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:
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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.
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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.
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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.
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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.
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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.
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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
EXHIBIT A
NAME OF STOCKHOLDER NUMBER OF SHARES OF IVAX COMMON
STOCK OWNED BENEFICIALLY AND OF RECORD
NAME OF STOCKHOLDER COMMON SHARES
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Phillip Frost 13,905,970
I. Kaye Family Trust 7,988,493