Filed Pursuant to Rule 424(b)(4)
Registration No. 333-248728
PROSPECTUS
ACORDA THERAPEUTICS, INC.
158,408,779 Shares of Common Stock for Resale by Selling
Stockholders
This prospectus relates to the resale from time to time of up to
158,408,779 shares of common stock of Acorda Therapeutics, Inc., or
the Company, by the selling stockholders, including their
transferees, pledgees or donees, or their respective successors. We
are registering these shares on behalf of the selling stockholders,
to be offered and sold by them from time to time, to satisfy
certain registration rights that we have granted to the selling
stockholders. The shares being registered for resale are issuable
upon the conversion of or payment of
interest with respect to our 6.00% Convertible Secured Senior Notes
due 2024, or the senior secured convertible notes. We will
not receive any proceeds from the sale of the shares offered by
this prospectus or upon the conversion of the senior secured
convertible notes.
The selling stockholders identified in this prospectus, or their
respective transferees, pledgees or donees, or their respective
successors, may offer the shares from time to time through public
or private transactions at prevailing market prices, at prices
related to prevailing market prices or at privately negotiated
prices. The selling stockholders may resell the shares of common
stock directly or through one or more underwriters, broker-dealers
or agents. For additional information on the methods of sale that
may be used by the selling stockholders, see the section entitled
“Plan of Distribution” on page 14. For a list of the selling
stockholders, see the section entitled “Selling Stockholders” on
page 10.
We have agreed to bear all of the expenses incurred in connection
with the registration of these shares. The selling stockholders
will pay or assume discounts, commissions, fees of underwriters,
selling brokers or dealer managers and similar expenses, if any,
incurred for the sale of shares of our common stock.
We may amend or supplement this prospectus from time to time by
filing amendments or supplements as required. You should read the
entire prospectus and any amendments or supplements carefully
before you make your investment decision.
Our common stock is listed on The Nasdaq Global Select Market under
the symbol “ACOR.” On September 16, 2020, the last reported sale
price of our common stock on The Nasdaq Global Select Market was
$0.55 per share. You are urged to obtain current market quotations
for our common stock.
Investing in our securities involves a high degree of risk. You
should carefully consider the risks described under “Risk Factors”
on page 5, as well as in any applicable prospectus supplement, any
related free writing prospectus and other information contained or
incorporated by reference in this prospectus and any applicable
prospectus supplement, before making a decision to invest in our
securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these securities
or determined if this prospectus is accurate or complete. Any
representation to the contrary is a criminal offense.
The date of this prospectus is September 17, 2020.
TABLE
OF CONTENTS
1
ABOUT THIS PROSPECTUS
This prospectus provides you with a general description of the
shares of our common stock that may be resold by the selling
stockholders. Before purchasing any securities described in this
prospectus, you should carefully read both this prospectus, any
accompanying prospectus supplement and any free writing prospectus
prepared by or on behalf of us, together with the additional
information described under “Where You Can Find More
Information.”
This prospectus does not contain all of the information included in
the registration statement. For a more complete understanding of
the offering of the securities described in this prospectus, you
should refer to the registration statement, including its exhibits.
Those exhibits may be filed with the registration statement or may
be incorporated by reference to earlier Securities and Exchange
Commission, or SEC, filings listed in the registration statement or
in subsequent filings that we may make under the Securities
Exchange Act of 1934, as amended.
We have not and the selling stockholders have not authorized anyone
else to provide you with different or additional information from
that contained in this prospectus or any accompanying prospectus
supplement. We take no responsibility for, and can provide no
assurance as to the reliability of, any information that others may
give. We are not making an offer to sell or soliciting an offer to
buy these securities under any circumstance in any jurisdiction
where the offer or solicitation is not permitted. You should assume
that the information contained in this prospectus, any prospectus
supplement or any free writing prospectus that we have prepared is
accurate only as of the date of the respective document in which
the information appears, and that any information in documents that
we have incorporated by reference is accurate only as of the date
of the document incorporated by reference, regardless of the time
of delivery of this prospectus or any prospectus supplement or any
sale of a security. Our business, financial condition, results of
operations and prospects may have changed since those dates.
1
FORWARD-LOOKING
STATEMENTS
This prospectus and the documents incorporated herein by reference
contain forward-looking statements relating to future events and
our future performance within the meaning of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. You are cautioned that
such statements involve risks and uncertainties, including:
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we may not be able to
successfully market Inbrija or any other products under
development;
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the COVID-19 pandemic,
including related quarantines and travel restrictions, and the
potential for the illness to affect our employees or consultants or
those that work for other companies we rely upon, could have a
material adverse effect on our business operations or product
sales;
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our ability to raise
additional funds to finance our operations, repay outstanding
indebtedness or satisfy other obligations, and our ability to
control our costs or reduce planned expenditures and take other
actions, which are necessary for us to continue as a going
concern;
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risks associated with
complex, regulated manufacturing processes for pharmaceuticals,
which could affect whether we have sufficient commercial supply of
Inbrija to meet market demand;
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third party payers
(including governmental agencies) may not reimburse for the use of
Inbrija or our other products at acceptable rates or at all and may
impose restrictive prior authorization requirements that limit or
block prescriptions;
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competition for Inbrija,
Ampyra and other products we may develop and market in the future,
including increasing competition and accompanying loss of revenues
in the U.S. from generic versions of Ampyra (dalfampridine)
following our loss of patent exclusivity;
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the ability to realize
the benefits anticipated from acquisitions, among other reasons
because acquired development programs are generally subject to all
the risks inherent in the drug development process and our
knowledge of the risks specifically relevant to acquired programs
generally improves over time;
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the risk of unfavorable
results from future studies of Inbrija (levodopa inhalation powder)
or from our other research and development programs, or any other
acquired or in-licensed programs;
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the occurrence of
adverse safety events with our products;
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the outcome (by judgment
or settlement) and costs of legal, administrative or regulatory
proceedings, investigations or inspections, including, without
limitation, collective, representative or class action
litigation;
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failure to protect our
intellectual property, to defend against the intellectual property
claims of others or to obtain third party intellectual property
licenses needed for the commercialization of our products;
and
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failure to comply with
regulatory requirements could result in adverse action by
regulatory agencies.
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These
forward-looking statements are based on current expectations,
estimates, forecasts and projections about the industry and markets
in which we operate and management’s beliefs and assumptions. All
statements, other than statements of historical facts, included in
this prospectus and the documents incorporated herein by reference
regarding our strategy, future operations, future financial
position, future revenues, projected costs, prospects, plans and
objectives of management are forward-looking statements. The words
“anticipates,” “believes,” “estimates,” “expects,” “intends,”
“may,” “plans,” “projects,” “will,” “would,” and similar
expressions are intended to identify forward-looking statements,
although not all forward-looking statements contain these
identifying words. Actual results or events could differ materially
from the plans, intentions and expectations disclosed in the
forward-looking statements we make, and investors should not place
undue reliance on these statements. In addition to the risks and
uncertainties described above, we have included important factors
in the cautionary statements included in our Annual Report on
Form 10-K, for the year ended December 31, 2019, as
updated by our Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2020 and June 30, 2020, respectively, particularly
in the “Risk Factors” sections of such reports (as updated by the
disclosures in our subsequent filings with the SEC that are
2
incorporated by reference herein),
that we believe could cause actual results or events to differ
materially from the forward-looking statements that we make. Our
forward-looking
statements do not reflect the potential impact of any future
acquisitions, mergers, dispositions, joint ventures or investments
that we may make. Forward-looking statements in this
prospectus
are made only as of the date hereof
and,
except
as required by
law, we assume no obligation to update or revise any
forward-looking statements contained in this prospectus, the
accompanying prospectus supplement or any information incorporated
by reference herein or therein, whether as a result of any new
information,
future events or otherwise.
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THE
COMPANY
We are a biopharmaceutical company focused on developing therapies
that restore function and improve the lives of people with
neurological disorders. We market Inbrija (levodopa inhalation
powder), which is approved in the U.S. for intermittent treatment
of OFF episodes, also known as OFF periods, in people with
Parkinson’s disease treated with carbidopa/levodopa. Inbrija is for
as needed use and utilizes our ARCUS pulmonary delivery system, a
technology platform designed to deliver medication through
inhalation that we believe has potential to be used in the
development of a variety of inhaled medicines. We also market
branded Ampyra (dalfampridine) Extended Release Tablets, 10 mg.
We were incorporated in 1995 as a Delaware corporation. Our
principal executive offices are located at 420 Saw Mill River Road,
Ardsley, New York 10502. Our telephone number is (914) 347-4300.
Our website is www.acorda.com. Please note that all references to
“www.acorda.com” in this prospectus and the accompanying prospectus
supplement and documents incorporated by reference herein are
inactive textual references only and that the information contained
on Acorda’s website is neither incorporated by reference nor
intended to be used in connection with this offering.
We and our subsidiaries own several registered trademarks in the
U.S. and in other countries. These registered trademarks include,
in the U.S., the marks “Acorda Therapeutics,” our stylized Acorda
Therapeutics logo, “Biotie Therapies,” “Ampyra,” “Inbrija” and
“ARCUS.” Also, our marks “Fampyra” and “Inbrija” are registered
marks in the European Community Trademark Office and we have
registrations or pending applications for these marks in other
jurisdictions. Our trademark portfolio also includes several
registered trademarks and pending trademark applications in the
U.S. and worldwide for potential product names or for disease
awareness activities. Third party trademarks, trade names, and
service marks used in this report are the property of their
respective owners.
4
RISK
FACTORS
Our business is subject to numerous risks, as more fully described
in the section entitled “Risk Factors” in Part I, Item 1A of our
Annual Report on Form 10-K for the year ended
December 31, 2019 and in Part II, Item 1A of our Quarterly
Reports on Form 10-Q for the quarters ended March 31, 2020 and June
30, 2020, and as may be described in our future filings with the
SEC, which are incorporated by reference in this prospectus, as
well the other information contained in any applicable prospectus
supplement or free writing prospectus. You should also carefully
consider the other information included or incorporated by
reference in this prospectus, any accompanying prospectus
supplement and any free writing prospectus. Each of the risks
described in these documents could materially and adversely affect
our business, financial condition, results of operations and
prospects, and could result in a partial or complete loss of your
investment.
USE OF PROCEEDS
We are filing the registration statement of which this prospectus
is a part to permit the selling stockholders to resell shares of
our common stock that are issuable upon the conversion of or payment of interest with respect
to the senior secured convertible notes. We are not selling
any securities under this prospectus and we will not receive any
proceeds from the sale of shares by the selling stockholders or
upon the conversion of the senior secured convertible notes.
5
DESCRIPTION
OF SECURITIES
Common Stock
We have the authority to issue 370,000,000 shares of common stock,
$0.001 par value per share. As of September 9, 2020, there were
47,968,173 shares of our voting common stock were issued and
outstanding (not including 29,304 shares of common stock that were
held in treasury), and a maximum of 8,547,360 shares of common
stock were issuable upon the exercise of outstanding options and
the vesting and settlement of restricted stock units.
The following description of our common stock is only a summary and
is subject to and qualified in its entirety by reference to our
amended and restated certificate of incorporation, as amended (our
“certificate of incorporation”), and our bylaws, as amended (our
“bylaws”). Holders of common stock have one vote per share and have
no preemption rights. Holders of common stock have the right to
participate ratably in all distributions, whether of dividends or
assets in liquidation, dissolution or winding up, subject to any
superior rights of holders of preferred stock outstanding at the
time. There are no redemption or sinking fund provisions applicable
to the common stock. Holders of our common stock are not liable
under our certificate of incorporation for further calls or
assessment by us.
Computershare Trust Company, N.A. is the transfer agent and
registrar for our common stock. Their address is P.O. Box 505000,
Louisville, KY 40233-5000 and their telephone number is (800)
368-5948.
Section 203 of the Delaware General Corporation Law
We are subject to Section 203 of the Delaware General Corporation
Law, which, subject to certain exceptions, prohibits a Delaware
corporation from engaging in any business combination with any
interested stockholder for a period of three years following the
time that such stockholder became an interested stockholder,
unless:
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prior to such time, the
board of directors approved either the business combination or the
transaction that resulted in the stockholder becoming an interested
holder;
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upon consummation of the
transaction that resulted in the stockholder becoming an interested
stockholder, the interested stockholder owned at least 85% of the
voting stock of the corporation outstanding at the time the
transaction commenced, excluding for purposes of determining the
number of shares outstanding those shares owned (a) by persons who
are directors and also officers and (b) by employee stock plans in
which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; or
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at or subsequent to such
time, the business combination is approved by the board of
directors and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote
of at least two-thirds of the outstanding voting stock which is not
owned by the interested stockholder.
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In general, Section 203 defines “business combination” to include
the following:
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any merger or
consolidation involving the corporation and the
stockholder;
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any sale, transfer,
pledge or other disposition of 10% or more of the assets of the
corporation involving the interested stockholder;
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subject to certain
exception, any transaction that results in the issuance or transfer
by the corporation of any stock of the corporation to the
interested stockholder;
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any transaction
involving the corporation that has the effect of increasing the
proportionate share of the stock or any class or series of the
corporation beneficially owned by the interested stockholder;
or
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the receipt by the
interested stockholder of the benefit of any loans, advances,
guarantees, pledges or other financial benefits provided by or
through the corporation.
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In
general, Section 203 defines “interested stockholder”
as an entity
or person beneficially owning 15% or more of the outstanding voting
stock of the corporation and any entity or person affiliated with
or controlling or controlled by such entity or
person.
Certificate of Incorporation and Bylaws
Our certificate of incorporation and bylaws include a number of
provisions that may have the effect of deterring hostile takeovers
or delaying or preventing changes in control or our management. For
example, our certificate of incorporation authorizes the issuance
of up to 20,000,000 shares of preferred stock, $.001 par value per
share, of which 1,000,000 shares have been designated as Series A
Junior Participating Preferred Stock. Our board of directors has
the authority, without approval of the stockholders, to issue and
determine the rights and preferences of series of preferred stock.
The ability to authorize and issue preferred stock with voting or
other rights or preferences makes it possible for our board of
directors to issue preferred stock with super voting, special
approval, dividend or other rights or preferences on a
discriminatory basis that could impede the success of any attempt
to acquire us.
Our certificate of incorporation and bylaws also provide that our
board of directors is divided into three classes, each serving
staggered three-year terms ending at the annual meeting of our
stockholders in the third year of their term. All directors elected
to our classified board of directors will serve until the election
and qualification of their respective successors or their earlier
resignation or removal. Members of the board of directors may only
be removed for cause and only by the affirmative vote of 75% of our
outstanding voting stock. These provisions are likely to increase
the time required for stockholders to change the composition of our
board of directors.
Our certificate of incorporation and bylaws provide that a meeting
of stockholders may only be called by our board of directors, the
chairman of our board of directors or our chief executive officer.
Our bylaws also specify requirements as to the form and content of
a stockholder’s notice. The provisions may delay or preclude
stockholders from calling a meeting of stockholders, bringing
matters before a meeting of stockholders or from making nominations
for directors at a stockholders’ meeting, which could delay or
deter takeover attempts or changes in management. Our certificate
of incorporation also does not provide for cumulative voting. The
absence of cumulative voting may make it more difficult for
stockholders owning less than a majority of our stock to elect any
directors to our board of directors.
Our bylaws provide that any matter to be voted upon, other than the
election of directors, shall be decided based on the majority of
votes cast, except where a different vote is otherwise required by
the bylaws, applicable law or our certificate of incorporation. The
bylaws further provide that directors shall be elected by a
plurality of votes cast by the stockholder entitled to vote on the
election; provided, however that in an uncontested election, a
director who receives a majority “withhold” vote shall be required
to tender his or her resignation for consideration by the board of
directors.
7
PRIVATE
EXCHANGE
OF CONVERTIBLE NOTES
On December 24, 2019, we completed the private exchange of $276.0
million aggregate principal amount of our outstanding 1.75%
Convertible Senior Notes due 2021, or the 2021 Notes, for a
combination of newly issued senior
secured convertible notes and cash. For each $1,000
principal amount of exchanged 2021 notes, we issued $750 principal
amount of senior secured convertible
notes and made a cash payment of $200, which we refer to as
the exchange. In the aggregate, we issued approximately $207.0
million aggregate principal amount of senior secured convertible notes and paid
approximately $55.2 million in cash to participating holders. The
exchange was conducted with a limited number of institutional
holders of the 2021 notes pursuant to exchange agreements dated as
of December 20, 2019.
The senior secured convertible
notes were issued pursuant to an indenture, dated as of
December 23, 2019, among us, our wholly owned subsidiary, Civitas
Therapeutics, Inc. (along with any domestic subsidiaries acquired
or formed after the date of issuance, the guarantors), and
Wilmington Trust, National Association, as trustee and collateral
agent. The senior secured convertible
notes are senior obligations of us and the guarantors,
secured by a first priority security interest in substantially all
of our assets and the assets of the guarantors, subject to certain
exceptions described in the security agreement, dated as of
December 23, 2019, between the grantors party thereto and
Wilmington Trust, National Association, as collateral agent.
The senior secured convertible notes will mature on December 1,
2024 unless earlier converted in accordance with their terms prior
to such date. Interest on the senior secured convertible notes will
be payable semi-annually in arrears at a rate of 6.00% per annum on
each June 1 and December 1, beginning on June 1, 2020. We may elect
to pay interest in cash or shares of our common stock, subject to
the satisfaction of certain conditions. If we elect to pay interest
in shares of our common stock, such common stock will have a per
share value equal to 95% of the daily volume-weighted average price
for the 10 trading days ending on and including the trading day
immediately preceding the relevant interest payment date.
The senior secured convertible notes will be convertible at the
option of the holder into shares of our common stock at any time
prior to the close of business on the second scheduled trading day
immediately preceding the maturity date. The initial conversion
rate for the senior secured convertible notes is 285.7142 shares of
our common stock per $1,000 principal amount of senior secured
convertible notes, which is equivalent to an initial conversion
price of approximately $3.50 per share of common stock. The
conversion rate is subject to adjustment in certain circumstances
as described in the indenture, including in the event of a
make-whole fundamental change, in which case the conversion rate
would increase up to 561.7977 shares of our common stock per $1,000
principal amount of senior secured convertible notes.
We may elect to settle conversions of the senior secured
convertible notes in cash, shares of our common stock or a
combination of cash and shares of our common stock. Holders who
convert their senior secured convertible notes prior to June 1,
2023 (other than in connection with a make-whole fundamental
change) also will be entitled to an interest make-whole payment
equal to the sum of all regularly scheduled stated interest
payments, if any, due on such senior secured convertible notes on
each interest payment date occurring after the conversion date for
such conversion and on or before June 1, 2023. In addition, we will
have the right to cause all senior secured convertible notes then
outstanding to be converted automatically if the volume-weighted
average price per share of our common stock equals or exceeds 130%
of the conversion price for a specified period of time and certain
other conditions are satisfied.
Holders of the senior secured convertible notes will have the
right, at their option, to require us to purchase their senior
secured convertible notes if a fundamental change (as defined in
the indenture) occurs, in each case, at a repurchase price equal to
100% of the principal amount of the senior secured convertible
notes to be repurchased, plus accrued and unpaid interest, if any,
to, but excluding, the applicable repurchase date.
Subject to a number of exceptions and qualifications, the indenture
restricts our ability and the ability of certain of our
subsidiaries to, among other things, pay dividends or make other
payments or distributions on capital stock, or purchase, redeem,
defease or otherwise acquire or retire for value any capital stock,
(ii) make certain investments, (iii) incur indebtedness or issue
preferred stock, other than certain forms of permitted debt, which
includes, among other items, indebtedness incurred to refinance the
2021 notes, (iv) create liens on assets, (v) sell assets, (vi)
enter into certain transactions with affiliates or (vii) merge,
consolidate or sell of all or substantially all assets. The
indenture also requires us to make an offer to repurchase the
senior secured convertible notes upon the occurrence of certain
asset sales.
The
indenture provides that a number of events will constitute an event
of default, including, among other things, (i) a failure to pay
interest for 30 days, (ii) failure to pay the senior secured
convertible notes when due at maturity, upon any required
repurchase, upon declaration of acceleration or otherwise, (iii)
failure to convert the senior secured convertible
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notes in accordance with the indenture
and the failure continues for five business days, (iv) not issuing
certain
notices required by the indenture
within a timely manner, (v) failure to comply with the other
covenants or agreements
in the indenture
for 60 days following the receipt of a notice of non-compliance,
(vi) a default or other failure by
us
to make required payments
under other indebtedness of us
or certain subsidiaries having an outstanding principal amount of
$30.0
million or more, (vii) failure by
us
or certain subsidiaries to pay final judgments aggregating in
excess of $30.0 million, (viii) certain events of bankruptcy or
insolvency and (ix) the commercial launch in the United States of a
product determined by
the United States Food and Drug Administration
to be bioequivalent to Inbrija.
In the case of an event of default arising from certain events of
bankruptcy or
insolvency with respect to us,
all outstanding
senior secured convertible notes
will become due and payable immediately without further action or
notice. If any other event of default occurs and is continuing, the
trustee or the holders of at least 25% in aggregate principal
amount of the then outstanding
senior secured convertible notes
may declare all the notes to be due and payable
immediately.
The 2021 notes received by the Company in the exchange were
cancelled in accordance with their terms. Upon completion of the
exchange, $69.0 million of 2021 notes remain outstanding.
On December 20, 2019, we also entered into a registration rights
agreement with the holders participating in the exchange, pursuant
to which we filed a Registration Statement on Form S-3 on January
15, 2020 (File No. 333-235929), which became effective on January
24, 2020, following the issuance of the senior secured convertible notes to register the
resale of the shares of up to 9,598,979 shares of common stock
issuable with respect to the senior secured convertible
notes (the “January 2020 Registration
Statement”). On June 15, 2020,
following the approval by our stockholders of the issuance of more
than 19.99% of our outstanding shares, we filed a Registration
Statement on Form S-3 on June 29, 2020 (File No. 333-239519), which
became effective on July 6, 2020, to register the resale of up to
an additional 8,698,049 shares of common stock issuable with
respect to the senior secured convertible notes (the “July 2020
Registration Statement” and, together with the “January 2020
Registration Statement,” the “Prior Registration
Statements”).
Under the registration rights agreement, we also agreed to file a
registration statement within 10 business days following the date
we amend our certificate of incorporation to increase the number of
authorized shares of common stock. On August 31, 2020, we filed
such an amendment to increase the number of authorized shares of
common stock from 80,000,000 to 370,000,000. The registration
statement of which this prospectus is a part registers the
resale of those shares
of common stock issuable with respect
to the senior secured convertible notes in excess of the
18,297,028 shares registered with the Prior Registration
Statements. We have reserved
for issuance 176,705,807 shares of common stock with respect to the
conversion of the senior secured convertible notes, including
shares that may become issuable in the event of a make-whole
fundamental change, and shares of common stock that may become
issuable in the future with respect to interest payments (including
interest make-whole payments) on the senior secured convertible
notes.
Under the registration rights agreement, we agreed to use
reasonable best efforts to cause the registration of all shares of
common stock issuable with respect to the senior secured
convertible notes to become effective and to thereafter maintain
the effectiveness of such registration
statements. The registration rights agreement includes customary
indemnification rights in connection with the registration
statements. The registration statement of which this prospectus is
a part has been filed in accordance with the registration rights
agreement.
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SELLING
STOCKHOLDERS
The shares of common stock being
offered by the selling stockholders are those issuable to the
selling stockholders upon conversion of or payment of interest with
respect to the senior secured convertible notes. For additional
information regarding the issuance of the senior secured
convertible notes, see “Private Exchange of Convertible Notes”
above. We are registering the shares of common stock in order to
permit the selling stockholders to offer the shares for resale from
time to time. Except for the ownership of the senior secured
convertible notes and the 2021 notes, the selling stockholders have
not had any material relationship with us within the past three
years.
The table below lists the selling stockholders and other
information regarding the beneficial ownership of the shares of
common stock by each of the selling stockholders. The second column
lists the number of shares of common stock beneficially owned by
each selling stockholder, based on its ownership of the shares of
common stock and the senior secured convertible notes, as of August
31, 2020, assuming full
conversion of the senior secured convertible notes held by the
selling stockholders on that date, without regard to any limitation
on conversion. Additional selling
stockholders may be named in one or more post-effective amendments
to this prospectus.
In accordance with the terms of registration rights agreement with
the holders of the senior secured convertible notes, this
prospectus generally covers the resale of that number of shares of
common stock equal to the number of shares of common stock issuable
upon conversion of the related senior secured convertible notes,
determined as if the outstanding senior secured convertible notes
were converted, as applicable, in full (including the interest
make-whole payment that would apply if the conversion had occurred
on such date), in each case as of the trading day immediately
preceding the date the registration statement of which this
prospectus forms a part was initially filed with the SEC, less
18,297,028 shares of common stock that were registered for resale
on the Prior Registration Statements. Notwithstanding the
foregoing, the maximum number of shares that may be resold under
this prospectus is 158,408,779.
The amount listed in the third column reflects the number of shares
being offered by each selling stockholder and the amount listed in
the fourth column reflects the number of shares remaining following
the sale of such shares and those that were previously registered
for resale. The amounts listed do not assume sales by any other
selling stockholder and are subject to the maximum number of shares
that may be resold under this prospectus.
|
Name of Selling Stockholder
|
Number of Shares
Owned Prior to
Offering (1)
|
Maximum Number
of Shares to be Sold
Pursuant to the
Prospectus (1)
|
Number of
Shares Owned
After Offering (1)
|
|
Canyon Value Realization Fund, L.P. (2)
|
7,112,437
|
7,112,437
|
–
|
|
Canyon Value Realization MAC 18 Ltd. (2)
|
238,482
|
238,482
|
–
|
|
Davidson Kempner International, Ltd. (3)
|
14,225,732
|
14,225,732
|
–
|
|
Davidson Kempner Partners (3)
|
6,026,398
|
6,026,398
|
–
|
|
D. E. Shaw Valence Portfolios, L.L.C. (4)
|
12,009,904
|
12,009,904
|
–
|
|
DKIP (Cayman) Ltd II (3)
|
13,773,644
|
13,773,644
|
–
|
|
EP Canyon Ltd. (2)
|
711,157
|
711,157
|
–
|
|
Jefferies LLC (5)
|
2,573,550
|
2,573,550
|
–
|
|
M.H. Davidson & Co. (3)
|
995,106
|
995,106
|
–
|
|
Nineteen77 Global Multi-Strategy Alpha Master Limited (6)
|
25,735,509
|
25,735,509
|
–
|
|
Tenor Opportunity Master Fund, Ltd. (7)
|
1,715,700
|
1,715,700
|
–
|
|
The Canyon Value Realization Master Fund, L.P. (2)
|
15,421,575
|
15,421,575
|
–
|
|
Wells Fargo Securities, LLC (8)
|
4,304,692
|
4,304,692
|
–
|
_______________
|
(1)
|
The number of shares owned prior to the offering reflects the
number of shares each selling stockholder would own if we elect to
pay interest on the senior secured convertible notes in shares of
common stock and if the senior secured convertible notes were
converted into shares of common stock following a make-whole
fundamental change, as defined in the indenture governing the
senior secured convertible notes. The number of shares reported as
owned after this offering includes the sale of any shares that are
registered for resale pursuant to the registration statement of
which this prospectus forms a part and shares that were previously
registered for resale on the Prior Registration Statements.
|
10
|
(2)
|
The
address for
each of
Canyon Value Realization Fund, L.P.,
Canyon
Value Realization MAC 18 Ltd., EP Canyon Ltd. and The Canyon Value
Realization Master Fund, L.P.
is c/o Canyon Capital Advisors LLC, 2000 Avenue of the Stars, 11th
Floor, Los Angeles, California 90067.
Consists of (a)
7,112,437
shares of common stock
issuable upon conversion of or payment of interest with respect to
the senior
secured convertible notes beneficially owned by Canyon Value
Realization Fund, L.P., (b)
238,482
shares of common stock issuable upon conversion of or payment of
interest with
respect to the senior
secured convertible notes beneficially owned by Canyon Value
Realization MAC 18 Ltd., (c)
711,157
shares of common stock issuable upon conversion of or payment of
interest with respect to the senior
secured convertible notes beneficially
owned by EP Canyon Ltd. and (d)
15,421,575
shares of common stock issuable upon conversion of or payment of
interest with respect to the senior
secured convertible notes beneficially owned by The Canyon Value
Realization Master Fund, L.P.
Canyon Capital
Advisors LLC
serves as
the investment advisor
for
each of
Canyon Value Realization Fund, L.P.,
Canyon Value Realization MAC 18 Ltd., EP Canyon Ltd. and The Canyon
Value Realization Master Fund, L.P.
Mitchell R. Julis and Joshua S. Friedman control
entities
which own 100% of Canyon Capital Advisors, LLC.
By virtue of the relationships described in this footnote, each
entity and individual named herein may be deemed to share
beneficial ownership of all shares held by the
other entities named herein.
Each entity
and individual named herein expressly disclaims any such beneficial
ownership, except to the extent of their
individual
pecuniary interests therein. Each of
Canyon Value Realization Fund, L.P.,
Canyon Value Realization MAC 18 Ltd., EP Canyon Ltd. and
The Canyon Value Realization Master Fund, L.P.
is an affiliate of a broker-dealer, but is not itself a
broker-dealer. The securities identified in the table above for
each of
Canyon Value Realization Fund, L.P.,
Canyon Value Realization MAC 18 Ltd., EP Canyon
Ltd. and The Canyon Value Realization Master Fund,
L.P.
were acquired in the ordinary course of business and at the time of
acquisition, none of
Canyon Value Realization Fund, L.P.,
Canyon Value Realization MAC 18 Ltd., EP Canyon Ltd. and The Canyon
Value
Realization Master Fund, L.P.
or their respective affiliates had an agreement or understanding,
directly or indirectly, with any person to distribute the
securities.
|
|
(3)
|
The address for each of Davidson Kempner International, Ltd.,
Davidson Kempner Partners, DKIP (Cayman) Ltd II and M.H. Davidson
& Co. is c/o Davidson Kempner Capital Management LP, 520
Madison Avenue, 30th Floor, New York, New York 10022. Consists of
(a) 14,225,732 shares of common stock issuable upon conversion of
or payment of interest with respect to the senior secured
convertible notes beneficially owned by Davidson Kempner
International, Ltd., (b) 6,026,398 shares of common stock issuable
upon conversion of or payment of interest with respect to the
senior secured convertible notes beneficially owned by Davidson
Kempner Partners, (c) 13,773,644 shares of common stock issuable
upon conversion of or payment of interest with respect to the
senior secured convertible notes beneficially owned by DKIP
(Cayman) Ltd II and (d) 995,106 shares of common stock issuable
upon conversion of or payment of interest with respect to the
senior secured convertible notes beneficially owned by M.H.
Davidson & Co. Davidson Kempner Capital Management LP serves as
the investment manager for each of Davidson Kempner International,
Ltd., Davidson Kempner Partners, DKIP (Cayman) Ltd II and M.H.
Davidson & Co. and Zachary Z. Altschuler serves as the managing
member of Davidson Kempner Capital Management LP. By virtue of the
relationships described in this footnote, each entity and
individual named herein may be deemed to share beneficial ownership
of all shares held by the other entities named herein. Each entity
and individual named herein expressly disclaims any such beneficial
ownership, except to the extent of their individual pecuniary
interests therein.
|
|
(4)
|
The address
for D. E. Shaw Valence Portfolios, L.L.C. is c/o D. E. Shaw &
Co., L.P., 1166 Avenue of the Americas, 9th Floor, New York, New
York 10036. Consists of 12,009,904 shares of common stock issuable
upon conversion of or payment of interest with respect to the
senior secured convertible notes but does not include 3,340 shares
of common stock owned by entities that may be deemed to be
affiliates of D. E. Shaw Valence Portfolios, L.L.C. D. E. Shaw
& Co., L.P., or DESCO LP, and D. E. Shaw & Co., L.L.C., or
DESCO LLC, serve as the investment adviser and the manager,
respectively, for D. E. Shaw Valence Portfolios, L.L.C. Julius
Gaudio, Maximilian Stone, and Eric Wepsic, or their designees,
exercise voting and investment control over these 11,645,167 shares
on DESCO LP’s and DESCO LLC’s behalf. D. E. Shaw & Co., Inc.,
or DESCO Inc., serves as the general partner of DESCO LP. D. E.
Shaw & Co. II, Inc., or DESCO II Inc., serves as the managing
member of DESCO LLC. David E. Shaw serves as President and sole
shareholder of each of DESCO Inc. and DESCO II Inc. By virtue of
the relationships described in this footnote, each of DESCO LP,
DESCO LLC, DESCO Inc., DESCO II Inc. and David E. Shaw may be
deemed to share beneficial ownership with respect to these shares
in their respective capacities described above. None of DESCO LP,
DESCO LLC, DESCO Inc., DESCO II Inc. and David E. Shaw owns any
such shares of common stock directly and each expressly disclaims
any such beneficial ownership of such common stock, except to the
extent of their individual
|
11
|
pecuniary interests therein.
D. E. Shaw Valence Portfolios, L.L.C. may be deemed to be
an affiliate of a broker-dealer, but is not itself a broker-dealer.
The securities identified in the table above for D. E. Shaw Valence
Portfolios, L.L.C. were acquired in the ordinary course of business
and at the time of acquisition, neither D. E. Shaw
Valence
Portfolios, L.L.C. nor any of its affiliates had an agreement or
understanding, directly or indirectly, with any person to
distribute the securities.
|
|
(5)
|
The address for Jefferies LLC is 520 Madison Avenue, New York, New
York 10022. Consists of 2,573,550 shares of common stock issuable
upon conversion of or payment of interest with respect to the
senior secured convertible notes. Jefferies LLC is a broker-dealer.
The securities identified in the table above for Jefferies LLC were
acquired in the ordinary course of business and at the time of
acquisition, neither Jefferies LLC nor any of its affiliates had an
agreement or understanding, directly or indirectly, with any person
to distribute the securities.
|
|
(6)
|
The address for Nineteen77 Global Multi-Strategy Alpha Master
Limited, or GLEA, is c/o Maples Corporate Services Limited, Ugland
House, PO Box 309, Grand Cayman KY1-1104, Cayman Islands. Consists
of 25,735,509 shares of common stock issuable upon conversion of or
payment of interest with respect to the senior secured convertible
notes. UBS O’Connor LLC, or O’Connor, is the investment manager of
GLEA and shares voting and investment power with respect to these
shares in this capacity. Kevin Russell, the Chief Investment
Officer of O’Connor, also has voting control and investment
discretion over the securities described herein held by GLEA. By
virtue of the relationships described in this footnote, each entity
and individual named herein may be deemed to share beneficial
ownership of all shares held by the other entities named herein.
Each entity and individual named herein expressly disclaims any
such beneficial ownership, except to the extent of their individual
pecuniary interests therein.
|
|
(7)
|
The address for Tenor Opportunity Master Fund, Ltd. is 190 Elgin
Avenue, George Town, Grand Cayman, KY1-9007, Cayman Islands.
Consists of 1,715,700 shares of common stock issuable upon
conversion of or payment of interest with respect to the senior
secured convertible notes. Tenor Capital Management Company, L.P.
serves as the controlling entity for Tenor Opportunity Master Fund,
Ltd. and shares voting and investment power with respect to these
shares in this capacity. Tenor Management GP, LLC is the general
partner of Tenor Capital Management Company, L.P. and Robin R. Shah
is the sole managing member of Tenor Management GP, LLC. By virtue
of the relationships described in this footnote, each entity and
individual named herein may be deemed to share beneficial ownership
of all shares held by the other entities named herein. Each entity
and individual named herein expressly disclaims any such beneficial
ownership, except to the extent of their individual pecuniary
interests therein.
|
|
(8)
|
The address for Wells Fargo Securities, LLC is 375 Park Avenue, 4th
Floor, New York, New York 10152. Consists of 4,304,692 shares of
common stock issuable upon conversion of or payment of interest
with respect to the senior secured convertible notes. Wells Fargo
Securities, LLC is a broker-dealer. The securities identified in
the table above for Wells Fargo Securities, LLC were acquired in
the ordinary course of business and at the time of acquisition,
neither Wells Fargo Securities, LLC nor any of its affiliates had
an agreement or understanding, directly or indirectly, with any
person to distribute the securities.
|
12
PLAN
OF DISTRIBUTION
We are registering the shares of common stock issuable upon
conversion of or payment of interest with respect to the senior
secured convertible notes to permit the resale of these shares of
common stock by the holders from time to time after the date of
this prospectus. We will not receive any of the proceeds from the
sale by the selling stockholders of the shares of common stock. We
will bear all fees and expenses incident to our obligation to
register the shares of common stock.
The selling stockholders may sell all or a portion of the shares of
common stock beneficially owned by them and offered hereby from
time to time directly or through one or more underwriters,
broker-dealers or agents. If the shares of common stock are sold
through underwriters or broker-dealers, the selling stockholders
will be responsible for underwriting discounts or commissions or
agent’s commissions. The shares of common stock may be sold in one
or more transactions at fixed prices, at prevailing market prices
at the time of the sale, at varying prices determined at the time
of sale, or at negotiated prices. These sales may be effected in
transactions, which may involve crosses or block transactions,
|
|
•
|
on any
national securities exchange or quotation service on which the
securities may be listed or quoted at the time of sale;
|
|
|
•
|
in the
over-the-counter market;
|
|
|
•
|
in
transactions otherwise than on these exchanges or systems or in the
over-the-counter market;
|
|
|
•
|
through
the writing of options, whether such options are listed on an
options exchange or otherwise;
|
|
|
•
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
|
•
|
block
trades in which the broker-dealer will attempt to sell the shares
as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
|
|
|
•
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its account;
|
|
|
•
|
an
exchange distribution in accordance with the rules of the
applicable exchange;
|
|
|
•
|
privately
negotiated transactions;
|
|
|
•
|
sales
pursuant to Rule 144;
|
|
|
•
|
broker-dealers
may agree with the selling securityholders to sell a specified
number of such shares at a stipulated price per share;
|
|
|
•
|
a
combination of any such methods of sale; and
|
|
|
•
|
any
other method permitted pursuant to applicable law.
|
If the selling stockholders effect such transactions by selling
shares of common stock to or through underwriters, broker-dealers
or agents, such underwriters, broker-dealers or agents may receive
commissions in the form of discounts, concessions or commissions
from the selling stockholders or commissions from purchasers of the
shares of common stock for whom they may act as agent or to whom
they may sell as principal (which discounts, concessions or
commissions as to particular underwriters, broker-dealers or agents
may be in excess of those customary in the types of transactions
involved). In connection with sales of the shares of common stock
or otherwise, the selling stockholders may enter into hedging
transactions with broker-dealers, which may in turn engage in short
sales of the shares of common stock in the course of hedging in
positions they assume. The selling stockholders may also sell
shares of common stock short and deliver shares of common stock
covered by this prospectus to close out short positions and to
return borrowed shares in connection with such short sales. The
selling stockholders may also loan or pledge shares of common stock
to broker-dealers that in turn may sell such shares.
13
The
selling stockholders may pledge or grant a
security interest in some or all of the senior secured convertible
notes or shares of common stock owned by them and, if they default
in the performance of their secured obligations, the pledgees or
secured parties may offer and sell the shares of common
stock
from time to time pursuant to this prospectus or any
amendment
or supplement
to this prospectus under Rule 424(b)(3) or other applicable
provision of the Securities Act of 1933, as amended, amending, if
necessary, the list of selling stockholders to include
the pledgee, transferee or other successors in interest as selling
stockholders under this prospectus. The selling stockholders also
may transfer and donate the shares of common stock in other
circumstances in which case the transferees, donees,
pledgees
or other successors in interest will be the selling beneficial
owners for purposes of this prospectus.
The selling stockholders and any broker-dealer participating in the
distribution of the shares of common stock may be deemed to be
“underwriters” within the meaning of the Securities Act, and any
commission paid, or any discounts or concessions allowed to, any
such broker-dealer may be deemed to be underwriting commissions or
discounts under the Securities Act. At the time a particular
offering of the shares of common stock is made, a prospectus
supplement, if required, will be distributed which will set forth
the aggregate amount of shares of common stock being offered and
the terms of the offering, including the name or names of any
broker-dealers or agents, any discounts, commissions and other
terms constituting compensation from the selling stockholders and
any discounts, commissions or concessions allowed or reallowed or
paid to broker-dealers.
Under the securities laws of some states, the shares of common
stock may be sold in such states only through registered or
licensed brokers or dealers. In addition, in some states the shares
of common stock may not be sold unless such shares have been
registered or qualified for sale in such state or an exemption from
registration or qualification is available and is complied
with.
There can be no assurance that any selling stockholder will sell
any or all of the shares of common stock registered pursuant to the
registration statement of which this prospectus forms a part.
The selling stockholders and any other person participating in such
distribution will be subject to applicable provisions of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, including, without limitation, Regulation M
of the Securities Exchange Act of 1934, as amended, which may limit
the timing of purchases and sales of any of the shares of common
stock by the selling stockholders and any other participating
person. Regulation M may also restrict the ability of any person
engaged in the distribution of the shares of common stock to engage
in market-making activities with respect to the shares of common
stock. All of the foregoing may affect the marketability of the
shares of common stock and the ability of any person or entity to
engage in market-making activities with respect to the shares of
common stock.
We will pay all expenses of the registration of the shares of
common stock pursuant to the registration rights agreement,
estimated to be approximately $70,000 in total, including, without
limitation, Securities and Exchange Commission filing fees and
expenses of compliance with state securities or “blue sky” laws;
provided, however, that a selling stockholder
will pay all underwriting discounts and selling commissions, if
any. We will indemnify the selling stockholders against
liabilities, including some liabilities under the Securities Act,
in accordance with the registration rights agreements, or the
selling stockholders will be entitled to contribution. We may be
indemnified by the selling stockholders against civil liabilities,
including liabilities under the Securities Act, that may arise from
any written information furnished to us by the selling stockholder
specifically for use in this prospectus, in accordance with the
related registration rights agreement, or we may be entitled to
contribution.
Once sold under the registration statement of which this prospectus
forms a part, the shares of common stock will be freely tradable in
the hands of persons other than our affiliates.
14
LEGAL
MATTERS
The validity of the securities
covered by this prospectus will be passed upon for us by Covington
& Burling LLP. If applicable, counsel for any underwriters,
dealers or agents will be named in the applicable prospectus
supplement.
EXPERTS
Ernst & Young LLP, independent registered public accounting
firm, has audited our consolidated financial statements included in
our Annual Report on Form 10-K for the year ended December 31,
2019, and the effectiveness of our internal control over financial
reporting as of December 31, 2019, as set forth in their reports,
which are incorporated by reference in this prospectus and
elsewhere in the registration statement. Our financial statements
are incorporated by reference in reliance on Ernst & Young
LLP’s reports, given on their authority as experts in accounting
and auditing.
WHERE YOU CAN
FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. Our SEC filings are available to
the public over the Internet at the SEC’s website at www.sec.gov.
Our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, and
Current Reports on Form 8-K, including any amendments to those
reports, and other information that we file with or furnish to the
SEC pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended, can also be accessed free of charge on our
website at www.acorda.com under “Investors — Financial Information
— SEC Filings.” These filings will be available as soon as
reasonably practicable after we electronically file such material
with, or furnish it to, the SEC.
We have filed with the SEC a registration statement under the
Securities Act of 1933, as amended, relating to the offering of
these securities. The registration statement, including the
attached exhibits, contains additional relevant information about
us and the securities. This prospectus does not contain all of the
information set forth in the registration statement. You can obtain
a copy of the registration statement, at prescribed rates, from the
SEC at the address listed above. The registration statement and the
documents referred to below under “Incorporation by Reference” are
also available on our website, www.acorda.com. We have not
incorporated by reference into this prospectus the information on,
or that can be accessed through, our website, and you should not
consider it to be a part of this prospectus.
15
INCORPORATION
OF INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” the information we
file with it, which means that we can disclose important
information to you by referring you to those documents. The
information which we incorporate by reference is an important part
of this prospectus, and certain information that we file later with
the SEC will automatically update and supersede this information.
We incorporate by reference the documents listed below, and any
future filings we make with the SEC under Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended, prior
to the termination of the offering:
|
|
•
|
our Quarterly Reports on
Form 10-Q for the quarters ended March 31, 2020 and June 30, 2020, filed on
May 8,
2020 and
August
10, 2020,
respectively;
|
|
|
•
|
our Current Reports on
Form 8-K, filed on
January
15, 2020,
June
16, 2020,
June
26, 2020,
July
14, 2020,
July
24, 2020,
July
31, 2020,
August
28, 2020 and
August
31, 2020;
and
|
You may access our Annual Report on Form 10-K, Quarterly Reports on
Form 10-Q, Current Reports on Form 8-K and amendments to any of
these reports, free of charge on the SEC’s website. Information
contained on, or that can be accessed through, our website is not
part of this prospectus.
In addition, we will furnish without charge to you, on written or
oral request, a copy of any or all of the documents incorporated by
reference, other than exhibits to those documents. You should
direct any requests for documents to Corporate Secretary, Acorda
Therapeutics, Inc., 420 Saw Mill River Road, Ardsley, New York
10502, or call (914) 347-4300.
We are responsible for the information contained or incorporated by
reference in this prospectus, any accompanying prospectus
supplement and in any related free-writing prospectus we prepare or
authorize. We have not authorized anyone to give you any other
information, and we take no responsibility for, and can provide no
assurance as to the reliability of, any other information that
others may give you. We are not making offers to sell or seeking
offers to buy these securities in any jurisdiction where the offer
or sale is not permitted. You should assume that the information
contained in or incorporated by reference in this prospectus is
accurate as of the date on the front of this prospectus or
incorporated document only, as the case may be. Our business,
financial condition, results of operations and prospects may have
changed since that date.
16
158,408,779
Shares
Common Stock
Prospectus
September 17, 2020
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