Filed Pursuant to Rule 424(b)(5)
Registration No. 333-197122
PROSPECTUS SUPPLEMENT
(To Prospectus dated October 3, 2014)
$45,900,000
Common Stock
This prospectus supplement relates to the issuance and sale of up to $45,900,000 in shares of our common stock to Lincoln Park Capital Fund, LLC, or Lincoln Park, under a Purchase Agreement entered into on July 29, 2015, or the Purchase Agreement.
The shares offered include:
| | • | | $5,000,000 of shares of common stock that we are selling to Lincoln Park under the Purchase Agreement on the date hereof at a purchase price of $1.79 per share, or the Initial Sale; |
| | • | | up to $40,000,000 of shares of common stock that may be sold from time to time, at our sole discretion, to Lincoln Park over the next 24 months in accordance with the Purchase Agreement; and |
| | • | | 451,354 shares of common stock to be issued to Lincoln Park as Commitment Shares, in consideration for entering into the Purchase Agreement, valued at approximately $1.99 per share. |
This prospectus supplement and the accompanying prospectus also cover the sale of these shares by Lincoln Park to the public.
Our common stock is traded on the NASDAQ Global Market under the symbol “UNIS.” On July 29, 2015, the last reported sales price for our common stock was $1.87 per share.
Investing in our common stock involves a high degree of risk. Please read “Risk Factors” beginning on page S-9 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.
Prospectus Supplement dated July 29, 2015.
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
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 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 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.”
ABOUT THIS PROSPECTUS SUPPLEMENT
This prospectus supplement and the accompanying prospectus form part of a registration statement on Form S-3 that we have 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 dated October 3, 2014, 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 “Company,” “Unilife,” “we,” “us,” “our” and similar names in this prospectus supplement to refer to Unilife Corporation and its consolidated subsidiaries.
All references in this prospectus supplement to our 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 management’s 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.
The information contained in this prospectus supplement or the accompanying prospectus is accurate only as of the date of this prospectus supplement or the accompanying prospectus, regardless of the time of delivery of this prospectus supplement, the accompanying prospectus or of any sale of the shares. We further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in this prospectus supplement or the accompanying prospectus were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
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CAUTIONARY STATEMENT ABOUT FORWARD-LOOKING INFORMATION
This prospectus supplement 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 supplement include, but are not limited to, statements about:
| | • | | our expectations related to the use of proceeds, if any, from this offering; |
| | • | | our ability to develop and achieve substantial sales of our products to our customers; |
| | • | | legal and regulatory requirements and developments in the U.S. and foreign countries; |
| | • | | the clinical development, therapeutic efficacy and market acceptance of our customers’ product candidates; |
| | • | | the ability to satisfy our debt obligations and comply with our restrictive covenants; |
| | • | | recently enacted and future legislation regarding the healthcare system; |
| | • | | our financial performance; |
| | • | | our estimates regarding expenses, future revenue, capital requirements and needs for additional financing; |
| | • | | our ability to continue as a going concern for the next 12 months; |
| | • | | the success of competing products that are or become available; |
| | • | | obtaining and maintaining intellectual property protection for our products; |
| | • | | our ability to perform under our customer agreements; |
| | • | | our exposure to manufacturing and other business disruptions; |
| | • | | our ability to limit our exposure to product liability lawsuits; |
| | • | | our ability to successfully manage our growth; |
| | • | | our exposure to scrutiny and increased expenses as a result of being a public company; |
| | • | | the impact on the cost of raw materials; and |
| | • | | our failure to recruit or retain key personnel or to retain our executive officers. |
The forward-looking statements made or incorporated by reference in this prospectus supplement 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 supplement 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.
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PROSPECTUS SUPPLEMENT 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 entitled “Risk Factors” in this prospectus supplement, in the accompanying prospectus and in other periodic reports incorporated herein by reference.
Our Company
We are a designer, manufacturer and supplier of innovative injectable drug delivery systems that can enhance and differentiate the injectable drugs, biologics and vaccines, or collectively injectable therapies, of our pharmaceutical and biotechnology customers. We have a broad portfolio of proprietary product platforms, including pre-filled syringes, drug reconstitution delivery systems, auto-injectors, wearable injectors, ocular delivery systems and other novel injectable drug delivery systems. Our newest innovation is the Imperium™ wearable insulin injector—a pre-filled and pre-assembled wearable injector that subcutaneously injects diabetes therapies in doses of 5uL. Products within each product platform are highly differentiated from competitors’ products with a series of innovative features designed to optimize the safe, simple and convenient administration of an injectable therapy. We sell our products directly to pharmaceutical and biotechnology companies who incorporate them into the drug-device combination product that is supplied pre-filled and ready for administration by end-users such as health-care providers or patients. Products within each of our platforms can be customized by us to address specific customer, therapy, patient and/or commercial requirements.
Corporate Information
We were incorporated in Delaware on July 2, 2009 as a wholly-owned subsidiary of Unilife Medical Solutions Limited, or UMSL. On January 27, 2010, we became the parent company of UMSL upon completion of a redomiciliation under Australian law and UMSL’s stockholders and option holders exchanged their interests in UMSL for equivalent interests in us. Our principal executive offices are located at 250 Cross Farm Lane, York, Pennsylvania 17406. Our telephone number is (717) 384-3400. Our website address is www.unilife.com. We make available free of charge on our website our annual, quarterly and current reports, including amendments to such reports, as soon as reasonably practicable after we electronically file such material with, or furnish such material to, the SEC. Information contained on our website is not incorporated by reference into this prospectus supplement or the accompanying prospectus, and you should not consider information contained on our website as part of this prospectus supplement or the accompanying prospectus.
RECENT DEVELOPMENTS
Agreement with Lincoln Park Capital Fund, LLC
On July 29, 2015, we entered into a Purchase Agreement with Lincoln Park Capital Fund, LLC, or Lincoln Park, which provides that, upon the terms and subject to the conditions and limitations set forth therein, we have the right to sell to Lincoln Park up to $45,000,000 worth of shares of our common stock (including the sale of $5,000,000 of shares of our common stock in the Initial Sale as described below). As consideration for entering into the Purchase Agreement, we agreed to issue 451,354 shares of our common stock valued at approximately $1.99 per share to Lincoln Park, or the Commitment Shares.
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We are filing this prospectus supplement with regard to the offering of (i) $5,000,000 of shares of common stock that we are selling to Lincoln Park at a purchase price of $1.79 per share in the Initial Sale, (ii) up to $40,000,000 worth of shares of our common stock, which we may sell from time to time, in our sole discretion, to Lincoln Park over the next 24 months subject to the conditions and limitations in the Purchase Agreement, and (iii) the 451,354 Commitment Shares.
Under the Purchase Agreement, after the Initial Sale, on any business day and as often as every other business day over the 24-month term of the Purchase Agreement, we have the right, in our sole discretion, subject to the conditions and limitations in the Purchase Agreement, to direct Lincoln Park to purchase up to 200,000 shares of our common stock, or a Regular Purchase, except that any individual Regular Purchase will not exceed $2,000,000 without the mutual consent of the parties on the applicable purchase date. The maximum number of shares in any individual Regular Purchase will increase to 250,000 shares if the closing price of our common stock on the purchase date is not below $3.00, to 300,000 shares if the closing price of our common stock on the purchase date is not below $4.00 and to 350,000 shares if the closing price on the purchase date is not below $5.00. The purchase price for shares of common stock to be purchased by Lincoln Park pursuant to a Regular Purchase will be the lower of (i) the lowest sale price on the purchase date, as reported by the NASDAQ Global Market, and (ii) the arithmetic average of the three lowest closing sale prices for our common stock during the 12 consecutive business days prior to the purchase date.
We can also accelerate the amount of our shares of common stock to be purchased under certain circumstances, referred to as an Accelerated Purchase, in amount up to the lesser of (i) three times the number of shares purchased pursuant to the applicable Regular Purchase and (ii) 30% of the trading volume on such accelerated purchase date, if the closing sale price of our common stock equals or exceeds $1.00 on such purchase date, as reported by the NASDAQ Global Market. The purchase price for the additional shares is the lower of:
| | • | | the closing sale price for the common stock on the date of sale; and |
| | • | | ninety-seven percent (97%) of the volume weighted average price of the common stock on the NASDAQ Global Market on the date of sale. |
There is no upper limit on the price per share that Lincoln Park must pay for our common stock under the Purchase Agreement. The purchase price will be equitably adjusted for any reorganization, recapitalization, non-cash dividend, stock split, or other similar transaction occurring during the business days used to compute the purchase price.
There are no trading volume requirements or restrictions under the Purchase Agreement, but there are limitations on the number of shares we can direct Lincoln Park to purchase, as described below. We will control the timing and amount of any sales of our common stock to Lincoln Park. We may at any time, in our sole discretion terminate the Purchase Agreement without fee, penalty or cost, upon one business day notice. We issued 451,354 Commitment Shares to Lincoln Park as consideration for entering into the Purchase Agreement. Lincoln Park may not assign or transfer its rights or obligations under the Purchase Agreement.
The Purchase Agreement limits our sales of shares of common stock to Lincoln Park to a maximum of (i) 19.99% of our total outstanding shares of common stock as of July 28, 2015, or approximately 26,386,297 shares, or the Exchange Cap, unless we first obtain stockholder approval under the rules of the NASDAQ Global Market or unless the average price of all shares of our common stock sold to Lincoln Park exceeds $1.893, such that sales to Lincoln Park are considered to be at least “at market” under applicable NASDAQ rules; or (ii) 15% of our total outstanding shares of common stock as of July 28, 2015, or approximately 19,730,405 shares over a 12 month period or the ASX Cap, unless we first obtain stockholder approval or a waiver under the rules of the Australian Securities Exchange, or the ASX.
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The Purchase Agreement also prohibits us from directing Lincoln Park to purchase any shares of common stock if those shares, when aggregated with all other shares of our common stock then beneficially owned by Lincoln Park and its affiliates, would result in Lincoln Park and its affiliates having beneficial ownership, at any single point in time, of more than 4.99% of the then total outstanding shares of our common stock, as calculated pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and Rule 13d-3 thereunder. Lincoln Park may, by written notice to us, increase or decrease its and its affiliates beneficial ownership to up to 9.99% of the then total outstanding shares of our common stock, as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 thereunder; provided, however that any such increase will not be effective until the 61st day after such notice is delivered to us.
The number of shares ultimately offered for sale by Lincoln Park under this prospectus supplement is dependent upon the number of shares purchased by Lincoln Park under the Purchase Agreement. The following table sets forth the amount of proceeds we would receive from Lincoln Park from the sale of shares that are registered in this offering at varying purchase prices (without accounting for certain fees and expenses):
| | | | | | |
Assumed
Average
Purchase Price | | Number of Registered Shares
to be Issued if Full Purchase | | Percentage of Outstanding
Shares After Giving Effect to
the Issuance to LPC (1) | | Proceeds from the
Sale of Shares to LPC
Under the LPC
Purchase Agreement (1) |
| $1.00 | | 25,000,000 | | 15.88% | | $25,000,000.00 |
| $1.87 (2) | | 24,064,171 | | 15.88% | | $45,000,000.00 |
| $2.50 | | 18,000,000 | | 11.96% | | $45,000,000.00 |
| $3.50 | | 12,857,143 | | 8.85% | | $45,000,000.00 |
| $4.50 | | 10,000,000 | | 7.02% | | $45,000,000.00 |
| (1) | The denominator is based on 131,997,483 shares outstanding as of July 29, 2015, adjusted to include the 451,354 Commitment Shares to be issued to Lincoln Park as consideration for its commitment to purchase our common stock pursuant to the Purchase Agreement, and the number of shares set forth in the adjacent column which we would have sold to Lincoln Park. The numerator is based on the number of shares issuable under the Purchase Agreement at the corresponding assumed purchase price set forth in the adjacent column. |
| (2) | The closing sale price of our shares on July 29, 2015. |
| (3) | 25,000,000 shares have been duly authorized and reserved for issuance upon purchase under the Purchase Agreement. |
Events of default under the Purchase Agreement include the following:
| | • | | the effectiveness of the registration statement, of which this prospectus supplement and accompanying prospectus are a part, lapses for any reason (including, without limitation, the issuance of a stop order), or this prospectus supplement and accompanying prospectus are unavailable for sale by us or the resale by Lincoln Park of our common stock offered hereby, and such lapse or unavailability continues for a period of 10 consecutive business days or for more than an aggregate of 30 business days in any365-day period; |
| | • | | suspension or a trading halt without the consent of Lincoln Park by our principal market of our common stock or the ASX from trading for a period of one business day; |
| | • | | the de-listing of our common stock from the NASDAQ Global Market, provided our common stock is not immediately thereafter trading on the New York Stock Exchange, the NASDAQ Capital Market, the NASDAQ Global Select Market, the NYSE MKT, the NYSE Area, the OTC Bulletin Board or OTC Markets (or nationally recognized successor to any of the foregoing) or a delisting of our Chess Depositary Receipts from quotation on the ASX; provided that a voluntary delisting of our Chess Depositary Receipts from quotation on the ASX will not be an event of default; |
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| | • | | the transfer agent’s failure for three business days to issue to Lincoln Park shares of our common stock which Lincoln Park is entitled to receive under the Purchase Agreement; |
| | • | | any breach of the representations or warranties or covenants contained in the Purchase Agreement or any related agreements which has or which has a material adverse effect on us subject to a cure period of five business days; |
| | • | | any participation or threatened participation in insolvency or bankruptcy proceedings by or against us; |
| | • | | if at any time we are not eligible to transfer our common stock electronically; or |
| | • | | if at any time the Exchange Cap or the ASX Cap is reached, to the extent applicable. |
Lincoln Park does not have the right to terminate the Purchase Agreement upon any of the events of default set forth above. During an event of default, all of which are outside the control of Lincoln Park, we cannot sell shares of our common stock to Lincoln Park under the terms of the Purchase Agreement.
This offering will terminate on the date that all shares offered by this prospectus supplement have been sold or, if earlier, the expiration or termination of the Purchase Agreement. We have the right to terminate the Purchase Agreement at any time, at no cost to us. In the event of bankruptcy proceedings by or against us, the Purchase Agreement will automatically terminate without action of any party.
Other Developments
On January 8, 2014, we were served with a derivative complaint filed in the Delaware Chancery Court by Cambridge Retirement System, a purported stockholder of the Company, against our board of directors to recover allegedly “excessive and wasteful” compensation paid to the non-executive directors since 2010. We believe that these allegations are baseless and without merit and we and the directors are defending ourselves vigorously. In February 2014, we filed a motion to dismiss the complaint in lieu of an answer. On June 26, 2014, the Court granted our motion to dismiss with respect to the directors’ equity grants, but denied the motion with respect to their cash compensation. We filed an answer to the remaining claims on July 11, 2014. On June 4, 2015, the parties entered into a Memorandum of Understanding agreeing to the basic terms of a non-monetary settlement of the action. The parties are negotiating the final terms of a stipulated settlement to be submitted to the Court for approval. It is anticipated that the plaintiff’s counsel will seek an award of attorneys’ fees to be paid by the Company.
We are currently finalizing our financial results for the fiscal year ended June 30, 2015. While complete financial information and operating data are not available, based on information currently available, we estimate that as of June 30, 2015 we had approximately $14.7 million of cash and cash equivalents (including restricted cash), and for the fiscal year ended June 30, 2015, we had approximately $22.7 million in cash receipts from customers and approximately $13.2 million of revenue. These preliminary estimates have been prepared by, and are the responsibility of, our management. Our independent registered public accounting firm, KPMG LLP, has not audited or reviewed, and does not express an opinion with respect to, these estimates. Our actual cash and cash equivalents (including restricted cash) as of June 30, 2015 and our actual revenue for the fiscal year ended June 30, 2015 may differ from these estimates due to the completion of our closing procedures with respect to the fiscal year ended June 30, 2015, final adjustments and other developments that may arise between now and the time the financial results for the year are finalized. We expect to complete our closing procedures with respect to the fiscal year ended June 30, 2015 after this offering has commenced. Accordingly, our consolidated financial statements as of and for the fiscal year ended June 30, 2015 will not be available until after this offering has commenced.
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THE OFFERING
Common stock offered by Unilife | • | | $5,000,000 of shares of common stock that we are selling to Lincoln Park at a purchase price of $1.79 per share in the Initial Sale; |
| | • | | up to $40,000,000 of shares of common stock that may be sold from time to time, at our sole discretion, to Lincoln Park over the next 24 months in accordance with the Purchase Agreement; and |
| | • | | 451,354 shares of common stock to be issued to Lincoln Park as Commitment Shares, in consideration for entering into the Purchase Agreement. |
Common stock to be outstanding after this offering | Up to 155,900,087 shares, assuming a sales price of $1.87 per share for the $40,000,000 that may be sold from time to time, which was the closing price on the NASDAQ Global Market on July 29, 2015, and including $5,000,000 of shares of common stock that we are selling to Lincoln Park at a purchase price of $1.79 per share in the Initial Sale and the 451,354 Commitment Shares to be issued to Lincoln Park. Actual number of shares issued and outstanding will vary depending on the sales price under this offering. |
Use of proceeds | We intend to use the net proceeds from this offering for investments in our plant, equipment, systems and personnel to further develop our manufacturing and operational capabilities to satisfy current and future customer orders and general corporate purposes, including working capital, acquisitions and other business opportunities. See “Use of Proceeds” on page S-10. |
NASDAQ Global Market Symbol | “UNIS” |
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-9 of this prospectus supplement, page 3 of the accompanying prospectus and in the documents incorporated by reference into this prospectus supplement. |
The number of shares of our common stock to be outstanding immediately after this offering is based on 131,265,063 shares of common stock outstanding as of March 31, 2015. Unless specifically stated otherwise, the information in this prospectus supplement is as of March 31, 2015 and excludes:
| | • | | 2,690,975 shares of our common stock issuable to our employees and directors upon the exercise of stock options outstanding as of March 31, 2015, at a weighted average exercise price of $3.95 per share, of which options to purchase 2,003,471 shares of our common stock were then exercisable; |
| | • | | 1,050,000 shares of our common stock issuable to persons other than our employees and directors upon the exercise of stock options and warrants outstanding as of March 31, 2015, at a weighted average exercise price of $4.20 per share, of which options and warrants to purchase 1,050,000 shares of our common stock were then exercisable; |
| | • | | 732,420 shares of our common stock issued to our employees since March 31, 2015; and |
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| | • | | an aggregate of 5,104,121 shares of our common stock reserved for future grants of stock options and other stock-based awards under the Stock Incentive Plan (other than as discussed above). |
Except as otherwise noted, all information in this prospectus supplement reflects the public offering price of $1.87 per share, which was the last reported sale price of our common stock on July 29, 2015.
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RISK FACTORS
Investing in our common stock involves a high degree of risk. Before investing in our common stock, you should carefully consider the risks described below, together with all of the other information contained in this prospectus supplement and the accompanying prospectus and incorporated by reference herein and therein, including from our most recent Annual Report on Form 10-K and subsequent Quarterly Reports on Form 10-Q. Some of these factors relate principally to our business and the industry in which we operate. Other factors relate principally to your investment in our securities. The risks and uncertainties described therein and below are not the only risks facing us. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also materially and adversely affect our business and operations.
If any of the matters included in the following risks were to occur, our business, financial condition, results of operations, cash flows or prospects could be materially and adversely affected. In such case, you may lose all or part of your investment.
Risks Related to this Offering
We have broad discretion in the use of the net proceeds of this offering and, despite our efforts, we may use the proceeds in a manner that does not improve our operating results or increase the value of your investment.
We currently anticipate that the net proceeds from the sale of our common stock will be used for investments in our plant, equipment, systems and personnel to further develop our manufacturing and operational capabilities to satisfy current and future customer orders and general corporate purposes, including working capital, acquisitions and other business opportunities. However, we have not determined the specific allocation of the net proceeds among these potential uses. Our management will have broad discretion over the use and investment of the net proceeds of this offering, and, accordingly, investors in this offering will need to rely upon the judgment of our management with respect to the use of proceeds, with only limited information concerning our specific intentions. These proceeds could be applied in ways that do not improve our operating results or increase the value of your investment. Please see the section entitled “Use of Proceeds” on page S-10 of this prospectus supplement for further information.
If you purchase the common stock sold in this offering, you will experience immediate dilution as a result of this offering and future equity issuances.
Because the price per share of our common stock being offered may be higher than the book value per share of our common stock, you may suffer immediate substantial dilution in the net tangible book value of the common stock you purchase in this offering. See the section entitled “Dilution” on page S-11 of this prospectus supplement for a more detailed discussion of the dilution you will incur if you purchase common stock in this offering.
The issuance of additional shares of our common stock in future offerings could be dilutive to stockholders if they do not invest in future offerings. Moreover, to the extent that we issue options or warrants to purchase, or securities convertible into or exchangeable for, shares of our common stock in the future and those options, warrants or other securities are exercised, converted or exchanged, stockholders may experience further dilution.
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USE OF PROCEEDS
We estimate that the net proceeds from this offering, after deducting underwriting discounts and estimated offering expenses payable by us, will be approximately $44,800,000, assuming that we sell to Lincoln Park a total of $45,000,000 of shares of our common stock (including the sale of $5,000,000 of shares in the Initial Sale).
We intend to use the net proceeds from the sale of the shares of common stock offered hereby for investments in our plant, equipment, systems and personnel to further develop our manufacturing and operational capabilities to satisfy current and future customer orders and general corporate purposes, including working capital, acquisitions and other business opportunities.
As of the date of this prospectus supplement, we cannot specify with certainty all of the particular uses for the net proceeds to us from this offering. Accordingly, our management will have broad discretion in the application of these proceeds.
Pending the use of the net proceeds, we intend to invest the net proceeds in short-term, interest-bearing instruments and investment grade securities.
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DILUTION
Purchasers of common stock in this offering will experience immediate dilution to the extent of the difference between the public offering price per share of common stock, and the net tangible book value per share of common stock immediately after this offering.
Our net tangible book value as of March 31, 2015 was approximately $(5.5) million, or $(0.04) per share. After giving effect to the sale of $5,000,000 shares of our common stock at a purchase price of $1.79 per share in the Initial Sale, the issuance of 451,354 Commitment Shares and the assumed sale by us of $40,000,000 of shares of our common stock in this offering at an assumed offering price of $1.87 per share, which was the last reported sale price of our common stock on NASDAQ on July 29, 2015, and after deducting commissions and estimated offering expenses payable by us, our as adjusted net tangible book value, as of March 31, 2015, would have been approximately $39.3 million, or $0.25 per share of common stock. This represents an immediate increase in the net tangible book value of $0.29 per share to our existing stockholders and an immediate dilution in the net tangible book value of $1.62 per share of common stock to investors purchasing common stock in this offering. The following table illustrates this calculation on a per share basis:
| | | | | | | | |
Assumed offering price per share of common stock | | | | | | $ | 1.87 | |
Net tangible book value per share as of March 31, 2015 | | $ | (0.04 | ) | | | | |
Increase in net tangible book value per share after this offering | | $ | 0.29 | | | | | |
As adjusted net tangible book value per share as of March 31, 2015, after giving effect to this offering | | | | | | $ | 0.25 | |
Dilution per share to investors participating in this offering | | | | | | $ | 1.62 | |
The table above assumes for illustrative purposes that an aggregate of 24,635,024 shares of our common stock are sold at a price of $1.87 per share, which was the last reported sale price of our common stock on NASDAQ on July 29, 2015. The shares sold in this offering, if any, will be sold from time to time at various prices. An increase of $0.25 per share in the price at which the shares are sold from the assumed offering price of $1.87 per share shown in the table above, assuming all of our common stock in the gross aggregate amount of $40,000,000 is sold at that price, would increase our as adjusted net tangible book value per share after the offering to $0.26 per share and would decrease the dilution in net tangible book value per share to new investors in this offering to $1.61 per share, after deducting commissions and estimated offering expenses payable by us. A decrease of $0.25 per share in the price at which the shares are sold from the assumed offering price of $1.87 per share shown in the table above, assuming all of our common stock in the gross aggregate amount of $40,000,000 million is sold at that price, would increase our as adjusted net tangible book value per share after the offering to $0.25 per share and would not change the dilution in net tangible book value per share to new investors in this offering, after deducting commissions and estimated offering expenses payable by us. This information is supplied for illustrative purposes only and may differ based on the actual offering price and the actual number of shares offered.
The number of shares of our common stock to be outstanding immediately after this offering is based on 131,265,063 shares of common stock outstanding as of March 31, 2015. Unless specifically stated otherwise, the information in this prospectus supplement is as of March 31, 2015 and excludes:
| | • | | 2,690,975 shares of our common stock issuable to our employees and directors upon the exercise of stock options outstanding as of March 31, 2015, at a weighted average exercise price of $3.95 per share, of which options to purchase 2,003,471 shares of our common stock were then exercisable; |
| | • | | 1,050,000 shares of our common stock issuable to persons other than our employees and directors upon the exercise of stock options and warrants outstanding as of March 31, 2015, at a weighted average exercise price of $4.20 per share, of which options and warrants to purchase 1,050,000 shares of our common stock were then exercisable; |
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| | • | | 732,420 shares of our common stock issued to our employees since March 31, 2015; and |
| | • | | an aggregate of 5,104,121 shares of our common stock reserved for future grants of stock options and other stock-based awards under the Stock Incentive Plan (other than as discussed above). |
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PLAN OF DISTRIBUTION
Pursuant to this prospectus supplement and the accompanying prospectus, we are offering up to $45,900,000 in shares of our common stock that may be issued by us directly to Lincoln Park under the Purchase Agreement. This prospectus supplement and the accompanying prospectus also cover the sale of these shares by Lincoln Park to the public.
We entered into the Purchase Agreement with Lincoln Park on July 29, 2015. In consideration for entering into the Purchase Agreement, we issued 451,354 shares of our common stock to Lincoln Park as commitment shares, all of which are covered by this prospectus supplement. The Purchase Agreement provides that, upon the terms and subject to the conditions set forth therein, Lincoln Park is irrevocably committed to purchase an aggregate of up to $45,000,000 worth of shares of our common stock (including the sale of $5,000,000 shares of common stock in the Initial Sale) over the 24-month term of the Purchase Agreement.
Under the Purchase Agreement, after the Initial Sale, on any business day and as often as every other business day over the 24-month term of the Purchase Agreement, we have the right, in our sole discretion, subject to the conditions and limitations in the Purchase Agreement, to direct Lincoln Park to purchase up to 200,000 shares of our common stock in a Regular Purchase, except that any individual Regular Purchase will not exceed $2,000,000 without the mutual consent of the parties on the applicable purchase date. The maximum number of shares in any individual Regular Purchase will increase to 250,000 shares if the closing price of our common stock on the purchase date is not below $3.00, to 300,000 shares if the closing price of our common stock on the purchase date is not below $4.00 and to 350,000 shares if the closing price on the purchase date is not below $5.00. The purchase price for shares of common stock to be purchased by Lincoln Park pursuant to a Regular Purchase will be the lower of (i) the lowest sale price on the purchase date, as reported by the NASDAQ Global Market, and (ii) the arithmetic average of the three lowest closing sale prices for our common stock during the 12 consecutive business days prior to the purchase date.
We can also accelerate the amount of our shares of common stock to be purchased in an Accelerated Purchase in amount up to the lesser of (i) three times the number of shares purchased pursuant to the applicable Regular Purchase and (ii) 30% of the trading volume on such accelerated purchase date, if the closing sale price of our common stock equals or exceeds $1.00 on such purchase date, as reported by the NASDAQ Global Market. The purchase price for the additional shares is the lower of:
| | • | | the closing sale price for the common stock on the date of sale; and |
| | • | | ninety-seven percent (97%) of the volume weighted average price of the common stock on the NASDAQ Global Market on the date of sale. |
The Purchase Agreement limits our sales of shares of common stock to Lincoln Park to a maximum of (i) 19.99% of our total outstanding shares of common stock as of July 28, 2015, or approximately 26,386,297 shares, unless we first obtain stockholder approval under the rules of the NASDAQ Global Market or unless the average price of all shares of our common stock sold to Lincoln Park exceeds $1.893, such that sales to Lincoln Park are considered to be at least “at market” under applicable NASDAQ rules; or (ii) 15% of our total outstanding shares of common stock as of July 28, 2015, or approximately 19,730,405 shares over a 12 month period, unless we first obtain stockholder approval or a waiver under the rules of the ASX.
The Purchase Agreement also prohibits us from directing Lincoln Park to purchase any shares of common stock if those shares, when aggregated with all other shares of our common stock then beneficially owned by Lincoln Park and its affiliates, would result in Lincoln Park and its affiliates having beneficial ownership, at any single point in time, of more than 4.99% of the then total outstanding shares of our common stock (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 thereunder). Lincoln Park may, by written notice to us, increase or decrease its and its affiliates beneficial ownership to up to 9.99% of the then total outstanding shares of our common stock, as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3
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thereunder; provided, however that any such increase will not be effective until the 61st day after such notice is delivered to us.
We may suspend the sale of shares to Lincoln Park pursuant to this prospectus supplement for certain periods of time for certain reasons, including if this prospectus supplement is required to be supplemented or amended to include additional material information.
This offering will terminate on the date that all shares offered by this prospectus supplement have been sold or, if earlier, the expiration or termination of the Purchase Agreement. We have the right to terminate the Purchase Agreement at any time, at no cost to us. In the event of bankruptcy proceedings by or against us, the Purchase Agreement will automatically terminate without action of any party.
Lincoln Park is an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act of 1933, as amended, or the Securities Act. Lincoln Park has informed us that it will use an unaffiliated broker-dealer to effectuate all sales, if any, of the common stock that it may purchase from us pursuant to the Purchase Agreement. Such sales will be made on the NASDAQ Global Market at prices and at terms then prevailing or at prices related to the then current market price. Each such unaffiliated broker-dealer will be an underwriter within the meaning of Section 2(a)(11) of the Securities Act. Lincoln Park has informed us that each such broker-dealer will receive commissions from Lincoln Park that will not exceed customary brokerage commissions.
We know of no existing arrangements between Lincoln Park and any other stockholder, broker, dealer, underwriter, or agent relating to the sale or distribution of the shares offered by this prospectus. At the time a particular offer of shares is made, a prospectus supplement, if required, will be distributed that will set forth the names of any agents, underwriters, or dealers and any compensation from the selling stockholder, and any other required information.
We have entered into an agreement with Academy Securities, Inc., member FINRA/SIPC, or ASI, pursuant to which ASI agreed to act as the placement agent in connection with the transactions contemplated by the Purchase Agreement with Lincoln Park. ASI will receive $15,000 as compensation in connection with its services as placement agent in connection with the offering. We also agreed to indemnify and hold harmless ASI against certain liabilities, including liabilities under the Securities Act.
We will pay all of the expenses incident to the registration, offering, and sale of the shares under this prospectus supplement to Lincoln Park, including $30,000 paid by us to Lincoln Park to cover its expenses in connection with the transactions contemplated by the Purchase Agreement.
We have agreed to indemnify Lincoln Park and certain other persons against certain liabilities in connection with the offering of shares of common stock offered hereby, including liabilities arising under the Securities Act or, if such indemnity is unavailable, to contribute amounts required to be paid in respect of such liabilities.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers, and controlling persons, we have been advised that in the opinion of the SEC this indemnification is against public policy as expressed in the Securities Act and is therefore, unenforceable.
Lincoln Park represented to us that at no time prior to the date of the Purchase Agreement has Lincoln Park or its agents, representatives or affiliates engaged in or effected, in any manner whatsoever, directly or indirectly, any short sale (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of our common stock or any hedging transaction. Lincoln Park agreed that during the term of the Purchase Agreement, it, its agents, representatives or affiliates will not enter into or effect, directly or indirectly, any of the foregoing transactions.
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We have advised Lincoln Park that it is required to comply with Regulation M promulgated under the Exchange Act, to the extent applicable to this offering. With certain exceptions, Regulation M precludes the selling stockholder, any affiliated purchasers, and any broker-dealer or other person who participates in the distribution from bidding for or purchasing, or attempting to induce any person to bid for or purchase any security which is the subject of the distribution until the entire distribution is complete. Regulation M also prohibits any bids or purchases made in order to stabilize the price of a security in connection with the distribution of that security. All of the foregoing may affect the marketability of the shares offered by this prospectus supplement.
The transfer agent for our common stock is Computershare Trust Company, N.A. Its address is 480 Washington Blvd., Jersey City, New Jersey 07310, and its telephone number is 800-736-3001.
Our common stock is listed on the NASDAQ Global Market under the symbol “UNIS.”
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LEGAL MATTERS
The validity of the shares of common stock offered hereby is being passed upon for us by Pepper Hamilton LLP, Philadelphia, Pennsylvania.
EXPERTS
The consolidated financial statements of Unilife Corporation as of June 30, 2014 and 2013, and for each of the years in the three-year period ended June 30, 2014, and management’s assessment of the effectiveness of internal control over financial reporting as of June 30, 2014 have been incorporated by reference herein and in the registration statement in reliance upon the reports of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The audit report covering the June 30, 2014 consolidated financial statements contains an explanatory paragraph that states that the Company has incurred recurring losses from operations and has limited cash resources, which raise substantial doubt about its ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
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 (but not furnished) by us:
| | • | | Our Annual Report on Form 10-K for the fiscal year ended June 30, 2014 filed with the SEC on September 15, 2014; |
| | • | | Our Quarterly Reports on Form 10-Q for the quarters ended September 30, 2014, December 31, 2014 and March 31, 2015 filed with the SEC on November 12, 2014, February 9, 2015 and May 11, 2015, respectively; |
| | • | | Our Current Reports on Form 8-K filed with the SEC on July 30, 2014, August 29, 2014, September 19, 2014, October 3, 2014, October 31, 2014, November 14, 2014 (Film No. 141225505), November 19, 2014, January 14, 2015, February 2, 2015, June 19, 2015, July 1, 2015, July 29, 2015 and July 29, 2015; and |
| | • | | The description of our common stock contained in Item 11 of Amendment No. 4 to our registration statement on Form 10 filed on February 11, 2010 (registration no. 001-34540) with the SEC, including any amendment or report filed for the purpose of updating such description. |
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We make available free of charge on our website our annual, quarterly and current reports, including amendments to such reports, as soon as reasonably practicable after we electronically file such material with, or furnish such material to, the SEC. Please note, however, that we have not incorporated any other information by reference from our website, other than the documents listed under the heading “Incorporation of Certain Information by Reference.” In addition, you may request copies of these filings at no cost, by writing or telephoning us at the following address or telephone number:
Corporate Secretary
Unilife Corporation
250 Cross Farm Lane
York, Pennsylvania 17406
(717) 384-3400
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 such 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.
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PROSPECTUS
UNILIFE CORPORATION
$200,000,000
Common Stock, Preferred Stock,
Debt Securities, Warrants and Units
and
600,000 Shares of Common Stock
This prospectus covers our offer and sale from time to time of any combination of common stock, preferred stock, debt securities, warrants or units described in this prospectus in one or more offerings. This prospectus provides a general description of the securities we may offer and sell. Each time we offer and sell securities we will provide specific terms of the securities offered in a supplement to this prospectus. The prospectus supplement may also add, update or change information contained in this prospectus. The aggregate offering price of all securities sold by us under this prospectus may not exceed $200,000,000.
This prospectus also covers the resale by selling stockholders identified in the “Selling Stockholders” section of this prospectus of up to an aggregate of 600,000 shares of our common stock issuable upon the exercise of warrants previously issued. We will not receive proceeds from the sale of shares of our common stock by the selling stockholders. We may receive proceeds from the exercise of the warrants whose underlying shares of common stock are covered by this prospectus.
The securities may be offered and sold by us or selling stockholders from time to time at fixed prices, at market prices or at negotiated prices, and may be offered and sold to or through one or more underwriters, dealers or agents or directly to purchasers on a continuous or delayed basis. See “Plan of Distribution.”
Our common stock is currently listed on the Nasdaq Global Market under the symbol “UNIS”. On September 8, 2014, the last reported sale price of our common stock on the Nasdaq Global Market was $2.47 per share.
You should rely only on the information contained or incorporated by reference in this prospectus. We have not authorized any other person to provide you with different information.
Investing in these securities involves risks, including those set forth in the “Risk Factors” section of our most recent Annual Report on Form 10-K, as revised or supplemented by our Quarterly Reports on Form 10-Q filed with the SEC since the filing of our most recent Annual Report on Form 10-K, each of which is incorporated by reference into this prospectus.
Neither the SEC nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful and complete. Any representation to the contrary is a criminal offense.
This prospectus is dated October 3, 2014.
Neither we nor any selling stockholder has authorized any dealer, salesman or other person to give any information or to make any representation other than those contained or incorporated by reference in this prospectus and any accompanying supplement to this prospectus. You must not rely upon any information or representation not contained or incorporated by reference in this prospectus or any accompanying prospectus supplement. This prospectus and any accompanying supplement to this prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus and any 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 in such jurisdiction. “Unilife,” “Company,” “we,” “us” and “our” refer to Unilife Corporation and its consolidated subsidiaries
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the SEC. This prospectus covers the primary offering by us of up to an aggregate of $200,000,000 of securities and the secondary offering by the selling stockholders identified herein of up to an aggregate of 600,000 shares of our common stock issuable upon the exercise of warrants previously issued. We may offer and sell any combination of the securities described in this prospectus and the selling stockholders may offer and sell shares of common stock in one or more offerings. This prospectus provides you with a general description of the securities we may offer and sell. Each time we offer and sell securities under this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under the heading “Where You Can Find More Information.”
We have filed or incorporated by reference exhibits to the registration statement of which this prospectus forms a part. You should read the exhibits carefully for provisions that may be important to you.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document we file with the SEC at the SEC’s public reference room at 100 F Street NE, Room 1580, Washington, D.C. 20549. You may obtain information on the operation of the SEC’s public reference facilities by calling the SEC at 1-800-SEC-0330. You can request copies of these documents, upon payment of a duplicating fee, by writing to the SEC at its principal office at 100 F Street NE, Room 1580, Washington, D.C. 20549-1004. The SEC maintains an Internet website at http://www.sec.gov that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. Our SEC filings are accessible through the Internet at that website. Our reports on Forms 10-K, 10-Q and 8-K, and amendments to those reports, are also available for download, free of charge, as soon as reasonably practicable after these reports are filed with the SEC, at our website at www.unilife.com. The content contained in, or that can be accessed through, our website is not a part of this prospectus.
INCORPORATION OF INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below:
| | • | | Our Annual Report on Form 10-K for the fiscal year ended June 30, 2014 that we filed with the SEC on September 15, 2014; and |
| | • | | Our Current Reports on Form 8-K filed with the SEC on July 30, 2014 and August 29, 2014; and |
| | • | | Description of our common stock contained in Item 11 of Amendment No. 4 to our registration statement on Form 10 filed on February 11, 2010 (registration no. 001-34540) with the SEC, including any amendment or report filed for the purpose of updating such description; |
| | • | | All documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) after the date of the initial filing of the registration statement of which this prospectus is a part and prior to the effectiveness of such registration statement; and |
| | • | | All documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus and before we stop offering the securities under this prospectus. |
We will provide without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon his or her written or oral request, a copy of any or all documents referred to above which have been or may be incorporated by reference into this prospectus but not delivered with this prospectus excluding exhibits to those documents unless they are specifically incorporated by reference into those documents. You can request those documents from Mr. John Ryan, Senior Vice President, General Counsel & Secretary at 250 Cross Farm Lane, York, Pennsylvania 17406, telephone (717) 384-3400.
The most recent information that we file with the SEC automatically updates and supersedes older information. The information contained in any such filing will be deemed to be a part of this prospectus, commencing on the date on which the filing is made.
Information furnished under Items 2.02 or 7.01 (or corresponding information furnished under Item 9.01 or included as an exhibit) in any past or future Current Report on Form 8-K that we file with the SEC, unless otherwise specified in such report, is not incorporated by reference in this prospectus.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements. All statements that address operating performance, events or developments that we expect or anticipate will occur in the future are forward-looking statements. In some cases, you can identify forward-looking statements by terms such as “may,” “will,” “should,” “could,” “would,” “expects,” “plans,” “anticipates,” “believes,” “estimates,” “projects,” “predicts,” “potential” and similar expressions intended to identify forward-looking statements.
These forward-looking statements are based on management’s beliefs and assumptions and on information currently available to our management. Our management believes that these forward-looking statements are reasonable as and when made. However, you should not place undue reliance on any such forward-looking statements because such statements speak only as of the date when made. We do not undertake any obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law. In addition, forward-looking statements are subject to certain risks and uncertainties that could cause actual results, events and developments to differ materially from our historical experience and our present expectations or projections. Before making an investment decision, you should carefully consider these risks as well as any other information we include or incorporate by reference in this prospectus or include in any applicable prospectus supplement. You should read this prospectus and the documents that we have filed as exhibits to the registration statement of which this prospectus forms a part in their entireties.
RISK FACTORS
Our business is influenced by many factors that are difficult to predict, and that involve uncertainties that may materially affect actual operating results, cash flows and financial condition. Before making an investment decision, you should carefully consider these risks, including those set forth in the “Risk Factors” section of our most recent Annual Report on Form 10-K, as revised or supplemented by our Quarterly Reports on Form 10-Q filed with the SEC since the filing of our most recent Annual Report on Form 10-K, each of which is incorporated by reference into this prospectus, and you should also carefully consider any other information we include or incorporate by reference in this prospectus or include in any applicable prospectus supplement.
UNILIFE CORPORATION
Overview
We are a designer, manufacturer and supplier of innovative injectable drug delivery systems that can enhance and differentiate the injectable drugs, biologics and vaccines, or collectively injectable therapies, of our pharmaceutical and biotechnology customers. We have a broad portfolio of proprietary product platforms, including pre-filled syringes, drug reconstitution delivery systems, auto-injectors, wearable injectors, ocular delivery systems and other novel injectable drug delivery systems. Products within each platform are highly differentiated from competitors with a series of innovative features designed to optimize the safe, simple and convenient administration of an injectable therapy. We sell our products directly to pharmaceutical and biotechnology companies who incorporate them into the drug-device combination product that is supplied pre-filled and ready for administration by end-users such as health-care providers or patients. Products within each of our platforms can be customized by us to address specific customer, therapy, patient or commercial requirements.
Proprietary Technology Platforms and Products
We have developed a broad portfolio of innovative, differentiated injectable drug delivery systems that are designed for use with a range of injectable therapies. Existing and prospective customers can select from a series of platform-based technologies, including pre-filled syringes, wearable injectors, auto-injectors, drug reconstitution systems and ocular delivery systems. A multitude of product configurations and proprietary features are available within each platform, and we are able to further customize each product to specific customer, therapy, patient or commercial requirements.
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You can get more information regarding our business and industry by reading our most recent Annual Report on Form 10-K and the other reports we file with the SEC. See “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference.”
Corporate Information
Our principal executive offices are located at 250 Cross Farm Lane, York, Pennsylvania 17406, and our telephone number is (717) 384-3400. Our website address is www.unilife.com. The information on, or that can be accessed through, our website is not part of this prospectus.
USE OF PROCEEDS
Unless otherwise indicated in a prospectus supplement, we anticipate that the net proceeds from our sale of any securities will be used for general corporate purposes, including working capital, acquisitions, retirement of debt and other business opportunities. In the case of sales by the selling stockholders, we will not receive any of the proceeds from such sales; however, we may receive proceeds from cash payments made in connection with the exercise of warrants held by the selling stockholders that are covered by this prospectus.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED
STOCK DIVIDENDS
Earnings were insufficient to cover fixed charges by $50,374,000, $60,698,000, $50,098,000, $39,954,000 and $29,439,000 during the fiscal years ended June 30, 2014, 2013, 2012, 2011 and 2010, respectively. “Earnings” consists of net loss from continuing operations before income tax expense and fixed charges. “Fixed charges” consist of interest expense, capitalized interest and the portion of rents that we believe to be representative of the interest factor. The foregoing sets forth our consolidation ratio of earnings to combined fixed charges and preferred stock dividends for the periods presented. Currently, we have no shares of preferred stock outstanding and have not paid any dividends on preferred stock in the periods presented.
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DESCRIPTION OF SECURITIES
We may offer shares of our common stock and preferred stock, various series of debt securities, warrants or units to purchase any of such securities, with a total value of up to $200,000,000, from time to time in one or more offerings under this prospectus at prices and on terms to be determined by market conditions at the time of the offering. This prospectus provides you with a general description of the securities that we may offer. In connection with each offering, we will provide a prospectus supplement that will describe the specific amounts, prices and terms of the securities being offered, including, to the extent applicable:
| | • | | designation or classification; |
| | • | | aggregate offering price; |
| | • | | rates and times of payment of dividends; |
| | • | | redemption, conversion or exchange terms; |
| | • | | conversion or exchange prices or rates and any provisions for changes to or adjustments in the conversion or exchange prices or rates and in the securities or other property receivable upon conversion or exchange; |
| | • | | voting or other rights; and |
| | • | | important federal income tax considerations. |
The prospectus supplement also may add, update or change information contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement will offer a security that is not included in the Registration Statement at the time of its effectiveness or offer a security of a type that is not described in this prospectus.
This prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 250,000,000 shares of common stock, par value $0.01 per share, and 50,000,000 shares of preferred stock, par value $0.01 per share. As of September 8, 2014, 109,377,837 shares of our common stock, and no shares of our preferred stock, were outstanding.
Common Stock
Holders of our common stock are entitled to receive dividends when and as declared by our board of directors out of funds legally available. Holders of our common stock are entitled to one vote for each share on all matters voted on by stockholders, including the election of directors. Holders of our common stock do not have any conversion, redemption or preemptive rights. In the event of our dissolution, liquidation or winding up, holders of our common stock are entitled to share ratably in any assets remaining after the satisfaction in full of the prior rights of creditors and the aggregate liquidation preference of any preferred stock then outstanding. The rights, preferences and privileges of the holders of our common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock that we may designate and issue in the future. All outstanding shares of our common stock are, and any shares of common stock that we may issue in the future will be, fully paid and non-assessable.
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Preferred Stock
We may issue any class of preferred stock in any series. Our board of directors has the authority to establish and designate series, and to fix the number of shares included in each such series and the variations in the relative rights, preferences and limitations as between series, provided that, if the stated dividends and amounts payable on liquidation are not paid in full, the shares of all series of the same class shall share ratably in the payment of dividends including accumulations, if any, in accordance with the sums which would be payable on such shares if all dividends were declared and paid in full, and in any distribution of assets other than by way of dividends in accordance with the sums which would be payable on such distribution if all sums payable were discharged in full. Shares of each series when issued shall be designated to distinguish the shares of each series from shares of all other series.
DESCRIPTION OF DEBT SECURITIES
This prospectus describes certain general terms and provisions of our debt securities. When we offer to sell a particular series of debt securities, we will describe the specific terms of the series in a supplement to this prospectus. The following description of debt securities will apply to the debt securities offered by this prospectus unless we provide otherwise in the applicable prospectus supplement. The applicable prospectus supplement for a particular series of debt securities may specify different or additional terms.
We may offer under this prospectus up to $200,000,000 aggregate principal amount of secured or unsecured debt securities, or if debt securities are issued at a discount, or in a foreign currency or composite currency, such principal amount as may be sold for an initial public offering price of up to $200,000,000. The debt securities may be either senior debt securities, senior subordinated debt securities or subordinated debt securities. The debt securities offered hereby will be issued under an indenture between us and a trustee. A form of indenture, which will be qualified under, subject to, and governed by, the Trust Indenture Act of 1939, as amended, is filed as an exhibit to the registration statement.
General
The terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and detailed or determined in the manner provided in a board of directors’ resolution, an officers’ certificate or by an indenture. The particular terms of each series of debt securities will be described in a prospectus supplement relating to the series, including any pricing supplement.
We can issue debt securities that may be in one or more series with the same or various maturities, at par, at a premium or at a discount. We will set forth in a prospectus supplement, including any pricing supplement, relating to any series of debt securities being offered, the initial offering price, the aggregate principal amount and the following terms of the debt securities:
| | • | | the title of the debt securities; |
| | • | | the price or prices (expressed as a percentage of the aggregate principal amount) at which we will sell the debt securities; |
| | • | | any limit on the aggregate principal amount of the debt securities; |
| | • | | the date or dates on which we will pay the principal on the debt securities; |
| | • | | the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from which interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the interest payable on any interest payment date; |
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| | • | | the place or places where the principal of, and premium and interest on, the debt securities will be payable; |
| | • | | the terms and conditions upon which we may redeem the debt securities; |
| | • | | any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities; |
| | • | | the dates on which and the price or prices at which we will repurchase the debt securities at the option of the holders of debt securities and other detailed terms and provisions of these repurchase obligations; |
| | • | | the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof; |
| | • | | whether the debt securities will be issued in the form of certificated debt securities or global debt securities; |
| | • | | the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount; |
| | • | | the currency of denomination of the debt securities; |
| | • | | the designation of the currency, currencies or currency units in which payment of principal of, and premium and interest on, the debt securities will be made; |
| | • | | if payments of principal of, and premium or interest on, the debt securities will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments will be determined; |
| | • | | the manner in which the amounts of payment of principal of, and premium or interest on, the debt securities will be determined, if these amounts may be determined by reference to an index based on a currency or currencies other than that in which the debt securities are denominated or designated to be payable or by reference to a commodity, commodity index, stock exchange index or financial index; |
| | • | | any provisions relating to any security provided for the debt securities; |
| | • | | any addition to or change in the events of default described in this prospectus or in the indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt securities; |
| | • | | any addition to or change in the covenants described in this prospectus or in the indenture with respect to the debt securities; |
| | • | | any other terms of the debt securities, which may modify or delete any provision of the indenture as it applies to that series; and |
| | • | | any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities. |
We may issue debt securities that are exchangeable and/or convertible into shares of our common stock or any class or series of preferred stock. The terms, if any, on which the debt securities may be exchanged and/or converted will be set forth in the applicable prospectus supplement. Such terms may include provisions for conversion, either mandatory, at the option of the holder or at our option, in which case the number of shares of common stock, preferred stock or other securities to be received by the holders of debt securities would be calculated as of a time and in the manner stated in the prospectus supplement.
We may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
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If we denominate the purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and any premium and interest on any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will provide you with information on the restrictions, elections, general tax considerations, specific terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the applicable prospectus supplement.
Payment of Interest and Exchange
Each debt security will be represented by either one or more global securities registered in the name of The Depository Trust Company, as Depositary, or a nominee of the Depositary (we will refer to any debt security represented by a global debt security as a book-entry debt security), or a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated security as a certificated debt security), as described in the applicable prospectus supplement.
Certificated Debt Securities
You may transfer or exchange certificated debt securities at the trustee’s office or paying agencies in accordance with the terms of the indenture. No service charge will be made for any transfer or exchange of certificated debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
You may transfer certificated debt securities and the right to receive the principal of, and premium and interest on, certificated debt securities only by surrendering the old certificate representing those certificated debt securities and either we or the trustee will reissue the old certificate to the new holder or we or the trustee will issue a new certificate to the new holder.
Book-Entry Debt Securities
We may issue the debt securities of a series in the form of one or more book-entry debt securities that would be deposited with a depositary or its nominee identified in the prospectus supplement. We may issue book-entry debt securities in either temporary or permanent form. We will describe in the prospectus supplement the terms of any depositary arrangement and the rights and limitations of owners of beneficial interests in any book-entry debt security.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase debt securities, common stock, preferred stock or other securities or any combination of the foregoing. We may issue warrants independently or together with other securities. Warrants sold with other securities may be attached to or separate from the other securities. We will issue warrants under one or more warrant agreements between us and a warrant agent that we will name in the prospectus supplement.
The prospectus supplement relating to any warrants that we may offer will include specific terms relating to the offering. We will file the form of any warrant agreement with the SEC, and you should read the warrant agreement for provisions that may be important to you. The prospectus supplement will include some or all of the following terms:
| | • | | the title of the warrants; |
| | • | | the aggregate number of warrants offered; |
| | • | | the designation, number and terms of the debt securities, common stock, preferred stock or other securities purchasable upon exercise of the warrants, and procedures by which those numbers may be adjusted; |
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| | • | | the exercise price of the warrants; |
| | • | | the dates or periods during which the warrants are exercisable; |
| | • | | the designation and terms of any securities with which the warrants are issued; |
| | • | | if the warrants are issued as a unit with another security, the date, if any, on and after which the warrants and the other security will be separately transferable; |
| | • | | if the exercise price is not payable in U.S. dollars, the foreign currency, currency unit or composite currency in which the exercise price is denominated; |
| | • | | any minimum or maximum amount of warrants that may be exercised at any one time; |
| | • | | any terms, procedures and limitations relating to the transferability, exchange, exercise, amendment or termination of the warrants; and |
| | • | | any adjustments to the terms of the warrants resulting from the occurrence of certain events or from the entry into or consummation by us of certain transactions. |
DESCRIPTION OF UNITS
As specified in any applicable prospectus supplement, we may issue units consisting of one or more warrants, debt securities, shares of preferred stock, shares of common stock or any combination of such securities.
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SELLING STOCKHOLDERS
Selling Stockholders for the Secondary Offering of up to 600,000 Shares of Common Stock
An aggregate of 600,000 shares of common stock issuable upon the exercise of previously issued warrants may be offered for sale and sold from time to time pursuant to this prospectus by the selling stockholders. The term “selling stockholders” includes the stockholders listed below and their transferees, pledgees, donees, assignees or other successors. We are paying all of the expenses in connection with such registration and the sale of the shares, other than selling commissions and the fees and expenses of counsel and other advisors to the selling stockholders. Information concerning the selling stockholders may change from time to time, and any changed information will be set forth if and when required in prospectus supplements or other appropriate forms permitted to be used by the SEC. Except as otherwise disclosed herein, to our knowledge, none of the selling stockholders is a broker-dealer and/or affiliated with a broker-dealer. The selling stockholders in the following table acquired or will acquire their shares upon exercise of warrants issued to them in December 2010 and August 2012 for services they provided to us in connection with the development of our new manufacturing facility. These warrants are exercisable at $5.30 per share.
Unless otherwise indicated, the selling stockholders have sole voting and investment power with respect to their shares of common stock. All of the information contained in the table below is based solely upon information provided to us by the selling stockholders or otherwise known by us. In addition to the shares offered hereby, which represent such shares of our common stock issuable upon exercise of previously issued warrants by the respective selling stockholders, the selling stockholders may otherwise beneficially own our shares of common stock as a result of, among others, open market purchases, which information is not obtainable by us without undue effort and expense. The selling stockholders may have sold, transferred or otherwise disposed of, or may sell, transfer or otherwise dispose of, at any time or from time to time since the date on which the information regarding the shares beneficially owned was last known by us, all or a portion of the shares beneficially owned in transactions exempt from the registration requirements of the Securities Act.
The number of shares outstanding and the percentages of beneficial ownership are based on 109,377,837 shares of our common stock outstanding as of September 8, 2014.
For the purposes of the following table, the number of shares of our common stock beneficially owned has been determined in accordance with Rule 13d-3 under the Exchange Act, and such information is not necessarily indicative of beneficial ownership for any other purpose. Under Rule 13d-3, beneficial ownership includes any shares as to which a selling stockholder has sole or shared voting power or investment power and also any shares which that selling stockholder has the right to acquire within 60 days of the date of this prospectus through the exercise of any stock option.
| | | | | | | | | | | | | | | | |
Name of Selling Stockholder | | Number of
Shares
Beneficially
Owned
Prior to the
Offering | | | Number of
Shares
Offered | | | Number of
Shares
Beneficially
Owned
After the
Offering | | | % of Common
Stock
Beneficially
Owned
After the
Offering | |
Consultants who received warrants as consideration for their consulting services provided to the Company: | | | | | | | | | | | | | | | | |
Keystone Redevelopment Group | | | 27,500 | | | | 27,500 | | | | 0 | | | | 0 | |
RCMN, LLC | | | 93,750 | | | | 93,750 | | | | 0 | | | | 0 | |
Loughery Family Investments, LLC | | | 66,250 | | | | 66,250 | | | | 0 | | | | 0 | |
Artillio Family Investments, LLC | | | 93,750 | | | | 93,750 | | | | 0 | | | | 0 | |
Gregory Ventresca | | | 93,750 | | | | 93,750 | | | | 0 | | | | 0 | |
John LaProcido | | | 225,000 | | | | 225,000 | | | | 0 | | | | 0 | |
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PLAN OF DISTRIBUTION
We and/or the selling stockholders, if applicable, may sell the securities in one or more of the following ways (or in any combination) from time to time:
| | • | | through underwriters or dealers; |
| | • | | directly to a limited number of purchasers or to a single purchaser; or |
Each time we offer and sell securities under this prospectus, we will file a prospectus supplement. The prospectus supplement will state the terms of the offering of the securities, including:
| | • | | the name or names of any underwriters, dealers or agents; |
| | • | | the purchase price of such securities and the proceeds to be received by Unilife, if any; |
| | • | | any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; |
| | • | | any initial public offering price; |
| | • | | any discounts or concessions allowed or reallowed or paid to dealers; and |
| | • | | any securities exchanges on which the securities may be listed. |
Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If we and/or the selling stockholders, if applicable, use underwriters in the sale, 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, including:
| | • | | negotiated transactions; |
| | • | | at a fixed public offering price or prices, which may be changed; |
| | • | | at market prices prevailing at the time of sale; |
| | • | | at prices related to prevailing market prices; or |
Unless otherwise stated in a prospectus supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary closing conditions and the underwriters will be obligated to purchase all of such series of securities, if any are purchased.
We and/or the selling stockholders, if applicable, may sell the securities through agents from time to time. The prospectus supplement will name any agent involved in the offer or sale of the securities and any commissions we pay to them. Generally, any agent will be acting on a best efforts basis for the period of its appointment.
We and/or the selling stockholders, if applicable, may authorize underwriters, dealers or agents to solicit offers by certain purchasers to purchase the securities from Unilife 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.
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In offering the shares covered by this prospectus, the selling stockholders, and any broker-dealers and any other participating broker-dealers who execute sales for the selling stockholders, may be deemed to be “underwriters” within the meaning of the Securities Act in connection with these sales. Any profits realized by the selling stockholders and the compensation of such broker-dealers may be deemed to be underwriting discounts and commissions.
Underwriters and agents may be entitled under agreements entered into with Unilife and/or the selling stockholders, if applicable, to indemnification by Unilife and/or the selling stockholders, if applicable, against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which the underwriters or agents may be required to make. Underwriters and agents may be customers of, engage in transactions with, or perform services for Unilife and its affiliates in the ordinary course of business.
Each series of securities will be a new issue of securities and will have no established trading market other than the common stock which is listed on the Nasdaq Global Market. Any underwriters to whom securities are sold for public offering and sale may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The securities, other than the common stock, may or may not be listed on a national securities exchange.
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EXPERTS
The consolidated financial statements of Unilife Corporation as of June 30, 2014 and 2013 and for each of the years in the three-year period ended June 30, 2014 and management’s assessment of the effectiveness of internal control over financial reporting as of June 30, 2014 have been incorporated by reference herein and in the registration statement in reliance upon the reports of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The audit report covering the June 30, 2014 consolidated financial statements contains an explanatory paragraph that states that the Company has incurred recurring losses from operations and has limited cash resources, which raise substantial doubt about its ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of that uncertainty.
LEGAL MATTERS
Pepper Hamilton LLP will provide us with an opinion as to certain legal matters in connection with the securities being offered hereby.
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$45,900,000
Common Stock
PROSPECTUS SUPPLEMENT
July 29, 2015
