EXHIBIT 10.17
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into as of
the 19th day of June, 2000 (the "Closing Date"), by and between Mountainrise
Trading Limited, a British Virgin Islands corporation (the "Seller") and IVAX
Corporation, a Florida corporation (the "Buyer").
Preliminary Statements
WHEREAS, Seller owns all of the issued and outstanding shares of Common
Stock (the "Common Stock") of Eagle Invest Limited, a British Virgin Islands
corporation (the "Company");
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, all of the shares of Common Stock owned by Seller (the "Shares")
upon the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the terms,
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
In addition to terms defined elsewhere in this Agreement, the following
terms when used in this Agreement shall have the meanings indicated below:
"Affiliate" means any Person which controls, is controlled by or is
under common control with the Company. Except as otherwise indicated, "control"
means the direct or indirect ownership of fifty percent (50%) or more of the
voting or income interest in such Person, or such other relationship as, in
fact, constitutes actual control.
"Intellectual Property" means any or all of the following owned, used
or controlled by the Company: (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof; (b) all trademarks, service marks, trade dress, logos,
trade names, and corporate names, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in connection
therewith; (c) all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith; (d) all trade secrets and
confidential business information (including databases, ideas, research and
development, know-how, formulas,
compositions, manufacturing and production processes and techniques, technical
data, designs, and business and marketing plans and proposals); (e) all computer
programs and software (including data and source and object codes and related
documentation); (f) all other property rights and all licenses and sublicenses
granted by or to the Company that relate to any of the foregoing; and (g) all
copies and tangible embodiments thereof (in whatever form or medium).
"Investment" means, with respect to any Person, advances, loans or
extensions of credit to any other Person, any purchases or commitments to
purchase any stock, bonds, notes, debentures or other securities of any other
Person, and any other investment in any other Person, including partnerships,
joint ventures or other similar arrangements with any Person.
"Liabilities" means any liabilities, claims, obligations or
indebtedness of any nature whatsoever (whether accrued, absolute, contingent or
otherwise).
"Liens" means any liens, claims, charges, rights, pledges, security
interests, mortgages, options, title defects or other encumbrances, restrictions
or limitations of any nature whatsoever.
"Person" means any natural person, corporation, unincorporated
organization, partnership, association, joint stock company, joint venture,
trust or government, or any agency or political subdivision of any government,
or any other entity.
"Securities" means the common stock of Buyer, par value $.10 per share.
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Taxes" means any federal, state, local or foreign income, gross
receipts, franchise, estimated, alternative minimum, add-on minimum, sales, use,
transfer, registration, value added, excise, natural resources, severance,
stamp, occupation, premium, windfall profit, environmental, customs, duties,
real property, personal property, capital stock, social security, unemployment,
disability, payroll, license, employee or other withholding, or other tax or
governmental charge, of any kind whatsoever, including any interest, penalties
or additions to tax or additional amounts in respect of the foregoing; the
foregoing shall include any transferee or secondary liability for a Tax and any
liability assumed by agreement or arising as a result of being (or ceasing to
be) a member of any affiliated group (or being included (or required to be
included) in any tax return relating thereto).
ARTICLE II
PURCHASE AND SALE OF SHARES; PURCHASE PRICE
2.1 Purchase and Sale of Shares. Subject to the terms and conditions
set forth herein, Seller hereby sells, assigns, transfers and delivers to Buyer
and Buyer hereby purchases from Seller all of Seller's right, title and interest
in and to the Shares, free and clear of all Liens.
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2.2 Purchase Price. In consideration of the sale, assignment, transfer
and delivery of the Shares by Seller to Buyer, Buyer hereby pays the purchase
price of Thirty Million United States Dollars (US$30,000,000) by delivery to the
Seller (i) of a number of Securities equal to Twenty-Nine Million Five Hundred
Thousand United States Dollars (US$29,500,000) (the "Exchange Securities")
divided by the average of the closing prices per share of the Securities, as
reported by Bloomberg, for the 5 trading days immediately preceding the Closing
Date (the "Average Price"), and (ii) Five Hundred Thousand United States Dollars
(US $500,000) in immediately available funds.
2.3 Fractional Shares. In lieu of fractional shares, Buyer shall
deliver to Seller cash or a company check in the amount of the fractional share
otherwise issuable to the Seller multiplied by the Average Price.
ARTICLE III
CLOSING
3.1 Closing Date. The Closing Date is the day of execution of this
Agreement.
3.2. Deliveries of the Seller and the Company. The Seller and the
Company hereby deliver the following to the Buyer:
(a) stock certificates representing all of the Shares, duly
endorsed or accompanied by duly executed instruments of
transfer; as provided by the Laws of the British Virgin
Islands;
(b) resignations, dated as of the Closing Date, of all directors
of the Company;
(c) an opinion of Farara George-Creque & Kerins, British Virgin
Islands counsel to the Seller and the Company, in the form of
Schedule 3.2(c); and
(d) books of account, the minute books, stock books and stock
records of the Company.
3.3. Deliveries of the Buyer. The Buyer will deliver to the Seller
within ten (10) business days after the Closing Date the Purchase Price for the
Shares as established in Section 2.2.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer makes the representations and warranties set forth below to
Seller as of the date of this Agreement.
4.1 Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida. Buyer has
all requisite right, power and authority to execute, deliver and perform this
Agreement.
4.2 Authorization; Enforceability. The execution, delivery and
performance of this Agreement by Buyer and the consummation by Buyer of the
transactions contemplated hereby have been duly authorized by all requisite
corporate action on part of Buyer. This Agreement has been duly executed and
delivered by Buyer, and constitutes the legal, valid and binding obligation of
Buyer, enforceable in accordance with its terms.
4.3 No Violation or Conflict. The execution, delivery and performance
of this Agreement by Buyer and the consummation by Buyer of the transactions
contemplated hereby (a) do not and will not violate or conflict with any
provision of law or regulation, or any rule, ruling, interpretation, writ,
order, judgment or decree of any court or governmental or regulatory authority,
or any provision of Buyer's Articles of Incorporation or Bylaws; and (b) do not
and will not, with or without the passage of time or the giving of notice,
result in the breach of, or constitute a default, cause the acceleration of
performance, or require any consent under, or result in the creation of any Lien
upon any property or assets of Buyer pursuant to any material instrument or
agreement to which Buyer is a party or by which Buyer or its properties may be
bound or affected, other than instruments or agreements as to which consent
shall have been obtained at or prior to the Closing Date.
4.4 Brokers. Buyer has not employed any financial advisor, broker or
finder and has not incurred and will not incur any broker's, finder's,
investment banking or similar fees, commissions or expenses, in connection with
the transactions contemplated by this Agreement which would be payable by
Seller.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller makes the representations and warranties set forth below to
Buyer as of the date of this Agreement.
5.1 Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the British Virgin Islands. The
Company is duly qualified to transact business in all jurisdictions where the
ownership or leasing of its properties or the conduct of its business requires
such qualification; each jurisdiction in which the Company
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is so qualified and each location where the Company has an office or place of
business is listed on Schedule 5.1. The Company has all requisite right, power
and authority to own or lease and operate its properties, and to conduct its
business as presently conducted.
5.2 Capacity; Enforceability. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the British Virgin
Islands. Seller has the capacity and authority to execute, deliver and perform
this Agreement. The execution, delivery and performance of this Agreement by the
Seller and the consummation by the Seller of the transactions contemplated
hereby have been duly authorized by all requisite corporate action on the part
of the Seller. This Agreement and all other documents to be executed and
delivered by the Seller and the Company pursuant to this Agreement have been
duly executed and delivered by the Seller and the Company, and constitute the
legal, valid and binding obligations of the Seller and the Company, enforceable
against the Seller and the Company in accordance with their terms.
5.3 No Violation or Conflict. The execution, delivery and performance
of this Agreement by the Seller and the Company and the consummation by the
Seller and the Company of the transactions contemplated hereby (a) do not and
will not violate or conflict with any provision of law or regulation, or any
rule, ruling, interpretation, writ, order, judgment or decree of any court or
governmental or regulatory authority, or any provision of the Articles of
Incorporation or Bylaws of the Company; and (b) do not and will not, with or
without the passage of time or the giving of notice, result in the breach of, or
constitute a default, or cause the acceleration of performance or the
termination for change of control or give the right of termination for change of
control or require any consent under, or result in the creation of any Lien upon
any property or assets of Seller (including, without limitation, the Shares) or
the Company pursuant to any instrument or agreement to which Seller or the Comp
is a party or by which Seller or the Company or any of their respective
properties may be bound or affected, other than instruments or agreements as to
which consent shall have been obtained at or prior to the Closing Date, each of
which instruments or agreements is listed on Schedule 5.3 hereto.
5.4 Consent of Governmental Authorities. No consent, approval or
authorization of, or registration, qualification or filing with any governmental
or regulatory authority of the British Virgin Islands or Venezuela, is required
to be made by the Company or Seller in connection with the execution, delivery
or performance of this Agreement by Seller or the Company, or the consummation
by Seller or the Company of the transactions contemplated hereby.
5.5 Brokers. Seller has not employed any financial advisor, broker or
finder and has not incurred and will not incur any broker's, finder's,
investment banking or similar fees, commissions or expenses, in connection with
the transactions contemplated by this Agreement which would be payable by Buyer.
5.6 Corporate Records. The stock records and minute books of the
Company (true, correct and complete copies of which Seller has heretofore
provided to Buyer) fully reflect all issuances, transfers and redemptions of the
Company's Common Stock, correctly show the total number of shares of the
Company's Common Stock issued and outstanding on the date
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hereof, contain true, correct and complete copies of the Company's Articles of
Incorporation and Bylaws or other similar organization documents, in each case
as amended and currently in force. Such minute books also contain complete and
accurate records of all meetings and other corporate actions of the board of
directors, committees of the board of directors, incorporators and shareholders
of the Company from its date of incorporation to the date hereof. All matters
requiring the authorization or approval of the board of directors, a committee
of the board of directors, the incorporators, or the shareholders of the Company
have been duly an validly authorized and approved by them.
5.7 Capitalization. The authorized capital stock of the Company
consists of Fifty Thousand (50,000) shares of Common Stock, of which One
Thousand (1,000) shares are issued and outstanding. No class of equity
securities of the Company exists other than the Common Stock. All voting rights
with respect to the Company are vested solely in the Common Stock. The Company
has no treasury shares. All outstanding shares of the Company's Common Stock
have been duly authorized, are validly issued and outstanding, and are fully
paid and nonassessable. No securities issued by the Company from its date of
incorporation to the date hereof were issued in violation of the securities laws
of any jurisdiction or the preemptive rights of any Person. There are no
dividends which have accrued or been declared but are unpaid on the Common Stock
of the Company. All Taxes of any nature or kind required to be paid in
connection with the issuance and any transfers of the Company's Common Stock
have been paid. authorizations required to be obtained from or registrations
required to be effected with any Person in connection with the issuances of
securities of the Company from the date of its incorporation to the date hereof
have been obtained or effected and all securities of the Company have been
issued and are held in accordance with the provisions of all applicable
securities and other laws. The Shares constitute one hundred percent (100%) of
the issued and outstanding capital stock of the Company and are legally and
beneficially owned in their entirety by Seller.
5.8 Rights, Warrants, Options. There are no outstanding (a) securities
or instruments convertible into or exercisable for any of the Common Stock or
other equity interests of the Company; (b) options, warrants, subscriptions or
other rights to acquire Common Stock or other equity interests of the Company;
(c) debt securities with any voting rights or convertible into securities with
voting rights; or (d) commitments, agreements or understandings of any kind,
including, without limitation, shareholders' agreement, rights of first refusal,
voting agreements, voting trusts, registration rights agreements, preemptive
rights, employee benefit arrangements or other similar agreements, relating to
any Common Stock or other equity interests of the Company, or the issuance or
repurchase by the Company of (1) any Common Stock or other equity interests of
the Company or (2) an such securities or instruments convertible into or
exercisable for Common Stock or other equity interests of the Company. The
Company has no outstanding stock appreciation , phantom stock rights or any
similar rights.
5.9 Title to Shares. Seller is the record and beneficial owners of the
Shares and owns the Shares free and clear of any Liens, including, without
limitation, claims or rights under any voting trust agreements, shareholder
agreements or other agreements. At the Closing, Seller transfers and conveys,
and Buyer acquires, good and valid title to the Shares, free and clear of all
Liens, encumbrances, pledges, security interests and claims whatsoever.
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5.10 Investments. Except as set forth on Schedule 5.10, the Company has
no Investments.
5.11 No operations. Since its incorporation, the Company has not
engaged in any operations, bought or sold any assets, incurred any liabilities,
entered into any agreements or otherwise engaged in any business activities.
5.12 Absence of Undisclosed Liabilities. The Company has no Liabilities
or any unrealized or anticipated losses, and there is no basis for assertion
against the Company of any such Liability or loss.
5.13 Bank Accounts; Powers of Attorney. The Company has no bank
accounts. Schedule 5.13 is a complete and accurate list of the names of all
persons, if any, holding powers of attorney from the Company.
5.14 Tax Matters. No tax returns and other documents are required to be
filed and no taxes were due with respect to the Company, its business,
operations or assets or the Shares. No taxing authority has audited the records
of the Company or notified the Company of its intention to audit such records
since its incorporation. No claims or deficiencies have been asserted or are
pending against the Company with respect to any Taxes or other governmental
charges or levies of any nature or kind which have not been paid or otherwise
satisfied or for which accruals or reserves have not been made in the Balance
Sheet. There exists no reasonable basis for the making of any such claims, and
no such claims have been threatened. No Taxes are owed by the Company relating
to its organizational structure. The Company has not waived any restrictions on
assessment or collection of Taxes of any nature or kind or consented to the
extension of any statute of limitations relating to taxation. Neither the Seller
nor the Company has any tax Liability of any nature or kind that could result in
any Lien being imposed on the Shares. Seller has paid all Taxes due with respect
to the Shares. No tax, assessment, imposition, charge, penalty or interest of
any kind will arise, become due or be accelerated that Buyer or the Company will
be liable or responsible for payment as a result of the sale of the Shares to
Buyer or any of the other transactions contemplated hereby.
5.15 Compliance with Laws. The Company is in compliance with all
applicable laws, rules, regulations, rulings, interpretations, orders and
decrees of the British Virgin Islands and any other country where it conducts
its business or operations and has not been charged with any alleged violation
or nonconformity with local or foreign laws, rules, regulations, rulings,
interpretations, orders or decrees.
5.16 Licenses and Permits. The Company has all permits, licenses,
certificates of authority, orders and approvals of, and has made all filings,
applications and registrations with, all local or foreign governmental or
regulatory bodies that are required to be obtained, maintained or made in order
to permit the Company to own its assets and to carry on its business as
presently conducted (the "Permits"). All such Permits are current and in full
force and effect, and, there is no proceeding pending or threatened.
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5.17 Related Parties. Neither Seller nor any director, officer,
employee, consultant, agent or attorney of the Company nor any Affiliate of
Seller or the Company (individually a "Related Party" and collectively the
"Related Parties") nor any Affiliate of any Related Party (a) owns, directly or
indirectly, any interest or has made any Investment in any Person which is a
competitor, potential competitor, supplier or customer of the Company; (b) owns,
directly or indirectly, in whole or in part, any property, asset or right, real,
personal or mixed, tangible or intangible (including, but not limited to, any of
the Intellectual Property) which is utilized in the operation of the business of
the Company or necessary or desirable to the business of the Company as
presently conducted or as contemplated to be conducted; or (c) has an interest
or Investment in or is, directly or indirectly, a party to any commitment or
other arrangement or relationship (whether or not in writing) pertaining or
relating to the business, operations or assets of the Company.
5.18 Full Disclosure. No representation or warranty of Seller contained
in this Agreement, and none of the statements or information concerning Seller
or the Company contained in this Agreement or the exhibits and the schedules
hereto, contains any untrue statement of a material fact nor will such
representations, warranties, covenants or statements taken as a whole omit a
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.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 General Release. Seller hereby unconditionally and irrevocably
releases and forever discharges, effective as of the Closing Date, the Company,
and its officers, directors, employees and agents, from any and all rights,
claims, demands, judgments, obligations, liabilities and damages, whether
accrued or unaccrued, asserted or unasserted, and whether known or unknown,
relating to the Company which ever existed, now exist, or may hereafter exist,
by reason of any tort, breach of contract, violation of law or other act or
failure to act which shall have occurred at or prior to the Closing Date, or in
relation to any other liabilities of the Company to the Seller. The Seller
expressly intend that the foregoing release shall be effective regardless of
whether the basis for any claim or right hereby released shall have been known
to or anticipated by the Seller.
6.2 Confidentiality. Seller and the Company acknowledge that the
Intellectual Property and all other confidential or proprietary information with
respect to the business and operations of the Company and its subsidiaries is
valuable, special and unique. Seller and the Company shall not at any time after
the Closing Date disclose, directly or indirectly, to any Person, or use or
purport to authorize any Person to use, any confidential or proprietary
information with respect to the Company or its subsidiaries, whether or not for
Seller's or the Company's benefit, without the prior written consent of Buyer.
Seller and the Company acknowledge that Buyer would not enter into this
Agreement without the assurance that all such confidential and proprietary
information will be used for the exclusive benefit of the Company and its
subsidiaries.
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6.3 Indemnification. The Seller agrees to indemnify and hold harmless
Buyer, and its directors, officers, shareholders, employees, agents and
subsidiaries and their respective assigns from, against and in respect of, the
full amount of any and all Liabilities, damages, claims, deficiencies, fines,
assessments, losses, taxes, penalties, interest, costs and expenses, including,
without limitation, reasonable fees and disbursements of counsel (collectively,
the "Indemnified Losses") arising from, in connection with, or incident to (i)
any breach or violation of any of the Sellers' representations, warranties,
covenants or agreements contained in this Agreement; (ii) the business or
operations of the Company or Sellers before the Closing Date; and (iii) any and
all actions, suits, proceedings, demands, assessments or judgments, incidental
to any of the foregoing.
6.4 Exchange Securities not Registered; Held for Investment. Seller
understands and acknowledges that the Exchange Securities are not registered
under the Securities Act. Each Seller represents that it is acquiring the
Exchange Securities for investment for its own account and not as a nominee or
agent and not with a view to the sale or distribution of any of the Exchange
Securities. Seller has no intention of selling, granting any participation in or
otherwise distributing any of the Exchange Securities within the meaning of the
Securities Act, except pursuant to a registration statement or unless otherwise
permitted by the Securities Act. Seller has no contracts, understandings,
agreements or arrangements to sell, transfer or otherwise grant participations
in any of the Exchange Securities to any other Person.
6.5 Risk of Investment; Restrictions on Resale. Seller acknowledges
that it can bear the economic risk of its investment in the Exchange Securities
for an indefinite period of time and has such knowledge and experience in
financial and business matters as to be capable of evaluating the risks of an
investment in the Exchange Securities. Seller understands that the Exchange
Securities are "restricted securities" under the Securities Act, which may be
resold without registration under the Securities Act in only limited
circumstances. Seller understands the resale limitations on the Exchange
Securities imposed by the Securities Act. Buyer may, unless a registration
statement is in effect covering such shares, place stop transfer orders with its
transfer agents with respect to such certificates in accordance with Federal
securities laws of the United States.
6.6 Legending of Certificates. Seller understands that the certificates
evidencing the Exchange Securities will bear the following restrictive legend
evidencing the restricted nature of such Exchange Securities and indicating that
no transfer of any interest in such Exchange Securities may be made unless such
Exchange Securities are registered under the Securities Act or an exemption from
registration is available:
"The securities represented hereby have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may not
be sold, transferred or otherwise disposed of by the holder except
pursuant to an effective registration statement filed under the
Securities Act, and in compliance with applicable securities laws of
any state with respect thereto, or in accordance with an opinion of
counsel in form and substance satisfactory to the issuer that an
exemption from such registration is available."
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6.7. Additional Tax Agreements. Seller will file an election via
certified mail with the Internal Revenue Service Center, Philadelphia, PA 19255
prior to the Closing Date to be a foreign entity with a single owner electing to
be disregarded as a separate entity from its date of incorporation on Internal
Revenue Service Form 8832 (the "Entity Classification Election"). In addition,
prior to the Closing Date, Seller shall cause its shareholder to file an
Internal Revenue Service Form SS-4 (Application for Employer Identification
Number) via certified mail with the Internal Revenue Service Center, Attn:
Entity Control, Philadelphia PA 19255. A copy of all the executed Internal
Revenue Service Form 8832 and Form SS-4 filing along with a copy of the
certified mail receipts is required to be provided to IVAX Corporation prior to
or at closing. Furthermore, Seller agrees to provide the Buyer a copy of each of
the Internal Revenue Service approvals and/or notifications relating to the
Entity Classification Election. If Seller has not received approval from the
Internal Revenue Service within 120 days of filing the Entity Classification
Election, then the Seller is required to contact the Internal Revenue Service to
inquire about the status of the Entity Classification Election and notify the
Buyer of the results of the inquiry regarding such status.
ARTICLE VII
MISCELLANEOUS
7.1 Notices. Any notice, request, demand or other communication
required or permitted under this Agreement shall be in writing and shall be
delivered personally or sent by certified mail, return receipt requested,
postage prepaid, or sent by facsimile or prepaid overnight courier to the
parties at the names and addresses set forth below (or at such other addresses
as shall be specified by the parties by like notice).
If to Seller, then to:
Mountainrise Trading Limited
c/o Trident Chambers
Wickhams Cay, P.O. Box 146
Road Town, Tortola
British Virgin Islands
Phone: (284) 494-2434
Fax: (284) 494-3754
If to Buyer, then to:
IVAX Corporation
4400 Biscayne Boulevard
Miami, Florida 33137
Attn: President
Phone: (305) 575-6008
Fax: (305) 575-6016
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With a copy to:
IVAX Corporation
4400 Biscayne Boulevard
Miami, Florida 33137
Attn: General Counsel
Phone: (305) 575-6037
Fax: (305) 575-6049
Such notices, demands, claims and other communications shall be deemed
given when actually received, or (a) in the case of delivery by overnight
service with guaranteed next day delivery, the next day or the day designated
for delivery, (b) in the case of certified mail, ten (10) days after deposit in
the mail, or (c) in the case of facsimile, the date upon which the transmitting
party received confirmation of receipt by facsimile, telephone or otherwise.
7.2 Further Assurances. The parties shall deliver any and all other
instruments or documents required to be delivered pursuant to, or necessary or
proper in order to give effect to, the provisions of this Agreement, including
without limitation, all necessary stock powers and such other instruments of
transfer as may be necessary or desirable to transfer ownership of the Shares
and to consummate the transactions contemplated by this Agreement.
7.3 Entire Agreement. This Agreement and the exhibits and schedules to
this Agreement contain every obligation and understanding between the parties
relating to the subject matter hereof and merge all prior discussions,
negotiations and agreements, if any, between them, and none of the parties shall
be bound by any representations, warranties, covenants, or other understandings,
other than as expressly provided or referred to herein. This Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties.
7.4 Assignment. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, executors, legal
representatives, successors and permitted assigns. No party hereto may assign
this Agreement or any rights hereunder, in whole or in part without the written
consent of the other party, except that Buyer may assign this Agreement to any
of its Affiliates.
7.5 Waiver. No waiver by any party hereto 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.
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7.6 No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any Person
other than the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and permitted assigns, any
rights or remedies under or by reason of this Agreement.
7.7 Severability. In the event that any one or more of the provisions
contained in this Agreement shall be declared invalid, void or unenforceable,
the remainder of the provisions of this Agreement shall remain in full force and
effect, and such invalid, void or unenforceable provision shall be interpreted
as closely as possible to the manner in which it was written.
7.8 Expenses. All expenses (including, without limitation, financial
advisory fees, legal fees and expenses, broker and finder fees, fees and
expenses of accountants) incurred by each party in connection with the
transactions contemplated hereby (hereunder referred to as "Expenses") will be
borne by the party incurring such Expenses, provided that any Expenses incurred
by Seller or the Company prior to the Closing Date shall be borne solely by
Seller.
7.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
7.10 Consent to Jurisdiction; Venue. This Agreement shall be subject to
the exclusive jurisdiction of the courts of Miami-Dade County, Florida. The
parties irrevocably waive, to the fullest extent permitted by law, any objection
which they may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Agreement, or any judgment
entered by any court in respect hereof brought in the State of Florida, and
further irrevocably waive any claim that any suit, action or proceeding brought
in Miami-Dade County, Florida has been brought in an inconvenient forum.
7.11 Injunctive Relief. It is possible that remedies at law may be
inadequate and, therefore, the parties hereto shall be entitled to equitable
relief including, without limitation, injunctive relief, specific performance or
other equitable remedies in addition to all other remedies provided hereunder or
available to the parties hereto at law or in equity.
7.12 Governing Law. This Agreement has been entered into and shall be
construed and enforced in accordance with the laws of the State of Florida,
without giving effect to conflict of law principles.
7.13 Jurisdiction; Venue. Any suit, action or proceeding against any
party with respect to this Agreement or any judgment entered by any court in
respect of this Agreement shall be brought in the courts of the State of Florida
in Miami-Dade County, Florida, or in the U.S. District Court for the Southern
District of Florida, and the parties hereto accept the exclusive jurisdiction of
those courts for the purpose of any such suit, action or proceeding. In
addition, the parties irrevocably waive, to the fullest extent permitted by law,
any objection which they may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement, or any
judgment entered by any court in respect
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hereof brought in Miami-Dade County, Florida, and further irrevocably waive any
claim that any suit, action or proceeding brought in Miami-Dade County, Florida
was brought in an inconvenient forum.
7.14 English Version. In the event that this Agreement is translated
into a language other than English, the English version of this Agreement shall
control all questions of interpretation with respect thereto.
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IN WITNESS WHEREOF, the parties hereto have each executed and delivered
this Agreement as of the day and year first above written.
Buyer: IVAX Corporation
By: /s/ Neil Flanzraich
--------------------------------
Name: Neil Flanzraich
Title: Vice Chairman and President
SELLER: Mountainrise Trading Limited
By: /s/ Jose Domingo Paoli
--------------------------------
Name: Jose Domingo Paoli
Title: Director
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