posam
As filed with the Securities and Exchange Commission on April 15, 2009
Registration No. 333-149125
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
POST-EFFECTIVE AMENDMENT NO. 1
To
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
AVANIR Pharmaceuticals, Inc.
(Exact name of Registrant as specified in its charter)
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Delaware
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33-0314804 |
(State or other jurisdiction of
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(I.R.S. Employer |
incorporation or organization)
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Identification No.) |
101 Enterprise, Suite 300, Aliso Viejo, California 92656 (949) 389-6700
(Address, including zip code, and telephone number, including area code, of
Registrants principal executive offices)
Keith A. Katkin
Chief Executive Officer
101 Enterprise, Suite 300, Aliso Viejo, California 92656
(949) 389-6700
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Ryan A. Murr
Goodwin Procter LLP
Three Embarcadero Center, 24th Floor
San Francisco, California 94111
Telephone: (415) 733-6000
Facsimile: (415) 677-9041
Approximate date of commencement of proposed sale to the public: From time to time or at one
time after the effective date of the Registration Statement as the Registrant shall determine.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following
box. þ
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 number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
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Large accelerated filer o |
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Accelerated filer o |
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Non-accelerated filer o
(Do not check if a smaller reporting company) |
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Smaller reporting company þ |
CALCULATION OF REGISTRATION FEE
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Amount |
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Proposed Maximum |
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Proposed Maximum |
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Amount of |
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Title of Securities |
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to be |
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Offering Price |
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Aggregate |
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Registration |
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to be Registered |
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Registered |
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per Share |
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Offering Price |
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Fee |
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See Below (1)
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N/A
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N/A
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N/A
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N/A |
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(1) |
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The Registrant is not registering additional securities. Registration
fees were originally paid by the Registrants predecessor-in-interest
upon filing of the original registration statement on Form S-3 (File
No. 333-149125). Consequently, no additional registration fees are
required with respect to the filing of this Post-Effective Amendment
No. 1. |
TABLE OF CONTENTS
EXPLANATORY STATEMENT
Reincorporation; Assumption of Registration Statement
Avanir Pharmaceuticals, Inc., a Delaware corporation, (Avanir Delaware or the Registrant),
as successor to Avanir Pharmaceuticals, a California corporation (Avanir California), is filing
this Post-Effective Amendment No. 1 to registration statement on Form S-3, File No. 333-149125 (the
Registration Statement), pursuant to Rule 414 promulgated under the Securities Act of 1933, as
amended (the Securities Act), solely to update the Registration Statement as a result of the
Registrants reincorporation in the State of Delaware from the State of California (the
Reincorporation).
The Reincorporation was completed on March 23, 2009 and was effected through a merger of
Avanir California with and into Avanir Delaware, a wholly-owned subsidiary of Avanir California,
with Avanir Delaware remaining as the surviving entity and thereby acquiring all of the assets and
assuming all of the liabilities and obligations of Avanir California. The Reincorporation was
approved by the shareholders of Avanir California at the annual meeting of shareholders held on
February 19, 2009 for which proxies were solicited pursuant to Section 14(a) of the Securities
Exchange Act of 1934, as amended (the Exchange Act).
In accordance with paragraph (d) of Rule 414 of the Securities Act, except as modified by this
Post-Effective Amendment No. 1, the Registrant, as successor issuer to Avanir California pursuant
to Rule 12g-3 promulgated under the Exchange Act, hereby expressly adopts the Registration
Statement as its own registration statement for all purposes of the Securities Act and the Exchange
Act, as updated by subsequent filings under the Exchange Act, including, but not limited to, Avanir
Californias most recent annual report on Form 10-K and Avanir Delawares description of the common
stock as set forth on Form 8-A/A. The Registration Statement, updated as described above,
represents the current prospectus for the Registrant.
Pursuant to the Registration Statement, Avanir California originally registered up to $25
million in aggregate principal amount of its common stock, preferred stock, depositary shares, debt
securities and/or warrants. At the time of the Reincorporation, warrants issued under the
Registration Statement pursuant to a prospectus supplement filed with the SEC on March 27, 2008
remained exercisable for up to 12,240,437 shares of common stock at an exercise price of $1.43 per
share. This Post-Effective Amendment No. 1 relates solely to the warrants and the $17.5 million in
aggregate principal amount of shares of common stock available for issuance upon exercise of those
warrants. The applicable registration fees were paid at the time of the original filing of the
Registration Statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 15. Indemnification of Directors and Officers.
The Registrants Certificate of Incorporation (the Certificate) provides that, to the extent
permitted by applicable law, the Registrants directors shall not be personally liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty as directors of
the Registrant. The Certificate eliminates the personal liability of directors to the fullest
extent permitted by the Delaware General Corporation Law and, together with the Registrants
Bylaws, provides that the Registrant shall fully indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding
(whether civil, criminal, administrative or investigative) by reason of the fact that such person
is or was a director or officer of the Registrant, or is or was serving at the request of the
Registrant as a director or officer of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including attorneys fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding. The Registrant has also obtained liability insurance for its
officers and directors and has assumed indemnification agreements that the predecessor California
corporation had entered into with its directors and officers.
Item 16. Exhibits.
The following documents are filed herewith (unless otherwise indicated) and made a part of
this registration statement.
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Exhibit |
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No. |
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Description of Exhibit |
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3.1 |
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Certificate of Incorporation of Avanir Pharmaceuticals, Inc. (1) |
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3.2 |
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Bylaws of Avanir Pharmaceuticals, Inc. (1) |
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3.3 |
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Certificate of Ownership and Merger merging Avanir Pharmaceuticals, a California
corporation, with and into Avanir Pharmaceuticals, Inc., a Delaware corporation
(1) |
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4.1 |
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Form of Common Stock Certificate (1) |
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4.2 |
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Certificate of Designations of Series A Junior Participating Cumulative Preferred Stock (2) |
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4.3 |
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Stockholder Rights Agreement, dated as of March 20, 2009, by and between Avanir
Pharmaceuticals, Inc. and American Stock Transfer & Trust Company, LLC (2) |
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4.4 |
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Form of Rights Certificate with respect to the Stockholder Rights Agreement (filed as part
of Exhibit 4.3) (2) |
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4.5 |
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Form of Common Stock Warrant, issued in connection with the Subscription Agreement dated
March 26, 2008 (3) |
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5.1 |
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Opinion of Goodwin Procter LLP |
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23.1 |
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Consent of Goodwin Procter LLP (filed as part of Exhibit 5.1) |
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23.2 |
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Consent of KMJ Corbin & Company LLP |
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24.1 |
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Power of Attorney (included on signature page) |
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(1) |
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Incorporated by reference to the similarly described exhibit included
with the Registrants Current Report on Form 8-K, filed March 25,
2009. |
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(2) |
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Incorporated by reference to the similarly described exhibit included
with the Registrants Amended Registration Statement on Form 8-A/A,
File No. 001-15803, filed March 25, 2009. |
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(3) |
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Incorporated by reference to the similarly described exhibit included
with the Registrants Current Report on Form 8-K, filed March 27,
2008. |
Item 17. Undertakings.
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.
(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) of this section 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 this 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 the
prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement or prospectus that
is part of the registration statement will, as to a purchaser with a time of contract of sale prior
to such effective date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of this Registration Statement or made in any such document
immediately prior to such effective date.
(5) That, for the purpose of determining liability of the Registrant under the Securities Act
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
the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act (and, where applicable, each filing of an employee benefit
plans annual report pursuant to Section 15(d) of the Securities Exchange Act) that is incorporated
by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered herein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act, as amended, 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 SEC
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.
The undersigned Registrant hereby further 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 under 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.
(2) For the purpose of determining any liability under the Securities Act, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
* * *
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Post-Effective Amendment No. 1 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city of Aliso Viejo, California, on
April 15, 2009
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Avanir Pharmaceuticals, Inc.
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By: |
/s/ Keith A. Katkin
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Keith A. Katkin |
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President and Chief Executive Officer |
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POWER OF ATTORNEY
Each of the undersigned hereby constitutes and appoints each of Keith A. Katkin and Christine
G. Ocampo as his or her attorney-in-fact, with power of substitution, in his or her name and in the
capacity indicated below, to sign any and all further amendments (including post-effective
amendments) to this registration statement on Form S-3 and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact, or his or her substitute or substitutes,
may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons in the capacities and on the date indicated.
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Signature |
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Title |
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Date |
/s/ Keith A. Katkin
Keith A. Katkin
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President, Chief Executive Officer and
Director (Principal
Executive Officer)
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April 15, 2009 |
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/s/ Christine G. Ocampo
Christine G. Ocampo
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Vice President, Finance (Principal
Financial and Accounting Officer)
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April 15, 2009 |
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/s/ Stephen G. Austin
Stephen G. Austin
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Director
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April 15, 2009 |
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/s/ Charles A. Mathews
Charles A. Mathews
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Director
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April 15, 2009 |
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/s/ David J. Mazzo, Ph.D.
David J. Mazzo, Ph.D.
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Director
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April 15, 2009 |
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/s/ Dennis G. Podlesak
Dennis G. Podlesak
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Director
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April 15, 2009 |
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/s/ Nicholas J. Simon
Nicholas J. Simon
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Director
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April 15, 2009 |
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/s/ Craig A. Wheeler
Craig A. Wheeler
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Director
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April 15, 2009 |
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/s/ Scott M. Whitcup, M.D.
Scott M. Whitcup, M.D.
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Director
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April 15, 2009 |
AVANIR PHARMACEUTICALS, INC.
EXHIBIT INDEX
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Exhibit |
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No. |
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Description of Exhibit |
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3.1 |
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Certificate of Incorporation of Avanir Pharmaceuticals, Inc. (1) |
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3.2 |
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Bylaws of Avanir Pharmaceuticals, Inc. (1) |
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3.3 |
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Certificate of Ownership and Merger merging Avanir Pharmaceuticals, a California
corporation, with and into Avanir Pharmaceuticals, Inc., a Delaware corporation
(1) |
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4.1 |
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Form of Common Stock Certificate (1) |
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4.2 |
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Certificate of Designations of Series A Junior Participating Cumulative Preferred Stock (2) |
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4.3 |
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Stockholder Rights Agreement, dated as of March 20, 2009, by and between Avanir
Pharmaceuticals, Inc. and American Stock Transfer & Trust Company, LLC (2) |
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4.4 |
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Form of Rights Certificate with respect to the Stockholder Rights Agreement (filed as part
of Exhibit 4.3) (2) |
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4.5 |
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Form of Common Stock Warrant, issued in connection with the Subscription Agreement dated
March 26, 2008 (3) |
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5.1 |
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Opinion of Goodwin Procter LLP |
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23.1 |
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Consent of Goodwin Procter LLP (filed as part of Exhibit 5.1) |
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23.2 |
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Consent of KMJ Corbin & Company LLP |
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24.1 |
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Power of Attorney (included on signature page) |
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(1) |
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Incorporated by reference to the similarly described exhibit included
with the Registrants Current Report on Form 8-K, filed March 25,
2009. |
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(2) |
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Incorporated by reference to the similarly described exhibit included
with the Registrants Amended Registration Statement on Form 8-A/A,
File No. 001-15803, filed March 25, 2009. |
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(3) |
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Incorporated by reference to the similarly described exhibit included
with the Registrants Current Report on Form 8-K, filed March 27,
2008. |