Maryland
(State or other jurisdiction of
incorporation or organization)
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33-0724736
(I.R.S. Employer
Identification Number)
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10 North Park Place, Suite 201
Morristown, New Jersey 07960
(800) 793-2145
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)
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Copies to:
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Thomas S. Levato, Esq.
Goodwin Procter LLP
The New York Times Building
620 Eighth Avenue
New York, New York 10018
(212) 813-8800
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Large accelerated filer o
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Accelerated filer x
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Non-accelerated filer o (Do not check if a smaller reporting company)
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Smaller reporting company o
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Title of each class of securities
to be registered
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Amount
to be
registered (1)(2)
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Proposed maximum
offering price per share (3)
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Proposed maximum
aggregate offering
price (3)
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Amount of
registration fee (4)
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||||
Common Stock, $0.01 par value
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14,545,578 shares
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$5.28
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$76,800,652
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$8,925
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||||
(1)
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This amount represents shares to be offered by the Selling Stockholders from time to time after the effective date of this Registration Statement at prevailing market prices at time of sale. Pursuant to Rule 416 under the Securities Act, the shares being registered hereunder include such indeterminate number of shares of common stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.
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(2)
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The number of shares of common stock includes 14,268,209 issued shares of common stock and 277,369 shares of common stock issuable upon exercise of certain of the Company's outstanding warrants to purchase common stock.
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(3)
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Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457 under the Securities Act. The price per share and aggregate offering price are based on the average of the high and low sales prices of the registrant’s common stock on July 24, 2015, as reported on The NASDAQ Global Market.
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(4)
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$ 20,035 was previously paid by the Registrant on November 7, 2014 in connection with the filing of the Registrant's Registration Statement on Form S-3 (File No. 333-200011), which is amended hereby. |
●
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Up to 3,500,000 shares of our outstanding common stock acquired by one of the Selling Stockholders in a privately negotiated transaction;
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●
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Up to 8,952,866 shares of our common stock issued to certain of the Selling Stockholders in April and May 2015 upon conversion of 8.00% Convertible Senior Notes due 2019 that we issued to these Selling Stockholders in a private placement on February 21, 2014 and the subsequent agreement to induce conversion as of April 16, 2015;
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●
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Up to 277,369 shares of our common stock which may be acquired by one of the Selling Stockholders upon exercise of warrants that we issued on a private placement basis to this Selling Stockholder in connection with our issurance of 8.00% Convertible Senior Notes due 2019 and up to 133,257 shares of our common stock acquired by this Selling Stockholder upon partial exercise of the warrant; and |
●
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Up to 1,682,086 shares of common stock acquired by one of the Selling Stockholders as partial consideration under our previously announced asset purchase agreement dated as of March 10, 2015, as amended.
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Page
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About This Prospectus
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1
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Cautionary Note Regarding Forward-Looking Statements
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2
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Our Company
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3
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Risk Factors
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4
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Use of Proceeds
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4
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Selling Stockholders
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5
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Description of Our Capital Stock
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8
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Description of Certain Provisions of Maryland Law and Our Certificate Of Incorporation and By-Laws
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11
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Plan of Distribution
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15
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Legal Matters
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17
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Experts
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18
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Documents Incorporated by Reference
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18
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Where You Can Find More Information
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19
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Name and Address
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Number of Shares Beneficially Owned Prior to Offering | Number of Shares Registered for Sale | Number of Shares to be Owned after The Offering (1) |
Percent of Outstanding Shares to be Owned after
The Offering (1)
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||||||||||||
Cetus Capital II, LLC (2)
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2,717,866 | 2,717,866 |
__
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__
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Littlejohn Opportunities Master Fund LP (3)
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744,660 | 744,660 |
__
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__
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SG Distressed Fund, LP (4)
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391,337 | 391,337 |
__
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__
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Broadfin Healthcare Master Fund, Ltd. (5)
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3,500,000 | 3,500,000 |
__
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__
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Athyrium Opportunities Fund (A) LP (6)
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3,290,786 | 3,290,786 |
__
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__
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Athyrium Opportunities Fund (B) LP (7)
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1,808,217 | 1,808,217 |
__
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__
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Frontline Pharmaceuticals, LLC (8) | 410,626 | 410,626 |
__
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__
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Zogenix, Inc. (9) | 1,682,086 | 1,682,086 |
__
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__
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(1)
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We do not know when or in what amounts the Selling Stockholders will offer shares for sale, if at all. The Selling Stockholders may sell any or all of the shares included in and offered by this prospectus. Because the Selling Stockholders may offer all or some of the shares pursuant to this offering, we cannot estimate the number of shares that will be held by the Selling Stockholders after completion of the offering. However, for purposes of this table, we have assumed that after completion of the offering, none of the shares included in and covered by this prospectus will be held by the Selling Stockholders.
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(2)
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The address of Cetus Capital II, LLC is 8 Sound Shore Drive, Suite 303, Greenwich, CT 06830. Littlejohn Fund IV, L.P. is the sole member of Cetus Capital II, LLC, and Littlejohn Fund IV, L.P. is managed by Littlejohn Managers LLC. Robert E. Davis and Richard E. Maybaum are the portfolio managers for Cetus Capital II, LLC. Each of Littlejohn Fund IV, L.P., Littlejohn Managers LLC, Mr. Davis, and Mr. Maybaum has voting and investment power over these securities, and each of them disclaim beneficial ownership of the securities reported herein.
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(3)
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The address of Littlejohn Opportunities Master Fund LP is 8 Sound Shore Drive, Suite 303, Greenwich, CT 06830. Littlejohn Opportunities GP is the general partner of Littlejohn Opportunities Master Fund LP. Robert E. Davis and Richard E. Maybaum are the portfolio managers for Littlejohn Opportunities Master Fund LP. Each of Littlejohn Opportunities GP, Mr. Davis and Mr. Maybaum has voting and investment power over these securities, and each of them disclaim beneficial ownership of the securities reported herein.
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(4)
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The address of SG Distressed Fund, LP is 8 Sound Shore Drive, Suite 303, Greenwich, CT 06830. Littlejohn Opportunities GP is the general partner of SG Distressed Fund, LP Robert E. Davis and Richard E. Maybaum are the portfolio managers for SG Distressed Fund, LP. Each of Littlejohn Opportunities GP, Mr. Davis and Mr. Maybaum has voting and investment power over these securities, and each of them disclaims beneficial ownership of the securities reported herein.
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(5)
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The address of Broadfin Healthcare Master Fund, Ltd. (“Broadfin”) is 20 Genesis Close Ansbacher House, Second Floor, P.O. Box 1344, Grand Cayman KY1-1108, Cayman Islands and the business address of each of Broadfin Capital, LLC and Kevin Kotler is 237 Park Avenue, 9th Floor, New York, NY 10017. Broadfin Capital, LLC and Kevin Kotler have shared voting and investment control of the securities held by Broadfin. Mr. Kotler is the managing member of Broadfin Capital, LLC.
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(6)
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The address of Athyrium Opportunities Fund (A) LP, or Fund (A), is c/o Athyrium Capital Management, LP, 530 Fifth Avenue, Floor 25, New York, NY 10036. Athyrium Opportunities Associates LP, or Associates LP, is the general partner of Fund (A) and Athyrium Opportunities Associates GP LLC, or Associates GP, is the general partner of Associates LP. Athyrium Capital Management, LP, or ACM, is a member of Associates GP and an investment adviser to Athyrium Opportunities Advisers LLC, or Opportunities Advisers. Athyrium Capital Holdings, LLC, or ACH, is the general partner of ACM. Jeffrey A. Ferrell is the Managing Member of ACH. Opportunities Advisers is an investment adviser to Associates GP. NB Alternatives Advisers LLC, or Alternatives Advisers, is the sole member of Opportunities Advisers. NB Alternatives GP Holdings LLC, or Alternatives GP, is a member of Associates GP. NB Alternatives Holdings LLC, or Alternatives Holdings, is the sole member of Alternatives GP and a member of Alternatives Advisers. Neuberger Berman AA LLC, NB AA, is a member of Alternatives Holdings and of Alternatives Advisers. Neuberger Berman Group LLC, NB Group, is a member of Alternatives Holdings and the sole member of NB AA. Based on the foregoing, Associates LP, Associates GP, ACM, ACH, Jeffrey A. Ferrell, Opportunities Advisers, Alternatives Advisers, Alternatives GP, Alternatives Holdings, NB AA and NB Group may be deemed to have indirect beneficial ownership of the securities held by Fund (A) and may be deemed to have shared voting and investment control over the securities held by Fund (A). The 8.00% Convertible Senior Notes due 2019 acquired by this selling stockholder provide that such selling stockholder may not convert its notes if the conversion would cause its and its affiliates’ combined beneficial ownership of our common stock (excluding shares underlying any of its unconverted notes) to exceed 9.9% of the outstanding shares of our common stock. Therefore, although included in the table above, the number of shares of common stock for this selling stockholder includes shares that may not be acquired upon conversion during a given 60-day period used for purpose of determining beneficial ownership.
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(7)
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The address of Athyrium Opportunities Fund (B) LP, or Fund (B), is c/o Athyrium Capital Management, LP, 530 Fifth Avenue, Floor 25, New York, NY 10036. Athyrium Opportunities Associates LP, or Associates LP, is the general partner of Fund (A) and Athyrium Opportunities Associates GP LLC, or Associates GP, is the general partner of Associates LP. Athyrium Capital Management, LP, or ACM, is a member of Associates GP and an investment adviser to Athyrium Opportunities Advisers LLC, or Opportunities Advisers. Athyrium Capital Holdings, LLC, or ACH, is the general partner of ACM. Jeffrey A. Ferrell is the Managing Member of ACH. Opportunities Advisers is an investment adviser to Associates GP. NB Alternatives Advisers LLC, or Alternatives Advisers, is the sole member of Opportunities Advisers. NB Alternatives GP Holdings LLC, or Alternatives GP, is a member of Associates GP. NB Alternatives Holdings LLC, or Alternatives Holdings, is the sole member of Alternatives GP and a member of Alternatives Advisers. Neuberger Berman AA LLC, NB AA, is a member of Alternatives Holdings and of Alternatives Advisers. Neuberger Berman Group LLC, NB Group, is a member of Alternatives Holdings and the sole member of NB AA. Based on the foregoing, Associates LP, Associates GP, ACM, ACH, Jeffrey A. Ferrell, Opportunities Advisers, Alternatives Advisers, Alternatives GP, Alternatives Holdings, NB AA and NB Group may be deemed to have indirect beneficial ownership of the securities held by Fund (B) and may be deemed to have shared voting and investment control over the securities held by Fund (B). The 8.00% Convertible Senior Notes due 2019 acquired by this selling stockholder provide that such selling stockholder may not convert its notes if the conversion would cause its and its affiliates’ combined beneficial ownership of our common stock (excluding shares underlying any of its unconverted notes) to exceed 9.9% of the outstanding shares of our common stock. Therefore, although included in the table above, the number of shares of common stock for this selling stockholder includes shares that may not be acquired upon conversion during a given 60-day period used for purpose of determining beneficial ownership.
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(8) |
The address of Frontline Pharmaceuticals, LLC is 50 W. Skippack Pike, Ambler, PA 19002. Includes up to 277,369 shares of common stock issuable upon exercise of a warrant issued to Frontline Pharmaceuticals, LLC by Pernix on a private placement basis in connection with the sale by the Company in February 2014 of $65,000,000 in principal amount of its 8.00% Convertible Senior Notes due 2019. The exercise price is equal to $3.60 per share and the warrant is exercisable until August 21, 2015. Timothy Reese, the managing partner of Frontline Pharmaceuticals, LLC, exercises voting and investment control over the warrants and the underlying common stock held by such selling stockholder.
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(9) | The address of Zogenix, Inc. is 2400 High Bluff Drive, Suite 650, San Diego, CA. Zogenix, Inc. is a publicly traded company and its executive officers, as authorized by its board of directors, exercise voting and investment control over the shares of common stock held by such selling stockholder. |
Selling Stockholder
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Dollar Amount/Payment In Connection with Issuance (1)
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Total Possible Payments During the First Year (2)
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Cetus Capital II, LLC
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-- | $ | 780,811 | |||||
Littlejohn Opportunities Master Fund LP
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-- | $ | 215,969 | |||||
SG Distressed Fund, LP
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-- | $ | 110,753 | |||||
Athyrium Opportunities Fund (A) LP
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-- | $ | 2,253,628 | |||||
Athyrium Opportunities Fund (B) LP
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-- | $ | 1,246,180 |
(1)
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The Company was not required to pay, and no Selling Stockholder having shares registered for resale under the registration statement to which this prospectus forms a part received, payment from the Company in connection with the issuance of the 8.00% Convertible Senior Notes due 2019.
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(2)
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The 8.00% Convertible Senior Notes due 2019 bear interest at a rate of 8.00% per annum, payable quarterly in arrears on March 15, June 15, September 15 and December 15, beginning on June 15, 2014. The aggregate amount of interest payable by the Company to the Selling Stockholders through March 15, 2015 shall equal $4,607,341.
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●
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is the beneficial owner, directly or indirectly, of 10% or more of the voting power of the outstanding voting stock of the corporation, or
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●
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is an affiliate or associate of the corporation who, at any time within the two-year period prior to the date in question, was the beneficial owner, directly or indirectly, of 10% or more of the voting power of the then outstanding voting stock of the corporation.
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●
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80% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation, and
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●
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two-thirds (2/3) of the votes entitled to be cast by holders of voting stock of the corporation other than shares held by the interested stockholder with whom (or with whose affiliate) the business combination is to be effected or by an affiliate or associate of the interested stockholder voting together in a single voting group, unless, among other conditions, the corporation’s common stockholders receive a minimum price (as described in the MGCL) for their shares and the consideration is received in cash or in the same form as previously paid by the interested stockholder for its shares.
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●
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a person who makes or proposes to make a control share acquisition,
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●
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an officer of the corporation, or
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●
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an employee of the corporation who is also a director of the corporation.
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●
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one-tenth or more but less than one-third,
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●
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one-third or more but less than a majority, or
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●
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a majority or more of all voting power.
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●
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with respect to an annual meeting of stockholders, nominations of individuals for election to our board of directors and the proposal of business to be considered by stockholders may be made only:
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● | pursuant to our notice of the meeting; | |
● | by or at the direction of our board of directors; or | |
● | by a stockholder who is entitled to vote at the meeting and has complied with the advance notice procedures set forth in our by-laws; and | |
●
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with respect to special meetings of stockholders, only the business specified in our company’s notice of meeting may be brought before the meeting of stockholders and nominations of individuals for election to our board of directors may be made only pursuant to our notice of the meeting, provided that the president, a majority of the board of directors (or of the independent directors) or the secretary of the company (upon request of holders of shares entitled to cast a majority of all the votes entitled to be cast at such meeting), shall be permitted to call and propose matters to be acted on at a special meeting.
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●
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ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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●
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block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction;
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●
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purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
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●
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an exchange distribution in accordance with the rules of the applicable exchange;
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privately negotiated transactions;
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●
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short sales effected after the date the registration statement of which this prospectus is a part is declared effective by the SEC;
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●
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loans to broker-dealers or other financial institutions that in turn may sell the shares;
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●
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through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
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●
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broker-dealers may agree with the Selling Stockholders to sell a specified number of such shares at a stipulated price per share;
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●
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by pledge to secure debts and other obligations or on foreclosure of a pledge;
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●
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a combination of any such methods of sale; and
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●
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any other method permitted by applicable law.
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1.
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2014;
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2.
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Our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2015;
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3.
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Our Current Reports on Form 8-K or 8-K/A as filed on January 27, 2015, January 30, 2015, March 12, 2015, April 8, 2015, April 16, 2015, April 17, 2015, April 24, 2015, April 29, 2015, May 4, 2015, June 16, 2015, June 22, 2015 and July 28, 2015;
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4.
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Our Definitive Proxy Statement on Schedule 14A as filed on May 8, 2015; and
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5.
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The description of our capital stock contained in Form 8-A filed with the SEC on February 7, 1997, as amended by that certain Form 8-A filed with the SEC on March 15, 2010.
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SEC Registration Fee
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$ | 8,925 | ||
Legal Fees and Expenses
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$ | 50,000 | ||
Accounting Fees and Expenses
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$ | 7,500 | ||
Printing and Miscellaneous Fees
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$ | 33,575 | ||
Total
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$ | 100,000 |
PERNIX THERAPEUTICS HOLDINGS, INC.
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|||
By:
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/s/ Douglas L. Drysdale | ||
Douglas L. Drysdale | |||
President and Chief Executive Officer
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|||
Signature
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Title
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Date
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/s/ Douglas L. Drysdale
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President, Chief Executive Officer and Chairman
(Principal Executive Officer)
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July 28, 2015
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Douglas L. Drysdale
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||||
/s/ Sanjay S. Patel
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Chief Financial Officer
(Principal Financial Officer)
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July 28, 2015
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Sanjay S. Patel
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/s/ Michael Golembiewski
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Vice President of Accounting and
Corporate Controller
(Principal Accounting Officer)
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July 28, 2015
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Michael Golembiewski
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* |
Director
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July 28, 2015
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Steven A. Elms
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* |
Director
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July 28, 2015
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John Sedor
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* |
Director
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July 28, 2015
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Anastasios Konidaris
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*By: |
/s/ Douglas L. Drysdale
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Douglas L. Drysdale
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|||||
Attorney in fact
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Exhibit No.
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Description of Documents
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3.1
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Articles of Incorporation of Pernix Therapeutics Holdings, Inc. (1)
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3.2
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By-laws of Pernix Therapeutics Holdings, Inc. (1)
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3.3 | Articles of Amendment of Pernix Therapeutics Holdings, Inc. (9) | |
4.1
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Form of certificate representing shares of common stock of Pernix Therapeutics Holdings, Inc. (2)
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4.2
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Indenture, dated February 21, 2014, by and between Pernix Therapeutics Holdings, Inc. and Wilmington Trust, National Association (3)
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4.3
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Form of 8.00% Convertible Senior Note due 2019 (included in Exhibit 4.2) (3)
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4.4
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Form of Registration Rights Agreement, dated February 21,2014, by and between Pernix Therapeutics Holdings, Inc. and the Investors party thereto (3)
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4.5 |
First Supplemental Indenture, dated as of August 19, 2014, among Pernix Therapeutics Holdings, Inc. and Wilmington Trust, National Association, as Trustee. (4)
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4.6 |
Second Supplemental Indenture, dated as of August 19, 2014, among Pernix Therapeutics Holdings, Inc. and Wilmington Trust, National Association, as Trustee. (4)
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4.7 |
Third Supplemental Indenture, dated as of April 21, 2015, between Pernix Therapeutics Holdings, Inc. and Wilmington Trust, National Association, as Trustee. (5)
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4.8
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Form of Warrant to Purchase Common Stock, dated as of December 31, 2014, issued by Pernix Therapeutics Holdings, Inc. (6)
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5.1 |
Opinion of Goodwin Procter LLP as to the legality of the securities being registered.
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10.1 | Asset Purchase Agreement by and between Pernix Ireland Limited and Zogenix, Inc. dated as of March 10, 2015. (7) | |
10.2 | Amendment to Asset Purchase Agreement, by and among Zogenix, Inc., Pernix Ireland Limited and Pernix Therapeutics Holdings, Inc. dated as of April 23, 2015. (7) | |
10.3 | Inducement Agreement dated as of April 16, 2015 by and among Pernix Therapeutics Holdings Inc. and the parties identified on Schedule 1 thereto (8) | |
23.1 |
Consent of Cherry Bekaert LLP, independent registered public accounting firm.
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23.2 |
Consent of Ernst & Young LLP, Independent A uditors.
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23.3 |
Consent of Goodwin Procter LLP (included in Exhibit 5.1).
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24 |
Powers of Attorney (10).
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(1)
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Incorporated herein by reference to the registrant's Current Report on Form 8-K filed with the SEC on March 15, 2010.
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(2)
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Incorporated herein by reference to the registrant's Annual Report on Form 10-K filed with the SEC on March 29, 2012.
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(3)
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Incorporated herein by reference to the registrant's Current Report on Form 8-K filed with the SEC on February 26, 2014.
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(4)
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Incorporated herein by reference to the registrant's Current Report on Form 8-K filed with the SEC on August 22, 2014.
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(5)
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Incorporated herein by reference to the registrant's Current Report on Form 8-K filed with the SEC on April 24, 2015.
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(6)
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Incorporated herein by reference to the registrant's Registration Statement on Form S-3/A (Amendment No. 1) (File No. 333-200011) filed with the SEC on January 30, 2015.
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(7)
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Incorporated herein by reference to the registrant's Quarterly Report on Form 10-Q filed with the SEC on May 1, 2015.
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(8)
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Incorporated herein by reference to the registrant's Current Report on Form 8-K filed with the SEC on April 17, 2015.
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(9)
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Incorporated herein by reference to the registrant's Current Report on Form 8-K filed with the SEC on July 28, 2015.
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(10)
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Incorporated herein by reference to the registrant's Registration Statement on Form S-3 (File No. 333-200011) filed with the SEC on November 7, 2014.
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