Maryland
|
33-0724736
|
|
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) |
10 North Park Place, Suite 201
Morristown, New Jersey 07960
(800) 793-2145
|
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) |
Large accelerated filer | o | Accelerated filer | þ |
Non-accelerated filer | o | Smaller reporting company | o |
(Do not check if a smaller reporting company) |
Title of each class of securities
to be registered
|
Amount
to be
registered
|
Proposed maximum
offering price per unit
|
Proposed maximum
aggregate offering
price
|
Amount of
registration fee(1)
|
||||||||||||
Common Stock, $0.01 par value
|
(2 | ) | (3 | ) | (3 | ) | — | |||||||||
Preferred Stock, $0.01 par value
|
(2 | ) | (3 | ) | (3 | ) | — | |||||||||
Debt Securities
|
(2 | ) | (3 | ) | (3 | ) | — | |||||||||
Warrants
|
(2 | ) | (3 | ) | (3 | ) | — | |||||||||
Subscription Rights
|
(2 | ) | (3 | ) | (3 | ) | — | |||||||||
Units
|
(2 | ) | (3 | ) | (3 | ) | — | |||||||||
Total
|
(2 | ) | (3 | ) | $ | 300,000,000 | $ | 34,860 |
(1)
|
Calculated pursuant to Rule 457(o) under the Securities Act.
|
(2)
|
Such indeterminate number or amount of common stock, preferred stock, debt securities, warrants, subscription rights and units is being registered as may from time to time be issued at indeterminate prices at an aggregate initial offering price not to exceed $300,000,000. This Registration Statement also includes such indeterminable amount of common stock, preferred stock and debt securities as may be issued from time to time upon exercise of warrants or conversion or exchange of convertible or exchangeable securities being registered hereunder or pursuant to anti-dilution provisions of any such securities registered hereunder. Pursuant to Rule 416 under the Securities Act, the securities being registered hereunder include such indeterminate number of securities as may be issuable with respect to the securities being registered hereunder as a result of share splits, share dividends or similar transactions.
|
(3)
|
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.
|
●
|
a base prospectus which covers the offering, issuance and sale of up to $300,000,000 of the registrant’s common stock, preferred stock, debt securities, warrants, subscription rights and units; and
|
●
|
a sales agreement prospectus covering the offering, issuance and sale of up to $100,000,000 of shares of the registrant’s common stock that may be issued and sold under the Controlled Equity Offering
SM
Sales Agreement, dated November 7, 2014, as amended (the “Sales Agreement”), between the registrant and Cantor Fitzgerald & Co.
|
Page
|
||
About This Prospectus
|
1
|
|
Cautionary Note Regarding Forward-Looking Statements
|
2
|
|
Our Company
|
3
|
|
Risk Factors
|
4
|
|
Ratio of Earnings to Fixed Charges
|
4
|
|
Use of Proceeds
|
4
|
|
Description of Our Common Stock
|
5
|
|
Description of Our Preferred Stock
|
6
|
|
Description of Our Debt Securities
|
8
|
|
Description of Our Warrants
|
18
|
|
Description of Our Subscription Rights
|
22
|
|
Description of Our Units
|
23
|
|
Description of Certain Provisions of Maryland Law and Our Certificate Of Incorporation
and By-Laws
|
23
|
|
Legal Ownership of Securities
|
27
|
|
Plan of Distribution
|
32
|
|
Legal Matters
|
34
|
|
Experts
|
34
|
|
Documents Incorporated by Reference
|
35
|
|
Where You Can Find More Information
|
36
|
●
|
the title and stated value;
|
●
|
the number of shares we are offering;
|
●
|
the liquidation preference per share;
|
●
|
the purchase price;
|
●
|
the dividend rate, period and payment date and method of calculation for dividends;
|
●
|
whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
|
●
|
the procedures for any auction and remarketing, if any;
|
●
|
the provisions for a sinking fund, if any;
|
●
|
the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase rights;
|
●
|
any listing of the preferred stock on any securities exchange or market;
|
●
|
whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be calculated, and the conversion period;
|
●
|
whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price, or how it will be calculated, and the exchange period;
|
●
|
voting rights, if any, of the preferred stock;
|
●
|
preemptive rights, if any;
|
●
|
restrictions on transfer, sale or other assignment, if any;
|
●
|
a discussion of any material United States federal income tax considerations applicable to the preferred stock;
|
●
|
the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs;
|
●
|
any limitations on the issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and
|
●
|
any other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock.
|
●
|
the title;
|
●
|
the principal amount being offered, and if a series, the total amount authorized and the total amount outstanding;
|
●
|
any limit on the amount that may be issued;
|
●
|
whether or not we will issue the series of debt securities in global form, and, if so, the terms and who the depository will be;
|
●
|
the maturity date;
|
●
|
whether and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United States person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts;
|
●
|
the annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates;
|
●
|
whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
|
●
|
the terms of the subordination of any series of subordinated debt;
|
●
|
the place where payments will be payable;
|
●
|
restrictions on transfer, sale or other assignment, if any;
|
●
|
our right, if any, to defer payment of interest and the maximum length of any such deferral period;
|
●
|
the date, if any, after which, the conditions upon which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions;
|
●
|
the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option, to purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable;
|
●
|
whether the indenture will restrict our ability or the ability of our subsidiaries to:
|
●
|
incur additional indebtedness;
|
●
|
issue additional securities;
|
●
|
create liens;
|
●
|
pay dividends or make distributions in respect of our capital stock or the capital stock of our subsidiaries;
|
●
|
redeem capital stock;
|
●
|
place restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets;
|
●
|
make investments or other restricted payments;
|
●
|
sell or otherwise dispose of assets;
|
●
|
enter into sale-leaseback transactions;
|
●
|
engage in transactions with stockholders or affiliates;
|
●
|
issue or sell stock of our subsidiaries; or
|
●
|
effect a consolidation or merger;
|
●
|
whether the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios;
|
●
|
a discussion of certain material or special United States federal income tax considerations applicable to the debt securities;
|
●
|
information describing any book-entry features;
|
●
|
provisions for a sinking fund purchase or other analogous fund, if any;
|
●
|
the applicability of the provisions in the indenture on discharge;
|
●
|
whether the debt securities are to be offered at a price such that they will be deemed to be offered at an “original issue discount” as defined in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended;
|
●
|
the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof;
|
●
|
the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars; and
|
●
|
any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any additional events of default or covenants provided with respect to the debt securities, and any terms that may be required by us or advisable under applicable laws or regulations or advisable in connection with the marketing of the debt securities.
|
●
|
if we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended;
|
●
|
if we fail to pay the principal, premium or sinking fund payment, if any, when due and payable at maturity, upon redemption or repurchase or otherwise, and the time for payment has not been extended;
|
●
|
if we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we receive notice from the trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and
|
●
|
if specified events of bankruptcy, insolvency or reorganization occur.
|
●
|
the direction so given by the holder is not in conflict with any law or the applicable indenture; and
|
●
|
subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding.
|
●
|
the holder has given written notice to the trustee of a continuing event of default with respect to that series;
|
●
|
the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request, and such holders have offered reasonable indemnity to the trustee or security satisfactory to it against any loss, liability or expense or to be incurred in compliance with instituting the proceeding as trustee; and
|
●
|
the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer.
|
●
|
to fix any ambiguity, defect or inconsistency in the indenture;
|
●
|
to comply with the provisions described above under “Description of Our Debt Securities—Consolidation, Merger or Sale;”
|
●
|
to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act;
|
●
|
to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication and delivery of debt securities, as set forth in the indenture;
|
●
|
to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided under “Description of Our Debt Securities—General,” to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities;
|
●
|
to evidence and provide for the acceptance of appointment hereunder by a successor trustee;
|
●
|
to provide for uncertificated debt securities and to make all appropriate changes for such purpose;
|
●
|
to add to our covenants such new covenants, restrictions, conditions or provisions for the benefit of the holders, to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred to us in the indenture; or
|
●
|
to change anything that does not materially adversely affect the interests of any holder of debt securities of any series.
|
●
|
extending the stated maturity of the series of debt securities;
|
●
|
reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption or repurchase of any debt securities; or
|
●
|
reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver.
|
●
|
register the transfer or exchange of debt securities of the series;
|
●
|
replace stolen, lost or mutilated debt securities of the series;
|
●
|
maintain paying agencies;
|
●
|
hold monies for payment in trust;
|
●
|
recover excess money held by the trustee;
|
●
|
compensate and indemnify the trustee; and
|
●
|
appoint any successor trustee.
|
●
|
issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or
|
●
|
register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part.
|
●
|
the offering price and the aggregate number of warrants offered;
|
●
|
the currencies in which the warrants are being offered;
|
●
|
the designation, aggregate principal amount, currencies, denominations and terms of the series of debt securities that can be purchased if a holder exercises a warrant;
|
●
|
the designation and terms of any series of debt securities with which the warrants are being offered and the number of warrants offered with each such debt security;
|
●
|
the date on and after which the holder of the warrants can transfer them separately from the related series of debt securities;
|
●
|
the principal amount of the series of debt securities that can be purchased if a holder exercises a warrant and the price at which and currencies in which such principal amount may be purchased upon exercise;
|
●
|
the terms of any rights to redeem or call the warrants;
|
●
|
the date on which the right to exercise the warrants begins and the date on which such right expires;
|
●
|
federal income tax consequences of holding or exercising the warrants; and
|
●
|
any other specific terms, preferences, rights or limitations of, or restrictions on, the warrants.
|
●
|
the offering price and the aggregate number of warrants offered;
|
●
|
the total number of shares that can be purchased if a holder of the warrants exercises them and, in the case of warrants for preferred stock, the designation, total number and terms of the series of preferred stock that can be purchased upon exercise;
|
●
|
the designation and terms of any series of preferred stock with which the warrants are being offered and the number of warrants being offered with each share of common stock or preferred stock;
|
●
|
the date on and after which the holder of the warrants can transfer them separately from the related common stock or series of preferred stock;
|
●
|
the number of shares of common stock or preferred stock that can be purchased if a holder exercises the warrant and the price at which such common stock or preferred stock may be purchased upon exercise, including, if applicable, any provisions for changes to or
|
●
|
adjustments in the exercise price and in the securities or other property receivable upon exercise;
|
●
|
the terms of any rights to redeem or call, or accelerate the expiration of, the warrants;
|
●
|
the date on which the right to exercise the warrants begins and the date on which that right expires;
|
●
|
federal income tax consequences of holding or exercising the warrants; and
|
●
|
any other specific terms, preferences, rights or limitations of, or restrictions on, the warrants.
|
●
|
delivering to the warrant agent the payment required by the applicable prospectus supplement or free writing prospectus to purchase the underlying security;
|
●
|
properly completing and signing the reverse side of the warrant certificate representing the warrants; and
|
●
|
delivering the warrant certificate representing the warrants to the warrant agent within five business days of the warrant agent receiving payment of the exercise price.
|
●
|
issue capital stock or other securities convertible into or exchangeable for common stock or preferred stock, or any rights to subscribe for, purchase or otherwise acquire any of the foregoing, as a dividend or distribution to holders of our common stock or preferred stock;
|
●
|
pay any cash to holders of our common stock or preferred stock other than a cash dividend paid out of our current or retained earnings or other than in accordance with the terms of the preferred stock;
|
●
|
issue any evidence of our indebtedness or rights to subscribe for or purchase our indebtedness to holders of our common stock or preferred stock; or
|
●
|
issue common stock or preferred stock or additional stock or other securities or property to holders of our common stock or preferred stock by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement,
|
●
|
certain reclassifications, capital reorganizations or changes of the common stock or preferred stock, as applicable;
|
●
|
certain share exchanges, mergers, or similar transactions involving us and which result in changes of the common stock or preferred stock, as applicable; or
|
●
|
certain sales or dispositions to another entity of all or substantially all of our property and assets.
|
●
|
whether common stock, preferred stock, or warrants for those securities will be offered under the stockholder subscription rights;
|
●
|
the price, if any, for the subscription rights;
|
●
|
the exercise price payable for each security upon the exercise of the subscription rights;
|
●
|
the number of subscription rights issued to each stockholder;
|
●
|
the number and terms of the securities which may be purchased per each subscription right;
|
●
|
the extent to which the subscription rights are transferable;
|
●
|
any other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise of the subscription rights;
|
●
|
the date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall expire;
|
●
|
the extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities;
|
●
|
if appropriate, a discussion of material U.S. federal income tax considerations; and
|
●
|
if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of subscription rights.
|
●
|
the terms of the units and of any of the shares of common stock, shares of preferred stock, debt securities, warrants, or subscription rights comprising the units, including whether and under what circumstances the securities comprising the units may be traded separately;
|
●
|
a description of the terms of any unit agreement governing the units;
|
●
|
if appropriate, a discussion of material U.S. federal income tax considerations; and
|
●
|
a description of the provisions for the payment, settlement, transfer or exchange of the units.
|
●
|
is the beneficial owner, directly or indirectly, of 10% or more of the voting power of the outstanding voting stock of the corporation, or
|
●
|
is an affiliate or associate of the corporation who, at any time within the two-year period prior to the date in question, was the beneficial owner, directly or indirectly, of 10% or more of the voting power of the then outstanding voting stock of the corporation.
|
●
|
80% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation, and
|
●
|
two-thirds (2/3) of the votes entitled to be cast by holders of voting stock of the corporation other than shares held by the interested stockholder with whom (or with whose affiliate) the business combination is to be effected or by an affiliate or associate of the interested stockholder voting together in a single voting group, unless, among other conditions, the corporation’s common stockholders receive a minimum price (as described in the MGCL) for their shares and the consideration is received in cash or in the same form as previously paid by the interested stockholder for its shares.
|
●
|
a person who makes or proposes to make a control share acquisition,
|
●
|
an officer of the corporation, or
|
●
|
an employee of the corporation who is also a director of the corporation.
|
●
|
one-tenth or more but less than one-third,
|
●
|
one-third or more but less than a majority, or
|
●
|
a majority or more of all voting power.
|
●
|
with respect to an annual meeting of stockholders, nominations of individuals for election to our board of directors and the proposal of business to be considered by stockholders may be made only:
|
●
|
pursuant to our notice of the meeting;
|
●
|
by or at the direction of our board of directors; or
|
●
|
by a stockholder who is entitled to vote at the meeting and has complied with the advance notice procedures set forth in our by-laws; and
|
●
|
with respect to special meetings of stockholders, only the business specified in our company’s notice of meeting may be brought before the meeting of stockholders and nominations of individuals for election to our board of directors may be made only pursuant to our notice of the meeting, provided that the president, a majority of the board of directors (or of the independent directors) or the secretary of the company (upon request of holders of shares entitled to cast a majority of all the votes entitled to be cast at such meeting), shall be permitted to call and propose matters to be acted on at a special meeting.
|
●
|
how it handles securities payments and notices;
|
●
|
whether it imposes fees or charges;
|
●
|
how it would handle a request for the holders’ consent, if ever required;
|
●
|
whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future;
|
●
|
how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and
|
●
|
if the securities are global securities, how the depository’s rules and procedures will affect these matters.
|
●
|
An investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below;
|
●
|
An investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe above;
|
●
|
An investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form;
|
●
|
An investor may not be able to pledge his or her interest in the global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective;
|
●
|
The depository’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in the global security. We and any applicable trustee have no responsibility for any aspect of the depository’s actions or for its records of ownership interests in the global security. We and the trustee also do not supervise the depository in any way;
|
●
|
The depository may, and we understand that DTC will, require that those who purchase and sell interests in the global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and
|
●
|
Financial institutions that participate in the depository’s book-entry system, and through which an investor holds its interest in the global security, may also have their own policies affecting payments, notices and other matters relating to the securities. There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
|
●
|
if the depository notifies us that it is unwilling, unable or no longer qualified to continue as depository for that global security and we do not appoint another institution to act as depository within 90 days;
|
●
|
if we notify any applicable trustee that we wish to terminate that global security; or
|
●
|
if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived.
|
●
|
the terms of the offering;
|
●
|
the names of any underwriters or agents;
|
●
|
the name or names of any managing underwriter or underwriters;
|
●
|
the purchase price of the securities;
|
●
|
the net proceeds from the sale of the securities;
|
●
|
any delayed delivery arrangements;
|
●
|
any underwriting discounts, commissions and other items constituting underwriters’ compensation;
|
●
|
any initial public offering price;
|
●
|
any discounts or concessions allowed or reallowed or paid to dealers; and
|
●
|
any commissions paid to agents.
|
|
2.
|
Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2014;
|
|
3.
|
Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2014
|
|
4.
|
Our Current Reports on Form 8-K or 8-K/A as filed on February 4, 2014, February 7, 2014, February 26, 2014, February 28, 2014, March 11, 2014, March 17, 2014, March 21, 2014, April 3, 2014, April 28, 2014, April 30, 2014, May 8, 2014, May 16, 2014, June 19, 2014, June 25, 2014, August 22, 2014, and October 9, 2014;
|
|
5.
|
Our Definitive Proxy Statement on Schedule 14A as filed on April 28, 2014; and
|
|
6.
|
The description of our capital stock contained in Form 8-A filed with the SEC on February 7, 1997, as amended by that certain Form 8-A filed with the SEC on March 15, 2010.
|
Page
|
|
About This Prospectus
|
1
|
Cautionary Note Regarding Forward-Looking Statements
|
2
|
Our Company
|
3
|
The Offering | 5 |
Risk Factors
|
6
|
Use of Proceeds
|
7
|
Dilution
|
8
|
Description of Our Common Stock
|
9
|
Plan of Distribution
|
10
|
Legal Matters
|
11
|
Experts
|
11
|
Documents Incorporated by Reference
|
12
|
Where You Can Find More Information
|
13
|
Common stock offered by us pursuant to this prospectus
|
Shares of common stock having an aggregate offering price of up to $100,000,000.
|
Manner of offering
|
“At-the-market offering” that may be made from time to time through our agent, Cantor. See “Plan of Distribution.”
|
Use of Proceeds
|
We intend to use the net proceeds from this offering, if any, for general corporate purposes, which may include, but are not limited to, working capital, repayment of outstanding indebtedness, strategic acquisitions and other potential business development activities, ongoing research and development activities and capital expenditures. See “Use of Proceeds”.
|
NASDAQ Global Market listing
|
PTX
|
Risk Factors
|
Investing in our common stock involves a high degree of risk. Please read the information contained in and incorporated by reference under the heading “Risk Factors” in this prospectus and under similar headings in the other documents that are filed after the date hereof and incorporated by reference into this prospectus, together with the other information included in or incorporated by reference into this prospectus, before deciding whether to invest in our common stock.
|
Assumed offering price per share
|
$ | 9.31 | ||||||
Net tangible book value per share as of June 30, 2014
|
$ | (0.54 | ) | |||||
Increase per share attributable to new investors
|
$ | 2.10 | ||||||
$ | ||||||||
As adjusted net tangible book value per share as of June 30, 2014, after giving effect to this offering
|
1.56 | |||||||
Dilution per share to new investors purchasing shares in this offering
|
$ | 7.75 |
|
2.
|
Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2014;
|
|
3.
|
Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2014
|
|
4.
|
Our Current Reports on Form 8-K or 8-K/A as filed on February 4, 2014, February 7, 2014, February 26, 2014, February 28, 2014, March 11, 2014, March 17, 2014, March 21, 2014, April 3, 2014, April 28, 2014, April 30, 2014, May 8, 2014, May 16, 2014, June 19, 2014, June 25, 2014, August 22, 2014, and October 9, 2014;
|
|
5.
|
Our Definitive Proxy Statement on Schedule 14A as filed on April 28, 2014; and
|
|
6.
|
The description of our capital stock contained in Form 8-A filed with the SEC on February 7, 1997, as amended by that certain Form 8-A filed with the SEC on March 15, 2010.
|
SEC Registration Fee
|
$ | 34,860 | |
NASDAQ Fees
|
$ | * | |
Transfer Agent Fees
|
$ | * | |
Legal Fees and Expenses
|
$ | * | |
Accounting Fees and Expenses
|
$ | * | |
Printing and Miscellaneous Fees
|
$ | * | |
Total
|
$ | * |
*
|
These fees are calculated based on the securities offered and the number of issuances and accordingly, cannot be estimated at this time.
|
Exhibit No.
|
Description of Documents
|
|
*1.1
|
Form of Underwriting Agreement.
|
|
Controlled Equity Offering
SM
Sales Agreement, dated November 7, 2014, by and between Pernix Therapeutics Holdings, Inc. and Cantor Fitzgerald & Co.
|
||
3.1
|
Articles of Incorporation of Pernix Therapeutics Holdings, Inc. (1)
|
|
3.2
|
By-laws of Pernix Therapeutics Holdings, Inc. (1)
|
|
4.1
|
Form of certificate representing shares of common stock of Pernix Therapeutics Holdings, Inc. (2)
|
|
*4.2
|
Form of Certificate of Designation of Preferred Stock.
|
|
*4.3
|
Form of Preferred Stock Certificate.
|
|
*4.4
|
Form of Rights Certificate.
|
|
Form of Senior Indenture between Pernix Therapeutics Holdings, Inc. and one or more trustees to be named.
|
||
Form of Subordinated Indenture between Pernix Therapeutics Holdings, Inc. and one or more trustees to be named.
|
||
*4.7
|
Form of Senior Note.
|
|
*4.8
|
Form of Subordinated Note.
|
|
Form of Common Stock Warrant Agreement and Warrant Certificate.
|
||
Form of Preferred Stock Warrant Agreement and Warrant Certificate.
|
Exhibit No.
|
Description of Documents
|
|
Form of Debt Securities Warrant Agreement and Warrant Certificate.
|
||
*4.12
|
Form of Unit Certificate.
|
|
Opinion of Goodwin Procter LLP relating to the base prospectus.
|
||
Opinion of Goodwin Procter LLP relating to the sales agreement prospectus.
|
||
*12.1
|
Statement Regarding Computation of Ratio of Earnings to Combined Fixed Charges and Preference Dividends.
|
|
Consent of Cherry Bekaert LLP, independent registered public accounting firm.
|
||
Consent of PricewaterhouseCoopers LLP, independent accountants.
|
||
+23.3
|
Consent of Goodwin Procter LLP (included in Exhibit 5.1).
|
|
+23.4
|
Consent of Goodwin Procter LLP (included in Exhibit 5.2).
|
|
+24
|
Powers of Attorney (included in the signature pages of this registration statement).
|
|
**25.1
|
Statement of Eligibility of Trustee on Form T-1 under the Senior Debt Indenture.
|
|
**25.2
|
Statement of Eligibility of Trustee on Form T-1 under the Subordinated Debt Indenture.
|
*
|
To be filed by amendment or incorporated by reference in connection with the offering of any securities, as appropriate.
|
**
|
To be filed as an exhibit to a Current Report on Form 8-K or pursuant to Rule 305(b)(2) of the Trust Indenture Act and incorporated herein by reference.
|
(1)
|
Incorporated herein by reference to the registrant's Current Report on Form 8-K filed with the SEC on March 15, 2010.
|
(2)
|
Incorporated herein by reference to the registrant's Annual Report on Form 10-K filed with the SEC on March 29, 2012.
|
|
(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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent 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;
|
|
(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 under the Securities Act to any purchaser:
|
|
(i)
|
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
|
|
(ii)
|
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of this registration statement or in reliance on Rule 430B relating to an
|
|
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided
,
however
, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract or sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or
|
|
(5)
|
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities:
|
(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 Act) 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 file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Act.
|
(d)
|
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling person of the registrant pursuant to Item 15, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.
|
PERNIX THERAPEUTICS HOLDINGS, INC. | |||
|
By:
|
/s/ Douglas L. Drysdale | |
Douglas L. Drysdale | |||
President and Chief Executive Officer
|
Signature
|
Title
|
Date
|
||
/s/ Douglas L. Drysdale
|
President, Chief Executive Officer and Chairman
|
November 7, 2014
|
||
Douglas L. Drysdale
|
(Principal Executive Officer) | |||
/s/ Sanjay S. Patel
|
Chief Financial Officer
|
November 7, 2014
|
||
Sanjay S. Patel
|
(Principal Financial Officer) | |||
/s/
Tracy S. Clifford
|
Vice President of Accounting and
Corporate Controller
|
November 7, 2014
|
||
Tracy S. Clifford
|
(Principal Accounting Officer)
|
/s/ John Sedor
|
Director
|
November 7, 2014
|
||
John Sedor
|
||||
/s/ Anastasios Konidaris
|
Director
|
November 7, 2014
|
||
Anastasios Konidaris
|
||||
Exhibit No.
|
Description of Documents
|
|
*1.1
|
Form of Underwriting Agreement.
|
|
Controlled Equity Offering
SM
Sales Agreement, dated November 7, 2014, by and between Pernix Therapeutics Holdings, Inc. and Cantor Fitzgerald & Co.
|
||
3.1
|
Articles of Incorporation of Pernix Therapeutics Holdings, Inc. (1)
|
|
3.2
|
By-laws of Pernix Therapeutics Holdings, Inc. (1)
|
|
4.1
|
Form of certificate representing shares of common stock of Pernix Therapeutics Holdings, Inc. (2)
|
|
*4.2
|
Form of Certificate of Designation of Preferred Stock.
|
|
*4.3
|
Form of Preferred Stock Certificate.
|
|
*4.4
|
Form of Rights Certificate.
|
|
Form of Senior Indenture between Pernix Therapeutics Holdings, Inc. and one or more trustees to be named.
|
||
Form of Subordinated Indenture between Pernix Therapeutics Holdings, Inc. and one or more trustees to be named.
|
||
*4.7
|
Form of Senior Note.
|
|
*4.8
|
Form of Subordinated Note.
|
|
Form of Common Stock Warrant Agreement and Warrant Certificate.
|
||
Form of Preferred Stock Warrant Agreement and Warrant Certificate.
|
Exhibit No.
|
Description of Documents
|
|
Form of Debt Securities Warrant Agreement and Warrant Certificate.
|
||
*4.12
|
Form of Unit Certificate.
|
|
Opinion of Goodwin Procter LLP relating to the base prospectus.
|
||
Opinion of Goodwin Procter LLP relating to the sales agreement prospectus.
|
||
*12.1
|
Statement Regarding Computation of Ratio of Earnings to Combined Fixed Charges and Preference Dividends.
|
|
Consent of Cherry Bekaert LLP, independent registered public accounting firm.
|
||
Consent of PricewaterhouseCoopers LLP, independent accountants.
|
||
+23.3
|
Consent of Goodwin Procter LLP (included in Exhibit 5.1).
|
|
+23.4
|
Consent of Goodwin Procter LLP (included in Exhibit 5.2).
|
|
+24
|
Powers of Attorney (included in the signature pages of this registration statement).
|
|
**25.1
|
Statement of Eligibility of Trustee on Form T-1 under the Senior Debt Indenture.
|
|
**25.2
|
Statement of Eligibility of Trustee on Form T-1 under the Subordinated Debt Indenture.
|
*
|
To be filed by amendment or incorporated by reference in connection with the offering of any securities, as appropriate.
|
**
|
To be filed as an exhibit to a Current Report on Form 8-K or pursuant to Rule 305(b)(2) of the Trust Indenture Act and incorporated herein by reference.
|
(1)
|
Incorporated herein by reference to the registrant's Current Report on Form 8-K filed with the SEC on March 15, 2010.
|
(2)
|
Incorporated herein by reference to the registrant's Annual Report on Form 10-K filed with the SEC on March 29, 2012.
|
PERNIX THERAPEUTICS HOLDINGS, INC. | |||
|
By:
|
/s/ Sanjay Patel | |
Name: | Sanjay Patel | ||
Title: | Chief Financial Officer | ||
ACCEPTED as of the date first-above written:
|
CANTOR FITZGERALD & CO. | |||
|
By:
|
/s/ Jeffrey Lumby | |
Name: | Jeffrey Lumby | ||
Title: | Senior Managing Director | ||
|
From:
|
Pernix Therapeutics Holdings, Inc.
|
|
To:
|
Cantor Fitzgerald & Co.
|
|
Attention: _____________________
|
1.
|
The entities listed on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013.
|
2.
|
Pernix Ireland Ltd.
|
PERNIX THERAPEUTICS HOLDINGS, INC.
|
By: __________________________________
|
Name: __________________________________
|
Title: __________________________________
|
PAGE
|
||
ARTICLE 1 DEFINITIONS
|
1
|
|
Section 1.01
|
Definitions of Terms
|
1
|
ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
|
5
|
|
Section 2.01
|
Designation and Terms of Securities
|
5
|
Section 2.02
|
Form of Securities and Trustee’s Certificate
|
7
|
Section 2.03
|
Denominations: Provisions for Payment
|
8
|
Section 2.04
|
Execution and Authentications
|
9
|
Section 2.05
|
Registration of Transfer and Exchange
|
9
|
Section 2.06
|
Temporary Securities
|
10
|
Section 2.07
|
Mutilated, Destroyed, Lost or Stolen Securities
|
11
|
Section 2.08
|
Cancellation
|
12
|
Section 2.09
|
Benefits of Indenture
|
12
|
Section 2.10
|
Authenticating Agent
|
12
|
Section 2.11
|
Global Securities
|
12
|
ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
|
13
|
|
Section 3.01
|
Redemption
|
13
|
Section 3.02
|
Notice of Redemption
|
14
|
Section 3.03
|
Payment Upon Redemption
|
15
|
Section 3.04
|
Sinking Fund
|
15
|
Section 3.05
|
Satisfaction of Sinking Fund Payments with Securities
|
15
|
Section 3.06
|
Redemption of Securities for Sinking Fund
|
16
|
ARTICLE 4 COVENANTS
|
16
|
|
Section 4.01
|
Payment of Principal, Premium and Interest
|
16
|
Section 4.02
|
Maintenance of Office or Agency
|
16
|
Section 4.03
|
Paying Agents
|
17
|
Section 4.04
|
Appointment to Fill Vacancy in Office of Trustee
|
17
|
Section 4.05
|
Compliance with Consolidation Provisions
|
18
|
ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
|
18
|
|
Section 5.01
|
Company to Furnish Trustee Names and Addresses of Securityholders
|
18
|
Section 5.02
|
Preservation Of Information; Communications With Securityholders
|
18
|
Section 5.03
|
Reports by the Company
|
18
|
Section 5.04
|
Reports by the Trustee
|
19
|
ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
19
|
|
Section 6.01
|
Events of Default
|
19
|
Section 6.02
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
21
|
Section 6.03
|
Application of Moneys Collected
|
22
|
Section 6.04
|
Limitation on Suits
|
22
|
Section 6.05
|
Rights and Remedies Cumulative; Delay or Omission Not Waiver
|
23
|
Section 6.06
|
Control by Securityholders
|
23
|
Section 6.07
|
Undertaking to Pay Costs
|
24
|
ARTICLE 7 CONCERNING THE TRUSTEE
|
24
|
|
Section 7.01
|
Certain Duties and Responsibilities of Trustee
|
24
|
Section 7.02
|
Certain Rights of Trustee
|
25
|
Section 7.03
|
Trustee Not Responsible for Recitals or Issuance or Securities
|
27
|
Section 7.04
|
May Hold Securities
|
27
|
Section 7.05
|
Moneys Held in Trust
|
27
|
Section 7.06
|
Compensation and Reimbursement
|
27
|
Section 7.07
|
Reliance on Officer’s Certificate
|
28
|
Section 7.08
|
Disqualification; Conflicting Interests
|
28
|
Section 7.09
|
Corporate Trustee Required; Eligibility
|
28
|
Section 7.10
|
Resignation and Removal; Appointment of Successor
|
29
|
Section 7.11
|
Acceptance of Appointment By Successor
|
30
|
Section 7.12
|
Merger, Conversion, Consolidation or Succession to Business
|
31
|
Section 7.13
|
Preferential Collection of Claims Against the Company
|
31
|
Section 7.14
|
Notice of Default
|
31
|
ARTICLE 8 CONCERNING THE SECURITYHOLDERS
|
32
|
|
Section 8.01
|
Evidence of Action by Securityholders
|
32
|
Section 8.02
|
Proof of Execution by Securityholders
|
32
|
Section 8.03
|
Who May be Deemed Owners
|
32
|
Section 8.04
|
Certain Securities Owned by Company Disregarded
|
33
|
Section 8.05
|
Actions Binding on Future Securityholders
|
33
|
ARTICLE 9 SUPPLEMENTAL INDENTURES
|
33
|
|
Section 9.01
|
Supplemental Indentures Without the Consent of Securityholders
|
33
|
Section 9.02
|
Supplemental Indentures With Consent of Securityholders
|
34
|
Section 9.03
|
Effect of Supplemental Indentures
|
35
|
Section 9.04
|
Securities Affected by Supplemental Indentures
|
35
|
Section 9.05
|
Execution of Supplemental Indentures
|
35
|
ARTICLE 10 SUCCESSOR ENTITY
|
36
|
Section 10.01
|
Company May Consolidate, Etc.
|
36
|
Section 10.02
|
Successor Entity Substituted
|
36
|
ARTICLE 11 SATISFACTION AND DISCHARGE
|
37
|
|
Section 11.01
|
Satisfaction and Discharge of Indenture
|
37
|
Section 11.02
|
Discharge of Obligations
|
37
|
Section 11.03
|
Deposited Moneys to be Held in Trust
|
38
|
Section 11.04
|
Payment of Moneys Held by Paying Agents
|
38
|
Section 11.05
|
Repayment to Company
|
38
|
ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
|
38
|
|
Section 12.01
|
No Recourse
|
38
|
ARTICLE 13 MISCELLANEOUS PROVISIONS
|
39
|
|
Section 13.01
|
Effect on Successors and Assigns
|
39
|
Section 13.02
|
Actions by Successor
|
39
|
Section 13.03
|
Surrender of Company Powers
|
39
|
Section 13.04
|
Notices
|
39
|
Section 13.05
|
Governing Law
|
39
|
Section 13.06
|
Treatment of Securities as Debt
|
39
|
Section 13.07
|
Certificates and Opinions as to Conditions Precedent
|
40
|
Section 13.08
|
Payments on Business Days
|
40
|
Section 13.09
|
Conflict with Trust Indenture Act
|
40
|
Section 13.10
|
Counterparts
|
40
|
Section 13.11
|
Separability
|
40
|
Section 13.12
|
Compliance Certificates
|
41
|
|
(1) This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
|
PERNIX THERAPEUTICS HOLDINGS, INC.
|
||
By:
|
||
Name:
|
||
Title:
|
||
[TRUSTEE]
, as Trustee
|
||
By:
|
||
Name:
|
||
Title:
|
Section of Trust Indenture Act of 1939, as Amended
|
Section of Indenture
|
|
310(a)
|
7.09
|
|
310(b)
|
7.08
|
|
7.10
|
||
310(c)
|
Inapplicable
|
|
311(a)
|
7.13
|
|
311(b)
|
7.13
|
|
311(c)
|
Inapplicable
|
|
312(a)
|
5.01
|
|
5.02(a)
|
||
312(b)
|
5.02(c)
|
|
312(c)
|
5.02(c)
|
|
313(a)
|
5.04(a)
|
|
313(b)
|
5.04(b)
|
|
313(c)
|
5.04(a)
|
|
5.04(b)
|
||
313(d)
|
5.04(c)
|
|
314(a)
|
5.03
|
|
13.12
|
||
314(b)
|
Inapplicable
|
|
314(c)
|
13.07(a)
|
|
314(d)
|
Inapplicable
|
|
314(e)
|
13.07(b)
|
|
314(f)
|
Inapplicable
|
|
315(a)
|
7.01(a)
|
|
7.01(b)
|
||
315(b)
|
7.14
|
|
315(c)
|
7.01
|
|
315(d)
|
7.01(b)
|
|
315(e)
|
6.07
|
|
316(a)
|
6.06
|
|
8.04
|
||
316(b)
|
6.04
|
|
316(c)
|
8.01
|
|
317(a)
|
6.02
|
|
317(b)
|
4.03
|
|
318(a)
|
13.09
|
|
(1) This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
|
PAGE
|
|
ARTICLE 1 DEFINITIONS
|
1 | ||||
Section 1.01
|
Definitions of Terms
|
1 | |||
ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
|
5 | ||||
Section 2.01
|
Designation and Terms of Securities
|
5 | |||
Section 2.02
|
Form of Securities and Trustee’s Certificate
|
7 | |||
Section 2.03
|
Denominations: Provisions for Payment
|
8 | |||
Section 2.04
|
Execution and Authentications
|
9 | |||
Section 2.05
|
Registration of Transfer and Exchange
|
10 | |||
Section 2.06
|
Temporary Securities
|
11 | |||
Section 2.07
|
Mutilated, Destroyed, Lost or Stolen Securities
|
11 | |||
Section 2.08
|
Cancellation
|
12 | |||
Section 2.09
|
Benefits of Indenture
|
12 | |||
Section 2.10
|
Authenticating Agent
|
12 | |||
Section 2.11
|
Global Securities
|
13 | |||
ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
|
14 | ||||
Section 3.01
|
Redemption
|
14 | |||
Section 3.02
|
Notice of Redemption
|
14 | |||
Section 3.03
|
Payment Upon Redemption
|
15 | |||
Section 3.04
|
Sinking Fund
|
15 | |||
Section 3.05
|
Satisfaction of Sinking Fund Payments with Securities
|
15 | |||
Section 3.06
|
Redemption of Securities for Sinking Fund
|
16 | |||
ARTICLE 4 COVENANTS
|
16 |
Section 4.01
|
Payment of Principal, Premium and Interest
|
16 | |||
Section 4.02
|
Maintenance of Office or Agency
|
16 | |||
Section 4.03
|
Paying Agents
|
17 | |||
Section 4.04
|
Appointment to Fill Vacancy in Office of Trustee
|
18 | |||
Section 4.05
|
Compliance with Consolidation Provisions
|
18 | |||
ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
|
18 | ||||
Section 5.01
|
Company to Furnish Trustee Names and Addresses of Securityholders
|
18 | |||
Section 5.02
|
Preservation Of Information; Communications With Securityholders
|
18 | |||
Section 5.03
|
Reports by the Company
|
18 | |||
Section 5.04
|
Reports by the Trustee
|
19 | |||
ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
19 | ||||
Section 6.01
|
Events of Default
|
19 | |||
Section 6.02
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
21 | |||
Section 6.03
|
Application of Moneys Collected
|
22 | |||
Section 6.04
|
Limitation on Suits
|
22 | |||
Section 6.05
|
Rights and Remedies Cumulative; Delay or Omission Not Waiver
|
23 | |||
Section 6.06
|
Control by Securityholders
|
23 | |||
Section 6.07
|
Undertaking to Pay Costs
|
24 | |||
ARTICLE 7 CONCERNING THE TRUSTEE
|
24 | ||||
Section 7.01
|
Certain Duties and Responsibilities of Trustee
|
24 | |||
Section 7.02
|
Certain Rights of Trustee
|
25 | |||
Section 7.03
|
Trustee Not Responsible for Recitals or Issuance or Securities
|
27 | |||
Section 7.04
|
May Hold Securities
|
27 | |||
Section 7.05
|
Moneys Held in Trust
|
27 |
Section 7.06
|
Compensation and Reimbursement
|
28 | |||
Section 7.07
|
Reliance on Officer’s Certificate
|
28 | |||
Section 7.08
|
Disqualification; Conflicting Interests
|
28 | |||
Section 7.09
|
Corporate Trustee Required; Eligibility
|
29 | |||
Section 7.10
|
Resignation and Removal; Appointment of Successor
|
29 | |||
Section 7.11
|
Acceptance of Appointment By Successor
|
30 | |||
Section 7.12
|
Merger, Conversion, Consolidation or Succession to Business
|
31 | |||
Section 7.13
|
Preferential Collection of Claims Against the Company
|
31 | |||
Section 7.14
|
Notice of Default
|
32 | |||
ARTICLE 8 CONCERNING THE SECURITYHOLDERS
|
32 | ||||
Section 8.01
|
Evidence of Action by Securityholders
|
32 | |||
Section 8.02
|
Proof of Execution by Securityholders
|
32 | |||
Section 8.03
|
Who May be Deemed Owners
|
33 | |||
Section 8.04
|
Certain Securities Owned by Company Disregarded
|
33 | |||
Section 8.05
|
Actions Binding on Future Securityholders
|
33 | |||
ARTICLE 9 SUPPLEMENTAL INDENTURES
|
34 | ||||
Section 9.01
|
Supplemental Indentures Without the Consent of Securityholders
|
34 | |||
Section 9.02
|
Supplemental Indentures With Consent of Securityholders
|
35 | |||
Section 9.03
|
Effect of Supplemental Indentures
|
35 | |||
Section 9.04
|
Securities Affected by Supplemental Indentures
|
35 | |||
Section 9.05
|
Execution of Supplemental Indentures
|
35 | |||
ARTICLE 10 SUCCESSOR ENTITY
|
36 | ||||
Section 10.01
|
Company May Consolidate, Etc.
|
36 | |||
Section 10.02
|
Successor Entity Substituted
|
37 | |||
ARTICLE 11 SATISFACTION AND DISCHARGE
|
37 |
Section 11.01
|
Satisfaction and Discharge of Indenture
|
37 | |||
Section 11.02
|
Discharge of Obligations
|
38 | |||
Section 11.03
|
Deposited Moneys to be Held in Trust
|
38 | |||
Section 11.04
|
Payment of Moneys Held by Paying Agents
|
38 | |||
Section 11.05
|
Repayment to Company
|
38 | |||
ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
|
39 | ||||
Section 12.01
|
No Recourse
|
39 | |||
ARTICLE 13 MISCELLANEOUS PROVISIONS
|
39 | ||||
Section 13.01
|
Effect on Successors and Assigns
|
39 | |||
Section 13.02
|
Actions by Successor
|
39 | |||
Section 13.03
|
Surrender of Company Powers
|
39 | |||
Section 13.04
|
Notices
|
39 | |||
Section 13.05
|
Governing Law
|
40 | |||
Section 13.06
|
Treatment of Securities as Debt
|
40 | |||
Section 13.07
|
Certificates and Opinions as to Conditions Precedent
|
40 | |||
Section 13.08
|
Payments on Business Days
|
40 | |||
Section 13.09
|
Conflict with Trust Indenture Act
|
41 | |||
Section 13.10
|
Counterparts
|
41 | |||
Section 13.11
|
Separability
|
41 | |||
Section 13.12
|
Compliance Certificates
|
41 | |||
ARTICLE 14 SUBORDINATION OF SECURITIES
|
41 | ||||
Section 14.01
|
Subordination Terms
|
41 |
|
(1) This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
|
PERNIX THERAPEUTICS HOLDINGS, INC.
|
||
By:
|
||
Name:
|
||
Title:
|
||
[TRUSTEE]
, as Trustee
|
||
By:
|
||
Name:
|
||
Title:
|
Section of Trust Indenture Act of 1939, as Amended
|
Section of Indenture
|
|
310(a)
|
7.09
|
|
310(b)
|
7.08
|
|
7.10
|
||
310(c)
|
Inapplicable
|
|
311(a)
|
7.13
|
|
311(b)
|
7.13
|
|
311(c)
|
Inapplicable
|
|
312(a)
|
5.01
|
|
5.02(a)
|
||
312(b)
|
5.02(c)
|
|
312(c)
|
5.02(c)
|
|
313(a)
|
5.04(a)
|
|
313(b)
|
5.04(b)
|
|
313(c)
|
5.04(a)
|
|
5.04(b)
|
||
313(d)
|
5.04(c)
|
|
314(a)
|
5.03
|
|
13.12
|
||
314(b)
|
Inapplicable
|
|
314(c)
|
13.07(a)
|
|
314(d)
|
Inapplicable
|
|
314(e)
|
13.07(b)
|
|
314(f)
|
Inapplicable
|
|
315(a)
|
7.01(a)
|
|
7.01(b)
|
||
315(b)
|
7.14
|
|
315(c)
|
7.01
|
|
315(d)
|
7.01(b)
|
|
315(e)
|
6.07
|
|
316(a)
|
6.06
|
|
8.04
|
||
316(b)
|
6.04
|
|
316(c)
|
8.01
|
|
317(a)
|
6.02
|
|
317(b)
|
4.03
|
|
318(a)
|
13.09
|
|
(1) This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
|
PERNIX THERAPEUTICS HOLDINGS, INC.
|
||
By:
|
||
Its:
|
||
WARRANT AGENT
|
||
By:
|
||
Its:
|
[[Form if Warrants are attached to Other Securities and are not immediately detachable.]
|
[Prior to , this Warrant Certificate cannot be transferred or exchanged unless attached to a [Title of Other Securities].]
|
|||
[Form of Legend if Warrants are not immediately exercisable.]
|
[Prior to , Warrants evidenced by this Warrant Certificate cannot be exercised.]
|
No.
|
Warrants
|
Dated:
|
||||
PERNIX THERAPEUTICS HOLDINGS, INC.
|
||||
By:
|
||||
Its:
|
||||
Countersigned:
|
||||
As Warrant Agent
|
||||
By:
|
||||
Authorized Signature
|
Dated:
|
Name:
|
||||
Please Print
|
|||||
Address:
|
|||||
(Insert Social Security or Other Identifying Number of Holder)
|
|||||
Signature Guaranteed:
|
|||||
Signature
|
|||||
By hand at:
|
|||
By mail at:
|
|||
(Please print name and address including zip code)
|
Please print Social Security or other identifying number
|
Dated:
|
|||
Signature
|
Signature Guaranteed
|
||
PERNIX THERAPEUTICS HOLDINGS
, INC.
|
||
By
|
||
Its
|
||
WARRANT AGENT
|
||
By
|
||
Its
|
[[Form if Warrants are attached to Other Securities and are not immediately detachable.]
|
[Prior to , this Warrant Certificate cannot be transferred or exchanged unless attached to a [Title of Other Securities].]
|
|
[Form of Legend if Warrants are not immediately exercisable.]
|
[Prior to , Warrants evidenced by this Warrant Certificate cannot be exercised.]
|
No.
|
Warrants
|
Dated:
|
||||
PERNIX THERAPEUTICS HOLDINGS
, INC.
|
||||
By:
|
||||
Its:
|
||||
Countersigned:
|
||||
As Warrant Agent
|
||||
By:
|
||||
Authorized Signature
|
Dated:
|
Name:
|
|||
Please Print
|
||||
Address:
|
(Insert Social Security or Other Identifying Number of Holder)
|
Signature Guaranteed:
|
||
Signature
|
By hand at:
|
|||
By mail at:
|
|||
(Please print name and address including zip code)
|
Please print Social Security or other identifying number
|
Dated:
|
|||
Signature
|
PERNIX THERAPEUTICS HOLDINGS, INC.
|
|
By
|
|
Its
|
|
WARRANT AGENT
|
|
By
|
|
Its
|
[[Form if Warrants are attached to Other Securities and are not immediately detachable.]
|
[Prior to , this Warrant Certificate cannot be transferred or exchanged unless attached to a [Title of Other Securities].]
|
|
[Form of Legend if Warrants are not immediately exercisable.]
|
[Prior to , Warrants evidenced by this Warrant Certificate cannot be exercised.]
|
No.
|
Warrants
|
Dated:
|
||||
PERNIX THERAPEUTICS HOLDINGS
, INC.
|
||||
By
|
||||
Its
|
||||
Countersigned:
|
||||
As Warrant Agent
|
||||
By
|
||||
Authorized Signature
|
Dated
|
Name
|
|||
Please Print
|
||||
Address:
|
||||
(Insert Social Security or Other Identifying Number of Holder)
|
Signature Guaranteed
|
||
Signature
|
(Please print name and address including zip code)
|
Please print Social Security or other identifying number
|
Dated:
|
|||
Signature
|
●
|
with respect to any of the Securities, (a) the authorization by the Company of the amount, terms and issuance of such Securities (the “Authorization”) and (b) the issuance of such Securities in accordance with the Authorization therefor upon the receipt by the Company of the consideration (which, in the case of shares of Common Stock or Preferred Stock, is not less than the par value of such shares) to be paid therefor in accordance with the Authorization;
|
●
|
with respect to Preferred Stock, (a) the establishment of the terms of such Preferred Stock by the Company in conformity with the Charter and applicable law and (b) the execution, acknowledgement and filing with the Maryland Secretary of State, and the effectiveness of, articles supplementary to the Charter setting forth the terms of such Preferred Stock in accordance with the Charter and applicable law;
|
●
|
with respect to Debt Securities, (a) the authorization, execution and delivery of the indenture or a supplemental indenture relating to such Securities by the Company and the trustee thereunder and/or (b) the establishment of the terms of such Securities by the Company in conformity with the applicable indenture or supplemental indenture and applicable law, and (c) the execution, authentication and issuance of such Securities in accordance with the applicable indenture or supplemental indenture and applicable law; and
|
●
|
with respect to Warrants, Subscription Rights or Units, (a) the authorization, execution and delivery by the Company and the other parties thereto of any agreement under which such Securities are to be issued and (b) the establishment of the terms of such Securities, and the execution and delivery of such Securities, in conformity with any applicable agreement under which such Securities are to be issued and applicable law.
|
Very truly yours,
|
|
/s/ Goodwin Procter LLP
|
|
GOODWIN PROCTER LLP
|
|
Re:
|
Registration Statement on Form S-3; Shares of Common Stock, par value $0.01 per share, having an aggregate offering price of up to $100,000,000
|
Very truly yours,
|
|
/s/ Goodwin Procter LLP
|
|
GOODWIN PROCTER LLP
|