As filed with the Securities and Exchange Commission on December 13, 2000
Registration No. 333-51122
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
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ANDRX CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware 65-1013859
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(State or other jurisdiction of I.R.S. Employer Identification No.
incorporation or organization)
Alan P. Cohen
Chief Executive Officer
Andrx Corporation
4955 Orange Drive
Davie, FL 33314
(954) 584-0300
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices and agents for service of process)
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Copies of communications to:
Dale S. Bergman, P.A.
Broad and Cassel
201 South Biscayne Boulevard
Miami Center, Suite 3000
Miami, Florida 33131
(305) 373-9400
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box.[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act of 1933 registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Securities and Commission, acting pursuant to
Section 8(a), may determine.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. We may not sell these securities until the
registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities and is not
soliciting an offer to buy these securities in any state in which the offer or
sale is not permitted.
PROSPECTUS
SUBJECT TO COMPLETION, DECEMBER 13, 2000
250,000 shares of Andrx common stock
ANDRX CORPORATION
This prospectus relates to the public offering by certain of our
stockholders of a total of 250,000 shares of Andrx common stock. The selling
stockholders may sell their shares in one or more transactions on the Nasdaq
National Market or, at privately negotiated prices, or through a combination of
such methods of sale. We will not receive any proceeds from the sale of these
shares.
Our Andrx common stock is quoted on the Nasdaq National Market under
the symbol "ADRX" and our Cybear common stock is quoted on the Nasdaq National
Market under the symbol "CYBA".
The securities offered hereby involve a high degree of risk and should
be considered only by such persons capable of bearing the economic risk of such
investment. You should carefully consider the "Risks of Investing in Our Shares"
section beginning on page 4 of this prospectus.
You should rely on the information contained in this prospectus. No
dealer, salesperson or other person is authorized to give any information that
is not contained in this prospectus. This prospectus is not an offer to sell nor
is it seeking an offer to buy these shares in any jurisdiction where the offer
or sale is not permitted. The information contained in this prospectus is
correct only as of the date of this prospectus, regardless of the time of the
delivery of this prospectus or any sale of these shares.
Neither the SEC nor any state securities commission has approved or
disapproved of these securities or passed upon the adequacy or accuracy of the
prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is December __, 2000.
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TABLE OF CONTENTS
PAGE
PROSPECTUS SUMMARY.....................................................1
RISKS OF INVESTING IN OUR SHARES.......................................4
NOTE REGARDING FORWARD-LOOKING STATEMENTS.............................17
PROCEEDS FROM SALE OF SHARES..........................................17
SELLING STOCKHOLDERS..................................................18
HOW THE SHARES MAY BE DISTRIBUTED.....................................19
LEGAL OPINION.........................................................19
EXPERTS...............................................................19
WHERE YOU CAN FIND MORE INFORMATION...................................20
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE.....................20
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In September 2000, we reorganized and acquired the outstanding shares
of common stock of Cybear Inc. that we did not own, reincorporated in Delaware
and created two new classes of common stock:
o Andrx Group common stock, to track the performance of Andrx
Corporation and subsidiaries, other than its Cybear Inc.
subsidiary; and
o Cybear Group common stock, to track the performance of Cybear
Inc. and its subsidiaries.
As used in this prospectus, the words "Andrx Corporation," "we," "us,"
and "our" refer to Andrx Corporation and all of its subsidiaries. In addition,
"Andrx" refers to Andrx Corporation and its subsidiaries, prior to the September
2000 reorganization and to Andrx Corporation and its subsidiaries, other than
Cybear, Inc. after the reorganization. "Cybear" refers to Cybear Inc. and its
subsidiaries prior to and following the reorganization.
The information in this prospectus with respect to Andrx gives effect
to the two-for-one stock splits in June 1999 and April 2000.
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PROSPECTUS SUMMARY
This is only a summary and does not contain all of the information that
may be important to you. You should read the more detailed information contained
in this prospectus and all other information, including the financial
information and statements with notes, as discussed in the "Where You Can Find
More Information" section of this prospectus.
Overview
We formulate and commercialize controlled-release oral pharmaceuticals
using our proprietary drug delivery technologies. We market and sell Cartia
XT(R) and Diltia XT(R), our generic or bioequivalent versions of Cardizem(R) CD
and Dilacor XR(R).
We have eight proprietary drug delivery technologies that we have
patented for certain applications or for which we have filed for patent
protection for certain applications. We believe our technologies are flexible
and can be modified to apply to a variety of pharmaceutical products. We use our
proprietary drug delivery technologies and formulation skills to develop:
o bioequivalent versions of selected controlled-release brand
name pharmaceuticals; and
o brand name controlled-release formulations of existing
immediate-release or controlled-release drugs where we believe
that the application of our drug delivery technologies may
improve the efficacy or other characteristics of those
products.
Controlled-release drug delivery technologies generally provide more
consistent and appropriate drug levels in the bloodstream than immediate-release
dosage forms and may improve drug efficacy and reduce side effects by releasing
drug dosages at specific times and in specific locations in the body. These
technologies also allow for the development of "patient friendly" dosage forms,
which reduce the number of times a drug must be taken, thus improving patient
compliance.
Through our distribution operations, we sell drugs manufactured by
third parties primarily to independent pharmacies, pharmacy chains which do not
maintain their own central warehousing facilities and pharmacy buying groups.
Through Cybear, we develop and market Internet applications that are
intended to improve the efficiency of day-to-day administrative and
communications tasks for various participants in the healthcare industry.
Recent Development
On November 16, 2000, we entered into a definitive agreement to acquire
CTEX Pharmaceuticals, Inc., a privately owned pharmaceutical sales and marketing
company based in Jackson, Mississippi. The acquisition is for $30 million,
subject to adjustment, comprised of Andrx common stock and cash. The acquisition
is subject to various closing conditions,
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including the registration of the shares included herein for resale. Andrx
expects that the closing will occur by the first quarter of 2001.
The Offering
Andrx common stock offered by the selling stockholders.......... 250,000 shares
Common Stock outstanding............. 69,281,653 shares of Andrx common stock
15,202,611 shares of Cybear common stock
Use of Proceeds...................... We will not receive any of the proceeds
from the sale of these shares of Andrx
common stock. See "Proceeds from the
Sale of Shares" and "Selling
Stockholders."
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Our principal corporate office is located at 4955 Orange Drive, Davie,
Florida 33314, and our telephone number is (954) 584-0300.
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RISKS OF INVESTING IN OUR SHARES
You should carefully consider the following risks, in addition to the
other information presented in this prospectus or incorporated by reference into
this prospectus, before making an investment decision. The trading price of our
shares could decline due to any of these risks, and you could lose all or part
of your investment. These are not the only risks and uncertainties that we face.
Additional risks and uncertainties that we do not currently know about or that
we currently believe are immaterial may also harm our business operations. If
any of these risks or uncertainties actually occur, our business, results of
operations, financial condition, or prospects could be materially adversely
affected.
Risks Related to Andrx
Our business is subject to substantial litigation which could expose us
to unfavorable claims.
We have and continue to face substantial patent infringement litigation
with respect to the manufacture, use and sale of our products. To date, actions
have been filed against us in connection with substantially all of our
Abbreviated New Drug Applications or ANDAs. When we file an ANDA, we usually
certify that we believe our proposed product will not infringe an unexpired
patent which has been listed with the U.S. Food and Drug Administration, or FDA,
as covering the brand name product and/or that such patent is invalid or
unenforceable. We anticipate that additional actions may be filed as we or our
collaborative partners file additional ANDAs. Patent litigation may also be
brought against us in connection with certain other products that we may pursue.
The timing and outcome of this type of litigation is difficult to
predict because of the uncertainties inherent in patent litigation. There can be
no assurance that any of our products will be commercialized immediately
following FDA's approval of their sale, as we will launch our products only
after it is both lawful and we determine that it appears prudent to do so. Our
business and financial results could be materially harmed by the delays in
marketing our products as a result of litigation, an unfavorable outcome in any
litigation or the expense of litigation whether or not it is successful.
We are subject to antitrust litigation and an FTC administrative
proceeding relating to a stipulation we entered into with Aventis, S.A. which,
if adversely determined, would harm our business and financial results.
Class and individual actions have been filed against us in a number of
state and federal courts relating to a stipulation we entered into with Aventis.
In each of these suits, we and Aventis and some of our affiliates, have been
named as co-defendants. We entered into the stipulation with Aventis in
connection with patent infringement litigation that Aventis brought against us.
In the stipulation, we agreed to maintain the status quo, which included not
commencing to market our bioequivalent version of Cardizem CD until the earlier
of final resolution of the Aventis litigation or the occurrence of certain other
events. Aventis agreed, among other matters, not to seek a preliminary
injunction against us in the then-pending litigation, granted us the right to
obtain a license to the relevant Aventis' patents at various times if we lost
the patent infringement litigation and made certain payments to us. The
complaint in each of these actions alleges that by entering
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into the stipulation, we and Aventis violated certain antitrust, restraint of
trade and other laws which allegedly gave Aventis and us a monopoly in the U.S.
market for Cardizem CD and a bioequivalent version of that product. The
complaints in each of the class actions seek compensatory damages on behalf of
each class member in an unspecified amount and, in some cases, treble damages,
as well as costs and counsel fees, disgorgement, injunctive relief and other
remedies.
On March 16, 2000, we were named as a respondent by the FTC in an
administrative action seeking a cease and desist order against future agreements
similar to the stipulation and other remedies. The complaint in the
administrative proceeding does not seek any monetary remedies from us of any
kind.
An adverse outcome in the class actions, individual actions and FTC
administrative action or the expense to us of defending such actions, whether or
not there is an adverse outcome, could materially harm our business and
financial results.
The Southeast Regional office of the SEC has commenced an informal
inquiry of Cybear with respect to the relationships and agreements between
Cybear and Andrx Corporation, particularly with respect to Cybearclub LC, a
joint venture between Cybear and Andrx Corporation that is intended to promote
the distribution of healthcare products to physician offices through the
Internet. Cybear is cooperating voluntarily with the SEC.
Our future results of operations will be adversely affected if we are
unable to market new pharmaceutical products and our existing products.
Our future results of operations will depend significantly upon our
ability to develop and market new pharmaceutical products and our existing ones,
since we only have a limited number of commercialized products and these and
other products typically have declining revenues over their product life. To
date, the FDA has approved the marketing of only three of our products. The FDA
has tentatively approved four additional products we developed. These products
and other products we may develop typically have declining revenues over their
product lives. We cannot assure you that our products under development or
products submitted to the FDA will be approved for sale by the FDA or other
regulatory authorities.
Our operating results may vary significantly on an annual or quarterly
basis depending on the timing of, and our ability to obtain, FDA approvals for
our new products. Newly introduced bioequivalent pharmaceuticals with limited or
no competition are typically sold at higher selling prices, often resulting in
higher gross profit margins. Competition from other manufacturers typically
results in a decline in selling prices and gross profit margins. The timing of
our future operating results may also be affected by a variety of additional
factors, including the results of future patent challenges and market acceptance
of our new products.
We are subject to stringent governmental regulation and a costly and
time consuming approval process for our products.
Drug manufacturers are required to obtain FDA approval before marketing
their new drug product candidates. The FDA approval requirements are costly and
time consuming. We cannot assure you that our bioequivalence or clinical studies
and other data will result in FDA approval to market our new drug products. We
believe that the FDA's abbreviated new drug
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application procedures will apply to our bioequivalent versions of
controlled-release drugs. We cannot assure you that any of our bioequivalent
versions of controlled-release drugs will be suitable for, or approved as part
of, abbreviated applications. Moreover, once a drug is approved under either
procedure we cannot assure you that it will not have to withdraw such product
from the market if it is not manufactured in accordance with FDA standards or
our own internal standards.
Some abbreviated application procedures for bioequivalent
controlled-release drugs and other products are presently the subject of
petitions filed by brand name drug manufacturers, which seek changes from the
FDA in the approval requirements for particular bioequivalent drugs. We cannot
predict at this time whether the FDA will make any changes to our abbreviated
application requirements as a result of these petitions or the effect that any
changes may have on us. Any changes in FDA regulations or policies may make
abbreviated application approvals more difficult and thus may materially harm
our business and financial results.
In order to market a new drug that does not qualify for the FDA's
abbreviated application procedures, we must conduct extensive clinical trials to
demonstrate product safety and efficacy and submit an NDA. The process of
completing clinical trials and preparing an NDA may take several years and
requires substantial resources. We have never submitted an NDA. We cannot assure
you that our studies and filings will result in FDA approval to market our new
drug products or the timing of any approval.
Patent certification requirements for bioequivalent controlled-release
drugs and for some new drugs could also result in significant delays in
obtaining FDA approval if patent infringement litigation is initiated by the
holder or holders of the brand name patents. Delays in obtaining FDA approval of
abbreviated applications and some new drug applications can also result from a
marketing exclusivity period and/or an extension of patent terms.
Proposed FDA regulations and guidelines may result in our bioequivalent
products not being able to fully utilize the 180-day marketing exclusivity
period which will affect our results of operations.
Any inability to fully use the 180-day marketing exclusivity period for
any of our products will affect our results of operations. In August 1999, the
FDA proposed to amend its regulations relating to 180-day marketing exclusivity
for which certain bioequivalent drugs may qualify. We cannot predict whether or
what changes the FDA may make to those regulations. In March 2000, the FDA
issued new guidelines regarding the timing of approval of ANDAs following a
court decision in patent infringement actions and the start of the 180-day
marketing exclusivity period provided for in the Waxman-Hatch amendments
applicable to generic pharmaceuticals. These guidelines could result in us not
being able to utilize all or any portion of the 180-day marketing exclusivity
period on ANDA products we were first to file on, depending on the timing of
court decisions in patent litigation. We are unable to predict what impact, if
any, the FDA's new guidelines may have on our business or financial condition.
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We face uncertainties related to clinical trials which could result in
delays in product development and commercialization.
We must demonstrate through clinical trials that our brand name
products under development are safe and effective for use prior to seeking FDA
approval for the commercial sale of these products. There are a number of
difficulties associated with clinical trials and we have limited experience in
conducting and supervising clinical trials. Difficulties with clinical trials
include the possibility that the results may not be indicative of results that
would be obtained from large-scale testing and that patients can die, suffer
adverse medical effects or artificially affect the clinical trial results.
Moreover, we cannot assure you that our clinical trials will demonstrate
sufficient safety and efficacy to obtain FDA approval. A number of companies in
the pharmaceutical industry have suffered significant setbacks in advanced
clinical trials even after promising results in pre-clinical studies. These
failures have often resulted in decreases in stock prices. If any of our
products under development are not shown to be safe and effective in clinical
trials, our business and financial results could be materially harmed by any
resulting delays in developing other compounds and conducting related clinical
trials.
Our business and results of operations could be materially harmed if we
do not comply with the restrictive FDA regulations governing the manufacturing
and distribution of our products.
The FDA also regulates the development, manufacture, distribution,
labeling and promotion of prescription drugs, requires that certain records be
kept and reports be made, mandates registration of drug manufacturers and
listing of their products and has the authority to inspect manufacturing
facilities for compliance with Current Good Manufacturing Practices, or cGMP,
standards. As a wholesale distributor of bioequivalent pharmaceuticals, we are
subject to state licensure and other requirements pertaining to the wholesale
distribution of prescription drugs. Our business and financial results could be
materially harmed by any failure to comply with licensing and other
requirements.
Other requirements exist for controlled drugs, such as narcotics, which
are regulated by the U.S. Drug Enforcement Administration, or DEA, and
comparable state-level agencies. The FDA also has the authority to withdraw
approvals of previously approved drugs for cause, to request recalls of
products, to bar companies and individuals from future drug application
submissions and, through action in court, to seize products, institute criminal
prosecution or close manufacturing plants in response to violations. The DEA has
similar authority and may also pursue monetary penalties. Our business and
financial results could be materially harmed by these requirements or FDA or DEA
actions.
Our business could suffer if we are unable to increase our
manufacturing capacity.
Our approximately 35,000 square foot commercial manufacturing facility
is currently being used to manufacture Cartia XT and Diltia XT and is expected
to be only sufficient for these products and for certain of our other products.
We are in the process of expanding our manufacturing capacity in order to be
able to manufacture all of the products we intend to develop and manufacture. If
we unable to do so in a timely manner our business will suffer.
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Our manufacturing facilities must comply with stringent FDA and other
regulatory requirements.
Our new manufacturing facilities, once completed, will need to be in
compliance with cGMP and inspected. We cannot assure you that such approvals
will be obtained or will be obtained in time to manufacture each of our
additional products as they are approved. Our facilities will be subject to
periodic inspections by the FDA and we cannot assure you that the facilities
will continue to be in compliance with cGMP or other regulatory requirements.
Failure to comply with such requirements could result in significant delays in
the development, approval and distribution of our planned products, and may
require us to incur significant additional expense to comply with cGMP or other
regulatory requirements. Our business and financial results could be materially
harmed by an adverse determination by the FDA as a result of any such
inspection. Further, we will depend on other companies to manufacture certain of
the product candidates under development.
The DEA also periodically inspects facilities for compliance with
security, record keeping, and other requirements that govern controlled
substances. Our business and financial results could be materially harmed by an
adverse determination by the DEA as a result of any such inspection.
Our business will suffer if we are unable to manage our rapid growth.
Our business and financial results will be materially harmed if we fail
to manage growth effectively or to develop a successful marketing approach. We
have experienced rapid growth of our operations. This growth has required us to
expand, upgrade and improve our administrative, operational and management
systems, controls and resources. We anticipate additional growth in connection
with the expansion of our manufacturing operations, development of our brand
products, our marketing and sales efforts for the products it develops, the
development and manufacturing efforts for our products and Internet operations.
We face intense competition in the pharmaceutical industry from both
brand-name and bioequivalent manufacturers, wholesalers and distributors that
could severely limit our growth.
The pharmaceutical industry is highly competitive and many of our
competitors have longer operating histories and greater financial, research and
development, marketing and other resources than us. We are subject to
competition from numerous other entities that currently operate or intend to
operate in the pharmaceutical industry, including companies that are engaged in
the development of controlled-release drug delivery technologies and
pharmaceuticals and other manufacturers that may decide to undertake in-house
development of these products. Our bioequivalent products may be subject to
competition from competing bioequivalent products marketed by the patent holder.
In our pharmaceutical distribution business, we compete with a number of large
wholesalers and other distributors of pharmaceuticals. We cannot assure you that
we will be able to continue to compete successfully with these companies.
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We depend on our patents and trade secrets and our future success is
dependent on our ability to protect these secrets and not infringe on the rights
of others.
We believe that patent and trade secret protection is important to our
business and that our future success will depend in part on our ability to
obtain patents, maintain trade secret protection and operate without infringing
on the rights of others. We have been issued a number of U.S. patents and have
filed additional U.S. and various foreign patent applications relating to our
drug delivery technologies. We expect to apply for additional U.S. and foreign
patents in the future. The issuance of a patent is not conclusive as to our
validity or as to the enforceable scope of the claims of the patent. We cannot
assure you that:
o our processes or products will not infringe upon the patents
of third parties;
o our patents or any future patents will prevent other companies
from developing similar or functionally equivalent products or
from successfully challenging the validity of our patents;
o any of our future processes or products will be patentable; or
o any pending or additional patents will be issued in any or all
appropriate jurisdictions.
Our business and financial results could be materially harmed if we
fail to avoid infringement of the patent or proprietary rights of others or to
protect our patent rights.
We also rely on trade secrets and proprietary knowledge, which we
generally seek to protect by confidentiality and non-disclosure agreements with
employees, consultants, licensees and pharmaceutical companies. We cannot assure
that these agreements will not be breached, that we will have adequate remedies
for any breach or that our trade secrets will not otherwise become known by
competitors.
We depend upon management and key personnel and do not have employment
agreements with them.
Our success depends to a significant degree upon the services of senior
management and other key employees, some of whom have no employment agreements.
There can be no assurance that any individual will continue in his or her
present capacity with us for any specified period. In addition, our success will
depend in large part on our ability to attract and retain highly qualified
scientific, technical and business personnel experienced in the development,
manufacture and marketing of pharmaceuticals. Our business and financial results
would be materially harmed by the loss of the services of any of our key
employees or the inability to attract or retain qualified personnel.
We will need an effective sales organization to market and sell our
future brand products and our failure to have an effective sales organization
may harm our business.
We do not have a sales organization to market and sell our brand
products that we may develop or acquire. We cannot assure you that prior to the
time these products are available for
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commercial launch we will be able to license our products to pharmaceutical
companies with sales organizations, enter into a favorable co-promotion or
contract sales arrangement, or recruit or acquire an effective sales
organization. Our inability to enter into satisfactory sales and marketing
arrangements in the future may materially harm our business and financial
results. We may have to rely on collaborative partners to market our products.
These partners may not have the same interests as us in marketing the products
and we may lose control over the sales of these products.
Decreases in healthcare reimbursements could limit our ability to sell
our products or decrease our revenues.
Our ability to maintain profitability in our distribution business or
to commercialize our product candidates depends in part on the extent to which
reimbursement for the cost of pharmaceuticals will be available from government
health administration agencies, private health insurers and other organizations.
In addition, third party payors are attempting to control costs by limiting the
level of reimbursement for medical products, including pharmaceuticals, which
may adversely affect the pricing of our product candidates. Moreover, healthcare
reform has been, and may continue to be, an area of national and state focus,
which could result in the adoption of measures which could adversely affect the
pricing of pharmaceuticals or the amount of reimbursement available from third
party payors. We cannot assure you that healthcare providers, patients or third
party payors will accept and pay for our pharmaceuticals. In addition, there is
no guarantee that healthcare reimbursement laws or policies will not materially
harm our ability to sell our products profitably or prevent us from realizing an
appropriate return on our investment in product development.
We may be subject to product liability claims and we may not have
adequate insurance.
The design, development and manufacture of our products or the product
we distribute involve a risk of product liability claims and we cannot assure
you that the coverage limits of our insurance will be sufficient to cover
potential claims. We have obtained product liability insurance and believe that
it is adequate for our current operations, but may seek to increase our coverage
prior to the commercial introduction of our new product candidates. Product
liability insurance is expensive and difficult to obtain and may not be
available in the future on acceptable terms or in sufficient amounts, if
available at all. Our business and financial results could be materially harmed
by a successful claim against us in excess of our insurance coverage.
Cybear operates in an evolving market dependent on the Internet and we
are not sure that Cybear's products and services will be accepted by the market.
Cybear operates in a market that is at an early stage of development,
is rapidly evolving and is characterized by an increasing number of market
entrants who have introduced or developed competing products and services.
Cybear introduced its first product in March 1999 and has realized only minimal
revenues. As is typical in the case of a new and rapidly evolving industry,
demand and market acceptance for Cybear's products and services are subject to a
high level of uncertainty and risk. Cybear is also dependent on the adoption of
the Internet for commerce and broad acceptance of new methods of conducting
business and exchanging information, particularly by those individuals and
companies in the healthcare industry that
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historically have relied upon traditional means of commerce. We cannot guarantee
that the market for Cybear's products and services will develop or that demand
for Cybear's services will emerge or be sustainable. Moreover, operating on the
Internet raises a number of additional risks, including reliance on independent
content providers, possible system failures and possible security breaches that
could harm Cybear's business. If the market fails to develop, develops more
slowly than expected or becomes saturated with competitors, or if Cybear's
products or services do not achieve or sustain market acceptance, Cybear's
business would be harmed.
Cybear will have losses for the foreseeable future and may be required
to obtain outside financing.
Cybear also expects to report losses for the foreseeable future, which
may affect its operating results. Also, Cybear may be required to fund its
losses by raising outside financing and we cannot guarantee you that outside
financing alternatives will be available to Cybear at such time. As a result of
our ownership of Cybear, our business and financial results could also be
materially harmed.
The volatility of our share price could affect an investment in our
stock.
The market prices for securities of companies engaged in pharmaceutical
development activities have been highly volatile. The market price of our shares
may be impacted by:
o developments or disputes concerning patent or proprietary
rights;
o threatened litigation and any settlements;
o progress in the development or approval of our product
candidates;
o publicity regarding actual or potential medical results
relating to products under development by us or our
competitors;
o announcements of technological innovations or new products by
us or our competitors;
o regulatory developments in both the U.S. and foreign
countries;
o public concern as to the safety of drug technologies;
o economic and other external factors;
o period-to-period fluctuations in financial results;
o the volatility of the market price for Cybear common stock;
and
o Cybear's financial performance.
Cybear common stock also could be subject to fluctuations in response
to the above and other more specific factors. The market prices of equity
securities of technology companies generally and Internet-related companies in
particular, the business in which Cybear operates, are characterized by highly
volatile stock prices. This volatility has included rapid and significant
increases in the trading prices of certain Internet companies to levels that do
not bear any reasonable relationship to the operating performance of such
companies.
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The anti-takeover provisions of our charter documents and Delaware law
could affect stockholders.
Certain provisions of our amended and restated certificate of
incorporation and bylaws may have anti-takeover effects and may delay, defer or
prevent a takeover attempt of us. We are also subject to the anti-takeover
provisions of Section 203 of the Delaware General Corporation Law, which will
prohibit us from engaging in a "business combination" with an "interested
stockholder" for a period of three years after the date of the transaction in
which the persons became an interested stockholder, unless the business
combination is approved in a prescribed manner. The application of Section 203
also could have the effect of delaying or preventing a change of control of us.
Risks Associated With Having Two Classes of Common Stock
Financial effects on one class could adversely affect the other class.
Holders of Andrx common stock and Cybear common stock are common
stockholders of Andrx Corporation, and will continue to be subject to all of the
risks of an investment in us and all of our businesses, assets and liabilities.
The assets attributed to one class may be subject to the liabilities of the
other class, even if these liabilities arise from lawsuits, contracts or
indebtedness attributed to the other class. If we are unable to satisfy one
classes' liabilities with the assets attributed to it, we may satisfy those
liabilities with assets we have attributed to the other class.
Financial effects on one class that affect the consolidated results of
operations or financial condition of Andrx Corporation could, if significant,
affect the results of operations or financial condition of the other class and
the market price of the common stock relating to the other class. In addition,
net losses of either class and dividends and distributions on, or repurchases
of, either class of common stock will reduce the funds that can be paid as
dividends on each class of common stock under Delaware law. For these reasons,
you should read our consolidated financial information incorporated by reference
in this prospectus.
Holders of each class of common stock will have only limited class
stockholder rights.
Holders of Andrx common stock and Cybear common stock generally will
not have stockholder rights specific to their corresponding groups. Rather,
stockholders will have customary stockholder rights relating to Andrx
Corporation as a whole. For example, holders of Andrx common stock and Cybear
common stock will vote as a single class to approve a disposition of all or
substantially all of our assets and holders of both classes are entitled to
receive a percentage of all of our assets in the case of a liquidation. Holders
of either Andrx common stock or Cybear common stock will have only the following
rights with respect to their class of common stock:
o an opportunity to receive dividends, if any, when, as and if
declared by our board of directors;
11
<PAGE>
o an opportunity to have the Cybear common stock be redeemed or
converted into Andrx common stock upon the disposition of all
or substantially all of the assets of Cybear; and
o a right to vote separately as a class only on matters as set
forth in the certificate of incorporation, as may be required
under Delaware law or the Nasdaq National Market rules.
We will not hold separate meetings for holders of Andrx common stock or
Cybear common stock.
In limited circumstances where a separate class vote is required, the
class of common stock with less than majority voting power can block action.
If the certificate of incorporation, Delaware law or the Nasdaq
National Market rules require a separate vote on any matter by the holders of
either the Andrx common stock or the Cybear common stock, those holders could
prevent approval of the matter, even if the holders of a majority of the total
number of votes cast or entitled to be cast, voting together as a class, were to
vote in favor of it.
Holders of either class of common stock could be adversely affected by
a conversion of the Cybear common stock.
At any time or the occurrence of certain tax-related events, our board
of directors, in its sole discretion and without stockholder approval, could
determine to convert shares of Cybear common stock into shares of Andrx common
stock, including a conversion at a time when either or both classes of common
stock may be considered to be overvalued or undervalued. Any conversion at a
premium would dilute the interests of the holders of the Andrx common stock in
Andrx Corporation. Any conversion would also preclude holders of both classes of
common stock from retaining their investment in a security that is intended to
reflect separately the performance of the groups. It may also give holders of
shares of converted Cybear common stock a greater or lesser consideration than
any consideration a third-party buyer would pay for all or substantially all of
the assets of Cybear.
Stockholders may not have any remedies for breach of fiduciary duties
if any action by directors and officers has a disadvantageous effect on either
class of common stock.
Stockholders may not have any remedies if an action or decision of our
board of directors or our officers has a disadvantageous effect on the Andrx
common stock or the Cybear common stock compared to the other class of common
stock. Recent cases in Delaware Court involving tracking stocks have indicated
that decisions by directors or officers involving differing treatment of
tracking stocks should be judged under the business judgment rule, unless
self-interest is established. The business judgment rule provides that an
informed director or officer will be deemed to have satisfied his or her
fiduciary duties if that person acts in a manner he or she believes in good
faith to be in the best interests of Andrx Corporation. Because of the
application of the business judgment rule, holders of one group's stock who are
disadvantaged by an action of our board of directors or officers may not be able
to successfully make claims
12
<PAGE>
that a decision involving different treatment of the Andrx common stock or
Cybear common stock was wrongful, absent a showing of self-interest by directors
or officers.
Stock ownership could cause directors and officers to favor one group
over the other.
Our directors and officers currently own more shares, including shares
subject to stock options, of Andrx common stock than the Cybear common stock. As
a policy, our board of directors periodically monitors the ownership of shares
of Andrx common stock and shares of Cybear common stock by its directors and
executive officers and its option grants to them so that their interests are
generally aligned with the two classes of common stock and with their duty to
act in the best interests of the Andrx Corporation and our stockholders as a
whole. However, because the actual value of their interests in Andrx common
stock and Cybear common stock is anticipated to vary significantly, it is
possible that they could favor one group over the other due to their stock and
option holdings.
Numerous potential conflicts of interests exist between classes of
common stock which may be difficult to resolve by our board of directors or
which may be resolved adversely to one of the classes.
The existence of different classes of common stock could give rise to
occasions when the interests of holders of Andrx common stock and Cybear common
stock diverge, conflict or appear to diverge or conflict.
Our board of directors may pay more or less dividends on one group's
common stock than if that group was a separate company.
Our board of directors has the authority to declare and pay dividends
on each class of common stock in any amount and could, in its sole discretion,
declare and pay dividends exclusively on Andrx common stock, exclusively on
Cybear common stock, or on both, in equal or unequal amounts. Our board of
directors will not be required to consider the amount of dividends previously
declared on each class, the respective voting or liquidation rights of each
class or any other factor. The performance of one group may cause our board of
directors to pay more or less dividends on the common stock relating to the
other group than if that other group was a stand-alone corporation. In addition,
Delaware law and the certificate of incorporation may impose limitations on the
amount of dividends which may be paid on each class of common stock.
Allocation of corporate opportunities could favor Andrx and Cybear over
the other.
Our board of directors may be required to allocate corporate
opportunities between Andrx and Cybear. In some cases, the directors could
determine that a corporate opportunity, such as a business that Andrx may be
acquiring, should be shared by Cybear. Any such decisions could favor one group
at the expense of the other.
Andrx and Cybear may compete with each other to the detriment of their
businesses.
13
<PAGE>
The existence of two separate classes of common stock will not prevent
Andrx and Cybear from competing with each other. Any competition between Andrx
and Cybear could be detrimental to the businesses of either or both of them.
Under a board of directors' policy, Andrx and Cybear will generally not engage
in the principal businesses of the other. However, our board of directors will
permit indirect competition between Andrx and Cybear based on a good faith
business judgment that such competition is the best interests of Andrx
Corporation and all of our stockholders as a whole. In addition, Andrx and
Cybear may compete in a business that is not a principal business of the other.
Andrx and Cybear may finance each other on unfavorable terms.
It is possible that we will transfer cash and other property between
Andrx and Cybear to finance their business activities. The party providing the
financing will be subject to the risks relating to the party receiving the
financing. We will account for those transfers in one of the following ways:
o as a short-term or long-term loan between groups or as a
repayment of a previous borrowing;
o as an increase or decrease in the equity interest; or
o as a sale of assets between the two groups.
Our board of directors has not adopted specific criteria for
determining when it will transfer cash or other property as a loan or repayment,
an increase or decrease in equity interest or a sale of assets. These
determinations, including the terms of any transactions accounted for as debt,
could be unfavorable to either the party transferring or receiving the cash or
other property. Our board of directors expects to make these determinations,
either in specific instances or by setting generally applicable policies, after
considering the financing requirements and objectives of the receiving party,
the investment objectives of the transferring party and the availability, cost
and time associated with alternative financing sources, prevailing interest
rates and general economic conditions.
Andrx and Cybear cannot assure you that any terms that are fixed for
debt will approximate those that could have been obtained by the borrower if it
were a stand-alone corporation.
Provisions governing the two classes of common stock could discourage a
change of control and the payment of a premium for shares.
The existence of two classes of common stock could present complexities
and could pose obstacles, financial or otherwise, to a person seeking to acquire
control of us. In addition, provisions of Delaware law and the certificate of
incorporation and bylaws may also deter hostile takeover attempts. If Andrx and
Cybear were separate, independent publicly traded companies, any person
interested in acquiring either group without negotiating with the other group's
management could seek control of that entity by obtaining control of its
outstanding voting stock by means of a tender offer or proxy contest. A person
interested in acquiring only one group
14
<PAGE>
would still be required to seek control of the majority of the voting power
represented by all the outstanding stock of Andrx Corporation.
Investors may not value the common stock based on group financial
information and policies.
We cannot assure you that investors will value the Andrx common stock
and the Cybear common stock based on the reported financial results and
prospects of Andrx and Cybear or the dividend policies established by our board
of directors.
15
<PAGE>
NOTE REGARDING FORWARD-LOOKING STATEMENTS
We caution our readers that certain important factors may affect our
actual results and could cause such results to differ materially from any
forward-looking statements which may be deemed to have been made in this
prospectus or which are otherwise made by or on behalf of us. For this purpose,
any statements contained in this report that are not statements of historical
fact may be deemed to be forward-looking statements. Without limiting the
generality of the foregoing words such as "may", "will", "to", "expect",
"believe", "anticipate", "intend", "could", "would", "estimate", or "continue"
or the negative other variations thereof or comparable terminology are intended
to identify forward-looking statements. Factors which may affect our results
include, but are not limited to the risks and uncertainties described in this
prospectus or from time to time in our filings with the SEC.
PROCEEDS FROM SALE OF SHARES
We will not receive any proceeds from the sale of the shares of Andrx
common stock being offered.
We expect to incur expenses of approximately $15,000 in connection with
the registration of the shares.
16
<PAGE>
SELLING STOCKHOLDERS
The following table sets forth certain information with respect to the
ownership of Andrx common stock by selling stockholders as of the date of this
prospectus.
<TABLE>
<CAPTION>
Beneficial Beneficial
ownership of Andrx common Number of Ownership of Andrx
stock before shares being common stock
Selling Stockholders offering(1) offered(3) after offering(4)
------------------------------ ---------------- ---------------------------
Number Percentage(2) Number Percentage(2)
-------------------------------------------- --------- ------------ ------ -------------
<S> <C> <C> <C> <C> <C>
Bobby Joe King, Jr. 185,294 * 185,294 0 0
Max Draughn 17,647 * 17,647 0 0
Frank Montgomery 23,529 * 23,529 0 0
Dennis R. Thomas, M.D. 23,529 * 23,529 0 0
</TABLE>
------------------
*Represents less than 1%.
(1) Represents shares beneficially owned by the named individual, including
shares of Andrx common stock that the person has the right to acquire
within 60 days of the date of this prospectus. Unless otherwise noted,
all persons listed have sole voting and sole investment power.
(2) Based on 69,281,653 shares of Andrx common stock issued and outstanding
as of November 28, 2000.
(3) Does not constitute a commitment to sell any or all of the stated
number of shares of Andrx common stock. The number of shares of Andrx
common stock offered shall be determined from time to time by each
selling stockholder in his sole discretion.
(4) Assumes all the shares of Andrx common stock are sold pursuant to this
prospectus and that no other shares of Andrx common stock are acquired
or disposed of by the selling stockholders prior to the termination of
this prospectus.
17
<PAGE>
HOW THE SHARES MAY BE DISTRIBUTED
The selling stockholders have advised us that they may from time to
time sell all or a portion of the shares offered in one or more transactions in
the over-the-counter market, on the Nasdaq National Market, or on any other
exchange on which the Andrx common stock may then be listed, in privately
negotiated transactions or otherwise, or a combination of such methods of sale,
at market prices prevailing at the time of sale or prices related to such
prevailing market prices or at negotiated prices. The selling stockholders may
effect such transactions by selling the shares to or through broker-dealers, and
such broker-dealers may receive compensation in the form of underwriting
discounts, concessions or commissions from the selling stockholders and/or
purchasers of the shares for whom they may act as agent (which compensation may
be in excess of customary commissions). The selling stockholders and any
participating broker-dealers may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act of 1933. Neither we nor the
selling stockholders can estimate at the present time the amount of commissions
or discounts, if any, that will be paid by the selling stockholders on account
of their sales of the shares from time to time.
Because the selling stockholders may be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act of 1933, the selling
stockholders will be subject to prospectus delivery requirements under the
Securities Act of 1933. Furthermore, in the event of a "distribution" of
securities, the selling stockholders, any selling broker-dealer, and any
"affiliated purchasers" may be subject to Regulation M under the Securities
Exchange Act of 1934, which prohibits certain activities for the purpose of
pegging, fixing or stabilizing the price of securities in connection with an
offering.
Under the securities laws of certain states, the shares may be sold
only through registered or licensed broker-dealers or pursuant to available
exemptions from such requirements.
We will pay certain expenses in connection with this offering,
estimated to be approximately $15,000 but we will not pay for any underwriting
commissions and discounts, if any, or counsel fees or other expenses of the
selling stockholders. We have agreed to indemnify the selling stockholders
against certain liabilities, including certain liabilities under the Securities
Act of 1933.
LEGAL OPINION
Broad and Cassel, a partnership including professional associations,
201 South Biscayne Boulevard, Suite 3000, Miami, Florida 33131, is giving an
opinion regarding the validity of the offered shares of the Andrx common stock.
EXPERTS
The financial statements of Andrx Corporation and Cybear Inc.,
incorporated by reference in this prospectus have been audited by Arthur
Andersen LLP, independent certified public accountants, to the extent and for
the periods set forth in their reports incorporated herein by reference, and are
incorporated herein in reliance upon such reports given upon the authority of
said firm as experts in auditing and accounting.
18
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-3 with the SEC in
connection with this offering. This prospectus does not contain all of the
information set forth in the registration statement, as permitted by the Rules
and Regulations of the SEC. Whenever reference is made in this prospectus to any
contract or other document of ours, the reference may not be complete and you
should refer to the exhibits that are part of the registration statement for a
copy of the contract or document.
We also file annual, quarterly and current reports and other
information with the SEC. You may read and copy any report or document we file,
and the registration statement, including the exhibits, may be inspected at the
SEC's public reference room located at 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. Our SEC filings are also available to the public from
the SEC's website at: http://www.sec.gov.
Quotations for the prices of our Andrx common stock appear on the
Nasdaq National Market, and reports, proxy statements and other information
about us can also be inspected at the offices of the National Association of
Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents are incorporated by reference into this
prospectus:
o The Registration Statement on Form S-3 (Registration No.
333-33822), as filed with the SEC on March 31, 2000, and as
subsequently amended on April 28, 2000 and May 24, 2000;
o The Registration Statement on Form S-4 (Registration No.
333-38226), as filed with the SEC on March 31, 2000, and as
subsequently amended on July 21, 2000;
o The description of the Andrx common stock contained in our
registration statement on Form 8-A, filed on September 8,
2000, including the information incorporated therein by
reference and including any amendment or reports filed for the
purpose of updating such description; and
o Our Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 2000.
In addition, all documents filed by us pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, after the date hereof
and prior to the filing of a post-effective amendment which indicates that all
securities registered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
prospectus and to be a part hereof from the date of filing of such documents
with the SEC. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained herein, or in a subsequently
filed document incorporated by reference herein, modifies or
19
<PAGE>
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute part of this
prospectus.
You may request, at no cost, a copy of any or all of the information
incorporated by reference by writing or telephoning us at:
Andrx Corporation
4955 Orange Drive
Davie, Florida 33314
(954) 584-0300
Attention: Corporate Secretary
You should only rely on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. Andrx common stock is not being
offered in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any supplement is accurate as of any
date other than the date on the front of those documents.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our amended and restated certificate of incorporation provides for
indemnification rights of officers, directors, and others and limits the
personal liability of directors for monetary damages to the extent permitted by
Delaware Law.
We have entered into an indemnification agreement with each of our
directors and executive officers. Each indemnification agreement provides that
we will indemnify such person against certain liabilities (including
settlements) and expenses actually and reasonably incurred by him or her in
connection with any threatened or pending legal action, proceeding or
investigation (other than actions brought by or in the right of Andrx
Corporation) to which he or she is, or is threatened to be, made a party by
reason of his or her status as a director, officer or agent of Andrx
Corporation, provided that such director or executive officer acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of Andrx Corporation and, with respect to any criminal
proceedings, had no reasonable cause to believe his or her conduct was unlawful.
With respect to any action brought by or in the right of Andrx Corporation, a
director or executive officer will also be indemnified, to the extent not
prohibited by applicable law, against expenses and amounts paid in settlement,
and certain liabilities if so determined by a court of competent jurisdiction,
actually and reasonably incurred by him or her in connection with such action if
he or she acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of Andrx Corporation.
20
<PAGE>
PART II
INFORMATION REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Andrx Corporation estimates that its expenses in connection with this
registration statement will be as follows:
SEC registration fee $ 3,886
Legal fees and expenses $ 5,000
Accounting fees and expenses $ 3,000
Miscellaneous $ 3,114
-------
Total $15,000
=======
Item 15. Indemnification of Directors and Officers.
Our amended and restated certificate of incorporation provides for
indemnification rights of officers, directors, and others and limits the
personal liability of directors for monetary damages to the extent permitted by
Delaware Law.
We have entered into an indemnification agreement with each of our
directors and executive officers. Each indemnification agreement provides that
we will indemnify such person against certain liabilities (including
settlements) and expenses actually and reasonably incurred by him or her in
connection with any threatened or pending legal action, proceeding or
investigation (other than actions brought by or in the right of Andrx
Corporation) to which he or she is, or is threatened to be, made a party by
reason of his or her status as a director, officer or agent of Andrx
Corporation, provided that such director or executive officer acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of Andrx Corporation and, with respect to any criminal
proceedings, had no reasonable cause to believe his or her conduct was unlawful.
With respect to any action brought by or in the right of Andrx Corporation, a
director or executive officer will also be indemnified, to the extent not
prohibited by applicable law, against expenses and amounts paid in settlement,
and certain liabilities if so determined by a court of competent jurisdiction,
actually and reasonably incurred by him or her in connection with such action if
he or she acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of Andrx Corporation.
Item 16. Exhibits.
5.1 Opinion of Broad and Cassel(1)
23.1 Consent of Broad and Cassel (contained in its opinion filed
as Exhibit 5.1 to this Registration Statement)(2)
23.2 Consent of Independent Certified Public Accountants(2)
24.1 Power of Attorney(1)
----------------------
(1) Previously filed.
(2) Filed herewith.
21
<PAGE>
Item 17. 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:
(a) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(b) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement; and
(c) To include any additional or changed material
information on the plan of distribution;
provided, however, that paragraphs (1)(a) and (1)(b) shall not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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.
(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 of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
22
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act of
1933, as amended, 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 it is against public policy as expressed in the Securities
Act of 1933, as amended, and will be governed by the final adjudication of such
issue.
23
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fort Lauderdale, State of Florida on December
11, 2000.
ANDRX CORPORATION
By: /s/ Angelo C. Malahias
---------------------------------------
Angelo C. Malahias, Vice President and
Chief Financial Officer
Each person whose signature appears below constitutes and appoints Alan
P. Cohen, Elliot F. Hahn and Angelo C. Malahias, or any one of them, as 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 in any
and all capacities to execute in the name of each such person who is then an
officer or director of the Registrant any and all amendments (including
post-effective amendments) to this Registration Statement, and any registration
statement relating to the offering hereunder pursuant to Rule 462 under the
Securities Act of 1933, as amended, and to file the same with all exhibits
thereto and other documents in connection therewith with the SEC, granting unto
said attorneys-in-fact and agents and each of them full power and authority to
do and perform each and every act and thing required or necessary to be done in
and about the premises as fully as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents; or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on behalf
of the registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/S/ ALAN P. COHEN Co-Chairman, Chief Executive December 11, 2000
---------------------------------------------- Officer and Director
Alan P. Cohen (Principal Executive Officer)
/S/ * Co-Chairman, Chief Scientific December 11, 2000
---------------------------------------------- Officer and Director
Chih-Ming J. Chen, Ph.D.
/S/ ELLIOT F. HAHN President and Director December 11, 2000
----------------------------------------------
Elliot F. Hahn, Ph.D.
</TABLE>
24
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/S/ ANGELO C. MALAHIAS Vice President and Chief December 11, 2000
---------------------------------------------- Financial Officer (Principal
Angelo C. Malahias Financial and Accounting
Officer)
/S/ * Director December 11, 2000
----------------------------------------------
Lawrence J. DuBow
/S/ * Director December 11, 2000
----------------------------------------------
Irwin C. Gerson
/S/ * Director December 11, 2000
----------------------------------------------
Michael A. Schwartz, Ph.D.
/S/ * Director December 11, 2000
----------------------------------------------
Melvin Sharoky, M.D.
---------------------
* BY: /S/ ALAN P. COHEN
-----------------------------------
Alan P. Cohen
Attorney-in-Fact
</TABLE>
25
<PAGE>
EXHIBIT INDEX
Exhibit Description
------- -----------
23.2 Consent of Independent Certified Public Accountants
