As filed with the Securities
and Exchange Commission on December 23, 2016
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
_________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT
OF 1933
_________________
Lion Biotechnologies,
Inc.
(Exact name of registrant
as specified in its charter)
_________________
Nevada
(State or other jurisdiction
of
incorporation or organization)
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75-3254381
(I.R.S. Employer
Identification Number)
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999 Skyway Road, Suite
150
San Carlos, California
94070
(650) 260-7120
(Address, including
zip code, and telephone number, including area code, of registrant’s principal executive offices)
_________________
Maria Fardis, Ph.D.
President and Chief
Executive Officer
Lion Biotechnologies,
Inc.
999 Skyway Road, Suite
150
San Carlos, California
94070
(650) 260-7120
(Name, address, including
zip code, and telephone number, including area code, of agent for service)
_________________
With copies to:
Istvan Benko
TroyGould PC
1801 Century Park East,
16th Floor
Los Angeles, California
90067
(310) 789-1226
_________________
Approximate date of commencement of proposed
sale to the public:
From time to time after the effective date of this registration statement.
If the only securities being registered on
this Form are being offered pursuant to dividend or interest reinvestment plans, check the following box.
¨
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest reinvestment plans, check the following box.
x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.
¨
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following 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.
¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions
of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2
of the Exchange Act. (Check one):
Large accelerated filer
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¨
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Accelerated filer
x
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Non-accelerated filer
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¨
(Do not check if a smaller reporting company)
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Smaller reporting company
¨
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_________________
CALCULATION OF REGISTRATION
FEE
Title of each class of
securities to be registered
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Amount
to be
registered (1)(2)
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Proposed
maximum
offering price
per unit (1)(2)
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Proposed
maximum
aggregate
offering price (2)
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Amount of
registration fee
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Common Stock, $0.000041666 par value (3)
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—
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Preferred Stock, $0.001 par value (3)
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—
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Debt Securities (3)
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—
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Warrants
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—
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Units
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—
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Total
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$
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100,000,000
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$
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11,590
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(2)
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(1)
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Such indeterminate number of each identified class of securities as may from time to time be determined by the registrant and
issued at prices determined by the registrant, with an aggregate offering price not to exceed $100,000,000. Securities registered
hereunder may be sold separately, together with other securities registered hereunder or as units with other securities registered
hereunder.
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(2)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933.
Pursuant to Rule 457(o) and General Instruction II.D of Form S-3, which permits the registration fee to be calculated on the basis
of the maximum offering price of all the securities listed for the primary offering, the table does not specify by each class information
as to the amount to be registered or proposed maximum offering price per security.
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(3)
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Subject to footnote (1), there are also being registered hereunder an indeterminate principal amount or number of shares of
common stock, preferred stock or debt securities that may be issued upon conversion of, or in exchange for, preferred stock or
debt securities registered hereunder or upon exercise of warrants registered hereunder, as the case may be.
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_________________
The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment
which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may determine.
The information in this
prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with Securities
and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting an offer
to buy these securities, in any jurisdiction where the offer or sale is not permitted.
Subject
to Completion, Dated December 23, 2016
PROSPECTUS
$100,000,000
Lion
Biotechnologies, Inc.
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
_________________
We may offer and sell from time to time,
in one or more offerings and on terms that we will determine at the time of each offering, shares of common stock, shares of preferred
stock, debt securities and/or warrants, either separately, together with other securities covered by this prospectus or as units
consisting of two or more of the securities covered by this prospectus. The debt securities, preferred stock and warrants may be
convertible into or exercisable or exchangeable for common stock, preferred stock or debt securities. The aggregate offering price
of all securities sold under this prospectus will not exceed $100,000,000.
We will provide the specific terms of each
offering of securities, including the price and the type and amount of securities to be offered and sold, in a supplement to this
prospectus. You should read this prospectus and the prospectus supplement carefully before you invest.
We may offer and sell these securities directly
to purchasers or to or through one or more underwriters, dealers and agents, and on a continuous or delayed basis. If we sell securities
to or through underwriters, dealers or agents, we will include their names and the fees, commissions and discounts that they will
receive, as well as the net proceeds to us, in the prospectus supplement. This prospectus may not be used to sell our securities
unless it is accompanied by the prospectus supplement. The delivery of this prospectus together with a prospectus supplement relating
to the offered securities shall not constitute an offer of any other securities covered by this prospectus.
Investing in our securities involves
a high degree of risk. See “Risk Factors” on page 4 of this prospectus and in the applicable prospectus supplement
for a discussion of risks that you should consider before you invest in our securities.
Our common stock is traded on The NASDAQ
Global Market under the symbol “LBIO.” On December 22, 2016, the last reported sale price of our common stock on The
NASDAQ Global Market was $7.00 per share.
_________________
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy
of this prospectus. Any representation to the contrary is a criminal offense.
The date of this
prospectus is , 2016.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration
statement on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC”) utilizing a “shelf”
registration process. Under the shelf registration process, we may sell any combination of the securities described in this prospectus
in one or more transactions up to a total dollar amount of $100,000,000.
The rules and regulations of the SEC allow
us to omit from this prospectus certain information that is included in the registration statement. For further information about
us and our securities, you should review the registration statement and the exhibits filed with the registration statement. In
addition, the SEC allows us to incorporate by reference into this prospectus information in the reports and other documents that
we file with the SEC, which means that we can disclose important information to you by referring you to those reports and other
documents. The information incorporated by reference is considered to be part of this prospectus, and information that we later
file with the SEC will automatically update and, where applicable, modify or supersede that information. You may read the registration
statement (including its exhibits) and the reports and other documents that we file with the SEC at the SEC’s website,
www.sec.gov
,
or at the SEC’s Public Reference Room described below under the heading “Where You Can Find More Information.”
This prospectus provides you with a general
description of the securities we may offer. Each time we offer securities under this shelf registration, we will provide a prospectus
supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update
or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together
with the additional information described under the heading “Incorporation of Certain Information by Reference.” To
the extent that any information in the prospectus supplement is inconsistent with the information in this prospectus, the information
in the prospectus supplement will modify or supersede this prospectus.
This prospectus and the applicable prospectus
supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities
to which they relate, nor do this prospectus and the applicable prospectus supplement constitute an offer to sell or the solicitation
of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such
jurisdiction.
You should not assume that the information
contained in this prospectus and the applicable prospectus supplement is accurate as of any date subsequent to the date set forth
on the front of the document or that any information we have incorporated by reference is correct as of any date subsequent to
the date of the document incorporated by reference, even though this prospectus and any applicable prospectus supplement is delivered
or securities are sold on a later date. Our business, financial condition, results of operations and prospects may have changed
since those dates.
You should rely only on the information
contained in this prospectus, in the applicable prospectus supplement and in any documents incorporated by reference into this
prospectus and the applicable prospectus supplement. We have not authorized any salesperson, dealer or other person to provide
you with information different from that contained in this prospectus, in the applicable prospectus supplement or in any documents
incorporated by reference into this prospectus or the applicable prospectus supplement, and you are not entitled to rely upon any
such different information.
Throughout this prospectus, the terms “Lion,”
“we,” “us,” “our,” and “our company” refer to Lion Biotechnologies, Inc., a Nevada
corporation.
LION BIOTECHNOLOGIES,
INC.
Overview
We are a clinical-stage biotechnology
company focused on the development and commercialization of novel cancer immunotherapy products designed to harness the power of
a patient’s own immune system to eradicate cancer cells. Our lead program is an adoptive cell therapy utilizing tumor-infiltrating
lymphocytes (“TIL”), which are T cells derived from patients’ tumors, for the treatment of metastatic melanoma.
We are also pursuing the development of TIL for other solid tumor cancer indications. In February 2016, we announced that the U.S.
Food and Drug Administration (the “FDA”) allowed our Investigational New Drug application to conduct clinical studies
using our TIL therapy in cervical and head and neck cancers.
A patient’s immune system,
particularly his or her TIL, plays an important role in identifying and killing cancer cells. TIL consist of a heterogeneous population
of T cells that can recognize a wide variety of cancer-specific mutations and can overcome tumor escape mechanisms. TIL therapy
involves growing a patient’s TIL in special culture conditions outside the patient’s body, or ex vivo, and then infusing
the T cells back into the patient in combination with interleukin-2 (“IL-2”). By taking TIL away from the immune-suppressive
tumor microenvironment in the patient and provided a suitable condition for growth, the T cells can rapidly proliferate. Billions
of TIL, when infused back into the patient, are better able to search out and potentially eradicate the tumor.
During the second half of 2015,
we opened enrollment in a Phase 2 clinical trial of our lead product candidate, LN-144, for the treatment of refractory metastatic
melanoma (“LN-144”). This single-arm study is for patients with metastatic melanoma whose disease has progressed following
treatment with at least one systemic therapy. The purpose of the study is to evaluate the safety and efficacy of our autologous
TIL product candidate.
In an online article published in
May 2016 from the Journal of Clinical Oncology, data were presented from 101 metastatic melanoma patients treated with TIL therapy
in a Phase 2 clinical trial conducted at the National Cancer Institute (the “NCI”) by Dr. Steven Rosenberg, M.D., Ph.D.,
and colleagues. In the trial, patients with metastatic melanoma were equally divided into two groups. Both groups were treated
according to a standard TIL protocol using a lympho-depleting preparative regimen prior to an intravenous infusion of TIL, followed
by high-dose IL-2 given intravenously to physiologic tolerance after the TIL was infused. The second group also received total
body irradiation. 56% of all patients treated with TIL therapy achieved an objective response. An objective response occurs when
there is a complete remission or a partial remission of the tumor. A complete remission requires a complete disappearance of all
detectable evidence of disease, and a partial remission typically requires at least approximately 30% reduction in the sum of the
longest diameter of target lesions of measurable disease without new sites of disease. The publication reported that, of the 101
patients, 24 (24%) had experienced a complete remission (“CR”). With a median potential follow up time of 40.9 months,
only one of the patients who had achieved a CR had a recurrence of the melanoma. Overall survival (OS) was 51% at 3 years. Toxicities
from treatment were primarily associated with the known adverse effects of non-myeloablative chemotherapy and administration of
high-dose IL-2.
In further support of our internal
research and clinical development activities, we have a Cooperative Research and Development Agreement (a “CRADA”)
with the U.S. Department of Health and Human Services, as represented by the NCI, through which we are funding the research and
development of TIL-based product candidates for the treatment of advanced solid tumors. Pursuant to the CRADA, we fund TIL research
and clinical trials that are being conducted by Dr. Steven Rosenberg. The CRADA had an initial term of five years and expired in
August 2016. However, we have amended the CRADA to extend the term for an additional five years to August 2021 and to change certain
of the goals under the CRADA. Under the amended CRADA, the goals of the CRADA have been changed to focus on the development of
TIL as a stand-alone therapy or in combination with FDA-licensed products and commercially available reagents routinely used for
adoptive cell therapy. The parties to the CRADA will continue the development of improved methods for the generation and selection
of TIL with anti-tumor reactivity in metastatic melanoma, bladder cancer, lung cancer, breast cancer and HPV-associated cancers.
We have a worldwide, exclusive
patent license from the National Institutes of Health (the “NIH”) for intellectual property to develop, manufacture
and commercialize TIL therapy for the treatment of melanoma, which was amended in 2015 to include the exclusive license of this
intellectual property for the treatment of lung cancer, HPV-associated cancers, breast cancer, and bladder cancer. We also have
an exclusive license from the NIH for intellectual property relating to a TIL-based therapy for use in melanoma in which TIL that
express various inhibitory receptors.
During 2015, we received orphan
drug designation for LN-144 in the United States to treat metastatic melanoma. This designation provides seven years of market
exclusivity in the United States, subject to certain limited exceptions. However, the orphan drug designation does not convey any
advantage in, or shorten the duration of, the regulatory review or approval process.
We are pursuing refractory metastatic
melanoma as our first target indication because of the promising initial NCI results and the commercial opportunity inherent in
the significant unmet need of this patient population. Melanoma is a common type of skin cancer, accounting for approximately 76,380
patients diagnosed and 10,130 deaths each year in the United States according to the American Cancer Society’s Cancer Estimated
2016 Facts and Figures. According to the NCI’s Surveillance, Epidemiology and End Results program, about 4-7% of patients
with melanoma have metastatic disease. Patients with relapsed/refractory metastatic melanoma following treatment under the current
standards of care have a particularly dire prognosis with very few curative treatment options.
On September 14, 2016, we entered
into an Exclusive and Co-Exclusive License Agreement with PolyBioCept AB, a corporation organized under the laws of Sweden, for
the exclusive right and license to PolyBioCept’s intellectual property to develop, manufacture, market and genetically engineer
TIL produced by expansion, selection and enrichment using a cytokine cocktail. PolyBioCept has filed two patent applications with
claims related to a cytokine cocktail for use in expansion of lymphocytes. The licenses are for the use in all cancers and are
worldwide in scope, with the exception that the uses in melanoma are not included for certain countries of the former Soviet Union.
In connection with the PolyBioCept license agreement, we also entered into (1) a clinical trials agreement with the Karolinska
University Hospital to conduct clinical trials in glioblastoma and pancreatic cancer at the Karolinska University Hospital and
(2) a sponsored research agreement with the Karolinska Institute for the research of the cytokine cocktail in additional indications.
In addition to the research and
development being conducted under the CRADA, in 2014 we established our own internal research and development capabilities in Tampa,
Florida, near the H. Lee Moffitt Cancer & Research Institute on the campus of the University of South Florida, to optimize
the process of manufacturing TIL, explore the next-generation of TIL technology and new product candidates, as well as to generate
new intellectual property.
Company History
We filed our original Articles of Incorporation
with the Secretary of State of Nevada on September 17, 2007. Until March 2010, we were known as Freight Management Corp. On March
15, 2010 we changed our name to Genesis Biopharma, Inc., and in 2011 we commenced our current business. On September 26, 2013,
we amended and restated our Articles of Incorporation to, among other things, change our name to Lion Biotechnologies, Inc., effect
a 1-for-100 reverse stock split (a pro-rata reduction of outstanding shares) of our common stock, increase (after the reverse stock
split) the number of our authorized number of shares of common stock to 150,000,000 shares, and authorize the issuance of 50,000,000
shares of “blank check” preferred stock, $0.001 par value per share.
Our principal executive offices are located
at 999 Skyway Road, Suite 150, San Carlos, California 94070, and our telephone number at that address is (650) 260-7120. Our website
is located at
www.lionbio.com
. Information on our website is not, and should not be considered, part of this prospectus.
RISK FACTORS
Investment in any securities offered pursuant
to this prospectus and the applicable prospectus supplement involves a high degree of risk. Prior to making a decision about investing
in our securities, you should carefully consider the risk factors described in our most recent Annual Report on Form 10-K
and Quarterly Report on Form 10-Q and in any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K
that we file with the SEC after the date of this prospectus, all of which are incorporated by reference into this prospectus. You
should also carefully review all other information contained in or incorporated by reference into this prospectus and the applicable
prospectus supplement, including the information contained below under the heading “Cautionary Note Regarding Forward-Looking
Statements,” as updated by our subsequent filings under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated
herein by reference contain forward-looking statements, and we anticipate that the applicable prospectus supplement will contain
forward-looking statements. These statements relate to future events or to our future financial performance and involve known and
unknown risks, uncertainties and other factors that may cause our actual results to be materially different from any future results
expressed or implied by the forward-looking statements. In some cases, you can identify forward-looking statements by the use of
words such as “believe,” “anticipate,” “intend,” “plan,” “estimate,”
“may,” “could,” “anticipate,” “predict,” or “expect” and similar expressions.
You should not place undue reliance on forward-looking statements since they involve known and unknown risks, uncertainties and
other factors that are, in many cases, beyond our control. Forward-looking statements are not guarantees of future performance.
Actual events or results may differ materially from those discussed in the forward-looking statements as a result of various factors.
Except as required by applicable law, we do not undertake any obligation to publicly update any forward-looking statements, whether
as a result of new information, future developments or otherwise.
Important factors that could cause actual
results to differ materially from those reflected in our forward-looking statements include, among others:
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our inability to obtain regulatory approval for, or successfully commercialize, our leading product candidate, LN-144, or our
other product candidates;
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difficultly in enrolling patients in our clinical trials and uncertainty of clinical trial results;
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our history of operating losses and inability to become profitable;
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uncertainty and volatility in the price of our common stock;
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the costs and effects of existing and potential governmental investigations and litigation;
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our inability to meet the continued listing requirements of The NASDAQ Global Market;
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our inability to implement and maintain appropriate internal controls;
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uncertainty as to our employees’ and independent contractors' compliance with regulatory standards and requirements and
securities insider trading rules;
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dependence on the efforts of third parties to conduct and oversee our clinical trials for our product candidates, to manufacture
clinical supplies of our product candidates and to commercialize our product candidates;
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the effect of government regulations on our business;
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a loss of any of our key management personnel;
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our inability to secure and maintain relationships with collaborators and contract manufacturers;
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our inability to develop or commercialize our product candidates due to intellectual property rights held by third parties
and our inability to protect the confidentiality of our trade secrets; and
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our potential inability to access capital required to fund proposed operations.
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All written and verbal forward-looking statements
attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained
or referred to in this section. We caution investors not to rely too heavily on the forward-looking statements we make or that
are made on our behalf.
In addition, you should refer to the section
of this prospectus entitled "Risk Factors" as well as the documents we have incorporated by reference for a discussion
of other important factors that may cause our actual results to differ materially from those expressed or implied by our forward-looking
statements. As a result of these factors, we cannot assure you that the forward-looking statements will prove to be accurate. Furthermore,
if our forward-looking statements prove to be inaccurate, the inaccuracy may be material. In light of the significant uncertainties
in these forward-looking statements, you should not regard these statements as a representation or warranty by us or any other
person that we will achieve our objectives and plans in any specified time frame, or at all.
We may discuss certain of these risks and
uncertainties in greater detail in any prospectus supplement under the heading “Risk Factors.” Additional cautionary
statements or discussions of risks and uncertainties that could affect our results or the achievement of the expectations described
in forward-looking statements may also be contained in the documents we incorporate by reference into this prospectus, including
our most recent Annual Report on Form 10-K filed with the SEC and our Quarterly Reports on Form 10-Q filed subsequently with the
SEC.
RATIO OF EARNINGS
TO FIXED CHARGES AND PREFERENCE DIVIDENDS
The following table sets forth our ratio
of earnings, if any, to fixed charges for each of the periods presented:
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Year Ended December 31,
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Nine Months
Ended
September 30,
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2015
(1)
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2014
(1)
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2013
(1)
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2012
(1)
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2011
(1)
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2016
(1)
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Ratio of earnings to fixed charges
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N/A
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N/A
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N/A
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N/A
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N/A
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N/A
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_______________
(1)
For these periods, earnings were inadequate to cover fixed charges
and our combined fixed charges and preferred stock dividends
in those periods
. The amount of the coverage deficiencies
were $27,660,000, $12,035,000, $25,382,000, $3,308,000, and $25,694,000 for the years ended December 31, 2015, 2014, 2013, 2012
and 2011 and $37,206,000 for the nine months ended September 30, 2016, respectively.
We did not pay or accrue any preference
dividends for any of the periods presented above.
USE OF PROCEEDS
Unless we state otherwise in the applicable
prospectus supplement, we intend to use the net proceeds from the sale of securities described in this prospectus for the further
development of our product candidates and for general corporate purposes, which may include, among other things, reducing indebtedness,
acquiring other companies (although we currently have no agreement to acquire any other company), purchasing other assets or lines
of business, repurchasing our common stock and making capital expenditures, as well as for working capital. Until we use the net
proceeds for these purposes, we intend to invest the net proceeds in investment-grade, interest-bearing securities. We have not
determined the amounts we plan to spend on any of these areas or the timing of these expenditures. As a result, our management
will have broad discretion regarding the application of the net proceeds from the sale of securities described in this prospectus.
THE SECURITIES THAT
WE MAY OFFER
We, directly or through underwriters, dealers
or agents designated by us from time to time, may offer, issue and sell, together or separately, up to $100,000,000 in the aggregate
of:
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shares of our common stock, par value $0.000041666 per share;
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shares of our preferred stock, par value $0.001 per share;
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warrants to purchase shares of our common stock, shares of our preferred stock and/or our debt securities; and
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units consisting of two or more of the securities described above.
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The common stock, the preferred stock, the
debt securities, the warrants and the units collectively are referred to in this prospectus as the “securities.”
We have summarized below the material terms
of the various types of securities that we may offer. We will describe in the applicable prospectus supplement the detailed terms
of the securities offered by that supplement. If indicated in the prospectus supplement, the terms of the offered securities may
differ from the terms summarized below.
This prospectus may not be used to
sell our securities unless it is accompanied by the applicable prospectus supplement.
DESCRIPTION OF CAPITAL
STOCK
The following is a summary of the material
characteristics of our capital stock as set forth in our amended and restated articles of incorporation and bylaws, as amended
and restated. Copies of these documents are filed or incorporated by reference as exhibits to the registration statement, of which
this prospectus forms a part.
DESCRIPTION OF COMMON
STOCK
We are presently authorized to issue 150,000,000
shares of $0.000041666 par value common stock. As of December 22, 2016, we had 62,201,074 shares of common stock issued and outstanding,
and we had outstanding options and warrants to purchase an additional 12,799,366 shares of our common stock. We also have outstanding
550,000 unvested restricted stock units.
We have one class of common stock. Holders
of our common stock are entitled to one vote per share on all matters to be voted upon by stockholders and do not have cumulative
voting rights in the election of directors. Holders of shares of common stock are entitled to receive on a pro rata basis such
dividends, if any, as may be declared from time to time by our board of directors in its discretion from funds legally available
for that use, subject to any preferential dividend rights of outstanding preferred stock. They are also entitled to share on a
pro rata basis in any distribution to our common stockholders upon our liquidation, dissolution or winding up, subject to the prior
rights of any outstanding preferred stock. Common stockholders do not have preemptive rights to subscribe to any additional stock
issuances by us, and they do not have the right to require the redemption of their shares or the conversion of their shares into
any other class of our stock. The rights, preferences and privileges of holders of common stock are subject to, and may be adversely
affected by, the rights of the holders of any series of preferred stock that may, from time to time, be outstanding.
The following provisions of our articles
of incorporation and bylaws could have the effect of delaying or discouraging another party from acquiring control of us and could
encourage persons seeking to acquire control of us to first negotiate with our board of directors:
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our bylaws permit stockholders to call a special meeting of stockholders only if the holders of a majority of the voting power
of our outstanding stock request such a meeting;
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our bylaws provide that our board of directors will establish the authorized number of directors from time to time;
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our articles of incorporation do not permit cumulative voting in the election of directors; and
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our articles of incorporation permit our board of directors to determine the rights, privileges and preferences of any new
series of preferred stock, some of which could impede the ability of a person to acquire control of our company.
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The transfer agent and registrar of our
common stock is Continental Stock Transfer and Trust Company, 7 Battery Place, 8th Floor New York, New York 10004.
Our common stock is traded on The NASDAQ
Global Market under the symbol “LBIO.”
DESCRIPTION OF PREFERRED
STOCK
We have authority to issue 50,000,000 shares
of preferred stock, par value $0.001 per share. As of December 22, 2016, we had issued and outstanding 1,694 shares of Series A
Convertible Preferred Stock (the “Series A Preferred”) that are convertible into 847,000 shares of common stock, and
7,946,673
shares of Series B Preferred (the “Series B Preferred”).
There are no other series of shares of our preferred stock currently issued or outstanding. The rights and restrictions granted
or imposed on the shares of the Series A Preferred and Series B Preferred are described below.
Under our articles of incorporation, our
board of directors has the authority, without further action by stockholders, to designate one or more series of preferred stock
and to fix the voting powers, designations, preferences, limitations, restrictions and relative rights granted to or imposed upon
the preferred stock, including dividend rights, conversion rights, voting rights, rights and terms of redemption, liquidation preference
and sinking fund terms, any or all of which may be preferential to or greater than the rights of the common stock.
Our board of directors may authorize the
issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the
holders of the common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions
and other corporate purposes, could, among other things, have the effect of delaying, deferring or preventing a change in our control
and may adversely affect the market price of the common stock and the voting and other rights of the holders of common stock.
We will describe in a prospectus supplement
relating to any series of preferred stock being offered the following terms:
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the distinguishing designation of the series of preferred stock;
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the number of shares of the series of preferred stock offered, the liquidation preference per share and the offering price
of the series;
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the dividend rate(s), period(s) or payment date(s) or method(s) of calculation applicable to the series of preferred stock;
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whether dividends are cumulative or non-cumulative and, if cumulative, the date from which dividends on the series of preferred
stock will accumulate;
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the procedures for any auction and remarketing, if any, for the series of preferred stock;
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the provisions for a sinking fund, if any, for the series of preferred stock;
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the provision for redemption, if applicable, of the series of preferred stock;
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any listing of the series of preferred stock on any securities exchange;
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the terms and conditions, if applicable, upon which the series of preferred stock will be convertible into common stock, including
the conversion price or manner of calculation and conversion period;
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voting rights, if any, of the series of preferred stock;
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a discussion of any material or special U.S. federal income tax considerations applicable to the series of preferred stock;
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the relative ranking and preferences of the series of preferred stock as to dividend rights and rights upon the liquidation,
dissolution or winding up of our affairs;
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any limitations on issuance of any series of preferred stock ranking senior to or on a parity with the series of preferred
stock being offered as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs; and
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any other specific terms, preferences, rights, limitations or restrictions of the series of preferred stock.
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Unless we specify otherwise in the applicable
prospectus supplement, the preferred stock will rank, relating to dividends and upon our liquidation, dissolution or winding up:
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senior to all classes or series of our common stock and to all of our equity securities ranking junior to the preferred stock;
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on a parity with all of our equity securities the terms of which specifically provide that the equity securities rank on a
parity with the preferred stock; and
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junior to all of our equity securities the terms of which specifically provide that the equity securities rank senior to the
preferred stock.
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Series A Preferred
In October 2013, we created a new class
of preferred stock designated as Series A Convertible Preferred Stock. The shares of Series A Preferred have a stated value of
$1,000 per share and are initially convertible into shares of common stock at a price of $2.00 per share (subject to adjustment
as described below). The rights of the Series A Preferred are set forth in the Certificate of Designation Of Preferences And Rights
Of Series A Convertible Preferred Stock (the “Series A Certificate of Designation”), which gives the holders of the
Series A Preferred the following rights, preferences and privileges:
The Series A Preferred may, at the option
of the holder, be converted at any time or from time to time into fully paid and non-assessable shares of common stock at the conversion
price in effect at the time of conversion; provided, that a holder of Series A Preferred may at any given time convert only up
to that number of shares of Series A Preferred so that, upon conversion, the aggregate beneficial ownership of the common stock
(calculated pursuant to Rule 13d-3 of the Exchange Act) of such holder and all persons affiliated with such holder, is not more
than 4.99% of the common stock then outstanding (subject to adjustment up to 9.99% solely at the holder’s discretion upon
60 days’ prior notice). The number of shares into which one share of Series A Preferred shall be convertible is determined
by dividing the stated value of $1,000 per share by the initial Conversion Price. The "Conversion Price" per share for
the Series A Preferred is initially equal to $2.00 (subject to appropriate adjustment for certain events, including stock splits,
stock dividends, combinations, recapitalizations or other recapitalizations affecting the Series A Preferred).
The Series A Preferred will automatically
be converted into common stock at the then-applicable Conversion Price (1) upon the written consent of the holders holding at least
a majority of the outstanding shares of Series A Preferred or (2) if required by us to be able to list our common stock on a national
securities exchange; provided, any such conversions will continue to be limited by, and subject to the beneficial ownership conversion
limitations set forth above.
Except as otherwise required by law, the
holders of shares of Series A Preferred do not have the right to vote on matters that come before the stockholders; provided, that
we may not, without the prior written consent of a majority of the outstanding Series A Preferred: (1) amend, alter, or repeal
any provision of our Articles of Incorporation (including the Series A Certificate of Designation) or Bylaws in a manner adverse
to the Series A Preferred; (2) create or authorize the creation of or issue any other security convertible into or exercisable
for any equity security, having rights, preferences or privileges senior to or on parity with the Series A Preferred, or increase
the authorized number of shares of Series A Preferred; or (3) enter into any agreement with respect to any of the foregoing.
In the event of any dissolution or winding
up of our company, whether voluntary or involuntary, the proceeds would be paid
pari passu
among the holders of shares of
our common stock, Series A Preferred and Series B Preferred, pro rata based on the number of shares held by each such holder,
treating for this purpose all such securities as if they had been converted to common stock.
We may not declare, pay or set aside any
dividends on shares of any class or series of our capital stock (other than dividends on shares of common stock payable in shares
of common stock) unless the holders of the Series A Preferred shall first receive, or simultaneously receive, an equal dividend
on each outstanding share of Series A Preferred.
Series B Preferred
In June 2016 we created a new class of Preferred
Stock designated as “Series B Preferred Stock.” The rights of the Series B Preferred are set forth in the Certificate
of Designation of Preferences and Rights of Series B Preferred Stock (the “Series B Certificate of Designation”).
A total of 11,500,000 shares of Series B Preferred are authorized for issuance under Series B Certificate of Designation.
The shares of Series B Preferred have a stated value of $4.75 per share and are convertible into shares of our common stock at
a conversion price of $4.75 per share.
Holders of Series B Preferred are entitled
to dividends on an as-if-converted basis in the same form as any dividends actually paid on shares of our Series A Preferred or
other securities. So long as any Series B Preferred remains outstanding, we may not redeem, purchase or otherwise acquire any material
amount of our Series A Preferred or other securities.
The shares of Series B Preferred are convertible,
at the option of each holder, at any time or from time to time into shares of our common stock at the conversion price in effect
at the time of conversion, except that, subject to certain limited exceptions, no holder of Series B Preferred may convert the
Series B Preferred if, after giving effect to the conversion, the holder and all affiliated persons would own beneficially more
than 4.99% of our common stock (subject to adjustment to up to 9.99% solely at the holder’s discretion upon 61 days’
prior notice to us). The conversion price of $4.75 is subject to appropriate adjustment in the event of a stock split, stock dividend,
combination or other recapitalization affecting our common stock.
Holders of a majority of the outstanding
shares of Series B Preferred are entitled to elect to convert all of the outstanding shares of the Series B Preferred into shares
of common stock, subject to the beneficial ownership limitations of each holder set forth above.
Except as otherwise required by law, the
holders of Series B Preferred have no right to vote on matters submitted to a vote of our stockholders. Without the prior written
consent of a majority of the outstanding shares of Series B Preferred, however, we may not: (i) amend our articles of incorporation
(including the Series B Certificate of Designation) in a manner adverse to the Series B Preferred; (ii) create or authorize the
creation of any other security convertible into or exercisable for any equity security ranking as to dividends, redemption or distribution
of assets upon a liquidation senior to, the Series B Preferred, or increase the authorized number of shares of Series B Preferred;
or (iii) enter into any agreement with respect to any of the foregoing.
In the event of the dissolution and winding
up of our company, the proceeds available for distribution to our stockholders would be paid
pari passu
among the holders
of shares of our common stock, Series A Preferred and Series B Preferred, pro rata based upon the number of shares held by each
such holder, treating for this purpose all such securities as if they had been converted into our common stock.
DESCRIPTION OF DEBT
SECURITIES
The following is a general description of
the terms of debt securities we may issue from time to time unless we provide otherwise in the applicable prospectus supplement.
Particular terms of any debt securities we offer will be described in the prospectus supplement relating to such debt securities.
As required by Federal law for all bonds
and notes of companies that are publicly offered, any debt securities we issue will be governed by a document called an “indenture,”
the form of which is filed as an exhibit to the registration statement of which this prospectus forms a part. We have summarized
the general features of the debt securities to be governed by the indenture. The summary is not complete. An indenture is a contract
between us and a financial institution acting as trustee on behalf of the holders of the debt securities, and is subject to and
governed by the Trust Indenture Act of 1939, as amended. The trustee has two main roles. First, the trustee can enforce holders’
rights against us if we default. There are some limitations on the extent to which the trustee acts on holders’ behalf, described
in the second paragraph under “Description of Debt Securities—Events of Default.” Second, the trustee performs
certain administrative duties, such as sending interest and principal payments to holders.
Because this section is a summary, it does
not describe every aspect of any debt securities we may issue or the indenture governing any such debt securities. Particular terms
of any debt securities we offer will be described in the prospectus supplement relating to such debt securities, and we urge you
to read the applicable executed indenture, which will be filed with the SEC at the time of any offering of debt securities, because
it, and not this description, will define the rights of holders of such debt securities.
A prospectus supplement will describe the
particular terms of any series of debt securities we may issue, including some or all of the following:
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the designation or title of the series of debt securities;
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the total principal amount of the series of debt securities, the denominations in which the offered debt securities will be
issued and whether the offering may be reopened for additional securities of that series and on what terms;
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the percentage of the principal amount at which the series of debt securities will be offered;
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the date or dates on which principal will be payable;
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the rate or rates (which may be either fixed or variable) and/or the method of determining such rate or rates of interest,
if any;
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the date or dates from which any interest will accrue, or the method of determining such date or dates, and the date or dates
on which any interest will be payable;
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the terms for redemption, extension or early repayment, if any;
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the currencies in which the series of debt securities are issued and payable;
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whether the amount of payments of principal, interest or premium, if any, on a series of debt securities will be determined
with reference to an index, formula or other method and how these amounts will be determined;
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the place or places of payment, transfer, conversion and/or exchange of the debt securities;
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the provision for any sinking fund;
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any restrictive covenants;
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whether the series of debt securities are issuable in certificated form;
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any provisions for legal defeasance or covenant defeasance;
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whether and under what circumstances we will pay additional amounts in respect of any tax, assessment or governmental charge
and, if so, whether we will have the option to redeem the debt securities rather than pay the additional amounts (and the terms
of this option);
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any provisions for convertibility or exchangeability of the debt securities into or for any other securities;
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whether the debt securities are subject to subordination and the terms of such subordination;
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any listing of the debt securities on any securities exchange;
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if applicable, a discussion of certain U.S. Federal income tax considerations, including those related to original issue discount,
if applicable; and
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any other material terms.
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The debt securities may be secured or unsecured
obligations. Unless the prospectus supplement states otherwise, principal, interest and premium, if any, will be paid by us in
immediately available funds.
General
The indenture may provide that any debt
securities proposed to be sold under this prospectus and the applicable prospectus supplement relating to such debt securities
(“offered debt securities”) and any debt securities issuable upon conversion or exchange of other offered securities
(“underlying debt securities”) may be issued under the indenture in one or more series.
For purposes of this prospectus, any reference
to the payment of principal of, or interest or premium, if any, on, debt securities will include additional amounts if required
by the terms of the debt securities.
Debt securities issued under an indenture,
when a single trustee is acting for all debt securities issued under the indenture, are called the “indenture securities.”
The indenture may also provide that there may be more than one trustee thereunder, each with respect to one or more different series
of securities issued thereunder. See “Description of Debt Securities—Resignation of Trustee” below. At a time
when two or more trustees are acting under an indenture, each with respect to only certain series, the term “indenture securities”
means the one or more series of debt securities with respect to which each respective trustee is acting. In the event that there
is more than one trustee under an indenture, the powers and trust obligations of each trustee described in this prospectus will
extend only to the one or more series of indenture securities for which it is trustee. If two or more trustees are acting under
an indenture, then the indenture securities for which each trustee is acting would be treated as if issued under separate indentures.
We refer you to the applicable prospectus
supplement relating to any debt securities we may issue from time to time for information with respect to any deletions from, modifications
of or additions to the Events of Default or covenants that are described below, including any addition of a covenant or other provision
providing event risk or similar protection, that will be applicable with respect to such debt securities.
We have the ability to issue indenture securities
with terms different from those of indenture securities previously issued and, without the consent of the holders thereof, to reopen
a previous issue of a series of indenture securities and issue additional indenture securities of that series unless the reopening
was restricted when that series was created.
Conversion and Exchange
If any debt securities are convertible into
or exchangeable for other securities, the related prospectus supplement will explain the terms and conditions of the conversion
or exchange, including the conversion price or exchange ratio (or the calculation method), the conversion or exchange period (or
how the period will be determined), if conversion or exchange will be mandatory or at the option of the holder or us, provisions
for adjusting the conversion price or the exchange ratio and provisions affecting conversion or exchange in the event of the redemption
of the underlying debt securities. These terms may also include provisions under which the number or amount of other securities
to be received by the holders of the debt securities upon conversion or exchange would be calculated according to the market price
of the other securities as of a time stated in the prospectus supplement.
Payment and Paying Agents
We will pay interest to the person listed
in the applicable trustee’s records as the owner of the debt security at the close of business on a particular day in advance
of each due date for interest, even if that person no longer owns the debt security on the interest due date. That day, often approximately
two weeks in advance of the interest due date, is called the “record date.” Because we will pay all the interest for
an interest period to the holders on the record date, holders buying and selling debt securities must work out between themselves
the appropriate purchase price. The most common manner is to adjust the sales price of the debt securities to prorate interest
fairly between buyer and seller based on their respective ownership periods within the particular interest period. This prorated
interest amount is called “accrued interest.”
Events of Default
Holders of debt securities of any series
will have rights if an Event of Default occurs in respect of the debt securities of such series and is not cured, as described
later in this subsection. The term “Event of Default” in respect of the debt securities of any series means any of
the following:
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we do not pay the principal of, or any premium on, a debt security of the series on its due date;
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we do not pay interest on a debt security of the series within 30 days of its due date;
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we do not deposit any sinking fund payment in respect of debt securities of the series on its due date and we do not cure this
default within five days;
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we remain in breach of a covenant in respect of debt securities of the series for 90 days after we receive a written notice
of default stating we are in breach. The notice must be sent by either the trustee or holders of at least 25% of the principal
amount of debt securities of the series;
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we file for bankruptcy or certain other events of bankruptcy, insolvency or reorganization occur; and
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any other Event of Default occurs in respect of debt securities of the series described in the prospectus supplement.
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An Event of Default for a particular series
of debt securities does not necessarily constitute an Event of Default for any other series of debt securities issued under the
same or any other indenture. The trustee may withhold notice to the holders of debt securities of any default, except in the payment
of principal, premium or interest, if it considers the withholding of notice to be in the best interests of the holders.
Remedies if an Event of Default Occurs
If an Event of Default has occurred and
has not been cured or waived, the trustee or the holders of not less than 25% in principal amount of the debt securities of the
affected series may declare the entire principal amount of all the debt securities of that series to be due and immediately payable.
This is called a declaration of acceleration of maturity. A declaration of acceleration of maturity may be canceled by the holders
of a majority in principal amount of the debt securities of the affected series if the default is cured or waived and certain other
conditions are satisfied.
Except in cases of default, where the trustee
has some special duties, the trustee typically is not required to take any action under an indenture at the request of any holders
unless the holders offer the trustee reasonable protection from expenses and liability (called an “indemnity”). If
reasonable indemnity is provided, the holders of a majority in principal amount of the outstanding debt securities of the relevant
series may direct the time, method and place of conducting any lawsuit or other formal legal action seeking any remedy available
to the trustee. The trustee may refuse to follow those directions in certain circumstances.
Before a holder is allowed to bypass the
trustee and bring its own lawsuit or other formal legal action or take other steps to enforce its rights or protect its interests
relating to any debt securities, the following must occur:
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the holder must give the trustee written notice that an Event of Default has occurred and remains uncured;
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the holders of at least 25% in principal amount of all outstanding debt securities of the relevant series must make a written
request that the trustee take action because of the default and must offer reasonable indemnity to the trustee against the cost
and other liabilities of taking that action;
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the trustee must not have taken action for 60 days after receipt of the above notice and offer of indemnity; and
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the holders of a majority in principal amount of the debt securities must not have given the trustee a direction inconsistent
with the above notice during that 60-day period.
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However, a holder is entitled at any time
to bring a lawsuit for the payment of money due on its debt securities on or after the due date. Each year, we will furnish to
each trustee a written statement of certain of our officers certifying that to their knowledge we are in compliance with the indenture
and the debt securities, or else specifying any default.
Waiver of Default
The holders of a majority in principal amount
of the relevant series of debt securities may waive a default for all such series of debt securities. If this happens, the default
will be treated as if it had not occurred. No one can waive a payment default on a holder’s debt security, however, without
the holder’s approval.
Merger or Consolidation
Under the terms of an indenture, we may
be permitted to consolidate or merge with another entity. We may also be permitted to sell all or substantially all of our assets
to another entity. However, typically we may not take any of these actions unless all the following conditions are met:
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if we do not survive such transaction or we convey, transfer or lease our properties and assets substantially as an entirety,
the acquiring company must be a corporation, limited liability company, partnership or trust, or other corporate form, organized
under the laws of any state of the United States or the District of Columbia, and such company must agree to be legally responsible
for our debt securities, and, if not already subject to the jurisdiction of any state of the United States or the District of Columbia,
the new company must submit to such jurisdiction for all purposes with respect to the debt securities and appoint an agent for
service of process;
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alternatively, we must be the surviving company;
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immediately after the transaction no Event of Default will exist;
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we must deliver certain certificates and documents to the trustee; and
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we must satisfy any other requirements specified in the prospectus supplement relating to a particular series of debt securities.
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Modification or Waiver
There are three types of changes we may
make to an indenture and the debt securities issued thereunder.
Changes Requiring Approval
First, there are changes that we cannot
make to debt securities without specific approval of all of the holders. The following is a list of the types of changes that may
require specific approval:
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change the stated maturity of the principal of or rate of interest on a debt security;
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reduce any amounts due on a debt security;
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reduce the amount of principal payable upon acceleration of the maturity of a security following a default;
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at any time after a change of control has occurred, reduce any premium payable upon a change of control;
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change the place or currency of payment on a debt security (except as otherwise described in the prospectus or prospectus supplement);
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impair the right of holders to sue for payment;
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adversely affect any right to convert or exchange a debt security in accordance with its terms;
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reduce the percentage of holders of debt securities whose consent is needed to modify or amend the indenture;
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reduce the percentage of holders of debt securities whose consent is needed to waive compliance with certain provisions of
the indenture or to waive certain defaults;
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modify any other aspect of the provisions of the indenture dealing with supplemental indentures, modification and waiver of
past defaults, changes to the quorum or voting requirements or the waiver of certain covenants; and
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change any obligation we have to pay additional amounts.
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Changes Not Requiring Approval
The second type of change does not require
any vote by the holders of the debt securities. This type is limited to clarifications and certain other changes that would not
adversely affect holders of the outstanding debt securities in any material respect, including the addition of covenants and guarantees.
We also do not need any approval to make any change that affects only debt securities to be issued under the indenture after the
change takes effect.
Changes Requiring Majority Approval
Any other change to the indenture and the
debt securities may require the following approval:
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if the change affects only one series of debt securities, it must be approved by the holders of a majority in principal amount
of that series; and
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if the change affects more than one series of debt securities issued under the same indenture, it must be approved by the holders
of a majority in principal amount of all of the series affected by the change, with all affected series voting together as one
class for this purpose.
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The holders of a majority in principal amount
of all of the series of debt securities issued under an indenture, voting together as one class for this purpose, may waive our
compliance obligations with respect to some of our covenants in that indenture. However, we cannot obtain a waiver of a payment
default or of any of the matters covered by the bullet points included above under “Description of Debt Securities—Modification
or Waiver—Changes Requiring Approval.”
Further Details Concerning Voting
When taking a vote on proposed changes to
the indenture and the debt securities, we expect to use the following rules to decide how much principal to attribute to a debt
security:
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for original issue discount securities, we will use the principal amount that would be due and payable on the voting date if
the maturity of these debt securities were accelerated to that date because of a default;
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for debt securities whose principal amount is not known (for example, because it is based on an index), we will use a special
rule for that debt security described in the related prospectus supplement; and
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for debt securities denominated in one or more foreign currencies, we will use the U.S. dollar equivalent.
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Debt securities will not be considered outstanding,
and therefore not eligible to vote, if we have deposited or set aside in trust money for their payment or redemption. Debt securities
will also not be eligible to vote if they have been fully defeased as described later under “Description of Debt Securities—Defeasance—Legal
Defeasance.”
We generally will be entitled to set any
day as a record date for the purpose of determining the holders of outstanding indenture securities that are entitled to vote or
take other action under the indenture. If we set a record date for a vote or other action to be taken by holders of one or more
series, that vote or action may be taken only by persons who are holders of outstanding indenture securities of those series on
the record date and must be taken within 11 months following the record date.
Book-entry and other indirect holders will
need to consult their banks or brokers for information on how approval may be granted or denied if we seek to change the indenture
or the debt securities or request a waiver.
Defeasance
The following provisions will be applicable
to each series of debt securities unless we state in the applicable prospectus supplement that the provisions of covenant defeasance
and legal defeasance will not be applicable to that series.
Covenant Defeasance
We can make the deposit described below
and be released from some of the restrictive covenants in the indenture under which the particular series was issued. This is called
“covenant defeasance.” In that event, the holders would lose the protection of those restrictive covenants but would
gain the protection of having money and government securities set aside in trust to repay holders’ debt securities. If applicable,
a holder also would be released from the subordination provisions described under “Description of Debt Securities—Indenture
Provisions—Subordination” below. In order to achieve covenant defeasance, we must do the following:
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If the debt securities of the particular series are denominated in U.S. dollars, we must deposit in trust for the benefit of
all holders of such debt securities a combination of money and U.S. government or U.S. government agency notes or bonds that will
generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates;
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We may be required to deliver to the trustee a legal opinion of our counsel confirming that, under current U.S. Federal income
tax law, we may make the above deposit without causing the holders to be taxed on the debt securities any differently than if we
did not make the deposit and just repaid the debt securities ourselves at maturity; and
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We must deliver to the trustee certain documentation stating that all conditions precedent to covenant defeasance have been
complied with.
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If we accomplish covenant defeasance, holders
can still look to us for repayment of the debt securities if there were a shortfall in the trust deposit or the trustee is prevented
from making payment. In fact, if one of the remaining Events of Default occurred (such as our bankruptcy) and the debt securities
became immediately due and payable, there might be a shortfall. Depending on the event causing the default, holders may not be
able to obtain payment of the shortfall.
Legal Defeasance
As described below, we can legally release
ourselves from all payment and other obligations on the debt securities of a particular series (called “legal defeasance”),
(1) if there is a change in U.S. Federal tax law that allows us to effect the release without causing the holders to be taxed any
differently than if the release had not occurred, and (2) if we put in place the following other arrangements for holders to be
repaid:
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If the debt securities of the particular series are denominated in U.S. dollars, we must deposit in trust for the benefit of
all holders of such debt securities a combination of money and U.S. government or U.S. government agency notes or bonds that will
generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates;
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We may be required to deliver to the trustee a legal opinion confirming that there has been a change in current U.S. Federal
tax law or an Internal Revenue Service ruling that allows us to make the above deposit without causing the holders to be taxed
on the debt securities any differently than if we did not make the deposit and just repaid the debt securities ourselves at maturity.
Under current U.S. Federal tax law, the deposit and our legal release from the debt securities would be treated as though we paid
each holder its share of the cash and notes or bonds at the time the cash and notes or bonds were deposited in trust in exchange
for its debt securities and holders would recognize gain or loss on the debt securities at the time of the deposit; and
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We must deliver to the trustee a legal opinion and officers’ certificate stating that all conditions precedent to legal
defeasance have been complied with.
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If we ever did accomplish legal defeasance,
as described above, holders would have to rely solely on the trust deposit for repayment of the debt securities. Holders could
not look to us for repayment in the unlikely event of any shortfall. Conversely, the trust deposit would most likely be protected
from claims of our lenders and other creditors if we ever became bankrupt or insolvent. If applicable, holders would also be released
from the subordination provisions described later under “Description of Debt Securities—Indenture Provisions—Subordination.”
Resignation of Trustee
Each trustee may resign or be removed with
respect to one or more series of indenture securities provided that a successor trustee is appointed to act with respect to such
series. In the event that two or more persons are acting as trustee with respect to different series of indenture securities under
the indenture, each of the trustees will be a trustee of a trust separate and apart from the trust administered by any other trustee.
Indenture Provisions—Subordination
Upon any distribution of our assets upon
our dissolution, winding up, liquidation or reorganization, the payment of the principal of (and premium, if any) and interest
on any indenture securities denominated as subordinated debt securities is to be subordinated to the extent provided in the indenture
in right of payment to the prior payment in full of all Senior Indebtedness (defined below), but our obligation to holders to make
payment of the principal of (and premium, if any) and interest on such subordinated debt securities will not otherwise be affected.
In addition, no payment on account of principal (or premium, if any), interest or sinking fund, if any, may be made on such subordinated
debt securities at any time unless full payment of all amounts due in respect of the principal (and premium, if any), interest
and sinking fund, if any, on Senior Indebtedness has been made or duly provided for in money or money’s worth.
In the event that, notwithstanding the foregoing,
any payment from us is received by the trustee in respect of subordinated debt securities or by the holders of any of such subordinated
debt securities before all Senior Indebtedness is paid in full, the payment or distribution must be paid over to the holders of
the Senior Indebtedness or on their behalf for application to the payment of all the Senior Indebtedness remaining unpaid until
all the Senior Indebtedness has been paid in full, after giving effect to any concurrent payment or distribution to the holders
of the Senior Indebtedness. Subject to the payment in full of all Senior Indebtedness, the holders of such subordinated debt securities
will be subrogated to the rights of the holders of the Senior Indebtedness to the extent of payments made to the holders of the
Senior Indebtedness out of the distributive share of such subordinated debt securities.
By reason of this subordination, in the
event of a distribution of our assets upon our insolvency, certain of our senior creditors may recover more, ratably, than holders
of any subordinated debt securities. The related indenture will provide that these subordination provisions will not apply to money
and securities held in trust under the defeasance provisions of the indenture.
“Senior Indebtedness” will be
defined in an applicable indenture as the principal of (and premium, if any) and unpaid interest on:
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our indebtedness (including indebtedness of others guaranteed by us), whenever created, incurred, assumed or guaranteed, for
money borrowed (other than indenture securities issued under the indenture and denominated as subordinated debt securities), unless
in the instrument creating or evidencing the same or under which the same is outstanding it is provided that this indebtedness
is not senior or prior in right of payment to the subordinated debt securities; and
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renewals, extensions, modifications and refinancings of any of such indebtedness.
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The prospectus supplement accompanying any
series of indenture securities denominated as subordinated debt securities will set forth the approximate amount of our Senior
Indebtedness outstanding as of a recent date.
Trustee
We intend to name the indenture trustee
for each series of indenture securities in the related prospectus supplement.
Certain Considerations Relating to Foreign
Currencies
Debt securities denominated or payable in
foreign currencies may entail significant risks. These risks include the possibility of significant fluctuations in the foreign
currency markets, the imposition or modification of foreign exchange controls and potential illiquidity in the secondary market.
These risks will vary depending upon the currency or currencies involved and will be more fully described in the applicable prospectus
supplement.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of
shares of our common stock or preferred stock or of debt securities. We may issue warrants independently or together with other
securities, and the warrants may be attached to or separate from any offered securities. If a series of warrants will be issued
under a separate warrant agreement to be entered into between us and the investors or a warrant agent, we will so specify in the
applicable prospectus supplement. The following summary of the material provisions of the warrants and warrant agreements is subject
to, and qualified in its entirety by reference to, all the provisions of the warrants and any warrant agreement applicable to a
particular series of warrants. The terms of any warrants offered under a prospectus supplement may differ from the terms described
below. We urge you to read the applicable prospectus supplement, as well as the complete warrants and warrant agreements that contain
the terms of the warrants.
The material terms of any issue of warrants
will be described in the prospectus supplement relating to the issue. Those terms may include:
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the number of shares of common stock or preferred stock purchasable upon the exercise of warrants to purchase such shares and
the price at which such number of shares may be purchased upon such exercise;
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a summary of the designation and terms (including, without limitation, liquidation, dividend, conversion and voting rights)
of the series of preferred stock purchasable upon exercise of warrants to purchase preferred stock as set forth in the certificate
of designation for such series of preferred stock;
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the principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the
warrants, which may be payable in cash, securities or other property;
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the date, if any, on and after which the warrants and the related debt securities, preferred stock or common stock will be
separately transferable;
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the terms of any rights to redeem or call the warrants;
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the date on which the right to exercise the warrants will commence and the date on which the right will expire;
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U.S. federal income tax consequences applicable to the warrants; and
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any additional terms of the warrants, including terms, procedures, and limitations relating to the exchange, exercise and settlement
of the warrants.
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Each warrant will entitle its holder to
purchase the principal amount of debt securities or the number of shares of preferred stock or common stock at the exercise price
set forth in, or calculable as set forth in, the applicable prospectus supplement. Unless we otherwise specify in the applicable
prospectus supplement, holders of the warrants may exercise the warrants at any time up to the specified time on the expiration
date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised
warrants will become void.
A holder of warrant certificates may exchange
them for new warrant certificates of different denominations, present them for registration of transfer and exercise them at the
corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Until any warrants
to purchase debt securities are exercised, the holder of the warrants will not have any rights of holders of the debt securities
that can be purchased upon exercise, including any rights to receive payments of principal, premium or interest on the underlying
debt securities or to enforce covenants in the applicable indenture. Until any warrants to purchase common stock or preferred stock
are exercised, the holders of the warrants will not have any rights of holders of the underlying common stock or preferred stock,
including any rights to receive dividends or payments upon any liquidation, dissolution or winding up on the common stock or preferred
stock, if any.
DESCRIPTION OF UNITS
We may issue units consisting of any combination
of the other types of securities offered under this prospectus in one or more series. We may elect to evidence each series of units
by unit certificates that we will issue under a separate unit agreement. We may enter into unit agreements with a unit agent. Each
unit agent will be a bank or trust company that we select. We will indicate the name and address of the unit agent in the applicable
prospectus supplement relating to a particular series of units.
The following description, together with
the additional information included in any applicable prospectus supplement, summarizes the general features of the units that
we may offer under this prospectus. You should read any prospectus supplement related to the series of units being offered, as
well as the complete unit agreements that contain the terms of the units. Specific unit agreements will contain additional important
terms, and we will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by
reference from another report that we file with the SEC, the form of each unit agreement relating to units offered under this prospectus.
If we offer any units, certain terms of
that series of units will be described in the applicable prospectus supplement, including, without limitation, the following, as
applicable:
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the title of the series of units;
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identification and description of the separate constituent securities comprising the units;
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the price or prices at which the units will be issued;
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the date, if any, on and after which the constituent securities comprising the units will be separately transferable;
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a discussion of certain U.S. federal income tax considerations applicable to the units; and
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any other material terms of the units and their constituent securities.
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PLAN OF DISTRIBUTION
We may sell the securities covered by this
prospectus from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination
of these methods or through underwriters or dealers, through agents and/or directly to one or more purchasers. The securities may
be distributed from time to time in one or more transactions:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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Each time that we sell securities covered
by this prospectus, we will provide a prospectus supplement or supplements that will describe the method of distribution and set
forth the terms and conditions of the offering of such securities, including the offering price of the securities and the proceeds
to us, if applicable.
Offers to purchase the securities being
offered by this prospectus may be solicited directly. Agents may also be designated to solicit offers to purchase the securities
from time to time. Any agent involved in the offer or sale of our securities will be identified in a prospectus supplement.
If a dealer is utilized in the sale of the
securities being offered by this prospectus, the securities will be sold to the dealer, as principal. The dealer may then resell
the securities to the public at varying prices to be determined by the dealer at the time of resale.
If an underwriter is utilized in the sale
of the securities being offered by this prospectus, an underwriting agreement will be executed with the underwriter at the time
of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make resales
of the securities to the public. In connection with the sale of the securities, we or the purchasers of securities for whom the
underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter
may sell the securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated
in a prospectus supplement, an agent will be acting on a best efforts basis and a dealer will purchase securities as a principal,
and may then resell the securities at varying prices to be determined by the dealer.
Any compensation paid to underwriters, dealers
or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed by underwriters
to participating dealers, will be described in the applicable prospectus supplement. Underwriters, dealers and agents participating
in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act of 1933, as amended
(the “Securities Act”), and any discounts and commissions received by them and any profit realized by them on resale
of the securities may be deemed to be underwriting discounts and commissions. We may enter into agreements to indemnify underwriters,
dealers and agents against civil liabilities, including liabilities under the Securities Act, or to contribute to payments they
may be required to make in respect thereof and to reimburse those persons for certain expenses.
Any common stock issued by us will be traded
on The NASDAQ Global Market unless we specify otherwise in the prospectus supplement, but any other securities may or may not be
publicly traded or listed on a national securities exchange. To facilitate the offering of securities, certain persons participating
in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. This may include
over-allotments or short sales of the securities, which involve the sale by persons participating in the offering of more securities
than were sold to them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases
in the open market or by exercising their over-allotment option, if any. In addition, these persons may stabilize or maintain the
price of the securities by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling
concessions allowed to dealers participating in the offering may be reclaimed if securities sold by them are repurchased in connection
with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities
at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
If indicated in the applicable prospectus
supplement, underwriters or other persons acting as agents may be authorized to solicit offers by institutions or other suitable
purchasers to purchase the securities at the public offering price set forth in the prospectus supplement, pursuant to delayed
delivery contracts providing for payment and delivery on the date or dates stated in the prospectus supplement. These purchasers
may include, among others, commercial and savings banks, insurance companies, pension funds, investment companies and educational
and charitable institutions. Delayed delivery contracts will be subject to the condition that the purchase of the securities covered
by the delayed delivery contracts will not at the time of delivery be prohibited under the laws of any jurisdiction in the United
States to which the purchaser is subject. The underwriters and agents will not have any responsibility with respect to the validity
or performance of these contracts.
We may engage in at-the-market offerings
into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In addition, we may enter into derivative
transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions.
If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may sell securities
covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party
may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings
of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of
stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named
in the applicable prospectus supplement. In addition, we may otherwise loan or pledge securities to a financial institution or
other third party that in turn may sell the securities short using this prospectus and an applicable prospectus supplement. Such
financial institution or other third party may transfer its economic short position to investors in our securities or in connection
with a concurrent offering of other securities.
The specific terms of any lock-up provisions
in respect of any given offering will be described in the applicable prospectus supplement.
The underwriters, dealers and agents may
engage in transactions with us, or perform services for us, in the ordinary course of business for which they receive compensation.
LEGAL MATTERS
The validity of the securities offered by
this prospectus has been passed upon for us by TroyGould PC, Los Angeles, California, and Morgan Lewis & Bockius LLP, New York,
New York. Some of the attorneys at TroyGould PC own shares of our common stock constituting in the aggregate less than 1% of our
outstanding shares of common stock.
EXPERTS
Our financial statements as of December
31, 2015 and 2014 and for each of the three years in the period ended December 31, 2015 and management’s assessment of the
effectiveness of internal control over financial reporting as of December 31, 2015 incorporated by reference into this prospectus
have been so incorporated in reliance on the reports of Weinberg & Company, P.A., independent registered public accounting
firm, upon the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND
MORE INFORMATION
We are subject to the information and periodic
reporting requirements of the Exchange Act and, in accordance with that act, file periodic reports and other information with the
SEC. The periodic reports and other information filed by us are available for inspection and copying at prescribed rates at the
SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information about the operation of the SEC’s Public Reference Room. The SEC also maintains an Internet site that contains
all reports and other information that we file electronically with the SEC. The address of that website is www.sec.gov.
This prospectus is part of a registration
statement on Form S-3 that we have filed with the SEC under the Securities Act for the securities offered under this prospectus
(the "Form S-3 Registration Statement"). The Form S-3 Registration Statement, including the exhibits to the Form S-3
Registration Statement, contains additional information about us and the securities offered by this prospectus. The rules and regulations
of the SEC allow us to omit from this prospectus certain information that is included in the Form S-3 Registration Statement. For
further information about us and our securities, you should review the Form S-3 Registration Statement and the exhibits filed with
the Form S-3 Registration Statement.
INCORPORATION OF
CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate into this
prospectus by reference the information we file with it, which means that we can disclose important information to you by referring
you to the documents containing that information. The information incorporated by reference is considered to be part of this prospectus,
and information that we later file with the SEC will automatically update and, where applicable, modify or supersede that information.
We incorporate by reference into this prospectus
the following documents that we have filed, or will file, with the SEC:
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Our Annual Report on Form 10-K for the year ended December 31, 2015, filed with the SEC on March 11, 2016;
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Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2016, June 30, 2016, and September 30, 2016, filed with
the SEC on May 9, 2016, August 9, 2016 and November 4, 2016, respectively;
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Our Current Reports on Form 8-K filed with the SEC on January 4, 2016, March 10, 2016, March 15, 2016, April 7, 2016, May 9,
2016, May 27, 2016, June 3, 2016, June 8, 2016, June 8, 2016, July 8, 2016, August 8, 2016, August 18, 2016, August 24, 2016, September
15, 2016, October 3, 2016, November 3, 2016, November 4, 2016, November 16, 2016 and November 28, 2016, respectively;
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The portions of our definitive Proxy Statement on Schedule 14A filed with the SEC on July 26, 2016 that are deemed "filed"
with the SEC under the Exchange Act;
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The description of our common stock contained in our registration statement on Form 8-A filed with the SEC on February 25,
2015 pursuant to Section 12 of the Exchange Act, as such statement may be amended from time to time; and
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Each document that we file with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date on which
we filed the Form S-3 Registration Statement and before the termination of this offering, with information in each such filing
to be deemed to be incorporated by reference into this prospectus as of the date we make the filing with the SEC.
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You may request a copy of any of these filings
from us at no cost by writing or calling our Chief Financial Officer at the following address or telephone number: Lion Biotechnologies,
Inc., 999 Skyway Road, Suite 150, San Carlos, California 94070; (650) 260-7120.
Notwithstanding the foregoing, no portion
of any document that is “furnished” but not “filed” in accordance with SEC rules under Exchange Act shall
be deemed to be incorporated by reference into the Form S-3 Registration Statement. Any statement contained in the Form S-3 Registration
Statement or in a document incorporated by reference into the Form S-3 Registration Statement will be deemed to be modified or
superseded for purposes of the Form S-3 Registration Statement to the extent that a statement contained in the Form S-3 Registration
Statement or in any other subsequently filed document that is incorporated by reference into the Form S-3 Registration Statement
modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded,
to constitute a part of the Form S-3 Registration Statement.
PROSPECTUS
$100,000,000
LION BIOTECHNOLOGIES,
INC.
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
______________
The date of this prospectus
is , 2016.
PART II
INFORMATION NOT REQUIRED
IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution
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The following table sets forth the fees
and expenses to be paid by us, other than underwriting discounts and commissions, in connection with the offering of the securities
described in this registration statement. All amounts shown are estimates except for the SEC registration fee.
SEC registration fee
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$
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11,590
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FINRA filing fee
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*
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NASDAQ Global Market listing fee
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*
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Printing expenses
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*
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Legal fees and expenses
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*
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Accounting fees and expenses
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*
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Transfer agent and registrar fees and expenses
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*
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Trustee fees and expenses
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*
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Miscellaneous expenses
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*
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Total
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$
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*
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_________________
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*
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These fees and expenses will be based upon the number of securities offerings and the amount of securities offered and accordingly
cannot be estimated at this time.
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Item 15.
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Indemnification of Directors and Officers.
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Our amended and restated articles of incorporation
provide that, t
o the maximum extent permitted under applicable law,
none of our directors
or officers will have any personal liability to us or our stockholders for damages for breach of fiduciary duty as a director or
officer.
Section 78.7502 of the Nevada Revised Statutes
permits a corporation to indemnify a present or former director, officer, employee or agent of the corporation, or of another entity
or enterprise for which such person is or was serving in such capacity at the request of the corporation, who was or is a party
or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, except an action by or
in the right of the corporation, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection therewith, arising by reason of such person’s service in such capacity if
such person (1) is not liable pursuant to Section 78.138 of the Nevada Revised Statutes, which sets forth standards for the conduct
of directors and officers, or (2) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed
to the best interests of the corporation and, with respect to a criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful. In the case of actions brought by or in the right of the corporation, however, no indemnification
may be made for any claim, issue or matter as to which such person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless
and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines
upon application that in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity
for such expenses as the court deems proper.
Section 78.751 of the Nevada Revised Statutes
permits any discretionary indemnification under Section 78.7502 of the Nevada Revised Statutes, unless ordered by a court or advanced
to a director or officer by the corporation in accordance with the Nevada Revised Statutes, to be made by a corporation only as
authorized in each specific case upon a determination that indemnification of the director, officer, employee or agent is proper
in the circumstances. Such determination must be made (1) by the stockholders, (2) by the board of directors by majority vote of
a quorum consisting of directors who were not parties to the action, suit or proceeding, (3) if a majority vote of a quorum consisting
of directors who were not parties to the action, suit or proceeding so orders, by independent legal counsel in a written opinion,
or (4) if a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained, by independent
legal counsel in a written opinion.
Our amended and restated articles of incorporation
require us to indemnify our directors and officers to the maximum extent permitted by applicable law.
We maintain a general liability insurance
policy that covers certain liabilities of directors and officers of our corporation arising out of claims based on acts or omissions
in their capacities as directors or officers. Furthermore, we have entered into indemnification agreements with our directors that,
among other things, indemnify them against certain liabilities that may arise by reason of their status or service as directors.
A list of exhibits filed with this Registration
Statement on Form S-3 is set forth in the Exhibit Index and is incorporated by reference into this Item 16.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in this registration statement; notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in this registration statement
or any material change to such information in this registration statement;
provided, however, that paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained
in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement as of the
date the filed prospectus was deemed part of and included in this registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in this registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of this registration statement
relating to the securities in this registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration
statement or prospectus that is part of this registration statement or made in a document incorporated or deemed incorporated by
reference into this registration statement or prospectus that is a part of this registration statement will, as to a purchaser
with a time of contract sale prior to such effective date, supersede or modify any statement that was made in this registration
statement or prospectus that was a part of this registration statement or made in any such document immediately prior to such effective
date.
(5) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and (and,
where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(d) 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 (the “Act”) in accordance with the rules and regulations
prescribed by the Securities and Exchange Commission under section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of San Carlos, California, on December 23, 2016.
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LION BIOTECHNOLOGIES, INC.
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By:
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/s/ Maria Fardis
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Maria Fardis, Ph.D.
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
each individual whose signature appears below constitutes and appoints Maria Fardis, Ph.D and Gregory T. Schiffman, and each of
them, his or her true and lawful attorneys-in-fact and agents with full power of substitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this
registration statement, and to sign any registration statement for the same offering covered by this registration statement that
is to be effective on filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933 and all post-effective amendments
thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them,
or his or her or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on December 23, 2016.
Signature
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Title
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/s/ Maria Fardis
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President, Chief Executive Officer and Director
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Maria Fardis, Ph.D.
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(Principal Executive Officer)
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/s/ Gregory T. Schiffman
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Chief Financial Officer
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Gregory T. Schiffman
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(Principal Financial and Accounting Officer)
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/s/ Merrill A. McPeak
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Director
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Merrill A. McPeak
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/s/ Jay Venkatesan
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Director
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Jay Venkatesan
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/s/ Sanford J. Hillsberg
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Director
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Sanford J. Hillsberg
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/s/ Wayne Rothbaum
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Director
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Wayne Rothbaum
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/s/ Ryan Maynard
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Director
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Ryan Maynard
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/s/ Iain Dukes
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Director
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Iain Dukes
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EXHIBIT INDEX
Exhibit
Number
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Description of Document
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1.1
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Form of Underwriting Agreement.*
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3.1
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Amended and Restated Articles of Incorporation of Lion Biotechnologies, Inc. filed with the Nevada Secretary of State on August 20, 2013 (incorporated herein by reference to the registrant’s Definitive Information Statement on Schedule 14C filed with the SEC on August 20, 2013).
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3.3
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Amended and Restated Bylaws of Lion Biotechnologies, Inc. (incorporated herein by reference to the registrant’s Form 8-K filed with the SEC on November 16, 2016).
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4.1
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Form of Indenture (filed with this registration statement).
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4.2
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Form of Common Stock Certificate.*
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4.3
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Form of Warrant.*
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4.4
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Form of Warrant Agreement.*
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4.5
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Form of Preferred Stock Certificate.*
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4.6
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Form of Debt Security.*
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4.7
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Form of Unit Agreement.*
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5.1
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Opinion of TroyGould PC (filed with this registration statement).
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5.2
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Opinion of Morgan Lewis & Bockius LLP (filed with this registration statement).
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12.1
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Statement of Computation of Ratio of Earnings to Fixed Charges and Ratio of Combined Fixed Charges and Preferred Stock Dividends (filed with this registration statement).
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23.1
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Consent of Weinberg & Company, P.A. (filed with this registration statement).
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23.2
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Consent of TroyGould PC (included in Exhibit 5.1).
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23.3
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Consent of Morgan Lewis & Bockius LLP (included in Exhibit 5.1).
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24.1
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Power of Attorney (included in Part II of this registration statement).
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25.1
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Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939, as amended.**
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_____________
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*
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To be filed, if applicable, subsequent to the effectiveness of this registration statement (1) by an amendment to this registration
statement or (2) as an exhibit to a Current Report on Form 8-K and incorporated herein by reference.
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**
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If applicable, to be filed subsequent to the effectiveness of this registration statement pursuant to Section 305(b)(2) of
the Trust Indenture Act of 1939, as amended.
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