As filed
with the Securities and Exchange Commission on July 2, 2010
Registration
No. 333-________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
ANTARES
PHARMA, INC.
(Exact
Name of Registrant as Specified in its Charter)
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Delaware
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2834
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41-1350192
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(State
or Other Jurisdiction of
Incorporation
or Organization)
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(Primary
Standard Industrial
Classification
Code No.)
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(I.R.S.
Employer
Identification
No.)
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250
Phillips Blvd., Suite 290
Ewing,
New Jersey 08618
(609)
359-3020
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(Address,
Including Zip Code, and Telephone Number, including Area Code, of Registrant’s
Principal Executive Offices)
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Dr.
Paul K. Wotton
Chief
Executive Officer
Antares
Pharma, Inc.
250
Phillips Blvd., Suite 290
Ewing,
New Jersey 08618
(609)
359-3020
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(Name,
Address, Including Zip Code, and Telephone Number, including Area Code, of Agent
for Service)
_________________________
Copies
to:
Joanne R.
Soslow, Esq.
Morgan,
Lewis & Bockius LLP
1701
Market Street
Philadelphia,
Pennsylvania 19103
(215)
963-5000
_________________________
Approximate date of commencement of
proposed sale to the public: From time to time after the effective date
of this Registration Statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box: o
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: x
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering: o
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering: o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box: o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box: o
Indicate
by check mark whether the Registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer o
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Accelerated
filer o
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Non-Accelerated
filer x
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Smaller
reporting company o
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____________________________
CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of Securities to be Registered
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Amount
to be Registered (1)
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Proposed
Maximum Aggregate Offering Price (2)
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Amount
of Registration Fee (2)(3)
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Common
stock, par value $0.01 per share
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- | - | - | |||||||||
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Preferred
stock, par value $0.01 per share
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- | - | - | |||||||||
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Warrants
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- | - | - | |||||||||
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Total
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$ | 100,000,000 | $ | 100,000,000 | $ | 7,130 | ||||||
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(1)
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There
are being registered hereunder such indeterminate number of shares of
common stock and preferred stock and such indeterminate number of warrants
to purchase common stock and preferred stock as may be sold by the
Registrant from time to time, which together shall have an aggregate
initial offering price not to exceed $100,000,000. Any securities
registered hereunder may be sold separately or as units with the other
securities registered hereunder. The proposed maximum offering price per
unit will be determined, from time to time, by the Registrant in
connection with the issuance by the Registrant of the securities
registered hereunder. The securities registered hereunder also include
such indeterminate number of shares of common stock and preferred stock as
may be issued upon conversion of or exchange for preferred stock that
provide for conversion or exchange, upon exercise of warrants or pursuant
to the antidilution provisions of any of such securities. In addition,
pursuant to Rule 416 promulgated under the Securities Act of 1933, as
amended, or the Securities Act, the shares being registered hereunder
include such indeterminate number of shares of common stock and preferred
stock as may be issuable with respect to the shares being registered
hereunder as a result of stock splits, stock dividends or similar
transactions.
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Calculated
in accordance with Rule 457(o) under the Securities
Act.
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(3)
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The
proposed maximum aggregate offering price per class of security will be
determined from time to time by the Registrant in connection with the
issuance by the Registrant of the securities registered hereunder and is
not specified as to each class of security pursuant to General Instruction
II.D of Form S-3 under the Securities
Act.
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____________________________
The
Registrant hereby amends this registration statement on such date or dates as
may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until the registration statement shall
become effective on such dates as the Securities and Exchange Commission, or
SEC, acting pursuant to Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the SEC is
effective. This prospectus is not an offer to sell these securities and is not
soliciting an offer to buy the securities in any state where the offer or sale
is not permitted.
PROSPECTUS
Subject
to Completion, dated July 2, 2010
$100,000,000
Common
Stock
Preferred
Stock
Warrants
This prospectus relates to offers and
resales of up to $100,000,000 of any combination of the securities described in
this prospectus, either individually or in units. We may also offer common stock
upon conversion of preferred stock or common stock or preferred stock upon the
exercise of warrants. We will bear all costs, expenses and fees in connection
with the registration of these securities.
We will provide the specific terms of
these offerings and securities in one or more supplements to this prospectus. We
may also authorize one or more free writing prospectuses to be provided to you
in connection with these offerings. The prospectus supplement and any related
free writing prospectus may also add, update or change information contained in
this prospectus. You should carefully read this prospectus, the applicable
prospectus supplement and any related free writing prospectus, as well as any
documents incorporated by reference, before buying any of the securities being
offered.
Our common stock trades on the NYSE
Amex under the symbol “AIS.” On June 30, 2010, the last reported sale price
of our common stock on the NYSE Amex was $1.76 per share. You are urged to
obtain current market quotations for our common stock.
Investing in our securities involves a
high degree of risk. You should carefully review and consider the risks and
uncertainties described under the heading “Risk Factors” on page 2 of this
prospectus and in any applicable prospectus supplement, any free writing
prospectus or any documents incorporated by reference.
This prospectus may not be used to
offer or sell any securities unless accompanied by a prospectus
supplement.
The securities described in this
prospectus may be sold directly by us to investors, through agents designated
from time to time or to or through underwriters or dealers, on a continuous or
delayed basis. For additional information on the methods of sale, you should
refer to the section entitled “Plan of Distribution” in this prospectus and in
the applicable prospectus supplement. If any agents or underwriters are involved
in the sale of any securities with respect to which this prospectus is being
delivered, the names of such agents or underwriters and any applicable fees,
commissions, discounts and over-allotment options will be set forth in a
prospectus supplement. The price to the public of such securities and the net
proceeds that we expect to receive from such sale will also be set forth in a
prospectus supplement.
The aggregate market value of our
outstanding common equity held by non-affiliates on June 30, 2010 was
approximately $125,000,000. We have not issued any securities pursuant to
Instruction I.B.6 of Form S-3 during the 12-calendar-month period that ends on
and includes the date hereof.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of
these securities or determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
This
prospectus is dated __________, 2010.
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ABOUT
THIS PROSPECTUS
This prospectus is part of a
registration statement on Form S-3 that we filed with the Securities and
Exchange Commission, or the SEC, utilizing a “shelf” registration process. Under
this shelf registration process, we may offer shares of our common stock and
preferred stock, as well as warrants to purchase any of such securities, either
individually or in units, in one or more offerings, up to a total dollar amount
of $100,000,000. This prospectus provides you with a general description of the
securities we may offer. Each time we offer a type or series of securities under
this prospectus, we will provide a prospectus supplement that will contain more
specific information about the terms of those securities. We may also add,
update or change in the prospectus supplement any of the information contained
in this prospectus or in the documents that we have incorporated by reference
into this prospectus. We urge you to carefully read this prospectus and any
applicable prospectus supplement, together with the information incorporated by
reference herein as described under the headings “Where You Can Find More
Information” and “Information Incorporated by Reference” before buying any of
the securities being offered. THIS PROSPECTUS MAY NOT BE USED TO
OFFER OR SELL SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS
SUPPLEMENT.
You should rely only on the information
that we have provided or incorporated by reference in this prospectus, any
applicable prospectus supplement and any related free writing prospectus that we
may authorize to be provided to you. We have not authorized anyone to provide
you with different information. No dealer, salesperson or other person is
authorized to give any information or to represent anything not contained in
this prospectus, any applicable prospectus supplement or any related free
writing prospectus that we may authorize to be provided to you. You must not
rely on any unauthorized information or representation. This prospectus is an
offer to sell only the securities offered hereby, but only under circumstances
and in jurisdictions where it is lawful to do so. You should assume that the
information in this prospectus, any applicable prospectus supplement or any
related free writing prospectus is accurate only as of the date on the front of
the document and that any information we have incorporated by reference is
accurate only as of the date of the document incorporated by reference,
regardless of the time of delivery of this prospectus, any applicable prospectus
supplement or any related free writing prospectus, or any sale of a
security.
This prospectus contains summaries of
certain provisions contained in some of the documents described herein, but
reference is made to the actual documents for complete information. All of the
summaries are qualified in their entirety by the actual documents. Copies of
some of the documents referred to herein have been filed, will be filed or will
be incorporated by reference as exhibits to the registration statement of which
this prospectus is a part, and you may obtain copies of those documents as
described below under the heading “Where You Can Find Additional Information.”
In this prospectus, unless the context specifically indicates otherwise, the
terms “the Company,” “Antares,” “we,” “us” and “our” refer to Antares Pharma,
Inc. and its subsidiaries.
1
ABOUT
ANTARES PHARMA, INC.
Antares Pharma, Inc., a Delaware
corporation, focuses on self-injection delivery technologies and topical
gel-based pharmaceutical products. Our subcutaneous and intramuscular injection
technology platforms include VIBEXTM
disposable pressure-assisted auto injectors, ValeoTM/VisionTM
reusable needle-free injectors, and disposable multi-use pen injectors. In the
injector area, we have a multi-product deal with Teva Pharmaceutical Industries,
Ltd that includes Tev-Tropin® human
growth hormone and a partnership with Ferring Pharmaceuticals. In the gel-based
area, our lead product candidate, Anturol® an
oxybutynin ATDTM gel
for the treatment of OAB (overactive bladder), is currently under evaluation in
a pivotal Phase 3 trial. We also have a partnership with BioSante that includes
LibiGel®
(transdermal testosterone gel) in Phase 3 clinical development for the treatment
of female sexual dysfunction (FSD), and Elestrin®
(estradiol gel) indicated for the treatment of moderate-to-severe vasomotor
symptoms associated with menopause, and currently marketed in the United
States.
We have operating facilities in the
U.S. and Switzerland. The U.S. operation manufactures and markets our
reusable needle-free injection devices and related disposables, and develops our
disposable pressure-assisted auto injector and pen injector systems. These
operations, including all development and some U.S. administrative activities,
are located in Minneapolis, Minnesota. We also have operations
located in Switzerland, which is focused on transdermal gels and has a number of
license agreements with pharmaceutical companies for the application of our drug
delivery systems. Our corporate offices are located in Ewing, New
Jersey. Our telephone number is (609) 359-3020. Our website address
is http://www.antarespharma.com. The information contained on our website is not
incorporated by reference into, and does not form any part of, this
prospectus.
Investing in our securities involves a
high degree of risk. Before purchasing our securities, you should carefully
consider the risks, uncertainties and forward-looking statements described under
“Risk Factors” in Item 1A of our most recent Annual Report on Form 10-K for the
year ended December 31, 2009 and filed with the SEC on March 24, 2010, as well
as information incorporated by reference into this prospectus, any applicable
prospectus supplement or any free writing prospectus. If any of these risks were
to occur, our business, financial condition or results of operations would
likely suffer. In that event, the value of our securities could decline, and you
could lose part or all of your investment. The risks and uncertainties we
describe are not the only ones facing us. Additional risks not presently known
to us or that we currently deem immaterial may also impair our business
operations.
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Certain statements contained or
incorporated by reference into this prospectus, any applicable prospectus
supplement and any free writing prospectus, constitute forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933, as
amended, or the Securities Act, and Section 21E of the Securities Exchange Act
of 1934, as amended, or the Securities Exchange Act, including statements, other
than statements of historical facts, included or incorporated in this prospectus
regarding our strategy, progress and timing of development programs and related
trials and the efficacy of our product candidates, the commercial benefits
available to us as a result of our agreements with third parties, future
operations, financial position, future revenues, projected costs, prospects,
plans and objectives of management. The words “may,” “will,” “should,” “would,”
“expect,” “intend,” “plan,” “anticipate,” “believe,” “estimate,” “predict,”
“potential,” “continue,” or “appear” or the negative of these terms or similar
expressions are intended to identify forward-looking statements, although not
all forward-looking statements contain these identifying words. We cannot
guarantee that we actually will achieve the plans, intentions or expectations
disclosed in our forward-looking statements and you should not place undue
reliance on our forward-looking statements. Actual results or events could
differ materially from the plans, intentions and expectations disclosed in the
forward-looking statements we make. In evaluating such forward-looking
statements, you should specifically consider various factors, including the
risks outlined under the heading “Risk Factors” contained or incorporated by
reference in this prospectus and in any related free writing prospectus and any
applicable prospectus supplement, and in our most recent Annual Report on Form
10-K, as well as any amendments thereto reflected in subsequent filings with the
SEC. The discussion of risks and uncertainties set forth in those filings is not
necessarily a complete or exhaustive list of all risks facing the Company at any
particular point in time. We operate in a highly competitive, highly regulated
and rapidly changing environment, and our business is in a state of evolution.
Therefore, it is likely that new risks will emerge, and that the nature and
elements of existing risks will change, over time. It is not possible for
management to predict all such risk factors or changes therein, or to assess
either the impact of all such risk factors on our business or the extent to
which any individual risk factor, combination of factors, or new or altered
factors, may cause results to differ materially from those contained in any
forward-looking statement. Also, these forward-looking statements represent our
estimates and assumptions only as of the date such forward-looking statements
are made and do not reflect the potential impact of any future acquisitions,
mergers, dispositions, joint ventures or investments we may make. We do not
assume any obligation to update any forward-looking statements.
We cannot assure you that the
forward-looking statements in this registration statement and the documents
incorporated by reference herein and therein will prove to be accurate. In
addition, if our forward-looking statements prove to be inaccurate, the
inaccuracy may be material. In light of the significant uncertainties in these
forward-looking statements, you should not regard these statements as a
representation or warranty by us or any other person that we will achieve our
objectives and plans in any specified time frame, if at all. We may not update
these forward-looking statements, even though our situation may change in the
future.
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USE
OF PROCEEDS
Except as described in any prospectus
supplement or in any related free writing prospectus that we may authorize to be
provided to you, we currently intend to use the net proceeds from the sale of
the securities offered hereby for research and development and other general
corporate purposes. We may also use a portion of the net proceeds to acquire or
invest in businesses, products and technologies that are complementary to our
own, but we currently have no commitments or agreements relating to any of these
types of transactions. The amount and timing of the expenditures will depend on
numerous factors, such as the timing and progress of our clinical trials and
research and development efforts, commercialization efforts and the competitive
environment for our product candidates. Pending the use of the net proceeds from
this offering as described above, we intend to invest the net proceeds in
short-term, interest-bearing, investment-grade securities.
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THE
SECURITIES WE MAY OFFER
We may, from time to time, offer under
this prospectus, separately or together, the following securities with a total
value of up to $100,000,000 at prices and on terms to be determined at the time
of any offering:
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shares
of common stock;
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shares
of preferred stock; and
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warrants
to purchase shares of common stock, preferred stock or any combination of
such shares.
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This prospectus provides you with a
general description of the securities we may offer. Each time we offer a type or
series of securities under this prospectus, we will provide a prospectus
supplement that will describe the specific amounts, prices and other important
terms of the securities, including, to the extent applicable:
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designation
or classification;
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aggregate
offering price;
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rates
and times of payment of dividends, if
any;
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redemption,
conversion, exercise, exchange or sinking fund terms, if
any;
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ranking;
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restrictive
covenants, if any;
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voting
or other rights, if any;
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conversion
prices, if any; and
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important
United States federal income tax
considerations.
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The prospectus supplement may also add,
update or change information contained in this prospectus or in documents we
have incorporated by reference. However, no prospectus supplement will offer a
security that is not registered and described in this prospectus at the time of
the effectiveness of the registration statement of which this prospectus forms a
part.
THIS
PROSPECTUS MAY NOT BE USED TO OFFER OR SELL SECURITIES UNLESS IT IS
ACCOMPANIED
BY A PROSPECTUS SUPPLEMENT.
We may sell the securities described in
this prospectus directly to investors or to or through agents, underwriters or
dealers. We, and our agents or underwriters, reserve the right to accept or
reject all or part of any proposed purchase of securities. If we do offer
securities to or through agents or underwriters, we will include in the
applicable prospectus supplement:
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the
names of those agents or
underwriters;
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applicable
fees, discounts and commissions to be paid to
them;
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details
regarding over-allotment options, if any;
and
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the
net proceeds to us.
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Common Stock. We may issue
shares of our common stock, par value $0.01 per share, from time to time. The
holders of our common stock are entitled to one vote for each share held of
record on all matters submitted to a vote of stockholders and do not have
cumulative voting rights. Subject to preferences that may be applicable to any
outstanding shares of preferred stock, the holders of our common stock are
entitled to receive ratably such dividends as may be declared by our board of
directors, or a committee thereof, out of legally available funds. Upon our
liquidation, dissolution or winding up, holders of our common stock are entitled
to share ratably in all assets remaining after payment of liabilities and the
liquidation preferences of any outstanding shares of preferred
stock.
Preferred Stock. We may issue
shares of our preferred stock, par value $0.01 per share, from time to time, in
one or more series. Our board of directors will determine the designations,
voting powers, preferences and rights of the preferred stock, as well as the
qualifications, limitations or restrictions thereof, including any dividend
rights, conversion rights, preemptive rights, terms of redemption or repurchase,
liquidation preferences, sinking fund terms and the number of shares
constituting any series or the designation of any series. Convertible preferred
stock will be convertible into shares of our common stock or exchangeable for
other securities. Conversion may be mandatory or at your option and would be at
prescribed conversion rates.
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If we sell
any series of our preferred stock under this prospectus, we will fix the
designations, voting powers, preferences and rights of such series of preferred
stock, as well as the qualifications, limitations or restrictions thereof, in a
certificate of designation relating to that series. We will file as an exhibit
to the registration statement of which this prospectus forms a part, or file in
a Current Report on Form 8-K and incorporate by reference in the registration
statement of which this prospectus form a part, the form of any certificate of
designation that describes the terms of the series of preferred stock that we
are offering before the issuance of the related series of preferred stock. We
urge you to read the applicable prospectus supplement relating to the series of
preferred stock being offered, as well as the complete certificate of
designation that contains the terms of the applicable series of preferred
stock.
Warrants. We may issue
warrants for the purchase of common stock and preferred stock in one or more
series. We may issue warrants independently or together with common stock and
preferred stock, and the warrants may be attached to or separate from these
securities. In this prospectus, we have summarized certain general features of
the warrants. We urge you, however, to read the applicable prospectus supplement
(and any free writing prospectus that we may authorize to be provided to you)
related to the particular series of warrants being offered, as well as the
complete warrant agreements and warrant certificates that contain the terms of
the warrants. Each series of warrants may be issued under a separate warrant
agreement that we may enter into with a bank or trust company, as warrant agent,
as detailed in the applicable prospectus supplement. The warrant agreement will
be filed as an amendment to the registration statement of which this prospectus
forms a part or filed in a Current Report on Form 8-K and incorporated by
reference in the registration statement of which this prospectus forms a
part.
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DESCRIPTION
OF CAPITAL STOCK
General
Our authorized capital stock consists
of 150,000,000 shares of common stock, par value $0.01 per share, and 3,000,000
shares of preferred stock, par value $0.01 per share. As of June 30, 2010, there
were 83,442,686 shares of our common stock outstanding, outstanding options
to purchase 7,385,220 shares of our common stock, outstanding warrants to
purchase 8,019,159 shares of our common stock and no shares of preferred stock
outstanding.
The following description of our
capital stock is based on the provisions of our certificate of incorporation, as
amended to date, or certificate of incorporation, our by-laws, as amended to
date, or by-laws, and the applicable provisions of the General Corporation Law
of the State of Delaware, or the DGCL. This description summarizes the material
terms and provisions of these securities, but it is not complete. For the
complete terms of our common stock and preferred stock, please refer to our
certificate and our by-laws that are incorporated by reference into the
registration statement of which this prospectus forms a part and, with respect
to our preferred stock, any certificate of designation that we may file with the
SEC for a series of preferred stock we may designate, if any, as well as the
applicable provisions of the DGCL. For information on how to obtain copies of
our certificate of incorporation and by-laws, which are exhibits to the
registration statement of which this prospectus forms a part, see the sections
of this prospectus entitled “Where You Can Find More Information” and
“Information Incorporated by Reference.”
We will describe in a prospectus
supplement the specific terms of any common stock or preferred stock we may
offer pursuant to this prospectus. If indicated in a prospectus supplement, the
terms of such common stock or preferred stock may differ from the terms
described below.
Description
of Common Stock
Each holder of our common stock is
entitled to one vote for each share on all matters to be voted upon by the
stockholders and there are no cumulative voting rights. Subject to the
preferential rights of any holders of our preferred stock, dividends may be
declared and paid or set apart for payment to holders of our common stock out of
any of our assets or funds legally available, but only when and as declared by
our board of directors. In the event of a liquidation, dissolution or winding up
of us, holders of our common stock would be entitled to share in our assets
remaining after the payment of our debts and liabilities and the satisfaction of
any liquidation preference granted to any holders of our outstanding shares of
preferred stock. Holders of our common stock have no preemptive or conversion
rights or other subscription rights and there are no redemption or sinking fund
provisions applicable to our common stock. The rights, preferences and
privileges of the holders of our common stock are subject to, and may be
adversely affected by, the rights of the holders of shares of any series of
preferred stock that we may designate in the future.
Our common stock is not convertible
into, or exchangeable for, any other class or series of our capital stock.
Holders of our common stock do not have preemptive or other rights to subscribe
for or purchase additional securities of ours. The transfer agent and registrar
for our common stock is Wells Fargo Shareholder Services, whose address is 161
North Concord Exchange, South St. Paul, MN 55075, and whose telephone number is
(651) 450-4093. Our common stock is listed on the NYSE Amex under the symbol
“AIS.”
Description
of Preferred Stock
Our board of directors is authorized,
without stockholder approval, subject to any limitations prescribed by
applicable law or the NYSE Amex, to issue from time to time up to an aggregate
of 3,000,000 shares of our preferred stock in one or more series. Our
certificate of incorporation does not restrict the repurchase or redemption of
shares of our preferred stock while there are arrears in the payment of any
dividends or sinking fund installments. Each series of preferred stock will have
the rights and preferences, including voting rights, dividend rights, conversion
rights, redemption privileges and liquidation preferences, as our board of
directors determines.
The issuance of preferred stock could
adversely affect the voting power of holders of our common stock and the
likelihood that holders of our common stock will receive dividend payments and
payments upon liquidation. In addition, the issuance of preferred stock could
have the effect of making it more difficult for a third party to acquire, or of
discouraging a third party from attempting to acquire, a majority of our
outstanding voting stock.
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Whenever preferred stock is to be sold
pursuant to this prospectus, we will file a prospectus supplement relating to
that sale which will specify, among other things:
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the
number of shares in the series of preferred
stock;
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the
number of shares we are offering;
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the
purchase price;
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the
designation for the series of preferred stock by number, letter or title
that will distinguish the series from any other series of preferred
stock;
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the
dividend rate, if any, and whether dividends on that series of preferred
stock will be cumulative, noncumulative or partially
cumulative;
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·
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the
voting rights of that series of preferred stock, if
any;
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·
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any
conversion provisions applicable to that series of preferred
stock;
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·
|
any
redemption or sinking fund provisions applicable to that series of
preferred stock;
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·
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the
liquidation preference per share of that series of preferred
stock;
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·
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the
terms of preemptive rights, if any, applicable to that series of preferred
stock;
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·
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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;
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·
|
any
listing of the preferred stock on any securities exchange or
market;
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·
|
restrictions
on transfer, sale or other assignment, if any;
and
|
|
·
|
any
other specific terms, preferences, rights or limitations of, or
restrictions on, the preferred
stock.
|
Warrants
As of June 30, 2010, warrants to
purchase 18,019,159 shares of our common stock were outstanding. These warrants
have a weighted average exercise price of $1.56 per share and expire between
February 28, 2011 and September 22, 2014.
Registration
Rights
We entered into investor rights
agreements with certain of our stockholders in July 2007 and March 2006 in
connection with private placements of our common stock. Under the terms of these
investor rights agreements, certain of our stockholders had registration rights
with respect to certain shares of our common stock purchased in the private
placements. All of the shares of our common stock subject to the registration
rights in these investor rights agreements have been registered.
8
General
This prospectus describes the general
terms and provisions of the warrants we may offer and sell under this
prospectus. The applicable prospectus supplement will describe the specific
terms of the warrants offered through that prospectus supplement as well as any
general terms described in this section that will not apply to those
warrants.
We may issue warrants for the purchase
of shares of our common stock, preferred stock or any combination of such
shares. We may issue warrants independently or together with other securities,
and they may be attached to or separate from the other securities. Each series
of warrants may be issued under a separate warrant agreement that we may enter
into with a bank or trust company, as warrant agent, as detailed in the
applicable prospectus supplement. Any warrant agent would act solely as our
agent in connection with the warrants and would not assume any obligation or
relationship of agency or trust for or with any holder of warrants or beneficial
owners of warrants. A form of warrant agreement and warrant will be filed as an
amendment to the registration statement of which this prospectus forms a part or
filed in a Current Report on Form 8-K and incorporated by reference into the
registration statement of which this prospectus form a part.
The following summaries of the material
provisions of the warrants and the warrant agreements are subject to, and
qualified in their entirety by reference to, all the provisions of the warrant
agreement and warrant certificate applicable to the particular series of
warrants that we may offer under this prospectus. We urge you to read the
applicable prospectus supplements related to the particular series of warrants
that we may offer under this prospectus and the complete warrant agreements and
warrant certificates that contain the terms of the warrants.
The prospectus supplement relating to a
particular issue of warrants will describe the terms of those warrants,
including, where applicable:
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·
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the
aggregate number of the securities covered by the
warrant;
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·
|
the
designation, amount and terms of the securities purchasable upon exercise
of the warrant;
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·
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the
exercise price for shares of our preferred stock, any provisions relating
to changes or adjustments in the exercise price, the number of shares of
preferred stock to be received upon exercise and a description of that
series of our preferred stock;
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·
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the
exercise price for shares of our common stock, any provisions relating to
changes or adjustments in the exercise price and the number of shares of
common stock to be received upon
exercise;
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·
|
the
expiration date for exercising the
warrant;
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·
|
the
minimum or maximum amount of warrants that may be exercised at any
time;
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·
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a
discussion of United States federal income tax consequences;
and
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·
|
any
other material terms of the securities
warrants.
|
After the warrants expire they will
become void. The prospectus supplement will describe how to exercise the
warrants. The prospectus supplement may also provide for certain adjustments of
the exercise price of the warrants. Until a
holder exercises the warrants to purchase our common stock or preferred stock,
that holder will not have any rights as a holder of our common stock or
preferred stock by virtue of ownership of the warrants.
9
OUR
CERTIFICATE OF INCORPORATION AND OUR BY-LAWS
The following paragraphs summarize
certain provisions of the DGCL, our certificate of incorporation and our
by-laws. The summary does not purport to be complete and is subject to and
qualified in its entirety by reference to the General Corporation Law of the
State of Delaware and to our certificate of incorporation and by-laws, copies of
which are on file with the SEC and may be obtained as set forth in the section
of this prospectus entitled “Where You Can Find More Information.”
General
Certain provisions of our certificate
of incorporation and by-laws and the DGCL could make our acquisition by a third
party, a change in our incumbent management or a similar change of control more
difficult, including:
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·
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an
acquisition of us by means of a tender or exchange
offer;
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·
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an
acquisition of us by means of a proxy contest or otherwise;
or
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·
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the
removal of a majority or all of our incumbent officers and
directors.
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These provisions, which are summarized
below, are likely to discourage certain types of coercive takeover practices and
inadequate takeover bids. These provisions are also designed to encourage
persons seeking to acquire control of us to first negotiate with our board of
directors. We believe that these provisions help to protect our potential
ability to negotiate with the proponent of an unfriendly or unsolicited proposal
to acquire or restructure us, and that this benefit outweighs the potential
disadvantages of discouraging such a proposal because our ability to negotiate
with the proponent could result in an improvement of the terms of the
proposal.
Delaware
Anti-Takeover Law
We are subject to Section 203 of the
DGCL. Subject to certain exceptions, Section 203 prevents a publicly-held
Delaware corporation from engaging in a business combination with any interested
stockholder for three years following the date that the person became an
interested stockholder, unless the interested stockholder attained such status
with the approval of our board of directors or unless the business combination
is approved in a prescribed manner. A “business combination” includes, among
other things, a merger or consolidation involving us and the interested
stockholder and the sale of more than 10% of our assets. In general, an
interested stockholder is any entity or person beneficially owning 15% or more
of our outstanding voting stock and any entity or person affiliated with or
controlling or controlled by such entity or person.
Removal
of Directors and Vacancies
Our certificate of incorporation
provides that directors may be removed only for cause and only by the
affirmative vote of the holders of 70% of our shares of capital stock entitled
to vote at an election of directors. Under our certificate of incorporation, any
vacancy on our board of directors, including a vacancy resulting from an
enlargement of our board of directors, may be filled only by vote of a majority
of our directors then in office. The limitations on the ability of our
stockholders to remove directors and fill vacancies could make it more difficult
for a third party to acquire, or discourage a third party from seeking to
acquire, control of our company.
Staggered
Board of Directors
Our board of directors has been divided
into three classes of directors. The term of one class will expire each year.
Directors for each class will be chosen for a three-year term upon the
expiration of such class’s term, and the directors in the other two classes will
continue in office. The staggered terms for directors may affect stockholders’
ability to change control of our company even if a change in control were in the
stockholders’ interest.
No
Cumulative Voting
Our certificate of incorporation and
by-laws do not provide for cumulative voting.
10
Stockholder
Meetings
Our certificate of incorporation and
our by-laws provide that any action required or permitted to be taken by our
stockholders at an annual meeting or special meeting of stockholders may only be
taken if it is properly brought before such meeting and may not be taken by
written action in lieu of a meeting. Our certificate of incorporation and our
by-laws also provide that, except as otherwise required by law, special meetings
of the stockholders may only be called by a resolution approved by the majority
of our board of directors. In addition, our by-laws establish an advance notice
procedure for stockholder proposals to be brought before an annual meeting of
stockholders, including proposed nominations of candidates for election to our
board of directors. Stockholders may only consider proposals or nominations at
an annual meeting specified in the notice of the meeting or brought before the
meeting by or at the direction of our board of directors or by a stockholder of
record on the record date for the meeting who is entitled to vote at the meeting
and who has delivered timely written notice in proper form to our secretary of
the stockholder’s intention to bring such business before the meeting. These
provisions could have the effect of delaying until the next stockholder meeting
stockholder actions that are favored by the holders of a majority of our
outstanding voting securities.
Undesignated
Preferred Stock
The authorization in our certificate of
incorporation of undesignated preferred stock makes it possible for our board of
directors, without obtaining further stockholder approval, to issue preferred
stock with voting rights or other rights or preferences that could impede the
success of any attempt to take control of us.
Supermajority
Voting for Certain Amendments to Our Certificate of Incorporation and
By-laws
The DGCL provides generally that the
affirmative vote of a majority of the shares entitled to vote on any matter is
required to amend a corporation’s certificate of incorporation or by-laws,
unless a corporation’s certificate of incorporation or by-laws, as the case may
be, requires a greater percentage. Our certificate of incorporation requires the
affirmative vote of at least 70% of the shares entitled to vote, as well as the
affirmative vote of at least 70% of the shares of each class of capital stock
entitled to vote as a class, to amend or repeal any provision of Articles VI,
VII, VIII, IX or X of our certificate of incorporation. Our certificate of
incorporation also requires the affirmative vote of at least 70% of the shares
entitled to vote, voting as a single class, to amend or repeal our by-laws,
except that if our board of directors recommends that our stockholders approve
an amendment or repeal, then such recommended amendment or repeal shall only
require the affirmative vote of the majority of the outstanding shares entitled
to vote, voting as a single class.
11
We may sell the securities, from time
to time, to or through underwriters or dealers, through agents or remarketing
firms, or directly to one or more purchasers pursuant to:
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underwritten
public offerings;
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·
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negotiated
transactions;
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·
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block
trades;
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·
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“at
the market offerings,” within the meaning of Rule 415(a)(4) of the
Securities Act, to or through a market maker or into an existing trading
market, on an exchange or otherwise, at prevailing market prices;
or
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·
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through
a combination of these methods.
|
We may distribute securities from time
to time in one or more transactions:
|
·
|
at
a fixed price or prices, which may be
changed;
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·
|
at
market prices prevailing at the time of
sale;
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·
|
at
prices related to such prevailing market prices;
or
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·
|
at
negotiated prices.
|
A prospectus supplement or supplements
will describe the terms of the offering of the securities,
including:
|
·
|
the
name or names of the underwriters, if
any;
|
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·
|
if
the securities are to be offered through the selling efforts of brokers or
dealers, the plan of distribution and the terms of any agreement,
arrangement, or understanding entered into with broker(s) or dealer(s)
prior to the effective date of the registration statement, and, if known,
the identity of any broker(s) or dealer(s) who will participate in the
offering and the amount to be offered through
each;
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·
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the
purchase price of the securities and the proceeds we will receive from the
sale;
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·
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if
any of the securities being registered are to be offered otherwise than
for cash, the general purposes of the distribution, the basis upon which
the securities are to be offered, the amount of compensation and other
expenses of distribution, and by whom they are to be
borne;
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·
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any
delayed delivery arrangements;
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·
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any
over-allotment options under which underwriters may purchase additional
securities from us;
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·
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any
agency fees or underwriting discounts and other items constituting agents’
or underwriters’ compensation;
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·
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any
public offering price;
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·
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any
discounts, commissions or commissions allowed or reallowed or paid to
dealers;
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·
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the
identity and relationships of any finders, if applicable;
and
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·
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any
securities exchange or market on which the securities may be
listed.
|
Only underwriters named in the
prospectus supplement will be underwriters of the securities offered by the
prospectus supplement.
If underwriters are used in the sale,
they will acquire the securities for their own account and may resell the
securities from time to time in one or more transactions at a fixed public
offering price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be subject to
the conditions set forth in the applicable underwriting agreement. We may offer
the securities to the public through underwriting syndicates represented by
managing underwriters or by underwriters without a syndicate. Unless otherwise
indicated in the prospectus supplement, subject to certain conditions, the
underwriters will be obligated to purchase all of the securities offered by the
prospectus supplement, other than securities covered by any over-allotment
option. Any public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may change from time to time. We may use
underwriters with whom we have a material relationship. We will describe in the
prospectus supplement, naming the underwriter, the nature of any such
relationship.
We may use a remarketing firm to offer
the securities in connection with a remarketing arrangement upon their purchase.
Remarketing firms will act as principals for their own account or as agents for
us. These remarketing firms will offer or sell the securities pursuant to the
terms of the securities. A prospectus supplement will identify any remarketing
firm and the terms of its agreement, if any, with us and will describe the
remarketing firm’s compensation. Remarketing firms may be deemed to be
underwriters in connection the securities they remarket.
12
If we offer and sell securities through
a dealer, we or an underwriter will sell the securities to the dealer, as
principal. The dealer may resell the securities to the public at varying prices
to be determined by the dealer at the time of resale. Any such dealer may be
deemed to be an underwriter of the securities offered and sold. The name of the
dealer and the terms of the transaction will be set forth in the applicable
prospectus supplement.
We may sell securities directly or
through agents we designate from time to time. We will name any agent involved
in the offering and sale of securities and we will describe any commissions we
will pay the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, our agent will act on a best-efforts basis for the
period of its appointment.
We may sell securities directly to one
or more purchasers without using underwriters or agents. Underwriters, dealers
and agents that participate in the distribution of the securities may be
underwriters as defined in the Securities Act, and any discounts or commissions
they receive from us and any profit on their resale of the securities may be
treated as underwriting discounts and commissions under the Securities
Act.
We may authorize agents or underwriters
to solicit offers by certain types of institutional investors to purchase
securities from us at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. We will describe the conditions to
these contracts and the commissions we must pay for solicitation of these
contracts in the prospectus supplement. The maximum commission or discount to be
received by any member of the Financial Industry Regulatory Authority or
independent broker-dealer will not be greater than 8% of the aggregate amount of
securities offered pursuant to this prospectus and any applicable prospectus
supplement.
Agents, underwriters, dealers and
remarketing firms may be entitled under relevant agreements entered into with us
to indemnification by us against certain civil liabilities, including
liabilities under the Securities Act or to contribution with respect to payments
which the agents, underwriters or dealers may be required to make.
Each series of the offered securities
will be a new issue and, other than the shares of common stock which are listed
on the NYSE Amex, will have no established trading market. Any underwriters to
whom we sell the offered securities for public offering and sale may make a
market in the securities, but such underwriters will not be obligated to do so
and may discontinue any market making at any time without notice. We may elect
to list any series of offered securities on an exchange, and in the case of
common stock, on any additional exchange, but, unless otherwise specified in the
applicable prospectus supplement, we will not be obligated to do so. We cannot
predict the liquidity of the trading market for any of the offered
securities.
In connection with an offering, the
underwriters may purchase and sell the offered securities in the open market.
These transactions may include short sales, stabilizing transactions and
purchases to cover positions created by short sales. Short sales involve the
sale by the underwriters of a greater number of offered securities than they are
required to purchase in an offering. Stabilizing transactions consist of certain
bids or purchases made for the purpose of preventing or retarding a decline in
the market price of the offered securities while an offering is in
progress.
The underwriters also may impose a
penalty bid. This occurs when a particular underwriter repays to the
underwriters a portion of the underwriting discount received by it because the
underwriters have repurchased offered securities sold by or for the account of
that underwriter in stabilizing or short-covering transactions.
These activities by the underwriters
may stabilize, maintain or otherwise affect the market price of the offered
securities. As a result, the price of the offered securities may be higher than
the price that otherwise might exist in the open market. If these activities are
commenced, they may be discontinued by the underwriters at any time. These
transactions may be effected on an exchange or automated quotation system, if
the offered securities are listed on that exchange or admitted for trading on
that automated quotation system, or in the over-the-counter market or
otherwise.
Underwriters, dealers, agents and
remarketing firms, or their affiliates, may be customers of, engage in
transactions with, or perform services for, us and our subsidiaries in the
ordinary course of business.
13
LEGAL
MATTERS
The validity of any securities offered
by us in the applicable prospectus supplement will be passed upon for us by
Morgan, Lewis & Bockius LLP, Philadelphia, Pennsylvania.
EXPERTS
The consolidated financial statements
of Antares Pharma, Inc. as of December 31, 2009 and 2008, and for each of the
years in the three-year period ended December 31, 2009 have been incorporated by
reference in this prospectus and elsewhere in the Registration Statement in
reliance upon the report of KPMG LLP, independent registered public accounting
firm, incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing. The audit report covering the December 31,
2009 financial statements refers to the adoption of Financial Accounting
Standards Board Accounting Standards Update 2009-13, Revenue Arrangements with Multiple
Deliverables, in the third quarter of 2009 with retrospective application
to January 1, 2009.
This
prospectus is part of a registration statement that we filed with the SEC.
Certain information in the registration statement has been omitted from this
prospectus in accordance with the rules of the SEC. We are a public company and
file proxy statements, annual, quarterly and special reports and other
information with the SEC. The registration statement, such reports and other
information can be inspected and copied at the Public Reference Room of the SEC
located at 100 F Street, N.E., Washington D.C. 20549. Copies of such materials,
including copies of all or any portion of the registration statement, can be
obtained from the Public Reference Room of the SEC at prescribed rates. You can
call the SEC at 1-800-SEC-0330 to obtain information on the operation of the
Public Reference Room. Such materials may also be accessed electronically by
means of the SEC’s home page on the Internet (www.sec.gov).
You should rely only on the information
provided in this prospectus. We have not authorized anyone to provide you with
different information. You should not assume that the information in this
document is accurate as of any date other than that on the front cover of this
prospectus.
14
INFORMATION
INCORPORATED BY REFERENCE
The SEC allows us to “incorporate by
reference” the information we file with it, which means that we can disclose
important information to you by referring to those documents. The information
incorporated by reference is an important part of this prospectus. Any statement
contained in a document which is incorporated by reference in this prospectus is
automatically updated and superseded if information contained in this
prospectus, or information that we later file with the SEC, modifies or replaces
this information. We incorporate by reference the documents listed below and any
future documents we subsequently file pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act (other than information furnished to, and
not filed with, the SEC) prior to the termination of this offering:
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·
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our
Annual Report on Form 10-K for the fiscal year ended December 31,
2009;
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·
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our
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
2010;
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·
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our
Current Report on Form 8-K filed with the Commission on June 1, 2010;
and
|
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·
|
the
description of our common stock our registration statement on Form 8-A
filed with the SEC on September 22, 2004 (File No. 333-06661), including
any amendments or reports filed for the purpose of updating such
description.
|
To receive a free copy of any of the
documents incorporated by reference in this prospectus, other than any exhibits,
unless the exhibits are specifically incorporated by reference into this
prospectus, call or
write us at the
following address and telephone number:
Antares
Pharma, Inc.
250
Phillips Blvd., Suite 290
Ewing,
New Jersey 08618
(609)
359-3020
You should rely only on the information
incorporated by reference or provided in this prospectus or any prospectus
supplement. We have not authorized anyone to provide you with information
different from that contained or incorporated by reference in this prospectus.
We are offering to sell, and seeking offers to buy, shares of our common stock
only in jurisdictions where offers and sales are permitted. The information
contained in this prospectus is accurate only as of the date of this prospectus,
regardless of the time of delivery of this prospectus or of any sale of common
stock.
15
$100,000,000
ANTARES
PHARMA, INC.
PROSPECTUS
Common
Stock
Preferred
Stock
Warrants
___________,
2010
16
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM
14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the
expenses expected to be incurred in connection with the issuance and
distribution of the securities registered hereby and the offerings described in
this registration statement, other than underwriting discounts and
commissions.
|
SEC
registration fee
|
$ | 7,130 | ||
|
NYSE
Amex Listing Fee
|
$ | * | ||
|
Trustee’s
fees and expenses
|
$ | * | ||
|
Printing
and engraving expenses
|
$ | * | ||
|
Accounting
fees and expenses
|
$ | * | ||
|
Legal
fees and expenses
|
$ | * | ||
|
Miscellaneous
|
$ | * | ||
|
Total
|
$ | * |
* These
fees are dependent on the type and number of securities offered and cannot be
determined at this time. Additional information regarding estimated
fees and expenses will be provided at the time that such information is required
to be included in a prospectus supplement in accordance with Rule
430B.
ITEM
15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 102 of the DGCL permits a
corporation to eliminate the personal liability of directors of a corporation to
the corporation or its stockholders for monetary damages for a breach of
fiduciary duty as a director, except where the director breached his duty of
loyalty, failed to act in good faith, engaged in intentional misconduct or
knowingly violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of Delaware corporate law or obtained an improper
personal benefit. The Registrant’s certificate of incorporation, as amended to
date, provides that a director of the Registrant shall not be personally liable
to it or its stockholders for monetary damages for any breach of fiduciary duty
as a director, except to the extent that such exemption from liability or
limitation thereof is not permitted under the DGCL as currently in effect or as
the same may hereafter be amended.
Section 145 of the DGCL provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and other persons serving at the request of the corporation in
related capacities against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlements actually and reasonably incurred by the
person in connection with an action, suit or proceeding to which he is or is
threatened to be made a party by reason of such position, if such person acted
in good faith and in a manner that he reasonably believed to be in or not
opposed to the best interests of the corporation, and, in any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful, except
that, in the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or other
adjudicating court determines that, despite the adjudication of liability but in
view of all of the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
The by-laws provide that the Registrant
will, to the maximum extent permitted under the laws of the State of Delaware,
indemnify and advance expenses upon request to each director and officer of the
Registrant against any and all judgments, penalties, fines and amounts
reasonably paid in settlement that are incurred by such director or officer or
on such director’s or officer’s behalf in connection with any threatened,
pending or completed proceeding or any claim, issue or matter of which he or she
is, or is threatened to be made, a party to or participant in by reason of his
or her corporate status. Unless ordered by a court, the Registrant will not
provide indemnification to such a director or officer unless a determination has
been made that such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Registrant and, with respect to any criminal proceeding, such person had no
reasonable cause to believe his or her conduct was unlawful. Such a
determination will be made by (i) a majority vote of disinterested directors or
an appointed committee of disinterested directors, (ii) if there are no
disinterested directors or if the disinterested directors direct, by independent
legal counsel or (iii) by the stockholders of the Registrant.
17
The Registrant has purchased directors’
and officers’ liability insurance which would indemnify its directors and
officers against damages arising out of certain kinds of claims which might be
made against them based on their negligent acts or omissions while acting in
their capacity as such.
The Registrant has also entered into
Indemnification Agreements with each of its current directors and executive
officers. The Registrant may also enter into Indemnification Agreements from
time to time with each future director and future executive officer of the
Registrant and the Registrant’s wholly owned subsidiaries and certain other
officers of the Registrant and its subsidiaries (collectively with the current
directors and executive officers, each an “Indemnitee”).
Each Indemnification Agreement
generally provides that, subject to certain conditions, limitations and
exceptions, (i) the Registrant will indemnify and hold harmless an Indemnitee to
the fullest extent permitted by the DGCL from expenses and liabilities incurred
by such Indemnitee in connection with third party and derivative legal actions
brought against such Indemnitee as a result of his or her service to the
Registrant, (ii) the Registrant is required to advance all covered expenses
incurred by an Indemnitee in a proceeding covered by the Indemnification
Agreement, and (iii) the Registrant will provide contribution of liabilities in
certain circumstances where indemnification is not available but the Indemnitee
would otherwise be entitled to indemnification.
ITEM
16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
|
Exhibit
Number
|
Description
|
|||||
|
1.1*
|
Form
of Underwriting Agreement
|
|||||
|
1.2*
|
Form
of Placement Agent Agreement
|
|||||
|
4.1
|
Certificate
of Incorporation of Antares Pharma, Inc. (filed as Exhibit 4.1 to the
Registrant’s Registration Statement on Form S-3 filed with the SEC on
April 12, 2006 and incorporated by reference herein).
|
|||||
|
4.2
|
Certificate
of Amendment to Certificate of Incorporation of Antares Pharma, Inc.
(filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed
with the SEC on May 19, 2008 and incorporated by reference
herein).
|
|||||
|
4.3
|
Amended
and Restated By-laws of Antares Pharma, Inc. (filed as Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K filed with the SEC on May 15, 2007
and incorporated by reference herein).
|
|||||
|
4.4*
|
Form
of Certificate of Designations for Preferred Stock.
|
|||||
|
4.5*
|
Form
of Warrant Agreement for Common Stock, including form of
Warrant.
|
|||||
|
4.6*
|
Form
of Warrant Agreement for Preferred Stock, including form of
Warrant.
|
|||||
|
5.1**
|
Opinion
of Morgan, Lewis & Bockius LLP.
|
|||||
| 23.1** | Consent of KPMG LLP, Independent Registered Public Accounting Firm. | |||||
| 23.2** | Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1). | |||||
| 24.1** | Power of Attorney (included on signature page). | |||||
________________
|
*
|
To
be filed, if necessary, subsequent to the effectiveness of this
registration statement by an amendment to this registration statement or
incorporated by reference pursuant to a Current Report on Form 8-K in
connection with this offering of securities, or where applicable,
incorporated by reference from a subsequent filing.
|
|
**
|
Filed
herewith.
|
18
ITEM
17. UNDERTAKINGS.
(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the 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; and
(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 this registration statement;
provided, however, that
subparagraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the
registration statement is on Form S-3 or Form F-3 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the SEC by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is a part of the registration
statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered herein, 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) if
the Registrant is relying on 430B:
(A) 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
(B) Each prospectus required to be
filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act 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 of 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.
(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:
19
The
undersigned Registrant undertakes that in a primary offering of securities of
the undersigned Registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned
Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, 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 that: (1) for purposes of determining
any liability under the Securities Act, the information omitted from the form of
prospectus filed as part of the registration statement in reliance upon Rule
430A and contained in a form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of the registration statement as of the time it was declared effective; and
(2) for the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering
thereof.
(d) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to existing provisions or arrangements whereby the Registrant may
indemnify a director, officer or controlling person of the Registrant against
liabilities arising under the Securities Act, 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 for 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.
20
SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, as amended, the Registrant has duly caused this
Registration Statement Form S-3 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Ewing, in the State of New Jersey on
July 2, 2010.
|
|
|
Antares
Pharma, Inc.
(Registrant)
|
||
|
July
2, 2010
|
|
By:
|
/s/ Paul K.
Wotton
|
|
|
|
|
|
Name:
Dr. Paul K. Wotton
|
|
|
|
|
|
Title: Chief
Executive Officer
|
|
21
SIGNATURES
AND POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS,
that each person whose signature appears below constitutes and appoints Dr. Paul
K. Wotton and Robert F. Apple, and each of them, as his true and lawful
attorneys in fact and agents, with full power of substitution and
resubstitution, for him and in his name, place, and stead, in any and all
capacities, to sign any and all amendments (including post effective amendments,
exhibits thereto and other documents in connection therewith) to this
registration statement and any subsequent registration statement filed by the
Registrant pursuant to Rule 462(b) of the Securities Act of 1933, as amended,
which relates to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys in fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys in fact and agents, or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the
Securities Act of 1933, as amended, this registration statement has been signed
by the following persons in the capacities and on the dates
indicated.
|
Signature
|
Title
|
Date
|
|
| /s/ Paul K.Wotton | Chief Executive Officer and Director | July 2, 2010 | |
|
Dr.
Paul K. Wotton
|
(Principal
Executive Officer)
|
|
|
| /s/ Robert F. Apple | Executive Vice President and Chief Financial Officer |
July
2, 2010
|
|
|
Robert
F. Apple
|
(Principal
Financial and Accounting Officer)
|
|
|
| /s/ Leonard Jacob | Chairman of the Board | July 2, 2010 | |
|
Dr.
Leonard Jacob
|
|
|
|
| /s/ Thomas J. Garrity | Director |
July
2, 2010
|
|
|
Thomas
J. Garrity
|
|
|
|
| /s/ Jacques Gonella | Director | July 2, 2010 | |
|
Dr.
Jacques Gonella
|
|
|
|
| /s/ Anton Gueth | Director | July 2, 2010 | |
|
Anton
Gueth
|
|
|
|
| /s/ Rajesh Shrotriya | Director | July 2, 2010 | |
|
Dr.
Rajesh Shrotriya
|
|
|
|
| /s/ Eamonn P. Hobbs | Director | July 2, 2010 | |
|
Eamonn
P. Hobbs
|
|
|
22
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
|
|
|
1.1*
|
Form
of Underwriting Agreement
|
|
|
1.2*
|
Form
of Placement Agent Agreement
|
|
|
4.1
|
Certificate
of Incorporation of Antares Pharma, Inc. (filed as Exhibit 4.1 to the
Registrant’s Registration Statement on Form S-3 filed with the SEC on
April 12, 2006 and incorporated by reference herein).
|
|
|
4.2
|
Certificate
of Amendment to Certificate of Incorporation of Antares Pharma, Inc.
(filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed
with the SEC on May 19, 2008 and incorporated by reference
herein).
|
|
|
4.3
|
Amended
and Restated By-laws of Antares Pharma, Inc. (filed as Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K filed with the SEC on May 15, 2007
and incorporated by reference herein).
|
|
|
4.4*
|
Form
of Certificate of Designations for Preferred Stock.
|
|
|
4.5*
|
Form
of Warrant Agreement for Common Stock, including form of
Warrant.
|
|
|
4.6*
|
Form
of Warrant Agreement for Preferred Stock, including form of
Warrant.
|
|
|
5.1**
|
Opinion
of Morgan, Lewis & Bockius LLP.
|
|
|
23.1**
|
Consent
of KPMG LLP, Independent Registered Public Accounting
Firm.
|
|
|
23.2**
|
Consent
of Morgan, Lewis & Bockius LLP (included in Exhibit
5.1).
|
|
|
24.1**
|
Power
of Attorney (included on signature page).
|
|
________________
|
*
|
To
be filed, if necessary, subsequent to the effectiveness of this
registration statement by an amendment to this registration statement or
incorporated by reference pursuant to a Current Report on Form 8-K in
connection with this offering of securities, or where applicable,
incorporated by reference from a subsequent filing.
|
|
**
|
Filed
herewith.
|
23