As filed with the Securities and Exchange Commission on September 6, 1996
Registration Statement
No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ANDRX CORPORATION
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(Exact name of registrant as specified in its charter)
FLORIDA 65-0366879
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
4001 SOUTHWEST 47TH AVENUE, SUITE 201, FT. LAUDERDALE, FLORIDA 33314
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(Address of Principal Executive Offices) (Zip Code)
ANDRX CORPORATION STOCK INCENTIVE PLAN
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(Full title of the plan)
Scott Lodin, Esquire
Andrx Corporation
4001 Southwest 47TH Avenue, Suite 201
Ft. Lauderdale, Florida 33314
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(Name and address of agent for service)
(954) 589-0300
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(Telephone number, including area code,
of agent for service)
Copies to:
Dale S. Bergman, P.A.
Broad and Cassel
201 South Biscayne Boulevard
Miami Center, Suite 3000
Miami, Florida 33131
(305) 373-9454
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED(1) SHARE(2) PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 1,250,000 $14.25 $17,812,500.00 $6,142.29
</TABLE>
(1) Pursuant to Rule 416, promulgated under the Securities Act of 1933, as
amended, this Registration Statement covers an indeterminate number of
securities to be offered as a result of any adjustment from stock splits,
stock dividends or similar events.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457, promulgated under the Securities Act
of 1933, as amended, and based upon the average of the closing bid and asked
price of the Common Stock on September 3, 1996.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference into this
Registration Statement:
1. The Registrant's Registration Statement on Form S-1 (File. No.
333-03614), filed with the U.S. Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), including any amendments to such descriptions in such Registration
Statement;
2. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996, as filed with the Commission.
In addition, all documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities hereby have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents with the Commission. Any
statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
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 Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has authority under Section 607.0850 of the Florida
Business Corporation Act to indemnify its directors and officers to the extent
provided for in such statute. The Registrant's Amended and Restated Articles of
Incorporation and Bylaws provide that the Registrant may insure, shall indemnify
and shall advance expenses on behalf of its officers and directors to the
fullest extent not prohibited by law. The Registrant is also a party to
indemnification agreements with each of its directors and officers. The form of
Underwriting Agreement filed as Exhibit 1.1 to the Registrant's Registration
Statement referred to above
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provides for the indemnification of the Registrant and its directors and
officers against certain liabilities, including liabilities under the Securities
Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
4.1 Registrant's Amended and Restated Articles of Incorporation(1)
4.2 Registrant's Amended and Restated Bylaws(2)
4.3 Form of Stock Incentive Plan(3)
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 Arthur Andersen LLP
24.1 Power of Attorney (included in the signature page of this
Registration Statement)
ITEM 9. 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;
(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
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1 Incorporated by reference to Exhibit 3.1 filed with the Registrant's
Registration Statement on Form S-1 (File No. 333-03614)
2 Incorporated by reference to Exhibit 3.2 filed with the Registrant's
Registration Statement on Form S-1 (File No. 333-03614).
3 Incorporated by reference to Exhibit 10.1 filed with the Registrant's
Registration Statement on Form S-1 (File No. 333-03614).
II-2
<PAGE>
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 Commission 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 material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
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 Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
Insofar as indemnification for liabilities arising under the Securities
Act 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 Commission such indemnification is
against public policy as expressed in the Securities Act 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 and will be governed by the final
adjudication of such issue.
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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-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Ft. Lauderdale, State of Florida on this 6th day
of September, 1996.
ANDRX CORPORATION
By: /s/ ALAN P. COHEN
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Alan P. Cohen, Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Alan P. Cohen and Elliot F. Hahn, 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 Securities and Exchange Commission,
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.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURES TITLE DATE
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/s/ ALAN P. COHEN Chairman of the Board, September 6, 1996
- ------------------------------ Chief Executive Officer
Alan P. Cohen and Director (principal
executive officer)
/s/ ELLIOT F. HAHN, PH.D. President and Director September 6, 1996
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Elliot F. Hahn, Ph.D.
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<PAGE>
SIGNATURES TITLE DATE
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/s/ CHIH-MING J. CHEN, PH.D. Vice President and Director September 6, 1996
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Chih-Ming J. Chen, Ph.D.
/s/ ANGELO C. MALAHIAS Vice President and Chief September 6, 1996
- ------------------------------ Financial Officer (principal
Angelo C. Malahias financial and accounting
officer)
/s/ ELAINE BLOOM Director September 6, 1996
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Elaine Bloom
/s/ PAUL M. DONOFRIO Director September 6, 1996
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Paul M. Donofrio
/s/ IRWIN C. GERSON Director September 6, 1996
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Irwin C. Gerson
/s/ ELLIOT LEVINE Director September 6, 1996
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Elliot Levine
/s/ MICHAEL SCHWARTZ, PH.D. Director September 6, 1996
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Michael Schwartz, Ph.D.
/s/ MELVIN SHAROKY, M.D. Director September 6, 1996
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Melvin Sharoky, M.D.
II-5
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EXHIBIT INDEX
EXHIBIT DESCRIPTION
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4.1 Registrant's Amended and Restated Articles of Incorporation1
4.2 Registrant's Amended and Restated Bylaws2
4.3 Form of Stock Incentive Plan3
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 Arthur Andersen LLP
24.1 Power of Attorney (included in the signature page of this
Registration Statement)
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1 Incorporated by reference to Exhibit 3.1 filed with the Registrant's
Registration Statement on Form S-1 (File No. 333-03614)
2 Incorporated by reference to Exhibit 3.2 filed with the Registrant's
Registration Statement on Form S-1 (File No. 333-03614).
3 Incorporated by reference to Exhibit 10.1 filed with the Registrant's
Registration Statement on Form S-1 (File No. 333-03614).
EXHIBIT 5.1
BROAD AND CASSEL
Attorneys at Law
201 South Biscayne Boulevard
Miami Center, Suite 3000
Miami, Florida 33131
(305) 373-9400
September 6, 1996
Andrx Corporation
4001 Southwest 47th Avenue
Suite 201
Fort Lauderdale, Florida 33314
RE: ANDRX CORPORATION (THE "COMPANY")
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
You have requested our opinion with respect to the shares (the
"Shares") of the Company's common stock, $.01 par value (the "Common Stock"),
included in the Company's registration statement on Form S-8 (the "Registration
Statement"). The Registration Statement has been filed with the U.S. Securities
and Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"Securities Act").
As counsel to the Company, we have examined the original or certified
copies of such records of the Company, and such agreements, certificates of
public officials, certificates of officers or representatives of the Company and
others, and such other documents as we deem relevant and necessary for the
opinion expressed in this letter. In such examination, we have assumed the
genuineness of all signatures on original documents, and the conformity to
original documents of all copies submitted to us as conformed or photostatic
copies. As to various questions of fact material to such opinion, we have relied
upon statements or certificates of officials and representatives of the Company
and others.
Based on, and subject to the foregoing, we are of the opinion that the
Shares included in the Registration Statement, when issued and sold, will be
duly and validly issued, fully paid and non-assessable.
In rendering this opinion, we advise you that members of this Firm are
members of the Bar of the State of Florida, and we express no opinion herein
concerning the applicability or
<PAGE>
Andrx Corporation
September 6, 1996
Page 2
effect of any laws of any other jurisdiction, except the securities laws of the
United States of America referred to herein.
This opinion has been prepared and is to be construed in accordance
with the Report on Standards for Florida Opinions, dated April 8, 1991, issued
by the Business Law Section of The Florida Bar (the "Report"). The Report is
incorporated by reference into this opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to the use of our name in the
Registration Statement. In giving such consent, we do not thereby admit that we
are included within the category of persons whose consent is required under
Section 7 of the Securities Act, or the rules and regulations promulgated
thereunder.
Very truly yours,
/s/ BROAD AND CASSEL
Broad And Cassel
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EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Shareholders and Board of Directors of
Andrx Corporation
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of Andrx
Corporation (the "Company") of our report dated February 20, 1996 included in
the Company's Registration Statement on Form S-1, and to all references to our
Firm included in or made a part of this Registration Statement on Form S-8 of
the Company.
ARTHUR ANDERSEN LLP
Fort Lauderdale, Florida
September 6, 1996.
