As filed with the Securities and Exchange Commission on March 9, 2017
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
SCICLONE PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
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94-3116852
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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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950 Tower Lane
Foster
City, California 94404
(650)
358-3456
(Address, Including Zip Code and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Friedhelm Blobel, Ph.D.
Chief Executive Officer
SciClone Pharmaceuticals, Inc.
950 Tower Lane
Foster
City, California 94404
(650)
358-3456
(Name, Address, Including Zip Code and Telephone Number, Including Area Code, of Agent for Service)
With a Copy to:
Howard Clowes, Esq.
Eric
H. Wang, Esq.
DLA Piper LLP (US)
2000 University Avenue
East Palo Alto, California
94303-2214
(650)
833-2000
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. ☐
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”), other than securities offered only in connection with dividend or interest reinvestment plans, check the
following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under
the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following
box. ☐
If this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D.
filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Approximate date of commencement of proposed sale to the public
: From time to time after the effective date of this Registration
Statement.
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 definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule
12b-2
of the Exchange Act.
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Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated
filer
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☐
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Smaller reporting company
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☐
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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
Offering
Price
Per Unit
(2)
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Proposed
Maximum
Aggregate
Offering Price
(3)
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Amount of
Registration Fee
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Common Stock, par value $0.001 per share
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Preferred Stock, par value $0.001 per share
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Debt Securities
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Warrants
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Units (4)
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Total
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$100,000,000
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N/A
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$100,000,000
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$11,590 (5)
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(1)
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The amount to be registered consists of up to $100,000,000 of an indeterminate amount of the securities of each identified class as may from time to time be offered hereunder at indeterminate prices, along with an
indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered or sold hereunder. Separate consideration may or may not be received for securities that are issuable upon conversion,
exercise or exchange of other securities.
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(2)
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The proposed maximum aggregate offering price per unit will be determined from time to time by the Registrant in connection with the sale and 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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(3)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act.
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(4)
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Each unit will be issued under a unit agreement and will represent an interest in two or more securities, which may or may not be separable from one another.
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(5)
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Calculated pursuant to Rule 457(o) 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 date as the Securities and Exchange Commission, acting pursuant to said 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 Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where
the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MARCH 9, 2017
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PROSPECTUS
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$100,000,000
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SCICLONE
PHARMACEUTICALS, INC.
Common Stock
Preferred Stock
Debt
Securities
Warrants
Units
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We may offer and sell securities from time to time in one or more offerings of up to $100,000,000 in aggregate dollar amount. This prospectus
describes the general terms of these securities and the general manner in which these securities will be offered. We will provide the specific terms of these securities in one or more supplements to this prospectus. The prospectus supplements will
also describe the specific manner in which these securities will be offered and may also supplement, update or amend information contained in this document. You should read this prospectus and any applicable prospectus supplement or amendment
carefully before you invest in our securities.
We may offer these securities in amounts, at prices and on terms determined at the time of
offering. The securities may be sold directly to you, through agents, or through underwriters and dealers. If agents, underwriters or dealers are used to sell the securities, we will name them and describe their compensation in a prospectus
supplement.
Our common stock is listed on the NASDAQ Global Select Market under the symbol “SCLN.” On March 8, 2017, the
last reported sale price of our common stock on the NASDAQ Global Select Market was $9.65 per share.
Investing in
these securities involves significant risk. See “
Risk Factors
” contained in this prospectus beginning on page 4 and included in any accompanying prospectus supplement and in the documents incorporated by
reference in this prospectus for a discussion of the factors you should carefully consider before deciding to purchase these securities.
This prospectus may not be used to offer or sell any securities unless it is accompanied by the applicable prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of
this prospectus is , 2017.
TABLE OF CONTENTS
When used in this prospectus, the terms “we”, “our” or “us” refer to SciClone
Pharmaceuticals, Inc. and its consolidated subsidiaries, unless otherwise indicated or as the context otherwise requires.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, using a
“shelf” registration process. Under this shelf registration process, we may sell any combination of the securities described in this prospectus 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 sell securities under this shelf registration, we will provide a prospectus supplement that will contain specific information about the terms of that offering. We may also
authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you
may also add, update or change information contained in this prospectus or in any document that we have incorporated by reference into this prospectus. To the extent there is a conflict between the information contained in this prospectus and the
prospectus supplement or any related free writing prospectus, you should rely on the information in the prospectus supplement or the related free writing prospectus, provided that if any statement in one of these documents is inconsistent with a
statement in another document having a later date – for example, a document incorporated by reference in this prospectus or any prospectus supplement or any related free writing prospectus – the statement in the document having the later
date modifies or supersedes the earlier statement. You should read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated herein by reference as described under the
heading “Where You Can Find Additional Information.”
You should rely only on the information contained or incorporated by
reference in this prospectus or an accompanying prospectus supplement. We have not authorized any dealer, agent or other person to give any information or to make any representation other than those contained or incorporated by reference 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 information or representation not contained or incorporated by reference in this
prospectus, the accompanying prospectus supplement or related free writing prospectus. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give to you. We are not making an
offer to sell these securities in any jurisdiction where the offer or sale is not permitted.
This prospectus, the accompanying supplement
to this prospectus and any related free writing prospectus, if any, do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus, the
accompanying supplement to this prospectus or any related free writing prospectus, if any, constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. You should not assume that the information contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate on any date subsequent to the date set forth on the
front of the document or that any information we have incorporated by reference therein is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus, any applicable prospectus supplement or any
related free writing prospectus is delivered or the applicable securities are sold on a later date.
SciClone
®
, SciClone Pharmaceuticals, the SciClone Pharmaceuticals design, the SciClone logo and ZADAXIN
®
(“ZADAXIN”) are registered
trademarks of SciClone Pharmaceuticals, Inc. in the United States and numerous other countries. All other Company names and trademarks included in this prospectus are trademarks, registered trademarks or trade names of their respective owners. Our
use or display of other parties’ trademarks, trade dress or products in this prospectus does not imply that we have a relationship with, or the endorsement or sponsorship of, the trademark or trade dress owners.
SUMMARY
This summary highlights selected information from this prospectus and does not contain all of the information that you need to consider in
making your investment decision. You should carefully read the entire prospectus, including the risks of investing discussed under “Risk Factors” described on page 4, the information incorporated by reference, including our financial
statements, and the exhibits to the registration statement of which this prospectus is a part.
About Sciclone Pharmaceuticals
SciClone Pharmaceuticals, Inc. (NASDAQ: SCLN) is a United States (“US”)-headquartered, China-focused, specialty pharmaceutical
company with a substantial commercial business and a product portfolio of therapies for oncology, infectious diseases and cardiovascular disorders. Our business and corporate strategy is focused primarily on the People’s Republic of China
(“China”) where we have built a solid reputation and established a strong brand through many years of experience marketing our lead product, ZADAXIN (thymalfasin). In addition, we have an established product promotion business model with
large pharmaceutical partners to promote and sell products. We operate in two segments which are generally based on the nature and location of our customers: 1) China and 2) the Rest of the World, which includes our US and Hong Kong operations.
Our product sales revenues result from our proprietary and
in-licensed
products, including our lead
product, ZADAXIN, DC Bead
®
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a product for the embolization of malignant hypervascularized tumors, and oncology products from Pfizer
International Trading (Shanghai) Ltd. ZADAXIN is approved in over 30 countries and may be used for the treatment of hepatitis B virus (“HBV”), hepatitis C virus (“HCV”), and certain cancers, and as an immune system enhancer
according to the local regulatory approvals we have in these countries.
SciClone Pharmaceuticals, Inc. was organized in 1990 as a
California corporation and reincorporated in Delaware in 2003. Our corporate headquarters are located at 950 Tower Lane, Foster City, California, 94404 and our telephone number is (650)
358-3450.
Our website
address is www.sciclone.com. The information on our website is not incorporated by reference into this prospectus and should not be considered to be a part of this prospectus.
Description Of Securities We May Offer
With this prospectus, we may offer common stock, preferred stock, debt securities and warrants, or any combination of the foregoing, either
individually or as units comprised of one or more of the other securities. The aggregate initial offering price of all securities we sell in the primary offering under this prospectus will not exceed $100,000,000. If we issue debt securities at a
discount from their original stated principal amount, then, for purposes of calculating the total dollar amount of all securities issued under this prospectus, we will treat the initial offering price of the debt securities as the total original
principal amount of the debt securities. Each time we offer securities with this prospectus, we will provide offerees with a prospectus supplement that will contain the specific terms of the securities being offered. The following is a summary of
the securities we may offer with this prospectus.
We may sell the securities to or through underwriters, dealers or agents or directly to
purchasers. We, as well as any agents acting on our behalf, reserve the sole right to accept and to reject in whole or in part any proposed purchase of securities. Each prospectus supplement will set forth the names of any underwriters, dealers or
agents involved in the sale of securities described in that prospectus supplement and any applicable fee, commission or discount arrangements with them.
Common Stock
We may offer shares of our
common stock either alone or underlying other registered securities convertible into or exercisable for our common stock. Holders of our common stock are entitled to such dividends as our board of directors may declare from time to time out of
legally available funds, subject to the preferential rights of the holders of any shares of our preferred stock that are outstanding or that we may issue in the future. Currently, we do not pay any dividends. Each holder of our common stock is
entitled to one vote per share. In this prospectus, we provide a general description of, among other things, our dividend policy and the rights and restrictions that apply to holders of our common stock.
2
Preferred Stock
We may issue shares of preferred stock in one or more classes or series. Our board of directors or a committee designated by our board of
directors will determine the dividend, voting and conversion rights and other provisions at the time of sale. The particular terms of each class or series of preferred stock, including redemption privileges, liquidation preferences, voting rights,
dividend rights and/or conversion rights, will be more fully described in the applicable prospectus supplement relating to the preferred stock offered thereby.
Debt Securities
We may offer general
debt obligations, which may be secured or unsecured, senior or subordinated and convertible into shares of our common stock. In this prospectus, we refer to the senior debt securities and the subordinated debt securities together as the “debt
securities.” We may issue debt securities under a note purchase agreement or under an indenture to be entered between us and a trustee to be named; a form of the indenture is included as an exhibit to the registration statement of which this
prospectus is a part. The indenture does not limit the amount of securities that may be issued under it and provides that debt securities may be issued in one or more series. The senior debt securities will have the same rank as all of our other
indebtedness that is not subordinated. The subordinated debt securities will be subordinated to our senior debt on terms set forth in the applicable prospectus supplement. In addition, the subordinated debt securities will be effectively
subordinated to creditors and preferred stockholders of our subsidiaries. Our board of directors will determine the terms of each series of debt securities being offered. This prospectus contains only general terms and provisions of the debt
securities. The applicable prospectus supplement will describe the particular terms of the debt securities offered thereby.
Warrants
We may offer warrants for the purchase of shares of common stock, shares of preferred stock or debt securities. We may issue the warrants by
themselves or together with common stock, preferred stock or debt securities and the warrants may be attached to or separate from any offered securities. Each series of warrants will be issued under a separate warrant purchase agreement to be
entered into between us and the investors or a warrant agent. Our board of directors will determine the terms of the warrants. This prospectus contains only general terms and provisions of the warrants. The applicable prospectus supplement will
describe the particular terms of the warrants being offered thereby.
3
RISK FACTORS
Investing in our securities involves significant risk. Prior to making a decision about investing in our securities, you should consider
carefully the risk factors incorporated by reference to our most recent Annual Report on Form
10-K,
any subsequent Quarterly Reports on Form
10-Q
or Current Reports on
Form
8-K
that we file after the date of this prospectus, and all other information contained or incorporated by reference into this prospectus, as updated by our subsequent filings under the Securities
Exchange Act of 1934, as amended, (the “Exchange Act”), and the risk factors and other information contained in the applicable prospectus supplement. The risks and uncertainties included or incorporated, or deemed to be incorporated, by
reference in this prospectus are those that we currently believe may materially affect our company.
Additional risks not presently known
or that are currently deemed immaterial could also materially and adversely affect our business, financial condition, liquidity, results of operations, and prospects. The realization of any of these risks could have a material adverse effect on our
business, financial condition, liquidity, results of operations, and prospects. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities. Please also refer to the section below entitled
“Special Note Regarding Forward Looking Information.”
SPECIAL NOTE REGARDING FORWARD-LOOKING
INFORMATION
This prospectus and the information incorporated by reference in this prospectus contain forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Exchange Act. These forward-looking statements are based on our current expectations, estimates and projections about
our business, industry, management’s beliefs and certain assumptions made by us. Words such as “may,” “will,” “would,” “could,” “should,” “might,” “believes,”
“estimates,” “projects,” “potential,” “expects,” “plans,” “anticipates,” “intends,” “continues,” “forecast,” “designed,” “goal,”
“approximately” or the negative of those words or similar expressions are intended to identify forward-looking statements, including those statements we make regarding our future financial results. These statements are subject to
risks and uncertainties that are difficult to predict and actual outcomes may differ materially.
These include risks and uncertainties
relating to:
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our substantial dependence on sales of ZADAXIN in China and renewal of our Import Drug License with respect to ZADAXIN;
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government regulatory action affecting our Company or our drug products or our competitors’ drug products in China, the U.S. and other foreign countries, including the effect of government initiatives in China,
particularly the Chinese government’s increasing regulation of the pharmaceutical industry through anti-corruption activities;
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Chinese government regulatory actions intended to reduce pharmaceutical prices such as the reduction in some provinces of the governmentally permitted maximum listed price for our products and increased oversight of the
health care market and pharmaceutical industry;
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prospects for ZADAXIN and our plans for its enhancement and commercialization as well as our expectations regarding other products;
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future size of the HBV and HCV and other markets, particularly in China;
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anticipated product sales of current or anticipated products;
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the sufficiency of our resources to complete clinical trials and other new product development initiatives; government regulatory actions that may affect product reimbursement, product pricing or otherwise affect the
scope of our sales and marketing; the timing and outcome of clinical trials;
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the dependence of our current and future revenue and prospects on third-party license, promotion or distribution agreements, including the need to renew such agreements, enter into similar agreements, or end
arrangements that SciClone does not believe are beneficial;
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the effects of the resolved SEC and DOJ investigations and our ability to continue to comply with applicable laws and regulations, and carry out the continued reporting responsibilities agreed to with the SEC;
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announcement and completion of corporate acquisition, merger, licensing or marketing arrangements, or sales of assets;
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our ability to implement and maintain controls over our financial reporting;
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operating an international business, particularly in China including pricing regulations, slow payment cycles and currency exchange fluctuations;
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uncertainty in the prospects for unapproved products, including uncertainties as to pricing and competition and risks relating to the clinical trial process and related regulatory approval process and the process of
initiating trials at, and enrolling patients at, clinical sites;
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research and development and other expense levels;
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the ability of our suppliers to continue financially viable production of our products; and
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the allocation of financial resources to certain trials and programs, and the outcome and expenses related to litigation.
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These statements are not guarantees of future performance and are subject to certain risks, uncertainties and assumptions that are difficult
to predict. Therefore, our actual results could differ materially and adversely from those expressed in any forward-looking statements as a result of various factors including, but not limited to, those described under the caption “Risk
Factors” in any accompanying prospectus supplement and the documents incorporated by reference in this prospectus. You are encouraged to read these filings when made. We undertake no obligation to revise or update publicly any forward-looking
statements for any reason.
USE OF PROCEEDS
Unless otherwise indicated in an applicable prospectus supplement, we currently intend to use the net proceeds from the sale of the securities
for general corporate purposes, including the acquisition of complementary products or companies, the expansion of our international business, particularly in China, continued development, manufacture, marketing and sale of our family of products,
including related research and clinical trials, and other related research and development, sales and marketing, and general administrative expenses, working capital and capital expenditures. We have not determined the amount of net proceeds to be
used specifically for the foregoing purposes. We may provide additional information on the use of the net proceeds from the sale of securities in an applicable prospectus supplement. As a result, our management will have broad discretion in the
allocation of the net proceeds and investors will be relying on the judgment of our management regarding the application of the proceeds of any sale of the securities. Pending the use of the net proceeds, we intend to invest the proceeds in a
variety of capital preservation instruments, including short-term, investment-grade, interest-bearing instruments.
5
RATIO OF EARNINGS TO FIXED CHARGES
The following table presents our historical ratio of earnings to fixed charges for each of the years in the five-year period ended
December 31, 2016.
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Year Ended December 31,
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2016
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2015
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2014
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2013
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2012
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Ratio of earnings to fixed charges
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49.81
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44.29
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34.11
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13.30
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6.47
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For purposes of this table, “earnings” consist of income before income taxes, plus combined fixed
charges (excluding capitalized interest). “Fixed charges” consist of interest (including capitalized interest) on all debt, including amortization of and discounts related to indebtedness, and an estimated interest component of rent
expense that management believes is attributable to interest.
SECURITIES WE MAY OFFER
We may offer shares of common stock, shares of preferred stock, debt securities or warrants to purchase common stock, preferred stock or debt
securities, or any combination of the foregoing, either individually or as units comprised of one or more of the other securities. We may offer up to $100,000,000 of securities under this prospectus. If securities are offered as units, we will
describe the terms of the units in a prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock, together with any additional information we include in any applicable prospectus supplements
or any free writing prospectus that we may authorize to be delivered to you, summarizes the material terms and provisions of our capital stock that we may offer under this prospectus. While the terms we have summarized below will apply generally to
any future capital stock that we may offer, we will describe the particular terms of any class or series of these securities in more detail in the applicable prospectus supplement or free writing prospectus. For the complete terms of our capital
stock, please refer to our amended and restated certificate of incorporation, as amended, and our amended and restated bylaws that are incorporated by reference into the registration statement of which this prospectus is a part or may be
incorporated by reference in this prospectus or any prospectus supplement. The terms of these securities may also be affected by Delaware General Corporation Law, or the DGCL. The summary below and that contained in any prospectus supplement are
qualified in their entirety by reference to our amended and restated certificate of incorporation, as amended, and our amended and restated bylaws.
Common Stock
We are authorized to issue
100,000,000 shares of common stock, of which 51,505,795 shares were issued and outstanding as of March 7, 2017. The holders of Common Stock possess exclusive voting rights in us, except to the extent our board of directors specifies voting
power with respect to any other class of securities issued in the future. Each holder of our common stock is entitled to one vote for each share held of record on each matter submitted to a vote of stockholders, including the election of directors.
Stockholders do not have any right to cumulate votes in the election of directors.
Subject to preferences that may be granted to the
holders of preferred stock, each holder of our common stock is entitled to share ratably in distributions to stockholders and to receive ratably such dividends as may be declared by our board of directors out of funds legally available therefor. In
the event of our liquidation, dissolution or winding up, the holders of our common stock will be entitled to receive, after payment of all of our debts and liabilities and of all sums to which holders of any preferred stock may be entitled, the
distribution of any of our remaining assets. Holders of our common stock have no conversion, exchange, sinking fund, redemption or appraisal rights (other than such as may be determined by our board of directors in its sole discretion) and have no
preemptive rights to subscribe for any of our securities.
6
All of the outstanding shares of our common stock are, and the shares of common stock issued upon
the conversion of any securities convertible into our common stock will be, fully paid and
non-assessable.
The shares of common stock offered by this prospectus or upon the conversion of any preferred stock or
debt securities or exercise of any warrants offered pursuant to this prospectus, when issued and paid for, will also be fully paid and
non-assessable.
Our common stock is listed on the NASDAQ Global Select Market under the symbol “SCLN.”
Preferred Stock
We are authorized to
issue 10,000,000 shares of preferred stock, none of which were issued and outstanding as of March 7, 2017. Our board is authorized to classify or reclassify any unissued portion of our authorized shares of preferred stock to provide for the
issuance of shares of other classes or series, including preferred stock in one or more series. We may issue preferred stock from time to time in one or more classes or series, with the exact terms of each class or series established by our board.
Without seeking stockholder approval, our board may issue preferred stock with voting and other rights that could adversely affect the voting power of the holders of our common stock. Additionally, the issuance of preferred stock may have the effect
of decreasing the market price of the common stock.
The rights, preferences, privileges and restrictions of the preferred stock of each
series will be fixed by the certificate of designation relating to each series. A prospectus supplement relating to each series will specify the terms of the preferred stock, including, but not limited to:
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the distinctive designation and the maximum number of shares in the series;
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the terms on which dividends, if any, will be paid;
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the voting rights, if any, on the shares of the series;
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the terms and conditions, if any, on which the shares of the series shall be convertible into, or exchangeable for, shares of any other class or classes of capital stock;
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the terms on which the shares may be redeemed, if at all;
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the liquidation preference, if any; and
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any or all other preferences, rights, restrictions, including restrictions on transferability, and qualifications of shares of the series.
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The issuance of preferred stock may delay, deter or prevent a change in control.
We will describe the specific terms of a particular series of preferred stock in the prospectus supplement relating to that series. The
description of preferred stock above and the description of the terms of a particular series of preferred stock in the prospectus supplement are not complete. You should refer to the applicable certificate of designation for complete information.
The prospectus supplement will contain a description of U.S. federal income tax consequences relating to the preferred stock.
Possible Anti-Takeover
Effects of Delaware Law and our Certificate of Incorporation and Bylaws
The following is a summary of certain provisions of Delaware
law, our amended and restated certificate of incorporation, as amended, and our amended and restated bylaws. This summary does not purport to be complete and is qualified in its entirety by reference to the corporate law of Delaware and our amended
and restated certificate of incorporation and our amended and restated bylaws.
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Effect of Delaware Anti-Takeover Statute
. We are subject to Section 203 of the
Delaware General Corporation Law, an anti-takeover law. In general, Section 203 prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a period of three years following the date that the
stockholder became an interested stockholder, unless:
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prior to that date, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;
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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 of voting stock outstanding (but not the voting stock owned by the interested stockholder) those shares owned by persons who are directors and officers and by
excluding employee stock plans in which employee participants do not have the right to determine whether shares held subject to the plan will be tendered in a tender or exchange offer; or
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on or subsequent to that date, the business combination is approved by the board of directors of the corporation and authorized at an annual or special meeting of stockholders, and not by written consent, by the
affirmative vote of at least
66-2/3%
of the outstanding voting stock that is not owned by the interested stockholder.
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Section 203 defines “business combination” to include the following:
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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 of any class or series of the corporation beneficially owned by the interested stockholder; or
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the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation.
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In general, Section 203 defines an interested stockholder as any entity or person beneficially owning 15% or more of the outstanding
voting stock of the corporation, or who beneficially owns 15% or more of the outstanding voting stock of the corporation at any time within a three year period immediately prior to the date of determining whether such person is an interested
stockholder, and any entity or person affiliated with or controlling or controlled by any of these entities or persons.
Certificate of
Incorporation and Bylaws
Preferred Stock.
Under our amended and restated certificate of incorporation, as amended, our Board of
Directors has the power to authorize the issuance of up to 10,000,000 shares of preferred stock, all of which remain undesignated, and to determine the price, rights, preferences, privileges and restrictions, including voting rights, of those shares
without further vote or action by our stockholders. The issuance of preferred stock may:
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delay, defer or prevent a change in control;
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discourage bids for our common stock at a premium over the market price of our common stock;
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adversely affect the voting and other rights of the holders of our common stock; and
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discourage acquisition proposals or tender offers for our shares and, as a consequence, inhibit fluctuations in the market price of our shares that could result from actual or rumored takeover attempts.
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Special Meeting Requirements.
Our amended and restated bylaws provide that special
meetings of our stockholders may only be called at the request of our president, our chairman of the board, a majority of our Board of Directors or the holders of record of not less than 25% of all shares entitled to cast votes at the meeting.
Advance Notice Requirement.
Stockholder proposals to be brought before an annual meeting of our stockholders must comply with advance
notice procedures. These advance notice procedures require timely notice and apply in several situations, including stockholder proposals relating to the nominations of persons for election to our Board of Directors. Generally, to be timely, notice
must be received at our principal executive offices no later than the date specified in our proxy statement released to stockholders in connection with the previous year’s annual meeting of stockholders, which date shall be not less than 120
calendar days in advance of the date of such proxy statement.
Indemnification.
Our amended and restated certificate of
incorporation, as amended, and our amended and restated bylaws provide that we will indemnify our officers and directors against losses as they incur in investigations and legal proceedings resulting from their services to us, which may include
service in connection with takeover defense measures.
The above provisions may deter a hostile takeover or delay a change in control or
management of us.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Investor Services.
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. The
following description, together with the additional information we include in any applicable prospectus supplements or free writing prospectuses, summarizes the material terms and provisions of the debt securities that we may offer under this
prospectus. While the terms we have summarized below will apply generally to any future debt securities we may offer under this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail in the
applicable prospectus supplement or free writing prospectus. The terms of any debt securities we offer under a prospectus supplement may differ from the terms we describe below. If any terms of such debt security described in a prospectus supplement
or free writing prospectus are inconsistent with any of the terms of the debt securities generally described in this prospectus, then the terms described in the applicable prospectus supplement or free writing prospectus will supersede the terms
described in this prospectus. Unless the context requires otherwise, whenever we refer to the “indentures,” we also are referring to any supplemental indentures that specify the terms of a particular series of debt securities.
We will issue any senior debt securities under the senior indenture that we will enter into with a trustee to be selected by us and named in
the senior indenture. We will issue any subordinated debt securities under the subordinated indenture and any supplemental indentures that we will enter into with a trustee to be selected by us and named in the subordinated indenture. We have filed
forms of these documents as exhibits to the registration statement, of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to
the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
The indentures will be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). We use the term
“trustee” to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject
to, and qualified in their entirety by reference to, all of the provisions of the indenture and any supplemental indentures applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any
related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indentures that contain the terms of the debt securities. Except as we may otherwise indicate, the terms of the senior
indenture and the subordinated indenture are identical.
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General
The terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or
determined in the manner provided in an officers’ certificate or by a supplemental indenture. Debt securities may be issued in separate series without limitation as to aggregate principal amount. We may specify a maximum aggregate principal
amount for the debt securities of any series. We will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including, without limitation:
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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 depositary will be;
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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 made;
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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, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemption
provisions;
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provisions for a sinking fund purchase or other analogous fund, if any, including the date, if any, on which, and the price at which we are obligated, pursuant thereto 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 or the ability of our subsidiaries to:
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incur additional indebtedness;
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issue additional securities;
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pay dividends or make distributions in respect of our capital stock or the capital stock of our subsidiaries;
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place restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets;
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make investments or other restricted payments;
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sell or otherwise dispose of assets;
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enter into sale-leaseback transactions;
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engage in transactions with stockholders or affiliates;
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issue or sell stock of our subsidiaries; or
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effect a consolidation or merger;
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whether the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios;
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a discussion of certain 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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the applicability of the provisions in the indenture on discharge;
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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 of 1986, as amended;
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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 currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars; and
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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 that may be required by us or advisable under applicable laws or regulations.
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Conversion or Exchange Rights
We will set forth in the applicable prospectus supplement the terms under which a series of debt securities may be convertible
into or exchangeable for our common stock, our preferred stock or other securities (including securities of a third party). We will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our
option. We may include provisions pursuant to which the number of shares of our common stock, our preferred stock or other securities (including securities of a third party) that the holders of the series of debt securities receive would be subject
to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indentures will not contain
any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under
the indentures or the debt securities, as appropriate. If the debt securities are convertible into or exchangeable for our other securities or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our
property must make provisions for the conversion of the debt securities into securities that the holders of the debt securities would have received if they had converted the debt securities before the consolidation, merger or sale.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of
default under the indentures with respect to any series of debt securities that we may issue:
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if we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended;
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if we fail to pay the principal, premium or sinking fund payment, if any, when due and payable at maturity, upon redemption or repurchase or otherwise, and the time for payment has not been extended;
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if we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90
days after we receive notice from the trustee or we and the trustee receive notice from the holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization occur.
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We will describe in
each applicable prospectus supplement any additional events of default relating to the relevant series of debt securities.
If an event of
default with respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default arises
due to the occurrence of certain specified bankruptcy, insolvency or reorganization events, the unpaid principal, premium, if any, and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any
notice or other action on the part of the trustee or any holder.
The holders of a majority in principal amount of the outstanding debt
securities of an affected series may waive any default or event of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured the
default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms
of the indentures, if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the
applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity or security satisfactory to it against any loss, liability or expense. The holders of a majority in principal amount of the outstanding debt
securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of
that series, provided that:
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the direction so given by the holder is not in conflict with any law or the applicable indenture; and
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subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding.
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The indentures provide that if an event of default has occurred and is continuing, the trustee will be required in the
exercise of its powers to use the degree of care that a prudent person would use in the conduct of its own affairs. The trustee, however, may refuse to follow any direction that conflicts with law or the indenture, or that the trustee determines is
unduly prejudicial to the rights of any other holder of the relevant series of debt securities, or that would involve the trustee in personal liability. Prior to taking any action under the indentures, the trustee will be entitled to indemnification
against all costs, expenses and liabilities that would be incurred by taking or not taking such action.
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A holder of the debt securities of any series will have the right to institute a proceeding under
the indentures or to appoint a receiver or trustee, or to seek other remedies only if:
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the holder has given written notice to the trustee of a continuing event of default with respect to that series;
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made a written request and such holders have offered reasonable indemnity to the trustee or security
satisfactory to it against any loss, liability or expense or to be incurred in compliance with instituting the proceeding as trustee; and
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the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90
days after the notice, request and offer.
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These limitations do not apply to a suit instituted by a holder of debt
securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities, or other defaults that may be specified in the applicable prospectus supplement.
We will periodically file statements with the trustee regarding our compliance with specified covenants in the indentures.
The indentures provide that if a default occurs and is continuing and is actually known to a responsible officer of the trustee, the trustee
must mail to each holder notice of the default within the earlier of 90 days after it occurs and 30 days after it is known by a responsible officer of the trustee or written notice of it is received by the trustee, unless such default has been cured
or waived. Except in the case of a default in the payment of principal or premium of, or interest on, any debt security or certain other defaults specified in an indenture, the trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee or a trust committee of directors, or responsible officers of the trustee, in good faith determine that withholding notice is in the best interests of holders of the relevant series of debt securities.
Modification of Indenture; Waiver
Subject to the terms of the indenture for any series of debt securities that we may issue, we and the trustee may change an indenture without
the consent of any holders with respect to the following specific matters:
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to fix any ambiguity, defect or inconsistency in the indenture;
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to comply with the provisions described above under “Description of Debt Securities — Consolidation, Merger or Sale;”
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to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act;
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to add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of debt securities, as set forth in the indenture;
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to provide for the issuance of, and establish the form and terms and conditions of, the debt securities of any series as provided under “Description of Debt Securities — General,” to establish the form of
any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities;
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to evidence and provide for the acceptance of appointment hereunder by a successor trustee;
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to provide for uncertificated debt securities and to make all appropriate changes for such purpose;
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to add such new covenants, restrictions, conditions or provisions for the benefit of the holders, to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an event of default or to surrender any right or power conferred to us in the indenture; or
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to change anything that does not adversely affect the interests of any holder of debt securities of any series in any material respect.
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In addition, under the indentures, the rights of holders of a series of debt securities may be
changed by us and the trustee with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, subject to the terms of the indenture for any
series of debt securities that we may issue or otherwise provided in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may only make the following changes with the consent of each holder of any
outstanding debt securities affected:
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extending the stated maturity of the series of debt securities;
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reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption or repurchase of any debt securities; or
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reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver.
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Discharge
Each
indenture provides that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement applicable to a particular series of debt securities, we may elect to be discharged from our obligations with respect
to one or more series of debt securities, except for specified obligations, including obligations to:
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register the transfer or exchange of debt securities of the series;
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replace stolen, lost or mutilated debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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recover excess money held by the trustee;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
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In order to exercise our rights to be discharged, we must
deposit with the trustee money or government obligations sufficient to pay all the principal of, and any premium and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the
applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be
deposited with, or on behalf of, The Depository Trust Company or another depositary named by us and identified in a prospectus supplement with respect to that series. See “Legal Ownership of Securities” below for a further description of
the terms relating to any book-entry securities.
At the option of the holder, subject to the terms of the indentures and the limitations
applicable to global securities described in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of
like tenor and aggregate principal amount.
Subject to the terms of the indentures and the limitations applicable to global securities set
forth in the applicable prospectus supplement, holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by
us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we
will make no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
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We will name in the applicable prospectus supplement the security registrar, and any transfer
agent in addition to the security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through
which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities of any series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities
that may be selected for redemption and ending at the close of business on the day of the mailing; or
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register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part.
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Information Concerning the Trustee
The trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those
duties as are specifically set forth in the applicable indenture and is under no obligation to exercise any of the powers given it by the indentures at the request of any holder of debt securities unless it is offered reasonable security and
indemnity against the costs, expenses and liabilities that it might incur. However, upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own
affairs.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any
interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest payment.
We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents
designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the
applicable prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying
agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that
remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
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Ranking Debt Securities
The subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain other indebtedness to
the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of subordinated debt securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
The senior debt securities will be unsecured and will rank equally in right of payment to all our other senior unsecured debt. The senior
indenture does not limit the amount of senior debt securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
Existing Subordinated Debt
As of December 31, 2016, we had no existing subordinated debt.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of debt securities, preferred stock or common stock. Securities warrants may be issued independently or
together with debt securities, preferred stock or common stock and may be attached to or separate from any offered securities. Each series of securities warrants will be issued under a separate warrant agreement to be entered into between us and a
securities warrant agent. The securities warrant agent will act solely as our agent in connection with the securities warrants and will not assume any obligation or relationship of agency or trust for or with any registered holders of securities
warrants or beneficial owners of securities warrants. This summary of some provisions of the securities warrants is not complete. You should refer to the securities warrant agreement, including the forms of securities warrant certificate
representing the securities warrants, relating to the specific securities warrants being offered for the complete terms of the securities warrant agreement and the securities warrants. The securities warrant agreement, together with the terms of
securities warrant certificate and securities warrants, will be filed with the SEC in connection with the offering of the specific securities warrants.
The particular terms of any issue of securities warrants will be described in the prospectus supplement relating to the issue. Those terms may
include:
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the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued;
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the currency or currencies (including composite currencies) in which the price of such warrants may be payable;
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the terms of the securities purchasable upon exercise of such warrants and the procedures and conditions relating to the exercise of such warrants;
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the price at which the securities purchasable upon exercise of such warrants may be purchased;
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the date on which the right to exercise such warrants will commence and the date on which such right shall expire;
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any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of the warrants;
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if applicable, the minimum or maximum amount of such warrants that may be exercised at any one time;
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if applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued with each such security;
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if applicable, the date on and after which such warrants and the related securities will be separately transferable;
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information with respect to book-entry procedures, if any; and
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any other terms of such warrants, including terms, procedures and limitations relating to the exchange or exercise of such warrants.
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The prospectus supplement relating to any warrants to purchase equity securities may also include, if applicable, a discussion of certain U.S.
federal income tax and ERISA considerations.
Securities warrants for the purchase of preferred stock and common stock will be offered and
exercisable for U.S. dollars only. Securities warrants will be issued in registered form only.
Each securities warrant will entitle its
holder to purchase the number of shares of debt securities, preferred stock or common stock at the exercise price set forth in, or calculable as set forth in, the applicable prospectus supplement.
After the close of business on the expiration date, unexercised securities warrants will become void. We will specify the place or places
where, and the manner in which, securities warrants may be exercised in the applicable prospectus supplement.
Upon receipt of payment and
the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement, we will, as soon as practicable, forward the purchased securities.
If less than all of the warrants represented by the warrant certificate are exercised, a new warrant certificate will be issued for the remaining warrants.
Prior to the exercise of any securities warrants to purchase debt securities, preferred stock or common stock, holders of the securities
warrants will not have any of the rights of holders of the debt securities, preferred stock or common stock purchasable upon exercise, including (i) in the case of securities warrants for the purchase of debt securities, the right to receive
payments of principal of, any premium or interest on the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture, or (ii) in the case of securities warrants for the purchase of preferred stock or common
stock, the right to vote or to receive any payments of dividends on the preferred stock or common stock purchasable upon exercise.
DESCRIPTION OF UNITS
The following summarizes the terms of common stock warrants and preferred stock warrants we may issue. We
urge you to read the detailed provisions of the stock warrant agreement that we will enter into with a stock warrant agent we select at the time of issue.
General
We may issue units
comprised of one or more debt securities, shares of common stock, shares of preferred stock and warrants in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the
holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time
or at any time before a specified date.
We will describe in the applicable prospectus supplement the terms of the series of units,
including, but not limited to:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
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any provisions of the governing unit agreement that differ from those described below; and
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
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The provisions described in this section, as well as those described under “Description of Common Stock and Preferred Stock,”
“Description of Debt Securities” and “Description of Warrants” will apply to each unit and to any common stock, preferred stock, debt security or warrant included in each unit, respectively.
Issuance in Series
We may issue
units in such amounts and in numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency
or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit,
including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate
legal action its rights as holder under any security included in the unit.
We, the unit agents and any of their agents may treat the
registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary.
PLAN OF DISTRIBUTION
We may sell the securities being offered hereby in one or more of the following ways from time to time:
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through agents to the public or to investors;
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to or through underwriters for resale to the public or to investors;
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in “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;
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through a block trade in which the broker or dealer engaged to handle the block trade will attempt to sell the securities as agent, but may position and resell a portion of the block as principal to facilitate the
transaction;
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directly to investors; or
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through a combination of any of these methods of sale.
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We will set forth in a prospectus
supplement the terms of that particular offering of securities, including:
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the name or names of any agents or underwriters;
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the purchase price of the securities being offered and the proceeds we will receive from the sale;
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any over-allotment options under which underwriters may purchase additional securities from us;
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any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
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any public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any securities exchanges or markets on which such securities may be listed.
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Instead of
selling securities under this prospectus, we may sell the securities offered, including shares of common stock, in compliance with the provisions of Rule 144 or Rule 144A under the Securities Act, if available, or pursuant to other available
exemptions from the registration requirements of the Securities Act.
Agents
We may designate agents who agree to use their reasonable efforts to solicit purchases of our securities for the period of their appointment or
to sell our securities on a continuing basis.
Underwriters
If we use underwriters for a sale of securities, the underwriters will acquire the securities for their own account. The underwriters may
resell the securities in one or more transactions, including negotiated 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. The underwriters will be obligated to purchase all the securities of the series offered if they purchase any of the securities of that series. We may change from time to
time any initial public offering price and any discounts or concessions the underwriters allow or reallow or pay to dealers. We may use underwriters with whom we have a material relationship. We will describe the nature of any such relationship in
any prospectus supplement naming any such underwriter. Only underwriters we name in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
Direct Sales
We may also 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 will identify in the applicable prospectus supplement any underwriters, dealers or agents and
will describe their compensation. We may have agreements with the underwriters, dealers and agents to indemnify them against specified civil liabilities, including liabilities under the Securities Act. Underwriters, dealers and agents may engage in
transactions with or perform services for us in the ordinary course of their businesses.
Trading Markets and Listing of Securities
Unless otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established
trading market, other than our common stock, which is listed on the NASDAQ Global Select Market. We may elect to list any other class or series of securities on any exchange or market, but we are not obligated to do so. It is possible that one or
more underwriters may make a market in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot give any assurance as to the liquidity of the
trading market for any of the securities.
Stabilization Activities
Any underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with
Regulation M under the Exchange Act. Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a
specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer
when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may
discontinue any of these activities at any time.
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Passive Market Making
Any underwriters who are qualified market makers on the NASDAQ Global Select Market may engage in passive market making transactions in the
securities on the NASDAQ Select Global Market in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the securities. Passive market makers must comply
with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security. If all independent bids
are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
LEGAL MATTERS
The validity of the issuance of the securities offered by this prospectus will be passed upon for us by DLA Piper LLP (US), East Palo Alto,
California. If the validity of any securities is also passed upon by counsel for the underwriters of an offering of those securities, that counsel will be named in the prospectus supplement relating to that offering.
EXPERTS
The financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included
in Management’s Report on Internal Control over Financial Reporting) incorporated in this Prospectus by reference to the Annual Report on Form
10-K
for the year ended December 31, 2016 have been so
incorporated in reliance on the report of PricewaterhouseCoopers Zhong Tian LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file electronically with the SEC our annual reports on Form
10-K,
quarterly reports on Form
10-Q
and current reports on Form
8-K
pursuant to Section 13(a) or 15(d) of the Exchange Act, as amended. The public may read and copy any materials we file with the SEC at the
SEC’s Public Reference Room at 100 F Street, NE, Washington, DC 20549. The public may obtain information on the operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330.
The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. The address of
that site is http://www.sec.gov.
You may obtain a free copy of our annual reports on Form
10-K,
quarterly reports on Form
10-Q
and current reports on Form
8-K
and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended, on the day of filing with the SEC on our website at http://www.sciclone.com, by contacting the Investor Relations Department at our corporate offices by calling
800-724-2566
or by sending an
e-mail
message to investorrelations@sciclone.com.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
We are allowed to incorporate by reference information contained in documents that we file with the SEC. This means that we can disclose
important information to you by referring you to those documents and that the information in this prospectus is not complete. We incorporate by reference in two ways. First, we list below certain documents that we have already filed with the SEC.
The information in these documents is considered part of this prospectus. Second, the information in documents that we subsequently file in the future with the SEC will modify or supersede the information contained in this prospectus, or if
applicable, the accompanying prospectus supplement, and be incorporated by reference in, this prospectus.
We incorporate by reference
into this prospectus the documents listed below, any filings we make with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the initial filing date of the registration statement of which this prospectus is a part and
prior to the effectiveness of the registration statement, and any filings we make with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act from the date of this
20
prospectus until the termination of this offering (in each case, except for the information furnished under Item 2.02 or Item 7.01 in any current report on Form
8-K
and Form
8-K/A);
provided, however, that we are not incorporating by reference any documents, portions of documents, exhibits or other information that is deemed to
have been “furnished” to and not “filed” with the SEC:
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Our Annual Report on Form
10-K
for the year ended December 31, 2016 filed with the SEC on March 9, 2017;
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Our Current Reports on Form
8-K
filed with the SEC on January 6, 2017 and February 28, 2017; and
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The description of our common stock contained in our registration statement on Form
8-A/A
filed with the SEC on September 18, 2003.
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We will provide each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all of the information that
has been incorporated by reference into this prospectus but not delivered with this prospectus upon written or oral request at no cost to the requester. Requests should be directed to:
SciClone Pharmaceuticals, Inc.
950 Tower Lane, Foster City, CA 94404
Attn: Investor Relations
Phone:
(650)
358-3456
E-mail:
investorrelations@sciclone.com
This prospectus is part of a registration statement that we filed with the SEC. The registration statement contains more information than this
prospectus regarding us and our common stock, including certain exhibits and schedules. You can obtain a copy of the registration statement from the SEC at the address listed above or from the SEC’s Internet website.
You should rely only on the information provided in and incorporated by reference into this prospectus or any prospectus supplement. We
have not authorized anyone else to provide you with different information. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front cover of these
documents.
21
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution
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The following table sets forth the various
expenses to be incurred in connection with the registration of the securities being registered hereby, all of which will be borne by SciClone Pharmaceuticals, Inc. All of the amounts shown are estimated except the SEC registration fee.
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Securities and Exchange Commission registration fee
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$
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11,590
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Transfer agent’s and trustee’s fees and expenses
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*
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FINRA Filing Fee
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*
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Printing fees and expenses
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*
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Legal fees and expenses
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*
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Accounting fees and expenses
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*
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Miscellaneous
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*
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Total
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$
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*
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*
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These fees and expenses are calculated based on the securities offered and the number of issuances and distributions of the offered securities and, accordingly, cannot be estimated at this time.
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Item 15.
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Indemnification of Officers and Directors
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Section 145 of the Delaware General
Corporation Law authorizes a court to award or a corporation’s board of directors to grant indemnification to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under the Securities Act.
Our amended and restated certificate of incorporation,
or our Certificate, includes a provision that, to the fullest extent permitted by the Delaware General Corporation Law, eliminates the personal liability of our directors for monetary damages for breach of fiduciary duty as a director. In addition,
together our Certificate and our bylaws, as amended, require us to indemnify, to the fullest extent permitted by law, any person made or threatened to be made a party to an action or proceeding (whether criminal, civil, administrative or
investigative) by reason of the fact that such person is or was a director, officer or employee of SciClone or any predecessor of ours, or serves or served at any other enterprise as a director, officer or employee at our request or the request of
any predecessor of ours, against expenses (including attorneys’ fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person is or was
an agent of ours. Our bylaws also provide that we may, to the fullest extent provided by law, indemnify any person against expenses (including attorneys’ fees), judgments, fines, settlements and other amounts actually and reasonably incurred in
connection with any proceeding, arising by reason of the fact that such person is or was an agent of ours. We are required to advance expenses incurred by our directors, officers, employees and agents in defending any action or proceeding for which
indemnification is required or permitted, subject to certain limited exceptions. The indemnification rights conferred by our bylaws are not exclusive.
We have obtained directors and officers liability insurance and we have entered into indemnification agreements with our directors and certain
of our officers.
A list of exhibits filed herewith is contained in the exhibit index that
immediately precedes such exhibits and is incorporated herein by reference.
II-1
(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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 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 the registration statement;
Provided,
however
, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the 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 part of
the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona
fide
offering thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of the offering;
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(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 of 1933 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 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 the 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; and
II-2
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, 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 an 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 of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned
registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of
unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus, a
post-effective amendment will be filed to set forth the terms of such offering.
(d) Insofar as indemnification for
liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(e) The
undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under
the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
II-3
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(f) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form
S-3
and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Foster City, State of
California, on March 9, 2017.
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SCICLONE PHARMACEUTICALS, INC.
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By:
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/s/ Friedhelm Blobel, Ph.D.
Friedhelm Blobel, Ph.D.
President and Chief Executive Officer
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SIGNATURES AND POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Friedhelm Blobel, Ph.D., and
Wilson W. Cheung, and each of them acting individually, as his or her true and lawful
attorneys-in-fact
and agent, with full power of each to act alone, with full powers
of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments and any related registration
statements filed pursuant to Rule 462 and otherwise), 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 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 for all intents and purposes as
he or she might or could do in person, hereby ratifying and confirming that all said
attorneys-in-fact
and agents, or any of them or their substitute or resubstitute,
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.
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Signature
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Title
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Date
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/s/ Friedhelm Blobel, Ph.D.
(Friedhelm Blobel, Ph.D.)
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President and Chief Executive Officer, Director
(Principal Executive Officer)
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March 9, 2017
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/s/ Wilson W. Cheung
(Wilson W. Cheung)
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Chief Financial Officer, Senior Vice President, Finance
(Principal Financial and Accounting Officer)
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March 9, 2017
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/s/ Jon S. Saxe
(Jon S. Saxe)
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Chairman of the Board of Directors
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March 9, 2017
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/s/ Nancy T. Chang, Ph.D.
(Nancy T. Chang, Ph.D.)
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Director
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|
March 9, 2017
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|
|
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/s/ Richard J. Hawkins
(Richard J. Hawkins)
|
|
Director
|
|
March 9, 2017
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|
|
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/s/ Gregg A. Lapointe
(Gregg A. Lapointe)
|
|
Director
|
|
March 9, 2017
|
|
|
|
|
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/s/ Simon Li
(Simon Li)
|
|
Director
|
|
March 9, 2017
|
II-5
Exhibit Index
|
|
|
|
|
Exhibit
Number
|
|
Description
|
|
|
|
|
1.1
|
|
Form of Underwriting Agreement (to be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act)
|
|
|
|
|
3(i).1
|
|
Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 to our Current Report on Form
8-K
as filed on July 28, 2003 and incorporated by reference herein)
|
|
|
|
|
3(i).2
|
|
Certificate of Amendment to the Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1(i)(1)(2) to our Current Report on Form
8-K
as filed on July 6, 2011 and
incorporated by reference herein)
|
|
|
|
|
3(i).3
|
|
Certificate of Elimination of the Series D Preferred Stock, as filed by SciClone Pharmaceuticals. Inc. (filed as Exhibit 3.1 to our Current Report on Form
8-K
as filed on February 28,
2017 and incorporated by reference herein)
|
|
|
|
|
3(ii).1
|
|
Amended and Restated Bylaws of SciClone Pharmaceuticals, Inc. (filed as Exhibit 3.2 to our Current Report on Form
8-K
as filed on February 28, 2017 and incorporated by reference
herein)
|
|
|
|
|
4.1*
|
|
Form of Senior Indenture
|
|
|
|
|
4.2*
|
|
Form of Subordinated Indenture
|
|
|
|
|
4.3
|
|
Form of Warrant (to be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act)
|
|
|
|
|
4.4
|
|
Form of Unit Agreement (to be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act)
|
|
|
|
|
4.5
|
|
Form of Common Stock Certificate (filed as Exhibit 4.1 to the Company’s Form
8-A/A
as filed on September 18, 2003 and incorporated by reference herein)
|
|
|
|
|
4.5
|
|
Form of Preferred Stock Certificate (to be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act)
|
|
|
|
|
4.6
|
|
Form of Certificate of Designation with respect to Preferred Stock (to be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act)
|
|
|
|
|
5.1*
|
|
Opinion of DLA Piper LLP (US)
|
|
|
|
|
12.1*
|
|
Statement of Computation of Ratios of Earnings to Fixed Charges
|
|
|
|
|
23.1*
|
|
Consent of Independent Registered Public Accounting Firm
|
|
|
|
|
23.2*
|
|
Consent of DLA Piper LLP (US) (included in Exhibit 5.1)
|
|
|
|
|
24.1*
|
|
Power of attorney (included on the signature page to the registration statement)
|
|
|
|
|
25.1
|
|
Statement of Eligibility on Form
T-1
under the Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Indenture (to be filed pursuant to Section 305(b)(2) of the Trust
Indenture Act of 1939)
|
|
|
|
|
25.2
|
|
Statement of Eligibility on Form
T-1
under the Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated Indenture (to be filed pursuant to Section 305(b)(2) of the Trust
Indenture Act of 1939)
|
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