Delaware
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95-4078884
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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Faith L. Charles, Esq.
Thompson Hine LLP
335 Madison Avenue, 12
th
Floor
New York, NY 10017
(212) 908-3905
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Stephen A. Slusher, Esq.
Chief Legal Officer
4B Cedar Brook Drive
Cranbury, NJ 08512
(609) 495-2200
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Large accelerated filer o | Accelerated filer o | Non-accelerated filer o | Smaller reporting company þ |
(Do not check if a smaller reporting company) |
Title of each
class of
securities to
be registered
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Amount to be
registered (1)
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Proposed maximum offering price per unit (2)
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Proposed maximum aggregate offering price (1) (2)
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Amount of registration
fee (3)
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||||||||||||
Common Stock
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― | ― | ― | ― | ||||||||||||
Preferred Stock
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― | ― | ― | ― | ||||||||||||
Debt Securities
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― | ― | ― | ― | ||||||||||||
Warrants
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― | ― | ― | ― | ||||||||||||
Units
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― | ― | ― | ― | ||||||||||||
Total
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― | ― | $ | 100,000,000 | $ | 11,620 |
(1)
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This registration statement covers offers, sales and distributions of an indeterminate number or aggregate principal amount of the registered securities which the registrant may from time to time issue at indeterminate prices. The aggregate maximum offering price of all securities registered will not exceed $100,000,000 or if the registrant issues any debt securities at an original issuance discount, such greater amount as shall result in proceeds of $100,000,000 to the registrant. The registered securities may be sold separately or as units with other classes of the registered securities. The registered securities also include such indeterminate numbers of shares of common stock and preferred stock and amount of debt securities as may be issued upon conversion of or exchange for preferred stock or debt securities that provide for conversion or exchange, upon exercise of warrants or pursuant to the antidilution provisions of any such securities. As long as the aggregate market value of the registrant’s common stock held by non-affiliates remains below $75 million, the aggregate maximum offering price of all securities issued in any given 12-calendar month period pursuant to this and any other registration statement relying on General Instruction 1.B.6 of Form S-3 may not exceed one-third of the aggregate market value of the registrant’s common stock held by non-affiliates.
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(2)
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The registrant will determine the proposed maximum offering price per unit and the proposed maximum aggregate offering price per class from time to time in connection with the issuance of the registered securities. The proposed maximum aggregate offering price for each class is omitted pursuant to General Instruction II.D of Form S-3 under the Securities Act of 1933, as amended.
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(3)
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Calculated in accordance with Rule 457(o) under the Securities Act of 1933, as amended. The registrant previously filed a Registration Statement on Form S-1 on September 29, 2014 (File No. 333-198992) and paid a filing fee of $7,406. No securities were sold pursuant to that registration statement, which was withdrawn pursuant to a request filed November 17, 2014. Since that registration statement was withdrawn, the registrant has filed the following registration statements, with the filing fees offset against the previously paid filing fee:
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File Number
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Filing Date
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Form
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Filing Fee
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Balance
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||||
333-201821
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February 2, 2015
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S-3
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$2,283
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$ 5,123
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||||
333-206003
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July 31, 2015
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S-3
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2,122
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3,001
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||||
333-206009
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July 31, 2015
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S-8
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$ 342
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$ 2,659
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PROSPECTUS
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SUBJECT TO COMPLETION
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August 3, 2015
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●
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common stock, par value $0.01 per share;
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●
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preferred stock, par value $0.01 per share;
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debt securities;
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warrants to purchase common or preferred stock, or debt securities; or
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any combination of the above, separately or as units.
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Page
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Prospectus Summary
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1
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Risk Factors
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3
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Note Concerning Forward-Looking Statements
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5
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Incorporation of Information by Reference
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6
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Where You Can Find More Information
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7
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Use of Proceeds
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7
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Dilution
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7
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Market Price of and Dividends on Common Equity and Related Stockholder Matters
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7
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Description of Securities
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8
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Anti-Takeover Effects of Provisions of Delaware Law and Our Charter Documents
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14
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Plan of Distribution
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15
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Legal Matters
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16
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Experts
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16
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Bremelanotide, an on-demand subcutaneous injectable peptide melanocortin receptor agonist, for treatment of FSD in premenopausal women. Bremelanotide, which is a melanocortin agonist (a compound which binds to a cell receptor and activates a response), is a synthetic peptide analog of the naturally occurring hormone alpha-MSH (melanocyte stimulating hormone). The novel mechanism of action involves activating endogenous melanocortin hormone pathways involved in sexual arousal response. Bremelanotide started Phase 3 clinical trials in the last quarter of calendar 2014;
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Melanocortin receptor-4, or MC4r, compounds for treatment of obesity and diabetes in collaboration with AstraZeneca pursuant to our research collaboration and license agreement. Results of our studies involving MC4r peptides suggest that certain of these peptides may have significant commercial potential for treatment of conditions responsive to MC4r activation, including FSD, erectile dysfunction, obesity and diabetes;
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PL-3994, a peptide mimetic natriuretic peptide receptor A, or NPR-A, agonist, for treatment of cardiovascular and pulmonary indications. PL-3994 is our lead natriuretic peptide receptor product candidate, and is a synthetic mimetic of the neuropeptide hormone ANP. PL-3994 is in development for treatment of heart failure, acute exacerbations of asthma and refractory hypertension; and
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Melanocortin receptor-1, or MC1r, agonist peptides, for treatment of inflammatory and dermatologic disease indications. Our MC1r peptide drug candidates are highly specific, with substantially greater binding and efficacy at MC1r than at other melanocortin receptors. We have selected one of our MC1r peptide drug candidates, designated PL-8177, as a clinical trial candidate.
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Using our technology and expertise to develop and commercialize products in our active drug development programs;
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Entering into strategic alliances and partnerships with pharmaceutical companies to facilitate the development, manufacture, marketing, sale and distribution of product candidates that we are developing;
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Partially funding our product development programs with the cash flow generated from research collaboration and license agreements and any potential future agreements with third parties; and
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Completing development and seeking regulatory approval of bremelanotide for FSD and our other product candidates.
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We have incurred substantial losses since our inception and we anticipate that we will continue to incur losses for the foreseeable future. We expect to incur additional losses as we continue our development of bremelanotide for FSD, PL-3994 and other product candidates and, unless and until we receive regulatory approval under applicable regulatory requirements, we cannot sell our products and will not have product revenues from them;
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We are substantially dependent on the clinical and commercial success of our product candidates, primarily our lead product candidate, bremelanotide for FSD, for which we are have initiated Phase 3 clinical trials;
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We may be unable to obtain regulatory approval for bremelanotide for FSD or future product candidates under applicable regulatory requirements. The denial or delay of any such approval would delay commercialization and have a material adverse effect on our potential to generate revenue, our business and our results of operations;
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Even if bremelanotide for FSD or our other product candidates receive regulatory approval, they may fail to achieve the level of market acceptance needed for us to have commercial success. Our product candidates, if approved, will face significant competition and our failure to effectively compete may prevent us from achieving significant market penetration and expansion;
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We will require substantial additional funding to achieve our goals, and a failure to obtain this necessary capital when needed on acceptable terms, or at all, could force us to delay, limit, reduce or terminate our product development, other operations or commercialization efforts;
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We have limited control over development activities in Europe for our lead product candidate, bremelanotide for FSD, including regulatory approvals, and no direct control over commercialization efforts due to an agreement with Gedeon Richter Plc, or Gedeon Richter. If Gedeon Richter fails in obtaining regulatory approval or market acceptance of bremelanotide for FSD in Europe, we may be unable to generate any revenue or business for bremelanotide for FSD in Europe;
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If our efforts to protect our intellectual property related to bremelanotide for FSD or any future product candidates are not adequate, we may not be able to compete effectively in our market; and
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We rely on a small management team and staff as well as various contractors and consultants to provide critical services to us, including services related to our clinical programs for bremelanotide and PL-3994 and our preclinical programs for MC1r and MC4r
peptide drug candidates. Such programs could be adversely affected if we lose the services of existing key personnel.
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70,622 shares issuable on the conversion of immediately convertible Series A Convertible preferred stock, subject to adjustment, for no further consideration;
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5,080,956 shares issuable on the exercise of stock options, at exercise prices ranging from $0.60 to $24.90 per share;
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1,028,017 shares issuable under restricted stock units which vest on dates between June 11, 2016 and June 11, 2019, subject to the fulfillment of service conditions; and
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126,061,618 shares issuable on the exercise of warrants at exercise prices ranging from $0.01 to $1.00 per share, which includes warrants issued in our 2015 private offering for 21,917,808 shares issuable at an exercise price of $0.01 per share and for 2,191,781 shares issuable at an exercise price of $0.91 per share, and warrants issued in connection with our 2015 venture loan for 549,450 shares issuable at an exercise price of $0.91 per share.
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estimates of our expenses, future revenue, capital requirements;
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our ability to obtain additional financing on terms acceptable to us, or at all;
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our limited operating history upon which to base an investment decision;
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our ability to advance product candidates into, and successfully complete, clinical trials;
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the initiation, timing, progress and results of future preclinical studies and clinical trials, and our research and development programs;
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the timing or likelihood of regulatory filings and approvals;
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our expectations regarding the results and the timing of results in our Phase 3 clinical trials of bremelanotide for FSD;
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our expectation regarding the timing of our regulatory submissions for approval of bremelanotide for FSD in the United States and Europe;
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the potential for commercialization of bremelanotide for FSD and other product candidates, if approved, by us;
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our expectations regarding the potential market size and market acceptance for bremelanotide for FSD and our other product candidates, if approved for commercial use;
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our ability to compete with other products and technologies similar to our product candidates;
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the ability of our third-party collaborators to timely carry out their duties under their agreements with us;
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the ability of our contract manufacturers to perform their manufacturing activities for us in compliance with applicable regulations;
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our ability to recognize the potential value of our licensing arrangements with third parties;
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the potential to achieve revenues from the sale of our product candidates;
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our ability to obtain adequate reimbursement from Medicare, Medicaid, private insurers and other healthcare payers;
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our ability to maintain product liability insurance at a reasonable cost or in sufficient amounts, if at all;
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the retention of key management, employees and third-party contractors;
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the scope of protection we are able to establish and maintain for intellectual property rights covering our product candidates and technology;
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our compliance with federal and state laws and regulations;
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the timing and costs associated with obtaining regulatory approval for our product candidates;
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the impact of legislative or regulatory healthcare reforms in the United States;
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our ability to adapt to changes in global economic conditions; and
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our ability to remain listed on the NYSE MKT.
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annual report on Form 10-K for the fiscal year ended June 30, 2014, filed with the SEC on September 12, 2014;
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current report on Form 8-K, filed with the SEC on September 3, 2014;
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amended annual report on Form 10-K/A for the fiscal year ended June 30, 2014, filed with the SEC on October 9, 2014;
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quarterly report on Form 10-Q for the quarter ended September 30, 2014, filed with the SEC on November 14, 2014;
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current report on Form 8-K, filed with the SEC on December 30, 2014;
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quarterly report on Form 10-Q for the quarter ended December 31, 2014, filed with the SEC on February 12, 2015;
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quarterly report on Form 10-Q for the quarter ended March 31, 2015, filed with the SEC on May 12, 2015;
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current report on Form 8-K, filed with the SEC on June 11, 2015,
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current report on Form 8-K, filed with the SEC on July 7, 2015, and
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the description of our common stock contained in our registration statement on Form 8-A filed with the SEC on December 13, 1999, including any amendment or report for the purpose of updating such description.
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The net tangible book value per share of our equity securities before and after the offering;
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The amount of the increase in such net tangible book value per share attributable to the cash payments made by the purchasers in the offering; and
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the amount of the immediate dilution from the public offering price which will be absorbed by such purchasers.
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300,000,000 shares of common stock, par value $0.01 per share, and
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10,000,000 shares of preferred stock, par value $0.01 per share, of which 9,736,000 shares are undesignated.
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57,128,433 shares of our common stock;
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4,697 shares of Series A Convertible Preferred Stock, convertible into 70,622 shares of common stock, subject to adjustment, for no further consideration;
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stock options to purchase 5,080,956 shares of common stock at exercise prices ranging from $0.60 to $24.90 per share;
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restricted stock units representing 1,028,017 shares of common stock which vest on dates between June 11, 2016 and June 11, 2019, subject to the fulfillment of service conditions; and
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warrants to purchase 126,061,618 shares of common stock issuable on the exercise of warrants at exercise prices ranging from $0.01 to $1.00 per share.
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the number of shares constituting the series and the distinctive designation of the series;
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dividend rates, whether dividends are cumulative, and, if so, from what date and the relative rights of priority of payment of dividends;
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voting rights and the terms of the voting rights;
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conversion privileges and the terms and conditions of conversion, including provision for adjustment of the conversion rate;
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redemption rights and the terms and conditions of redemption, including the date or dates upon or after which shares may be redeemable, and the amount per share payable in case of redemption, which may vary under different conditions and at different redemption dates;
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sinking fund provisions for the redemption or purchase of shares;
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rights in the event of voluntary or involuntary liquidation, dissolution or winding up of the corporation, and the relative rights of priority of payment; and
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any other relative powers, preferences, rights, privileges, qualifications, limitations and restrictions of the series.
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the title;
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the principal amount being offered, and if a series, the total amount authorized and the total amount outstanding;
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any limit on the amount that may be issued;
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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;
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the maturity date;
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the principal amount due at maturity, and whether the debt securities will be issued with an original issue discount;
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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;
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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;
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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the terms of the subordination of any series of subordinated debt;
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the place where payments will be payable;
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restrictions on transfer, sale or other assignment, if any;
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our right, if any, to defer payment of interest and the maximum length of any such deferral period;
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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 redemptions provisions;
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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;
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whether the indenture will restrict our ability to pay dividends, or will require us to maintain any asset ratios or reserves;
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whether we will be restricted from incurring any additional indebtedness, issuing additional securities, or entering into a merger, consolidation or sale of our business;
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a discussion of any material or special United States federal income tax considerations applicable to the debt securities;
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information describing any book-entry features;
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provisions for a sinking fund purchase or other analogous fund, if any;
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any provisions for payment of additional amounts for taxes and any provision for redemption, if we must pay such additional amount with respect to any debt security;
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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;
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the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof;
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the terms on which a series of debt securities may be convertible into or exchangeable for our common stock, any other of our securities or securities of a third party, and whether conversion or exchange is mandatory, at the option of the holder or at our option;
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events of default;
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whether we and/or the debenture trustee may change an indenture without the consent of any holders;
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the form of debt security and how it may be exchanged and transferred;
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descriptions of the debenture trustee and paying agent, and the method of payments; and
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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 which may be required by us or advisable under applicable laws or regulations.
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the title of warrants;
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security;
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if applicable, the date on and after which the warrants and the related securities will be separately transferable;
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in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon exercise;
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at which, and currency in which, this principal amount of debt securities may be purchased upon exercise;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence and expire;
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the manner in which the warrant agreement and warrants may be modified;
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federal income tax consequences of holding or exercising the warrants;
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information relating to book-entry procedures, if any;
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the terms of the securities issuable upon exercise of the warrants; and
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or
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in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
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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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any merger or consolidation involving the corporation and the interested 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 exceptions, 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 good faith;
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in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation; and,
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with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
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through one or more underwriters or dealers; |
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through other agents; |
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directly to investors; or |
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through a combination of any of these methods. |
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at a fixed public offering price or prices, which we may change from time to time; |
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at market prices prevailing at the times of sale; |
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at prices calculated by a formula based on prevailing market prices; |
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at negotiated prices; or |
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in a combination of any of the above pricing methods.
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SEC registration fees
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$ | 11,620 | ||
Exchange fees
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0 | |||
Legal fees and expenses
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10,000 | |||
Accountants fees and expenses
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6,000 | |||
Miscellaneous
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3,000 | |||
TOTAL
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$ | 29,620 |
Exhibit Number
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Description
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Filed Herewith
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Form
|
Filing Date
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SEC File No.
|
|||||
1.01
|
Underwriting Agreement.†
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|||||||||
4.01
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Restated Certificate of Incorporation of Palatin Technologies, Inc., as amended.
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10-K
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September 27, 2013
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001-15543
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||||||
4.02
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Bylaws of Palatin Technologies, Inc.
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10-Q
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February 8, 2008
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001-15543
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||||||
4.03
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Specimen Certificate for shares of Common Stock, $.01 par value, of Palatin Technologies, Inc.
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S-1
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September 29, 2014
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333-198992
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||||||
4.04
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Form of securities purchase agreement.†
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4.05
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Certificate of designation of preferred stock and specimen preferred stock certificate.†
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4.06
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Form of debt indenture.
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X
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4.07
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Form of note.†
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4.08
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Form of warrant agreement and warrant certificate.†
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5.01
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Opinion of Thompson Hine LLP.
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X
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23.01
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Consent of Thompson Hine LLP.††
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X
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23.02
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Consent of Independent Registered Public Accounting Firm.
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X
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||||||||
24.01
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Power of Attorney.†††
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X
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PALATIN TECHNOLOGIES, INC. | |||
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By:
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/s/ Carl Spana | |
Carl Spana, Ph.D. | |||
President and Chief Executive Officer
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|||
Signature
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Title
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Date
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/s/ Carl Spana
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President, Chief Executive Officer and Director
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August 3, 2015
|
||
Carl Spana
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(principal executive officer)
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/s/ Stephen T. Wills
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Executive Vice President, Chief Financial Officer
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August 3, 2015
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Stephen T. Wills
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and Chief Operating Officer (principal financial and accounting officer)
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|||
/s/ John K.A. Prendergast
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Chairman and Director
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August 3, 2015
|
||
John K.A. Prendergast
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||||
/s/ Robert K. deVeer, Jr
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Director
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August 3, 2015
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Robert K. deVeer, Jr.
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||||
/s/ Zola P. Horovitz
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Director
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August 3, 2015
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Zola P. Horovitz
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||||
/s/ J. Stanley Hull
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Director
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August 3, 2015
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J. Stanley Hull
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||||
/s/
Alan W. Dunton
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Director
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August 3, 2015
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||
Alan W. Dunton
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||||
/s/ Angela Rossetti
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Director
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August 3, 2015
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Angela Rossetti
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||||
/s/ Arlene M. Morris
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Director
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August 3, 2015
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Arlene M. Morris
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Exhibit Number
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Description
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Filed Herewith
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Form
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Filing Date
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SEC File No.
|
|||||
1.01
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Underwriting Agreement.†
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|||||||||
4.01
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Restated Certificate of Incorporation of Palatin Technologies, Inc., as amended.
|
10-K
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September 27, 2013
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001-15543
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4.02
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Bylaws of Palatin Technologies, Inc.
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10-Q
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February 8, 2008
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001-15543
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4.03
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Specimen Certificate for shares of Common Stock, $.01 par value, of Palatin Technologies, Inc.
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S-1
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September 29, 2014
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333-198992
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4.04
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Form of securities purchase agreement.†
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4.05
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Certificate of designation of preferred stock and specimen preferred stock certificate.†
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4.06
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Form of debt indenture.
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X
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4.07
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Form of note.†
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4.08
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Form of warrant agreement and warrant certificate.†
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5.01
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Opinion of Thompson Hine LLP.
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X
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23.01
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Consent of Thompson Hine LLP.††
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X
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23.02
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Consent of Independent Registered Public Accounting Firm.
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X
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24.01
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Power of Attorney.†††
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X
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
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2 |
Section 1.01
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Definitions.
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2
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Section 1.02
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Other Definitions.
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6
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Section 1.03
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Incorporation by Reference of Trust Indenture Act.
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7
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Section 1.04
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Rules of Construction.
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7
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ARTICLE II TILE SECURITIES
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8 |
Section 2.01
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Issuable in Series.
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8
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Section 2.02
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Establishment of Terms of Series of Securities.
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8
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Section 2.03
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Execution and Authentication.
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10
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Section 2.04
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Registrar and Paying Agent.
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10
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Section 2.05
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Paying Agent to Hold Money in Trust.
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11
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Section 2.06
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Holder Lists.
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11
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Section 2.07
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Transfer and Exchange.
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11
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Section 2.08
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Mutilated, Destroyed, Lost and Stolen Securities.
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12
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Section 2.09
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Outstanding Securities.
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12
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Section 2.10
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Treasury Securities.
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13
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Section 2.11
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Temporary Securities.
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13
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Section 2.12
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Cancellation.
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13
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Section 2.13
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Defaulted Interest.
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13
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Section 2.14
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Global Securities
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13
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ARTICLE III REDEMPTION
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15 |
Section 3.01
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Notice to Trustee.
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15
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Section 3.02
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Selection of Securities to be Redeemed.
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15
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Section 3.03
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Notice of Redemption.
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15
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Section 3.04
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Effect of Notice of Redemption.
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16
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Section 3.05
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Deposit of Redemption Price.
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16
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Section 3.06
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Securities Redeemed in Part.
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16
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ARTICLE IV COVENANTS
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16 |
Section 4.01
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Payment of Principal and Interest.
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17
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Section 4.02
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SEC Reports.
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17
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Section 4.03
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Compliance Certificate.
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17
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Section 4.04
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Stay, Extension and Usury Laws.
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17
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ARTICLE V SUCCESSORS
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17 |
Section 5.01
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When Company May Merge, Etc.
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17
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Section 5.02
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Successor Corporation Substituted.
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18
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ARTICLE VI DEFAULTS AND REMEDIES
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18 |
Section 6.01
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Events of Default.
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18
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Section 6.02
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Acceleration of Maturity; Rescission and Annulment.
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19
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Section 6.03
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Collection of Indebtedness and Suits for Enforcement by Trustee.
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19
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Section 6.04
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Trustee May File Proofs of Claim.
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20
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Section 6.05
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Trustee May Enforce Claims Without Possession of Securities.
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20
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Section 6.06
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Application of Money Collected.
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21
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Section 6.07
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Limitation on Suits.
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21
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Section 6.08
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Unconditional Right of Holders to Receive Principal and Interest.
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22
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Section 6.09
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Restoration of Rights and Remedies.
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22
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Section 6.10
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Rights and Remedies Cumulative.
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22
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Section 6.11
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Delay or Omission Not Waiver.
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22
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Section 6.12
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Control by Holders.
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22
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Section 6.13
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Waiver of Past Defaults.
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22
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Section 6.14
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Undertaking for Costs.
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23
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ARTICLE VII TRUSTEE
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23 |
Section 7.01
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Duties of Trustee.
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23
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Section 7.02
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Rights of Trustee.
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24
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Section 7.03
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Individual Rights of Trustee.
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25
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Section 7.04
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Trustee’s Disclaimer.
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25
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Section 7.05
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Notice of Defaults.
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25
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Section 7.06
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Reports by Trustee to Holders.
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26
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Section 7.07
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Compensation and Indemnity.
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26
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Section 7.08
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Replacement of Trustee.
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26
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Section 7.09
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Successor Trustee by Merger, etc.
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27
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Section 7.10
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Eligibility; Disqualification.
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27
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Section 7.11
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Preferential Collection of Claims Against Company.
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27
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ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE
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27 |
Section 8.01
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Satisfaction and Discharge of Indenture.
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28
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Section 8.02
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Application of Trust Funds; Indemnification.
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28
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Section 8.03
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Legal Defeasance of Securities of any Series.
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29
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Section 8.04
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Covenant Defeasance.
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30
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Section 8.05
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Repayment to Company.
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31
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Section 8.06
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Reinstatement.
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32
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ARTICLE IX AMENDMENTS AND WAIVERS
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32 |
Section 9.01
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Without Consent of Holders.
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32
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Section 9.02
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With Consent of Holders.
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33
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Section 9.03
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Limitations.
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33
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Section 9.04
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Compliance with Trust Indenture Act.
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34
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Section 9.05
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Revocation and Effect of Consents.
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34
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Section 9.06
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Notation on or Exchange of Securities.
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34
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Section 9.07
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Trustee Protected.
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34
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ARTICLE X MISCELLANEOUS
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34 |
Section 10.01
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Trust Indenture Act Controls.
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35
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Section 10.02
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Notices.
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35
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Section 10.03
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Communication by Holders with Other Holders.
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35
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Section 10.04
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Certificate and Opinion as to Conditions Precedent.
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35
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Section 10.05
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Statements Required in Certificate or Opinion.
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36
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Section 10.06
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Rules by Trustee and Agents.
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36
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Section 10.07
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Legal Holidays.
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36
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Section 10.08
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No Recourse Against Others.
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36
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Section 10.09
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Counterparts.
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36
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Section 10.10
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Governing Laws.
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36
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Section 10.11
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No Adverse Interpretation of Other Agreements.
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37
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Section 10.12
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Successors.
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37
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Section 10.13
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Severability.
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37
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Section 10.14
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Table of Contents, Headings, Etc.
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37
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Section 10.15
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Securities in a Foreign Currency.
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37
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Section 10.16
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Judgment Currency.
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37
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ARTICLE XI SINKING FUNDS
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38 |
Section 11.01
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Applicability of Article.
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38
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Section 11.02
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Satisfaction of Sinking Fund Payments with Securities.
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38
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Section 11.03
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Redemption of Securities for Sinking Fund.
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39
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Section 310
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(a)(1)
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7.10
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(a)(2)
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7.10
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(a)(5)
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7.10
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(b)
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7.10
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Section 311
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(a)
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7.11
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(b)
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7.11
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(c)
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Not Applicable
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Section 312
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(a)
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2.06
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(b)
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10.03
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(c)
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10.03
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Section 313
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(a)
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7.06
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(b)(1)
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7.06
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(b)(2)
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7.06
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(c)(1)
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7.06
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(d)
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7.06
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Section 314
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(a)
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4.02,10.05
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(b)
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Not Applicable
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(c)(1)
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10.04
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(c)(2)
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10.04
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|
(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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10.05
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(f)
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Not Applicable
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Section 315
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(a)
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7.01
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(b)
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7.05
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(c)
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7.01, 7.05, 7.07
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(d)
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7.01
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(e)
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6.14
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Section 316
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(a)
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2.09
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(a)(1)(a)
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6.12
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(a)(1)(b)
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6.13
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|
(b)
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6.08
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|
Section 317
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(a)(1)
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6.03
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(a)(2)
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6.04
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(b)
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2.05
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Section 318
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(a)
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10.01
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TERM
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DEFINED IN SECTION
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“Bankruptcy Law”
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6.01
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|
“Custodian”
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6.01
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“Event of Default”
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6.01
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“Judgment Currency”
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10.16
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“Legal Holiday”
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10.07
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“mandatory sinking fund payment”
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11.01
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|
“Market Exchange Rate”
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10.15
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“New York Banking Day”
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10.16
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|
“optional sinking fund payment”
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11.01
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|
“Paying Agent”
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2.04
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“Registrar”
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2.04
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“Required Currency”
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10.16
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|
“Service Agent”
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2.04
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“successor person”
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5.01
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PALATIN TECHNOLOGIES, INC.
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|||
By:
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/s/ | ||
Name | |||
Title | |||
[ ], as Trustee | |||
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By:
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/s/ | |
Name | |||
Title | |||
Re:
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Registration Statement on Form S-3
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a)
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The Certificate of Incorporation and By-laws of the Company, each as amended and restated through the date hereof.
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b)
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The Registration Statement.
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c)
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The Prospectus.
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d)
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The form of Indenture.
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e)
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Such other records, instruments, documents and certificates as we have deemed advisable in order to render such opinion.
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a)
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The genuineness of all signatures.
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b)
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The legal capacity of all natural persons.
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c)
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The authenticity of all documents submitted to us as originals.
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d)
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The conformity to original documents of all documents submitted to us as copies.
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e)
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As to matters of fact, the truthfulness of the representations made in the Securities Documents and in certificates of public officials and officers of the Company.
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f)
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That each of the Securities Documents, when executed, will be the legal valid and binding obligations of each party thereto, other than the Company, enforceable against each such party in accordance with its terms.
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g)
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That:
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|
i)
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The issuance and delivery by the Company of the Securities and the execution, delivery and performance by the Company of the Securities Documents do not and will not:
|
|
A)
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contravene its Certificate of Incorporation or By-laws, each as amended and restated through the date hereof;
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|
B)
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do not and will not, except with respect to Generally Applicable Law, violate any law, rule or regulation applicable to it; or
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|
C)
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result in any conflict with, or breach of, any agreement or document binding on the Company or any of its subsidiaries.
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(ii)
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Except with respect to Generally Applicable Law, no authorization, approval or other action by, and no notice to or wiling with, any governmental authority or regulatory body or any other third party for the due execution, delivery or performance by the Company of any Securities Document to which it is a party or, if any such authorization, approval, action, notice or filing is required, it has been obtained, taken, given or made and is in full force and effect.
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h)
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At the time of the offering or sale, the Securities and the Securities Documents relating thereto will have been specifically authorized by the Board of Directors of the Company or an authorized committee thereof for issuance and execution and delivery by the Company.
|
i)
|
Any Securities issuable upon conversion, exchange or exercise of any Security being offered will, at the time of such offering or sale, have been duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange or exercise.
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j)
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Any Securities consisting of Common Stock, Preferred Stock, or Warrants, including Common Stock or Preferred Stock issuable upon conversion, exchange or exercise of any Security being offered, will, when so issued, have been duly authorized, executed and delivered, against receipt of the consideration approved by the Company, which will be no less than the par value thereof.
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k)
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With respect to the issuance and sale of any Debt Securities, (i) the Indenture has been duly executed and delivered by the Company and the Trustee, and (ii) the Debt Securities, when issued, will be executed, authenticated, issued and delivered (a) against receipt of the consideration therefor approved by the Company and (b) as provided in the Indenture.
|
l)
|
With respect to the issuance and sale of any Warrants, (i) the related Warrant Agreement will have been duly executed and delivered by the Company and the Warrant Agent, and (ii) the Warrants, when issued, will be executed, countersigned by the Warrant Agent, issued and delivered (a) against receipt of the consideration therefor approved by the Company and (b) as provided in such Warrant Agreement.
|
m)
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With respect to the issuance and sale of any Units, (i) the related Unit Agreement will have been duly executed and delivered by the Company and the Unit Agent, and (ii) the Units, when issued, will be executed, countersigned by the Unit Agent, issued and delivered (a) against receipt of the consideration therefor approved by the Company and (b) as provided in such Unit Agreement.
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n)
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That the Registration Statement shall have become effective and such effectiveness shall not have been terminated or withdrawn.
|
1.
|
Any Securities consisting of Shares will be validly issued, fully paid and non-assessable.
|
2.
|
Any Securities consisting of Preferred Stock will be validly issued, fully paid and non-assessable.
|
3.
|
Any Securities consisting of Debt Securities will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and will be entitled to the benefits of the Indenture.
|
4.
|
Any Securities consisting of Warrants will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and will be entitled to the benefits of the Warrant Agreement.
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5.
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Any Securities consisting of Units will constitute legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms and will be entitled to the benefits of the Unit Agreement.
|