As filed with the U.S. Securities and Exchange
Commission on June 12, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
ANI PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in
its Charter)
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Delaware
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58-2301143
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(State or Other Jurisdiction of Incorporation)
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(I.R.S. Employer Identification Number)
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210 Main Street West
Baudette, Minnesota 56623
(218) 634-3500
(Address, Including Zip Code and Telephone
Number, Including Area Code, of Registrant’s Principal Executive Offices)
Stephen P. Carey
Vice President, Finance and Chief Financial
Officer
ANI Pharmaceuticals, Inc.
210 Main Street West
Baudette, Minnesota 56623
(218) 634-3500
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
Paul A. Gajer, Esq.
Dentons US LLP
1221 Avenue of the Americas
New York, New York 10020
(212) 768-6700
Approximate date of commencement of proposed sale to public
:
From time to time or at one time after this registration statement becomes effective in light of market conditions and other factors.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the following box.
¨
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the "Securities
Act"), 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, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the Securities Act 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.
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Large accelerated filer
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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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Emerging Growth Company
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 7(a)(2)(B) of the Securities Act.
CALCULATION OF REGISTRATION FEE
Title Of Each Class Of Securities
To Be Registered
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Amount To Be
Registered
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Proposed Maximum
Offering
Price Per Unit
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Proposed Maximum
Aggregate Offering
Price
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Amount Of
Registration
Fee
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Debt Securities
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(1)(2)
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(1)(2)
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(2)(3)
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Preferred Stock, par value $.0001 per share
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(1)(2)
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(1)(2)
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(2)(3)
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Common Stock, par value $.0001 per share
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(1)(2)
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(1)(2)
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(2)(3)
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Warrants
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(1)(2)
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(1)(2)
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(2)(3)
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Units
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(1)(2)
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(1)(2)
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(2)(3)
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Rights
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(1)(2)
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(1)(2)
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(2)(3)
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TOTAL
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$
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350,000,000
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(3)
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100
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%
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$
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350,000,000
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$
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40,565.00
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(4)
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(1)
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There are being registered under this registration statement
such indeterminate number of shares of common stock and preferred stock of the registrant, such indeterminate number of warrants
of the registrant and such indeterminate principal amount of debt securities of the registrant, as shall have an aggregate initial
offering price not to exceed $350,000,000. There are being registered under this registration statement such indeterminate number
of each identified class of the identified securities as may be issued upon conversion, exchange, or exercise of any other securities
that provide for such conversion, exchange or exercise, up to a proposed maximum offering price of $350,000,000. In addition,
pursuant to Rule 416 under the Securities Act, the shares of common stock and preferred stock being registered hereunder include
such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered
hereunder as a result of stock splits, stock dividends or similar transactions. If any debt securities are issued at an original
issue discount, then the debt securities registered pursuant to this registration statement shall include such greater principal
amount as shall result in an amount to be registered hereunder that equals the aggregate initial offering price, but in no event
shall the initial public offering price of securities registered hereunder exceed $350,000,000 less the aggregate dollar amount
of all securities previously issued hereunder, or the equivalent thereof in one or more foreign currencies. Any securities registered
under this registration statement may be sold separately or as units with other securities registered under this registration
statement. The proposed maximum initial offering prices per unit will be determined, from time to time, by the registrant in connection
with the issuance by the registrant of the securities registered under this registration statement.
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(2)
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Not specified with respect to each class of securities
being registered under this registration statement pursuant to General Instruction II.D. of Form S-3 under the Securities Act.
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(3)
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Estimated solely for the purpose of calculating the registration
fee in accordance with Rule 457(o) under the Securities Act. No additional consideration will be received for common stock, preferred
stock or debt securities that are issued upon conversion into or exchange for or exercise of preferred stock or debt securities.
The proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in
connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of
security pursuant to General Instruction II.D of Form S-3 under the Securities Act.
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(4)
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Pursuant to Rule 457(o) under the Securities Act, the registration
fee is calculated on the maximum offering price of all securities listed, and the table does not specify information by each class
about the amount to be registered. Pursuant to Rule 415(a)(6) under the Securities Act, this registration statement includes
a total of $106,250,000 of unsold securities that had previously been registered under the Registrant’s registration statement
on Form S-3, initially filed with the U.S. Securities and Exchange Commission (the "SEC") on May 14, 2014 (No. 333-195949)
(the "2014 Registration Statement"). The 2014 Registration Statement initially registered securities for a maximum aggregate
offering price of $250,000,000 and of that amount the Registrant has previously sold convertible notes for an aggregate offering
price of $143,750,000, leaving a balance of unsold securities with an aggregate offering price of $106,250,000. The Registrant
is paying herewith a registration fee of $28,250.63 in connection with the registration of $243,750,000 of newly registered securities.
Pursuant to Rule 415(a)(6), the offering of the unsold securities registered under the 2014 Registration Statement will be deemed
terminated as of the date of effectiveness of this registration statement. If the Registrant sells any of such unsold securities
pursuant to the 2014 Registration Statement after the date of the initial filing, and prior to the date of effectiveness, of this
registration statement, the registrant will file a pre-effective amendment to this registration statement which will reduce the
number of such unsold securities included on this registration statement and increase the additional securities registered hereon
so that the total amount of securities registered hereon will equal $350,000,000, and will pay the additional registration fee
resulting therefrom.
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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, as amended, or until the registration statement shall become effective on such date as the Commission, acting pursuant
to said Section 8(a), may determine.
The information in this prospectus is not complete
and may be changed. The Registrant may not sell these securities until the registration statement filed with the Securities and
Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to
buy these securities in any state where an offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
JUNE 12, 2017
PROSPECTUS
$350,000,000
ANI Pharmaceuticals, Inc.
Debt Securities
Preferred Stock
Common Stock
Warrants
Rights
Units
From time to time, the Company may offer
and sell up to an aggregate of $350,000,000 of any combination of the securities described in this prospectus, either individually
or in combination. We may also offer common stock or preferred stock upon conversion of debt securities, common stock upon conversion
of preferred stock, or common stock, preferred stock or debt securities upon the exercise of warrants.
When the Company decides to sell particular
securities, the Company will provide you with the specific terms and the offering price of the securities the Company is then offering
in one or more prospectus supplements to this prospectus. The prospectus supplement may add to, change or update information contained
in this prospectus. The prospectus supplement may also contain important information about U.S. federal income tax consequences.
You should carefully read this prospectus, together with any prospectus supplements and information incorporated by reference in
this prospectus and any prospectus supplements, before you decide to invest.
This prospectus may not be used to
offer or sell any securities unless accompanied by a prospectus supplement.
The Company's common stock is quoted on
The NASDAQ Global Market under the trading symbol "ANIP."
Any common stock sold pursuant to this prospectus
or any prospectus supplement will be listed on that exchange, subject to official notice of issuance. Each prospectus supplement
to this prospectus will contain information, where applicable, as to any other listing on any national securities exchange of the
securities covered by the prospectus supplement.
We may offer and sell the securities described
in this prospectus to or through one or more underwriters, dealers or agents, or directly to purchasers on an immediate, continuous
or delayed basis. The names of any underwriters, dealers or agents involved in the sale of any securities, the specific manner
in which they may be offered and any applicable commissions or discounts will be set forth in an accompanying prospectus supplement
covering the sales of those securities.
Investing in the Company's securities
involves significant risks. See "Risk Factors" beginning on page 5.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2017.
TABLE OF CONTENTS
This prospectus is part of a
registration statement the Company filed with the Securities and Exchange Commission. You should rely only on the information
the Company has provided or incorporated by reference in this prospectus or any prospectus supplement. The Company has
not authorized anyone to provide you with additional or different information. The Company is
not making an offer of these securities in any state where the offer is not permitted. You should not assume that the
information in this prospectus is accurate as of any date other than the date on the front of the prospectus.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement that the Company filed with the U.S. Securities and Exchange Commission (the "SEC") utilizing a "shelf"
registration process or continuous offering process, which allows the Company to offer and sell any combination of the securities
described in this prospectus in one or more offerings. Using this prospectus, the Company may offer up to a total dollar amount
of $350,000,000 of these securities.
This prospectus provides you with a general
description of the securities the Company may offer. Each time the Company sells securities pursuant to this registration statement
and the prospectus contained herein, the Company will provide a prospectus supplement that will contain specific information about
the terms of that offering. That prospectus supplement may include additional risk factors about the Company and the terms of that
particular offering. Prospectus supplements may also add to, update or change the information contained in this prospectus. To
the extent that any statement that the Company makes in a prospectus supplement is inconsistent with statements made in this prospectus,
the statements made in this prospectus will be deemed modified or superseded by those made in such prospectus supplement. In addition,
as described in the section entitled "Where You Can Find More Information," the Company has filed and plans to continue
to file other documents with the SEC that contain information about the Company and the business conducted by the Company and its
subsidiaries. Before you decide whether to invest in any of these securities, you should read this prospectus, the prospectus supplement
that further describes the offering of these securities and the information the Company files with the SEC.
In this prospectus and any prospectus supplement,
unless otherwise indicated, the terms "ANI" and "the Company" refer and relate to ANI Pharmaceuticals, Inc.,
and its consolidated subsidiaries.
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This Prospectus and certain information
incorporated herein by reference contain forward-looking statements within the meaning of Section 27A of the Securities Act of
1933, as amended (the “Securities Act”), and Section 21E of the Exchange Act. Such statements include, but are not
limited to, statements about future operations, products, financial position, operating results prospects, pipelines or potential
markets therefor, and other statements that are not historical in nature, particularly those that utilize terminology such as “anticipates,”
“will,” “expects,” “plans,” “potential,” “future,” “believes,”
“intends,” “continue,” other words of similar meaning, derivations of such words, and the use of future
dates.
Uncertainties and risks may cause our actual
results to be materially different than those expressed in or implied by such forward-looking statements. Uncertainties and risks
include, but are not limited to, the risk that we may face with respect to importing raw materials, increased competition, acquisitions,
contract manufacturing arrangements, delays or failure in obtaining product approvals from the U.S. Food and Drug Administration
("FDA"), general business and economic conditions, market trends, product development, regulatory, and other approvals
and marketing.
More detailed information on these
and additional factors that could affect the Company’s actual results are described in the "Risk Factors" section
in Part I, Item 1A. of the Company's most recent annual report on Form 10-K and in other cautionary statements and risks included
in other reports the Company files with the SEC. All forward-looking statements in this prospectus speak only as of the date made
and are based on the Company’s current beliefs, assumptions, and expectations. The Company undertakes no obligation to update
or revise any forward-looking statement, whether as a result of new information, future events or otherwise.
ABOUT THE COMPANY
ANI Pharmaceuticals, Inc. and its consolidated
subsidiaries (together, “ANI,” the “Company,” “we,” “us,” or “our”)
is an integrated specialty pharmaceutical company focused on delivering value to our customers by developing, manufacturing, and
marketing high quality branded and generic prescription pharmaceuticals. We focus on niche and high barrier to entry opportunities
including controlled substances, anti-cancer (oncolytics), hormones and steroids, and complex formulations. We have two pharmaceutical
manufacturing facilities located in Baudette, Minnesota, which are capable of producing oral solid dose products, as well as liquids
and topicals, controlled substances, and potent products that must be manufactured in a fully-contained environment.
Our strategy is to use our assets to develop,
acquire, manufacture, and market branded and generic specialty prescription pharmaceuticals. By executing this strategy, we believe
we will be able to continue to grow our business, expand and diversify our product portfolio, and create long-term value for our
investors.
Products, Markets and Contract Manufacturing
Products
The
Company's
established
product portfolio consists of both branded and generic pharmaceuticals,
including:
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Generic Products
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Branded Products
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Erythromycin Ethylsuccinate
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Cortenema
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Esterified Estrogen with Methyltestosterone
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Inderal LA
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Etodolac
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Inderal XL
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Fenofibrate
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InnoPran XL
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Flecainide
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Lithobid
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Fluvoxamine
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Reglan
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Hydrocortisone Enema
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Vancocin
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Hydrocortisone Rectal Cream (1% and 2.5%)
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Indapamide
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Lithium Carbonate ER
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Mesalamine Enema
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Methazolamide
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Metoclopramide Syrup
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Nilutamide
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Nimodipine
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Opium Tincture
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Oxycodone Capsules
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Oxycodone Oral Solution
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Pindolol
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Propafenone
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Propranolol ER
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Vancomycin
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Product Development Considerations
We consider a variety of criteria in determining which products
to develop, all of which influence the level of competition upon product launch. These criteria include:
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Formulation Complexity.
Our development and manufacturing capabilities enable us to manufacture pharmaceuticals that are difficult to produce, including highly potent, extended release, combination, and low dosage products. This ability to manufacture a variety of complex products is a competitive strength that we intend to leverage in selecting products to develop or manufacture.
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Patent Status.
We seek to develop products whose branded bioequivalents do not have long-term patent protection or existing patent challenges.
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Market Size.
When determining whether to develop or acquire an individual product, we review the current and expected market size for that product at launch, as well as forecasted price erosion upon conversion from branded to generic pricing. We endeavor to manufacture products with sufficient market size to enable us to enter the market with a strong likelihood of being able to price our product both competitively and at a profit.
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Profit Potential.
We research the availability and cost of active pharmaceutical ingredients in determining which products to develop or acquire. In determining the potential profit of a product, we forecast our anticipated market share, pricing, including the expected price erosion caused by competition from other generic manufacturers, and the estimated cost to manufacture the products.
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Manufacturing.
We generally seek to develop and manufacture products at our own manufacturing plants in order to maximize the capacity and utilization of our facilities, ensure quality control in our products, and maximize profit potential.
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Competition.
When determining whether to develop or acquire a product, we research the existing and expected competition. We seek to develop products for which we can obtain a sufficient market share, and may decline to develop a product if we anticipate significant competition. Our specialized manufacturing facilities provide a means of entering niche markets, such as hormone therapies, in which fewer generic companies are able to compete.
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Trademark Notice
Cortenema®, Corticotrophin®,
Corticotrophin-Zinc®, Inderal®
LA, Inderal®
XL,
InnoPran XL®, Lithobid®, Reglan®, and Vancocin® are registered trademarks subject to trademark protection
and are owned by ANI Pharmaceuticals, Inc. and its consolidated subsidiaries.
Corporate Information
The Company’s principal executive offices are located
at 210 Main Street West, Baudette, Minnesota, 56623, its telephone number is (218) 634-3500, and its website address is www.anipharmaceuticals.com.
The website and the information contained therein or connected thereto are not incorporated into this prospectus. The Company’s
common stock is listed on The NASDAQ Global Market under the symbol "ANIP."
RISK FACTORS
Before
you
invest
in any of the Company's securities, in addition to the
other information in this prospectus and the applicable prospectus supplement, you
should
carefully consider the
risk
factors under the heading "Risk
Factors" contained in Part I, Item 1A in the Company's most recent Annual Report on Form 10-K and any risk
factors disclosed under the heading "Risk Factors" in Part II, Item 1A in any Quarterly Report on Form 10-Q
that the Company files after its most recent Annual Report on Form 10-K, which are incorporated by reference into this
prospectus
and the applicable prospectus supplement, as the same may be updated from time to time by the Company's future filings under the
Exchange Act.
The
risks and uncertainties the Company describes are not the only ones facing the Company. Additional risks and uncertainties not
presently known to the Company or
that
the Company currently deems
immaterial may also impair its business or operations. Any adverse effect on the Company's business, financial condition or operating
results could result in a decline in the value of the securities and the loss of all or part of your investment.
The prospectus
supplement applicable to each series of securities the Company offers may contain a discussion of additional risks applicable
to an investment in the Company and the securities the Company is offering under that prospectus supplement.
USE OF PROCEEDS
Unless otherwise indicated in the prospectus
supplement, the Company will use the net proceeds from the sale of securities offered by this prospectus primarily to research,
develop, commercialize and expand its drug products; to acquire complementary businesses and technologies; and for other working
capital and general corporate purposes. As of the date of this prospectus supplement, the Company has not identified any specific
material proposed uses of the anticipated proceeds.
The amounts and timing of any expenditures
will vary depending on: the type, number, costs, and results of the product candidate development programs which the Company is
pursuing or may choose to pursue in the future; the scope, progress, expansion, costs, and results of its clinical trials; competitive
and technological developments; and the rate of growth, if any, of its business. Accordingly, unless otherwise indicated in the
prospectus supplement, the Company's management will have significant flexibility in applying the net proceeds of the offerings,
and investors will be relying on the judgment of the Company's management regarding the application of these net proceeds. Pending
the application of the net proceeds, the Company intends to invest the proceeds in short-term, interest-bearing instruments or
other investment-grade securities.
RATIO OF EARNINGS
TO FIXED CHARGES
If the Company offers debt securities and/or
preference equity securities under this prospectus, then the Company will, if required at that time, provide a ratio of earnings
to fixed charges and/or ratio of combined fixed charges and preference dividends to earnings, respectively, in the applicable prospectus
supplement for such offering.
PLAN OF DISTRIBUTION
The Company may sell the securities being offered by it in this prospectus pursuant to underwritten public offerings, negotiated transactions,
block trades or any combination of such methods. The Company may sell the securities to or through
underwriters, dealers, agents or directly to one or more purchasers. The Company and its agents reserve the right to accept and
to reject in whole or in part any proposed purchase of securities. A prospectus supplement or post-effective amendment, which the
Company will file each time the Company effects an offering of any securities, will provide the names
of any underwriters, dealers or agents, if any, involved in the sale of such securities, and any applicable fees, commissions,
or discounts to which such persons shall be entitled to in connection with such offering.
The Company and its agents, dealers
and underwriters, as applicable, may sell the securities being offered by the Company in this prospectus from time to time in
one or more transactions at:
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a fixed price or prices, which may be changed;
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market prices prevailing at the time of sale;
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prices related to such prevailing market prices;
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varying prices determined at the time of sale; or
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The Company may determine the price or other terms of the securities offered under this prospectus by use of an electronic auction. The Company
will describe how any auction will determine the price or any other terms, how potential investors may participate in the auction
and the nature of the underwriters’ obligations in the applicable prospectus supplement or amendment.
The Company may solicit directly
offers to purchase securities. The Company may also designate agents from time to time to solicit offers to purchase
securities. Any agent that the Company designates, who may be deemed to be an underwriter as that
term is defined in the Securities Act, may then resell such securities to the public at varying prices to be determined by
such agent at the time of resale.
The Company may engage in at the market offerings of the Company's common stock. An at the market offering is an offering of the Company's
common stock at other than a fixed price to or through a market maker. The Company shall name any underwriter that the Company
engages for an at the market offering in a post-effective amendment to the registration statement containing this prospectus. The
Company shall also describe any additional details of the Company's arrangement with such underwriter, including commissions or
fees paid, or discounts offered, by the Company and whether such underwriter is acting as principal or agent, in the related prospectus
supplement.
If the Company uses underwriters to sell securities, the Company will enter into an underwriting agreement with the
underwriters at the time of the sale to them, which agreement shall be filed as an exhibit to the related prospectus supplement.
Underwriters may also receive commissions from purchasers of the securities. Underwriters may also use dealers to sell securities.
In such an event, the dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters
and/or commissions from the purchasers for whom they may act as agents.
Underwriters, dealers, agents and other
persons may be entitled, under agreements that may be entered into with the Company, to indemnification
by the Company against certain civil liabilities, including liabilities under the Securities Act or
to contribution with respect to payments which they may be required to make in respect of such liabilities. Underwriters and agents
may engage in transactions with, or perform services for, the Company in the ordinary course of business.
If so indicated in the applicable prospectus
supplement, the Company may authorize underwriters, dealers or other persons to solicit offers by certain
institutions to purchase the securities offered by the Company under this prospectus pursuant to contracts
providing for payment and delivery on a future date or dates. The obligations of any purchaser under these contracts will be subject
only to those conditions described in the applicable prospectus supplement, and the prospectus supplement will set forth the price
to be paid for securities pursuant to those contracts and the commissions payable for solicitation of the contracts.
Any underwriter may engage in over-allotment,
stabilizing and syndicate short covering transactions and penalty bids in accordance with Regulation M of the Exchange Act. Over-allotment
involves sales in excess of the offering size, which create a short position. Stabilizing transactions involve bids to purchase
the underlying security so long as the stabilizing bids do not exceed a specified maximum. Syndicate short covering transactions
involve purchases of securities in the open market after the distribution has been completed in order to cover syndicate short
positions. Penalty bids permit the underwriters to reclaim selling concessions from dealers when the securities originally sold
by such dealers are purchased in covering transactions to cover syndicate short positions. These transactions may cause the price
of the securities sold in an offering to be higher than it would otherwise be. These transactions, if commenced, may be discontinued
by the underwriters at any time.
The Company's common stock is quoted on
The NASDAQ Global Market under the trading symbol "ANIP." The other securities are not listed on any securities exchange
or other stock market and, unless the Company states otherwise in the applicable prospectus supplement, the Company does not intend
to apply for listing of the other securities on any securities exchange or other stock market. Any underwriters to whom the Company
sells securities for public offering and sale may make a market in the securities that they purchase, but the underwriters will
not be obligated to do so and may discontinue any market making at any time without notice. Accordingly, the Company gives you
no assurance as to the development or liquidity of any trading market for the securities.
The anticipated date of delivery of the
securities offered hereby will be set forth in the applicable prospectus supplement relating to each offering.
In order to comply with certain state
securities laws, if applicable, the securities may be sold in such jurisdictions only through registered or licensed brokers
or dealers. In certain states, the securities may not be sold unless the securities have been registered or qualified for
sale in such state or an exemption from regulation or qualification is available and is complied with. Sales of securities
must also be made by the Company in compliance with all other applicable state securities laws and regulations.
The Company shall pay all expenses of the
registration of the securities.
DESCRIPTION OF DEBT SECURITIES
We may issue debt
securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible
debt. While the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus,
we will describe the particular terms of any debt securities that we may offer in more detail in an applicable prospectus supplements.
The terms of any debt securities offered under any applicable prospectus supplement may differ from the terms described below.
Unless the context requires otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures
that specify the terms of a particular series of debt securities.
We will issue the
debt securities under the indenture that we will enter into with the trustee named in the indenture. The indenture will be qualified
under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We have filed the form of indenture as an exhibit
to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing
the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus
is a part or will be incorporated by reference from reports that we file with the Securities and Exchange Commission, or the SEC.
The following summary
of material provisions of the debt securities and the indenture is subject to, and qualified in its entirety by reference to, all
of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read any applicable prospectus
supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as
well as the complete indenture that contains the terms of the debt securities.
General
The indenture does not limit the amount
of debt securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may authorize
and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale
of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or
other provisions designed to give holders of any debt securities protection against changes in our operations, financial condition
or transactions involving us.
We may issue the debt securities issued
under the indenture as “discount securities,” which means they may be sold at a discount below their stated principal
amount. These debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original
issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms
of the debt securities. One or more series of debt securities may be variable rate debt securities that may be exchanged for fixed
rate debt securities. Material U.S. federal income tax considerations applicable to debt securities issued with OID will be described
in more detail in any applicable prospectus supplement.
We will comply with Section 14(e) under
the Exchange Act to the extent applicable, and any other tender offer rules under the Exchange Act, which may then be applicable,
in connection with any obligation we may have to purchase debt securities at the option of the holders thereof. Any such obligation
applicable to a series of debt securities will be described in any applicable prospectus supplements.
Any applicable prospectus supplement relating
to a series of debt securities being offered will contain the following terms, if applicable:
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the title of the series of debt securities and the ranking;
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the aggregate principal amount and any limit on that amount;
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the price at which the debt securities will be issued;
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the date on which the debt securities mature;
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the fixed or variable rate at which the debt securities will bear interest, or the method by which the rate shall be determined;
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the timing, place and manner of making principal, interest and any premium payments on the debt securities, and, if applicable,
where the debt securities may be surrendered for registration of transfer or exchange;
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the date or dates, if any, after which the debt securities may be converted or exchanged into or for our common stock or another
company’s securities or property or cash, and the terms of any such conversion or exchange;
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any redemption or early repayment provisions;
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any sinking fund or similar provisions;
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the authorized denominations;
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any applicable subordination provisions;
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any guarantees of the securities by our subsidiaries or others;
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the currency in which we will pay the principal, interest and any premium payments on the debt securities;
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whether the amount of payments of principal of (and premium, if any) or interest, if any, on the debt securities may be determined
with reference to an index, formula or other method and the manner in which the amounts shall be determined;
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the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral
multiple thereof;
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the time period within which, the manner in which and the terms and conditions upon which the purchaser of the securities can
select the payment currency;
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the provisions, if any, granting special rights to the holders of debt securities upon certain events;
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any additions to or changes in the events of default or covenants with respect to the debt securities, and any change in the
right of the trustee or the holders, from those described in this prospectus, to declare principal, premium and interest to be
due and payable;
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additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
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additions to or changes in the provisions relating to satisfaction and discharge of the indenture;
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additions to or changes in the provisions relating to the modification of the indenture both with and without the consent of
holders of debt securities issued under the indenture;
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whether and under what circumstances we will pay any additional amounts on the debt securities for any tax, assessment or governmental
charge and, if so, whether we will have the option to redeem the debt securities instead of paying those amounts;
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the form (registered and/or bearer securities), any restrictions applicable to the offer, sale or delivery of bearer securities
and the terms, if any, upon which bearer securities may be exchanged for registered securities and vice versa;
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the date of any bearer securities or any global security, if other than the date of original issuance of the first security
of the series to be issued;
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the person to whom and manner in which any interest shall be payable;
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whether the securities will be issued in whole or in part in the form of one or more global securities;
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the identity of the depositary for global securities;
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whether a temporary security is to be issued with respect to the series and whether any interest payable prior to the issuance
of definitive securities of the series will be credited to the account of the persons entitled thereto;
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the terms upon which beneficial interests in a temporary global security may be exchanged in whole or in part for beneficial
interests in a definitive global security or for individual definitive securities and the terms upon which exchanges may be made;
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the securities exchange(s), if any, on which the securities will be listed;
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whether any underwriter(s) will act as market maker(s) for the securities;
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the form (certificated or book-entry);
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the form and/or terms of certificates, documents or conditions which may be necessary, if any, for the debt securities to be
issuable in final form; and
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additional terms not inconsistent with the provisions of the indenture.
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Debt securities may be sold at a substantial
discount below their stated principal amount, bearing no interest or interest at a rate which at the time of issuance is below
market rates.
Conversion or Exchange Rights
We will set forth in any applicable prospectus
supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common stock or our other
securities. We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory,
at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock
or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Except as set forth in any applicable prospectus
supplement, the indenture will provide that we shall not consolidate with, or sell, assign, transfer, lease or convey all or substantially
all of our assets to, or merge into, another business entity, unless:
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we are the surviving entity or, in the event that we are not the surviving entity, the entity formed by the transaction (in
a consolidation) or the entity which received the transfer of assets is organized under the laws of any state of the United States
or the District of Columbia and that the entity assumes all of our obligations under the debt securities and the indenture; and
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immediately after giving effect to the transaction, no event of default, as defined in the indenture, shall have occurred and
be continuing.
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Notwithstanding the foregoing, we may merge
with another business entity or acquire by purchase or otherwise all or any part of the property or assets of any other company
in a transaction in which we are the surviving entity.
Events of Default
Unless otherwise specified in any applicable
prospectus supplement, the following are events of default with respect to any series of debt securities issued under the indenture:
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failure to pay principal of any debt security of that series when due and payable at maturity, upon acceleration, redemption
or otherwise;
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failure to pay any interest on any debt security of that series when due, and the default continues for 30 days;
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failure to make sinking fund payments when due;
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failure to comply with any covenant or warranty contained in the indenture, other than covenants or warranties contained in
the indenture solely for the benefit of other series of debt securities, and the default continues for 30 days after notice from
the trustee or the holders of at least 25% in principal amount of the then outstanding debt securities of that series;
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certain events of bankruptcy, insolvency or reorganization; and
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any other event of default provided with respect to that particular series of debt securities.
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If an event of default occurs and continues,
then upon written notice to us the trustee or the holders of at least 25% in principal amount of the outstanding debt securities
of that series may declare the unpaid principal amount of and any accrued and unpaid interest on, all debt securities of that series
to be due and payable immediately. However, at any time after a declaration of acceleration with respect to debt securities of
any series has been made, the holders of a majority in principal amount of the outstanding debt securities of that series may rescind
and annul the acceleration:
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if all events of default other than the nonpayment of principal of or interest on the debt securities of that series which
have become due solely because of the acceleration have been waived or cured; and
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the rescission would not conflict with any judgment or decree of a court of competent jurisdiction. For information as to waiver
of defaults, see “Modification of Indenture; Waiver” below.
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The indenture will provide that, subject
to the duty of the trustee during an event of default to act with the required standard of care, the trustee will be under no obligation
to exercise any of its rights or powers under the indenture at the request or direction of any of the holders, unless the holders
shall have offered to the trustee reasonable security or indemnity. Subject to certain provisions, including those requiring security
or indemnification of the trustee, the holders of a majority in principal amount of the outstanding debt securities of any series
will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee,
or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series.
We will be required to furnish to the trustee
under the indenture annually a statement as to the performance by us of our obligations under that indenture and as to any default
in our performance.
Modification of Indenture; Waiver
Subject to certain exceptions, the terms
of the indenture or the debt securities may be amended or supplemented by us and the trustee with the written consent of the holders
of at least a majority in principal amount of the outstanding debt securities of each series affected by the amendment with each
series voting as a separate class. Without the consent of any holder of the debt securities, we and the trustee may amend the terms
of the indenture or the debt securities to:
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cure any ambiguity, defect or inconsistency;
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provide for the assumption of our obligations to holders of the debt securities by a successor corporation;
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provide for uncertificated debt securities in addition to certificated debt securities;
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make any change that does not adversely affect the rights of any holder of the debt securities in any material respect;
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add to, change or eliminate any other provisions of the indenture in respect of one or more series of debt securities if the
change would not (i) apply to any security of any series created prior to the execution of a supplemental indenture and entitled
to the benefit of the provision, and (ii) modify the rights of the holder of any security or would become effective only when there
is no outstanding security of any series created prior to the execution of the supplemental indenture and entitled to the benefits
of the provisions proposed to be changed;
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establish any additional series of debt securities; or
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comply with any requirement of the SEC in connection with the qualification of the indenture under the Trust Indenture Act.
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However, holders of each series of debt
securities affected by a modification must consent to modifications that have the following effect:
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reduce the principal amount of the debt securities;
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reduce the rate or change the time for payment of interest;
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change the fixed maturity date;
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change the date on which any debt security may be subject to redemption or repurchase, or reduce the redemption or repurchase
price;
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make any debt security payable in currency other than that stated in the debt security;
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waive any existing default or event of default and the resulting consequences;
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modify the right of any holder to receive payment of principal or interest on any debt security;
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impair the right of any holder to institute suit for the enforcement of any payment due; or
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make any change in the foregoing amendment provisions which require each holder’s consent.
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Any existing default may be waived with
the consent of the holders of at least a majority in principal amount of the then outstanding debt securities of the series affected.
The consent of the holders of debt securities is not necessary to approve the particular form of any proposed amendment to any
indenture. It is sufficient if any consent approves the substance of the proposed amendment.
Covenants
Except as permitted under “Consolidation,
Merger or Sale” the indenture will require us to do or cause to be done all things necessary to preserve and keep in full
force and effect our existence, rights (declaration and statutory) and franchises; provided, however, that we shall not be required
to preserve any right or franchise if we determine that the right or franchise is no longer desirable in the conduct of our business
and that the loss of the right or franchise is not disadvantageous in any material respect to the holders of the debt securities.
The indenture will require us to pay or
discharge or cause to be paid or discharged, before payment becomes delinquent, all taxes, assessments and governmental charges
levied or imposed upon us, except any tax, assessment, charge or claim the amount or applicability of which is being contested
in good faith.
Reference is made to the indenture and
applicable prospectus supplement for information with respect to any additional covenants specific to a particular series of debt
securities.
Discharge
Except as otherwise set forth in any applicable
prospectus supplement, we may terminate our obligations under the debt securities of any series, and the corresponding obligations
under the indenture when:
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we have paid or deposited with the trustee funds or United States government obligations in an amount sufficient to pay at
maturity all outstanding debt securities of the series, including interest other than destroyed, lost or stolen debt securities
of the series which have not been replaced or paid;
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all outstanding debt securities of the series have been delivered (other than destroyed, lost or stolen debt securities of
the series which have not been replaced or paid) to the trustee for cancellation; or
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all outstanding debt securities of any series have become due and payable; and
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we have paid all other sums payable under the indenture.
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In addition, we will have the option to
terminate substantially all our obligations under the debt securities of any series and the corresponding obligations under the
indenture, and we may exercise that option if:
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we have paid or deposited with the trustee, in trust an amount of cash or United States government obligations sufficient to
pay all outstanding principal of and interest on the then outstanding debt securities of the series at maturity or upon their redemption,
as the case may be;
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the deposit will not result in a breach of, or constitute a default under, the indenture;
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no default or event of default shall have occurred and continue on the date of deposit and no event of default as a result
of a bankruptcy or event which with the giving of notice or the lapse of time would become a bankruptcy event of default shall
have occurred and be continuing on the 91st day after that date;
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we deliver to the trustee a legal opinion that we have received from, or there has been published by, the United States Internal
Revenue Service a ruling, or there has been a change in tax law, in either case to the effect that the holders of the debt securities
of the series will not recognize income, gain or loss for Federal income tax purposes as a result of our exercise of our option
and shall be subject to Federal income tax on the same amounts and in the same manner and at the same times as would have been
the case if we did not exercise our option; and
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certain other conditions are met.
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We will have the option to be released
from our obligations with respect to the covenants to deliver reports required to be filed with the SEC and an annual compliance
certificate, and to make timely payments of taxes (including covenants described in an applicable prospectus supplement), and any
event of default occurring because of a default with respect to the covenants as they related to any series of debt securities,
and we may exercise that option if:
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we deposit or cause to be deposited with the trustee in trust an amount of cash or United States government obligations sufficient
to pay and discharge when due the entire unpaid principal of and interest on all outstanding debt securities of any series;
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the deposit will not result in a breach of, or constitute a default under, the indenture;
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no default or event of default shall have occurred and be continuing on the date of deposit and no event of default as a result
of a bankruptcy or event which with the giving of notice or the lapse of time would become a bankruptcy event of default shall
have occurred and be continuing on the 91st day after that date;
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we deliver to the trustee a legal opinion that the holders of the debt securities of the series will not recognize income,
gain or loss for Federal income tax purposes as a result of our exercise of our option and shall be subject to Federal income tax
on the same amounts and in the same manner and at the same times as would have been the case if we did not exercise our option;
and
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certain other conditions are met.
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Upon satisfaction of the applicable conditions,
our obligations under the indenture with respect to the debt securities of the series, other than with respect to the covenants
and events of default referred to above, shall remain in full force and effect.
Notwithstanding the foregoing, no discharge
or defeasance described above shall affect the following obligations to or rights of the holders of any series of debt securities:
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rights of registration of transfer and exchange of debt securities of the series;
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rights of substitution of mutilated, defaced, destroyed, lost or stolen debt securities of the series;
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rights of holders of debt securities of the series to receive payments of principal thereof and premium, if any, and interest
thereon when due;
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rights, obligations, duties and immunities of the trustee;
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rights of holders of debt securities of the series as beneficiaries with respect to property deposited with the trustee and
payable to all or any of them; and
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our obligations to maintain an office or agency in respect of the debt securities of the series.
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Form, Exchange and Transfer
We expect payment of principal, premium,
if any, and any interest on the debt securities to be payable, and the exchange and the transfer of debt securities will be registrable,
at the office of the trustee or at any other office or agency we maintain for that purpose. We expect to issue debt securities
in denominations of U.S. $1,000 or integral multiples of $1,000. No service charge will be made for any registration of transfer
or exchange of the debt securities, but we may require a payment to cover any tax or other governmental charges payable in connection
with an exchange or transfer.
A holder of debt securities may transfer
or exchange those debt securities in accordance with the indenture. The registrar for the debt securities may require a holder,
among other things, to furnish appropriate endorsements and transfer documents, and to pay any taxes and fees required by law or
permitted by the indenture. The registrar is not required to transfer or exchange any debt security selected for redemption or
any debt security for a period of 15 days before a selection of debt security to be redeemed. The registered holder of a debt security
may be treated as the owner of the security for all purposes.
We will name in the applicable prospectus
supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for
any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or
approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent
in each place of payment for the debt securities of each series.
Replacement Securities
Any mutilated certificate representing
a debt security or a certificate representing a debt security with a mutilated coupon will be replaced by us at the expense of
the holder upon surrender of the certificate to the trustee. Certificates representing debt securities or coupons that become destroyed,
stolen or lost will be replaced by us at the expense of the holder upon delivery to us and the trustee of evidence of any destruction,
loss or theft satisfactory to us and the trustee, provided that neither we nor the trustee has been notified that the certificate
or coupon has been acquired by a bona fide purchaser. In the case of any coupon which becomes destroyed, stolen or lost, the coupon
will be replaced by issuance of a new certificate representing the debt security in exchange for the certificate representing the
debt security to which the coupon appertains. In the case of a destroyed, lost or stolen certificate representing the debt security
or coupon, an indemnity bond satisfactory to the trustee and us may be required at the expense of the holder of the debt security
before a replacement certificate will be issued.
Information Concerning the Trustee
We will identify in any applicable prospectus
supplement relating to any series of debt securities the trustee with respect to the series. The indenture and the Trust Indenture
Act contain certain limitations on the rights of the trustee, should it become our creditor, to obtain payment of claims in certain
cases, or to realize on certain property received in respect of any the claim, as security or otherwise. The trustee and its affiliates
may engage in, and will be permitted to continue to engage in, other transactions with us and our affiliates; but if the trustee
acquires any conflicting interest, as defined in the Trust Indenture Act, it must eliminate the conflict or resign.
The holders of a majority in principal
amount of the then outstanding debt securities of any series will have the right to direct the time, method and place of conducting
any proceeding for exercising any remedy available to the trustee. The Trust Indenture Act and the indenture provide that in case
an event of default occurs is continuing, the trustee will be required, in the exercise of its rights and powers, to use the degree
of care and skill of a prudent man in the conduct of his own affairs. Subject to those provisions, the trustee will be under no
obligation to exercise any of its rights or powers under the indenture at the request of any of the holders of the debt securities,
unless they have offered to the trustee indemnity satisfactory to it.
Global Debt Securities
Unless we indicate otherwise in the applicable
prospectus supplement, the following provisions will apply to all debt securities.
The debt securities of a series may be
issued in whole or in part in the form of one or more global securities that will be deposited with a depositary that we will identify
in an applicable prospectus supplement. Each global security will be deposited with the depositary and will bear a legend regarding
any related restrictions or other matters as may be provided for pursuant to the applicable indenture.
Unless an applicable prospectus supplement
states otherwise, no global security may be transferred to, or registered or exchanged for, debt securities registered in the name
of, any person or entity other than the depositary, unless:
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the depositary has notified us that it is unwilling or unable or is no longer qualified to continue as depositary;;
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we order the trustee that the global security shall be so transferable, registrable and exchangeable, and the transfers shall
be registrable; or
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other circumstances, if any, as may be described in the applicable prospectus supplement
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All debt securities issued in exchange
for a global security or any portion of a global security will be registered in those names as the depositary may direct. The specific
terms of the depositary arrangement with respect to any portion of a series of debt securities to be represented by a global security
will be described in an applicable prospectus supplement.
Debt securities which are to be represented
by a global security to be deposited with or on behalf of a depositary will be represented by a global security registered in the
name of the depositary or its nominee. Upon the issuance of the global security, and the deposit of the global security with the
depositary, the depositary will credit, on its book-entry registration and transfer system, the respective principal amounts of
the debt securities represented by the global security to the accounts of institutions that have accounts with the depositary or
its nominee, or the Participants. The accounts to be credited will be designated by the underwriters or agents of the debt securities
or by us, if the debt securities are offered and sold directly by us.
Ownership of beneficial interests in a
global security will be limited to Participants or persons that may hold interests through Participants. Ownership of beneficial
interests in a global security will be shown on, and the transfer of that ownership interest will be effected only through, records
maintained by the depositary or its nominee for the global security or by Participants or persons that hold through Participants.
The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of the securities in certificated form. Those laws may impair the
ability to transfer beneficial interests in global securities.
So long as the depositary, or its nominee,
is the registered owner of a global security, the depositary or the nominee, as the case may be, will be considered the sole owner
or holder of the debt securities represented by the global security for all purposes under the indenture. Payment of principal
of, and premium and interest, if any, on debt securities will be made to the depositary or its nominee as the registered owner
or bearer as the case may be of the global security representing the debt securities. Each person owning a beneficial interest
in a global security must rely on the procedures of the depositary and, if the person is not a Participant, on the procedures of
the Participant through which the person owns its interest, to exercise any rights of a holder under the indenture. If we request
any action of holders or if an owner of a beneficial interest in a global security desires to give any notice or take any action
a holder is entitled to give or take under the indenture, the depositary will authorize the Participants to give the notice or
take the action, and Participants would authorize beneficial owners owning through the Participants to give the notice or take
the action or would otherwise act upon the instructions of beneficial owners owning through them.
The rights of any holder of a debt security
to receive payment of principal and premium of, if any, and interest, on or after the respective due dates expressed or provided
for in the debt security, or to institute suit for the enforcement of any payment on or after the applicable date, shall not be
impaired or affected without the consent of the holders.
Neither we, the trustee, any paying agent
nor the security registrar for a debt security will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of the global security for the debt security or for maintaining,
supervising or receiving any records relating to the beneficial ownership interests.
We expect that the depositary or its nominee,
upon receipt of any payment of principal, premium or interest, will credit immediately Participants’ accounts with payments
in amounts proportionate to their respective beneficial interests in the principal amount of the global security as shown on the
records of the depositary or its nominee. We also expect that payments by Participants to owners of beneficial interests in a global
security held through the Participants will be governed by standing instructions and customary practices, as is now the case with
securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility
of the Participants.
If the depositary for a global security
representing debt securities of a particular series is at any time unwilling or unable to continue as depositary and we do not
appoint a successor depositary within 90 days, we will issue debt securities of the series in definitive form in exchange for the
global security. In addition, we may at any time and in our sole discretion determine not to have the debt securities of a particular
series represented by one or more global securities and, in that event, will issue debt securities of the series in definitive
form in exchange for all of the global securities representing debt securities of the series.
Payment and Paying Agent
Unless we otherwise indicate in any applicable
prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in
whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record
date for the interest.
We will pay principal of and any premium
and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless
we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the
holder or by wire transfer to certain holders. Unless we otherwise indicate in any applicable prospectus supplement, we will designate
the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series.
We will name in an applicable prospectus supplement any other paying agents that we initially designate for the debt securities
of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the
trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end
of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt
security thereafter may look only to us for payment thereof.
Governing Law
The indentures and the debt securities
will be governed by, and construed under, the law of the State of New York.
DESCRIPTION OF PREFERRED STOCK
As of the date of this prospectus, the
Company has authorized 1,666,667 shares of preferred stock, par value $.0001 per share, none of which are outstanding. Under the
Company's Restated Certificate of Incorporation, the Company's Board of Directors is authorized to issue shares of the Company's
preferred stock from time to time, in one or more classes or series, without stockholder approval. Prior to the issuance of shares
of each series, the Board of Directors is required by the General Corporation Law of the State of Delaware to adopt resolutions
and file a Certificate of Designation with the Secretary of State of the State of Delaware, fixing for each such series the designations,
powers, preferences, rights, qualifications, limitations and restrictions of the shares of such series. Any exercise of the Company's
Board of Directors of its rights to do so may affect the rights and entitlements of the holders of the Company's common stock as
set forth below.
The Company's Board of Directors could
authorize the issuance of shares of preferred stock with terms and conditions which could have the effect of discouraging a takeover
or other transaction which holders of some, or a majority, of such shares might believe to be in their best interests or in which
holders of some, or a majority, of such shares might receive a premium for their shares over the then-market price of such shares.
General
Subject to limitations prescribed by the
General Corporation Law of the State of Delaware, the Company's Restated Certificate of Incorporation and the Company's Amended
and Restated Bylaws ("Bylaws"), the Company's Board of Directors is authorized to fix the number of shares constituting
each series of preferred stock and the designations, powers, preferences, rights, qualifications, limitations and restrictions
of the shares of such series, including such provisions as may be desired concerning voting, redemption, dividends, dissolution
or the distribution of assets, conversion or exchange, and such other subjects or matters as may be fixed by resolution of the
Board of Directors. Each series of preferred stock that the Company offers under this prospectus will, when issued, be fully paid
and nonassessable and will not have, or be subject to, any preemptive or similar rights.
The applicable prospectus supplement(s)
will describe the following terms of the series of preferred stock in respect of which this prospectus is being delivered:
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the title and stated value of the preferred stock;
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the number of shares of the preferred stock offered, the liquidation preference per share and the purchase price of the preferred
stock;
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the dividend rate(s), period(s) and/or payment date(s) or the method(s) of calculation for dividends;
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whether dividends shall be cumulative or non-cumulative and, if cumulative, the date from which dividends on the preferred
stock shall accumulate;
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the procedures for any auction and remarketing, if any, for the preferred stock;
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the provisions for a sinking fund, if any, for the preferred stock;
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the provisions for redemption, if applicable, of the preferred stock;
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any listing of the preferred stock on any securities exchange or market;
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the terms and conditions, if applicable, upon which the preferred stock will be convertible into common stock or another series
of the Company's preferred stock, including the conversion price (or its manner of calculation) and conversion period;
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the terms and conditions, if applicable, upon which preferred stock will be exchangeable into the Company's debt securities,
including the exchange price, or its manner of calculation, and exchange period;
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voting rights, if any, of the preferred stock; a discussion of any material and/or special U.S. federal income tax considerations
applicable to the preferred stock;
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whether interests in the preferred stock will be represented by depositary shares;
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the relative ranking and preferences of the preferred stock as to dividend rights and rights upon liquidation, dissolution
or winding up of the Company's affairs;
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any limitations on issuance of any series of preferred stock ranking senior to or on a parity with the preferred stock as to
dividend rights and rights upon liquidation, dissolution or winding up of the Company's affairs; and
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any other specific terms, preferences, rights, limitations or restrictions on the preferred stock.
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Unless otherwise specified in the prospectus
supplement, the preferred stock will, with respect to dividend rights and rights upon liquidation, dissolution or winding up of
the Company rank:
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senior to all classes or series of the Company's common stock, and to all equity securities issued by the Company the terms
of which specifically provide that such equity securities rank junior to the preferred stock with respect to dividend rights or
rights upon the liquidation, dissolution or winding up of the Company;
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on a parity with all equity securities issued by the Company that do not rank senior or junior to the preferred stock with
respect to dividend rights or rights upon the liquidation, dissolution or winding up of the Company; and
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junior to all equity securities issued by the Company the terms of which do not specifically provide that such equity securities
rank on a parity with or junior to the preferred stock with respect to dividend rights or rights upon the liquidation, dissolution
or winding up of the Company (including any entity with which the Company may be merged or consolidated or to which all or substantially
all of the Company's assets may be transferred or which transfers all or substantially all of the Company's assets).
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As used for these purposes, the term "equity
securities" does not include convertible debt securities.
Transfer Agent and Registrar
The transfer agent and registrar for any
series of preferred stock will be set forth in the applicable prospectus supplement.
DESCRIPTION OF COMMON
STOCK
This description of the Company's common
stock is a summary. You should keep in mind, however, that it is the Company's Restated Certificate of Incorporation and Bylaws,
and not this summary, which define any rights you may acquire as a stockholder. There may be other provisions in such documents
which are also important to you. You should read such documents for a full description of the terms of the Company's capital stock,
along with the applicable provisions of Delaware law.
As of the date of this prospectus, the
Company has authorized 33.3 million shares of common stock, par value $0.0001 per share. As of June 9, 2017, there were 11,635,886
shares of common stock outstanding.
Subject to any preferential rights of any
preferred stock created by the Company's Board of Directors, as a holder of the Company's common stock you are entitled to such
dividends as the Company's Board of Directors may declare from time to time out of funds that the Company can legally use to pay
dividends. The holders of common stock possess exclusive voting rights, except to the extent the Company's Board of Directors specifies
voting power for any preferred stock that, in the future, may be issued.
As a holder of the Company's common stock, you are entitled
to one vote for each share of common stock and do not have any right to cumulate votes in the election of directors. Upon the Company's
liquidation, dissolution or winding-up, you will be entitled to receive on a proportionate basis any assets remaining after provision
for payment of creditors and after payment of any liquidation preferences to holders of preferred stock. Holders of the Company's
common stock have no preemptive rights and no conversion rights or other subscription rights. There are no redemption or sinking
fund provisions applicable to the Company's common stock. All the outstanding shares of common stock are, and the shares offered
by this prospectus, when issued and paid for, will be, validly issued, fully paid and nonassessable. The Company's common stock
is quoted on The NASDAQ Global Market under the trading symbol "ANIP."
Anti-Takeover Provisions
As a corporation organized under the laws
of the State of Delaware, the Company is subject to Section 203 of the General Corporation Law of the State of Delaware, which
restricts the Company's ability to enter into business combinations with an interested stockholder or a stockholder owning 15%
or more of the Company's outstanding voting stock, or that stockholder’s affiliates or associates, for a period of three
years. These restrictions do not apply if:
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before becoming an interested stockholder, the Company's Board of Directors approves either the business combination or the
transaction in which the stockholder becomes an interested stockholder;
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upon consummation of the transaction in which the stockholder becomes an interested stockholder, the interested stockholder
owns at least 85% of our voting stock outstanding at the time the transaction commenced, subject to exceptions; or
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on or after the date a stockholder becomes an interested stockholder, the business combination is both approved by the Company's
Board of Directors and authorized at an annual or special meeting of the Company's stockholders by the affirmative vote of at least
two-thirds of the outstanding voting stock not owned by the interested stockholder.
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Number of Directors; Removal
The Company's Bylaws provide that the Company's
Board of Directors shall consist of at least one director and may consist of such larger number as may be determined, from time-to-time,
by the Board of Directors. The Company's Bylaws provide that directors may be removed with or without cause by the affirmative
vote of holders of a majority of the total voting power of all outstanding securities.
This provision and the Board of Directors’
right to issue shares of the Company's preferred stock from time to time, in one or more classes or series without stockholder
approval are intended to enhance the likelihood of continuity and stability in the composition of the policies formulated by the
Company's Board of Directors. These provisions are also intended to discourage some tactics that may be used in proxy fights.
Transfer Agent and Registrar
The Transfer Agent and Registrar for the
Company's common stock is Continental Stock Transfer & Trust Company.
DESCRIPTION OF WARRANTS
General
We may issue warrants for the purchase
of our common stock, preferred stock or debt securities. We may issue warrants independently or together with any of our securities.
Warrants also may be attached to other securities that we may issue. We may issue warrants in different series under separate warrant
agreements or under a single warrant agreement between us and a specified warrant agent described in an applicable prospectus supplement.
The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship
of agency or trust for or with any holders or beneficial owners of warrants.
As of the date of this prospectus, we have
warrants to purchase 2,068,793 shares of common stock at an exercise price of $96.21 per share issued and outstanding that are
not registered under the registration statement of which this prospectus is a part.
An applicable prospectus supplement will
describe the specific terms of any warrants that we issue or offer, including:
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the title of the warrants;
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the aggregate number of warrants;
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the price or prices at which the warrants will be issued;
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the currencies in which the price or prices of the warrants may be payable;
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the designation, amount and terms of our capital stock or debt securities purchasable upon exercise of the warrants;
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the designation and terms of our other securities, if any, that may be issued in connection with the warrants, and the number
of warrants issued with each corresponding security;
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if applicable, the date that the warrants and the securities purchasable upon exercise of the warrants will be separately transferable;
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the prices and currencies for which the securities purchasable upon exercise of the warrants may be purchased;
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the date that the warrants may first be exercised;
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the date that the warrants expire;
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the minimum or maximum amount of warrants that may be exercised at any one time;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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information with respect to book-entry procedures, if any;
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the manner in which the warrant agreements and warrants may be modified;
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a discussion of certain federal income tax considerations; and
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any other material terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise
of the warrants.
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Exercise of Warrants
Each warrant will entitle the holder to
purchase for cash the principal amount of debt securities, preferred stock or common stock at the applicable exercise price set
forth in, or determined as described in, the applicable prospectus supplement. Warrants may be exercised at any time up to the
close of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on the
expiration date, unexercised warrants will become void.
Warrants may be exercised by delivering
to the corporation trust office of the warrant agent or any other officer indicated in the applicable prospectus supplement (a)
the warrant certificate properly completed and duly executed and (b) payment of the amount due upon exercise. As soon as practicable
following exercise, we will forward the debt securities, preferred stock or common stock purchasable upon exercise. If less than
all of the warrants represented by a warrant certificate are exercised, a new warrant certificate will be issued for the remaining
warrants if the expiration date of the warrants has not occurred. If we so indicate in the applicable prospectus supplement, holders
of the warrants may surrender securities as all or part of the exercise price for warrants. We may, but we will not be required
to, permit the exercise of warrants through the delivery of a notice of guaranteed delivery from a bank, a trust company, or a
New York Stock Exchange member guaranteeing delivery of (1) payment of the exercise price for the securities for which the warrant
is being exercised, and (2) a properly completed and executed warrant certificate. The notice of guaranteed delivery must be received
by the warrant agent before the expiration of the warrants, and the warrant agent will not honor a notice of guaranteed delivery
unless a properly completed and executed warrant certificate and full payment for the securities being purchased are received by
the warrant agent by the close of business on the third business day after the expiration time of the warrants.
Governing Law
Unless we provide otherwise in an applicable
prospectus supplement, the warrants and warrant agreements, and any claim, controversy or dispute arising under or related to the
warrants or warrant agreements, will be governed by and construed in accordance with the laws of the State of New York.
Enforceability of Rights by Holders
of Warrants
Each warrant agent, if any, will act solely
as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with
any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant
agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including
any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant
may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its
right to exercise, and receive the securities purchasable upon exercise of, its warrants.
DESCRIPTION OF RIGHTS
We may issue rights to purchase shares
of our common stock, preferred stock, or warrants in one or more series. Rights may be issued independently or together with any
other offered security and may or may not be transferable by the person purchasing or receiving the subscription rights. In connection
with any rights offering to our shareholders, we may enter into a standby underwriting arrangement with one or more underwriters
pursuant to which the underwriters will purchase any of the offered securities remaining unsubscribed after the expiration of the
rights offering. In connection with a rights offering to our shareholders, we will distribute certificates evidencing the rights
and an applicable prospectus supplement to our shareholders on the record date that we set for receiving rights in the rights offering.
An applicable prospectus supplement will describe the following terms of rights in respect of which this prospectus is being delivered:
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the title of the rights;
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the securities for which the rights are exercisable;
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the exercise price for the rights;
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the date of determining the security holders entitled to the rights distribution;
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the number of the rights issued to each security holder;
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the extent to which the rights are transferable;
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if applicable, a discussion of the material United States federal income tax considerations applicable to the issuance or exercise
of the rights;
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the date on which the right to exercise the rights shall commence, and the date on which the rights shall expire (subject to
any extension);
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the conditions to completion of the rights offering;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the rights;
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the extent to which the rights include an over-subscription privilege with respect to unsubscribed securities;
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if applicable, the material terms of any standby underwriting or other purchase arrangement that we may enter into in connection
with the rights offering; and
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any other terms of the rights, including terms, procedures and limits relating to the exchange or exercise of the rights.
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Each right will entitle the holder to purchase
for cash the amount of securities, at the exercise price. Rights may be exercised at any time up to the close of business on the
expiration date of the rights. After the close of business on the expiration date, all unexercised rights will become void. The
manner in which rights may be exercised will be described in an applicable prospectus supplement. We may, but we will not be required
to, permit the exercise of rights through the delivery of a notice of guaranteed delivery from a bank, a trust company, or a New
York Stock Exchange member guaranteeing delivery of (1) payment of the exercise price for the securities for which the rights are
being exercised, and (2) a properly completed and executed rights certificate. The notice of guaranteed delivery must be received
by the rights agent before the expiration of the rights, and the rights agent will not honor a notice of guaranteed delivery unless
a properly completed and executed rights certificate and full payment for the securities being purchased are received by the rights
agent by the close of business on the third business day after the expiration time of the rights. Upon receipt of payment and the
proper completion and due execution of the rights certificate at the designated office of the rights agent or any other office
indicated in an applicable prospectus supplement, we or the transfer agent will forward, as soon as practicable, the securities
purchased through upon the exercise of the rights. We may determine to offer any unsubscribed offered securities directly to persons
other than shareholders, to or through agents, underwriters or dealers or through a combination of the methods, including pursuant
to standby underwriting arrangements, as set forth in an applicable prospectus supplement.
DESCRIPTION OF UNITS
The following description,
together with the additional information we may include in any applicable prospectus supplement, summarizes the material terms
and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply generally
to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail
in an applicable prospectus supplement. The terms of any units offered under an applicable prospectus supplement may differ from
the terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus
or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We will file as
exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we
file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and any supplemental
agreements, before the issuance of the related series of units. The following summaries of material terms and provisions of the
units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental
agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the
particular series of units that we sell under this prospectus, as well as the complete unit agreement and any supplemental agreements
that contain the terms of the units.
General
We may issue units
comprised of one or more debt securities, common stock, preferred stock, warrants and/or units in any combination. Each unit will
be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will
have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide
that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified
date.
We will describe
in an applicable prospectus supplement the terms of the series of units, including:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately;
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any provisions of the governing unit agreement that differ from those described below; and
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the
units.
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The provisions
described in this section, as well as those described under “Description of Preferred Stock,” “Description of
Common Stock,” “Description of Debt Securities,” “Description of Warrants,” and “Description
of Rights” will apply to each unit and to any preferred stock, common stock, debt security, warrant or right included in
each unit, respectively.
Issuance in
Series
We may issue units
in the amounts and in numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each unit agent
will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or
trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit
agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any
duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may,
without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as
holder under any security included in the unit.
Title
We, the unit agent
and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by
that certificate for any purposes and as the person entitled to exercise the rights attaching to the units, despite any notice
to the contrary.
EXPERTS
The financial statements and management’s assessment of
the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control
over Financial Reporting) incorporated in this Prospectus by reference to the Company’s Annual Report on Form 10-K for the
year ended December 31, 2016 have been so incorporated in reliance on the reports of EisnerAmper LLP, an independent registered
public accounting firm, given on the authority of said firm as experts in accounting and auditing.
LEGAL MATTERS
If and when the securities being registered
hereunder are issued, the validity of such issuance will be passed upon for the Company by Dentons US LLP, New York, New York.
WHERE YOU CAN FIND
MORE INFORMATION
The Company files annual, quarterly and
periodic reports, proxy statements and other information with the SEC. You may read and copy any materials that the Company files
with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information
on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Many of the Company's SEC filings are also
available to the public from the SEC’s Website at "http://www.sec.gov." The Company makes available free of charge
its annual, quarterly and current reports, proxy statements and other information upon request. To request such materials, please
contact Corporate Secretary at the following address or telephone number: ANI Pharmaceuticals, Inc., 210 Main Street West, Baudette,
Minnesota 56623, Attention: Corporate Secretary; (218) 634-3591. Exhibits to the documents will not be sent, unless those exhibits
have specifically been incorporated by reference in this prospectus.
The Company maintains its website at http://www.anipharmaceuticals.com.
The Company's website and the information contained therein or connected thereto are not incorporated into this Registration Statement.
The Company has filed
with the SEC a registration statement on Form S-3 under the Securities Act relating to the securities the Company is offering by
this prospectus. This prospectus does not contain all of the information set forth in the registration statement and the exhibits
and schedules to the registration statement. Please refer to the registration statement and its exhibits and schedules for further
information with respect to the Company and the Company's securities. Statements contained in this prospectus as to the contents
of any contract or other document are not necessarily complete and, in each instance, the Company refers you to the copy of that
contract or document filed as an exhibit to the registration statement. You may read and obtain a copy of the registration statement
and its exhibits and schedules from the SEC, as described in the preceding paragraph.
INFORMATION INCORPORATED
BY REFERENCE
The SEC allows the Company to "incorporate
by reference" the information the Company file swith them, which means that the Company can disclose important information
to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus,
and information that the Company files later with the SEC will automatically update and supersede this information. The Company
incorporates by reference the documents filed with SEC listed below:
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The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2016, filed with the SEC on March 2, 2017.
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The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2017, filed with the SEC on May 4, 2017.
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The Company's Current Reports on Form 8-K filed with the SEC on February 16, 2017, February 24, 2017, and May 19, 2017.
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The description of the general terms and provisions of the common stock is incorporated herein by reference to the description
included under the caption “Description of BioSante Capital Stock” of the joint proxy statement/prospectus included
in the Registration Statement on Form S-4 (File No. 333-188174) filed by the Company with the Securities and Exchange Commission
on April 26, 2013.
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In addition, all documents subsequently
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior
to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. However, any documents or portions thereof, whether specifically listed above
or filed in the future, that are not deemed “filed” with the Commission, including without limitation any information
furnished pursuant to Item 2.02 or 7.01 of Form 8-K or certain exhibits furnished pursuant to Item 9.01 of Form 8-K, shall not
be deemed to be incorporated by reference in this Registration Statement.
Any statement in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Registration
Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated
or deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
$350,000,000
ANI Pharmaceuticals, Inc.
Debt Securities
Preferred Stock
Common Stock
Warrants
Rights
Units
, 2017
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth all expenses,
other than the underwriting discounts and commissions, payable by the registrant in connection with the sale of the securities
being registered. All of such fees expenses, except for the registration fee, are estimates:
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Amount
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Securities and Exchange Commission registration fee
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$
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28,251
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(1)
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Accounting fees and expenses
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$
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5,000
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Legal fees and expenses
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$
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35,000
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Miscellaneous fees and expenses
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$
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3,500
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Total
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$
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71,751
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(1) Represents the registration fee of $40,565, offset by $12,314
previously paid in connection with unsold securities pursuant to Rule 415(a)(6) for the primary offering.
The Company shall bear all expenses in
connection with the issuance and distribution of the securities being offered hereby.
Item 15. Indemnification of Directors and Officers
Article VII of the Company's Restated Certificate
of Incorporation limits the liability of directors to the maximum extent permitted by Delaware law. Delaware law provides that
directors of a corporation will not be personally liable for monetary damages for breach of their fiduciary duties as directors,
except for liability for (i) any breach of their duty of loyalty to the corporation or its stockholders, (ii) acts or omissions
not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) unlawful payments of dividends or
unlawful stock repurchases or redemptions as provided in Section 174 of the General Corporation Law of the State of Delaware or
(iv) any transaction from which the director derives an improper personal benefit.
Article VI of the Company's Restated Certificate
of Incorporation provides that the Company shall indemnify, to the fullest extent authorized or permitted by law, as the same exists
or may thereafter be amended, any person who was or is made or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of
the Company), by reason of the fact that such person is or was a director or officer of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent of any other company, partnership, limited liability company,
joint venture, trust, employee benefit plan or other enterprise; provided, however, that the Company shall not indemnify any director
or officer in connection with any action by such director or officer against the Company unless the Company shall have consented
to such action. The Company may, to the extent authorized from time to time by the Company's Board of Directors, provide rights
to indemnification to employees and agents of the Company similar to those conferred in Article VI to directors and officers of
the Company. No amendment or repeal of Article VI shall apply to or have any effect on any right to indemnification provided thereunder
with respect to any acts or omission occurring prior to such amendment or repeal.
Article VIII of the Company's Bylaws provides
that the Company shall indemnify any and all of its directors or officers, including former directors or officers, and any employee,
who serve as an officer or director of any corporation at the request of the Company to the fullest extent permitted under and
in accordance with the laws of the State of Delaware.
The Company has entered into agreements
with all of its directors and officers under which the Company is required to indemnify them against expenses, judgments, penalties,
fines, settlements and other amounts actually and reasonably incurred, including expenses of a derivative action, in connection
with an actual or threatened proceeding if any of them may be made a party because he or she is or was one of the Company’s
directors or officers. The Company will be obligated to pay these amounts only if the director or officer acted in good faith and
in a manner that he or she reasonably believed to be in or not opposed to the best interests of the Company. With respect to any
criminal proceeding, the Company will be obligated to pay these amounts only if the director or officer had no reasonable cause
to believe his or her conduct was unlawful. The indemnification agreements also set forth procedures that will apply in the event
of a claim for indemnification.
These provisions in the Company's Restated
Certificate of Incorporation and Bylaws do not eliminate the officers’ and directors’ fiduciary duty, and in appropriate
circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware
law. In addition, each officer and director will continue to be subject to liability for breach of their duty of loyalty to the
Company for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for actions
leading to improper personal benefit to the officer or director and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provisions also do not affect an officer’s or director’s responsibilities
under any other law, such as the federal securities laws or state or federal environmental laws.
Item 16. Exhibits
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Exhibit No.
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Description
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Method of Filing
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1.1
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Form of Underwriting Agreement
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To be filed by amendment or pursuant to a report to be filed pursuant to Section 13 or 15(d) of the Exchange Act, if applicable, and incorporated herein by reference.
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3.1
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Restated Certificate of Incorporation of the Registrant
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Incorporated by reference to Exhibit 3.1 to the Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2013 (File No. 001-31812)
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3.2
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Amended and Restated Bylaws of the Registrant.
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Incorporated by reference to Exhibit 3.1 to the Registrant's Current Report on Form 8-K as filed with the Securities and Exchange Commission on February 16, 2017 (File No. 001-31812)
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4.1
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Specimen Stock Certificate Representing Common Stock
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Incorporated by reference to Exhibit 4.3 to the Registrant's Registration Statement on Form S-3, as amended (Reg. No. 333-105960)
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4.2
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Certificate of Designations for Preferred Stock
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To be filed by amendment or pursuant to a report to be filed pursuant to Section 13 or 15(d) of the Exchange Act, if applicable, and incorporated herein by reference.
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4.3
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Form of Stock Certificate Representing Preferred Stock
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To be filed by amendment or pursuant to a report to be filed pursuant to Section 13 or 15(d) of the Exchange Act, if applicable, and incorporated herein by reference.
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4.4
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Form of Unit Agreement, including Form of Unit, if any
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To be filed by amendment or pursuant to a report to be filed pursuant to Section 13 or 15(d) of the Exchange Act, if applicable, and incorporated herein by reference.
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4.5
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Form of Rights Agreement and Right Certificate, if any.
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To be filed by amendment or pursuant to a report to be filed pursuant to Section 13 or 15(d) of the Exchange Act, if applicable, and incorporated herein by reference.
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4.6
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Form of Indenture
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Filed herewith
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4.7
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Form of Debt Security
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To be filed, if necessary, by a Current Report on Form 8-K or by amendment
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4.8
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Form of Warrant Agreement, including Form of Warrant Certificate
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To be filed, if necessary, by a Current Report on Form 8-K or by amendment
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5.1
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Opinion of Dentons US LLP, legal counsel
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Filed herewith
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12.1
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Statement regarding computation of ratios of earnings to fixed charges
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To be filed by amendment or pursuant to a report to be filed pursuant to Section 13 or 15(d) of the Exchange Act, if applicable, and incorporated herein by reference.
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23.1
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Consent of EisnerAmper LLP, independent registered public accounting firm
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Filed herewith
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23.2
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Consent of Dentons US LLP, legal counsel
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Filed herewith (included in the opinion filed as Exhibit 5.1)
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24.1
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Powers of Attorney
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Filed herewith (included in signature page to this registration statement)
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25.1
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Form T-1 Statement of Eligibility of Trustee for the Indenture under the Trust Indenture Act of 1939
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To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
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Item 17. Undertakings
(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;
(ii) To reflect in the
prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the 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;
(iii) To include any material
information with respect to the plan of distribution not previously disclosed in the registration statement or any material change
to such information in the registration statement;
provided
,
however
,
that
(A) paragraphs (1)(i) and
(1)(ii) do not apply if the registration statement is on Form S-8 and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(B) paragraphs (1)(i), (1)(ii)
and (1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3, and the information required
to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission
by the registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose
of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration
by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose
of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities,
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, each filing of the registrant’s annual report pursuant
to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to section 15(d) of the Exchange) that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes
to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer,
the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the
underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms
differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms
of such offering.
(d) Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(e) The undersigned registrant hereby undertakes
that:
(1) For purposes of determining
any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared
effective.
(2) For the purpose of
determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(f) The undersigned registrant hereby undertakes
to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310
of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of
the Act.
SIGNATURES
Pursuant to the requirement of the Securities
Act, 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 Baudette, State of Minnesota, on the 12th day of June, 2017.
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ANI PHARMACEUTICALS, INC.
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By:
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/s/ Stephen P. Carey
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Stephen P. Carey
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Vice President, Finance and Chief Financial Officer
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We, the undersigned officers and directors
of ANI Pharmaceuticals, Inc., and each of us, do hereby constitute and appoint each of Arthur S. Przybyl and Stephen P. Carey,
or any of them, each acting alone, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution,
to do any and all acts and things in our name, place and stead, in any and all capacities, in connection with this registration
statement on Form S-3 under the Securities, or any registration statement for the same offering that is to be effective upon filing
under the Securities Act, including, without limitation, to sign for us or any of us in our names in the capacities indicated below
any and all amendments or supplements to this registration statement, including any and all stickers and post-effective amendments
to the registration statement, and to sign any and all additional registration statements relating to the same offering of securities
as this registration statement that are filed pursuant to Rule 462(b) under the Securities Act, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission and any applicable securities
exchange or securities self-regulatory body, granting unto said attorneys-in-fact and agents, each acting alone, 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 might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or their substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Name & Title
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Date
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/s/ Arthur S. Przybyl
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Arthur S. Przybyl
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June 12, 2017
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President, Chief Executive Officer and Director
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(Principal Executive Officer)
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/s/ Stephen P. Carey
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Stephen P. Carey
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June 12, 2017
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Vice President, Finance and Chief Financial Officer
(Principal Financial Officer)
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/s/ Robert E. Brown, Jr.
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Robert E. Brown, Jr.
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June 12, 2017
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Chairman of the Board of Directors
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/s/ Fred Holubow
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Fred Holubow
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June 12, 2017
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Director
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/s/ Tracy L. Marshbanks, Ph.D.
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Tracy L. Marshbanks, Ph.D.
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June 12, 2017
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Director
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/s/ Thomas A. Penn
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Thomas A. Penn
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June 12, 2017
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Director
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/s/ Daniel Raynor
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Daniel Raynor
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June 12, 2017
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Director
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ANI Pharmaceuticals (NASDAQ:ANIP)
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