
(i) accounts payable,
(ii) accrued taxes,
(iii) liabilities Related To present and future litigation and
arbitration and other known or unknown contingent liabilities,
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7
(iv) liabilities under contracts,
(v) all obligations for borrowed money, except the Retained Loan
and except to the extent included in the calculation of the
Retained Working Capital pursuant to Article 5 below,
(vi) liabilities under Transferred Financial Instruments,
(vii) liabilities under insurance policies,
(viii) liability for deposits made by the Transferred Employees with
the Seller, the liabilities allocated to the Seller pursuant
to Article 6 below and all other liabilities Related To the
Transferred Employees, and
(ix) all liabilities Related To the Transferred Assets.
"TRANSFERRED LOANS" shall have the meaning set forth in Article 4.3.
"UNFUNDED PLANS" shall have the meaning set forth in Article 6.2.
2. SALE AND PURCHASE
2.1 Subject to the terms and conditions hereof it is hereby agreed that at
the Closing, the Seller will sell and transfer to the Purchaser and the
Purchaser will purchase and assume, the Transferred Assets and the
Transferred Liabilities, all with effect at the Effective Time.
2.2 The total price payable by the Purchaser to the Seller (the "PURCHASE
PRICE") shall be the aggregate of the Book Value of the Transferred
Assets shown on the Seller's Closing Balance Sheet.
2.3 The Purchase Price shall be paid and satisfied as follows:
a. assumption of the Transferred Liabilities; and
b. payment in cash of NOK 150,000 on the Closing; and
c. the assumption by the Purchaser of an interest free obligation
(the "PURCHASE PRICE CREDIT") to pay an amount equal to the
Book Value of the Transferred Assets less the sum of (i) the
Book Value of the Transferred Liabilities and (ii) NOK 150,000
as further provided in Article 3 below, which shall be payable
within ten business days after the deliveries provided for in
Article 3.1 have been effected.
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8
2.4 The payment pursuant to Article 2.3 b above and the Purchase Price
Credit shall be expressed in NOK.
3. THE MEDICAL BUSINESSES CLOSING BALANCE SHEET/ THE PURCHASE PRICE
CREDIT CALCULATION / THE CONSOLIDATED ENERGY CLOSING BALANCE
SHEET
3.1 No later than 60 days after the Closing, the Seller shall deliver to
the Purchaser (i) an audited consolidated balance sheet (the "MEDICAL
BUSINESSES CLOSING BALANCE SHEET") reflecting the Transferred Assets
and the Transferred Liabilities as of the Effective Time, (ii) a
calculation of the Purchase Price Credit (the "PURCHASE PRICE CREDIT
CALCULATION"), and (iii) a consolidated audited balance sheet
reflecting the Excluded Assets and the Excluded Liabilities and the
assets and liabilities of the Energy Companies (the "CONSOLIDATED
ENERGY CLOSING BALANCE SHEET") as of the Effective Time. The Medical
Businesses Closing Balance Sheet shall be prepared in accordance with
US generally accepted accounting principles, and the Consolidated
Energy Closing Balance Sheet shall be prepared in accordance with GAAP
as historically applied by the Seller. The Medical Businesses Closing
Balance Sheet and the Consolidated Energy Closing Balance Sheet shall
be audited by Arthur Andersen & Co. The Purchaser and the Seller shall
consult with respect to the preparation of the Medical Business Closing
Balance Sheet and the Consolidated Energy Closing Balance Sheet. To the
extent that the parties cannot agree on any item of such balance
sheets, such item shall be reflected as directed by Arthur Andersen &
Co.
3.2 The Medical Businesses Closing Balance Sheet, the Purchase Price Credit
Calculation and the Consolidated Energy Closing Balance Sheet delivered
to the Purchaser pursuant to Article 3.1 above shall, in the absence of
manifest error, be final and binding.
3.3 As promptly as practicable after December 31, 1995, the Seller shall
deliver to the Purchaser an audited Consolidated Energy Balance Sheet
as of December 31, 1995 and an audited Medical Business Balance Sheet
as of December 31, 1995.
4. CERTAIN PROVISIONS REGARDING THE SELLER'S LOANS AND FINANCIAL
AGREEMENTS
4.1 The Seller assumes the risk of obtaining the necessary consents and
making other necessary arrangements (the "MAINTENANCE CONSENTS") with
the counterparties to the Retained Loan in order for the Seller to
retain the same. In case the Seller does not obtain all of the
Maintenance Consents, the Seller undertakes to discharge any and all
liabilities and expenses associated with settling the Retained Loan.
4.2 If on the Closing (or on 28 February 1996 if the Closing does not occur
on or prior to such date) the difference between (i) the aggregate
amount of obligations for borrowed money which are shown as long term
liabilities on the Consolidated Energy Closing Balance Sheet and (ii)
NOK
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9
91,698,000 (which is the principal amount of the notes referred to in
item (iii) of the definition of Excluded Assets) is less than NOK
312,500,000, then the Seller will use its reasonable best efforts to
raise other loans in an aggregate amount equal to such shortfall prior
to the Closing and will transfer an equivalent amount in cash to the
Purchaser at the Closing. If the Closing does not occur on or prior to
28 February 1996, the Seller undertakes not to make, and to cause the
Energy Companies not to make, any payments in respect of its
obligations for borrowed money which are long term liabilities other
than interest payments, repayments of principal and other payments that
are mandatory under the terms of such obligations and in particular not
to make any prepayments in respect of such obligations.
4.3 The following shall apply with respect to all loans to which the Seller
is a party that is not a Retained Loan (the "TRANSFERRED LOANS")
and all interest rate and currency swaps, forward contracts, futures,
currency options and other financial instruments (the "TRANSFERRED
FINANCIAL INSTRUMENTS") of the Seller:
4.3.1 The Purchaser assumes the risk of obtaining the necessary
consents and making other necessary arrangements (the
"TRANSFER CONSENTS") with the counterparties to the
Transferred Loan and the Transferred Financial Instruments in
order for the Purchaser to assume the same as contemplated by
Article 2.1 above.
4.3.2 In case the Purchaser does not obtain all of the Transfer
Consents related to the Transferred Loans, the Purchaser
undertakes to (i) discharge any and all liabilities and
expenses associated with settling such Transferred Loans at
the Effective Time and (ii) use its reasonable best efforts to
raise other loans in an aggregate amount at least sufficient
to refinance the Transferred Loans at the Effective Time.
4.3.3 In case the Purchaser does not obtain all of the Transfer
Consents related to the Transferred Financial Instruments, the
Purchaser undertakes to (i) discharge any and all liabilities
and expenses associated with settling such Transferred
Financial Instruments and (ii) assumes the risk of not being
able to enter into other similar financial agreements.
4.4 The Seller and the Purchaser will pay 15% and 85%, respectively, of all
costs in connection with the yield maintenance obligations under the
$227 millon Senior Notes of Seller issued in multiple series pursuant
to a Note Agreement dated November 2, 1994.
5. THE RETAINED WORKING CAPITAL
5.1 The following shall apply with respect to the Retained Working Capital:
5.1.1 To the extent the Retained Working Capital is a positive
figure, the Seller shall assume the liability for short term
loans that would otherwise be Transferred Liabilities in an
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10
aggregate amount equal to such positive figure. The provisions
set forth in Article 4.1 above shall apply, MUTATIS MUTANDIS,
with respect to such additional short term loans; and
5.1.2 To the extent the Retained Working Capital is a negative
figure, the Seller shall retain cash or cash equivalents in an
aggregate amount equal to such negative figure.
6. PENSIONS AND BENEFITS
6.1 The following shall apply to the rights and obligations under the
Seller's collective pension plans (the "COLLECTIVE PLANS"):
6.1.1 The Purchaser shall assume the liability for payment of
pension premiums and all other obligations arising out of the
Collective Plans insofar as such liabilities relate to the
Transferred Employees;
6.1.2 The Seller shall retain the liability for payment of pension
premiums and all other obligations arising out of the
Collective Plans insofar as such liabilities relate to (i) the
Retained Employees or (ii) non-employees who as of the date of
the Effective Time have a right to current or future pension
payments under the Collective Plans including any and all
Future Adjustment Amounts referred to in Article 6.1.6 below;
6.1.3 All beneficiaries under the Collective Plans shall maintain
without any change of their rights against the insurance
carrier under the Collective Plans;
6.1.4 The premium reserve ("PREMIERESERVEN") shall be allocated to
the Purchaser insofar as it relates to the Transferred
Employees;
6.1.5 The premium reserve ("PREMIERESERVEN") shall be allocated to
the Seller insofar as it relates to the Retained Employees;
6.1.6 An amount (the "FUTURE ADJUSTMENT AMOUNT") equal to the net
present value of increased premium payments by the Seller
expected to result from future adjustments of pensions to
non-employees who as of the date of the Effective Time have a
right to current or future pension payments under the
Collective Plans, shall be allocated to the Seller from the
premium fund ("PREMIEFOND"). The Future Adjustment Amount
shall be calculated by an actuarial expert agreed upon by both
parties hereto, applying such actuarial principles and
assumptions as in its discretion such expert considers
reasonable. Such calculation shall, in the absence of manifest
error, be final and binding on the parties;
6.1.7 Each of (i) the pro rata share of the additional reserve
("ANDEL TILLEGGSAVSETNING"), (ii) the pro rata share of net
unrealized gains ("ANDEL KURSRESERVE"), (iii) the balance of
the
<PAGE>
11
premium fund after the allocation of the Future Adjustment
Amount to the Seller pursuant to in Article 6.1.6, (iv) the
guarantee reserve ("GARANTIRESERVE"), (v) the pension
adjustment fund ("PENSJONSREGULERINGSFOND") and (vi) the
earnings fund ("OVERSKUDDSFOND") shall be allocated between
the Seller and the Purchaser such that the proportion of the
part allocated to the Seller to the part allocated to the
Purchaser shall be the same as the proportion of the part of
the premium reserve allocated to the Seller to the part of the
premium reserve allocated to the Purchaser.
6.2 The following principles shall apply to assets and liabilities related
to all pension plans and/or individual pension agreements other than
the Collective Plans (the "UNFUNDED PLANS"), it being understood that
such plans and/or individual agreements comprise both unfunded and
partly-funded pension liabilities:
6.2.1 The Purchaser shall assume the liability for all obligations
arising out of the Unfunded Plans insofar as such liabilities
relate to (i) the Transferred Employees and (ii) former
employees, other than those whose employment was Related To
the Energy Business and/or the Hafslund Manor, and their
relatives.
6.2.2 The Seller shall retain the liability for all obligations
arising out of the Unfunded Plans insofar as such liabilities
relate to (i) Retained Employees and (ii) former employees
whose employment was Related To the Energy Business and/or the
Hafslund Manor and their relatives.
6.2.3 All assets related to the Unfunded Plans shall be transferred
to the Purchaser insofar as they relate to the persons
referred to in Article 6.2.1;
6.2.4 All assets related to the Unfunded Plans shall be retained by
the Seller insofar as they relate to persons referred to in
Article 6.2.2.
7. INDEMNIFICATION/APPORTIONMENT
7.1 If a party (an "INDEMNIFIED PARTY") discharges a liability (an
"INDEMNIFIED LIABILITY") for which the other party (an "INDEMNIFYING
PARTY") is liable pursuant to the terms and conditions of this
Agreement, then the Indemnifying Party shall, subject to the terms and
provisions set forth below in this Article 7 promptly upon demand
indemnify the Indemnified Party to the extent of the Indemnifying
Party's liability for the Indemnified Liability together with the
Indemnified Party's reasonable expenses related to the defense of the
Indemnified Liability.
7.2 If an Indemnified Liability is asserted in writing against an
Indemnified Party, then the Indemnified Party shall notify the
Indemnifying Party in writing in reasonable detail of the amount and
nature of the Indemnified Liability, the identity of the claimant and
the reason why the Indemnified Party believes that the Indemnifying
Party is liable for the Indemnified Liability.
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12
7.3 If the Indemnifying Party accepts liability for the Indemnified
Liability in its entirety, the Indemnifying Party shall have the right
to assume the defence thereof. If the Indemnifying Party only accepts
liability for part of the Indemnified Liability (whether or not the
Indemnified Party believes that the Indemnifying Party is liable for
the Indemnified Liability in its entirety), or the Indemnifying Party
does not accept any liability in respect of the Indemnified Liability,
then the Indemnified Party shall have the right, but not the
obligation, to assume the defense thereof, provided that if the
Indemnified Party does not take reasonable steps to defend the
Indemnified Liability, then the Indemnifying Party shall have the right
to assume the defence thereof.
7.4 If the Indemnified Party does not notify the Indemnifying Party of the
Indemnified Liability in accordance with the provisions set forth in
Article 7.2, then the Indemnified Party shall retain its right to
indemnification except to the extent that the Indemnifying Party can
demonstrate that it was prejudiced by such failure.
7.5 If a claim (a "CONTINGENT TAX CLAIM") arising out of any of the
contingent tax matters listed in Exhibit 4 is asserted against either
of the parties, any of the Medical Companies or any of the Energy
Companies, the following shall apply:
7.5.1 If a Contingent Tax Claim is asserted against the Seller or
any of the Energy Companies, the Seller shall notify the
Purchaser of such Contingent Tax Claim and send the Purchaser
copies of all documents in its and the Energy Companies'
possession relevant to such Contingent Tax Claim to the
Purchaser.
7.5.2 The Purchaser shall assume the defence of Contingent Tax
Claims and shall promptly keep the Seller informed of all
material developments relative thereto. The Purchaser shall,
after having duly consulted with the Seller, make all
decisions in its sole discretion as to how to defend and
whether to settle Contingent Tax Claims. The Seller shall
promptly upon demand indemnify the Purchaser for 15% of the
Purchaser's out-of-pocket expenses incurred from time to time
as a result for the defence of Contingent Tax Claims.
7.5.3 If the Purchaser or a Medical Company makes a payment in
respect of a Contingent Tax Claim which has not been finally
assessed, the Seller shall promptly upon demand pay on account
an amount equal to 15% of such payment to the Purchaser. If
the Seller or an Energy Company makes a payment in respect of
a Contingent Tax Claim which has not been finally assessed,
the Purchaser shall promptly upon demand pay on account an
amount equal to 85% of such payment to the Purchaser.
7.5.4 If the Purchaser or a Medical Company discharges any
Contingent Tax Claim that is definitively assessed, i.e., the
subject of a final, administrative decision or judgement, or a
settlement to which the Purchaser shall have agreed in its
sole discretion, it shall be entitled to receive
indemnification from the Seller; and if the Seller or any
Energy
<PAGE>
13
Company discharges any definitively assessed Contingent Tax
Claim is shall be entitled to receive indemnification from the
Purchaser. The amount of such indemnification shall be
calculated so that the Seller and the Energy Companies shall
ultimately bear 15%, and the Purchaser and the Medical
Companies shall ultimately bear 85%, of the total tax payments
made as a result such Contingent Tax Claim after deduction of
any tax refunds received as a result of adjustments made in
connection with the same Contingent Tax Claim. To the extent
such indemnification payments are treated as taxable income to
the receiving party and/or as tax deductible costs to the
paying party, the amount of the indemnification shall be
adjusted so that (after such adjustment payments have been
made) the result described in the preceding sentence is
achieved on an after-tax basis. Payments made on account
pursuant to Article 7.5.3 shall be repaid simultaneously with,
or set-off against, indemnification payments made pursuant to
this Article 7.5.4 in respect of the same Contingent Tax
Claim.
7.6 The Seller shall own 15% and the Purchaser shall own 85% of all
contingent and/or unknown rights, assets and claims which are neither
Related To the Energy Business nor Related To the Medical Business. The
Purchaser shall bear 85% and the Seller shall bear 15% of all
contingent and/or unknown liabilities and obligations which are neither
Related To the Energy Business nor Related To the Medical Business.
8. THE CLOSING
8.1 The Closing of the transactions contemplated hereby (the "CLOSING")
shall take place as of the Effective Time and substantially
simultaneously with the Closing provided for in Section 2.02 of the
Transaction Agreement at the offices of Wiersholm, Mellbye & Bech, Oslo
in accordance with a closing agenda to be prepared by the parties and
their legal advisers.
8.2 At the Closing the Seller shall take all commercially reasonable steps
to transfer ownership of the Transferred Assets including, without
limitation, delivery of:
a. all transfer documents in respect of all intellectual
property rights, including patents and trademarks;
b. all documents required to transfer or replace the liabilities;
c. all documents required to transfer ownership and registered
title (where appropriate) to the Transferred Assets;
d. such other documents and assurances as may be required to
effectively complete the transactions provided for herein,
including, without limitation, all relevant share
certificates.
<PAGE>
14
9. CONDITIONS PRECEDENT
9.1 Unless the conditions set out in the Transaction Agreement are
satisfied or waived in writing, neither party shall be obliged to
complete the transactions contemplated hereby.
10. MISCELLANEOUS
10.1 SERVICE REQUIREMENTS
10.1.1 The parties hereby agree that the Seller shall have the right
for a period of three years from the Closing to receive
reasonable support from the Purchaser by way of provision of
services related to information systems and administrative,
accounting, financial and legal services and the use of such
equipment, premises and facilities (or equivalent premises and
facilities) within the Sellers' headquarters building as are
currently being used by the Energy Business or the Retained
Employees.
10.1.2 Each service or right to use equipment, premises or
facilities or resources shall be provided or granted by the
Purchaser pursuant to and on the terms and conditions set out
in separate agreements to be entered into between the parties
from time to time. Such agreements shall provide, without
limitation:
a. in the case of leases of premises owned by the
Purchaser, that the rent to be paid by the Seller
shall initially be equivalent to the relevant amount
allocated for the lease of such premises in the
relevant intra-group accounts for the fiscal year
ending on 31st December, 1995 such rent to be
index-linked; and
b. in the case of all other services, resources,
equipment and/or facilities, that such shall be
provided at fully burdened cost, as calculated by
the Purchaser in accordance with GAAP.
10.2 EMPLOYEES
10.2.1 All employees of the Medical Businesses and the Energy
Business shall continue to be employed in their respective
businesses following completion of the transactions
contemplated herein in accordance with the applicable law.
10.2.2 The parties hereby agree that, within 30 days of the date of
execution of this Agreement, the Seller and IVAX Corporation
shall agree on the allocation of the Corporate Employees
between the Seller and the Purchaser. In the case of
disagreement, the Purchaser shall have the right and
obligation to assume the employment of each of such Corporate
Employees.
<PAGE>
15
10.3 CHANGE OF NAME
Not later than 60 days after the Closing the Purchaser shall cause each
of the Medical Companies whose name contains the word "Hafslund" to
change its name to a name that does not contain the word "Hafslund" or
any other word similar to the word "Hafslund" and shall promptly cause
such new names to be registered in the Register of Business Enterprises
("FORETAKSREGISTERET"). Not later than 60 days after the Closing,
neither the Seller nor any of its subsidiaries shall to make use of the
word "Nycomed" or any other word similar to "Nycomed".
10.4 NO RECOURSE
The parties hereby agree that nothing herein shall be construed as a
representation or warranty by the Seller in respect of the Transferred
Assets or the Transferred Liabilities. Except to the extent expressly
provided otherwise herein or in the Transaction Agreement and any
amendments thereto, the Purchaser shall have no right of recourse
whatsoever against the Seller nor shall any circumstance entitle the
Purchaser to make any demand on the Seller for cancellation or revision
of this Agreement in whole or in part, for reduction in the Purchase
Price or any form of compensation in respect of the Transferred Assets
or the Transferred Liabilities or any claim in respect thereof or
otherwise; provided that the Purchaser shall be entitled to enforce all
the provisions of this Agreement.
10.5 EXPENSES
All fees and taxes payable to public authorities in connection with the
performance of this Agreement, including without limitation fees and
taxes related to the transfer of title to real estate
("TINGLYSINGSGEBYR" and "DOKUMENTAVGIFT"), motor vehicles
("OMREGISTRERINGSAVGIFT"), patents and trademarks and professional fees
that are specifically related to the preparation, execution or
performance of this Agreement shall, regardless of whether such fees
are incurred by the Seller or the Purchaser, be split between the
Seller and the Purchaser so that the Seller pays 15% and the Purchaser
pays 85% of all such fees and taxes. All other fees and expenses
incurred in connection with the preparation, execution and performance
of this Agreement shall be paid by the party incurring such expenses as
provided in Article 11.05 of the Transaction Agreement.
10.6 FURTHER ASSURANCES; COOPERATION
Each party shall, and shall cause its subsidiaries to, and shall use
its best endeavors to ensure that all contractual third parties shall,
from time to time execute and deliver such other instruments of
transfer and take such further action as may be required to complete
any matter provided for herein.
In the event that any contractual third party refuses to take such
steps as are required to transfer any contractual rights or obligations
to be transferred pursuant hereto, the parties shall enter into
<PAGE>
16
such arrangements as shall be necessary so that the party to whom the
contractual rights and obligations ought to have been transferred shall
receive the benefits and burdens of such contract.
Both Seller and Purchaser shall cooperate in the preparation of
accounts and other business records to the extent reasonably
practicable. Following the Effective Time, each of Seller and Purchaser
shall grant the other access to its books and records to the extent
reasonably desired for purposes of any tax filings, litigation,
arbitration, financial reporting obligations or similar matters.
10.7 POST CLOSING
The parties hereby agree to provide to each other all reasonable
cooperation following the Closing in connection with all matters
relating to the transactions contemplated hereby including the filing
of tax returns, obtaining refunds of taxes, and dealing with
assessments and reassessments and disputes relating to previously filed
tax returns relating to the Transferred Assets and the Transferred
Liabilities.
10.8 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
Norwegian law. The parties hereto consent to the exclusive jurisdiction
of any applicable court sitting in London, England, for the purpose of
any action, suit or proceeding arising out of or related to this
Agreement and further agree not to commence any such action, suit or
proceeding except in any such court.
10.9 ENGLISH LANGUAGE
The parties hereby confirm that this Agreement and all other documents
relating thereto are to be in English only, however, it is acknowledged
that certain existing documents and new documents related to that part
of the business to be carried out in Norway may be in Norwegian.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of
the date first above written in two original counterparts, one of each which is
held by each party hereto.
For and on behalf of For and on behalf of
NYCOMED AS HAFSLUND NYCOMED AS
- --------------------------- ---------------------------
EXHIBIT 10.6
AGREEMENT
AGREEMENT dated as of __________, 1996 (this "AGREEMENT")
between IVAX Nycomed B AS, a corporation organized under the laws of the Kingdom
of Norway ("HOLDINGS"), and IVAX Nycomed Corporation, a Florida corporation
("IVAX NYCOMED").
W I T N E S S E T H :
WHEREAS, pursuant to the Transaction Agreement dated as of
October 18, 1995 (the "TRANSACTION AGREEMENT") among Hafslund Nycomed AS, a
corporation organized under the laws of the Kingdom of Norway ("HAFSLUND
NYCOMED"), IVAX Corporation, a Florida corporation, and IVAX Nycomed, IVAX
Nycomed shall acquire from Hafslund Nycomed all of the issued and outstanding
shares of common stock of Hafslund Nycomed's wholly owned subsidiary, Nycomed
AS, in exchange for newly issued shares of IVAX Nycomed Common Stock (such
exchange of shares being the "SHARE EXCHANGE") (capitalized terms used but not
defined in this Agreement have the meanings ascribed to them in the Transaction
Agreement);
WHEREAS, pursuant to the Transaction Agreement, (A) Hafslund
Nycomed shall contribute to Holdings, a wholly owned subsidiary of Hafslund
Nycomed, all of the shares of IVAX Nycomed Common Stock received by Hafslund
Nycomed in the Share Exchange, and (B) Hafslund Nycomed shall distribute or
cause to be distributed to its shareholders all of the issued and outstanding
shares of common stock of Holdings;
WHEREAS, upon the terms and subject to the conditions set
forth in the Transaction Agreement, holders of shares of Holdings Common Stock
(the "HOLDINGS STOCKHOLDERS") shall be entitled to exchange such shares for
shares of IVAX Nycomed Common Stock;
WHEREAS, upon the terms and subject to the conditions set
forth in this Agreement, shares of Holdings Common Stock held by IVAX Nycomed
shall be converted, from time to time, into non-voting shares of Holdings Common
Stock (the "NON-VOTING STOCK"; as used in this Agreement, any reference to
"Holdings Common Stock" shall, unless otherwise expressly indicated, mean and be
a reference to all Holdings Common Stock, including the Non-Voting Stock); and
WHEREAS, it is the intention of the parties hereto that the
rights and obligations hereunder be exercised so that Holdings Stockholders and
holders of IVAX Nycomed Common Stock (the "IVAX NYCOMED STOCKHOLDERS") 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 Holdings
<PAGE>
2
Stockholder 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
Holdings Stockholder multiplied by the Share Ratio (as defined below), and that
neither the Holdings Stockholders nor the IVAX Nycomed Stockholders shall enjoy
any greater or lesser economic or other rights, benefits or burdens of ownership
of IVAX Nycomed Common Stock.
NOW, THEREFORE, in consideration of the premises and in order
to induce IVAX Nycomed to enter into the Transaction Agreement and intending to
be legally bound hereby, the parties hereto agree as follows:
SECTION 1. VOTING OF THE SHARES. (a) Whenever any matter or
matters (the "VOTE MATTERS") are to be submitted to the vote of the IVAX Nycomed
Stockholders at any meeting of the IVAX Nycomed Stockholders (a "STOCKHOLDERS'
MEETING"), IVAX Nycomed shall promptly give written notice (the "VOTE NOTICE")
of such vote, and the matter or matters to be voted on, to Holdings in
accordance with the Business Corporation Act of the State of Florida (the
"FBCA").
(b) Promptly upon receipt of any Vote Notice, Holdings shall
give written notice of the Vote Matters to each Holdings Stockholder and shall
submit the Vote Matters to a vote of the Holdings Stockholders in accordance
with Norwegian law.
(c) Holdings shall, in accordance with its Articles of
Association, vote the number of shares of IVAX Nycomed Common Stock specified
below in respect of any Vote Matter as follows (the total of all such shares of
IVAX Nycomed Common Stock specified in clauses (i) through (iv) below as to
which Holdings is to vote, abstain from voting, withhold authority or report as
not present, being the "PASS THROUGH SHARES") :
(i) Holdings shall vote a number of shares of IVAX Nycomed
Common Stock (rounded to the nearest whole share) in favor of such Vote
Matter equal to (A) the number of shares of Publicly Held Holdings
Stock (as herein after defined) voted in favor of such Vote Matter,
multiplied by (B) a fraction (the "SHARE RATIO"), the numerator of
which shall be the total number of shares of IVAX Nycomed Common Stock
then held by Holdings and the denominator of which shall be the total
number of shares of Holdings Common Stock then outstanding;
(ii) Holdings shall vote a number of shares of IVAX Nycomed
Common Stock (rounded to the nearest whole share) against such Vote
Matter equal to (A) the number of shares of Publicly Held Holdings
Stock voted against such Vote Matter, multiplied by (B) the Share
Ratio;
(iii) Holdings shall abstain from voting (or withhold voting
authority with respect to) a number of shares of IVAX Nycomed Common
Stock (rounded to the
<PAGE>
3
nearest whole share) with respect to such Vote Matter equal to (A) the
number of shares of Publicly Held Holdings Stock which abstained from
voting (or withheld voting authority) with respect to such Vote Matter,
multiplied by (B) the Share Ratio; and
(iv) Holdings shall report to IVAX Nycomed that a number of
shares of IVAX Nycomed Common Stock (rounded to the nearest whole
share) are neither present in person nor represented by proxy at the
Stockholders' Meeting at which the Vote Matters are to be considered
equal to (A) the number of shares of Publicly Held Holdings Stock
which were not present in person or represented by proxy at the
general meeting of Holdings Stockholders at which the Vote Matters
were considered, multiplied by (B) the Share Ratio.
(d) With respect to any Vote Matter, Holdings shall further
vote all the shares of IVAX Nycomed Common Stock then held by it, other than the
Pass Through Shares, (such shares being the "NON-PASS THROUGH SHARES") as
follows:
(i) Holdings shall vote a number of Non-Pass Through Shares
(rounded to the nearest whole share) in favor of such Vote Matter equal
to (A) the total number of Non-Pass Through Shares multiplied by (B) a
fraction, the numerator of which shall be the sum of (1) the total
number of shares of Publicly Held IVAX Nycomed Stock (as hereinafter
defined) voted in favor of such Vote Matter plus (2) the total number
of shares of IVAX Nycomed Common Stock then held by Holdings and voted
in favor of such Vote Matter in accordance with Section 1(c)(i) above,
and the denominator of which shall be the total number of shares of
IVAX Nycomed Common Stock (other than the Non-Pass Through Shares)
present in person or represented by proxy at such Stockholders'
Meeting;
(ii) Holdings shall vote a number of Non-Pass Through Shares
(rounded to the nearest whole share) against such Vote Matter equal to
(A) the total number of Non-Pass Through Shares multiplied by (B) a
fraction, the numerator of which shall be the sum of (1) the total
number of shares of Publicly Held IVAX Nycomed Stock voted against such
Vote Matter plus (2) the total number of shares of IVAX Nycomed Common
Stock then held by Holdings and voted against such Vote Matter in
accordance with Section 1(c)(ii) above, and the denominator of which
shall be the total number of shares of IVAX Nycomed Common Stock (other
than the Non-Pass Through Shares) present in person or represented by
proxy at such Stockholders' Meeting; and
(iii) Holdings shall abstain from voting (or withhold voting
authority with respect to) a number of Non-Pass Through Shares (rounded
to the nearest whole share) with respect to such Vote Matter equal to
(A) the total number of Non-Pass
<PAGE>
4
Through Shares multiplied by (B) a fraction, the numerator of which
shall be the sum of (1) the total number of shares of Publicly Held
IVAX Nycomed Stock which abstained from voting (or withheld voting
authority) with respect to such Vote Matter plus (2) the total number
of shares of IVAX Nycomed Common Stock then held by Holdings which
abstained from voting (or withheld voting authority) with respect to
such Vote Matter in accordance with Section 1(c)(iii) above, and the
denominator of which shall be the total number of shares of IVAX
Nycomed Common Stock (other than the Non-Pass Through Shares) present
in person or represented by proxy at such Stockholders' Meeting.
(e) (i) "PUBLICLY HELD HOLDINGS STOCK" means the total number
of outstanding shares of Holdings Common Stock then held by shareholders other
than (A) IVAX Nycomed, (B) Holdings and (C) affiliates of IVAX Nycomed that are
controlled by IVAX Nycomed;
(ii) "PUBLICLY HELD IVAX NYCOMED STOCK" means the
total number of outstanding shares of IVAX Nycomed Common Stock then
held by shareholders other than Holdings.
(f) Holdings and IVAX Nycomed shall cooperate to ensure that
Holdings has adequate time to hold a general meeting of Holdings Stockholders
prior to the date of each meeting of IVAX Nycomed Stockholders.
(g) IVAX Nycomed shall supply to Holdings sufficient copies of
each Vote Notice and each other communication to the IVAX Nycomed Stockholders
to permit Holdings to distribute such communications to the Holdings
Stockholders.
SECTION 2. PASS THROUGH OF OTHER RIGHTS. Holdings shall
exercise its rights as an IVAX Nycomed Stockholder in such manner that each
Holdings Stockholder shall, through Holdings, effectively be entitled, to the
same extent as each IVAX Nycomed Stockholder, to nominate directors, propose
matters for consideration at IVAX Nycomed Stockholders' meetings, request a
special meeting of the IVAX Nycomed Stockholders and otherwise to participate in
the affairs of IVAX Nycomed to the fullest extent permitted by the FBCA and the
Articles of Incorporation and By-laws of IVAX Nycomed. Upon receipt by Holdings
of any communication from any Holdings Stockholder, Holdings shall forward such
communication to IVAX Nycomed as a communication from a number of shares of IVAX
Nycomed Common Stock equal to (A) the number of shares of Holdings Common Stock
held by such Holdings Stockholder, multiplied by (B) the Share Ratio.
SECTION 3. CONVERSION OF HOLDINGS COMMON STOCK. (a) At each
general meeting of the Holdings Stockholders, Holdings shall submit to, and
recommend the approval by, such general meeting a resolution that a number of
the shares of Holdings Common
<PAGE>
5
Stock then held by IVAX Nycomed specified by IVAX Nycomed be converted into
NonVoting Stock.
(b) If at any time IVAX Nycomed shall hold shares of Holdings
Common Stock representing more than 25% of the shares of Holdings Common Stock
entitled to vote for the election of directors at a general meeting of the
Holdings Stockholders, Holdings shall, upon the request of IVAX Nycomed, as
promptly as practicable, call an extraordinary general meeting of the Holdings
Stockholders and shall submit to, and recommend the approval by, such general
meeting a resolution that a number of the shares of Holdings Common Stock then
held by IVAX Nycomed specified by IVAX Nycomed be converted into shares of
Non-Voting Stock.
(c) At any general meeting of Holdings Stockholders at which a
resolution for the conversion of shares of Holdings Common Stock then held by
IVAX Nycomed into shares of Non-Voting Stock is considered, IVAX Nycomed shall
vote all shares of Holdings Common Stock then held by it (including, in
accordance with Norwegian law, all shares of Non-Voting Stock present at such
general meeting) in favor of such resolution.
(d) From and after the first date on which the number of
shares of Holdings Common Stock that are held by shareholders of Holdings other
than IVAX Nycomed falls below 25% of the total number of shares of Holdings
Common Stock outstanding immediately upon consummation of the Transactions, (i)
no shares of Holdings Common Stock held by IVAX Nycomed shall be converted into
Non-Voting Stock unless such conversion is requested by IVAX Nycomed, (ii) the
obligations of IVAX Nycomed specified in Sections 3(a), 3(b) and 3(c) shall
terminate and (iii) the obligations of Holdings in Sections 3(a), 3(b) and 3(c)
shall apply only to the extent requested by IVAX Nycomed.
SECTION 4. BOARD OF DIRECTORS OF HOLDINGS. In accordance with
the Articles of Association of Holdings, IVAX Nycomed shall be entitled to
appoint one director to the board of directors of Holdings. Upon the death,
resignation or removal of any such director appointed by IVAX Nycomed, IVAX
Nycomed shall be entitled, in accordance with the Articles of Association of
Holdings, to appoint a replacement director to the board of directors of
Holdings.
SECTION 5. FURTHER ACTION; CONSULTATION. IVAX Nycomed and
Holdings shall take all actions reasonably required to effectuate the intent of
this Agreement as expressed in the recitals hereto, including, without
limitation, amending this Agreement and the Articles of Association of Holdings.
Holdings shall recommend to the Holdings Stockholders, and shall use its best
efforts to cause the approval by the Holdings Stockholders of, any actions
reasonably required to effectuate the intent of this Agreement. Holdings shall
recommend against, and otherwise use its best efforts to oppose, any actions
initiated by the Holdings Stockholders which are contrary to the expressed
intent of this
<PAGE>
6
Agreement. The board of directors of Holdings shall consult with the board of
directors of IVAX Nycomed with respect to any action contemplated by this
Section 5, including, without limitation, the proper course of conduct with
respect to matters not contemplated by this Agreement relating to the corporate
governance of Holdings, such as future amendments to the Norwegian Companies
Act.
SECTION 6. 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 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
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 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.
Notwithstanding anything to the contrary in Section 12, solely with respect to
any action seeking to enforce the provisions of this Section 6, Holdings and
IVAX Nycomed agree and consent to the exclusive jurisdiction of, and service of
process and venue in, the Oslo City Court (Oslo Byrette), 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 prejudgment
attachment, post-judgment attachment and execution) in any legal suit, action or
proceeding against it solely arising out of this Section 6 which is instituted
in such court.
SECTION 7. DIVIDENDS. Holdings shall, to the fullest extent
permitted by
<PAGE>
7
applicable law, upon receipt of any cash dividends on shares of IVAX Nycomed
Common Stock held by Holdings, (a) deduct therefrom any taxes payable thereon,
(b) promptly convert such cash into Norwegian Kroner, (c) invest such Norwegian
Kroner in short-term, high grade debt obligations denominated in Norwegian
Kroner, (d) promptly call a meeting of the shareholders of Holdings to consider
the payment of dividends to holders of shares of Holdings Common Stock and, at
such meeting, propose and recommend the payment to holders of Holdings Common
Stock of a dividend in an aggregate amount equal to all such Norwegian Kroner,
and (e) if such dividend is approved by the holders of Holdings Common Stock,
pay such dividend as promptly as practicable thereafter.
SECTION 8. EXPENSES OF HOLDINGS. IVAX Nycomed shall pay to
Holdings sufficient funds to cover all expenses (the "REIMBURSABLE EXPENSES")
resulting from the ownership of its Shares of IVAX Nycomed Common Stock and the
actions required under this Agreement. IVAX Nycomed shall provide Holdings with
such funds promptly after receipt of a written request therefor and such
documentation supporting such Reimbursable Expenses as IVAX Nycomed shall
reasonably request.
SECTION 9. INVESTMENT COMPANY ACT. Holdings shall conduct
its affairs so as to assure that it is not required to register as an investment
company under the U.S. Investment Company Act of 1940.
SECTION 10. TERMINATION. This Agreement shall survive until
all of the shares of Holdings Common Stock are owned by IVAX Nycomed.
SECTION 11. GOVERNING LAW; GOVERNING LANGUAGE. 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
Holdings, this Agreement may be translated into Norwegian or other languages.
The parties agree that this English version shall in all respects be the
controlling version of this Agreement.
SECTION 12. SUBMISSION TO JURISDICTION; VENUE. The parties
hereto unconditionally and irrevocably agree and consent to the exclusive
jurisdiction of, and service of process and venue in, the 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. Holdings shall appoint a party reasonably acceptable to IVAX Nycomed
as its authorized agent (the "HOLDINGS AUTHORIZED AGENT") upon whom process may
be served in
<PAGE>
8
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 IVAX
Nycomed. Such appointment shall be irrevocable. Holdings 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 Holdings Authorized Agent and written
notice of such service to Holdings shall be deemed, in every respect, effective
service of process upon Holdings. IVAX Nycomed shall appoint a party reasonably
acceptable to Holdings as its authorized agent (the "IVAX 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 Holdings. Such appointment shall be
irrevocable. IVAX 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 IVAX Nycomed Authorized Agent and written notice of such
service to IVAX Nycomed shall be deemed, in every respect, effective service of
process upon IVAX Nycomed.
SECTION 13. COUNTERPARTS. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by each party 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 14. AMENDMENTS. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of, each
party to this Agreement.
SECTION 15. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties hereto shall be entitled
to specific performance of the terms hereof, in addition to any other remedy at
law or equity.
<PAGE>
9
IN WITNESS WHEREOF, Holdings and IVAX Nycomed have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
IVAX NYCOMED B AS
By __________________________________
Name:
Title:
IVAX NYCOMED CORPORATION
By __________________________________
Name:
Title:
By __________________________________
Name:
Title:
EXHIBIT 10.7
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
[US HOLDCO CORPORATION]
ARTICLE I - NAME AND ADDRESS
The name of this corporation is [US Holdco Corporation]. The mailing
address of this corporation is [8800 N.W. 36th Street], Miami, Florida [33178].
ARTICLE II - PURPOSE
This corporation is organized for the purpose of transacting any and all
lawful business for corporations organized under the Florida Business
Corporation Act.
ARTICLE III - CAPITAL STOCK
The aggregate number of shares which this corporation shall have
authority to issue is one billion and five million (1,005,000,000) shares, of
which 1 billion (1,000,000,000) shares shall be common stock, par value $0.01
per share, and of which 5 million (5,000,000) shall be preferred stock, par
value $.01 per share (the "Preferred Stock"). The Board of Directors is
authorized to issue shares of Preferred Stock in one or more series by adoption
of amendments to the articles of incorporation setting forth the number of
shares to be included in each such series and the designation, preferences,
limitations and relative rights of the shares of each such series.
ARTICLE IV - ACTION BY SHAREHOLDERS WITHOUT A MEETING
Any action required or permitted to be taken by the shareholders of this
corporation must be effected at a duly called annual or special meeting of such
holders and may not be effected by any written consent by such holders.
<PAGE>
ARTICLE V - SPECIAL MEETINGS OF SHAREHOLDERS
The shareholders of this corporation may only call a special meeting of
shareholders if the holders of at least 50% of all of the votes entitled to be
cast on any issue proposed to be considered at the proposed special meeting
sign, date and deliver to this corporation's secretary one or more written
demands for the meeting describing the purpose or purposes for which it is to be
held.
ARTICLE VI - INDEMNIFICATION
This corporation shall indemnify any director, or any former director of
this corporation, to the fullest extent permitted by law.
2
EXHIBIT 10.8
FORM OF
BYLAWS
OF
IVAX NYCOMED CORPORATION
A FLORIDA CORPORATION
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE I Meetings of Shareholders..................................... 1
Section 1. Annual Meeting...................................... 1
Section 2. Special Meeting..................................... 1
Section 3. Place............................................... 2
Section 4. Notice.............................................. 2
Section 5. Shareholder Quorum.................................. 2
Section 6. Shareholder Voting.................................. 3
Section 7. Fixing Record Dates................................. 3
Section 8. Proxies............................................. 3
Section 9. Notification of Nomination of Directors............. 4
Section 10. Notice of Business at Annual Meetings............... 5
ARTICLE II Directors........................................... 5
Section 1. Function............................................ 6
Section 2. Compensation........................................ 6
Section 3. Presumption of Assent............................... 6
Section 4. Number of Directors................................. 6
Section 5. Term of Office...................................... 7
Section 6. Election of Directors............................... 7
Section 7. Vacancies........................................... 7
Section 8. Removal of Directors................................ 7
Section 9. Quorum and Transaction of Business.................. 7
Section 10. Place of Meeting.................................... 8
Section 11. Time, Notice and Call of Meetings................... 8
Section 12. Action Without a Meeting............................ 8
ARTICLE III Committees.......................................... 9
Section 1. Executive Committee................................. 9
Section 2. Meetings of Executive Committee..................... 9
Section 3. Other Committees.................................... 9
ARTICLE IV Officers............................................ 10
Section 1. General Provisions.................................. 10
Section 2. Term of Office...................................... 10
Section 3. Chairman of the Board............................... 10
i
<PAGE>
Section 4. Chief Executive Officer............................. 10
Section 5. President........................................... 10
Section 6. Secretary........................................... 10
Section 7. Duties of Officers May be Delegated................. 11
Section 8. Removal of Certain Officers......................... 11
ARTICLE V Share Certificate and Seal.......................... 11
Section 1. Form and Execution.................................. 11
Section 2. Registration of Transfer............................ 12
Section 3. Lost, Stolen or Destroyed Certificates.............. 12
Section 4. Seal................................................ 12
ARTICLE VI Distributions....................................... 12
ARTICLE VII Miscellaneous Provisions............................ 13
Section 1. Fiscal Year......................................... 13
Section 2. Resignation......................................... 13
Section 3. Voting Upon Stocks of Other Corporations............ 13
ARTICLE VIII Corporate Records, Shareholders'
Inspection Rights; Financial Information............ 13
Section 1. Corporate Records................................... 13
Section 2. Shareholders' Inspection Rights..................... 14
Section 3. Financial Statements for Shareholders............... 15
Section 4. Other Reports to Shareholders....................... 15
ARTICLE IX Indemnification..................................... 16
Section 1. Right to Indemnification............................ 16
Section 2. Advancement of Expenses............................. 16
Section 3. Procedure for Indemnification and Obtaining
Advancement of Expenses........................... 16
Section 4. Other Rights, Continuation of Right to
Indemnification and Advancements.................. 17
Section 5. Insurance........................................... 17
Section 6. Savings Clause...................................... 18
ARTICLE X Amendment........................................... 18
ii
<PAGE>
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of shareholders
for the election of directors and for the transaction of such other business as
may properly come before the meeting shall be held on the date, time and place
designated by the Board of Directors.
SECTION 2. SPECIAL MEETING.
(a) Special meetings of the shareholders shall be held when
directed by the Chairman of the Board or the Board of Directors or when
requested in writing by shareholders holding at least 50% of the corporation's
stock having the right and entitled to vote at such meeting. The call for the
meeting shall be issued by the secretary, unless the Chairman of the Board, the
Board of Directors or the shareholders requesting the calling of the meeting
designate another person to do so. Only business within the purposes described
in the notice required in Section 4 of this Article I may be conducted at a
special shareholders' meeting.
(b) Any shareholder of record seeking to have the shareholders
request a special meeting may, by written notice to the secretary, request the
Board of Directors to fix a record date pursuant to Section 7 of this Article I.
The Board of Directors shall promptly, but in all events within 10 business days
after the date upon which such a request is received, adopt resolutions fixing
the record date. In the event of the delivery, in the manner provided by Section
7 of this Article I, to the corporation of such a request or requests and/or any
related revocation or revocations, the corporation shall engage nationally
recognized independent inspectors of elections for the purpose of promptly
performing a ministerial review of the validity of the requests and revocations.
Every written request for a special meeting shall set forth the purpose or
purposes for which the special meeting is requested, the name and address, as
they appear in the corporation's books, of each shareholder making the request,
the class and number of shares of the corporation which are owned of record by
each such shareholder, and shall bear the date of signature of each such
shareholder. No such request shall be effective to request such a meeting
unless, within 60 days of any record date established in accordance with Section
7 of this Article I, a written request signed by a sufficient number of record
holders as of such date to request a special meeting in accordance with Section
2(a) of this Article I and, if applicable, the Articles of Incorporation are
delivered to the corporation in the manner prescribed in this Article I. For the
purposes of permitting a prompt ministerial review by the independent
inspectors, no request by shareholders for a special meeting shall be effective
until such date as the independent inspectors certify to the corporation that
the requests delivered to the corporation in accordance with this Article I
represent at least the minimum number of shares that would be necessary to
request such meeting. Within 10 business days after the independent inspectors
deliver such a certified report to the corporation, the Board of Directors shall
adopt a resolution calling a special meeting of the shareholders and fixing a
record date for such meeting in accordance with Section 7 of this Article I. In
setting a meeting date, the Board
<PAGE>
2
of Directors may consider such factors as it deems relevant within the good
faith exercise of its business judgment including, without limitation, the
nature of the action proposed to be taken, the facts and circumstances
surrounding the request, and any plan of the Board of Directors to call a
special or annual meeting of shareholders for the conduct of related business.
Nothing contained in this section shall in any way be construed to suggest or
imply that the Board of Directors or any shareholder shall not be entitled to
contest the validity of any request or revocation thereof, or to take any other
action (including, without limitation, the commencement, prosecution or defense
of any litigation with respect thereto).
SECTION 3. PLACE. Meetings of the shareholders shall be held
at the principal office of the corporation or as determined by the Chairman of
the Board, unless otherwise designated by resolution from time to time by the
Board of Directors.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, signed by the secretary, president or the person authorized to
call the meeting, shall be mailed to each shareholder having the right and
entitled to vote at the meeting at the address as it appears on the records of
the corporation, not less than 10 nor more than 60 days before the date set for
the meeting. The notice shall state the time and place the meeting is to be
held. A notice of a special meeting shall also state the purposes of the
meeting. A notice of meeting shall be sufficient for that meeting and any
adjournment of it. If a shareholder transfers any shares after the notice is
sent, it shall not be necessary to notify the transferee. All shareholders may
waive notice of a meeting before, at or after the meeting.
SECTION 5. SHAREHOLDER QUORUM. Except as otherwise required by
law, or by the Articles of Incorporation, a majority of the shares entitled to
vote, represented in person or by proxy, shall constitute a quorum at a meeting
of shareholders. Any number of shareholders, even if less than a quorum, may
adjourn the meeting from time to time and place to place without further notice
until a quorum is obtained. Except as otherwise required by law, or by the
Articles of Incorporation, a majority of the outstanding shares entitled to vote
on a matter shall be present, in person or by proxy, at all meetings of the
shareholders to constitute a quorum for the transaction of business on such
matter, except to adjourn. When a specified item of business is required to be
voted on separately by a particular class or series of stock, the presence of a
majority of the shares of such class or series shall constitute a quorum for the
transaction of such item of business by that class or series. If less than a
quorum of shares entitled to vote on a matter, as above defined, shall be
present at the time and place for which a meeting shall be called, the Chairman
of the Board, chief executive officer or secretary or the holders of a majority
of the shares represented may adjourn any such meeting from time to time without
notice other than by announcement at such meeting, until the number of shares
requisite to constitute a quorum shall be present. At any adjourned meeting at
which a quorum, as above defined, shall be present, in person or by proxy, any
business may be transacted which might have been transacted at the meeting as
originally called. Once a share is represented for any
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3
purpose at a meeting, it is deemed present for quorum purposes for the remainder
of the meeting and for any adjournment of that meeting unless a new record date
is or must be set for that adjourned meeting.
SECTION 6. SHAREHOLDER VOTING. If a quorum is present, action
on a matter is approved and shall be the act of the shareholders if the votes
cast favoring the action exceed the votes cast against the action, except as
otherwise provided in Section 6 of Article II or the Articles of Incorporation
or as required by law. Except as otherwise provided in the Articles of
Incorporation or as required by law, each outstanding share shall be entitled to
one vote on each matter submitted to a vote at a meeting of shareholders. The
books of record of shareholders shall be produced at a shareholders' meeting
upon the request of any shareholder.
SECTION 7. FIXING RECORD DATES. For the purpose of determining
shareholders entitled (a) to notice of or to vote at any meeting of shareholders
or any adjournment thereof, (b) to request a special meeting of shareholders
pursuant to Section 2 of this Article I, (c) to receive payment of any dividend,
or (d) to make a determination of shareholders for any other proper purpose, the
Board of Directors shall have the power to fix a date, not more than 60 days (or
such longer period as may be permitted by current or future law) prior to the
date on which the particular action requiring a determination of shareholders is
to be taken, as the record date for any such determination of shareholders. A
record date for the determination of shareholders entitled to notice of or to
vote at any meeting of shareholders or any adjournment thereof shall not be a
date less than 10 days prior to such meeting. In setting a record date, whether
in response to a request from a shareholder or otherwise, the Board of Directors
may consider such factors as it deems relevant within the good faith exercise of
its business judgment including, without limitation, the nature of the action
proposed to be taken, the facts and circumstances surrounding the request, and
any plan of the Board of Directors to call a special or annual meeting of
shareholders for the conduct of related business. In any case where a record
date is set under any provision of this Article I, only shareholders of record
on the record date shall be entitled to participate in the action for which the
determination of shareholders of record is made, and, if the record date is set
for the determination of shareholders entitled to notice of or to vote at a
meeting of shareholders, only such shareholders of record shall be entitled to
such notice or vote, notwithstanding any transfer of any shares on the books of
the corporation after such record date.
SECTION 8. PROXIES. A shareholder entitled to vote at any
meeting of shareholders or any adjournment thereof may vote in person or by
proxy executed in writing and signed by the shareholder or his attorney-in-fact.
The appointment of proxy will be effective when received by the corporation's
secretary or other officer or agent authorized to tabulate votes. If a proxy
designates two or more persons to act as proxies, a majority of these persons
present at the meeting, or if only one is present, that one, has all of the
powers conferred by the instrument upon all the persons designated unless the
instrument otherwise provides. No proxy
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4
shall be valid more than 11 months after the date of its execution unless a
longer term is expressly stated in the proxy.
SECTION 9. NOTIFICATION OF NOMINATION OF DIRECTORS.
Nominations for election to the Board of Directors of the corporation at a
meeting of shareholders may be made by the Board of Directors or by any
shareholder of the corporation entitled to vote for the election of directors at
such meeting who complies with the notice procedures set forth in this Section
10. Such nominations, other than those made by or on behalf of the Board of
Directors, may be made only if notice in writing is personally delivered to, or
mailed by first class United States mail, postage prepaid, and received by, the
secretary not less than 60 days nor more than 90 days prior to such meeting;
PROVIDED, HOWEVER, that if less than 70 days' notice or prior public disclosure
of the date of the meeting is given to shareholders, such nomination shall have
been mailed by first class United States mail, postage prepaid, and received by,
or personally delivered to, the secretary not later than the close of business
on the tenth (10th) day following the day on which notice of the date of the
meeting was mailed or such public disclosure was made, whichever occurs first.
Such notice shall set forth (a) as to each proposed nominee (i) the name, age,
business address and, if known, residence address of each such nominee, (ii) the
principal occupation or employment of each such nominee, (iii) the number of
shares, if any, of stock of the corporation that are beneficially owned by each
such nominee and (iv) any other information concerning the nominee that must be
disclosed in proxy solicitations pursuant to the proxy rules of the Securities
and Exchange Commission if such person had been nominated, or was intended to be
nominated, by the Board of Directors (including such person's written consent to
be named as a nominee and to serve as a director if elected); and (b) as to the
shareholder giving the notice (i) the name and address, as it appears on the
corporation's books, of such shareholder, (ii) a representation that such
shareholder is a holder of record of shares of stock of the corporation entitled
to vote at the meeting and the class and number of shares of the corporation
which are beneficially owned by such shareholder, (iii) a representation that
such shareholder intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice and (iv) a description of
all arrangements or understandings between such shareholder and each nominee and
any other person or persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by such shareholder. The
corporation also may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to determine the
eligibility of such proposed nominee to serve as a director of the corporation.
The chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he shall
so declare to the meeting, and that the defective nomination shall be
disregarded.
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5
SECTION 10. NOTICE OF BUSINESS AT ANNUAL MEETINGS. At an
annual meeting of the shareholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be properly brought
before an annual meeting, business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors or (c) otherwise properly brought before the
meeting by a shareholder. For business to be properly brought before an annual
meeting by a shareholder, if such business relates to the election of directors
of the corporation, the procedures must comply with Section 10 of this Article
I. If such business relates to any other matter, the shareholder must have given
timely notice thereof in writing to the secretary. To be timely, a shareholder's
notice must be personally delivered to, or mailed by first class United States
mail, postage prepaid, and received by, the secretary not less than 60 days not
more than 90 days prior to such meeting; PROVIDED, HOWEVER, that if less than 70
days' notice or prior public disclosure of the date of the meeting is given to
shareholders, such notice, to be timely, must have been mailed by first class
United States mail, postage prepaid, and received by, or personally delivered
to, the secretary not later than the close of business on the tenth (10th) day
following the day on which notice of the date of the meeting was mailed or such
public disclosure was made, whichever occurs first. A shareholder's notice to
the secretary shall set forth as to each matter the shareholder proposes to
bring before the annual meeting (i) a brief description of the business desired
to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and address, as they appear on the
corporation's books, of the shareholder proposing such business, (iii) a
representation that the shareholder is a holder of record of shares of stock of
the corporation entitled to vote at the meeting and the class and number of
shares of the corporation which are beneficially owned by the shareholder and
(iv) any material interest of the shareholder in such business. Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at any
annual meeting except in accordance with the procedures set forth in this
Section 11 and except that any shareholder proposal which complies with Rule
14a-8 of the proxy rules (or any successor provision) promulgated under the
Securities Exchange Act of 1934, as amended, and is to be included in the
corporation's proxy statement for an annual meeting of shareholders shall be
deemed to comply with the requirements of this Section 11.
The chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the meeting
in accordance with the provisions of this Section 11, and if he should so
determine, he shall so declare to the meeting and the business not properly
brought before the meeting shall be disregarded.
ARTICLE II
DIRECTORS
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SECTION 1. FUNCTION. All corporate powers shall be exercised
by or under the authority of, and the business and affairs of the corporation
shall be managed under the direction of, the Board of Directors. Directors must
be natural persons who are at least 18 years of age but need not be residents of
Florida or shareholders of the corporation.
SECTION 2. COMPENSATION. The directors, as such, shall be
entitled to receive such reasonable compensation for their services as may be
fixed from time to time by resolution of the Board of Directors. In addition,
the directors may be reimbursed for expenses of attending meetings of the Board
of Directors and committees thereof. Nothing herein contained shall be construed
to preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. Members of the executive committee or of any
standing or special committee of the Board of Directors may by resolution of the
Board be allowed such compensation for their services as the Board of Directors
may deem reasonable, and additional compensation may be allowed to directors for
special services rendered.
SECTION 3. PRESUMPTION OF ASSENT. A director who is present at
a meeting of the Board of Directors or a committee of the Board of Directors at
which action on any corporate matter is taken shall be presumed to have assented
to the action taken unless he objects at the beginning of the meeting (or
promptly upon arriving) to the holding of the meeting or transacting the
specified business at the meeting, or if the director votes against the action
taken or abstains from voting because of an asserted conflict of interest.
SECTION 4. NUMBER OF DIRECTORS. The Board of Directors of the
corporation shall consist of an even number of persons not less than two, the
exact number to be determined from time to time by resolution adopted by the
affirmative vote of a majority of all directors of the corporation then holding
office at any special or regular meeting. Until the third anniversary of the
Effective Time (as defined in the Transaction Agreement dated as of October 18,
1995 among Hafslund Nycomed AS, IVAX Corporation and the Company), (a) all those
directors initially nominated by IVAX Corporation or their successors are herein
referred to as the "Ivax Continuing Directors" and all those directors initially
nominated by Hafslund Nycomed AS or their successors are herein referred to as
the "Nycomed Continuing Directors"; (b) in the event the number of directors is
reduced from time to time, the number of Ivax Continuing Directors and Nycomed
Continuing Directors shall be correspondingly reduced, so that at any time prior
thereto there shall be an equal number of Ivax Continuing Directors and Nycomed
Continuing Directors; (c) the number of directors of the corporation, as so
determined from time to time, is herein referred to as the "Whole Board"; and
(d)(i) the Ivax Continuing Directors shall, acting as a nominating committee of
the Board, propose for election by the shareholders those person intended to
fill any vacancy caused by the expiration of the term, death, disability or
resignation of any Ivax Continuing Director and (ii) the Nycomed Continuing
Directors shall, acting as a nominating Committee of the Board, propose for
election by the shareholders those persons intended to fill any vacancy caused
by the expiration of the term, death, disability or resignation
<PAGE>
7
of any Nycomed Continuing Director. Any such resolution increasing or decreasing
the number of directors shall have the effect of creating or eliminating a
vacancy or vacancies, as the case may be, provided that no such resolution shall
reduce the number of directors below the number then holding office.
SECTION 5. TERM OF OFFICE. Each director shall hold office
until the annual meeting next succeeding his election and until his successor is
elected and qualified, or until his earlier resignation, removal from office or
death.
SECTION 6. ELECTION OF DIRECTORS. Directors shall be elected
at the annual meeting of shareholders, but when the annual meeting is not held
or directors are not elected thereat, they may be elected at a special meeting
called and held for that purpose. Directors shall be elected by a plurality of
the votes cast by the shares entitled to vote in the election at a meeting at
which a quorum is present.
SECTION 7. VACANCIES. Until the third anniversary of the
Effective Time, any vacancy occurring in the Board of Directors (a) as a result
of the death, disability or resignation of any Ivax Continuing Director shall be
filled by the remaining Ivax Continuing Directors; (b) as a result of the death,
disability or resignation of any Nycomed Continuing Director shall be filled by
the remaining Nycomed Continuing Directors; and (c) half of the number of any
vacancies created by an increase in the number of directors shall be filled by
the Ivax Continuing Directors and half of the number of any such vacancies shall
be filled by the Nycomed Continuing Directors. Subject to the foregoing, any
vacancy occurring in the Board of Directors, including a vacancy created by an
increase in the number of directors, may be filled by the shareholders or by the
affirmative vote of a majority of the remaining directors though less than a
quorum of the Board of Directors. A director elected to fill a vacancy shall
hold office only until the next election of directors by the shareholders. If
there are no remaining directors, the vacancy shall be filled by the
shareholders.
SECTION 8. REMOVAL OF DIRECTORS. At a meeting of shareholders,
any director or the entire Board of Directors may be removed, with or without
cause, provided the notice of the meeting states that one of the purposes of the
meeting is the removal of the director. A director may be removed only if the
number of votes cast to remove him exceeds the number of votes cast against
removal.
SECTION 9. QUORUM AND TRANSACTION OF BUSINESS. A majority of
the number of directors fixed pursuant to these Bylaws shall constitute a quorum
for the transaction of business, except that a majority of the directors in
office shall constitute a quorum for filling a vacancy on the Board. Whenever
less than a quorum is present at the time and place appointed for any meeting of
the Board, a majority of those present may adjourn the meeting from time to time
and place to place, until a quorum shall be present and no notice of any such
adjourned
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8
meeting shall be required. The act of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors.
SECTION 10. PLACE OF MEETING. Regular and special meetings of
the Board of Directors shall be held at the principal office of the corporation
or as determined by the Chairman of the Board, unless otherwise designated by
resolution from time to time by the Board of Directors.
SECTION 11. TIME, NOTICE AND CALL OF MEETINGS. Regular
meetings of the Board of Directors shall be held without notice at the time and
on the date designated by resolution of the Board of Directors. Meetings of the
Board of Directors may be called by the Chairman of the Board. Upon determining
the need for a special meeting, the Chairman of the Board shall direct the
secretary of the corporation to provide written notice of the time, date and
place of such special meeting of the Board of Directors to each director by
personal delivery, mail delivery or by fascimile at least two but not more than
15 days before the meeting. Notice of a meeting of the Board of Directors need
not be given to a director who signs a waiver of notice either before or after
the meeting. Attendance of a director at a meeting constitutes a waiver of
notice of that meeting and waiver of all objections to the place of the meeting,
the time of the meeting, and the manner in which it has been called or convened,
except when a director states at the beginning of the meeting or promptly upon
arrival at the meeting, objection to the transaction of business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors must be specified in the notice or waiver of notice of the meeting.
A majority of the directors present, whether or not a quorum exists, may adjourn
any meeting of the Board of Directors to another time and place. Notice of an
adjourned meeting shall be given to the directors who were not present at the
time of the adjournment and, unless the time and place of the adjourned meeting
are announced at the time of the adjournment, to the other directors. Members of
the Board of Directors (and any committee of the Board) may participate in a
meeting of the Board (or committee) by means of a conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other at the same time. Participation by these means
constitutes presence in person at a meeting.
SECTION 12. ACTION WITHOUT A MEETING. Any action required to
be taken at a meeting of the Board of Directors (or a committee of the Board),
and any action which may be taken at a meeting of the Board of Directors (or a
committee of the Board) may be taken without a meeting if a consent in writing,
setting forth the action to be taken and signed by all of the directors (or
members of the committee), is filed in the minutes of the proceedings of the
Board of Directors. The action taken shall be deemed effective when the last
director signs the consent, unless the consent specifies otherwise.
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9
ARTICLE III
COMMITTEES
SECTION 1. EXECUTIVE COMMITTEE. The Board of Directors may
from time to time, by resolution passed by a majority of the whole Board, create
an executive committee of three or more directors, the members of which shall be
elected by the Board of Directors to serve at the pleasure of the Board. If the
Board of Directors does not designate a chairman of the executive committee, the
executive committee shall elect a chairman from its own members. Except as
otherwise provided herein and in the resolution creating an executive committee,
such committee shall, during the intervals between the meetings of the Board of
Directors, possess and may exercise all of the powers of the Board of Directors
in the management of the business and affairs of the corporation, other than
that of filling vacancies among the directors or in any committee of the
directors and except as required by law. The executive committee shall keep full
records and accounts of its proceedings and transactions. All action by the
executive committee shall be reported to the Board of Directors at its meeting
next succeeding such action and shall be subject to control, revision and
alteration by the Board of Directors, provided that no rights of third persons
shall be prejudicially affected thereby. Vacancies in the executive committee
shall be filled by the directors, and the directors may appoint one or more
directors as alternate members of the committee who may take the place of any
absent member or members at any meeting.
SECTION 2. MEETINGS OF EXECUTIVE COMMITTEE. Subject to the
provisions of these Bylaws, the executive committee shall fix its own rules of
procedure and shall meet as provided by such rules or by resolutions of the
Board of Directors, and it shall also meet at the call of the Chairman of its
Board, the chairman of the executive committee or any two members of the
committee. Unless otherwise provided by such rules or by such resolutions, the
provisions of Section 11 of Article II relating to the notice required to be
given for meetings of the Board of Directors shall also apply to meetings of the
executive committee. A majority of the executive committee shall be necessary to
constitute a quorum.
SECTION 3. OTHER COMMITTEES. The Board of Directors may by
resolution provide for such other standing or special committees as it deems
desirable, and discontinue the same at its pleasure. Each such committee shall
have such powers and perform such duties, not inconsistent with law, as may be
delegated to it by the Board of Directors. The provisions of Section 1 and
Section 2 of this Article III shall govern the appointment and action of such
committee so far as consistent, unless otherwise provided by the Board of
Directors. Vacancies in such committees shall be filled by the Board of
Directors or as the Board of Directors may provide.
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10
ARTICLE IV
OFFICERS
SECTION 1. GENERAL PROVISIONS. The Board of Directors shall
appoint a Chairman of the Board of Directors, a president, a chief executive
officer, and a secretary, provided that a person may hold more than one such
office. The Board of Directors may from time to time create such offices and
appoint such other officers, subordinate officers and assistant officers as it
may determine. The Chairman of the Board, shall be, but the other officers need
not be, chosen from among the members of the Board of Directors. Each such
officer shall hold office at the pleasure of the Board of Directors, and perform
such duties as the Board of Directors may prescribe. The Board of Directors may,
from time to time, authorize any officer to appoint and remove subordinate and
assistant officers, to prescribe their authority and duties, and to fix their
compensation.
SECTION 2. TERM OF OFFICE. The officers of the corporation
shall hold office at the pleasure of the Board of Directors, and, unless sooner
removed by the Board of Directors, until the annual meeting of the Board of
Directors following the date of their appointment and until their successors are
chosen and qualified. The Board of Directors may remove any officer at any time,
with or without cause. A vacancy in any office created shall be filled by the
Board of Directors.
SECTION 3. CHAIRMAN OF THE BOARD. The Chairman of the Board
shall preside at all meetings of the Board of Directors and meetings of
shareholders and shall be the senior officer of the corporation and, subject to
the control of the Board of Directors, shall exercise supervision over the
management of the business of the corporation.
SECTION 4. CHIEF EXECUTIVE OFFICER. The chief executive
officer shall exercise supervision over the management of the business of the
corporation and its several officers, subject, however, to the oversight of the
Chairman of the Board and the Board of Directors. In the absence of the Chairman
of the Board, he shall preside at meetings of the shareholders.
SECTION 5. PRESIDENT. The president shall exercise supervision
over the business of the corporation and over its several officers, subject,
however, to the oversight of the Chairman of the Board and the chief executive
officer. In the absence of the Chairman of the Board and chief executive
officer, he shall preside at meetings of the shareholders.
SECTION 6. SECRETARY. The secretary shall keep minutes of all
the proceedings of the shareholders and the Board of Directors and shall make
proper record of the same, which shall be attested by him; shall have authority
to execute and deliver certificates as to any of such proceedings and any other
records of the corporation; shall give notice of meetings of shareholders and
directors; shall produce on request at each meeting of shareholders a certified
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11
list of shareholders arranged in alphabetical order; shall keep such books and
records as may be required by law or by the Board of Directors; and, in general,
shall perform all duties incident to the office of secretary and such other
duties as may from time to time be assigned to him by the Board of Directors or
the president.
SECTION 7. DUTIES OF OFFICERS MAY BE DELEGATED. In the absence
of any officer of the corporation, or for any other reason the Board of
Directors may deem sufficient, the Board of Directors may delegate, for such
period of time as the Board of Directors deem appropriate, the powers or duties,
or any of them, of such officers to any other officer or to any director.
SECTION 8. REMOVAL OF CERTAIN OFFICERS. Neither the Chairman,
the President nor the Chief Executive Officer may be removed from office unless
such removal shall have first been approved by a majority of the whole Board.
ARTICLE V
SHARE CERTIFICATE AND SEAL
SECTION 1. FORM AND EXECUTION. Certificates for shares,
certifying the number of fully-paid shares owned, shall be issued to each
shareholder in such form as shall be approved by the Board of Directors. Such
certificates shall be signed by the Chairman of the Board or the president or a
vice president and by the secretary or the treasurer; provided, however, that if
such certificates are countersigned by a transfer agent and/or registrar the
signatures of any of said officers and the seal of the corporation upon such
certificates may be facsimiles, engraved, stamped or printed. If any officer or
officers who shall have signed, or whose facsimile signature shall have been
used, printed or stamped on any certificate or certificates for shares, shall
cease to be such officer or officers, because of death, resignation or
otherwise, before such certificate or certificates shall have been delivered by
the corporation, such certificate or certificates, if authenticated by the
endorsement thereon of the signature of a transfer agent or registrar, shall
nevertheless be conclusively deemed to have been adopted by the corporation by
the use and delivery thereof and shall be as effective in all respects as though
signed by a duly elected, qualified and authorized officer or officers, and as
though the person or persons who signed such certificate or certificates, or
whose facsimile signature or signatures shall have been used thereon, had not
ceased to be an officer or officers of the corporation. The failure of the
corporation to note upon a certificate a restriction on the transfer of shares
imposed or which may be imposed by law, contract or otherwise, shall not be
deemed to imply that such shares are free of any such restriction or create in
favor of the person to whom such certificate
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12
is issued, or any successor, assign, devise or heir of such recipient, any cause
of action of any nature against the corporation.
SECTION 2. REGISTRATION OF TRANSFER. Any certificate for
shares of the corporation shall be transferable (subject to any applicable
restrictions imposed or which may be imposed by law, contract or otherwise) in
person or by attorney upon the surrender thereof to the corporation or any
transfer agent therefor (for the class of shares represented by the certificate
surrendered) properly endorsed for transfer and accompanied by such assurances
as the corporation or such transfer agent may require as to the genuineness and
effectiveness of each necessary endorsement.
SECTION 3. LOST, STOLEN OR DESTROYED CERTIFICATES. The
corporation shall, upon the authorization of the Chairman of the Board, the
secretary or such other person as is authorized by resolution of the Board of
Directors, issue a new stock certificate in the place of any certificate
previously issued if the holder of record of the certificate (a) makes proof in
affidavit form that it has been lost, destroyed or wrongfully taken; (b)
requests the issue of a new certificate before the corporation has notice that
the certificate has been acquired by a purchaser for value in good faith and
without notice of any adverse claim; (c) gives bond in such form as the
corporation may direct to indemnify the corporation and any transfer agent and
registrar against any claim that may be made on account of the alleged loss,
destruction, or theft of a certificate; and (d) satisfies any other reasonable
requirements imposed by the corporation.
SECTION 4. SEAL. The corporate seal shall be circular in form
and include the name of the corporation.
ARTICLE VI
DISTRIBUTIONS
The Board of Directors may, from time to time, declare
distributions to its shareholders in cash, property, or its own shares, unless
the distribution would cause (i) the corporation to be unable to pay its debts
as they become due in the usual course of business, or (ii) the corporation's
assets to be less than its liabilities plus the amount necessary, if the
corporation were dissolved at the time of the distribution, to satisfy the
preferential rights of shareholders whose rights are superior to those receiving
the distribution. The shareholders and the corporation may enter into an
agreement requiring the distribution of corporate profits, subject to the
provisions of applicable law.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 1. FISCAL YEAR. The fiscal year of the corporation
shall be the calendar year.
SECTION 2. RESIGNATION. Any director or officer of the
corporation may resign his office at any time upon presenting his written
resignation to the Board of Directors, the Chairman of the Board, the chief
executive officer, the chief operating officer, the president or the secretary,
and, unless some time be fixed in such resignation as the date upon which it is
to become effective, the same shall become effective immediately upon
presentation. The acceptance of a resignation shall not be required to make it
effective, unless otherwise so stated in such resignation, and in that event it
shall become effective at the pleasure of the Board.
SECTION 3. VOTING UPON STOCKS OF OTHER CORPORATIONS. Unless
otherwise ordered by the Board of Directors, the Chairman of the Board, the
chief executive officer, the chief operating officer, or the president shall, in
the order above stated, have full power and authority on behalf of the
corporation to attend, act and vote at any meeting or meetings of shareholders
of any corporation in which this corporation may hold stock or other securities,
and at any such meeting shall possess and may exercise on behalf of the
corporation any and all of the rights and powers incident to the ownership of
such stock or other securities. The person having the power and authority as set
forth above may in his discretion delegate same to another person that he
designates to act on behalf of the corporation at any given meeting. The Board
of Directors, by resolution, may from time to time confer like powers upon any
other person or persons.
ARTICLE VIII
CORPORATE RECORDS, SHAREHOLDERS'
INSPECTION RIGHTS; FINANCIAL INFORMATION
SECTION 1. CORPORATE RECORDS.
(a) The corporation shall keep as permanent records minutes of
all meetings of its shareholders and Board of Directors, a record of all actions
taken by the shareholders or Board of Directors without a meeting, and a record
of all actions taken by a committee of the Board of Directors on behalf of the
corporation.
(b) The corporation shall maintain accurate accounting records
and a record of its shareholders in a form that permits preparation of a list of
the names and addresses of all shareholders in alphabetical order by class of
shares showing the number and series of shares
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held by each.
(c) The corporation shall keep a copy of: (i) its articles or
restated articles of incorporation and all amendments to them currently in
effect; (ii) these Bylaws or restated Bylaws and all amendments currently in
effect; (iii) resolutions adopted by the Board of Directors creating one or more
classes or series of shares and fixing their relative rights, preferences, and
limitations, if shares issued pursuant to those resolutions are outstanding;
(iv) the minutes of all shareholders' meetings and records of all actions taken
by shareholders without a meeting for the past three years; (v) written
communications to all shareholders generally or all shareholders of a class of
series within the past three years, including the financial statements furnished
for the last three years; (vi) a list of names and business street addresses of
its current directors and officers; and (vii) its most recent annual report
delivered to the Department of State.
(d) The corporation shall maintain its records in written form
or in another form capable of conversion into written form within a reasonable
time.
SECTION 2. SHAREHOLDERS' INSPECTION RIGHTS. A shareholder is
entitled to inspect and copy, during regular business hours at the corporation's
principal office, any of the corporate records described in Section 1(c) of this
Article if the shareholder gives the corporation written notice of the demand at
least 5 business days before the date on which he wishes to inspect and copy the
records.
A shareholder is entitled to inspect and copy, during regular
business hours at a reasonable location specified by the corporation, any of the
following records of the corporation if the shareholder gives the corporation
written notice of this demand at least 5 business days before the date on which
he wishes to inspect and copy provided (a) the demand is made in good faith and
for a proper purpose; (b) the shareholder describes with reasonable
particularity the purpose and the records he desires to inspect; and (c) the
records are directly connected with the purpose: (i) excerpts from minutes of
any meeting of the Board of Directors, records of any action of a committee of
the Board of Directors while acting in place of the Board on behalf of the
corporation; (ii) accounting records; (iii) the record of shareholders; and (iv)
any other books and records of the corporation.
This Section 2 does not affect the right of a shareholder to
inspect and copy the shareholders' list described in Section 6 of Article I, if
the shareholder is in litigation with the corporation to the same extent as any
other litigant or the power of a court to compel the production of corporate
records for examination.
The corporation may deny any demand for inspection if the
demand was made for an improper purpose, or if the demanding shareholder has
within the two years preceding his
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15
demand, sold or offered for sale any list of shareholders of the corporation or
of any other corporation, has aided or abetted any person in procuring any list
of shareholders for that purpose, or has improperly used any information secured
through any prior examination of the records of this corporation or any other
corporation.
SECTION 3. FINANCIAL STATEMENTS FOR SHAREHOLDERS. Unless
modified by resolution of the shareholders within 120 days after the close of
each fiscal year, the corporation shall furnish its shareholders with annual
financial statements which may be consolidated or combined statements of the
corporation and one or more of its subsidiaries, as appropriate, that include a
balance sheet as of the end of the fiscal year, an income statement for that
year, and a statement of cash flows for that year. If financial statements are
prepared for the corporation on the basis of generally accepted accounting
principles, the annual financial statements must also be prepared on that basis.
If the annual financial statements are reported upon by a
public accountant, his report must accompany them. If not, the statements must
be accompanied by a statement of the chief financial officer or the person
responsible for the corporation's accounting records stating his reasonable
belief whether the statements were prepared on the basis of generally accepted
accounting principles and, if not, describing the basis of preparation and
describing any respects in which the statements were not prepared on a basis of
accounting consistent with the statements prepared for the preceding year.
The corporation shall mail the annual financial statements to
each shareholder within 120 days after the close of each fiscal year or within
such additional time thereafter as is reasonably necessary to enable the
corporation to prepare its financial statements. Thereafter, on written request
from a shareholder who was not mailed the statements, the corporation shall mail
him the latest annual financial statements.
SECTION 4. OTHER REPORTS TO SHAREHOLDERS. If the corporation
indemnifies or advances expenses to any director, officer, employee or agent
otherwise than by court order or action by the shareholders or by an insurance
carrier pursuant to insurance maintained by the corporation, the corporation
shall report the indemnification or advance in writing to the shareholders with
or before the notice of the next annual shareholders' meeting, or prior to the
meeting if the indemnification or advance occurs after the giving of the notice
but prior to the time the annual meeting is held. This report shall include a
statement specifying the persons paid, the amounts paid, and the nature and
status at the time of such payment of the litigation or threatened litigation.
If the corporation issues or authorizes the issuance of shares
for promises to render services in the future, the corporation shall report in
writing to the shareholders the number of shares authorized or issued, and the
consideration received by the corporation, with
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16
or before the notice of the next shareholders' meeting.
ARTICLE IX
INDEMNIFICATION
SECTION 1. RIGHT TO INDEMNIFICATION. Each person (including
here and hereinafter, the heirs, executors, administrators, or estate of such
person) (i) who is or was a director or officer of the corporation, (ii) who is
or was an agent or employee of the corporation other than an officer and as to
whom the corporation has agreed to grant such indemnity, or (iii) who is or was
serving at the request of the corporation as its representative in the position
of director, officer, agent or employee of another corporation, partnership,
joint venture, trust or other enterprise and as to whom the corporation has
agreed to grant such indemnity shall be indemnified by the corporation as of
right to the fullest extent permitted or authorized by current or future
legislation or by current or future judicial or administrative decision (but, in
the case of any such future legislation or decision, only to the extent that it
permits the corporation to provide broader indemnification rights than permitted
prior to such legislation or decision), against any liability or expense,
awarded or assessed against him, or incurred by him, in his capacity as such
director, officer, agent, employee or representative, or arising out of his
status as such director, officer, agent, employee, or representative, including
(in the case of derivative actions) expenses and amounts paid by him in
settlement of any proceeding asserted or brought against him in his aforesaid
capacity or arising out of his status as such.
SECTION 2. ADVANCEMENT OF EXPENSES. Expenses incurred by a
person referred to in Section 1 of this Article IX in defending a civil or
criminal proceeding shall be paid by the corporation in advance of the final
disposition of such proceeding, (i) upon receipt, in the case of a director or
officer, of an undertaking by or on behalf of the director or officer to repay
all amounts so advanced if he is ultimately found not to be entitled to be
indemnified by the corporation pursuant to this Article IX, and (ii) upon
satisfaction of such other conditions as are required by current or future
legislation (but, with respect to future legislation, only to the extent that it
provides conditions less burdensome to the director, officer, employee, agent or
representative, and to the corporation, than those provided previously). Such
expenses incurred by other employees, agents and representatives may be so paid
upon such terms and conditions, if any, as the Board of Directors deems
appropriate. The Board of Directors may, in the manner set forth above, and upon
approval of such director, officer, employee, agent or representative of the
corporation, authorize the corporation's counsel to represent such person, in
any proceeding, whether or not the corporation is a party to such proceeding.
SECTION 3. PROCEDURE FOR INDEMNIFICATION AND OBTAINING
ADVANCEMENT OF EXPENSES. Any indemnification of liabilities and expenses or
advancement of expenses under this Article shall be made promptly, and in any
event within 60 days, upon the written request
<PAGE>
17
of the director, officer, employee, agent or representative seeking
indemnification or an advancement. If the corporation denies such request in
whole or in part or if no disposition thereof is made within 60 days of its
receipt of such request or if the corporation otherwise fails to provide
indemnification or advancement provided for in this Article IX, and despite any
contrary determination by the corporation (including its Board of Directors or a
committee thereof, its independent legal counsel or its shareholders) in the
specific case, a director, officer, employee, agent or representative may apply
for indemnification or advancement, or both, in an appropriate proceeding
brought in a court of competent jurisdiction and shall be entitled to such
indemnification or advancement, or both, as the court shall by order direct.
Such person's reasonable expenses in obtaining court-ordered indemnification or
advancement shall be reimbursed by the corporation. No such contrary
determination by the corporation (including the Board of Directors or a
committee thereof, its independent legal counsel or its shareholders) shall be a
defense to such proceeding or create a presumption that the claimant has not met
the applicable standard of conduct, if any, for indemnification or an
advancement.
SECTION 4. OTHER RIGHTS, CONTINUATION OF RIGHT TO
INDEMNIFICATION AND ADVANCEMENTS. The indemnification and advancements provided
by this Article IX shall not be deemed exclusive of any other or further rights
to which a person seeking indemnification or advancements may be entitled under
any law (common or statutory), agreement, vote of shareholders or disinterested
directors or otherwise, either as to action taken or omitted to be taken in his
official capacity or as to action taken or omitted to be taken in another
capacity while holding office or while employed by or acting as agent for the
corporation. All rights to indemnification and to advancements of expenses under
this Article IX shall be deemed to be a contract between the corporation and
each director, officer, employee, agent or representative of the corporation
described in Section 1 of this Article IX who serves or has served in any such
capacity at any time while this Article IX is in effect.
Any repeal or modification of this Article IX, or any repeal or
modification of relevant provisions of the Florida Business Corporation Act or
any other applicable law, shall not in any way diminish any right to
indemnification or to advancement of expenses of such director, officer,
employee, agent or representative, or the obligations of the corporation,
arising hereunder.
SECTION 5. INSURANCE. The corporation may purchase and
maintain insurance, at its expense, to protect itself and any person who is or
was or has agreed to become a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him or on his behalf in any such capacity, or arising out of his
status as such, whether or not the corporation would have the legal power to
directly indemnify him against such liability.
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18
SECTION 6. SAVINGS CLAUSE. If this Article IX or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the corporation shall nevertheless indemnify each director
and officer, and each employee, agent and representative of the corporation
described in Section 1 of this Article IX, as to liabilities and expenses, and
amounts paid in settlement with respect to any proceeding, including any action
by or in the right of the corporation, to the full extent permitted by any
applicable portion of this Article IX that shall not have been invalidated and
to the full extent permitted by applicable law.
SECTION 7. TERMS. For purposes of this Article IX, the term
"other enterprises" includes employee benefit plans; the term "expenses"
includes counsel fees, including those for appeal; the term "liability' includes
obligations to pay a judgment, settlement, penalty, fine (including an excise
tax assessed with respect to any employee benefit plan), and expenses actually
and reasonably incurred with respect to a proceeding; the term "proceeding"
includes any threatened, pending, or completed action, suit, or other type of
proceeding, whether civil, criminal, administrative, or investigative and
whether formal or informal; the term "agent" includes a volunteer; and the term
"serving at the request of the corporation" includes any service as a director,
officer, employee or agent of the corporation that imposes duties on such
persons, including duties relating to an employee benefit plan and its
participants or beneficiaries.
ARTICLE X
AMENDMENT
These Bylaws may be altered, amended or repealed, and new
Bylaws adopted, by the Board of Directors or shareholders, except that until the
third anniversary of the Effective Time, Article IV, Section 8 may not be
amended by the Board of Directors unless first approved by a majority of the
number of directors constituting the Whole Board.
EXHIBIT 10.9
ARTICLES OF ASSOCIATION
FOR
IVAX NYCOMED B AS
Section 1
NAME
The name of the company is IVAX NYCOMED B AS.
Section 2
OBJECT
The object of the company is limited to owning the shares in IVAX Nycomed
Corporation, a Florida corporation, received from Hafslund Nycomed AS pursuant
to a Demerger Plan dated ________, 1995 between Hafslund Nycomed AS and IVAX
Nycomed B AS or any other consideration into which such shares may be converted,
and to exercise its rights and perform its obligations under the Agreement dated
_________, 1995 between IVAX Nycomed B AS and IVAX Nycomed Corporation.
Section 3
REGISTERED OFFICE
The registered office of the company is in the district county of Oslo.
Section 4
SHARE CAPITAL
The company share capital is NOK [ ] divided into [100.535.120] shares each NOK
[ ].
The company shares shall be registered with the Norwegian Registry of Securities
("Verdipapirsentralen").
The shares in the company may freely be assigned and acquired.
Section 5
THE BOARD OF DIRECTORS AND MANAGING DIRECTOR
The company's board of directors consists of five directors. Four of the
directors shall be appointed by the general meeting. IVAX Nycomed Corporation
shall have the right to appoint one of the directors. The chairman is elected by
and among the board members.
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2
The members of the board of directors are elected for a two year period.
The board of directors forms a quorum when more than half the members of the
board of directors are present. Board resolutions are adopted by a majority of
the attending members of the board of directors provided they make up more than
one-third of all the members of the board of directors. In the event of a tie,
the chairman or presiding member of the board of directors has the casting vote.
Board meetings are held as convened by the chairman or whenever a director or
the managing director so requests.
The managing director is the chief executive officer of the company.
Section 6
SIGNATURE
Power of signature for the company is exercised jointly by two directors.
Section 7
GENERAL MEETINGS
The general meeting is formed by the shareholders who are present either in
person or by lawful proxy.
Shareholders who intend to participate in a general meeting shall report to the
company by the date stated in the notice. This date shall be at least two days
before the date of the general meeting. If a shareholder has failed to report in
due time, he may be denied admission.
Section 8
In the general meeting the shareholders exercise the highest authority in the
company.
At general meetings, each share carries one vote.
The shareholders that are recorded in the company share register at the
Norwegian Registry of Securities ("Verdipapirsentralen") as share holders, are
entitled to vote at general meetings. Shares that are transferred to a new owner
do not carry voting rights until two days after the assignment is registered in
the Norwegian Registry of Securities ("Verdipapirsentralen").
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3
Section 9
General meeting resolutions are adopted pursuant to the majority requirements as
set out in the Norwegian Joint Stock Companies Act. A majority of 9/10 of the
votes cast and the share capital present at the general meeting is however
required in the following situations:
1. changes of Article 2 and the first paragraph of Article 5.
2. decision to liquidate the company.
3. all other resolutions which, pursuant to the Joint Stock Companies Act
as amended from time to time, requires a "special majority"
("kvalifisert flertall").
Section 10
General meetings are convened by the chairman of the board of directors and such
general meeting shall be held at least one working day prior to each general
meeting of IVAX Nycomed Corporation. The notice and the agenda shall be
published at least 14 days in advance in the Oslo newspapers Aftenposten,
Arbeiderbladet and Dagens Naeringsliv.
General meetings are held in Oslo.
General meetings are conducted by the managing director, or in his absence, by
the chairman of the board of directors.
Section 11
Ordinary general meetings are held before July 15 each year. The ordinary
general meeting shall:
1. adopt the income statement and balance sheet and hereunder decide how
to employ the year's profit or cover the loss.
2. deal with such matters as are on the agenda for any subsequent general
meeting of IVAX Nycomed Corporation.
Questions which a shareholder wants to have dealt with by the ordinary general
meeting must be reported in writing to the board at least one month before the
date of the general meeting.
The annual financial statement and auditor's report shall be made available to
the shareholders in the company's office at least one week before the date of
the general meeting. The documents shall, at the same time, be circulated to all
the shareholders whose address is known.
<PAGE>
SHARE REGISTER
OF
IVAX NYCOMED AS
After the constitutional general meeting the [ ] 1995 the shares of the company
are distributed as follows:
No.
1 - [100.535.120] belonging to Hafslund Nycomed AS, Slemdalsveien 37, Oslo.
Oslo, [ ] 1995
- ---------------------------------- -------------------------------
Chairman of the board of directors Board Member
