As filed with the Securities and Exchange Commission on December 1, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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
4001 Southwest 47th Avenue
Ft. Lauderdale, 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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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities to be Amount to be offering price per aggregate offering Amount of
registered registered share(1) price registration fee
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<S> <C> <C> <C> <C>
Andrx Group common stock,
$.001 par value 250,000 $58.88 $14,720,000 $3,886
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(1) Estimated pursuant to paragraph (c) of Rule 457 under the
Securities Act of 1933, as amended, solely for the purpose of calculating the
registration fee on the basis of the high and low sales prices for a share of
Andrx Group common stock on the Nasdaq National Market on November 24, 2000.
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 it 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 1, 2000
250,000 shares of Andrx Group common stock
ANDRX CORPORATION
Certain of our stockholders are offering a total of 250,000 shares of Andrx
Group common stock, pursuant to this prospectus.
The selling stockholders may sell their shares in one or more transactions
in the over-the-counter market, on the Nasdaq National Market or on any other
exchange on which Andrx Group common stock may be listed. They may also sell in
privately negotiated transactions 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
sell their shares to or through broker-dealers, and such broker-dealers may
receive compensation 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" as defined in the Securities
Act of 1933. We cannot 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 of Andrx Group common stock from time to time. We will
indemnify the selling stockholders against certain liabilities, including
certain liabilities under the Securities Act of 1933. See "How the Shares May be
Distributed."
We will not receive any proceeds from the sale of these shares. Our Andrx
Group common stock is quoted on the Nasdaq National Market under the symbol
"ADRX" and our Cybear Group 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 1, 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
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 completed a reorganization whereby we 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 ownership of Cybear Inc.; and
o Cybear Group common stock, to track the performance of Cybear Inc..
As used in this prospectus, the words "Andrx Corporation," "we," "us,"
and "our" refer to Andrx Corporation, and all of its subsidiaries taken as a
whole. In addition, "Andrx" refers to Andrx Corporation and all of its
subsidiaries, prior to the reorganization, and to the Andrx Group following the
reorganization, and "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). Through our distribution operations, we also 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.
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.
Product Development and Commercialization
Bioequivalent Pharmaceuticals
We market Cartia XT(R) and Diltia XT(R), respectively. The U.S. Food
and Drug Administration, or FDA, tentatively approved the Abbreviated New Drug
Applications, or ANDAs, we submitted for our bioequivalent versions of
Prilosec(R), Tiazac(R) and Naprelan(R). These products had U.S. brand sales in
excess of $3.5 billion in 1999. We do not expect to receive FDA approval to
market these products until the related patent litigation with respect to these
products has been favorably resolved or such litigation has been pending for
approximately 30 months.
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However, our products may not 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. With respect to our
bioequivalent version of Prilosec, marketing approval will be delayed until at
least the expiration of the composition of matter patent in April 2001, and this
may be extended for six months to October 2001 under regulatory provisions that
reward pediatric studies. We filed ANDAs and are awaiting tentative or final FDA
approval for several additional products, including bioequivalent versions of
Wellbutrin SR(R), Zyban(R), K-Dur(R), Depakote(R), Claritin D-24(R), Lodine(R)
XL and Procardia XL(R). These products had U.S. brand sales in excess of $2
billion in 1999. Additionally, the FDA has approved the bioequivalent versions
of Trental(R) and Oruvail(R) that we developed for ANCIRC, our joint venture
with Watson Pharmaceuticals, Inc. If we commercially market bioequivalent
versions of any of the six additional products that were initially part of the
ANCIRC joint venture, including Procardia XL for which we recently submitted
an ANDA, we are required to pay a royalty to Watson with respect to such sales.
In August 2000, we entered into CARAN, a 50/50 joint venture with Carlsbad
Technology, Inc., to develop, manufacture and sell three bioequivalent
pharmaceutical products, all of which have been filed with the FDA. Carlsbad
developed and will manufacture the products and we will distribute the products.
We continually evaluate other potential bioequivalent product
candidates for development, either internally or through joint ventures, most of
which (in terms of sales), are controlled release pharmaceuticals. In selecting
product candidates, we focus on pharmaceuticals for which we anticipate we can
have high sales volume.
Brand Name Pharmaceuticals
We apply our proprietary drug delivery technologies to the development
of brand name controlled-release formulations of existing immediate-release and
controlled-release drugs. The FDA approval process for these products will
require the filing of New Drug Applications, or NDAs. In selecting our product
candidates, we focus on pharmaceuticals with high sales volume whose patent
rights will expire in a time frame that allows us to complete the development
prior to patent expiration. Our most advanced brand products, Lovastatin XL(R),
for the treatment of elevated cholesterol, recently completed Phase III trials,
and Metformin XT(R), for the treatment of diabetes, commenced Phase III trials
in the third quarter of 2000. These products are in markets which are addressed
by pharmaceutical products which had approximately $7.7 billion in U.S. sales in
1999. We are also in various early stages of development for certain other
products.
Pharmaceutical Distribution Operations
We market and distribute drugs manufactured by third parties. Our
customers consist primarily of independent pharmacies, pharmacy chains which do
not maintain their own central warehousing facilities and pharmacy buying
groups. Our distribution operations assist in the marketing of Cartia XT and
Diltia XT and our bioequivalent version of Trental and we plan to use these
operations to assist in the marketing of other bioequivalent products being
developed by us and our collaborative partners. These operations allow us to
observe and participate directly in developments and trends in the
pharmaceutical industry.
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Cybear
Cybear uses the Internet to improve the efficiency of the
administrative and communication tasks of managing patient care with secure and
reliable transmission of information. Cybear is an Internet Service Provider, or
ISP, and an Application Services Provider, or ASP, for the healthcare industry.
Cybear uses or intends to use its own secure private network to provide access
to the Internet, e-mail and productivity applications to physicians, physician
organizations, pharmacies and hospitals. In March 1999, Cybear introduced its
first product, dr.cybear, its physician practice portal, which addresses the
communications and operational needs of physicians and other healthcare
providers. dr.cybear is marketed to physicians, physician organizations,
hospitals, managed care organizations and integrated delivery networks
throughout the United States. In September 1999, Cybear and Andrx formed a joint
venture, known as Cybearclub, to promote the sale of vaccines, injectables and
other items to physicians' offices over the Internet through dr.cybear.
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 Group common stock and cash, and will
be accounted for using the purchase method of accounting. The acquisition is
subject to various closing conditions, including the Registration of the shares
included herein for resale. Andrx expects that the closing will occur by the
first quarter of 2001.
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Our principal corporate office is located at 4001 S.W. 47th Avenue, Ft.
Lauderdale, Florida 33314, and our telephone number is (954) 584-0300.
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The Offering
Andrx Group common stock offered by the selling stockholders.... 250,000 shares
Common Stock outstanding..........69,281,653 shares of Andrx Group common stock
15,202,611 shares of Cybear Group common stock
Use of Proceeds...................We will not receive any of the proceeds from
the sale of these shares of Andrx Group common
stock. See "Proceeds from the Sale of Shares"
and "Selling Stockholders."
RISKS OF INVESTING IN OUR SHARES
You should carefully consider the following risks 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. You also should
refer to the other information set forth in this prospectus, including our
combined financial statements and the related notes thereto incorporated by
reference from our filings with the SEC. 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. In such case, the trading price of our shares
could decline, and you may lose all or part of your investment.
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 the ANDAs we
have filed containing certifications relating to infringement, validity or
enforceability of patents. In these certifications, we state our position that
our proposed product will not infringe an unexpired patent which has been listed
with the 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 NDA 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.
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We are subject to antitrust litigation and an FTC administrative
proceeding relating to a stipulation we entered into with Aventis which, if
adversely determined, would harm our business and financial results
Putative class actions and individual actions have been filed against
us in a number of state and federal courts. In each of these suits, we and
Aventis S.A., formerly Hoechst Marion Roussel, Inc., and some of our affiliates,
have been named as co-defendants. We entered into a stipulation and agreement
with Aventis in connection with the 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 specified in the stipulation in exchange for,
among other things, Aventis' agreement not to seek a preliminary injunction
against us in the then-pending litigation and the right to obtain a license to
the relevant Aventis' patents if we lost the patent infringement litigation or
other events occurred and certain payments made by Aventis to us. The complaint
in each of these actions alleges that Aventis alone and Aventis along with us,
by way of the stipulation, engaged in antitrust and other statutory and common
law violations which allegedly have, and other things, given Aventis and us a
monopoly in the U.S. market for Cardizem CD and a bioequivalent version of that
pharmaceutical product or otherwise restrained trade. 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 May 11, 2000, the United States District Court for the Eastern
District of Michigan denied our and Aventis' motions to dismiss the consolidated
class action and other complaints pending before this court, which is handling
the multi-district litigation challenging the stipulation. On June 6, 2000, the
Eastern District Court of Michigan granted motions for partial summary judgment
with respect to the stipulation, without addressing the issues of whether the
stipulation in fact had any anti-competitive effect or caused any injury or
damages, the court determined that the stipulation constituted a restraint of
trade that was a per se violation of the federal anti-trust laws. The court's
decision is subject to our right to appeal at the conclusion of the litigation,
but we and Aventis asked the District Court to permit an immediate appeal of the
ruling to the United States Court of Appeals for the Sixth Circuit. On August
15, 2000, the District Court granted the motions and certified two questions to
the appellate court. Thereafter, as required under Federal Rules of Appellate
Procedure, we and Aventis filed motions requesting the appellate court to accept
the appeal as certified by the District Court. Those motions are still pending.
Also, on September 20, 2000, the District Court granted plaintiffs' motions to
amend their complaints to allege a nationwide class of purchasers suing under
state unjust enrichment laws. In due course, we and Aventis will be given the
opportunity to make motions to dismiss these new claims. A hearing on the
motions to certify the actions as class actions is scheduled to be heard in
December 2000.
In addition, 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.
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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.
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 or tentatively approved the ANDAs for
seven of our products and we are marketing only three of these (including the
one ANCIRC product). 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 or that our development efforts will be successfully
completed. Our future results of operations will depend significantly upon our
ability to develop and market new pharmaceutical products and our existing ones.
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 such
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.
The stringent governmental regulation in our business subjects us to 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 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
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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 recent FDA guidelines may result in our
bioequivalent products not being able to fully utilize the 180-day marketing
exclusivity period
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.
We face uncertainties related to clinical trials which could result in
delays in product development and commercialization
Prior to seeking FDA approval for the commercial sale of brand name
controlled-release formulations under development, we must demonstrate through
clinical trials that these products are safe and effective for use. We have
limited experience in conducting and supervising clinical trials. There are a
number of difficulties associated with clinical trials. The results of these
clinical trials may not be indicative of results that would be obtained from
large-scale testing. Clinical trials are often conducted with patients having
advanced stages of disease and, as a result, during the course of treatment
these patients can die or suffer adverse medical effects for reasons that may
not be related to the pharmaceutical agents being tested, but which
nevertheless, 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.
Restrictive FDA regulations govern 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,
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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. Further, the FDA 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.
We have limited manufacturing capacity and needs to acquire or build
additional capacity for products in our pipeline. Our manufacturing facilities
must comply with stringent FDA and other regulatory requirements
We have an approximately 35,000 square foot commercial manufacturing
facility. This facility is currently being used to manufacture Cartia XT and
Diltia XT and is expected to be sufficient for these products and for our
bioequivalent versions of Tiazac, Oruvail, Naprelan and K-Dur. As it will not be
suitable for the manufacture of all of the products we intend to develop and
manufacture, we are in the process of expanding our facilities for manufacturing
operations.
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.
If we are unable to manage our rapid growth, our business will suffer
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
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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. If we fail to manage growth
effectively or to develop a successful marketing approach, our business and
financial results will be materially harmed.
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.
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
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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. 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 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.
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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 products
it distributes involve a risk of product liability 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. We cannot assure you that the
coverage limits of our insurance will be sufficient to cover potential claims.
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 may
have losses for the foreseeable future
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 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
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;
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<PAGE>
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 Group common stock; and
o Cybear's financial performance.
Cybear Group 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.
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 group could adversely affect the other group
We have two classes of common stock: Andrx Group common stock to track
the performance of Andrx and Cybear Group common stock to track the performance
of Cybear.
Holders of Andrx Group common stock and Cybear Group 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 allocation of assets and liabilities and stockholders' equity
between us and Cybear will not result in a distribution or spin-off to
stockholders of any of our assets or liabilities and will not affect our
ownership of assets or responsibility for liabilities or those of our
subsidiaries. The assets attributed to one
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<PAGE>
group may be subject to the liabilities of the other group, even if these
liabilities arise from lawsuits, contracts or indebtedness attributed to the
other group. If we are unable to satisfy one group's liabilities with the assets
attributed to it, we may satisfy those liabilities with assets we have
attributed to the other group.
Financial effects on one group 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 group and
the market price of the common stock relating to the other group. In addition,
net losses of either group and dividends and distributions on, or repurchases
of, either class of common stock or repurchases of preferred stock at a price
per share greater than par value 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
by this prospectus.
Holders of each class of common stock will have only limited class
stockholder rights
Holders of Andrx Group common stock and Cybear Group 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 Group common stock
and Cybear Group 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 Group common stock or Cybear Group 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;
o an opportunity to have the Cybear Group common stock be redeemed or
converted into Andrx Group 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 Group common
stock or Cybear Group 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 Group common stock or the Cybear Group common stock, those
holders could prevent approval of the matter, even if the
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<PAGE>
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 Group 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 Group common stock into shares of Andrx
Group 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
Group 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 Group 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
Group common stock or the Cybear Group 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 that a decision involving different treatment of the
Andrx Group common stock or Cybear Group 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 Group common stock than the Cybear Group
common stock. As a policy, our board of directors will periodically monitor the
ownership of shares of the Andrx Group common stock and shares of Cybear Group
common stock by its directors and senior 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 the Andrx Group common stock and Cybear Group 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.
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<PAGE>
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 the Andrx Group common stock and
Cybear Group 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 the Andrx Group common stock,
exclusively on the Cybear Group 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 one group over the
other
Our board of directors may be required to allocate corporate
opportunities between the groups. 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.
Groups may compete with each other to the detriment of their businesses
The existence of two separate classes of common stock will not prevent
the groups from competing with each other. Any competition between the groups
could be detrimental to the businesses of either or both of the groups. Under a
board of directors' policy, groups will generally not engage in the principal
businesses of the other. However, our board of directors will permit indirect
competition between the groups 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, the groups may compete in a business that
is not a principal business of the other group.
Either group may finance the other group on terms unfavorable to one of
the groups
It is possible that we will transfer cash and other property between
groups to finance their business activities. The group providing the financing
will be subject to the risks relating to the group receiving the financing. We
will account for those transfers in one of the following ways:
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<PAGE>
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 group 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 group,
the investment objectives of the transferring group 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 borrowing group
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 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 Group common
stock and the Cybear Group common stock based on the reported financial results
and prospects of Andrx and Cybear or the dividend policies established by our
board of directors.
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<PAGE>
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 associated with a
drug delivery company which has only commercialized a few products, has new
technologies and limited manufacturing experience, including but not limited to
current and potential competitors with significant technical and marketing
resources, and dependence on key personnel. We are also subject to the risks and
uncertainties associated with all drug delivery companies, including changes in
regulatory schemes, difficulty in receiving regulatory approval to market new
products, compliance with government regulations and patent infringement and
other litigation. Additionally, we are subject to risks and uncertainties
associated with drug distribution companies, including but not limited to,
fierce competition and decreasing gross profits. In addition, Cybear, our
Internet-based healthcare information technology subsidiary is subject to the
risks and uncertainties of an early stage Internet company, including but not
limited to, limited operating history, substantial operating losses,
availability of capital resources, ability to effectively compete, unanticipated
difficulties in product development, ability to gain market acceptance and
market share, ability to manage growth, reliance on short-term non-exclusive
contracts, ability to obtain content, Internet security risks and uncertainty
relating to the evolution of the Internet as a medium for commerce, dependence
on third party content providers, dependence on key personnel, ability to
protect intellectual property and the impact of future government regulation. We
are also subject to other risks detailed herein or detailed from time to time in
our and Cybear Inc.'s filings with the SEC.
PROCEEDS FROM SALE OF SHARES
We will not receive any proceeds from the sale of the shares of Andrx
Group common stock being offered.
We expect to incur expenses of approximately $15,000 in connection with
the registration of the shares.
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SELLING STOCKHOLDERS
The following table sets forth certain information with respect to the
ownership of Andrx Group common stock by selling stockholders as of the date of
this prospectus.
<TABLE>
<CAPTION>
Beneficial Beneficial
ownership of Andrx Group Number of Ownership of Andrx Group
common 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 Group 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 Group 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 Group common stock. The number of shares of
Andrx Group 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 Group common stock are sold pursuant to
this prospectus and that no other shares of Andrx Group common stock
are acquired or disposed of by the selling stockholders prior to the
termination of this prospectus.
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<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 Group 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 Group 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
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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.
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 Group 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 Group 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
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<PAGE>
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
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
4001 S.W. 47th Avenue
Ft. Lauderdale, FL 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 Group 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.
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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
23.1 Consent of Broad and Cassel (contained in its opinion filed as
Exhibit 5.1 to this Registration Statement)
23.2 Consent of Independent Certified Public Accountants
24.1 Power of Attorney (included in the signature page of this
Registration Statement)
------------------
22
<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.
23
<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.
24
<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 1,
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 1, 2000
---------------------------------------------- Officer and Director
Alan P. Cohen (Principal Executive Officer)
/S/ CHIH-MING J. CHEN Co-Chairman, Chief Scientific December 1, 2000
---------------------------------------------- Officer and Director
Chih-Ming J. Chen, Ph.D.
/S/ ELLIOT F. HAHN President and Director December 1, 2000
----------------------------------------------
Elliot F. Hahn, Ph.D.
</TABLE>
25
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/S/ ANGELO C. MALAHIAS Vice President and Chief December 1, 2000
---------------------------------------------- Financial Officer (Principal
Angelo C. Malahias Financial and Accounting
Officer)
/S/ LAWRENCE J. DUBOW Director December 1, 2000
----------------------------------------------
Lawrence J. DuBow
/S/ IRWIN C. GERSON Director December 1, 2000
----------------------------------------------
Irwin C. Gerson
/S/ MICHAEL A. SCHWARTZ Director December 1, 2000
----------------------------------------------
Michael A. Schwartz, Ph.D.
/S/ MELVIN SHAROKY Director December 1, 2000
----------------------------------------------
Melvin Sharoky, M.D.
</TABLE>
26
<PAGE>
EXHIBIT INDEX
Exhibit Description
------- -----------
5.1 Opinion of Broad and Cassel
23.1 Consent of Broad and Cassel (included in Exhibit 5.1)
23.2 Consent of Independent Certified Public Accountants
24.1 Power of Attorney (included in the signature page of
this Registration Statement)
