e424b5
Filed
Pursuant to Rule 424(b)(5)
Registration
No. 333-172637
PROSPECTUS
SUPPLEMENT
(To Prospectus dated March 11, 2011)
6,666,667 Shares
Common Stock
We are offering 6,666,667 shares of our common stock. Our
common stock is quoted on the NASDAQ Global Market under the
symbol ANTH. On June 2, 2011, the last reported
sale price of our common stock on the NASDAQ Global Market was
$7.81 per share.
Investing in our common stock involves a high degree of risk.
Please read Risk Factors beginning on
page S-5
of this prospectus supplement and in the documents incorporated
by reference into this 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 supplement or the
accompanying prospectus are truthful or complete. Any
representation to the contrary is a criminal offense.
|
|
|
|
|
|
|
|
|
|
|
Per Share
|
|
Total
|
|
Public offering price
|
|
$
|
7.50
|
|
|
$
|
50,000,002
|
|
Underwriting discounts and commissions
|
|
$
|
0.45
|
|
|
$
|
3,000,000
|
|
Proceeds to Anthera Pharmaceuticals, Inc., before expenses
|
|
$
|
7.05
|
|
|
$
|
47,000,002
|
|
Delivery of the shares of common stock is expected to be made on
or about June 8, 2011. We have granted the underwriters an
option for a period of 30 days to purchase up to an
additional 1,000,000 shares of our common stock solely to
cover over-allotments. If the underwriters exercise the option
in full, the total underwriting discount payable by us will be
$3,450,000 and the total proceeds to us, before expenses, will
be $54,050,002.
Joint Book-Running Managers
Lead Co-Manager
Canaccord Genuity
Prospectus Supplement dated June 3, 2011.
Table of
Contents
|
|
|
|
|
|
|
Page
|
|
PROSPECTUS SUPPLEMENT
|
|
|
|
S-ii
|
|
|
|
|
S-ii
|
|
|
|
|
S-1
|
|
|
|
|
S-5
|
|
|
|
|
S-5
|
|
|
|
|
S-6
|
|
|
|
|
S-7
|
|
|
|
|
S-10
|
|
|
|
|
S-14
|
|
|
|
|
S-14
|
|
|
|
|
S-14
|
|
|
|
|
|
|
|
|
Page
|
|
PROSPECTUS
|
|
|
|
1
|
|
|
|
|
4
|
|
|
|
|
4
|
|
|
|
|
5
|
|
|
|
|
20
|
|
|
|
|
20
|
|
|
|
|
20
|
|
|
|
|
22
|
|
|
|
|
22
|
|
|
|
|
22
|
|
|
|
|
23
|
|
You should rely only on the information contained in or
incorporated by reference in this prospectus supplement, the
accompanying prospectus and in any free writing prospectus that
we have authorized for use in connection with this offering. We
have not, and the underwriters have not, authorized anyone to
provide you with different information. If anyone provides you
with different or inconsistent information, you should not rely
on it. We are not, and the underwriters are not, making an offer
to sell these securities in any jurisdiction where the offer or
sale is not permitted. You should assume that the information in
this prospectus supplement, the accompanying prospectus, the
documents incorporated by reference in this prospectus
supplement and the accompanying prospectus, and in any free
writing prospectus that we have authorized for use in connection
with this offering, is accurate only as of the date of those
respective documents. Our business, financial condition, results
of operations and prospects may have changed since those dates.
You should read this prospectus supplement, the accompanying
prospectus, the documents incorporated by reference in this
prospectus supplement and the accompanying prospectus, and any
free writing prospectus that we have authorized for use in
connection with this offering, in their entirety before making
an investment decision. You should also read and consider the
information in the documents to which we have referred you in
the section of this prospectus supplement entitled
Incorporation of Certain Information by Reference
and the sections of the accompanying prospectus entitled
Incorporation of Certain Information by Reference
and Where You Can Find More Information.
S-i
ABOUT
THIS PROSPECTUS SUPPLEMENT
This prospectus supplement and the accompanying prospectus form
part of a registration statement on
Form S-3
that we filed with the Securities and Exchange Commission, or
SEC, using a shelf registration process. This
document contains two parts. The first part consists of this
prospectus supplement, which provides you with specific
information about this offering. The second part, the
accompanying prospectus, provides more general information, some
of which may not apply to this offering. Generally, when we
refer only to the prospectus, we are referring to
both parts combined. This prospectus supplement may add, update
or change information contained in the accompanying prospectus.
To the extent that any statement we make in this prospectus
supplement is inconsistent with statements made in the
accompanying prospectus or any documents incorporated by
reference herein or therein, the statements made in this
prospectus supplement will be deemed to modify or supersede
those made in the accompanying prospectus and such documents
incorporated by reference herein and therein.
Unless the context otherwise requires, we use the terms
Anthera Pharmaceuticals, Anthera,
we, us, the Company and
our in this prospectus supplement to refer to
Anthera Pharmaceuticals, Inc. and its sole subsidiary.
All references in this prospectus supplement to our consolidated
financial statements include, unless the context indicates
otherwise, the related notes.
The industry and market data and other statistical information
contained in the documents we incorporate by reference are based
on managements own estimates, independent publications,
government publications, reports by market research firms or
other published independent sources, and, in each case, are
believed by management to be reasonable estimates. Although we
believe these sources are reliable, we have not independently
verified the information.
CAUTIONARY
STATEMENT ABOUT FORWARD-LOOKING INFORMATION
This prospectus and the documents incorporated by reference into
it contain forward-looking statements. Forward-looking
statements relate to future events or our future financial
performance. We generally identify forward-looking statements by
terminology such as may, will,
would, should, expects,
plans, anticipates, could,
intends, target, projects,
contemplates, believes,
estimates, predicts, assume,
intend, potential, continue
or other similar words or the negative of these terms. These
statements are only predictions. We have based these
forward-looking statements largely on our current expectations
and projections about future events and financial trends that we
believe may affect our business, financial condition and results
of operations. The outcome of the events described in these
forward-looking statements is subject to risks, uncertainties
and other factors described in Risk Factors and in
our periodic filings with the SEC, incorporated by reference or
included in this prospectus supplement or the accompanying
prospectus. Accordingly, you should not place undue reliance
upon these forward-looking statements. We cannot assure you that
the events and circumstances reflected in the forward-looking
statements will be achieved or occur. Also, the timing of events
and circumstances and actual results could differ materially
from those projected in the forward-looking statements.
Forward-looking statements contained in this prospectus include,
but are not limited to, statements about:
|
|
|
|
|
our expectations related to the use of proceeds, if any, from
this offering;
|
|
|
|
the progress of, timing of and amount of expenses associated
with our research, development and commercialization activities;
|
|
|
|
the timing, conduct and success of our clinical studies for our
product candidates;
|
|
|
|
our ability to obtain U.S. and foreign regulatory approval
for our product candidates and the ability of our product
candidates to meet existing or future regulatory standards;
|
|
|
|
our expectations regarding federal, state and foreign regulatory
requirements;
|
|
|
|
the therapeutic benefits and effectiveness of our product
candidates;
|
S-ii
|
|
|
|
|
the accuracy of our estimates of the size and characteristics of
the markets that may be addressed by our product candidates;
|
|
|
|
our ability to manufacture sufficient amounts of our product
candidates for clinical studies and products for
commercialization activities;
|
|
|
|
our intention to seek to establish strategic collaborations or
partnerships for the development or sale of our product
candidates;
|
|
|
|
our expectations as to future financial performance, expense
levels and liquidity sources;
|
|
|
|
the timing of commercializing our product candidates;
|
|
|
|
our ability to compete with other companies that are or may be
developing or selling products that are competitive with our
product candidates;
|
|
|
|
anticipated trends and challenges in our potential markets;
|
|
|
|
our ability to attract and retain key personnel; and
|
|
|
|
other factors discussed elsewhere in this prospectus or any
prospectus supplement.
|
The forward-looking statements made or incorporated by reference
in this prospectus relate only to events as of the date on which
the statements are made. We have included important factors in
the cautionary statements included in this prospectus and
incorporated herein by reference, including under the caption
entitled Risk Factors that we believe could cause
actual results or events to differ materially from the
forward-looking statements that we make. Our forward-looking
statements do not reflect the potential impact of any future
acquisitions, mergers, dispositions, joint ventures or
investments we may make. Except as required by law, we do not
assume any intent to update any forward-looking statements after
the date on which the statement is made, whether as a result of
new information, future events or circumstances or otherwise.
S-iii
PROSPECTUS
SUMMARY
The following summary of our business highlights some of the
information contained elsewhere in or incorporated by reference
into this prospectus supplement. Because this is only a summary,
however, it does not contain all of the information that may be
important to you. You should carefully read this prospectus
supplement and the accompanying prospectus, including the
documents incorporated by reference, which are described under
Incorporation of Certain Information by Reference in
this prospectus supplement and under Incorporation of
Certain Information by Reference and Where
You Can Find More Information in the accompanying
prospectus. You should also carefully consider the matters
discussed in the section in this prospectus supplement entitled
Risk Factors and in the accompanying prospectus and
in other periodic reports incorporated herein by reference.
Our
Company
We are a biopharmaceutical company focused on developing and
commercializing products to treat serious diseases associated
with inflammation, including cardiovascular and autoimmune
diseases. We currently have one Phase 3 clinical program,
varespladib, and two Phase 2 clinical programs, blisibimod
(formerly referred to as
A-623) and
A-001.
Varespladib and
A-001 are
designed to inhibit a novel enzyme target known as secretory
phospholipase
A2,
or
sPLA2.
Elevated levels of
sPLA2
have been implicated in a variety of acute inflammatory
conditions, including acute coronary syndrome and acute chest
syndrome associated with sickle cell disease, as well as in
chronic diseases such as stable coronary artery disease. Our
Phase 2 product candidate, blisibimod, targets elevated levels
of B-cell activating factor, which has been associated with a
variety of B-cell mediated autoimmune diseases, including
systemic lupus erythematosus, or lupus, lupus nephritis,
rheumatoid arthritis, multiple sclerosis, Sjögrens
Syndrome, Graves Disease and others. We have worldwide
rights to our product candidates, with the exception of Japan,
where Shionogi & Co., Ltd. retains commercial rights
to our
sPLA2
product candidates.
Summary
of Product Development Programs
Varespladib
Varespladib is an orally administered pro-drug of
A-001, which
is a broad-spectrum, once-daily inhibitor of the IIa, V and X
iso-forms of the
sPLA2
enzyme that has demonstrated potent anti-inflammatory,
lipid-lowering and lipid-modulating treatment effects in
multiple clinical studies. We have commenced the Phase 3
S-1
VISTA-16 study to evaluate varespladib in combination with
atorvastatin therapy, specifically Lipitor, for the short-term
(16-week) treatment of acute coronary syndrome. The primary
endpoint of the VISTA-16 study is to determine whether
16 weeks of once-daily treatment with varespladib plus a
dose of Lipitor (atorvastatin) is superior to placebo plus
Lipitor (atorvastatin) in the time to the first occurrence of
the combined endpoint of cardiovascular death, non-fatal
myocardial infarction, non-fatal stroke or documented unstable
angina with objective evidence of ischemia requiring
hospitalization as defined by recent U.S. Food and Drug
Administration, or FDA, draft guidance. We have an agreement
with the FDA on a Special Protocol Assessment, or SPA, for the
VISTA-16 study. An SPA provides an opportunity for the clinical
study sponsor to receive feedback from the FDA regarding the
potential adequacy of a clinical study to meet certain
regulatory and scientific requirements if conducted in
accordance with the SPA agreement. We have submitted, and may
submit in the future, amendments to the VISTA-16 study to
address recommendations by the FDA, investigators and potential
strategic partners. An SPA is not a guarantee of an approval of
a product candidate or any permissible claims about the product
candidate.
In June 2010, we initiated enrollment in the VISTA-16 clinical
study. Pursuant to our SPA agreement with the FDA, our
multinational, randomized, double-blind, placebo-controlled
Phase 3 acute coronary syndrome VISTA-16 study will enroll up to
6,500 patients. We anticipate the study will be conducted
in up to 15 countries and up to 500 centers. On April 18,
2011, we announced that enrollment in the Phase 3 VISTA-16 study
of varespladib in Acute Coronary Syndromes will continue based
on positive outcome of an interim biomarker analysis and review
of available patient safety data. An independent statistician
completed an analysis of various biomarkers of cardiovascular
risk and determined that treatment with once-daily varespladib
met the pre-specified criteria for the study to proceed. Prior
to the VISTA-16 clinical study, over 1,000 patients and
healthy volunteers in at least 15 previous clinical studies have
been exposed to varespladib. Varespladib was generally
well-tolerated in studies where patients were exposed to a
maximum of 48 weeks of therapy.
Blisibimod
Blisibimod (formerly referred to as
A-623) is a
peptibody antagonist of the B-cell activating factor, or BAFF,
cytokine that is initially being developed as a treatment for
lupus. BLyS, also known as BAFF, is a tumor necrosis family
member and is critical to the development, maintenance and
survival of B-cells. Although the cause of lupus is still not
completely understood, B-cell activation and autoantibody
production are known to be central to the process. Evidence has
emerged that over-expression of BAFF plays an important role in
this disease process. In preclinical studies, transgenic mice
created to over-express BAFF begin to exhibit symptoms similar
to lupus. In addition, treatment of these same mice with BAFF
antagonists appears to ameliorate the disease.
After successfully reactivating our Investigational New Drug
Application, we initiated a Phase 2b clinical study with
blisibimod for the treatment of lupus in July 2010 called
PEARL-SC. In December 2010, we announced the selection of a
contract manufacturing organization for our larger scale good
manufacturing practice, or GMP, manufacturing, the Merck
Biomanufacturing Network (recently acquired by Fujifilm), and
began the technical transfer of the full manufacturing of GMP
bulk product for eventual pivotal clinical studies and an
optional expansion
and/or
extension of the PEARL-SC study. We may also study blisibimod in
other B-cell mediated autoimmune diseases such as
Sjögrens Syndrome or orphan indications such as
myasthenia gravis and pemphigus. We are actively pursuing a
partnership with major pharmaceutical companies to develop and
commercialize blisibimod.
A-001
A-001 is an
intravenously administered, potent, broad-spectrum inhibitor of
sPLA2,
including forms IIa, V and X, for the prevention of acute
chest syndrome associated with sickle cell disease in at-risk
patients. Substantial scientific evidence implicates
sPLA2
activity in the development of acute chest syndrome associated
with sickle cell disease, as well as other forms of acute lung
injury.
sPLA2
levels increase in advance of acute chest syndrome episodes and
can be used alongside the presence of fever to strongly predict
an impending episode. There is a strong correlation between
levels of CRP and
sPLA2
in this patient population. Patients with acute chest syndrome
associated with sickle cell disease can exhibit levels of
sPLA2
that can be 100 times greater than normal. Our planned
multinational, randomized, double-blind, placebo-controlled
Phase 3 clinical study will enroll up to 200 patients with
sickle cell disease who are at an elevated risk of developing
acute chest syndrome. The FDA granted orphan drug and fast-track
designation for
A-001 for
the prevention of acute chest syndrome in at-risk patients.
S-2
Corporate
Information
We were incorporated in Delaware on September 9, 2004 as
Anthera Pharmaceuticals, Inc. Our corporate headquarters are
located at 25801 Industrial Boulevard, Suite B, Hayward,
California 94545 and our telephone number is
(510) 856-5600.
We use various trademarks, service marks and trade names in our
business, including without limitation Anthera
Pharmaceuticals and Anthera. This prospectus
also contains trademarks, service marks and trade names of other
businesses that are the property of their respective holders.
S-3
The
Offering
|
|
|
Common stock offered by us
|
|
6,666,667 shares
|
Common stock to be outstanding after this offering
|
|
39,640,934 shares
|
Over-Allotment
Option
We have granted the underwriters an option to purchase up to
1,000,000 additional shares of our common stock to cover
over-allotments, if any. This option is exercisable, in whole or
in part, for a period of 30 days from the date of this
prospectus supplement.
Use of
Proceeds
We intend to use the net proceeds from this offering for general
corporate purposes. See Use of Proceeds.
Risk
Factors
This investment involves a high degree of risk. See the
information contained in or incorporated by reference under
Risk Factors beginning on
page S-5
of this prospectus supplement, page 5 of the accompanying
prospectus and in the documents incorporated by reference into
this prospectus supplement.
NASDAQ
Global Market Symbol
Our common stock is listed on the NASDAQ Global Market under the
symbol ANTH.
The number of shares of common stock to be outstanding after
this offering is based on 32,974,267 shares outstanding on
May 31, 2011 and excludes as of that date:
|
|
|
|
|
options representing the right to purchase a total of
2,158,809 shares of common stock at a weighted average
exercise price of $2.98 per share;
|
|
|
|
restricted stock units representing a total of
288,500 shares of common stock issuable upon vesting;
|
|
|
|
warrants representing the right to purchase a total of
4,878,565 shares of common stock at a weighted-average
exercise price of $3.75 per share.
|
If the underwriters over-allotment option is exercised in
full, we will issue and sell an additional 1,000,000 shares
of our common stock and will have 40,640,934 shares
outstanding after the offering.
Except as otherwise noted, all information in this prospectus
supplement assumes no exercise of the underwriters
over-allotment option.
S-4
RISK
FACTORS
An investment in our common stock involves a high degree of
risk. Before deciding whether to invest in our common stock, you
should carefully consider the risks discussed under the section
captioned Risk Factors contained in our Annual
Report on
Form 10-K
for the year ended December 31, 2010 and the risks
discussed under the section captioned Risk Factors
contained in our Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2011, which are
incorporated by reference in this prospectus supplement and the
accompanying prospectus in their entirety, together with other
information in this prospectus supplement, the accompanying
prospectus, the information and documents incorporated by
reference herein and therein, and in any free writing prospectus
that we have authorized for use in connection with this
offering. If any of these risks actually occurs, our business,
financial condition, results of operations or cash flow could be
seriously harmed. This could cause the trading price of our
common stock to decline, resulting in a loss of all or part of
your investment.
Risks
Relating to this Offering
You
will experience immediate and substantial dilution in the book
value per share of the common stock you purchase.
The public offering price of our common stock being offered is
substantially higher than the net tangible book value per share
of our common stock outstanding prior to this offering.
Therefore, if you purchase our common stock in this offering,
you will incur an immediate substantial dilution of $5.29 in net
tangible book value per share from the price you paid. For a
further description of the dilution that you will experience
immediately after this offering, see the section titled
Dilution.
We
have broad discretion to determine how to use the proceeds
raised in this offering, and we may not use the proceeds
effectively.
Our management will have broad discretion over the use of
proceeds from this offering, and we could spend the proceeds
from this offering in ways with which you may not agree or that
do not yield a favorable return. We intend to use the net
proceeds from this offering for general corporate purposes. We
may also use a portion of the net proceeds to acquire or invest
in complementary businesses, products and technologies, although
we have no current plans, commitments or agreements with respect
to any such acquisitions or investments, and we have not
allocated the net proceeds from this offering for any specific
purposes. If we do not invest or apply the proceeds of this
offering in ways that improve our operating results, we may fail
to achieve expected financial results, which could cause our
stock price to decline.
USE OF
PROCEEDS
We estimate that the net proceeds of the sale of
6,666,667 shares of common stock that we are offering will
be approximately $47 million, or approximately
$54 million if the underwriters exercise their
over-allotment option in full, based on the public offering
price of $7.50 per share and after deducting underwriting
discounts and commissions and estimated offering expenses that
we must pay.
We intend to use the net proceeds from this offering for general
corporate purposes. We may also use a portion of the net
proceeds to acquire or invest in complementary businesses,
products and technologies. Although we have no specific
agreements, commitments or understandings with respect to any
acquisition, we evaluate acquisition opportunities and engage in
related discussions with other companies from time to time.
As of the date of this prospectus supplement, we cannot specify
with certainty all of the particular uses of the proceeds from
this offering. Accordingly, we will retain broad discretion over
the use of such proceeds.
Pending use of the proceeds as described above or otherwise, we
intend to invest the net proceeds in short-term
interest-bearing, investment-grade securities.
S-5
DILUTION
Our net tangible book value as of March 31, 2011 was
approximately $40.6 million, or $1.23 per share. Net
tangible book value per share is determined by dividing our
total tangible assets, less total liabilities, by the number of
shares of our common stock outstanding as of March 31,
2011. Dilution in net tangible book value per share represents
the difference between the amount per share paid by purchasers
of shares of common stock in this offering and the net tangible
book value per share of our common stock immediately after this
offering.
After giving effect to the sale of 6,666,667 shares of our
common stock in this offering at the public offering price of
$7.50 per share and after deducting the underwriting
discounts and commissions and estimated offering expenses we
must pay, our as adjusted net tangible book value as of
March 31, 2011 would have been approximately
$87.5 million, or $2.21 per share. This represents an
immediate increase in net tangible book value of $0.98 per
share to existing stockholders and immediate dilution in net
tangible book value of $5.29 per share to new investors
purchasing our common stock in this offering. The following
table illustrates this dilution on a per share basis:
|
|
|
|
|
|
|
|
|
Public offering price per share
|
|
|
|
|
|
$
|
7.50
|
|
Net tangible book value per share as of March 31, 2011
|
|
$
|
1.23
|
|
|
|
|
|
Increase per share attributable to new investors
|
|
$
|
0.98
|
|
|
|
|
|
As adjusted net tangible book value per share after this offering
|
|
|
|
|
|
$
|
2.21
|
|
Dilution per share to new investors
|
|
|
|
|
|
$
|
5.29
|
|
|
|
|
|
|
|
|
|
|
If the underwriters exercise in full their option to purchase
1,000,000 additional shares of common stock at the public
offering price of $7.50 per share, the as adjusted net tangible
book value after this offering would be $2.33 per share,
representing an increase in net tangible book value of
$1.10 per share to existing stockholders and immediate
dilution in net tangible book value of $5.17 per share to
new investors purchasing our common stock in this offering.
The number of shares of common stock to be outstanding after
this offering is based on 32,926,100 shares outstanding on
March 31, 2011 and excludes as of that date:
|
|
|
|
|
options representing the right to purchase a total of
2,214,931 shares of common stock at a weighted average
exercise price of $2.93 per share;
|
|
|
|
restricted stock units representing a total of
298,000 shares of common stock issuable upon vesting;
|
|
|
|
warrants representing the right to purchase a total of
4,878,565 shares of common stock at a weighted-average
exercise price of $3.75 per share.
|
To the extent that outstanding options or warrants are
exercised, investors purchasing our common stock in this
offering will experience further dilution. In addition, we may
choose to raise additional capital due to market conditions or
strategic considerations even if we believe we have sufficient
funds for our current or future operating plans. To the extent
that additional capital is raised through the sale of equity or
convertible debt securities, the issuance of these securities
could result in further dilution to our stockholders.
S-6
CERTAIN
U.S. FEDERAL INCOME TAX CONSIDERATIONS FOR
NON-U.S.
HOLDERS OF
COMMON STOCK
The following is a discussion of certain U.S. federal
income tax considerations to
non-U.S. holders
with respect to their ownership and disposition of our common
stock issued pursuant to this offering. In general, a
non-U.S. holder
is any beneficial owner of our common stock that is a
non-resident alien individual or foreign corporation for
U.S. federal income tax purposes.
Generally, an individual may be treated as a resident of the
United States (and not as a non-resident alien) in any calendar
year for U.S. federal income tax purposes by, among other
ways, being present in the United States for at least
31 days in that calendar year and for an aggregate of at
least 183 days during a three-year period ending in the
current calendar year. For purposes of this calculation, such
individual would count all of the days in which the individual
was present in the current year, one-third of the days present
in the immediately preceding year, and one-sixth of the days
present in the second preceding year. Residents are taxed for
U.S. federal income tax purposes as if they were citizens
of the United States.
This discussion is based on current provisions of the Internal
Revenue Code, U.S. Treasury Regulations promulgated under
the Internal Revenue Code, judicial opinions, published
positions of the Internal Revenue Service, or IRS, and all other
applicable authorities, all of which are subject to change,
possibly with retroactive effect. No ruling has been or will be
sought from the IRS with respect to the matters discussed below,
and there can be no assurance that the IRS will not take a
contrary position or that any such contrary position would not
be sustained by a court. This discussion assumes that the
non-U.S. holder
will hold our common stock as a capital asset (generally
property held for investment).
This discussion does not address all aspects of
U.S. federal income taxation or any aspects of alternative
minimum, estate, state, local, or non-U.S, taxation. It also
does not consider any specific facts or circumstances that may
apply to particular
non-U.S. holders
that may be subject to special treatment under the
U.S. federal income tax laws, including, but not limited to:
|
|
|
|
|
insurance companies;
|
|
|
|
tax-exempt organizations;
|
|
|
|
financial institutions;
|
|
|
|
regulated investment companies;
|
|
|
|
tax-qualified retirement plans;
|
|
|
|
brokers or dealers in securities;
|
|
|
|
investors that hold our common stock as part of a straddle,
hedge, conversion transaction, synthetic security or other
integrated investment;
|
|
|
|
controlled foreign corporations;
|
|
|
|
passive foreign investment companies; and
|
|
|
|
U.S. expatriates.
|
If a partnership or any other entity or arrangement taxed as a
partnership for U.S. federal income tax purposes is a
beneficial owner of our common stock, the treatment of a partner
in the partnership will generally depend upon the status of the
equity owner of such partnership and the activities of the
partnership. Accordingly, partnerships (and entities and
arrangements taxed as partnerships) that hold our common stock
and owners in such partnerships (or other entities or
arrangements taxed as partnerships) are urged to consult their
tax advisors regarding the specific U.S. federal income tax
consequences to them of acquiring, owning or disposing of our
common stock.
PROSPECTIVE INVESTORS ARE URGED TO CONSULT THEIR TAX ADVISORS
REGARDING THE PARTICULAR U.S. FEDERAL INCOME TAX
CONSEQUENCES TO THEM OF ACQUIRING, OWNING AND DISPOSING OF
SHARES OF OUR COMMON STOCK, AS WELL AS THE
S-7
U.S. FEDERAL, STATE, LOCAL AND
NON-U.S. INCOME
AND OTHER TAX CONSIDERATIONS OF ACQUIRING, OWNING AND DISPOSING
OF SHARES OF COMMON STOCK.
Dividends
We do not anticipate declaring or paying any cash dividends on
our common stock in the foreseeable future. However, if we do
make distributions on our common stock, those payments will
constitute dividends for U.S. tax purposes to the extent
paid from our current or accumulated earnings and profits, as
determined under U.S. federal income tax principles. To the
extent those distributions exceed our current and accumulated
earnings and profits, they will constitute a return of capital
and will first reduce the recipients adjusted tax basis in
our common stock, but not below zero, and then will be treated
as gain from the sale of stock as described below under the
heading Gain on Sale or Other Disposition of Common
Stock.
Dividends paid to a
non-U.S. holder
will be subject to U.S. federal withholding tax at a rate
equal to 30 percent of the gross amount of the dividend, or
a lower rate prescribed by an applicable income tax treaty,
unless the dividends are effectively connected with a trade or
business carried on by the
non-U.S. holder
within the United States (and, if required by an applicable
income tax treaty, are attributable to a U.S. permanent
establishment maintained by the
non-U.S. holder).
Under applicable Treasury Regulations, a
non-U.S. holder
will be required to satisfy certain certification requirements,
generally on IRS
Form W-8BEN
(or applicable successor form), directly or through an
intermediary, in order to claim a reduced rate of withholding
under an applicable income tax treaty. If tax is withheld in an
amount in excess of the amount prescribed by an applicable
income tax treaty, a refund of the excess amount may be obtained
by the
non-U.S. holder
by timely filing an appropriate claim for refund with the IRS.
Dividends that are effectively connected with such a
U.S. trade or business (and, if required by an applicable
income tax treaty, are attributable to a U.S. permanent
establishment maintained by the recipient) will not be subject
to U.S. withholding tax if the
non-U.S. holder
files the required forms, generally an IRS
Form W-8ECI
(or applicable successor form), with the payor of the dividend,
but instead will be subject to U.S. federal income tax on a
net income basis in the same manner as if the
non-U.S. holder
were a resident of the United States. A foreign corporation that
receives dividends constituting effectively connected income
may, under certain circumstances, be subject to an additional
branch profits tax at a rate of 30 percent, or a lower rate
prescribed by an applicable income tax treaty, with respect to
such effectively connected income.
Gain on
Sale or Other Disposition of Common Stock
A
non-U.S. holder
will not be subject to U.S. federal income tax on any gain
realized upon the sale or other taxable disposition of the
non-U.S. holders
shares of common stock unless:
|
|
|
|
|
the gain is effectively connected with a trade or business
carried on by the
non-U.S. holder
within the United States (and, if required by an applicable tax
treaty, is attributable to a U.S. permanent establishment
or a fixed base maintained by the
non-U.S. holder),
in which case the
non-U.S. holder
generally will be required to pay tax on the net gain derived
from the sale under regular graduated U.S. federal income
tax rates and, if the
non-U.S. holder
is a corporation, the branch profits tax may apply, at a
30 percent rate or such lower rate as may be specified by
an applicable income tax treaty;
|
|
|
|
the
non-U.S. holder
is a nonresident alien individual who is present in the United
States for 183 days or more in the taxable year of
disposition (and is not otherwise treated as a
U.S. resident alien for U.S. federal income tax
purposes) and certain other conditions are met, in which case
the
non-U.S. holder
will be required to pay a flat 30 percent tax (or such
lower rate as may be specified by an applicable income tax
treaty between the United States and such
non-U.S. holders
country of residence) on the net gain derived from the
disposition, which tax may be offset by U.S. source capital
losses, if any, provided that the
non-U.S. holder
has timely filed U.S. federal income tax returns with
respect to such losses; or
|
|
|
|
our common stock constitutes a U.S. real property interest
by reason of our status as a United States real property
holding corporation, or USRPHC, for U.S. federal
income tax purposes at any time within the shorter of the
five-year period preceding the disposition or the
non-U.S. holders
holding period for our common stock.
|
S-8
We believe that we are not currently and will not become a
USRPHC. However, because the determination of whether we are a
USRPHC depends on the fair market value of our U.S. real
property relative to the fair market value of our other business
assets, there can be no assurance that we will not become a
USRPHC in the future. Even if we become a USRPHC, however, as
long as our common stock is regularly traded on an established
securities market, such common stock will be treated as
U.S. real property interests only if the
non-U.S. holder
actually or constructively held more than five percent of our
common stock at any time during the shorter of the five-year
period preceding the disposition or the
non-U.S. holders
holding period for our common stock.
Information
Reporting and Backup Withholding
We must report annually to the IRS and to each
non-U.S. holder
the amount of dividends on our common stock, the name and
address of the recipient and the amount, if any, of tax
withheld. These information reporting requirements apply even if
withholding was not required because the dividends were
effectively connected dividends or withholding was reduced by an
applicable income tax treaty. Under tax treaties or other
agreements, the IRS may make its reports available to tax
authorities in the country in which the
non-U.S. holder
resides or is established.
Dividend payments made to a
non-U.S. holder
that is not an exempt recipient generally will be subject to
backup withholding at the then applicable rate (currently
28 percent) unless the
non-U.S. holder
certifies as to its foreign status, which certification may be
made by providing the Company with an IRS
Form W-8BEN
or IRS
Form W-8ECI,
as applicable, and certain other requirements are met.
Notwithstanding the foregoing, backup withholding may apply if
either we or our paying agent has actual knowledge, or reason to
know, that the holder is a U.S. person that is not an
exempt recipient.
Backup withholding is not an additional tax. Rather, the amount
of tax withheld is applied to the U.S. federal income tax
liability of persons subject to backup withholding. If backup
withholding results in an overpayment of U.S. federal
income taxes, a refund may be obtained, provided the required
documents are timely filed with the IRS.
Legislation
Relating to Foreign Accounts
The Internal Revenue Code will impose a U.S. federal
withholding tax of 30 percent on dividends and the gross
proceeds of a disposition of our common stock paid after
December 31, 2012 to a foreign financial
institution (as specifically defined for this purpose)
unless such institution enters into an agreement with the
U.S. government to withhold on certain payments and to
collect and provide to the U.S. tax authorities substantial
information regarding U.S. account holders of such
institution (which includes certain equity and debt holders of
such institution, as well as certain account holders that are
foreign entities with U.S. owners). The legislation also
will generally impose a U.S. federal withholding tax of
30 percent on dividends and the gross proceeds of a
disposition of our common stock paid after December 31,
2012 to a non-financial foreign entity unless such entity
provides the withholding agent with either a certification that
it does not have any substantial direct or indirect
U.S. owners or provides information regarding direct and
indirect U.S. owners of the entity. The amount and extent
of such information to be provided by foreign financial
institutions and non-financial foreign entities with respect to
this legislation will not be clear until additional guidance is
issued. Under certain circumstances, a
non-U.S. holder
might be eligible for refunds or credits of such taxes. Holders
are encouraged to consult with their own tax advisors regarding
the possible implications of the legislation on their investment
in our common stock.
S-9
UNDERWRITING
Citigroup Global Markets Inc. and Leerink Swann LLC are acting
as joint book-running managers of the offering and Citi is
acting as representative of the underwriters named below.
Subject to the terms and conditions stated in the underwriting
agreement dated the date of this prospectus supplement, each
underwriter named below has severally agreed to purchase, and we
have agreed to sell to that underwriter, the number of shares
set forth opposite the underwriters name.
|
|
|
|
|
|
|
Number
|
Underwriter
|
|
of Shares
|
|
Citigroup Global Markets Inc.
|
|
|
3,666,667
|
|
Leerink Swann LLC
|
|
|
2,333,333
|
|
Canaccord Genuity Inc.
|
|
|
666,667
|
|
|
|
|
|
|
Total
|
|
|
6,666,667
|
|
|
|
|
|
|
The underwriting agreement provides that the obligations of the
underwriters to purchase the shares included in this offering
are subject to approval of legal matters by counsel and to other
conditions. The underwriters are obligated to purchase all the
shares (other than those covered by the over-allotment option
described below) if they purchase any of the shares.
Shares sold by the underwriters to the public will initially be
offered at the initial public offering price set forth on the
cover of this prospectus supplement. Any shares sold by the
underwriters to securities dealers may be sold at a discount
from the initial public offering price not to exceed $0.27 per
share. If all the shares are not sold at the initial offering
price, the underwriters may change the offering price and the
other selling terms.
If the underwriters sell more shares than the total number set
forth in the table above, we have granted to the underwriters an
option, exercisable for 30 days from the date of this
prospectus supplement, to purchase up to 1,000,000 additional
shares at the public offering price less the underwriting
discount. The underwriters may exercise the option solely for
the purpose of covering over-allotments, if any, in connection
with this offering. To the extent the option is exercised, each
underwriter must purchase a number of additional shares
approximately proportionate to that underwriters initial
purchase commitment. Any shares issued or sold under the option
will be issued and sold on the same terms and conditions as the
other shares that are the subject of this offering.
We and our officers and directors have agreed that, for a period
of 90 days from the date of this prospectus supplement, we
and they will not, without the prior written consent of Citi,
offer, sell, contract to sell or otherwise dispose of, or enter
into any transaction that is designed to, or could be expected
to, result in the disposition of any shares of our common stock
or other securities convertible into or exchangeable or
exercisable for shares of our common stock or derivatives of our
common stock owned by these persons prior to this offering or
common stock issuable upon exercise of options or warrants held
by these persons. Transfers can be made by our officers and
directors during the
lock-up
period in the case of (a) shares of common stock acquired
in open market transactions after the completion of this
offering, (b) gifts or for estate planning purposes and
distributions to partners, members or stockholders of the
transferor where the transferee signs a
lock-up
agreement, and (c) shares of common stock (i) as
forfeitures of common stock to satisfy tax withholding
obligations of the stockholder in connection with the vesting or
exercise of equity awards by the stockholder pursuant to our
2005 Equity Incentive Plan, or 2005 Equity Plan, and 2010 Stock
Option and Incentive Plan, or 2010 Equity Plan, or pursuant to a
net exercise or cashless exercise by the stockholder of
outstanding equity awards pursuant to our 2005 Equity Plan and
2010 Equity Plan, or (ii) pursuant to the conversion or
sale of, or an offer to purchase, all or substantially all of
our outstanding common stock, whether pursuant to a merger,
tender offer or otherwise; provided that in the case of a
transfer in clause (c)(i) above, no filing under
Section 16(a) of the Exchange Act shall be required or
shall be voluntarily made in connection with such transactions.
Citi in its sole discretion may release any of the securities
subject to these
lock-up
agreements at any time without notice. Notwithstanding the
foregoing, if (i) during the last 17 days of the
180-day
restricted period, we issue an earnings release or material news
or a material event relating to our
S-10
company occurs; or (ii) prior to the expiration of the
180-day
restricted period, we announce that we will release earnings
results during the
16-day
period beginning on the last day of the
180-day
restricted period, the restrictions described above shall
continue to apply until the expiration of the
18-day
period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
The shares are listed on the NASDAQ Global Market under the
symbol ANTH.
The following table shows the underwriting discounts and
commissions that we are to pay to the underwriters in connection
with this offering. These amounts are shown assuming both no
exercise and full exercise of the underwriters
over-allotment option.
|
|
|
|
|
|
|
|
|
|
|
Paid by Anthera Pharmaceuticals, Inc.
|
|
|
No Exercise
|
|
Full Exercise
|
|
Per share
|
|
$
|
0.45
|
|
|
$
|
0.45
|
|
Total
|
|
$
|
3,000,000
|
|
|
$
|
3,450,000
|
|
We estimate that our portion of the total expenses of this
offering will be $145,000.
In compliance with the guidelines of the Financial Industry
Regulatory Authority, Inc., or FINRA, the maximum discount or
commission to be received by any FINRA member or independent
broker-dealer may not exceed 8% of the aggregate offering price
of the shares offered hereby.
In connection with the offering, the underwriters may purchase
and sell shares in the open market. Purchases and sales in the
open market may include short sales, purchases to cover short
positions, which may include purchases pursuant to the
over-allotment option, and stabilizing purchases.
|
|
|
|
|
Short sales involve secondary market sales by the underwriters
of a greater number of shares than they are required to purchase
in the offering.
|
|
|
|
|
|
Covered short sales are sales of
shares in an amount up to the number of shares represented by
the underwriters over-allotment option.
|
|
|
|
Naked short sales are sales of shares
in an amount in excess of the number of shares represented by
the underwriters over-allotment option.
|
|
|
|
|
|
Covering transactions involve purchases of shares either
pursuant to the over-allotment option or in the open market
after the distribution has been completed in order to cover
short positions.
|
|
|
|
|
|
To close a naked short position, the underwriters must purchase
shares in the open market after the distribution has been
completed. A naked short position is more likely to be created
if the underwriters are concerned that there may be downward
pressure on the price of the shares in the open market after
pricing that could adversely affect investors who purchase in
the offering.
|
|
|
|
To close a covered short position, the underwriters must
purchase shares in the open market after the distribution has
been completed or must exercise the over-allotment option. In
determining the source of shares to close the covered short
position, the underwriters will consider, among other things,
the price of shares available for purchase in the open market as
compared to the price at which they may purchase shares through
the over-allotment option.
|
|
|
|
|
|
Stabilizing transactions involve bids to purchase shares so long
as the stabilizing bids do not exceed a specified maximum.
|
Purchases to cover short positions and stabilizing purchases, as
well as other purchases by the underwriters for their own
accounts, may have the effect of preventing or retarding a
decline in the market price of the shares. They may also cause
the price of the shares to be higher than the price that would
otherwise exist in the open market in the absence of these
transactions. The underwriters may conduct these transactions on
the NASDAQ Global Market, in the
over-the-counter
market or otherwise. If the underwriters commence any of these
transactions, they may discontinue them at any time.
S-11
In addition, in connection with this offering, some of the
underwriters (and selling group members) may engage in passive
market making transactions in the shares on the NASDAQ Global
Market, prior to the pricing and completion of the offering.
Passive market making consists of displaying bids on the NASDAQ
Global Market no higher than the bid prices of independent
market makers and making purchases at prices no higher than
those independent bids and effected in response to order flow.
Net purchases by a passive market maker on each day are limited
to a specified percentage of the passive market makers
average daily trading volume in the shares during a specified
period and must be discontinued when that limit is reached.
Passive market making may cause the price of the shares to be
higher than the price that otherwise would exist in the open
market in the absence of those transactions. If the underwriters
commence passive market making transactions, they may
discontinue them at any time.
The underwriters may, from time to time, engage in transactions
with and perform services for us in the ordinary course of their
business for which they may receive customary fees and
reimbursement of expenses.
We have agreed to indemnify the underwriters against certain
liabilities, including liabilities under the Securities Act, or
to contribute to payments the underwriters may be required to
make because of any of those liabilities.
Notice to
Prospective Investors in the European Economic Area
In relation to each member state of the European Economic Area
that has implemented the Prospectus Directive (each, a relevant
member state), with effect from and including the date on which
the Prospectus Directive is implemented in that relevant member
state (the relevant implementation date), an offer of shares
described in this prospectus supplement may not be made to the
public in that relevant member state prior to the publication of
a prospectus in relation to the shares that has been approved by
the competent authority in that relevant member state or, where
appropriate, approved in another relevant member state and
notified to the competent authority in that relevant member
state, all in accordance with the Prospectus Directive, except
that, with effect from and including the relevant implementation
date, an offer of securities may be offered to the public in
that relevant member state at any time:
|
|
|
|
|
to any legal entity that is authorized or regulated to operate
in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
|
|
|
|
to any legal entity that has two or more of (1) an average
of at least 250 employees during the last financial year;
(2) a total balance sheet of more than 43,000,000 and
(3) an annual net turnover of more than 50,000,000,
as shown in its last annual or consolidated accounts;
|
|
|
|
to fewer than 100, or, if the Relevant Member State has
implemented the relevant provisions of the 2010 PD Amending
Directive, 150, natural or legal persons (other than qualified
investors as defined below) subject to obtaining the prior
consent of the representatives for any such offer; or
|
|
|
|
in any other circumstances that do not require the publication
of a prospectus pursuant to Article 3 of the Prospectus
Directive.
|
Each purchaser of shares described in this prospectus supplement
located within a relevant member state will be deemed to have
represented, acknowledged and agreed that it is a
qualified investor within the meaning of
Article 2(1)(e) of the Prospectus Directive.
For purposes of this provision, the expression an offer to
the public in any relevant member state means the
communication in any form and by any means of sufficient
information on the terms of the offer and the securities to be
offered so as to enable an investor to decide to purchase or
subscribe the securities, as the expression may be varied in
that member state by any measure implementing the Prospectus
Directive in that member state, and the expression
Prospectus Directive means Directive 2003/71/EC (and
amendments thereto, including the 2010 PD Amending Directive, to
the extent implemented in the Relevant Member State), and
includes any relevant implementing measure in each Relevant
Member State and the expression 2010 PD Amending Directive means
Directive 2010/73/EU.
S-12
The sellers of the shares have not authorized and do not
authorize the making of any offer of shares through any
financial intermediary on their behalf, other than offers made
by the underwriters with a view to the final placement of the
shares as contemplated in this prospectus supplement.
Accordingly, no purchaser of the shares, other than the
underwriters, is authorized to make any further offer of the
shares on behalf of the sellers or the underwriters.
Notice to
Prospective Investors in the United Kingdom
This prospectus supplement and the accompanying prospectus are
only being distributed to, and is only directed at, persons in
the United Kingdom that are qualified investors within the
meaning of Article 2(1)(e) of the Prospectus Directive that
are also (i) investment professionals falling within
Article 19(5) of the Financial Services and Markets Act
2000 (Financial Promotion) Order 2005 (the Order) or
(ii) high net worth entities, and other persons to whom it
may lawfully be communicated, falling within
Article 49(2)(a) to (d) of the Order (each such person
being referred to as a relevant person). This
prospectus supplement and its contents are confidential and
should not be distributed, published or reproduced (in whole or
in part) or disclosed by recipients to any other persons in the
United Kingdom. Any person in the United Kingdom that is not a
relevant person should not act or rely on this document or any
of its contents.
S-13
LEGAL
MATTERS
The validity of the shares of common stock offered hereby will
be passed upon for us by Goodwin Procter LLP,
San Francisco, California. Certain legal matters relating
to this offering will be passed upon for the underwriters by
Latham & Watkins LLP, Menlo Park, California.
EXPERTS
The financial statements of the Company incorporated in this
prospectus supplement and the accompanying prospectus by
reference from the Companys Annual Report on
Form 10-K
for the year ended December 31, 2010 have been audited by
Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in their report (which report
expresses an unqualified opinion and includes an explanatory
paragraph regarding the Companys development stage
status), which is incorporated herein by reference. Such
financial statements have been so incorporated in reliance upon
the reports of such firm given upon their authority as experts
in accounting and auditing.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference into this
prospectus supplement the information contained in other
documents we file with the SEC, which means that we can disclose
important information to you by referring you to those
documents. Any statement contained in any document incorporated
or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded, for purposes of this prospectus
supplement, to the extent that a statement contained in or
omitted from this prospectus supplement, or in any other
subsequently filed document that also is or is deemed to be
incorporated by reference herein, modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to
constitute a part of this prospectus supplement. We incorporate
by reference the documents listed below which have been filed by
us:
1. Our Annual Report on
Form 10-K
for the year ended December 31, 2010;
2. Our Definitive Proxy Statement on Schedule 14A
filed with the SEC on March 16, 2011;
3. Our Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2011;
4. Our Current Reports on
Form 8-K
filed with the SEC on March 29, 2011, April 20, 2011
and April 25, 2011; and
5. The description of our common stock contained in our
registration statement on
Form 8-A
(File
No. 001-34637)
filed with the SEC on February 22, 2010, including any
amendment or report filed for the purpose of updating such
description.
We will provide, without charge, to each person, including any
beneficial owner, to whom a copy of this prospectus supplement
is delivered, upon such persons written or oral request, a
copy of any and all of the information incorporated by reference
in this prospectus supplement, other than exhibits to such
documents, unless such exhibits are specifically incorporated by
reference into the information that this prospectus supplement
incorporates. Requests should be directed to the Corporate
Secretary, Anthera Pharmaceuticals, Inc., 25801 Industrial
Boulevard, Suite B, Hayward, California 94545; telephone:
(510) 856-5600.
We have authorized no one to provide you with any information
that differs from that contained in this prospectus supplement.
Accordingly, you should not rely on any information that is not
contained in this prospectus supplement. You should not assume
that the information in this prospectus supplement is accurate
as of any date other than the date of the front cover of this
prospectus supplement.
S-14
PROSPECTUS
$75,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
We may offer and sell an indeterminate number of shares of our
common stock and preferred stock, debt securities and warrants
from time to time under this prospectus. We may offer these
securities separately or as units, which may include
combinations of the securities. We will describe in a prospectus
supplement the securities we are offering and selling, as well
as the specific terms of the securities.
We may offer these securities in amounts, at prices and on terms
determined at the time of offering. We may sell the securities
directly to you, through agents we select, or through
underwriters and dealers we select. If we use agents,
underwriters or dealers to sell the securities, we will name
them and describe their compensation in a prospectus supplement.
Our common stock is traded on the NASDAQ Global Market under the
symbol ANTH. On March 4, 2011, the closing sale
price of our common stock on the NASDAQ Global Market was $5.71
per share.
Investing in our securities involves certain risks. See
Risk Factors beginning on page 4 of this
prospectus and in the applicable prospectus supplement for
certain risks you should consider. You should read the entire
prospectus carefully before you make your investment
decision.
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 March 11, 2011.
TABLE OF
CONTENTS
|
|
|
|
|
|
|
Page
|
|
|
|
|
1
|
|
|
|
|
4
|
|
|
|
|
4
|
|
|
|
|
5
|
|
|
|
|
20
|
|
|
|
|
20
|
|
|
|
|
20
|
|
|
|
|
22
|
|
|
|
|
22
|
|
|
|
|
22
|
|
|
|
|
23
|
|
i
PROSPECTUS
SUMMARY
About
this Prospectus
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, or SEC,
utilizing a shelf registration process. Under the shelf
registration process, we may offer shares of our common stock
and preferred stock, various series of debt securities and
warrants to purchase any of such securities with a total value
of up to $75,000,000 from time to time under this prospectus at
prices and on terms to be determined by market conditions at the
time of offering. This prospectus provides you with a general
description of the securities we may offer. Each time we offer a
type or series of securities, we will provide a prospectus
supplement that will describe the specific amounts, prices and
other important terms of the securities, including, to the
extent applicable:
|
|
|
|
|
designation or classification;
|
|
|
|
aggregate principal amount or aggregate offering price;
|
|
|
|
maturity;
|
|
|
|
original issue discount, if any;
|
|
|
|
rates and times of payment of interest, dividends or other
payments, if any;
|
|
|
|
redemption, conversion, exchange, settlement or sinking fund
terms, if any;
|
|
|
|
conversion, exchange or settlement prices or rates, if any, and,
if applicable, any provisions for changes to or adjustments in
the conversion, exchange or settlement prices or rates and in
the securities or other property receivable upon conversion,
exchange or settlement;
|
|
|
|
ranking;
|
|
|
|
restrictive covenants, if any;
|
|
|
|
voting or other rights, if any; and
|
|
|
|
important federal income tax considerations.
|
A prospectus supplement may include a discussion of risks or
other special considerations applicable to us or the offered
securities. A prospectus supplement may also add, update or
change information in this prospectus. If there is any
inconsistency between the information in this prospectus and the
applicable prospectus supplement, you must rely on the
information in the prospectus supplement. Please carefully read
both this prospectus and the applicable prospectus supplement
together with additional information described under the heading
Where You Can Find More Information. This prospectus
may not be used to offer or sell any securities unless
accompanied by a prospectus supplement.
The registration statement containing this prospectus, including
exhibits to the registration statement, provides additional
information about us and the common stock offered under this
prospectus. The registration statement can be read at the SEC
website or at the SECs public reading room mentioned under
the heading Where You Can Find More Information.
We have not authorized any broker-dealer, salesperson or other
person to give any information or to make any representation
other than those contained or incorporated by reference in this
prospectus and the accompanying supplement to this prospectus.
You must not rely upon any information or representation not
contained or incorporated by reference in this prospectus or the
accompanying prospectus supplement. This prospectus and the
accompanying supplement to this prospectus do not constitute an
offer to sell or the solicitation of an offer to buy securities,
nor do this prospectus and the accompanying supplement to this
prospectus 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. The
information contained in this prospectus and the accompanying
prospectus supplement speaks only as of the date set forth on
the cover page and may not reflect subsequent changes in our
business, financial condition, results of operations and
prospects even
1
though this prospectus and any accompanying prospectus
supplement is delivered or securities are sold on a later date.
We may sell the securities directly to or through underwriters,
dealers or agents. We, and our underwriters or agents, reserve
the right to accept or reject all or part of any proposed
purchase of securities. If we do offer securities through
underwriters or agents, we will include in the applicable
prospectus supplement:
|
|
|
|
|
the names of those underwriters or agents;
|
|
|
|
applicable fees, discounts and commissions to be paid to them;
|
|
|
|
details regarding over-allotment options, if any; and
|
|
|
|
the net proceeds to us.
|
Common Stock. We may issue shares of
our common stock from time to time. Holders of our common stock
are entitled to one vote per share for the election of directors
and on all other matters that require stockholder approval.
Subject to any preferential rights of any outstanding preferred
stock, in the event of our liquidation, dissolution or winding
up, holders of our common stock are entitled to share ratably in
the assets remaining after payment of liabilities and the
liquidation preferences of any outstanding preferred stock. Our
common stock does not carry any redemption rights or any
preemptive rights enabling a holder to subscribe for, or receive
shares of, any class of our common stock or any other securities
convertible into shares of any class of our common stock.
Preferred Stock. We may issue shares of
our preferred stock from time to time, in one or more series.
Under our certificate of incorporation, our board of directors
has the authority, without further action by stockholders, to
designate up to 5,000,000 shares of preferred stock in one
or more series and to fix the rights, preferences, privileges,
qualifications and restrictions granted to or imposed upon the
preferred stock, including dividend rights, conversion rights,
voting rights, rights and terms of redemption, liquidation
preference and sinking fund terms, any or all of which may be
greater than the rights of the common stock.
If we issue preferred stock, we will fix the rights,
preferences, privileges, qualifications and restrictions of the
preferred stock of each series that we sell under this
prospectus and applicable prospectus supplements in the
certificate of designations relating to that series. If we issue
preferred stock, we will incorporate by reference into the
registration statement of which this prospectus is a part the
form of any certificate of designations that describes the terms
of the series of preferred stock we are offering before the
issuance of the related series of preferred stock. We urge you
to read the prospectus supplement related to any series of
preferred stock we may offer, as well as the complete
certificate of designations that contains the terms of the
applicable series of preferred stock.
Debt Securities. We may issue debt
securities from time to time, in one or more series, as either
senior or subordinated debt or as senior or subordinated
convertible debt. The senior debt securities will rank equally
with any other unsubordinated debt that we may have and may be
secured or unsecured. The subordinated debt securities will be
subordinate and junior in right of payment, to the extent and in
the manner described in the instrument governing the debt, to
all or some portion of our indebtedness. Any convertible debt
securities that we issue will be convertible into or
exchangeable for our common stock or other securities of ours.
Conversion may be mandatory or at your option and would be at
prescribed conversion rates.
If we issue debt securities, they will be issued under one or
more documents called indentures, which are contracts between us
and a trustee for the holders of the debt securities. We urge
you to read the prospectus supplement related to the series of
debt securities being offered, as well as the complete indenture
that contains the terms of the debt securities (which will
include a supplemental indenture). If we issue debt securities,
indentures and forms of debt securities containing the terms of
debt securities being offered will be incorporated by reference
into the registration statement of which this prospectus is a
part from reports we would subsequently file with the SEC.
Warrants. We may issue warrants for the
purchase of common stock, preferred stock
and/or debt
securities in one or more series, from time to time. We may
issue warrants independently or together with
2
common stock, preferred stock
and/or debt
securities, and the warrants may be attached to or separate from
those securities.
If we issue warrants, they will be evidenced by warrant
agreements or warrant certificates issued under one or more
warrant agreements, which are contracts between us and an agent
for the holders of the warrants. We urge you to read the
prospectus supplement related to any series of warrants we may
offer, as well as the complete warrant agreement and warrant
certificate that contain the terms of the warrants. If we issue
warrants, forms of warrant agreements and warrant certificates
relating to warrants for the purchase of common stock, preferred
stock and debt securities will be incorporated by reference into
the registration statement of which this prospectus is a part
from reports we would subsequently file with the SEC.
About
Anthera Pharmaceuticals, Inc.
We are a biopharmaceutical company focused on developing and
commercializing products to treat serious diseases associated
with inflammation, including cardiovascular and autoimmune
diseases. We currently have one Phase 3 clinical program,
varespladib, and two Phase 2 clinical programs,
A-623 and
A-001.
Varespladib and
A-001
inhibit a novel enzyme target known as secretory phospholipase
A2, or
sPLA2.
Elevated levels of
sPLA2
have been implicated in a variety of acute inflammatory
conditions, including acute coronary syndrome and acute chest
syndrome, as well as chronic diseases such as stable coronary
artery disease, or CAD. Our Phase 2 product candidate,
A-623,
targets elevated levels of B-lymphocyte stimulator, or BLyS,
also known as B-cell Activating Factor, or BAFF, which has been
associated with a variety of B-cell mediated autoimmune
diseases, including systemic lupus erythematosus, or lupus. We
have worldwide rights to our product candidates, with the
exception of Japan, where Shionogi & Co., Ltd. retains
commercial rights to our
sPLA2
product candidates.
For additional information about our company, please refer to
other documents we have filed with the SEC and that are
incorporated by reference into this prospectus, as listed under
the heading Incorporation of Certain Information by
Reference. Copies of our current and periodic reports
filed with the SEC are available at the SEC Public Reference
Room at 100 F Street, N.E., Washington, D.C.
20549, and online at www.sec.gov and our website at
www.anthera.com. The information contained on our
website or that can be accessed through our website is not
incorporated by reference into this prospectus and is not part
of this prospectus.
We were incorporated in Delaware on September 9, 2004 as
Anthera Pharmaceuticals, Inc. Our corporate headquarters are
located at 25801 Industrial Boulevard, Suite B, Hayward,
California 94545 and our telephone number is
(510) 856-5600.
We use various trademarks, service marks and trade names in our
business, including without limitation Anthera
Pharmaceuticals and Anthera. This prospectus
also contains trademarks, service marks and trade names of other
businesses that are the property of their respective holders.
Unless the context otherwise requires, we use the terms
Anthera Pharmaceuticals, Anthera,
we, us, the Company and
our in this prospectus to refer to Anthera
Pharmaceuticals, Inc. and its sole subsidiary.
3
RISK
FACTORS
Before making an investment decision, you should carefully
consider the risks described under Risk Factors in
the applicable prospectus supplement, together with all of the
other information appearing in this prospectus or incorporated
by reference into this prospectus and any applicable prospectus
supplement, in light of your particular investment objectives
and financial circumstances. Our business, financial condition
or results of operations could be materially adversely affected
by any of these risks. The trading price of our securities could
decline due to any of these risks, and you may lose all or part
of your investment. This prospectus and the incorporated
documents also contain forward-looking statements that involve
risks and uncertainties. Our actual results could differ
materially from those anticipated in these forward-looking
statements as a result of certain factors, including the risks
mentioned elsewhere in this prospectus.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference into
it contain forward-looking statements. Forward-looking
statements relate to future events or our future financial
performance. We generally identify forward-looking statements by
terminology such as may, will,
would, should, expects,
plans, anticipates, could,
intends, target, projects,
contemplates, believes,
estimates, predicts, assume,
intend, potential, continue
or other similar words or the negative of these terms. These
statements are only predictions. We have based these
forward-looking statements largely on our current expectations
and projections about future events and financial trends that we
believe may affect our business, financial condition and results
of operations. The outcome of the events described in these
forward-looking statements is subject to risks, uncertainties
and other factors described in Risk Factors and in
our periodic filings with the SEC, incorporated by reference or
included in this prospectus or any prospectus supplement.
Accordingly, you should not place undue reliance upon these
forward-looking statements. We cannot assure you that the events
and circumstances reflected in the forward-looking statements
will be achieved or occur, the timing of events and
circumstances and actual results could differ materially from
those projected in the forward looking statements.
Forward-looking statements contained in this prospectus include,
but are not limited to, statements about:
|
|
|
|
|
our expectations related to the use of proceeds, if any, from
this offering;
|
|
|
|
the progress of, timing of and amount of expenses associated
with our research, development and commercialization activities;
|
|
|
|
the timing, conduct and success of our clinical studies for our
product candidates;
|
|
|
|
our ability to obtain U.S. and foreign regulatory approval
for our product candidates and the ability of our product
candidates to meet existing or future regulatory standards;
|
|
|
|
our expectations regarding federal, state and foreign regulatory
requirements;
|
|
|
|
the therapeutic benefits and effectiveness of our product
candidates;
|
|
|
|
the accuracy of our estimates of the size and characteristics of
the markets that may be addressed by our product candidates;
|
|
|
|
our ability to manufacture sufficient amounts of our product
candidates for clinical studies and products for
commercialization activities;
|
|
|
|
our intention to seek to establish strategic collaborations or
partnerships for the development or sale of our product
candidates;
|
|
|
|
our expectations as to future financial performance, expense
levels and liquidity sources;
|
|
|
|
the timing of commercializing our product candidates;
|
|
|
|
our ability to compete with other companies that are or may be
developing or selling products that are competitive with our
product candidates;
|
4
|
|
|
|
|
anticipated trends and challenges in our potential markets;
|
|
|
|
our ability to attract and retain key personnel; and
|
|
|
|
other factors discussed elsewhere in this prospectus or any
prospectus supplement.
|
The forward-looking statements made or incorporated by reference
in this prospectus relate only to events as of the date on which
the statements are made. We have included important factors in
the cautionary statements included in this prospectus and
incorporated herein by reference, including under the caption
entitled Risk Factors that we believe could cause
actual results or events to differ materially from the
forward-looking statements that we make. Our forward-looking
statements do not reflect the potential impact of any future
acquisitions, mergers, dispositions, joint ventures or
investments we may make. Except as required by law, we do not
assume any intent to update any forward-looking statements after
the date on which the statement is made, whether as a result of
new information, future events or circumstances or otherwise.
DESCRIPTION
OF SECURITIES
We may offer shares of our common stock and preferred stock,
various series of debt securities and warrants to purchase any
such securities with a total value of up to $75,000,000 from
time to time under this prospectus at prices and on terms to be
determined by market conditions at the time of offering. Each
time we offer a type or series of securities, we will provide a
prospectus supplement that will describe the specific amounts,
prices and other important terms of the securities.
Description
of Common Stock
We may issue shares of our common stock from time to time.
Holders of our common stock are entitled to one vote per share
for the election of directors and on all other matters that
require stockholder approval. Subject to any preferential rights
of any outstanding preferred stock, in the event of our
liquidation, dissolution or winding up, holders of our common
stock are entitled to share ratably in the assets remaining
after payment of liabilities and the liquidation preferences of
any outstanding preferred stock. Our common stock does not carry
any redemption rights or any preemptive rights enabling a holder
to subscribe for, or receive shares of, any class of our common
stock or any other securities convertible into shares of any
class of our common stock.
Description
of Preferred Stock
We may issue shares of our preferred stock from time to time, in
one or more series. Under our certificate of incorporation, our
board of directors has the authority, without further action by
stockholders, to designate up to 5,000,000 shares of
preferred stock in one or more series and to fix the rights,
preferences, privileges, qualifications and restrictions granted
to or imposed upon the preferred stock, including dividend
rights, conversion rights, voting rights, rights and terms of
redemption, liquidation preference and sinking fund terms, any
or all of which may be greater than the rights of the common
stock.
If we issue preferred stock, we will fix the rights,
preferences, privileges, qualifications and restrictions of the
preferred stock of each series that we sell under this
prospectus and applicable prospectus supplements in the
certificate of designations relating to that series. If we issue
preferred stock, we will incorporate by reference into the
registration statement of which this prospectus is a part the
form of any certificate of designations that describes the terms
of the series of preferred stock we are offering before the
issuance of the related series of preferred stock. We urge you
to read the prospectus supplement related to any series of
preferred stock we may offer, as well as the complete
certificate of designations that contains the terms of the
applicable series of preferred stock.
5
Description
of Debt Securities
The paragraphs below describe the general terms and provisions
of the debt securities we may issue. When we offer to sell a
particular series of debt securities, we will describe the
specific terms of the securities in a supplement to this
prospectus, including any additional covenants or changes to
existing covenants relating to such series. The prospectus
supplement also will indicate whether the general terms and
provisions described in this prospectus apply to a particular
series of debt securities. You should read the actual indenture
if you do not fully understand a term or the way we use it in
this prospectus.
We may offer senior or subordinated debt securities. Each series
of debt securities may have different terms. The senior debt
securities will be issued under one or more senior indentures,
dated as of a date prior to such issuance, between us and a
trustee, as amended or supplemented from time to time. We will
refer to any such indenture throughout this prospectus as the
senior indenture. Any subordinated debt securities
will be issued under one or more separate indentures, dated as
of a date prior to such issuance, between us and a trustee, as
amended or supplemented from time to time. We will refer to any
such indenture throughout this prospectus as the
subordinated indenture and to the trustee under the
senior or subordinated indenture as the trustee. The
senior indenture and the subordinated indenture are sometimes
collectively referred to in this prospectus as the
indentures. The indentures will be subject to and
governed by the Trust Indenture Act of 1939, as amended. We
included copies of the forms of the indentures as exhibits to
our registration statement and they are incorporated into this
prospectus by reference.
If we issue debt securities at a discount from their principal
amount, then, for purposes of calculating the aggregate initial
offering price of the offered securities issued under this
prospectus, we will include only the initial offering price of
the debt securities and not the principal amount of the debt
securities.
We have summarized below the material provisions of the
indentures and the debt securities, or indicated which material
provisions will be described in the related prospectus
supplement. The prospectus supplement relating to any particular
securities offered will describe the specific terms of the
securities, which may be in addition to or different from the
general terms summarized in this prospectus. Because the summary
in this prospectus and in any prospectus supplement does not
contain all of the information that you may find useful, you
should read the documents relating to the securities that are
described in this prospectus or in any applicable prospectus
supplement. Please read Where You Can Find More
Information to find out how you can obtain a copy of those
documents. Except as otherwise indicated, the terms of the
indentures are identical. As used under this caption, the term
debt securities includes the debt securities being
offered by this prospectus and all other debt securities issued
by us under the indentures.
General
The indentures:
|
|
|
|
|
do not limit the amount of debt securities that we may issue;
|
|
|
|
allow us to issue debt securities in one or more series;
|
|
|
|
do not require us to issue all of the debt securities of a
series at the same time;
|
|
|
|
allow us to reopen a series to issue additional debt securities
without the consent of the holders of the debt securities of
such series; and
|
|
|
|
provide that the debt securities will be unsecured, except as
may be set forth in the applicable prospectus supplement.
|
Unless we give you different information in the applicable
prospectus supplement, the senior debt securities will be
unsubordinated obligations and will rank equally with all of our
other unsecured and unsubordinated indebtedness. Payments on the
subordinated debt securities will be subordinated to the prior
payment in full of all of our senior indebtedness, as described
under Description of the Debt Securities
Subordination and in the applicable prospectus supplement.
6
Each indenture provides that we may, but need not, designate
more than one trustee under an indenture. Any trustee under an
indenture may resign or be removed and a successor trustee may
be appointed to act with respect to the series of debt
securities administered by the resigning or removed trustee. If
two or more persons are acting as trustee with respect to
different series of debt securities, each trustee shall be a
trustee of a trust under the applicable indenture separate and
apart from the trust administered by any other trustee. Except
as otherwise indicated in this prospectus, any action described
in this prospectus to be taken by each trustee may be taken by
each trustee with respect to, and only with respect to, the one
or more series of debt securities for which it is trustee under
the applicable indenture.
The prospectus supplement for each offering will provide the
following terms, where applicable:
|
|
|
|
|
the title of the debt securities and whether they are senior or
subordinated;
|
|
|
|
the aggregate principal amount of the debt securities being
offered, the aggregate principal amount of the debt securities
outstanding as of the most recent practicable date and any limit
on their aggregate principal amount, including the aggregate
principal amount of debt securities authorized;
|
|
|
|
the price at which the debt securities will be issued, expressed
as a percentage of the principal and, if other than the
principal amount thereof, the portion of the principal amount
thereof payable upon declaration of acceleration of the maturity
thereof or, if applicable, the portion of the principal amount
of such debt securities that is convertible into common stock or
preferred stock or the method by which any such portion shall be
determined;
|
|
|
|
if convertible, the terms on which such debt securities are
convertible, including the initial conversion price or rate and
the conversion period and any applicable limitations on the
ownership or transferability of common stock or preferred stock
received on conversion;
|
|
|
|
the date or dates, or the method for determining the date or
dates, on which the principal of the debt securities will be
payable;
|
|
|
|
the fixed or variable interest rate or rates of the debt
securities, or the method by which the interest rate or rates is
determined;
|
|
|
|
the date or dates, or the method for determining the date or
dates, from which interest will accrue;
|
|
|
|
the dates on which interest will be payable;
|
|
|
|
the record dates for interest payment dates, or the method by
which we will determine those dates;
|
|
|
|
the persons to whom interest will be payable;
|
|
|
|
the basis upon which interest will be calculated if other than
that of a
360-day year
of twelve
30-day
months;
|
|
|
|
any make-whole amount, which is the amount in addition to
principal and interest that is required to be paid to the holder
of a debt security as a result of any optional redemption or
accelerated payment of such debt security, or the method for
determining the make-whole amount;
|
|
|
|
the place or places where the principal of, and any premium, or
make-whole amount, and interest on, the debt securities will be
payable;
|
|
|
|
where the debt securities may be surrendered for registration of
transfer or conversion or exchange;
|
|
|
|
where notices or demands to or upon us in respect of the debt
securities and the applicable indenture may be served;
|
|
|
|
the times, prices and other terms and conditions upon which we
may redeem the debt securities;
|
|
|
|
any obligation we have to redeem, repay or purchase the debt
securities pursuant to any sinking fund or analogous provision
or at the option of holders of the debt securities, and the
times and prices at which we must redeem, repay or purchase the
debt securities as a result of such an obligation;
|
7
|
|
|
|
|
the currency or currencies in which the debt securities are
denominated and payable if other than United States dollars,
which may be a foreign currency or units of two or more foreign
currencies or a composite currency or currencies and the terms
and conditions relating thereto, and the manner of determining
the equivalent of such foreign currency in United States dollars;
|
|
|
|
whether the principal of, and any premium, or make-whole amount,
or interest on, the debt securities of the series are to be
payable, at our election or at the election of a holder, in a
currency or currencies other than that in which the debt
securities are denominated or stated to be payable, and other
related terms and conditions;
|
|
|
|
whether the amount of payments of principal of, and any premium,
or make-whole amount, or interest on, the debt securities may be
determined according to an index, formula or other method and
how such amounts will be determined;
|
|
|
|
whether the debt securities will be in registered form, bearer
form or both and (1) if in registered form, the person to
whom any interest shall be payable, if other than the person in
whose name the security is registered at the close of business
on the regular record date for such interest, or (2) if in
bearer form, the manner in which, or the person to whom, any
interest on the security shall be payable if otherwise than upon
presentation and surrender upon maturity;
|
|
|
|
any restrictions applicable to the offer, sale or delivery of
securities in bearer form and the terms upon which securities in
bearer form of the series may be exchanged for securities in
registered form of the series and vice versa if permitted by
applicable laws and regulations;
|
|
|
|
whether any debt securities of the series are to be issuable
initially in temporary global form and whether any debt
securities of the series are to be issuable in permanent global
form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent global security may or
shall be required to exchange their interests for other debt
securities of the series, and the manner in which interest shall
be paid;
|
|
|
|
the identity of the depositary for securities in registered
form, if such series are to be issuable as a global security;
|
|
|
|
the date as of which any debt securities in bearer form or in
temporary global form shall be dated if other than the original
issuance date of the first security of the series to be issued;
|
|
|
|
the applicability, if any, of the defeasance and covenant
defeasance provisions described in this prospectus or in the
applicable indenture;
|
|
|
|
whether and under what circumstances we will pay any additional
amounts on the debt securities in respect of any tax, assessment
or governmental charge and, if so, whether we will have the
option to redeem the debt securities in lieu of making such a
payment;
|
|
|
|
whether and under what circumstances the debt securities being
offered are convertible into common stock or preferred stock, as
the case may be, including the conversion price or rate or
manner or calculation thereof;
|
|
|
|
the circumstances, if any, specified in the applicable
prospectus supplement, under which beneficial owners of
interests in the global security may obtain definitive debt
securities and the manner in which payments on a permanent
global debt security will be made if any debt securities are
issuable in temporary or permanent global form;
|
|
|
|
any provisions granting special rights to holders of securities
upon the occurrence of such events as specified in the
applicable prospectus supplement;
|
|
|
|
if the debt securities of such series are to be issuable in
definitive form only upon receipt of certain certificates or
other documents or satisfaction of other conditions, then the
form and/or
terms of such certificates, documents or conditions;
|
8
|
|
|
|
|
the name of the applicable trustee and the nature of any
material relationship with us or any of our affiliates, and the
percentage of debt securities of the class necessary to require
the trustee to take action;
|
|
|
|
any deletions from, modifications of, or additions to our events
of default or covenants and any change in the right of any
trustee or any of the holders to declare the principal amount of
any of such debt securities due and payable;
|
|
|
|
applicable CUSIP numbers; and
|
|
|
|
any other terms of such debt securities not inconsistent with
the provisions of the applicable indenture.
|
We may issue debt securities at a discount below their principal
amount and provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the
maturity of the debt securities. We refer to any such debt
securities throughout this prospectus as original issue
discount securities. The applicable prospectus supplement
will describe the United States federal income tax consequences
and other relevant considerations applicable to original issue
discount securities.
We also may issue indexed debt securities. Payments of principal
of and premium and interest on, indexed debt securities are
determined with reference to the rate of exchange between the
currency or currency unit in which the debt security is
denominated and any other currency or currency unit specified by
us, to the relationship between two or more currencies or
currency units or by other similar methods or formulas specified
in the prospectus supplement.
Except as described under Merger,
Consolidation or Sale of Assets or as may be set forth in
any prospectus supplement, the debt securities will not contain
any provisions that (1) would limit our ability to incur
indebtedness or (2) would afford holders of debt securities
protection in the event of (a) a highly leveraged or
similar transaction involving us, or (b) a change of
control or reorganization, restructuring, merger or similar
transaction involving us that may adversely affect the holders
of the debt securities. In the future, we may enter into
transactions, such as the sale of all or substantially all of
our assets or a merger or consolidation, that may have an
adverse effect on our ability to service our indebtedness,
including the debt securities, by, among other things,
substantially reducing or eliminating our assets.
Neither the Delaware General Corporation Law nor our governing
instruments define the term substantially all as it
relates to the sale of assets. Additionally, Delaware cases
interpreting the term substantially all rely upon
the facts and circumstances of each particular case.
Consequently, to determine whether a sale of substantially
all of our assets has occurred, a holder of debt
securities must review the financial and other information that
we have disclosed to the public.
We will provide you with more information in the applicable
prospectus supplement regarding any deletions, modifications, or
additions to the events of default or covenants that are
described below, including any addition of a covenant or other
provision providing event risk or similar protection.
Payment
Unless we give you different information in the applicable
prospectus supplement, the principal of, and any premium, or
make-whole amount, and interest on, any series of the debt
securities will be payable at the corporate trust office of the
trustee. We will provide you with the address of the trustee in
the applicable prospectus supplement. We may also pay interest
by mailing a check to the address of the person entitled to it
as it appears in the applicable register for the debt securities
or by wire transfer of funds to that person at an account
maintained within the United States.
All monies that we pay to a paying agent or a trustee for the
payment of the principal of, and any premium, or make-whole
amount, or interest on, any debt security will be repaid to us
if unclaimed at the end of two years after the obligation
underlying payment becomes due and payable. After funds have
been returned to us, the holder of the debt security may look
only to us for payment, without payment of interest for the
period which we hold the funds.
9
Denomination,
Interest, Registration and Transfer
Unless otherwise described in the applicable prospectus
supplement, the debt securities of any series will be issuable
in denominations of $1,000 and integral multiples of $1,000.
Subject to the limitations imposed upon debt securities that are
evidenced by a computerized entry in the records of a depository
company rather than by physical delivery of a note, a holder of
debt securities of any series may:
|
|
|
|
|
exchange them for any authorized denomination of other debt
securities of the same series and of a like aggregate principal
amount and kind upon surrender of such debt securities at the
corporate trust office of the applicable trustee or at the
office of any transfer agent that we designate for such
purpose; and
|
|
|
|
surrender them for registration of transfer or exchange at the
corporate trust office of the applicable trustee or at the
office of any transfer agent that we designate for such purpose.
|
Every debt security surrendered for registration of transfer or
exchange must be duly endorsed or accompanied by a written
instrument of transfer satisfactory to the applicable trustee or
transfer agent. Payment of a service charge will not be required
for any registration of transfer or exchange of any debt
securities, but we or the trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable
in connection therewith. If in addition to the applicable
trustee, the applicable prospectus supplement refers to any
transfer agent initially designated by us for any series of debt
securities, we may at any time rescind the designation of any
such transfer agent or approve a change in the location through
which any such transfer agent acts, except that we will be
required to maintain a transfer agent in each place of payment
for such series. We may at any time designate additional
transfer agents for any series of debt securities.
Neither we, nor any trustee, will be required to:
|
|
|
|
|
issue, register the transfer of or exchange debt securities of
any series during a period beginning at the opening of business
15 days before the day that the notice of redemption of any
debt securities selected for redemption is mailed and ending at
the close of business on the day of such mailing;
|
|
|
|
register the transfer of or exchange any debt security, or
portion thereof, so selected for redemption, in whole or in
part, except the unredeemed portion of any debt security being
redeemed in part; and
|
|
|
|
issue, register the transfer of or exchange any debt security
that has been surrendered for repayment at the option of the
holder, except the portion, if any, of such debt security not to
be so repaid.
|
Merger,
Consolidation or Sale of Assets
The indentures provide that we may, without the consent of the
holders of any outstanding debt securities, (1) consolidate
with, (2) sell, lease or convey all or substantially all of
our assets to, or (3) merge with or into, any other entity
provided that:
|
|
|
|
|
either we are the continuing entity, or the successor entity, if
other than us, assumes the obligations (A) to pay the
principal of, and any premium (or make-whole amount) and
interest on, all of the debt securities and (B) to duly
perform and observe all of the covenants and conditions
contained in each indenture;
|
|
|
|
after giving effect to the transaction, there is no event of
default under the indentures and no event which, after notice or
the lapse of time, or both, would become such an event of
default, occurs and continues; and
|
|
|
|
an officers certificate and legal opinion covering such
conditions are delivered to each applicable trustee.
|
10
Covenants
Existence. Except as permitted under
Merger, Consolidation or Sale of Assets,
the indentures require us to do or cause to be done all things
necessary to preserve and keep in full force and effect our
existence, rights and franchises. However, the indentures do not
require us to preserve any right or franchise if we determine
that any right or franchise is no longer desirable in the
conduct of our business.
Provision of financial information. The
indentures require us to (1) within 15 days of each of
the respective dates by which we are required to file our annual
reports, quarterly reports and other documents with the SEC,
file with the trustee copies of the annual report, quarterly
report and other documents that we file with the SEC under
Section 13 or 15(d) of the Exchange Act, (2) file with
the trustee and the SEC any additional information, documents
and reports regarding compliance by us with the conditions and
covenants of the indentures, as required, (3) within
30 days after the filing with the trustee, mail to all
holders of debt securities, as their names and addresses appear
in the applicable register for such debt securities, without
cost to such holders, summaries of any documents and reports
required to be filed by us pursuant to (1) and
(2) above, and (4) supply, promptly upon written
request and payment of the reasonable cost of duplication and
delivery, copies of such documents to any prospective holder.
Additional covenants. The applicable
prospectus supplement will set forth any additional covenants of
Anthera relating to any series of debt securities.
Events of
Default, Notice and Waiver
Unless the applicable prospectus supplement states otherwise,
when we refer to events of default as defined in the
indentures with respect to any series of debt securities, we
mean:
|
|
|
|
|
default in the payment of any installment of interest on any
debt security of such series continuing for 30 days;
|
|
|
|
default in the payment of principal of, or any premium, or
make-whole amount, on any debt security of such series for five
business days at its stated maturity;
|
|
|
|
default in making any sinking fund payment as required for any
debt security of such series for five business days;
|
|
|
|
default in the performance or breach of any covenant or warranty
in the debt securities or in the indenture by Anthera continuing
for 60 days after written notice as provided in the
applicable indenture, but not of a covenant added to the
indenture solely for the benefit of a series of debt securities
issued thereunder other than such series;
|
|
|
|
bankruptcy, insolvency or reorganization, or court appointment
of a receiver, liquidator or trustee of Anthera or any
significant subsidiary of Anthera; and
|
|
|
|
any other event of default provided with respect to a particular
series of debt securities.
|
When we use the term significant subsidiary, we
refer to the meaning ascribed to such term in
Rule 1-02
of
Regulation S-X
promulgated under the Securities Act of 1933, as amended, or
Securities Act.
If an event of default occurs and is continuing with respect to
debt securities of any series outstanding, then the applicable
trustee or the holders of 25% or more in principal amount of the
debt securities of that series will have the right to declare
the principal amount of all the debt securities of that series
to be due and payable. If the debt securities of that series are
original issue discount securities or indexed securities, then
the applicable trustee or the holders of 25% or more in
principal amount of the debt securities of that series will have
the right to declare the portion of the principal amount as may
be specified in the terms thereof to be due and payable.
However, at any time after such a declaration of acceleration
has been made, but before a judgment or decree for payment of
the money due has been obtained by the applicable trustee, the
holders of at least a majority in
11
principal amount of outstanding debt securities of such series
or of all debt securities then outstanding under the applicable
indenture may rescind and annul such declaration and its
consequences if:
|
|
|
|
|
we have deposited with the applicable trustee all required
payments of the principal, any premium, or make-whole amount,
interest and, to the extent permitted by law, interest on
overdue installment of interest, plus applicable fees, expenses,
disbursements and advances of the applicable trustee; and
|
|
|
|
all events of default, other than the non-payment of accelerated
principal, or a specified portion thereof, and any premium, or
make-whole amount, have been cured or waived.
|
The indentures also provide that the holders of at least a
majority in principal amount of the outstanding debt securities
of any series or of all debt securities then outstanding under
the applicable indenture may, on behalf of all holders, waive
any past default with respect to such series and its
consequences, except a default:
|
|
|
|
|
in the payment of the principal, any premium, or make-whole
amount, or interest;
|
|
|
|
in respect of a covenant or provision contained in the
applicable indenture that cannot be modified or amended without
the consent of the holders of the outstanding debt security that
is affected by the default; or
|
|
|
|
in respect of a covenant or provision for the benefit or
protection of the trustee, without its express written consent.
|
The indentures require each trustee to give notice to the
holders of debt securities within 90 days of a default
unless such default has been cured or waived. However, the
trustee may withhold notice if specified persons of such trustee
consider such withholding to be in the interest of the holders
of debt securities. The trustee may not withhold notice of a
default in the payment of principal, any premium or interest on
any debt security of such series or in the payment of any
sinking fund installment in respect of any debt security of such
series.
The indentures provide that holders of debt securities of any
series may not institute any proceedings, judicial or otherwise,
with respect to such indenture or for any remedy under the
indenture, unless the trustee fails to act for a period of
60 days after the trustee has received a written request to
institute proceedings in respect of an event of default from the
holders of 25% or more in principal amount of the outstanding
debt securities of such series, as well as an offer of indemnity
reasonably satisfactory to the trustee. However, this provision
will not prevent any holder of debt securities from instituting
suit for the enforcement of payment of the principal of, and any
premium, or make-whole amount, and interest on, such debt
securities at the respective due dates thereof.
The indentures provide that, subject to provisions in each
indenture relating to its duties in the case of a default, a
trustee has no obligation to exercise any of its rights or
powers at the request or direction of any holders of any series
of debt securities then outstanding under the indenture, unless
the holders have offered to the trustee reasonable security or
indemnity. The holders of at least a majority in principal
amount of the outstanding debt securities of any series or of
all debt securities then outstanding under an indenture shall
have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
applicable trustee, or of exercising any trust or power
conferred upon such trustee. However, a trustee may refuse to
follow any direction which:
|
|
|
|
|
is in conflict with any law or the applicable indenture;
|
|
|
|
upon a good faith determination of a responsible officer of the
trustee, may involve the trustee in personal liability; or
|
|
|
|
upon a good faith determination of a responsible officer of the
trustee, may be unduly prejudicial to the holders of debt
securities of the series not joining the proceeding.
|
Within 120 days after the close of each fiscal year, we
will be required to deliver to each trustee a certificate,
signed by one of our several specified officers, stating whether
or not that officer has knowledge of
12
any default under the applicable indenture. If the officer has
knowledge of any default, the notice must specify the nature and
status of the default.
Modification
of the Indentures
The indentures provide that modifications and amendments may be
made only with the consent of the affected holders of at least a
majority in principal amount of all outstanding debt securities
issued under that indenture. However, no such modification or
amendment may, without the consent of the holders of the debt
securities affected by the modification or amendment:
|
|
|
|
|
change the stated maturity of the principal of, or any premium,
or make-whole amount, on, or any installment of principal of or
interest on, any such debt security;
|
|
|
|
reduce the principal amount of, the rate or amount of interest
on or any premium, or make-whole amount, payable on redemption
of any such debt security;
|
|
|
|
reduce the amount of principal of an original issue discount
security that would be due and payable upon declaration of
acceleration of the maturity thereof or would be provable in
bankruptcy, or adversely affect any right of repayment of the
holder of any such debt security;
|
|
|
|
change the place of payment or the coin or currency for payment
of principal of, or any premium, or make-whole amount, or
interest on, any such debt security;
|
|
|
|
impair the right to institute suit for the enforcement of any
payment on or with respect to any such debt security;
|
|
|
|
reduce the percentage in principal amount of any outstanding
debt securities necessary to modify or amend the applicable
indenture with respect to such debt securities, to waive
compliance with particular provisions thereof or defaults and
consequences thereunder or to reduce the quorum or voting
requirements set forth in the applicable indenture; and
|
|
|
|
modify any of the foregoing provisions or any of the provisions
relating to the waiver of particular past defaults or covenants,
except to increase the required percentage to effect such action
or to provide that some of the other provisions may not be
modified or waived without the consent of the holder of such
debt security.
|
The holders of a majority in aggregate principal amount of the
outstanding debt securities of each series may, on behalf of all
holders of debt securities of that series, waive, insofar as
that series is concerned, our compliance with material
restrictive covenants of the applicable indenture.
We and our respective trustee may make modifications and
amendments of an indenture without the consent of any holder of
debt securities for any of the following purposes:
|
|
|
|
|
to evidence the succession of another person to us as obligor
under such indenture;
|
|
|
|
to add to our covenants for the benefit of the holders of all or
any series of debt securities or to surrender any right or power
conferred upon us in such indenture;
|
|
|
|
to add events of default for the benefit of the holders of all
or any series of debt securities;
|
|
|
|
to add or change any provisions of an indenture (1) to
change or eliminate restrictions on the payment of principal of,
or premium, or make-whole amount, or interest on, debt
securities in bearer form, or (2) to permit or facilitate
the issuance of debt securities in uncertificated form, provided
that such action shall not adversely affect the interests of the
holders of the debt securities of any series in any material
respect;
|
|
|
|
to change or eliminate any provisions of an indenture, provided
that any such change or elimination shall become effective only
when there are no debt securities outstanding of any series
created prior thereto which are entitled to the benefit of such
provision;
|
|
|
|
to secure the debt securities;
|
13
|
|
|
|
|
to establish the form or terms of debt securities of any series;
|
|
|
|
to provide for the acceptance of appointment by a successor
trustee or facilitate the administration of the trusts under an
indenture by more than one trustee;
|
|
|
|
to cure any ambiguity, defect or inconsistency in an indenture,
provided that such action shall not adversely affect the
interests of holders of debt securities of any series issued
under such indenture; and
|
|
|
|
to supplement any of the provisions of an indenture to the
extent necessary to permit or facilitate defeasance and
discharge of any series of such debt securities, provided that
such action shall not adversely affect the interests of the
holders of the outstanding debt securities of any series.
|
Voting
The indentures provide that in determining whether the holders
of the requisite principal amount of outstanding debt securities
of a series have given any request, demand, authorization,
direction, notice, consent or waiver under the indentures or
whether a quorum is present at a meeting of holders of debt
securities:
|
|
|
|
|
the principal amount of an original issue discount security that
shall be deemed to be outstanding shall be the amount of the
principal thereof that would be due and payable as of the date
of such determination upon declaration of acceleration of the
maturity thereof;
|
|
|
|
the principal amount of any debt security denominated in a
foreign currency that shall be deemed outstanding shall be the
United States dollar equivalent, determined on the issue date
for such debt
|
|
|
|
security, of the principal amount or, in the case of an original
issue discount security, the United States dollar equivalent on
the issue date of such debt security of the amount determined as
provided in the preceding bullet point;
|
|
|
|
the principal amount of an indexed security that shall be deemed
outstanding shall be the principal face amount of such indexed
security at original issuance, unless otherwise provided for
such indexed security under such indenture; and
|
|
|
|
debt securities owned by us or any other obligor upon the debt
securities or by any affiliate of ours or of such other obligor
shall be disregarded.
|
The indentures contain provisions for convening meetings of the
holders of debt securities of a series. A meeting will be
permitted to be called at any time by the applicable trustee,
and also, upon request, by us or the holders of at least 25% in
principal amount of the outstanding debt securities of such
series, in any such case upon notice given as provided in such
indenture. Except for any consent that must be given by the
holder of each debt security affected by the modifications and
amendments of an indenture described above, any resolution
presented at a meeting or adjourned meeting duly reconvened at
which a quorum is present may be adopted by the affirmative vote
of the holders of a majority of the aggregate principal amount
of the outstanding debt securities of that series represented at
such meeting.
Notwithstanding the preceding paragraph, except as referred to
above, any resolution relating to a request, demand,
authorization, direction, notice, consent, waiver or other
action that may be made, given or taken by the holders of a
specified percentage, which is less than a majority of the
aggregate principal amount of the outstanding debt securities of
a series, may be adopted at a meeting or adjourned meeting duly
reconvened at which a quorum is present by the affirmative vote
of such specified percentage.
Any resolution passed or decision taken at any properly held
meeting of holders of debt securities of any series will be
binding on all holders of such series. The quorum at any meeting
called to adopt a resolution, and at any reconvened meeting,
will be persons holding or representing a majority in principal
amount of the outstanding debt securities of a series. However,
if any action is to be taken relating to a consent or waiver
which may be given by the holders of at least a specified
percentage in principal amount of the outstanding debt
securities of a series, the persons holding such percentage will
constitute a quorum.
14
Notwithstanding the foregoing provisions, the indentures provide
that if any action is to be taken at a meeting with respect to
any request, demand, authorization, direction, notice, consent,
waiver or other action that such indenture expressly provides
may be made, given or taken by the holders of a specified
percentage in principal amount of all outstanding debt
securities affected by such action, or of the holders of such
series and one or more additional series:
|
|
|
|
|
there shall be no minimum quorum requirement for such
meeting; and
|
|
|
|
the principal amount of the outstanding debt securities of such
series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other
action shall be taken account in determining whether such
request, demand, authorization, direction, notice, consent,
waiver or other action has been made, given or taken under such
indenture.
|
Subordination
Unless otherwise provided in the applicable prospectus
supplement, subordinated securities will be subject to the
following subordination provisions.
Upon any distribution to our creditors in a liquidation,
dissolution or reorganization, the payment of the principal of
and interest on any subordinated securities will be subordinated
to the extent provided in the applicable indenture in right of
payment to the prior payment in full of all senior debt.
However, our obligation to make payments of the principal of and
interest on such subordinated securities otherwise will not be
affected. No payment of principal or interest will be permitted
to be made on subordinated securities at any time if a default
on senior debt exists that permits the holders of such senior
debt to accelerate its maturity and the default is the subject
of judicial proceedings or we receive notice of the default.
After all senior debt is paid in full and until the subordinated
securities are paid in full, holders of subordinated securities
will be subrogated to the rights of holders of senior debt to
the extent that distributions otherwise payable to holders of
subordinated securities have been applied to the payment of
senior debt. The subordinated indenture will not restrict the
amount of senior debt or other indebtedness of Anthera and its
subsidiaries. As a result of these subordination provisions, in
the event of a distribution of assets upon insolvency, holders
of subordinated securities may recover less, ratably, than our
general creditors.
The term senior debt will be defined in the
applicable indenture as the principal of and interest on, or
substantially similar payments to be made by us in respect of,
other outstanding indebtedness, whether outstanding at the date
of execution of the applicable indenture or subsequently
incurred, created or assumed. The prospectus supplement may
include a description of additional terms implementing the
subordination feature.
No restrictions will be included in any indenture relating to
subordinated securities upon the creation of additional senior
debt.
If this prospectus is being delivered in connection with the
offering of a series of subordinated securities, the
accompanying prospectus supplement or the information
incorporated in this prospectus by reference will set forth the
approximate amount of senior debt outstanding as of the end of
our most recent fiscal quarter.
Discharge,
Defeasance and Covenant Defeasance
Unless otherwise indicated in the applicable prospectus
supplement, the indentures allow us to discharge our obligations
to holders of any series of debt securities issued under any
indenture when:
|
|
|
|
|
either (1) all securities of such series have already been
delivered to the applicable trustee for cancellation; or
(2) all securities of such series have not already been
delivered to the applicable trustee for cancellation but
(A) have become due and payable, (B) will become due
and payable within one year, or (C) if redeemable at our
option, are to be redeemed within one year, and we have
irrevocably deposited with the applicable trustee, in trust,
funds in such currency or currencies, currency unit or units or
composite currency or currencies in which such debt securities
are payable, an amount sufficient to pay the entire indebtedness
on such debt securities in respect of principal and any
|
15
|
|
|
|
|
premium, or make-whole amount, and interest to the date of such
deposit if such debt securities have become due and payable or,
if they have not, to the stated maturity or redemption date;
|
|
|
|
|
|
we have paid or caused to be paid all other sums
payable; and
|
|
|
|
an officers certificate and an opinion of counsel stating
the conditions to discharging the debt securities have been
satisfied has been delivered to the trustee.
|
Unless otherwise indicated in the applicable prospectus
supplement, the indentures provide that, upon our irrevocable
deposit with the applicable trustee, in trust, of an amount, in
such currency or currencies, currency unit or units or composite
currency or currencies in which such debt securities are payable
at stated maturity, or government obligations, or both,
applicable to such debt securities, which through the scheduled
payment of principal and interest in accordance with their terms
will provide money in an amount sufficient to pay the principal
of, and any premium, or make-whole amount, and interest on, such
debt securities, and any mandatory sinking fund or analogous
payments thereon, on the scheduled due dates therefor, the
issuing company may elect either:
|
|
|
|
|
to defease and be discharged from any and all obligations with
respect to such debt securities; or
|
|
|
|
to be released from its obligations with respect to such debt
securities under the applicable indenture or, if provided in the
applicable prospectus supplement, its obligations with respect
to any other covenant, and any omission to comply with such
obligations shall not constitute an event of default with
respect to such debt securities.
|
Notwithstanding the above, we may not elect to defease and be
discharged from the obligation to pay any additional amounts
upon the occurrence of particular events of tax, assessment or
governmental charge with respect to payments on such debt
securities and the obligations to register the transfer or
exchange of such debt securities, to replace temporary or
mutilated, destroyed, lost or stolen debt securities, to
maintain an office or agency in respect of such debt securities,
or to hold monies for payment in trust.
The indentures only permit us to establish the trust described
in the paragraph above if, among other things, it has delivered
to the applicable trustee an opinion of counsel to the effect
that the holders of such debt securities will not recognize
income, gain or loss for United States federal income tax
purposes as a result of such defeasance or covenant defeasance
and will be subject to United States federal income tax on the
same amounts, in the same manner and at the same times as would
have been the case if such defeasance or covenant defeasance had
not occurred. Such opinion of counsel, in the case of
defeasance, will be required to refer to and be based upon a
ruling received from or published by the Internal Revenue
Service or a change in applicable United States federal income
tax law occurring after the date of the indenture. In the event
of such defeasance, the holders of such debt securities would be
able to look only to such trust fund for payment of principal,
any premium, or make-whole amount, and interest.
When we use the term government obligations, we mean
securities that are:
|
|
|
|
|
direct obligations of the United States or the government that
issued the foreign currency in which the debt securities of a
particular series are payable, for the payment of which its full
faith and credit is pledged; or
|
|
|
|
obligations of a person controlled or supervised by and acting
as an agency or instrumentality of the United States or other
government that issued the foreign currency in which the debt
securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation
by the United States or such other government, which are not
callable or redeemable at the option of the issuer thereof and
shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such government
obligation or a specific payment of interest on or principal of
any such government obligation held by such custodian for the
account of the holder of a depository receipt. However, except
as required by law, such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the government obligation or the specific payment of
interest on or principal of the government obligation evidenced
by such depository receipt.
|
16
Unless otherwise provided in the applicable prospectus
supplement, if after we have deposited funds
and/or
government obligations to effect defeasance or covenant
defeasance with respect to debt securities of any series,
(1) the holder of a debt security of such series is
entitled to, and does, elect under the terms of the applicable
indenture or the terms of such debt security to receive payment
in a currency, currency unit or composite currency other than
that in which such deposit has been made in respect of such debt
security, or (2) a conversion event occurs in respect of
the currency, currency unit or composite currency in which such
deposit has been made, the indebtedness represented by such debt
security will be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal
of, and premium, or make-whole amount, and interest on, such
debt security as they become due out of the proceeds yielded by
converting the amount so deposited in respect of such debt
security into the currency, currency unit or composite currency
in which such debt security becomes payable as a result of such
election or such cessation of usage based on the applicable
market exchange rate.
When we use the term conversion event, we mean the
cessation of use of:
|
|
|
|
|
a currency, currency unit or composite currency both by the
government of the country that issued such currency and for the
settlement of transactions by a central bank or other public
institutions of or within the international banking community;
|
|
|
|
the European Currency Unit both within the European Monetary
System and for the settlement of transactions by public
institutions of or within the European Communities; or
|
|
|
|
any currency unit or composite currency other than the European
Currency Unit for the purposes for which it was established.
|
Unless otherwise provided in the applicable prospectus
supplement, all payments of principal of, and any premium, or
make-whole amount, and interest on, any debt security that is
payable in a foreign currency that ceases to be used by its
government of issuance shall be made in United States dollars.
In the event that (1) we effect covenant defeasance with
respect to any debt securities and (2) those debt
securities are declared due and payable because of the
occurrence of any event of default, the amount in the currency,
currency unit or composite currency in which such debt
securities are payable, and government obligations on deposit
with the applicable trustee, will be sufficient to pay amounts
due on such debt securities at the time of their stated maturity
but may not be sufficient to pay amounts due on such debt
securities at the time of the acceleration resulting from such
event of default. However, the issuing company would remain
liable to make payments of any amounts due at the time of
acceleration.
If a trustee or paying agent is unable to apply any money in
accordance with the foregoing paragraphs describing discharge
and defeasance by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations under the
indentures and such securities from which Anthera has been
discharged or released pursuant to the foregoing shall be
revived and reinstated as though no deposit had occurred with
respect to such securities, until such time as the trustee or
paying agent is permitted to apply all money held in trust with
respect to such securities in accordance with the foregoing;
provided, that if Anthera makes any payment of principal of or
any premium or interest on any such security following such
reinstatement of its obligations, Anthera shall be subrogated to
the rights (if any) of the holders of such securities to receive
such payment from the money so held in trust.
The applicable prospectus supplement may further describe the
provisions, if any, permitting such defeasance or covenant
defeasance, including any modifications to the provisions
described above, with respect to the debt securities of or
within a particular series.
Conversion
Rights
The terms and conditions, if any, upon which the debt securities
are convertible into common stock or preferred stock will be set
forth in the applicable prospectus supplement. The terms will
include whether the debt securities are convertible into shares
of common stock or preferred stock, the conversion price, or
manner of calculation thereof, the conversion period, provisions
as to whether conversion will be at the issuing companys
17
option or the option of the holders, the events requiring an
adjustment of the conversion price and provisions affecting
conversion in the event of the redemption of the debt securities
and any restrictions on conversion.
Global
Securities
The debt securities of a series may be issued in whole or in
part in the form of one or more global securities that will be
deposited with, or on behalf of, a depository identified in the
applicable prospectus supplement relating to such series. Global
securities, if any, issued in the United States are expected to
be deposited with The Depository Trust Company, or DTC, as
depository. We may issue global securities in either registered
or bearer form and in either temporary or permanent form. We
will describe the specific terms of the depository arrangement
with respect to a series of debt securities in the applicable
prospectus supplement relating to such series. We expect that
unless the applicable prospectus supplement provides otherwise,
the following provisions will apply to depository arrangements.
Once a global security is issued, the depository for such global
security or its nominee will credit on its book-entry
registration and transfer system the respective principal
amounts of the individual debt securities represented by such
global security to the accounts of participants that have
accounts with such depository. Such accounts shall be designated
by the underwriters, dealers or agents with respect to such debt
securities or by us if we offer such debt securities directly.
Ownership of beneficial interests in such global security will
be limited to participants with the depository or persons that
may hold interests through those participants.
We expect that, under procedures established by DTC, ownership
of beneficial interests in any global security for which DTC is
the depository will be shown on, and the transfer of that
ownership will be effected only through, records maintained by
DTC or its nominee, with respect to beneficial interests of
participants with the depository, and records of participants,
with respect to beneficial interests of persons who hold through
participants with the depository. Neither we nor the trustee
will have any responsibility or liability for any aspect of the
records of DTC or for maintaining, supervising or reviewing any
records of DTC or any of its participants relating to beneficial
ownership interests in the debt securities. The laws of some
states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such
limits and laws may impair the ability to own, pledge or
transfer beneficial interest in a global security.
So long as the depository for a global security or its nominee
is the registered owner of such global security, such depository
or such nominee, as the case may be, will be considered the sole
owner or holder of the debt securities represented by the global
security for all purposes under the applicable indenture. Except
as described below or in the applicable prospectus supplement,
owners of beneficial interest in a global security will not be
entitled to have any of the individual debt securities
represented by such global security registered in their names,
will not receive or be entitled to receive physical delivery of
any such debt securities in definitive form and will not be
considered the owners or holders thereof under the applicable
indenture. Beneficial owners of debt securities evidenced by a
global security will not be considered the owners or holders
thereof under the applicable indenture for any purpose,
including with respect to the giving of any direction,
instructions or approvals to the trustee under the indenture.
Accordingly, each person owning a beneficial interest in a
global security with respect to which DTC is the depository must
rely on the procedures of DTC and, if such person is not a
participant with the depository, on the procedures of the
participant through which such person owns its interests, to
exercise any rights of a holder under the applicable indenture.
We understand that, under existing industry practice, if DTC
requests any action of holders or if an owner of a beneficial
interest in a global security desires to give or take any action
which a holder is entitled to give or take under the applicable
indenture, DTC would authorize the participants holding the
relevant beneficial interest to give or take such action, and
such participants would authorize beneficial owners through such
participants to give or take such actions or would otherwise act
upon the instructions of beneficial owners holding through them.
Payments of principal of, and any premium, or make-whole amount,
and interest on, individual debt securities represented by a
global security registered in the name of a depository or its
nominee will be made to or at the direction of the depository or
its nominee, as the case may be, as the registered owner of the
global security under the applicable indenture. Under the terms
of the applicable indenture, we and the trustee may treat the
persons in whose name debt securities, including a global
security, are registered as the owners
18
thereof for the purpose of receiving such payments.
Consequently, neither we nor the trustee have or will have any
responsibility or liability for the payment of such amounts to
beneficial owners of debt securities including principal, any
premium, or make-whole amount, or interest. We believe, however,
that it is currently the policy of DTC to immediately credit the
accounts of relevant participants with such payments, in amounts
proportionate to their respective holdings of beneficial
interests in the relevant global security as shown on the
records of DTC or its nominee. We also expect that payments by
participants to owners of beneficial interests in such global
security held through such participants will be governed by
standing instructions and customary practices, as is the case
with securities held for the account of customers in bearer form
or registered in street name, and will be the responsibility of
such participants. Redemption notices with respect to any debt
securities represented by a global security will be sent to the
depository or its nominee. If less than all of the debt
securities of any series are to be redeemed, we expect the
depository to determine the amount of the interest of each
participant in such debt securities to be redeemed to be
determined by lot. Neither we, the trustee, any paying agent nor
the security registrar for such debt securities will have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests in the global security for such debt securities or for
maintaining any records with respect thereto.
Neither we nor the trustee will be liable for any delay by the
holders of a global security or the depository in identifying
the beneficial owners of debt securities, and we and the trustee
may conclusively rely on, and will be protected in relying on,
instructions from the holder of a global security or the
depository for all purposes. The rules applicable to DTC and its
participants are on file with the SEC.
If a depository for any debt securities is at any time
unwilling, unable or ineligible to continue as depository and we
do not appoint a successor depository within 90 days, we
will issue individual debt securities in exchange for the global
security representing such debt securities. In addition, we may
at any time and in their sole discretion, subject to any
limitations described in the applicable prospectus supplement
relating to such debt securities, determine not to have any of
such debt securities represented by one or more global
securities and in such event will issue individual debt
securities in exchange for the global security or securities
representing such debt securities. Individual debt securities so
issued will be issued in denominations of $1,000 and integral
multiples of $1,000.
The debt securities of a series may also be issued in whole or
in part in the form of one or more bearer global securities that
will be deposited with a depository, or with a nominee for such
depository, identified in the applicable prospectus supplement.
Any such bearer global securities may be issued in temporary or
permanent form. The specific terms and procedures, including the
specific terms of the depositary arrangement, with respect to
any portion of a series of debt securities to be represented by
one or more bearer global securities will be described in the
applicable prospectus supplement.
No
Recourse
There is no recourse under any obligation, covenant or agreement
in the applicable indenture or with respect to any security
against any of our or our successors past, present or
future stockholders, employees, officers or directors.
Description
of Warrants
We may issue warrants for the purchase of common stock,
preferred stock
and/or debt
securities in one or more series, from time to time. We may
issue warrants independently or together with common stock,
preferred stock
and/or debt
securities, and the warrants may be attached to or separate from
those securities.
If we issue warrants, they will be evidenced by warrant
agreements or warrant certificates issued under one or more
warrant agreements, which are contracts between us and an agent
for the holders of the warrants. We urge you to read the
prospectus supplement related to any series of warrants we may
offer, as well as the complete warrant agreement and warrant
certificate that contain the terms of the warrants. If we issue
warrants, forms of warrant agreements and warrant certificates
relating to warrants for the purchase of common stock, preferred
stock and debt securities will be incorporated by reference into
the registration statement of which this prospectus is a part
from reports we would subsequently file with the SEC.
19
USE OF
PROCEEDS
We will retain broad discretion over the use of the net proceeds
from the sale of our securities offered hereby. Except as
described in any prospectus supplement, we currently anticipate
using the net proceeds from the sale of our securities offered
hereby primarily for general corporate purposes which include,
but are not limited to, general and administrative expenses,
capital expenditures, working capital, prosecution and
maintenance of our intellectual property and the potential
investment in technologies or products that complement our
business. We may also use a portion of the net proceeds to pay
off outstanding indebtedness, if any,
and/or
acquire or invest in complementary businesses, products and
technologies. Although we have no specific agreements,
commitments or understandings with respect to any acquisition,
we evaluate acquisition opportunities and engage in related
discussions with other companies from time to time.
Pending the use of the net proceeds, we intend to invest the net
proceeds in short-term, interest-bearing, investment-grade
securities.
RATIO OF
EARNINGS TO FIXED CHARGES
If we offer debt securities
and/or
preference equity securities under this prospectus, then we
will, if required at that time, provide a ratio of earnings to
fixed charges
and/or ratio
of combined fixed charges and preference dividends to earnings,
respectively, in the applicable prospectus supplement for such
offering.
PLAN OF
DISTRIBUTION
We may sell the securities covered by this prospectus from time
to time in one or more offerings. Registration of the securities
covered by this prospectus does not mean, however, that those
securities will necessarily be offered or sold.
We may sell the securities separately or together:
|
|
|
|
|
through one or more underwriters or dealers in a public offering
and sale by them;
|
|
|
|
directly to investors; or
|
|
|
|
through agents.
|
We may sell the securities from time to time:
|
|
|
|
|
in one or more transactions at a fixed price or prices, which
may be changed from time to time;
|
|
|
|
at market prices prevailing at the times of sale;
|
|
|
|
at prices related to such prevailing market prices; or
|
|
|
|
at negotiated prices.
|
We will describe the method of distribution of the securities
and the terms of the offering in the prospectus supplement.
Any discounts or concessions allowed or re-allowed or paid to
dealers may be changed from time to time.
If underwriters are used in the sale of any securities, the
securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more
transactions described above. The securities may be either
offered to the public through underwriting syndicates
represented by managing underwriters, or directly by
underwriters. Generally, the underwriters obligations to
purchase the securities will be subject to conditions precedent
and the underwriters will be obligated to purchase all of the
securities if they purchase any of the securities. We may use
underwriters with whom we have a material relationship. We will
describe in the prospectus supplement, naming the underwriter,
the nature of any such relationship.
We may authorize underwriters, dealers or agents to solicit
offers by certain purchasers to purchase the securities from us
at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. The
contracts will be subject only to those conditions set forth in
the prospectus supplement, and the prospectus supplement will
set forth any commissions we pay for solicitation of these
contracts.
20
Any public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time
to time. Pursuant to a requirement by the Financial Industry
Regulatory Authority, or FINRA, the maximum commission or
discount to be received by any FINRA member or independent
broker/dealer may not be greater than 8% of the gross proceeds
received by us for the sale of any securities being registered
pursuant to SEC Rule 415 under the Securities Act.
We may enter into derivative transactions with third parties, or
sell securities not covered by this prospectus to third parties
in privately negotiated transactions. If the applicable
prospectus supplement indicates, in connection with those
derivatives, the third parties may sell securities covered by
this prospectus and the applicable prospectus supplement,
including in short sale transactions. If so, the third party may
use securities pledged by us or borrowed from us or others to
settle those sales or to close out any related open borrowings
of stock, and may use securities received from us in settlement
of those derivatives to close out any related open borrowings of
stock. The third party in such sale transactions will be an
underwriter and will be identified in the applicable prospectus
supplement or in a post-effective amendment.
Underwriters, dealers and agents may be entitled to
indemnification by us against certain civil liabilities,
including liabilities under the Securities Act, or to
contribution with respect to payments made by the underwriters,
dealers or agents, under agreements between us and the
underwriters, dealers and agents.
We may grant underwriters who participate in the distribution of
securities an option to purchase additional securities to cover
over-allotments, if any, in connection with the distribution.
Underwriters, dealers or agents may receive compensation in the
form of discounts, concessions or commissions from us or our
purchasers, as their agents in connection with the sale of
securities. These underwriters, dealers or agents may be
considered to be underwriters under the Securities Act. As a
result, discounts, commissions or profits on resale received by
the underwriters, dealers or agents may be treated as
underwriting discounts and commissions. The prospectus
supplement will identify any such underwriter, dealer or agent
and describe any compensation received by them from us. Any
initial public offering price and any discounts or concessions
allowed or re-allowed or paid to dealers may be changed from
time to time.
Unless otherwise specified in the related prospectus supplement,
all securities we offer, other than common stock, will be new
issues of securities with no established trading market. Any
underwriters may make a market in these securities, but will not
be obligated to do so and may discontinue any market making at
any time without notice. Any common stock sold pursuant to a
prospectus supplement will be listed for trading on the NASDAQ
Stock Market or other principal market for our common stock. We
may apply to list any series of debt securities, preferred stock
or warrants on an exchange, but we are not obligated to do so.
Therefore, there may not be liquidity or a trading market for
any series of securities.
Any underwriter may engage in over-allotment transactions,
stabilizing transactions, short-covering transactions and
penalty bids in accordance with Regulation M under the
Exchange Act. Over-allotment 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 the
activities at any time. We make no representation or prediction
as to the direction or magnitude of any effect that such
transactions may have on the price of the securities. For a
description of these activities, see the information under the
heading Underwriting or Plan of
Distribution in the applicable prospectus supplement.
Underwriters, broker-dealers or agents who may become involved
in the sale of the common stock may engage in transactions with
and perform other services for us in the ordinary course of
their business for which they receive compensation.
21
LEGAL
MATTERS
The legality of the issuance of the securities being offered
hereby and the binding nature of any debt securities or warrants
being offered hereby is being passed upon by Goodwin Procter
LLP, San Francisco, California.
EXPERTS
The financial statements of the Company incorporated in this
prospectus by reference from the Companys Annual Report on
Form 10-K
for the year ended December 31, 2010 have been audited by
Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in their report (which report
expresses an unqualified opinion and includes an explanatory
paragraph regarding the Companys development stage
status), which is incorporated herein by reference. Such
financial statements have been so incorporated in reliance upon
the reports of such firm given upon their authority as experts
in accounting and auditing.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference into this
prospectus the information contained in other documents we file
with the SEC, which means that we can disclose important
information to you by referring you to those documents. Any
statement contained in any document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified
or superseded, for purposes of this prospectus, to the extent
that a statement contained in or omitted from this prospectus,
or in any other subsequently filed document that also is or is
deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this prospectus. We
incorporate by reference the documents listed below which have
been filed by us:
1. Our Annual Report on
Form 10-K
for the year ended December 31, 2010;
2. Our Current Report on
Form 8-K
filed with the SEC on February 1, 2011;
3. The description of our common stock contained in our
registration statement on
Form 8-A
(File
No. 001-34637)
filed with the SEC on February 22, 2010, including any
amendment or report filed for the purpose of updating such
description.
All documents we file with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
except as to any portion of any report or documents that is not
deemed filed under such provisions, (1) on or after the
date of filing of the registration statement containing this
prospectus and prior to the effectiveness of the registration
statement and (2) on or after the date of this prospectus
until the earlier of the date on which all of the securities
registered hereunder have been sold or the registration
statement of which this prospectus is a part has been withdrawn,
shall be deemed incorporated by reference in this prospectus and
to be a part of this prospectus from the date of filing of those
documents.
We will provide, without charge, to each person, including any
beneficial owner, to whom a copy of this prospectus is
delivered, upon such persons written or oral request, a
copy of any and all of the information incorporated by reference
in this prospectus, other than exhibits to such documents,
unless such exhibits are specifically incorporated by reference
into the information that this prospectus incorporates. Requests
should be directed to the Corporate Secretary, Anthera
Pharmaceuticals, Inc., 25801 Industrial Boulevard, Suite B,
Hayward, California 94545; telephone:
(510) 856-5600.
We have authorized no one to provide you with any information
that differs from that contained in this prospectus.
Accordingly, you should not rely on any information that is not
contained in this prospectus. You should not assume that the
information in this prospectus is accurate as of any date other
than the date of the front cover of this prospectus.
22
WHERE YOU
CAN FIND MORE INFORMATION
We have filed a registration statement, of which this prospectus
is a part, covering the securities offered hereby. As allowed by
SEC rules, this prospectus does not include all of the
information contained in the registration statement. You are
referred to the registration statement and the included exhibits
for further information. This prospectus is qualified in its
entirety by such other information.
We are subject to the informational requirements of the
Securities Exchange Act and file annual, quarterly and current
reports, proxy statements and other information with the SEC.
You can read our SEC filings, including the registration
statement, over the Internet at the SECs website at
www.sec.gov. You may also read and copy any document we
file with the SEC at its Public Reference Room at
100 F Street, N.E., Washington, D.C., 20549.
Please call the SEC at
1-800-SEC-0330
for further information on the operation of the public reference
facility. Additionally, we make these filings available, free of
charge, on our website at www.anthera.com as soon as
reasonably practicable after we electronically file such
materials with, or furnish them to, the SEC.
* * *
23
6,666,667 Shares
Common Stock
Prospectus Supplement
Joint Book-Running Managers
Lead Co-Manager
Canaccord Genuity
June 3, 2011