Exhibit 2.1
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MERGER AGREEMENT
by and among
IVAX CORPORATION,
IVAX DIAGNOSTICS, INC.,
and
▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
Dated: November 21, 2000
TABLE OF CONTENTS
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ARTICLE 1. Definitions.................................................................................. 1
ARTICLE 2. The Merger................................................................................... 9
2.1 Merger; Plan of Merger.......................................................................... 9
2.2 Actions and Deliveries.......................................................................... 9
2.3 Effect of the Merger............................................................................ 10
2.4 Certificate of Incorporation; Bylaws............................................................ 10
2.5 Directors and Officers.......................................................................... 10
2.6 Effect on Capital Stock......................................................................... 10
2.7 Surrender of Certificates....................................................................... 11
2.8 Stock Options................................................................................... 12
2.9 No Fractional Shares............................................................................ 12
2.10 Tax Treatment................................................................................... 12
2.11 Accounting Treatment............................................................................ 12
2.12 Voting Agreements............................................................................... 13
2.13 Taking of Necessary Action; Further Action...................................................... 13
ARTICLE 3. Representations and Warranties of B2B........................................................ 13
3.1 Organization, Standing and Power................................................................ 13
3.2 Authorization of Agreement; Enforceability...................................................... 13
3.3 No Violation or Conflict........................................................................ 13
3.4 Certificate of Incorporation; Bylaws and Minute Books........................................... 14
3.5 Consent of Government Authorities............................................................... 14
3.6 Validity of B2B Common Stock.................................................................... 14
3.7 Commission Filings.............................................................................. 14
3.8 B2B Financial Statements........................................................................ 14
3.9 Absence of Undisclosed Liabilities.............................................................. 15
3.10 Receivables..................................................................................... 15
3.11 Product Warranty................................................................................ 15
3.12 Product Liability............................................................................... 15
3.13 Subsidiaries.................................................................................... 15
3.14 Compliance with Laws............................................................................ 16
3.15 Brokers and Finders............................................................................. 16
3.16 Capitalization.................................................................................. 16
3.17 Commitments..................................................................................... 16
3.18 Statement to B2B's Stockholders................................................................. 17
3.19 Certain Beneficial Owners and Consents.......................................................... 17
3.20 Fairness Opinion................................................................................ 17
3.21 Real Property; Leases........................................................................... 17
3.22 Title to Personal Property...................................................................... 19
3.23 Insurance....................................................................................... 19
3.24 Employment Contracts............................................................................ 20
3.25 Employee Benefits............................................................................... 20
3.26 Guaranties...................................................................................... 22
3.27 Environmental, Health, and Safety Matters....................................................... 22
3.28 Litigation...................................................................................... 23
3.29 Absence of Changes.............................................................................. 24
3.30 Tax Matters..................................................................................... 24
3.31 B2B Contracts................................................................................... 26
3.32 Intellectual Property........................................................................... 26
3.33 State Takeover Laws; Appraisal Rights........................................................... 27
3.34 Reorganization.................................................................................. 27
3.35 Termination of Business......................................................................... 27
3.36 Foreign Corrupt Practices Act Compliance........................................................ 27
3.37 Disclosure...................................................................................... 27
ARTICLE 4. Representations and Warranties of IVAX and Diagnostics....................................... 27
4.1 Organization, Standing and Power................................................................ 28
4.2 Authorization of Agreement; Enforceability...................................................... 28
4.3 No Violation or Conflict........................................................................ 28
4.4 Articles of Incorporation, Bylaws and Minute Books.............................................. 28
4.5 Consent of Governmental Authorities............................................................. 29
4.6 Diagnostics Financial Statements................................................................ 29
4.7 Absence of Undisclosed Liabilities.............................................................. 29
4.8 Receivables..................................................................................... 29
4.9 Product Warranty................................................................................ 29
4.10 Product Liability............................................................................... 30
4.11 Subsidiaries.................................................................................... 30
4.12 Compliance with Laws............................................................................ 30
4.13 Brokers and Finders............................................................................. 30
4.14 Capitalization.................................................................................. 31
4.15 Beneficial Owners; Commitments.................................................................. 31
4.16 Real Property; Leases........................................................................... 31
4.17 Title to Personal Property...................................................................... 33
4.18 Insurance....................................................................................... 33
4.19 Employment Contracts............................................................................ 33
4.20 Employee Benefits............................................................................... 34
4.21 Guaranties...................................................................................... 36
4.22 Environmental, Health, and Safety Matters....................................................... 36
4.23 Litigation...................................................................................... 37
4.24 Absence of Changes.............................................................................. 37
4.25 Tax Matters..................................................................................... 38
4.26 Diagnostics Contracts........................................................................... 39
4.27 Intellectual Property........................................................................... 40
4.28 Reorganization.................................................................................. 41
4.29 Investment...................................................................................... 41
4.30 Foreign Corrupt Practices Act Compliance........................................................ 41
4.31 Certain Business Relationships.................................................................. 41
4.32 Effect of Merger................................................................................ 41
4.33 Disclosure...................................................................................... 41
ARTICLE 5. Covenants and Agreements..................................................................... 41
5.1 Interim Operations of B2B....................................................................... 41
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5.2 Interim Operations of Diagnostics............................................................... 42
5.3 Access.......................................................................................... 43
5.4 Consents........................................................................................ 44
5.5 Notification.................................................................................... 44
5.6 Proxy Statement................................................................................. 44
5.7 B2B Stockholder Approval........................................................................ 44
5.8 Acquisition Proposals........................................................................... 45
5.9 Public Statements............................................................................... 45
5.10 SEC Filings..................................................................................... 45
5.11 Resignation of Directors and Officers........................................................... 45
5.12 State Takeover Laws; Certificate of Incorporation............................................... 46
5.13 General Release by IVAX......................................................................... 46
5.14 General Release by B2B.......................................................................... 46
5.15 HSR Act......................................................................................... 46
5.16 Transition Services............................................................................. 46
5.17 Further Assurances.............................................................................. 47
ARTICLE 6. Survival..................................................................................... 47
6.1 Survival of the Representations and Warranties.................................................. 47
6.2 Investigation................................................................................... 47
6.3 Liability for Breach of Representations and Warranties, etc..................................... 47
6.4 Procedure for Matters Involving Third Parties................................................... 48
6.5 Notice of Claim................................................................................. 49
ARTICLE 7. Conditions Precedent to the Obligations of B2B............................................... 49
7.1 Representations and Warranties True............................................................. 49
7.2 Performance..................................................................................... 50
7.3 Certificates.................................................................................... 50
7.4 Absence of Litigation........................................................................... 50
7.5 Consents........................................................................................ 50
7.6 Stockholder Approval............................................................................ 50
7.7 Opinion of Counsel.............................................................................. 50
7.8 Tax Opinion..................................................................................... 50
7.9 Minimum Cash Holdings........................................................................... 51
7.10 Fairness Opinion................................................................................ 51
7.11 Intercompany Indebtedness....................................................................... 51
7.12 Trademark License............................................................................... 51
7.13 General Release................................................................................. 51
7.14 No Material Adverse Effect...................................................................... 51
ARTICLE 8. Conditions Precedent to the Obligations of IVAX and Diagnostics.............................. 51
8.1 Representations and Warranties True............................................................. 51
8.2 Performance..................................................................................... 51
8.3 Certificates.................................................................................... 52
8.4 Absence of Litigation........................................................................... 52
8.5 Consents........................................................................................ 52
8.6 Stockholder Approval............................................................................ 52
8.7 Opinion of Counsel.............................................................................. 52
iii
8.8 Tax Opinion..................................................................................... 52
8.9 Minimum Cash Holdings........................................................................... 52
8.10 Resignations.................................................................................... 53
8.11 General Releases................................................................................ 53
8.12 B2B Underwriters' Waiver........................................................................ 53
8.13 No Material Adverse Effect...................................................................... 53
ARTICLE 9. Termination.................................................................................. 53
9.1 Termination..................................................................................... 53
9.2 Termination Fee................................................................................. 54
9.3 Exclusive Remedy................................................................................ 54
ARTICLE 10. Tax Matters................................................................................. 55
10.1 Filing of Tax Returns........................................................................... 55
10.2 Tax Periods Ending on or Before the Effective Date.............................................. 55
10.3 Tax Periods Beginning Before and Ending After the Effective Date................................ 55
10.4 Cooperation on Tax Matters...................................................................... 56
10.5 Certain Taxes................................................................................... 56
ARTICLE 11. Miscellaneous............................................................................... 57
11.1 Notices......................................................................................... 57
11.2 Entire Agreement................................................................................ 58
11.3 Benefits; Binding Effect........................................................................ 58
11.4 Assignment...................................................................................... 58
11.5 Waiver.......................................................................................... 58
11.6 No Third Party Beneficiary...................................................................... 58
11.7 Severability.................................................................................... 58
11.8 Expenses........................................................................................ 58
11.9 Section Headings................................................................................ 58
11.10 Counterparts.................................................................................... 58
11.11 Time of Essence................................................................................. 58
11.12 Litigation; Prevailing Party.................................................................... 59
11.13 Injunctive Relief............................................................................... 59
11.14 Governing Law................................................................................... 59
11.15 Participation of Parties; Construction.......................................................... 59
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ATTACHMENTS
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Exhibit A - Form of Amended Certificate of Incorporation of B2B
Exhibit B - Knowledge Persons for B2B
Exhibit C - Knowledge Persons for IVAX and/or Diagnostics
Exhibit D - Form of Plan of Merger
Exhibit E - Form of Voting Agreement
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MERGER AGREEMENT
This Merger Agreement is made and entered into as of the 21st day of
November 2000, by and among IVAX CORPORATION, a Florida corporation ("IVAX"),
IVAX DIAGNOSTICS, INC., a Florida corporation and wholly-owned subsidiary of
IVAX ("DIAGNOSTICS"), and ▇▇▇▇▇▇▇▇▇.▇▇▇, INC., a Delaware corporation ("B2B").
RECITALS:
1. The Board of Directors of each of IVAX, Diagnostics, and B2B
(individually, a "Party" and collectively, the "Parties") believes it is in such
Party's and such Party's stockholders best interest that B2B acquire Diagnostics
through the statutory merger of Diagnostics with and into B2B (the "Merger")
and, in furtherance thereof, have approved the Merger.
2. Pursuant to the Merger, all of the issued and outstanding shares of
common stock, par value $.01 per share, of Diagnostics ("Diagnostics Common
Stock") will be converted into the right to receive 20,000,000 shares of common
stock, par value $.01 per share, of B2B ("B2B Common Stock").
3. The Parties desire to make certain representations and warranties
and other agreements in connection with the Merger.
4. For federal income tax purposes, the Parties intend to adopt a plan
of reorganization within the meaning of, and to cause the Merger to qualify as a
reorganization under, Section 368(a) of the Code (as defined herein).
AGREEMENT:
In consideration of the premises and the respective mutual agreements,
covenants, representations and warranties herein contained, the Parties agree as
follows:
ARTICLE 1.
Definitions
The following terms when utilized in this Agreement shall have the
meanings indicated:
"Accredited Investor" has the meaning set forth in Regulation D
promulgated under the Securities Act.
"Action" means any action, appeal, petition, plea, charge, complaint,
claim, suit, demand, litigation, arbitration, mediation, hearing, inquiry,
investigation or similar event, occurrence, or proceeding.
"Affiliate" with respect to any specified Person, means a Person that,
directly or indirectly, through one or more intermediaries, Controls or is
Controlled by, or is under common Control with, such specified person.
"Affiliated Group" means any affiliated group under Code Section
1504(a) or any similar group defined under provisions of applicable Law.
"Agency" means any federal, state, municipal, county, parish, local,
foreign or other agency, judicial, governmental, quasi-governmental, or
regulatory authority, bureau, branch, department, division, commission,
multi-national organization, instrumentality or similar recognized organization
or body exercising similar powers and authority.
"Agreement" means this Merger Agreement together with all exhibits, the
B2B Disclosure Memorandum and the Diagnostics Disclosure Memorandum contemplated
hereby.
"Amendment" means the amendment to the Certificate of Incorporation of
B2B to (i) change the name of B2B to IVAX Diagnostics, Inc. and (ii) increase
the amount authorized B2B Common Stock from 25,000,000 shares to 50,000,000
shares, a copy of which is attached hereto as Exhibit A.
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"B2B" has the meaning set forth in the preamble of this Agreement.
"B2B Affiliate Stockholders" means each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ and
Son Profit Sharing Plan, Enviro-Clean of America, Inc., Mint Corporation, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, SRK Associates, L.L.C., DotCom Fund L.L.C. and ▇▇▇▇.▇▇▇,
Inc.
"B2B Contracts" means all Contracts to which B2B or any of its
Subsidiaries is a party and are required to be filed with the Commission
pursuant to Item 601 of Regulation S-K promulgated under the Exchange Act.
"B2B Common Stock" has the meaning set forth in the second recital of
this Agreement.
"B2B Disclosure Memorandum" means the disclosure memorandum delivered
by B2B to IVAX setting forth the disclosure schedules of B2B and its
Subsidiaries contemplated by this Agreement.
"B2B Effective Date Balance Sheet" means the estimated balance sheet of
B2B as of the Effective Date, prepared in accordance with GAAP applied on a
consistent basis.
"B2B Employment Contracts" has the meaning set forth in Section 3.24.
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"B2B Financial Statements" has the meaning set forth in Section 3.8.
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"B2B Preferred Stock" means the preferred stock, par value $.01 per
share, of ▇▇▇.
"▇▇▇ SEC Filing" has the meaning set forth in Section 3.7.
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"Basis" means any past or current fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event, incident,
action, failure to act, or transaction that forms or could form the basis for
any specified consequence.
"Basket Limitation" is defined in Section 6.3(d).
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2
"Beneficial Owner" means, with respect to any security, any Person who
shall be deemed to be the "beneficial owner" of such security within the meaning
of Rule 13d-3 promulgated by the Commission under the Exchange Act.
"Best Efforts" means the efforts, time, and costs that a prudent Person
desirous of achieving a result would use, expend, or incur in similar
circumstances to ensure that such result is achieved as expeditiously as
possible; provided, however, that no such use, expenditure, or incurrence will
be required if it would have a Material Adverse Effect on such Person calculated
immediately prior to the Effective Time.
"Breach" means any breach, inaccuracy, failure to perform, failure to
comply, conflict with, default, violation, acceleration, termination,
cancellation, modification, or required notification.
"Claim Notice" is defined in Section 6.5.
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"Closing" has the meaning set forth in Section 2.1.
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"Code" means the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder.
"Commission" means the Securities and Exchange Commission.
"Commitment" means (a) options, warrants, convertible securities,
exchangeable securities, subscription rights, conversion rights, exchange
rights, or other Contracts that could require a Person to issue any of its
securities or equity interests or to sell any securities or equity interests it
owns in another Person; (b) any other securities or equity interests convertible
into, exchangeable or exercisable for, or representing the right to subscribe
for any securities or equity interests of a Person or owned by a Person; (c)
statutory pre-emptive rights or pre-emptive rights granted under a Person's
organizational documents; and (d) stock appreciation rights, phantom stock,
profit participation, or other similar rights with respect to a Person.
"Competing Transaction" has the meaning set forth in Section 5.8.
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"Consent" means any consent, approval, notification, waiver, or other
similar action.
"Contract" means any Enforceable contract, agreement, arrangement,
commitment, letter of intent, memorandum of understanding, heads of agreement,
promise, obligation, right, instrument, document, or other similar
understanding, whether written or oral.
"Control" and its derivatives means, as used with respect to any
Person, the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, equity interests, by Contract or otherwise.
"Controlled Group of Corporations" has the meaning set forth in Code
Section 1563.
3
"Court" means any federal, state, municipal, county, parish, local,
foreign or other court or judicial entity.
"Damages" means all damages (including incidental and consequential
damages), losses (including any diminution in value), Liabilities, payments,
amounts paid in settlement, obligations, fines, penalties, costs, expenses
(including reasonable fees and expenses of outside attorneys, accountants and
other professional advisors and of expert witnesses and other costs (including
the allocable portion of the Indemnitee's internal costs) of investigation,
preparation and litigation in connection with any Action or Threatened Action)
of any kind or nature whatsoever; provided, however, insurance recoveries and
Taxes will be taken into account in determining Damages for purposes of this
Agreement.
"Deferred Intercompany Transactions" has the meaning set forth in
Treas. Reg. Section 1.1502-13.
"Delaware GCL" means the General Corporation Law of the State of
Delaware, as amended.
"Delta" means Delta Biologicals S.r.l, a Subsidiary of Diagnostics.
"Diagnostics" has the meaning set forth in the preamble to this
Agreement.
"Diagnostics Contracts" means all material Contracts to which
Diagnostics or any of its Subsidiaries is a party which would be required to be
filed with the Commission pursuant to Item 601 of Regulation S-K promulgated
under the Exchange Act if Diagnostics was a reporting company under the Exchange
Act.
"Diagnostics Common Stock" has the meaning set forth in the second
recital of this Agreement.
"Diagnostics Disclosure Memorandum" means the disclosure memorandum
delivered by IVAX and Diagnostics to B2B setting forth to disclose schedules
contemplated by this Agreement.
"Diagnostics Effective Date Balance Sheet" means the estimated balance
sheet of Diagnostics as of the Effective Date prepared in accordance with GAAP
applied on a consistent basis.
"Diagnostics Employment Contracts" has the meaning set forth in Section
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4.19.
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"Diagnostics Financial Statements" has the meaning set forth in Section
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4.6.
---
"Diagnostics Equity" means the number of shares of Diagnostics Common
Stock issued and outstanding as of the Effective Time.
"Effective Date" has the meaning set forth in Section 2.1.
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"Effective Time" has the meaning set forth in Section 2.1.
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4
"Employee Benefit Plan" means any (a) nonqualified deferred
compensation or retirement plan or arrangement which is an Employee Pension
Benefit Plan, (b) qualified defined contribution retirement plan or arrangement
which is an Employee Pension Benefit Plan, (c) qualified defined benefit
retirement plan or arrangement which is an Employee Pension Benefit Plan
(including any Multiemployer Plan), or (d) Employee Welfare Benefit Plan or
material fringe benefit plan or program.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA
Section 3(2).
"Employee Welfare Benefit Plan" has the meaning set forth in ERISA
Section 3(1).
"Encumbrance" means any Order, Security Interest, Contract, easement,
covenant, community property interest, equitable interest, right of first
refusal, or restriction of any kind, including any restriction on use, voting,
transfer, receipt of income, or exercise of any other attribute of ownership.
"Enforceable" a Contract is "Enforceable" if it is the legal, valid,
and binding obligation of the applicable Person enforceable against such Person
in accordance with its terms, except as such enforceability may be subject to
the effects of bankruptcy, insolvency, reorganization, moratorium, or other Laws
relating to or affecting the rights of creditors, and general principles of
equity.
"Environmental Law" means any Law relating to pollution or protection
of the environment (including ambient air, surface water, groundwater, land
surface or subsurface strata), including any Law relating to emissions,
discharges, Releases of chemicals, pollutants, contaminants, or industrial,
toxic or hazardous substances or wastes into the environment, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of chemicals, pollutants, contaminants, or
industrial, toxic or hazardous substances or wastes, as well as all
authorizations, codes, decrees, demands or demand letters, injunctions,
judgments, Licenses, notices or notice letters, Orders, plans or regulations
issued, entered, promulgated or approved thereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder.
"ERISA Affiliate" means each business or entity which is a member of a
"controlled group of corporations," under "common control" or an "affiliated
service group" with any Person within the meaning of Sections 414(b), (c) or (m)
of the Code, or required to be aggregated with any Person under Section 414(o)
of the Code, or is under "common control" with any Person, within the meaning of
Section 4001(a)(14) of ERISA.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Excess Loss Account" is defined in Treas. Reg. Section 1.1502-19.
5
"Exchange Ratio" means the quotient of (a) 20,000,000 (plus any
additional shares of B2B Common Stock issuable pursuant to Section 6.3(c)(ii))
------------------
divided by (b) the Diagnostics Equity.
"Fiduciary" has the meaning set forth in ERISA Section 3(21).
"Florida BCA" means the Business Corporation Act of the State of
Florida, as amended.
"Foreign Corrupt Practices Act" means the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations promulgated thereunder.
"GAAP" has the meaning set forth in Section 3.8.
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"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated thereunder.
"Indemnified Party" is defined in Section 6.4(a).
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"Indemnifying Party" is defined in Section 6.4(a).
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"Intellectual Property" means (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 relating thereto, (b) all trademarks, service marks, trade dress,
logos, domain names, trade names, and corporate names, and all goodwill
associated therewith, together with all translations, adaptations, derivations,
and combinations, applications, registrations, and renewals relating thereto,
(c) all copyrightable works, all copyrights, and all applications,
registrations, and renewals relating thereto, (d) all trade secrets and
confidential business information (including ideas, research and development,
know-how, formulas, compositions, manufacturing and production processes and
techniques, technical data, designs, drawings, specifications, customer and
supplier lists, pricing and cost information, and business and marketing plans
and proposals), (e) all computer software (including data and related
documentation), (f) all other proprietary rights, and (g) all copies and
tangible embodiments of the foregoing (in whatever form or medium).
"IRS" means the United States Internal Revenue Service.
"IVAX" has the meaning set forth in the preamble of this Agreement.
"IVAX Filing Affiliated Group" is defined in Section 10.1.
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"Knowledge" means, with respect to any representation or warranty or
other statement in this Agreement qualified by reference to the knowledge or to
the best knowledge of any party, the actual knowledge, without independent
investigation, of those persons listed on Exhibit B, with respect to B2B, and
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listed on Exhibit C, with respect to IVAX and/or Diagnostics.
6
"Law" means any federal, state, municipal, county, parish, local,
foreign or other governmental law (statutory, common or otherwise), rule,
regulation, ordinance, statute or directive.
"Liability" means any liability or obligation (whether known or
unknown, whether asserted or unasserted, whether absolute or contingent, whether
accrued or unaccrued, whether liquidated or unliquidated, and whether due or to
become due), including any Liability for Taxes.
"License" means any license, sublicense, franchise, approval,
certificate, permit, planning, permission or other authorization.
"Material Adverse Change (or Effect)" means a change (or effect) in the
condition (financial or otherwise), properties, assets, Liabilities, rights,
operations, business, or prospects which change (or effect), individually or in
the aggregate, could reasonably be expected to be materially adverse to such
condition, properties, assets, Liabilities, rights, operations, business, or
prospects.
"Merger" has the meaning set forth in the first recital of this
Agreement.
"Merger Consideration" has the meaning set forth in Section 2.1.
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"Multiemployer Plan" has the meaning set forth in ERISA Section 3(37).
"Order" means any order, judgment, ruling, injunction, notice, decree,
writ, mandate, or similar determination or finding of any Court, Agency,
arbitrator or mediator.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity,
quality and frequency) of the relevant Person and its Subsidiaries in the
industry in which the relevant Person and its Subsidiaries does business.
"Parties" or "Party" have the meaning set forth in the first recital of
this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Person" means any natural person, corporation, unincorporated
organization, partnership, association, joint-stock company, entity, joint
venture, trust, government, Court or Agency.
"Plan of Merger" has the meaning set forth in Section 2.1.
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"Pre-Merger Consolidated Tax Returns" is defined in Section 10.1.
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"Prohibited Transactions" has the meaning set forth in ERISA Sections
406 and 407 and Code Section 4975.
"Proxy Statement" means the proxy statement of B2B soliciting the
proxies of the B2B stockholders to approve (i) this Agreement, (ii) the Merger,
(iii) the issuance of the Merger
7
Consideration, (iv) the Amendment, and (v) such other matters as the Parties may
deem appropriate.
"Receivables" means all the receivables of a Person, including all
Contracts in transit, manufacturing warranty receivables, notes receivable,
accounts receivable, trade account receivables and insurance proceeds
receivable.
"Release" means any spilling, leaking, emitting, discharging,
depositing, escaping, leaching, dumping, or other release into the soil, land
surface or subsurface strata, water (including ocean, stream, pond, reservoir,
drainage, basins, wetlands, ground and drinking), sediments, ambient air
(including indoor), noise, plant life, animal life and all other environmental
media or natural resource.
"Reportable Event" has the meaning set forth in ERISA Section 4043.
"Security Interest" means any mortgage, pledge, lien, charge,
encumbrance or other security interest, other than (a) mechanic's,
materialmen's, and similar liens, (b) liens for Taxes not yet due and payable,
(c) purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Special Meeting" has the definition set forth in Section 5.7.
"Subsidiary" (whether or not capitalized) means any corporation fifty
percent (50%) or more of whose outstanding voting securities, or any other
Person fifty percent (50%) or more of whose equity interests, are, directly or
indirectly, owned by a Person.
"Surviving Corporation" has the meaning set forth in Section 2.1.
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"Tax" means any federal, state, local or foreign income, gross
receipts, License, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code Section
59A), customs, ad valorem, duties capital stock, franchise, profits withholding,
social security, unemployment, disability, real property, personal property,
sales, use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes required to be filed with
any Agency, including any schedule or attachment thereto, and including any
amendment thereof.
"Third Party Claim" is defined in Section 6.4(a).
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"Threatened" means a demand or statement has been made (orally or in
writing) or a notice has been given (orally or in writing), or any other event
has occurred or any other
8
circumstances exist that would lead a prudent Person to conclude that a cause of
Action, event or other matter is likely to be asserted, commenced, taken, or
otherwise.
"Threatened Release" means any event that has occurred or other
circumstances that exist that could lead a prudent Person to conclude that any
Release, whether intentional or unintentional, is likely to occur now or in the
future.
"Transaction Expenses" means any and all direct or indirect expenses or
other payables incurred, accrued or payable by a Party in connection with the
Merger or the transactions contemplated hereby.
"Treas. Reg." means the proposed, temporary and final regulations
promulgated under the Code.
"Voting Agreement" has the meaning set forth in Section 2.12.
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ARTICLE 2.
The Merger
2.1 Merger; Plan of Merger. Subject to the terms and conditions of
----------------------
the Agreement, Diagnostics will be merged with and into B2B in accordance with
the Delaware GCL and the Florida BCA. At the Effective Time, the separate
corporate existence of Diagnostics will cease and B2B will be the surviving
corporation (the "Surviving Corporation"). Subject to the terms and conditions
of this Agreement, a Plan of Merger (the "Plan of Merger"), in the form of
Exhibit D, is being executed and delivered concurrently herewith by and among
---------
B2B and Diagnostics. The Plan of Merger provides, among other things, for the
terms of the Merger, the mode of carrying the same into effect, the manner of
converting the issued and outstanding shares of Diagnostics Common Stock into
the right to receive Twenty Million (20,000,000) shares of B2B Common Stock,
plus any additional shares of B2B Common Stock issuable pursuant to Section
-------
6.3(c)(ii) (the "Merger Consideration") based on the Exchange Ratio. Subject to
----------
the terms and conditions of this Agreement, the Merger shall be consummated as
promptly as practicable after the conditions in Articles 7 and 8 are satisfied
----------------
or waived by the filing of a Certificate of Merger with the Secretary of State
of the State of Delaware in accordance with the Delaware GCL and the filing of
Articles of Merger with the Secretary of State of the State of Florida in
accordance with the Florida BCA (the date of the filing of the Certificate of
Merger with the Secretary of State of the State of Delaware and the Articles of
Merger with the Secretary of State of the State of Florida being hereinafter
referred to as the "Effective Date" and the time of such filing being
hereinafter referred to as the "Effective Time"). The closing of the
transactions contemplated hereunder (the "Closing") shall take place at the
offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A., Museum
Tower, Suite 2200, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M.,
local time, on such date as the Parties shall agree in accordance with the
provisions hereof.
2.2 Actions and Deliveries.
----------------------
(a) No more than three (3) and no less than one (1) day prior to
the Effective Date, (i) B2B will deliver to IVAX the B2B Effective Balance
Sheet, and (ii) IVAX will deliver to B2B the Diagnostics Effective Date Balance
Sheet.
9
(b) At the Closing, IVAX or Diagnostics will deliver to B2B the
following:
(i) stock certificates held by IVAX representing all of the
outstanding shares of Diagnostics Common Stock; and
(ii) the certificates, Consents, opinions and other items
described in Article 7.
---------
(c) At the Closing, B2B will deliver to IVAX the following:
(i) stock certificates representing the Merger Consideration;
and
(ii) the certificates, Consents, opinions and other items
described in Article 8.
---------
2.3 Effect of the Merger. At the Effective Time, all Diagnostics'
--------------------
property, rights, privileges, powers and franchises will vest in the Surviving
Corporation, and all obligations and duties of Diagnostics will become the
Surviving Corporation's obligations and duties.
2.4 Certificate of Incorporation; Bylaws. B2B's Certificate of
------------------------------------
Incorporation, as in effect immediately prior to the Effective Time, will be the
Surviving Corporation's Certificate of Incorporation; provided, however, the
Amendment will be filed with the Secretary of State of the State of Delaware on
the Effective Date. B2B's Bylaws, as in effect immediately prior to the
Effective Time, will be the Surviving Corporation's Bylaws; provided, however,
B2B's Bylaws will be amended to the extent necessary to comply with Section 2.5.
-----------
2.5 Directors and Officers. The individual's listed on Schedule 2.5 will
------------------------ ------------
be the Surviving Corporation's directors and officers upon consummation of the
Merger.
2.6 Effect on Capital Stock. At the Effective Time, because of the Merger
-----------------------
and without any action by the Parties:
(a) Conversion of Diagnostics Common Stock. Each share of Diagnostics
--------------------------------------
Common Stock issued and outstanding immediately prior to the Effective Time will
be converted into a portion of the Merger Consideration based on the Exchange
Ratio. All such shares of Diagnostics Common Stock, when so converted, will no
longer be outstanding and will automatically be canceled and retired and will
cease to exist, and the holder of a Diagnostics Common Stock certificate that,
immediately prior to the Effective Time, represented outstanding shares of
Diagnostics Common Stock will cease to have any rights with respect thereto,
except the right to receive, upon the surrender of such Diagnostics Common Stock
certificate (i) a portion of the Merger Consideration based on the Exchange
Ratio, and (ii) certain dividends and other distributions under Section 2.6(c).
--------------
(b) Rights Prior to Surrender, Stock Splits, etc. and Stock Transfer
----------------------------------------------------------------
Books. Until surrendered as contemplated by Section 2.7, each Diagnostics Common
----- -----------
Stock certificate will be deemed at any time after the Effective Time to
represent only the right to receive upon such surrender a portion of the Merger
Consideration based on the Exchange Ratio and certain dividends and other
distributions under Section 2.6(c). If between the date of this Agreement
--------------
10
and the Effective Time the outstanding shares of B2B Common Stock or Diagnostics
Common Stock are changed into a different number of shares or a different class,
because of any stock dividend, subdivision, reclassification, recapitalization,
split, combination or exchange of shares, the Exchange Ratio will be
correspondingly adjusted to reflect such stock dividend, subdivision,
reclassification, recapitalization, split, combination or exchange of shares.
After the Effective Time, Diagnostics' stock transfer books will be closed and
there will be no further transfers of shares of Diagnostics Common Stock prior
to the Effective Time. If, at or after the Effective Time, any Diagnostics
Common Stock certificates are presented to the Surviving Corporation, they will
be canceled and exchanged in accordance with this Agreement.
(c) Dividends and Distributions on Merger Consideration. No dividends
---------------------------------------------------
or other distributions declared or made having a record date after the Effective
Time will be paid to the holder of any unsurrendered Diagnostics Common Stock
certificate until the record holder of such Diagnostics Common Stock certificate
has surrendered it under Section 2.7. Subject to the effect of Laws (including
-----------
escheat and abandoned property Laws), following surrender of any such
Diagnostics Common Stock certificate there will be paid to the record holder of
the certificates representing the Merger Consideration issued in exchange
therefor, without interest, (i) the amount of dividends or other distributions
with a record date after the Effective Time that, absent the failure to
surrender such Diagnostics Common Stock certificate, theretofore would have been
required to be paid with respect to such Merger Consideration, and (ii) if the
payment date for any dividend or distribution payable with respect to such
Merger Consideration has not occurred prior to the surrender of such Diagnostics
Common Stock certificate, at the appropriate payment date therefor, the amount
of such dividends or other distributions.
(d) B2B Common Stock. Each share of B2B Common Stock issued and
----------------
outstanding at and as of the Effective Time will remain issued and outstanding.
2.7 Surrender of Certificates.
-------------------------
(a) Exchange Procedures. At the Effective Time, (i) the holders of
-------------------
Diagnostics Common Stock certificates will surrender such certificates to B2B,
(ii) upon surrender of a Diagnostics Common Stock certificate the holder thereof
will be entitled to receive the applicable Merger Consideration, and (iii)
Diagnostics Common Stock certificates so surrendered will forthwith be canceled.
(b) Transfers of Ownership. If any certificate for B2B Common Stock
----------------------
is to be issued in a name other than that in which the Diagnostics Common Stock
certificate surrendered in exchange therefor is registered, B2B will not be
required to issue such B2B Common Stock until (i) the Diagnostics Common Stock
certificate so surrendered has been properly endorsed and is otherwise in proper
form for transfer and (ii) the Person requesting such exchange has paid to B2B
or any agent it designates any transfer or other Taxes required because of the
issuance of a certificate for B2B Common Stock in any name other than that of
the registered holder of Diagnostics Common Stock certificate surrendered, or
established to the satisfaction of B2B or any agent it designates that such Tax
has been paid or is not payable.
11
(c) No Further Ownership Rights in B2B Common Stock. All Merger
-----------------------------------------------
Consideration issued will be deemed to have been issued in full satisfaction of
all rights pertaining to Diagnostics Common Stock.
(d) Lost, Stolen or Destroyed Certificates. If any Diagnostics Common
--------------------------------------
Stock certificate has been lost, stolen, or destroyed, B2B will issue the
applicable Merger Consideration deliverable in respect thereof upon (i) the
making of an affidavit of that fact by the Person claiming such certificate to
be lost, stolen, or destroyed and (ii) if the Surviving Corporation requires,
the posting by such Person of a bond in such reasonable amount as B2B may direct
as indemnity against any claim that may be made against it with respect to such
Certificate.
2.8 Stock Options.
-------------
(a) Assumption of Commitments. At the Effective Time, automatically
-------------------------
and without any action on the part of the holder thereof, B2B will assume,
subject to any restriction or limitations imposed by Law, each outstanding
Diagnostics Common Stock Commitment listed on Schedule 2.8 outstanding at the
------------
Effective Time and it will become a Commitment (i) to purchase that number of
shares of B2B Common Stock obtained by multiplying the number of shares of
Diagnostics Common Stock issuable upon the exercise of such Diagnostics Common
Stock Commitment by the Exchange Ratio, (ii) at an exercise price per share
equal to the per share exercise price of the Commitment divided by the Exchange
Ratio, and (iii) otherwise upon the same terms and conditions as such
outstanding Diagnostics Common Stock Commitments to purchase shares of
Diagnostics Common Stock, except that if Code Section 421 applies to any
Diagnostics Common Stock Commitment because of the qualifications under Code
Section 422 or 423, the exercise price, the number of shares purchasable
pursuant to such Diagnostics Common Stock Commitment and the terms and
conditions of exercise of such Diagnostics Common Stock Commitment will comply
with Code Section 424(a).
(b) Reservation of Shares. B2B will take all corporate actions
---------------------
necessary to reserve for issuance a sufficient number of shares of B2B Common
Stock for delivery upon exercise of Diagnostics Common Stock Commitments assumed
under Section 2.8(a).
--------------
(c) Amendments to Plans. At the Effective Time, B2B will, subject to
-------------------
any restrictions or limitations imposed by Law, assume each Diagnostics plan
providing for the issuance or grant of a Diagnostics Common Stock Commitment.
Upon assumption of such plans, such amendments may be made thereto as may be
required to reflect the consummation of the Merger.
2.9 No Fractional Shares. No fractional shares of B2B Common Stock will be
--------------------
issued in the Merger and fractional share interests will not entitle the owner
thereof to vote or to any rights of a B2B stockholder, and no compensation will
be paid in lieu thereof.
2.10 Tax Treatment. The Parties intend that the Merger constitute a tax
-------------
free reorganization under Code Section 368.
2.11 Accounting Treatment. The Parties intend that the Merger will be
--------------------
accounted for as a purchase under GAAP and the Commission's rules, regulations,
and interpretations.
12
2.12 Voting Agreements. Contemporaneous with the execution and delivery of
-----------------
this Agreement by the Parties, the B2B Affiliate Stockholders (except ▇▇▇▇.▇▇▇,
Inc.) will enter into a voting agreement, substantially in the form of Exhibit E
---------
(the "Voting Agreements").
2.13 Taking of Necessary Action; Further Action. If, at any time after the
------------------------------------------
Effective Time, any such further action is necessary or desirable to carry out
the purposes of this Agreement and to vest the Surviving Corporation with full
right, title and possession to all assets, property, rights, privileges, powers,
and franchises of Diagnostics, the officers and directors of B2B and Diagnostics
are fully authorized in the name of their respective corporations or otherwise
to take, and the Parties will cause them to take, all such lawful and necessary
action.
ARTICLE 3.
Representations and Warranties of B2B
In order to induce IVAX and Diagnostics to enter into this Agreement and
the Plan of Merger and to consummate the transactions contemplated hereby and
thereby, B2B hereby represents and warrants to IVAX and Diagnostics that the
representations and warranties contained in this Article 3 are true, correct and
---------
complete as of the date of this Agreement and will be true, correct and complete
as of the Effective Time (as though made then and, except as expressly provided
in a representation or warranty, as though the Effective Time were substituted
for the date of this Agreement).
3.1 Organization, Standing and Power. B2B is a corporation duly
--------------------------------
organized, validly existing and in good standing under the Laws of the State of
Delaware and has all requisite right, power and authority to enter into this
Agreement and the Plan of Merger and to consummate the transactions contemplated
hereby and thereby.
3.2 Authorization of Agreement; Enforceability. The execution, delivery
------------------------------------------
and performance of this Agreement and the Plan of Merger by B2B and the
consummation of the transactions contemplated hereby and thereby have been duly
and effectively authorized by all requisite corporate action on the part of B2B,
subject to receipt of the Consent of the stockholders of B2B as contemplated in
Section 5.7. Neither the Merger, this Agreement nor the transactions
-----------
contemplated thereby and hereby requires the Consent of the stockholders of B2B,
other than the Consent contemplated in Section 5.7. This Agreement and the Plan
-----------
of Merger constitute an Enforceable obligation of B2B.
3.3 No Violation or Conflict. The execution, delivery and performance of
------------------------
this Agreement and the Plan of Merger by B2B, and the consummation of the
transactions contemplated hereby and thereby, and compliance by B2B with the
provisions hereof and thereof (a) do not and will not (assuming the matters set
forth in the Proxy Statement are approved at the Special Meeting) violate or
conflict with any Law or any Order or any term or provision of the Certificate
of Incorporation or Bylaws (or other organizational documents) of B2B or any of
its Subsidiaries 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 Breach or
require any Consent under or result in the creation of any Encumbrance upon any
property or assets of B2B or any of its Subsidiaries under any Contract to which
B2B or any of its Subsidiaries is a party or by which B2B or any of its
Subsidiaries or any of their respective properties may be bound or affected,
except (i) for
13
those Contracts as to which Consent shall have been obtained at or prior to the
Effective Time or (ii) where the failure to obtain such Consent would not have a
Material Adverse Effect on B2B.
3.4 Certificate of Incorporation; Bylaws and Minute Books. A true and
-----------------------------------------------------
complete copy of the Certificate of Incorporation (as amended and in effect),
Bylaws (as amended and in effect) and minute books of B2B and each of its
Subsidiaries have been delivered by B2B to IVAX. The minute books of B2B and
each of its Subsidiaries in the form supplied to IVAX are complete and accurate
in all material respects and have embodied therein copies of all minutes of all
meetings and all actions by written Consent of the Board of Directors of B2B and
each of its Subsidiaries, any committee thereof, the incorporators and the
stockholders of B2B and each of its Subsidiaries from the dates of their
respective incorporations to the date of this Agreement, and such minutes and
actions by written Consent accurately reflect all material actions taken by the
Board of Directors of B2B or any of its Subsidiaries, any committees thereof,
the incorporators and the stockholders during such periods. All actions of B2B
or any of its Subsidiaries from the dates of their respective incorporations to
the date of this Agreement that required the approval of the directors or
stockholders of B2B or such Subsidiaries, as the case may be, have been so
approved
3.5 Consent of Government Authorities. Other than (a) in connection with
---------------------------------
or in compliance with the Delaware GCL, the Florida BCA, the Exchange Act, the
Securities Act and the state securities Laws of any jurisdiction and (b)
notification pursuant to, and expiration or termination of the waiting period
under the HSR Act, if required, no Consent of any Agency is required in
connection with the execution, delivery or performance by B2B of this Agreement
or the Plan of Merger or the consummation by B2B of the transactions
contemplated hereby or thereby.
3.6 Validity of B2B Common Stock. The B2B Common Stock to be issued to
----------------------------
IVAX in the Merger will, when issued in accordance with this Agreement and the
Plan of Merger at the Effective Time, be duly authorized, validly issued, fully
paid and non-assessable and free of any preemptive rights of any Person.
3.7 Commission Filings. B2B has filed all forms, reports and documents
------------------
required to be filed by it with the Commission including those forms, reports
and documents required to be filed by it pursuant to the Securities Act or the
Exchange Act (the "B2B SEC Filings"). B2B has furnished to IVAX and Diagnostics
a true and complete copy of each B2B SEC Filing. Each of the B2B SEC Filings
comply as to form with the applicable requirements of the Commission for such
filing in all material respects. None of the B2B SEC Filings, as of the dates
they were respectively filed with the Commission, contained any untrue statement
of a material fact or omitted to state 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.
3.8 B2B Financial Statements. The financial statements of B2B and its
------------------------
Subsidiaries included in the B2B SEC Filings (the "B2B Financial Statements"),
as of the dates thereof and for the periods covered thereby, present fairly, in
all material respects, the consolidated financial position, results of
operations, and cash flows of B2B and its Subsidiaries (subject, in the case of
unaudited statements, to normal recurring year-end audit adjustments and the
omission of certain footnote disclosure). Any supporting schedules included in
the B2B SEC Filings present fairly,
14
in all material respects, the information required to be stated therein. The B2B
Financial Statements and supporting schedules were prepared in all material
respects: (a) in accordance with Regulation S-X promulgated by the Commission,
(b) in conformity with generally accepted accounting principles applied on a
consistent basis ("GAAP") and (c) from the books and records of B2B and its
Subsidiaries. To the extent any such B2B Financial Statements and supporting
schedules were audited, they were audited by independent public accountants
within the meaning of the rules promulgated by the Commission. The B2B Financial
Statements comply as to form with the requirements of Regulation S-X promulgated
by the Commission in all material respects.
3.9 Absence of Undisclosed Liabilities. Except as set forth on Schedule
---------------------------------- --------
3.9, neither B2B nor any of its Subsidiaries has, and there is no Basis for
---
assertion against B2B or any of its Subsidiaries of, any material Liability,
which is not included, disclosed or noted in the September 30, 2000 B2B
Financial Statements, except for the Transaction Expenses of B2B incurred in
accordance with the provisions of this Agreement and as set forth on Schedule
--------
3.9 and any non-material Liabilities incurred since September 30, 2000 in the
---
Ordinary Course of Business to Persons not Affiliates of B2B or any of its
Subsidiaries (none of which result from, arise out of, relates to, is in the
nature of, or was caused by a Breach of Contract, Breach of warranty, tort,
infringement or violation of Law). Schedule 3.9 and the B2B Effective Date
------------
Balance Sheet set forth all of the material liabilities (known, asserted,
accrued, liquidated or due) of B2B.
3.10 Receivables. All Receivables of B2B and its Subsidiaries are
-----------
accurately reflected on the September 20, 2000 B2B Financial Statements, and are
valid, bona fide and binding claims arising in the Ordinary Course of the
Business, subject to the reserves for bad debt set forth in the September 20,
2000 B2B Financial Statements. No Receivables have been factored.
3.11 Product Warranty. Each product of B2B and its Subsidiaries has
----------------
manufactured, sold, leased, or delivered has been in conformity, in all material
respects, with all applicable Law, Contracts, and all express and implied
warranties, and, to the Knowledge of B2B, neither B2B has any Liability (and
there is no Basis for any present or future Action against any of them giving
rise to any Liability) for replacement or repair thereof or other Damages in
connection therewith. No product designed, manufactured, sold, leased, or
delivered by B2B or its Subsidiaries is subject to any guaranty, warranty, or
other indemnity or similar Liability beyond the applicable terms and conditions
of sale or lease by B2B. True and correct copies of the terms and conditions of
sale or lease used by B2B and its Subsidiaries (containing applicable guaranty,
warranty, and similar Liability indemnity provisions) have been delivered to
IVAX.
3.12 Product Liability. Neither B2B nor its Subsidiaries has received any
-----------------
written notice of or any written information as to any Liability (and there is
no Basis for any present or future Action against any of them giving rise to any
Liability) arising out of any injury to individuals or property as a result of
the ownership, possession, or use of any product designed, manufactured, sold,
leased or delivered by B2B or its Subsidiaries.
3.13 Subsidiaries. Set forth on Schedule 3.13 is a list of each, direct or
------------ -------------
indirect, Subsidiary of B2B, including (a) its name and jurisdiction of
organization, (b) the number of authorized shares of each class of its capital
stock, (c) the number of issued and outstanding
15
shares of each class of its capital stock and (d) the names of each of its
directors and officers, managers or general or managing partners. All of the
equity interests of each Subsidiary of B2B have been duly authorized and are
validly issued, fully paid and nonassessable. Except as set forth on Schedule
--------
3.13, B2B owns no capital stock or equity interests in any Person. Each
----
Subsidiary of B2B is duly organized, validly existing, and in good standing
under the Laws of the jurisdiction of its organization and has all necessary
corporate power to own its properties and assets and to carry on its business as
presently conducted. Each Subsidiary of B2B is duly qualified to conduct
business as a foreign corporation and is in good standing in each jurisdiction
in which the nature of the business transacted by it requires such
qualification, except where any such failure would not have a Material Adverse
Effect.
3.14 Compliance with Laws. B2B and each of its Subsidiaries has conducted
--------------------
its business in compliance, in all material respects, with all applicable Laws
and Orders including Environmental Laws, Laws relating to disclosure, equal
employment, foreign corrupt practices, antitrust, product quality,
discrimination, employment and health and safety, and no Action or notice
thereof has been filed, or, to the Knowledge of B2B, Threatened, to be filed or
commenced, against any of them alleging any failure to so comply. Neither B2B
nor any of its Subsidiaries has engaged in any fraudulent, misleading or
deceptive action or practice in connection with any print, television, internet
or radio advertising, programming or solicitation.
3.15 Brokers and Finders. Except as contemplated in Section 3.20, neither
------------------- ------------
B2B nor any of its Subsidiaries or Affiliates of B2B has 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 to any
other Person in connection with the transactions contemplated by this Agreement.
3.16 Capitalization. Prior to giving effect to the Amendment, the
--------------
authorized capital stock of B2B consists solely of (a) 25,000,000 shares of B2B
Common Stock, of which 8,621,643 shares are issued and outstanding as of the
date of this Agreement and (b) 5,000,000 shares of B2B Preferred Stock, none of
which are issued and outstanding as of the date of this Agreement. No series of
the B2B Preferred Stock has been designated or established by B2B. All of the
issued and outstanding shares of B2B Common Stock have been duly authorized and
validly issued and are credited as fully paid and non-assessable, with no
personal Liability attaching to the ownership thereof. No class of equity
securities of B2B exists other than the stock noted above. All voting rights
with respect to B2B are vested exclusively in the B2B Common Stock. No
securities issued by B2B from the date of its incorporation to the date of this
Agreement were issued in violation of the preemptive rights of any Person. All
material Licenses and Consents required to be obtained from or effected with any
Person in connection with all issuances of securities of B2B since the date of
its incorporation have been obtained or effected and all securities of B2B have
been issued in accordance with the provisions of all applicable securities and
other Laws.
3.17 Commitments. Neither B2B nor any of its Subsidiaries has any
-----------
Commitment other than (i) warrants to purchase 400,000 shares of B2B Common
Stock held by GBI Capital Partners or its assigns, (ii) options to purchase
1,000,000 shares of B2B Common Stock held by Affiliates of B2B, (iii) 1,285,882
options issued pursuant to B2B 1999 Performance Equity Plan and outstanding as
of the date of this Agreement, (iv) options to purchase 50,000 shares of B2B
16
Common Stock by each of ▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ to be issued upon
execution and delivery of this Agreement by the Parties and (v) this Agreement.
The terms of each Commitment of B2B or its Subsidiaries including exercise
price, expiration date and vesting are set forth on Schedule 3.17.
-------------
3.18 Statement to B2B's Stockholders. None of the information in the final
-------------------------------
Proxy Statement, including any post-effective amendment thereto contains, or
will contain, any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they are made, not
misleading; provided, however, that no representation or warranty is made as to
information relating to IVAX or Diagnostics supplied in writing by IVAX or
Diagnostics specifically for inclusion therein. The final Proxy Statement,
including any post-effective amendments thereto will comply with and be
distributed to B2B stockholders in accordance with, all applicable Laws and the
Certificate of Incorporation and Bylaws of B2B in all material respects.
3.19 Certain Beneficial Owners and Consents. Other than the B2B Affiliate
--------------------------------------
Stockholders, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇, no Person (together with such Person's
Affiliates) is the Beneficial Owner of five percent (5%) or more of the
aggregate voting power of any class or series of B2B's issued and outstanding
capital stock and, to the Knowledge of B2B, other than the B2B Affiliate
Stockholders, no Person (together with such Person's Affiliates) is the
Beneficial Owner of greater than one percent (1%) of the aggregate voting power
of any class or series of B2B's issued and outstanding capital stock. B2B has
furnished IVAX with a true and complete copy of each Schedule 13D or Schedule
13G filed by any Beneficial Owner of any class or series of B2B's capital stock
with respect to B2B. To the Knowledge of B2B, those certain Lock-Up Agreements
between the Persons set forth on Schedule 3.19, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Inc. and ▇▇▇▇▇
-------------
Securities Corp., pursuant to which, among other things, the Persons set forth
on Schedule 3.19 agreed for a period of twelve (12) months following the
-------------
effective date of B2B's registration statement in connection with the initial
public offering of the B2B Common Stock to not sell, assign or transfer the
shares of B2B Common Stock which were owned by such Persons prior to the
commencement of B2B's initial offering, without the prior written consent of
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Inc. and ▇▇▇▇▇ Securities Corp., constitute an Enforceable
Contract of each party thereto and have not been waived other than with respect
to shares of B2B Common Stock purchased in the initial public offering on the
same terms as offered to the public or purchased subsequently in the open
market.
3.20 Fairness Opinion. B2B has received a written opinion from ▇▇▇▇▇▇▇▇
----------------
▇▇▇▇▇ ▇▇▇▇▇▇ & Zukin Capital, its financial advisor, a true, correct and
complete copy of which has been delivered to IVAX, that the terms of the Merger
are fair to the public stockholders of B2B from a financial point of view.
3.21 Real Property; Leases.
---------------------
(a) Schedule 3.21(a) lists and describes briefly all real property
----------------
owned by any of B2B and its Subsidiaries. With respect to each such parcel of
owned real property and except as set forth on Schedule 3.21:
-------------
17
(i) the identified owner has good and marketable title to
the parcel of real property, free and clear of any Encumbrance,
or other restriction, except for installments of special
assessments not yet delinquent and recorded Encumbrances and
other restrictions which do not materially impair the current use
or occupancy, or impair the value (in excess of the Basket
Limitation) or the marketability of title, of the property
subject thereto;
(ii) there are no pending or, to the Knowledge of B2B,
Threatened condemnation Actions relating to the property or other
matters affecting the current use, occupancy, or value thereof;
(iii) the legal description for the parcel contained in the
deed thereof describes such parcel fully and adequately, the
buildings and improvements are located within the boundary lines
of the described parcels of land, are not, to the Knowledge of
B2B, in violation of applicable setback requirements, zoning Laws
(and none of the properties or buildings or improvements thereon
are subject to "permitted non-conforming use" or "permitted non-
conforming structure" classifications), and do not encroach on
any easement which may burden the land, and the land does not
serve any adjoining property for any purpose inconsistent with
the use of the land, and the property is not located within any
flood plain or subject to any similar type restriction for which
any Licenses necessary to the use thereof have not been obtained;
(iv) all facilities have received all material approvals
of all Agencies (including Licenses) required in connection with
the ownership or operation thereof and have been operated and
maintained in accordance with applicable Laws;
(v) there are no Contracts granting to any party or
parties the right of use or occupancy of any portion of the
parcel of real property;
(vi) there are no outstanding Commitments to purchase the
parcel of real property, or any portion thereof or interest
therein; and
(vii) to the Knowledge of B2B, there are no parties (other
than B2B and its Subsidiaries) in possession of the parcel of
real property, other than tenants under any leases disclosed in
Schedule 3.21(a)(vii) who are in possession of space to which
they are entitled.
(b) Schedule 3.21(b) lists and describes briefly all real
----------------
property leased or subleased to any of B2B and its Subsidiaries. B2B
has delivered to IVAX correct and complete copies of the leases and
subleases listed in Schedule 3.21(b) (each as amended to date). With
----------------
respect to each lease and sublease listed in Schedule 3.21(b) and
----------------
except as set forth on Schedule 3.21:
-------------
(i) the lease or sublease is Enforceable, and in full
force and effect;
18
(ii) the lease or sublease will continue to be
Enforceable, and in full force and effect, on identical terms
following the consummation of the transactions contemplated
hereby;
(iii) to the Knowledge of B2B, no party to the lease or
sublease is in material Breach, and no event has occurred which,
with notice or lapse of time, would constitute a material Breach
thereunder;
(iv) to the Knowledge of B2B, no party to the lease or
sublease has repudiated any provision thereof;
(v) there are no disputes, oral Contracts, or
forbearances in effect as to the lease or sublease;
(vi) with respect to each sublease, the representations
and warranties set forth in Sections 3.21(b)(i) through (v) are
-------------------------------
true and correct with respect to the underlying lease;
(vii) none of B2B and its Subsidiaries has assigned,
transferred, conveyed, mortgaged, deeded in trust, or Encumbered
any interest in the leasehold or subleasehold; and
(viii) all facilities leased or subleased thereunder have
received all approvals of all Agencies (including Licenses)
required in connection with the operation thereof and have been
operated and maintained in accordance with applicable Laws.
3.22 Title to Personal Property. Except as set forth on Schedule 3.22,
-------------------------- -------------
B2B and its Subsidiaries have good and marketable title, free and clear of any
Encumbrances, to each material item of personal property, tangible and
intangible, as reflected on the September 30, 2000 B2B Financial Statements and
to each material item of personal property, tangible and intangible, acquired
since September 30, 2000 (other than non-material property disposed of in the
Ordinary Course of Business since September 30, 2000 to Persons who are not
Affiliates of B2B or any of its Subsidiaries). Except for leasehold interests
and other leased properties identified on Schedule 3.21(b) or 3.22, there are no
------------------------
assets owned by any third party which are necessary to the operations of the
business of B2B and its Subsidiaries as presently conducted. Each such tangible
asset is free from material defects (patent and latent), has been maintained in
accordance with normal industry practice, is in operating condition (subject to
normal wear and tear), and is suitable for the purposes for which it is
currently used.
3.23 Insurance. B2B maintains liability (including product liability),
---------
casualty, property loss, worker's compensation and other insurance coverage with
respect to the conduct of its and its Subsidiaries' respective businesses, in
such insurance amounts and under terms and conditions, as required by applicable
Law and as B2B deems reasonably necessary. B2B has paid all premiums with
respect thereto covering all periods up to and including the date of this
Agreement (other than retroactive premiums which may be payable with respect to
worker's compensation insurance policies or accrued premiums not yet due and
payable), and no written notice of cancellation or termination has been received
with respect to any such policy and there
19
exists no Basis for any such termination or cancellation. None of such
policies are subject to any retroactive premium adjustment feature. To the
Knowledge of B2B, neither B2B nor its Subsidiaries nor any other party to
an insurance policy of B2B nor its Subsidiaries is in default or Breach,
and to the Knowledge of B2B no event has occurred which, with notice as the
lapse of time, would constitute such a Breach or default or permit
termination, modification or acceleration, under such policy. B2B has
provided IVAX and Diagnostics true and correct copies of all of its
insurance policies.
3.24 Employment Contracts. Except as set forth on Schedule 3.24,
-------------------- -------------
there are no employment, indemnification, consulting, severance or other
similar Contracts between B2B or any of its Subsidiaries and any of their
respective officers, directors, consultants or employees (the "B2B
Employment Contracts"). Except as set forth on Schedule 3.24, none of the
-------------
B2B Employment Contracts contain any "change of Control," severance or
other provisions pursuant to which any of the benefits of any other party
thereto will be increased or the vesting of any such benefits will be
accelerated by the consummation of any of the transactions contemplated by
this Agreement or pursuant to which the value of any such benefits will be
calculated on the Basis of any of the transactions contemplated by this
Agreement. All of the B2B Employment Contracts are terminable by B2B
without penalty upon not more than thirty (30) days' notice, except as set
forth on Schedule 3.24. Schedule 3.24 indicates which B2B Employment
------------- -------------
Contracts will terminate on or before the Effective Time and sets forth the
total amount of severance payments of any kind or nature payable in
connection with the transactions contemplated by this Agreement. To the
Knowledge of B2B, no executive, key employee, or group of employees has any
plans to terminate employment with any of B2B and its Subsidiaries. None of
B2B and its Subsidiaries is a party to or bound by any collective
bargaining Contract, nor has any of them experienced any strikes,
grievances, claims of unfair labor practices, or other collective
bargaining disputes. None of B2B and its Subsidiaries has committed any
unfair labor practice. B2B has no Knowledge of any organizational effort
presently being made or Threatened by or on behalf of any labor union with
respect to employees of any of B2B and its Subsidiaries.
3.25 Employee Benefits.
-----------------
(a) Schedule 3.25 lists each Employee Benefit Plan that any of
-------------
B2B or a Subsidiary of B2B maintains or to which it contributes.
Subsections 3.25(b) through (j) apply to each Employee Benefit Plan that
-------------------------------
any of B2B or a Subsidiary of B2B or any ERISA Affiliate of B2B or a
Subsidiary of B2B maintains or to which any of B2B or a Subsidiary of B2B
or any ERISA Affiliate of B2B or a Subsidiary of B2B contributes.
(b) Each such Employee Benefit Plan (and each related trust,
insurance contract, or fund) complies in form and in operation in all
material respects with its terms and with the applicable requirements of
ERISA, the Code, and other applicable Laws.
(c) All required reports and descriptions (including Form 5500
Annual Reports, Summary Annual Reports, PBGC-l's, and Summary Plan
Descriptions) have been filed or distributed appropriately with respect to
each such Employee Benefit Plan. The requirements of Part 6 of Subtitle B
of Title I of ERISA and of Code Section 4980B have been met with respect to
each such Employee Benefit Plan that is an Employee Welfare Benefit Plan to
which such requirements apply.
20
(d) All contributions (including all employer contributions and
employee salary reduction contributions) which are due have been paid to each
such Employee Benefit Plan which is an Employee Pension Benefit Plan and all
contributions for any period ending on or before the Effective Date which are
not yet due have been paid to each such Employee Pension Benefit Plan or accrued
in accordance with the past custom and practice of B2B and its Subsidiaries. No
"accumulated funding deficiency" (for which a Tax is due or would be due in the
absence of a waiver), as such term is defined in ERISA Section 302(a)(2) or Code
Section 412, has been incurred with respect to any such Employee Benefit Plan
that is an Employee Pension Benefit Plan, whether or not waived. All premiums or
other required payments which are due for all periods ending on or before the
Effective Date have been paid with respect to each such Employee Benefit Plan
which is an Employee Welfare Benefit Plan.
(e) Each Employee Pension Benefit Plan which is intended to qualify
under Section 401(a) of the Code does so qualify, and each related trust
qualifies under Section 501(a) of the Code, and each such Employee Pension
Benefit Plan is the subject of a favorable determination letter from the IRS.
Nothing has occurred to impair such determination, subject to the ability of the
employer that sponsors such Employee Pension Benefit Plan to amend such plan,
within its "remedial amendment period", or as otherwise provided by the IRS, to
comply with recent law changes."
(f) The market value of assets under each such Employee Benefit Plan
which is an Employee Pension Benefit Plan (other than any Multiemployer Plan)
equals or exceeds the present value of all "benefit liabilities," as such term
is defined in ERISA Section 4001(a)(16), thereunder determined in accordance
with PBGC methods, factors, and assumptions applicable to an Employee Pension
Benefit Plan terminating on the date for determination.
(g) B2B has delivered, or will upon request deliver, to IVAX and
Diagnostics correct and complete copies of the plan documents and summary plan
descriptions, the most recent determination letter received from the IRS, the
most recent Form 5500 Annual Report, and all related trust Contracts, insurance
Contracts, and other funding Contracts which implement each such Employee
Benefit Plan.
(h) With respect to each Employee Benefit Plan that any of B2B or a
Subsidiary of B2B or any ERISA Affiliate of B2B or a Subsidiary of B2B maintains
or ever has maintained or to which any of them contributes, ever has
contributed, or ever has been required to contribute:
(i) no such Employee Benefit Plan which is an Employee Pension
Benefit Plan described in Title IV of ERISA (other than any
Multiemployer Plan) has been completely or partially terminated or
been the subject of a Reportable Event as to which notices would be
required to be filed with the PBGC;
(ii) no proceeding by the PBGC to terminate any such Employee
Pension Benefit Plan described in Title IV of ERISA (other than any
Multiemployer Plan) has been instituted or, to the Knowledge of B2B,
Threatened;
21
(iii) there have been no Prohibited Transactions with respect to
any such Employee Benefit Plan;
(iv) no Fiduciary has any Liability for Breach of fiduciary
duty or any other failure to act or comply in connection with the
administration or investment of the assets of any such Employee
Benefit Plan. No Action with respect to the administration or the
investment of the assets of any such Employee Benefit Plan (other than
routine claims for benefits) is pending or, to the Knowledge of B2B,
Threatened;
(v) to the Knowledge of B2B, there is no Basis for any such
Action described in (iv) above; and
(vi) none of B2B or its Subsidiaries has incurred, and has any
reason to expect that any of B2B and its Subsidiaries will incur, any
Liability to the PBGC (other than PBGC premium payments) or otherwise
under Title IV of ERISA (including any withdrawal Liability) or under
the Code with respect to any such Employee Benefit Plan which is an
Employee Pension Benefit Plan.
(i) None of B2B, its Subsidiaries, or any ERISA Affiliate of B2B or a
Subsidiary of B2B contributes to, ever has contributed to, or ever has been
required to contribute to any Multiemployer Plan or has any Liability (including
withdrawal Liability) under any Multiemployer Plan.
(j) None of B2B or its Subsidiaries maintains or ever has maintained
or contributes, ever has contributed, or ever has been required to contribute to
any Employee Welfare Benefit Plan providing medical, health, or life insurance
or other welfare-type benefits for current or future retired or terminated
employees, their spouses, or their dependents (other than as required under Code
Section 4980B). No Employee Welfare Benefit Plan which B2B or any of its
Subsidiaries maintains or ever has maintained or to which any of them
contributes, ever has contributed, or ever has been required to contribute, is a
"multiple employer welfare arrangement," as such term is defined in ERISA
Section 3(40).
3.26 Guaranties. None of B2B and its Subsidiaries is a guarantor or
----------
otherwise is responsible for any Liability (including indebtedness) of any other
Person.
3.27 Environmental, Health, and Safety Matters.
-----------------------------------------
(a) Each of B2B, its Subsidiaries, and their respective predecessors
and Affiliates has, in material respects, complied and is in compliance with all
Environmental Laws.
(b) Without limiting the generality of Section 3.27(a), each of B2B,
---------------
its Subsidiaries and their respective Affiliates has obtained, has complied
with, and is in compliance with, all material Licenses and other material
authorizations that are required pursuant to Environmental Laws for the
occupation of its facilities and the operation of its business. A list of all
such Licenses and other authorizations is set forth in Schedule 3.27(b).
----------------
22
(c) Neither B2B, its Subsidiaries, nor any of their respective
predecessors or Affiliates has received any written or oral notice, report or
other information regarding any actual or alleged violation of Environmental
Laws, or any Liabilities or potential Liabilities, including any investigatory,
remedial or corrective obligations, relating to any of them or its facilities
arising under Environmental Laws.
(d) None of the following exists at any property or facility owned
or operated by B2B or its Subsidiaries: (i) underground storage tanks, (ii)
asbestos containing materials in any form or condition (except as permitted by
and in accordance with Law), (iii) materials or equipment containing
polychlorinated biphenyls, or (iv) landfills, surface impoundments, or disposal
areas.
(e) None of B2B, its Subsidiaries, or their respective predecessors
or Affiliates has treated, stored, disposed of, arranged for or permitted the
disposal of, transported, handled, or released any substance, including any
hazardous substance, or owned or operated any property or facility (and no such
property or facility is contaminated by any such substance) in a manner that has
given or would give rise to Liabilities, including any Liability for response
costs, corrective action costs, personal injury, property damage, natural
resources damages or attorney fees, pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the Solid Waste
Disposal Act, as amended, or any other Environmental Laws.
(f) To the Knowledge of B2B, neither this Agreement nor the
consummation of the transaction that is the subject of this Agreement will
result in any obligations for site investigation or cleanup, or notification to
or Consent of government agencies or third parties, pursuant to any of the so-
called "transaction-triggered" or "responsible property transfer" Environmental
Laws.
(g) Neither B2B, its Subsidiaries, nor any of their respective
predecessors or Affiliates has, either expressly or by operation of Law, assumed
or undertaken any Liability, including any obligation for corrective or remedial
action, of any other Person relating to Environmental Laws.
(h) No facts, events or conditions relating to the past or present
facilities, properties or operations of B2B, its Subsidiaries, or any of their
respective predecessors or Affiliates will prevent, hinder or limit continued
compliance with Environmental Laws, give rise to any investigatory, remedial or
corrective obligations pursuant to Environmental Laws, or give rise to any other
Liabilities pursuant to Environmental Laws, including any relating to onsite or
offsite releases or Threatened Releases of hazardous materials, substances or
wastes, personal injury, property damage or natural resources damage.
3.28 Litigation. Except as set forth on Schedule 3.28, there are no
---------- -------------
Actions pending, or, to the best of B2B's Knowledge, directly or indirectly,
Threatened, against or affecting B2B or any of its Subsidiaries or any officer,
director or employee of B2B or any of its Subsidiaries in their respective
capacities as such. Neither B2B nor any of its Subsidiaries is in violation or
in default of any Order of any Court or Agency.
23
3.29 Absence of Changes. Except as set forth on Schedule 3.29, since
------------------ -------------
September 30, 2000 B2B has conducted its business only in the Ordinary Course of
Business and there has not occurred any Material Adverse Change in the condition
(financial or otherwise), results of operations, properties, assets,
Liabilities, business operations or prospects of B2B or any of its Subsidiaries,
and, since September 30, 2000, neither B2B nor any of its Subsidiaries has (a)
incurred any material Liabilities, (b) voluntarily or involuntarily sold,
transferred, surrendered, abandoned or disposed of any of its material assets or
property rights (tangible or intangible), (c) granted any increase in the
compensation payable or to become payable to officers or employees (including
any bonus payments or payments pursuant to any pension, profit-sharing plan or
other B2B Employee Benefit Plan or commitment), (d) incurred, assumed or taken
any property subject to any Liability, (e) materially altered the manner of
keeping the books, accounts or records of B2B, or materially changed in any
manner the accounting practices therein reflected other than alterations or
changes required by GAAP or applicable Law, (f) amended its Certificate of
Incorporation or Bylaws in any material respect, (g) canceled, waived or
released any material debts, rights or claims, (h) amended or terminated any B2B
Contract, or (i) entered into any B2B Employment Contract, except for those
referred to on Schedule 3.29. B2B has a Basis to believe that B2B will have cash
-------------
and cash equivalents of at least $22,000,000 at the Effective Time.
3.30 Tax Matters.
-----------
(a) Each of B2B and its Subsidiaries has timely filed all Tax
Returns that it was required to file. All such Tax Returns were correct and
complete in all material respects. All Taxes owed by any of B2B and its
Subsidiaries (whether or not shown on any Tax Return) have been paid. All Taxes
which may be owed by B2B or any of its Subsidiaries (whether or not shown or any
Tax Return) and which may be payable between the date of this Agreement and the
Effective Date will be timely paid in full or accrued or reserved for by B2B or
its Subsidiaries prior to the Effective Date. None of B2B and its Subsidiaries
currently is the beneficiary of any extension of time within which to file any
Tax Return. No claim has ever been made by an authority in a jurisdiction where
any of B2B and its Subsidiaries does not file Tax Returns that it is or may be
subject to taxation by that jurisdiction. There are no Encumbrances on any of
the assets of any of B2B and its Subsidiaries that arose in connection with any
failure (or alleged failure) to pay any Tax.
(b) Each of B2B and its Subsidiaries has withheld and paid all Taxes
required to have been withheld and paid in connection with amounts paid or owed
to any employee, independent contractor, creditor, stockholder, or other third
party.
(c) No director or officer (or employee responsible for Tax matters)
of any of B2B and its Subsidiaries expects any authority to assess any
additional Taxes for any period for which Tax Returns have been filed. There is
no dispute or claim concerning any Tax Liability of any of B2B and its
Subsidiaries either (i) claimed or raised by any authority in writing or (ii) as
to which B2B has Knowledge based upon personal contact with any agent of such
authority. Schedule 3.30(c) lists all Tax Returns of B2B and its Subsidiaries
----------------
that have been audited, and indicates those Tax Returns that currently are the
subject of audit. B2B has delivered to IVAX and Diagnostics correct and complete
copies of all Tax Returns, examination reports, and
24
statements of deficiencies assessed against or agreed to by any of B2B and its
Subsidiaries since 1997.
(d) None of B2B and its Subsidiaries has waived any statute of
limitations in respect of Taxes or agreed to any extension of time with respect
to a Tax assessment or deficiency.
(e) None of B2B and its Subsidiaries has filed a Consent under Code
Section 341(f) concerning collapsible corporations.
(f) None of B2B and its Subsidiaries has made any payments, is
obligated to make any payments, or is a party to any Contract that under certain
circumstances could obligate it to make any payments that will not be deductible
under Code Section 280G.
(g) None of B2B and its Subsidiaries has been a United States real
property holding corporation within the meaning of Code Section 897(c)(2) during
the applicable period specified in Code Section 897(c)(1)(A)(ii).
(h) Each of B2B and its Subsidiaries has disclosed on its federal
income Tax Returns all positions taken therein that could give rise to a
substantial understatement of federal income Tax within the meaning of Code
Section 6662.
(i) None of B2B and its Subsidiaries is, or has been, a party to any
Tax allocation or sharing Contract.
(j) With respect to B2B or its Subsidiaries, B2B has made an election
under Treas. Reg. Section 1.502-20(g)(1), if applicable.
(k) None of B2B and its Subsidiaries (i) has been a member of an
Affiliated Group filing a consolidated federal income Tax Return (other than a
group the common parent of which was B2B) or (ii) has any Liability for the
Taxes of any Person (other than any of B2B and its Subsidiaries) under Treas.
Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign
Law), as a transferee or successor, by contract, or otherwise.
(l) B2B will provide a Schedule 3.30(l) within sixty (60) days of the
----------------
date of this Agreement setting forth the following information with respect to
each of B2B and its Subsidiaries (or, in the case of clause (ii), with respect
to each of the Subsidiaries) as of the most recent practicable date (as well as
on an estimated pro forma basis as of the Closing giving effect to the
consummation of the transactions contemplated hereby): (i) the basis of B2B or
its Subsidiary in its assets; (ii) the basis of the stockholder(s) of the
Subsidiary in its stock (or the amount of any Excess Loss Account) determined in
accordance with Treas. Reg. Section 1.1502-32; (iii) the amount of any basis in
its subsidiaries attributable to any "extraordinary gain disposition" or
"duplicated Loss" as defined in Treas. Reg. Section 1.502-20; (iv) the amount of
any net operating loss, net capital loss, unused investment or other credit,
unused foreign Tax, or excess charitable contribution allocable to B2B or its
Subsidiary; and (iv) the amount of any deferred gain or loss allocable to B2B or
its Subsidiary arising out of any Deferred Intercompany Transaction and the
amount of any undistributed earnings and profits of B2B and its Subsidiaries
immediately prior to Closing as defined under Treas. Reg. Section 1.1502.33.
25
(m) The unpaid Taxes of B2B and its Subsidiaries (i) did not, as of
the September 30, 2000 B2B Financial Statements, exceed the reserve for Tax
Liability (rather than any reserve for deferred Taxes established to reflect
timing differences between book and Tax income) set forth on the face of the
September 30, 2000 B2B Financial Statements (rather than in any notes thereto)
and (ii) do not exceed that reserve as adjusted for the passage of time through
the Effective Date in accordance with the past custom and practice of B2B and
its Subsidiaries in filing their Tax Returns.
3.31 B2B Contracts. Schedule 3.31 sets forth a true, correct and complete
------------- -------------
list of the B2B Contracts and indicates the B2B Contacts, if any, to be assumed
by the Surviving Corporation. B2B has provided IVAX and Diagnostics with a true,
correct and complete list of each written B2B Contract and a full and accurate
summary of the terms of any oral B2B Contract. Each B2B Contract is in full
force and effect and neither B2B nor any of its Subsidiaries, nor, to the
Knowledge of B2B, any other party thereto is in material Breach or default
thereunder.
3.32 Intellectual Property.
---------------------
(a) B2B and its Subsidiaries own or have the right to use pursuant
to an Enforceable License or Contract all Intellectual Property necessary or
desirable for the operation of the businesses of B2B and its Subsidiaries as
presently conducted and as presently proposed to be conducted. Each item of
Intellectual Property owned or used by any of B2B and its Subsidiaries
immediately prior to the Effective Date will be owned or available for use by
B2B or the Subsidiary on identical terms and conditions immediately subsequent
to the Effective Date. Each of B2B and its Subsidiaries has taken all necessary
and desirable action to maintain and protect each item of Intellectual Property
that it owns or uses. Schedule 3.32(a) identifies each License, Contract,
----------------
patent, copyright, trademark, service ▇▇▇▇ and domain name which has been issued
to any of B2B and its Subsidiaries, with respect to its Intellectual Property
necessary or desirable for the operation of the businesses of B2B and its
Subsidiaries as presently conducted and as presently proposed to be conducted.
B2B has delivered to IVAX and Diagnostics correct and complete copies of all
such patents, copyrights, trademarks, service marks, and domain names, including
all registrations, applications, renewals, Licenses, and Contracts (as amended
to date) and have made available to IVAX and Diagnostics correct and complete
copies of all other written documentation evidencing ownership and prosecution
(if applicable) of each such item.
(b) To the Knowledge of B2B, none of B2B and its Subsidiaries has
interfered with, infringed upon, misappropriated, or otherwise come into
conflict with any Intellectual Property rights of third parties, and none of the
directors and officers (and employees with responsibility for Intellectual
Property matters) of B2B and its Subsidiaries has ever received any charge,
complaint, claim, demand, or notice alleging any such interference,
infringement, misappropriation, or violation (including any claim that any of
B2B and its Subsidiaries must License or refrain from using any Intellectual
Property rights of any third party). To the Knowledge of B2B, no third party has
interfered with, infringed upon, misappropriated, or otherwise come into
conflict with any Intellectual Property rights of any of B2B and its
Subsidiaries.
26
(c) To the Knowledge of B2B, none of B2B will interfere with,
infringe upon, misappropriate, or otherwise come into conflict with, any
Intellectual Property rights of third parties as a result of the continued
operation of its businesses as presently conducted and as presently proposed to
be conducted that would have a Material Adverse Effect on B2B.
(d) B2B has no Knowledge of any new products, inventions,
procedures, or methods of manufacturing or processing that any competitors or
other third parties have developed which reasonably could be expected to
supersede or make obsolete any product or process of any of B2B and its
Subsidiaries that would have a Material Adverse Effect on B2B.
3.33 State Takeover Laws; Appraisal Rights. B2B has taken all necessary
-------------------------------------
actions to exempt the Merger from (a) Section 203 of the Delaware GCL, (b) any
applicable anti-takeover or similar provisions in B2B's Certificate of
Incorporation or Bylaws, and (c) any anti-takeover or similar provisions set
forth in any B2B Contract. Holders of B2B Common Stock will not have appraisal
rights under Section 262 of the Delaware GCL.
3.34 Reorganization. As of the date of this Agreement, B2B has no
--------------
Knowledge of any reason why the Merger will fail to qualify as a reorganization
under Section 368(a) of the Code.
3.35 Termination of Business. As of the Effective Date, B2B has no
-----------------------
material liabilities (known, asserted, absolute, accrued, liquidated or due)
other than as set forth on the B2B Effective Date Balance Sheet. B2B can
terminate its existing business, including all B2B Contracts and the B2B website
(▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇), at any time without incurring any material liabilities
-----------------
(known, asserted, absolute, accrued, liquidated or due).
3.36 Foreign Corrupt Practices Act Compliance. Neither B2B nor its
----------------------------------------
Subsidiaries has, directly or indirectly, in connection with B2B or its
Subsidiaries' business, made or agreed to make any payment to any Person
connected with or related to any government or Agency, except payments or
contributions required or allowed by applicable Law. The internal accounting
controls and procedures of B2B and its Subsidiaries are sufficient to cause B2B
and its Subsidiaries to comply with the Foreign Corrupt Practices Act
3.37 Disclosure. No representation or warranty of B2B herein (including
----------
the exhibits and schedules hereto), and no statement, report, or certificate
furnished or to be furnished by or on behalf of B2B or its agents pursuant
hereto, contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary in order to make the
statements contained herein or therein, in light of the circumstances under
which such statements are made, not misleading.
ARTICLE 4.
Representations and Warranties of IVAX and Diagnostics
In order to induce B2B to enter into this Agreement and the Plan of Merger
and to consummate the transactions contemplated hereby and thereby, IVAX and
Diagnostics hereby, jointly and severally, represent and warrant to B2B that the
representations and warranties contained in this Article 4 are true, correct and
---------
complete as of the date of this Agreement and will be true, correct and complete
as of the Effective Time (as though made then and, except as
27
expressly provided in a representation or warranty, as though the Effective Time
were substituted for the date of this Agreement).
4.1 Organization, Standing and Power. Each of Diagnostics and IVAX is a
--------------------------------
corporation duly organized, validly existing and its status is active under the
Laws of the State of Florida and has all requisite right, power and authority to
enter into this Agreement and the Plan of Merger and to consummate the
transactions contemplated hereby and thereby.
4.2 Authorization of Agreement; Enforceability. The execution, delivery
------------------------------------------
and performance of this Agreement and the Plan of Merger by each of Diagnostics
and IVAX and the consummation of the transactions contemplated hereby and
thereby have been duly and effectively authorized by all requisite corporate
action on the part of Diagnostics and IVAX. All Consents relating to the Merger,
this Agreement and the transactions contemplated thereby and hereby will be
obtained prior to the Effective Time and will be in full force and effect at the
Effective Time, except where the failure to obtain such Consent would not have a
Material Adverse Effect on Diagnostics or any of its Subsidiaries. This
Agreement and the Plan of Merger constitute an Enforceable obligation of each of
Diagnostics and IVAX.
4.3 No Violation or Conflict. The execution, delivery and performance of
------------------------
this Agreement and the Plan of Merger by Diagnostics and IVAX, and the
consummation of the transactions contemplated hereby and thereby, and compliance
by Diagnostics and IVAX with the provisions hereof and thereof (a) do not and
will not violate or conflict with any Law or any Order or any term or provision
of the Articles of Incorporation or Bylaws (or other organizational documents)
of Diagnostics or any of its Subsidiaries 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 Breach or require any Consent under or result in the creation of
any Encumbrance upon any property or assets of Diagnostics or any of its
Subsidiaries under any Contract to which Diagnostics or any of its Subsidiaries
is a party or by which Diagnostics or any of its Subsidiaries or any of their
respective properties may be bound or affected, except (i) for those Contracts
as to which Consent shall have been obtained at or prior to the Effective Time
or (ii) where the failure to obtain such Consent would not have a Material
Adverse Effect on Diagnostics or any of its Subsidiaries.
4.4 Articles of Incorporation, Bylaws and Minute Books. A true and
--------------------------------------------------
complete copy of the Articles of Incorporation (as amended and in effect),
Bylaws (as amended and in effect) and minute books of Diagnostics and each of
its Subsidiaries have been delivered by Diagnostics to B2B, except for Delta's
organizational documents which have been made available to B2B. The minute books
of Diagnostics and each of its Subsidiaries in the form supplied to (or in the
case of Delta, made available) B2B are complete and accurate in all material
respects and have embodied therein copies of all minutes of all meetings and all
actions by written Consent of the Board of Directors of Diagnostics and each of
its Subsidiaries, any committee thereof, the incorporators and the stockholders
of Diagnostics and each of its Subsidiaries from the dates of their respective
incorporation or organization to the date of this Agreement, and such minutes
and actions by written Consent accurately reflect all material actions taken by
the Board of Directors of Diagnostics or any of its Subsidiaries, any committees
thereof, the incorporators and the stockholders during such periods. All actions
of Diagnostics or any of its Subsidiaries from the dates of their respective
incorporations or organizations to the date of this Agreement that
28
required the approval of the directors or stockholders of Diagnostics or such
Subsidiaries, as the case may be, have been so approved.
4.5 Consent of Governmental Authorities. Other than (a) in connection with
-----------------------------------
or in compliance with the Delaware GCL, the Florida BCA, the Exchange Act, the
Securities Act and the state securities Laws of any jurisdiction and (b)
notification pursuant to, and expiration or termination of the waiting period
under the HSR Act, if required, no Consent of any Agency is required in
connection with the execution, delivery or performance by Diagnostics or IVAX of
this Agreement or the Plan of Merger or the consummation by Diagnostics or IVAX
of the transactions contemplated hereby or thereby.
4.6 Diagnostics Financial Statements. Diagnostics has delivered to B2B
--------------------------------
true and complete copies of (i) the audited balance sheets of Diagnostics as of
December 31, 1997, December 31, 1998 and December 31, 1999 and the related
statements of operations, changes in stockholder's equity, and cash flows for
the years then ended and (ii) the unaudited balance sheet of Diagnostics dated
as of September 30, 2000 and the related statements of operations, changes in
stockholder's equity and cash flows for the nine months then ended
(collectively, the "Diagnostics Financial Statements") present fairly, in all
material respects, the consolidated financial position, results of operations,
and cash flows of Diagnostics and its Subsidiaries (subject, in the case of
unaudited statements, to normal recurring year-end audit adjustments and the
omission of certain footnote disclosure). The Diagnostics Financial Statements
and supporting schedules were prepared in all material respects: (a) in
accordance with Regulation S-X promulgated by the Commission, (b) in conformity
with GAAP applied on a consistent basis and (c) from the books and records of
Diagnostics and its Subsidiaries. The Diagnostics Financial Statements comply as
to form with the requirements of Regulation S-X promulgated by the Commission in
all material respects.
4.7 Absence of Undisclosed Liabilities. Except as set forth on Schedule
----------------------------------
4.7, neither Diagnostics nor any of its Subsidiaries has, and there is no Basis
for assertion against Diagnostics or any of its Subsidiaries of, any material
Liability, which is not included, disclosed or noted in the September 30, 2000
Diagnostics Financial Statements, except for the Transaction Expenses of
Diagnostics incurred in accordance with the provisions of this Agreement and as
set forth in Schedule 4.7 and any non-material Liabilities incurred since
------------
September 30, 2000 in the Ordinary Course of Business to Persons not Affiliates
of Diagnostics or any of its Subsidiaries (none of which result from, arise out
of, relates to, is in the nature of, or was caused by a Breach of Contract,
Breach of warranty, tort, infringement or violation of Law). Schedule 4.7 and
------------
the Diagnostic Effective Date Balance Sheet set forth all of the material
liabilities (known, asserted, absolute, accrued, liquidated or due) of
Diagnostics and its Subsidiaries.
4.8 Receivables. All Receivables of Diagnostics and its Subsidiaries are
-----------
accurately reflected on the September 30, 2000 Diagnostics Financial Statements,
and are valid, bona fide and binding claims arising in the Ordinary Course of
the Business, subject to reserves for bad debt set forth in the September 30,
2000 Diagnostics Financial Statements. No Receivables have been factored.
4.9 Product Warranty. Each product of Diagnostics and its Subsidiaries has
----------------
manufactured, sold, leased, or delivered has been in conformity, in all material
respects, with all
29
applicable Law, Contracts, and all express and implied warranties, and, to the
Knowledge of IVAX and Diagnostics, neither Diagnostics or its Subsidiaries has
any Liability (and there is no Basis for any present or future Action against
any of them giving rise to any Liability) for replacement or repair thereof or
other Damages in connection therewith. No product designed, manufactured, sold,
leased, or delivered by Diagnostics or its Subsidiaries is subject to any
guaranty, warranty, or other indemnity beyond the applicable terms and
conditions of sale or lease by Diagnostics or its Subsidiaries. True and correct
copies of the terms and conditions of sale or lease for Diagnostics and its
Subsidiaries (containing applicable guaranty, warranty, and similar Liability
indemnity provisions) have been delivered to B2B.
4.10 Product Liability. Neither Diagnostics nor its Subsidiaries has
-----------------
received any written notice of or any written information as to any Liability
(and there is no Basis for any present or future Action against any of them
giving rise to any Liability) arising out of any injury to individuals or
property as a result of the ownership, possession, or use of any product
designed, manufactured, sold, leased or delivered by Diagnostics or its
Subsidiaries.
4.11 Subsidiaries. Set forth on Schedule 4.11 is a list of each, direct or
------------ -------------
indirect, Subsidiary of Diagnostics, including (a) its name and jurisdiction of
organization, (b) the number of authorized shares of each class of its capital
stock or equity interest, (c) the number of issued and outstanding shares of
each class of its capital stock or equity interest and (d) the names of each of
its directors and officers, managers or general or managing partners. All of the
capital stock or equity interests of each Subsidiary of Diagnostics have been
duly authorized and are validly issued, fully paid and nonassessable, and are
owned by Diagnostics. There are no commitments with respect to any capital stock
or equity interests of any Subsidiary of Diagnostics. Except as set forth on
Schedule 4.11, Diagnostics owns no capital stock or equity interests in any
-------------
Person. Each Subsidiary of Diagnostics is duly organized, validly existing, and
in good standing under the Laws of the jurisdiction of its organization and has
all necessary corporate power to own its properties and assets and to carry on
its business as presently conducted. Each Subsidiary of Diagnostics is duly
qualified to conduct business as a foreign corporation and is in good standing
in each jurisdiction in which the nature of the business transacted by it
requires such qualification, except where any such failure would not have a
Material Adverse Effect.
4.12 Compliance with Laws. Except as set forth in Schedule 4.12,
-------------------- -------------
Diagnostics and each of its Subsidiaries has conducted its business in
compliance, in all material respects, with all applicable Laws and Orders
including Environmental Laws, Food and Drug Administration and related Laws,
Laws relating to disclosure, equal employment, foreign corrupt practices,
antitrust, product quality, discrimination, employment and health and safety,
and no Action or notice thereof has been filed or commenced or notice of any
Action has been filed, or to the Knowledge of IVAX or Diagnostics, Threatened to
be filed or commenced, against any of them alleging any failure to so comply.
4.13 Brokers and Finders. Except as set forth on Schedule 4.13, neither
------------------- -------------
Diagnostics nor any of its Subsidiaries or Affiliates of Diagnostics has
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 to any other Person in connection with the transactions
contemplated by this Agreement.
30
4.14 Capitalization. The authorized capital stock of Diagnostics
--------------
consists solely of 30,000,000 shares of Diagnostics Common Stock, of which
14,600,000 shares are issued and outstanding as of the date of this Agreement.
All of the issued and outstanding shares of Diagnostics Common Stock have been
duly authorized and validly issued and are credited as fully paid and non-
assessable, with no personal Liability attaching to the ownership thereof. No
class of equity securities of Diagnostics exists other than the stock noted
above. All voting rights with respect to Diagnostics are vested exclusively in
the Diagnostics Common Stock. No securities issued by Diagnostics from the date
of its incorporation to the date of this Agreement were issued in violation of
the preemptive rights of any Person. All material Licenses and Consents required
to be obtained from or effected with any Person in connection with all issuances
of securities of Diagnostics since the date of its incorporation have been
obtained or effected and all securities of Diagnostics have been issued in
accordance with the provisions of all applicable securities and other Laws.
4.15 Beneficial Owners; Commitments. IVAX is the sole record and
------------------------------
Beneficial Owner of all of the issued and outstanding Diagnostics Common Stock,
free and clear of any Encumbrances or Commitments. Schedule 4.15 set forth all
-------------
of the Commitments relating to any capital stock of Diagnostics (listing in the
holder of the Commitment, date of grant, the expiration date, the exercise
price, a description of any anti-dilution or change of Control provisions and
all other material provisions).
4.16 Real Property; Leases.
---------------------
(a) Schedule 4.16(a) lists and describes briefly all real property
----------------
owned by any of Diagnostics and its Subsidiaries. With respect to each such
parcel of owned real property and except as set forth on Schedule 4.16:
-------------
(i) the identified owner has good and marketable title to
the parcel of real property, free and clear of any Encumbrance, or
other restriction, except for installments of special assessments
not yet delinquent and recorded Encumbrances and other restrictions
which do not materially impair the current use or occupancy, or
impair the value (in excess of the Basket Limitation) or the
marketability of title, of the property subject thereto;
(ii) there are no pending or, to the Knowledge of IVAX and
Diagnostics, Threatened condemnation Actions relating to the
property or other matters affecting materially and adversely the
current use, occupancy, or value thereof;
(iii) the legal description for the parcel contained in the
deed thereof describes such parcel fully and adequately, the
buildings and improvements are located within the boundary lines of
the described parcels of land, are not, to the Knowledge of IVAX and
Diagnostics, in violation of applicable setback requirements, zoning
Laws (and none of the properties or buildings or improvements
thereon are subject to "permitted non-conforming use" or "permitted
non-conforming structure" classifications), and do not encroach on
any easement which may burden the land, and the land does not serve
any adjoining
31
property for any purpose inconsistent with the use of the land, and
the property is not located within any flood plain or subject to any
similar type restriction for which any Licenses necessary to the use
thereof have not been obtained;
(iv) all facilities have received all material approvals of
all Agencies (including Licenses) required in connection with the
ownership or operation thereof and have been operated and maintained
in accordance with applicable Laws;
(v) there are no Contracts granting to any party or parties
the right of use or occupancy of any portion of the parcel of real
property;
(vi) there are no outstanding Commitments to purchase the
parcel of real property, or any portion thereof or interest therein;
and
(vii) to the Knowledge of IVAX and Diagnostics, there are no
parties (other than Diagnostics and its Subsidiaries) in possession
of the parcel of real property, other than tenants under any leases
disclosed in Schedule 4.16(a)(vii) who are in possession of space to
--------------------
which they are entitled/
(b) Schedule 4.16(b) lists and describes briefly all real property
---------------
leased or subleased to any of Diagnostics and its Subsidiaries. Diagnostics has
delivered to B2B correct and complete copies of the leases and subleases listed
in Schedule 4.16(b) (each as amended to date). With respect to each lease and
---------------
sublease listed in Schedule 4.16(b) and except as set forth on Schedule 4.16:
--------------- -------------
(i) the lease or sublease is Enforceable and in full force
and effect;
(ii) the lease or sublease will continue to be Enforceable,
and in full force and effect, on identical terms following the
consummation of the transactions contemplated hereby;
(iii) to the Knowledge of IVAX and Diagnostics, no party to
the lease or sublease is in material Breach, and no event has
occurred which, with notice or lapse of time, would constitute a
material Breach thereunder;
(iv) to the Knowledge of IVAX and Diagnostics, no party to
the lease or sublease has repudiated any provision thereof;
(v) there are no disputes, oral Contracts, or forbearances
in effect as to the lease or sublease;
(vi) none of the Diagnostics and its Subsidiaries is a party
to any Sublease;
(vii) none of Diagnostics and its Subsidiaries has assigned,
transferred, conveyed, mortgaged, deeded in trust, or Encumbered any
interest in the leasehold or subleasehold; and
32
(viii) all facilities leased or subleased thereunder have
received all material approvals of all Agencies (including Licenses)
required in connection with the operation thereof and have been
operated and maintained in accordance with applicable Laws.
4.17 Title to Personal Property. Except as set forth on Schedule 4.17,
-------------------------- -------------
Diagnostics and its Subsidiaries have good and marketable title, free and clear
of any Encumbrances, to each material item of personal property, tangible and
intangible, as reflected on the September 30, 2000 Diagnostics Financial
Statements and to each material item of personal property, tangible and
intangible, acquired since September 30, 2000 (other than non-material property
disposed of in the Ordinary Course of Business since September 30, 2000 to
Persons who are not Affiliates of Diagnostics or any of its Subsidiaries).
Except for leasehold interests and other leased properties identified on
Schedule 4.16(b) or 4.17, there are no assets owned by any third party which are
------------------------
necessary to the operations of the business of Diagnostics and its Subsidiaries
as presently conducted. Each such tangible asset is free from material defects
(patent and latent), has been maintained in accordance with normal industry
practice, is in operating condition (subject to normal wear and tear), and is
suitable for the purposes for which it is currently used.
4.18 Insurance. Diagnostics maintains (or IVAX maintains on behalf of
---------
Diagnostics, whether through self insurance or otherwise) liability (including
product liability), casualty, property loss, worker's compensation and other
insurance coverage with respect to the conduct of Diagnostics and its
Subsidiaries' respective businesses, in such insurance amounts and under terms
and conditions, as required by applicable Law and as IVAX or Diagnostics deems
reasonably necessary. Diagnostics (or IVAX on behalf of Diagnostics) has, with
respect to insurance policies issued by third parties, paid all premiums with
respect thereto covering all periods up to and including the date of this
Agreement (other than retroactive premiums which may be payable with respect to
worker's compensation insurance policies or accrued premiums not yet due and
payable), and no written notice of cancellation or termination has been received
by IVAX with respect to any such policy and there exists no Basis for any such
termination or cancellation. Except as set forth in Schedule 4.18, none of such
-------------
policies are subject to any retroactive premium adjustment feature; provided,
however, the Surviving Corporation will have no Liability with respect to any
such retroactive premiums in excess of the Basket Limitation. To the Knowledge
of Diagnostics, neither Diagnostics or its Subsidiaries nor any other party to
an insurance policy of Diagnostics or its Subsidiaries is in default or Breach,
and to the Knowledge of Diagnostics, no event has occurred which, with notice as
the lapse of time, would constitute such a Breach or default or permit
termination, modification or acceleration, under such policy. Diagnostics has
provided B2B true and correct summaries of the material terms and conditions of
all of its insurance policies.
4.19 Employment Contracts. Except as set forth on Schedule 4.19, there
-------------------- -------------
are no employment, indemnification, consulting, severance or other similar
Contracts between Diagnostics or any of its Subsidiaries and any of their
respective officers, directors, consultants or employees (the "Diagnostics
Employment Contracts"). Except as set forth on Schedule 4.19, none of the
-------------
Diagnostics Employment Contracts contain any "change of Control," severance or
other provisions pursuant to which any of the benefits of any other party
thereto will be increased or the vesting of any such benefits will be
accelerated by the consummation of any of the transactions contemplated by this
Agreement or pursuant to which the value of any such
33
benefits will be calculated on the Basis of any of the transactions contemplated
by this Agreement. To the Knowledge of IVAX and Diagnostics, no executive, key
employee, or group of employees has any plans to terminate employment with any
of Diagnostics and its Subsidiaries. Except as set forth on Schedule 4.19, none
-------------
of Diagnostics and its Subsidiaries is a party to or bound by any collective
bargaining Contract, nor has any of them experienced any strikes, grievances,
claims of unfair labor practices, or other collective bargaining disputes. None
of Diagnostics and its Subsidiaries has committed any unfair labor practice.
Diagnostics has no Knowledge of any organizational effort presently being made
or Threatened by or on behalf of any labor union with respect to employees of
any of Diagnostics and its Subsidiaries.
4.20 Employee Benefits.
-----------------
(a) Schedule 4.20 lists each Employee Benefit Plan that any of
-------------
Diagnostics or a Subsidiary of Diagnostics maintains or to which it contributes.
Subsections 4.20(b) through (j) apply to each Employee Benefit Plan that any of
Diagnostics or a Subsidiary of Diagnostics or any ERISA Affiliate of Diagnostics
or a Subsidiary of Diagnostics maintains or to which any of Diagnostics or a
Subsidiary of Diagnostics or any ERISA Affiliate of Diagnostics or a Subsidiary
of Diagnostics contributes.
(b) Each such Employee Benefit Plan (and each related trust,
insurance contract, or fund) complies in form and in operation in all material
respects with its terms and with the applicable requirements of ERISA, the Code,
and other applicable Laws.
(c) All required reports and descriptions (including Form 5500
Annual Reports, Summary Annual Reports, PBGC-l's, and Summary Plan Descriptions)
have been filed or distributed appropriately with respect to each such Employee
Benefit Plan. The requirements of Part 6 of Subtitle B of Title I of ERISA and
of Code Section 4980B have been met with respect to each such Employee Benefit
Plan that is an Employee Welfare Benefit Plan to which such requirements apply.
(d) All contributions (including all employer contributions and
employee salary reduction contributions) which are due have been paid to each
such Employee Benefit Plan which is an Employee Pension Benefit Plan and all
contributions for any period ending on or before the Effective Date which are
not yet due have been paid to each such Employee Pension Benefit Plan or accrued
in accordance with the past custom and practice of Diagnostics and its
Subsidiaries. No "accumulated funding deficiency" (for which a Tax is due or
would be due in the absence of a waiver), as such terms is defined in ERISA
Section 302(a)(2) or Code Section 412, has been incurred with respect to any
such Employee Benefit Plan that is an Employee Pension Benefit Plan, whether or
not waived. All premiums or other required payments which are due for all
periods ending on or before the Effective Date have been paid with respect to
each such Employee Benefit Plan that is an Employee Welfare Benefit Plan.
(e) Each Employee Pension Benefit Plan which is intended to qualify
under Section 401(a) of the Code does so qualify, and each related trust
qualifies under Section 501(a) of the Code, and each such Employee Pension
Benefit Plan is the subject of a favorable determination letter from the IRS.
Nothing has occurred to impair such determination, subject to the ability of the
employer that sponsors such Employee Pension Benefit Plan to amend such
34
plan, within its "remedial amendment period", or as otherwise provided by the
IRS, to comply with recent law changes."
(f) The market value of assets under each such Employee Benefit Plan
that is an Employee Pension Benefit Plan (other than any Multiemployer Plan)
equals or exceeds the present value of all "benefit liabilities," as such terms
is defined in ERISA Section 4001(a)(16), thereunder determined in accordance
with PBGC methods, factors, and assumptions applicable to an Employee Pension
Benefit Plan terminating on the date for determination.
(g) Diagnostics has delivered, or will upon request deliver, to B2B
correct and complete copies of the plan documents and summary plan descriptions,
the most recent determination letter received from the IRS, the most recent Form
5500 Annual Report, and all related trust Contracts, insurance Contracts, and
other funding Contracts which implement each such Employee Benefit Plan.
(h) With respect to each Employee Benefit Plan that any of
Diagnostics, a Subsidiary of Diagnostics, or any ERISA Affiliate of Diagnostics
or a subsidiary of Diagnostics maintains or ever has maintained or to which any
of them contributes, ever has contributed, or ever has been required to
contribute:
(i) no such Employee Benefit Plan which is an Employee Pension
Benefit Plan described in Title IV of ERISA (other than any
Multiemployer Plan) has been completely or partially terminated or
been the subject of a Reportable Event as to which notices would be
required to be filed with the PBGC;
(ii) no proceeding by the PBGC to terminate any Employee Pension
Benefit Plan described in Title IV of ERISA (other than any
Multiemployer Plan) has been instituted or, to the Knowledge of
Diagnostics, Threatened;
(iii) there have been no Prohibited Transactions with respect to
any such Employee Benefit Plan;
(iv) no Fiduciary has any Liability for Breach of fiduciary duty
or any other failure to act or comply in connection with the
administration or investment of the assets of any such Employee
Benefit Plan. No Action with respect to the administration or the
investment of the assets of any such Employee Benefit Plan (other than
routine claims for benefits) is pending or, to the Knowledge of
Diagnostics, Threatened;
(v) to the Knowledge of IVAX and Diagnostics, there is no Basis
for any such Action described in (iv) above; and
(vi) none of Diagnostics or its Subsidiaries has incurred, and
has any reason to expect that any of Diagnostics and its Subsidiaries
will incur, any Liability to the PBGC (other than PBGC premium
payments) or otherwise under Title IV of ERISA (including any
withdrawal Liability) or under the Code with respect to any such
Employee Benefit Plan which is an Employee Pension Benefit Plan.
35
(i) None of Diagnostics, its Subsidiaries, or any ERISA Affiliate of
Diagnostics or a Subsidiary of Diagnostics contributes to, ever has contributed
to, or ever has been required to contribute to any Multiemployer Plan or has any
Liability (including withdrawal Liability) under any Multiemployer Plan.
(j) None of Diagnostics or its Subsidiaries maintains or ever has
maintained or contributes, ever has contributed, or ever has been required to
contribute to any Employee Welfare Benefit Plan providing medical, health, or
life insurance or (other welfare-type benefits for current or future retired or
terminated employees, their spouses, or their dependents as required under Code
Section 4980B). No Employee Welfare Benefit Plan which Diagnostics or any of its
Subsidiaries maintains or ever has maintained or to which any of them
contributes, ever has contributed, or ever has been required to contribute is a
"multiple employer welfare arrangement," as such term is defined in ERISA
Section 3(40).
4.21 Guaranties. None of Diagnostics and its Subsidiaries is a guarantor
----------
or otherwise is responsible for any Liability (including indebtedness) of any
other Person.
4.22 Environmental, Health, and Safety Matters.
-----------------------------------------
(a) Each of Diagnostics, its Subsidiaries, and their respective
predecessors has, in a material respect, complied and is in compliance with all
Environmental Laws.
(b) Without limiting the generality of Section 4.22(a), each of
--------------
Diagnostics, its Subsidiaries has obtained, has complied with, and is in
compliance with all material Licenses and other material authorizations that are
required pursuant to Environmental Laws for the occupation of its facilities and
the operation of its business. A list of all such Licenses and other
authorizations is set forth in Schedule 4.22(b).
---------------
(c) Except as set forth on Schedule 4.22(c), neither Diagnostics,
---------------
its Subsidiaries, nor any of their respective predecessors has received any
written or oral notice, report or other information regarding any actual or
alleged violation of Environmental Laws, or any Liabilities or potential
Liabilities including any investigatory, remedial or corrective obligations,
relating to any of them or its facilities arising under Environmental Laws.
(d) Except as set forth on Schedule 4.22(d), none of the following
---------------
exists at any property or facility owned or operated by Diagnostics or its
Subsidiaries: (i) underground storage tanks, (ii) asbestos containing material
in any form or condition (except as permitted by and in accordance with Law),
(iii) materials or equipment containing polychlorinated biphenyls, or (iv)
landfills, surface impoundments, or disposal areas.
(e) None of Diagnostics, its Subsidiaries, or their respective
predecessors has treated, stored, disposed of, arranged for or permitted the
disposal of, transported, handled, or released any substance, including any
hazardous substance, or owned or operated any property or facility (and no such
property or facility is contaminated by any such substance) in a manner that has
given or would give rise to Liabilities, including any Liability for response
costs, corrective action costs, personal injury, property damage, natural
resources damages or attorney fees, pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the Solid Waste
Disposal Act, as amended, or any other Environmental Laws.
36
(f) To the Knowledge of IVAX and Diagnostics, neither this Agreement
nor the consummation of the transaction that is the subject of this Agreement
will result in any obligations for site investigation or cleanup, or
notification to or Consent of government agencies or third parties, pursuant to
any of the so-called "transaction-triggered" or "responsible property transfer"
Environmental Laws.
(g) Neither Diagnostics, its Subsidiaries, nor any of their
respective predecessors has, either expressly or by operation of Law, assumed or
undertaken any Liability, including any obligation for corrective or remedial
action, of any other Person relating to Environmental Laws.
(h) Except as set forth in Schedule 4.22(h), no facts, events or
---------------
conditions relating to the past or present facilities, properties or operations
of Diagnostics, its Subsidiaries, or any of their respective predecessors will
prevent, hinder or limit continued compliance with Environmental Laws, give rise
to any investigatory, remedial or corrective obligations pursuant to
Environmental Laws, or give rise to any other Liabilities pursuant to
Environmental Laws, including any relating to onsite or offsite releases or
Threatened Releases of hazardous materials, substances or wastes, personal
injury, property damage or natural resources damage.
4.23 Litigation. Except as set forth on Schedule 4.23, there are no
---------- -------------
Actions pending, or, to the best of Diagnostic's Knowledge, directly or
indirectly, Threatened, against or affecting Diagnostics or any of its
Subsidiaries or any officer, director or employee of Diagnostics or any of its
Subsidiaries in their respective capacities as such. Neither Diagnostics nor any
of its Subsidiaries is in violation or in default of any Order of any Court or
Agency.
4.24 Absence of Changes. Except as set forth on Schedule 4.24, since
------------------ -------------
September 30, 2000 Diagnostics has conducted its business only in the Ordinary
Course of Business and there has not occurred any Material Adverse Change in the
condition (financial or otherwise), results of operations, properties, assets,
Liabilities, business, operations or prospects of Diagnostics or any of its
Subsidiaries, and, since September 30, 2000, neither Diagnostics nor any of its
Subsidiaries has (a) incurred any material Liabilities, (b) voluntarily or
involuntarily sold, transferred, surrendered, abandoned or disposed of any of
its material assets or property rights (tangible or intangible), (c) granted any
increase in the compensation payable or to become payable to officers or
employees (including any bonus payments or payments pursuant to any pension,
profit-sharing plan or other Diagnostics Employee Benefit Plan or commitment),
(d) incurred, assumed or taken any property subject to any Liability, (e)
materially altered the manner of keeping the books, accounts or records of
Diagnostics, or materially changed in any manner the accounting practices
therein reflected other than alterations or changes required by GAAP or
applicable Law, (f) amended its Articles of Incorporation or Bylaws in any
material respect, (g) canceled, waived or released any material debts, rights or
claims, (h) amended or terminated any Diagnostics Contract, or (i) entered into
any Diagnostics Employment Contract, except for those referred to on Schedule
--------
4.24. IVAX and Diagnostics have a Basis to believe that Diagnostics will have
----
cash and cash equivalents of at least $2,000,000 at the Effective Time.
37
4.25 Tax Matters.
-----------
(a) Except as set forth in Schedule 4.25(a): each of Diagnostics and
---------------
its Subsidiaries has timely filed all Tax Returns that it was required to file;
all such Tax Returns were correct and complete in all material respects; all
Taxes owed by any of Diagnostics and its Subsidiaries (whether or not shown on
any Tax Return) have been paid; all Taxes which may be owed by Diagnostics
(whether or not shown on any Tax Return) and which may be payable between the
date of this Agreement and the Effective Date will be timely paid in full; none
of Diagnostics and its Subsidiaries currently is the beneficiary of any
extension of time within which to file any Tax Return; no claim has ever been
made by an authority in a jurisdiction where any of Diagnostics and its
Subsidiaries does not file Tax Returns that it is or may be subject to taxation
by that jurisdiction; and, there are no Encumbrances on any of the assets of any
of Diagnostics and its Subsidiaries that arose in connection with any failure
(or alleged failure) to pay any Tax.
(b) Each of Diagnostics and its Subsidiaries has withheld and paid
all Taxes required to have been withheld and paid in connection with amounts
paid or owed to any employee, independent contractor, creditor, stockholder, or
other third party.
(c) No director or officer (or employee responsible for Tax matters)
of any of Diagnostics and its Subsidiaries expects any authority to assess any
additional Taxes for any period for which Tax Returns have been filed. There is
no dispute or claim concerning any Tax Liability of any of Diagnostics and its
Subsidiaries either (i) claimed or raised by any authority in writing or (ii) as
to which Diagnostics has Knowledge based upon personal contact with any agent of
such authority. Schedule 4.25(c) lists all Tax Returns that have been audited,
---------------
and indicates which of those Tax Returns that currently are the subject of
audit. Diagnostics has delivered to B2B correct and complete copies of all Tax
Returns, examination reports, and statements of deficiencies assessed against or
agreed to by any of Diagnostics and its Subsidiaries since 1997.
(d) Except as set forth on Schedule 4.25(d), none of Diagnostics and
---------------
its Subsidiaries has waived any statute of limitations in respect of Taxes or
agreed to any extension of time with respect to a Tax assessment or deficiency.
(e) None of Diagnostics and its Subsidiaries has filed a Consent
under Code Section 341(f) concerning collapsible corporations.
(f) None of Diagnostics and its Subsidiaries has made any payments,
is obligated to make any payments, or is a party to any Contract that under
certain circumstances could obligate it to make any payments that will not be
deductible under Code Section 280G.
(g) None of Diagnostics and its Subsidiaries has been a United
States real property holding corporation within the meaning of Code Section
897(c)(2) during the applicable period specified in Code Section
897(c)(1)(A)(ii).
(h) Each of Diagnostics and its Subsidiaries has disclosed on its
federal income Tax Returns all positions taken therein that could give rise to a
substantial understatement of federal income Tax within the meaning of Code
Section 6662.
38
(i) None of Diagnostics and its Subsidiaries is, or has been, a
party to any Tax allocation or sharing Contract.
(j) With respect to Diagnostics or its Subsidiaries, IVAX has made
no election under Treas. Reg. Section 1.1502-20(g)(1).
(k) None of Diagnostics and its Subsidiaries (i) has been a member
of an Affiliated Group filing a consolidated federal income Tax Return (other
than a group the common parent of which was IVAX or Diagnostics) or (ii) has any
Liability for the Taxes of any Person (other than any of Diagnostics and its
Subsidiaries) under Treas. Reg. Section 1.1502-6 (or any similar provision of
state, local, or foreign Law), as a transferee or successor, by contract, or
otherwise.
(l) Schedule 4.25(l) sets forth with respect to Diagnostics and each
---------------
of its Subsidiaries a reasonable estimate of the basis of the stockholders of
the Subsidiary in its stock as of the date of this Agreement. Additionally, IVAX
will provide a revised Schedule 4.25(l) within sixty (60) days of the date of
---------------
this Agreement setting forth the following information with respect to each of
Diagnostics and its Subsidiaries (or, in the case of clause (ii), with respect
to each of the Subsidiaries) as of the most recent practicable date (as well as
on an estimated pro forma basis as of the Closing giving effect to the
consummation of the transactions contemplated hereby): (i) the basis of
Diagnostics or its Subsidiary in its assets; (ii) the basis of the
stockholder(s) of the Subsidiary in its stock (or the amount of any Excess Loss
Account) determined in accordance with Treas. Reg. Section 1.1502-32; (iii) the
amount of any basis in its subsidiaries attributable to any "extraordinary gain
disposition" or "duplicated loss" as defined in Treas. Reg. Section 1.1502-20;
(iv) the amount of any net operating loss, net capital loss, unused investment
or other credit, unused foreign Tax, or excess charitable contribution allocable
to Diagnostics or its Subsidiary; and (iv) the amount of any deferred gain or
loss allocable to Diagnostics or its Subsidiary arising out of any Deferred
Intercompany Transaction and the amount of any undistributed earnings and
profits of Diagnostics and its Subsidiaries immediately prior to Closing as
defined under Treas. Reg. Section 1.1502.33.
(m) The unpaid Taxes of Diagnostics and its Subsidiaries (i) did
not, as of the September 30, 2000 Diagnostics Financial Statements, exceed the
reserve for Tax Liability (rather than any reserve for deferred Taxes
established to reflect timing differences between book and Tax income) set forth
on the face of the September 30, 2000 Diagnostics Financial Statements (rather
than in any notes thereto) and (ii) do not exceed that reserve as adjusted for
the passage of time through the Effective Date in accordance with the past
custom and practice of Diagnostics and its Subsidiaries in filing their Tax
Returns.
4.26 Diagnostics Contracts. Schedule 4.26 sets forth a true, correct and
--------------------- -------------
complete list of the Diagnostics Contracts and indicates the Diagnostics
Contracts that will terminate as a result of the Merger. Diagnostics has
provided B2B with a true, correct and complete list of each written Diagnostics
Contract and a full and accurate summary of the terms of any oral Diagnostics
Contract. Each Diagnostics Contract is in full force and effect and neither
Diagnostics nor any of its Subsidiaries, nor, to the Knowledge of Diagnostics,
any other party thereto is in material Breach or default thereunder.
39
4.27 Intellectual Property.
---------------------
(a) Diagnostics and its Subsidiaries own or have the right to use
pursuant to an Enforceable License or Contract all Intellectual Property
necessary or desirable for the operation of the businesses of Diagnostics and
its Subsidiaries as presently conducted and as presently proposed to be
conducted. Each item of Intellectual Property owned or used by any of
Diagnostics and its Subsidiaries immediately prior to the Effective Date will be
owned or available for use by Diagnostics or the Subsidiary on identical terms
and conditions immediately subsequent to the Effective Date. Each of Diagnostics
and its Subsidiaries has taken all necessary and desirable action to maintain
and protect each item of Intellectual Property that it owns or uses. Schedule
4.27(a) identifies each License, Contract, patent, copyright, trademark and
------
service ▇▇▇▇ which has been issued to any of Diagnostics and its Subsidiaries,
with respect to its Intellectual Property necessary or desirable for the
operation of the businesses of Diagnostics and its Subsidiaries as presently
conducted and as presently proposed to be conducted. Diagnostics has delivered
to B2B correct and complete copies of all such patents, copyrights, trademarks
and service marks, including all registrations, applications, renewals,
Licenses, and Contracts (as amended to date) and have made available to B2B
correct and complete copies of all other written documentation evidencing
ownership and prosecution (if applicable) of each such item.
(b) Except as set forth on Schedule 4.27(b), to the Knowledge of
---------------
IVAX and Diagnostics, none of Diagnostics and its Subsidiaries has interfered
with, infringed upon, misappropriated, or otherwise come into conflict with any
Intellectual Property rights of third parties, and none of the directors and
officers (and employees with responsibility for Intellectual Property matters)
of Diagnostics and its Subsidiaries has ever received any charge, complaint,
claim, demand, or notice alleging any such interference, infringement,
misappropriation, or violation (including any claim that any of Diagnostics and
its Subsidiaries must License or refrain from using any Intellectual Property
rights of any third party). To the Knowledge of Diagnostics, no third party has
interfered with, infringed upon, misappropriated, or otherwise come into
conflict with any Intellectual Property rights of any of Diagnostics and its
Subsidiaries.
(c) Except as set forth on Schedule 4.27(c), to the Knowledge of
---------------
IVAX and Diagnostics, none of Diagnostics and its Subsidiaries will interfere
with, infringe upon, misappropriate, or otherwise come into conflict with, any
Intellectual Property rights of third parties as a result of the continued
operation of its businesses as presently conducted and as presently proposed to
be conducted that would have a Material Adverse Effect on Diagnostics or any of
its Subsidiaries.
(d) None of IVAX and Diagnostics has any Knowledge of any new
products, inventions, procedures, or methods of manufacturing or processing that
any competitors or other third parties have developed which reasonably could be
expected to supersede or make obsolete any product or process of any of
Diagnostics and its Subsidiaries that would have a Material Adverse Effect on
Diagnostics or any of its Subsidiaries.
40
4.28 Reorganization. As of the date of this Agreement, neither
--------------
Diagnostics nor IVAX has any Knowledge of any reason why the Merger will fail to
qualify as a reorganization under Section 368(a) of the Code.
4.29 Investment. IVAX (a) understands that the Merger Consideration has
----------
not been registered under the Securities Act, or under any state securities
Laws, and is being offered and sold in reliance upon federal and state
exemptions for transactions not involving any public offering, (b) is acquiring
the Merger Consideration solely for IVAX's own account for investment purposes,
and not with a view to the distribution thereof, (c) is a sophisticated investor
with knowledge and experience in business and financial matters, (d) has
received certain information concerning B2B and has had the opportunity to
obtain additional information as desired in order to evaluate the merits and the
risks inherent in holding the Merger Consideration, (e) is able to bear the
economic risk and lack of liquidity inherent in holding the Merger
Consideration, and (f) is an Accredited Investor.
4.30 Foreign Corrupt Practices Act Compliance. Neither IVAX, Diagnostics
----------------------------------------
nor their Subsidiaries has, directly or indirectly, in connection with
Diagnostics or its Subsidiaries business, made or agreed to make any payment to
any Person connected with or related to any government or Agency, except
payments or contributions required or allowed by applicable Law. The internal
accounting controls and procedures of IVAX, Diagnostics and their Subsidiaries
are sufficient to cause Diagnostics and its Subsidiaries to comply with the
Foreign Corrupt Practices Act.
4.31 Certain Business Relationships. Schedule 4.31 lists all material
------------------------------ -------------
Contracts, business arrangements and business relationships between Diagnostics
and its Subsidiaries, on the one hand, and IVAX and its Affiliates, on the other
hand. Except as set forth in Schedule 4.31, neither IVAX nor any of its
-------------
Affiliates owns any assets or properties of, or leases any assets or properties
to, Diagnostics of its Subsidiaries.
4.32 Effect of Merger. Except as disclosed on Schedule 4.32, the
---------------- -------------
consummation of the Merger will not result in the impairment or loss of any
assets or properties of Diagnostics or it Subsidiaries, including any Contract,
License, real property, personal property, or intangible property, the loss or
impairment of which could have a Material Adverse Effect on Diagnostics or any
of its Subsidiaries.
4.33 Disclosure. No representation or warranty of Diagnostics or IVAX
----------
herein (including the exhibits and schedules hereto), and no statement, report,
or certificate furnished or to be furnished by or on behalf of Diagnostics or
its agents pursuant hereto, contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary in order
to make the statements contained herein or therein, in light of the
circumstances under which such statements are made, not misleading.
ARTICLE 5.
Covenants and Agreements
5.1 Interim Operations of B2B. During the period from the date of this
-------------------------
Agreement to the Effective Date, B2B and its Subsidiaries shall conduct its
business only in the Ordinary
41
Course of Business, except to the extent otherwise necessary to comply with the
provisions hereof and with applicable Laws and regulations. Additionally, during
the period from the date of this Agreement to the Effective Date, except as
required hereby in connection with the Merger, B2B shall not and shall cause
each of its Subsidiaries not, without the prior consent of IVAX, to (i) amend or
otherwise change its Certificate of Incorporation or Bylaws, (ii) issue, sell or
authorize for issuance or sale (including, but not limited to, by way of stock
split or dividend), shares of any class of its securities or except as
contemplated in Section 3.17, any Commitments of any character obligating it to
------------
issue such securities, other than pursuant to stock options granted to
directors, officers or employees of B2B prior to the date of this Agreement;
(iii) declare, set aside, make or pay any dividend or other distribution
(whether in cash, stock or property) with respect to its capital stock, (iv)
redeem, purchase or otherwise acquire, directly or indirectly, any of its
capital stock, (v) enter into any material Contract (excluding any renewal of
B2B's officer and director insurance policy) or material transaction or make any
material capital expenditure other than those relating to the transactions
contemplated by this Agreement, (vi) create, incur, assume, maintain or permit
to exist any indebtedness other than the Transaction Expenses or as otherwise
incurred in the Ordinary Course of Business, (vii) pay, discharge or satisfy
claims or Liabilities (absolute, accrued, contingent or otherwise) other than
the Transaction Expenses or in the Ordinary Course of Business, (viii) cancel
any material debts or waive any material claims or rights, (ix) make any loans,
advances or capital contributions to, or investments in financial instruments of
any Person, (x) assume, guarantee, endorse or otherwise become responsible for
the Liabilities or other Commitments existing of any other Person, (xi) grant
any increase in the compensation payable or to become payable by B2B or any of
its Subsidiaries to any of its employees or any material increase in any bonus,
insurance, pension or other employee benefit plan, payment or arrangement made
to, for or with any such employees, (xii) enter into any employment Contract or
grant any severance or termination pay or make any such payment with or to any
officer, director or employee of B2B or any of its Subsidiaries other than the
Transaction Expenses, (xiii) alter in any material way the manner of keeping the
books, accounts or records of B2B or any of its Subsidiaries or the accounting
practices therein reflected other than alterations or changes required by GAAP
or applicable Law, (xiv) enter into any indemnification, contribution or similar
Contract pursuant to which B2B or any of its Subsidiaries may be required to
indemnify any other Person or make contributions to any other Person, (xv)
terminate or amend any B2B Employee Benefit Plan in any manner other than as
required by applicable Law, (xvi) dispose of or permit to lapse any rights to
any intangible property or Intellectual Property, (xvii) amend or terminate any
existing B2B Contracts in any manner that would result in any material Liability
to B2B for or on account of such amendment or termination or (xviii) or change
any existing or adopt any new tax accounting principle, method of accounting or
tax election except as provided herein or agreed to in writing by IVAX.
5.2 Interim Operations of Diagnostics. During the period from the date of
---------------------------------
this Agreement to the Effective Date, Diagnostics shall operate its business
(and the business of each of its Subsidiaries) only in the Ordinary Course of
Business and shall (a) use its Best Efforts to preserve intact its business
organization and goodwill in all material respects, (b) use its Best Efforts to
keep available the services of its key officers and employees and (c) use its
Best Efforts to maintain its relationships with material customers, suppliers
and others having material business relationships with it. Additionally, during
the period from the date of this Agreement to the Effective Date, except as
required hereby in connection with the Merger, Diagnostics shall not, without
the prior Consent of B2B, (i) amend or otherwise change its Articles of
42
Incorporation or Bylaws, (ii) issue, sell or authorize for issuance or sale
(including, but not limited to, by way of stock split or dividend), shares of
any class of its securities or any Commitments of any character obligating it to
issue such securities, in each case, other than pursuant to stock options
granted to directors, officers or employees of Diagnostics prior to the date of
this Agreement, (iii) declare, set aside, make or pay any dividend or other
distribution (whether in cash, stock or property) with respect to its capital
stock, (iv) redeem, purchase or otherwise acquire, directly or indirectly, any
of its capital stock, (v) enter into any material Contract or material
transaction (or make any material capital expenditure or sale of assets), in
each case, other than in the Ordinary Course of Business, (vi) create, incur,
assume, maintain or permit to exist any indebtedness other than the Transaction
Expenses or as otherwise incurred in the Ordinary Course of Business, (vii) pay,
discharge or satisfy claims or Liabilities other than the settlement of
intercompany debt between IVAX and Diagnostics or its Subsidiaries, the
Transaction Expenses or in the Ordinary Course of Business, (viii) cancel any
debts or waive any claims or rights other than the settlement of intercompany
debt between IVAX and Diagnostics or its Subsidiaries or in the Ordinary Course
of Business, (ix) make any loans, advances or capital contributions to, or
investments in financial instruments of any Person, (x) assume, guarantee,
endorse or otherwise become responsible for the Liabilities of any other Person,
(xi) grant any increase in the compensation payable or to become payable by
Diagnostics or any of its Subsidiaries to any of its employees or any increase
in any bonus, insurance, pension or other employee benefit plan, payment or
arrangement made to, for or with any such employees other than in the Ordinary
Course of Business, (xii) terminate or amend any Diagnostics Employee Benefit
Plan in any manner other than as required by applicable Law, (xiii) enter into
any employment Contract or grant any severance or termination pay with or to any
officer, director or employee of Diagnostics or any of its Subsidiaries, (xiv)
alter in any way the manner of keeping the books, accounts or records of
Diagnostics or any of its Subsidiaries or the accounting practices therein
reflected other than alterations or changes required by GAAP or applicable Law,
(xv) dispose of or permit to lapse any rights to any intangible property of
Intellectual Property, (xvi) amend, or terminate any existing Diagnostics
Contracts other than in Ordinary Course of Business in any manner that would
result in any material Liability to B2B for or on account of such amendment or
termination, or (xvii) enter into any indemnification, contribution or similar
Contract pursuant to which Diagnostics or its Subsidiaries may be required to
indemnify any other Person or make contributions to any other Person or (xviii)
or change any existing or adopt any new tax accounting principle, method of
accounting or tax election except as provided herein or agreed to in writing by
B2B.
5.3 Access. Diagnostics and B2B shall afford to the other (and if
------
requested, B2B shall also afford to IVAX) and their respective agents and
representatives full access during normal business hours throughout the period
prior to the Effective Time to all of their respective properties, books,
contracts, commitments and records and during such period shall promptly furnish
copies of all other information concerning such business, properties and
personnel of Diagnostics or B2B, as the case may be, as may reasonably be
requested. Each recipient shall hold such documents and other material in
confidence unless and until such time as such information otherwise becomes
publicly available and, in the event of the termination of this Agreement, upon
request by the party providing such information, shall deliver to the party
providing such information all documents and other material so obtained by it.
43
5.4 Consents. B2B, IVAX and Diagnostics will each use their respective
--------
Best Efforts to obtain as promptly as practicable all Consents and Orders
required in connection with and waivers of any Breaches that may be caused by
the consummation of the transactions contemplated by this Agreement, including
the expiration of any applicable waiting period under the HSR Act.
5.5 Notification. Each of the Parties hereto shall promptly notify the
------------
other in writing of any event, condition, circumstance, occurrence, transaction
or other item occurring from the date of this Agreement through the Effective
Time (a) that would in itself, or with any notice, lapse of time or both,
constitute a violation or Breach of this Agreement or (b) which would have been
required to have been disclosed on any schedule or exhibit hereto had such
event, condition, circumstance, occurrence, transaction or item existed on the
date of this Agreement. Any such notification shall not diminish or alter any of
the representations, warranties or covenants of the parties set forth in this
Agreement nor shall it limit or restrict any rights or remedies either Party may
have with respect to a Breach or violation of any such representations,
warranties or covenants. If at any time after the Proxy Statement is filed with
the Commission any event or circumstance relating to B2B, Diagnostics or IVAX
should occur or exist which would be required to be described in an amendment of
or supplement to the Proxy Statement or which would cause the Proxy Statement to
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained therein, in light of the
circumstances under which such statements were made, not misleading, B2B or
IVAX, as the case may be, shall promptly inform the other in writing of such
event or circumstance.
5.6 Proxy Statement. B2B, IVAX and Diagnostics will cooperate with each
---------------
other in order to promptly prepare the Proxy Statement and to file the Proxy
Statement with the Commission as soon as practicable. IVAX shall furnish all
information concerning IVAX or Diagnostics as may be reasonably required in
connection with the preparation of the Proxy Statement. B2B shall cause the
Proxy Statement to comply as to form and substance in all material respects with
the applicable requirements of the Exchange Act and all other applicable Laws,
and each Party shall ensure that none of the information that it furnishes for
inclusion in the Proxy Statement will, at (a) the time the Proxy Statement (or
any amendment or supplement thereto) is first mailed to the stockholders of B2B
or (b) the time of the special meeting of the stockholders of B2B as
contemplated by Section 5.7, contain any untrue statement of a material fact or
-----------
omit 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. Unless required by applicable Law, no amendment
or supplement to the Proxy Statement shall be filed with the Commission without
the approval of IVAX, which approval shall not be unreasonably withheld. B2B
shall promptly advise IVAX of any request by the Commission for amendment of the
Proxy Statement or comments thereon and responses thereto or requests by the
Commission for additional information. B2B shall take all actions required to be
taken under any applicable or securities Laws to permit the issuance of the B2B
Common Stock pursuant to the Merger.
5.7 B2B Stockholder Approval. B2B will call a special meeting of its
------------------------
stockholders (the "Special Meeting") in order that the stockholders of B2B may
consider and vote upon the matters set forth in the Proxy Statement and solicit
proxies in favor of approving such matters. The Proxy Statement will contain the
affirmative recommendation by the Board of Directors of
44
B2B of all matters to be considered and voted upon at the Special Meeting;
provided, however, no director or officer of B2B will be required to make such
affirmative recommendation if it would constitute a violation of any fiduciary
duty or other requirement imposed by Law.
5.8 Acquisition Proposals. Except for the transactions contemplated by
---------------------
this Agreement, unless and until this Agreement shall have been validly
terminated in accordance with Article 9, B2B shall not (nor will it permit any
---------
of its officers, directors, agents or Affiliates to), directly or indirectly,
(a) solicit, encourage or initiate any negotiations or discussions with respect
to a Competing Transaction (as defined below) or (b) except as required by Law
or pursuant to a valid, lawful subpoena, disclose any information not
customarily disclosed to any Person concerning the business and properties of
B2B, afford to any Person (other than IVAX or Diagnostics and their respective
designees) access to the properties, books or records of B2B or otherwise assist
or encourage any Person in connection with any of the foregoing. Notwithstanding
anything to the contrary contained in this Section 5.8, the Board of Directors
-----------
of B2B shall not be prohibited from furnishing information to, or entering into
discussions or negotiations with, any Person in connection with an unsolicited
proposal by such Person for a Competing Transaction if, and only to the extent
that, (i) the B2B 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 the B2B 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, B2B obtains from such Person an
executed confidentiality agreement on terms no less favorable to B2B than those
contained in the Confidentiality Agreement between B2B and IVAX. A "Competing
Transaction" means any of the following involving B2B (other than the Merger
contemplated by this Agreement): (i) a merger, consolidation, share exchange,
business combination, joint venture or other similar transaction, (ii) any sale,
lease, exchange, transfer or other disposition of 15% or more of the assets of
B2B and its Subsidiaries, taken as a whole or (iii) a tender offer or exchange
offer for 15% or more of the outstanding voting securities of B2B or its
Subsidiaries. B2B agrees to promptly notify IVAX the commencement of any
significant discussions or negotiations relating to a proposed Competing
Transaction. IVAX agrees not to interfere with or take any action adverse to a
Competing Transaction.
5.9 Public Statements. The Parties hereto shall consult and cooperate
-----------------
with each other concerning the terms and substance of all press releases,
announcements and public statements with respect to the transactions
contemplated by this Agreement prior to the Effective Time, provided that such
consultation and cooperation shall not interfere with any obligation of IVAX or
B2B to disclose any information as required by applicable Law.
5.10 SEC Filings. B2B shall use its Best Efforts to timely file all
-----------
reports required to be filed by it pursuant to Section 13(a) or 15 of the
Exchange Act and all other documents required to be filed by it with the
Commission under the Securities Act or the Exchange Act from the date of this
Agreement to the Effective Date.
5.11 Resignation of Directors and Officers. The members of the Board of
-------------------------------------
Directors (except ▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇) and the officers and
employees of B2B and its Subsidiaries shall deliver their respective
resignations from such positions to B2B on or prior to the Effective Date. The
remaining members of the Board of Directors of B2B shall promptly fill
45
the vacancies created by such resignations from the Board of Directors of B2B
with the five (5) designees of IVAX at and as of the Effective Time.
5.12 State Takeover Laws; Certificate of Incorporation. B2B shall not take
-------------------------------------------------
any action that would cause the transactions contemplated by this Agreement to
be subject to any applicable state takeover statute and B2B shall take all
necessary steps to except or exempt (or ensure the continued exemption of) the
transactions contemplated by this Agreement from (a) any applicable state
takeover Law, as now or hereafter in effect, including Section 203 of the
Delaware GCL, (b) any applicable takeover provisions in B2B Certificate of
Incorporation or Bylaws and (c) any takeover provisions set forth in any
Contract to which B2B is a party or may be bound.
5.13 General Release by IVAX. IVAX will deliver to B2B at and as of the
-----------------------
Effective Time an unconditional and irrevocable release and discharge of the
Surviving Corporation and each of its Subsidiaries, and their respective
officers, directors, employees and agents, from any and all rights, claims,
demands, judgement, obligations (contractual or otherwise), Liabilities and
Damages relating, directly or indirectly, to Diagnostics and/or its Subsidiaries
which ever existed, now exist, or may hereafter exist, by reason of tort, Breach
of Contract (except this Agreement and the transactions and agreements
contemplated hereby), violation of Law or other act or failure to act which
shall have occurred at or prior to the Effective Date.
5.14 General Release by B2B. Except as set forth on Schedule 5.13, B2B
---------------------- -------------
shall use it Best Efforts to obtain from Enviro-Clean of America, Inc. and each
of the officers, directors and employees (including any of these employees who
will be or have been terminated and who have entered or will enter into any type
of severance agreement with B2B) of B2B an unconditional and irrevocable release
and discharge of B2B and each of its Subsidiaries and, as appropriate, their
respective officers, directors, employees and agents, from any and all rights,
claims, demands, judgments, obligations (contractual or otherwise), Liabilities
and Damages relating, directly or indirectly, to B2B and/or any of its
Subsidiaries which ever existed, now exist, or may hereafter exist, by reason of
any tort, Breach of Contract (except this Agreement and the transactions and
agreements contemplated hereby), violation of Law or other act or failure to act
which shall have occurred at or prior to the Effective Date.
5.15 HSR Act. Each of the Parties will file (and each of the Parties will
-------
cause their Affiliates to file, if necessary) any Notification and Report Forms
and related materials that may be required to be filed with the Federal Trade
Commission and the Antitrust Division of the United States Justice Department
under the HSR Act (and will use their respective Best Efforts to obtain (and
will cause their respective Affiliates to use their Best Efforts to obtain, if
necessary) an early termination of the applicable waiting period, and will make
(and will cause their respective Affiliates to make, if necessary) any further
filings pursuant thereto that may be necessary, proper or advisable in
connection therewith.
5.16 Transition Services. The Parties agree to negotiate, in good faith,
-------------------
the transition services that the Surviving Corporation may require from any
Party; provided, however, such transition services will be provided (i) at such
Party's actual costs plus 15% and (ii) for a period not to exceed three months
after the Effective Date, unless the Parties otherwise agree.
46
5.17 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, all of the terms and provisions of this
Agreement including, all necessary stock powers and such other instruments of
transfer as may be necessary or desirable to transfer ownership.
ARTICLE 6.
Survival
6.1 Survival of the Representations and Warranties. The representations
----------------------------------------------
and warranties contained in this Agreement shall survive the Effective Time to
the extent and for the periods set forth in Section 6.3.
-----------
6.2 Investigation. The representations, warranties, covenants and
-------------
agreements of this Agreement shall not be affected or diminished in any way by
any investigation (or failure to investigate) at any time by or on behalf of the
Party for whose benefit such representations, warranties, covenants and
agreements were made.
6.3 Liability for Breach of Representations and Warranties, etc.
-----------------------------------------------------------
(a) By B2B. Subject to the limitations set forth in this Section
------ -------
6.3, B2B agrees to pay and reimburse IVAX and Diagnostics for the full amount of
---
any and all Damages arising from, in connection with, or incident to (i) any
Breach of any of the representations, warranties, covenants or agreements of B2B
contained in this Agreement, and (ii) any and all Actions incidental to any of
the foregoing.
(b) By IVAX. Subject to the limitations set forth in this Section
------- -------
6.3, IVAX agrees to pay and reimburse B2B for the full amount of any and all
---
Damages arising from, in connection with, or incident to (i) any Breach of any
of the representations, warranties, covenants or agreements of IVAX or
Diagnostics contained in this Agreement, and (ii) any and all Actions incidental
to any of the foregoing.
(c) Method of Payment. All obligations required to be paid under
-----------------
this Section 6.3 shall be satisfied as follows: (i) IVAX's obligations, if any,
-----------
hereunder shall be satisfied by payment of an amount equal to the Damages for
which IVAX or Diagnostics is obligated hereunder, either, at IVAX's sole
discretion, in cash or by surrendering to B2B for redemption shares of the B2B
Common Stock having such value as calculated in accordance with this Section
-------
6.3. B2B's obligations under this Section 6.3 shall be satisfied by payment of
--- -----------
an amount equal to the Damages for which B2B is obligated hereunder, either, at
the sole discretion of ▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇, in cash or by issuing to
IVAX the number of additional shares of B2B Common Stock that have such value as
calculated in accordance with this Section 6.3. For purposes of this Section
----------- -------
6.3, each share of B2B Common Stock shall be valued at the closing sale price of
---
the B2B Common Stock on the date preceding the date on which such claim is
satisfied; and (ii) notwithstanding the foregoing or any limitation set forth in
Section 6.3(d), the Parties acknowledge and agree that in the event B2B fails to
-------------
satisfy the minimum cash holdings described in Section 8.9, IVAX will, if IVAX
-----------
elects to waive such condition and consummate the Merger, be entitled to receive
one additional share of B2B Common Stock for each $1.00 dollar that the B2B cash
and cash equivalents as of the Effective
47
Date, as reflected on the face of the B2B Effective Date Balance Sheet (as
finally determined by the Parties and verified by their respective independent
accountants at or prior to the Effective Time), is less than $22,000,000. For
example, if the cash and cash equivalents on the face of the B2B Effective Date
Balance Sheet (as finally determined by the Parties and verified by their
respective accountants at or prior to the Effective Time) is $21,600,000, IVAX
would be entitled to receive an additional 400,000 shares of B2B Common Stock
upon consummation of the Merger.
(d) Limitations. Except as otherwise set forth herein, no Party
-----------
shall have any obligation under Sections 6.3(a) or 6.3(b): (i) unless notice of
-------------- -----
a claim for a Breach of a representation or warranty made herein (but not for a
Breach of any covenant or agreement) in respect of any matter has been given to
such Party on or before the date which is one year after the Effective Date;
provided, however, that with respect to a Breach of any of the representations
and warranties set forth in Sections 3.16, 3.30, 4.14 and 4.25 notice of a claim
----------------------------------
must be given on or before the date which is the later of one year after the
Effective Date or the expiration of the applicable statute of limitations; (ii)
until the aggregate of all Damages for which such Party is responsible with
respect to any Breach of a representation or warranty (but not any covenant or
agreement) exceeds $150,000 (the "Basket Limitation") (unless such
representation or warranty is qualified by the Basket Limitation); provided,
however, that if any Party is responsible for any payment hereunder, then the
indemnification obligation of such Party shall be limited to the amount by which
the amount of such Damages exceeds the Basket Limitation; and (iii) neither
Party shall (in the aggregate) be liable for any amounts in excess of
$10,000,000; provided, however, any Breach of Sections 3.16, 3.30, 4.14 and 4.25
------------------------- ----
will not be subject to the Basket Limitation.
(e) Exclusive Remedy. The Parties acknowledge and agree that (i) the
----------------
provisions of this Section 6.3 shall be the sole and exclusive remedy of the
-----------
Parties with respect to any obligation under Section 6.3(a) or 6.3(b), and (ii)
-----------------------
in the event of any termination of this Agreement in accordance with Article 9,
---------
the remedies set forth in this Article 6 shall be null and void.
---------
6.4 Procedure for Matters Involving Third Parties.
---------------------------------------------
(a) If any third party shall notify any Party (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") which may give rise
to a claim for indemnification against any other Party (the "Indemnifying
Party") under this Article 6, then the Indemnified Party shall promptly issue a
---------
Claim Notice to the Indemnifying Party with respect thereto.
(b) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying
Party notifies the Indemnified Party in writing within 15 days following the
receipt of the Claim Notice that the Indemnifying Party will indemnify the
Indemnified Party may from and against all Damages, the Indemnified Party suffer
resulting from, arising out of, relating to, in the nature of, or caused by the
Third Party Claim, (ii) the Indemnifying Party provides the Indemnified Party
with evidence reasonably acceptable to the Indemnified Party that the
Indemnifying Party will have the financial resources
48
to defend against the Third Party Claim and fulfill its indemnification
obligations hereunder, (iii) the Third Party Claim involves only money damages
and does not seek an injunction or other equitable relief, (iv) settlement of,
or an adverse judgment with respect to, the Third Party Claim is not in the good
faith judgement of the Indemnified Party, likely to establish a precedential
custom or practice materially adverse to the continuing business interests of
the Indemnified Party, and (v) the Indemnifying Party conducts the defense of
the Third Party Claim actively and diligently.
(c) So long as the Indemnifying Party is conducting the defense of
the Third party Claim in accordance with Section 6.4(b), (i) the Indemnified
-------------
Party may retain separate co-counsel at its sole cost and expense and
participate in the defense of the Third Party Claim, (ii) the Indemnified Party
will not consent to the entry of any judgement or enter into any settlement with
respect to the Third Party Claim without the prior written consent of the
Indemnifying Party (not to be withheld reasonably), and (iii) the Indemnifying
Party will not consent to the entry of any judgment or enter into any settlement
with respect to the Third Party Claim without the prior written consent of the
Indemnified Party (not to be withheld unreasonably).
(d) In the event any of the conditions in Section 6.4(b) is or
-------------
becomes unsatisfied, (i) the Indemnified Party may defend against, and consent
to the entry of any judgment or enter any settlement with respect to, the Third
Party Claim in any manner it reasonably may deem appropriate (and the
Indemnified party need not consult with, or obtain any consent from, any
Indemnifying Party in connection therewith), (ii) the Indemnifying parties will
reimburse the Indemnified Party promptly any periodically for the costs of
defending against the Third Party Claim (including reasonable attorneys' fees
and expense), and (iii) the Indemnifying Parties will remain responsible for any
Damages the Indemnified party may suffer resulting from, arising out of,
relating to, in the nature of, or caused by the Third Party Claim to the fullest
extent provided in this Article 6.
---------
6.5 Notice of Claim. A Party suffering Damages that gives or could give
---------------
rise to a claim for indemnification under this Article 6 shall promptly notify
---------
each other Party thereof in writing (a "Claim Notice") in accordance with
Section 11.1. The Claim Notice shall contain a brief description of the nature
------------
of the Damages suffered and, if practicable, an aggregate dollar value estimate
of the Adverse Consequence suffered. No delay in the issuance of a Claim Notice
shall relieve any Party from any obligations under this Article 6, unless and
---------
solely to the extent such Party is thereby prejudiced.
ARTICLE 7.
Conditions Precedent to the Obligations of B2B
All of the obligations of B2B under this Agreement and the Plan of Merger
are subject to the satisfaction at or prior to the Effective Time of each and
every one of the following conditions precedent (any of which may be waived in
writing by B2B in its sole discretion):
7.1 Representations and Warranties True. Each of the representations and
-----------------------------------
warranties of IVAX and Diagnostics contained herein or in any certificate or
document delivered by IVAX or Diagnostics pursuant to the provisions hereof
shall be true and correct in all material respects (except for such
representations and warranties qualified by materiality which shall be true and
49
correct in all respects) as of the Effective Time with the same force and effect
as though made at and as of such time.
7.2 Performance. IVAX and Diagnostics shall have performed and complied in
-----------
all material respects with all of the agreements, covenants and obligations
required under this Agreement to be performed or complied with by them prior to
or at the Effective Time (except for agreements, covenants and obligations set
forth herein to be performed or complied with prior to or at the Effective Time
which are qualified by materiality, which shall have been performed or complied
with in all respects).
7.3 Certificates. Diagnostics shall have delivered to B2B a certificate
------------
executed by its President and its Chief Financial Officer, dated the Effective
Date, certifying in such detail as B2B may reasonably request, that (a) the
conditions specified in Sections 7.1 and 7.2 (insofar as they are to be met or
--------------------
performed by IVAX or Diagnostics) have been fulfilled, (b) the condition set
forth in Section 7.9 is satisfied and (c) attached to such certificate is a true
-----------
and correct copy of the resolutions of the Boards of Directors of Diagnostics
and IVAX, as the sole stockholder of Diagnostics, authorizing the execution,
delivery and performance of this Agreement and the Plan of Merger by
Diagnostics. IVAX shall deliver to B2B a certificate, duly executed, complying
with Code Section 1445 and Treas. Reg. Section 1.1445-2. IVAX and Diagnostics
shall deliver to Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P. and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A. an officers certificate containing
the customary representations, warranties and covenants required to render its
opinion pursuant to Sections 7.8 and 8.8 hereof.
--------------------
7.4 Absence of Litigation. No Action shall have been commenced or shall be
---------------------
pending by or before any Court or Agency, and no judicial or administrative
decision shall have been rendered, which (a) enjoins or prohibits the
consummation of all or any of the transactions contemplated by this Agreement or
the Plan of Merger, or (b) is an Action by any Agency thereof, which seeks to
enjoin or prohibit the consummation of all or any of the transactions
contemplated by this Agreement or the Plan of Merger.
7.5 Consents. IVAX and Diagnostics shall have obtained all Consents and
--------
Orders as may be required in connection with the consummation of the
transactions contemplated hereby, except where the failure to obtain a Consent
would not have a Material Adverse Effect on Diagnostics or any of its
Subsidiaries. All applicable waiting periods (and any extensions thereof) under
the HSR Act shall have expired or otherwise been terminated. 7.6 Stockholder
Approval. The stockholders of B2B shall have approved all of the matters to be
considered and voted upon at the Special Meeting.
7.7 Opinion of Counsel. B2B shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A., counsel to IVAX and Diagnostics, an
opinion letter in form and substance reasonably acceptable to B2B and its
counsel.
7.8 Tax Opinion. B2B shall have received a legal opinion of Akin, Gump,
-----------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., counsel to B2B, dated as of the Effective Date,
to the effect that, on the basis of certain facts, representations and
assumptions set forth in such opinion, the Merger constitutes a reorganization
within the meaning of Section 368(a) of the Code.
50
7.9 Minimum Cash Holdings. At the Effective Time, Diagnostics shall have
---------------------
after giving effect to the payment of all Transaction Expenses of Diagnostic
(excluding any changes to stockholders' equity as a result of exchange rate
gains or losses attributable to the Lira), a minimum of Two Million Dollars
($2,000,000) in cash or cash equivalents and shall have stockholders' equity of
at least Four Million Four Hundred Thousand Dollars ($4,400,000) as of the
Effective Date, in each case, as reflected on the face of the Diagnostics
Effective Date Balance Sheet.
7.10 Fairness Opinion. The fairness opinion described in Section 3.20
---------------- ------------
must be reaffirmed and in full force and effect and must not have been amended,
modified or altered, without the prior approval of the Board of Directors of B2B
in their reasonable judgment.
7.11 Intercompany Indebtedness. All intercompany indebtedness between
-------------------------
IVAX (and any IVAX Affiliates) and Diagnostics and its Subsidiaries will be
eliminated at and as of the Effective Time, and IVAX will deliver evidence
thereof satisfactory to B2B.
7.12 Trademark License. IVAX and B2B will enter into a perpetual
-----------------
trademark/service ▇▇▇▇ license for the use of the trademark/service ▇▇▇▇ "IVAX"
for payment of $1.00 and subject to such other reasonable terms and conditions
acceptable to IVAX and B2B, including the right of IVAX to terminate such
license upon three months prior written notice to the Surviving Corporation at
any time after the first anniversary of the Effective Date.
7.13 General Release. B2B shall have received the general release
---------------
contemplated by Section 5.13.
------------
7.14 No Material Adverse Effect. There shall not have occurred or be
--------------------------
existing any event or condition which has had a Material Adverse Effect on
Diagnostics or any of its Subsidiaries.
ARTICLE 8.
Conditions Precedent to the Obligations of IVAX and Diagnostics
All of the obligations of IVAX and Diagnostics under this Agreement are
subject to the satisfaction at or prior to the Effective Time of each and every
one of the following conditions precedent (any of which may be waived in writing
by IVAX in its sole discretion):
8.1 Representations and Warranties True. Each of the representations and
-----------------------------------
warranties of B2B contained herein or in any certificate or document delivered
by B2B pursuant to the provisions hereof shall be true and correct in all
material respects (except for such representations and warranties qualified by
materiality which shall be true and correct in all respects) on and as of the
Effective Time with the same force and effect as though made at and as of such
time.
8.2 Performance. B2B shall have performed and complied in all material
-----------
respects with all of the agreements, covenants and obligations required under
this Agreement to be performed or complied with by them prior to or at the
Effective Time (except for agreements, covenants and obligations set forth
herein to be performed or complied with prior to or at the
51
Effective Time which are qualified by materiality, which shall have been
performed or complied with in all respects).
8.3 Certificates. B2B shall have delivered to IVAX certificates
------------
executed by the President and the Chief Financial Officer of B2B, dated the
Effective Date, certifying in such detail as IVAX may reasonably request, that:
(a) the conditions specified in Sections 8.1, 8.2 and 8.11 (insofar as they are
------------ --- ----
to be met or performed by B2B) have been fulfilled, (b) the condition set forth
in Section 8.9 is satisfied and (c) attached to such certificate is a true and
-----------
correct copy of the resolutions of the Board of Directors and stockholders of
B2B authorizing the execution, delivery and performance of this Agreement and
the Plan of Merger by B2B. B2B shall deliver to Akin, Gump, Strauss, ▇▇▇▇▇ &
▇▇▇▇, L.L.P. and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A. an
officers certificate containing the customary representations, warranties and
covenants required to render its opinion pursuant to Sections 7.8 and 8.8
--------------------
hereof.
8.4 Absence of Litigation. No Action shall have been commenced or shall
---------------------
be pending by or before any Court or Agency, and no judicial or administrative
decision shall have been rendered, which (a) enjoins or prohibits the
consummation of all or any of the transactions contemplated by this Agreement or
the Plan of Merger or (b) is an Action by any Agency thereof, which seeks to
enjoin or prohibit the consummation of all or any of the transactions
contemplated by this Agreement or the Plan of Merger.
8.5 Consents. Each of B2B shall have obtained all Consents and Orders as
--------
may be required in connection with the consummation of the transactions
contemplated hereby, except where the failure to obtain a Consent would not have
a Material Adverse Effect on B2B. All applicable waiting periods (and any
extensions thereof) under the HSR Act shall have expired or otherwise been
terminated.
8.6 Stockholder Approval. The stockholders of B2B shall have approved
--------------------
all of the matters to be considered and voted upon at the Special Meeting.
8.7 Opinion of Counsel. IVAX shall have received from Akin, Gump,
------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., counsel to B2B, an opinion letter in form and
substance reasonably acceptable to IVAX and its counsel.
8.8 Tax Opinion. IVAX shall have received a legal opinion of ▇▇▇▇▇▇▇
-----------
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A., counsel to IVAX and
Diagnostics, dated as of the Effective Date, to the effect that on the basis of
certain facts, representations and assumptions set forth in such opinion, the
Merger constitutes a reorganization within the meaning of Section 368(a) of the
Code.
8.9 Minimum Cash Holdings. At the Effective Time, B2B and its
---------------------
Subsidiaries shall have, after giving effect to the payment of all B2B
Transaction Expenses and after giving effect to all accruals made for the
termination of B2B's existing business and for the payment of all obligations
associated with the termination of B2B's existing business, a minimum of Twenty-
Two Million Dollars ($22,000,000) in cash or cash equivalents and shall have
stockholders' equity of at least Twenty-Two Million Dollars ($22,000,000) as of
the Effective Date, in each case, as reflected on the face of the B2B Effective
Date Balance Sheet.
52
8.10 Resignations. B2B shall have received the resignations of the
------------
directors, officers and employees of B2B and its Subsidiaries, except ▇▇▇
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇. Such remaining members of the Board of Directors
shall have filled the vacancies created by such resignations from the Board of
Directors with the five (5) designees of IVAX.
8.11 General Releases. B2B shall have received the general releases
----------------
contemplated by Section 5.14.
------------
8.12 B2B Underwriters' Waiver. IVAX and B2B shall have received a
------------------------
written waiver from GBI Capital Partners and any other firm that performed
investment banking services for B2B whether in connection with B2B's initial
public offering or otherwise waiving all future and ongoing rights such entities
may have related to B2B, including, but not limited to, GBI Capital Partners'
right to appoint a representative to B2B's Board of Directors.
8.13 No Material Adverse Effect. There shall not have occurred or be
--------------------------
existing any event or condition which has had a Material Adverse Effect on B2B
or any of its Subsidiaries.
ARTICLE 9.
Termination
9.1 Termination. This Agreement and the Plan of Merger may be
-----------
terminated and the Merger contemplated herein may be abandoned:
9.1.1 By the mutual, written Consent of B2B, IVAX and
Diagnostics;
9.1.2 By B2B at any time after June 30, 2001 (the "Termination
Date") if, by that date, the conditions set forth in Article 7 have not
---------
been satisfied or waived;
9.1.3 By IVAX at any time after the Termination Date, if, by the
Termination Date, the conditions set forth in Article 8 have not been
---------
satisfied or waived;
9.1.4 By B2B if there has been any material Breach of any
representation or warranty of IVAX or Diagnostics in this Agreement or a
material Breach of any of the covenants of IVAX or Diagnostics in this
Agreement which cannot be cured by the Termination Date;
9.1.5 By IVAX if there has been any material Breach of any
representation or warranty of B2B in this Agreement or a material Breach of
any of the covenants of B2B in this Agreement which cannot be cured by the
Termination Date;
9.1.6 By IVAX if any Person (together with such Person's
Affiliates) shall, after the date hereof, become the Beneficial Owner of
five percent (5%) or more of the aggregate voting power of all of B2B's
issued and outstanding capital stock, and, such Person has not, within two
business days after such acquisition, delivered to IVAX, a Voting
Agreement, pursuant to which such Person has agreed to vote all shares of
B2B capital stock of which such Person (or any of such Person's Affiliates)
is the Beneficial Owner in favor of the Merger and the transactions
contemplated by this Agreement;
53
9.1.7 By IVAX if (i) in accordance with Section 5.7, the Board of
-----------
Directors of B2B withdraws, modifies or changes its recommendation of this
Agreement and the Merger in a manner adverse to IVAX or Diagnostics or (ii)
the Board of Directors of B2B shall have recommended to the stockholders of
B2B a Competing Transaction; or
9.1.8 By B2B if the Board of Directors of B2B shall, after
consultation with outside legal counsel (who may be B2B's regularly engaged
outside legal counsel) determine that failure to so terminate would be
inconsistent with its duties to its stockholders under applicable Law, in
good faith have withdrawn, modified or changed its recommendation of the
approval of this Agreement and the Merger in a manner adverse to IVAX or
Diagnostics; provided further, however, that B2B may not terminate this
Agreement pursuant to this Section 9.1.8 until three business days have
-------------
elapsed following delivery to IVAX of written notice of such determination
of B2B (which written notice shall inform IVAX of the material terms and
conditions of the Competing Transaction).
9.2 Termination Fee
---------------
(a) B2B agrees that, if this Agreement is terminated pursuant to
Section 9.1.3 (except as a result of the failure to satisfy the condition set
-----------------------------------------------------------------------------
forth in Section 8.4), 9.1.5, 9.1.6, 9.1.7, or 9.1.8, then B2B shall promptly
----------------------------------------------------
pay to IVAX the cash sum of One Million Dollars ($1,000,000) (the "Termination
Fee") as liquidated damages.
(b) IVAX agrees that if this Agreement is terminated pursuant to
Section 9.1.2 (except as a result of the failure to satisfy the condition set
-----------------------------------------------------------------------------
forth in Section 7.4) or 9.1.4, then IVAX shall promptly pay to B2B the
------------------------------
Termination Fee as liquidated damages.
(c) No Termination Fee will be payable by either IVAX or B2B if
this Agreement is terminated pursuant to Sections 9.1.1, 9.1.2 (as a result of
-------------------------------------
the failure to satisfy the condition set forth in Section 7.4) or 9.1.3 (as a
-----------------------------------------------------------------------------
result of the failure to satisfy the condition set forth in Section 8.4).
------------------------------------------------------------------------
(d) Any payment required to be made pursuant to this Section 9.2
-----------
shall be made not later than two days after delivery of a 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 such payment. In the event the
failure of a Party to pay the Termination Fee when due, the amount of the
Termination Fee shall be increased to include the costs or expenses actually
incurred (including fees and expenses of counsel) in connection with the
collection and enforcement of this Section 9.1, together with interest on such
-----------
unpaid Termination Fee, commencing on the date such Termination Fee became due,
at the "prime" rate of interest as reported by The Wall Street Journal, plus
three percent (3%).
9.3 Exclusive Remedy. The Parties acknowledge and agree that (i) this
----------------
Agreement only be terminated in accordance with this Article 9, (ii) the payment
---------
of the Termination Fee, pursuant to and in accordance with Section 9.2, shall be
-----------
the sole and exclusive remedy of the Parties with respect to any termination of
this Agreement in accordance with Section 9.1, (iii) payment of the Termination
-----------
Fee, pursuant to Section 9.2, represents the payment of fair and
-----------
54
reasonable liquidated damages due to the difficulty in determining actual
Damages and (iv) the remedies set forth in Article 6 will not be applicable with
---------
respect to any termination of this Agreement in accordance with Article 9.
---------
ARTICLE 10.
Tax Matters
The following provisions shall govern the allocation of responsibilities as
between Parties for certain Tax matters following the Effective Date:
10.1 Filing of Tax Returns. Diagnostics and its Subsidiaries shall
---------------------
continue to be included for all taxable periods (or portions thereof) ending on
or before the Effective Date in the consolidated federal income Tax Return and
any required state or local consolidated or combined income or franchise Tax
Returns of any Affiliated Group of which Diagnostics and its Subsidiaries are
members (each of which is herein referred to as a "IVAX Filing Affiliated
Group") which Tax Returns include Diagnostics and its Subsidiaries, (all such
Tax Returns including taxable periods or portions thereof of Diagnostics or its
Subsidiaries ending on or before the Effective Date are hereinafter referred to,
collectively, as "Pre-Merger Consolidated Tax Returns"). IVAX shall cause the
IVAX Filing Affiliated Groups to prepare and file (or cause to be prepared and
filed) timely and correctly all Pre-Merger Consolidated Tax Returns and shall
timely pay all Taxes shown as due and payable on Pre-Merger Consolidated Tax
Returns (except that Diagnostics and its Subsidiaries shall contribute to the
payment of any Taxes to the extent of any reserves for unpaid Taxes on the
Diagnostics Effective Date Balance Sheet).
10.2 Tax Periods Ending on or Before the Effective Date. B2B shall
--------------------------------------------------
prepare or cause to be prepared and file or cause to be filed all Tax Returns
for Diagnostics and its Subsidiaries for all periods ending on or prior to the
Effective Date which are filed after the Effective Date other than Pre-Merger
Consolidated Tax Returns. IVAX shall reimburse B2B for Taxes of Diagnostics and
its Subsidiaries with respect to such periods within 15 days after payment by
B2B, Diagnostics or its Subsidiaries of such Taxes to the extent the amount of
Taxes payable by Diagnostics or its Subsidiaries under Sections 10.1, 10.2 or
----------------------
10.3 in the aggregate exceed reserves established for unpaid Taxes on the
----
Diagnostics Effective Date Balance Sheet.
10.3 Tax Periods Beginning Before and Ending After the Effective Date.
----------------------------------------------------------------
B2B shall prepare or cause to be prepared and file or cause to be filed any Tax
Returns of Diagnostics and its Subsidiaries for Tax periods which begin before
the Effective Date and end after the Effective Date. IVAX shall pay to B2B
within 15 days after the date on which Taxes are paid with respect to such
periods an amount equal to the portion of such Taxes which relates to the
portion of such Taxable period ending on the Effective Date to the extent the
amount of Taxes payable by Diagnostics or its Subsidiaries under Sections 10.1,
-------------
10.2 or 10.3 in the aggregate exceed reserves established for unpaid Taxes on
---- ----
the Diagnostics Effective Date Balance Sheet. For purposes of this Section 10.3,
in the case of any Taxes that are imposed on a periodic basis and are payable
for a Taxable period that includes (but does not end on) the Effective Date, the
portion of such Tax which relates to the portion of such Taxable period ending
on the Effective Date shall (a) in the case of any Taxes other than Taxes based
upon or related to income or receipts, be deemed to be the amount of such Tax
for the entire Taxable period multiplied by a fraction the numerator of
55
which is the number of days in the Taxable period ending on the Effective Date
and the denominator of which is the number of days in the entire Taxable period,
and (b) in the case of any Tax based upon or related to income or receipts be
deemed equal to the amount which would be payable if the relevant Taxable period
ended on the Effective Date and based on a closing of the books of Diagnostics
and its Subsidiaries. Any credits relating to a Taxable period that begins
before and ends after the Effective Date shall be taken into account as though
the relevant Taxable period ended on the Effective Date. All determinations
necessary to give effect to the foregoing allocations shall be made in a manner
consistent with prior practice of Diagnostics and its Subsidiaries.
10.4 Cooperation on Tax Matters.
--------------------------
(a) The Parties shall cooperate fully, as and to the extent
reasonably requested by the other party, in connection with the filing of Tax
Returns pursuant to this Section and any audit, litigation or other proceeding
with respect to Taxes. Such cooperation shall include the retention and (upon
the other party's request) the provision of records and information which are
reasonably relevant to any such audit, litigation or other proceeding and making
employees available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder. The Parties
agree (i) to retain all books and records with respect to Tax matters pertinent
to Diagnostics and its Subsidiaries relating to any taxable period beginning
before the Effective Date until the expiration of the statute of limitations
(and, to the extent notified by B2B or IVAX, any extensions thereof) of the
respective taxable periods, and to abide by all record retention agreements
entered into with any taxing authority, and (ii) to give the other party
reasonable written notice prior to transferring, destroying or discarding any
such books and records and, if the other party so requests, B2B or IVAX, as the
case may be, shall allow the other Party to take possession of such books and
records.
(b) B2B and IVAX agree, upon request, to use their best efforts
to obtain any certificate or other document from any Agency or any other Person
as may be necessary to mitigate, reduce or eliminate any Tax that could be
imposed (including, but not limited to, with respect to the transactions
contemplated hereby).
(c) B2B and IVAX agree, upon request, to provide the other Party
with all information that either Party may be required to report pursuant to
Code Section 6043 and all Treas. Regs.
10.5 Certain Taxes. All transfer, documentary, sales, use, stamp,
-------------
registration and other such Taxes and fees (including any penalties and
interest) incurred in connection with this Agreement (including any gains or
transfer Tax and any similar tax imposed in any Agency) shall be paid by IVAX
when due, and IVAX will, at its own expense, file all necessary Tax Returns and
other documentation with respect to all such transfer, documentary, sales, use,
stamp, registration and other Taxes and fees, and, if required by Law, B2B will
join in the execution of any such Tax Returns and other documentation.
56
ARTICLE 11.
Miscellaneous
11.1 Notices. Any notices, requests, demands and other communications
-------
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given, received or made (a) as of the date sent if
delivered personally , (b) as of the date sent if sent by facsimile prior to
5:00 P.M. (with confirmation of receipt of facsimile transmission), and
otherwise on the next business day, (c) the first business day after the date
sent, if sent by prepaid overnight carrier, or (d) five business days after the
date sent, if sent by first class mail, postage prepaid to the parties at the
following addresses (or at such other addresses as shall be specified by the
parties by like notice):
If to IVAX or to Diagnostics
----------------------------
IVAX Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to (which will not be deemed notice to IVAX or
----------------------------------------------------------
Diagnostics):
------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A.
Museum Tower, Suite 2200
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to B2B:
---------
▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to (which will not be deemed notice to B2B):
-------------------------------------------------------
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
57
11.2 Entire Agreement. This Agreement constitutes the complete and
----------------
entire agreement among the parties hereto and supersedes all prior Contracts,
negotiations and discussions, among the Parties hereto with respect to the
subject matter hereof. This Agreement may not be amended or modified in any way
except by a written instrument executed by all of the Parties.
11.3 Benefits; Binding Effect. This Agreement shall be for the benefit of
------------------------
and binding upon the parties hereto, their respective heirs, estates, personal
representatives, legal representatives, successors and assigns.
11.4 Assignment. The rights and obligations of the parties under this
----------
Agreement may not be assigned.
11.5 Waiver. No waiver of any of the provisions of this Agreement shall
------
be deemed or shall constitute a waiver of any other provision hereof (whether or
not similar), nor shall any such waiver constitute a continuing waiver unless
otherwise expressly so provided.
11.6 No Third Party Beneficiary. Nothing in this Agreement is intended,
--------------------------
or shall be construed or implied, to confer upon or give any Person other than
the parties hereto and their respective heirs and permitted successors or
assigns hereunder, any rights or remedies under or by reason of this Agreement.
11.7 Severability. The invalidity of any one or more of the words,
------------
phrases, sentences, clauses, sections or subsections contained in this Agreement
shall not affect the enforceability of the remaining portions of the Agreement
or any part hereof, and, in the event that any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this Agreement
shall be declared invalid, this Agreement shall be construed as if such invalid
word or words, phrase or phrases, sentence or sentences, clause or clauses,
section or sections, or subsection or subsections, had not been inserted.
11.8 Expenses. Except as provided by in Article 9 or Section 11.12, all
-------- --------- -------------
Transaction Expenses incurred in connection with this Agreement and any of the
transactions contemplated hereby shall be borne by the Party incurring such
expenses. Except for the payment of the Transaction Expenses of Diagnostics that
will be paid by IVAX, no Party shall be obligated for any cost or expense
incurred by any other Party unless this Agreement expressly so provides. In no
event shall B2B's Transaction Expenses exceed $3,000,000. Notwithstanding the
foregoing, HSR Act filing fees will be shared equally between IVAX and B2B.
11.9 Section Headings. The section and other headings contained in this
----------------
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of any provisions of this Agreement.
11.10 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the several Parties hereto in separate counterparts, each of
which shall be deemed to be one and the same instrument.
11.11 Time of Essence. Wherever time is specified for the doing or
---------------
performance of any act or the payment of any funds time shall be considered of
the essence.
58
11.12 Litigation; Prevailing Party. Subject to the provisions of Section
---------------------------- -------
6.4, in the event of any litigation with regard to this Agreement, the
---
prevailing Party shall be entitled to receive from the non-prevailing Party and
the non-prevailing Party shall pay all reasonable fees and expenses of counsel
for the prevailing Party.
11.13 Injunctive Relief. Except as provided in Section 6.3(e) and 9.3, it
----------------- ----------------------
is possible that remedies at Law may be inadequate and, therefore, the Parties
hereto shall be entitled to equitable relief including 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.
11.14 Governing Law. This Agreement shall be governed by and construed
-------------
and enforced in accordance with the internal Laws of the State of Delaware,
without regard to the conflict of Laws principles thereof.
11.15 Participation of Parties; 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 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
words "include," "includes," and "including" will be deemed to be followed by
"without limitation." Pronouns in masculine, feminine, and neuter genders will
be construed to include any other gender, and words in the singular form will 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.
[THE REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY]
59
IN WITNESS WHEREOF, the parties hereto have each executed and
delivered this Agreement as of the day and year first above written.
ATTEST: IVAX CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Dr. ▇▇▇▇▇▇▇ ▇▇▇▇▇, M.D., Chairman and
Chief Executive Officer
ATTEST: IVAX DIAGNOSTICS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇'▇▇▇▇, President and Chief
Executive Officer
ATTEST: ▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman of the Board
E-1
