Exhibit 99.1
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VOTING AGREEMENT
by
and
among
IVAX Corporation,
IVAX Diagnostics, Inc.,
b2bstores.com, Inc.,
and
B2B Supporting Stockholders
(as listed in Exhibit A)
Dated: November 21, 2000
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS............................................................... 1
1.1 Definitions...................................................... 1
1.2 Other Definitions................................................ 2
ARTICLE 2. REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION................. 2
2.1 Representations and Warranties of the Supporting Stockholders.... 2
ARTICLE 3. AGREEMENT TO VOTE IN FAVOR OF MERGER...................................... 3
3.1 Voting of Shares................................................. 3
3.2 Transfer; Additional Shares...................................... 4
3.3 Revocation of other Proxies...................................... 4
3.4 Grant of Proxy................................................... 4
3.5 No Limit on Fiduciary Duty....................................... 4
ARTICLE 4. PRE-CLOSING COVENANTS..................................................... 5
4.1 General.......................................................... 5
4.2 Notice of Developments........................................... 5
4.3 Confidentiality; Publicity....................................... 5
ARTICLE 5. POST-CLOSING COVENANTS.................................................... 6
5.1 General.......................................................... 6
5.2 Litigation Support............................................... 6
5.3 Release.......................................................... 6
ARTICLE 6. TERMINATION............................................................... 7
6.1 Termination of Agreement......................................... 7
6.2 Effect of Termination............................................ 7
ARTICLE 7. MISCELLANEOUS............................................................. 7
7.1 Entire Agreement................................................. 7
7.2 Successors....................................................... 7
7.3 Assignments...................................................... 7
7.4 Notices.......................................................... 8
7.5 Specific Performance............................................. 8
7.6 Counterparts..................................................... 9
7.7 Headings......................................................... 9
7.8 Governing Law.................................................... 9
7.9 Amendments and Waivers........................................... 9
7.10 Severability..................................................... 9
7.11 Expenses......................................................... 9
7.12 Construction..................................................... 9
7.13 Incorporation of Exhibits and Annexes............................10
i
ATTACHMENTS
Exhibits
Exhibit A List of Shareholders
ii
VOTING AGREEMENT
This Voting Agreement (this "Agreement"), dated November 21, 2000, is by
and among (i) IVAX Corporation, a Florida corporation ("IVAX"), (ii) IVAX
Diagnostics, Inc., a Florida corporation ("Diagnostics" and, together with IVAX,
the "IVAX Parties"); (iii) b2bstores.com, Inc., a Delaware corporation ("B2B"),
and (iv) the B2B's Supporting Stockholders set forth in Exhibit A (individually,
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a "Supporting Stockholder" and, collectively, the "Supporting Stockholders")(the
IVAX Parties, B2B and Supporting Stockholders are hereinafter referred to
individually as a "Party" and collectively as the "Parties").
RECITALS:
A. The Supporting Stockholders own shares of the B2B's outstanding
capital stock.
B. Simultaneous with the execution of this Agreement, B2B has entered
into a Merger Agreement (as defined herein) under which Diagnostics will be
merged (the "Merger") with and into the B2B, with B2B continuing as the
surviving entity (the "Surviving Corporation") and successor to the business of
the Diagnostics.
C. The Supporting Stockholders will receive substantial benefit as a
result of the IVAX Parties entering into the Merger Agreement and the IVAX
Parties would not have entered into the Merger Agreement if the Supporting
Stockholders had not executed this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants contained herein, the IVAX Parties and each Supporting Stockholder
agree as follows:
ARTICLE 1.
DEFINITIONS
1.1 Definitions
The following terms have the indicated meanings or are defined in the
indicated places.
"Agreement" is defined in the preamble to this Agreement.
"B2B" is defined in the preamble to this Agreement.
"B2B Share" means any share of the Common Stock, par value $0.01 per share,
of B2B.
"Confidential Information" means any information concerning the businesses
and affairs of any of the Parties.
"Expiration Date" means June 30, 2001, or such later date as the
Termination Date is extended.
"Merger Agreement" means the Merger Agreement by and between the B2B and
the IVAX Parties, including all exhibits and other documents related thereto,
and any amendments permitted thereunder.
"IVAX" is defined in the preamble to this Agreement.
"IVAX Parties" is defined in the preamble to this Agreement.
"Organizational Documents" of an entity means Articles of Incorporation,
Certificate of Incorporation, Charter, By-laws or other organizational
documentation of such entity.
"Subject Shares" is defined in Section 3.2(b).
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"Supporting Stockholder" and "Supporting Stockholders" are defined in the
preamble to this Agreement.
"Diagnostics" is defined in the preamble to this Agreement.
"Termination Date" means June 30, 2001.
"Transaction Documents" means this Agreement and any ancillary agreements
hereto.
"Transactions" means all of the transactions contemplated by this
Agreement.
1.2 Other Definitions
Undefined terms in this Agreement are defined in the Merger Agreement.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES
CONCERNING THE TRANSACTION
2.1 Representations and Warranties of the Supporting Stockholders
The Supporting Stockholders represent and warrant to the B2B and IVAX
Parties that the statements contained in this Section 2.1 are correct and
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complete as of the date of this Agreement and will be correct and complete as of
the Effective Date (as though made then and, except as expressly provided in a
representation or warranty, as though the Effective Date were substituted for
the date of this Agreement throughout this Section 2.1).
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(a) Status of Certain Supporting Stockholders. Each Supporting
Stockholder that is an entity is an entity duly created, formed or
organized, validly existing, and in good standing under the Laws of the
jurisdiction of its creation, formation, or organization.
(b) Power and Authority; Enforceability. Each Supporting
Stockholder that is an entity has the entity power and authority to execute
and deliver each Transaction
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Document to which such Supporting Stockholder is a party, and to perform
and consummate the Transactions. Each Supporting Stockholder that is an
individual has the requisite competence and authority to execute and
deliver each Transaction Document to which he or she is a party, and to
perform and to consummate the Transactions. Each Supporting Stockholder has
taken all actions necessary to authorize the execution and delivery of each
Transaction Document to which it is party, the performance of such
Supporting Stockholder's obligations thereunder, and the consummation of
the Transactions. Each Transaction Document has been duly authorized,
executed, and delivered by, and is Enforceable against, each Supporting
Stockholder party thereto.
(c) No Violation. The execution and the delivery of the
Transaction Documents by each Supporting Stockholder party thereto and the
performance and consummation of the Transactions by such Supporting
Stockholder will not (i) Breach any Law or Order to which any Supporting
Stockholder is subject and, if a Supporting Stockholder is an entity, any
provision of its Organizational Documents, (ii) Breach any Contract, Order,
or Permit to which Supporting Stockholder is a party or by which Supporting
Stockholder is bound or to which any of a Supporting Stockholder's assets
is subject, or (iii) require any Consent. No Supporting Stockholder is
party to any Contract to which the B2B is a party or by which the B2B is
bound or any of its assets is subject has Breached any such Contract.
(d) Brokers' Fees. No Supporting Stockholder has any Liability
to pay any compensation to any broker, finder, or agent with respect to the
Transactions for which either IVAX Party or Surviving Corporation could
become directly or indirectly Liable.
(e) Shares; Supporting Stockholder Information. Each Supporting
Stockholder holds of record and owns beneficially the number of B2B Shares
as set forth next to such Supporting Stockholder's name in Exhibit A. No
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Supporting Stockholder is a party to any Contract that could require such
Supporting Stockholder to sell, transfer, or otherwise dispose of any
capital stock of the B2B.
ARTICLE 3.
AGREEMENT TO VOTE IN FAVOR OF MERGER
3.1 Voting of Shares
(a) Each Supporting Stockholder will attend the Special Meeting,
and any adjournment thereof, at which the matters contemplated by the Proxy
Statement are to be presented to a vote of the B2B's Supporting
Stockholders, in person or by proxy, and to vote (or cause to be voted) all
Subject Shares.
(b) Each Supporting Stockholder agrees to vote (or cause to be
voted) all of the Subject Shares, at the Special Meeting:
(i) in favor of the Merger and the approval and adoption
of the terms contemplated by the Merger Agreement and any actions
required in furtherance thereof as set forth in the Proxy Statement;
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(ii) against any action or agreement that is reasonably
likely to result in a Breach in any material respect of any
covenant, representation or warranty, or any other obligation of the
B2B under this Agreement or the Merger Agreement; and
(iii) against any Competing Transaction.
3.2 Transfer; Additional Shares
(a) Each Supporting Stockholder will not sell, transfer, assign,
pledge, or otherwise dispose of, or enter into any Contract or
understanding with respect to the sale, transfer, assignment, or other
disposition of, the Converted Shares or any interest contained therein.
(b) Without limiting the provisions of the Merger Agreement,
upon (i) any stock dividend, stock split, recapitalization,
reclassification, combination or exchange of shares of capital stock of the
B2B on, of, or affecting a Supporting Stockholder's B2B Shares or (ii) such
Supporting Stockholder becoming the beneficial record owner of any
additional B2B Shares or other securities entitling the holder thereof to
vote or give consent with respect to the matters set forth in Section 3.1,
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then this Agreement will apply to the shares of capital stock or other
securities of the B2B the Supporting Stockholder holds immediately
following the effectiveness of the events described in clause (i) or the
Supporting Stockholder becoming the beneficial record owner thereof, as
described in clause (ii), as though they were B2B Shares hereunder
(collectively, the "Subject Shares"). While this Agreement is in effect,
each Supporting Stockholder will promptly notify IVAX of the number of new
B2B Shares such Supporting Stockholder acquires after the date hereof.
3.3 Revocation of other Proxies
To the extent inconsistent with the foregoing provisions of this Article 3
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or the other provisions of this Agreement, each Supporting Stockholder hereby
revokes any and all previous proxies with respect to such Supporting
Stockholder's Subject Shares.
3.4 Grant of Proxy
Each Supporting Stockholder hereby appoints IVAX its proxy to vote all of
such Supporting Stockholder's Subject Shares at the Special Meeting (including
any adjournments and postponements thereof) and to execute and deliver any
written consents to fulfill such Supporting Stockholder's obligations under this
Agreement. This proxy is coupled with an interest and is irrevocable until the
earlier of the Effective Date and the Termination Date.
3.5 No Limit on Fiduciary Duty
Notwithstanding anything to the contrary set forth herein, this Agreement
will not (a) restrict, limit or prohibit any Supporting Stockholder or any
individuals who may represent a Supporting Stockholder on the B2B's Board of
Directors from exercising (in their capacity as a
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director or officer) their fiduciary duties to the B2B under applicable Law, or
(b) require any individual, in their capacity as an officer of the B2B, to take
any action in contravention of, or omit to take any action pursuant to, or
otherwise take or refrain from taking any actions which are inconsistent with,
instructions or directions of the B2B's Board of Directors undertaken in the
exercise of their fiduciary duties, provided that nothing in this Section 3.5
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will be deemed to relieve any Supporting Stockholder from its obligations under
any other provision of this Agreement.
ARTICLE 4.
PRE-CLOSING COVENANTS
The Parties agree as follows with respect to the period between the
execution of this Agreement and the earlier of the Effective Date and the
Termination Date:
4.1 General
Each Supporting Stockholder will use its Best Efforts to take all actions
and to do all things necessary to consummate, make effective, and comply with
the terms of this Agreement.
4.2 Notice of Developments
The Supporting Stockholders will give prompt written notice to the B2B and
IVAX of any development occurring after the date of this Agreement that causes
or reasonably could be expected to cause a Breach of any of the representations
and warranties in Section 2.1. No Supporting Stockholder's disclosure under this
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Section 4.2 will be deemed to amend this Agreement or to prevent or cure any
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misrepresentation or Breach of representation, warranty, or covenant.
4.3 Confidentiality; Publicity
Except as may be required by Law, stock exchange, or other regulation or as
otherwise expressly contemplated herein, no Supporting Stockholder or their
respective Affiliates, employees, agents and representatives will disclose to
any third party the existence of this Agreement, the subject matter or terms
hereof or any Confidential Information concerning the business or affairs of any
other Party which it may have acquired from such Party in the course of pursuing
the Transactions without prior written consent from that Party; provided,
however, any Supporting Stockholder may disclose any such Confidential
Information as follows: (a) to such Supporting Stockholder's Affiliates and its
or its Affiliates' employees, lenders, counsel, or accountants, the actions for
which the applicable Supporting Stockholder will be responsible; (b) to comply
with any applicable Law or Order, provided that prior to making any such
disclosure the Supporting Stockholder making the disclosure notifies the Party
whose Confidential Information will be disclosed of any Action of which it is
aware which may result in disclosure and uses its Best Efforts to limit or
prevent such disclosure; (c) to the extent that the Confidential Information is
or becomes generally available to the public through no fault of the Supporting
Stockholder or its Affiliates making such disclosure; (d) to the extent that the
same information is in the possession of the Supporting Stockholder making such
disclosure prior to receipt of such Confidential Information; (e) to the extent
that the Supporting Stockholder that received the
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Confidential Information independently develops the same information without in
any way relying on any Confidential Information; or (f) to the extent that the
same information becomes available to the Supporting Stockholder making such
disclosure on a nonconfidential basis from a source other than a Party or their
respective Affiliates, which source, to the disclosing Supporting Stockholder's
Knowledge, is not prohibited from disclosing such information by a legal,
Contractual, or fiduciary obligation to the other Supporting Stockholder. No
Supporting Stockholder or any of its Affiliates will issue any press release or
other public announcement related to this Agreement or the Transactions without
IVAX's and the B2B's prior written approval.
ARTICLE 5.
POST-CLOSING COVENANTS
The Parties agree as follows with respect to the period following the
Effective Date:
5.1 General
In case at any time after the Merger any further action is necessary to
carry out the purposes of this Agreement, each Party will take such further
action (including the execution and delivery of such further instruments and
documents) as any other Party reasonably may request, all at the requesting
Party's sole cost and expense (unless the requesting Party is entitled to
indemnification therefor under the Merger Agreement).
5.2 Litigation Support
So long as any Party actively is contesting or defending against any Action
in connection with (a) the Transactions or (b) any fact, situation,
circumstance, status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction on or prior to the Effective
Date involving the Merger, each other Party will cooperate with such Party and
its counsel in the contest or defense, make available their personnel, and
provide such testimony and access to their books and records as will be
necessary in connection with the contest or defense, at the sole cost and
expense of the contesting or defending Party (unless the contesting or defending
Party is entitled to indemnification therefor under the Merger Agreement).
5.3 Release
Each Supporting Stockholder, on behalf of such Supporting Stockholder and
each of such Supporting Stockholder's heirs, representatives, successors, and
assigns, hereby releases and forever discharges the B2B, IVAX Parties and the
Surviving Corporation and each of their respective officers, directors,
employees, agents, Supporting Stockholders, controlling persons,
representatives, Affiliates, successors, assigns, and the Surviving Corporation
(individually, a "Releasee" and collectively, "Releasees") from any and all
Actions, Orders, Damages, Liabilities and Contracts whatsoever, whether known or
unknown, suspected or unsuspected, both at Law and in equity, which such
Supporting Stockholder or any of such Supporting Stockholder's respective heirs,
representatives, successors or assigns now has, have ever had or may hereafter
have against the respective Releasees arising contemporaneously with or prior to
the Effective Date or on account of or arising out of any matter, cause or event
occurring
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contemporaneously with or prior to the Effective Date including any rights to
indemnification or reimbursement from the Surviving Corporation, whether
pursuant to its Organizational Documents, Contract or otherwise and whether or
not relating to Actions pending on, or asserted after, the Closing Date;
provided, however, that nothing contained herein will operate to release any
obligations of the B2B, IVAX Parties or Surviving Corporation arising under this
Agreement or under the Merger Agreement.
Each Supporting Stockholder hereby irrevocably covenants to refrain from,
directly or indirectly, asserting any cause of Action, or commencing,
instituting or causing to be commenced, any Action, of any kind against any
Release, based upon any matter purported to be released hereby.
ARTICLE 6.
TERMINATION
6.1 Termination of Agreement
This Agreement will automatically terminate upon any termination of the
Merger Agreement in accordance with its terms.
6.2 Effect of Termination
Except for the obligations under Section 4.3, this Article 6 and Article 7,
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if this Agreement is terminated under Section 6.1, then, except as provided in
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this Section 6.2 all further obligations of the Parties under this Agreement
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will terminate.
ARTICLE 7.
MISCELLANEOUS
7.1 Entire Agreement.
This Agreement, together with the Exhibits and any attachments hereto and
the certificates, documents, instruments and writings that are delivered
pursuant hereto, constitute the entire agreement and understanding of the
Parties hereto and supersede all prior agreements and understandings with
respect to the subject matter hereof.
7.2 Successors.
All of the terms, agreements, covenants, representations, warranties, and
conditions of this Agreement are binding upon, and inure to the benefit of and
are enforceable by, the Parties and their respective successors. 7.3
Assignments.
No Party may assign either this Agreement or any of its rights, interests,
or obligations hereunder without the prior written approval of IVAX Parties and
Supporting Stockholders; provided, however, that a IVAX Party may assign any or
all of its respective rights and interests
7
hereunder to one or more of its Affiliates and may designate one or more of its
Affiliates to perform its obligations hereunder.
7.4 Notices.
All notices, requests, demands, and other communications hereunder will be
in writing and shall be delivered by hand, overnight courier, facsimile
transmission or by United States Mail, postage prepaid, by registered or
certified mail (return receipt requested), to the address indicated below and
shall be deemed given when received by the intended recipient as set forth
below. Any Party may change the address to which notices, requests, demands,
claims and other communications hereunder are to be delivered by giving the
other Parties notice in the manner herein set forth.
If to IVAX Parties: Copy to (which will not constitute notice):
IVAX Corporation Stearns Weaver Miller Weissler
400 Biscayne Boulevard Alhadeff & Sitterson, P.A.
Miami, Florida 33137 Museum Tower, Suite 2200
Attention: General Counsel 150 West Flagler Street
Facsimile: (305) 575-6049 Miami, Florida 33130
Attention: Alison W. Miller, Esq.
Facsimile: (305) 789-3395
If to B2B: Copy to (which will not constitute notice):
b2bstores.com, Inc. Akin, Gump, Strauss, Hauer & Feld, L.L.P.
Attn: Richard Kandel Attn: Alan Schoenbaum, Esq.
211 Park Avenue 300 Convent Street, Suite 1500
Hicksville, New York 11801 San Antonio, Texas
Fax: (516) 931-3530 Tel.: (210) 281-7000
Fax: (210) 224-2035
If to Supporting Stockholders:
To the addresses specified in Exhibit A.
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7.5 Specific Performance.
Each Party acknowledges and agrees that the other Parties would be damaged
irreparably if any provision of this Agreement is not performed in accordance
with its specific terms or is otherwise Breached. Accordingly, each Party agrees
that the other Parties will be entitled to an injunction or injunctions to
prevent Breaches of the provisions of this Agreement and to enforce specifically
this Agreement and its terms and provisions in any Action instituted in any
court of the United States or any state thereof having jurisdiction over the
Parties and the matter, subject
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to Sections 7.8, in addition to any other remedy to which they may be entitled,
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at Law or in equity.
7.6 Counterparts.
This Agreement may be executed in two or more counterparts, each of which
will be deemed an original but all of which together will constitute one and the
same instrument.
7.7 Headings.
The article and section headings contained in this Agreement are inserted
for convenience only and will not affect in any way the meaning or
interpretation of this Agreement.
7.8 Governing Law.
This Agreement and the performance of the Transactions and obligations of
the Parties hereunder will be governed by and construed in accordance with the
laws of the State of Delaware, without giving effect to any choice of Law
principles.
7.9 Amendments and Waivers.
No amendment, modification, replacement, termination or cancellation of any
provision of this Agreement will be valid, unless the same will be in writing
and signed by IVAX Parties and Supporting Stockholders. No waiver by any Party
of any default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, may be deemed to extend to any prior or subsequent
default, misrepresentation, or Breach of warranty or covenant hereunder or
affect in any way any rights arising because of any prior or subsequent such
occurrence.
7.10 Severability.
Any provision of this Agreement that is invalid, unenforceable or illegal
in any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such invalidity, unenforceability, or illegality without affecting the
remaining provisions hereof and without affecting the validity, enforceability
or legality of such provision in any other jurisdiction.
7.11 Expenses.
Except as otherwise expressly provided in this Agreement, each Party will
bear its own costs and expenses incurred in connection with the preparation,
execution and performance of this Agreement and the Transactions. Supporting
Stockholders agree that the B2B has not borne nor will bear any costs and
expenses (including any legal fees and expenses of any Supporting Stockholder
Party) in connection with this Agreement or any of the Transactions.
7.12 Construction.
The Parties have participated jointly in the negotiation and drafting of
this Agreement. If an ambiguity or question of intent or interpretation arises,
this Agreement will be construed as if
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drafted jointly by the Parties and no presumption or burden of proof will arise
favoring or disfavoring any Party because of the authorship of any provision of
this Agreement. Any reference to any federal, state, local, or foreign Law will
be deemed also to refer to Law as amended and all rules and regulations
promulgated thereunder, unless the context requires otherwise. The word
"including" means "including without limitation." Pronouns in masculine,
feminine, and neuter genders will be construed to include any other gender, and
words in the singular form shall be construed to include the plural and vice
versa, unless the context otherwise requires. The words "this Agreement,"
"herein," "hereof," "hereby," "hereunder," and words of similar import refer to
this Agreement as a whole and not to any particular subdivision unless expressly
so limited. The Parties intend that each representation, warranty, and covenant
contained herein will have independent significance. If any Party has breached
any representation, warranty, or covenant contained herein in any respect, the
fact that there exists another representation, warranty or covenant relating to
the same subject matter (regardless of the relative levels of specificity) which
the Party has not breached will not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty, or covenant.
7.13 Incorporation of Exhibits and Annexes.
The Exhibits and Annexes identified in this Agreement are incorporated
herein by reference and made a part hereof.
The remainder of this page is intentionally left blank.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the date
first above written.
IVAX CORPORATION
By: /s/ Neil Flanzraich
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Neil Flanzraich, President and Vice-Chairman
IVAX DIAGNOSTICS, INC.
By: /s/ Giorgio D'Urso
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Giorgio D'Urso, President and CEO
B2BSTORES.COM, INC.
By: /s/ Richard Kandel
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Richard Kandel, Chairman
SUPPORTING SHAREHOLDERS:
ENVIRO-CLEAN OF AMERICA, INC.
By: /s/ Richard Kandel
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Richard Kandel, Chairman
RICHARD KANDEL
By: /s/ Richard Kandel
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Richard Kandel, individually
KANDEL AND SON PROFIT SHARING PLAN
By: /s/ Richard Kandel
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Richard Kandel, Trustee
MINT CORPORATION OF NEW YORK
By: /s/ Richard Kandel
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Richard Kandel, President
RANDALL K. DAVIS
By: /s/ Randall K. Davis
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Randall K. Davis, individually
STEVEN ETRA
By: /s/ Steven Etra
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Steven Etra, individually
SRK ASSOCIATES L.L.C.
By: /s/ Steven Etra
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Steven Etra, President
dotCOM Fund, L.L.C.
By: /s/ Mark A. Rice
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Mark A. Rice, Managing Member
EXHIBIT A
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The Supporting Stockholders of b2bstores.com, Inc.
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# of Shares of b2bstores.com, Inc.
Supporting Stockholder Owned
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Enviro-Clean of America, Inc. 930,000
1023 Morales Street
San Antonio, Texas 78207
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Richard Kandel 1,066,666
211 Park Avenue
Hicksville, New York 11801
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Kandel and Son Profit Sharing Plan 100,000
% Richard Kandel
211 Park Avenue
Hicksville, New York 11801
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Mint Corporation 66,667
% Richard Kandel
211 Park Avenue
Hicksville, New York 11801
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Randall K. Davis 333,333
1023 Morales Street
San Antonio, Texas 78207
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Steven Etra 162,667
5830 57th Street
Maspeth, New York 11378
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SRK Associates, L.L.C. 10,667
% Steven Etra
5830 57th Street
Maspeth, New York 11378
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DotCOM Fund L.L.C. 273,400
% Mark A. Rice
666 Dundee Road, Suite 1901,
Northbrook, Illinois 60022
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TOTALS 2,943,400
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