Ani Pharmaceuticals Inc S-3, filed Jul 9, 2020

Ani Pharmaceuticals Inc (ANIP)

S-3 2020-07-09

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	Delaware			58-2301143
	(State or other jurisdiction of incorporation or organization)			(I.R.S. Employer Identification Number)

	Large accelerated filer ☐			Accelerated filer ☒
	Non-accelerated filer ☐			Smaller reporting company ☐
				Emerging growth company ☐

	Page
ABOUT THIS PROSPECTUS		1
ABOUT THE COMPANY		2
RISK FACTORS		4
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS		5
USE OF PROCEEDS		6
DESCRIPTION OF OUR CAPITAL STOCK		7
DESCRIPTION OF OUR DEBT SECURITIES		11
DESCRIPTION OF OUR WARRANTS		19
DESCRIPTION OF OUR RIGHTS		21
DESCRIPTION OF OUR UNITS		22
PLAN OF DISTRIBUTION		23
LEGAL MATTERS		24
EXPERTS		24
WHERE YOU CAN FIND ADDITIONAL INFORMATION		24
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE		25

	Generic Products			Branded Products
	Aspirin and Extended Release Dipyridamole			Arimidex
	Bretylium Tosylate Injection, USP			Atacand
	Candesartan Hydrochlorothiazide			Atacand HCT
	Cholestyramine			Casodex
	Desipramine Hydrochloride			Cortenema
	Diphenoxylate Hydrochloride and Atropine Sulfate			Inderal LA
	Erythromycin Ethylsuccinate			Inderal XL
	Erythromycin Ethylsuccinate for Oral Suspension			InnoPran XL
	Esterified Estrogen with Methyltestosterone			Lithobid
	Etodolac			Reglan
	Ezetimibe-Simvastatin			Vancocin
	Felbamate
	Fenofibrate
	Flecainide
	Fluvoxamine
	Hydrocortisone Enema
	Hydrocortisone Rectal Cream (1% and 2.5%)
	Indapamide
	Lithium Carbonate ER
	Mesalamine Enema
	Methazolamide
	Metoclopramide Syrup
	Morphine Sulfate Oral Solution
	Nilutamide
	Nimodipine
	Opium Tincture
	Oxycodone Hydrochloride Capsules
	Oxycodone Hydrochloride Oral Solution (5 mg/5 mL)
	Oxycodone Hydrochloride Oral Solution (100 mg/5 mL)
	Pindolol
	Propafenone
	Propranolol ER
	Terbutaline Sulfate
	Vancomycin
	Vancomycin Hydrochloride for Oral Solution

	Amount to be Paid
SEC registration fee		$	40,565(1)
FINRA filing fee			**
Accounting fees and expenses			**
Legal fees and expenses (including Blue Sky fees)			**
Printing fees			**
Listing fees			**
Transfer agent, trustee and warrant agent fees and expenses			**
Miscellaneous fees and expenses			**
Total		$	**

Exhibit Number			Exhibit Title
1.1*			Form of Underwriting Agreement
4.1			Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 of the Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2013 (File No. 001-31812) filed with the Commission on August 9, 2013)
4.2			Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K (File No. 001-31812) filed with the Commission on February 16, 2017)
4.3			Specimen Common Stock Certificate of the Registrant (incorporated by reference to Exhibit 4.3 of the Registrant’s Registration Statement on Form S-3 (Reg. No. 333-159606) filed with the Commission on May 29, 2009)
4.4*			Form of any certificate of designation with respect to any preferred stock issued hereunder and the related form of preferred stock certificate
4.5*			Form of any warrant agreement with respect to each particular series of warrants issued hereunder and the related form of warrant certificate
4.6*			Form of any unit agreement with respect to any unit issued hereunder
4.7*			Form of any rights agreement and right certificate
4.8			Form of indenture
4.9*			Form of senior note
4.10*			Form of subordinated note
5.1			Opinion of Orrick, Herrington & Sutcliffe LLP
23.1			Consent of EisnerAmper LLP, independent registered public accounting firm
23.2			Consent of Orrick, Herrington & Sutcliffe LLP (included in Exhibit 5.1)
24.1			Powers of Attorney (included on signature page)
25.1**			Form T-1 Statement of Eligibility of Trustee

				ANI PHARMACEUTICALS, INC.
				By:			/s/ Patrick D. Walsh
							Patrick D. Walsh Interim President and Chief Executive Officer and Director

Name	Title	Date
/s/ Patrick D. Walsh Patrick D. Walsh	Interim President and Chief Executive Officer and Director (Principal Executive Officer)	July 9, 2020
/s/ Stephen Carey Stephen Carey	Vice President, Finance and Chief Financial Officer (Principal Financial and Accounting Officer)	July 9, 2020
/s/ Robert E. Brown Jr. Robert E Brown, Jr.	Director	July 9, 2020
/s/ Thomas Haughey Thomas Haughey	Director	July 9, 2020
/s/ David B. Nash, M.D. David B. Nash, M.D.	Director	July 9, 2020

Trust Indenture Act Section		Indenture Section
(S)310(a)(1)		6.8
(a)(2)		6.8
(b)		6.9
(S)312(a)		7.1
(b)		7.2
(c)		7.2
(S)313(a)		7.3
(b)(2)		7.3
(c)		7.3
(d)		7.3
(S)314(a)		7.4
(c)(1)		1.2
(c)(2)		1.2
(e)		1.2
(f)		1.2
(S)316(a) (last sentence)		1.1
(a)(1)(A)		5.2, 5.12
(a)(1)(B)		5.13
(b)		5.8
(S)317(a)(1)		5.3
(a)(2)		5.4
(b)		10.3
(S)318(a)		1.8

		Page

ARTICLE 1	DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	1

Section 1.1	Definitions; Rules of Construction	1
Section 1.2	Compliance Certificates and Opinions	5
Section 1.3	Form of Documents Delivered to Trustee	6
Section 1.4	Acts of Holders	6
Section 1.5	Notices, etc., to Trustee and Company	7
Section 1.6	Notice to Holders of Securities; Waiver	7
Section 1.7	Language of Notices	7
Section 1.8	Incorporation by Reference of Trust Indenture Act; Trust Indenture Act Controls	7
Section 1.9	Effect of Headings and Table of Contents	7
Section 1.10	Successors and Assigns	7
Section 1.11	Separability Clause	7
Section 1.12	Benefits of Indenture	8
Section 1.13	Governing Law; Waiver of Trial by Jury	8
Section 1.14	Legal Holidays	8
Section 1.15	Counterparts	8
Section 1.16	Judgment Currency	8
Section 1.17	Limitation on Individual Liability	8

ARTICLE 2	SECURITIES FORMS	8

Section 2.1	Forms Generally	8
Section 2.2	Form of Trustee’s Certificate of Authentication	9
Section 2.3	Securities in Global Form	9

ARTICLE 3	THE SECURITIES	9

Section 3.1	Amount Unlimited; Issuable in Series	9
Section 3.2	Currency; Denominations	11
Section 3.3	Execution; Authentication; Delivery and Dating	11
Section 3.4	Temporary Securities	12
Section 3.5	Registration; Transfer and Exchange	12
Section 3.6	Mutilated, Destroyed, Lost and Stolen Securities	14
Section 3.7	Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional Amounts Preserved	14
Section 3.8	Persons Deemed Owners	15
Section 3.9	Cancellation	15
Section 3.10	Computation of Interest	15
Section 3.11	CUSIP and ISIN Numbers	15

ARTICLE 4	SATISFACTION AND DISCHARGE OF INDENTURE	16

Section 4.1	Satisfaction and Discharge	16
Section 4.2	Defeasance and Covenant Defeasance	16
Section 4.3	Application of Trust Money	18
Section 4.4	Qualifying Trustee	18

ARTICLE 5	REMEDIES	18

Section 5.1	Events of Default	18
Section 5.2	Acceleration of Maturity; Rescission and Annulment	19
Section 5.3	Collection of Indebtedness and Suits for Enforcement by Trustee	19
Section 5.4	Trustee May File Proofs of Claim	20
Section 5.5	Trustee May Enforce Claims without Possession of Securities	20
Section 5.6	Application of Money Collected	20
Section 5.7	Limitations on Suits	20
Section 5.8	Unconditional Right of Holders to Receive Principal and any Premium, Interest and Additional Amounts	21
Section 5.9	Restoration of Rights and Remedies	21
Section 5.10	Rights and Remedies Cumulative	21
Section 5.11	Delay or Omission Not Waiver	21
Section 5.12	Control by Holders of Securities	21
Section 5.13	Waiver of Past or Existing Defaults	21
Section 5.14	Waiver of Stay or Extension Laws	22
Section 5.15	Undertaking for Costs	22

ARTICLE 6	THE TRUSTEE	22

Section 6.1	Certain Duties and Responsibilities	22
Section 6.2	Certain Rights of Trustee	22
Section 6.3	Notice of Defaults	23
Section 6.4	Not Responsible for Recitals or Issuance of Securities	24
Section 6.5	May Hold Securities	24

Section 6.6	Money Held in Trust	24
Section 6.7	Compensation and Reimbursement	24
Section 6.8	Corporate Trustee Required; Eligibility; Conflicting Interests	24
Section 6.9	Resignation and Removal; Appointment of Successor	25
Section 6.10	Acceptance of Appointment by Successor	25
Section 6.11	Merger; Conversion; Consolidation; or Succession to Business	26
Section 6.12	Appointment of Authenticating Agent	26

ARTICLE 7	HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY	27

Section 7.1	Company to Furnish Trustee Names and Addresses of Holders	27
Section 7.2	Preservation of Information; Communications to Holders	27
Section 7.3	Reports by Trustee	27
Section 7.4	Reports by Company	27

ARTICLE 8	CONSOLIDATION, MERGER AND SALES	28

Section 8.1	Company May Consolidate, etc., Only on Certain Terms	28
Section 8.2	Successor Person Substituted for Company	28

ARTICLE 9	SUPPLEMENTAL INDENTURES	28

Section 9.1	Supplemental Indentures Without Consent of Holders	28
Section 9.2	Supplemental Indentures With Consent of Holders	29
Section 9.3	Execution of Supplemental Indentures	30
Section 9.4	Revocation of Consents	30
Section 9.5	Effect of Supplemental Indentures	30
Section 9.6	Reference in Securities to Supplemental Indentures	30
Section 9.7	Conformity with Trust Indenture Act	30
Section 9.8	Notice of Supplemental Indenture	30

ARTICLE 10	COVENANTS	31

Section 10.1	Payment of Principal, any Premium, Interest and Additional Amounts	31
Section 10.2	Maintenance of Office or Agency	31
Section 10.3	Money for Securities Payments to Be Held in Trust	31
Section 10.4	Additional Amounts	32
Section 10.5	Waiver of Certain Covenants	32
Section 10.6	Company Statement as to Compliance	32

ARTICLE 11	REDEMPTION OF SECURITIES	32

Section 11.1	Applicability of Article	32
Section 11.2	Election to Redeem; Notice to Trustee	32
Section 11.3	Selection by Trustee of Securities to be Redeemed	33
Section 11.4	Notice of Redemption	33
Section 11.5	Deposit of Redemption Price	34
Section 11.6	Securities Payable on Redemption Date	34
Section 11.7	Securities Redeemed in Part	34
Section 11.8	Repurchases on the Open Market	34

ARTICLE 12	SINKING FUNDS	34

Section 12.1	Applicability of Article	34
Section 12.2	Satisfaction of Sinking Fund Payments with Securities	34
Section 12.3	Redemption of Securities for Sinking Fund	35

ARTICLE 13	REPAYMENT AT THE OPTION OF HOLDERS	35

Section 13.1	Applicability of Article	35

ARTICLE 14	SECURITIES IN FOREIGN CURRENCIES	35

Section 14.1	Applicability of Article	35

ARTICLE 15	MEETINGS OF HOLDERS OF SECURITIES	35

Section 15.1	Purposes for Which Meetings May Be Called	35
Section 15.2	Call, Notice and Place of Meetings	35
Section 15.3	Persons Entitled to Vote at Meetings	36
Section 15.4	Quorum; Action	36
Section 15.5	Determination of Voting Rights; Conduct and Adjournment of Meetings	36
Section 15.6	Counting Votes and Recording Action of Meetings	37

	(i)	the Company, by or pursuant to a Company Order, may remove the Trustee with respect to all Securities or the Securities of such series, or

	(ii)	subject to Section 5.15, any Holder of a Security who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of such series and the appointment of a successor Trustee or Trustees.

	______________________, as Trustee

	By:
		As Authenticating Agent

	By:
		Authorized Officer


	ANI PHARMACEUTICALS, INC.

	By:
	Name:
	Title:

	_____________________________,
	as Trustee

	By:
	Name:
	Title:



	Orrick, Herrington & Sutcliffe LLP
	The Orrick Building
	405 Howard Street
	San Francisco, CA 94105-2669
	+1-415-773-5700
	orrick.com

	By:
	Authorized Signatory

	Dated: