Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2.
below):
[ ] Written communications pursuant to Rule 425 under
the Securities Act (17 CFR 230.425)
[X] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule
14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule
13e4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01
Entry into a Material Definitive Agreement.
On April 8, 2011, IVAX Diagnostics, Inc.
(the Company) entered into a stock purchase
agreement (the Stock Purchase Agreement) with ERBA Diagnostics Mannheim GmbH (ERBA) pursuant to which the
Company has agreed to sell and issue to ERBA 20,000,000
shares of the Companys common stock at a purchase price of $0.75 per share for an aggregate purchase price of $15,000,000 and
warrants to purchase an additional 20,000,000 shares
of the Companys common stock (collectively, the Investment).
The shares of the Companys
common stock to be issued and purchased in the Investment will be issued at a price of $0.75 per share, which per share
purchase price constitutes a premium of 14% above the average closing price of a share of the Companys common stock on
the NYSE Amex during the five trading days immediately prior to the date on which the Committee (as defined below)
unanimously approved, and the Company publicly announced, the Stock Purchase Agreement and the Investment.
The Company has agreed to sell and issue,
and ERBA has agreed to purchase, in the Investment:
(i) 6,666,667 shares of the Companys common stock for an aggregate purchase price of $5,000,000, upon the initial consummation
of the Investment; (ii) 6,666,667 shares of the
Companys common stock for an aggregate purchase price of $5,000,000, on or prior to the date which is six months after such
initial consummation of the Investment; and (iii)
6,666,666 shares of the Companys common stock for an aggregate purchase price of $5,000,000, on or prior to the date which is
one year after such initial consummation of the
Investment.
The warrants to be issued in the
Investment will have a five-year term and will have an exercise price per share of the Companys common stock equal to
$0.75, which exercise price per share constitutes a premium of 14% above the average closing price of a share of
the Companys common stock on the NYSE Amex during the five trading days immediately prior to the date on which the
Committee unanimously approved, and the Company publicly announced, the Stock Purchase Agreement and the Investment.
Under the terms of the Stock Purchase
Agreement, (i) the shares of the Companys common
stock, and the warrants to purchase additional shares of the Companys common stock, to be issued and purchased in the
Investment, and the shares of the Companys common
stock issuable upon exercise of the warrants, will be issued in a transaction not involving any public offering and
will not be registered under the Securities Act of
1933, as amended (the Securities Act), and, accordingly, will be deemed restricted securities under Rule 144
promulgated under the Securities Act; (ii) the
Company has not granted, and does not intend to grant during the two-year lock-up period described below, any registration rights to
ERBA with respect to the shares of the Companys common
stock, or the warrants to purchase additional
shares of the Companys common stock, to be issued and purchased in the Investment, or the shares of the Companys common
stock issuable upon exercise of the
warrants; and (iii) ERBA has agreed that the shares of the Companys common stock to be issued and purchased in the Investment
will be subject to a lock-up for a period of two
years after the date on which such shares were issued and purchased in the Investment, during which time such shares may not be
sold, subject to certain limited exceptions, and that
the warrants to be issued and purchased in the Investment, and the shares of the Companys common stock issuable upon exercise of the warrants, will be subject to a
lock-up for a period of two years after the date on which such warrants were issued in the
Investment, during which time such warrants and shares
issuable upon exercise
of the warrants may not be sold, subject to certain limited exceptions.
As previously disclosed,
ERBA currently beneficially owns, directly or indirectly, 20,034,713 shares of the Companys common stock, or
approximately 72.5% of the issued and outstanding shares of the Companys common stock, and Suresh Vazirani, executive
Chairman of the Board of Directors of the Company, is the Chief Executive Officer and Managing Director of ERBA. In addition, Kishore
Kris Dudani, a member of the Companys Board of Directors, currently serves as the Marketing and Business
Development Representative - South, Central and Latin America, of ERBA. In recognition of such relationships, a
committee of the Companys Board of Directors (the Committee) composed of the Companys other three
directors Philippe Gadal, Pharm.D., David M. Templeton and John B. Harley, M.D., Ph.D., each of whom has been
determined to be independent under the rules of the NYSE Amex governing the independence of directors and who
together comprise a majority of the Company’s Board of Directors was formed and vested with the authority, on
behalf of the Company, to evaluate the advisability to the Company of the Investment and negotiate the terms and conditions
thereof. On April 8, 2011, the Committee unanimously approved the Stock Purchase Agreement and the Investment.
Under the terms of the Stock
Purchase Agreement, the closing of the Investment is subject to certain conditions, including the Companys receipt of
all required stockholder approvals. Under Section 203 of the Delaware General Corporation Law, the Investment is
required to be approved by holders of at least 66-2/3% of the issued and outstanding shares of the Companys common
stock (excluding any shares beneficially owned, directly or indirectly, by ERBA). In addition, under Section 713 of the NYSE
Amex Company Guide, the issuance in the Investment of the shares of the Companys common stock and the warrants, and
the shares of the Company’s common stock issued upon exercise of the warrants, is required to be approved by holders
of at least a majority of the issued and outstanding shares of the Companys common stock.
Under the terms of the Stock Purchase
Agreement, the Company is required to promptly file with the
Securities and Exchange Commission (the SEC) and mail to its stockholders of record a Definitive Proxy Statement on
Schedule 14A relating to the Companys 2011 annual meeting
of stockholders, which is scheduled to be held on May 20, 2011 for the purpose of, among other things, approving
the Investment (under both Section 203 of the Delaware
General Corporation Law and Section 713 of the NYSE Amex Company Guide) as well as certain related matters to be set forth and
described in detail in such Definitive Proxy Statement on
Schedule 14A. Under the rules and regulations of the SEC, the Company will be required to file a Preliminary Proxy Statement
on Schedule 14A with the SEC at least ten days prior to
filing and mailing the Definitive Proxy Statement on Schedule 14A.
The closing of the Investment, and the
issuance and delivery of the first installment of shares of the
Companys common stock and the warrants, is expected to occur promptly after such time, if any, as all required stockholder
approvals are obtained.
The foregoing description of the Stock
Purchase Agreement and the warrants is only a summary and is qualified in its entirety by reference to the full text of the
Stock Purchase Agreement and the Form of Warrant, which are
filed as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 8-K, and each of which is incorporated into this Item
1.01 in its entirety.
On April 8, 2011, the Company
issued a press release announcing the Company entering into the Stock Purchase Agreement. A copy of the press release is
filed as Exhibit 99.1 to this Current Report on Form 8-K.
Item 3.02 Unregistered Sales of Equity Securities
The information disclosed under Item 1.01 of
this Current Report on Form 8-K is incorporated into
this Item 3.02 in its entirety. The Company has agreed to the Investment in reliance upon the exemption from registration
under Section 4(2) of the Securities Act, and in reliance
upon the Investment being a transaction by the Company not involving any public offering. The shares of the Companys
common stock, and the warrants to purchase additional shares
of the Companys common stock, to be issued and purchased in the Investment, and the shares of the Companys common stock
issuable upon exercise of the warrants, will
be deemed restricted securities under Rule 144 promulgated under the Securities Act.
Item 9.01 Financial Statements and Exhibits.
(d)
Exhibits
Exhibit 10.1
Stock Purchase Agreement, dated April 8,
2011, by and between IVAX Diagnostics, Inc. and ERBA
Diagnostics Mannheim GmbH
Exhibit 10.2
Form of Warrant to Purchase Shares of
Common Stock of IVAX Diagnostics, Inc.
Exhibit 99.1
Press Release, dated April 8, 2011
Important Information
This Current Report on Form 8-K shall not
constitute an offer to sell or the solicitation of an offer
to buy any security. The shares of the Companys common stock, and the warrants to purchase additional shares of the
Companys common stock, to be issued and purchased in the
Investment, and the shares of the Companys common stock issuable upon exercise of the warrants are being so
issued and purchased pursuant to an applicable exemption
from the registration requirements of the Securities Act and applicable state securities laws.
As described above, in connection
with its efforts to obtain stockholder approval of the Investment and certain related matters, the Company will file with
the SEC and mail to its stockholders of record a Definitive Proxy Statement on Schedule 14A, which will contain information
about the Company, the Investment and the related matters to be voted upon by the Companys stockholders at the
Company’s 2011 annual meeting of stockholders.
STOCKHOLDERS ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT ON SCHEDULE
14A CAREFULLY WHEN IT IS AVAILABLE BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION.
In addition to receiving the Definitive
Proxy Statement on Schedule 14A from the Company by mail, the
Definitive Proxy Statement on Schedule 14A, as well as other filings containing information about the Company, may also be obtained,
without charge, from the SECs website at
www.sec.gov
.
The Company and its directors and executive
officers may be deemed to be participants in the
solicitation of proxies. Information concerning the interests of the Companys directors and executive officers in the
Investment will be set forth in the Definitive Proxy
Statement on Schedule 14A. Other information concerning the Company and its directors and executive officers is contained in
the Companys other filings with the SEC, including
the Companys
Annual Report on Form 10-K for the year ended December 31,
2010, which was filed with the SEC
on March 30, 2011.
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 hereunto duly authorized.
IVAX DIAGNOSTICS, INC.
Dated: April 8, 2011
By:
/s/ Kevin D. Clark
Kevin D. Clark,
Chief Executive Officer,
Chief Operating Officer and
President
EXHIBIT INDEX
Exhibit
Description
10.1
Stock Purchase Agreement, dated April 8,
2011, by and between IVAX Diagnostics, Inc. and ERBA
Diagnostics Mannheim GmbH
10.2
Form of Warrant to Purchase Shares of
Common Stock of IVAX Diagnostics, Inc.
99.1
Press Release, dated April 8, 2011