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EXHIBIT 10.1
VOTING AGREEMENT
This VOTING
AGREEMENT (this "Agreement") is dated March 19, 2004, and is
among HALSEY DRUG CO., INC., a New York
corporation (the "Company"), IVAX
PHARMACEUTICALS NEW YORK LLC, a New York
limited liability company (the
"Purchaser"), and each signatory listed on
Exhibit A attached hereto (each such
signatory a "Holder" and, collectively, the
"Holders").
WHEREAS, the
Company and the Purchaser are parties to that certain Asset
Purchase Agreement dated as of March 19,
2004 (the "Asset Purchase Agreement"),
substantially in the form attached hereto
as Exhibit B and as finally entered
into by the Purchaser pursuant to which the
Purchaser is purchasing certain of
the Company's assets used in connection
with the Company's operations located in
Congers, New York, on such terms and
conditions as determined by the Company's
Board of Directors and the Purchaser (the
"Proposed Transaction"); and
WHEREAS, to
induce the Purchaser to enter into the Asset Purchase Agreement
which it would not do but for the agreement
of the Holders to enter into this
Agreement; and
WHEREAS, the
closing of the Proposed Transaction is conditioned upon
security holders of the Company, who,
collectively, represent no less than
two-thirds of the Company's issued and
outstanding common stock or right to vote
as if they owned such common stock,
entering into this Agreement.
NOW, THEREFORE,
the parties agree as follows:
1.
Representations and Warranties. Each Holder hereby represents,
warrants
and covenants to the Purchaser as
follows:
(a) Title. As of the date hereof, each Holder is the sole
beneficial
owner of record of the number of shares of
each class of security of the Company
set forth on Exhibit A hereto (the
"Shares"). The term "beneficial owner" and
all correlate expressions are used in this
Agreement as defined in Rules 13d-3
and 16a-1 under the Securities Exchange Act
of 1934, as amended; provided,
however, that for the avoidance of doubt,
each Holder will not be deemed the
beneficial owner of any shares of capital
stock of the Company that a Holder has
the right to acquire, such as shares
issuable to a Holder upon the exercise of
an option or warrant, unless and until such
shares are actually acquired by a
Holder at which time such shares shall be
treated as Additional Shares pursuant
to Section 5 below; and further provided
that notwithstanding the proviso stated
above, certain of the Holders have the
right to vote their Shares.
(b) Right to Vote. As of the date hereof, except for this Agreement
or
as otherwise permitted by this Agreement,
each Holder has full legal power,
authority and right to vote all of the
Shares then owned of record or
beneficially by it, in favor of the
approval and authorization of the Proposed
Transaction without the consent or approval
of, or any other action on the part
of, any other Person. Without limiting the
generality of the foregoing, each
Holder has not entered into any voting
agreement (other than this Agreement)
with any Person with respect to any of the
Shares, granted any Person any proxy
(revocable or irrevocable) or power of
attorney with respect to any of the
Shares, deposited any of the Shares in a
voting trust or
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entered into any arrangement or agreement
with any Person limiting or affecting
such Holder's legal power, authority or
right to vote the Shares on any matter,
except for the Voting Agreement dated
February 6, 2004, concerning the election
of directors and the amendment to the
certificate of incorporation to increase
the authorized common stock of the Company
and authorize the creation of
preferred stock. From and after the date
hereof, except as otherwise permitted
by this Agreement, each Holder will not
commit any act that could restrict or
otherwise affect such Holder's legal power,
authority and right to vote all of
the Shares then owned of record or
beneficially by such Holder. Without limiting
the generality of the foregoing, except for
this Agreement and as otherwise
permitted by this Agreement, from and after
the date hereof, each Holder shall
not enter into any voting agreement with
any Person with respect to any of the
Shares, grant any Person any proxy
(revocable or irrevocable) or power of
attorney with respect to any of the Shares,
deposit any of the Shares in a
voting trust or otherwise enter into any
agreement or arrangement of any kind
with any Person limiting or affecting such
Holder's legal power, authority or
right to vote the Shares in favor of the
approval of the Proposed Transaction.
(c) Authority. Each Holder has full legal power, authority and
right
to execute and deliver and to perform its
obligations under this Agreement. This
Agreement has been duly and validly
executed and delivered by each Holder and
constitutes a legal, valid and binding
agreement of each Holder enforceable
against it in accordance with its
terms.
(d) Conflicting Instruments. The execution and delivery of this
Agreement and the performance by each
Holder of its obligations hereunder will
not result in any: (i) violation or breach
of, or be in conflict with, such
Holder's respective organizational
documents or material contracts, as
applicable or (ii) violation of any
statutes, laws, rules, regulations, orders
or judgments applicable to such Holder, as
applicable, except for any such
breach, violation, conflict or default
which, individually or in the aggregate,
would not impair or adversely affect such
Holder's ability to perform its
obligations under this Agreement or render
inaccurate any of the representations
made by such Holder herein.
2. Covenants.
Until the termination of this Agreement in accordance with
Section 4, each Holder hereby agrees as
follows:
(a) Restrictions on Transfer. Each Holder shall not, directly
or
indirectly, assign, sell, pledge, encumber,
transfer (including transfers by
testamentary or intestate succession or
otherwise by operation of law) or
otherwise dispose of (collectively,
"Transfer"), or agree to or allow the
Transfer, any of the Shares owned of record
or beneficially by such Holder or
any right, title or interest in any
Additional Shares (or any right, title or
interest therein, including but not limited
to any right or power to vote to
which the holder thereof may be entitled,
whether such right or power is granted
by proxy or otherwise); provided, however,
that notwithstanding anything to the
contrary contained in this Agreement, a
Holder may Transfer Shares or any right,
title or interest in any Additional Shares
to a transferee if such transferee
executes and delivers to the Company and
the Purchaser a joinder to this
Agreement satisfactory in form and
substance to the Company and the Purchaser,
stating that such transferee agrees to be
fully bound by the terms of this
Agreement.
(b) Agreement to Vote. Each Holder hereby agrees to vote or to
cause
to be voted all of the Shares and
Additional Shares owned of record or
beneficially by such Holder as
2
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of the record date for such meeting or
written consent, at the Company's
upcoming meeting of Shareholders and at any
other annual or special meeting of
stockholders of the Company where any such
proposal is submitted, and in
connection with any written consent of
stockholders: (A) in favor of the
Proposed Transaction; and (B) against any
action that may reasonably be expected
to (i) impede, interfere with, delay,
postpone or attempt to discourage the
consummation of the transactions
contemplated by the Asset Purchase Agreement or
(ii) result in a breach of any of the
covenants, representations, warranties or
other obligations or agreements of the
Company unde
