EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ANDRX CORPORATION
Pursuant to the requirements of Section 245 of the Delaware Business
Corporation Act, the undersigned, Elliot F. Hahn, hereby certifies that he is
the duly and acting President of Andrx Corporation, a Delaware corporation, and
does hereby make, swear to, adopt and file these Amended and Restated Articles
of Incorporation of New Andrx Corporation.
1. The name under which the corporation was originally incorporated is
New Andrx Corporation, and the date of filing the original certificate of
incorporation of the corporation with the Secretary of State of the State of
Delaware is March 23, 2000.
2. The Certificate of Incorporation shall be amended and restated to
read in full as follows:
ARTICLE I.
NAME
The name of the corporation is Andrx Corporation (the "Corporation").
ARTICLE II.
MAILING ADDRESS
The current mailing address of the principal place of business of the
Corporation is 4001 Southwest 47th Avenue, Suite 201, Ft. Lauderdale, Florida
33314.
ARTICLE III.
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the "DGCL").
ARTICLE IV.
CAPITAL STOCK
SECTION 1. AUTHORIZATION. The aggregate number of shares of stock which the
Corporation shall have authority to issue is 125,000,000 shares, of which
100,000,000 shares shall be shares of a class of common stock designated as
"Andrx Corporation - Andrx Group Common Stock," having a par value of $0.001 per
share (the "Andrx Stock"), 25,000,000 shares shall be shares of a class of
common stock designated as "Andrx Corporation - Cybear Group Common Stock,"
having a par value of $0.001 per share (the "Cybear Stock"), and 1,000,000
shares shall be shares of a class of preferred stock having a par value of $.00l
per share (the "Preferred Stock") and issuable in one or more series as
hereinafter provided. The Andrx Stock and the Cybear Stock shall hereinafter
collectively be called "Common Stock" and either shall sometimes be called a
class of Common Stock. For purposes of this Article IV, references to the "Board
of Directors" shall refer to the Board of Directors of the Corporation, as
established in accordance with Article V of the Certificate of Incorporation of
the Corporation, and references to "the Certificate of Incorporation" shall
refer to this Amended and Restated Certificate of Incorporation as the same may
be amended from time to time. Certain capitalized terms used in this Article IV,
shall have the meanings set forth in Section 2.6 of this Article. For purposes
of this Article IV, the Andrx Stock, when issued, shall be considered issued in
respect of the Andrx Group and the Cybear Stock, when issued, shall be
considered issued in respect of the Cybear Group. The number of authorized
shares of any class or classes of capital stock of the Corporation may be
increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the voting
power of the stock of the Corporation entitled to vote generally in the election
of directors.
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SECTION 2. COMMON STOCK. The voting powers, preferences and relative,
participating, optional or other special rights of the Common Stock, and the
qualifications and restrictions thereon, shall be as follows in this Section 2.
SECTION 2.1 DIVIDENDS. Subject to any preferences and
relative, participating, optional or other special rights of any outstanding
class or series of preferred stock of the Corporation and any qualifications or
restrictions on either class of Common Stock created thereby, dividends may be
declared and paid upon either class of Common Stock, upon the terms with respect
to each such class, and subject to the limitations provided for below in this
Section 2.1, as the Board of Directors may determine.
(a) DIVIDENDS ON ANDRX STOCK. Dividends on Andrx Stock may be declared
and paid only out of the lesser of (i) the funds of the Corporation legally
available therefor and (ii) the Andrx Group Available Dividend Amount.
(b) DIVIDENDS ON CYBEAR STOCK. Dividends on Cybear Stock may be
declared and paid only out of the lesser of (i) the funds of the Corporation
legally available therefor and (ii) the Cybear Group Available Dividend Amount.
(c) DISCRIMINATION IN DIVIDENDS BETWEEN CLASSES OF COMMON STOCK. The
Board of Directors, subject to the provisions of Sections 2.1(a) and 2.1(b), may
at any time declare and pay dividends exclusively on Andrx Stock, exclusively on
Cybear Stock, or on both such classes, in equal or unequal amounts,
notwithstanding the relative amounts of the Available Dividend Amount with
respect to either Group, the amount of dividends previously declared on either
class, the respective voting or liquidation rights of either class or any other
factor.
(d) SHARE DISTRIBUTIONS. Except as permitted by Sections 2.4(a), the
Board of Directors may declare and pay dividends or distributions of shares of
Andrx Stock or Cybear Stock (or Convertible Securities convertible into or
exchangeable or exercisable for shares of Andrx Stock or Cybear Stock) on shares
of a class of Common Stock or shares of a class or series of preferred stock of
the Corporation only as follows:
(i) dividends or distributions of shares of Andrx Stock (or
Convertible Securities convertible into or exchangeable
or exercisable for shares of Andrx Stock) on shares of
Andrx Stock or shares of preferred stock attributed to
the Andrx Group;
(ii) dividends or distributions of shares of Cybear Stock (or
Convertible Securities convertible into or exchangeable
or exercisable for shares of Cybear Stock) on shares of
Cybear Stock or shares of preferred stock attributed to
the Cybear Group; and
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(iii) dividends or distributions of shares of Cybear Stock (or
Convertible Securities convertible into or exchangeable
or exercisable for shares of Cybear Stock) on shares of
Andrx Stock or shares of preferred stock attributed to
the Andrx Group, but only if the sum of (1) the number
of shares of Cybear Stock to be so issued (or the number
of such shares which would be issuable upon conversion,
exchange or exercise of any Convertible Securities to be
so issued) and (2) the number of shares of Cybear Stock
which are issuable upon conversion, exchange or exercise
of any Convertible Securities then outstanding that are
attributed to the Andrx Group is less than or equal to
the Number of Cybear Group Designated Shares.
SECTION 2.2 VOTING RIGHTS. (A) GENERAL. Except as otherwise provided by
law, by the terms of any outstanding class or series of preferred stock of the
Corporation or by any provision of the Certificate of Incorporation restricting
the power to vote on a specified matter to other stockholders, the entire voting
power of the stockholders of the Corporation shall be vested in the holders of
the Common Stock, who shall be entitled to vote on any matter on which the
holders of stock of the Corporation shall by law or by the provisions of the
Certificate of Incorporation or Bylaws of the Corporation (the "Bylaws"), be
entitled to vote, and both classes of Common Stock shall vote thereon together
as a single class.
(b) NUMBER OF VOTES FOR EACH CLASS OF COMMON STOCK. On each matter to
be voted on by the holders of both classes of Common Stock voting
together as a single class, the number of votes per share of each
class shall be as follows:
(i) each outstanding share of Andrx Stock shall have one vote;
and
(ii) each outstanding share of Cybear Stock shall have a number of
votes (including a fraction of one vote) equal to the
quotient (rounded to the nearest three decimal places) of the
average Market Value of one share of Cybear Stock during the
20-Trading-Day Period ending on the tenth Trading Day prior
to the record date for determining the stockholders entitled
to vote, divided by the average Market Value of a share of
Andrx Stock during such 20-Trading Day period; provided,
however, that in the event the foregoing calculation results
in the holders of Cybear Stock holding in excess of 30% of
the total voting power of all outstanding shares of Common
Stock, the vote of each share of Cybear Stock shall be
reduced such that all of the outstanding shares of Cybear
Stock in the aggregate represent 25% of the total voting
power of all outstanding shares of Common Stock.
Notwithstanding the foregoing, if shares of only one class of Common
Stock are outstanding on the record date for determining the holders of Common
Stock entitled to vote on any matter, then each share of that class shall be
entitled to one vote and, if either class of Common Stock is entitled to vote as
a separate class with respect to any matter, each share of that class shall, for
purpose of such vote, be entitled to one vote on such matter.
(c) CLASS VOTE OF CYBEAR STOCK. The holders of Cybear Stock, voting as
a separate class, shall be entitled to approve by the affirmative
vote of the holders of a majority of the outstanding shares any
amendment, alteration or repeal of any provision of the
Certificate of Incorporation which adversely affects the rights,
powers, or privileges of the Cybear Stock.
(d) CLASS VOTE OF ANDRX STOCK. The holders of Andrx Stock, voting as a
separate class, shall be entitled to approve by the affirmative
vote of the holders of a majority of the
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outstanding shares any amendment, alteration or repeal of any
provision of the Certificate of Incorporation which adversely
affects the rights, powers, or privileges of the Andrx Stock.
SECTION 2.3 LIQUIDATION RIGHTS. In the event of any voluntary or
involuntary dissolution, liquidation or winding up of the Corporation, after
payment or provision for payment of the debts and other liabilities of the
Corporation and the full preferential amounts (including any accumulated and
unpaid dividends) to which the holders of any outstanding shares of preferred
stock of the Corporation are entitled (regardless of the Group to which such
shares of preferred stock were attributed), the holders of the Andrx Stock and
Cybear Stock shall be entitled to receive the assets, if any, of the Corporation
remaining for distribution to holders of Common Stock on a per share basis
(regardless of the Group to which such assets are attributable) in proportion to
the respective liquidation units per share of such class. Each share of Andrx
Stock shall have one liquidation unit and each share of Cybear Stock shall have
a number of liquidation units (including a fraction of one liquidation unit)
equal to the quotient (rounded to the nearest five decimal places) of the
average Market Value of one share of Cybear Stock during the 20-Trading Day
period ending on the 40th Trading Day after the effective date of this
Certificate of Incorporation, divided by the average Market Value of one share
of Andrx Stock during such 20-Trading Day period. Neither the merger nor
consolidation of the Corporation into or with any other corporation, nor a sale,
transfer or lease of all or any part of the assets of the Corporation, shall,
alone, be deemed a liquidation or winding up of the Corporation or cause the
dissolution of the Corporation, for purposes of this Section 2.3.
If the Corporation shall in any manner subdivide (by stock split,
reclassification or otherwise) or combine (by reverse stock split,
reclassification or otherwise) the outstanding shares of Andrx Stock or Cybear
Stock, or declare a dividend in shares of either class to holders of such class,
the per share liquidation units of either class of Common Stock specified in the
preceding paragraph of this Section 2.3, as adjusted from time to time, shall be
appropriately adjusted as determined by the Board of Directors, so as to avoid
dilution in the aggregate, relative liquidation rights of the shares of any
class of Common Stock.
SECTION 2.4 CONVERSION OR REDEMPTION OF THE CYBEAR STOCK. Cybear Stock
is subject to conversion or redemption, in each case, upon the terms provided
below in this Section 2.4.
(a) MANDATORY AND OPTIONAL CONVERSION AND REDEMPTION OF CYBEAR STOCK
OTHER THAN FOR CYBEAR SUBSIDIARY Stock. (I) In the event of the
Disposition, in one transaction or a series of related
transactions, by the Corporation and/or its subsidiaries of all or
substantially all of the properties and assets attributed to the
Cybear Group to one or more persons or entities (other than the
Disposition (w) by the Corporation of all or substantially all of
its properties and assets in one transaction or a series of
related transactions in connection with the dissolution,
liquidation or winding up of the Corporation and the distribution
of assets to stockholders as referred to in Section 2.3, (x) of
the properties and assets attributed to the Cybear Group as
contemplated by Section 2.4(b) or otherwise to all holders of
shares of Cybear Stock divided among such holders on a pro rata
basis in accordance with the number of shares of Cybear Stock
outstanding, (y) to any person or entity controlled (as determined
by the Board of Directors) by the Corporation or (z) in connection
with a Related Business Transaction in respect of the Cybear
Group), the Corporation shall, on or prior to the 95th Trading Day
after the date of consummation of such Disposition (the
"Disposition Date"), pay a dividend on Cybear Stock or redeem some
or all of Cybear
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Stock or convert Cybear Stock into Andrx Stock (or another class
or series of common stock of the Corporation), all as provided by
the following Sections 2.4(a)(i)(1) and 2.4(a)(i)(2) and, to the
extent applicable, by Section 2.4(d), as the Board of Directors
shall have selected among such alternatives:
(1) provided that there are funds of the Corporation legally
available therefor:
(A) pay to the holders of the shares of Cybear Stock
a dividend pro rata in accordance with the number of shares of
Cybear Stock held by each such holder, as the Board of
Directors shall have declared subject to compliance with
Section 2.1, in cash and/or in securities (other than a
dividend of shares of a class of Common Stock) or other
property having a Fair Value as of the Disposition Date in the
aggregate equal to the Fair Value as of the Disposition Date
of the Net Proceeds of such Disposition; or
(B)(I) subject to the last sentence of this Section
2.4(a)(i), if such Disposition involves all (not merely
substantially all) of the properties and assets attributed to
the Cybear Group, redeem or exchange as of the Redemption Date
determined as provided by Section 2.4(d)(iii), all outstanding
shares of Cybear Stock in exchange for, on a pro rata basis,
cash and/or for securities (other than shares of a class of
Common Stock) or other property having a Fair Value as of the
Disposition Date in the aggregate equal to the Fair Value as
of the Disposition Date of the Net Proceeds of such
Disposition; or
(II) subject to the last sentence of this Section
2.4(a)(i), if such Disposition involves substantially all (but
not all) of the properties and assets attributed to the Cybear
Group, redeem or exchange as of the Redemption Date determined
as provided by Section 2.4(d)(iv) such number of whole shares
of Cybear Stock (which may be all, but not more than all, of
such shares outstanding) as have in the aggregate an average
Market Value during the period of ten consecutive Trading Days
beginning on the 26th Trading Day immediately succeeding the
Disposition Date closest to the Fair Value as of the
Disposition Date of the Net Proceeds of such Disposition in
consideration for, on a pro rata basis, cash and/or securities
(other than shares of a class of Common Stock) or other
property having a Fair Value as of the Disposition Date in the
aggregate equal to such product; or
(2) declare that each outstanding share of Cybear
Stock shall be converted as of the Conversion Date determined
as provided by Section 2.4(d)(vi) into a number of fully paid
and nonassessable shares of Andrx Stock (or, if Andrx Stock is
not Publicly Traded at such time and shares of another class
or series of common stock of the Corporation (other than
Cybear Stock) are then Publicly Traded, of such other class or
series of the common stock of the Corporation as has the
largest Market Capitalization as of the close of business on
the Trading Day immediately preceding the date of the notice
of such conversion required by Section 2.4(d)(vi)) equal to
110% of the ratio, expressed as a decimal fraction rounded to
the nearest five decimal places, of the average Market Value
of one share of Cybear Stock over the period of ten
consecutive Trading Days beginning on the 26th Trading Day
immediately succeeding the Disposition Date to the average
Market Value of one share of Andrx Stock (or such other class
or series of common stock) over the same ten Trading Day
period.
Notwithstanding the foregoing provisions of this Section 2.4(a)(i), the
Corporation shall redeem shares of a class of Common Stock as provided by
Section 2.4(a)(i)(1)(B)(I) or (II) only if the amount to be paid in redemption
of such stock is less than or equal to the Cybear Group Available Dividend
Amount as of the Redemption Date.
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(ii) For purposes of this Section 2.4(a): (1) as of any date,
"substantially all of the properties and assets"
attributed to the Cybear Group shall mean a portion of
such properties and assets (A) that represents at least
80% of the Fair Value of the properties and assets
attributed to the Cybear Group as of such date or (B)
from which were derived at least 80% of the aggregate
revenues for the immediately preceding twelve fiscal
quarterly periods of the Corporation (calculated on a
pro forma basis to include revenues derived from any of
such properties and assets acquired during such period)
derived from the properties and assets attributed to the
Cybear Group as of such date; (2) in the case of a
Disposition of the properties and assets attributed to
the Cybear Group in a series of related transactions,
such Disposition shall not be deemed to have been
consummated until the consummation of the last of such
transactions; and (3) the Board of Directors may pay any
dividend or redemption price referred to in Section
2.4(a)(i) in cash, securities (other than shares of a
class of Common Stock) or other property, regardless of
the form or nature of the proceeds of the Disposition.
(iii) The Board of Directors may, at any time or from time to
time after either the first anniversary of the Effective
Date or the occurrence of a Tax Event (defined below),
in its sole discretion declare that each outstanding
share of Cybear Stock shall be converted, as of the
Conversion Date provided by Section 2.4(d)(v), into a
number of fully paid and nonassessable shares of Andrx
Stock (or, if Andrx Stock is not Publicly Traded at such
time and shares of any other class or series of common
stock of the Corporation (other than Cybear Stock) are
then Publicly Traded, of such other class or series of
common stock of the Corporation that has the largest
Market Capitalization as of the close of business on the
fifth Trading Day immediately preceding the date of the
notice of conversion required by Section 2.4(d)(v))
equal the applicable percentage, on the Conversion Date
set forth below of the Market Value Ratio of Cybear
Stock to Andrx Stock as of the fifth Trading Day prior
to the date of the notice of such conversion required by
Section 2.4(d)(v):
Any Conversion Date
Occurring After the Following Anniversary Percentage of Market
Of the Effective Date and on or Prior Value Ratio of Cybear Stock
to the Next Such Anniversary to the Andrx Stock
----------------------------------------- ----------------------------
First 125%
Second 120%
Third 115%
Fourth and Thereafter 110%
However, if a Tax Event has occurred, such number of fully paid and
nonassessable shares shall equal 100% of such ratio.
(b) REDEMPTION OF CYBEAR STOCK FOR CYBEAR SUBSIDIARY STOCK AND
REDEMPTION OF ANDRX STOCK FOR ANDRX SUBSIDIARY STOCK. (I)
At any time at which all of the assets and liabilities
attributed to the Cybear Group (and no other assets or
liabilities of the Corporation or any subsidiary thereof)
are held directly or indirectly by one or more wholly-owned
subsidiaries of the Corporation (each, a "Cybear
Subsidiary"), the Board of Directors may, provided that
there are funds of the Corporation legally available
therefor, redeem all of the outstanding shares of Cybear
Stock, on a
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Redemption Date of which notice is delivered in accordance
with Section 2.4(d)(vi), in exchange for all of the shares
of common stock of each Cybear Subsidiary as will be
outstanding immediately following such exchange of shares,
such shares of common stock of each Cybear Subsidiary to be
delivered to the holders of shares of Cybear Stock on the
Redemption Date either directly or indirectly through the
delivery of shares of another Cybear Subsidiary that owns
directly or indirectly all such shares, and to be divided
among the holders of Cybear Stock pro rata in accordance
with the number of shares of Cybear Stock held by each such
holder on such Redemption Date, each of which shares of
common stock of such Cybear Subsidiary shall be, upon such
delivery, fully paid and nonassessable.
(ii) At any time at which all of the assets and liabilities
attributed to the Andrx Group (and no other assets or
liabilities of the Corporation or any subsidiary
thereof) are held directly or indirectly by one or
more wholly-owned subsidiaries of the Corporation
(each, a "Andrx Subsidiary"), the Board of Directors
may, provided that there are funds of the Corporation
legally available therefor, redeem all of the
outstanding shares of Andrx Stock, on a Redemption
Date of which notice is delivered in accordance with
Section 2.4(d)(vi), in exchange for all of the shares
of common stock of each Andrx Subsidiary as will be
outstanding immediately following such exchange of
shares, such shares of common stock of each Andrx
Subsidiary to be delivered to the holders of shares of
Andrx Stock on the Redemption Date either directly or
indirectly through the delivery of shares of another
Andrx Subsidiary that owns directly or indirectly all
such shares, and to be divided among the holders of
Andrx Stock pro rata in accordance with the number of
shares of common stock of such Andrx Subsidiary shall
be, upon such delivery, fully paid and nonassessable.
(c) TREATMENT OF CONVERTIBLE SECURITIES. After any Conversion
Date or Redemption Date on which all outstanding shares of
Cybear Stock are converted or redeemed, any share of such
class of Common Stock that is to be issued on conversion,
exchange or exercise of any Convertible Securities shall,
immediately upon such conversion, exchange or exercise and
without any notice from or to, or any other action on the
part of, the Corporation or its Board of Directors or the
holder of such Convertible Security:
(i) in the event the shares of Cybear Stock outstanding on
such Conversion Date were converted into shares of
Andrx Stock (or another class or series of common
stock of the Corporation) pursuant to Section
2.4(a)(i)(2) or 2.4(a)(iii), be converted into the
amount of cash and/or the number of shares of the kind
of capital stock and/or other securities or property
of the Corporation that number of shares of Andrx
Stock that were to be issued upon such conversion,
exchange or exercise would have received had such
shares been outstanding on such Conversion Date; or
(ii) in the event the shares of Cybear Stock outstanding on
such Redemption Date were redeemed pursuant to Section
2.4(a)(i)(1)(B)(I) or 2.4(b) to the extent of funds of
the Corporation legally available therefor, for $.0l
per share in cash for each share of Cybear Stock that
otherwise would be issued upon such conversion,
exchange or exercise.
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The provisions of the preceding sentence of this Section 2.4(c) shall not apply
to the extent that other adjustments in respect of such conversion, exchange or
redemption of Cybear Stock are otherwise made pursuant to the provisions of such
Convertible Securities.
(d) NOTICE AND OTHER PROVISIONS.
(i) Not later than the 20th Trading Day following the
consummation of a Disposition referred to in Section
2.4(a)(i), the Corporation shall announce publicly by
press release (1) the estimated Net Proceeds of such
Disposition, (2) the number of shares outstanding of
Cybear Stock and (3) the number of shares of Cybear
Stock into or for which Convertible Securities are then
convertible, exchangeable or exercisable and the
conversion, exchange or exercise price thereof. Not
earlier than the 36th Trading Day and not later than the
40th Trading Day following the consummation of such
Disposition, the Corporation shall announce publicly by
press release which of the actions specified in Section
2.4(a)(i), as the case may be, it has irrevocably
determined to take in respect of such Disposition.
(ii) If the Corporation determines to pay a dividend pursuant
to Section 2.4(a)(i)(1)(A), the Corporation shall, not
later than the 40th Trading Day following the
consummation of the Disposition referred to in such
Section, cause notice to be given to the holders of
shares of Cybear Stock and to each holder of Convertible
Securities that are convertible into or exchangeable or
exercisable for shares of Cybear Stock (unless alternate
provision for such notice to the holders of such
Convertible Securities is made pursuant to the terms of
such Convertible Securities), setting forth (1) the
record date for determining holders entitled to receive
such dividend, which shall be not earlier than the tenth
Trading Day and not later than the 20th Trading Day
following the date of such notice, (2) the anticipated
payment date of such dividend (which shall not be more
than 95 Trading Days following the consummation of such
Disposition), (3) the type of property to be paid as
such dividend in respect of the outstanding shares of
Cybear Stock, (4) the Net Proceeds of such Disposition,
(5) the number of outstanding shares of Cybear Stock and
the number of shares of such class of Common Stock into
or for which outstanding Convertible Securities are then
convertible, exchangeable or exercisable and the
conversion, exchange or exercise price thereof and (6)
in the case of notice to be given to holders of
Convertible Securities, a statement to the effect that a
holder of such Convertible Securities shall be entitled
to receive such dividend only if such holder properly
converts, exchanges or exercises such Convertible
Securities on or prior to the record date referred to in
clause (1) of this sentence. Such notice shall be sent
by first-class mail, postage prepaid, to each such
holder at such holder's address as the same appears on
the transfer books of the Corporation on the record date
fixed for such notice.
(iii) If the Corporation determines to undertake a redemption
pursuant to Section 2.4(a)(i)(1)(B)(I), the Corporation
shall, not earlier than the 45th Trading Day and not
later than the 35th Trading Day prior to the Redemption
Date, cause notice to be given to the holders of shares
of Cybear Stock and to each holder of Convertible
Securities convertible into or exchangeable or
exercisable for shares of Cybear Stock (unless alternate
provision for such notice to the holders of such
Convertible Securities is made pursuant to the terms of
such Convertible Securities), setting forth (1) a
statement that all shares of Cybear Stock outstanding on
the Redemption Date shall be redeemed, (2) the
Redemption Date (which shall
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not be more than 95 Trading Days following the
consummation of such Disposition), (3) the type of
property in which the redemption price for the shares of
Cybear Stock to be redeemed is to be paid, (4) the Net
Proceeds of such Disposition, (5) the place or places
where certificates for shares of Cybear Stock, properly
endorsed or assigned for transfer (unless the
Corporation waives such requirement), are to be
surrendered for delivery of cash and/or securities or
other property, (6) the number of outstanding shares of
Cybear Stock and the number of shares of Cybear Stock
into or for which outstanding Convertible Securities are
then convertible, exchangeable or exercisable and the
conversion, exchange or exercise price thereof, (7) in
the case of notice to be given to holders of Convertible
Securities, a statement to the effect that a holder of
such Convertible Securities shall be entitled to
participate in such redemption only if such holder
properly converts, exchanges or exercises such
Convertible Securities on or prior to the Redemption
Date referred to in clause (2) of this sentence and a
statement as to what, if anything, such holder will be
entitled to receive pursuant to the terms of such
Convertible Securities or, if applicable, this Section
2.4 if such holder thereafter converts, exchanges or
exercises such Convertible Securities and (8) a
statement to the effect that, except as otherwise
provided by Section 2.4(d)(x), dividends on shares of
Cybear Stock shall cease to be paid as of such
Redemption Date. Such notice shall be sent by
first-class mail, postage prepaid, to each such holder
at such holder's address as the same appears on the
transfer books of the Corporation on the record date
fixed for such notice.
(iv) If the Corporation determines to undertake a redemption
pursuant to Section 2.4(a)(i)(1)(B)(II), the Corporation
shall, not later than the 40th Trading Day following the
consummation of the Disposition referred to in such
Section, cause notice to be given to the holders of
shares of Cybear Stock and to each holder of Convertible
Securities that are convertible into or exchangeable or
exercisable for shares of Cybear Stock (unless alternate
provision for such notice to the holders of such
Convertible Securities is made pursuant to the terms of
such Convertible Securities) setting forth (1) a date
not earlier than the tenth Trading Day and not later
than the 20th Trading Day following the date of such
notice on which shares of Cybear Stock shall be selected
for redemption, (2) the anticipated Redemption Date
(which shall not be more than 95 Trading Days following
the consummation of such Disposition), (3) the type of
property in which the redemption price for the shares to
be redeemed is to be paid, (4) the Net Proceeds of such
Disposition, (5) the number of shares of Cybear Stock
outstanding and the number of shares of Cybear Stock
into or for which outstanding Convertible Securities are
then convertible, exchangeable or exercisable and the
conversion, exchange or exercise price thereof, (6) in
the case of notice to be given to holders of Convertible
Securities, a statement to the effect that a holder of
such Convertible Securities shall be eligible to
participate in such selection for redemption only if
such holder properly converts, exchanges or exercises
such Convertible Securities on or prior to the record
date referred to in clause (1) of this sentence, and a
statement as to what, if anything, such holder will be
entitled to receive pursuant to the terms of such
Convertible Securities or, if applicable, this Section
2.4 if such holder thereafter converts, exchanges or
exercises such Convertible Securities and (7) a
statement that the Corporation will not be required to
register a transfer of any shares of Cybear Stock for a
period of 15 Trading Days next preceding the date
referred to in clause (1) of this sentence. Promptly
following the date referred to
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in clause (1) of the preceding sentence, the Corporation
shall cause a notice to be given to each holder of
record of shares of Cybear Stock to be redeemed setting
forth (1) the number of shares of Cybear Stock held by
such holder to be redeemed, (2) a statement that such
shares of Cybear Stock shall be redeemed, (3) the
Redemption Date, (4) the kind and per share amount of
cash and/or securities or other property to be received
by such holder with respect to each share of Cybear
Stock to be redeemed, including details as to the
calculation thereof, (5) the place or places where
certificates for shares of Cybear Stock, properly
endorsed or assigned for transfer (unless the
Corporation shall waive such requirement), are to be
surrendered for delivery of such cash and/or securities
or other property, (6) if applicable, a statement to the
effect that the shares being redeemed may no longer be
transferred on the transfer books of the Corporation
after the Redemption Date and (7) a statement to the
effect that, subject to Section 2.4(d)(x), dividends on
Cybear Stock shall cease to be paid as of the Redemption
Date. Such notices shall be sent by first-class mail,
postage prepaid, to each such holder at such holder's
address as the same appears on the transfer books of the
Corporation on the record date fixed for such notice.
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(v) If the Corporation determines to convert Cybear Stock
into Andrx Stock (or another class or series of common
stock of the Corporation) pursuant to Section
2.4(a)(i)(2) or 2.4(a)(iii), the Corporation shall not
earlier than the 45th Trading Day and not later than the
35th Trading Day prior to the Conversion Date cause
notice to be given to the holders of shares of Cybear
Stock and to each holder of Convertible Securities that
are convertible into or exchangeable or exercisable for
shares of Cybear Stock (unless alternate provision for
such notice to the holders of such Convertible
Securities is made pursuant to the terms of such
Convertible Securities) setting forth (1) a statement
that all outstanding shares of Cybear Stock shall be
converted, (2) the Conversion Date (which, in the case
of a conversion after a Disposition, shall not be more
than 95 Trading Days following the consummation of such
Disposition), (3) the per share number of shares of
Andrx Stock (or another class or series of common stock
of the Corporation) to be received with respect to each
share of Cybear Stock, including details as to the
calculation thereof, (4) the place or places where
certificates for shares of Cybear Stock, properly
endorsed or assigned for transfer (unless the
Corporation shall waive such requirement), are to be
surrendered for delivery of certificates for shares of
Cybear Stock, (5) the number of outstanding shares of
Cybear Stock and the number of shares of Cybear Stock
into or for which outstanding Convertible Securities are
then convertible, exchangeable or exercisable and the
conversion, exchange or exercise price thereof, (6) a
statement to the effect that, subject to Section
2.4(d)(x), dividends on shares of Cybear Stock shall
cease to be paid as of such Conversion Date and (7) in
the case of notice to holders of such Convertible
Securities, a statement to the effect that a holder of
such Convertible Securities shall be entitled to receive
shares of Cybear Stock upon such conversion if such
holder properly converts, exchanges or exercises such
Convertible Securities on or prior to such Conversion
Date and a statement as to what, if anything, such
holder will be entitled to receive pursuant to the terms
of such Convertible Securities or, if applicable, this
Section 2.4 if such holder thereafter converts,
exchanges or exercises such Convertible Securities. Such
notice shall be sent by first-class mail, postage
prepaid, to each such holder at such holder's address as
the same appears on the transfer books of the
Corporation on the record date fixed for such notice.
(vi) If the Corporation determines to redeem shares of Cybear
Stock pursuant to Section 2.4(b)(i) or Andrx Stock
pursuant to Section 2.4(b)(ii), the Corporation shall
cause notice to be given to each holder of shares of
such class of Common Stock to be redeemed and to the
holders of Convertible Securities that are convertible
into or exchangeable or exercisable for shares of such
class of Common Stock (unless alternate provision for
such notice to the holders of such Convertible
Securities is made pursuant to the terms of such
Convertible Securities), setting forth (1) a statement
that all shares of Common Stock outstanding on the
Redemption Date shall be redeemed in exchange for shares
of common stock of each Cybear Subsidiary or Andrx
Subsidiary, as applicable, (2) the Redemption Date, (3)
the place or places where certificates for shares of the
class of Common Stock to be redeemed, properly endorsed
or assigned for transfer (unless the Corporation shall
waive such requirement), are to be surrendered for
delivery of certificates for shares of common stock of
each Cybear Subsidiary or Andrx Subsidiary, as
applicable, (4) a statement to the effect that, subject
to Section 2.4(d)(x), dividends on shares of such class
of Common Stock being redeemed shall cease to be paid as
of such Redemption Date, (5) the number of
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shares of such class of Common Stock outstanding and the
number of shares of such class of Common Stock into or
for which outstanding Convertible Securities are then
convertible, exchangeable or exercisable and the
conversion, exchange or exercise price thereof and (6)
in the case of notice to holders of Convertible
Securities, a statement to the effect that a holder of
Convertible Securities shall be entitled to receive
shares of common stock of each Cybear Subsidiary, or
Andrx Subsidiary, as applicable upon redemption only if
such holder properly converts, exchanges or exercises
such Convertible Securities on or prior to the
Redemption Date and a statement as to what, if anything,
such holder will be entitled to receive pursuant to the
terms of such Convertible Securities or, if applicable,
this Section 2.4(d), if such holder thereafter converts,
exchanges or exercises such Convertible Securities. Such
notice shall be sent by first-class mail, postage
prepaid, not less than 35 Trading Days nor more than 45
Trading Days prior to the Redemption Date to each such
holder at such holder's address as the same appears on
the transfer books of the Corporation on the record date
fixed for such notice.
(vii) If less than all of the outstanding shares of Cybear
Stock are to be redeemed pursuant to Section
2.4(a)(i)(1), the shares to be redeemed by the
Corporation shall be selected from among the holders of
shares of Cybear Stock outstanding at the close of
business on the record date for such redemption on a pro
rata basis among all such holders or by lot or by such
other method as may be determined by the Board of
Directors to be equitable.
(viii) The Corporation shall not be required to issue or
deliver fractional shares of any capital stock or of
any other securities to any holder of Cybear Stock upon
any conversion, redemption, dividend or other
distribution pursuant to this Section 2.4. If more than
one share of Cybear Stock shall be held at the same
time by the same holder, the Corporation may aggregate
the number of shares of any capital stock that shall be
issuable or any other securities or property that shall
be distributable to such holder upon any conversion,
redemption, dividend or other distribution (including
any fractional shares). If fractional shares of any
capital stock or of any other securities would be
required to be issued or distributed to the holders of
Cybear Stock, the Corporation shall, if such fractional
shares are not issued or distributed. to the holder,
pay cash in respect of such fractional shares in an
amount equal to the Fair Value thereof (without
interest).
(ix) No adjustments in respect of dividends shall be made
upon the conversion or redemption of any shares of
Cybear Stock; provided, however, that if the Conversion
Date or Redemption Date, as the case may be, with
respect to any shares of Cybear Stock shall be
subsequent to the record date for the payment of a
dividend or other distribution thereon or with respect
thereto, the holders of Cybear Stock at the close of
business on such record date shall be entitled to
receive the dividend or other distribution payable on or
with respect to such shares on the date set for payment
of such dividend or other distribution, in each case
without interest, notwithstanding the subsequent
conversion or redemption of such shares.
(x) Before any holder of shares of Cybear Stock shall be
entitled to receive any cash payment and/or certificates
or instruments representing shares of any capital stock
and/or other securities or property to be distributed to
such holder with respect to
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<PAGE>
Cybear Stock pursuant to this Section 2.4, such holder
shall surrender at such place as the Corporation shall
specify certificates for such shares of Cybear Stock,
properly endorsed or assigned for transfer (unless the
Corporation shall waive such requirement). The
Corporation shall as soon as practicable after receipt
of certificates representing such shares of Cybear Stock
deliver to the person for whose account such shares of
Cybear Stock were so surrendered, or to such person's
nominee or nominees, the cash and/ or the certificates
or instruments representing the number of whole shares
of the kind of capital stock and/or other securities or
property to which such person shall be entitled as
aforesaid, together with any payment in respect of
fractional shares contemplated by Section 2.4(d)(ix), in
each case without interest. If less than all of the
shares of Cybear Stock represented by any one
certificate are to be redeemed, the Corporation shall
issue and deliver a new certificate for the shares of
Cybear Stock not redeemed.
(xi) From and after any applicable Conversion Date or
Redemption Date, as the case may be, all rights of a
holder of shares of Cybear Stock that were converted or
redeemed shall cease except for the right, upon
surrender of the certificates representing such shares
of Cybear Stock as required by Section 2.4(d)(xi), to
receive the cash and/or the certificates or instruments
representing shares of the kind and amount of capital
stock and/or other securities or property for which such
shares were converted or redeemed, together with any
payment in respect of fractional shares contemplated by
Section 2.4(d)(viii) (which shall be held by the
Corporation for the holder of such shares of Cybear
Stock that were redeemed until the receipt of
certificates representing such shares of Cybear Stock as
provided in Section 2.4(d)(xi)) and rights to dividends
as provided in Section 2.4(d)(x), in each case without
interest. No holder of a certificate that immediately
prior to the applicable Conversion Date or Redemption
Date represented shares of a class of Cybear Stock shall
be entitled to receive any dividend or other
distribution or interest payment with respect to shares
of any kind of capital stock or other security or
instrument for which Cybear Stock was converted or
redeemed until the surrender as required by this Section
2.4 of such certificate in exchange for a certificate or
certificates or instrument or instruments representing
such capital stock or other security. Subject to
applicable escheat and similar laws, upon such
surrender, there shall be paid to the holder the amount
of any dividends or other distributions (without
interest) which theretofore became payable on any class
or series of capital stock of the Corporation as of a
record date after the Conversion Date or Redemption
Date, but that were not paid by reason of the foregoing,
with respect to the number of whole shares of the kind
of capital stock represented by the certificate or
certificates issued upon such surrender. From and after
a Conversion Date or Redemption Date, the Corporation
shall, however, be entitled to treat the certificates
for Cybear Stock that have not yet been surrendered for
conversion or redemption as evidencing the ownership of
the number of whole shares of the kind or kinds of
capital stock of the Corporation for which the shares of
Cybear Stock represented by such certificates shall have
been converted or redeemed, notwithstanding the failure
to surrender such certificates.
(xii) The Corporation shall pay any and all documentary, stamp
or similar issue or transfer taxes that may be payable
in respect of the issuance or delivery of any shares of
capital stock and/or other securities upon conversion or
redemption of shares of Cybear Stock pursuant to this
Section 2.4. The Corporation shall not,
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<PAGE>
however, be required to pay any tax that may be payable
in respect of any transfer involved in the issuance or
delivery of any shares of capital stock and/or other
securities in a name other than that in which the shares
of Cybear Stock so converted or redeemed were
registered, and no such issuance or delivery shall be
made unless and until the person requesting such
issuance or delivery has paid to the Corporation the
amount of any such tax or has established to the
satisfaction of the Corporation that such tax has been
paid.
(xiii) Neither the failure to mail any notice required by this
Section 2.4 to any particular holder of Cybear Stock or
of Convertible Securities nor any defect therein shall
affect the sufficiency thereof with respect to any
other holder of outstanding shares of Cybear Stock or
of Convertible Securities or the validity of any such
conversion or redemption.
(xiv) The Board of Directors may establish such rules and
requirements to facilitate the effectuation of the
transactions contemplated by this Section 2.4 as the
Board of Directors shall determine to be appropriate.
SECTION 2.5 APPLICATION OF THE PROVISIONS OF ARTICLE IV.
(a) CERTAIN DETERMINATIONS BY THE BOARD OF DIRECTORS. The Board of
Directors shall make such determinations with respect to the
businesses, assets, properties and liabilities to be attributed
to the Groups, the application of the provisions of the
Certificate of Incorporation to transactions to be engaged in by
the Corporation and the voting powers, preferences and relative,
participating, optional and other special rights of the holders
of Cybear Stock, and the qualifications and restrictions thereon,
provided by the Certificate of Incorporation as may be or become
necessary or appropriate to the exercise of such powers,
preferences and relative, participating, optional and other
special rights, including, without limiting the foregoing, the
determinations referred to in this Section 2.5. A record of any
such determination shall be filed with the records of the actions
of the Board of Directors.
(i) Upon any acquisition by the Corporation or its subsidiaries
of any assets or business, or any assumption of
liabilities, outside of the ordinary course of business of
the Andrx Group or the Cybear Group, as the case may be,
the Board of Directors shall determine whether such assets,
business and liabilities (or an interest therein) shall be
for the benefit of the Andrx Group or the Cybear Group or
that an interest therein shall be partly for the benefit of
the Andrx Group and partly for the benefit of the Cybear
Group and, accordingly, shall be attributed to the Andrx
Group or the Cybear Group, or partly to each, in accordance
with Section 2.6(c) or 2.6(f), as the case may be.
(ii) Upon any issuance of any shares of Cybear Stock at a time
when the Number of Cybear Group Designated Shares is
greater than zero, the Board of Directors shall determine,
based on the use of the proceeds of such issuance and any
other relevant factors, whether all or any part of the
shares of Cybear Stock so issued shall reduce the Number of
Cybear Group Designated Shares and the Number of Cybear
Group Designated Shares shall be adjusted accordingly.
(iii) Upon any issuance by the Corporation or any subsidiary
thereof of any Convertible Securities that are convertible
into or exchangeable or exercisable for
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<PAGE>
shares of Cybear Stock, if at the time such Convertible
Securities are issued the Number of Cybear Group Designated
Shares is greater than zero, the Board of Directors shall
determine, based on the use of the proceeds of such
issuance and any other relevant factors, whether, upon
conversion, exchange or exercise thereof, the issuance of
shares of Cybear Stock pursuant thereto shall, in whole or
in part, reduce the Number of Cybear Group Designated
Shares and the Number of Cybear Group Designated Shares
shall be adjusted accordingly.
(iv) Upon any issuance of any shares of any class or series of
preferred stock of the Corporation, the Board of Directors
shall attribute, based on the use of proceeds of such
issuance of shares of preferred stock in the business of
the Andrx Group or the Cybear Group and any other relevant
factors, the shares so issued entirely to the Andrx Group
or entirely to the Cybear Group or partly to the Andrx
Group also partly to the Cybear Group in such proportion as
the Board of Directors shall determine.
(v) Upon any redemption or repurchase by the Corporation or any
subsidiary thereof of shares of preferred stock of any
class or series or of other securities or debt obligations
of the Corporation, the Board of Directors shall determine,
based on the property used to redeem or purchase such
shares, other securities or debt obligations, which, if
any, of such shares, other securities or debt obligations
redeemed or repurchased shall be attributed to the Andrx
Group and which, if any, of such shares, other securities
or debt obligations shall be attributed to the Cybear Group
and, accordingly, how many of the shares of such class or
series of preferred stock or of such other securities, or
how much of such debt obligations, that remain outstanding,
if any, are thereafter attributed to the Andrx Group or the
Cybear Group.
(b) SOURCES OF DIVIDENDS AND DISTRIBUTIONS; USE OF PROCEEDS OF SHARE
ISSUANCES. Notwithstanding the attribution of properties or
assets of the Corporation to the Andrx Group or Cybear Group as
provided by Section 2.6(c) or Section 2.6(f), but subject to the
limitations of Section 2.1(a), 2.1(b), and 2.1(d), the Board of
Directors (i) may cause dividends or distributions or other
payments to the holders of any class of Common Stock or any class
or series of Preferred Stock to be made out of the properties or
assets attributed to any Group, subject, however, to any contrary
term or any series of Preferred Stock fixed in accordance with
Section 3, and (ii) may cause the proceeds of issuance of any
shares of Andrx Stock or Cybear Stock or any class or series of
Preferred Stock, to whichever Group attributable in accordance
with Section 2.5(a)(iv), to be used in the business of, and to be
attributed either to the Andrx Group in accordance with Section
2.6(c) or to the Cybear Group in accordance with Section 2.6(f).
(c) CERTAIN DETERMINATIONS NOT REQUIRED. Notwithstanding the
foregoing provisions of this Section 2.5, the provisions of
Section 2.6(c) or 2.6(f) or any other provision of the
Certificate of Incorporation, at any time when there are not
outstanding both (i) one or more shares of Andrx Stock or
Convertible Securities convertible into or exchangeable or
exercisable for Andrx Stock and (ii) one or more shares of Cybear
Stock or Convertible Securities convertible into or exchangeable
or exercisable for Cybear Stock, the Corporation need not (A)
attribute any of the assets or liabilities of the Corporation or
any of its subsidiaries to the Andrx Group or the Cybear Group or
(B)
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<PAGE>
make any determination required in connection therewith, nor
shall the Board of Directors be required to make any of the
determinations otherwise required by this Article, and in such
circumstances the holders of the shares of Andrx Stock and Cybear
Stock outstanding, as the case may be, shall (unless otherwise
specifically provided by the Certificate of Incorporation) be
entitled to all the voting powers, preferences and relative,
participating, optional and other special rights of both classes
of Common Stock without differentiation between the Andrx Stock
and the Cybear Stock.
(d) BOARD DETERMINATIONS BINDING. Subject to applicable law, any
determinations made in good faith by the Board of Directors of
the Corporation under any provision of this Section 2.5 or
otherwise in furtherance of the application of this Section 2
shall be final and binding on all stockholders.
SECTION 2.6 CERTAIN DEFINITIONS. As used in the Certificate of
Incorporation, the following terms shall have the following meanings (with terms
defined in the singular having comparable meaning when used in the plural and
vice versa), unless the context otherwise requires. As used in this Section 2.6,
a "contribution" or "transfer" of assets or properties from one Group to another
shall refer to the reattribution of such assets or properties from the
contributing or transferring Group to the other Group and correlative phrases
shall have correlative meanings.
(a) ANDRX CORPORATION EARNINGS (LOSS) ATTRIBUTABLE TO THE ANDRX GROUP
shall mean, for any period through any date, (i) the net income
or loss of the Andrx Group for such period determined in
accordance with generally accepted accounting principles in
effect at such time, reflecting income and expense of the
Corporation attributed to the Andrx Group on a basis
substantially consistent with attributions of income and expense
made in the calculation of Andrx Corporation Earnings (Loss)
Attributable to the Cybear Group, including, without limitation,
corporate administrative costs, net interest and other financial
costs and income taxes, increased by (ii) the amount reducing
Andrx Corporation Earnings (Loss) Attributable to the Cybear
Group for such period pursuant to clause (ii) of Section 2.6(b).
(b) ANDRX CORPORATION EARNINGS (LOSS) ATTRIBUTABLE TO THE CYBEAR
GROUP shall mean, for any period through any date, (i) the net
income or loss of the Cybear Group for such period determined in
accordance with generally accepted accounting principles in
effect at such time, reflecting income and expense of the
Corporation attributed to the Cybear Group on a basis
substantially consistent with attributions of income and expense
made in the calculation of Andrx Group Earnings (Loss)
Attributable to the Andrx Corporation, including, without
limitation, corporate administrative costs, net interest and
other financial costs and income taxes, reduced by (ii) the
aggregate amount of consolidated allowable tax benefits for
federal income tax purposes generated by the Cybear Group for
such period which cannot be utilized by the Cybear Group but can
be utilized by the Corporation on a consolidated basis for such
period to the extent such amount was included in the calculation
of net income or loss under clause (i) for such period
("Excludable Cybear Group Tax Benefits").
(c) ANDRX GROUP shall mean, as of any date:
(i) the interest of the Corporation or any of its subsidiaries
on such date in all of the businesses, assets, properties
and liabilities of the Corporation or any of its
16
<PAGE>
subsidiaries (and any successor companies), other than any
businesses, assets, properties and liabilities attributed
in accordance with this Article to the Cybear Group;
(ii) all businesses, assets, properties and liabilities
transferred to the Andrx Group from the Cybear Group (other
than in a transaction pursuant to Section 2.6(c)(iii))
pursuant to transactions in the ordinary course of business
of the Andrx Group and the Cybear Group or otherwise as the
Board of Directors may have directed as permitted by the
Certificate of Incorporation;
(iii) all properties and assets transferred to the Andrx Group
from the Cybear Group in connection with a reduction of the
Number of Cybear Group Designated Shares; and
(iv) the interest of the Corporation or any of its subsidiaries
in any business or asset acquire d and any liabilities
assumed by the Corporation or any of its subsidiaries
outside of the ordinary course of business and attributed
to the Andrx Group, as determined by the Board of Directors
as contemplated by Section 2.5(a)(i);
provided that from and after any transfer of any assets or properties
from the Andrx Group to the Cybear Group, the Andrx Group shall no longer
include such assets or properties so transferred.
(d) ANDRX GROUP AVAILABLE DIVIDEND AMOUNT shall mean, on any date,
either:
(i) the amount equal to the fair market value of the total
assets attributed to the Andrx Group less the total
liabilities attributed to the Andrx Group (provided that
preferred stock shall not be treated as a liability), in
each case, as of such date and determined on a basis
consistent with that applied in determining Andrx Group
Earnings (Loss) Attributable to the Andrx Group, minus (ii)
the aggregate par value of, or any greater amount
determined in accordance with applicable law to be capital
in respect of, all outstanding shares of Andrx Stock and
each class or series of preferred stock attributed in
accordance with the Certificate of Incorporation to the
Andrx Group, or
(ii) in case the total amount calculated pursuant to clause (i)
above is not a positive number, an amount equal to Andrx
Group Earnings (Loss) Attributable to the Andrx Group (if
positive) for the fiscal year in which the dividend is
declared and/or the preceding fiscal year.
Notwithstanding the foregoing provisions of this Section 2.6(d), and consistent
with Section 2.5(c), at any time when there are not outstanding both (i) one or
more shares of Andrx Stock or Convertible Securities convertible into or
exchangeable or exercisable for Andrx Stock and (ii) one or more shares of
Cybear Stock or Convertible Securities convertible into or exchangeable or
exercisable for Cybear Stock, the "Available Dividend Amount," on any
calculation date during such time period, with respect to the Andrx Stock or the
Cybear Stock, as the case may be (depending on which of such classes of Common
Stock or Convertible Securities convertible into or exchangeable or exercisable
for Cybear Stock is outstanding), shall mean the amount available for the
payment of dividends on such Common Stock in accordance with law.
(e) AVAILABLE DIVIDEND AMOUNT shall mean, as the context requires, a
reference to the Andrx Group Available Dividend Amount or the
Cybear Group Available Dividend Amount.
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<PAGE>
(f) CYBEAR GROUP shall mean, as of any date:
(i) the interest of the Corporation on such date in Cybear,
Inc., (the "Cybear Company"), any successor companies, and
all of the businesses, assets and liabilities of the Cybear
Company and any subsidiaries thereof;
(ii) all assets and liabilities of the Corporation and its
subsidiaries attributed by the Board of Directors to the
Cybear Group, whether or not such assets or liabilities are
or were also assets and liabilities of the Cybear Company;
(iii) all businesses, assets, properties and liabilities
transferred to the Cybear Group from the Andrx Group (other
than in a transaction pursuant to Section 2.6(f)(iv))
pursuant to transactions in the ordinary course of business
of the Cybear Group and the Andrx Group or otherwise as the
Board of Directors may have directed as permitted by the
Certificate of Incorporation;
(iv) all properties and assets transferred to the Cybear Group
from the Andrx Group in connection with an increase in the
Number of Cybear Group Designated Shares; and
(v) the interest of the Corporation or any of its subsidiaries
in any business or asset acquired and any liabilities
assumed by the Corporation or any of its subsidiaries
outside of the ordinary course of business and attributed
to the Cybear Group, as determined by the Board of
Directors as contemplated by Section 2.5(a)(i);
provided that from and after any transfer of any assets or properties from the
Cybear Group to the Andrx Group, the Cybear Group shall no longer include such
assets or properties so transferred.
(g) CYBEAR GROUP AVAILABLE DIVIDEND AMOUNT shall mean, on any date,
either:
(i) an amount equal to the fair market value of the total
assets attributed to the Cybear Group less the total
liabilities attributed to the Cybear Group (provided that
preferred stock shall not be treated as a liability), in
each case, as of such date and determined on a basis
consistent with that applied in determining Andrx
Corporation Earnings (Loss) Attributable to the Cybear
Group, minus (ii) the aggregate par value of, or any
greater amount determined in accordance with applicable law
to be capital in respect of, all outstanding shares of
Cybear Stock and each class or series of preferred stock
attributed in accordance with the Certificate of
Incorporation to the Cybear Group, or
(ii) in case the total amount calculated pursuant to clause (i)
above is not a positive number, an amount equal to Andrx
Corporation Earnings (Loss) Attributable to the Cybear
Group (if positive) for the fiscal year in which the
dividend is declared and/or the preceding fiscal year.
Notwithstanding the foregoing provisions of this Section 2.6(g), and consistent
with Section 2.5(c), at any time when there are not outstanding both (i) one or
more shares of Andrx Stock or Convertible Securities convertible into or
exchangeable or exercisable for Andrx Stock and (ii) one or more shares of
Cybear Stock or Convertible Securities convertible into or exchangeable or
exercisable for Cybear Stock, the "Available Dividend Amount," on any
calculation date during such time period, with respect to the Andrx Stock or the
Cybear Stock, as the case may be (depending on which of such classes of Common
Stock or Convertible
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<PAGE>
Securities convertible into or exchangeable or exercisable for Cybear Stock is
outstanding), shall mean the amount available for the payment of dividends on
such Common Stock in accordance with law.
(h) CONVERSION DATE shall mean the date fixed by the Board of
Directors as the effective date for the conversion of shares of
Cybear Stock into shares of Andrx Stock (or another class or
series of common stock of the Corporation) as shall be set forth
in the notice to holders of shares of Cybear Stock and to holders
of any Convertible Securities that are convertible into or
exchangeable or exercisable for shares of Cybear Stock required
pursuant to Section 2.4(d)(vi).
(i) CONVERTIBLE SECURITIES shall mean, as of any date, any securities
of the Corporation or of any subsidiary thereof (other than
shares of a class of Common Stock), including warrants and
options, outstanding at such time that by their terms are
convertible into or exchangeable or exercisable for or evidence
the right to acquire any shares of Andrx Stock or Cybear Stock,
whether convertible, exchangeable or exercisable at such time or
a later time or only upon the occurrence of certain events;
provided that securities shall only be Convertible Securities in
respect of the number of shares of Common Stock into or for which
such securities are then convertible, exchangeable or
exercisable.
(j) DISPOSITION shall mean a sale, transfer, assignment or other
disposition (whether by merger, consolidation, sale or
contribution of assets or stock or otherwise) of properties or
assets (including stock, other securities and goodwill).
(k) EFFECTIVE DATE shall mean the date on which the Certificate of
Incorporation shall become effective.
(l) FAIR VALUE shall mean, (i) in the case of equity securities or
debt securities of a class or series that has previously been
Publicly Traded, the Market Value thereof (if such Market Value,
as so defined, can be determined); (ii) in the case of an equity
security or debt security for the Market Value of which cannot be
determined, the fair value per share of stock or per other unit
of such security, on a fully distributed basis, as determined by
an independent investment banking firm experienced in the
valuation of securities selected in good faith by the Board of
Directors, or, if no such investment banking firm is, as
determined in the good faith judgment of the Board of Directors,
available to make such determination, in good faith by the Board
of Directors; (iii) in the case of cash denominated in U.S.
dollars, the face amount thereof and in the case of cash
denominated in other than U.S. dollars, the face amount thereof
converted into U.S. dollars at the rate published in The Wall
Street Journal on the date for the determination of Fair Value
or, if not so published, at such rate as shall be determined in
good faith by the Board of Directors based upon such information
as the Board of Directors shall in good faith determine to be
appropriate; and (iv) in the case of property other than
securities or cash, the "Fair Value" thereof shall be determined
in good faith by the Board of Directors based upon such
appraisals or valuation reports of such independent experts as
the Board of Directors shall in good faith determine to be
appropriate. Any such determination of Fair Value shall be
described in a statement filed with the records of the actions of
the Board of Directors.
(m) GROUP shall mean, as of any date, the Andrx Group or the Cybear
Group, as the case may be.
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(n) MARKET CAPITALIZATION of any class or series of capital stock on
any date shall mean the product of (i) the Market Value of one
share of such class or series of capital stock on such date and
(ii) the number of shares of such class or series of capital
stock outstanding on such date.
(o) MARKET VALUE of a share of any class or series of capital stock
of the Corporation on any day shall mean the average of the high
and low reported sales prices regular way of a share of such
class or series on such Trading Day or, in case no such reported
sale takes place on such Trading Day, the average of the reported
closing bid and asked prices regular way of a share of such class
or series on such Trading Day, in either case as reported on the
New York Stock Exchange Composite Tape or, if the shares of such
class or series are not listed or admitted to trading on such
Exchange on such Trading Day, on the principal national
securities exchange in the United States on which the shares of
such class or series are listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange
on such Trading Day, on the Nasdaq National Market or, if the
shares of such class or series are not fisted or admitted to
trading on any national securities exchange or quoted on the
Nasdaq National Market on such Trading Day, the average of the
closing bid and asked prices of a share of such class or series
in the over-the-counter market on such Trading Day as furnished
by any New York Stock Exchange member firm selected from time to
time by the Corporation or, if such closing bid and asked prices
are not made available by any such New York Stock Exchange member
firm on such Trading Day, the Fair Value of a share of such class
or series as set forth in clause (ii) of the definition of Fair
Value; provided that, for purposes of determining the "Market
Value" of a share of any class or series of capital stock for any
period, (i) the "Market Value" of a share of capital any day
prior to any "ex-dividend" date or any similar date occurring
during such period for any dividend or distribution (other than
any dividend or distribution contemplated by clause (ii)(B) of
this sentence) paid or to be paid with respect to such capital
stock shall be reduced by the Fair Value of the per share amount
of such dividend or distribution and (ii) the "Market Value" of
any share of capital stock on any day prior to (A) the effective
date of any subdivision (by stock split or otherwise) or
combination (by reverse stock split or otherwise) of outstanding
shares of such class or series of capital stock occurring during
such period or (B) any "ex-dividend" date or any similar date
occurring during such period for any dividend or distribution
with respect to such capital stock to be made in shares of such
class or series of capital stock or Convertible Securities that
are convertible, exchangeable or exercisable for such class or
series of capital stock shall be appropriately adjusted, as
determined by the Board of Directors, to reflect such
subdivision, combination, dividend or distribution.
(p) MARKET VALUE RATIO OF CYBEAR STOCK TO ANDRX STOCK as of any date
shall mean the fraction (which may be greater or less than 1/1),
expressed as a decimal (rounded to the nearest five decimal
places), of a share of Andrx Stock (or another class or series of
common stock of the Corporation, if so provided by Section
2.4(a)(iii) because Andrx Stock is not then Publicly Traded) to
be issued in respect of a share of Cybear Stock upon a conversion
of Cybear Stock into Andrx Stock (or another class or series of
common stock of the Corporation) in accordance with Section
2.4(a)(iii), the numerator of which shall be the average Market
Value of one share of Cybear Stock during the 20-Trading Day
period ending on such date and the denominator of which
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shall be the average Market Value of one share of Andrx Stock (or
such other common stock) during the 20-Trading Day period ending
on such date.
(q) NET PROCEEDS shall mean, as of any date with respect to any
Disposition of any of the properties and assets distributed to
the Cybear Group, an amount, if any, equal to what remains of the
gross proceeds of such Disposition after payment of, or
reasonable provision is made as determined by the Board of
Directors for, (i) any taxes payable by the Corporation (or which
would have been payable but for the utilization of tax benefits
attributable to the other Group) in respect of such Disposition
or in respect of any resulting dividend or redemption pursuant to
Section 2.4(a)(i)(1)(A) or 2.4(a)(i)(1)(B), (ii) any transaction
costs, including, without limitation, any legal, investment
banking and accounting fees and expenses and (iii) any
liabilities (contingent or otherwise) of or attributed to such
Group, including, without limitation, any liabilities for
deferred taxes or any indemnity or guarantee obligations of the
Corporation incurred in connection with the Disposition or
otherwise, and any liabilities for future purchase price
adjustments and any preferential amounts plus any accumulated and
unpaid dividends in respect of the preferred stock attributed to
such Group. For purposes of this definition, any properties and
assets attributed to the Group, the properties and assets of
which are subject to such Disposition, remaining after such
Disposition shall constitute "reasonable provision" for such
amount of taxes, costs and liabilities (contingent or otherwise)
as the Board of Directors determines can be expected to be
supported by such properties and assets.
(r) NUMBER OF CYBEAR GROUP DESIGNATED SHARES shall be, as of the date
of the Effective Date, zero; provided, however, that the "Number
of Cybear Group Designated Shares" shall from time to time
thereafter be:
(i) adjusted, if before such adjustment such number is greater
than zero, as determined by the Board of Directors to be
appropriate to reflect equitably any subdivision (by stock
split or otherwise) or combination (by reverse stock split
or otherwise) of the Cybear Stock or any dividend or other
distribution of shares of Cybear Stock to holders of shares
of Cybear Stock or any reclassification of Cybear Stock,
(ii) decreased (but to not less than zero), if before such
adjustment such number is greater than zero, by action of
the Board of Directors by (1) the number of shares of
Cybear Stock issued or sold by the Corporation that,
immediately prior to such issuance or sale, were included
in the Number of Cybear Group Designated Shares, (2) the
number of shares of Cybear Stock issued upon conversion,
exchange or exercise of Convertible Securities that,
immediately prior to the issuance or sale of such
Convertible Securities, were included in the Number of
Cybear Group Designated Shares, (3) the number of shares of
Cybear Stock issued by the Corporation as a dividend or
other distribution (including in connection with any
reclassification or exchange of shares) to holders of Andrx
Stock, (4) the number of shares of Cybear Stock issued upon
the conversion, exchange or exercise of any Convertible
Securities issued by the Corporation as a dividend or other
distribution (including in connection with any
reclassification or exchange of shares) to holders of Andrx
Stock, and (5) the number (rounded, if necessary, to the
nearest whole number) equal to the quotient of (A) the
aggregate Fair Value as of the date of contribution of
properties or assets (including cash) transferred from
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the Cybear Group to the Andrx Group in consideration for a
reduction in the Number of Cybear Group Designated Shares
divided by (B) the average Market Value of one share of
Cybear Stock during the 20-Trading Day period ending on the
date immediately prior to the date of such transfer, and
(iii) increased by the number (rounded, if necessary, to the
nearest whole number) equal to the quotient of (A) the Fair
Value of properties or assets (including cash) theretofore
attributed as provided by Section 2.6(c) to the Andrx Group
that are contributed to the Cybear Group in consideration
of an increase in the Number of Cybear Group Designated
Shares divided by (B) the average Market Value of one share
of Cybear Stock during the 20-Trading Day period ending on
the date immediately prior to the date of such
contribution.
(s) PUBLICLY TRADED with respect to any security shall mean that such
security is (i) registered under Section 12 of the Securities
Exchange Act of 1934, as amended (or any successor provision of
law), and (ii) listed for trading on the New York Stock Exchange
or the American Stock Exchange (or any national securities
exchange registered under Section 7 of the Securities Exchange
Act of 1934, as amended (or any successor provision of law), that
is the successor to either such exchange) or fisted on The Nasdaq
Stock Market (or any successor market system).
(t) REDEMPTION DATE shall mean the date fixed by the Board of
Directors as the effective date for a redemption of shares of
Cybear Stock, as set forth in a notice to holders thereof
required pursuant to Section 2.4(d)(iv), (v), (vi) or (vii).
(u) RELATED BUSINESS TRANSACTION means any Disposition of all or
substantially all the proper-ties and assets attributed to the
Andrx Group or the Cybear Group, as the case may be, in a
transaction or series of related transactions that result in the
Corporation receiving in consideration of such properties and
assets primarily equity securities (including, without
limitation, capital stock, debt securities convertible into or
exchangeable for equity securities or interests in a general or
limited partnership or limited liability company, without regard
to the voting power or other management or governance rights
associated therewith) of any entity which (i) acquires such
properties or assets or succeeds (by merger, formation of a joint
venture or otherwise) to the business conducted with such
properties or assets or controls such acquiror or successor and
(ii) is engaged primarily or proposes to engage primarily in one
or more businesses similar or complementary to the businesses
conducted by such Group prior to such Disposition, as determined
by the Board of Directors.
(v) TAX EVENT shall mean the receipt by the Corporation of an opinion
of tax counsel to the Corporation experienced in such matters,
who shall not be an officer or employee of the Corporation or any
of its affiliates, that, as a result of any amendment to, or
change in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof
or therein (including any announced proposed change by an
applicable legislative committee or the chair thereof in such
laws or by an administrative agency in such regulations), or as a
result of any official or administrative pronouncement or action
or judicial decision interpreting or applying such laws or
regulations, it is more likely than not that for United States
federal income tax purposes (i) the Corporation or its
stockholders is or, at any time in the future, will be subject to
tax upon the issuance of shares of either Andrx Stock or Cybear
Stock or (ii) either Andrx Stock or
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Cybear Stock is not or, at any time in the future, will not be
treated solely as stock of the Corporation.
(w) TRADING DAY shall mean each weekday other than any day on which
the relevant class of common stock of the Corporation is not
traded on any national securities exchange or listed on the
Nasdaq Stock Market or in the over-the-counter market.
SECTION 3. Preferred Stock. The Preferred Stock may be issued from time
to time in one or more series, each with such distinctive designation as may be
stated in the Certificate of Incorporation or in any amendment hereto, or in a
resolution or resolutions providing for the issue of such stock from time to
time adopted by the Board of Directors or a duly authorized committee thereof.
The authority of the Board of Directors with respect to each such series shall
include, but not be limited to, determination of the following:
(a) the number of shares constituting that series and the distinctive
designation of that series;
(b) the dividend rate on the shares of that series, the conditions
and dates upon which such dividends shall be payable, whether
dividends shall be cumulative and, if so, from which date or
dates, and the relative rights of priority, if any, of payment of
dividends on shares of that series;
(c) whether that series shall have voting rights in addition to the
voting rights provided by law and, if so, the terms of such
voting rights;
(d) whether that series shall have conversion privileges and, if so,
the terms and conditions of such conversion, including provisions
for adjustment of the conversion rate in such events as the Board
of Directors shall determine;
(e) whether or not the shares of that series shall be redeemable and,
if so, the terms and conditions of such redemption, including the
date or dates upon or after which they shall be redeemable, and
the amount per share payable in case of redemption, which amount
may vary under different conditions, and at different redemption
dates;
(f) whether that series shall have a sinking fund for the redemption
or purchase of shares of that series and, if so, the terms and
amount of such sinking fund;
(g) the rights of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights or priority, if any, of
payment of shares of that series; and
(h) any other relative rights, preferences and limitations of that
series, unless otherwise provided by the certificate of
determination.
ARTICLE V.
ADDRESS OF REGISTERED OFFICE;
NAME OF REGISTERED AGENT
The address of the registered office of the Corporation in the State of
Delaware is 1013 Centre Road, City of Wilmington, County of New Castle. The name
of its registered agent is Corporation Service Company.
ARTICLE VI.
BOARD OF DIRECTORS
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SECTION 1. NUMBER AND TERM OF DIRECTORS. The Board of Directors shall
consist of not less than three nor more than twelve members, with the exact
number to be fixed from time to time in the manner provided in the Bylaws. No
decrease in the number of directors shall have the effect of shortening the term
of any incumbent director. The Board of Directors shall be divided into three
classes. The number of directors elected to each class shall be as nearly equal
in number as possible. Each director in the first class shall be elected to an
initial term expiring at the next ensuing annual meeting of stockholders, each
director in the second class shall be elected to an initial term expiring at the
annual meeting of stockholders held one year thereafter and each director in the
third class shall be elected to an initial term expiring at the annual meeting
of stockholders held one year thereafter, in each case until his or her
successor us duly elected and qualified or until his or her earlier resignation,
death, incapacity or removal from office. Upon the expiration of the initial
terms of office for each class of directors, the successor directors of each
class shall be elected for a full term of three years, to serve until their
successors are duly elected and qualified or until their earlier resignation,
death, incapacity or removal from office. The Board of Directors shall apportion
any increase or decrease in the number of directors among the classes as nearly
equal in number as possible.
SECTION 2. VACANCIES. Whenever any vacancy on the Board of Directors
shall occur due to death, resignation, retirement, disqualification, removal,
increase in the number of directors, or otherwise, a majority of the remaining
directors in office, although less than a quorum of the Board of Directors, may
fill the vacancy for the balance of the unexpired term of the vacant
directorship, at which time a successor or successors shall be duly elected by
the stockholders and qualified. Notwithstanding the provisions of any other
Article hereof, only the remaining directors of the Corporation shall have the
authority, in accordance with the procedure stated herein, to fill any vacancy
that arises on the Board of Directors.
SECTION 3. REMOVAL. A director may be removed from office prior to the
expiration of his or her term: (i) only for cause; and (ii) only upon the
affirmative vote of at least two-thirds of the outstanding shares of capital
stock of the Corporation entitled to vote for the election of directors.
SECTION 4. AMENDMENTS. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, this Article VI shall not be
altered, amended or repealed except by an affirmative vote of at least two-third
of the outstanding shares of capital stock of the Corporation entitled to vote
for the election of directors.
ARTICLE VII.
LIMITATION ON DIRECTOR LIABILITY
A director shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL, or (iv) for any transaction from which such director
derives an improper personal benefit. This Article VII shall be read to
authorize the limitation of liability to the fullest extent permitted under
Delaware law. If the DGCL is hereafter amended to authorize the further or
broader elimination or limitation of the personal liability of directors, then
the liability of a director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the DGCL, as so amended. No repeal or
modification of this Article VII shall adversely affect any right of or
protection afforded to a director of the Corporation existing immediately prior
to such repeal or modification.
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ARTICLE VIII.
SPECIAL MEETINGS OF STOCKHOLDERS
Except as otherwise require by law and subject to the rights of the
holders of the Preferred Stock, special meetings of the stockholders of the
Corporation may be called only by (i) the Board of Directors pursuant to a
resolution approved by a majority of the entire Board of Directors, (ii) the
Corporation's Chief Executive Officer or (iii) the holders of at least one-third
of the outstanding shares of capital stock of the Corporation. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary, this
Article VIII shall not be altered, amended or repealed except by an affirmative
vote of at least two-thirds of the outstanding shares of capital stock of the
Corporation entitled to vote at a stockholders' meeting duly called for such
purpose.
ARTICLE IX.
NO SHAREHOLDER ACTION WITHOUT A MEETING
Any action required or permitted to be taken by the stockholders of the
Corporation shall be taken at a duly called annual or special meeting of such
holders and may not be taken by any consent in writing by such holders.
Notwithstanding anything contained in this Certificate of Incorporation to the
contrary, this Article IX shall not be altered, amended or repealed except by an
affirmative vote of at least two-thirds of the outstanding shares of capital
stock of the Corporation entitled to vote at a stockholders' meeting duly called
for such purpose.
ARTICLE X.
INDEMNIFICATION
The Corporation shall indemnify and advance expenses to, and may
purchase and maintain insurance on behalf of, its officers and directors to the
fullest extent permitted by law as now or hereafter in effect. Without limiting
the generality of the foregoing, the Bylaws may provide for indemnification and
advancement of expenses to officers, directors, employees and agents on such
terms and conditions as the Board of Directors may from time to time deem
appropriate or advisable.
ARTICLE XI.
BYLAWS
The Board of Directors shall have the power to adopt, amend or repeal
the Bylaws of the Corporation or any part thereof. Certain provisions of the
Bylaws, as stated therein, may not be altered, amended or repealed except by the
affirmative vote of at least two-thirds of the outstanding shares of capital
stock of the Corporation entitled to vote at a Stockholders' meeting duly called
for such purpose. Except for such provisions requiring a two-third vote to
alter, amend or repeal, the Bylaws may be altered, amended or repealed, and new
bylaws may be adopted, by the Stockholders upon the affirmative vote of at least
a majority of the outstanding shares of capital stock of the Corporation
entitled to vote at a Stockholders' meeting duly called for such purpose.
Notwithstanding anything contained in this Certificate of Incorporation to the
contrary, this Article XI shall not be altered, amended or repealed except by an
affirmative vote of at least two-thirds of the outstanding shares of capital
stock of the Corporation entitled to vote at a stockholders' meeting duly called
for such purpose.
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ARTICLE XII.
AMENDMENT
Except as provided herein, this Certificate of Incorporation may be
altered, amended or repealed by the stockholders of the Corporation in
accordance with Delaware law.
IN WITNESS WHEREOF, the undersigned, being the President of the
Corporation, has signed this Certificate of Incorporation this _____ day of
___________, 2000.
ANDRX CORPORATION
By:
-------------------------------
Name:
-----------------------
Title:
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