EXHIBIT 10.23
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS, AND NEITHER
THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER
SUCH ACT AND SUCH LAWS, WHICH, IN THE OPINION OF COUNSEL FOR THE HOLDER, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO COUNSEL FOR THIS COMPANY, IS
AVAILABLE.
Warrant to Purchase Shares
Of Common Stock of IVAX Corporation
November 18, 1999
This certifies that Frost-Nevada Limited Partnership, a Nevada limited
partnership (the "Holder"), for value received, is entitled, subject to the
adjustment and to the other terms set forth below, to purchase from IVAX
Corporation, a Florida corporation (the "Company"), an aggregate of 500,000
fully paid and nonassessable shares of the Company's Common Stock, par value
$.10 (the "Warrant Shares"), at a price per share of $18.00 (the "Purchase
Price") at any time or from time to time, but not earlier than the Commencement
Date (as defined below) or later than 5:00 P.M. (Eastern Time) on the Expiration
Date (as defined below), upon surrender to the Company of this Warrant properly
endorsed with the form of Subscription Agreement attached hereto as Exhibit A,
such Subscription Agreement to be duly filled in and signed, and upon payment in
cash by wire transfer or cashier's check of the aggregate Purchase Price for the
number of shares for which this Warrant is being exercised. The Purchase Price
and, in some cases, the number of shares purchasable hereunder are subject to
adjustment as provided in Section 3 of this Warrant. This Warrant and all rights
hereunder, to the extent not exercised in the manner set forth herein, shall
terminate and become null and void on the Expiration Date. "Commencement Date"
shall mean the date of this Warrant. "Expiration Date" shall mean the date seven
(7) years following the Commencement Date.
This Warrant Certificate is subject to the following terms and
conditions:
1. Exercise; Issuance of Certificates; Payment for Shares. This Warrant
is exercisable, in whole or in part, at the option of the Holder at any time or
from time to time, but not later than 5:00 P.M. (Eastern Time) on the Expiration
Date. The Company agrees that the Warrant Shares purchased under this Warrant
shall be and are deemed to be issued to Holder as the record owner of such
shares as of the close of business on the date on which this Warrant shall have
been surrendered and payment made for such shares. Subject to the provisions of
Section 2, certificates for the Warrant
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Shares so purchased, together with any other securities or property to which
Holder is entitled upon such exercise, shall be delivered to Holder by the
Company or the Company's transfer agent at the Company's expense within a
reasonable time after the rights represented by this Warrant have been
exercised. Each stock certificate so delivered shall be in such denominations of
Common Stock as may be requested by Holder and shall be registered in the name
of Holder or such other name as shall be designated by Holder, subject to the
limitations contained in Section 2. Unless this Warrant shall have expired, a
Warrant representing the number of shares, if any, with respect to which this
Warrant shall not have been exercised shall be issued to the holder within the
same period.
2. Shares to Be Fully Paid; Reservation of Shares. The Company
covenants and agrees that all shares of Common Stock that may be issued upon the
exercise of the rights represented by this Warrant will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable. The Company covenants
that it will reserve and keep available a sufficient number of shares of its
authorized but unissued Common Stock for such exercise. The Company will take
all such reasonable action as may be necessary to assure that such shares of
Common Stock may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of any domestic securities
exchange or automated quotation system upon which the Common Stock may be
listed.
3. Adjustment of Purchase Price; Number of Shares. The Purchase Price
and the number of shares purchasable upon the exercise of this Warrant shall be
subject to adjustment from time to time upon the occurrence of certain events
described below.
3.1. Subdivision or Combination of Stock and Stock Dividend.
In case the Company shall at any time subdivide its outstanding shares of Common
Stock into a greater number of shares or declare a dividend upon its Common
Stock payable solely in shares of Common Stock, the Purchase Price in effect
immediately prior to such subdivision or declaration shall be proportionately
reduced, and the number of shares issuable upon exercise of the Warrant shall be
proportionately increased. Conversely, in case the outstanding shares of Common
Stock of the Company shall be combined into a smaller number of shares, the
Purchase Price in effect immediately prior to such combination shall be
proportionately increased, and the number of shares issuable upon exercise of
the Warrant shall be proportionately reduced.
3.2. Notice of Adjustment. Promptly after any adjustment of
the Purchase Price or any increase or decrease in the number of shares of Common
Stock purchasable upon the exercise of this Warrant, the Company shall give
written notice thereof, by first class mail, postage prepaid, addressed to
Holder at the address of Holder as shown on the books of the Company. The notice
shall be signed by the Company's chief financial officer and shall state the
effective date of the adjustment and the Purchase Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of this Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based.
3.3. Other Notices. If at any time:
(a) the Company shall declare any cash dividend upon its
Common Stock;
(b) the Company shall declare any dividend upon its Common
Stock payable in shares of Common Stock or make any special dividend or
other distribution to the holders of its Stock:
(c) the Company shall offer for subscription pro rata to the
holders of the Common Stock any additional shares of stock of any class
or series or other rights;
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(d) there shall be any reclassification or recapitalization of
its Common Stock or any consolidation or merger of the Company with
another corporation, or a sale of all or substantially all of the
Company's assets to another corporation; or
(e) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give Holder (i) at
least thirty (30) days written notice of the date on which the books of the
Company shall close or a record shall be taken for such dividend, distribution
or subscription rights or for determining rights to vote in respect of any such
dissolution, liquidation or winding up; (ii) at least ten (10) days prior
written notice of the date on which the books of the Company shall close or a
record shall be taken for determining rights to vote in respect of any such
consolidation, merger or sale; and (iii) in the case of any such consolidation,
merger, sale, dissolution, liquidation or winding up, at least thirty (30) days
written notice of the date when the same shall take place. Any notice given in
accordance with clause (i) above shall also specify, in the case of any such
dividend, distribution or option rights, the date on which the holders of Common
Stock shall be entitled thereto. Any notice given in accordance with clause
(iii) above shall also specify the date on which the holders of Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such consolidation, merger, sale, dissolution,
liquidation or winding-up, as the case may be. If Holder does not exercise this
Warrant prior to the occurrence of an event described above, except as provided
in Sections 3.1 and 3.4, Holder shall not be entitled to receive the benefits
accruing to existing holders of the Common Stock in such event. Notwithstanding
anything herein to the contrary, if and to the extent Holder chooses to exercise
this Warrant within the 10-day period following receipt of the notice specified
in clause (ii) above, Holder may elect to pay the aggregate Purchase Price by
delivering to the Company cash by wire transfer or a cashier's check in the
amount as provided in the first paragraph of this Warrant.
3.4. Changes in Common Stock. In case at any time following
the Commencement Date, the Company shall be a party to any transaction
(including, without limitation, a merger, consolidation, sale of all or
substantially all of the Company's assets or recapitalization of the Common
Stock) in which the previously outstanding Common Stock shall be changed into or
exchanged for different securities of the Company or common stock or other
securities of another corporation or interests in a non-corporate entity or
other property (including cash) or any combination of any of the foregoing (each
such transaction being herein called a "Transaction" and the date of
consummation of a Transaction being herein called a "Consummation Date"), then,
as a condition of the consummation of such Transaction, lawful and adequate
provisions shall be made so that the Holder, upon the exercise hereof at any
time on or after the Consummation Date of such Transaction, shall be entitled to
receive, and this Warrant shall thereafter represent the right to receive, in
lieu of the Warrant Shares issuable upon such exercise prior to such
Consummation Date, the highest amount of securities or other property to which
the Holder would actually have been entitled as a stockholder upon the
consummation of such Transaction if the Holder had exercised this Warrant
immediately prior thereto. The provisions of this Section 3.4 shall similarly
apply to successive Transactions.
4. Issue Tax. The issuance of certificates for the Warrant Shares upon
the exercise of the Warrant shall be made without charge to the Holder for any
issue tax in respect thereof; provided, however, that the Company shall not be
required to pay any tax that may be payable in respect of any
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transfer involved in the issuance and delivery of any certificate in a name
other than that of the Holder.
5. No Voting or Dividend Rights; Limitation of Liability. Nothing
contained in this Warrant shall be construed as conferring upon the Holder the
right to vote or to consent or, except as set forth in Section 3.3 hereof, to
receive notice as a stockholder in respect of any election of directors of the
Company or any other matters or any rights whatsoever as a stockholder of the
Company, until, and only to the extent that, this Warrant shall have been
exercised. Except for the adjustment to the Purchase Price pursuant to Section
3.1 in the event of a dividend on the Common Stock payable in shares of Common
Stock, no dividends or interest shall be payable or accrued in respect of this
Warrant or the interest represented thereby or the shares of Common Stock
purchasable hereunder until, and only to the extent that, this Warrant shall
have been exercised. No provisions hereof, in the absence of affirmative action
by the Holder to purchase shares of Common Stock, and no mere enumeration herein
of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the Purchase Price or as a stockholder of the Company, whether
such liability is asserted by the Company or by its creditors.
6. Restrictions on Transferability of Securities; Compliance With
Securities Act.
6.1. Restrictions on Transferability. This Warrant and the
Warrant Shares shall not be transferable in the absence of registration under
the Securities Act of 1933, as amended (the "Securities Act"), or an exemption
therefrom under the Securities Act.
6.2. Restrictive Legend. Each certificate representing the
Warrant Shares or any other securities issued in respect of the Warrant Shares
upon any stock split, stock dividend, recapitalization, merger, consolidation or
similar event, shall be stamped or otherwise imprinted with a legend in
substantially the following form (in addition to any legend required under
applicable state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
ANY STATE SECURITIES LAWS, AND NEITHER THE SECURITIES NOR ANY
INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS,
WHICH, IN THE OPINION OF COUNSEL FOR THE HOLDER, WHICH COUNSEL
AND OPINION ARE REASONABLY SATISFACTORY TO COUNSEL FOR THE
COMPANY, IS AVAILABLE.
6.3. Registration Rights.
(a) If (but without any obligation to do so) the Company
proposes to register any shares of Common Stock under the Securities
Act in connection with an underwritten public offering of such
securities (other than a registration relating solely to the sale of
securities to participants in a stock plan of the Company, or a
registration which does not relate to shares of Common Stock, or a
registration on any form which does not include substantially the same
information as would be required to be included in a registration
statement covering the sale of the Warrant Shares), the Company shall,
at such time, promptly give the Holder written notice
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of such registration. Upon the written request of the Holder given
within ten (10) days after receipt of such notice from the Company, the
Company shall, subject to the provisions of this subsection 6.3, use
its best efforts to cause to be registered under the Securities Act all
of the Warrant Shares that the Holder has requested be registered.
(b) In connection with any offering subject to subsection
6.3(a), the Company shall not be required to include any of the
Holder's securities in such underwriting unless the Holder accepts the
terms of the underwriting agreement as agreed upon between the Company
and the underwriters selected by the Company. If the Holder holds
Warrant Shares, and if the Company's offering is to be registered on a
form that also permits registration of securities offered by selling
shareholders, the Holder shall be entitled to include in the offering
all or any portion of the Warrant Shares, subject to prior exercise of
this Warrant. Notwithstanding the foregoing, if the managing
underwriter of any such offering, which managing underwriter shall be
selected by the Company, determines that the number of shares proposed
to be sold by the Company, by other shareholders having registration
rights, and/or by the Holder is greater than the number of shares that
the managing underwriter believes feasible to sell at the time, at the
price and upon the terms approved by the Company, then the number of
shares that the managing underwriter believes may be sold shall be
allocated for inclusion in the registration statement in the following
order of priority: (i) shares being offered by the Company; and (ii)
pro-rata among the other shareholders and the Holder, based on the
number of shares of Common Stock each shareholder requested to be
registered.
(c) Whenever required under this section 6.3 to effect the
registration of any Warrant Shares, the Company shall, from and after
the effective date of the applicable registration statement:
(i) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement;
(ii) Furnish to the Holder such numbers of copies of
a prospectus in conformity with the requirements of the Securities Act,
and such other documents as it may reasonably request in order to
facilitate the disposition of Warrant Shares owned by the Holder;
(iii) Use its best efforts to register and qualify
the securities covered by such registration statement under the
securities laws of such jurisdictions as shall be reasonably requested
by the Holder, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such
states or jurisdictions;
(iv) Notify the Holder at any time when the Holder
informs the Company that it intends to deliver a prospectus relating
thereto for the purpose of offering or selling any Warrant Shares
covered by such registration statement, of the happening of any event
as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing, after which the Company
will promptly amend the prospectus, and the Holder agrees not to
deliver the prospectus until such amendment has been declared
effective;
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(v) Furnish, at the request of the Holder, on the
date that such Warrant Shares are delivered to the underwriters, an
opinion, dated such date, of the Company's counsel for the purposes of
such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the
underwriters and to the Holder; and
(vi) List the Warrant Shares being registered on the
American Stock Exchange.
(d) It shall be a condition precedent to the obligations of
the Company to take any action pursuant to this section 6.3 that the
Holder shall furnish to the Company such information regarding itself,
the Warrant Shares held by it, any investment banker, broker or other
agent retained by the Holder to assist it in selling the Warrant
Shares, and the intended method of disposition of such securities as
shall be reasonably required to effect the registration of its Warrant
Shares.
(e) Except as otherwise provided herein, all expenses other
than underwriting discounts and commissions relating to Warrant Shares
incurred in connection with the registration, filings or qualifications
pursuant to this section 6.3, including, without limitation, all
registration, filing and qualification fees, printing and accounting
fees and fees and disbursements of the Company's counsel, shall be
borne by the Company. Notwithstanding the foregoing, all underwriting
discounts and selling commissions applicable to the Warrant Shares
covered by any registration and all fees and disbursements of special
counsel to the Holder shall be borne by the Holder, in proportion to
the number of Warrant Shares sold by the Holder, and if any applicable
state securities laws require the Holder to share the expenses of the
offering with the Company, then the Holder shall share such expenses in
accordance with the applicable law of such state.
(f) So long as the Company has given every notice required by
this section 6.3, the Holder shall not have any right to take any
action to restrain or otherwise delay any such registration as the
result of any controversy that might arise with respect to the
interpretation or implementation of this section 6.3.
(g) In the event any Warrant Shares are included in a
registration statement under this section 6.3:
(i) To the extent permitted by law, the Company will
indemnify and hold harmless the Holder, the officers and directors of
the Holder, any underwriter (as defined in the Securities Act) for the
Holder and each person, if any, who controls the Holder or underwriter
within the meaning of the Securities Act or the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), against any losses, claims,
damages or liabilities (joint or several) to which they may become
subject under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively, a
"Violation"): (A) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (B) the omission or alleged omission
to state therein a material fact required to be stated
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therein, or necessary to make the statements therein not misleading, or
(C) any violation or alleged violation by the Company of the Securities
Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or
any state securities law. The Company will reimburse the Holder,
officer or director, underwriter or controlling person for any legal or
other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in
this clause (i) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs
in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by the Holder,
or by any officer, director, underwriter or controlling person of the
Holder.
(ii) To the extent permitted by law, the Holder will
indemnify and hold harmless the Company, each of its directors, each of
its officers who has signed the registration statement, each person, if
any, who controls the Company within the meaning of the Securities Act,
each agent and any underwriter for the Company or any person who
controls such underwriter, against any losses, claims, damages or
liabilities (joint or several) to which the Company or any such
director, officer, controlling person, agent or underwriter, director
or officer or controlling person thereof, may become subject, under the
Securities Act, the Exchange Act or other federal or state law, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by
the Holder or by any officer, director, underwriter or controlling
person of the Holder expressly for use in connection with such
registration; and the Holder will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer,
controlling person, agent or underwriter, officer, director or
controlling person thereof, in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in this clause (ii)
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the
consent of the Holder, which consent shall not be unreasonably
withheld.
(iii) Promptly after receipt by an indemnified party
under this subsection 6.3(g) of notice of the commencement of any
action (including any governmental action), such indemnified party
will, if a claim in respect thereof is to be made against any
indemnifying party under this subsection 6.3(g), deliver to the
indemnifying party a written notice of the commencement thereof, and
the indemnifying party shall have the right to participate in, and, to
the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof
with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own
counsel, reasonably satisfactory to the indemnifying party, with the
fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in
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such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any
such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified
party under this subsection 6.3(g), but the omission so to deliver
written notice to the indemnifying party shall not relieve it of any
liability that it may have to any indemnified party otherwise than
under this subsection 6.3(g).
(iv) The obligations of the indemnifying party under
this subsection 6.3(g) shall survive the completion of any offering of
Warrant Shares in a registration statement under this section 6.3 and
otherwise.
7. Modification and Waiver. This Warrant and any provision hereof may
be changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
8. Notices. Any notice, request or other document required or permitted
to be given or delivered to the Holder or the Company shall be delivered or
shall be sent by certified or registered mail, return receipt requested, postage
prepaid, or by commercial overnight courier, to the Holder at its address as
shown on the books of the Company or, if to the Company, at the address
indicated therefor on the signature page of this Warrant.
9. Descriptive Headings and Governing Law. The descriptive headings of
the several sections and paragraphs of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant. This Warrant shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the laws of the State of Florida.
10. Lost Warrants or Stock Certificates. The Company represents and
warrants to the Holder that upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant or any
stock certificate deliverable upon the exercise hereof and, in the case of any
such loss, theft or destruction, upon receipt of an indemnity and, if requested,
bond reasonably satisfactory to the Company, or in the case of any such
mutilation, upon surrender and cancellation of this Warrant or such stock
certificate, the Company at its expense will make and deliver a new Warrant or
stock certificate, of like tenor, in lieu of the lost stolen, destroyed or
mutilated Warrant or stock certificate.
11. Fractional Shares. No fractional shares shall be issued upon
exercise of this Warrant. The Company shall, in lieu of issuing any fractional
share, pay the holder entitled to such fraction a sum in cash equal to the fair
market value of any such fractional interest as it shall appear on the public
market, or if there is no public market for such shares, then as shall be
reasonably determined by the Company.
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IN WITNESS WHEREOF, the Company and the Holder have caused this Warrant to be
executed by their officers, thereunto duly authorized, as of this 18th day of
November, 1999.
IVAX CORPORATION
By: /s/ Neil Flanzraich
--------------------------------
Neil Flanzraich
Vice Chairman and President
Address: 4400 Biscayne Blvd.
Miami, FL 33137
FROST-NEVADA LIMITED PARTNERSHIP
By: /s/ Frost-Nevada Corporation
--------------------------------
Its General Partner
By: /s/ David Moskowitz
--------------------------------
David Moskowitz
President
Address: 3500 Lakeside Ct.
Suite 200
Reno, NV 89509
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