As filed with the Securities and Exchange Commission on June 23, 1999
Registration No. 333 -
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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ICN PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware 33-0628076
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
3300 Hyland Avenue
Costa Mesa, California 92626
(Address of registrant's
principal executive
offices)
ICN PHARMACEUTICALS, INC. LONG-TERM INCENTIVE PLAN
(Full title of the plan)
David C. Watt, Esq.
Executive Vice President, General Counsel and Corporate Secretary
ICN Pharmaceuticals, Inc.
3300 Hyland Avenue, Costa Mesa, California 92626
(714) 545-0100
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Offering Aggregate Registration
Registered Price Per Offering Fee
Share(1) Price(1)
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Common Stock, $.01 par 600,000 $31.69(2) $19,014,000 $5,285.89
value per share shares
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(1) Includes an indeterminate number of shares of Company's Common Stock
that may be issuable by reason of stock splits, stock dividends or
similar transactions in accordance with Rule 416 under the Securities
Act of 1933.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) of the Securities Act of 1933, based upon the
average of the high and low prices of the Registrant's Common Stock as
reported by the New York Stock Exchange on June 18, 1999.
<PAGE>
EXPLANATORY NOTE
This Registration Statement registers 600,000 shares of the Company's
Common Stock issuable pursuant to its Long-Term Stock Incentive Plan. As
permitted by the rules of the Securities and Exchange Commission, (the
"SEC"), this Registration Statement omits the information specified in Part
I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file
at the SEC's public reference rooms in Washington, D.C., New York, NY and
Chicago, IL. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the
public from the SEC's web site at http://www.sec.gov. Reports, proxy and
information statements and other information concerning us can also be
inspected at the offices of the New York Stock Exchange, 20 Broad Street,
New York, NY 10005.
The SEC allows us to "incorporate by reference" information into this
Registration Statement, which means that we can disclose important
information to you by referring you to another document filed separately
with the SEC. The information incorporated by reference is considered to be
part of this Registration Statement, and later information that we file
with the SEC will automatically update this Registration Statement. We
incorporate by reference the following documents listed below and any
future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, as amended, prior to the
termination of the offering:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998 filed with the SEC on March 31, 1999, as amended on Form
10-K/A filed with the SEC on April 30, 1999;
(b) The Company's Quarterly Report on Form 10-Q, for the quarter
ended March 31, 1999 filed with the SEC on May 17, 1999;
(c) Current Reports on Form 8-K filed with the SEC on March 19,
1999; and
(d) The description of the Common Stock contained in the
Registration Statement on Form 8-A, dated November 10, 1994.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
David C. Watt, Esq.
Executive Vice President, General Counsel
and Corporate Secretary
ICN Pharmaceuticals, Inc.
3300 Hyland Avenue, Costa Mesa, California 92626
(714) 545-0100
<PAGE>
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The legality of the securities offered pursuant to this Registration
Statement has been passed upon for the Company by David C. Watt, Esq.,
Executive Vice President, General Counsel and Corporate Secretary. Mr. Watt
currently holds shares of the Common Stock and options to acquire shares of
the Common Stock.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of Delaware (the "GCL")
empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation or enterprise. Depending on the character of the
proceeding, a corporation may indemnify against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred in connection with such action, suit or proceeding
if the person indemnified acted in good faith and in a manner he or she
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
cause to believe his or her conduct was unlawful. In the case of an action
by or in the right of the corporation, no indemnification may be made other
than for expenses (including attorneys' fees), and no indemnification for
expenses may be made in respect to any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine that despite the
adjudication of liability such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
Section 145 further provides that to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to above or in the defense of any claim, issue or
matter therein, he or she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in
connection therewith. However, if the director or officer is not successful
in the defense of any action, suit or proceeding as referred to above or in
the defense of any claim, issue or matter therein, he shall only be
indemnified by the corporation as authorized in the specific case upon a
determination that indemnification is proper because he or she met the
applicable standard set forth above as determined by a majority of the
disinterested Board of Directors or by the stockholders.
The Company's bylaws provide indemnification to its officers and
directors against liability they may incur in their capacity as such, which
indemnification is similar to that provided by Section 145, unless a
determination is reasonably and promptly made by a majority of the
disinterested Board of Directors that the indemnitee acted in bad faith and
in a manner that the indemnitee did not believe to be in or not opposed to
the best interests of the Company, or, with respect to any criminal
proceeding, that the indemnitee believed or had reasonable cause to believe
that his or her conduct was unlawful.
The Company carries directors' and officers' liability insurance,
covering losses up to $5,000,000 (subject to a $500,000 deductible).
The Company, as a matter of policy, enters into indemnification
agreements with its directors and officers indemnifying them against
liability they may incur in their capacity as such. The indemnification
agreements require no specific standard of conduct for indemnification and
make no distinction between civil and criminal proceedings, except in
proceedings where the dishonesty of an indemnitee is alleged. Such
indemnification is not available if an indemnitee is adjudicated to have
acted in a deliberately dishonest manner with actual dishonest purpose and
intent where such acts were material to the adjudicated proceeding.
Additionally, the indemnity agreements provide indemnification for any
judgment or amount paid in settlement of claims by or in the right of the
Company. The indemnification agreements provide that the Company is not
required to provide indemnification for any claim against an indemnitee
where the claim is based upon the indemnitee obtaining personal advantage
or profit to which he or she was not legally entitled, the claim is for an
accounting of profits made in connection with a violation of Section16(b)
of the Exchange Act, or similar state law provision, or the claim was
brought about or contributed to by the dishonesty of the indemnitee.
Section 102(b)(7) of the GCL permits a corporation to include in its
certificate of incorporation a provision eliminating or limiting the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that
such 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 GCL (relating to unlawful payment of dividend and
unlawful stock purchase and redemption), or (iv) for any transaction from
which the director derived an improper personal benefit. The Company has
provided in its certificate of incorporation, as amended, that its
directors shall be exculpated from liability as provided under Section
102(b)(7).
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Description of Exhibit
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4.1 -- Amended and Restated Certificate of Incorporation of
Registrant, filed as Exhibit 3.1 to Registration Statement No.
33-83952 on Form S-1, which is incorporated herein by
reference, as amended by the Certificate of Merger, dated
November 10, 1994, of ICN Pharmaceuticals, Inc., SPI
Pharmaceuticals, Inc., and Viratek, Inc. with and into ICN
Merger Corp., filed as Exhibit 4.1 to Registration Statement
No. 333-08179 on Form S-3, which is incorporated herein by
reference.*
4.2 -- Bylaws of the Registrant, filed as Exhibit 3.2 to Registration
Statement No. 33-83952 on Form S-1, which is incorporated
herein by reference.*
4.3 -- Form of Rights Agreement, dated as of November 2, 1994 between
the Registrant and American Stock Transfer & Trust Company as
Trustee, previously filed as Exhibit 4.3 to Registration
Statement on Form 8-A, dated November 10, 1994, which is
incorporated herein by reference.*
4.4 -- ICN Pharmaceuticals, Inc. Long-Term Incentive Plan previously
filed as Exhibit 10.1 to our Quarterly Report on Form 10-Q for
the quarter ended June 30, 1998, and incorporated herein by
reference. *
5.1 -- Opinion of David C. Watt, Esq., Executive General Counsel and
Corporate Secretary regarding legality of shares of Common
Stock covered by the Registration statement.
15.1 -- Awareness letter of independent accountants regarding
unaudited interim financial statements
23.1 -- Consent of PricewaterhouseCoopers LLP, independent public
accountants.
23.2 -- Consent of David C. Watt, Esq., Executive Vice President,
General Counsel and Corporate Secretary (included in Exhibit
5.1).
24.1 -- Powers of Attorney (included on the signature pages)
* Incorporated by Reference.
Item 9. Undertakings
The Company hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to the 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.
(b) That, for the purpose of determining any liability under
the Securities Act, each post-effective amendment to this 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) 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.
(d) That, for the purpose of determining any liability under
the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the
Securities Act 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
Commission 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 Company of expenses incurred or paid 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 Securities Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Company. Pursuant to the requirements of the Securities Act of
1933, the Company certifies 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 Costa Mesa, California, on June 23, 1999.
ICN PHARMACEUTICALS, INC.
By: /s/ David C. Watt, Esq.
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David C. Watt, Esq.
Executive Vice President,
General Counsel and
Corporate Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature
appears below hereby constitutes and appoints David C. Watt, Esq. and John
E. Giordani, and each of them, as his true and lawful attorneys-in-fact and
agents, each acting alone, with full powers of substitution and
resubstitution, for him in his or her name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement,
including any and all amendments, and any and all documents in connection
therewith, and to file the same, with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents 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 he might or could do in person, and hereby ratifies, approves
and confirms all that his said attorneys-in-fact and agents, each acting
alone, 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
--------- ----- ----
Chairman and Chief Executive June 23, 1999
/s/ Milan Panic Officer
---------------------------------
Milan Panic
/s/ John E. Giordani Executive Vice President - June 23, 1999
--------------------------------- Chief Financial Officer
John E. Giordani
/s/ Adam Jerney Director, President - June 23, 1999
--------------------------------- Chief Operating Officer
Adam Jerney
/s/ Norman Baker, Jr.
--------------------------------- Director June 23, 1999
Norman Barker, Jr.
/s/ Senator Birch Bayh, Esq.
--------------------------------- Director June 23, 1999
Senator Birch Bayh, Esq.
/s/ Alan F. Charles Director June 23, 1999
---------------------------------
Alan F. Charles
/s/ Roger Guillemin, M.D., Ph.D. Director June 23, 1999
---------------------------------
Roger Guillemin, M.D., Ph.D.
/s/ Weldon B. Jolley, Ph.D. Director June 23, 1999
---------------------------------
Weldon B. Jolley, Ph.D.
/s/ Andrei V. Kozyrev Director June 23, 1999
---------------------------------
Andrei V. Kozyrev
/s/ Jean-Francois Kurz Director June 23, 1999
---------------------------------
Jean-Francois Kurz
/s/ Thomas H. Lenagh Director June 23, 1999
---------------------------------
Thomas H. Lenagh
/s/ Charles T. Manatt Director June 23, 1999
---------------------------------
Charles T. Manatt
/s/ Stephen D. Moses Director June 23, 1999
---------------------------------
Stephen D. Moses
/s/ Michael Smith, Ph.D. Director June 23, 1999
---------------------------------
Michael Smith, Ph.D.
/s/ Roberts A. Smith, Ph.D. Director June 23, 1999
---------------------------------
Roberts A. Smith, Ph.D.
/s/ Richard W. Starr Director June 23, 1999
---------------------------------
Richard W. Starr
<PAGE>
INDEX TO EXHIBITS
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Exhibit No. Description of Exhibit Page No.
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Exhibit No. Description of Exhibit
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4.1 -- Amended and Restated Certificate of Incorporation of
Registrant, filed as Exhibit 3.1 to Registration Statement No.
33-83952 on Form S-1, which is incorporated herein by
reference, as amended by the Certificate of Merger, dated
November 10, 1994, of ICN Pharmaceuticals, Inc., SPI
Pharmaceuticals, Inc., and Viratek, Inc. with and into ICN
Merger Corp., filed as Exhibit 4.1 to Registration Statement
No. 333-08179 on Form S-3, which is incorporated herein by
reference.*
4.2 -- Bylaws of the Registrant, filed as Exhibit 3.2 to Registration
Statement No. 33-83952 on Form S-1, which is incorporated
herein by reference.*
4.3 -- Form of Rights Agreement, dated as of November 2, 1994 between
the Registrant and American Stock Transfer & Trust Company as
Trustee, previously filed as Exhibit 4.3 to Registration
Statement on Form 8-A, dated November 10, 1994, which is
incorporated herein by reference.*
4.4 -- ICN Pharmaceuticals, Inc. Long-Term Incentive Plan previously
filed as Exhibit 10.1 to our Quarterly Report on Form 10-Q for
the quarter ended June 30, 1998, and incorporated herein by
reference. *
5.1 -- Opinion of David C. Watt, Esq., Executive General Counsel and
Corporate Secretary regarding legality of shares of Common
Stock covered by the Registration statement.
15.1 -- Awareness letter of independent accountants regarding unaudited
interim financial statements
23.1 -- Consent of PricewaterhouseCoopers LLP, independent public
accountants.
23.2 -- Consent of David C. Watt, Esq., Executive Vice President,
General Counsel and Corporate Secretary (included in Exhibit
5.1).
24.1 -- Powers of Attorney (included on the signature pages)
* Incorporated by Reference.
EXHIBIT 5.1
[ICN PHARMACEUTICALS, INC. LETTERHEAD]
ICN Pharmaceuticals, Inc.
3300 Hyland Avenue
Costa Mesa, California 92626
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
I am the Executive Vice President, General Counsel and Corporate
Secretary of ICN Pharmaceuticals, Inc., a Delaware corporation (the
"Company"). The Company is filing with the Securities and Exchange
Commission a Registration Statement on Form S-8 (the "Registration
Statement") covering 600,000 shares (the "Shares") of Common Stock, par
value $.01 per share, of the Company, issuable pursuant to the Company's
Long-Term Incentive Plan (the "Plan").
All assumptions and statements of reliance herein have been made
without any independent investigation or verification on our part except to
the extent otherwise expressly stated, and we express no opinion with
respect to the subject matter or accuracy of such assumptions or items
relied upon.
In connection with this opinion, I have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records
of the Company, such certificates of public officials and such other
documents, and (iii) received such information from officers and
representatives of the Company, as I have deemed necessary or appropriate
for the purposes of this opinion. In all examinations, I have assumed the
legal capacity of all natural persons executing documents, the genuineness
of all signatures, the authenticity of original and certified documents and
the conformity to original or certified copies of all copies submitted to
us as conformed or reproduction copies. As to various questions of fact
relevant to the opinions expressed herein, I have relied upon, and assume
the accuracy of, representations and warranties contained in documents and
certificates and oral or written statements and other information of or
from representatives of the Company and others and assume compliance on the
part of all parties to the documents with their covenants and agreements
contained therein.
Based upon the foregoing and subject to the limitations,
qualifications and assumptions set forth herein, I am of the opinion that
the Shares, when issued or sold, and when delivered in accordance with the
provisions of the Plan, will be duly authorized, validly issued, fully paid
and non-assessable.
The opinion expressed herein is limited to the General Corporation Law
of the State of Delaware, as currently in effect.
I hold restricted stock granted under the Plan.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, I do not hereby admit that
I am in the category of such persons whose consent is required under
Section 7 of the Securities Act of 1933, as marked.
The opinions expressed herein are solely for your benefit in
connection with the Form S-8 and may not be relied on in any manner or for
any purpose by any other person or entity.
Very truly yours,
ICN, PHARMACEUTICALS, INC.
/s/ David C. Watt, Esq.
------------------------------
By: David C. Watt, Esq.
Exhibit 15.1
June 18, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: ICN Pharmaceuticals, Inc.
Registration on Form S-8
We are aware that our report dated May 7, 1999 on our review of interim
financial information of ICN Pharmaceuticals, Inc. (the "Company") for the
period ended March 31, 1999 and included in the Company's quarterly reports
on Form 10-Q for the quarter then ended is incorporated by reference in
this registration statement. Pursuant to Rule 436(c) under the Securities
Act of 1933, this report should not be considered a part of the
registration statement prepared or certified by us within the meaning of
Sections 7 and 11 of that Act.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Newport Beach, California
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of ICN Pharmaceuticals, Inc. (the "Company") on Form S-8 (File
No.___________) of our report dated March 4, 1999, on our audits of the
consolidated financial statements and consolidated financial statement
schedule of ICN Pharmaceuticals, Inc. as of December 31, 1998 and 1997, and
for each of the three years in the period ended December 31, 1998, which
report includes an emphasis of a matter paragraph related to the Company's
change in method of accounting for ICN Yugoslavia, a previously
consolidated subsidiary.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Newport Beach, California
June 18, 1999
