As filed with the Securities and Exchange Commission on November 9, 2001
Registration Statement No. 333-
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UNITED STATES
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
(State or other jurisdiction of incorporation or organization)
33-0628076
(I.R.S. Employer Identification No.)
3300 Hyland Avenue
Costa Mesa, California 92626
(Address of principal executive offices, including zip code)
ICN PHARMACEUTICALS, INC. AMENDED AND RESTATED 1998 STOCK OPTION PLAN
(Full title of the Plan)
GREGORY KEEVER, ESQ.
Executive Vice President, General Counsel
and Corporate Secretary
ICN Pharmaceuticals, Inc.
3300 Hyland Avenue, Costa Mesa, California 92626
(714) 545-0100
(Name and address of agent for service)
(Telephone number, including area code, of agent for service)
WITH COPIES TO
JEFFREY E. COHEN, ESQ.
Coudert Brothers
1114 Avenue of the Americas
New York, New York 10036-7703
(212) 626-4400
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Amount maximum maximum Amount of
securities to to be offering price aggregate registration
be registered registered(1) per share (2) offering price (2) fee
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Common Stock,
$.01 par value 6,750,000
per share shares $26.055 $175,871,250.00 $43,967.81
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(1) Pursuant to Rule 416(a) of the Securities Act of 1933, this Registration
Statement also registers such indeterminate number of additional shares as may
become issuable in connection with share splits, share dividends or similar
transactions.
(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 November 7, 2001.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Documents containing the information required by Part I of this
Registration Statement will be sent or given to participants in the Plan as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended. Such
documents are not filed with the Securities and Exchange Commission in reliance
on Rule 428. Such documents and the documents incorporated by reference herein
pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus
that meets the requirements of Section 10 (a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
ICN Pharmaceuticals, Inc. ("ICN") hereby incorporates herein by reference
the following documents which are on file with the Securities and Exchange
Commission:
(a) Annual Report on Form 10-K for the fiscal year ended December 31, 2000,
dated April 2, 2001, which was amended on April 11, 2001, April 30, 2001,
June 29, 2001, and November 2, 2001 on Form 10-K/A;
(b) Quarterly Reports on Form 10-Q for the quarter ended March 31, 2001,
dated May 15, 2001, and for the quarter ended June 30, 2001, dated August
14, 2001;
(c) Current Reports on Form 8-K, dated March 20, 2001, March 22, 2001, July
3, 2001, July 13, 2001 and July 18, 2001, respectively; and
(d) the description of the Common Stock contained in the Registration
Statement on Form 8-A, dated November 10, 1994.
In addition, all documents and other reports filed by ICN, respectively,
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act that are
filed subsequent to the date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated herein by reference and to be part hereof from the respective date
of filing of each such document.
Any statement contained herein or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained in any other subsequently filed document
incorporated by reference modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of Delaware 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 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 registrant'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 registrant, 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 registrant carries directors' and officers' liability insurance,
covering losses up to $10,000,000 (subject to a $250,000 deductible). The
registrant, 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 do not 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
2
for an accounting of profits made in connection with a violation of Section
16(b) of the Securities Exchange Act of 1934, 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 Delaware General Corporation Law, as amended,
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 directors' 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 (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 registrant has provided in its certificate of incorporation, as
amended, that its directors shall be exculpated from liability as provided under
Section 102(b)(7).
The foregoing summaries are necessarily subject to the complete text of the
Delaware General Corporation Law, the registrant's Certificate of Incorporation
and the agreements referred to above and are qualified in their entirety by
reference thereto.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
5.1 Opinion of Coudert Brothers regarding the legality of shares of
Common Stock covered by the Registration Statement.
15.1 Awareness Letter of PricewaterhouseCoopers LLP, independent public
accountants regarding unaudited interim financial statements.
23.1 Consent of PricewaterhouseCoopers LLP regarding the audited
financial statements of ICN Pharmaceuticals, Inc.
23.2 Consent of Coudert Brothers (included in Exhibit 5.1).
24.1 Powers of Attorney (included on signature pages of this Registration
Statement).
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ITEM 9. UNDERTAKINGS
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 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, 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; and
(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.
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.
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 provisions described in Item 6 hereof, or otherwise,
the registrant 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 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 them is against public
policy as expressed in the Securities 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 registrant
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 November 8, 2001.
ICN PHARMACEUTICALS, INC.
Registrant
By: /s/ Milan Panic
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Name: Milan Panic
Title: Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints each of Richard A. Meier and Gregory
Keever, Esq., acting severally, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, and in any and all capacities, to sign any
and all 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 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 such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their 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
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/s/ Milan Panic Chairman and November 8, 2001
---------------------------- Chief Executive Officer
Milan Panic
/s/ Richard A. Meier Executive Vice President and November 8, 2001
---------------------------- Chief Financial Officer
Richard A. Meier
/s/ John Giordani Executive Vice President November 8, 2001
---------------------------- (principal accounting officer)
John Giordani
SIGNATURE TITLE DATE
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/s/ Norman Barker, Jr. Director November 8, 2001
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Norman Barker, Jr.
Director , 2001
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Senator Birch E. Bayh, Esq.
Director , 2001
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Edward A. Burkhardt
/s/ Alan F. Charles Director November 8, 2001
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Alan F. Charles
Director , 2001
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Ronald R. Fogleman
/s/ Roger Guillemin, M.D., Ph.D. Director November 8, 2001
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Roger Guillemin, M.D., Ph.D.
/s/ Adam Jerney Director, President and November 8, 2001
------------------------------- Chief Operating Officer
Adam Jerney
Director , 2001
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Jean-Francois Kurz
Director , 2001
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Steven J. Lee
/s/ Stephen D. Moses Director November 8, 2001
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Stephen D. Moses
/s/ Rosemary Tomich Director November 8, 2001
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Rosemary Tomich