July 9, 2020
WASHINGTON,
Pharmaceuticals, Inc.
| Delaware | | | 58-2301143 | |
| (State or | | | (I.R.S. Employer Identification Number) | |
registrant’s principal executive offices)
Copies
Paul
1221 Avenue of the Americas
New York, New York 10020
(212) 768-6700
Approximate date of commencement of proposed sale to public:the public: From time to time or at one time after the effective date of this registration statement becomes effective in light of market conditions and other factors.
Registration Statement.
box: ☐
box: ☒
☐
☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
☐
| Large accelerated filer ☐ | | | Accelerated filer ☒ | |
| Non-accelerated filer ☐ | | Smaller reporting company ☐ | | |
| | | | Emerging ☐ | |
CALCULATION ☐
CALCULATION OF REGISTRATION FEE | | ||||||||||||||||||||||
Title of each class of securities to be registered | | | | Amount to be registered(1)(2) | | | | Proposed maximum offering price per security(1)(2) | | | | Proposed maximum aggregate offering price(2)(3) | | | | Amount of registration fee | | ||||||
Common Stock, $0.0001 par value per share | | | | | | | | | | | | | | | | | | | | | | | |
Preferred Stock, $0.0001 par value per share | | | | | | | | | | | | | | | | | | | | | | | |
Debt Securities | | | | | | | | | | | | | | | | | | | | | | | |
Warrants | | | | | | | | | | | | | | | | | | | | | | | |
Units | | | | | | | | | | | | | | | | | | | | | | | |
Rights | | | | | | | | | | | | | | | | | | | | | | | |
TOTAL | | | | | | | | | | | | | $ | 350,000,000 | | | | | | $ | 40,565(4) | | |
Title Of Each Class Of Securities To Be Registered | Amount To Be Registered | Proposed Maximum Offering Price Per Unit | Proposed Maximum Aggregate Offering Price | Amount Of Registration Fee | ||||||||||||
Debt Securities | (1)(2) | (1)(2) | (2)(3) | |||||||||||||
Preferred Stock, par value $.0001 per share | (1)(2) | (1)(2) | (2)(3) | |||||||||||||
Common Stock, par value $.0001 per share | (1)(2) | (1)(2) | (2)(3) | |||||||||||||
Warrants | (1)(2) | (1)(2) | (2)(3) | |||||||||||||
Units | (1)(2) | (1)(2) | (2)(3) | |||||||||||||
Rights | (1)(2) | (1)(2) | (2)(3) | |||||||||||||
TOTAL | $ | 350,000,000 | (3) | 100 | % | $ | 350,000,000 | $ | 40,565.00 | (4) |
JULY 9, 2020
Preferred Stock
Common Stock
Units
When the Company decides to sell particular securities, the Company will provide you withare sold, the specific terms and the offering priceamounts of the securities being offered, and any other information relating to the Company is thenspecific offering will be set forth in a supplement to this prospectus. We may also authorize one or more prospectus supplementsfree writing prospectuses to this prospectus.be provided to you in connection with these offerings. The prospectus supplement and any related free writing prospectus may also add, to,update or change or update information contained in this prospectus. The prospectus supplement may also contain important information about U.S. federal income tax consequences. You should carefully read this prospectus, together withthe applicable prospectus supplement and any related free writing prospectus, supplements and informationas well as any documents incorporated by reference, in this prospectus and any prospectus supplements, before you decide to invest.invest in any of the securities being offered. This prospectus may not be used to offer or sell anyour securities unless accompanied by a prospectus supplement.
The Company's
Investingand in the Company's securities involves significant risks. See "Risk Factors" beginning on page 5.
other documents that are incorporated by reference into this prospectus or the applicable prospectus supplement.
| | | Page | | |||
| | | 1 | | | ||
| | | | 2 | | | |
| | | | 4 | | | |
| | | 5 | | | ||
| | | | 6 | | | |
| | | | 7 | | ||
| | | | 11 | | | |
| | | | 19 | | | |
| | | | 21 | | | |
| | | | 22 | | | |
| | | 23 | | | ||
| | | 24 | | | ||
| | | | 24 | | | |
| | | 24 | | | ||
| | | | 25 | | |
This prospectus is part of a registration statement that the Company filed with the U.S. Securities and Exchange Commission (the "SEC"“SEC”) utilizingusing a "shelf"“shelf” registration process. Under this process, or continuous offering process, which allows the Company to offer andwe may sell any combination of the securities described in this prospectus from time to time in one or more offerings. Using this prospectus, the Company may offerofferings up to a totalan aggregate dollar amount of $350,000,000$350,000,000. Before purchasing any securities, you should read this prospectus and any applicable prospectus supplement together with the additional information described under the headings “Where You Can Find Additional Information” and “Incorporation of these securities.
Certain Information by Reference.”
In this prospectus and any prospectus supplement, unless otherwise indicated, the terms "ANI" and "the Company"“company” or similar references refer and relate to ANI Pharmaceuticals, Inc., and its consolidated subsidiaries.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
subsidiaries; and the term “securities” refers collectively to our common stock, preferred stock, warrants, debt securities, or any combination of the foregoing securities.
Uncertainties and risks may cause our actual results to be materially different than those expressed in or implied by such forward-looking statements. Uncertainties and risks include, but are not limited to, the risk that we may face with respect to importing raw materials, increased competition, acquisitions, contract manufacturing arrangements, delays or failure in obtaining product approvals from the U.S. Food and Drug Administration ("FDA"), general business and economic conditions, market trends, product development, regulatory, and other approvals and marketing.
More detailed information on these and additional factors that could affect the Company’s actual results are described in the "Risk Factors" section in Part I, Item 1A. of the Company's most recent annual report on Form 10-K and in other cautionary statements and risks included in other reports the Company files with the SEC. All forward-looking statements in this prospectus speak only asand the information incorporated herein, including logos, artwork, and other visual displays, may appear without the
Our strategy is to use our assets to develop, acquire, manufacture, and market branded and generic specialty prescription pharmaceuticals. By executing this strategy, we believe we will be able to continue to grow our business, expand and diversify our product portfolio, and create long-term value for our investors.
Products
The Company'sestablished product portfolio consists of
| Generic Products | | | Branded Products | |
| Aspirin and Extended Release Dipyridamole | | | Arimidex | |
| Bretylium Tosylate Injection, USP | | | Atacand | |
| Candesartan Hydrochlorothiazide | | | Atacand HCT | |
| Cholestyramine | | | Casodex | |
| Desipramine Hydrochloride | | | Cortenema | |
| Diphenoxylate Hydrochloride and Atropine Sulfate | | | Inderal LA | |
| Erythromycin Ethylsuccinate | | Inderal XL | | |
| Erythromycin Ethylsuccinate for Oral Suspension | | | InnoPran XL | |
| Esterified Estrogen with Methyltestosterone | | Lithobid | | |
| Etodolac | | Reglan | | |
Ezetimibe-Simvastatin | | Vancocin | | ||
Felbamate | | | | ||
| Fenofibrate | | | | |
| Flecainide | | | | |
| Fluvoxamine | | | | |
| Hydrocortisone Enema | | | | |
| Hydrocortisone Rectal Cream (1% and 2.5%) | | | | |
| Indapamide | | | | |
| Lithium Carbonate ER | | | | |
| Mesalamine Enema | | | | |
| Methazolamide | | | | |
| Metoclopramide Syrup | | | | |
Morphine Sulfate Oral Solution | | | | | |
| Nilutamide | | | | |
| Nimodipine | | | | |
| Opium Tincture | | | | |
| Oxycodone Hydrochloride Capsules | | | | |
| Oxycodone Hydrochloride Oral Solution (5 mg/5 mL) | | | | |
| Oxycodone Hydrochloride Oral Solution (100 mg/5 mL) | | | | |
| Pindolol | | | | |
| Propafenone | | | | |
| Propranolol ER | | | | |
| Terbutaline Sulfate | | | | |
| Vancomycin | | | | |
| Vancomycin Hydrochloride for Oral Solution | | |||
| |||||
|
Trademark Notice
The risks and uncertainties the Company describes are not the only ones facing the Company. Additional risks and uncertainties not presently known to the Company orthatthe Company currently deems immaterial may also impair its business or operations. Any adverse effect on the Company's business, financial condition or operating results could result in a decline in the value of the securities and the loss of all or part of your investment.The prospectus supplement applicable to each series of securities the Company offers may contain a discussion of additional risks applicable to an investment in the Company and the securities the Company is offering under thatany prospectus supplement.
The amountsclass C special stock held and timingregistered in such holder’s name together with the common stock purchase price as set forth in our certificate of any expenditures will vary depending on:incorporation on the type, number, costs, and resultsbasis of the product candidate development programs which the Company is pursuing or may choose to pursue in the future; the scope, progress, expansion, costs, and resultsone common stock for each share of its clinical trials; competitive and technological developments;class C special stock and the rate of growth, if any, of its business. Accordingly, unless otherwise indicated in the prospectus supplement, the Company's management will have significant flexibility in applying the net proceeds of the offerings,common stock purchase price.
RATIO OF EARNINGS TO FIXED CHARGES
If the Company offers debt securities and/or preference equity securities under this prospectus, then the Company will, if required at that time, provide a ratio of earnings to fixed charges and/or ratio of combined fixed chargesRegistrar
our common stock is Continental Stock Transfer & Trust Company. The Company may sell the securities being offered by it in this prospectus pursuant to underwritten public offerings, negotiated transactions, block trades or any combination of such methods. The Company may sell the securities to or through underwriters, dealers, agents or directly to one or more purchasers. The Companytransfer agent and registrar’s address is 1 State Street, 30
The Company and its agents, dealers and underwriters, as applicable, may sell the securities being offered by the Company in this prospectuspreferred stock from time to time in one or more transactions at:
series and to fix the number of shares constituting each series of preferred stock and the designations, powers, preferences, rights, qualifications, limitations and restrictions of the shares of such series, including such provisions as may be desired concerning voting, redemption, dividends, dissolution or the distribution of assets, conversion or exchange, and such other subjects or matters as may be fixed by resolution of the board of directors, any or all of which may be greater than or senior to the rights of the common stock. The Company may determineissuance of preferred stock could adversely affect the voting power of holders of common stock and reduce the likelihood that such holders will receive
The Company may solicit directly offers to purchase securities. The Company may also designate agents from time to time to solicit offers to purchase securities. Any agentstockholder becoming an interested stockholder;
The Company may engage in the transaction commenced, calculated as provided under Section 203; or
If the Company uses underwriters to sell securities, the Company will enter into an underwriting agreement with the underwriters at the time of the sale to them, which agreement shall be filed as an exhibitwithin three years prior to the related prospectus supplement. Underwriters may also receive commissions from purchasersdetermination of interested stockholder status, did own 15% or more of a corporation’s outstanding voting stock. We expect the securities. Underwriters may also use dealersexistence of this provision to sell securities. In suchhave an event, the dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents.
Underwriters, dealers, agents and other persons may be entitled, under agreements that may be entered into with the Company, to indemnification by the Company against certain civil liabilities, including liabilities under the Securities Act or to contributionanti-takeover effect with respect to payments which theytransactions our board of directors does not approve in advance. We anticipate that Section 203 may be required to makealso discourage attempts that might result in respect of such liabilities. Underwriters and agents may engage in transactions with, or perform servicesa premium over the market price for the Companyshares of common stock held by stockholders.
If so indicatedour common stock that often result from actual or rumored hostile takeover attempts. These provisions might also have the effect of preventing changes in the applicable prospectus supplement, the Company may authorize underwriters, dealers or other personsour management. It is possible that these provisions could make it more difficult to solicit offers by certain institutions to purchase the securities offered by the Company under this prospectus pursuant to contracts providing for payment and delivery on a future date or dates. The obligations of any purchaser under these contracts will be subject only to those conditions described in the applicable prospectus supplement, and the prospectus supplement will set forth the priceaccomplish transactions that stockholders might otherwise deem to be paid for securities pursuant to those contracts and the commissions payable for solicitation of the contracts.
Any underwriter may engage in over-allotment, stabilizing and syndicate short covering transactions and penalty bids in accordance with Regulation M of the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions involve bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Syndicate short covering transactions involve purchases of securities in the open market after the distribution has been completed in order to cover syndicate short positions. Penalty bids permit the underwriters to reclaim selling concessions from dealers when the securities originally sold by such dealers are purchased in covering transactions to cover syndicate short positions. These transactions may cause the price of the securities sold in an offering to be higher than it would otherwise be. These transactions, if commenced, may be discontinued by the underwriters at any time.
The Company's common stock is quoted on The NASDAQ Global Market under the trading symbol "ANIP." The other securities are not listed on any securities exchange or other stock market and, unless the Company states otherwise in the applicable prospectus supplement, the Company does not intend to apply for listing of the other securities on any securities exchange or other stock market. Any underwriters to whom the Company sells securities for public offering and sale may make a market in the securities that they purchase, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. Accordingly, the Company gives you no assurance as to the development or liquidity of any trading market for the securities.
The anticipated date of delivery of the securities offered hereby will be set forth in the applicable prospectus supplement relating to each offering.
In order to comply with certain state securities laws, if applicable, the securities may be sold in such jurisdictions only through registered or licensed brokers or dealers. In certain states, the securities may not be sold unless the securities have been registered or qualified for sale in such state or an exemption from regulation or qualification is available and is complied with. Sales of securities must also be made by the Company in compliance with all other applicable state securities laws and regulations.
The Company shall pay all expenses of the registration of the securities.
We may issuewill set forth the debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and other characteristics orfollowing terms of the debt securities. One or moresecurities offered pursuant thereto as applicable:
We will comply with Section 14(e) underredemption or sinking fund provisions, or the Exchange Act to the extent applicable, andterms of any other tender offer rules under the Exchange Act, which may then be applicable, in connection with any obligation we may have to purchase debt securitiesrepurchase at the option of the holder of the debt securities;
Any applicable prospectus supplement relating to a seriesby which the amount of payments of principal or any premium, interest or additional amounts on such debt securities being offeredmay be determined by reference to an index, formula, financial or economic measure or other methods;
Conversion
We will set forth in any applicable prospectus supplementotherwise, or reduce the terms on which a seriesamount of the principal of debt securities mayissued with original issue discount that would be convertible intodue and payable upon an acceleration of the maturity thereof or exchangeable for our common stockthe amount thereof provable in bankruptcy, or our other securities. We will includechange the redemption provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory,adversely affect the right of repayment at the option of the holder, or at our option. We may include provisions pursuant tochange the place of payment or currency in which the numberprincipal of, sharesor any premium, interest or additional amounts with respect to any debt security is payable, or impair or affect the right of ourany holder of debt securities to institute suit for the payment after such payment is due;
Consolidation, Merger or Sale
Except as set forth in any applicable prospectus supplement,affect the rights under the indenture will provide that we shall not consolidate with, or sell, assign, transfer, lease or convey all or substantially all of our assets to, or merge into, another business entity, unless:
Notwithstanding the foregoing, we may merge with another business entity or acquire by purchase or otherwise all or any part of the property or assets of any other companyseries.
Eventsindenture that may be defective or inconsistent with any other provision of Default
Unless otherwise specifiedthe indenture or to make any other provisions with respect to matters or questions arising under such indenture; provided that no such action pursuant to this clause (e) shall adversely affect the interests of the holders of any series of debt securities issued thereunder in any applicable prospectus supplement,material respect;
If an event of debt securities issued thereunder:
payment of the principal of, any premium or interest on, or any additional amounts with respect to, any debt security of such series, or (2) in respect of a covenant or provision which cannot be modified or amended without the consent of each holder affected thereby.
We will be required to furnish to the trustee under the indenture annually a statement as to the performance by us of our obligations under that indenture and as to any default in our performance.
Modification of Indenture; Waiver
Subject to certain exceptions, the terms of the indenture or the debt securities may be amended or supplemented by us and the trustee with the written consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series affected by the amendment with each series voting as a separate class. Without the consent of any holder of the debt securities, we and the trustee may amend the terms of the indenture or the debt securities to:
However, holders of each series of debt securities affected by a modification must consent to modifications that have the following effect:
Any existing default may be waived with the consent of the holders of at least a majority in principal amount of the then outstanding debt securities of the series affected. The consent of the holders of debt securities is not necessary to approve the particular form of any proposed amendment to any indenture. It is sufficient if any consent approves the substance of the proposed amendment.
Covenants
Except as permitted under “Consolidation, Merger or Sale” the indenture will require us to do or cause to be done all things necessary to preserve and keep in full force and effect our existence, rights (declaration and statutory) and franchises; provided, however, that we shall not be required to preserve any right or franchise if we determine that the right or franchise is no longer desirable in the conduct of our business and that the loss of the right or franchise is not disadvantageous in any material respect to the holders of the debt securities.
The indenture will require us to pay or discharge or cause to be paid or discharged, before payment becomes delinquent, all taxes, assessments and governmental charges levied or imposed upon us, except any tax, assessment, charge or claim the amount or applicability of which is being contested in good faith.
Reference is made to the indenture and applicable prospectus supplement for information with respect to any additional covenants specific to a particular series of debt securities.
Discharge
Except as otherwise set forth in any applicable prospectus supplement, we may terminate our obligations under the debt securities of any series, and the corresponding obligations under the indenture when:
In addition, we will have the option to terminate substantially all our obligations under the debt securities of any series and the corresponding obligations under the indenture, and we may exercise that option if:
We will have the option to be released from our obligations with respect to the covenants to deliver reports required to be filed with the SEC and an annual compliance certificate, and to make timely payments of taxes (including covenants described in an applicable prospectus supplement), and any event of default occurring because of a default with respect to the covenants as they related to any series of debt securities, and we may exercise that option if:
Upon satisfaction of the applicable conditions, our obligations under the indenture with respect to the debt securities of the series, other than with respect to the covenants and events of default referred to above, shall remain in full force and effect.
Notwithstanding the foregoing, no discharge or defeasance described above shall affect the following obligations to or rights of the holders of any series of debt securities:
Form, Exchange and Transfer
We expect payment of principal, premium, if any, and any interest on the debt securities to be payable, and the exchange and the transfer of debt securities will be registrable, at the office of the trustee or at any other office or agency we maintain for that purpose. We expect to issue debt securities in denominations of U.S. $1,000 or integral multiples of $1,000. No service charge will be made for any registration of transfer or exchange of the debt securities, but we may require a payment to cover any tax or other governmental charges payable in connection with an exchange or transfer.
A holder of debt securities may transfer or exchange those debt securities in accordance with the indenture. The registrar for the debt securities may require a holder, among other things, to furnish appropriate endorsements and transfer documents, and to pay any taxes and fees required by law or permitted by the indenture. The registrar is not required to transfer or exchange any debt security selected for redemption or any debt security for a period of 15 days before a selection of debt security to be redeemed. The registered holder of a debt security may be treated as the owner of the security for all purposes.
We will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.
Replacement Securities
Any mutilated certificate representing a debt security or a certificate representing a debt security with a mutilated coupon will be replaced by us at the expense of the holder upon surrender of the certificate to the trustee. Certificates representing debt securities or coupons that become destroyed, stolen or lost will be replaced by us at the expense of the holder upon delivery to us and the trustee of evidence of any destruction, loss or theft satisfactory to us and the trustee, provided that neither we nor the trustee has been notified that the certificate or coupon has been acquired by a bona fide purchaser. In the case of any coupon which becomes destroyed, stolen or lost, the coupon will be replaced by issuance of a new certificate representing the debt security in exchange for the certificate representing the debt security to which the coupon appertains. In the case of a destroyed, lost or stolen certificate representing the debt security or coupon, an indemnity bond satisfactory to the trustee and us may be required at the expense of the holder of the debt security before a replacement certificate will be issued.
Information Concerning the Trustee
We will identify in any applicable prospectus supplement relating to any series of debt securities the trustee with respect to the series. The indenture and the Trust Indenture Act contain certain limitations on the rights of the trustee, should it become our creditor, to obtain payment of claims in certain cases, or to realize on certain property received in respect of any the claim, as security or otherwise. The trustee and its affiliates may engage in, and will be permitted to continue to engage in, other transactions with us and our affiliates; but if the trustee acquires any conflicting interest, as defined in the Trust Indenture Act, it must eliminate the conflict or resign.
The holders of a majority inaggregate principal amount of the then outstanding debt securities of any series will have the right tomay direct the time, method and place of conducting any proceedingproceedings for exercising any remedy available to the trustee. The Trust Indenture Act and the indenture provide that in case an eventtrustee or of default occurs is continuing,exercising any trust or power conferred upon the trustee will be required, inwith respect to the exercisedebt securities of its rights and powers, to use the degree of care and skill of a prudent man in the conduct of his own affairs. Subject to those provisions,such series; provided, however, that the trustee willmay decline to follow any such direction if, among other reasons, the trustee determines in good faith that the actions or proceedings as directed may not lawfully be under no obligationtaken or would be unduly prejudicial to exercise any of its rights or powers under the indenture at the request of any of the holders of the debt securities unless they have offered to the trustee indemnity satisfactory to it.
Global Debt Securities
Unless we indicate otherwiseof such series not joining in the applicable prospectus supplement, the following provisions will apply to all debt securities.
such direction. The debt securitiesright of a series may be issued in whole or in part in the form of one or more global securities that will be deposited withholder to institute a depositary that we will identify in an applicable prospectus supplement. Each global security will be deposited with the depositary and will bear a legend regarding any related restrictions or other matters as may be provided for pursuant to the applicable indenture.
Unless an applicable prospectus supplement states otherwise, no global security may be transferred to, or registered or exchanged for, debt securities registered in the name of, any person or entity other than the depositary, unless:
All debt securities issued in exchange for a global security or any portion of a global security will be registered in those names as the depositary may direct. The specific terms of the depositary arrangementproceeding with respect to any portion of a series of debt securities to be represented by a global security will be describedsubject to certain conditions precedent including, without limitation, that in case of an applicable prospectus supplement.
Debt securities which are to be represented by a global security to be deposited withevent of default specified in clause (a), (b) or on behalf of a depositary will be represented by a global security registered in the name(e) of the depositaryfirst paragraph above under “— Events of Default,” holders of at least 25%, or its nominee. Upon the issuancein case of an event of default other than specified in clause (a), (b) or (e) of the global security, and the depositfirst paragraph above under “— Events of the global security with the depositary, the depositary will credit, on its book-entry registration and transfer system, the respectiveDefault”, holders of at least a majority, in aggregate principal amountsamount of the debt securities represented byof such series then outstanding make a written request upon the global securitytrustee to exercise its powers under such indenture, indemnify the accountstrustee and afford the trustee reasonable opportunity to act. Notwithstanding the foregoing, the holder has an absolute right to receipt of institutions that have accounts with the depositary or its nominee, or the Participants. The accounts to be credited will be designated by the underwriters or agentsprincipal of, premium, if any, and interest when due on the debt securities, to require conversion of debt securities if such indenture provides for convertibility at the option of the holder and to institute suit for the enforcement thereof.
Ownershipunder the indenture, and after giving effect thereto no event of beneficial interests in a global security willdefault, and no event that, after notice or lapse of time or both, would become an event of default, shall have occurred and be limited to Participants or persons that may hold interests through Participants. Ownership of beneficial interests in a global security will be shown on,continuing, and the transfer of that ownership interest will be effected only through, records maintained by the depositary or its nominee for the global security or by Participants or persons that hold through Participants.
The laws of some jurisdictions require that certain purchasersother conditions are met.
So long as the depositary, or its nominee, is the registered owner of a global security, the depositary or the nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by the global security for all purposes under the indenture. Payment of principal of, and premium and interest ifon or any onadditional amounts payable with respect to, any debt securities of any series in accordance with their terms.
The rights of any holder of a debt security to receive payment of principal and premium of, if any, and interest, on or after the respective due dates expressed or provided for in the debt security, or to institute suit for the enforcementpurposes of anypresenting or surrendering debt securities for payment, onregistration of transfer, or after the applicable date, shall not be impaired or affected without the consent of the holders.
Neither we, the trustee,exchange.
We expect that the depositary or its nominee, upon receipt of any payment of principal, premium or interest, will credit immediately Participants’ accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the global security as shown on the records of the depositary or its nominee. We also expect that payments by Participants to owners of beneficial interests in a global security held through the Participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of the Participants.
If the depositary for a global security representing debt securities of a particular series are outstanding under the indenture, the Company will file with the trustee, within 30 days after the Company has filed the same with the SEC, unless such reports are available on the SEC’s EDGAR filing system (or any successor thereto), copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) which the Company may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is atnot required to file information, documents or reports pursuant to either of said Sections, then it shall file with the trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations.
Payment and Paying Agent
Unless we otherwise indicate in any applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.
We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicatebe set forth in the applicable prospectus supplement, we will make interest paymentsdocuments incorporated by check that we will mail to the holderreference or by wire transfer to certain holders. Unless we otherwise indicate infree writing prospectus relating thereto.
All money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing Law
The indentures and the debt securities will be governed by, and construed under, the law of the State of New York.
DESCRIPTION OF PREFERRED STOCK
As of the date of this prospectus, the Company has authorized 1,666,667 shares of preferred stock, par value $.0001 per share, none of which are outstanding. Under the Company's Restated Certificate of Incorporation, the Company's Board of Directors is authorized to issue shares of the Company's preferred stock from time to time, in one or more classes or series, without stockholder approval. Prior to the issuance of shares of each series, the Board of Directors is required by the General Corporation Law of the State of Delaware to adopt resolutions and file a Certificate of Designation with the Secretary of State of the State of Delaware, fixing for each such series the designations, powers, preferences, rights, qualifications, limitations and restrictions of the shares of such series. Any exercise of the Company's Board of Directors of its rights to do so may affect the rights and entitlements of the holders of the Company's common stock as set forth below.
The Company's Board of Directors could authorize the issuance of shares of preferred stock with terms and conditions which could have the effect of discouraging a takeover or other transaction which holders of some, or a majority, of such shares might believe to be in their best interests or in which holders of some, or a majority, of such shares might receive a premium for their shares over the then-market price of such shares.
General
Subject to limitations prescribed by the General Corporation Law of the State of Delaware, the Company's Restated Certificate of Incorporation and the Company's Amended and Restated Bylaws ("Bylaws"), the Company's Board of Directors is authorized to fix the number of shares constituting each series of preferred stock and the designations, powers, preferences, rights, qualifications, limitations and restrictions of the shares of such series, including such provisions as may be desired concerning voting, redemption, dividends, dissolution or the distribution of assets, conversion or exchange, and such other subjects or matters as may be fixed by resolution of the Board of Directors. Each series of preferred stock that the Company offers under this prospectus will, when issued, be fully paid and nonassessable and will not have, or be subject to, any preemptive or similar rights.
The applicable prospectus supplement(s) will describe the following terms of the series of preferred stock in respect of which this prospectus is being delivered:
Unless otherwise specified in the prospectus supplement, the preferred stock will, with respect to dividend rights and rights upon liquidation, dissolution or winding up of the Company rank:
As used for these purposes, the term "equity securities" does not include convertible debt securities.
Transfer Agent and Registrar
The transfer agent and registrar for any series of preferred stock will be set forth in the applicable prospectus supplement.
This descriptionsupplement, documents incorporated by reference or free writing prospectus relating thereto. Such terms will include the conversion price (or manner of calculation thereof), the conversion period, provisions as to whether conversion will be at the option of the Company's common stock isholders or the Company, the events requiring an adjustment of the conversion price and provisions affecting conversion in the event of redemption of such debt securities and any restrictions on conversion.
AsAssets” and any other additional covenants established pursuant to the terms of such series, and such omission shall be deemed not to be an event of default under clause (d) or (f) of the first paragraph of “— Events of Default” and (2) the occurrence of any event described in clause (f) of the first paragraph of “— Events of Default” shall not be deemed to be an event of default, in each case with respect to the outstanding debt securities of such series ((1) and (2) of this clause (ii), “covenant defeasance”); provided that the following conditions shall have been satisfied with respect to such series:
or other securities, cash or other property;
As a holder of the Company's common stock, you are entitled to one vote for each share of common stock and do not have any right to cumulate votes in the election of directors. Upon the Company's liquidation, dissolution or winding-up, youindenture will be entitled to receive on a proportionate basis any assets remaining after provision for payment of creditorsgoverned by and after payment of any liquidation preferences to holders of preferred stock. Holders of the Company's common stock have no preemptive rights and no conversion rights or other subscription rights. There are no redemption or sinking fund provisions applicable to the Company's common stock. All the outstanding shares of common stock are, and the shares offered by this prospectus, when issued and paid for, will be, validly issued, fully paid and nonassessable. The Company's common stock is quoted on The NASDAQ Global Market under the trading symbol "ANIP."
Anti-Takeover Provisions
As a corporation organized underconstrued in accordance with the laws of the State of Delaware,New York, except to the Company is subject to Section 203 of the General Corporation Law of the State of Delaware, which restricts the Company's ability to enter into business combinations with an interested stockholder or a stockholder owning 15% or more of the Company's outstanding voting stock, or that stockholder’s affiliates or associates, for a period of three years. These restrictions do not apply if:
Number of Directors; Removal
The Company's Bylaws provideextent that the Company's Board of Directors shall consist of at least one director and may consist of such larger number as may be determined, from time-to-time, by the Board of Directors. The Company's Bylaws provide that directors may be removed with or without cause by the affirmative vote of holders of a majority of the total voting power of all outstanding securities.
This provision and the Board of Directors’ right to issue shares of the Company's preferred stock from time to time, in one or more classes or series without stockholder approval are intended to enhance the likelihood of continuity and stability in the composition of the policies formulated by the Company's Board of Directors. These provisions are also intended to discourage some tactics that may be used in proxy fights.
Transfer Agent and Registrar
The Transfer Agent and Registrar for the Company's common stockTrust Indenture Act is Continental Stock Transfer & Trust Company.
As Any holder of warrants may, without the consent of any other person, enforce by appropriate legal action, on its own behalf, its right to exercise those warrants in accordance with their terms. Until the warrant is properly exercised, no holder of any warrant will be entitled to any rights of a holder of the datewarrant property purchasable upon exercise of this prospectus,the warrant.
Anwarrant agent’s office or any other office indicated in the applicable prospectus supplement, information incorporate by reference or free writing prospectus.
Exercise of Warrants
Each
Warrants may be redeemed as set forth in the applicable prospectus supplement, information incorporated by reference or free writing prospectus.
Governing Law
Unless we provide otherwise in an applicable prospectus supplement, the warrants and warrant agreements, and any claim, controversy or dispute arising under or related to the warrants or warrant agreements, will be governed by and construedset forth in accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrantrelevant offering material. The rights agent if any, will act solely as our agent underin connection with the applicable warrant agreementcertificates relating to the rights and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
We may issue rights to purchase shares of our common stock, preferred stock, or warrants in one or more series. Rights may be issued independently or together with any other offered security and may or may not be transferable by the person purchasing or receiving the subscription rights. In connection with any rights offering to our shareholders, we may enter into a standby underwriting arrangement with one or more underwriters pursuant to which the underwriters will purchase any of the offered securities remaining unsubscribed after the expiration of the rights offering. In connection with a rights offering to our shareholders, we will distribute certificates evidencing the rights and an applicable prospectus supplement to our shareholders on the record date that we set for receiving rights in the rights offering. An applicable prospectus supplement will describe the following termsholders of rights in respectcertificates or beneficial owners of which this prospectus is being delivered:
Each right will entitle the holder to purchase for cash the amount of securities, at the exercise price. Rights may be exercised at any time up to the close of business on the expiration date of the rights. After the close of business on the expiration date, all unexercised rights will become void. The manner in which rights may be exercised will be described in an applicable prospectus supplement. We may, but we will not be required to, permit the exercise of rights through the delivery of a notice of guaranteed delivery from a bank, a trust company, or a New York Stock Exchange member guaranteeing delivery of (1) payment of the exercise price for the securities for which the rights are being exercised, and (2) a properly completed and executed rights certificate. The notice of guaranteed delivery must be received by the rights agent before the expiration of the rights, and the rights agent will not honor a notice of guaranteed delivery unless a properly completed and executed rights certificate and full payment for the securities being purchased are received by the rights agent by the close of business on the third business day after the expiration time of the rights. Upon receipt of payment and the proper completion and due execution of the rights certificate at the designated office of the rights agent or any other office indicated in an applicable prospectus supplement, we or the transfer agent will forward, as soon as practicable, the securities purchased through upon the exercise of the rights. We may determine to offer any unsubscribed offered securities directly to persons other than shareholders, to or through agents, underwriters or dealers or through a combination of the methods, including pursuant to standby underwriting arrangements, as set forth in an applicable prospectus supplement.
The following description together with the additional information we may include in any applicable prospectus supplement, summarizes the material terms andis a summary of selected provisions of the unitsrelating to rights that we may offer under this prospectus. Whileoffer. The summary is not complete. When rights are offered in the terms we have summarized belowfuture, a prospectus supplement, information incorporated by reference or a free writing prospectus, as applicable, will apply generally to any units that we may offer under this prospectus, we will describeexplain the particular terms of any series of units in more detail in an applicable prospectus supplement.those securities and the extent to which these general provisions may apply. The specific terms of the rights as described in a prospectus supplement, information incorporated by reference, or other offering material will supplement and, if applicable, may modify or replace the general terms described in this section.
rights certificates. We will file each of these documents, as exhibitsapplicable, with the SEC and incorporate them by reference as an exhibit to the registration statement of which this prospectus is a part on or will incorporatebefore the time we issue a series of rights. See “Where You Can Find Additional Information” and “Incorporation of Certain Information by Reference” for information on how to obtain a copy of a document when it is filed.
General
We may issue units comprised of one or more debt securities, common stock, preferred stock warrants and/or other securities upon the exercise of the rights;
We
including whether and under what circumstances those securities may be held or transferred separately;
Issuance in Series
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agentmake with the SEC under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any defaultExchange Act, which are incorporated by us underreference.
Title
We,applicable prospectus supplement.
The financial statements, and management’s assessment of(2) express an unqualified opinion on the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this Prospectus by reference to the Company’s Annual Report on Form 10-K for the year ended December 31, 2016reporting. Such financial statements have been so incorporated by reference in reliance on the reports of EisnerAmper LLP, an independent registered public accountingsuch firm given on theupon their authority of said firm as experts in accounting and auditing.
If and when the securities being registered hereunder are issued, the validity of such issuance will be passed upon for the Company by Dentons US LLP, New York, New York.
The Company files annual, quarterly and periodic reports, proxy statements and other information with the SEC. You may read and copy any materials that the Company files with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Many of the Company's SEC filings are also available to the public from the SEC’s Website at "http://www.sec.gov." The Company makes available free of charge its
The Company maintains itsSEC’s website at http://www.anipharmaceuticals.com. The Company's website and the information contained therein or connected thereto are not incorporated into this Registration Statement.
The Company haswww.sec.gov.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows the Company to "incorporate by reference" the information the Company file swith them, which means that the Companywe can disclose important information to you by referring you to those documents.documents instead of having to repeat the information in this prospectus. The information incorporated by reference is considered to be part of this prospectus, and later information that the Company files laterwe file with the SEC will automatically update and supersede this information. The Company incorporatesWe incorporate by reference the documents filedlisted below and any future filings (including those made after the date of the initial filing of the registration statement of which this prospectus is a part and prior to the effectiveness of such registration statement) we will make with the SEC listed below:
In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14, andor 15(d) of the Securities Exchange Act until the termination of 1934, as amended, priorthe registration statement of which this prospectus is a part (other than, in each case, documents or information deemed to the filing of a post-effective amendment which indicates that all securities offered have been soldfurnished and not filed in accordance with SEC rules):
Any statement in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statementprospectus to the extent that a statement contained hereinin this prospectus, any applicable prospectus supplement and any related free writing prospectus or in any other subsequently filed document which also is incorporated or deemed to be 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 a part of this Registration Statement.
$350,000,000
|
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Distribution.
Amount | ||||
Securities and Exchange Commission registration fee | $ | 28,251 | (1) | |
Accounting fees and expenses | $ | 5,000 | ||
Legal fees and expenses | $ | 35,000 | ||
Miscellaneous fees and expenses | $ | 3,500 | ||
Total | $ | 71,751 |
registered hereby.
| | | Amount to be Paid | | |||
SEC registration fee | | | | $ | 40,565(1) | | |
FINRA filing fee | | | | | ** | | |
Accounting fees and expenses | | | | | ** | | |
Legal fees and expenses (including Blue Sky fees) | | | | | ** | | |
Printing fees | | | | | ** | | |
Listing fees | | | | | ** | | |
Transfer agent, trustee and warrant agent fees and expenses | | | | | ** | | |
Miscellaneous fees and expenses | | | | | ** | | |
Total | | | | $ | ** | | |
The Company shall bear all.
Article VIIOfficers.
Article VI of the Company's Restated Certificate of Incorporation provides
Article VIII of the Company's Bylaws provides that the Company shall indemnify any and all of its directors or officers, including former directors or officers, and any employee, who serve as an officer or director of any corporation at the request of the Company to the fullest extent permitted under and in accordance with the laws of the State of Delaware.
The Company has entered into agreements with all of its directors and officers under which the Company is required to indemnify them against expenses, judgments, penalties, fines, settlements and other amounts actually and reasonably incurred, including expenses of a derivative action, in connection with an actual or threatened proceedingour controlling persons, if any, of them may be made a party because he or she is or was one offor certain liabilities, including liabilities arising under the Company’s directors or officers. The Company will be obligated to pay these amounts only if the director or officer acted in good faith and in a manner that he or she reasonably believed to be in or not opposed to the best interests of the Company. With respect to any criminal proceeding, the Company will be obligated to pay these amounts only if the director or officer had no reasonable cause to believe his or her conduct was unlawful. The indemnification agreements also set forth procedures that will apply in the event of a claim for indemnification.
These provisions in the Company's Restated Certificate of Incorporation and Bylaws do not eliminate the officers’ and directors’ fiduciary duty, and in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, each officer and director will continue to be subject to liability for breach of their duty of loyalty to the Company for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for actions leading to improper personal benefit to the officer or director and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provisions also do not affect an officer’s or director’s responsibilities under any other law, such as the federal securities laws or state or federal environmental laws.
Exhibit Number | | | Exhibit | ||||
1.1* | | ||||||
| Form of Underwriting Agreement | ||||||
| | ||||||
Restated Certificate of Incorporation of the Registrant | | ||||||
| | ||||||
Amended and Restated Bylaws of the | | ||||||
| | ||||||
Specimen Common Stock Certificate | | ||||||
4.4* | | ||||||
| Form of | ||||||
4.5* | | ||||||
| Form of | ||||||
4.6* | | ||||||
| Form of | ||||||
4.7* | | ||||||
| Form of | | |||||
| Form of indenture | | |||||
4.9* | | ||||||
| Form of | ||||||
4.10* | | ||||||
| Form of | ||||||
| | Opinion of Orrick, Herrington & Sutcliffe LLP | | ||||
| |||||||
Consent of EisnerAmper LLP, independent registered public accounting firm | ||||
| | Consent of Orrick, Herrington & Sutcliffe LLP (included in Exhibit 5.1) | | |
| ||||
Powers of Attorney (included on signature page) | ||||
25.1** | | |||
| Form T-1 Statement of Eligibility of Trustee |
(a) Undertakings.
(A) paragraphs (1)(i), (1)(ii) and (1)(ii)(iii) above do not apply if the registration statement is on Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the CommissionSEC by the registrant pursuant to sectionSection 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(B) paragraphs (1)(i), (1)(ii) and (1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or sectionSection 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(b) The undersigned registrant hereby undertakes that,
(c) The undersigned registrant hereby undertakes to supplement
(d) Trust Indenture Act.
(e) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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.
(f) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act.
| | | | ANI PHARMACEUTICALS, INC. | ||||
| ||||||||
| | | | By: | | | /s/ | |
| | |||||||
| | | | Patrick D. Walsh Interim President | |
We, the undersigned officers
thereof.
| Name | | | Title | | | Date | ||
| |||||||||
| /s/ Patrick D. Walsh | | |||||||
Interim President and Chief Executive Officer and Director | |||||||||
(Principal Executive Officer) | | | July 9, 2020 | | |||||
| |||||||||
/s/ Stephen Stephen Carey | | ||||||||
Vice President, Finance and Chief Financial Officer (Principal Financial and Accounting Officer) | | | July 9, 2020 | | |||||
| |||||||||
/s/ Robert E. Brown Jr. | Robert | | |||||||
| Director | | | July 9, 2020 | | ||||
| |||||||||
/s/ Thomas Thomas Haughey | | Director | | July 9, 2020 | | ||||
| /s/ David B. Nash, M.D. David B. Nash, M.D. | | | Director | | ||||
| July 9, 2020 | ||||||||
|