As filed with the
Securities and Exchange Commission on February 15, 2018
Registration
No. 333-212351
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C.
20549
_____________________
POST-EFFECTIVE AMENDMENT
NO. 2 TO
FORM S-1 ON FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT
OF 1933
_____________________
Oncobiologics, Inc.
(Exact name of registrant
as specified in its charter)
Delaware
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38-3982704
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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_____________________
7 Clarke Drive
Cranbury, New Jersey 08512
(609) 619-3990
(Address, including
zip code, and telephone number, including area code, of registrant’s principal executive offices)
_____________________
Lawrence A. Kenyon
Chief Financial Officer
Oncobiologics, Inc.
7 Clarke Drive
Cranbury, New Jersey 08512
(609) 619-3990
(Name, address, including
zip code, and telephone number, including area code, of agent for service)
_____________________
Copies to:
Yvan-Claude J. Pierre
Marianne C. Sarrazin
Cooley LLP
1114 Avenue of the Americas
New York, New York 10036
(212) 479-6000
_____________________
Approximate date of
commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If the only securities
being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box:
¨
If any of the securities
being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check the
following box:
x
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 registration
statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is a post-effective
amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark
whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a 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.
Large accelerated filer
¨
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Accelerated filer
¨
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Non-accelerated filer
¨
(Do not check if
a smaller reporting company)
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Smaller reporting company
x
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Emerging growth company
x
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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 Securities Act.
x
_____________________
This filing constitutes
a post-effective amendment to the registration statement on Form S-1 (File No. 333-212351), which was declared effective on July
14, 2016. This post-effective amendment shall hereafter become effective in accordance with Section 8(c) of the Securities
Act of 1933, as amended, or on such date as the Securities and Exchange Commission, acting pursuant to Section 8(c), may determine.
EXPLANATORY NOTE
On June 30, 2016 the
registrant filed a registration statement with the Securities and Exchange Commission (the “SEC”) on Form S-1, (333-212351),
which was declared effective by the SEC on July 14, 2016, and amended by a post-effective amendment No. 1, which was filed on January
4, 2017 and declared effective by the SEC on January 13, 2017, to register for resale by the selling stockholder named in the prospectus
up to 1,666,664 shares of the registrant’s common stock (which includes 833,332 shares issuable upon exercise of the warrants),
416,666 Series A warrants and 416,666 Series B warrants.
This post-effective amendment
No. 2 to Form S-1 on Form S-3 is being filed by the registrant to convert the Form S-1 into a registration statement on Form S-3,
and contains an updated prospectus relating to the offering and sale of the securities that were registered for resale on the Form
S-1.
All applicable filing
fees were paid at the time of the original filing of the registration statement on Form S-1.
The information in this
preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed
with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does it seek
an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS
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SUBJECT TO COMPLETION
DATED FEBRUARY 15, 2018
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1,666,664 Shares
416,666 Series A Warrants
416,666 Series B Warrants
_____________________
This prospectus relates to the resale by the selling stockholder
identified in this prospectus of up to 833,332 shares of our common stock, 416,666 of our Series A warrants and 416,666 of our
Series B warrants that we sold to the selling stockholder, as well as an aggregate of 833,332 shares of common stock that are issuable
upon the exercise of the Series A warrants and Series B warrants to purchase our common stock. The shares of our common stock and
Series A warrants and Series B warrants were issued to the selling stockholder in a private placement completed on May 18, 2016.
We will not receive any proceeds from the sale of the shares or warrants by the selling stockholder.
We are not selling any shares of common stock or warrants and
will not receive any proceeds from the sale of the shares or warrants under this prospectus. Upon the exercise of the Series A
warrants for 416,666 shares of our common stock by payment of cash, however, we will receive the exercise price of the warrants,
which is $6.60 per share, and upon the exercise of the Series B warrants for 416,666 shares of our common stock by payment of cash,
however, we will receive the exercise price of the warrants, which is $8.50 per share.
We have agreed to bear all of the expenses incurred in connection
with the registration of these shares and warrants. The selling stockholder will pay or assume brokerage commissions and similar
charges, if any, incurred for the sale of the shares or the warrants.
The selling stockholder identified in this prospectus, or its
pledgees, donees, transferees or other successors-in-interest, may offer the shares or warrants from time to time through public
or private transactions at prevailing market prices, at prices related to prevailing market prices or at privately negotiated
prices. For additional information on the methods of sale that may be used by the selling stockholder, see the section entitled
“Plan of Distribution” beginning on page 7. For information regarding the selling stockholder, see the section
entitled “Selling Stockholder” beginning on page 5.
We may amend or supplement this prospectus from time to time
by filing amendments or supplements as required. You should read the entire prospectus and any amendments or supplements carefully
before you make your investment decision.
Our common stock, Series A warrants and Series B warrants are
traded on the Nasdaq Capital Market under the symbols “ONS,” “ONSIW” and “ONSIZ,” respectively.
On February 13, 2018, the closing sale prices of our common stock, Series A warrants and Series B warrants on the Nasdaq
Global Market were $1.15 per share, $0.03 per Series A warrant and $0.03 per Series B warrant,
respectively. Effective February 15, 2018, we transferred the listing of our securities to the Nasdaq Capital Market. You
are urged to obtain current market quotations for the common stock and the warrants.
We are an “emerging growth company” under the federal
securities laws and are subject to reduced public company reporting requirements for this prospectus and future filings.
Investing in our common stock involves a high degree of risk. You should review carefully the risks and uncertainties incorporated
by reference herein under the heading “Risk Factors” on page
3
of this prospectus, and
under similar headings in the other documents that are filed after the date hereof and incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities
or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus
is , 2018.
TABLE OF CONTENTS
_____________________
ABOUT THIS
PROSPECTUS
This prospectus is part of a registration statement on Form
S-3 that we filed with the Securities and Exchange Commission, or SEC, using the “shelf” registration process. Under
this process, the selling stockholder may from time to time, in one or more offerings, sell the common stock and warrants described
in this prospectus.
We are responsible for
the information contained in or incorporated by reference into this prospectus. We have not authorized anyone to provide you with
different information, and we take no responsibility for any other information others may give you. We are not, and the selling
stockholder is not, making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. The
information contained in this prospectus (and in any supplement or amendment to this prospectus) is accurate only as of the date
on the front of the document, and any information we have incorporated by reference is accurate only as of the date of the document
incorporated by reference, regardless of the time of delivery of this prospectus or any sale of our common stock. Our business,
financial condition, results of operations and prospects may have changed since those dates.
Persons who come into
possession of this prospectus in jurisdictions outside the United States are required to inform themselves about and to observe
any restrictions as to this offering and the distribution of this prospectus applicable to that jurisdiction.
Our name “Oncobiologics,”
the Oncobiologics logo and other trademarks or service marks of Oncobiologics, Inc. appearing in this prospectus are the property
of Oncobiologics, Inc. Other trademarks, service marks or trade names appearing in this prospectus are the property of their respective
owners. We do not intend our use or display of other companies’ trade names, trademarks or service marks to imply a relationship
with, or endorsement or sponsorship of us by, these other companies.
PROSPECTUS
SUMMARY
This summary highlights
information contained elsewhere in this prospectus or incorporated by reference in this prospectus. This summary provides an overview
of selected information and does not contain all of the information you should consider before investing in our securities. You
should read this entire prospectus carefully, especially the section titled “Risk Factors” and our consolidated financial
statements and related notes included elsewhere in this prospectus, before making an investment decision. Except as otherwise indicated
or unless the context otherwise requires, references to “company,” “we,” “us,” “our”
or “Oncobiologics,” refer to Oncobiologics, Inc. and its consolidated subsidiary.
Overview
We are a clinical-stage
biopharmaceutical company focused on identifying, developing, manufacturing and commercializing complex biosimilar therapeutics.
Our current focus is on technically challenging and commercially attractive monoclonal antibodies, or mAbs, in the disease areas
of immunology and oncology. A mAb is a type of protein that is produced by a single clone of cells or cell line and made to bind
to a specific substance in the body. Our strategy is to
cost-effectively
develop these biosimilars
on an accelerated timeline, which is fundamental to our success and we believe positions us to be a leading biosimilar company.
We have leveraged our team’s biopharmaceutical expertise to establish fully integrated in-house development and manufacturing
capabilities, which we refer to as our BioSymphony Platform. We believe this platform addresses the numerous complex technical
and regulatory challenges in developing and commercializing mAb biosimilars and was designed to provide significant pricing flexibility.
We have identified a pipeline of product candidates for further development and have advanced two of these product candidates through
Phase 1 clinical trials and into preparations for Phase 3 clinical trials: ONS-3010, a biosimilar to adalimumab (Humira®),
and ONS-1045, a biosimilar to bevacizumab (Avastin®).
Implications of Being
an Emerging Growth Company
As a company with less
than $1.07 billion in revenues during our last fiscal year, we are an “emerging growth company” as defined in the Jumpstart
Our Business Startups Act, or the JOBS Act, enacted in April 2012, and therefore we intend to take advantage of certain exemptions
from various public company reporting requirements, including not being required to have our internal control over financial reporting
audited by our independent registered public accounting firm pursuant to Section 404(b) of the Sarbanes-Oxley Act of 2002, reduced
disclosure obligations regarding executive compensation in our periodic reports and proxy statements and exemptions from the requirements
of holding a nonbinding advisory vote on executive compensation and any golden parachute payments not previously approved. We may
take advantage of these exemptions for up to five years from our initial public offering or until we are no longer an “emerging
growth company.” We would cease to be an “emerging growth company” if we have more than $1.07 billion in annual
revenues, have more than $700 million in market value of our common stock held by non-affiliates as of the last day of our second
fiscal quarter or issue more than $1.0 billion of non-convertible debt over a three-year period. We may choose to take advantage
of some, but not all, of the available benefits under the JOBS Act. We have taken advantage of some reduced reporting burdens in
this prospectus. Accordingly, the information contained herein may be different than the information you receive from other public
companies in which you hold securities.
In addition, the JOBS
Act provides that an “emerging growth company” can take advantage of an extended transition period for complying with
new or revised accounting standards. This provision allows an emerging growth company to delay the adoption of some accounting
standards until those standards would otherwise apply to private companies. We have irrevocably elected not to avail ourselves
of delayed adoption of new or revised accounting standards and, therefore, we will be subject to the same requirements to adopt
new or revised accounting standards as other public companies that are not “emerging growth companies.”
Corporate Information
We initially incorporated
in January 2010 in New Jersey as Oncobiologics, Inc., and in October 2015, we reincorporated in Delaware by merging with and into
a Delaware corporation. Our headquarters are located at 7 Clarke Drive, Cranbury, New Jersey, 08512, and our telephone number at
that location is (609) 619-3990. Our website address is www.oncobiologics.com. The information contained on, or that can be accessed
through, our website is not part of, and is not incorporated by reference into this prospectus and should not be considered to
be part of this prospectus.
The Offering
The selling stockholder
named in this prospectus may offer and sell up to 1,666,664 shares of our common stock (which includes 833,332 shares issuable
upon exercise of the warrants), 416,666 Series A warrants and 416,666 Series B warrants. Each Series A warrant entitles the holder
to purchase one share of our common stock at an initial exercise price of $6.60, subject to adjustment, and will expire at 5:00
p.m., New York City time on February 18, 2018. Each whole Series B warrant entitles the holder to purchase one share of our common
stock at an initial exercise price of $8.50, subject to adjustment, and will expire at 5:00 p.m., New York City time on
May 18, 2018.
Our
common stock, Series A warrants and Series B warrants are currently listed on The Nasdaq Capital Market under the
symbols “ONS,” “ONSIW,” and “ONSIZ,” respectively. Shares of common stock that may be offered
under this prospectus, when issued upon exercise of the outstanding Series A warrants and Series B warrants, will be fully paid
and non-assessable. We will not receive any of the proceeds of sales by the selling stockholder of any of the securities covered
by this prospectus. When we refer to the selling stockholder sin this prospectus, we are referring to Sabby Healthcare Master
Fund Ltd. or Sabby, the purchaser under the securities purchase agreement dated as of May 11, 2016, and, as applicable, its permitted
transferees or other successors-in-interest that may be identified in a supplement to this prospectus or, if required, a post-effective
amendment to the registration statement of which this prospectus is a part.
RISK FACTORS
An
investment in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider
carefully the risks and uncertainties discussed under the heading “Risk Factors” contained in our annual report on
Form 10-K for the year ended September 30, 2017 filed with the SEC on December 29, 2017 and incorporated by reference in this prospectus,
as the same may be amended, supplemented or superseded by the risks and uncertainties described under similar headings in the other
documents that are filed after the date hereof and incorporated by reference into this prospectus. Additional risks not presently
known to us or that we currently believe are immaterial may also significantly impair our business operations. Please also read
carefully the section below entitled “Special Note Regarding Forward-Looking Statements.”
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the
documents incorporated by reference contain forward-looking statements about us and our industry that involve substantial risks
and uncertainties. All statements other than statements of historical facts contained in this prospectus and the documented incorporated
by reference, including statements regarding our future financial condition, business strategy and plans, and objectives of management
for future operations, are forward-looking statements. In some cases, you can identify forward-looking statements by terminology
such as “aim,” “anticipate,” “assume,” “believe,” “contemplate,” “continue,”
“could,” “design,” “due,” “estimate,” “expect,” “goal,”
“intend,” “may,” “objective,” “plan,” “predict,” “positioned,”
“potential,” “seek,” “should,” “target,” “will,” “would”
and other similar expressions that are predictions of or indicate future events and future trends, or the negative of these terms
or other comparable terminology.
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 financial condition, results of operations, business strategy and financial needs. These forward-looking statements are subject
to a number of known and unknown risks, uncertainties and assumptions, including risks described in the section titled “Risk
Factors” contained in our annual report on Form 10-K for the year ended September 30, 2017 filed with the SEC on December
29, 2017 and incorporated by reference in this prospectus, as the same may be amended, supplemented or superseded by the risks
and uncertainties described under similar headings in the other documents that are filed after the date hereof and incorporated
by reference into this prospectus, regarding, among other things:
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our ability to successfully partner our lead biosimilar product candidate assets or expand our
business to provide contract development and manufacturing services;
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the timing and the success of the design of the clinical trials and planned clinical trials of
ONS-3010 and ONS-1045;
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whether the results of our clinical trials will be sufficient to support domestic or global regulatory
approvals;
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our ability to obtain and maintain regulatory approval of our current and future biosimilar product
candidates;
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our expectations regarding the potential market size and the size of the patient populations for
our biosimilar product candidates, if approved, for commercial use;
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our ability to fund our working capital requirements;
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the implementation of our business model and strategic plans for our business and biosimilar product
candidates;
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the initiation, timing, progress and results of future preclinical studies and clinical trials
and our research and development programs;
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developments or disputes concerning our intellectual property or other proprietary rights;
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our ability to maintain and establish collaborations or obtain additional funding;
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the rate and degree of market acceptance of our current and future biosimilar product candidates
or our contract development manufacturing services;
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our expectations regarding government and third-party payor coverage and reimbursement;
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our ability to compete in the markets we serve; and
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the factors that may impact our financial results.
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These risks are not exhaustive.
Other sections of this prospectus or the documents incorporated by reference may include additional factors that could harm our
business and financial performance. Moreover, we operate in a very competitive and rapidly changing environment. New risk factors
emerge from time to time, and it is not possible for our management to predict all risk factors, nor can we assess the impact of
all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially
from those contained in, or implied by, any forward-looking statements.
You should not rely upon
forward-looking statements as predictions of future events. We cannot assure you that the events and circumstances reflected in
the forward-looking statements will be achieved or occur. Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements. Except as required
by law, we undertake no obligation to update publicly any forward-looking statements for any reason after the date of this prospectus
or to conform these statements to actual results or to changes in our expectations.
You should carefully read
this prospectus, together with the information incorporated herein by reference as described under the heading “Incorporation
by Reference,” and the documents that we reference in this prospectus and have filed as exhibits to the registration statement
of which this prospectus is a part with the understanding that our actual future results, levels of activity, performance and achievements
may be materially different from what we expect. We qualify all of our forward-looking statements by these cautionary statements.
Except
as required by law, we assume no obligation to update these forward-looking statements publicly, or to update the reasons actual
results could differ materially from those anticipated in these forward-looking statements, even if new information becomes available
in the future.
USE OF PROCEEDS
We
are filing the registration statement of which this prospectus forms a part to permit the holder of the shares of our common stock
and warrants to purchase shares of our common stock described in the section entitled “Selling Stockholder” to resell
such shares of common stock, warrants and shares of common stock issuable upon exercise of such warrants. We will not receive any
proceeds from the resale of any shares or warrants offered by this prospectus by the selling stockholder. Upon the exercise of
the Series A warrants for 416,666 shares of our common stock by payment of cash, however, we will receive the exercise price of
the warrants, which is $6.60 per share. Upon the exercise of the Series B warrants for 416,666 shares of our common stock by payment
of cash, however, we will receive the exercise price of the warrants, which is $8.50 per share. Any proceeds from the exercise
of the warrants will be used for working capital and general corporate purposes.
SELLING
STOCKHOLDER
On May 18, 2016, pursuant to a securities
purchase agreement with Sabby Healthcare Master Fund, Ltd., the selling stockholder, dated as of May 11, 2016, concurrent with
the closing of our initial public offering, we sold in a private placement for approximately $5.0 million of gross proceeds the
following securities: 833,332 shares of our common stock, Series A warrants to purchase up to an aggregate of 416,666 shares of
our common stock at a purchase price of $6.60 per share, and Series B warrants to purchase up to an aggregate of 416,666
shares of our common stock at a purchase price of $8.50 per share. The underwriters of our initial public offering acted as placement
agents and received a fee of approximately $350,000.
The table below sets forth, to our knowledge,
information about the selling stockholder as of December 31, 2017. Beneficial ownership is determined in accordance with the rules
of the SEC. Unless otherwise indicated below, to our knowledge, the selling stockholder named in the table has sole voting and/or
investment power with respect to the securities beneficially owned. Beneficial ownership for the selling stockholder is based on
25,530,727 shares of our common stock issued and outstanding as of December 27, 2017. The inclusion of any securities in this table
does not constitute an admission of beneficial ownership by the person named below. Percentage amounts in the table below reflect
beneficial ownership of that class of security.
We do not know when or in what amounts the
selling stockholder may offer shares or warrants for sale. The selling stockholder might not sell any or all of the shares or warrants
registered pursuant to the registration statement of which this prospectus forms a part. Because the selling stockholder may offer
all or some of the shares or warrants pursuant to the registration statement of which this prospectus forms a part and because
there are currently no agreements or understandings with respect to the sale of any shares or warrants, we cannot estimate the
number of shares or warrants that will be held by the selling stockholder after completion of this offering. However, for purposes
of this table, we have assumed that, after completion of this offering, none of the shares or warrants covered by this prospectus
will be held by the selling stockholder. The selling stockholder may sell some, all or none of its shares. We do not know how long
the selling stockholder will hold the shares before selling them, and we currently have no agreements, arrangements or understandings
with the selling stockholder regarding the sale or other disposition of any of the shares. The shares covered hereby may be offered
from time to time by the selling stockholder.
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Before Offering
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After Offering
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Name and Address
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Number of Securities
Held
(1)
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Percentage
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Number of Securities
Held
(2)
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Percentage
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Common Stock
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2,605,902
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9.99
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%
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2,799,238
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9.99
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%
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Series A Warrants
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667,968
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20.0
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%
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251,302
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7.5
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%
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Series B Warrants
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667,968
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20.0
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%
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251,302
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7.5
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%
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(1)
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Before offering includes (i) 1,647,170 shares of common stock held directly by the selling stockholder, Sabby Healthcare Master
Fund, Ltd., a Cayman Islands exempted company, (ii) 168,732 shares of common stock held directly by Sabby Volatility Warrant Master
Fund, Ltd., a Cayman Islands exempted company, or SVWMF, (iii) 343,492 aggregate shares of common stock issuable upon exercise
of the aggregate Series A warrants and Series B warrants held directly by SHMF and SVWMF and (iv) 446,508 shares of common stock
issuable upon the exercise of warrants held by SHMF and SVWMF received in our December 2016 financing. Excludes shares of common
stock issuable upon exercise of other warrants as such warrants may not be exercised if such exercise would result in beneficial
ownership of more than 9.99% of our common stock. Also does not include shares of common stock issuable upon conversion of 1,500,000
shares of Series B Non-Voting Convertible Preferred Stock as such shares are not currently convertible. Sabby Management, LLC,
a Delaware limited liability company serves as the investment manager of SHMF. Hal Mintz is manager of Sabby Management. Each of
Sabby Management and Mr. Mintz may be deemed to beneficially own the shares held by SHMF by virtue of such relationships, but each
disclaims beneficial ownership except to the extent of any pecuniary interest in such shares. The address of each of Sabby Management
and Mr. Mintz is c/o Sabby Management, 10 Mountainview Road, Suite 205, Upper Saddle River, New Jersey 07458.
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(2)
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After offering includes (i) 149,238 shares of common stock held directly, (ii) 1,500,000 shares of common stock issuable upon
conversion of Series B Convertible Preferred Stock and (iii) and 1,150,000 shares of common stock issuable upon exercise of warrants.
Does not include additional shares of common stock issuable upon exercise of other warrants that are not currently exercisable.
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When we refer to the shares of our common
stock and warrants being offered by this prospectus on behalf of the selling stockholder, we are referring to the shares of our
common stock, Series A warrants and Series B warrants sold in the concurrent private placement, unless otherwise indicated.
The selling stockholder may have sold or transferred,
in transactions exempt from the registration requirements of the Securities Act, some or all of its shares of common stock or its
warrants since the date on which the information in the table above is presented. Information about the selling stockholder may
change over time.
PLAN OF
DISTRIBUTION
We are registering the shares of common stock, Series A warrants
and Series B warrants previously issued and the shares of common stock issuable upon exercise of the Series A warrants and Series
B warrants, to permit the resale of these securities by the holders of the common stock and warrants from time to time after the
date of this prospectus. We will not receive any of the proceeds from the sale by the selling stockholder of the securities. Upon
the exercise of the Series A warrants and Series B warrants, each for 416,666 shares of our common stock, by payment of cash, however,
we will receive the exercise price of the warrants, which is $6.60 per share and $8.50 per share, respectively. We will bear all
fees and expenses incident to our obligation to register the shares of common stock and Series A warrants and Series B warrants,
except that, if such securities are sold through underwriters or broker-dealers, the selling stockholder will be responsible for
underwriting discounts or commissions or agent’s commissions.
The selling stockholder may sell all or a portion of the securities
beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or
agents. The securities may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the
sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions, which
may involve crosses or block transactions,
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on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;
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in the over-the-counter market;
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in transactions otherwise than on these exchanges or systems or in the over-the-counter market;
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through the writing of options, whether such options are listed on an options exchange or otherwise;
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ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
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purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
|
|
·
|
an exchange distribution in accordance with the rules of the applicable exchange;
|
|
·
|
privately negotiated transactions;
|
|
·
|
sales pursuant to Rule 144 of the Securities Act of 1933, as amended, or the Securities Act;
|
|
·
|
broker-dealers may agree with the selling stockholder to sell a specified number of such security at a stipulated price per
security;
|
|
·
|
a combination of any such methods of sale; or
|
|
·
|
any other method permitted pursuant to applicable law.
|
If the selling stockholder effects such transactions by selling
our securities to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions
in the form of discounts, concessions or commissions from the selling stockholder or commissions from purchasers of our securities
for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular
underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection
with sales of our securities or otherwise, the selling stockholder may enter into hedging transactions with broker-dealers, which
may in turn engage in short sales of our securities in the course of hedging in positions they assume. The selling stockholder
may also sell our securities short and deliver our securities covered by this prospectus to close out short positions and to return
borrowed securities in connection with such short sales. The selling stockholder may also loan or pledge our securities to broker-dealers
that in turn may sell such securities.
The selling stockholder may pledge or grant a security interest
in some or all of our securities owned by it and, if it defaults in the performance of its secured obligations, the pledgees or
secured parties may offer and sell the shares of common stock from time to time pursuant to this prospectus or other applicable
provisions of the Securities Act, amending, if necessary, the list of selling stockholders to include the pledgee, transferee or
other successors in interest as selling stockholders under this prospectus. The selling stockholder also may transfer and donate
our securities in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the
selling beneficial owners for purposes of this prospectus.
The selling stockholder and any broker-dealer participating
in the distribution of our securities may be deemed to be “underwriters” within the meaning of the Securities Act,
and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions
or discounts under the Securities Act. At the time a particular offering of our securities is made, a prospectus supplement, if
required, will be distributed that will set forth the aggregate amount of our securities being offered and the terms of the offering,
including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation
from the selling stockholder and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers.
Under the securities laws of some states, our securities may
be sold in such states only through registered or licensed brokers or dealers. In addition, in some states our securities may not
be sold unless such securities have been registered or qualified for sale in such state or an exemption from registration or qualification
is available and is complied with.
There can be no assurance that the selling stockholder will
sell any or all of our securities registered pursuant to the registration statement, of which this prospectus forms a part.
The selling stockholder and any other person participating in
such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended, or the Exchange
Act, and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit
the timing of purchases and sales of any of our securities by the selling stockholder and any other participating person. Regulation
M may also restrict the ability of any person engaged in the distribution of our securities to engage in market-making activities
with respect to our securities. All of the foregoing may affect the marketability of our securities and the ability of any person
or entity to engage in market-making activities with respect to our securities.
We will pay all expenses of the registration of our securities
pursuant to the registration statement of which this prospectus forms a part, estimated to be $75,000 in total, including, without
limitation, SEC filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however,
that the selling stockholder will pay all underwriting discounts and selling commissions, if any. We will indemnify the selling
stockholder against liabilities, including some liabilities under the Securities Act, or the selling stockholder will be entitled
to contribution. We may be indemnified by the selling stockholder against civil liabilities, including liabilities under the Securities
Act, that may arise from any written information furnished to us by the selling stockholder specifically for use in this prospectus
or we may be entitled to contribution.
Once sold under the registration statement of which this prospectus
forms a part, the securities will be freely tradable in the hands of persons other than our affiliates.
VALIDITY OF SECURITIES
The validity of the securities
stock being offered hereby has been passed upon for us by Cooley LLP.
EXPERTS
The consolidated financial statements of Oncobiologics, Inc.
as of September 30, 2017 and 2016 and for the years then ended have been incorporated by reference in this prospectus in reliance
upon the report 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 September 30, 2017 consolidated financial statements
contains an explanatory paragraph that states that the Company has incurred recurring losses and negative cash flows from operations
since inception and has an accumulated deficit at September 30, 2017 of $186.2 million, $13.5 million of senior secured notes due
in December 2018 and $4.6 million of indebtedness that is due on demand, which raises substantial doubt about the Company’s
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.
WHERE YOU
CAN FIND MORE INFORMATION
We
are a reporting company and file annual, quarterly and current reports, proxy statements and other information with the SEC. We
have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the resale of the common
stock the selling stockholder is offering under this prospectus. This prospectus does not contain all of the information set forth
in the registration statement and the exhibits to the registration statement. For further information with respect to us and the
common stock offered by the selling stockholder under this prospectus, we refer you to the registration statement and the exhibits
filed as a part of the registration statement. You may read and copy the registration statement, as well as our reports, proxy
statements and other information, at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please
call the SEC at 1-800-SEC-0330 for more information about the operation of the public reference room. The SEC also maintains an
Internet site that contains reports, proxy and information statements and other information regarding issuers that file electronically
with the SEC, including Oncobiologics. The SEC’s Internet site can be found at www.sec.gov. We maintain a website at www.oncobiologics.com.
Information found on, or accessible through, our website is not a part of, and is not incorporated into, this prospectus, and you
should not consider it part of this prospectus.
INCORPORATION
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
another document that we have filed separately with the SEC. You should read the information incorporated by reference because
it is an important part of this prospectus. Information in this prospectus supersedes information incorporated by reference that
we filed with the SEC prior to the date of this prospectus, while information that we file later with the SEC will automatically
update and supersede the information in this prospectus. We incorporate by reference into this prospectus and the registration
statement of which this prospectus is a part the information or documents listed below that we have filed with the SEC (Commission
File No. 001-37759):
|
·
|
our Annual Report on Form 10-K for the fiscal year ended September 30, 2017, filed with the SEC on
December 29, 2017, as amended on January 29, 2018;
|
|
·
|
our
Quarterly Report on Form 10-Q, filed with the SEC on February 14, 2018;
|
|
·
|
our
Current Reports on Form 8-K, filed with the SEC on October 3, 2017, October 31, 2017,
January 4, 2018, February 7, 2018, February 9, 2018, and February 14, 2018;
and
|
|
·
|
the description of our common stock set forth in our registration statement on Form 8-A, filed with
the SEC on April 29, 2016, as amended on May 11, 2016, including any further amendments thereto or reports filed for the purposes
of updating this description.
|
We also incorporate by reference
any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed
on such form that are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including those made after the date of the initial filing of the
registration statement of which this prospectus is a part and prior to effectiveness of such registration statement, until we file
a post-effective amendment that indicates the termination of the offering of the common stock made by this prospectus and will
become a part of this prospectus from the date that such documents are filed with the SEC. Information in such future filings updates
and supplements the information provided in this prospectus. Any statements in any such future filings will automatically be deemed
to modify and supersede any information in any document we previously filed with the SEC that is incorporated or deemed to be incorporated
herein by reference to the extent that statements in the later filed document modify or replace such earlier statements.
We will furnish without
charge to each person, including any beneficial owner, to whom a prospectus is delivered, upon written or oral request, a copy
of any or all of the documents incorporated by reference into this prospectus but not delivered with the prospectus, including
exhibits that are specifically incorporated by reference into such documents. You should direct any requests for documents to Oncobiologics,
Inc., Attention: Corporate Secretary, 7 Clarke Drive, Cranbury, New Jersey 08512. Our phone number is (609) 619-3990.
PART II
INFORMATION NOT REQUIRED
IN THE PROSPECTUS
|
Item 14.
|
Other Expenses of Issuance and Distribution
|
The following table sets
forth the estimated costs and expenses payable by the registrant in connection with the common stock being registered. The selling
stockholder will not bear any portion of such expenses. All the amounts shown are estimates, except for the SEC registration fee.
|
|
Amount
|
|
SEC registration fee
|
|
$
|
958
|
|
Accounting fees and expenses
|
|
|
15,000
|
|
Legal fees and expenses
|
|
|
35,000
|
|
Printing and miscellaneous fees and expenses
|
|
|
24,042
|
|
|
|
|
|
|
Total
|
|
$
|
75,000
|
|
|
Item 15.
|
Indemnification of Directors and Officers
|
As permitted by Section 102 of the Delaware General Corporation
Law, we have adopted provisions in our amended and restated certificate of incorporation and amended and restated bylaws, each
as amended, which limit or eliminate the personal liability of our directors for a breach of their fiduciary duty of care as a
director. The duty of care generally requires that, when acting on behalf of the corporation, directors exercise an informed business
judgment based on all material information reasonably available to them. Consequently, a director will not be personally liable
to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except for liability for:
|
·
|
any breach of the director’s duty of loyalty to us or our stockholders;
|
|
·
|
any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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|
·
|
any act related to unlawful stock repurchases, redemptions or other distributions or payment of dividends; or
|
|
·
|
any transaction from which the director derived an improper personal benefit.
|
These limitations of liability do not affect the availability
of equitable remedies such as injunctive relief or rescission. Our amended and restated certificate of incorporation also authorizes
us to indemnify our officers, directors and other agents to the fullest extent permitted under Delaware law.
As permitted by Section 145 of the Delaware General Corporation
Law, our amended and restated bylaws, as amended, provide that:
|
·
|
we may indemnify our directors, officers and employees to the fullest extent permitted by the Delaware General Corporation
Law, subject to limited exceptions;
|
|
·
|
we may advance expenses to our directors, officers and employees in connection with a legal proceeding to the fullest extent
permitted by the Delaware General Corporation Law, subject to limited exceptions; and
|
|
·
|
the rights provided in our bylaws are not exclusive.
|
Our amended and restated certificate of incorporation and bylaws,
each as amended, which are filed as Exhibits 3.1 and 3.3, provide for the indemnification provisions described above and elsewhere
herein. We have entered into separate indemnification agreements with our directors and officers that may be broader than the specific
indemnification provisions contained in the Delaware General Corporation Law. These indemnification agreements generally require
us, among other things, to indemnify our officers and directors against liabilities that may arise by reason of their status or
service as directors or officers, other than liabilities arising from willful misconduct. These indemnification agreements also
generally require us to advance any expenses incurred by the directors or officers as a result of any proceeding against them as
to which they could be indemnified. In addition, we have purchased a policy of directors’ and officers’ liability insurance
that insures our directors and officers against the cost of defense, settlement or payment of a judgment in some circumstances.
These indemnification provisions and the indemnification agreements may be sufficiently broad to permit indemnification of our
officers and directors for liabilities, including reimbursement of expenses incurred, arising under the Securities Act.
We have entered into indemnification agreements with our directors
and executive officers, in addition to the indemnification provided for in our amended and restated certificate of incorporation
and amended and restated bylaws, and intend to enter into indemnification agreements with any new directors and executive officers
in the future.
We have purchased and currently intend to maintain insurance
on behalf of each and every person who is or was a director or officer of our company against any loss arising from any claim asserted
against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
The purchase agreement that
the registrant entered into with the selling stockholder identified in the prospectus included in this registration statement provides
for cross-indemnification in connection with registration of the registrant’s common stock on behalf of such selling stockholder,
including for some liabilities arising under the Securities Act.
Exhibit No.
|
Description
|
3.1
|
Amended and Restated Certificate of Incorporation of Oncobiologics, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s current report on Form 8-K filed on May 19, 2016)
|
|
3.2
|
Certificate of Designation of Series A Convertible Preferred Stock and of Series B Convertible Preferred Stock of Oncobiologics, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s current report on Form 8-K filed on September 11, 2017)
|
|
3.3
|
Amended and Restated Bylaws of Oncobiologics, Inc. (incorporated by reference to Exhibit 3.2 to the Registrant’s current report on Form 8-K filed on May 19, 2016)
|
|
3.4
|
Amendment to the Amended and Restated Bylaws of Oncobiologics, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s current report on Form 8-K filed with the SEC on November 29, 2016)
|
|
4.1
|
Form of Series A Warrant Certificate (included in Exhibit 10.2)
|
|
4.2
|
Form of Series B Warrant Certificate (included in Exhibit 10.2)
|
|
5.1
|
Opinion of Cooley LLP (incorporated by reference to Exhibit 5.1 to the Registrant’s registration statement on Form S-1 filed on June 30, 2016)
|
|
10.1
|
Securities Purchase Agreement between Oncobiologics, Inc. and Sabby Healthcare Master Fund Ltd., dated May 11, 2016 (incorporated by reference to Exhibit 10.1 to the Registrant’s current report on Form 8-K filed on May 19, 2016)
|
|
10.2
|
Warrant Agreement by and between Oncobiologics, Inc. and American Stock Transfer & Trust Company LLC, as Warrant Agent dated May 18, 2016 (incorporated by reference to Exhibit 10.4 to the Registrant’s Quarterly Report on Form 10-Q filed on June 27, 2016)
|
|
10.3
|
Amendment to the Warrant Agreement dated May 18, 2016 by and Oncobiologics, Inc. and American Stock Transfer & Trust Company LLC, as Warrant Agent, dated February 6, 2017 (incorporated by reference to Exhibit 10.1 to the Registrant’s current report on Form 8-K filed with the SEC on February 6, 2017)
|
|
10.4
|
Amendment
# 2 to the Warrant Agreement dated May 18, 2016 by and Oncobiologics, Inc. and American Stock Transfer & Trust Company
LLC, as Warrant Agent, dated February 9, 2018 (incorporated by reference to Exhibit 10.1 to the Registrant’s current
report on Form 8-K filed with the SEC on February 9, 2018)
|
|
23.1
|
Consent of independent registered public accounting firm
|
|
23.2
|
Consent of Cooley LLP (included in Exhibit 5.1)
|
|
24.1
|
Power of Attorney (included on signature page)
|
|
|
|
|
|
The undersigned registrant
hereby undertakes:
|
(1)
|
To file, during any period in which offers or sales are being made, a post-effective amendment to
this registration statement:
|
|
(i)
|
to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
|
|
(ii)
|
to reflect in the prospectus any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
|
|
(iii)
|
to include any material information with respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such information in the registration statement;
|
provided, however,
that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained
in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
|
(2)
|
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide
offering thereof.
|
|
(3)
|
To remove from registration by means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
|
|
(4)
|
That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than registration statements relying
on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed
to be part of and included in the registration statement as of the date it is first used
after effectiveness.
Provided, however
, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such first use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or made
in any such document immediately prior to such date of first use.
|
|
(5)
|
That, for the purpose of determining liability of the registrant under the Securities Act of 1933,
each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial
bona fide
offering thereof.
|
Insofar as indemnification
for liabilities arising under the Securities Act of 1933 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 of 1933
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cranbury, State of New Jersey, on February 15, 2018.
|
Oncobiologics, Inc.
|
|
|
|
|
|
|
|
By:
|
/s/
Pankaj
Mohan
|
|
|
Pankaj Mohan, Ph.D.
|
|
|
Chairman, President and Chief Executive Officer
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
, that each person
whose signature appears below constitutes and appoints Pankaj Mohan and Lawrence Kenyon, and each of them individually, as true
and lawful attorneys-in-fact and agents, with full powers 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 pre-effective and post-effective amendments) to this
registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and generally to do all such things in their names and behalf in their capacities as officers
and/or directors to enable Oncobiologics, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all
requirements of 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 and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the dates indicated:
Signatures
|
|
Title
|
|
Date
|
|
|
|
/s/
Pankaj Mohan
Pankaj Mohan, Ph.D.
|
|
Chairman, President and Chief Executive Officer
(Principal Executive Officer)
|
|
February 15, 2018
|
|
|
|
/s/
Lawrence A. Kenyon
Lawrence A. Kenyon
|
|
Chief Financial Officer and Secretary
(Principal Accounting and Financial Officer)
|
|
February 15, 2018
|
/s/
Claudio Albrecht
Claudio Albrecht
|
|
Director
|
|
February 15, 2018
|
|
|
|
/s/
Scott
A. Canute
Scott A. Canute
|
|
Director
|
|
February 15, 2018
|
|
|
|
/s/
Yezan
M. Haddadin
Yezan M. Haddadin
|
|
Director
|
|
February 15, 2018
|
|
|
|
/s/
Kurt
J. Hilzinger
Kurt J. Hilzinger
|
|
Director
|
|
February 15, 2018
|
|
|
|
/s/
Faisal
G. Sukhtian
Faisal G. Sukhtian
|
|
Director
|
|
February 15, 2018
|
|
|
|
/s
/
Joe Thomas
Joe Thomas
|
|
Director
|
|
February 15, 2018
|
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