Attached files
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EX-1.1 - EX-1.1 - Athenex, Inc. | d459422dex11.htm |
As filed with the Securities and Exchange Commission on January 22, 2018.
Registration Statement No. 333-222640
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ATHENEX, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware | 2834 | 43-1985966 | ||
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
1001 Main Street, Suite 600
Buffalo, NY 14203
(716) 427-2950
(Address, including zip code and telephone number, including area code, of registrants principal executive offices)
Johnson Y.N. Lau
Chief Executive Officer
Athenex, Inc.
1001 Main Street, Suite 600
Buffalo, NY 14203
(716) 427-2950
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Chris K.H. Lin, Esq. Daniel Fertig, Esq. Simpson Thacher & Bartlett LLP 35th Floor ICBC Tower 3 Garden Road Central, Hong Kong +852 2514-7600 |
Brian J. Cuneo, Esq. Nathan Ajiashvili, Esq. Latham & Watkins LLP 140 Scott Drive Menlo Park, CA 94025 +1 (650) 328-4600 |
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box. ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company and emerging growth company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
Non-accelerated filer | ☒ (Do not check if a smaller reporting company) | Smaller reporting company | ☐ | |||
Emerging growth company | ☒ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☒
CALCULATION OF REGISTRATION FEE
| ||||||||
TITLE OF EACH CLASS OF REGISTERED |
AMOUNT TO BE REGISTERED(1) |
PROPOSED MAXIMUM OFFERING PRICE PER SHARE(2) |
PROPOSED PRICE(1)(2) |
AMOUNT OF REGISTRATION FEE(3) | ||||
Common Stock, $0.001 par value per share |
4,945,000 |
$15.97 | $78,971,650.00 |
$9,831.97 | ||||
|
(1) | Includes additional shares of common stock which the underwriters have the option to purchase in connection with this offering. |
(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended, on the basis of the average high and low prices of the Registrants common stock on January 16, 2018, as reported by The Nasdaq Global Select Market. |
(3) | Previously paid. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
Athenex, Inc. is filing this Amendment No. 1, or Amendment, to its registration statement on Form S-1 (File No. 333-222640), or the Registration Statement, solely to file Exhibit 1.1 and make related changes to the exhibit index. Accordingly, this Amendment consists only of the facing page, this explanatory note, Part II of the Registration Statement and the exhibit filed herewith. The preliminary prospectus is unchanged and has therefore been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than underwriting discounts and commissions, payable in connection with the sale and distribution of the securities being registered. All amounts are estimated except the SEC and FINRA registration fees. All of the expenses below will be paid by us.
Item |
||||
SEC Registration fee |
$ | 9,832 | ||
FINRA filing fee |
12,356 | |||
Printing and mailing expenses |
35,000 | |||
Legal fees and expenses(1) |
600,000 | |||
Accounting fees and expenses |
225,000 | |||
Miscellaneous(1) |
100,000 | |||
|
|
|||
Total |
$ | 982,178 | ||
|
|
(1) | The underwriters have agreed to reimburse us for certain expenses incurred in connection with this offering. |
Item 14. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation Law, we can indemnify our directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act of 1933, as amended, or the Securities Act. Our amended and restated certificate of incorporation (Exhibit 3.1 to this registration statement) provides that we must indemnify our directors and officers to the fullest extent permitted by law and requires us to pay expenses incurred in defending or other participating in any proceeding in advance of its final disposition upon our receipt of an undertaking by the director or officer to repay such advances if it is ultimately determined that the director or officer is not entitled to indemnification. Our certificate of incorporation further provides that rights conferred under such certificate of incorporation do not exclude any other right such persons may have or acquire under the certificate of incorporation, the bylaws, any statute, agreement, vote of stockholders or disinterested directors or otherwise.
The amended and restated certificate of incorporation also provides that, pursuant to Delaware law, our directors shall not be liable for monetary damages for breach of the directors fiduciary duty of care to us and our stockholders. This provision in the amended and restated certificate of incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for breach of the directors duty of loyalty to us for acts or omissions not in good faith or involving intentional misconduct, or knowing violations of law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not affect a directors responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. We also maintain directors and officers liability insurance.
In addition, we have agreements to indemnify our directors and certain of our officers in addition to the indemnification provided for in the amended and restated certificate of incorporation. These agreements, among other things, indemnify our directors and some of our officers for certain expenses (including attorneys fees), judgments, fines and settlement amounts incurred by such person in any action or proceeding, including any action by or in our right, on account of services by that person as a director or officer of our company or as a director or officer of our subsidiary, or as a director or officer of any other company or enterprise that the person provides services to at our request.
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The proposed form of underwriting agreement (Exhibit 1.1 to this registration statement) provides for indemnification by the underwriters of us and our officers and directors, and by us of the underwriters, for certain liabilities arising under the Securities Act or otherwise in connection with this offering.
Item 15. Recent Sales of Unregistered Securities
During the last three years we have issued unregistered securities as described below. The share and per share amounts below reflect shares of preferred stock on an as-converted to common stock basis:
Issuances of preferred stock
1. | From January 2014 through April 2014, we issued and sold an aggregate of 4,259,310 shares and 1,000,000 shares of our Series A preferred stock to accredited investors at a per share price of $4.55 per share and $5.00 per share, respectively, for aggregate cash consideration of $19,815,046. |
2. | On March 26, 2014, we issued and sold an aggregate of 1,320,000 shares of our Series A preferred stock to our executive officers at a purchase price of $4.55 per share for aggregate consideration of $6,000,000. |
Issuances of common stock
3. | On June 20, 2014, we issued and sold an aggregate of 720,000 shares of our common stock at a purchase price of $5.50 per share for an aggregate consideration of $3,960,000. |
4. | From August 2014 through April 2015, we issued and sold an aggregate of 4,000,000, 157,776 and 6,200,000 shares of our common stock at purchase prices of $5.00, $5.50 and $7.50, respectively, per share for aggregate consideration of $67,367,768. |
5. | On September 8, 2014, in connection with our acquisition of QuaDPharma, we issued an aggregate of 181,820 shares of our common stock at a purchase price of $5.50 per share for an aggregate consideration of $1,000,010. |
6. | In January through February 2015, we issued an aggregate of 1,496,000 shares of our common stock as stock compensation to certain of our officers and directors, with a value of $5.50 per share for an aggregate amount of $8,228,000. |
7. | In April and May of 2015, in connection with our acquisition of Polymed, we issued an aggregate of 1,538,464 shares of our common stock to the sellers, at a value of $7.50 per share, for an aggregate consideration of $11,538,480. |
8. | In May 2015, we issued and sold an aggregate of 960,000 shares of our common stock at a purchase price of $7.50 per share for an aggregate consideration of $7,200,000. |
9. | On June 5, 2015, we issued and sold an aggregate of 1,200,000 shares of our common stock at a purchase price of $5.50 per share for an aggregate consideration of $6,600,000. |
10. | On June 5, 2015, we issued and sold an aggregate of 80,000 shares of our common stock at a purchase price of $7.50 per share for an aggregate consideration of $600,000. |
11. | In July 2015, we issued to certain of our employees as stock compensation an aggregate of 66,668 shares and 48,000 shares of our common stock with values of $7.50 per share and $9.00 per share, respectively, for an aggregate amount of $932,010. |
12. | On July 17, 2015, we issued and sold 545,456 shares of our common stock at a purchase price of $5.50 per share and 307,692 shares of our common stock at a purchase price of $6.50, for an aggregate consideration of $5,000,006 pursuant to an earlier contractual agreement to issue such share upon achievement of certain milestones. |
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13. | On July 17, 2015, we issued to certain seller affiliated parties in connection with our acquisition of CDE an aggregate of 1,651,264 shares of our common stock at a purchase price of $9.00 per share for an aggregate consideration of $14,861,376. |
14. | On March 1, 2016, we issued and sold an aggregate of 666,667 shares of our common stock at a purchase price of $7.50 per share for an aggregate consideration of $5,000,003. |
15. | On March 31, 2016, we issued to certain seller affiliated parties in connection with the earnouts from the QuaDPharma and Polymed acquisitions an aggregate of 315,810 shares of our common stock at a purchase price of $9.00 per share for an aggregate consideration of $2,842,290. |
16. | On May 26, 2016, we issued and sold an aggregate of 466,666 shares of our common stock at a purchase price of $7.50 per share for an aggregate consideration of $3,499,995. |
17. | In June 2017, upon the completion of our initial public offering, the $68.0 million aggregate principal amount of convertible loans outstanding as of the date of our initial public offering were automatically converted into 7,727,273 shares of our common stock. |
18. | On September 29, 2017, Hanmi converted its $7.0 million principal amount convertible note into 795,455 shares of our common stock, based on the agreed 20% discount to our initial public offering price. Hanmi is a party to a license agreement with us entered into in March 2017, as amended. The convertible note was a part of an upfront fee in connection with an amendment to the original March 2017 license agreement. |
Issuances of warrants
19. | From March 2014 through January 2015, we issued a series of warrants to purchase an aggregate of 500,000 shares of our common stock, with an exercise price of less than $0.01 per share. |
Grants of stock options and issuances of common stock upon exercise of options
20. | Since January 1, 2014, we have granted stock options to purchase an aggregate of 7,358,804 shares of our common stock with exercise prices of $4.55, $5.50, $7.50, $9.00 and $11.00 per share to our employees, directors and consultants pursuant to our 2013 Plan. Since January 1, 2014, we have issued an aggregate of 60,000 shares of our common stock upon exercise of stock options granted pursuant to our 2004 Common Unit Option Plan, 2007 Common Unit Option Plan and 2013 Plan for aggregate consideration of $154,060 in cash. |
Issuances of Convertible Loan Agreements
21. | In September and October 2016 and January, February, March and April 2017, we issued notes convertible into shares of our common stock with an aggregate principal amount of $75.0 million. In June 2017, upon the completion of our initial public offering, a $68.0 million aggregate principal amount of convertible loans outstanding as of the date of our initial public offering were automatically converted into 7,727,273 shares of our common stock. On September 29, 2017, Hanmi converted its $7.0 million principal amount convertible note into 795,455 shares of our common stock, based on the agreed 20% discount to our initial public offering price. |
We deemed the offers, sales and issuances of the securities described in paragraphs 1 through 19 and 21 above to be exempt from registration under the Securities Act, in reliance on Section 4(a)(2) of the Securities Act, including Regulation D and Rule 506 promulgated thereunder, relative to transactions by an issuer not involving a public offering. All purchasers of securities in transactions exempt from registration pursuant to Regulation D represented to us that they were accredited investors and were acquiring the shares for investment purposes only and not with a view to, or for sale in connection with, any distribution thereof and that they could bear the risks of the investment and could hold the securities for an indefinite period of time. The purchasers received written disclosures that the securities had not been registered under the Securities Act and that any resale must be made pursuant to a registration statement or an available exemption from such registration.
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We deemed the grants of stock options and issuances of common stock upon exercise of stock options described in paragraph 20 above, except to the extent described above as exempt pursuant to Section 4(2) of the Securities Act, to be exempt from registration under the Securities Act in reliance on Rule 701 of the Securities Act as offers and sales of securities under compensatory benefit plans and contracts relating to compensation in compliance with Rule 701. Each of the recipients of securities in any transaction exempt from registration either received or had adequate access, through employment, business or other relationships, to information about us.
All of the foregoing securities are deemed restricted securities for purposes of the Securities Act. The certificates representing the securities issued in the transactions described in this Item 15 included appropriate legends setting forth that the securities had not been offered or sold pursuant to a registration statement and describing the applicable restrictions on transfer of the securities. There were no underwriters employed in connection with any of the transactions set forth in this Item 15.
Item 16. Exhibits and Financial Statement Schedules
(a) | Exhibits |
The exhibits to the registration statement are listed in the Exhibit Index attached hereto and incorporated by reference herein.
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(b) | Financial Statement Schedules |
SCHEDULE I
CONDENSED FINANCIAL INFORMATION OF REGISTRANT (PARENT COMPANY ONLY)
CONDENSED BALANCE SHEETS
(In thousands, except share and per share data)
December 31, | ||||||||
2015 | 2016 | |||||||
Assets |
||||||||
Current assets: |
||||||||
Cash and cash equivalents |
$ | 41,756 | $ | 28,677 | ||||
Marketable securitiescurrent |
12,271 | 8,628 | ||||||
Accounts receivable, net |
3,327 | 2,620 | ||||||
Inventories, net |
495 | 466 | ||||||
Prepaid expenses and other current assets |
1,715 | 2,117 | ||||||
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Total current assets |
59,564 | 42,508 | ||||||
Property and equipment, net |
4,836 | 4,039 | ||||||
Investment |
487 | 340 | ||||||
Marketable securitieslong-term |
1,868 | | ||||||
Goodwill |
32,643 | 32,638 | ||||||
Intangible assets, net |
3,725 | 5,542 | ||||||
Investment in subsidiary |
10,589 | 14,289 | ||||||
Due from subsidiary |
4,812 | 5,725 | ||||||
Other long-term assets |
1,439 | 1,801 | ||||||
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Total assets |
$ | 119,963 | $ | 106,882 | ||||
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Liabilities and stockholders equity |
||||||||
Current liabilities: |
||||||||
Accounts payable (intercompany payable of $906 and $1,027, respectively) |
$ | 5,021 | $ | 5,641 | ||||
Accrued expenses |
3,628 | 18,848 | ||||||
Accrued legal liability |
450 | | ||||||
Current portion of contingent consideration |
5,974 | | ||||||
Current portion of long-term debtrelated parties |
1,064 | 1,123 | ||||||
Current portion of long-term debt |
230 | 766 | ||||||
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Total current liabilities |
16,367 | 26,378 | ||||||
Long-term liabilities: |
||||||||
Deferred compensation |
1,463 | 2,174 | ||||||
Deferred rent |
255 | 904 | ||||||
Deferred income tax liability |
457 | 215 | ||||||
Long-term debtrelated parties |
1,619 | 496 | ||||||
Long-term debt |
737 | | ||||||
Convertible bonds |
| 14,498 | ||||||
Convertible bondsrelated parties |
| 16,129 | ||||||
Derivative liability |
| 8,795 | ||||||
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Total liabilities |
20,898 | 69,589 | ||||||
Stockholders equity: |
||||||||
Common stock, par value $0.001 per share, 250,000,000 shares authorized at December 31, 2015 and 2016; 40,330,124, and 42,342,706 issued at December 31, 2015 and 2016, respectively; 39,907,796, and 40,685,786 shares outstanding at December 31, 2015 and 2016, respectively |
40 | 42 | ||||||
Additional paid-in capital |
206,679 | 237,581 | ||||||
Accumulated other comprehensive loss |
167 | 41 | ||||||
Accumulated deficit |
(106,760 | ) | (193,827 | ) | ||||
Less: treasury stock, at cost; 422,328 shares at December 31, 2015 and 1,656,920 shares at December 31, 2016 |
(1,545 | ) | (7,406 | ) | ||||
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Total Athenex, Inc. stockholders equity |
98,581 | 36,431 | ||||||
Non-controlling interests |
484 | 862 | ||||||
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Total stockholders equity |
99,065 | 37,293 | ||||||
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Total liabilities and stockholders equity |
$ | 119,963 | $ | 106,882 | ||||
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This statement should be read in conjunction with the notes to the consolidated financial statements included in the Companys Form S-1
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SCHEDULE I
CONDENSED FINANCIAL INFORMATION OF REGISTRANT (PARENT COMPANY ONLY)
CONDENSED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
(In thousands, except share and per share data)
Year Ended December 31, | ||||||||
2015 | 2016 | |||||||
Revenue: |
||||||||
External revenue |
$ | 6,015 | $ | 8,799 | ||||
Earnings from subsidiary |
6,187 | 10,348 | ||||||
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Total revenue |
12,202 | 19,147 | ||||||
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Costs and operating expenses: |
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Cost of sales |
12,412 | 20,590 | ||||||
Research and development expenses |
23,878 | 60,058 | ||||||
Selling, general, and administrative expenses |
25,737 | 23,501 | ||||||
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Total costs and operating expenses |
62,027 | 104,149 | ||||||
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Operating loss |
(49,825 | ) | (85,002 | ) | ||||
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Interest expense |
193 | 1,904 | ||||||
Unrealized loss on derivative liability |
| 533 | ||||||
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Loss before income tax benefit |
(50,018 | ) | (87,439 | ) | ||||
Income tax expense (benefit) |
6 | (182 | ) | |||||
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Net loss |
(50,024 | ) | (87,257 | ) | ||||
Less: net loss attributable to non-controlling interests |
(55 | ) | (191 | ) | ||||
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Net loss attributable to Athenex, Inc. |
$ | (49,969 | ) | $ | (87,066 | ) | ||
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Unrealized gain (loss) on investment, net of income taxes |
91 | (33 | ) | |||||
Foreign currency translation adjustment, net of income taxes |
| (85 | ) | |||||
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Comprehensive loss |
$ | (49,878 | ) | $ | (87,184 | ) | ||
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This statement should be read in conjunction with the notes to the consolidated financial statements included in the Companys Form S-1
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SCHEDULE I
CONDENSED FINANCIAL INFORMATION OF REGISTRANT (PARENT COMPANY ONLY)
CONDENSED STATEMENTS OF CASH FLOWS
(In thousands)
Year Ended December 31, | ||||||||
2015 | 2016 | |||||||
Cash flows from operating activities: |
||||||||
Net cash used in operating activities |
$ | (31,219 | ) | $ | (47,172 | ) | ||
Cash flows from investing activities: |
||||||||
Proceeds from sale of property and equipment |
| 335 | ||||||
Purchase of property and equipment |
(2,688 | ) | (623 | ) | ||||
(Payment) Receipt of refundable deposit |
(1,000 | ) | 1,000 | |||||
Payments for licenses |
(50 | ) | (2,700 | ) | ||||
Acquisition of Polymed, net of cash acquired |
(11,076 | ) | | |||||
Acquisition of CDE, net of cash acquired |
1,699 | | ||||||
Investments in and advances to subsidiary |
(4,734 | ) | (4,613 | ) | ||||
Purchases of marketable securities |
(15,787 | ) | (9,750 | ) | ||||
Sale of marketable securities |
12,615 | 15,261 | ||||||
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Net cash used in investing activities |
(21,021 | ) | (1,090 | ) | ||||
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Cash flows from financing activities: |
||||||||
Proceeds from sale of stock |
78,768 | 8,500 | ||||||
Proceeds from issuance of convertible bonds |
| 38,000 | ||||||
Costs incurred related to the sale of stock |
(1,013 | ) | (1,538 | ) | ||||
Proceeds from exercise of stock options |
61 | 50 | ||||||
Investment from non-controlling interest |
539 | 569 | ||||||
Payment of contingent consideration |
| (3,184 | ) | |||||
Repurchase of options and warrants |
(79 | ) | | |||||
Repayment of long-term debt |
(724 | ) | (1,264 | ) | ||||
Purchase of treasury stock |
(1,250 | ) | (5,861 | ) | ||||
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Net cash provided by financing activities |
76,302 | 35,272 | ||||||
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Net increase (decrease) in cash and cash equivalents |
24,062 | (12,990 | ) | |||||
Cash and cash equivalents, beginning of period |
17,295 | 41,756 | ||||||
Effect of exchange rate changes on cash and cash equivalents |
399 | (89 | ) | |||||
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Cash and cash equivalents, end of period |
$ | 41,756 | $ | 28,677 | ||||
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This statement should be read in conjunction with the notes to the consolidated financial statements included in the Companys Form S-1
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Schedule IIValuation and Qualifying Accounts
Activity in the following valuation and qualifying accounts consisted of the following (in thousands):
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Col. C - Additions |
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Col. A |
Col. B Balance at Beginning of Period |
Charged to Costs & Expenses |
Charged to Other Accounts - Describe |
Col. D Deductions - Describe |
Col. E Balance at End of Period |
|||||||||||||||
December 31, 2016 |
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Allowance for doubtful accounts |
$ | 478 | $ | 267 | (1) | $ | | $ | (590 | )(1) | $ | 155 | ||||||||
Reserve for excess and obsolete inventory |
$ | 839 | $ | 175 | $ | | $ | (85 | )(2) | $ | 929 | |||||||||
Deferred tax asset valuation allowance |
$ | 31,400 | $ | | $ | 30,908 | (3) | $ | | $ | 62,308 | |||||||||
December 31, 2015 |
||||||||||||||||||||
Allowance for doubtful accounts |
$ | 199 | $ | 279 | (1) | $ | | $ | | $ | 478 | |||||||||
Reserve for excess and obsolete inventory |
$ | | $ | 839 | $ | | $ | | $ | 839 | ||||||||||
Deferred tax asset valuation allowance |
$ | 12,512 | $ | | $ | 18,888 | (3) | $ | | $ | 31,400 |
(1) Increases in the allowance for doubtful accounts consist of our provision for bad debts, which is included within selling, general, and administrative expenses on the consolidated statements of operations and comprehensive loss. Decreases in the allowances for doubtful accounts consist of the write-off of specific accounts and the recovery of previously reserved receivables.
(2) Increases in the reserve for excess and obsolete inventory are charged to expense within cost of sales on the consolidated statements of operations and comprehensive loss and are based on the difference, if any, between the cost of the inventory and market, based upon assumptions about future demand. Decreases in the reserve for excess and obsolete inventory consist of the write-off of specific items and the recovery of previously reserved inventory.
(3) Increases in the valuation allowance for deferred income tax assets offset the increase in our gross deferred tax assets, based on the expected realization of those future tax benefits.
Item 17. Undertakings
The registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit, or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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The undersigned registrant hereby undertakes that:
(1) | For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus as filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. |
(2) | For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and this offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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EXHIBIT INDEX
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* | Previously filed. |
+ | Indicates management contract or compensatory plan. |
^ | Confidential treatment has been granted for certain confidential portions of this exhibit pursuant to Rule 406 under the Securities Act. In accordance with Rule 406, these confidential portions have been omitted from this exhibit and filed separately with the Commission. |
| Incorporated by reference to our Registration Statement on Form S-1 (File No. 333-217928), initially filed with the Securities and Exchange Commission on May 12, 2017. |
| Incorporated by reference to our Quarterly Report on Form 10-Q (File No. 001-38112), initially filed with the Securities and Exchange Commission on November 9, 2017. |
| Incorporated by reference to our Current Report on Form 8-K (File No. 001-38112), initially filed with the Securities and Exchange Commission on June 22, 2017. |
| Incorporated by reference to our Current Report on Form 8-K (File No. 001-38112), initially filed with the Securities and Exchange Commission on December 15, 2017. |
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Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Buffalo, State of New York, on January 22, 2018.
ATHENEX, INC. | ||
By: | /s/ Johnson Y.N. Lau | |
Johnson Y.N. Lau | ||
Chief Executive Officer and Board Chairman |
KNOW ALL PERSONS BY THESE PRESENTS, the undersigned hereby constitute and appoint Johnson Y.N. Lau and Teresa Bair and each of them, his true and lawful attorney-in-fact and agent, each with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, or any related registration statement filed pursuant to Rule 462(b) under the Securities Act, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this power of attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-1 has been signed by the following persons in the capacities indicated on January 22, 2018:
Signature |
Title |
Date | ||
/s/ Johnson Y.N. Lau Johnson Y.N. Lau |
Chief Executive Officer and Board Chairman (Principal Executive Officer) | January 22, 2018 | ||
* Li Shen |
Acting Chief Accounting Officer and Vice President of Financial Reporting (Principal Financial Officer and Principal Accounting Officer) |
January 22, 2018 | ||
* Kim Campbell |
Director | January 22, 2018 | ||
* Manson Fok |
Director | January 22, 2018 | ||
* Antony Leung |
Director | January 22, 2018 | ||
* Jinn Wu |
Director | January 22, 2018 | ||
* Song-Yi Zhang |
Director | January 22, 2018 |
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Signature |
Title |
Date | ||
* Michael Cannon |
Director | January 22, 2018 | ||
* Sheldon Trainor-Degirolamo |
Director | January 22, 2018 | ||
* James Zukin |
Director | January 22, 2018 |
* BY | /s/ Johnson Y.N. Lau | |
Johnson Y.N. Lau Attorney-in-fact |
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