As filed with the Securities and Exchange Commission on February 18, 2000.
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
IVAX CORPORATION
(Exact name of registrant as specified in its charter)
--------------
FLORIDA 16-1003559
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4400 BISCAYNE BOULEVARD
MIAMI, FLORIDA 33137
(305) 575-6000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
--------------
IVAX CORPORATION 1999 EMPLOYEE STOCK PURCHASE PLAN
--------------
(Full Title of Plan)
CAROL GILLESPIE, ESQ.
SENIOR VICE PRESIDENT - GENERAL COUNSEL
IVAX CORPORATION
4400 BISCAYNE BOULEVARD
MIAMI, FLORIDA 33137
(305) 575-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO:
STEVEN D. RUBIN, ESQ.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
150 WEST FLAGLER STREET, SUITE 2200
MIAMI, FLORIDA 33130
(305) 789-3200
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================== ====================== ================ ===================== =================
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE(1) FEE
------------------------------------ ---------------------- ---------------- --------------------- -----------------
<S> <C> <C> <C> <C>
Common Stock, $.10 par value 2,800,000 shares(2) $34.53 $96,684,000 $25,524.58
==================================== ====================== ================ ===================== =================
</TABLE>
(1) Estimated solely for purpose of calculating the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low
sales prices of the Common Stock on February 15, 2000, as reported on
the American Stock Exchange.
(2) This Registration Statement also relates to such indeterminate number
of additional shares of Common Stock of the Registrant as may be
issuable as a result of stock splits, stock dividends,
recapitalizations, mergers, reorganizations, combinations or exchanges
of shares or other similar events.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
The following documents filed by IVAX Corporation, a Florida
corporation (the "Registrant"), with the Securities and Exchange Commission (the
"SEC") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") are incorporated by reference herein:
(1) The Registrant's Annual Report on Form 10-K for the
year ended December 31, 1998, filed with the SEC on
March 31, 1999 (the "1998 10-K").
(2) The Registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1999, filed with the SEC
on May 14, 1999.
(3) The Registrant's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1999, filed with the SEC
on August 13, 1999.
(4) The Registrant's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1999, filed with the
SEC on November 9, 1999.
(5) The Registrant's Current Report on Form 8-K, dated
May 19, 1999, filed with the SEC on May 26, 1999.
(6) The portions of the Registrant's definitive Proxy
Statement for its 1999 Annual Meeting of Stockholders
that have been incorporated by reference into the
1998 10-K and was filed with the SEC on Schedule 14A
on April 22, 1999.
(7) The description of the Registrant's Common Stock
contained in the Registrant's Registration Statement
on Form 8-B, filed with the SEC on July 28, 1993
(Commission File No. 1-09623), and any amendment or
report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining 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.
Item 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
II-1
<PAGE>
Section 607.0831 of the Florida Business Corporation Act (the
"Florida Act") provides that a director is not personally liable for monetary
damages to the corporation or any person for any statement, vote, decision or
failure to act regarding corporate management or policy, by a director, unless:
(a) the director breached or failed to perform his duties as a director; and (b)
the director's breach of, or failure to perform, those duties constitutes: (i) a
violation of criminal law unless the director had reasonable cause to believe
his conduct was lawful or had no reasonable cause to believe his conduct was
unlawful; (ii) a transaction from which the director derived an improper
personal benefit, either directly or indirectly; (iii) a circumstance under
which the director is liable for an improper distribution; (iv) in a proceeding
by, or in the right of the corporation to procure a judgment in its favor or by
or in the right of a shareholder, conscious disregard for the best interests of
the corporation, or willful misconduct; or (v) in a proceeding by or in the
right of someone other than the corporation or a shareholder, recklessness or an
act or omission which was committed in bad faith or with malicious purpose or in
a manner exhibiting wanton and willful disregard of human rights, safety or
property.
Section 607.0850 of the Florida Act provides that a
corporation shall have the power to indemnify any person who was or is a party
to any proceeding (other than an action by, or in the right of, the
corporation), by reason of the fact that he is or was a director, officer or
employee or agent of the corporation, against liability incurred in connection
with such proceeding if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. Section 607.0850 also provides that a
corporation shall have the power to indemnify any person, who was or is a party
to any proceeding by, or in the right of, the corporation to procure a judgment
in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, against expenses and amounts paid in
settlement not exceeding, in the judgment of the board of directors, the
estimated expense of litigating the proceeding to conclusion, actually and
reasonably incurred in connection with the defense or settlement of such
proceeding, including any appeal thereof. Section 607.0850 further provides that
such indemnification shall be authorized if such person acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the best
interests of the corporation, except that no indemnification shall be made under
this provision in respect of any claim, issue, or matter as to which such person
shall have been adjudged to be liable unless, and only to the extent that, the
court in which such proceeding was brought, or any other court of competent
jurisdiction, shall determine upon application that, despite the adjudication of
liability, but in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which such court shall
deem proper. Section 607.0850 further provides that to the extent that a
director, officer, employee or agent has been successful on the merits or
otherwise in defense of any of the foregoing proceedings, or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith. Under Section
607.0850, any indemnification under the foregoing provisions, unless pursuant to
a determination by a court, shall be made by the corporation only as authorized
in the specific case upon a determination that the indemnification of the
director, officer, employee or agent is proper under the circumstances because
he has met the applicable standard of conduct. Notwithstanding the failure of a
corporation to provide such indemnification, and despite any contrary
determination by the corporation in a specific case, a director, officer,
employee or agent of the corporation who is or was a party to a proceeding may
apply for indemnification to the appropriate court and such court may order
indemnification if it determines that such person is entitled to indemnification
under the applicable standard.
Section 607.0850 also provides that a corporation shall have
the power to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the corporation against any
liability asserted against him and incurred by him in any such capacity or
arising out
II-2
<PAGE>
of his status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of Section 607.0850.
The Registrant's bylaws provide that it shall indemnify its
officers and directors and former officers and directors to the full extent
permitted by law.
The Registrant has entered into indemnification agreements
with each of its officers and directors. The indemnification agreements
generally provide that the Registrant will pay certain amounts incurred by an
officer or director in connection with any civil or criminal action or
proceeding and specifically including actions by or in the name of the
Registrant (derivative suits) where the individual's involvement is by reason of
the fact that he was or is an officer or director. Under the indemnification
agreements, an officer or director will not receive indemnification if such
person is found not to have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Registrant. The
agreements provide a number of procedures and presumptions used to determine the
officer's or director's right to indemnification and include a requirement that
in order to receive an advance of expenses, the officer or director must submit
an undertaking to repay any expenses advanced on his behalf that are later
determined he was not entitled to receive.
The Registrant's directors and officers are covered by
insurance policies indemnifying them against certain liabilities, including
liabilities under the federal securities laws (other than liability under
Section 16(b) of the Exchange Act), which might be incurred by them in such
capacities.
Item 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
------------------------------------
Not Applicable.
Item 8. EXHIBITS.
--------
The following exhibits are either filed herewith or have been
previously filed as indicated below:
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
5.1 Opinion of Stearns Weaver Miller Weissler Alhadeff &
Sitterson, P.A.
23.1 Consent of Stearns Weaver Miller Weissler Alhadeff &
Sitterson, P.A. (included in Exhibit 5.1 above)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included as part of the Signature Page of
this Registration Statement)
Item 9. UNDERTAKINGS.
------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective
amendment to this Registration Statement:
II-3
<PAGE>
(i) To include any prospectus required
by Section 10(a)(3) of the
Securities Act of 1933, as amended
(the "Securities Act");
(ii) To reflect in the prospectus any
facts or events arising after the
effective date of the Registration
Statement (or the most recent
post-effective amendment thereof)
which, individually or in the
aggregate, represent a fundamental
change in the information set forth
in the Registration Statement;
(iii) 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, 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 Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
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 Registrant 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 Securities Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and had duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Miami, State of Florida, on the 17th day of February,
2000.
IVAX CORPORATION
By: /S/ PHILLIP FROST, M.D.
-------------------------------------
Phillip Frost, M.D., Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Phillip Frost, M.D. and Neil Flanzraich,
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 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, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that each said attorneys-in-fact and agents or any of them, or their or his
substitute or 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.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Phillip Frost, M.D. Chairman of the Board February 17, 2000
- --------------------------- and Chief Executive Officer
Phillip Frost, M.D. (Principal Executive Officer)
/s/ Thomas E. Beier Chief Financial Officer February 17, 2000
- --------------------------- (Principal Financial Officer)
Thomas E. Beier
/s/ Thomas E. McClary Vice President-Accounting February 17, 2000
- --------------------------- (Principal Accounting Officer)
Thomas E. McClary
Director
- ---------------------------
Mark Andrews
/s/ Ernst Biekert, Ph.D. Director February 17, 2000
- ---------------------------
Ernst Biekert, Ph.D.
Director
- ---------------------------
Charles M. Fernandez
II-5
<PAGE>
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Jack Fishman, Ph.D. Director February 17, 2000
- ---------------------------
Jack Fishman, Ph.D
/s/ Neil Flanzraich Director, President and February 17, 2000
- --------------------------- Vice Chairman
Neil Flanzraich
/s/ Jane Hsiao, Ph.D. Director and Vice Chairman - February 17, 2000
- --------------------------- Technical Affairs
Jane Hsiao, Ph.D.
- --------------------------- Director and Deputy Chief
Isaac Kaye Executive Officer
II-6
<PAGE>
INDEX TO EXHIBIT
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
5.1 Opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
23.1 Consent of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
(included in Exhibit 5.1 above)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included as part of the Signature Page of this
Registration Statement)
EXHIBIT 5.1
LAW OFFICES
STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A.
MUSEUM TOWER
150 WEST FLAGLER STREET
MIAMI, FLORIDA 33130
---------
MIAMI (305) 789-3200o BROWARD (954) 463-5440
FAX (305) 789-3395
<TABLE>
<CAPTION>
- ----------------------------- ----------------------------- --------------------------------- ---------------------------------
<S> <C> <C> <C>
E. RICHARD ALHADEFF RICHARD B. JACKSON KEITH E. ROUNSAVILLE OWEN S. FREED
LOUISE JACOWITZ ALLEN THEODORE A. JEWELL BETTY CHANG ROWE SENIOR COUNSEL
STUART D. AMES SHARON LEE JOHNSON STEVEN D. RUBIN
ALEXANDER ANGUEIRA MICHAEL I. KEYES MIMI L. SALL DAVID M. SMITH
LAWRENCE J. BAILIN ROBERT T. KOFMAN NICOLE S. SAYFIE LAND USE CONSULTANT
PATRICK A. BARRY CHAD K. LANG RICHARD E. SCHATZ
SHAWN BAYNE FRANK J. LOPEZ DAVID M. SEIFER
SUSAN FLEMING BENNETT TERRY M. LOVELL JOSE G. SEPULVEDA TAMPA OFFICE
LISA K. BERG JOY SPILLIS LUNDEEN JAY B. SHAPIRO SUITE 2200
MARK J. BERNET GEOFFREY MacDONALD MARTIN S. SIMKOVIC SUNTRUST FINANCIAL CENTRE
HANS C. BEYER BRIAN J. McDONOUGH CURTIS H. SITTERSON 401 EAST JACKSON STREET
MATTHEW W. BUTTRICK ANTONIO R. MENENDEZ RONNI D. SOLOMON TAMPA, FLORIDA 33602
ELLEN I. CHO FRANCISCO J. MENENDEZ MARK D. SOLOV --------
PETER L. DESIDERIO ALISON W. MILLER EUGENE E. STEARNS (813) 223-4800
MARK P. DIKEMAN VICKI LYNN MONROE JENNIFER D. STEARNS
DREW M. DILLWORTH HAROLD D. MOOREFIELD, JR. THOMAS T. STEELE
SHARON QUINN DIXON JOHN N. MURATIDES BRADFORD SWING FORT LAUDERDALE OFFICE
ALAN H. FEIN JOHN K. OLSON SUSAN J. TOEPFER SUITE 1900
ANGELO M. FILIPPI JAY P. W. PHILP ANNETTE TORRES 200 EAST BROWARD BOULEVARD
ELISE FRIEDBAUER KARA E. PLUNKETT DENNIS R. TURNER FORT LAUDERDALE, FLORIDA 33301
ROBERT E. GALLAGHER, JR. DAVID C. POLLACK RONALD L. WEAVER --------
CHAVA E. GENET DARRIN J. QUAM ROBERT I. WEISSLER (954) 462-9500
LATASHA A. GETHERS JOHN M. RAWICZ PATRICIA G. WELLES
PATRICIA K. GREEN PATRICIA A. REDMOND THOMAS H. WILLIAMS, JR.
JOSEPH K. HALL ELIZABETH G. RICE MARTIN B. WOODS
LISHA D. HOGUE GLENN M. RISSMAN
ALICE R. HUNEYCUTT DAVID A. ROTHSTEIN
- ----------------------------- ----------------------------- --------------------------------- ---------------------------------
</TABLE>
February 16, 2000
Ms. Carol J. Gillespie
Senior Vice President,
General Counsel and Secretary
IVAX Corporation
4400 Biscayne Boulevard
Miami, FL 33137
Dear Ms. Gillespie:
We have acted as counsel for IVAX Corporation, a Florida corporation
(the "Company"), with respect to the preparation and filing with the Securities
and Exchange Commission of a Form S-8 Registration Statement (the "Registration
Statement") in connection with the registration of 2,800,000 shares of the
Company's Common Stock, par value $.10 per share (the "Common Stock"), issuable
pursuant to the IVAX Corporation 1999 Employee Stock Purchase Plan (the "Plan").
In connection with our opinion, we have examined the Registration
Statement, including all exhibits thereto, as filed with the Securities and
Exchange Commission, and the Articles of Incorporation, and Bylaws of the
Company, as well as such other documents and proceedings as we have considered
necessary for the purposes of this opinion. We have also examined and are
familiar with the proceedings taken by the Company to authorize the issuance of
the shares of Common Stock pursuant to the Plan.
In rendering this opinion, we have undertaken no independent review of
the operations of the Company. Instead, we have relied solely upon the documents
described above. In examining such documents, we have assumed, without
independent investigation: (i) the authenticity of all
<PAGE>
Ms. Carol J. Gillespie
February 16, 2000
Page 2
documents submitted to us as originals, (ii) the conformity to original
documents of all documents submitted to us as certified or photostatic copies,
(iii) the authenticity of the originals of such latter documents, and (iv) that
all factual information supplied to us was accurate, true and complete. In
addition, as to questions of fact material to the opinions expressed herein, we
have relied upon the accuracy of (i) all representations and warranties
submitted to us for purposes of rendering the opinion and (ii) factual recitals
made in the resolutions adopted by the Board of Directors of the Company. We
express no opinion as to federal securities laws or the "blue sky" laws of any
state or jurisdiction. This opinion is rendered as of the date hereof and we
assume no obligation to update or supplement this opinion to reflect any facts
or circumstances that may hereafter change and/or come to our attention.
Based upon the foregoing and having regard to legal considerations
which we deem relevant, we are of the opinion that the shares of Common Stock
registered under the Registration Statement and issuable in accordance with the
Plan will, if and when issued and delivered by the Company against payment of
adequate consideration therefor in accordance with the terms and conditions of
the Plan, be validly issued, fully paid and non-assessable.
We hereby consent to the inclusion of this opinion letter as an exhibit
to the Registration Statement and to any references to this firm in the
Registration Statement and in the documents incorporated therein by reference.
Very truly yours,
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A.
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
report dated February 26, 1999, except with respect to the matters discussed in
Note 16 therein, as to which the date is March 19, 1999, included in IVAX
Corporation's Annual Report on Form 10-K for the year ended December 31, 1998
and to all references to our Firm included in this Registration Statement.
Arthur Andersen LLP
Miami, Florida
February 15, 2000
