Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FOREST LABORATORIES, INC.
(Exact Name of Issuer as specified in its Charter)
DELAWARE 11-1798614
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
909 THIRD AVENUE
NEW YORK, NEW YORK 10022
(Address of principal executive offices)
2000 STOCK OPTION PLAN
(Full title of the plan)
JOHN E. EGGERS
VICE PRESIDENT-FINANCE &
CHIEF FINANCIAL OFFICER
FOREST LABORATORIES, INC.
909 THIRD AVENUE
NEW YORK, NEW YORK 10022
(Name and address for agent for service)
(212) 421-7850
Telephone Number, including area code, of agent for service
CALCULATION OF REGISTATION FEE
=============================================================================
Title of Amount to Proposed Proposed Amount of
Securities be Maximum Maximum Registration
to be Registered Price Per Aggregate Fee
registered (1) Share(2)(3) Offering
Price(2)(3)
-----------------------------------------------------------------------------
Common Stock 4,000,000 shares $128.656 $514,624,000 $135,861
=============================================================================
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of
1933,this registration statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the employee benefit
plan described herein.
(2) Pursuant to Rule 457(h)(1) under the Securities Act of 1933, the
proposed maximum price per share, the proposed maximum aggregate
offering price and the amount of registration fee have been computed
on the basis of the average of the high and low prices of the Common
Stock reported on the New York Stock Exchange on October 20, 2000.
(3) Estimated solely for the purpose of calculating the registration
fee.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and
Exchange Commission are incorporated herein by reference:
(a) The Annual Report of Forest
Laboratories, Inc. (the "Company") for the
fiscal year ended March 31, 2000 filed
pursuant to Section 13(a) of the Securities
Exchange Act of 1934.
(b) All other reports of the
Company filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934
since the end of the fiscal year ended
March 31, 2000.
(c) The description of the
Company's Common Stock contained in the
Registration Statement on Form 8-A filed with
the Securities Exchange Commission on
September 28, 1999.
All documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, prior to the filing of a post-effective amendment
indicating that all securities offered hereby have been sold or
deregistering all such securities then unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Paragraph TWELFTH of the Company's Certificate of
Incorporation contains the following provisions with respect to
indemnification and certain limitations on liability of directors and
officers:
"TWELFTH: (a) The Corporation shall
indemnify any and all of its directors or
officers or former directors or officers or
any person who may have served at its request
as a director or officer of another
corporation in which it is a creditor against
expenses actually and necessarily incurred by
them in connection with the defense of any
action, suit or proceeding in which they, or
any of them, are made parties, or a party, by
reason of being or having been directors or
officers or a director or officer of the
Corporation, or of such other corporation,
except in relation to matters as to which any
such director or officer or former director or
officer or person shall be adjudged in such
action, suit or proceeding to be liable for
negligence or misconduct in the performance of
duty. Such indemnification shall not be
deemed exclusive of any other rights to which
those indemnified may be entitled, under any
by-law, agreement, vote of stockholders, or
otherwise.
(b) No person serving as a director of
the Corporation shall be liable to the
Corporation or its shareholders for monetary
damages for breach of fiduciary duty as a
director, provided that this provision shall
not eliminate or limit the liability of a
director (i) for any breach of the director's
duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not
in good faith or which involve intentional
misconduct or a knowing violation of law,
(iii) under section 174 of the Delaware
General Corporation Law, or (iv) for any
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transaction from which the director derived an
improper personal benefit."
Insofar as indemnification for liabilities arising
under the Securities Act of 1933, as amended, may be permitted to
directors, officers or persons controlling the Company pursuant to
the foregoing provisions, the Company has been informed that, in the
opinion of the Securities and Exchange Commission, such indemnification
is against public policy as expressed in the Securities Act of 1933 and is
therefore unenforceable. Furthermore, the Company has given certain
undertakings with respect to indemnification in connection with this
Registration Statement.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Exhibit
----------- -------
3.1 Amended and Restated By-Laws of the Company, as amended on
September 30, 1994. (Incorporated herein by reference to
Exhibit 2 to the Company's Current Report on Form 8-K,
filed on October 11, 1994.)
4.1 Relevant portion of the Company's Certificate of
Incorporation, as amended, defining the rights of holders
of the Company's Common Stock. (Incorporated herein by
reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-8, Registration No. 33-7633, filed on
November 30, 1990.)
5.1 Opinion of Dornbush Mensch Mandelstam & Schaeffer, LLP as
to the legality of the securities issued under the 2000
Plan.
24.1 Consent of BDO Seidman, LLP, independent certified public
accountants to the Company.
24.2 Consent of Dornbush Mensch Mandelstam & Schaeffer, LLP,
counsel to the Company - contained in Exhibit 5.1.
28.1 The 2000 Stock Option Plan, approved by Stockholders on
August 14, 2000. (Incorporated herein by reference to
Exhibit A to the Company's Proxy Statement relating to its
2000 Annual Meeting of Stockholders.)
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to this
Registration Statement to include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in
the Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new Registration Statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Company hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Company's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers, and controlling persons of the Company pursuant to the
foregoing provisions, or otherwise, the Company has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than payment by the
Company of expenses paid or incurred by a director, officer or
controlling person of the Company in the successful defense of any
action, suit, or proceeding) is asserted by such director, officer, or
controlling person in connection with the securities being registered,
the Company will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Company certified that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of New York
and State of New York, on the 23rd day of October, 2000.
FOREST LABORATORIES, INC.
By: /s/Howard Solomon
---------------------------
Howard Solomon,
Chairman of the Board,
Chief Executive
Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Howard Solomon and
Kenneth E. Goodman, and each of them, his true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective amendments)
to this registration statement and all documents relating thereto, and
to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as each might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them or their substitutes may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
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SIGNATURE TITLE DATE
--------- ----- ----
PRINCIPAL EXECUTIVE OFFICER:
/s/Howard Solomon Chairman of the Board, October 23, 2000
-------------------------- Chief Executive
Howard Solomon Officer and Director
PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER:
/s/John E. Eggers Vice President-Finance October 23, 2000
------------------------- and Chief Financial
John E. Eggers Officer
DIRECTORS:
/s/Kenneth E. Goodman President, Chief October 23, 2000
------------------------- Operating Officer
Kenneth E. Goodman and Director
/s/George S. Cohan Director October 23, 2000
-------------------------
George S. Cohan
/s/William J. Candee Director October 23, 2000
-------------------------
William J. Candee
/s/Dan L. Goldwasser Director October 23, 2000
-------------------------
Dan L. Goldwasser
/s/Lester B. Salans, M.D. Director October 23, 2000
-------------------------
Lester B. Salans, M.D.
/s/Phillip M. Satow Director October 23, 2000
-------------------------
Phillip M. Satow
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EXHIBIT INDEX
Exhibit Consecutively
Number Exhibit Numbered Page
------------------------------------------------------------------------
5.1 Opinion of Dornbush Mensch Mandelstam II-8
& Schaeffer, LLP, including consent of
such counsel.
24.1 Consent of BDO Seidman, LLP. II-9
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EXHIBIT 5.1
DORNBUSH MENSCH MANDELSTAM & SCHAEFFER, LLP
747 THIRD AVENUE
NEW YORK, NEW YORK, 10017
October 23, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Forest Laboratories, Inc.
Registration Statement on Form S-8
----------------------------------
Gentlemen:
We have been requested by Forest Laboratories, Inc., a Delaware
corporation (the "Company"), to furnish you with our opinion as to the
matters hereinafter set forth in connection with the above-captioned
registration statement (the "Registration Statement") covering an
aggregate of 4,000,000 shares of the Company's common stock, par value
$.10 per share (the "Common Stock"), offered on behalf of the Company
(the "Shares") in connection with the 2000 Stock Option Plan.
In connection with this opinion, we have examined the Registration
Statement and the Company's Certificate of Incorporation and By-laws,
as amended to date, the 2000 Stock Option Plan, copies of the records
of corporate proceedings of the Company, and such other documents as
we have deemed necessary to enable us to render the opinion
hereinafter expressed.
Based upon and subject to the foregoing, we are of the opinion that
the Shares, when sold in the manner described in the Registration
Statement, will be legally issued, fully paid and non-assessable.
We render no opinion as to the laws of any jurisdiction other than
the internal laws of the State of New York and the internal corporate
law of the State of Delaware.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/DORNBUSH MENSCH MANDELSTAM & SCHAEFFER, LLP
-------------------------------------------
DORNBUSH MENSCH MANDELSTAM & SCHAEFFER, LLP
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EXHIBIT 24.1
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the
Registration Statement on Form S-8 of our reports dated May 1, 2000,
relating to the consolidated financial statements and schedule of
Forest Laboratories, Inc. appearing in or incorporated by reference to
the Company's Annual Report on Form 10-K for the year ended March 31,
2000.
/s/BDO SEIDMAN, LLP
-------------------
BDO SEIDMAN, LLP
New York, New York
October 23, 2000
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