SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): OCTOBER 18, 1995
IVAX CORPORATION
8800 N.W. 36TH STREET, MIAMI, FLORIDA 33178
305-590-2200
Commission File Number
1-09623
Incorporated under the laws of the I.R.S. Employer Identification Number
STATE OF FLORIDA 16-1003559
ITEM 5. OTHER EVENTS.
GENERAL
On October 18, 1995, IVAX Corporation ("IVAX") entered into a
Transaction Agreement (the "Agreement"), with Hafslund Nycomed AS, a corporation
organized under the laws of the Kingdom of Norway ("Hafslund Nycomed"), and IVAX
NYCOMED Corporation, a newly-formed Florida corporation ("IVAX NYCOMED"),
pursuant to which IVAX and the medical businesses of Hafslund Nycomed will
become wholly-owned subsidiaries of IVAX NYCOMED. A copy of the Agreement is
included as Exhibit 10.2 to this Form 8-K.
TRANSACTION STRUCTURE
The business combination will be effected as described in this
paragraph. IVAX will become a wholly-owned subsidiary of IVAX NYCOMED and the
IVAX shareholders will receive common shares of IVAX NYCOMED pursuant to the
merger of a newly formed subsidiary of IVAX NYCOMED ("Acquisition Sub") with
IVAX (the "Merger"). Hafslund Nycomed's medical businesses will become a
wholly-owned subsidiary of IVAX NYCOMED pursuant to the following series of
transactions: (1) Hafslund Nycomed will form a new, wholly-owned Norwegian
subsidiary, called "Nycomed AS" ("Nycomed"), to which it will transfer the
assets and liabilities of its medical businesses pursuant to a Purchase and Sale
Agreement and related documents (the "Purchase and Sale Agreement"); (2)
Hafslund Nycomed will transfer all of its shares of Nycomed to IVAX NYCOMED in
exchange for newly-issued shares of IVAX NYCOMED (the "Share Exchange"); (3)
Hafslund Nycomed will contribute its shares in IVAX NYCOMED to a newly formed,
wholly-owned Norwegian subsidiary of Hafslund Nycomed to be called "IVAX NYCOMED
B AS" ("Holdings"); and (4) Hafslund Nycomed will demerge Holdings by
distributing all of the shares of Holdings to its shareholders (the "Demerger
Transaction"). Hafslund Nycomed will retain its Norwegian energy business. The
Merger and the steps described in (1) through (4) above will occur substantially
simultaneously.
Immediately after completion of the transaction: (1) IVAX NYCOMED will
own 100% of the shares of each of IVAX and Nycomed (Hafslund Nycomed's medical
businesses); (2) Hafslund Nycomed's shareholders will own 100% of the shares of
Holdings, which, in turn, will own shares of IVAX NYCOMED; (3) Hafslund
Nycomed's shareholders will own 100% of the shares of Hafslund Nycomed, which
will change its name to "Hafslund AS" and will consist solely of Hafslund
Nycomed's Norwegian energy business; and (4) IVAX's shareholders will own shares
in IVAX NYCOMED.
TRANSACTION CONSIDERATION
IVAX FOR IVAX NYCOMED. Pursuant to the Merger, each outstanding share
of IVAX common stock will be converted into the right to receive one share of
IVAX NYCOMED common stock.
NYCOMED FOR IVAX NYCOMED. Pursuant to the Share Exchange, IVAX NYCOMED
will issue to Hafslund Nycomed, in exchange for all of the shares of Nycomed,
one share of IVAX NYCOMED common stock for each share of Hafslund Nycomed common
stock outstanding.
STOCK EXCHANGE LISTINGS
Following consummation of the transaction, the common stock of IVAX
NYCOMED is expected to be listed on the American and London Stock Exchanges, and
the common stock of Holdings is expected to be listed on the Oslo and Copenhagen
Stock Exchanges.
BOARD OF DIRECTORS OF IVAX NYCOMED
Upon consummation of the transaction, the board of directors of IVAX
NYCOMED will consist of an equal number of directors selected by each of IVAX
and Hafslund Nycomed.
MANAGEMENT OF IVAX NYCOMED
Following the transaction, Phillip Frost, M.D., currently the Chairman
and Chief Executive Officer of IVAX, will be the Executive Chairman of IVAX
NYCOMED. Svein Aaser, currently the Managing Director of Hafslund Nycomed, will
be the President and Chief Executive Officer of IVAX NYCOMED.
CORPORATE GOVERNANCE OF HOLDINGS
The Articles of Association of Holdings will provide that: (1) the
purpose of the company will be limited to the ownership of shares of IVAX
NYCOMED; (2) IVAX NYCOMED will have the right to appoint one of the five members
of the board of directors of Holdings; and (3) the foregoing provisions of the
Articles of Association may not be amended except by a supermajority vote of the
Holdings shareholders. The form of the Articles of Association of Holdings is
included as Exhibit 10.9 to this Form 8-K.
In addition, IVAX NYCOMED and Holdings will enter into an agreement
(the "Holdings Agreement") designed to make Holdings "transparent" for purposes
of the corporate governance of IVAX NYCOMED. Among other things, the agreement
will: (1) require that any matter which is presented to the shareholders of IVAX
NYCOMED for a vote also be presented to the shareholders of Holdings; (2)
require that Holdings vote its shares of IVAX NYCOMED in the same proportion as
the shares of Holdings were voted; and (3) require that Holdings pass through to
its shareholders any dividends received from IVAX NYCOMED. A copy of the
Holdings Agreement is included as Exhibit 10.6 to this Form 8-K.
RIGHT TO EXCHANGE HOLDINGS SHARES
After consummation of the transaction, the shareholders of Holdings
will have the right, during specified window periods, to exchange their shares
of Holdings for newly issued shares of
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IVAX NYCOMED on a one-for-one basis. This exchange right will be available to
such shareholders for a period of up to 10 years, or until such time as the
number of outstanding shares of Holdings held by public shareholders falls below
10% of the total number of shares of Holdings common stock then outstanding. As
a result of this exchange mechanism, Holdings will, over time, be increasingly
owned by IVAX NYCOMED, although it will continue to hold the shares of IVAX
NYCOMED received in the Share Exchange. The shares of Holdings held by IVAX
NYCOMED will be voted as provided in the Holdings Agreement.
ACCOUNTING TREATMENT
The business combination is expected to be accounted for as a pooling
of interests. The receipt of a letter from Arthur Andersen LLP to this effect is
a condition to completion of the business combination.
TAX CONSEQUENCES TO IVAX SHAREHOLDERS
The Merger of IVAX with Acquisition Sub is expected to qualify as a
tax-free reorganization under Section 368(a) of the Internal Revenue Code.
Accordingly, (1) no gain or loss will be recognized by IVAX, Acquisition Sub,
IVAX NYCOMED, or the IVAX shareholders as a result of the Merger, (2) the basis
of the IVAX NYCOMED common stock received by IVAX shareholders in the Merger
will be the same as their basis in the IVAX common stock surrendered in the
Merger, and (3) the holding period of the IVAX NYCOMED common stock received by
IVAX shareholders in the Merger will include the holding period of the IVAX
common stock surrendered in the Merger. The receipt of a legal opinion to this
effect is a condition to completion of the business combination.
SHAREHOLDER APPROVAL
Under Florida law, the Merger will require the approval of a majority
of the outstanding shares of IVAX.
Under Norwegian law, the Demerger Transaction and the Share Exchange
will require the approval of at least two-thirds of the Hafslund Nycomed Class A
common stock voting at a special meeting called for such purpose, as well as
two-thirds of the total number of Hafslund Nycomed Class A common stock and
Class B common stock represented at such meeting.
VOTING AGREEMENTS
Certain shareholders of IVAX holding approximately 19% of IVAX's
outstanding shares and certain shareholders of Hafslund Nycomed holding
approximately 10% of Hafslund Nycomed's outstanding shares have entered into
agreements pursuant to which such persons have agreed to vote their shares in
favor of the transaction (collectively, the "Voting Agreements"). Copies of the
Voting Agreements are included as Exhibits 10.3 and 10.4 to this Form 8-K.
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REGULATORY APPROVALS
Consummation of the transactions is subject to various regulatory
approvals, including the expiration or termination of the waiting periods under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the
Norwegian Business Acquisition Act of 1993, as amended, the approval of
appropriate governmental authorities under certain European competition laws,
and expiration of a three month Norwegian "creditors' notice period" under the
Norwegian Companies Act of 1976, as amended.
CONDITIONS TO CLOSING
The obligation of each party to consummate the transaction will be
subject to the following conditions, among others: (1) the effectiveness of the
registration statement relating to the IVAX NYCOMED common stock to be issued in
the transaction; (2) the clearance of the applicable disclosure document by the
Oslo Stock Exchange; (3) the approval of the transaction by the shareholders of
Hafslund Nycomed and the shareholders of IVAX; (4) the receipt of all required
governmental consents and approvals, as described under "Regulatory Approvals"
above; (5) the receipt of an opinion from Arthur Andersen LLP that the
transaction will be accounted for as a pooling of interests; (6) the receipt of
opinions of counsel as to certain tax matters relating to the transaction and
the confirmation of the grant of an exemption from the Norwegian government to
the effect that the Share Exchange is tax-free to Hafslund Nycomed and Nycomed;
and (7) the acceptance of Holdings and IVAX NYCOMED shares for listing on the
specified stock exchanges.
The foregoing descriptions of the Agreement, the Purchase and Sale
Agreement, the Voting Agreements, the Holdings Agreement, and the Articles of
Association of Holdings are qualified in their entirety by the full text of such
agreements and documents, copies of which are included as exhibits to this
Current Report on Form 8-K. The business combination is expected to be
consummated in the first half of 1996. There can be no assurance, however, that
the business combination will be consummated, or, if consummated, that it will
be on the same terms described above and in the Agreement.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
10.1 Press Release of IVAX Corporation ("IVAX")
and Hafslund Nycomed AS ("Hafslund Nycomed")
relating to the proposed business
combination.
10.2 Transaction Agreement, dated as of October 18, 1995,
among Hafslund Nycomed, IVAX and IVAX NYCOMED
Corporation, a newly-formed Florida corporation
("IVAX NYCOMED").*
10.3 Voting Agreement, dated as of October 18, 1995,
between IVAX and certain stockholders of Hafslund
Nycomed.
10.4 Voting Agreement, dated as of October 18, 1995,
between Hafslund Nycomed and certain stockholders
of IVAX.
10.5 Form of Purchase and Sale Agreement to be
entered into between Hafslund Nycomed and Nycomed.*
10.6 Form of Agreement to be entered into between
Holdings and IVAX NYCOMED.
10.7 Form of Articles of Incorporation of IVAX NYCOMED.
10.8 Form of Bylaws of IVAX NYCOMED.
10.9 Form of Articles of Association of Holdings.
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* Certain exhibits and schedules to this document have not been filed.
The Registrant agrees to furnish a copy of any omitted schedule or exhibit to
the Securities and Exchange Commission upon request.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
IVAX CORPORATION
/s/ Armando A. Tabernilla
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Armando A. Tabernilla
Vice President -- Legal Affairs
and General Counsel
Date: October 26, 1995
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