February 2, 2005
By Facsimile and U.S. Mail
Alison W. Miller, Esq.
Stearns Weaver Miller Weissler
Alhadeff & Sitterson , P.A.
150 West Flagler Street, Suite 2200
Miami, Florida 33130
Re: IVAX Corporation
Schedule TO-I
Filed January 20, 2005
Dear Ms. Miller:
We have the following comments on the above-referenced
filing:
Offer to Exchange
1. Security holders are entitled to rely on the disclosure in your
document. Please eliminate the disclaimer in the fifth paragraph
on
the second page of the introduction.
2. On page iii you state that you "undertake no obligation to
update
or revise these [forward-looking] statements." This disclosure is
inconsistent with your obligation under Rules 13e-4(c)(3) and 13e-
4(e)(3) to amend the Schedule to reflect a material change in the
information previously disclosed. Please revise.
3. Please revise your disclosures to describe, in plain English,
the
following:
* Describe the contingent conversion provisions of the old notes
so
that it is clear how EITF Issue No. 04-8 applies, including, for
example, the implied conversion price and market price trigger.
* Clarify that the exchange will result in your reporting higher
EPS
(retroactively and prospectively) than if the exchange did not
occur.
Give an example of what the effect on 2003 reported EPS would be
if
the exchange did not occur.
Also revise the summary to highlight this information.
4. Confirm supplementally, if true, that you applied the guidance
in
EITF Issue No. 96-19 with respect to your accounting treatment for
the exchange transaction.
5. In an appropriate section of the document, describe the effect
on
your liquidity and capital resources from the cash settlement
provisions of the new notes, and discuss the means by which you
reasonably expect to finance the cash requirement resulting from
conversion of the new notes.
6. Revise to describe the accounting treatment for the exchange
transaction (i.e., is there a gain or loss, and why).
Summary, page 1
7. We note the statement on page 2 that you have reserved the
right
to terminate the exchange offer in your discretion for any reason.
Clarify that you do not intend to terminate the offer for any
reason
other than what has been expressed in the conditions section. The
staff believes that if a bidder can terminate an offer for any
reason, the offer is illusory.
Purpose of the Offer, page 36
8. Revise this section to provide a detailed description of the
accounting rule changes and how they apply to your notes. In
doing
so, disclose the material effects that will result from your
consummation of the exchange offering due to the applicable
accounting rules, the conversion features of your new notes, or
otherwise. Please ensure that your discussion briefly explains
the
impact that the conversion features of your new notes will have on
the number of shares that you include in the calculation of the
number of your fully diluted shares outstanding as compared to the
number of shares that would be have been calculated based upon the
conversion features of your old notes. Also, revise the summary
to
highlight this information and to provide a cross-reference to
more
detailed disclosure later in the document. Also revise the
summary
of differences between the new and old notes.
Conditions to the Offer, page 38
9. A tender offer may be conditioned on a variety of events and
circumstances, provided that they are not within the direct or
indirect control of the bidder, and are drafted with sufficient
specificity to allow for objective verification that the
conditions
have been satisfied. With this in mind, revise the fifth bullet
point to clarify the events that may trigger this condition and
which
standard applies.
Description of the New Notes, page 52
10. We note that "to the extent permitted by law, [you] may, from
time to time, increase the conversion rate of the new notes for a
period of 20 days." Please explain your ability to do so and your
understanding of the applicable law, including any consideration
you
have given to whether Rule 13e-4 would apply to this change. See,
for comparison, the letter regarding Heritage Entertainment, Inc.
(April 10, 1987).
Certain United States Federal Income Tax Consequences, page 65
11. Revise this subsection and its title to clarify that you
describe
all material federal tax consequences of the transaction. In this
regard, you should eliminate all statements (including that on
page
68) that the discussion relates to "certain" tax consequences and
that the summary is not a "complete analysis." We understand that
you may not be able to describe all tax effects of the offer for
every security holder due to their individual circumstances;
however,
you should revise the second sentence of this paragraph and the
bold
paragraph on page 66 to clarify that you have described all
material
federal tax consequences.
Incorporation of Certain Documents by Reference, page 75
12. Schedule TO does not specifically allow you to forward
incorporate disclosure in subsequently filed documents. In fact,
doing so is inconsistent with the technical requirements of
General
Instruction F of Schedule TO and your obligation under Rules 13e-
4(c)(3) and 13e-4(e)(3) to amend the Schedule to reflect a
material
change in the information previously disclosed. Please revise.
13. We note that you incorporate by reference the financial
information required by Item 1010(a) of Regulation M-A. Item
1010(c)
of Regulation M-A requires that at least a summary of that
information be disseminated to security holders. See Instruction
6
to Item 10 of Schedule TO and Regulation M-A telephone
interpretation
H.7 available at www.sec.gov in the July 2001 Supplement to the
Division of Corporation Finance`s Manual of Publicly Available
Telephone Interpretations. Please revise to include at least the
summary financial information required by Item 1010(c), and advise
us
how you intend to disseminate the information.
Letter of Transmittal
14. We note the references to the issuance of the new notes in
reliance on no-action letters issued by the staff on pages 4-5.
Tell
us what letters you believe apply to this offer.
Closing Comments
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require.
Since the company and its management are in possession of all
facts
relating to a company`s disclosure, they are responsible for the
accuracy and adequacy of the disclosures they have made.
In connection with responding to our comments, please
provide,
in writing, a statement from the company acknowledging that
* the company is responsible for the adequacy and accuracy of the
disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose the
Commission from taking any action with respect to the filing; and
* the company may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in our review of your filing or in
response to our comments on your filing.
* * *
Please respond to these comments by promptly amending the
filing and submitting a response letter filed via EDGAR under the
label "CORRESP." If the information you provide in response to
our
comments materially changes the information that you have already
provided to security holders, disseminate the revised materials in
a
manner reasonably calculated to inform them of the new
information.
If you do not agree with a comment, please tell us why in your
response. Direct any questions to me at (202) 942-1881. You may
also contact me by facsimile at (202) 942-9638.
Sincerely,
Abby Adams
Special Counsel
Office of Mergers and Acquisitions
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Alison W. Miller, Esq.
February 2, 2005
Page 2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-0303
DIVISION OF
CORPORATION FINANCE