UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark one)
xx ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2015
¨¨ TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______ to _______.
Commission file number 001-31812
ANI PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
58-2301143
(I.R.S. Employer Identification No.)
210 Main Street West
Baudette, Minnesota
(Address of principal executive offices)
56623
(Zip Code)
(218) 634-3500
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Common Stock, par value $0.0001 per share
Name of each exchange on which registered
The NASDAQ Global Market
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. YES ¨
NO x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. YES ¨
NO x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements
for the past 90 days. YES x
NO ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to
be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to
submit and post such files). YES x
NO ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will
not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See
definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer ¨
Non-accelerated filer ¨
(Do not check if a smaller reporting company)
Accelerated filer x
Smaller reporting company ¨
Indicate by check mark whether registrant is a shell company (as defined in Rule 12b-2 of the Act). YES ¨
NO x
The aggregate market value of the voting and non-voting common stock held by non-affiliates of the registrant as of June 30, 2015, was $526.8 million
(based upon the last reported sale price of $62.05 per share on June 30, 2015, on The NASDAQ Global Market).
As of February 12, 2016, 11,449,364 shares of common stock and 10,864 shares of Class C Special stock of the registrant were outstanding.
Portions of the definitive proxy statement for the registrant’s 2016 annual meeting of stockholders to be filed within 120 days after the end of the period
covered by this Annual Report on Form 10-K are incorporated by reference into Part III of this Annual Report on Form 10-K.
DOCUMENTS INCORPORATED BY REFERENCE
ANI PHARMACEUTICALS, INC.
ANNUAL REPORT ON FORM 10-K
For the Year Ended December 31, 2015
TABLE OF CONTENTS
PART I
Item 1.
Item 1A.
Item 1B.
Item 2.
Item 3.
Item 4.
PART II
Item 5.
Item 6.
Item 7.
Item 7A.
Item 8.
Item 9.
Item 9A.
Item 9B.
PART III
Item 10.
Item 11.
Item 12.
Item 13.
Item 14.
PART IV
Item 15.
Signatures
Business
Risk Factors
Unresolved Staff Comments
Properties
Legal Proceedings
Mine Safety Disclosures
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Selected Consolidated Financial Data
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Quantitative and Qualitative Disclosures About Market Risk
Consolidated Financial Statements and Supplementary Data
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Controls and Procedures
Other Information
Directors, Executive Officers and Corporate Governance
Executive Compensation
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Certain Relationships and Related Transactions, and Director Independence
Principal Accountant Fees and Services
Exhibits and Financial Statement Schedules
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Available Information
ANI Pharmaceuticals, Inc. and its consolidated subsidiaries (together, “ANI Pharmaceuticals,” “ANI,” the “Company,” “we,” “us,” or “our”) files annual,
quarterly and current reports, proxy statements and other information required by the Securities Exchange Act of 1934, as amended (the "Exchange Act"), with the
Securities and Exchange Commission ("SEC"). We make available free of charge on our website (www.anipharmaceuticals.com) our annual reports on Form 10-
K, quarterly reports on Form 10-Q, current reports on Form 8-K, proxy statements and any amendments to those filings as soon as reasonably practicable after such
material is electronically filed with or furnished to the SEC. Also posted on our website in the “Investors – Corporate Governance” section are our Corporate
Governance Guidelines, Code of Ethics and the charters for the Audit and Finance, Compensation, and Nominating and Corporate Governance Committees.
Information on, or accessible through, our website is not a part of, and is not incorporated into, this report or any other SEC filing. Copies of our SEC filings or
corporate governance materials are available without charge upon written request to Investor Relations, c/o ANI Pharmaceuticals, Inc., 210 Main Street West,
Baudette, Minnesota, 56623.
Any materials we file with the SEC are also publicly available through the SEC’s website (www.sec.gov) or may be read and copied at the SEC’s Public
Reference Room at 100 F Street, N.E., Washington, DC 20549. Information on the operation of the Public Reference Room may be obtained by calling the SEC at
1-800-SEC-0330.
In this annual report, references to “ANI Pharmaceuticals,” “ANI,” the “Company,” “we,” “us,” and “our” refer, unless the context requires otherwise, to ANI
Pharmaceuticals, Inc., a Delaware c-corporation, and its consolidated subsidiaries. References to “named executive directors” refer to our current named executive
officers, except where the context requires otherwise. References to the "Merger" refer to the merger of BioSante Pharmaceuticals, Inc. ("BioSante") and ANIP,
completed on June 19, 2013, wherein ANI Merger Sub, Inc., a wholly owned subsidiary of BioSante, merged with and into ANIP with ANIP continuing as the
surviving company and becoming a wholly owned subsidiary of BioSante. On July 17, 2013, BioSante changed its name to ANI Pharmaceuticals, Inc. References
to the "reverse stock split" refer to the one-for-six reverse stock split effected on July 17, 2013.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K and certain information incorporated herein by reference contain forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Exchange Act. Such statements include, but are not limited to,
statements about future operations, products, financial position, operating results prospects, pipelines or potential markets therefor, and other statements that are
not historical in nature, particularly those that utilize terminology such as “anticipates,” “will,” “expects,” “plans,” “potential,” “future,” “believes,”
“intends,” “continue,” other words of similar meaning, derivations of such words, and the use of future dates.
Uncertainties and risks may cause our actual results to be materially different than those expressed in or implied by such forward-looking statements.
Uncertainties and risks include, but are not limited to, the risk that we may face with respect to importing raw materials, increased competition, acquisitions,
delays or failure in obtaining product approvals from the U.S. Food and Drug Administration ("FDA"), general business and economic conditions, market trends,
product development, regulatory, and other approvals and marketing.
These factors should not be construed as exhaustive and should be read in conjunction with our other disclosures, including but not limited to the “Risk
Factors” section in Part I, Item 1A. of this Annual Report on Form 10-K and in other cautionary statements and risks included in other reports we file with the
SEC. New risks emerge from time to time. It is not possible for our management to predict all risks. The forward-looking statements contained in this document are
made only as of the date of this document. We undertake no obligation to update or revise any forward-looking statement, whether as a result of new information,
future events, or otherwise.
NOTE REGARDING TRADEMARKS
Cortenema ® , Cortrophin ® , Cortrophin-Zinc ® , Lithobid ® , Reglan ® , and Vancocin ® are registered trademarks subject to trademark protection and are
owned by ANI.
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Item 1. Business
PART I
ANI Pharmaceuticals is an integrated specialty pharmaceutical company developing, manufacturing, and marketing branded and generic prescription
pharmaceuticals. We focus on niche and high barrier to entry opportunities including controlled substances, anti-cancer (oncolytics), hormones and steroids, and
complex formulations. We have two pharmaceutical manufacturing facilities located in Baudette, Minnesota, which are capable of producing oral solid dose
products, as well as liquids and topicals, controlled substances, and potent products that must be manufactured in a fully-contained environment. Our strategy is to
use our assets to develop, acquire, manufacture, and market branded and generic specialty prescription pharmaceuticals.
On June 19, 2013, pursuant to a merger agreement dated as of April 12, 2013, ANIP Acquisition Company d/b/a ANI Pharmaceuticals, Inc. ("ANIP") became
a wholly-owned subsidiary of BioSante Pharmaceuticals, Inc. (“BioSante”) in an all-stock, tax-free reorganization (the "Merger"). The Merger was accounted for
as a reverse acquisition, pursuant to which ANIP was considered the acquiring entity for accounting purposes. Since the Merger, we have been operating under the
leadership of the ANIP management team and ANIP's historical results of operations have replaced BioSante's historical results of operations for all periods prior
to the Merger. The results of operations of both companies are included in our consolidated financial statements for all periods after completion of the Merger.
BioSante was a publicly-held pharmaceutical company focused on developing high value, medically-needed products. ANIP entered into the Merger to secure
additional capital and gain access to capital market opportunities as a public company.
In addition, in July 2013, our stockholders approved and we subsequently effected (i) a one-for-six reverse stock split of our common stock and class C special
stock, with a proportional reduction in the number of authorized shares of our common stock, class C special stock and blank check preferred stock, and (ii) a
change of name from “BioSante Pharmaceuticals, Inc.” to “ANI Pharmaceuticals, Inc.” Unless otherwise required by the context, references in this Annual Report
on Form 10-K to the "Company," "we," us," and "our" refer to ANI Pharmaceuticals, Inc., a Delaware corporation formed in April 2001, formerly known as
BioSante Pharmaceuticals, Inc. Our principal executive offices are located at 210 Main Street West, Baudette, Minnesota, 56623, our telephone number is
(218) 634-3500, and our website address is www.anipharmaceuticals.com.
Mission and Strategy
We are an integrated specialty pharmaceutical company developing, manufacturing and marketing branded and generic prescription pharmaceuticals. We
focus on niche and high barrier to entry opportunities including controlled substances, anti-cancer (oncolytics), hormones and steroids, and complex formulations.
Our two facilities have a combined manufacturing, packaging and laboratory capacity totaling 173,000 square feet. The facilities are specialized with diverse
capabilities, enabling us to manufacture liquid, powder, and oral solid-dose products, topicals, controlled substances, and products that must be manufactured in a
fully contained environment. We also perform contract manufacturing for other pharmaceutical companies.
In addition to laboratories that support the requirements of raw material, finished product, and stability testing, we have a 1,000 square foot pilot laboratory
offering liquid, suspension and solid dose development capabilities. This pilot laboratory offers a full range of analytical capabilities including method
development, validation and de-formulation, and is licensed by the Drug Enforcement Administration (“DEA”). Finally, a separate development suite located
within our high-potency manufacturing facility offers additional capabilities for product development.
Our strategy is to use our assets to develop, acquire, manufacture, and market branded and generic specialty prescription pharmaceuticals. By executing this
strategy, we believe we will be able to continue to grow our business, expand and diversify our product portfolio, and create long-term value for our investors.
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We believe our strategies effectively leverage our human and capital assets and will result in measurable growth of our business. Since 2011, we have
successfully:
·
Increased prescription product sales through a combination of market share gains on existing products and new product launches, including
Methazolamide, Etodolac, Propafenone, Vancomycin, Oxycodone oral solution, Nimodipine, and Flecainide.
· Acquired the New Drug Applications (“NDA”) for and began marketing Reglan, Lithobid, and Vancocin.
·
·
·
·
· Acquired NDAs for Testosterone 1% Gel, Corticotropin, and Corticotropin-Zinc.
Filed six Abbreviated New Drug Applications (“ANDAs”).
Increased our product pipeline, through development, partnership, and acquisition, to 85 total products.
Closed a public offering of common stock, netting $46.7 million.
Closed a public offering of $143.8 million of convertible debt, with simultaneous bond hedge and warrant transactions.
We believe that our cash resources and forecasted cash flows from operations will be sufficient to enable us to meet our operational needs for the foreseeable
future.
Product Development Considerations
We consider a variety of criteria in determining which products to develop or acquire, all of which relate to the level of potential competition and expected
profitability upon product launch. These criteria include:
·
Formulation Complexity. Our development and manufacturing capabilities enable us to manufacture pharmaceuticals that are difficult to produce,
including highly potent, extended release, combination, and low dosage products. This ability to manufacture a variety of complex products is a
competitive strength that we intend to leverage in selecting products to develop or manufacture.
Patent Status. We seek to develop products whose branded bioequivalents do not have long-term patent protection or existing patent challenges.
·
· Market Size. When determining whether to develop or acquire an individual product, we review the current and expected market size for that product at
launch, as well as forecasted price erosion upon conversion from branded to generic pricing. We endeavor to manufacture products with sufficient market
size to enable us to enter the market with a strong likelihood of being able to price our products both competitively and at a profit.
Profit Potential. We research the availability and cost of active pharmaceutical ingredients in determining which products to develop or acquire. In
determining the potential profit of a product, we forecast our anticipated market share, pricing, including expected price erosion caused by competition
from other generic manufacturers, and the estimated cost of manufacturing.
·
· Manufacturing. We generally seek to develop and manufacture products at our own manufacturing plants in order to optimize the utilization of our
·
facilities, ensure quality control in our products, and maximize profit potential.
Competition. When determining whether to develop or acquire a product, we research existing and expected competition. We seek to develop products
for which we can obtain sufficient market share, and may decline to develop a product if we anticipate significant competition. Our specialized
manufacturing facilities provide a means of entering niche markets, such as hormone therapies, in which fewer generic companies are able to compete.
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Products and Markets
Products
As of December 31, 2015, our products include both branded and generic pharmaceuticals, specifically:
Generic Products
Esterified Estrogen with Methyltestosterone
Etodolac
Flecainide
Fluvoxamine
Hydrocortisone Enema
Methazolamide
Metoclopramide Syrup
Nimodipine
Opium Tincture
Oxycodone Oral Solution
Propafenone
Vancomycin
Branded Products
Cortenema
Lithobid
Reglan
Vancocin
Esterified Estrogen with Methyltestosterone (“EEMT”) is used to treat moderate to severe vasomotor symptoms of menopause that are not improved by
estrogen alone. For the year ended December 31, 2015, EEMT comprised 51% of our net sales, versus 42% of net sales in 2014 and 33% of net sales in 2013.
Etodolac is used to treat mild to moderate pain caused by osteoarthritis and rheumatoid arthritis, as well as other conditions.
Flecainide is used to treat arrhythmia (irregular heartbeat) in patients and to help patients maintain a normal heart rate.
Fluvoxamine is used to treat patients with obsessive-compulsive disorder and social anxiety disorder. It is generally used when the patient’s symptoms
interfere with the patient’s ability to function socially and occupationally.
Hydrocortisone Enema and its branded equivalent, Cortenema, are used for the treatment of ulcerative colitis, especially distal forms, including ulcerative
proctitis, ulcerative proctosigmoiditis, and left-sided ulcerative colitis. The products have also proved useful in some cases involving the transverse and ascending
colons.
Methazolamide is indicated in the treatment of ocular conditions where lowering intraocular pressure is likely to be of therapeutic benefit, such as chronic
open-angle glaucoma, secondary glaucoma, and preoperatively in acute angle-closure glaucoma where lowering the intraocular pressure is desired before surgery.
Metoclopramide and its branded equivalent, Reglan, are prescribed for periods of four to twelve weeks in adults with symptomatic, documented
gastroesophageal reflux who fail to respond to conventional therapy. The products relieve daytime heartburn and heartburn after meals and also help ulcers in the
esophagus to heal. The products also relieve symptoms associated with acute and recurrent diabetic gastric stasis and help treat symptoms such as nausea,
vomiting, heartburn, feeling full long after a meal, and loss of appetite.
Nimodipine is used to improve neurological outcomes by reducing the incidence and severity of ischemic deficits in patients with subarachnoid hemorrhage
from ruptured brain aneurysms.
Opium Tincture is used is to treat diarrhea in adults by slowing the movement of the intestines and decreasing the number and frequency of bowel movements.
Oxycodone oral solution is used to relieve acute moderate to severe pain and chronic pain.
Propafenone is used to treat arrhythmia (irregular heartbeat) in patients and to help patients maintain a normal heart rate.
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Lithobid is indicated in the treatment of manic episodes of bipolar disorder. Lithobid is also indicated as a maintenance treatment for individuals with a
diagnosis of bipolar disorder. Maintenance therapy reduces the frequency and intensity of manic episodes.
Vancomycin and its branded equivalent, Vancocin, are indicated for the treatment of C. difficile-associated diarrhea, as well as enterocolitis caused by
staphylococcus aureus (including methicillin-resistant strains). The capsules are not effective for other types of infections, as the drugs are not systematically
absorbed.
Markets
In determining which products to pursue for development, we target products that are complex to manufacture and therefore have higher barriers to entry.
These factors provide opportunities for growth, utilizing our competitive strengths at the same time that they decrease the number of potential competitors in the
markets for these products. These markets currently include controlled substances, oncolytics, hormones and steroids, and complex formulations, including
extended release and combination products.
Controlled Substances
One of our manufacturing facilities in Baudette, Minnesota is licensed by the DEA for the manufacture and distribution of Schedule II controlled substances,
which are drugs considered to have a high abuse risk but that also have safe and accepted medical uses. In addition to our existing pipeline of four ANDAs, we
have identified additional product development opportunities in this market.
Oncolytics
Due to the capabilities of our containment facility and our expertise in manufacturing segregation, we are focused on developing and manufacturing niche
oncolytic (anti-cancer) drugs. In particular, we are targeting products subject to priority review by the FDA, more specifically those with no blocking patents and
no generic competition. We filed an ANDA for an anti-cancer drug with the FDA in 2014, and have received a Target Action Date of February 26, 2016, per FDA
communications.
Hormone and Steroid Drugs
The market for hormone and steroid drugs includes hormone therapy to alleviate menopausal symptoms in women, contraceptives, testosterone replacement
therapies for men, and therapies for treating hormone-sensitive cancers.
Hormone Therapy (“HT”) has been an accepted medical treatment for alleviating the symptoms of menopause since the 1930s, with formal FDA approval for
that use granted in 1942. Initially, HT consisted of estrogen only, but has evolved to include combination therapies of estrogen, progesterone and androgens. We
target niche products in the HT and steroid product market for several reasons, including:
· Hormone and steroid products are a core competency based on our manufacturing and product development teams' long history of manufacturing these types
of products; and
The aging baby boom population, of which women represent a majority, is expected to support continued growth in the HT market.
·
Complex Formulations
Our manufacturing facilities can be used to manufacture complex formulations, including, but not limited to, extended release and combination products,
which have higher barriers to entry and, therefore, fewer competitors. In addition to our two products currently on the market, our pipeline includes five extended-
release products and six combination products.
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Contract Manufacturing
We manufacture pharmaceutical products for several branded and generic companies, who outsource production in order to:
Free-up internal resources to focus on sales and marketing as well as research and development;
Employ internal capacity to manufacture higher volume or more critical products; and
·
·
· Utilize our specialized equipment and expertise.
Given our specialized manufacturing capabilities, we are focused on attracting niche contract manufacturing opportunities that offer high margins.
Manufacturing, Suppliers, and Raw Materials
We require a supply of quality raw materials, including active pharmaceutical ingredients (“API”), and components to manufacture and package our
pharmaceutical products. In order to manufacture Opium Tincture and Oxycodone oral solution, we must submit a request to the DEA for a quota to purchase the
amount of opium and oxycodone needed to manufacture the respective products. Without approved quotas from the DEA, we would not be able to purchase these
ingredients from our suppliers.
We source the raw materials for our products from both domestic and international suppliers that we select on the basis of their quality, reliability of supply,
and long-term financial stability. Generally, we qualify only a single source of API for use in each product due to the cost and time required to validate and qualify
a second source of supply. Any change in one of our API suppliers must usually be approved through a Prior Approval Supplement (“PAS”) by the FDA. Certain
of our APIs for our drug products, including those that are marketed without approved NDAs or ANDAs, such as EEMT, are sourced from international suppliers.
From time to time, we have experienced temporary disruptions in the supply of certain of such imported API due to FDA inspections.
Government Regulation
The pharmaceutical industry is highly regulated by multiple U.S. government agencies, such as the FDA, the DEA, and the Centers for Medicare and
Medicaid Services (“CMS”). As a result, we are subject to extensive and complex rules and regulations, which are subject to revision from time to time. While we
have experience with these regulations, there can be no assurance that we will be able to fully comply with all applicable regulations.
Branded and Generic Pharmaceutical Products
All prescription pharmaceutical products, whether branded or generic, must be approved by the FDA. All applications for FDA approval must contain
information relating to product formulation, raw material suppliers, stability, manufacturing processes, packaging, labeling and quality control. Information to
support the bioequivalence of generic drug products or the safety and effectiveness of new drug products for their intended use is also required to be submitted.
There are generally two types of applications used for obtaining FDA approval of new products:
New Drug Application (“NDA”) —An NDA is filed when approval is sought to market a newly developed branded product and, in certain instances, for a
new dosage form, a new delivery system, or a new indication for an approved drug. We market Cortenema, generic Hydrocortisone Enema, Lithobid, generic
Fluvoxamine, Reglan, Vancocin, and generic Vancomycin under approved NDAs.
Abbreviated New Drug Application (“ANDA”) —An ANDA is filed when approval is sought to market a generic equivalent of a drug approved under an
NDA. We market Etodolac, Flecainide, Methazolamide, Metoclopramide, Nimodipine, Oxycodone oral solution, and Propafenone under approved ANDAs.
The ANDA development process is generally less time-consuming and less complex than the NDA development process. It typically does not require new
preclinical and clinical studies, because it relies on the studies establishing safety and efficacy conducted for the branded drug approved through the NDA process.
The ANDA process, however, typically requires one or more bioequivalence studies to show that the ANDA drug is bioequivalent to the previously approved
reference listed drug (“RLD”).
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The Drug Price Competition and Patent Term Restoration Act of 1984 (the “Hatch-Waxman Act”) provides that generic drugs may enter the market after the
approval of an ANDA, which requires (1) that bioequivalence to the branded product be demonstrated through clinical studies, and (2) either the expiration,
invalidation or circumvention of any patents or the end of any other relevant market exclusivity periods related to the branded drug.
Accordingly, generic products generally provide a safe, effective, and cost-efficient alternative to users of branded products. Growth in the generic
pharmaceutical industry has been driven by the increased market acceptance of generic drugs, as well as the number of branded drugs for which patent terms
and/or other market exclusivities have expired.
Generic products are generally commercialized after the expiration of patent protection for the branded product and after the end of a period of non-patent
market exclusivity. In addition to patent exclusivity, the holder of the NDA may be entitled to a period of non-patent market exclusivity, during which the FDA
cannot approve an application for a generic product. Also, if the NDA is a new chemical entity (“NCE”), the FDA may not approve an ANDA for a generic
product for up to five years following approval of the NDA for the NCE. If an NDA is not an NCE, but the holder of the NDA conducted clinical trials essential to
approval of the NDA or a supplement thereto, the FDA may not approve a generic equivalent to the NDA for three years. Certain other periods of exclusivity may
be available if the branded drug is indicated for treatment of a rare disease or is studied for pediatric indications.
In order to obtain FDA approval of NDAs and ANDAs, our manufacturing procedures and operations must conform to FDA requirements and guidelines,
generally referred to as “cGMP.” The requirements for FDA approval encompass all aspects of the production process, including validation and recordkeeping, the
standards around which are continuously changing and evolving. As a result, we must consistently monitor and comply with these changes.
Our facilities, procedures, operations and testing of products are subject to periodic inspection by the FDA, the DEA, and other authorities. In addition, the
FDA conducts pre-approval and post-approval reviews and plant inspections to determine whether our systems and processes are in compliance with cGMP and
other FDA regulations. Our suppliers are subject to similar regulations and periodic inspections.
Controlled Substances
The DEA regulates certain drug products containing controlled substances, pursuant to the U.S. Controlled Substances Act (“CSA”). Opium, which is a
significant component of our Opium Tincture product, is classified as a controlled substance. Oxycodone, a significant component of our Oxycodone oral solution
product, is also classified as a controlled substance. CSA and DEA regulations impose specific requirements on manufacturers and other entities that handle these
substances including registration, recordkeeping, reporting, storage, security, and distribution. Recordkeeping requirements include accounting for the amount of
product received, manufactured, stored, and distributed. Companies handling controlled substances also are required to maintain adequate security and to report
suspicious orders, thefts, and significant losses. The DEA periodically inspects facilities for compliance with the CSA and its regulations. Failure to comply with
current and future regulations of the DEA could lead to a variety of sanctions, including revocation or denial of renewal of DEA registrations, injunctions, or civil
or criminal penalties.
In addition, we must submit a request to the DEA for a quota to purchase the amount of opium and oxycodone we need to manufacture Opium Tincture and
Oxycodone oral solution. Without approved quotas from the DEA, we would not be able to purchase these ingredients from our suppliers. As a result, we are
dependent upon the DEA to approve quotas large enough to support our continued manufacture of Opium Tincture and Oxycodone oral solution.
Unapproved Products
Two of our products, EEMT and Opium Tincture, are marketed without approved NDAs or ANDAs. The FDA's policy with respect to the continued
marketing of unapproved products appears in the FDA's September 2011 Compliance Policy Guide Sec. 440.100 titled "Marketed New Drugs without Approved
NDAs or ANDAs." Under this policy, the FDA has stated that it will follow a risk-based approach with regard to enforcement against marketing of unapproved
products. The FDA evaluates whether to initiate enforcement action on a case-by-case basis, but gives higher priority to enforcement action against products in
certain categories, such as those with potential safety risks or that lack evidence of effectiveness. While we believe that, so long as we comply with applicable
manufacturing standards, the FDA will not take action against us under the current enforcement policy, we can offer no assurances that the FDA will continue this
policy or not take a contrary position with any individual product or group of products.
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Medicaid/Medicare
Medicaid and Medicare, both of which are U.S. federal health care programs administered by CMS, are major purchasers of pharmaceutical products,
including those we produce.
Medicaid is administered by the states and jointly funded by the federal and state governments. Its focus is on low income populations. State drug coverage
policies under Medicaid may vary significantly state by state. The Patient Protection and Affordable Care Act (“PPACA”), as amended by the Health Care and
Education and Reconciliation Act of 2010, together known as the Affordable Care Act ("ACA"), required states to expand their Medicaid programs to individuals
with incomes up to 138% of the federal poverty level. Although the United States Supreme Court in 2011 made the Medicaid expansion optional, many states are
expanding their Medicaid programs. This expansion of Medicaid coverage may increase usage of pharmaceutical products.
The ACA also made changes to Medicaid law that could negatively impact us. In particular, pharmaceutical manufacturers must enter into rebate agreements
with state Medicaid agencies, which require manufacturers to pay rebates based on their drugs dispensed to Medicaid beneficiaries. The ACA raised the rebate
percentages for both generic and branded pharmaceuticals effective January 1, 2010. The required rebate is currently 13% of the average manufacturer price for
sales of Medicaid-reimbursed products marketed under ANDAs. Sales of Medicaid-reimbursed products marketed under NDAs require manufacturers to rebate the
greater of 23.1% of the average manufacturer price or the difference between the average manufacturer price and the "best price" (as defined in the Medicaid
statute) during a specific period. Federal and/or state governments may continue to enact measures aimed at reducing the cost of drugs to the Medicaid program.
Medicare is run by the federal government and is largely focused on the elderly and disabled. The Medicare Modernization Act of 2003 (“MMA”) created
Medicare Part D to provide prescription drug coverage for Medicare beneficiaries. The MMA has increased usage of pharmaceuticals, a trend that we believe will
continue to benefit the generic pharmaceutical industry. The ACA made some changes to Part D to make it easier for Medicare beneficiaries to obtain drugs, such
as reducing coinsurance amounts. The ACA also required pharmaceutical companies to provide discounts to Medicare Part D beneficiaries for the cost of branded
prescription drugs. Under the Medicare Coverage Gap Discount Program authorized by the ACA, any pharmaceutical product marketed under an NDA, regardless
of whether the product is marketed as a "generic," is subject to the discount requirement. Our Hydrocortisone Enema, Fluvoxamine, and Vancomycin products,
while marketed as "generics," are marketed under approved NDAs and, therefore, are subject to the discount requirement. While we may benefit from Medicare
changes that have reduced obstacles to drug usage, resulting sales increases, if any, may be offset by existing and future legislative efforts to curb the cost of drugs
to the Medicare program.
Most of our products are covered by Medicaid and Medicare. Our reporting and payment obligations under the Medicaid rebate program and other
governmental purchasing and rebate programs are complex and may involve subjective decisions. Any determination that we have failed to comply with those
obligations could subject us to penalties and sanctions, and we could be subject to federal or state false claims litigation.
Research and Development
We develop new generic products through a combination of internal development and fee-for-service arrangements with other firms. Additionally, we license
and co-develop products through collaborations with other companies as noted below. During the years ended December 31, 2015, 2014, and 2013, our research
and development expenses were $2.9 million, $2.7 million, and $1.7 million, respectively.
IDT Australia Limited
In August 2015, we entered into a distribution agreement with IDT Australia Limited (“IDT”) to market several products in the U.S. (the “IDT Agreement”).
The products, all of which are approved ANDAs, require various FDA filings and approvals prior to commercialization. In general, IDT will be responsible for
regulatory submissions to the FDA and the manufacturing of certain products. We made an upfront payment to IDT of $1.0 million and will make additional
milestone payments upon FDA approval for commercialization of certain products. Upon approval, IDT will manufacture some of the products and we will
manufacture the other products. We will market and distribute all the products under our label in the United States, remitting a percentage of profits from sales of
the drugs to IDT. The $1.0 million upfront payment was recorded as a marketing and distribution rights intangible asset and will be amortized in full over its
seven-year useful life.
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Dexcel
In June 2014, we entered into a collaboration agreement with Dexcel Pharma Technologies Ltd ("Dexcel") to commercialize and sell a generic drug product
(the " Dexcel Agreement"). The product is subject to FDA approval of an ANDA filing. In general, Dexcel will be responsible for the manufacturing and
regulatory submissions to the FDA, including obtaining approval of the ANDA, and we will make payments based on the completion of certain milestones. Upon
approval, Dexcel will manufacture the drug and we will market and distribute the product under our label in the United States, remitting a percentage of profits
from sales of the drug to Dexcel.
Under the Dexcel Agreement, Dexcel will own all the rights, title, and interest in the product. During the term, both parties are prohibited from developing,
selling, or distributing any product in the United States that is identical or bioequivalent to the product covered under the agreement. The agreement can be
terminated or amended under certain specified circumstances. The agreement’s initial term is five years from the launch of the product, which term can be renewed
for two year terms if both parties agree, until either party terminates the agreement.
Sofgen Pharmaceuticals
August 2013 Sofgen Agreement
In August 2013, we entered into an agreement with Sofgen Pharmaceuticals (“Sofgen”) to develop an oral soft gel prescription product indicated for
cardiovascular health (the “August 2013 Sofgen Agreement”). The product will be subject to an ANDA filing once developed. In general, Sofgen will be
responsible for the development, manufacturing and regulatory submission of the product, including preparation of the ANDA, and we will make payments based
on the completion of certain milestones. Upon approval, Sofgen will manufacture the drug and we will market and distribute the product under our label in the
United States, remitting a percentage of profits from sales of the drug to Sofgen.
Under the August 2013 Sofgen Agreement, Sofgen will own all the rights, title and interest in the product. During the term, both parties are prohibited from
developing, manufacturing, selling or distributing any product in the United States that is identical or bioequivalent to the product covered under the agreement.
The agreement may be terminated or amended under certain specified circumstances.
April 2014 Sofgen Agreement
In April 2014, we entered into a second collaboration agreement with Sofgen to develop an oral soft gel prescription product (the "April 2014 Sofgen
Agreement"). The product will also be subject to an ANDA filing once developed. In general, Sofgen will be responsible for the development, manufacturing and
regulatory submission of the product, including preparation of the ANDA, and we will make payments based on the completion of certain milestones. Upon
approval, Sofgen will manufacture the drug and we will be market and distribute the product under our label in the United States, remitting a percentage of profits
from sales of the drug to Sofgen.
Under the April 2014 Sofgen Agreement, Sofgen will own all the rights, title and interest in the product. During the term, both parties are prohibited from
developing, selling or distributing any product in the United States that is identical or bioequivalent to the product covered under the agreement. The agreement can
be terminated or amended under certain specified circumstances. The agreement’s initial term is ten years from the launch of the product, which term will
automatically renew for two year terms until either party terminates the agreement.
RiconPharma LLC
In July 2011, we entered into a collaborative arrangement with RiconPharma LLC (“RiconPharma”). Under the parties' master product development and
collaboration agreement (the “RiconPharma Agreement”), we and RiconPharma have agreed to collaborate in a cost, asset and profit sharing arrangement for the
development, manufacturing, regulatory approval and marketing of pharmaceutical products in the United States.
In general, RiconPharma is responsible for developing the products and we are responsible for manufacturing, sales, marketing and distribution of the
products. The parties are jointly responsible for directing any bioequivalence studies. We are responsible for obtaining and maintaining all necessary regulatory
approvals, including the preparation of all ANDAs.
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Under the RiconPharma Agreement and unless otherwise specified in an amendment, the parties will own equally all the rights, title and interest in the
products. To the extent permitted by applicable law, we will be identified on the product packaging as the manufacturer and distributor of the product. During the
term, both parties are prohibited from developing, manufacturing, selling or distributing any products that are identical or bioequivalent to products covered under
the agreement. The agreement may be terminated or amended under certain specified circumstances.
Patents, Trademarks, and Licenses
We own the trademark names for each of our branded products, Cortenema, Cortrophin, Cortrophin-Zinc, Lithobid, Reglan, and Vancocin. Generally, the
branded pharmaceutical business relies upon patent protection to ensure market exclusivity for the life of the patent. We do not own or license any patents
associated with these products. Further, patent protection and market exclusivity for these branded products have expired. Therefore, we consider the trademark
names to be of material value and we act to protect these rights from infringement. However, our business is not dependent upon any single trademark. Trademark
protection continues in some countries as long as used; in other countries, as long as registered. Registration is for fixed terms and may be renewed indefinitely.
We believe that sales of our branded products have benefited and will continue to benefit from the value of the product name.
We have licensed the right to manufacture and market Fluvoxamine Maleate, an authorized generic version of Luvox ® IR, from Jazz Pharmaceuticals, which
in turn acquired the rights to Luvox ® IR from Solvay Pharmaceuticals, Inc. This license is in addition to a manufacturing and supply agreement with Jazz
Pharmaceuticals, under which we manufacture and supply Jazz Pharmaceuticals' requirements for Luvox ® IR. Under the license agreement, Jazz Pharmaceuticals
transferred responsibility for the related NDA to us. The license agreement may be terminated by Jazz Pharmaceuticals if the Solvay license agreement is
terminated, if we breach or default in the performance or observance of any material provisions of the agreement or the related supply agreement and such breach
or default is not cured within 60 days after written notice is received, in the case of voluntary or involuntary bankruptcy filings by/against us, if we do not make
royalty payments when due, or in the event we receive an adverse finding letter from the FDA relating to the NDA and is either not able to cure or provide
evidence of a reasonable plan to cure within 30 days of receipt of such adverse finding letter, among other events. We may terminate the agreement with the
consent of Jazz Pharmaceuticals, such consent not to be unreasonably withheld.
Customers
Our customers purchase and distribute our products. Our products are sold by four major retail pharmacy chains: Walgreens, CVS, RiteAid and Wal-Mart, and
are included in the source programs of four major national wholesalers: Cardinal, McKesson, AmerisourceBergen and Morris Dickson. In addition, our customers
include national mail order houses, including Anda, ExpressScripts, and Omnicare, as well as group purchasing organizations.
In recent years, the wholesale distributor network for pharmaceutical products has been subject to increasing consolidation, which has increased the
concentration of our wholesale customers. In addition, the number of retail market chains and, in particular, the number of independent drug stores and small
chains, has decreased as retail consolidation has occurred, also increasing the concentration of our retail customers. As a result of this trend toward consolidation, a
smaller number of companies each control a larger share of pharmaceutical distribution channels. For the year ended December 31, 2015, approximately 64% of
our net revenues were attributable to three wholesalers: McKesson Corporation (26%), Cardinal Health, Inc. (20%), and AmerisourceBergen Corporation (18%).
For the years ended December 31, 2014 and 2013, AmerisourceBergen Corporation, McKesson Corporation, and Cardinal Health, Inc. accounted for
approximately 69% and 55% of our net revenues, respectively. In addition, as noted below, our customers also distribute our products. The loss of any of these
customers, including in their role as distributors, could have a material adverse effect on our business.
Due to a strategic partnership between Amerisource Bergen and Walgreens established in 2014, Amerisource Bergen has begun handling product distribution
for Walgreens. Due to this and other strategic partnerships between wholesalers and pharmacy chains, we have experienced, and expect to continue to experience,
increases in net sales to the wholesalers, with corresponding decreases in net sales to the pharmacy chains.
Consistent with industry practice, we maintain a return policy that allows customers to return product within a specified period prior to and subsequent to the
expiration date. Generally, product may be returned for a period beginning six months prior to its expiration date to up to one year after its expiration date. See
"Management's Discussion and Analysis of Results of Operations and Financial Condition—Critical Accounting Estimates" for a discussion of our accruals for
chargebacks, rebates, returns, and other allowances.
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Sales, Marketing, and Distribution
We market, sell, and distribute our products in the United States. Our products are distributed through the following channels:
· Wholesalers. We have contracts with four major wholesalers in the United States: Cardinal, McKesson, AmerisourceBergen, and Morris Dickson, as well as
access to their respective retail source programs.
Retail Market Chains. We conduct business with four major retail chains in the United States: Walgreens, CVS, RiteAid, and Wal-Mart.
·
· Distributors and Mail Order Pharmacies. We have contracts with several major distributors and mail order pharmacies in the United States, including Anda,
ExpressScripts, and Omnicare.
· Group Purchasing Organizations. We have contracts with group purchasing organizations in the United States, such as Premiere, MedAssets, Minnesota
Multi-State, and the Federal Supply Schedule (“FSS”).
Competition
Our products face limited competition due to complexities in formulation, active pharmaceutical ingredient sourcing, materials handling and manufacturing,
and regulatory hurdles. Nevertheless, we compete with numerous other pharmaceutical companies, including large, global pharmaceutical manufacturers capable
of addressing these complexities and hurdles with respect to products that we currently produce and products that are in our pipeline. In addition, our products are
subject to competition from other generic products and non-prescription alternative therapies.
Our branded pharmaceutical products currently face competition from generic products and may continue to face competition from generic products in the
future. In order to launch a generic product, a manufacturer must apply to the FDA for an ANDA showing that the generic product is therapeutically equivalent to
the RLD. (See “Government Regulation.”)
The primary means of competition among generic drug manufacturers are pricing, contract terms, service levels, and reliability. To compete effectively, we
seek to consistently produce high-quality, reliable, and effective products. We also establish active working relationships with each of our customers, continually
gather important market information in order to respond successfully to requests for proposals, maintain sufficient inventories to assure high service levels, and
work to reduce product costs by sourcing and qualifying alternative suppliers whenever possible.
Our sales can be impacted by new studies that indicate that a competitor's product has greater efficacy than one of our products. If competitors introduce new
products with therapeutic or cost advantages, our products can be subject to progressive price reductions and/or decreased volume of sales.
Principal competitors for the pharmaceutical market in which we do business include Amneal Pharmaceuticals, Creekwood Pharmaceuticals, Endo
Pharmaceuticals, Glenmark Pharmaceuticals, Lannett, Mallinckrodt, Mylan, Par Pharmaceutical Companies, Purdue Pharma, Roxane Laboratories, Sandoz, Teva
Pharmaceuticals, USA, and Watson Pharmaceuticals.
Pharmaceutical Industry Trends
In recent years, the pharmaceutical industry has experienced significant consolidation, particularly in distribution channels and amongst generic and brand
drug companies.
The wholesale distributor network for pharmaceutical products has been subject to increasing consolidation, which has increased the concentration of our
wholesale customers. In addition, the number of retail market chains and, in particular, the number of independent drug stores and small chains, has decreased as
retail consolidation has occurred, also increasing the concentration of our retail customers. As a result of this trend toward consolidation, a smaller number of
companies each control a larger share of pharmaceutical distribution channels.
In addition, consolidation amongst pharmaceutical companies has created opportunities by reducing the number of competitors. However, as competitors grow
larger through consolidation, so do their resources. Larger competitors may be able to aggressively decrease prices in order to gain market share on certain
products and may have resources that would allow them to more effectively market their products to potential customers.
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Product Liability
Product liability litigation represents an inherent risk to all firms in the pharmaceutical industry. We utilize traditional third-party insurance policies with
regard to our product liability claims. Such insurance coverage at any given time reflects current market conditions, including cost and availability, when the policy
is written.
All manufacturers of the drug Reglan and its generic equivalent metoclopramide, including ANI, are facing allegations from plaintiffs in various states,
including California, New Jersey, and Pennsylvania, claiming bodily injuries as a result of ingestion of metoclopramide or its brand name, Reglan, prior to the
FDA's February 2009 Black Box warning requirement. In August 2012, we were dismissed with prejudice from all New Jersey cases. We consider our exposure to
this litigation to be limited due to several factors: (1) the only generic metoclopramide that we manufactured prior to the implementation of the FDA's warning
requirement was an oral solution introduced after May 28, 2008; (2) our market share for the oral solution was a very small portion of the overall metoclopramide
market; and (3) once we received a request for change of labeling from the FDA, we submitted our proposed changes within 30 days, and such changes were
subsequently approved by the FDA.
At the present time, we are unable to assess the likely outcome of the cases in the remaining states. Our insurance company has assumed the defense of this
matter. We cannot provide assurances that the outcome of these matters will not have an adverse effect on our business, financial position, and operating results.
Furthermore, like all pharmaceutical manufacturers, we may be exposed to other product liability claims in the future, which could limit our coverage under future
insurance policies or cause those policies to become more expensive, which could harm our business, financial condition, and operating results.
Backlog
We had a backlog of $0.5 million, $1.2 million, and $2.1 million at December 31, 2015, 2014, and 2013, respectively, relating to contract manufacturing
purchase orders from customers.
Employees
As of December 31, 2015 our workforce included 108 full-time employees.
Seasonality of Business
We do not believe our business is subject to seasonality. However, our business can be affected by the business practices of our business partners. To the
extent that the availability of inventory or materials from or development practices of our partners is seasonal, our sales may be subject to fluctuations quarter to
quarter or year to year.
Segment Information
We operate in one segment and all our operations are in the United States. Total revenues from external customers for the years ended December 31, 2015,
2014, and 2013 were $76.3 million, $56.0 million, and $30.1 million, respectively. Net income for the years ended December 31, 2015, 2014, and 2013 was $15.4
million, $28.7 million, and $0.3 million, respectively. Total assets at December 31, 2015, 2014, and 2013 were $285.3 million, $259.6 million, and $44.5 million,
respectively.
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Item 1A. Risk Factors
The following are significant factors known to us that could materially harm our business, financial position or operating results or could cause our actual
results to differ materially from our anticipated results or other expectations, including those expressed in any forward-looking statement made in this report. The
risks described are not the only risks facing us. Additional risks and uncertainties not currently known to us, or that we currently deem to be immaterial, also may
adversely affect our business, financial position and operating results. If any of these risks actually occur, our business, financial position, and operating results
could suffer significantly. As a result, the market price of our common stock could decline and investors could lose all or part of their investment.
Risks Related to our Industry
Two of our products, which together comprised 58% of our total revenue in 2015, are marketed without approved New Drug Applications (“NDAs”) or
Abbreviated New Drug Applications (“ANDAs”) and we can offer no assurances that the U.S. Food and Drug Administration (“FDA”) will not require us to
either seek approval for these products or withdraw them from the market. In either case, our business, financial position, and operating results could be
materially adversely affected.
Two of our products, Esterified Estrogen with Methyltestosterone (“EEMT”) and Opium Tincture, are marketed without approved NDAs or ANDAs. During
the years ended December 31, 2015, 2014, and 2013, revenues for EEMT were 51%, 42%, and 33% of total revenue, respectively, and revenues from Opium
Tincture were 7%, 11%, and 16% of total revenue, respectively.
The FDA's policy with respect to the continued marketing of unapproved products appears in the FDA's September 2011 Compliance Policy Guide Sec.
440.100 titled "Marketed New Drugs without Approved NDAs or ANDAs." Under this policy, the FDA has stated that it will follow a risk-based approach with
regard to enforcement against marketing of unapproved products. The FDA evaluates whether to initiate enforcement action on a case-by-case basis, but gives
higher priority to enforcement action against products in certain categories, such as those with potential safety risks or that lack evidence of effectiveness. While
we believe that, so long as we comply with applicable manufacturing standards, the FDA will not take action against us under the current enforcement policy, we
can offer no assurances that the FDA will continue this policy or not take a contrary position with any individual product or group of products.
In addition, we manufacture a group of products on behalf of a contract manufacturing customer and receive royalties on the customer’s sales of products,
which are marketed by that customer without an FDA-approved NDA or ANDA. If the FDA took enforcement action against such customer, the customer may be
required to seek FDA approval for the group of products or withdraw them from the market, which could materially adversely affect our contract manufacturing
and royalty revenues. Our contract manufacturing revenues from this group of unapproved products for the years ended December 31, 2015, 2014, and 2013 were
2.1%, 2.2%, and 6.5% of total revenues, respectively. Our royalties on the net sales of these unapproved products for the years ended December 31, 2015, 2014,
and 2013 were 0.4%, 0.5%, and 1.1% of total revenues, respectively.
Imported active pharmaceutical ingredients (“API”) are subject to inspection by the FDA and the FDA can refuse to permit the importation of API for use
in products that are marketed without approved NDAs or ANDAs. We are entirely dependent on imported API to make EEMT. If the FDA detained or refused
to allow the importation of such API, our revenues from EEMT would be reduced or eliminated and our business, financial position, and operating results
could be materially adversely affected.
We source some of the API for our products, including those that are marketed without approved NDAs or ANDAs, from international suppliers. From time to
time, due to FDA inspections, we have experienced temporary disruptions in the supply of imported API, including for EEMT. Any prolonged disruption in the
supply of imported API could materially affect our ability to manufacture and distribute our products, such as EEMT, reduce or eliminate our revenues from
EEMT, and have a material adverse effect on our business, financial position, and operating results. In addition, as regulatory fees and compliance oversight of API
manufacturers increase, this could result in certain companies discontinuing their supply of API to ANI, which would materially affect ANI’s ability to
manufacture its products.
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The FDA does not provide guidance on safety labeling for products that are marketed without approved NDAs or ANDAs. As a result, we are dependent
on our internal post-approval drug safety surveillance program to identify necessary safety-related changes to the labels for EEMT and Opium Tincture.
Pharmaceutical product labels contain important safety information including Black Box warnings, contraindications, dosing and administration, adverse
reactions, drug interactions, use in specific populations such as pregnant women, pediatric, and geriatric patients, and other warnings and precautions.
Pharmaceutical manufacturers may change product labels when post-approval drug safety surveillance programs identify previously unknown side-effects, drug
interactions, and other risks. Manufacturers may also change product labels after conducting post-approval clinical studies and may receive or seek guidance from
the FDA regarding updating safety labeling information. However, the FDA does not provide guidance on labeling for products that are marketed without
approved NDAs or ANDAs. As a result, we are dependent on our internal post-approval drug safety surveillance program to identify necessary safety-related
changes to the labels for EEMT and Opium Tincture, which could increase our potential liability with respect to failure-to-warn claims for these products. Such
claims, even if successfully defended, could have an adverse impact on our business, financial position, and operating results.
We are entirely dependent on periodic approval by the Drug Enforcement Administration for the supply of the API needed to make our Opium Tincture
and Oxycodone oral solution products. An inability to obtain such approvals would reduce or eliminate our revenues from Opium Tincture and Oxycodone
oral solution, and could have a material adverse effect on our business, financial position, and operating results. In addition, we are subject to strict regulation
by the Drug Enforcement Administration and are subject to sanctions if we are unable to comply with related regulatory requirements.
The Drug Enforcement Administration (“DEA”) regulates products containing controlled substances, such as opiates, pursuant to the U.S. Controlled
Substances Act (“CSA”). The CSA and DEA regulations impose specific requirements on manufacturers and other entities that handle these substances including
registration, recordkeeping, reporting, storage, security and distribution. Recordkeeping requirements include accounting for the amount of product received,
manufactured, stored and distributed. Companies handling controlled substances also are required to maintain adequate security and to report suspicious orders,
thefts and significant losses. The DEA periodically inspects facilities for compliance with the CSA and its regulations. Failure to comply with current and future
regulations of the DEA could lead to a variety of sanctions, including revocation or denial of renewal of DEA registrations, injunctions, or civil or criminal
penalties.
In addition, each year, we must submit a request to the DEA for a quota to purchase the amount of API needed to manufacture Opium Tincture and
Oxycodone oral solution. Without approved quotas from the DEA, we would not be able to purchase these ingredients from our suppliers. As a result, we are
entirely dependent upon the DEA to approve, on an annual basis, a quota of API that is sufficiently large to support our plans for the continued manufacture of
Opium Tincture and Oxycodone oral solution at commercial levels.
Pharmaceutical product quality standards are steadily increasing and all products, including those already approved, may need to meet current standards.
If our products are not able to meet these standards, we may be required to discontinue marketing and/or recall such products from the market.
Steadily increasing quality standards are applicable to pharmaceutical products still under development and those already approved and on the market. These
standards result from product quality initiatives implemented by the FDA, such as criteria for residual solvents, and updated U.S. Pharmacopeial Convention
(“USP”) Reference Standards. The USP is a scientific nonprofit organization that sets standards for the identity, strength, quality, and purity of medicines, food
ingredients, and dietary supplements manufactured, distributed, and consumed worldwide. Pharmaceutical products approved prior to the implementation of new
quality standards, including those produced by us, may not meet these standards, which could require us to discontinue marketing and/or recall such products from
the market, either of which could adversely affect our business, financial position, and operating results.
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The continuing trend toward consolidation of customer groups could result in declines in the sales volume and prices of our products, and increased fees
charged by customers, each of which could have a material adverse effect on our business, financial position, and operating results.
Consolidation among wholesale distributors, chain drug stores, and group purchasing organizations has resulted in a smaller number of companies, each
controlling a larger share of pharmaceutical distribution channels. For example, our net revenues are concentrated among three customers representing 26%, 20%,
and 18% of net revenues, respectively, during the year ended December 31, 2015. As of December 31, 2015, accounts receivable from these three customers was
approximately 73% of our net accounts receivable. Drug wholesalers and retail pharmacy chains, which represent an essential part of the distribution chain for
generic pharmaceutical products, have undergone, and are continuing to undergo, significant consolidation. This consolidation may result in declines in our sales
volumes if a customer is consolidated into another company that purchases products from a competitor. In addition, the consolidation of drug wholesalers and retail
pharmacy chains could result in these groups gaining additional purchasing leverage and consequently increasing the product pricing pressures facing our business
and enabling those groups to charge us increased fees. Additionally, the emergence of large buying groups representing independent retail pharmacies and the
prevalence and influence of managed care organizations and similar institutions potentially enable those groups to extract price discounts on our products. The
result of these developments may have a material adverse effect on our business, financial position, and operating results.
Our reporting and payment obligations under the Medicaid rebate program and other governmental purchasing and rebate programs are complex and
may involve subjective decisions. Any determination that we have failed to comply with those obligations could subject us to penalties and sanctions, which
could adversely affect our business, financial position, and operating results.
The regulations regarding reporting and payment obligations with respect to Medicaid rebates and other governmental programs are complex. Because our
processes for these calculations and the judgments involved in making these calculations involve subjective decisions and complex methodologies, these
calculations are subject to the risk of errors. Our calculations and methodologies are subject to review and challenge by governmental agencies, and it is possible
that such reviews could result in changes. Any determination by governmental agencies that we have failed to comply with our reporting and payment obligations
could subject us to penalties and sanctions, which could have a material adverse effect on our business, financial position, and operating results.
We may become subject to federal and state false claims litigation brought by private individuals and the government.
We are subject to state and federal laws that govern the submission of claims for reimbursement. The Federal False Claims Act (“FFCA”), also known as Qui
Tam, imposes civil liability and criminal fines on individuals or entities that knowingly submit, or cause to be submitted, false or fraudulent claims for payment to
the government. Violations of the FFCA and other similar laws may result in criminal fines, imprisonment, and civil penalties for each false claim submitted and
exclusion from federally funded health care programs, including Medicare and Medicaid. The FFCA also allows private individuals to bring a suit on behalf of the
government against an individual or entity for violations of the FFCA. These suits, also known as Qui Tam actions, may be brought by, with only a few exceptions,
any private citizen who has material information of a false claim that has not yet been previously disclosed. These suits have increased significantly in recent years
because the FFCA allows an individual to share in any amounts paid to the federal government from a successful Qui Tam action. If our past or present operations
are found to be in violation of any of such laws or other applicable governmental regulations, we may be subject to civil and criminal penalties, damages, fines,
exclusion from federal health care programs, and/or the curtailment or restructuring of our operations, any of which could materially adversely affect our business,
financial position, and operating results. Actions brought against ANI for violations of these laws, even if successfully defended, could also have a material adverse
effect on our business, financial position, and operating results.
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We face significant uncertainty with respect to the litigation brought against us and other manufacturers of metoclopramide and cannot provide
assurances that the outcome of the matter will not have an adverse effect on our business, financial position, and operating results. In addition, we may be
exposed to other product liability claims in the future.
All manufacturers of the drug Reglan and its generic equivalent metoclopramide, including ANI, are facing allegations from plaintiffs in various states,
including California, New Jersey, and Pennsylvania, claiming bodily injuries as a result of ingestion of metoclopramide or its brand name, Reglan, prior to the
FDA's February 2009 Black Box warning requirement. In August 2012, we were dismissed with prejudice from all New Jersey cases. We consider our exposure to
this litigation to be limited due to several factors: (1) the only generic metoclopramide that we manufactured prior to the implementation of the FDA's warning
requirement was an oral solution introduced after May 28, 2008; (2) our market share for the oral solution was a very small portion of the overall metoclopramide
market; and (3) once we received a request for change of labeling from the FDA, we submitted our proposed changes within 30 days, and such changes were
subsequently approved by the FDA.
At the present time, we are unable to assess the likely outcome of the cases in the remaining states. Our insurance company has assumed the defense of this
matter. We cannot provide assurances that the outcome of these matters will not have an adverse effect on our business, financial position, and operating results.
Furthermore, like all pharmaceutical manufacturers, we may be exposed to other product liability claims in the future, which could limit our coverage under future
insurance policies or cause those policies to become more expensive, which could harm our business, financial position, and operating results.
A proposed FDA rule allowing generic companies to distribute revised labels that differ from the corresponding reference listed drug (“RLD”) could have
an adverse effect on our operations because of a potential increase in litigation exposure.
On November 13, 2013, the FDA issued a proposed rule (Docket No. FDA-2013-N-0500) titled "Supplemental Applications Proposing Labeling Changes for
Approved Drugs and Biological Products." In December 2015, the FDA announced that the rule would be released in July 2016. Pursuant to the rule, the FDA will
change existing regulations to allow generic drug application holders, in advance of the FDA’s review, to distribute revised labeling, to reflect safety-related
changes based on newly acquired information. Currently, the labels of generic drugs must conform to those of the corresponding RLD and any failure-to-warn
claims against generic companies are preempted under U.S. Federal law. Once this rule is released, we could be found liable under such failure-to-warn claims if
we do not revise our labeling to reflect safety-related changes promptly upon receipt of applicable safety information. While we proactively conduct surveillance
for reported safety issues with our products, we cannot guarantee that this will prevent us from being found liable under a failure-to-warn claim. When this
proposed regulatory change is adopted, it could increase our potential liability with respect to failure-to-warn claims, which, even if successfully defended, could
have an adverse impact on our business, financial position, and operating results.
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The use of legal, regulatory, and legislative strategies by competitors, both branded and generic, including "authorized generics," citizen's petitions, and
legislative proposals, may increase the costs to develop and market our generic products, could delay or prevent new product introductions, and could reduce
significantly our profit potential. These factors could have a material adverse effect on our business, financial position, and operating results.
Our competitors, both branded and generic, often pursue legal, regulatory, and/or legislative strategies to prevent or delay competition from generic
alternatives to branded products. These strategies include, but are not limited to:
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entering into agreements whereby other generic companies will begin to market an authorized generic, a generic equivalent of a branded product, at the
same time generic competition initially enters the market;
launching a generic version of their own branded product at the same time generic competition initially enters the market;
filing citizen petitions with the FDA or other regulatory bodies, including timing the filings so as to thwart generic competition by causing delays of
generic product approvals;
seeking to establish regulatory and legal obstacles that would make it more difficult to demonstrate bioequivalence or meet other approval requirements;
initiating legislative and regulatory efforts to limit the substitution of generic versions of branded pharmaceuticals;
filing suits for patent infringement that may delay regulatory approval of generic products;
introducing "next-generation" products prior to the expiration of market exclusivity for the reference product, which often materially reduces the demand
for the first generic product;
obtaining extensions of market exclusivity by conducting clinical trials of branded drugs in pediatric populations or by other potential methods;
persuading regulatory bodies to withdraw the approval of branded name drugs for which the patents are about to expire, thus allowing the branded
company to obtain new patented products serving as substitutes for the products withdrawn; and
seeking to obtain new patents on drugs for which patent protection is about to expire.
If we cannot compete with such strategies, our business, financial position, and operating results could be adversely impacted.
If third-party payers deny coverage, substitute another company’s product for our product, or offer inadequate levels of reimbursement, we may not be
able to market our products effectively or we may be required to offer our products at prices lower than anticipated.
Third-party payers are increasingly challenging the prices charged for medical products and services. For example, third-party payers may deny coverage,
choose to provide coverage for a competitor’s bioequivalent product rather than our product, or offer limited reimbursement if they determine that a prescribed
product has not received appropriate clearances from the FDA, is not used in accordance with cost-effective treatment methods as determined by the third-party
payer, or is experimental, unnecessary or inappropriate. Prices also could be driven down by health maintenance organizations that control or significantly
influence purchases of healthcare services and products. If third-party payers deny coverage or limit reimbursement, we may not be able to market our products
effectively or we may be required to offer our products at prices lower than anticipated.
We are subject to federal, state and local laws and regulations, and complying with these may cause us to incur significant additional costs.
The pharmaceutical industry is subject to regulation by various federal authorities, including the FDA, the DEA, and state governmental authorities. Federal
and state statutes and regulations govern or influence the testing, manufacturing, packing, labeling, storing, record keeping, safety, approval, advertising,
promotion, sale, and distribution of our products. Noncompliance with applicable legal and regulatory requirements can have a broad range of consequences,
including warning letters, fines, seizure of products, product recalls, total or partial suspension of production and distribution, refusal to approve NDAs or other
applications or revocation of approvals previously granted, withdrawal of product from marketing, injunctions, withdrawal of licenses or registrations necessary to
conduct business, disqualification from supply contracts with the government, civil penalties, debarment and criminal prosecution.
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All U.S. facilities where prescription drugs are manufactured, tested, packaged, stored, or distributed must comply with FDA current good manufacturing
practices (“cGMPs”). All of our products are manufactured, tested, packaged, stored, and distributed according to cGMP regulations. The FDA performs periodic
audits to ensure that our facilities remain in compliance with all applicable regulations. If it finds violations of cGMP, the FDA could make its concerns public and
could impose sanctions including, among others, fines, product recalls, total or partial suspension of production and/or distribution, suspension of the FDA's review
of product applications, injunctions and civil or criminal prosecution. If imposed, enforcement actions could have a material adverse effect on our business,
financial position, and operating results. Under certain circumstances, the FDA also has the authority to revoke previously granted drug approvals. Although we
have internal compliance programs in place that we believe are adequate, the FDA may conclude that these programs do not meet regulatory standards. If
compliance is deemed deficient in any significant way, it could have a material adverse effect on our business.
The U.S. government has enacted the Federal Drug Supply Chain Security Act ("DSCSA") that requires development of an electronic pedigree to track and
trace each prescription drug at the salable unit level through the distribution system, which will be effective incrementally over a 10-year period. Compliance with
DSCSA and future U.S. federal or state electronic pedigree requirements may increase the Company's operational expenses and impose significant administrative
burdens.
Our research, product development, and manufacturing activities involve the controlled use of hazardous materials, and we may incur significant costs in
complying with numerous laws and regulations. We are subject to laws and regulations enforced by the FDA, the DEA, and other regulatory statutes including the
Occupational Safety and Health Act (“OSHA”), the Environmental Protection Act, the Toxic Substances Control Act, the Resource Conservation and Recovery
Act, and other current and potential federal, state, local and foreign laws and regulations governing the use, manufacture, storage, handling and disposal of our
products, materials used to develop and manufacture such products, and resulting waste products. For example, some of our products, including EEMT, must be
manufactured in a fully contained environment due to their potency and/or toxicity, and compliance with related OSHA requirements is costly.
We cannot completely eliminate the risk of contamination or injury, by accident or as the result of intentional acts, from these materials. In the event of an
accident, we could be held liable for any damages that result, and any resulting liability could exceed our resources. We may also incur significant costs in
complying with environmental laws and regulations in the future. We are also subject to laws generally applicable to businesses, including but not limited to,
federal, state and local regulations relating to wage and hour matters, employee classification, mandatory healthcare benefits, unlawful workplace discrimination
and whistle-blowing. Any actual or alleged failure to comply with any regulation applicable to our business or any whistle-blowing claim, even if without merit,
could result in costly litigation, regulatory action or otherwise harm our business, financial position, and operating results.
Uncertainties associated with the impact of published studies regarding the adverse health effects of certain forms of hormone therapy could affect
adversely the market for our hormone products.
The market for hormone therapy products has been affected negatively by the Women's Health Initiative (“WHI”) study and other studies that have found that
the overall health risks from the use of certain hormone therapy products may exceed the benefits from the use of those products among postmenopausal women.
In July 2002, the National Institutes of Health (“NIH”) released data from its WHI study on the risks and benefits associated with long-term use of oral hormone
therapy by women. The NIH announced that it was discontinuing the arm of the study investigating the use of oral estrogen/progestin combination hormone
therapy products after an average follow-up period of 5.2 years because the product used in the study was shown to cause an increase in the risk of invasive breast
cancer. The study also found an increased risk of stroke, heart attacks and blood clots and concluded that overall health risks exceeded benefits from use of
combined estrogen plus progestin among postmenopausal women. Also, in July 2002, results of an observational study sponsored by the National Cancer Institute
on the effects of estrogen therapy were announced. The main finding of the study was that postmenopausal women who used estrogen therapy for 10 or more years
had a higher risk of developing ovarian cancer than women who never used hormone therapy. In October 2002, a significant hormone therapy study being
conducted in the United Kingdom also was halted. In March 2004, the NIH announced that the estrogen-alone study was discontinued after nearly seven years
because the NIH concluded that estrogen alone does not affect (either increase or decrease) heart disease, the major question being evaluated in the study. The
findings indicated a slightly increased risk of stroke as well as a decreased risk of hip fracture and breast cancer. Preliminary data from the memory portion of the
WHI study suggested that estrogen alone may possibly be associated with a slight increase in the risk of dementia or mild cognitive impairment.
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Researchers continue to analyze data from both arms of the WHI study and other studies. Some reports indicate that the safety of estrogen products may be
affected by the age of the woman at initiation of therapy. The markets for female hormone therapies for menopausal symptoms declined as a result of these
published studies. The release of any follow-up or other studies that show adverse effects from hormone therapy, including in particular, hormone therapies similar
to the our products, also could adversely affect our business, financial position, and operating results.
Continuing studies of our products could produce negative results, which could require us to implement risk management programs, or discontinue
product marketing. In addition, ongoing post-approval drug safety surveillance of our products could result in the submission of adverse event reports to the
FDA.
Studies of the proper utilization, safety, and efficacy of pharmaceutical products are being conducted by the industry, government agencies, and others on a
continuous basis. Such studies, which increasingly employ sophisticated methods and techniques, can call into question the utilization, safety, and efficacy of
current and previously marketed products, including those that we produce. In addition, we are required by the FDA to submit reports of adverse events involving
the use of our products. In some cases, studies and safety surveillance programs have resulted, and in the future may result, in the one or more of the following:
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product label changes including FDA-mandated Black Box warnings;
risk management programs such as patient registries;
reduced product sales due to concerns among patients and physicians; and
discontinuance of product marketing.
These situations, should they occur with respect to any of our products, could have a material adverse effect on our business, financial position, and operating
results.
Companies with greater resources than us could lobby Congress and other regulators for additional regulations that would benefit their businesses and
negatively affect us.
We are at the early stages of growth and currently do not engage in lobbying activities. In the U.S., some companies have lobbied Congress for amendments to
the Drug Price Competition and Patent Term Restoration Act of 1984 (the “Hatch-Waxman Act”) that would give them additional advantages over generic
competitors. For example, although the term of a company's drug patent can be extended to reflect a portion of the time an NDA is under regulatory review, some
companies have proposed extending the patent term by the full amount of time spent in clinical trials rather than by only one half of the time that is currently
permitted.
If proposals like these were to become effective, our entry into the market and our ability to generate revenues associated with new products may be delayed,
reduced, or eliminated, which could have a material adverse effect on our business, financial position, and operating results.
Healthcare reform legislation could have a material adverse effect on our business, financial position, and operating results.
In recent years, there have been numerous initiatives on the federal and state levels for comprehensive reforms affecting the payment for, the availability of,
and reimbursement for healthcare services in the U.S., and it is likely that federal and state legislatures and health agencies will continue to focus on health care
reform in the future. The Patient Protection and Affordable Care Act (“PPACA”) and the Health Care and Education and Reconciliation Act of 2010, which
amends the PPACA (collectively, “the ACA”), were signed into law in March 2010. While the ACA may increase the number of patients who have insurance
coverage for our products and may otherwise increase drug coverage, it also includes provisions such as, among others, the assessment of a pharmaceutical
manufacturer fee, the requirement that manufacturers provide discounts to Medicare beneficiaries through the Medicare Coverage Gap Discount program, and an
increase in the amount of rebates that manufacturers pay for coverage of their drugs by Medicaid programs.
The cost-containment measures that government programs and healthcare insurers are instituting both as a result of general cost pressure in the industry and
healthcare reforms contained in the ACA may prevent us from maintaining prices for our products that are sufficient for us to realize profits and may otherwise
harm our business, financial position, and operating results. In addition, to the extent that our products are marketed outside of the U.S., foreign government
pricing controls and other regulations may prevent us from maintaining prices for such products that are sufficient for us to realize profits and may otherwise harm
our business, financial position, and operating results.
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We are unable to predict the future course of federal or state healthcare legislation. The ACA and further changes in the law or regulatory framework that
reduce our revenues or increase our costs could have a material adverse effect on our business, financial position, and operating results.
Risks Related to our Business
63% of our net revenues in 2015 resulted from sales of EEMT, Lithobid, and Vancocin. During the same period, these products accounted for only 13% of
our cost of sales. If we experience increased competition for EEMT, or increased prescription erosion for Lithobid or Vancocin, our profitability could be
reduced significantly and our business, financial position and operating results could be materially adversely affected.
We experienced an increase in the number of competitors selling EEMT toward the end of 2015, which led to a decrease in our market share and a decrease in
revenues from sales of EEMT. If additional competitors enter the market, our market share could decline further. In addition, we sell EEMT without an approved
NDA or ANDA and can provide no assurances that the FDA will not require us to seek approval for the product or withdraw it from the market. If the FDA
required us to obtain an approved NDA or ANDA in order to sell EEMT, our business, financial position, and operating results would be materially adversely
affected. The costs of and time involved in obtaining an approved NDA or ANDA would be significant and we may determine not to pursue such approvals.
Unless we were successful in increasing sales of other products to replace any revenue lost from the sale of our EEMT product, whether due to competition, FDA
actions or otherwise, our business, financial position, and operating results would be materially harmed.
Lithobid and Vancocin are no longer patent-protected and face intense competition from lower-priced generics. In addition, both products compete with
different drugs that treat the same conditions. These factors have resulted in a consistent rate of decline in the number of prescriptions for Lithobid and Vancocin.
The introduction of additional competing generic and branded products could result in an even faster rate of prescription erosion, which could have a material
adverse effect on our business, financial position, and operating results.
We depend on a limited number of suppliers for API. Generally, only a single source of API is qualified for use in each product due to the costs and time
required to validate a second source of supply. Changes in API suppliers must usually be approved through a Prior Approval Supplement by the FDA.
Our ability to manufacture and distribute products is dependent, in part, upon ingredients and components supplied by others, including entities based outside
the U.S. We purchased approximately 33% and 42% from two suppliers during the years ended December 31, 2015 and 2014, respectively, and 37% of our
inventory from three suppliers during the year ended December 31, 2013. Any disruption in the supply of these ingredients or components or any problems in their
quality could materially affect our ability to manufacture and distribute our products and could result in legal liabilities that could materially affect our ability to
realize profits or otherwise harm our business, financial, and operating results. Virtually all of our contracts for the supply of pharmaceutical products to customers
contain "failure to supply" clauses. Therefore, our ability to source sufficient quantities of API for manufacturing is critical. We source the raw materials for our
products, including API from both domestic and international suppliers. As the API typically comprises the majority of a product's manufactured cost, and
qualifying an alternative is costly and time-consuming, API suppliers must be selected carefully based on quality, reliability of supply and long-term financial
stability.
Our anticipated revenue growth and profitability, if achieved, is dependent upon our ability to develop, license, or acquire, and commercialize new
products on a timely basis in relation to our competitors' product introductions, and to address all regulatory requirements applicable to the development and
commercialization of new products. Our failure to do so successfully could impair our growth strategy and plans and could have a material adverse effect on
our business, financial position, and operating results.
Our future revenues and profitability are dependent upon our ability to successfully develop, license or acquire, and commercialize, pharmaceutical products
in a timely manner. Product development is inherently risky and time-consuming. Likewise, product licensing involves inherent risks, including uncertainties due
to matters that may affect the achievement of milestones, as well as the possibility of contractual disagreements with regard to the supply of product meeting
specifications and terms such as license scope or termination rights. The development and commercialization process also requires substantial time, effort and
financial resources. We may not be successful in commercializing products on a timely basis, if at all, which could adversely affect our business, financial position,
and operating results.
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The FDA must approve any new prescription product before it can be marketed in the U.S. The process of obtaining regulatory approval to manufacture and
market branded and generic pharmaceutical products is rigorous, time consuming, costly and largely unpredictable. We may be unable to obtain requisite approvals
on a timely basis for branded or generic products that we may develop, license or acquire. Moreover, if we obtain regulatory approval for a drug, we may be
limited with respect to the indicated uses and delivery methods for which the drug may be marketed, which in turn could restrict the potential market for the drug.
Also, for products pending approval, we may obtain raw materials or produce batches of inventory. In the event that regulatory approval is denied or delayed, we
could be exposed to the risk of any such inventory becoming obsolete. The timing and cost of obtaining regulatory approvals could adversely affect our product
introduction plans, business, financial position, and operating results.
The approval process for generic pharmaceutical products often results in the FDA granting simultaneous final approval to a number of generic
pharmaceutical products at the time a patent claim for a corresponding branded product or other market exclusivity expires. This often forces a generic firm to face
immediate competition when it introduces a generic product into the market. Additionally, further generic approvals often continue to be granted for a given
product subsequent to the initial launch of the generic product. These circumstances generally result in significantly lower prices, as well as reduced margins, for
generic products compared to branded products. New generic market entrants generally cause continued price and margin erosion over the generic product life
cycle. As a result, we could be unable to grow or maintain market share with respect to our generic pharmaceutical products, which could have a material adverse
effect on our ability to market that product profitably and on our business, financial position, and operating results.
Furthermore, if we are unable to address all regulatory requirements applicable to the development and commercialization of new products in a timely manner,
our product introduction plans, business, financial position, and operating results could be materially adversely affected.
The FDA regulates and monitors all promotion and advertising of prescription drugs after approval. All promotion must be consistent with the conditions of
approval and submitted to the agency. Failure to adhere to FDA promotional requirements can result in enforcement letters, warning letters, changes to existing
promotional material, and corrective notices to healthcare professionals. Promotion of a prescription drug for uses not approved by the FDA can have serious
consequences and result in lawsuits by private parties, state governments and the federal government, significant civil and criminal penalties, and compliance
agreements that require a company to change current practices and prevent unlawful activity in the future.
Several of the products we have acquired cannot be manufactured in our facilities. If we are unable to secure qualified contract manufacturers for those
products or if a contract manufacturer fails to comply with federal, state, and local laws and regulations, our business, financial position, and operating results
could be materially, adversely affected.
We have acquired, and may continue to acquire, a variety of products that we seek to commercialize. Some of these products, including injectables and softgel
capsules, are products that we cannot manufacture in our facilities. As a result, we may seek partners to contract manufacture the products on our behalf. Like our
company, these firms must comply with cGMPs and other federal, state, and local laws and regulations regarding pharmaceutical manufacturing. Noncompliance
by those firms may result in warning letters, fines, product recalls, and partial or total suspension of production and distribution. If we are unable to find qualified
contract manufacturers or if a contract manufacturer fails to comply with federal, state, and local laws and regulations, we may be unable to commercialize these
products, which could have a material adverse effect on our business, financial position, and operating results, including an impairment of the acquired product.
Future acquisitions and investments could disrupt our business and harm our financial position and operating results.
Our growth will depend, in part, on our continued ability to develop, commercialize, and expand our products, including in response to changing regulatory
and competitive pressures. In some circumstances, we may determine to accelerate our growth through the acquisition of complementary businesses and
technologies rather than through internal development. The identification of suitable acquisition candidates or products can be difficult, time-consuming and
costly, and we may not be able to successfully complete or successfully execute strategies for identified acquisitions. The risks faced in connection with
acquisitions include:
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diversion of management time and focus from operating our business to addressing acquisition and/or product integration challenges;
coordination of research and development and sales and marketing functions;
retention of key employees from the acquired company;
integration of the acquired company’s accounting information, management, human resources and other administrative systems;
the need to implement or improve controls, procedures, and policies at a business that prior to the acquisition may have lacked effective controls,
procedures and policies;
liability for activities of the acquired company and/or products before the acquisition, including patent infringement claims, violations of laws,
commercial disputes, tax liabilities and other known and unknown liabilities;
unanticipated write-offs or charges; and
litigation or other claims in connection with the acquired company or product, including claims from product users, former stockholders or other third
parties.
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In any acquisition that we may undertake, our failure to address these risks or other problems encountered in connection with any acquisitions and investments
could cause us to fail to realize the anticipated benefits of these acquisitions or investments, cause us to incur unanticipated liabilities, and harm our business
generally. Future acquisitions could also result in dilutive issuances of our equity securities, the incurrence of additional debt, contingent liabilities, amortization
expenses, incremental operating expenses or the write-off of goodwill, any of which could harm our business, financial position, and operating results.
Our Medicaid rebate accruals have increased significantly due to our acquisitions of Lithobid and Vancocin and the estimates on which our accruals are
based are subject to change. Any such change could have a material adverse effect on our business, financial position, and operating results.
Our Medicaid rebate accruals have increased significantly due to our acquisitions of Lithobid and Vancocin. We accrue for these rebates at the time of sale
based on our estimates of the amount of our product that will be prescribed to Medicaid beneficiaries. The resulting accruals are significant, and as Medicaid
utilization trends change, we may need to change our estimates accordingly. We cannot guarantee that actual results will not differ from our estimates. In addition,
the Patient Protection and Affordable Care Act (“PPACA”) included a significant expansion of state Medicaid programs. As more individuals become eligible for
coverage under these programs, Medicaid utilization of our products could increase, resulting in a corresponding increase in our rebate payments. Increases in
Medicaid rebate payments could decrease our revenues from product sales, including Lithobid and Vancocin, which in turn could adversely affect our business,
financial position, and operating results.
In January 2016, we acquired two NDAs for $75.0 million and a percentage of future net sales of products under the NDAs. If we are unable to
commercialize these products, it could have a material adverse effect on our business, financial position, and operating results.
In January 2016, we acquired the right, title and interest in the NDA for Corticotropin, 40 units/mL and 80 units/mL and the NDA for Corticotropin-Zinc, 40
units/mL, along with certain documentation and trademark applications, for $75.0 million and a percentage of future net sales of the products under the NDAs. In
order to commercialize the products, we will need to find and engage one or more third parties capable of manufacturing both the active pharmaceutical ingredient
and the finished dosage form of the products, and obtain approval from the FDA of a supplementary NDA filing. In addition, we will need to market the products
directly to physicians and negotiate with third-party payers to provide coverage and adequate levels of reimbursement for the products, none of which is required
for our current products. If we are unable to perform any of these steps, we may be unable to commercialize the products, which could have a material adverse
effect on our business, financial position, and operating results.
We face vigorous competition from other pharmaceutical manufacturers that threatens the commercial acceptance and pricing of our products. If we are
unable to successfully compete, such competition could have a material adverse effect on our business, financial position, and operating results.
The generic pharmaceutical industry is highly competitive. We face intense competition from U.S. and foreign manufacturers, many of whom are
significantly larger than us. Our competitors may be able to develop products and processes competitive with or superior to ours for many reasons, including but
not limited to the possibility that they may have:
greater financial resources;
proprietary processes or delivery systems;
larger research and development and marketing staffs;
larger production capabilities;
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· more products; or
· more experience in developing new drugs.
Any of our significant competitors, due to one or more of these and other factors, could have a material adverse effect on our business, financial position, and
operating results.
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Our approved products may not achieve commercialization at levels of market acceptance that allow us to achieve profitability, which could have a
material adverse effect on our business, financial position, and operating results.
We seek to develop, license or acquire products that we can commercialize at levels of market acceptance that would allow us to recoup our costs, grow
market share, and achieve profitability. Even if we are able to obtain regulatory approvals for our pharmaceutical products, if we fail to predict accurately demand
for such products, our business, financial position, and operating results could be adversely affected. Levels of market acceptance for our products could be
impacted by several factors, including but not limited to:
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availability of alternative products from our competitors;
our products’ pricing relative to that of our competitors;
our marketing effectiveness relative to that of our competitors;
timing of our market entry;
our ability to market our products effectively to the retail level; and
acceptance of our products by government and private formularies.
Some of these factors are outside of our control and, if any arise, our profitability, business, financial position, and operating results could be materially
adversely affected.
We have entered into several collaborative arrangements that may not result in marketable products.
We have entered into several collaborative arrangements to develop generic products for us to market in the U.S. We can offer no assurances that these
arrangements will result in additional approved products, or that we will be able to market the products at a profit. In addition, any expenses related to clinical
trials, or additional studies required by the FDA, that we may incur in connection with these collaborative arrangements may negatively affect our business,
financial position, and operating results. Specifically:
clinical trials could be more costly than we anticipate;
formulation development could take longer and be more costly than we expect; and
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· we may be required to obtain specialized equipment in order to manufacture products on a commercial scale.
Any of these events could have a material adverse effect on our business, financial position, and operating results.
We expect to spend a significant amount of resources on research and development efforts, and such efforts may not result in marketable products.
Failure to successfully introduce products into the market could have a material adverse effect on our business, financial position, and operating results.
We conduct research and development primarily to enable us to manufacture and market approved products in accordance with applicable regulations.
Research and development is expensive and time-consuming. As we seek to develop new products, or recommercialize products that were previously approved,
our research expenses will increase, potentially significantly, and we cannot be certain that we will recover our investment in a product, even if that product is
commercialized. If we spend significant resources on research and development efforts and are not able to introduce new products, our business, financial position,
and operating results may be materially adversely affected.
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We own two manufacturing facilities that produce the majority of our products. Production at either or both of these facilities could be interrupted, which
could cause us to fail to deliver sufficient product to customers on a timely basis and have a material adverse effect on our business, financial position, and
operating results.
Our manufacturing operations are based in two facilities. While these facilities are sufficient for our current needs, the facilities are highly specialized and any
damage to or need for replacement of all or any significant function of our facilities could be very costly and time-consuming and could impair or prohibit
production and shipping. A significant disruption at either of the facilities, even on a short-term basis, whether due to a labor strike, adverse quality or compliance
observation, vandalism, natural disaster, storm or other environmental damage, or other events could impair our ability to produce and ship products on a timely
basis and, among other consequences, could subject us to “failure to supply” claims from our customers, as discussed below. Although we believe we carry
commercially reasonable business interruption and liability insurance, we might suffer losses because of business interruptions that exceed the coverage available
under our insurance policies or for which we do not have coverage. Any of these events could have a material adverse effect on our business, financial position,
and operating results.
Virtually all our contracts for the supply of products to our customers contain "failure to supply" clauses. Under these clauses, if we are unable to supply the
requested quantity of product within a certain period after receipt of a customer's purchase order, the customer is entitled to procure a substitute product elsewhere
and we must reimburse the customer for the difference between our contract price and the price the customer was forced to pay to procure the substitute product.
This difference can be substantial because of the much higher spot price at which the customer must cover its requirements, and can be far in excess of the revenue
that we would otherwise have received on the sale of our own product. Therefore, our ability to produce and ship a sufficient quantity of product on a consistent
basis is critical. Failure to deliver products could have a material adverse effect on our business, financial position, and operating results.
We rely on third parties to assist with our clinical studies. If these third parties do not perform as required or expected, or if they are not in compliance
with FDA rules and regulations, our clinical studies may be extended, delayed or terminated, or may need to be repeated, and we may not be able to obtain
regulatory approval for or commercialize the products being tested in such studies. Further, we may be required to audit or redo previously completed trials or
recall already-approved commercial products.
We rely on third parties, such as medical institutions, clinical investigators and contract laboratories, to assist with our clinical studies. We are responsible for
confirming that our studies are conducted in accordance with applicable regulations and that each of our clinical studies is conducted in accordance with our
general investigational plan and protocol. The FDA requires us to comply with regulations and standards, commonly referred to as good clinical practices for
conducting, monitoring, recording and reporting the results of clinical studies, to assure that data and reported results are accurate and that the clinical study
participants are adequately protected. Our reliance on these third parties does not relieve us of these responsibilities. If the third parties assisting us with our clinical
studies do not perform their contractual duties or obligations, do not meet expected deadlines, fail to comply with the FDA's good clinical practice regulations, do
not adhere to our protocols or otherwise fail to generate reliable clinical data, we may need to enter into new arrangements with alternative third parties and our
clinical studies may be extended, delayed or terminated or may need to be repeated, and we may not be able to obtain regulatory approval for or commercialize the
products being tested in such studies. For our already-approved commercial products, we may be required to audit or redo previously completed trials or recall our
products from the market, which could have a material adverse effect on our business, financial position, and operating results.
We do not own or license any material patents associated with our products, and our ability to protect and control unpatented trade secrets, know-how,
and other technological innovation is limited.
Generally, the branded pharmaceutical business relies upon patent protection to ensure market exclusivity for the life of the patent. We do not own or license
any material patents associated with our products and therefore do not enjoy the same level of intellectual property protection with respect to such products as
would a pharmaceutical manufacturer that markets a patented product. We have limited ability to protect and control trade secrets, know-how, and other
technological innovation, all of which are unpatented. Others independently may develop similar or better proprietary information and techniques and disclose
them publicly. In addition, others may gain access to our trade secrets, and we may not be able to protect our rights to our unpatented trade secrets. In addition,
confidentiality agreements and other measures may not provide protection for our trade secrets in the event of unauthorized use or disclosure of such information.
Failure to protect and control such trade secrets, know-how and innovation could harm the value of our trade secrets, know-how and other technological
innovation, which could have a material adverse effect on our business, financial position, and operating results.
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Inability to protect our intellectual property in the U.S. and foreign countries could negatively affect sales of our branded products.
We own trademarks for each of our branded products, including Cortenema, Cortrophin, Cortrophin-Zinc, Reglan, Lithobid, and Vancocin. While we will
seek to protect those trademarks through timely renewal in applicable jurisdictions, we may not be able to renew our trademarks in a timely manner or to prevent
third parties from using our trademarks, which could have a material adverse effect on our business, financial position, and operating results.
We have very limited staffing and are dependent upon key employees, the loss of whom could adversely affect our operations. Competition for talent is
intense, especially in northern Minnesota, where the population is small. If we cannot attract and retain qualified personnel, the growth and success of our
business could be adversely affected.
Our success is dependent upon the efforts of a relatively small management team and staff. We have employment arrangements in place with our executive
and other officers, but none of these executive and other officers are bound legally to remain employed with ANI for any specific term. We do not have key person
life insurance policies covering our executive and other officers or any of our other employees. If key individuals were to leave ANI, our business could be
affected adversely if suitable replacement personnel are not recruited quickly. The population in northern Minnesota, where our manufacturing resources are
located, is small, and as a result, there is a limited number qualified personnel available in all functional areas, which could make it difficult to retain and attract the
qualified personnel necessary for the development and growth of our business. If we were unable to attract and retain qualified personnel, our business, financial
position, and operating results could be materially adversely affected.
Our Vancocin, Vancomycin, and Nimodipine products are manufactured by third parties, which we cannot control.
We rely on third parties to manufacture our Vancocin, Vancomycin, and Nimodipine products. We expect our reliance on third party manufacturers to increase
in the future as we receive approvals for new products to be manufactured through our collaborative arrangements, and as we seek additional growth opportunities
outside of the capabilities of our current manufacturing facilities. If we are unable to secure third-party manufacturers for these products on commercially
acceptable terms, we may not be able to market and distribute such products at a profit. Any delays or difficulties with third-party manufacturers could adversely
affect the marketing and distribution of Vancocin, Vancomycin, Nimodipine, or future products, which could have a material adverse effect on our business,
financial position, and operating results.
We rely significantly on information technology and any failure, inadequacy, interruption or security lapse of that technology, including any cybersecurity
incidents, could harm our ability to operate the business effectively.
We rely significantly on our information technology and manufacturing infrastructure to effectively manage and maintain inventory and financial reports,
manufacture and ship products, and invoice customers in a timely manner. Any failure, accidents, inadequacy, or interruption of that infrastructure or security lapse
of that technology, including cybersecurity incidents, could harm our ability to operate our business effectively. Our ability to manage and maintain inventory and
financial reports, manufacture and ship products, and invoice customers timely depends significantly on our general ledger, our contracted electronic data interface
system, and other information systems. Cybersecurity attacks in particular are evolving and include, but are not limited to, malicious software, attempts to gain
unauthorized access to data and other electronic security breaches that could lead to disruptions in systems, misappropriation of confidential or otherwise protected
information and corruption of data. Cybersecurity incidents resulting in the failure of our information systems to operate effectively or to integrate with other
systems, or a breach in security or other unauthorized access of these systems, may affect our ability to manage and maintain inventory and financial reports, and
result in delays in product fulfillment and reduced efficiency of operations. A breach in security, unauthorized access resulting in misappropriation, theft, or
sabotage with respect to proprietary and confidential information, including research or clinical data could require significant capital investments to remediate any
such failure, problem or breach, all of which could adversely affect our business, financial position, and operating results.
25
Risks Related to Accounting, Tax, and SEC Rules and Regulations
Our ability to utilize our net operating loss and tax credit carryforwards in the future is subject to substantial limitations and we may not be able to use
some identified net operating loss and tax credit carryforwards, which could result in increased tax payments in future periods.
Under Section 382 of the Internal Revenue Code, if a corporation undergoes an ownership change (generally defined as a greater than 50% change (by value)
in its equity ownership over a three-year period), the corporation’s ability to use its pre-change net operating loss (“NOL”) carryforwards and other pre-change tax
attributes to offset its post-change income may be limited. On June 19, 2013, BioSante experienced an ownership change. Accordingly, our ability to utilize
BioSante’s NOL and tax credit carryforwards attributable to periods prior to June 19, 2013 is subject to substantial limitations. In addition, as a result of our
common stock offering that closed on March 10, 2014, we believe that ANIP Acquisition Company experienced an ownership change. Accordingly, our ability to
utilize ANIP Acquisition Company's NOL and tax credit carryforwards attributable to periods prior to the offering is subject to substantial limitations. These
limitations, in turn, could result in increased future tax payments, which could be material.
We face risks associated with our recently established subsidiary in the Netherlands.
In the fourth quarter of 2015, we established a subsidiary in the Netherlands. Successfully managing operations in a foreign country depends on many factors
such as:
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compliance with foreign tax rules and regulations, including proper establishment of intercompany transfer pricing;
compliance with other foreign regulatory and legal requirements, including local trade, labor, and safety laws;
unexpected changes to any of the aforementioned laws and regulations;
difficulty enforcing agreements; and
our ability to reinvest earnings and cash as appropriate.
Many of these factors are beyond our control, and any one of them could result in increased costs, decreased net sales, and diversion of management’s
attention, any or all of which could materially adversely impact our business, financial position , and operating results.
We use a variety of estimates, judgments, and assumptions in preparing our consolidated financial statements. Estimates, judgments, and assumptions are
inherently subject to change, and any such changes could result in corresponding changes to the amounts of assets, liabilities, revenues, expenses and income.
Any such changes could have a material adverse effect on our business, financial position, and operating results.
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America (“U.S. GAAP”) requires
us to make estimates, judgments, and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amount of revenues and expenses during the period. There are inherent uncertainties involved in estimates,
judgments and assumptions, and any changes in estimates, judgments and assumptions used could have a material adverse effect on our business, financial
position, and operating results.
In the consolidated financial statements included in the periodic reports filed with the SEC, estimates, judgments, and assumptions are used for, but not limited
to, revenue recognition, allowance for doubtful accounts, accruals for chargebacks, rebates, returns and other allowances, allowance for inventory obsolescence,
stock-based compensation, valuation of financial instruments and intangible assets, allowances for contingencies and litigation, deferred tax valuation allowance,
and the depreciable lives of fixed and intangible assets. Actual results could differ from those estimates. Estimates, judgments and assumptions are inherently
subject to change in the future, and any such changes could result in corresponding changes to the amounts of assets, liabilities, revenues, expenses, and income.
Any such changes could have a material adverse effect on our business, financial position, and operating results.
26
Changes in estimates regarding the fair value of goodwill or intangible assets may result in an adverse impact to our business, financial position, and
operating results.
We test goodwill for impairment annually, or more frequently if changes in circumstances indicate that the carrying amount of goodwill might not be
recoverable. Judgment is used in determining when these events and circumstances arise. We perform our review of goodwill based on our one reporting unit. If
we determine that the carrying value of our assets may not be recoverable, we assess, using judgment and estimates, the fair value of our assets and to determine
the amount of any impairment loss, if any. Changes in judgments and estimates may result in the recognition of an impairment loss, which could have a material
negative impact on our business, financial position, and operating results. While our testing in fiscal 2015 did not result in an impairment charge related to
goodwill, there can be no assurances that our goodwill won’t be impaired in the future.
Our material definite-lived intangible assets consist of product rights for previously marketed generic products, product rights for our branded products
Lithobid and Vancocin, an NDA for male testosterone gel and marketing and distribution rights related to certain generic products. These assets are being
amortized over their useful lives of seven to 11 years. For these definite-lived intangible assets, we perform an impairment analysis when events or circumstances
indicate that the carrying value of the assets may not be recoverable. An impairment loss is recognized if, based on our impairment analysis, the carrying amount of
the asset is not recoverable and its carrying amount exceeds its fair value. Any significant change in market conditions, estimates or judgments used to determine
expected future cash flows that indicate a reduction in carrying value may give rise to impairment in the period that the change becomes known. An impairment
charge could have a material negative impact on our business, financial position, and operating results. While we did not recognize an impairment charge related to
our intangible assets in 2015, there can be no assurances that our intangible assets won’t be impaired in the future.
Our management is required to devote substantial time to comply with public company regulations. If we are unable to comply with these regulations,
investors could lose confidence in us, which could have a material adverse effect on our stock price, business, financial position, and operating results.
As a public company, we are required to comply with significant legal, accounting and other requirements that ANIP Acquisition Company did not face as a
private company and as such, have incurred significant regulatory compliance-related expenses. The Sarbanes-Oxley Act of 2002, the Dodd-Frank Wall Street
Reform and Consumer Protection Act as well as rules implemented by the SEC and The NASDAQ Global Market, impose various requirements on public
companies, including those related to corporate governance practices. Our management and other personnel devote a substantial amount of time to these
requirements. Some members of management do not have significant experience in addressing these requirements. Moreover, these rules and regulations have
increased our legal and financial compliance costs relative to those of previous years and make some activities more time consuming and costly.
The Sarbanes-Oxley Act requires, among other things, that we maintain effective internal controls for financial reporting and disclosure controls and
procedures. In particular, we must perform system and process evaluation and testing of our internal controls over financial reporting to allow management to
report on the effectiveness of our internal controls over financial reporting, as required by Section 404 of the Sarbanes-Oxley Act. The Committee of Sponsoring
Organizations of the Treadway Commission (“COSO”) provides a framework for companies to assess and improve their internal control systems. Our compliance
with these requirements has required that we incur substantial accounting and related expenses and expend significant management efforts. Moreover, if we are
not able to comply with the requirements of Section 404 of the Sarbanes-Oxley Act, are unable to assert that our internal controls over financial reporting are
effective, or identify deficiencies that are deemed to be material weaknesses, investors could lose confidence in the accuracy and completeness of our financial
reports, the market price of our common stock could decline and we could be subject to sanctions or investigations by The NASDAQ Global Market, the SEC or
other regulatory authorities. Any of these events could have a material adverse effect on our business, financial position, and operating results.
27
Our policies regarding returns, allowances and chargebacks, and marketing programs adopted by wholesalers may reduce revenues in future fiscal
periods.
We, like other generic drug manufacturers, have agreements with customers allowing chargebacks, product returns, administrative fees, and other rebates.
Under many of these arrangements, we may match lower prices offered to customers by competitors. If we choose to lower our prices, we generally give the
customer a credit on the products that the customer is holding in inventory, which could reduce sales revenue and gross margin for the period the credit is provided.
Like our competitors, we also give credits for chargebacks to wholesalers with whom we have contracts for their sales to hospitals, group purchasing organizations,
pharmacies or other customers. A chargeback is the difference between the price at which we invoice the wholesaler and the price that the wholesaler’s end-
customer pays for a product. Although we establish reserves based on prior experience and our best estimates of the impact that these policies may have in
subsequent periods, we cannot ensure that our reserves are adequate or that actual product returns, allowances, and chargebacks will not exceed our estimates.
Risks Related to our Debt
Making interest and principal payments on our Convertible Senior Notes due 2019 (the “Notes”), which were issued as of December 10, 2014, requires
and will continue to require a significant amount of cash, and we may not have sufficient cash flows from our business to make future interest and principal
payments.
Our ability to continue to make scheduled interest payments and to make future principal payments or to refinance our indebtedness, including the Notes,
depends on our future performance, which is subject to economic, financial, competitive, and other factors beyond our control. Our business may not continue to
generate cash flows from operations sufficient to service our debt and make necessary capital expenditures. If we are unable to generate such cash flows, we may
be required to adopt one or more alternatives, such as selling assets, restructuring debt, or obtaining additional equity capital on terms that may be onerous or
highly dilutive. Our ability to refinance our indebtedness will depend on the capital markets and our financial condition at such time. We may not be able to engage
in any of these activities or engage in these activities on desirable terms, which could result in a default on our debt obligations, including the Notes, which would
have a material adverse effect on our business, financial position, and operating results.
The conditional conversion feature of the Notes, if triggered, may adversely affect our financial results. In addition, if we were to undergo a fundamental
change, we would need to repurchase the Notes, which could adversely affect our business, financial position, and operating results.
In the event the conditional conversion feature of the Notes is triggered, holders of Notes will be entitled to convert the Notes at any time during specified
periods at their option. If one or more holders elect to convert their Notes, or if one or more holders elect to require us to repurchase their Notes in case of a
fundamental change, as described below, unless we elect to satisfy our conversion obligation by delivering solely shares of our common stock (other than paying
cash in lieu of delivering any fractional shares), we would be required to settle a portion or all of our conversion obligation through the payment of cash, which
could adversely affect our liquidity.
28
In addition, holders of the Notes have the right to require us to repurchase their Notes upon the occurrence of a fundamental change, as at a price equal to
100% of the principal amount of the Notes to be repurchased, plus accrued and unpaid interest, if any. A “fundamental change” is deemed to occur if: (i) a person
or group, other than us, directly or indirectly becomes the beneficial owner of common equity representing more than 50% of or voting power, (ii) consummation
of a transaction that would result in the conversion or exchange of our common stock into other securities, cash, or assets, (iii) the sale of substantially all our
assets, (iv) a change in the majority of our board of directors, (v) our stockholders approve a plan of liquidation, or (vi) our common stock ceases to be listed on the
New York Stock Exchange, the NASDAQ Global Select Market, or the NASDAQ Global Market. If one or more holders requires us to repurchase their Notes,
unless we elect to satisfy our conversion obligation by delivering solely shares of our common stock (other than paying cash in lieu of delivering any fractional
shares), we would be required to make cash payments as a result of the Notes being converted, which could adversely affect our liquidity. However, we may not
have enough available cash or be able to obtain financing at the time we are required to repurchase the Notes surrendered or being converted. In addition, our
ability to repurchase the Notes or to pay cash upon conversions of the Notes may be limited by law, by regulatory authority, or by agreements governing any future
indebtedness. Our failure to repurchase Notes at a time when the repurchase is required by the indenture or to pay any cash payable on future conversions of the
Notes as required by the indenture would constitute a default under the indenture. If the repayment of the related indebtedness were accelerated after any applicable
notice or grace periods, we may not have sufficient funds to repay the indebtedness and repurchase the Notes or make cash payments upon conversions thereof,
which would have a negative impact on our business, financial position, and operating results
Provisions in the indenture for the Notes may deter or prevent a business combination.
If a fundamental change occurs prior to the maturity date of the Notes, holders of the Notes will have the right, at their option, to require us to repurchase all or
a portion of their Notes. In addition, if a fundamental change occurs prior to the maturity date of Notes, we will in some cases be required to increase the
conversion rate for a holder that elects to convert its Notes in connection with such fundamental change. Also, the indenture for the Notes prohibits us from
engaging in certain mergers or acquisitions unless, among other things, the surviving entity assumes our obligations under the Notes. These and other provisions
could prevent or deter a third party from acquiring us even where the acquisition could be beneficial to our stockholders.
The convertible note hedge and warrant transactions may affect the value of our common stock.
In connection with the pricing of the Notes, we entered into a convertible note hedge transaction with Nomura Global Financial Products Inc. (“Nomura”). The
convertible note hedge transaction reduces the potential dilution to our common stock upon any conversion of Notes and/or offsets any cash payments we are
required to make in excess of the principal amount of converted Notes, as the case may be. We also entered into a warrant transaction with Nomura. The warrant
transaction could separately have a dilutive effect on our common stock to the extent that the market price of our common stock exceeds the applicable strike price
of the warrants.
Nomura, or an affiliate thereof, established its initial hedge position on the convertible note hedge and warrant transactions by entering into various derivative
transactions with respect to our common stock concurrently with or shortly after the pricing of the Notes. Nomura, or an affiliate thereof, may modify its hedge
position by entering into or unwinding various derivatives with respect to our common stock and/or purchasing or selling our common stock or other securities of
ours in secondary market transactions at any time prior to the maturity of the Notes (and is likely to do so during any observation period related to a conversion of
Notes). This activity could either cause or help avoid an increase or a decrease in the market price of our common stock.
Accounting for the Notes could have a material effect on our reported financial results.
Accounting for the Notes has and will continue to impact our balance sheet, income statement, and earnings per share. In accounting for the Notes, we will
recognize non-cash interest expense, which has and will continue to reduce our net income and earnings per share.
29
In addition, under certain circumstances, convertible debt instruments (such as the Notes) that may be settled entirely or partly in cash are accounted for
utilizing a modified treasury stock method to determine diluted earnings per share, the effect of which is that the shares issuable upon conversion of the Notes are
not included in the calculation of diluted earnings per share except to the extent that the conversion value of the Notes exceeds their principal amount. Under the
modified treasury stock method, for diluted earnings per share purposes, the transaction is treated as if the number of shares of common stock that would be
necessary to settle such excess, if we elected to settle such excess in shares, are issued. Under the current standards, if we were to settle some or all of the Notes
with shares of our common stock instead of with cash, we would be unable to use the treasury method. If we are unable to use the treasury stock method in
accounting for the shares issuable upon conversion of the Notes, our diluted earnings per share would be adversely affected.
Risks Related to our Common Stock
Our principal stockholders, directors, and executive officers own a significant percentage of our stock and will be able to exercise meaningful influence
over our business.
Our current principal stockholders, directors and executive officers beneficially own approximately 31% of our outstanding capital stock entitled to vote as of
December 31, 2015. As a result, these stockholders, if acting together, would be able to influence or control matters requiring approval by our stockholders,
including the election of directors and the approval of mergers, acquisitions or other extraordinary transactions. They may also have interests that differ from
stockholders generally and may vote in a way with which other stockholders disagree and which may be adverse to their interests. This concentration of ownership
may have the effect of delaying, preventing, or deterring a change of control of ANI, could deprive stockholders of an opportunity to receive a premium for their
common stock as part of a sale of ANI, and might ultimately affect the market price of our common stock.
Shares of our common stock are relatively illiquid which may affect the market price of our common stock.
For the twelve months ended December 31, 2015, the average daily trading volume of our common stock on the NASDAQ Global Select market was
approximately 332 thousand shares. Because of our relatively small public float, our common stock may be less liquid than the stock of companies with broader
public ownership and trading of a relatively small volume of our common stock may have a greater impact on the market price for our shares than would be the
case if our public float were larger.
Raising additional funds by issuing additional equity securities may cause dilution to our current stockholders. Raising additional funds by issuing new
debt financing may restrict our operations.
We may seek to raise additional funds through the issuance of equity or equity-linked securities. If we were to raise funds through the issuance of equity or
equity-linked securities, the percentage ownership of our stockholders could be diluted, potentially significantly, and these newly issued securities may have rights,
preferences, or privileges senior to those of our existing stockholders. In addition, the issuance of any equity securities could be at a discount to the then-prevailing
market price of our common stock.
If we require new debt financing, there is no assurance that such a transaction will be available on terms acceptable to us, or at all. In addition, we could be
subject to onerous repayment terms or covenants that restrict our ability to operate our business and make distributions to our stockholders. These restrictive
covenants may include limitations on additional borrowing and specific restrictions on the use of our assets, as well as prohibitions on our ability to create liens,
pay dividends, redeem our stock, or make investments. We can offer no assurance that any equity or debt financing transaction will be available on terms
acceptable to us, or at all.
30
The market price of our common stock has been volatile, and an investment in our common stock could decline in value.
The market price of our common stock has fluctuated in the past, has increased significantly since the completion of the Merger, and is likely to continue to
fluctuate in the future. From time to time, the securities of small capitalization, pharmaceutical companies, including ANI, experience significant market price
fluctuations, often unrelated to these companies’ operating performance. In particular, the market price of our common stock may fluctuate significantly due to a
variety of factors, many of which are beyond our control and that may not be related to our operating performance, including, but not limited to:
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general stock market and general economic conditions in the U.S. and abroad, even if not directly related to our business;
any inability to manufacture EEMT, whether due to FDA determinations or otherwise;
disruptions in the supply of API and other ingredients used in our current and future products;
announced or completed acquisitions of businesses or products by us or by our competitors;
actual or anticipated governmental agency actions, including decisions or actions by the FDA or FDA advisory committee panels with respect to our current
products, products in development, or our competitors’ products;
changes in anticipated or actual timing of our product development programs;
competition in our industry;
the entering into of new strategic partnering arrangements or termination of existing strategic partnering arrangements;
public concern as to the safety or efficacy of our products;
our need and ability to obtain additional financing;
purchases related to our stock repurchase program;
changes in laws or regulations applicable to our products or business;
period-to-period fluctuations in our financial results;
changes in key management;
issuance of shares of our common stock or sales of our common stock by our stockholders;
failure of securities analysts to initiate and maintain coverage on our business and, with respect to any analyst coverage, our failure to meet analyst estimates
or the expectations of investors;
announcements by us or our competitors of new products or services;
the public’s reaction to our press releases, other public announcements and filings with the SEC;
rumors and market speculation involving us or other companies in our industry;
actual or anticipated changes in our operating results or fluctuations in our operating results;
actual or anticipated developments in our business, our competitors’ businesses or the competitive landscape generally;
litigation involving us, our industry or both, or investigations by regulators into our operations or those of our competitors;
new laws or regulations or new interpretations of existing laws or regulations applicable to our business;
changes in accounting standards, policies, guidelines, interpretations or principles; and
slow or negative growth of our products or markets.
In addition, the occurrence of any of the risks described in this report or in subsequent reports we file with the SEC could have a material adverse impact on
the market price of our common stock. Securities class action litigation is sometimes brought against a company following periods of volatility in the market price
of its securities or for other reasons. Securities litigation, whether with or without merit, could result in substantial costs and divert management’s attention and
resources, which could harm our business, financial position, and operating results, as well as the market price of our common stock.
31
Our stock repurchase program could affect the price of our common stock and increase volatility. The repurchase program may be suspended or
terminated at any time, which could result in a decrease in the trading price of our common stock.
In October 2015, we announced that our board of directors had approved the repurchase of up to $25.0 million of our outstanding common stock through
December 31, 2016. Under the stock repurchase program, we are authorized to repurchase, from time-to-time, shares of our outstanding common stock on the open
market. The timing and actual number of shares repurchased will depend on a variety of factors, including market and business conditions, the timing of open
trading windows, trading price, and the nature of other investment opportunities. Repurchases pursuant to our stock repurchase program could affect our stock
price and increase the volatility of our common stock. The existence of a stock repurchase program could also cause our stock price to be higher than it would be in
the absence of such a program and could potentially reduce the market liquidity for our stock. Although the stock repurchase program is intended to enhance long-
term stockholder value, we cannot provide assurance that this will occur, because the market price of our common stock may decline below the levels at which we
repurchased shares of common stock. The stock repurchase program may be suspended or terminated at any time, and we have no obligation to repurchase any
amount of our common stock under the program. Any failure to repurchase shares after we have announced our intention to do so may negatively impact our
reputation and investor confidence in us, as well as the market price of our common stock .
Provisions in our charter documents and Delaware law could discourage or prevent a takeover, even if such a transaction would be beneficial to our
stockholders.
Provisions of our certificate of incorporation and bylaws, as well as provisions of Delaware law, could make it more difficult for a third party to acquire ANI,
even if doing so would be beneficial to our stockholders. These provisions include:
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authorizing the issuance of “blank check” preferred shares that could be issued by our board of directors to increase the number of outstanding shares and
thwart a takeover attempt;
prohibiting cumulative voting in the election of directors, which would otherwise allow less than a majority of stockholders to elect director candidates;
advance notice provisions in connection with stockholder proposals and director nominations that may prevent or hinder any attempt by our stockholders
to bring business to be considered by our stockholders at a meeting or replace our board of directors; and
as a Delaware corporation, we are also subject to provisions of Delaware law, including Section 203 of the Delaware General Corporation law, which
prevents certain stockholders holding more than 15% of our outstanding common stock from engaging in certain business combinations without approval
of the holders of at least two-thirds of our outstanding common stock not held by such 15% or greater stockholder.
Any provision of our certificate of incorporation and bylaws or Delaware law that has the effect of delaying, preventing or deterring a change in control could
limit the opportunity for our stockholders to receive a premium for their shares of our common stock, and could also affect the price that some investors are willing
to pay for our common stock.
Item 1B. Unresolved Staff Comments
None.
Item 2. Properties
Our corporate offices are located at 210 Main Street West, Baudette, Minnesota 56623. The facility, which we own, includes oral solid dose and liquid
manufacturing and packaging, warehouse facilities, analytical, stability and microbiological laboratory space, and employee, office and mechanical space. We also
own a manufacturing facility that includes oral solid dose manufacturing and packaging for pharmaceutical products that must be manufactured in a fully contained
environment, warehouse facilities, and employee, office and mechanical space. This facility is also located in Baudette, Minnesota.
We lease office space for our financial headquarters in Wilmington, Delaware. The lease will expire in September 2018. As of December 31, 2015, we leased
office space in Laguna Beach, California for an executive office. This lease expires in February 2016.
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In January 2016, we entered into a lease for office space for our regulatory affairs office in Raleigh, North Carolina. This lease will begin in March 2016 and
will expire in April 2021.
We consider our leased and owned properties suitable and adequate for our current and foreseeable needs.
Item 3. Legal Proceedings
A discussion of legal matters as of December 31, 2015 follows:
Louisiana Medicaid Lawsuit
On September 11, 2013, the Attorney General of the State of Louisiana filed a lawsuit in Louisiana state court against numerous pharmaceutical companies,
including us, under various state laws, alleging that each defendant caused the state’s Medicaid agency to provide reimbursement for drug products that allegedly
were not approved by the FDA and therefore allegedly not reimbursable under the federal Medicaid program. The lawsuit relates to three cough and cold
prescription products manufactured and sold by our former Gulfport, Mississippi operation, which was sold in September 2010. Through its lawsuit, the state seeks
unspecified damages, statutory fines, penalties, attorneys’ fees and costs. While we cannot predict the outcome of the lawsuit at this time, we could be subject to
material damages, penalties and fines. We intend to vigorously defend against all claims in the lawsuit.
Other Commitments and Contingencies
All manufacturers of the drug Reglan and its generic equivalent metoclopramide, including ANI, are facing allegations from plaintiffs in various states,
including California, New Jersey, and Pennsylvania, claiming bodily injuries as a result of ingestion of metoclopramide or its brand name, Reglan, prior to the
FDA's February 2009 Black Box warning requirement. In August 2012, we were dismissed with prejudice from all New Jersey cases. We consider our exposure to
this litigation to be limited due to several factors: (1) the only generic metoclopramide that we manufactured prior to the implementation of the FDA's warning
requirement was an oral solution introduced after May 28, 2008; (2) our market share for the oral solution was a very small portion of the overall metoclopramide
market; and (3) once we received a request for change of labeling from the FDA, we submitted our proposed changes within 30 days, and such changes were
subsequently approved by the FDA.
At the present time, we are unable to assess the likely outcome of the cases in the remaining states. Our insurance company has assumed the defense of this
matter. We cannot provide assurances that the outcome of these matters will not have an adverse effect on our business, financial condition, and operating results.
Furthermore, like all pharmaceutical manufacturers, we may be exposed to other product liability claims in the future, which could limit our coverage under future
insurance policies or cause those policies to become more expensive, which could harm our business, financial condition, and operating results.
Item 4. Mine Safety Disclosures
Not applicable.
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Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Market Information
PART II
Our common stock trades on the NASDAQ Global Market under the symbol “ANIP.” The following table shows the high and low sales price for ANIP
common stock as reported by the NASDAQ Global Market for each quarter in the years ended December 31, 2015 and 2014:
First Quarter
Second Quarter
Third Quarter
Fourth Quarter
Stockholder Information
Common Stock Price
2015
High
$
$
$
$
71.78 $
72.61 $
73.54 $
50.07 $
2014
Low High
50.70 $
47.56 $
37.20 $
36.15 $
38.74 $
37.74 $
38.17 $
61.43 $
Low
18.52
19.90
25.17
24.24
As of February 12, 2016, there were approximately 160 shareholders of record of our common stock, which does not include stockholders that beneficially
own shares held in a “nominee” or in “street” name, and six holders of record of Class C stock.
Dividends
We did not pay cash dividends in the years ended December 31, 2015 and 2014. We do not anticipate paying cash dividends in the near term.
Recent Sales of Unregistered Securities and Use of Proceeds from Registered Securities
None.
Issuer Purchases of Equity Securities
None.
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Performance Graph
The graph below compares the five-year cumulative total stockholder return on our common stock, the NASDAQ Stock Market (US) Index, and the
NASDAQ Pharmaceuticals Index, assuming the investment of $100.00 on December 31, 2010, with dividends being reinvested. The stock price performance in the
graph below is not necessarily indicative of future price performance.
On June 19, 2013, ANI Merger Sub, Inc., a wholly owned subsidiary of BioSante Pharmaceuticals, Inc. (“BioSante”), merged with and into ANIP Acquisition
Company (“ANIP”), with ANIP continuing as the surviving company and becoming a wholly owned subsidiary of BioSante (the “Merger”) (Note 2, Business
Combination, in the notes to the consolidated financial statements in Part II, Item 8. of this Annual Report on Form 10-K). On July 17, 2013, BioSante changed its
name to ANI Pharmaceuticals, Inc. The five year cumulative total stockholder return on our common stock includes the performance of BioSante common stock
for periods prior to the Merger and ANI Pharmaceuticals, Inc. common stock for periods subsequent to the Merger.
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Item 6. Selected Consolidated Financial Data
The following table sets forth selected financial data as of and for the five years ended December 31, 2015. The information has been derived from our
audited consolidated financial statements for each of the years ended December 31, 2015, 2014, 2013, 2012, and 2011. The data presented below should be read in
conjunction with our consolidated financial statements, the notes to our consolidated financial statements, and “Item 7. Management’s Discussion and Analysis of
Financial Condition and Results of Operations.”
(in thousands, except per share data)
Statement of Operations Data:
Net revenues
Total operating expenses
Operating income/(loss) from continuing operations
Net income/(loss) from continuing operations
$
Basic and diluted income/(loss) from continuing
operations per share:
$
Basic income/(loss) per share from continuing
operations
Diluted income/(loss) per share from continuing
operations
Balance Sheet Data:
Total assets
Total convertible notes, net of discount and deferred
financing costs
Total redeemable convertible preferred stock
Total stockholder's equity/(deficit)
$
$
$
$
2015
Years Ended December 31,
2013 (1)
2014
2012 (2)
2011 (2)
76,322 $
43,622
32,700
15,375 $
55,970 $
35,964
20,006
28,747 $
30,082 $
29,184
898
106 $
20,371 $
20,413
(42)
(1,574) $
16,515
16,510
5
(2,552)
1.34 $
2.61 $
(0.96)
$ N/A
$ N/A
1.32 $
2.59 $
(0.96)
$ N/A
$ N/A
285,265 $
259,558 $
44,500 $
13,748 $
12,676
113,427
-
160,082 $
106,540
-
139,785 $
-
-
40,962 $
-
48,751
(42,715) $
-
24,216
(34,284)
(1) On June 19, 2013, BioSante Pharmaceuticals, Inc. (“BioSante”) acquired ANIP Acquisition Company (“ANIP”) in an all-stock, tax-free reorganization
(Note 2, Business Combination, in the notes to the consolidated financial statements in Part II, Item 8. of this Annual Report on Form 10-K), in which ANIP
became a wholly-owned subsidiary of BioSante. BioSante was renamed ANI Pharmaceuticals, Inc. The Merger was accounted for as a reverse acquisition
pursuant to which ANIP was considered the acquiring entity for accounting purposes. As such, ANIP's historical results of operations replace BioSante's
historical results of operations for all periods prior to the Merger. The results of operations of both companies are included in our consolidated financial
statements for all periods after the completion of the Merger.
(2) Earnings per common share is not calculable for the years ended December 31, 2012 and 2011 because common shareholders from ANIP did not receive
consideration from the June 19, 2013 Merger with BioSante. In a reverse merger, the weighted average shares outstanding used to calculate basic earnings per
share for periods prior to the merger is the weighted average shares outstanding of the common shares of the accounting acquirer (in this case, ANIP)
multiplied by the exchange ratio. In the Merger, only holders of ANIP’s Series D preferred stock received consideration. Because ANIP‘s common
shareholders did not receive any consideration in the Merger, their exchange ratio is zero, creating a weighted average shares outstanding of zero for periods
prior to the Merger.
36
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
Please read the following discussion in conjunction with Item 1A. (“Risk Factors”) and our audited consolidated financial statements included elsewhere in
this annual report. Some of the statements in the following discussion are forward-looking statements. See the discussion about forward-looking statements on
page 1 of this Annual Report on Form 10-K.
Executive Overview
ANI Pharmaceuticals, Inc. and its consolidated subsidiaries (together, “ANI,” the “Company,” “we,” “us,” or “our”) is an integrated specialty pharmaceutical
company developing, manufacturing, and marketing branded and generic prescription pharmaceuticals. We focus on niche and high barrier to entry opportunities
including controlled substances, anti-cancer (oncolytics), hormones and steroids, and complex formulations. We have two pharmaceutical manufacturing facilities
located in Baudette, Minnesota, which are capable of producing oral solid dose products, as well as liquids and topicals, controlled substances, and potent products
that must be manufactured in a fully-contained environment.
Our strategy is to use our assets to develop, acquire, manufacture, and market branded and generic specialty prescription pharmaceuticals. By executing this
strategy, we believe we will be able to continue to grow our business, expand and diversify our product portfolio, and create long-term value for our investors.
On June 19, 2013, BioSante Pharmaceuticals, Inc. (“BioSante”) acquired ANIP Acquisition Company (“ANIP”) in an all-stock, tax-free reorganization (the
“Merger”), in which ANIP became a wholly-owned subsidiary of BioSante. BioSante was subsequently renamed ANI Pharmaceuticals, Inc. The Merger was
accounted for as a reverse acquisition pursuant to which ANIP was considered the acquiring entity for accounting purposes. As such, ANIP's historical results of
operations replace BioSante's historical results of operations for all periods prior to the Merger. The results of operations of both companies are included in our
consolidated financial statements for all periods after completion of the Merger.
In 2014, we acquired ANDAs for 31 generic products, the NDA for Lithobid, and the NDA for Vancocin, along with two related ANDAs. We also launched
our Methazolamide product, and entered into collaborative arrangements for generic drug products with Sofgen Pharmaceuticals and with Dexcel Pharma
Technologies Ltd. Finally, in 2014, we completed a follow-on public offering of common stock, yielding net proceeds of $46.7 million, and closed a public
offering of $143.8 million of 3.0% Convertible Senior Notes due in 2019 (the “Notes”), with simultaneous bond hedge and warrant transactions.
In 2015, we achieved the following:
· Acquired ANDAs for 23 generic products.
· Acquired an NDA for Testosterone gel.
·
·
·
Entered into a distribution agreement with IDT Australia Limited (“IDT”) to market several generic products in the U.S.
Entered into an agreement to acquire two NDAs for Corticotropin and Corticotropin-Zinc. The transaction closed in January 2016.
Launched six products: Etodolac, Propafenone, Oxycodone oral solution, Vancomycin, Nimodipine, and Flecainide.
37
General
The following table summarizes our results of operations for the years ended December 31, 2015, 2014, and 2013.
(in thousands)
Net revenues
Operating expenses
Cost of sales (excluding depreciation and amortization)
Research and development
Selling, general, and administrative
Depreciation and amortization
Operating income from continuing operations
Interest expense
Other income/(expense)
Income from continuing operations before benefit for income taxes
(Provision)/benefit for income taxes
Net income from continuing operations
Gain on discontinued operation, net of provision for income taxes
Net income
$
Years Ended December 31,
2014
2015
2013
$
76,322 $
55,970 $
30,082
12,692
2,874
21,156
6,900
32,700
(11,008)
41
21,733
(6,358)
15,375
-
15,375 $
11,473
2,678
17,935
3,878
20,006
(787)
160
19,379
9,368
28,747
-
28,747 $
9,974
1,712
16,388
1,110
898
(467)
(305)
126
(20)
106
195
301
The following table sets forth, for the periods indicated, the percentage that items in our consolidated statements of earnings bear to net revenues.
Net revenues
Operating expenses
Cost of sales (excluding depreciation and amortization)
Research and development
Selling, general, and administrative
Depreciation and amortization
Operating income from continuing operations
Interest expense
Other income/(expense)
Income from continuing operations before benefit for income taxes
(Provision)/benefit for income taxes
Net income from continuing operations
Gain on discontinued operation, net of provision for income taxes
Net income
38
Years Ended December 31,
2014
2013
2015
100.0%
100.0%
100.0%
16.6%
3.8%
27.7%
9.1%
42.8%
(14.4)%
0.1%
28.5%
(8.4)%
20.1%
-%
20.1%
20.5%
4.8%
32.1%
6.9%
35.7%
(1.4)%
0.3%
34.6%
16.8%
51.4%
-%
51.4%
33.2%
5.7%
54.5%
3.6%
3.0%
(1.6)%
(1.0)%
0.4%
-%
0.4%
0.6%
1.0%
Results of Operations for the Years Ended December 31, 2015 and 2014
Net Revenues
(in thousands)
Generic pharmaceutical products
Branded pharmaceutical products
Contract manufacturing
Contract services and other income
Total net revenues
Years Ended December 31,
2015
2014
Change
% Change
$
$
55,169 $
11,003
4,883
5,267
76,322 $
35,852 $
11,010
5,931
3,177
55,970 $
19,317
(7)
(1,048)
2,090
20,352
53.9%
(0.1)%
(17.7)%
65.8%
36.4%
Net revenues for the year ended December 31, 2015 were $76.3 million compared to $56.0 million for the same period in 2014, an increase of $20.4 million,
or 36.4%, primarily as a result of the following factors:
· Net revenues for generic pharmaceutical products were $55.2 million during the year ended December 31, 2015, an increase of 53.9% compared to
$35.9 million for the same period in 2014. The primary reason for the increase was increased EEMT revenues, due to increases in prices per bottle, as
well as sales of Methazolamide, launched in the fourth quarter of 2014, Etodolac and Propafenone, both of which were launched in the first quarter of
2015, and Vancomycin, launched in the fourth quarter of 2015. We also experienced increased sales for our HC Enema product, due to price increases. In
2016, we anticipate increases in generic pharmaceutical product revenues related to our recently-launched products, as well as additional products we
expect to launch in 2016.
As described in Item 1. Business – Government Regulations – Unapproved Products, we market EEMT and Opium Tincture without FDA-approved
NDAs. The FDA's policy with respect to the continued marketing of unapproved products appears in the FDA's September 2011 Compliance Policy
Guide Sec. 440.100 titled "Marketed New Drugs without Approved NDAs or ANDAs." Under this policy, the FDA has stated that it will follow a risk-
based approach with regard to enforcement against marketing of unapproved products. The FDA evaluates whether to initiate enforcement action on a
case-by-case basis, but gives higher priority to enforcement action against products in certain categories, such as those with potential safety risks or that
lack evidence of effectiveness. While we believe that, so long as we comply with applicable manufacturing standards, the FDA will not take action
against us under the current enforcement policy, we can offer no assurances that the FDA will continue this policy or not take a contrary position with any
individual product or group of products. Our combined net revenues for these products for the years ended December 31, 2015 and 2014 were $44.3
million and $29.8 million, respectively.
· Net revenues for branded pharmaceutical products were $11.0 million during both the years ended December 31, 2015 and 2014. The slight change was
the result of an increase due to realizing a full year of revenue from our Lithobid and Vancocin products, which we acquired in the third quarter of 2014.
This increase was offset by lower unit sales of Reglan, due to decreased purchases by a customer, and increased Medicaid utilization and Medicaid
rebates for Lithobid and Vancocin, all of which are trends we expect to continue. We experience periodic larger orders for our Vancocin product that
relate to clinical trials. Such orders constituted $1.6 million of our branded pharmaceutical product revenue for the year ended December 31, 2015 and we
cannot be sure that such purchases will occur in future periods.
·
Contract manufacturing revenues were $4.9 million during the year ended December 31, 2015, a decrease of 17.7% compared to $5.9 million for the same
period in 2014, due to the timing and volume of orders from contract manufacturing customers in the period. As described in Item 1. Business –
Government Regulations – Unapproved Products, we contract manufacture a group of products on behalf of a customer that are marketed by that
customer without an FDA-approved NDA. If the FDA took enforcement action against such customer, the customer may be required to seek FDA
approval for the group of products or withdraw them from the market. Our contract manufacturing revenues for the group of unapproved products for the
years ended December 31, 2015 and 2014 were $1.6 million and $1.2 million, respectively.
39
·
Contract services and other income were $5.3 million during the year ended December 31, 2015, an increase of 65.8% from $3.2 million for the same
period in 2014, due primarily to royalties received on sales of the authorized generic of Vancocin, the product rights to which were acquired in the third
quarter of 2014. In the second quarter of 2015, our authorized generic partner for Vancocin adjusted its estimates for chargebacks, rebates, and other
deductions from gross sales for the last five months of 2014, which resulted in a $1.4 million increase in royalty revenue. In the fourth quarter of 2015,
our authorized generic partner for Vancocin again adjusted its estimate for chargebacks, rebates, and other deductions from gross sales for the first ten
months of 2015, which resulted in a $0.2 million increase in royalty revenue. In November 2015, we launched an authorized generic for Vancocin under
our own label, which replaced the authorized generic product previously on the market. As a result, we anticipate a decrease in contract services and other
income in future periods with a corresponding increase in generic pharmaceutical product revenue.
As described in Item 1. Business – Government Regulations – Unapproved Products, we receive royalties on the net sales of a group of contract-
manufactured products, which are marketed by the customer without an FDA-approved NDA. If the FDA took enforcement action against such customer,
the customer may be required to seek FDA approval for the group of products or withdraw them from the market. Our royalties on the net sales of these
unapproved products were $0.3 million for both the years ended December 31, 2015 and 2014.
Cost of Sales (Excluding Depreciation and Amortization)
(in thousands)
Years Ended December 31,
2015
2014
Change
% Change
Cost of sales (excl. depreciation and amortization)
$
12,692 $
11,473 $
1,219
10.6%
For the year ended December 31, 2015, cost of sales increased to $12.7 million from $11.5 million for the same period in 2014, an increase of $1.2 million or
10.6%, primarily as a result of increased sales in the period, particularly sales of products that are subject to profit-sharing arrangements. We anticipate that our
cost of sales will continue to increase in 2016, due to new product launches and the full year impact of sales of certain products launched in 2015 that are subject to
profit-sharing arrangements. Cost of sales as a percentage of net revenues decreased to 16.6% during the year ended December 31, 2015, from 20.5% during same
period in 2014, primarily as a result of price increases for our EEMT and HC Enema products, and a favorable shift in product mix toward higher margin products,
including EEMT, and two branded products, Lithobid and Vancocin, which we acquired in the third quarter of 2014. We anticipate that our cost of sales as a
percentage of net revenues will increase in 2016, due to the full year impact of sales of certain products launched in 2015 that are subject to profit-sharing
arrangements, as well as the anticipated launches of new products that are subject to profit-sharing arrangements.
We source the raw materials for our products, including API, from both domestic and international suppliers. Generally, only a single source of API is
qualified for use in each product due to the cost and time required to validate a second source of supply. Changes in API suppliers usually must be approved by the
FDA, which can take 18 months or longer. As a result, we are dependent upon our current vendors to reliably supply the API required for ongoing product
manufacturing. In addition, certain of our API for our drug products, including those that are marketed without approved NDAs or ANDAs, are sourced from
international suppliers. From time to time, we have experienced temporary disruptions in the supply of certain of such imported APIs due to FDA inspections.
During the year ended December 31, 2015, we purchased 33% of our inventory from two suppliers. As of December 31, 2015, amounts payable to these suppliers
were immaterial. In the year ended December 31, 2014, we purchased 42% of our inventory from two suppliers.
In order to manufacture Opium Tincture and Oxycodone oral solution, we must submit a request to the DEA for a quota to purchase the amount of opium and
oxycodone needed to manufacture the respective products. Without approved quotas from the DEA, we would not be able to purchase these ingredients from our
suppliers. As a result, we are dependent upon the DEA to annually approve a sufficient quota of API to support the continued manufacture of Opium Tincture and
Oxycodone oral solution.
40
Other Operating Expenses
(in thousands)
Research and development
Selling, general, and administrative
Depreciation and amortization
Total other operating expenses
Years Ended December 31,
2015
2014
Change
% Change
$
$
2,874 $
21,156
6,900
30,930 $
2,678 $
17,935
3,878
24,491 $
196
3,221
3,022
6,439
7.3%
18.0%
77.9%
26.3%
For the year ended December 31, 2015, other operating expenses increased to $30.9 million from $24.5 million for the same period in 2014, an increase of
$6.4 million, or 26.3%, primarily as a result of the following factors:
·
·
Research and development expenses increased from $2.7 million to $2.9 million, an increase of 7.3%, due to work on development projects, including the
ANDAs purchased from Teva in 2014 and 2015 and collaborations with partners. We anticipate that research and development costs will continue to
increase in 2016, in support of our strategy to expand our product portfolio.
Selling, general, and administrative expenses increased from $17.9 million to $21.2 million, an increase of 18.0%, primarily due to increased expenses
associated with business development activities, increased stock-based compensation expense, and increases in personnel and related costs, partially
offset by a non-recurring $1.3 million catch-up adjustment in the second quarter of 2014 for non-cash stock-based compensation expense recognized upon
shareholder approval of an increase in shares available for issuance under our stock compensation plan. We expect selling, general, and administrative
expenses to continue to increase in the future to support anticipated additional revenue growth.
· Depreciation and amortization increased from $3.9 million to $6.9 million, an increase of 77.9%, due to a full year of amortization of the product rights
for Lithobid and Vancocin, which rights were purchased during the third quarter of 2014, as well as amortization of the ANDAs acquired in 2015. We
expect depreciation and amortization expense to increase in 2016 as we realize a full year of amortization expense related to the ANDAs acquired in
2015, and the amortization expense related to the NDAs for Corticotropin and Corticotropin-Zinc, which were acquired in January 2016 for $75.0 million.
Other Expense, net
(in thousands)
Interest expense, net
Other income, net
Total other expense, net
(1) Not Meaningful
Years Ended December 31,
2015
2014
Change
% Change
$
$
(11,008) $
41
(10,967) $
(787) $
160
(627) $
(10,221)
(119)
(10,340)
NM(1)
(74.4)%
NM(1)
For the year ended December 31, 2015, we recognized other expense of $11.0 million versus other income of $0.6 million for the same period in 2014, a
change of $10.4 million. This change resulted primarily from a $10.2 million increase in interest expense, as only one month of interest expense was recorded
related to our convertible debt in 2014, while a full year was recorded in 2015. During the year ended December 31, 2015, there was $56 thousand of interest
capitalized into construction in progress. During the year ended December 31, 2014 there was no material interest capitalized into construction in progress.
41
(Provision)/Benefit for Income Taxes
(in thousands)
Years Ended December 31,
2015
2014
Change
% Change
(Provision)/Benefit for income taxes
$
(6,358) $
9,368 $
(15,726)
(167.9)%
Our provision for income taxes consists of current and deferred components, which include changes in our deferred tax assets, our deferred tax liabilities, and
our valuation allowance. In the fourth quarter of 2014, we reversed the majority of the valuation allowance we had recorded against our net deferred tax assets. The
reversal was the result of our determination that it is more likely than not that we will realize the benefits of our net deferred tax assets as a result of our expectation
of future profitability, among other factors. Prior to the reversal, we had fully reserved for all our net deferred tax assets.
For the year ended December 31, 2015, we recognized income tax expense of $6.4 million, versus a $9.4 million income tax benefit for the same period in
2014. The change of $15.8 million was primarily the result of the 2014 reversal of $16.7 million of the valuation allowance previously recorded against our
deferred tax assets. Of the $6.4 million of total tax expense recognized in 2015, $7.9 million is current expense and $0.4 million is the impact on the provision
related to the excess tax benefit from stock-based compensation awards. These were partially offset by a $1.9 million net deferred tax benefit.
Results of Operations for the Years Ended December 31, 2014 and 2013
Net Revenues
We derive substantially all of our revenues from sales of generic and branded pharmaceutical products, contract manufacturing, and contract services, which
include product development services, laboratory services, and royalties on net profits of certain products.
(in thousands)
Generic pharmaceutical products
Branded pharmaceutical products
Contract manufacturing
Contract services and other income
Total net revenues
Years Ended December 31,
2014
2013
Change
% Change
$
$
35,852 $
11,010
5,931
3,177
55,970 $
19,281 $
3,370
6,018
1,413
30,082 $
16,571
7,640
(87)
1,764
25,888
85.9%
226.7%
(1.4)%
124.8%
86.1%
Net revenues for the year ended December 31, 2014 were $56.0 million compared to $30.1 million for the same period in 2013, an increase of $25.9 million,
or 86.1%, primarily as a result of the following factors:
· Net revenues for generic pharmaceutical products were $35.9 million during the year ended December 31, 2014, an increase of 85.9% compared to
$19.3 million for the same period in 2013. The primary reason for the increase was a $13.8 million increase in sales of EEMT, which was the result of
increases in both market share and prices. In addition, we experienced increased sales for our Opium Tincture, HC Enema, and Fluvoxamine products. In
the third quarter of 2013, a significant competitor stopped producing EEMT, which led to an increase in our market share and enabled us to significantly
increase the price we charge for the product. However, in the first half of 2014, the same competitor re-entered the market, which negatively impacted our
EEMT unit sales beginning in the second quarter of 2014, and which continued in 2015. EEMT revenues for the year ended December 31, 2014 also were
reduced by $3.9 million in charges related to price protection contract obligations.
As described in Item 1. Business – Government Regulations – Unapproved Products, we market EEMT and Opium Tincture without FDA-approved
NDAs. While we believe that, so long as we comply with applicable manufacturing standards, the FDA will not take action against us under the current
enforcement policy, we can offer no assurances that the FDA will continue this policy or not take a contrary position with any individual product or group
of products. Our combined net revenues for these products for the years ended December 31, 2014 and 2013 were $29.8 million and $14.6 million,
respectively.
42
· Net revenues for branded pharmaceutical products were $11.0 million during the year ended December 31, 2014, an increase of 226.7% compared to $3.4
million for the same period in 2013. The primary reasons for the increase were $3.3 million of sales from our Lithobid product, representing six months of
sales and $4.4 million of sales from our Vancocin product, representing five months of sales. The product rights to Lithobid and Vancocin were acquired
during the third quarter of 2014. These increases were partially offset by a decrease in sales of Reglan.
·
·
Contract manufacturing revenues were $5.9 million during the year ended December 31, 2014, a decrease of 1.4% compared to $6.0 million for the same
period in 2013, due to decreased orders from contract manufacturing customers during 2014. As described in Item 1. Business – Government Regulations
– Unapproved Products, we contract manufacture a group of products on behalf of a customer that are marketed by that customer without an FDA-
approved NDA. If the FDA took enforcement action against such customer, the customer may be required to seek FDA approval for the group of products
or withdraw them from the market. Our contract manufacturing revenues for the group of unapproved products for the years ended December 31, 2014
and 2013 were $1.2 million and $2.0 million, respectively.
Contract services and other income were $3.2 million during the year ended December 31, 2014, an increase of 124.8% from $1.4 million for the same
period in 2013, due primarily to royalties received on sales of the authorized generic of Vancocin, the product rights to which were acquired in the third
quarter of 2014. This increase was partially offset by a $0.5 million non-recurring payment in December 2013 from Teva in relation to the testosterone gel
NDA acquired in the Merger, as well as decreased contract services.
As described in Item 1. Business – Government Regulations – Unapproved Products, we receive royalties on the net sales of a group of contract-
manufactured products, which are marketed by the customer without an FDA-approved NDA. If the FDA took enforcement action against such customer,
the customer may be required to seek FDA approval for the group of products or withdraw them from the market. Our royalties on the net sales of these
unapproved products were $0.3 million for each of the years ended December 31, 2014 and 2013.
Cost of Sales (Excluding Depreciation and Amortization)
(in thousands)
Years Ended December 31,
2014
2013
Change
% Change
Cost of sales (excl. depreciation and amortization)
$
11,473 $
9,974 $
1,499
15.0%
Cost of sales consists of direct labor, including manufacturing and packaging, active and inactive pharmaceutical ingredients, freight costs, and packaging
components. Cost of sales did not include depreciation and amortization expense, which is reported as a separate component of operating expenses on our
consolidated statements of earnings.
For the year ended December 31, 2014, cost of sales increased to $11.5 million from $10.0 million for the same period in 2013, an increase of $1.5 million or
15.0%, primarily as a result of an increase in sales of generic pharmaceutical products, as well as royalties due on proceeds from sales of Vancocin and its
authorized generic. The contractual requirement to pay these royalties ended December 31, 2014. Cost of sales as a percentage of net revenues decreased to 20.5%
during the year ended December 31, 2014, from 33.2% during same period in 2013, primarily as a result of a favorable shift in product mix toward higher margin
products, including our two new branded products, Lithobid and Vancocin, and price increases for EEMT.
During the year ended December 31, 2014, we purchased 42% of our inventory from two suppliers. As of December 31, 2014, amounts payable to these
suppliers were immaterial. In the year ended December 31, 2013, we purchased 37% of our inventory from three suppliers.
43
Other Operating Expenses
(in thousands)
Research and development
Selling, general, and administrative
Depreciation and amortization
Total other operating expenses
Years Ended December 31,
2014
2013
Change
% Change
$
$
2,678 $
17,935
3,878
24,491 $
1,712 $
16,388
1,110
19,210 $
966
1,547
2,768
5,281
56.4%
9.4%
249.4%
27.5%
Other operating expenses consisted of research and development costs, selling, general, and administrative expenses, and depreciation and amortization.
For the year ended December 31, 2014, other operating expenses increased to $24.5 million from $19.2 million for the same period in 2013, an increase of
$5.3 million, or 27.5%, primarily as a result of the following factors:
·
·
Research and development expenses increased from $1.7 million to $2.7 million, an increase of 56.4%, due primarily to work on new development
projects, including the Teva products, internally-developed products, new collaborations, and a filing fee for an ANDA submission of an anti-cancer drug.
Selling, general, and administrative expenses increased slightly, from $16.4 million to $17.9 million, an increase of 9.4%, primarily due to the increases in
personnel and consulting, legal, and other fees related to becoming a public company, as well as increased stock-based compensation expense, including a
$1.3 million catch-up charge for non-cash stock-based compensation, which was recognized upon shareholder approval of an increase in shares available
for issuance under our stock compensation plan. These increases were partially offset by the lack of $6.2 million of Merger-related expenses incurred in
the prior year.
· Depreciation and amortization increased from $1.1 million to $3.9 million, an increase of 249.4%, due to amortization of the ANDAs purchased from
Teva in the first quarter of 2014, amortization of product rights for Lithobid and Vancocin purchased during the third quarter of 2014, and a full year of
amortization of the testosterone gel NDA acquired in the Merger.
Other Expense, net
(in thousands)
Years Ended December 31,
Interest expense, net
Other income/(expense), net
Total other expense, net
2014
2013
Change
% Change
$
$
(787) $
160
(627) $
(467) $
(305)
(772) $
(320)
465
145
68.5%
(152.5)%
(18.8)%
For the year ended December 31, 2014, we recognized other expense of $0.6 million versus other expense of $0.8 million for the same period in 2013, a
decrease of $0.1 million, or 18.8%. This change resulted primarily from the following factors:
·
Interest expense increased from $0.5 million to $0.8 million as a result of $0.8 million of interest expense incurred on our Notes, issued in December
2014. This interest expense was partially offset by interest earned on our cash balance in 2014. Interest expense in the year ended December 31, 2013
included a termination fee and accelerated amortization of deferred loan costs associated with retiring our revolving line of credit in conjunction with the
Merger.
· Other income/(expense) changed from $0.3 million of other expense to $0.2 million of other income, due primarily to the absence of payments of $0.4
million to certain of our investors for monitoring and advisory fees in 2013. Upon completion of the Merger, our obligation to pay monitoring and
advisory fees was terminated. Other income of $0.2 million related primarily to the receipt of an abatement for prior year property taxes resulting from a
reassessment of the property value for our manufacturing facilities and the reimbursement, pursuant to a legal settlement, of legal fees incurred in prior
years.
44
Benefit/(Provision) for Income Taxes
(in thousands)
Years Ended December 31,
2014
2013
Change
% Change
Benefit/(Provision) for income taxes
$
9,368 $
(20) $
9,388
NM(1)
(1) Not Meaningful
The benefit/(provision) for income taxes consists of our current tax provision and our deferred income tax provision, which includes changes in our deferred
tax assets (“DTAs”), deferred tax liabilities (“DTLs”), and our valuation allowance.
For the year ended December 31, 2014, we recognized a $9.4 million income tax benefit, compared with a $20 thousand income tax provision for the same
period in 2013, a change of $9.4 million, primarily as a result of a $16.7 million reversal of the valuation allowance previously recorded against our DTAs. This
reversal was the result of our determination that it is more likely than not that we will realize the benefits of our DTAs as a result of our expectation of future
profitability, among other factors. The reversal of the allowance was partially offset by a $5.1 million current income tax provision for the 2014 fiscal year, and
$2.3 million of changes to our DTAs and DTLs.
Gain on Discontinued Operation
(in thousands)
Years Ended December 31,
2013
2014
Change
% Change
Gain on discontinued operation, net of tax
$
- $
195 $
(195)
(100.0)%
Gain on discontinued operation consisted of revenue and expenses associated with our over-the-counter pharmaceutical products operation in Gulfport,
Mississippi. This operation was sold in September 2010.
During the year ended December 31, 2013, the gain on discontinued operation, net of $38 thousand of tax, resulted from finalizing a portion of the
discontinued operation’s remaining liabilities.
Liquidity and Capital Resources
The following table highlights selected liquidity and working capital information from our consolidated balance sheets.
(in thousands)
Cash and cash equivalents
Accounts receivable, net
Inventories, net
Prepaid income taxes
Prepaid expenses and other current assets
Total current assets
Accounts payable
Accrued expenses
Accrued royalties
Accrued compensation and related expenses
Accrued income taxes
Accrued Medicaid rebates
Returned goods reserve
Total current liabilities
45
December 31,
2015
2014
154,684 $
21,932
13,387
1,127
1,453
192,583 $
2,066 $
617
606
1,188
-
4,631
2,648
11,756 $
169,037
17,297
7,518
-
1,139
194,991
2,654
567
702
1,348
4,253
2,264
1,445
13,233
$
$
$
$
At December 31, 2015, we had $154.7 million in unrestricted cash and cash equivalents. At December 31, 2014, we had $169.0 million in unrestricted cash
and cash equivalents. We generated $17.3 million of cash from operations in the year ended December 31, 2015. In the first quarter of 2015, we acquired an
ANDA for $4.5 million. In the third quarter of 2015, we acquired ANDAs relating to 22 products for $25.0 million.
In September 2015, we entered into an asset purchase agreement with Merck Sharp & Dohme B.V. to purchase, subject to typical closing conditions including
regulatory approvals, certain NDAs and associated product rights and manufacturing licenses for $75.0 million in cash and a percentage of future net sales of the
products under the NDAs. The asset acquisition closed in January 2016, and we made the $75.0 million cash payment using cash on hand.
We are focused on expanding our business and product pipeline through collaborations, and also through acquisitions of products and companies. We are
continually evaluating potential asset acquisitions and business combinations. To finance such acquisitions, we might raise additional equity capital, incur
additional debt, or both.
We believe that our financial resources, consisting of current working capital and anticipated future operating revenue, will be sufficient to enable us to meet
our working capital requirements for at least the next 12 months. If our assumptions underlying estimated revenue and expenses are wrong, or if our cash
requirements change materially as a result of shifts in our business or strategy, we could require additional financing. If in the future we do not remain profitable or
generate cash from operations as anticipated and additional capital is needed to support operations, we may be unable to obtain such financing, or obtain it on
favorable terms, in which case we may be required to curtail development of new products, limit expansion of operations or accept financing terms that are not as
attractive as desired.
Our primary cash requirements are to fund operations, including research and development programs and collaborations, to support general and administrative
activities, and to expand our business and product pipeline through acquisitions of products and companies. We are continually evaluating potential asset
acquisitions and business combinations. Our future capital requirements will depend on many factors, including, but not limited to:
·
·
·
·
·
product mix and pricing for product sales and contract manufacturing;
pricing and payment terms with customers;
costs of raw materials and payment terms with suppliers;
capital expenditures and equipment purchases to support product launches; and
business and product acquisitions.
Consolidation among wholesale distributors, chain drug stores and group purchasing organizations has resulted in a smaller number of companies each
controlling a larger share of pharmaceutical distribution channels. Our net revenues were concentrated among three customers representing 26%, 20%, and 18% of
net revenues during the year ended December 31, 2015. As of December 31, 2015, accounts receivable from these four customers totaled approximately 73% of
our net accounts receivable. As a result, negotiated payment terms with these customers have a material impact on our liquidity and working capital.
Two of our generic pharmaceutical products, EEMT and Opium Tincture, accounted for approximately 51% and 7% of our net revenues in 2015, respectively,
versus 42% and 11% of net revenues in 2014, respectively, and 33% and 16% of net revenues in 2013, respectively. As a result, market pricing for these products,
combined with the costs of raw materials and payment terms with suppliers, have a material impact on our liquidity and working capital. The increase in revenue
related to EEMT has had a significant impact on our financial results and if revenues from EEMT were to decrease substantially or entirely, it would have a
material, negative impact on our cash flows and liquidity.
Our consolidated financial statements have been prepared on a basis that assumes that we will continue as a going concern and which contemplates the
realization of assets and the satisfaction of liabilities and commitments in the normal course of business. These statements do not include any adjustments that
might result if the carrying amount of recorded assets and liabilities are not realized.
46
Sources and Uses of Cash
Debt Financing
In December 2014, we issued $143.8 million of 3.0% Convertible Senior Notes in a registered public offering (the “December 2014 Offering”), which
includes the $18.8 million of Notes issued pursuant to the full exercise of the over-allotment option granted to the underwriters in the December 2014 Offering.
After deducting the underwriting discounts and commissions and other expenses (including the net cost of the bond hedge and warrant, discussed below), the net
proceeds from the offering were approximately $122.6 million. The Notes were issued in order to raise funds to research, develop and commercialize our drug
products; to acquire complementary businesses, products, and technologies that we may identify from time to time; and for other working capital and general
corporate purposes. The Notes pay 3.0% interest semi-annually in arrears on June 1 and December 1 of each year, starting on June 1, 2015. The Notes are
convertible into 2,068,792 shares of common stock, based on an initial conversion price of $69.48 per share.
A portion of the offering proceeds was used to simultaneously enter into “bond hedge” (or purchased call) and “warrant” (or written call) transactions with an
affiliate of one of the offering underwriters (collectively, the “Call Option Overlay”). We entered into the Call Option Overlay to synthetically raise the initial
conversion price of the Notes to $96.21 per share and reduce the potential common stock dilution that may arise from the conversion of the Notes. The exercise
price of the bond hedge is $69.48 per share, with an underlying 2,068,792 common shares; the exercise price of the warrant is $96.21 per share, also with an
underlying 2,068,792 common shares.
At December 31, 2013, we had no debt outstanding.
Equity Financing
In March 2014, we completed a follow-on public offering of 1.6 million shares of our common stock at a public offering price of $31.00 per share (the “March
2014 Offering”). We received gross proceeds of $50.0 million, or net proceeds of $46.7 million after deducting costs of $3.3 million, including the underwriters’
fees and commissions, as well as expenses directly related to the March 2014 Offering. The 1.6 million shares sold in the March 2014 Offering includes the
exercise in full by the underwriters of their option to purchase an additional 0.2 million shares of common stock.
Warrant Exercises
In January 2014, a warrant-holder exercised warrants to purchase 20 thousand shares at $9 per share. We received $0.2 million as a result of this exercise. In
December 2014, a warrant-holder exercised warrants to purchase 63 thousand shares at $9 per share. We received $0.5 million as a result of this exercise.
In December 2013, warrants to purchase an aggregate of 90 thousand shares of common stock were exercised at $9.00 per share. We received $0.8 million as a
result of this exercise.
Uses of Cash
In the first quarter of 2015, we acquired the ANDA for Flecainide for $4.5 million. In the third quarter of 2015, we acquired ANDAs related to 22 products for
$25.0 million. In the first quarter of 2014, we acquired ANDAs related to 31 products for $12.5 million. In the third quarter of 2014, we acquired the intellectual
property rights and NDA associated with Lithobid, as well as raw material inventory, for $11.0 million, not including the $1.0 million contingent payment that was
paid in January 2015, and also acquired the U.S. intellectual property rights and NDA associated with Vancocin, two related ANDAs, and certain equipment and
inventory for $11.0 million.
In September 2015, we entered into an asset purchase agreement with Merck Sharp & Dohme B.V. to purchase certain NDAs and associated product rights
and manufacturing licenses for $75.0 million in cash and a percentage of future net sales of the products under the NDAs. The asset acquisition closed in January
2016, and we made the $75.0 million cash payment using cash on hand.
47
Discussion of Cash Flows
The following table summarizes the net cash and cash equivalents provided by/(used in) operating activities, investing activities and financing activities for the
periods indicated:
(in thousands)
Operating Activities
Investing Activities
Financing Activities
Net Cash Provided by/Used in Operating Activities
Years Ended December 31,
2014
2015
2013
$
$
$
17,264 $
(32,683) $
1,066 $
22,033 $
(35,754) $
171,653 $
(5,484)
20,267
(3,689)
Net cash provided by operating activities was $17.3 million for the year ended December 31, 2015, compared to $22.0 million during the same period in 2014,
a decrease of $4.7 million between the periods. This decrease was due to a decrease in net income and changes in current assets and current liabilities partially
offset by changes in non-cash expenses. When adjusted for non-cash expenses, net income from operations for the year ended December 31, 2015 increased by
$9.0 million from the same period in 2014.
Increases in current assets and decreases in current liabilities (in each case a use of cash) for the year ended December 31, 2015 totaled $13.8 million
compared to $0.1 million for the same period in 2014, an increase of approximately $13.7 million between the periods. Changes in current income taxes, net were a
$5.4 million use of cash in 2015, as compared with providing $4.2 million in 2014, an increase in cash use of $9.6 million. Inventory increased by $2.4 million
more in 2015 than in 2014. Accounts payable decreased by $1.0 million in 2015 as compared with an increase of $0.2 million in 2014, an increase in cash use of
$1.2 million. Accrued compensation and related expenses decreased by $0.2 million in 2015, as compared with an increase of $0.6 million in 2014, an increase in
cash use of $0.8 million. Accrued expense, returned goods, and other increased by $0.5 million less in 2015 than 2014. Offsetting these year-on-year increases in
cash used, accrued Medicaid rebates increased by $0.4 million more in 2015 than 2014, prepaid expenses and other current assets increased by $0.2 million less in
2015 than in 2014, and accounts receivable increased by $0.1 million less in 2015 than in 2014.
Net cash provided by operating activities was $22.0 million for the year ended December 31, 2014 compared to $5.5 million used in the same period in 2013,
a change of $27.5 million between the periods. This increase was primarily due to the increase in net income from 2013 to 2014 and to changes in current assets
and current liabilities. There was a $16.1 million increase in cash provided by net income from continuing operations, after adjusting for non-cash expenses. This
increase was primarily due to the $28.4 million increase in net income in 2014, as well as increases in non-cash expenses, including an increase of $3.4 million in
stock-based compensation expense over 2013 and $2.8 million more in depreciation and amortization expense than the prior year. These increases were partially
offset by non-cash changes to deferred tax assets of $14.5 million and the absence of $4.4 million of non-cash expenses related to the Merger in 2013.
Increases in current assets and decreases in current liabilities for the year ended December 31, 2014 totaled $0.1 million compared to $11.4 million for the
same period in 2013, a decrease of approximately $11.3 million between the periods. Accounts receivable increased by $2.3 million less in 2014 than 2013.
Accrued compensation, income taxes, and Medicaid rebates increased by $3.4 million, $4.2 million, and $1.9 million more than in the prior year, respectively.
Accounts payable and other accrued expenses increased by $0.8 million and $1.7 million more than in the prior year, respectively. These increases in cash provided
by operations were partially offset by increases in inventory and prepaid expenses, which increased by $2.8 million and $0.4 million more in the year ended
December 31, 2014, respectively, than in the prior year periods.
Net Cash Used in/Provided by Investing Activities
Net cash used in investing activities for the year ended December 31, 2015 was $32.7 million, principally due to the March 2015 asset acquisition of the
ANDA for Flecainide for $4.5 million, the July 2015 asset acquisition of a ANDAs relating to 22 products for $25.0 million, the August 2015 payment of $1.0
million for marketing and distribution rights, and $2.2 million of capital expenditures during the period.
48
Net cash used in investing activities was $35.8 million for the year ended December 31, 2014 , principally due to the $12.5 million asset acquisition of
ANDAs relating to 31 products, an $11.0 million asset purchase related to Lithobid, an $11.0 million asset purchase related to Vancocin, and $1.1 million of
capital expenditures during the period .
Net cash provided by investing activities for the year ended December 31, 2013 was $20.3 million, principally due to $18.2 million of cash acquired in the
Merger and the release of $2.2 million of restricted cash held for severance payments, partially offset by $0.2 million of capital expenditures during the period.
Net Cash Provided by/Used in Financing Activities
Net cash provided by financing activities was $1.1 million for the year ended December 31, 2015, resulting primarily from $0.8 million of proceeds from
stock option exercises and $0.4 million of excess tax benefit from stock-based compensation awards.
Net cash provided by financing activities was $171.7 million for the year ended December 31, 2014 , resulting primarily from $122.6 million of net proceeds
received for the Notes issued in our December 2014 offering and $46.7 million of net proceeds received in our March 2014 Offering. We also received $0.8
million of proceeds for stock options exercised in 2014 and $0.8 million of proceeds for warrants exercised in 2014 .
Net cash used in financing activities was $3.7 million for the year ended December 31, 2013, resulting primarily from the $4.1 million repayment in June 2013
of our revolving line of credit in connection with the Merger and $0.4 million of treasury stock repurchases, partially offset by $0.8 million of proceeds received
for a warrant exercised in December 2013.
Contractual Obligations
The following table summarizes our long-term contractual obligations and commitments as of December 31, 2015.
(in thousands)
Long-term debt obligations (1)
Interest on long-term debt obligations (2)
Operating lease obligations
Upfront purchase price of Corticotropin and Corticotropin-Zinc
NDAs (3)
Purchase obligations
Total
$
$
Payments Due by Period
Less than 1
year
1-3 years
3-5 years
More than 5
years
- $
- $
4,313
55
8,625
77
143,750 $
3,953
-
Total
143,750 $
16,891
132
75,000
17,989
253,762 $
75,000
8,220
87,588 $
-
8,169
16,871 $
-
1,600
149,303 $
-
-
-
-
-
-
(1) Represents our Convertible Senior Notes due December 2019 and assumes that no notes are converted prior to the December 1, 2019 due date. Some or all
of this amount could come due earlier if any noteholders convert their notes prior to the due date. (Note 3, Indebtedness, in the notes to the consolidated
financial statements in Part II, Item 8. of this Annual Report on Form 10-K.)
(2) Represents 3.0% interest due semi-annually on our Convertible Senior Notes due December 2019 and assumes all interest is paid and the notes are not
converted prior to the December 1, 2019 due date. This amount could change if any noteholders convert their notes prior to the due date.
(3) The upfront purchase price of $75.0 million to acquire the NDAs was paid in January 2016. (Note 14, Subsequent Events, in the notes to the consolidated
financial statements in Part II, Item 8. of this Annual Report on Form 10-K.)
49
Critical Accounting Estimates
This Management's Discussion and Analysis of Financial Condition and Results of Operations is based on our financial statements, which have been prepared
in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”). The preparation of financial statements in conformity
with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent
assets and liabilities at the date of the financial statements and the reported amount of revenues and expenses during the reporting period. In our consolidated
financial statements, estimates are used for, but not limited to, stock-based compensation, allowance for doubtful accounts, accruals for chargebacks, Medicaid
rebates, returns, and other allowances, allowance for inventory obsolescence, valuation of financial instruments and intangible assets, accruals for contingent
liabilities, fair value of long-lived assets, deferred taxes and valuation allowance, and the depreciable lives of long-lived assets.
Our significant accounting policies are discussed in Note 1. Description of Business and Summary of Significant Accounting Policies, in the notes to the
consolidated financial statements in Part II. Item 8. of this Annual Report on Form 10-K. On an ongoing basis, we evaluate these estimates and assumptions,
including those described below. We base our estimates on historical experience and on various other assumptions that we believe to be reasonable under the
circumstances. These estimates and assumptions form the basis for making judgments about the carrying values of assets and liabilities that are not readily
apparent from other sources. Actual results could differ from those estimates. Due to the estimation processes involved, the following summarized accounting
policies and their application are considered to be critical to understanding our business operations, financial condition, and operating results.
Revenue Recognition
Revenue is recognized for product sales and contract manufacturing product sales upon passing of risk and title to the customer, when estimates of the selling
price and discounts, rebates, promotional adjustments, price adjustments, returns, chargebacks, and other potential adjustments are reasonably determinable,
collection is reasonably assured, and we have no further performance obligations. Contract manufacturing arrangements are typically less than two weeks in
duration, and therefore the revenue is recognized upon completion of the aforementioned factors rather than using a proportional performance method of revenue
recognition. The estimates for discounts, rebates, promotional adjustments, price adjustments, returns, chargebacks, and other potential adjustments reduce gross
revenues to net revenues in the accompanying consolidated statements of earnings, and are presented as current liabilities or reductions in accounts receivable in
the accompanying consolidated balance sheets (see “Accruals for Chargebacks, Rebates, Returns, and Other Allowances”). Historically, we have not entered into
revenue arrangements with multiple elements.
Occasionally, we engage in contract services, which include product development services, laboratory services, and royalties on net sales of certain contract
manufactured products. For these services, revenue is recognized according to the terms of the agreement with the customer, which sometimes include substantive,
measurable risk-based milestones, and when we have a contractual right to receive such payment, the contract price is fixed or determinable, the collection of the
resulting receivable is reasonably assured, and we have no further performance obligations under the agreement. We recognized $5.3 million, $3.2 million, and
$1.4 million of revenue related to contract services in 2015, 2014, and 2013, respectively.
Our revenue recognition accounting methodologies contain uncertainties because they require management to make assumptions and to apply judgment to
estimate the amount of discounts, rebates, promotional adjustments, price adjustments, returns, chargebacks, and other potential adjustments, which are accounted
for as reductions to revenue. We make these estimates based on historical experience.
We have not made any material changes to our revenue recognition policies during the years ended December 31, 2015, 2014, and 2013. We believe it is
unlikely that there will be a material change in the future estimates or assumptions used to measure estimates for discounts, rebates, promotional adjustments, price
adjustments, returns, chargebacks, and other potential adjustments. However, if actual results were not consistent with our estimates, we could be exposed to losses
or gains that could be material, as any changes to these estimates could cause an increase or decrease in revenue recognized during the year. For example, if there
were a 10% change to these adjustments throughout the year, Net Revenues and Net Income from Continuing Operations before (Provision)/Benefit for Income
Taxes for the year ended December 31, 2015 would be affected by $7.0 million.
50
Accruals for Chargebacks, Rebates, Returns and Other Allowances
Our generic and branded product revenues are typically subject to agreements with customers allowing chargebacks, Medicaid rebates, product returns,
administrative fees, and other rebates and prompt payment discounts. We accrue for these items at the time of sale based on the estimates and methodologies
described below. In the aggregate, these accruals, reflected as a decrease to gross sales, exceed 50% of generic and branded gross product sales, reduce gross
revenues to net revenues in the consolidated statements of earnings, and are presented as current liabilities or reductions in accounts receivable in the consolidated
balance sheets. We continually monitor and re-evaluate the accruals as additional information becomes available, which includes, among other things, updates to
trade inventory levels, customer product mix, products returned by customers, and trends in Medicaid rebates experience. We make adjustments to the accruals at
the end of each reporting period, to reflect any such updates to the relevant facts and circumstances. Accruals are relieved upon receipt of payment from or
issuance of credit to the customer, or payment of rebates and fees to customer and state Medicaid programs.
Chargebacks
As discussed in Note 1 of Item 8. Consolidated Financial Statements, we estimate the amount of chargebacks based our actual historical experience. A number
of factors influence current period chargebacks by impacting the average selling price (“ASP”) of products, including customer mix, negotiated terms, volume of
off-contract purchases, and wholesale acquisition cost (“WAC”).
We have not made any material changes to our policy for estimating chargeback accruals during the years ended December 31, 2015, 2014, and 2013. We
believe it is unlikely that there will be a material change in the future estimates or assumptions used to measure chargeback estimates. However, if actual results
were not consistent with our estimates, we could be exposed to losses or gains that could be material, as changes to chargeback estimates could cause an increase
or decrease in revenue recognized during the year and increase or decrease accounts receivable. If there were a 10% change in the chargeback estimates throughout
the year, our Net Revenues and Net Income from Continuing Operations before (Provision)/Benefit for Income Taxes would be affected by $5.2 million for the
year ended December 31, 2015.
Medicaid Rebates
As discussed in Note 1 of Item 8. Consolidated Financial Statements, our estimate for Medicaid rebates is based upon our average manufacturer price, best
price, product mix, levels of inventory in the distribution channel that we expect to be subject to Medicaid rebates, and historical experience, which are invoiced in
arrears by state Medicaid programs. While such experience has allowed for reasonable estimation in the past, history may not always be an accurate indicator of
future rebate experience, and trends in Medicaid enrollment and which products are covered by Medicaid could change.
We have not made any material changes to our policy for estimating Medicaid rebates during the years ended December 31, 2015, 2014, and 2013. While we
anticipate that we will have further increases in our quarterly Medicaid rebate amounts related to sales of our Lithobid and Vancocin products, we do not believe
that our assumptions used to measure estimates for Medicaid rebates will change materially. However, if actual results were not consistent with our estimates, we
could be exposed to losses or gains that could be material, as changes to Medicaid rebate estimates could cause an increase or decrease in revenue recognized
during the year and decrease or increase the Medicaid rebate reserve. If there were a 10% change in the Medicaid rebate estimates throughout the year, our Net
Revenues and Net Income from Continuing Operations before (Provision)/Benefit for Income Taxes would be affected by $0.7 million for the year ended
December 31, 2015.
Returns
As discussed in Note 1 of Item 8. Consolidated Financial Statements, our estimate for returns is based upon our historical experience with actual returns.
While such experience has allowed for reasonable estimation in the past, history may not always be an accurate indicator of future returns.
51
We have not made any material changes to our policy for estimating returns during the years ended December 31, 2015, 2014, and 2013. We believe it is
unlikely that there will be a material change in the future estimates or assumptions used to measure estimates of goods returned. However, if actual results were not
consistent with our estimates, we could be exposed to losses or gains that could be material, as changes to returns estimates could cause an increase or decrease in
revenue recognized during the year and decrease or increase the returned goods reserve. If there were a 10% change in the returns estimates throughout the year,
our Net Revenues and Net Income from Continuing Operations before (Provision)/Benefit for Income Taxes would be affected by $0.3 million for the year ended
December 31, 2015.
Administrative Fees and Other Rebates
As discussed in Note 1 of Item 8. Consolidated Financial Statements, we accrue for fees and rebates by product by wholesaler, at the time of sale based on
contracted rates, ASPs, and on-hand inventory counts obtained from wholesalers.
We have not made any material changes to our policy for estimating administrative fee accruals during the years ended December 31, 2015, 2014, and 2013.
We believe it is unlikely that there will be a material change in the future estimates or assumptions used to measure estimates of administrative fees. However, if
actual results were not consistent with our estimates, we could be exposed to losses or gains that could be material, as changes to these estimates could cause an
increase or decrease in revenue recognized during the year and increase or decrease accounts receivable. If there were a 10% change in the administrative fees
estimates throughout the year, our Net Revenues and Net Income from Continuing Operations before (Provision)/Benefit for Income Taxes would be affected by
$0.6 million for the year ended December 31, 2015.
Prompt Payment Discounts
As discussed in Note 1 of Item 8. Consolidated Financial Statements, we reserve for sales discounts based on invoices outstanding, assuming, based on past
experience, that 100% of available discounts will be taken.
We have not made any material changes to our policy for estimating prompt payment discounts accruals during the years ended December 31, 2015, 2014, and
2013. We believe that it is unlikely that there will be a material change in the future estimates or assumptions used to measure estimates of prompt payment
discounts. If customers do not take 100% of available discounts as we estimate, we could need to re-adjust our methodology for calculating the prompt payment
discount reserve. If there were a 10% decrease in the prompt payment discounts estimates throughout the year, our Net Revenues and Net Income from Continuing
Operations before (Provision)/Benefit for Income Taxes would increase by $0.3 million for the year ended December 31, 2015.
Intangible Assets
Our definite-lived intangible assets have a carrying value of $66.4 million as of December 31, 2015. These assets include ANDAs for a total of 54 previously
marketed generic products we acquired in 2014 and 2015, product rights for our branded products Lithobid and Vancocin, the NDA for our male testosterone gel
product, marketing and distribution rights related to the IDT Australia Limited agreement, and fully amortized product rights for Reglan and a generic product.
These intangible assets originally were recorded at fair value for business combinations and at relative fair value based on the purchase price for asset acquisitions
and are stated net of accumulated amortization.
The ANDAs, NDAs, and rights are amortized over their remaining estimated useful lives, ranging from seven to 11 years, based on the straight-line method.
The estimated useful lives directly impact the amount of amortization expense recorded for these assets on a quarterly and annual basis.
In addition, we test for impairment of definite-lived intangible assets when events or circumstances indicate that the carrying value of the assets may not be
recoverable. Judgment is used in determining when these events and circumstances arise. If we determine that the carrying value of the assets may not be
recoverable, judgment and estimates are used to assess the fair value of the assets and to determine the amount of any impairment loss. No events or circumstances
arose in 2015 that would indicate that the carrying value of any of our definite-lived intangible assets may not be recoverable.
Goodwill
Goodwill relates to the Merger and represents the excess of the total purchase consideration over the fair value of acquired assets and assumed liabilities, using
the purchase method of accounting. Goodwill is not amortized, but is subject to periodic review for impairment. As a result, the amount of goodwill is directly
impacted by the estimates of the fair values of the assets acquired and liabilities assumed.
52
In addition, goodwill is reviewed annually, as of October 31, and whenever events or changes in circumstances indicate that the carrying amount of the
goodwill might not be recoverable. Judgment is used in determining when these events and circumstances arise. We perform our review of goodwill on our one
reporting unit. If we determine that the carrying value of the assets may not be recoverable, judgment and estimates are used to assess the fair value of the assets
and to determine the amount of any impairment loss.
The carrying value of goodwill at December 31, 2015 was $1.8 million. We believe it is unlikely that there will be a material change in the future estimates or
assumptions used to test for impairment losses on goodwill. However, if actual results were not consistent with our estimates or assumptions, we could be exposed
to an impairment charge that could be material.
Stock-Based Compensation
We have a stock-based compensation plan that includes stock options and restricted stock, which are awarded in exchange for employee and non-employee
director services. We recognize the estimated fair value of stock-based awards and classify the expense where the underlying salaries are classified.
The following table summarizes stock-based compensation expense included in our consolidated statements of earnings:
(in thousands)
Cost of sales
Research and development
Selling, general, and administrative
Years ended December 31,
2014
2013
2015
$
$
$
82 $
109 $
3,665 $
104 $
69 $
3,250 $
-
-
36
Stock-based compensation cost for stock options is determined at the grant date using an option pricing model and stock-based compensation cost for
restricted stock is based on the closing market price of the stock at the grant date. The value of the award that is ultimately expected to vest is recognized as
expense on a straight-line basis over the employee's requisite service period.
Valuation of stock awards requires us to make assumptions and to apply judgment to determine the fair value of the awards. These assumptions and judgments
include estimating the future volatility of our stock price, dividend yields, future employee turnover rates, and future employee stock option exercise behaviors.
Changes in these assumptions can affect the fair value estimate.
Estimation of awards that will ultimately vest requires judgment for the amounts that will be forfeited due to failure to fulfill service conditions. To the extent
actual results or updated estimates differ from current estimates, such amounts are recorded as a cumulative adjustment in the period estimates are revised.
Changes in estimates could affect compensation expense within individual periods. If there were to be a 10% change in our stock-based compensation expense for
the year, our Net Income from Continuing Operations before (Provision)/Benefit for Income would be affected by $0.4 million for the year ended December 31,
2015.
Income Taxes
We use the asset and liability method of accounting for income taxes. Deferred tax assets and liabilities are determined based on differences between the
financial reporting and tax bases of assets and liabilities and are measured using the enacted tax rates and laws that are expected to be in effect when the differences
are expected to reverse. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in the period that such tax rate changes are enacted.
The measurement of a deferred tax asset is reduced, if necessary, by a valuation allowance if it is more likely than not that some portion or all of the deferred tax
asset will not be realized.
53
We use a recognition threshold and a measurement attribute for the financial statement recognition and measurement of tax positions taken or expected to be
taken in a tax return. For those benefits to be recognized, a tax position must be more-likely-than-not to be sustained upon examination by taxing authorities. We
have not identified any uncertain income tax positions that could have a material impact to the consolidated financial statements. We are subject to taxation in
various U.S. jurisdictions and remain subject to examination by taxing jurisdictions for the years 1998 and all subsequent periods due to the availability of net
operating loss carryforwards. To the extent we prevail in matters for which a liability has been established, or are required to pay amounts in excess of our
established liability, our effective income tax rate in a given financial statement period could be materially affected. An unfavorable tax settlement generally would
require use of our cash and may result in an increase in our effective income tax rate in the period of resolution. A favorable tax settlement may reduce our
effective income tax rate and would be recognized in the period of resolution.
We consider potential tax effects resulting from discontinued operations and record intra-period tax allocations, when those effects are deemed material. Our
effective income tax rate is also affected by changes in tax law, our level of earnings, and the results of tax audits.
Although we believe that the judgments and estimates discussed herein are reasonable, actual results could differ, and we may be exposed to losses or gains
that could be material.
Recently Issued Accounting Standards
In November 2015, the Financial Accounting Standards Board (“FASB”) issued guidance simplifying the balance sheet classification of deferred taxes. The
new guidance requires that all deferred taxes be presented as noncurrent, rather than separated into current and noncurrent amounts. The guidance is effective for
reporting periods beginning after December 15, 2016 and early adoption is permitted. In addition, the adoption of guidance can be applied either prospectively or
retrospectively to all periods presented. We adopted this guidance for the year ended December 31, 2015 on a retrospective basis, and all periods are presented
under this guidance. The adoption of this new guidance resulted in a reclassification of $7.6 million of current Deferred Tax Assets to noncurrent Deferred Tax
Assets in the consolidated balance sheet as of December 31, 2014.
In July 2015, the FASB issued guidance for inventory. Under the guidance, an entity should measure inventory within the scope of this guidance at the lower
of cost and net realizable value, except when inventory is measured using LIFO or the retail inventory method. Net realizable value is the estimated selling price in
the ordinary course of business, less reasonably predictable costs of completion, disposal, and transportation. In addition, the FASB has amended some of the other
inventory guidance to more clearly articulate the requirements for the measurement and disclosure of inventory. The guidance is effective for reporting periods
beginning after December 15, 2016. The guidance should be applied prospectively, with earlier application permitted. We will adopt the guidance as of January 1,
2016, on a prospective basis. The adoption of this new guidance is not expected to have a material impact on our financial statements.
In April 2015, the FASB issued guidance as to whether a cloud computing arrangement (e.g., software as a service, platform as a service, infrastructure as a
service, and other similar hosting arrangements) includes a software license and, based on that determination, how to account for such arrangements. If a cloud
computing arrangement includes a software license, then the customer should account for the software license element of the arrangement consistent with the
acquisition of other software licenses. If a cloud computing arrangement does not include a software license, the customer should account for the arrangement as a
service contract. The guidance is effective for reporting periods beginning after December 15, 2015, and can be adopted on either a prospective or retrospective
basis. We will adopt the guidance as of January 1, 2016, on a prospective basis. The adoption of this new guidance is not expected to have a material impact on our
financial statements.
In April 2015, the FASB issued guidance to simplify the balance sheet disclosure for debt issuance costs. Under the guidance, debt issuance costs related to a
recognized debt liability are presented in the balance sheet as a direct deduction from the carrying amount of that debt liability, in the same manner as debt
discounts, rather than as an asset. The guidance is effective for reporting periods beginning after December 15, 2015 and must be adopted on a retrospective basis.
Early adoption is permitted. We adopted this guidance for the year ended December 31, 2015 on a retrospective basis, and all periods are presented under this
guidance. The adoption of this new guidance resulted in a reclassification of $0.8 million of Prepaid Expenses, a current asset, and $3.3 million of Deferred Loan
Costs, a noncurrent asset, to the Convertible Debt noncurrent liability in the consolidated balance sheet as of December 31, 2014.
54
In May 2014, the FASB issued guidance for revenue recognition for contracts, superseding the previous revenue recognition requirements, along with most
existing industry-specific guidance. The guidance requires an entity to review contracts in five steps: 1) identify the contract, 2) identify performance obligations,
3) determine the transaction price, 4) allocate the transaction price, and 5) recognize revenue. The new standard will result in enhanced disclosures regarding the
nature, amount, timing and uncertainty of revenue arising from contracts with customers. In August 2015, the FASB issued guidance approving a one-year
deferral, making the standard effective for reporting periods beginning after December 15, 2017, with early adoption permitted only for reporting periods
beginning after December 15, 2016. We are currently evaluating the impact, if any, that this new accounting pronouncement will have on our financial statements.
Off-Balance Sheet Arrangements
As of December 31, 2015, we did not have any off-balance sheet arrangements, as defined in Item 303(a)(4)(ii) of Regulation S-K promulgated by the SEC.
55
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Market risks include interest rate risk, foreign currency exchange rate risk, commodity price risk, and other relevant market rate or price risks. Of these risks,
only interest rate risk could have a significant impact on our results of operations.
As of December 31, 2015, our only debt obligation was related to our Notes. In order to reduce the potential equity dilution that would result upon conversion
of the Senior Convertible Notes issued in December 2014, we entered into note hedge transactions with a financial institution affiliated with one of the
underwriters of the Senior Convertible Note offering. The note hedge transactions are expected generally, but not guaranteed, to reduce the potential dilution to our
common stock and/or offset the cash payments we are required to make in excess of the principal amount upon any conversion of Senior Convertible Notes, in the
event that the market price per share of our common stock, as measured under the terms of the Convertible Note Hedge Transactions, is greater than the conversion
price of the Senior Convertible Notes, which is initially approximately $69.48. In addition, in order to partially offset the cost of the note hedge transactions, we
issued warrants to the hedge counterparty to purchase approximately 2.1 million shares of our common stock at a strike price of $96.21. The warrants would
separately have a dilutive effect to the extent that the market value per share of our common stock exceeds the strike price of the warrants. In addition, non-
performance by the counterparties under the hedge transactions would potentially expose us to dilution of our common stock to the extent our stock price exceeds
the conversion price.
Interest on the Notes accrues at a fixed rate of 3.0% on the outstanding principal amount of the Notes and is paid semi-annually every December 1st and June
1st until the Notes mature on December 1, 2019. Since the interest rate is fixed, we have no interest-rate market risk related to the Notes. However, if our stock
price increases, the fair value of our Notes, and their likelihood of being converted, will increase accordingly.
We are exposed to risks associated with changes in interest rates. The returns from certain of our cash and cash equivalents will vary as short-term interest
rates change. A 100 basis-point adverse movement (decrease) in short-term interest rates would decrease the interest income earned on our cash balance in the year
ended December 31, 2015 by approximately $14 thousand.
56
Item 8. CONSOLIDATED FINANCIAL STATEMENTS
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders
ANI Pharmaceuticals, Inc. and Subsidiaries
We have audited the accompanying consolidated balance sheets of ANI Pharmaceuticals, Inc. and Subsidiaries (the “Company”) as of December 31, 2015 and
2014, and the related consolidated statements of earnings, changes in stockholders’ equity, and cash flows for each of the years in the three-year period ended
December 31, 2015. The financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we
plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining,
on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of ANI Pharmaceuticals, Inc.
and Subsidiaries as of December 31, 2015 and 2014, and the consolidated results of their operations and their cash flows for each of the years in the three-year
period ended December 31, 2015 in conformity with accounting principles generally accepted in the United States of America.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), ANI Pharmaceuticals, Inc. and
Subsidiaries’ internal control over financial reporting as of December 31, 2015, based on criteria established in the 2013 Internal Control - Integrated Framework
issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”), and our report dated February 23, 2016 expressed an unqualified
opinion thereon.
/s/ EisnerAmper LLP
New York, New York
February 23, 2016
57
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders
ANI Pharmaceuticals, Inc. and Subsidiaries
We have audited ANI Pharmaceuticals, Inc. and Subsidiaries’ (the “Company”) internal control over financial reporting as of December 31, 2015, based on criteria
established in the 2013 Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”).
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal
control over financial reporting, included in the accompanying Management’s Annual Report on Internal Control over Financial Reporting. Our responsibility is to
express an opinion on the Company’s internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we
plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects.
Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and
evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we
considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial
reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions
and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial
statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with
authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with
the policies or procedures may deteriorate.
In our opinion, ANI Pharmaceuticals, Inc. and Subsidiaries maintained, in all material respects, effective internal control over financial reporting as of December
31, 2015, based on criteria established in the 2013 Internal Control - Integrated Framework issued by COSO.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of
ANI Pharmaceutical, Inc. and Subsidiaries as of December 31, 2015 and 2014, and the related consolidated statements of earnings, changes in stockholders’ equity,
and cash flows for each of the years in the three-year period ended December 31, 2015, and our report dated February 23, 2016 expressed an unqualified opinion
thereon.
/s/ EisnerAmper LLP
New York, New York
February 23, 2016
58
ANI PHARMACEUTICALS, INC. AND SUBSIDIARIES
Consolidated Balance Sheets
(in thousands, except share and per share amounts)
Assets
December 31,
2015
December 31,
2014
Current Assets
Cash and cash equivalents
Accounts receivable, net of $13,586 and $8,708 of adjustments for chargebacks and other allowances at December 31,
$
154,684 $
169,037
2015 and 2014, respectively
Inventories, net
Prepaid income taxes
Prepaid expenses and other current assets
Total Current Assets
Property and equipment, net
Deferred tax asset, net of valuation allowance
Intangible assets, net
Goodwill
Total Assets
Liabilities and Stockholders' Equity
Current Liabilities
Accounts payable
Accrued expenses and other
Accrued royalties
Accrued compensation and related expenses
Current income taxes payable
Accrued Medicaid rebates
Returned goods reserve
Total Current Liabilities
Long-term Liabilities
Convertible notes, net of discount and deferred financing costs
Total Liabilities
Commitments and Contingencies (Note 12)
Stockholders' Equity
Common Stock, $0.0001 par value, 33,333,334 shares authorized; 11,498,228 shares issued and oustanding at
December 31, 2015; 11,387,860 shares issued and outstanding at December 31, 2014
Class C Special Stock, $0.0001 par value, 781,281 shares authorized; 10,864 shares issued and outstanding at
December 31, 2015 and 2014, respectively
Preferred Stock, $0.0001 par value, 1,666,667 shares authorized; 0 shares issued and outstanding at December 31,
2015 and 2014, respectively
Additional paid-in capital
Accumulated deficit
Total Stockholders' Equity
21,932
13,387
1,127
1,453
192,583
7,131
17,316
66,397
1,838
17,297
7,518
-
1,139
194,991
5,223
15,439
42,067
1,838
$
285,265 $
259,558
$
2,066 $
617
606
1,188
-
4,631
2,648
11,756
2,654
567
702
1,348
4,253
2,264
1,445
13,233
$
113,427
125,183 $
106,540
119,773
1
-
-
164,431
(4,350)
160,082
1
-
-
159,509
(19,725)
139,785
Total Liabilities and Stockholders' Equity
$
285,265 $
259,558
The accompanying notes are an integral part of these consolidated financial statements.
59
ANI PHARMACEUTICALS, INC. AND SUBSIDIARIES
Consolidated Statements of Earnings
(in thousands, except per share amounts)
Net Revenues
Operating Expenses
Cost of sales (excluding depreciation and amortization)
Research and development
Selling, general, and administrative
Depreciation and amortization
Total Operating Expenses
2015
Years ended December 31,
2014
2013
$
76,322 $
55,970 $
30,082
12,692
2,874
21,156
6,900
11,473
2,678
17,935
3,878
9,974
1,712
16,388
1,110
43,622
35,964
29,184
Operating Income from Continuing Operations
32,700
20,006
898
Other Expense, net
Interest expense, net
Other income/(expense), net
(11,008)
41
(787)
160
Income from Continuing Operations Before (Provision)/Benefit for Income Taxes
21,733
19,379
(Provision)/Benefit for income taxes
Net Income from Continuing Operations
Discontinued Operation
Gain on discontinued operation, net of $38 provision for income taxes in the year ended
December 31, 2013
Net Income
Computation of Income/(Loss) from Continuing Operations
Attributable to Common Stockholders and Participating Securities:
Net Income from Continuing Operations
Preferred stock dividends
Income/(Loss) from Continuing Operations
Attributable to Common Stockholders and Participating Securities
Basic Income/(Loss) Per Share:
Continuing operations
Discontinued operation
Basic Income/(Loss) Per Share
Basic Weighted-Average Shares Outstanding
Diluted Income/(Loss) Per Share:
Continuing operations
Discontinued operation
Diluted Income/(Loss) Per Share
Diluted Weighted-Average Shares Outstanding
(6,358)
9,368
15,375
28,747
-
-
$
15,375 $
28,747 $
$
$
$
$
$
$
15,375 $
-
28,747 $
-
15,375 $
28,747 $
1.34 $
-
1.34 $
2.61 $
-
2.61 $
11,370
10,941
1.32 $
-
1.32 $
2.59 $
-
2.59 $
11,557
11,053
(467)
(305)
126
(20)
106
195
301
106
(4,975)
(4,869)
(0.96)
0.04
(0.92)
5,071
(0.96)
0.04
(0.92)
5,071
The accompanying notes are an integral part of these consolidated financial statements.
60
ANI PHARMACEUTICALS, INC. AND SUBSIDIARIES
Consolidated Statements of Changes in Stockholders' Equity
For the years ended December 31, 2015, 2014, and 2013
(in thousands)
Common Common
Stock
Stock
Par Value Shares
Class C
Special
Stock
Additional Treasury
Paid-in Stock
Capital
Shares
Treasury
Stock
Accumulated
Deficit
Total
$
Balance, December 31, 2012
Preferred Stock Dividends
Non-cash Compensation Relating to Business Combination
Cancellation of Convertible Preferred Stock
Shares Issued in Merger
Stock-based Compensation Expense
Purchase of Common Stock for Treasury
Issuance of Common Stock upon Warrant Exercise
Issuance of Restricted Stock Awards
Net Income
$
Balance, December 31, 2013
Stock-based Compensation Expense
Issuance of Common Stock in Equity Offering
Allocation of proceeds from sale of Convertible Notes to
Embedded Conversion Option
Cost of Bond-hedge, Net of Proceeds from Sale of Warrant
Issuance of Common Stock upon Warrant Exercise
Issuance of Common Shares upon Stock Option Exercise
Issuance of Restricted Stock Awards
Excess Tax Benefit from Stock-based Compensation Awards
Net Income
Balance, December 31, 2014
Stock-based Compensation Expense
Changes in Treasury Stock Related to Stock-based
Compensation Arrangements
Issuance of Common Shares upon Stock Option Exercise
Issuance of Restricted Stock Awards
Excess Tax Benefit from Stock-based Compensation Awards
Net Income
$
-
-
-
-
1
-
-
-
-
-
1
-
-
-
-
-
-
-
-
-
1
-
-
-
-
-
-
4,070 $
-
-
-
5,469
-
-
90
-
-
9,629 $
-
1,613
-
-
83
43
20
-
-
- $
-
-
-
-
-
-
-
-
-
- $
-
-
-
-
-
-
-
-
-
1,083
-
4,418
53,726
29,794
36
-
809
(365)
-
89,501
3,423
46,680
20,195
(2,575)
750
819
(68)
784
-
11,388 $
-
- $
-
159,509
3,856
-
84
26
-
-
-
-
-
-
-
-
706
-
360
-
- $
-
-
-
-
-
59
-
(50)
-
9 $
-
-
-
-
-
-
(9)
-
-
- $
-
7
(5)
(2)
-
-
- $
-
-
-
-
-
(433)
-
365
-
(68) $
-
-
-
-
-
-
68
-
-
(43,798) $
(4,975)
-
-
-
-
-
-
-
301
(48,472) $
-
-
-
-
-
-
-
-
28,747
(42,715)
(4,975)
4,418
53,726
29,795
36
(433)
809
-
301
40,962
3,423
46,680
20,195
(2,575)
750
819
-
784
28,747
- $
-
(19,725) $ 139,785
3,856
-
(113)
113
-
-
-
-
-
-
-
15,375
(113)
819
-
360
15,375
Balance, December 31, 2015
$
1
11,498 $
- $
164,431
- $
- $
(4,350) $ 160,082
The accompanying notes are an integral part of these consolidated financial statements.
61
ANI PHARMACEUTICALS, INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows
(in thousands)
2015
2014
2013
For the years ended December 31,
Cash Flows From Operating Activities
Net income
Adjustments to reconcile net loss to net cash and cash equivalents provided by/(used in) operating
$
15,375 $
28,747 $
301
activities:
Stock-based compensation
Deferred taxes
Depreciation and amortization
Loss on disposal of property and equipment
Non-cash interest relating to convertible notes and loan cost amortization
Non-cash compensation relating to business combination
Changes in operating assets and liabilities, net of those acquired in business combination:
Accounts receivable, net
Inventories, net
Prepaid expenses and other current assets
Accounts payable
Accrued compensation and related expenses
Current income taxes, net
Accrued Medicaid rebates
Accrued expenses, returned goods reserve and other
Net Cash and Cash Equivalents Provided by/(Used in) Continuing Operations
Net Cash Used in Discontinued Operation
Net Cash and Cash Equivalents Provided by/(Used in) Operating Activities
Cash Flows From Investing Activities
Cash acquired in business combination
Acquisition of product rights and other related assets
Release of restricted cash
Acquisition of property and equipment
Net Cash and Cash Equivalents (Used in)/Provided by Investing Activities
Cash Flows From Financing Activities
Net proceeds from equity offering
Net proceeds from convertible debt offering
Purchase of call option overlay, net
Repayment of line of credit, net
Proceeds from stock option exercises
Proceeds from warrant exercise
Excess tax benefit from share-based compensation awards
Treasury stock purchases
Net Cash and Cash Equivalents Provided by/(Used in) Financing Activities
Change in Cash and Cash Equivalents
Cash and cash equivalents, beginning of period
Cash and cash equivalents, end of period
Supplemental disclosure for cash flow information:
Cash paid for interest
Cash paid for income taxes, net
Supplemental non-cash investing and financing activities:
Property and equipment purchased and included in accounts payable
Issuance of common stock in connection with business combination
Cancellation of Series D, Series C, Series B, and Series A preferred stock
Acquired non-cash net assets
Preferred stock dividends accrued
3,856
(1,877)
6,900
40
6,831
-
(4,635)
(5,869)
(314)
(1,027)
(160)
(5,380)
2,367
1,157
17,264
-
17,264
-
(30,500)
-
(2,183)
(32,683)
-
-
-
-
819
-
360
(113)
1,066
3,423
(14,459)
3,878
-
559
-
(4,784)
(3,468)
(558)
225
575
4,233
2,011
1,651
22,033
-
22,033
-
(34,634)
-
(1,120)
(35,754)
46,680
138,243
(15,623)
-
819
750
784
-
171,653
36
-
1,110
-
217
4,418
(7,081)
(708)
(188)
(565)
(2,854)
20
72
(67)
(5,289)
(195)
(5,484)
18,198
-
2,260
(191)
20,267
-
-
-
(4,065)
-
809
-
(433)
(3,689)
(14,353)
157,932
11,094
169,037
11,105
11
$
154,684 $
169,037 $
11,105
$
$
$
$
$
$
$
4,205 $
13,255 $
- $
147
439 $
- $
- $
- $
- $
- $
- $
- $
- $
- $
250
-
-
40,034
53,726
11,597
4,975
The accompanying notes are an integral part of these consolidated financial statements.
62
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
1. DESCRIPTION OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Organization and Business
ANI Pharmaceuticals, Inc. and its consolidated subsidiaries (together, “ANI,” the “Company,” “we,” “us,” or “our”) is a specialty pharmaceutical company,
developing and marketing generic and branded prescription products. ANI was organized as a Delaware corporation in April 2001. At our two facilities located in
Baudette, Minnesota, which have a combined manufacturing, packaging and laboratory capacity totaling 173,000 square feet, we manufacture oral solid dose
products, as well as liquids and topicals, including those that must be manufactured in a fully contained environment due to their potency. We also perform
contract manufacturing for other pharmaceutical companies.
On June 19, 2013, BioSante Pharmaceuticals, Inc. (“BioSante”) acquired ANIP Acquisition Company (“ANIP”) in an all-stock, tax-free reorganization (the
“Merger”) (Note 2), in which ANIP became a wholly-owned subsidiary of BioSante. BioSante was renamed ANI Pharmaceuticals, Inc. The Merger was accounted
for as a reverse acquisition pursuant to which ANIP was considered the acquiring entity for accounting purposes. As such, ANIP's historical results of operations
replace BioSante's historical results of operations for all periods prior to the Merger. The results of operations of both companies are included in our consolidated
financial statements for all periods after completion of the Merger.
Our operations are subject to certain risks and uncertainties including, among others, current and potential competitors with greater resources, dependence on
significant customers, lack of operating history and uncertainty of future profitability and possible fluctuations in financial results. The accompanying consolidated
financial statements have been prepared assuming that we will continue as a going concern, which contemplates continuity of operations, realization of assets, and
satisfaction of liabilities in the ordinary course of business. The propriety of using the going-concern basis is dependent upon, among other things, the achievement
of future profitable operations, the ability to generate sufficient cash from operations, and potential other funding sources, including cash on hand, to meet our
obligations as they become due. We believe the going-concern basis is appropriate for the accompanying consolidated financial statements based on our current
operating plan and business strategy for the next 12 months.
Basis of Presentation
The accompanying consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of
America (“U.S. GAAP”). Certain prior period information has been reclassified to conform to the current period presentation.
For the year ended December 31, 2015, we adopted new guidance regarding the presentation of the balance sheet disclosure for debt issuance costs and new
guidance regarding the balance sheet classification of deferred taxes. We adopted these on a retrospective basis. To conform to the current period presentation, we
reclassified the following amounts in our consolidated balance sheet dated December 31, 2014:
(in thousands)
Deferred tax asset, net of valuation allowance, current
Prepaid expenses and other current assets
Current Assets
Deferred financing costs, net
Deferred tax asset, net of valuation allowance
Total Assets
Convertible notes, net of discount and deferred financing costs
Liabilities
Principles of Consolidation
Original
Prior Period
Presentation
Amount
Reclassified
Current
Prior Period
Presentation
-
1,139
194,991
-
15,439
259,558
106,540
119,773
(7,643) $
(844) $
(8,487) $
(3,307) $
7,643 $
(4,151) $
(4,151) $
(4,151) $
$
$
$
$
$
$
$
$
7,643 $
1,983 $
203,478 $
3,307 $
7,796 $
263,709 $
110,691 $
123,924 $
The consolidated financial statements include the accounts of ANI Pharmaceuticals, Inc. and its subsidiaries. All intercompany accounts and transactions are
eliminated in consolidation.
63
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
1. DESCRIPTION OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Use of Estimates
The preparation of financial statements in conformity with U.S. GAAP requires us to make estimates and assumptions that affect the reported amounts of
assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amount of revenues and expenses
during the reporting period. In the accompanying consolidated financial statements, estimates are used for, but not limited to, stock-based compensation, allowance
for doubtful accounts, accruals for chargebacks, Medicaid rebates, returns and other allowances, allowance for inventory obsolescence, valuation of financial
instruments and intangible assets, accruals for contingent liabilities, fair value of long-lived assets, deferred taxes and valuation allowance, and the depreciable
lives of long-lived assets. Actual results could differ from those estimates.
Comprehensive Income
We have no components of other comprehensive income and accordingly, no statement of comprehensive income is included in the accompanying
consolidated financial statements.
Credit Concentration
Our customers are primarily wholesale distributors, chain drug stores, group purchasing organizations, and other pharmaceutical companies.
During the year ended December 31, 2015, three customers represented approximately 26%, 20%, and 18% of net revenues, respectively. As of December 31,
2015, accounts receivable from these customers totaled 73% of net accounts receivable. During the year ended December 31, 2014, three customers represented
approximately 30%, 25%, and 14% of net revenues, respectively. During the year ended December 31, 2013, three customers represented approximately 27%,
18%, and 10% of net revenues, respectively.
Vendor Concentration
We source the raw materials for its products, including active pharmaceutical ingredients (“API”), from both domestic and international suppliers. Generally,
only a single source of API is qualified for use in each product due to the costs and time required to validate a second source of supply. As a result, we are
dependent upon our current vendors to supply reliably the API required for ongoing product manufacturing. During the year ended December 31, 2015, we
purchased approximately 33% of our inventory from two suppliers. As of December 31, 2015, amounts payable to these suppliers were immaterial. During the year
ended December 31, 2014, we purchased approximately 42% of our inventory from two suppliers. During the year ended December 31, 2013, we purchased
approximately 37% of our inventory from three suppliers.
Revenue Recognition
Revenue is recognized for product sales and contract manufacturing product sales upon passing of risk and title to the customer, when estimates of the selling
price and discounts, rebates, promotional adjustments, price adjustments, returns, chargebacks, and other potential adjustments are reasonably determinable,
collection is reasonably assured, and we have no further performance obligations. Contract manufacturing arrangements are typically less than two weeks in
duration, and therefore the revenue is recognized upon completion of the aforementioned factors rather than using a proportional performance method of revenue
recognition. The estimates for discounts, rebates, promotional adjustments, price adjustments, returns, chargebacks, and other potential adjustments reduce gross
revenues to net revenues in the accompanying consolidated statements of earnings, and are presented as current liabilities or reductions in accounts receivable in
the accompanying consolidated balance sheets (see “Accruals for Chargebacks, Rebates, Returns, and Other Allowances”). Historically, we have not entered into
revenue arrangements with multiple elements.
Occasionally, we engage in contract services, which include product development services, laboratory services, and royalties on net sales of certain contract
manufactured products. For these services, revenue is recognized according to the terms of the agreement with the customer, which sometimes include substantive,
measurable risk-based milestones, and when we have a contractual right to receive such payment, the contract price is fixed or determinable, the collection of the
resulting receivable is reasonably assured, and we have no further performance obligations under the agreement.
64
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
1. DESCRIPTION OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Cash and Cash Equivalents
We consider all highly liquid instruments with maturities of three months or less when purchased to be cash equivalents. All interest bearing and non-interest
bearing accounts are guaranteed by the FDIC up to $250 thousand. The majority of our cash balances are in excess of FDIC coverage. We consider this to be a
normal business risk.
In conjunction with the Merger, we acquired restricted cash, none of which remained at December 31, 2015 and 2014.
Accounts Receivable
We extend credit to customers on an unsecured basis. We use the allowance method to provide for doubtful accounts based on our evaluation of the
collectability of accounts receivable, whereby we provide an allowance for doubtful accounts equal to the estimated uncollectible amounts. Our estimate is based
on historical collection experience and a review of the current status of trade accounts receivable. We determine trade receivables to be delinquent when greater
than 30 days past due. Receivables are written off when it is determined that amounts are uncollectible. We determined that no allowance for doubtful accounts
was necessary as of December 31, 2015 and 2014.
Accruals for Chargebacks, Rebates, Returns and Other Allowances
Our generic and branded product revenues are typically subject to agreements with customers allowing chargebacks, Medicaid rebates, product returns,
administrative fees, and other rebates and prompt payment discounts. We accrue for these items at the time of sale based on the estimates and methodologies
described below. In the aggregate, these accruals exceed 50% of generic and branded gross product sales, reduce gross revenues to net revenues in the
accompanying consolidated statements of earnings, and are presented as current liabilities or reductions in accounts receivable in the accompanying consolidated
balance sheets. We continually monitor and re-evaluate the accruals as additional information becomes available, which includes, among other things, trade
inventory levels, customer product mix, products returned by customers, and trends in Medicaid rebates experience. We make adjustments to the accruals at the
end of each reporting period, to reflect any such updates to the relevant facts and circumstances. Accruals are relieved upon receipt of payment from or upon
issuance of credit to the customer.
Chargebacks
Chargebacks, primarily from wholesalers, result from arrangements we have with indirect customers establishing prices for products which the indirect
customer purchases through a wholesaler. Alternatively, we may pre-authorize wholesalers to offer specified contract pricing to other indirect customers. Under
either arrangement, we provide a chargeback credit to the wholesaler for any difference between the contracted price with the indirect customer and the
wholesaler's invoice price, typically Wholesale Acquisition Cost ("WAC").
Chargeback credits are calculated as follows:
Prior period chargebacks claimed by wholesalers are analyzed to determine the actual average selling price ("ASP") for each product. This calculation is
performed by product by wholesaler. ASPs can be affected by several factors such as:
· A change in customer mix
· A change in negotiated terms with customers
· A change in the volume of off-contract purchases
·
Changes in WAC
As necessary, we adjust ASPs based on anticipated changes in the factors above.
The difference between ASP and WAC is recorded as a reduction in both gross revenues in the consolidated statements of earnings and accounts receivable in
the consolidated balance sheets, at the time we recognize revenue from the product sale.
65
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
1. DESCRIPTION OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
To evaluate the adequacy of our chargeback accruals, we obtain on-hand inventory counts from the wholesalers. This inventory is multiplied by the
chargeback amount, the difference between ASP and WAC, to arrive at total expected future chargebacks, which is then compared to the chargeback accruals. We
continually monitor chargeback activity and adjust ASPs when we believe that actual selling prices will differ from current ASPs.
Medicaid Rebates
We participate in certain qualifying federal and state Medicaid rebate programs whereby discounts and rebates are provided to participating programs after the
final dispensing of the product by a pharmacy to a Medicaid plan participant. Medicaid rebates are typically billed up to 120 days after the product is shipped.
Medicaid rebate amounts per product unit are established by law, based on the Average Manufacturer Price (“AMP”), which is reported on a monthly and quarterly
basis, and, in the case of branded products, best price, which is reported on a quarterly basis. Our Medicaid reserves are based on expected claims from state
Medicaid programs. Estimates for expected claims are driven by patient usage, sales mix, calculated AMP or best price, as well as inventory in the distribution
channel that will be subject to a Medicaid rebate. As a result of the delay between selling the products and rebate billing, our Medicaid rebate reserve includes both
an estimate of outstanding claims for end-customer sales that occurred but for which the related claim has not been billed as well as an estimate for future claims
that will be made when inventory in the distribution channel is sold through to plan participants.
To evaluate the adequacy of our Medicaid rebate reserve, we review the reserve on a quarterly basis against actual claims data to ensure the liability is fairly
stated. We continually monitor our Medicaid rebate reserve and adjust our estimates if we believe that actual Medicaid rebates may differ from our established
accruals. Accruals for Medicaid rebates are recorded as a reduction to gross revenues in the consolidated statements of earnings and as an increase to the Medicaid
rebate reserve in the consolidated balance sheets.
Returns
We maintain a return policy that allows customers to return product within a specified period prior to and subsequent to the expiration date. Generally, product
may be returned for a period beginning six months prior to its expiration date to up to one year after its expiration date. Our product returns are settled through the
issuance of a credit to the customer. Our estimate for returns is based upon historical experience with actual returns. While such experience has allowed for
reasonable estimation in the past, history may not always be an accurate indicator of future returns. We continually monitor our estimates for returns and make
adjustments when we believe that actual product returns may differ from the established accruals. Accruals for returns are recorded as a reduction to gross revenues
in the consolidated statements of earnings and as an increase to the return goods reserve in the consolidated balance sheets.
Administrative Fees and Other Rebates
Administrative fees or rebates are offered to wholesalers, group purchasing organizations and indirect customers. We accrue for fees and rebates, by product
by wholesaler, at the time of sale based on contracted rates and ASPs.
To evaluate the adequacy of our administrative fee accruals, we obtain on-hand inventory counts from the wholesalers. This inventory is multiplied by the
ASPs to arrive at total expected future sales, which is then multiplied by contracted rates. The result is then compared to the administrative fee accruals. We
continually monitor administrative fee activity and adjust our accruals when we believe that actual administrative fees will differ from the accruals. Accruals for
administrative fees and other rebates are recorded as a reduction in both gross revenues in the consolidated statements of earnings and accounts receivable in the
consolidated balance sheets.
Prompt Payment Discounts
We often grant sales discounts for prompt payment. The reserve for prompt payment discounts is based on invoices outstanding. We assume, based on past
experience, that all available discounts will be taken. Accruals for prompt payment discounts are recorded as a reduction in both gross revenues in the consolidated
statements of earnings and accounts receivable in the consolidated balance sheets.
66
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
1. DESCRIPTION OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
The following table summarizes activity in the consolidated balance sheets for accruals and allowances for the years ended December 31, 2015, 2014, and
2013:
(in thousands)
Balance at December 31, 2012
Accruals/Adjustments
Credits Taken Against Reserve
Balance at December 31, 2013
Accruals/Adjustments
Credits Taken Against Reserve
Balance at December 31, 2014
Accruals/Adjustments
Credits Taken Against Reserve
Balance at December 31, 2015
Inventories
Accruals for Chargebacks, Returns and Other Allowances
Medicaid
Rebates
Administrative
Fees and Other
Rebates
Prompt
Payment
Discounts
Returns
Chargebacks
$
5,662 $
28,009
(29,595)
4,076 $
35,740
(32,951)
6,865 $
51,933
(47,417)
11,381 $
$
$
$
180 $
333
(260)
253 $
2,692
(681)
2,264 $
6,719
(4,352)
4,631 $
411 $
1,595
(1,270)
736 $
1,493
(784)
1,445 $
2,808
(1,605)
2,648 $
231 $
2,355
(1,851)
735 $
5,212
(4,460)
1,487 $
6,136
(5,970)
1,653 $
242
1,129
(1,039)
332
1,820
(1,681)
471
2,744
(2,541)
674
Inventories consist of raw materials, packaging materials, work-in-progress, and finished goods. Inventories are stated at the lower of standard cost or net
realizable value. We periodically review and adjust standard costs, which generally approximate weighted average cost.
Property and Equipment
Property and equipment are recorded at cost. Expenditures for repairs and maintenance are charged to expense as incurred. Depreciation is recorded on a
straight-line basis over estimated useful lives as follows:
Buildings and improvements
Machinery, furniture and equipment
20 - 40 years
3 - 10 years
Construction in progress includes the cost of construction and other direct costs attributable to the construction, along with capitalized interest, if any.
Depreciation is not recorded on construction in progress until such time as the assets are placed in service.
We review property and equipment for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be
recoverable. Recoverability of the long-lived asset is measured by a comparison of the carrying amount of the asset to future undiscounted net cash flows expected
to be generated by the asset. If such assets are considered to be impaired, the impairment to be recognized is measured by the amount by which the carrying
amount of the assets exceeds the estimated fair value of the assets. No impairment loss related to property and equipment was recognized during the years ended
December 31, 2015, 2014, and 2013. Assets held for disposal are reportable at the lower of the carrying amount or fair value, less costs to sell. No assets were held
for disposal as of December 31, 2015 and 2014.
Intangible Assets
Intangible assets were acquired as part of the Merger and several asset purchase transactions. These assets include ANDAs for a total of 54 previously
marketed generic products we acquired in 2014 and 2015, product rights for our branded products Lithobid and Vancocin, the NDA for our male testosterone gel
product, marketing and distribution rights related to an agreement with IDT Australia Limited, and fully amortized product rights for Reglan and a generic product.
These intangible assets originally were recorded at fair value for business combinations and at relative fair value based on the purchase price for asset acquisitions
and are stated net of accumulated amortization.
67
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
1. DESCRIPTION OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
The ANDAs, NDAs, and rights are amortized over their remaining estimated useful lives, ranging from seven to 11 years, based on the straight-line method.
Management reviews definite-lived intangible assets for impairment whenever events or changes in circumstances indicate that the carrying amount may not be
recoverable, in a manner similar to that for property and equipment. No impairment loss related to intangibles was recognized in the years ended December 31,
2015, 2014, and 2013.
Goodwill
Goodwill relates to the Merger and represents the excess of the total purchase consideration over the fair value of acquired assets and assumed liabilities, using
the purchase method of accounting. Goodwill is not amortized, but is subject to periodic review for impairment. Goodwill is reviewed annually, as of October 31,
and whenever events or changes in circumstances indicate that the carrying amount of the goodwill might not be recoverable. We perform our review of goodwill
on our one reporting unit.
Before employing detailed impairment testing methodologies, we first evaluate the likelihood of impairment by considering qualitative factors relevant to our
reporting unit. When performing the qualitative assessment, we evaluate events and circumstances that would affect the significant inputs used to determine the
fair value of the goodwill. Events and circumstances evaluated include: macroeconomic conditions that could affect us, industry and market considerations for the
generic pharmaceutical industry that could affect us, cost factors that could affect our performance, our financial performance (including share price), and
consideration of any company-specific events that could negatively affect us, our business, or the fair value of our business. If we determine that it is more likely
than not that goodwill is impaired, we will then apply detailed testing methodologies. Otherwise, we will conclude that no impairment has occurred.
Detailed impairment testing involves comparing the fair value of our one reporting unit to its carrying value, including goodwill. Fair value reflects the price a
market participant would be willing to pay in a potential sale of ANI. If the fair value exceeds carrying value, then it is concluded that no goodwill impairment has
occurred. If the carrying value of the reporting unit exceeds its fair value, a second step is required to measure possible goodwill impairment loss. The second step
includes hypothetically valuing the tangible and intangible assets and liabilities of our one reporting unit as if it had been acquired in a business combination. Then,
the implied fair value of our one reporting unit's goodwill is compared to the carrying value of that goodwill. If the carrying value of our one reporting unit's
goodwill exceeds the implied fair value of the goodwill, we recognize an impairment loss in an amount equal to the excess, not to exceed the carrying value. No
impairment loss related to goodwill was recognized in the years ended December 31, 2015, 2014, and 2013.
Collaborative Arrangements
At times, we have entered into arrangements with various commercial partners to further business opportunities. In collaborative arrangements such as these,
when we are actively involved and exposed to the risks and rewards of the activities and are determined to be the principal participant in the collaboration, we
classify third party costs incurred and revenues in the consolidated statements of earnings on a gross basis. Otherwise, third party revenues and costs generated by
collaborative arrangements are presented on a net basis. Payments between us and the other participants are recorded and classified based on the nature of the
payments.
Research and Development Expenses
Research and development costs are expensed as incurred and primarily consist of expenses relating to product development. Research and development costs
totaled $2.9 million, $2.7 million, and $1.7 million for the years ended December 31, 2015, 2014, and 2013, respectively.
68
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
1. DESCRIPTION OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Stock-Based Compensation
We have a stock-based compensation plan that includes stock options and restricted stock, which are awarded in exchange for employee and non-employee
director services. We recognize the estimated fair value of stock-based awards and classify the expense where the underlying salaries are classified. We incurred
$3.9 million, $3.4 million, and $36 thousand of non-cash, stock-based compensation cost for the years ended December 31, 2015, 2014, and 2013, respectively.
Stock-based compensation cost for stock options is determined at the grant date using an option pricing model and stock-based compensation cost for restricted
stock is based on the closing market price of the stock at the grant date. The value of the award that is ultimately expected to vest is recognized as expense on a
straight-line basis over the employee's requisite service period.
Valuation of stock awards requires us to make assumptions and to apply judgment to determine the fair value of the awards. These assumptions and judgments
include estimating the future volatility of our stock price, dividend yields, future employee turnover rates, and future employee stock option exercise behaviors.
Changes in these assumptions can affect the fair value estimate.
Income Taxes
We use the asset and liability method of accounting for income taxes. Deferred tax assets and liabilities are determined based on differences between the
financial reporting and tax bases of assets and liabilities and are measured using the enacted tax rates and laws that are expected to be in effect when the differences
are expected to reverse. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in the period that such tax rate changes are enacted.
The measurement of a deferred tax asset is reduced, if necessary, by a valuation allowance if it is more likely than not that some portion or all of the deferred tax
asset will not be realized. We calculate income tax benefits related to stock-based compensation arrangements using the with and without method.
We use a recognition threshold and a measurement attribute for the financial statement recognition and measurement of tax positions taken or expected to be
taken in a tax return. For those benefits to be recognized, a tax position must be more-likely-than-not to be sustained upon examination by taxing authorities. We
have not identified any uncertain income tax positions that could have a material impact to the consolidated financial statements. We are subject to taxation in
various jurisdictions in the U.S. and remain subject to examination by taxing jurisdictions for the years 1998 and all subsequent periods due to the availability of
net operating loss carryforwards.
We recognize interest and penalties accrued on any unrecognized tax exposures as a component of income tax expense. We did not have any such amounts
accrued as of December 31, 2015, 2014, and 2013.
We consider potential tax effects resulting from discontinued operations and record intra-period tax allocations, when those effects are deemed material.
Earnings/(Loss) per Share
Basic earnings/(loss) per share is computed by dividing net income/(loss) available to common shareholders by the weighted-average number of shares of
common stock outstanding during the period.
Our unvested restricted shares and certain of our outstanding warrants contain non-forfeitable rights to dividends, and therefore are considered to be
participating securities; the calculation of basic and diluted earnings/(loss) per share excludes from the numerator net income (but not net loss) attributable to the
unvested restricted shares and to the participating warrants, and excludes the impact of those shares from the denominator.
69
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
1. DESCRIPTION OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
For purposes of determining diluted earnings/(loss) per share, we have elected a policy to assume that the principal portion of our 3.0% Convertible Senior
Notes due December 1, 2019 (the “Notes,” Note 3) is settled in cash. As such, the principal portion of the Notes has no effect on either the numerator or
denominator when determining diluted earnings/(loss) per share. Any conversion gain is assumed to be settled in shares and is incorporated in diluted
earnings/(loss) per share using the treasury method. The warrants issued in conjunction with the issuance of the Notes are considered to be dilutive when they are
in-the-money relative to our average stock price during the period; the bond hedge purchased in conjunction with the issuance of the Notes is always considered to
be anti-dilutive.
For periods of net income, and when the effects are not anti-dilutive, we calculate diluted earnings per share by dividing net income available to common
shareholders by the weighted-average number of shares outstanding plus the impact of all potential dilutive common shares, consisting primarily of common stock
options, unvested restricted stock awards, stock purchase warrants, and any conversion gain on the Notes, using the treasury stock method. For periods of net loss,
diluted loss per share is calculated similarly to basic loss per share.
The numerator for earnings per share for the years ended December 31, 2015, 2014, and 2013 are calculated for basic and diluted earnings per share as
follows:
(in thousands, except per share amounts)
Net income
Preferred stock dividends
Net income allocated to restricted stock
Net income/(loss) from continuing operations allocated to
common shares
Gain on discontinued operations
Net gain on discontinued operations allocated to warrants
Gain on discontinued operations allocated to common shares
Basic Weighted-Average Shares Outstanding
Dilutive effect of stock options
Dilutive effect of warrants
Diluted Weighted-Average Shares Outstanding
Earnings Per share from Continuing Operations
Earnings Per share from Discontinued Operation
Earnings/(Loss) Per Share
$
$
$
$
$
$
Basic
Year ended December 31,
2014
2015
$
15,375
-
(85)
$
28,747
-
(159)
2013
2015
Diluted
Year ended December 31,
2014
2013
106 $
(4,975)
-
15,375 $
-
(84)
28,747 $
-
(158)
15,290
$
28,588
$
(4,869) $
15,291 $
28,589 $
-
-
-
$
$
-
-
-
$
$
195 $
(1)
194 $
11,370
10,941
5,071
1.34
-
1.34
$
$
2.61
-
2.61
$
$
(0.96) $
0.04
(0.92) $
- $
-
- $
11,370
187
-
11,557
1.32 $
-
1.32 $
- $
-
- $
10,941
71
41
11,053
2.59 $
-
2.59 $
106
(4,975)
-
(4,869)
195
(2)
193
5,071
-
-
5,071
(0.96)
0.04
(0.92)
Anti-dilutive shares consist of out-of-the-money Class C Special stock, out-of-the-money common stock options, common stock options that are anti-dilutive
when calculating the impact of the potential dilutive common shares using the treasury stock method, out-of-the-money warrants exercisable for common stock,
and certain participating securities, if the effect of including both the income allocated to the participating security and the impact of the potential common shares
would be anti-dilutive. The number of anti-dilutive shares, which have been excluded from the computation of diluted earnings (loss) per share and which include
the shares underlying the Notes, were 4.5 million, 4.7 million, and 2.7 million for the years ended December 31, 2015, 2014, and 2013.
70
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
1. DESCRIPTION OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Stock Splits and Other Reclassifications
In July 2013, our Board of Directors and stockholders approved a resolution to effect a one-for-six reverse stock split of our common stock and Class C
Special stock with no corresponding change to the par values. The number of authorized shares of common stock, Class C Special stock and blank check preferred
stock was reduced proportionally. Common stock and Class C Special stock for all periods presented have been adjusted retrospectively to reflect the one-for-six
reverse stock split.
Fair Value of Financial Instruments
Our consolidated balance sheets include various financial instruments (primarily cash and cash equivalents, prepaid expenses, accounts receivable, accounts
payable, accrued expenses, and other current liabilities) that are carried at cost and that approximate fair value. The fair value of our long-term indebtedness is
estimated based on the quoted prices for the same or similar issues, or on the current rates we have been offered for debt of the same remaining maturities. Fair
value is the price that would be received from the sale of an asset or paid to transfer a liability assuming an orderly transaction in the most advantageous market at
the measurement date. U.S. GAAP establishes a hierarchical disclosure framework which prioritizes and ranks the level of observability of inputs used in
measuring fair value. These tiers include:
·
·
·
Level 1—Quoted prices (unadjusted) in active markets that are accessible at the measurement date for identical assets or liabilities. The fair value
hierarchy gives the highest priority to Level 1 inputs.
Level 2—Observable market-based inputs other than quoted prices in active markets for identical assets or liabilities.
Level 3—Unobservable inputs are used when little or no market data is available. The fair value hierarchy gives the lowest priority to Level 3 inputs.
See Note 7 for additional information regarding fair value.
Segment Information
We currently operate in a single business segment.
Recent Accounting Pronouncements
In November 2015, the Financial Accounting Standards Board (“FASB”) issued guidance simplifying the balance sheet classification of deferred taxes. The
new guidance requires that all deferred taxes be presented as noncurrent, rather than separated into current and noncurrent amounts. The guidance is effective for
reporting periods beginning after December 15, 2016 and early adoption is permitted. In addition, the adoption of guidance can be applied either prospectively or
retrospectively to all periods presented. We adopted this guidance for the year ended December 31, 2015 on a retrospective basis, and all periods are presented
under this guidance. The adoption of this new guidance resulted in a reclassification of $7.6 million of current Deferred Tax Assets to noncurrent Deferred Tax
Assets in our consolidated balance sheet as of December 31, 2014.
In July 2015, the FASB issued guidance for inventory. Under the guidance, an entity should measure inventory within the scope of this guidance at the lower
of cost and net realizable value, except when inventory is measured using LIFO or the retail inventory method. Net realizable value is the estimated selling price in
the ordinary course of business, less reasonably predictable costs of completion, disposal, and transportation. In addition, the FASB has amended some of the other
inventory guidance to more clearly articulate the requirements for the measurement and disclosure of inventory. The guidance is effective for reporting periods
beginning after December 15, 2016. The guidance should be applied prospectively, with earlier application permitted. We will adopt the guidance as of January 1,
2016, on a prospective basis. The adoption of this new guidance is not expected to have a material impact on our financial statements.
71
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
1. DESCRIPTION OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
In April 2015, the FASB issued guidance as to whether a cloud computing arrangement (e.g., software as a service, platform as a service, infrastructure as a
service, and other similar hosting arrangements) includes a software license and, based on that determination, how to account for such arrangements. If a cloud
computing arrangement includes a software license, then the customer should account for the software license element of the arrangement consistent with the
acquisition of other software licenses. If a cloud computing arrangement does not include a software license, the customer should account for the arrangement as a
service contract. The guidance is effective for reporting periods beginning after December 15, 2015, and can be adopted on either a prospective or retrospective
basis. We will adopt the guidance as of January 1, 2016, on a prospective basis. The adoption of this new guidance is not expected to have a material impact on our
financial statements.
In April 2015, the FASB issued guidance to simplify the balance sheet disclosure for debt issuance costs. Under the guidance, debt issuance costs related to a
recognized debt liability are presented in the balance sheet as a direct deduction from the carrying amount of that debt liability, in the same manner as debt
discounts, rather than as an asset. The guidance is effective for reporting periods beginning after December 15, 2015 and must be adopted on a retrospective basis.
Early adoption is permitted. We adopted this guidance for the year ended December 31, 2015 on a retrospective basis, and all periods are presented under this
guidance. The adoption of this new guidance resulted in a reclassification of $0.8 million of Prepaid Expenses, a current asset, and $3.3 million of Deferred Loan
Costs, a noncurrent asset, to the Convertible Debt current liability in our consolidated balance sheet as of December 31, 2014.
In May 2014, the FASB issued guidance for revenue recognition for contracts, superseding the previous revenue recognition requirements, along with most
existing industry-specific guidance. The guidance requires an entity to review contracts in five steps: 1) identify the contract, 2) identify performance obligations,
3) determine the transaction price, 4) allocate the transaction price, and 5) recognize revenue. The new standard will result in enhanced disclosures regarding the
nature, amount, timing and uncertainty of revenue arising from contracts with customers. In August 2015, the FASB issued guidance approving a one-year
deferral, making the standard effective for reporting periods beginning after December 15, 2017, with early adoption permitted only for reporting periods
beginning after December 15, 2016. We are currently evaluating the impact, if any, that this new accounting pronouncement will have on our financial statements.
We have evaluated all other issued and unadopted Accounting Standards Updates and believe the adoption of these standards will not have a material impact
on its consolidated results of operations, financial position, or cash flows.
2. BUSINESS COMBINATION
On June 19, 2013, BioSante acquired ANIP in an all-stock, tax-free reorganization. Since the merger we have been operating under the leadership of the ANIP
management team and ANIP's historical results of operations have replaced BioSante's historical results of operations for all periods prior to the Merger.
BioSante issued to ANIP stockholders shares of BioSante common stock such that the ANIP stockholders owned 57% of the combined company’s shares
outstanding, and the former BioSante stockholders owned 43%. In addition, immediately prior to the Merger, BioSante distributed to its then current stockholders
contingent value rights (“CVR”) providing payment rights arising from a future sale, transfer, license or similar transaction(s) involving BioSante’s LibiGel ®
(female testosterone gel).
72
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
2. BUSINESS COMBINATION (Continued)
The Merger was accounted for as a reverse acquisition pursuant to which ANIP was considered the acquiring entity for accounting purposes. As such, ANIP's
historical results of operations replace BioSante's historical results of operations for all periods prior to the Merger. BioSante, the accounting acquiree, was a
publicly-traded pharmaceutical company focused on developing high value, medically-needed products. ANIP entered into the Merger to secure additional capital
and gain access to capital market opportunities as a public company.
The results of operations of both companies are included in our consolidated financial statements for all periods after completion of the Merger.
Transaction Costs
In conjunction with the Merger, we incurred approximately $7.1 million in transaction costs, which were expensed in the periods in which they were incurred.
These costs include:
Category
Legal fees
Accounting fees
Consulting fees
Monitoring and advisory fees
Transaction bonuses
Other
Total transaction costs
(in thousands)
1,227
122
119
390
4,801
429
7,088
$
$
Of the total expenses, $6.2 million was incurred and expensed in the year ended December 31, 2013, $5.5 million as selling, general, and administrative
expense, $0.3 million as interest expense, and $0.4 million as other expense, in the accompanying consolidated statements of earnings. No transaction-related
expenses were incurred in the year ended December 31, 2014 or 2015.
Purchase Consideration and Net Assets Acquired
The fair value of BioSante’s common stock used in determining the purchase price was $1.22 per share, the closing price on June 19, 2013, which resulted in a
total purchase consideration of $29.8 million. The fair value of all additional consideration, including the vested BioSante stock options and CVRs, was
immaterial. The following presents the final allocation of the purchase consideration to the assets acquired and liabilities assumed on June 19, 2013:
Assets acquired
Cash and cash equivalents
Restricted cash
Testosterone Gel NDA (1)
Other tangible assets
Deferred tax assets, net
Goodwill
Liabilities assumed
Accrued severance
Other liabilities
Total purchase consideration $
(in thousands)
29,795
18,198
2,260
10,900
79
-
1,838
33,275
2,965
515
3,480
29,795
Total assets
Total liabilities
Total net assets acquired $
(1)
As part of the Merger, we acquired a testosterone gel product that was licensed to Teva
(the "Testosterone Gel NDA"). In May 2015, we acquired from Teva the approved New
Drug Application ("NDA") for the previously-licensed product (Note 6).
73
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
2. BUSINESS COMBINATION (Continued)
The Testosterone Gel NDA is being amortized on a straight-line basis over its estimated useful life of 11 years. Goodwill, which is not tax deductible since the
transaction was structured as a tax-free exchange, is considered an indefinite-lived asset and relates primarily to intangible assets that do not qualify for separate
recognition. As a result of purchase accounting related to the Merger, we established deferred tax assets of $9.6 million, deferred tax liabilities of $3.9 million, and
a valuation allowance of $5.7 million, netting to deferred tax assets of $0.
Former BioSante operations generated no revenue and no expense in the year ended December 31, 2015 and 2014. Former BioSante operations generated $0.5
million of revenue in a non-recurring payment related to the testosterone gel NDA, and no expense from the acquisition date through December 31, 2013.
Pro Forma Condensed Combined Financial Information (unaudited)
The following unaudited pro forma condensed combined financial information summarizes the results of operations for 2013 as if the Merger had been
completed as of January 1, 2012. Pro forma information reflects adjustments relating to (i) elimination of the interest on ANIP’s senior and equity-linked
securities, (ii) elimination of monitoring and advisory fees payable to two ANIP investors, (iii) elimination of transaction costs, and (iv) amortization of intangibles
acquired. The pro forma amounts do not purport to be indicative of the results that would have actually been obtained if the Merger had occurred as of January 1,
2012 or that may be obtained in the future.
(in thousands)
Net revenues
Net income/(loss)
Year ended December 31,
2013
$
$
30,228
89
3. INDEBTEDNESS
Convertible Senior Notes
In December 2014, we issued $143.8 million of our Notes in a registered public offering. After deducting the underwriting discounts and commissions and
other expenses (including the net cost of the bond hedge and warrant, discussed below), the net proceeds from the offering were approximately $122.6 million. The
Notes pay 3.0% interest semi-annually in arrears on June 1 and December 1 of each year, starting on June 1, 2015, and are due December 1, 2019. The Notes are
convertible into 2,068,792 shares of common stock, based on an initial conversion price of $69.48 per share.
The Notes are convertible at the option of the holder (i) during any calendar quarter beginning after March 31, 2015, if the last reported sale price of the
common stock for at least 20 trading days (whether or not consecutive) during a period of 30 consecutive trading days ending on the last trading day of the
immediately preceding calendar quarter is greater than or equal to 130% of the conversion price on each applicable trading day, (ii) during the five business days
after any five consecutive trading day period in which the trading price per $1,000 principal amount of the Notes for each trading day of such period was less than
98% of the product of the last reported sale price of our common stock and the conversion rate on each such trading day; and (iii) on or after June 1, 2019 until the
second scheduled trading day immediately preceding the maturity date.
Upon conversion by the holders, we may elect to settle such conversion in shares of our common stock, cash, or a combination thereof. As a result of our cash
conversion option, we separately accounted for the value of the embedded conversion option as a debt discount (with an offset to APIC) of $33.6 million. The
value of the embedded conversion option was determined based on the estimated fair value of the debt without the conversion feature, which was determined using
market comparables to estimate the fair value of similar non-convertible debt (Note 7); the debt discount is being amortized as additional non-cash interest expense
using the effective interest method over the term of the Notes.
74
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
3. INDEBTEDNESS (Continued)
Offering costs of $5.5 million were allocated to the debt and equity components in proportion to the allocation of proceeds to the components, as deferred
financing costs and equity issuance costs, respectively. The deferred financing costs of $4.2 million are being amortized as additional non-cash interest expense
using the straight-line method over the term of the debt, since this method was not significantly different from the effective interest method. Pursuant to guidance
issued by the FASB in April 2015, we have classified the deferred financing costs as a direct deduction to the net carrying value of our Convertible Debt. The $1.3
million portion allocated to equity issuance costs was charged to APIC.
A portion of the offering proceeds was used to simultaneously enter into “bond hedge” (or purchased call) and “warrant” (or written call) transactions with an
affiliate of one of the offering underwriters (collectively, the “Call Option Overlay”). We entered into the Call Option Overlay to synthetically raise the initial
conversion price of the Notes to $96.21 per share and reduce the potential common stock dilution that may arise from the conversion of the Notes. The exercise
price of the bond hedge is $69.48 per share, with an underlying 2,068,792 common shares; the exercise price of the warrant is $96.21 per share of our common
stock, also with an underlying 2,068,792 common shares. Because the bond hedge and warrant are both indexed to our common stock and otherwise would be
classified as equity, we recorded both elements as equity, resulting in a net reduction to APIC of $15.6 million.
The carrying value of the Notes is as follows as of December 31:
(in thousands)
Principal amount
Unamortized debt discount
Deferred financing costs
Net Carrying value
2015
2014
143,750 $
(27,016)
(3,307)
113,427 $
143,750
(33,059)
(4,151)
106,540
$
$
The following table sets forth the components of total interest expense related to the Notes recognized in the accompanying consolidated statements of
earnings for the year ended December 31:
(in thousands)
Contractual coupon
Amortization of debt discount
Amortization of finance fees
Capitalized interest
2015
2014
$
$
4,312 $
6,043
844
(56)
11,143 $
252
489
70
-
811
The effective interest rate on the Notes as of December 31, 2015 and 2014 was 7.8% and 7.7%, respectively, on an annualized basis.
4. INVENTORIES
Inventories consist of the following as of December 31:
(in thousands)
Raw materials
Packaging materials
Work-in-progress
Finished goods
Reserve for excess/obsolete inventories
Inventories, net
2015
2014
$
$
10,192 $
998
456
1,897
13,543
(156)
13,387 $
5,056
794
411
1,368
7,629
(111)
7,518
75
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
5. PROPERTY, PLANT, AND EQUIPMENT
Property, Plant, and Equipment consist of the following as of December 31:
(in thousands)
Land
Buildings
Machinery, furniture and equipment
Construction in progress
Less: accumulated depreciation
Property, Plant, and Equipment, net
2015
2014
$
$
87 $
3,682
5,623
2,189
11,581
(4,450)
7,131 $
87
3,682
4,822
426
9,017
(3,794)
5,223
Depreciation expense for the years ended December 31, 2015, 2014, and 2013 totaled $0.7 million, $0.6 million, and $0.5 million, respectively. During the
year ended December 31, 2015, there was $56 thousand of interest capitalized into construction in progress. During the years ended December 31, 2014 and 2013,
there was no material interest capitalized into construction in progress.
6. INTANGIBLE ASSETS
Goodwill
As a result of the Merger (Note 2), we recorded goodwill of $1.8 million in our one reporting unit. We assess the recoverability of the carrying value of
goodwill on an annual basis as of October 31 of each year, and whenever events occur or circumstances changes that would, more likely than not, reduce the fair
value of our reporting unit below its carrying value.
For the goodwill impairment analyses performed at October 31, 2015, 2014, and 2013, we performed qualitative assessments to determine whether it was
more likely than not that our goodwill asset was impaired in order to determine the necessity of performing a quantitative impairment test, under which
management would calculate the asset’s fair value. When performing the qualitative assessments, we evaluated events and circumstances that would affect the
significant inputs used to determine the fair value of the goodwill. Events and circumstances evaluated include: macroeconomic conditions that could affect us,
industry and market considerations for the generic pharmaceutical industry that could affect us, cost factors that could affect our performance, our financial
performance (including share price), and consideration of any company-specific events that could negatively affect us, our business, or our fair value. Based on our
assessments of the aforementioned factors, it was determined that it was more likely than not that the fair value of our one reporting unit is greater than its carrying
amount as of October 31, 2015, 2014, and 2013, and therefore no quantitative testing for impairment was required.
In addition to the qualitative impairment analysis performed at October 31, 2015, there were no events or changes in circumstances that could have reduced the
fair value of our reporting unit below its carrying value from October 31, 2015 to December 31, 2015. No impairment loss was recognized during the years ended
December 31, 2015, 2014, and 2013, and the balance of goodwill was $1.8 million as of both December 31, 2015 and 2014.
76
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
6. INTANGIBLE ASSETS (Continued)
Definite-lived Intangible Assets
Acquisition of Abbreviated New Drug Applications
On December 26, 2013, we entered into an agreement to purchase (the “Teva Purchase Agreement”) Abbreviated New Drug Applications (“ANDAs”) to
produce 31 previously marketed generic drug products from Teva Pharmaceuticals (“Teva”) for $12.5 million in cash and a percentage of future gross profits from
product sales. On January 2, 2014, we paid the first installment of $8.5 million to Teva and we paid the $4.0 million balance on March 6, 2014. The ANDAs are
being amortized in full over their estimated useful lives of 10 years.
In March 2015 we purchased an ANDA from Teva for Flecainide, for $4.5 million in cash and a percentage of future gross profits from product sales. We
accounted for this transaction as an asset purchase. The ANDA is being amortized in full over its estimated useful life of 10 years.
In July 2015, we purchased ANDAs for 22 previously marketed generic drug products from Teva for $25.0 million in cash and a percentage of future gross
profits from product sales. We accounted for this transaction as an asset purchase. The ANDAs are being amortized in full over their estimated useful lives of 10
years.
Acquisition of Product Rights
In August 2014, we entered into an agreement to purchase (the “Vancocin Purchase Agreement”) the product rights to Vancocin from Shire ViroPharma
Incorporated (“Shire”) for $11.0 million in cash. Pursuant to the terms of the Vancocin Purchase Agreement, we acquired the U.S. intellectual property rights and
NDA associated with Vancocin, two related ANDAs, and certain equipment and inventory. The $10.5 million product rights intangible asset is being amortized
over its estimated useful life of 10 years.
In July 2014, we entered into an agreement to purchase (the “Lithobid Purchase Agreement”) the product rights to Lithobid from Noven Therapeutics, LLC
(“Noven”) for $11.0 million in cash at closing, and $1.0 million in cash if certain approvals were received from the FDA on or before June 30, 2015. This $1.0
million contingent payment was paid in January 2015. Pursuant to the terms of the Lithobid Purchase Agreement, we acquired the intellectual property rights and
NDA associated with Lithobid, as well as a small amount of raw material inventory. The $12.0 million product rights intangible asset is being amortized over its
estimated useful life of 10 years.
Testosterone Gel NDA
As part of our 2013 merger with BioSante, we acquired a testosterone gel product that was licensed to Teva (the “Testosterone Gel NDA”). In May 2015, we
acquired from Teva the approved NDA for the previously-licensed product. Pursuant to the terms of the purchase agreement, upon commercialization, we will pay
Teva a royalty of up to $5.0 million, at a rate of 5% of the consideration we receive as a result of commercial sale of the product. We assessed the value of the
Testosterone Gel NDA under the new structure and determined that the asset was not impaired as of the May 2015 acquisition date. We will continue to assess the
asset for potential impairment whenever events or changes in circumstances indicate that the carrying amount may not be recoverable. There were no events or
changes in circumstances during the period from the May 2015 acquisition date to December 31, 2015 that would indicate that the carrying amount may not be
recoverable.
77
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
6. INTANGIBLE ASSETS (Continued)
Marketing and Distribution Rights
In August 2015, we entered into a distribution agreement with IDT Australia Limited (“IDT”) to market several products in the U.S. (the “IDT Agreement”).
The products, all of which are approved ANDAs, require various FDA filings and approvals prior to commercialization. In general, IDT will be responsible for
regulatory submissions to the FDA and the manufacturing of certain products. We made an upfront payment to IDT of $1.0 million and will make additional
milestone payments upon FDA approval for commercialization of certain products. Upon approval, IDT will manufacture some of the products and we will
manufacture the other products. We will market and distribute all the products under our label in the United States, remitting a percentage of profits from sales of
the drugs to IDT. The $1.0 million upfront payment was recorded as a marketing and distribution rights intangible asset and will be amortized in full over its
estimated useful life of seven years.
The components of net definite-lived intangible assets are as follows:
(in thousands)
December 31, 2015
December 31, 2014
Weighted Average
Gross Carrying
Amount
Accumulated
Amortization
Gross Carrying
Amount
Acquired ANDA intangible assets
Product rights
Testosterone gel NDA
Marketing and distribution rights
$
$
42,076 $
22,522
10,900
1,000
76,498 $
(4,287) $
(3,277)
(2,477)
(60)
(10,101) $
Accumulated
Amortization
(1,312)
(1,133)
(1,487)
-
(3,932)
12,577 $
22,522
10,900
-
45,999 $
Amortization
Period
10 years
10 years
11 years
7 Years
Definite-lived intangible assets are stated at cost, net of amortization using the straight line method over the expected useful lives of the intangible assets.
Amortization expense was $6.2 million, $3.3 million, and $0.6 million for the years ended December 31, 2015, 2014, and 2013, respectively.
We test for impairment of definite-lived intangible assets when events or circumstances indicate that the carrying value of the assets may not be recoverable.
No such triggering events were identified in the years ended December 31, 2015, 2014, and 2013, and therefore no impairment loss was recognized during those
periods.
Expected future amortization expense (Note 14) is as follows for the years ending December 31:
(in thousands)
2016
2017
2018
2019
2020
2021 and thereafter
Total
$
$
7,578
7,578
7,578
7,578
7,578
28,507
66,397
78
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
7. FAIR VALUE DISCLOSURES
Fair value is the price that would be received from the sale of an asset or paid to transfer a liability assuming an orderly transaction in the most advantageous
market at the measurement date. U.S. GAAP establishes a hierarchical disclosure framework which prioritizes and ranks the level of observability of inputs used in
measuring fair value.
Financial Assets and Liabilities Measured at Fair Value on a Recurring Basis
The inputs used in measuring the fair value of cash and cash equivalents are considered to be Level 1 in accordance with the three-tier fair value hierarchy.
The fair market values are based on period-end statements supplied by the various banks and brokers that held the majority of our funds. The fair value of short-
term financial instruments (primarily accounts receivable, prepaid expenses, accounts payable, accrued expenses, and other current liabilities) approximate their
carrying values because of their short-term nature. While our Notes are recorded on our consolidated balance sheets at their net carrying value of $113.4 million as
of December 31, 2015, the Notes are being traded on the bond market and their full fair value is $144.5 million, based on their closing price on December 31,
2015, a Level 1 input.
Our CVRs (Note 2) are considered to be contingent consideration and are classified as liabilities. As such, the CVRs were recorded as purchase consideration
at their estimated fair value, using Level 3 inputs, and are marked to market each reporting period until settlement. The fair value of CVRs is estimated using the
present value of management’s projection of the expected payments pursuant to the terms of the CVR agreement, which is the primary unobservable input. If our
projection or expected payments were to increase substantially, the value of the CVRs could increase as a result. The present value of the liability was calculated
using a discount rate of 15%. We determined that the fair value of the CVRs was immaterial as of December 31, 2015 and 2014. We also determined that the
changes in such fair value were immaterial for the years ended December 31, 2015, 2014, and the period from the date of the Merger to December 31, 2013.
Prior to the Merger, ANIP’s warrants to purchase common and preferred stock were classified as derivative liabilities and were measured at fair value using
level 3 inputs. The fair value of stock purchase warrants was determined using a two-step process that included valuing ANIP's equity using both market and
discounted cash flow methods, and then apportioning that value, using an equity allocation model, to each of ANIP's classes of stock. These models require the use
of unobservable inputs such as fair value of ANIP's common and preferred stock, expected term, anticipated volatility, future interest and interest rates, expected
cash flows and the number of outstanding common and preferred shares as of a future date. All such stock purchase warrants expired in connection with the
Merger.
The following table presents our financial assets and liabilities that were accounted for at fair value on a recurring basis as of December 31, 2015 and 2014, by
level within the fair value hierarchy:
(in thousands)
Liabilities
CVRs
Liabilities
CVRs
Description
Fair Value at
December 31, 2015
Level 1
Level 2
Level 3
$
- $
- $
- $
Description
Fair Value at
December 31, 2014
Level 1
Level 2
Level 3
$
- $
- $
- $
-
-
Financial Liabilities Measured at Fair Value on a Non-Recurring Basis
In December 2014, we issued $143.8M of Notes (Note 3). Because we have the option to cash settle the potential conversion of the Notes in cash, we
separated the embedded conversion option feature from the debt feature and account for each component separately, based on the fair value of the debt component
assuming no conversion option. The calculation of the fair value of the debt component required the use of Level 3 inputs, and was determined by calculating the
fair value of similar non-convertible debt, using a theoretical interest rate of 9%. The theoretical interest rate was determined from market comparables to estimate
what the interest rate would have been if there was no conversion option embedded in the Notes. The fair value of the embedded conversion option was calculated
using the residual value method and is classified as equity.
79
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
7. FAIR VALUE DISCLOSURES (Continued)
A portion of the offering proceeds was used to simultaneously enter into “bond hedge” (or purchased call) and “warrant” (or written call) transactions with an
affiliate of one of the offering underwriters (Note 3). The exercise price of the bond hedge is $69.48 per share, with an underlying 2,068,792 common shares; the
exercise price of the warrant is $96.21 per share of our common stock, also with an underlying 2,068,792 common shares. We calculated the fair value of the bond
hedge based on the price we paid to purchase the call. We calculated the fair value of the warrant based on the price at which the affiliate purchased the warrants
from us. Because the bond hedge and warrant are both indexed to our common stock and otherwise would be classified as equity, we recorded both elements as
equity, resulting in a net reduction to APIC of $15.6 million.
Non-Financial Assets and Liabilities Measured at Fair Value on a Recurring Basis
We have no non-financial assets and liabilities that are measured at fair value on a recurring basis.
Non-Financial Assets and Liabilities Measured at Fair Value on a Non-Recurring Basis
We measure our long-lived assets, including property, plant and equipment, intangible assets and goodwill, at fair value on a non-recurring basis. These assets
are recognized at fair value when they are deemed to be other-than-temporarily impaired. No such fair value impairment was recognized in the years ended
December 31, 2015, 2014, and 2013.
Acquired Non-Financial Assets Measured at Fair Value
In July 2015, we purchased from Teva the ANDAs for 22 previously marketed generic drug products for $25.0 million in cash and a percentage of future gross
profits from product sales (Note 6). The value of the ANDAs was based on the total purchase price of $25.0 million. In order to determine the fair value of the
ANDAs, we used the present value of the estimated cash flows related to the product rights, using a discount rate of 10%. The $25.0 million of ANDAs will be
amortized over their 10 year useful lives, and will be tested for impairment when events or circumstances indicate that the carrying value of the assets may not be
recoverable. No such triggering events were identified during the period from the date of acquisition to December 31, 2015 and therefore no impairment loss was
recognized in the year ended December 31, 2015.
In March 2015, we purchased from Teva the ANDA for Flecainide for $4.5 million in cash and a percentage of future gross profits from product sales (Note
6). The value of the ANDA was based on the purchase price of $4.5 million. In order to determine the fair value of the ANDA, we used the present value of the
estimated cash flows related to the product rights, using a discount rate of 10%. The $4.5 million ANDA will be amortized over its 10 year useful life, and will be
tested for impairment when events or circumstances indicate that the carrying value of the asset may not be recoverable. No such triggering events were identified
during the period from the date of acquisition to December 31, 2015 and therefore no impairment loss was recognized in the year ended December 31, 2015.
In August 2014, we acquired from Shire the U.S. product rights associated with Vancocin, certain equipment, and inventory, for total consideration of $11.0
million (Note 6). In addition, we capitalized $0.1 million of legal costs directly related to the transaction. These assets were recorded at their relative fair values,
which were determined based on Level 3 unobservable inputs. In order to determine the fair value of the product rights, we used the present value of the estimated
cash flows related to the product rights, using a discount rate of 10%. The $10.5 million of value assigned to the product rights will be amortized over their 10 year
useful life, and will be tested for impairment when events or circumstances indicate that the carrying value of the assets may not be recoverable. No such triggering
events were identified during the period from the date of acquisition to December 31, 2015 and therefore no impairment loss was recognized in the years ended
December 31, 2014 and 2015. The $0.2 million of value assigned to the equipment was determined based on the amount for which we believe we would be able to
sell the equipment. The equipment will be depreciated over its estimated 10 year useful life, and would be re-valued at the fair value if deemed to be other-than-
temporarily impaired. We recorded $0.4 million of inventory. The value of the raw material inventory was determined based on the most recent purchase price of
the material. The value of the finished goods inventory was determined based on the estimated sales to be generated from the finished goods, less costs to sell,
including a reasonable margin.
80
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
7. FAIR VALUE DISCLOSURES (Continued)
In July 2014, we acquired from Noven the product rights associated with Lithobid, as well as a small amount of raw material inventory, for total consideration
of $12.0 million (Note 6). In addition, we capitalized $45 thousand of legal costs directly related to the transaction. These assets were recorded at their relative fair
values, which were determined based on Level 3 unobservable inputs. In order to determine the fair value of the product rights, we used the present value of the
estimated cash flows related to the product rights, using a discount rate of 10%. The $12.0 million of ANDAs will be amortized over their 10 year useful life, and
will be tested for impairment when events or circumstances indicate that the carrying value of the assets may not be recoverable. No such triggering events were
identified during the period from the date of acquisition to December 31, 2015 and therefore no impairment loss was recognized in the years ended December 31,
2014 and 2015. We recorded $86 thousand of inventory. The value of the raw material inventory was determined based on the most recent purchase price of the
material.
In the first quarter of 2014, we purchased from Teva the ANDAs for 31 previously marketed generic drug products for $12.5 million in cash and a percentage
of future gross profits from product sales (Note 6). The value of the ANDAs was based on the total purchase price of $12.5 million. In order to determine the fair
value of the ANDAs, we used the present value of the estimated cash flows related to the product rights, using a discount rate of 10%. The $12.5 million of
ANDAs will be amortized over their 10 year useful lives, and will be tested for impairment when events or circumstances indicate that the carrying value of the
assets may not be recoverable. No such triggering events were identified during the period from the date of acquisition to December 31, 2015 and therefore no
impairment loss was recognized in the years ended December 31, 2014 and 2015.
8. STOCKHOLDERS’ EQUITY
Authorized shares
We are authorized to issue up to 33.3 million shares of common stock with a par value of $0.0001 per share, 0.8 million shares of class C special stock with a
par value of $0.0001 per share, and 1.7 million shares of undesignated preferred stock with a par value of $0.0001 per share at December 31, 2015.
There were 11.5 million and 11.4 million shares of common stock issued and outstanding as of December 31, 2015 and 2014, respectively.
There were 11 thousand shares of class C special stock issued and outstanding as of December 31, 2015 and 2014. Each share of class C special stock entitles
its holder to one vote per share. Each share of class C special stock is exchangeable, at the option of the holder, for one share of our common stock, at an exchange
price of $90.00 per share, subject to adjustment upon certain capitalization events. Holders of class C special stock are not entitled to receive dividends or to
participate in the distribution of our assets if we were to liquidate, dissolve, or wind-up the company. The holders of class C special stock have no cumulative
voting, preemptive, subscription, redemption or sinking fund rights.
There were no shares of undesignated preferred stock outstanding as of December 31, 2015 and 2014.
Equity Offering
On March 10, 2014, we completed a follow-on public offering of 1.6 million shares of our common stock at a public offering price of $31.00 per share (the
“March 2014 Offering”). We received gross proceeds of $50.0 million, or net proceeds of $46.7 million after deducting costs of $3.3 million, including the
underwriters’ fees and commissions, as well as expenses directly related to the March 2014 Offering. The number of shares sold in the March 2014 Offering
includes the exercise in full by the underwriters of their option to purchase an additional 0.2 million shares of common stock.
Stock Repurchase Program
In October 2015, our Board of Directors authorized a program to repurchase up to $25.0 million of our common stock. The authorization allows for
repurchases to be conducted through open market or privately negotiated transactions through December 31, 2016. We did not purchase any of our common stock
under this program in the year ended December 31, 2015 (Note 14). The stock repurchase program may be suspended, modified or discontinued at any time at our
discretion.
81
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
8. STOCKHOLDERS’ EQUITY (Continued)
Warrants
Warrants to purchase an aggregate of 2.1 million shares of our common stock were outstanding and exercisable as of December 31, 2015:
Issue Date
December 4, 2014
December 5, 2014
Number of
Underlying Shares
of Common Stock
(in thousands)
Per Share
Exercise Price Expiration Date
96.21 March 1, 2020
96.21 March 1, 2020
1,799 $
270 $
All outstanding warrants are classified as equity. No warrants were issued or exercised during the year ended December 31, 2015. Warrants to purchase 405
thousand shares of common stock expired during the year ended December 31, 2015.
In December 2014, we issued 2.1 million warrants in conjunction with the issuance of the Notes (Note 3). In January 2014, warrants to purchase an aggregate
of 20 thousand shares of common stock were exercised at $9.00 per share. In December 2014, warrants to purchase an aggregate of 63 thousand shares of common
stock were exercised at $9.00 per share. Warrants to purchase an aggregate of 198 thousand shares of common stock expired unexercised during the year ended
December 31, 2014.
We issued no warrants in the year ended December 31, 2013. In December 2013, warrants to purchase an aggregate of 90 thousand shares of common stock
were exercised at $9.00 per share. Warrants to purchase an aggregate of 13 thousand shares of common stock expired unexercised during the year ended December
31, 2013.
9. STOCK-BASED COMPENSATION
All equity-based service awards are granted under the ANI Pharmaceuticals, Inc. Amended and Restated 2008 Stock Incentive Plan (the “2008 Plan”). As of
December 31, 2015, 0.5 million shares of our common stock remained available for issuance under the 2008 Plan.
We measure the cost of equity-based service awards based on the grant-date fair value of the award. The cost is recognized over the period during which an
employee is required to provide service in exchange for the award or the requisite service period. We recognize stock-based compensation expense ratably over the
vesting periods of the awards, adjusted for estimated forfeitures.
The following table summarizes stock-based compensation expense included in our consolidated statements of earnings:
(in thousands)
Cost of sales
Research and development
Selling, general, and administrative
Years ended December 31,
2014
2013
2015
$
$
$
82 $
109 $
3,665 $
104 $
69 $
3,250 $
-
-
36
Income tax benefits relating to $2.0 million and $4.4 million of stock-based compensation tax deductions were recognized in our 2015 and 2014 consolidated
statements of earnings, respectively. No income tax benefit was recognized in our 2013 consolidated statements of earnings for stock-based compensation
arrangements.
Stock Options
Outstanding stock options granted to employees generally vest over a period of four years and have 10-year contractual terms. Outstanding stock options
granted to non-employee directors generally vest over a period of one to three years and have 10-year contractual terms. Upon exercise of an option, we issue new
shares of our common stock or issue shares from treasury stock.
82
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
9. STOCK-BASED COMPENSATION (Continued)
For 2015, 2014, and 2013, the fair value of each option grant was estimated on the date of grant using the Black-Scholes option-pricing model, using the
following weighted average assumptions:
Expected option life (years)
Risk-free interest rate
Expected stock price volatility
Dividend yield
2015
5.50 - 6.25
Years Ended December 31,
2014
5.39 - 6.25
1.31% - 1.82%
47.9% - 50.5%
1.55% - 2.03%
50.6% - 55.1%
—
—
2013
6.25
1.72%
55.0%
—
We use the simplified method to estimate the life of options. In 2014, 0.3 million options granted by the board of directors but requiring shareholder approval
were approved at the May 22, 2014 shareholder’s meeting. As a result, the fair values of these options were calculated using the simplified method less the time
between the grant date and the date of the approval, or 5.39 years. The risk-free interest rate used is the yield on a U.S. Treasury note as of the grant date with a
maturity equal to the estimated life of the option. We calculated an estimated volatility rate based on the closing prices of several competitors that manufacture
similar products. We have not issued a cash dividend in the past nor do we have any current plans to do so in the future; and therefore, an expected dividend yield
of zero was used. Forfeitures are estimated at the time of grant and revised through a cumulative catch-up adjustment in the period of change if actual forfeitures
differ from those estimates. For stock options granted during the years ended December 31, 2015, 2014, and 2013, we used an estimated forfeiture rate of zero for
directors and officers and a forfeiture rate of 5.1% for non-officer employees.
On April 16, 2015, the Board of Directors approved grants of options to purchase 47 thousand shares of common stock to our officers and options to purchase
9 thousand shares of common stock to non-employee directors. On October 12, 2015, the Board of Directors approved a grant of options to purchase 3 thousand
shares of common stock to our new board member.
On August 20, 2014, the Board of Directors approved a grant of options to purchase 25 thousand shares of common stock to one of our officers. On April 1,
2014, the Board of Directors approved grants of options to purchase 59 thousand shares of common stock to our officers and options to purchase 16 thousand
shares of common stock to non-employee directors.
On July 12, 2013 and August 1, 2013, our Board of Directors approved grants to employees of stock options to purchase 0.3 million shares of ANI stock under
the 2008 Plan, subject to shareholder approval of an increase in the total shares available for issuance under the 2008 Plan. The increase in total shares was
approved by shareholders at the May 22, 2014 annual meeting, at which time we began recognizing stock-based compensation expense related to these awards.
In 2013, the Board of Directors granted options to purchase 21 thousand shares of common stock and 50 thousand shares of restricted stock to non-officer
directors under the 2008 Plan.
83
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
9. STOCK-BASED COMPENSATION (Continued)
A summary of stock option activity under the Plan during the years ended December 31, 2015, 2014, and 2013 is presented below:
(in thousands, except per share
and remaining term data)
Outstanding December 31, 2012
Net BioSante stock options assumed
Granted
Exercised
Forfeited or expired
Outstanding December 31, 2013
Granted
Options previously granted, approved by
shareholders
Exercised
Forfeited
Expired
Outstanding December 31, 2014
Granted
Exercised
Forfeited
Expired
Outstanding December 31, 2015
Exercisable at December 31, 2015
Vested or expected to vest at December 31,
2015
Option
Shares
Weighted
Average
Exercise Price
-
59.59
6.36 $
-
-
50.35
31.59 $
- $
99
21
-
-
120 $
120
325
(43)
(4)
(60)
458 $
138
(89)
(33)
-
474 $
101 $
464 $
6.39
19.45
6.36
73.96
14.44
62.07 $
9.24
11.81
-
29.40
17.97
29.06
Weighted
Average
Grant-date
Fair Value
Weighted
Average
Remaining
Term
(years)
Aggregate
Intrinsic Value
-
- $
3.40
16.84
30.08
2.4 $
-
81
638
8.7 $
19,472
3,937
10,136
3,069
8.2 $
7.4 $
8.2 $
10,046
As of December 31, 2015, there was $6.8 million of total unrecognized compensation cost related to non-vested stock options granted under the Plan. The
cost is expected to be recognized over a weighted-average period of 2.4 years. During the year ended December 31, 2015, we received $0.8 million in cash from
the exercise of stock options and recorded a $1.5 million tax benefit related to these exercises. During the year ended December 31, 2014, we received $0.8 million
in cash from the exercise of stock options and recorded a $0.6 million tax benefit related to these exercises. During the year ended December 31, 2013, no options
were exercised.
Restricted Stock Awards
On April 16, 2015, the Board of Directors approved grants of 24 thousand shares of restricted stock awards (“RSAs”) to the officers and 4 thousand to the
non-officer directors. The RSAs granted to officers vest one-fourth per year, over four years on the anniversary of the grant date, provided that the officer continues
to serve as an ANI employee on each of the vesting dates. The RSAs granted to non-officer directors vest over a one year period, provided that the grant recipient
continues to serve as an ANI director on the vesting date. Shares of our common stock delivered to the officers and directors will be unrestricted upon vesting.
During the vesting period, the recipient of the restricted stock has full voting rights as a stockholder and would receive dividends, if declared, even though the
restricted stock remains subject to transfer restrictions and will generally be forfeited upon termination of the officer prior to vesting. The fair value of each RSA is
based on the market value of our stock on the date of grant.
84
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
9. STOCK-BASED COMPENSATION (Continued)
On April 1, 2014, the Board of Directors approved grants of 30 thousand shares of restricted stock to our officers. The restricted stock was granted subject to
shareholder approval of an increase in the total restricted stock available for grant under the 2008 Plan. The increase in total restricted stock available for grant
under the 2008 Plan was approved by shareholders at the May 22, 2014 annual meeting and the restricted stock was granted as of May 22, 2014. The RSAs vest
one-fourth per year, over four years on the anniversary of the grant date, provided that the officer continues to serve as an ANI employee on each of the vesting
dates. Shares of our common stock delivered to the officers will be unrestricted upon vesting. During the vesting period, the recipient of the restricted stock has full
voting rights as a stockholder and would receive dividends, if declared, even though the restricted stock remains subject to transfer restrictions and will generally
be forfeited upon termination of the officer prior to vesting. The fair value of each RSA is based on the market value of our stock on the date of grant.
On November 1, 2013, Board of Directors approved grants of 50 thousand restricted stock to the non-officer directors under the 2008 Plan. The RSAs vest
one-third per year, over three years on the anniversary of the grant date, provided that the director continues to serve as an ANI director on each of the vesting
dates. Shares of our common stock delivered to the directors will be unrestricted upon vesting. During the vesting period, the recipient of the restricted stock has
full voting rights as a stockholder and would receive dividends, if declared, even though the restricted stock remains subject to transfer restrictions and will
generally be forfeited upon termination of the director from the board prior to vesting. The fair value of each RSA is based on the market value of our stock on the
date of grant.
A summary of RSA activity under the Plan during the years ended December 31, 2015, 2014, and 2013 is presented below:
(in thousands, except per share
and remaining term data)
Unvested at December 31, 2012
Granted
Vested
Forfeited
Unvested at December 31, 2013
Granted
Vested
Forfeited
Unvested at December 31, 2014
Granted
Vested
Forfeited
Unvested at December 31, 2015
Weighted
Average Grant
Date Fair
Value
Weighted Average
Remaining Term
(years)
Shares
- $
50
-
-
50 $
30
(17)
-
63 $
28
(23)
(5)
63 $
-
10.20
-
-
10.20
29.61
10.20
-
19.34
67.26
15.82
19.41
42.72
2.8
2.6
2.2
As of December 31, 2015, there was $2.1 million of total unrecognized compensation cost related to non-vested RSAs granted under the Plan, which is
expected to be recognized over a weighted-average period of 2.2 years.
85
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
10. INCOME TAXES
Our total provision/(benefit) from income taxes consists of the following for the years ended December 31, 2015, 2014, and 2013:
(in thousands)
2015
2014
2013
Current income tax provision/(benefit):
Federal
State
Total
Deferred income tax (benefit)/provision:
Federal
State
Total
Change in valuation allowance
Excess tax benefit from stock-based compensation awards
Tax provision/(benefit) from continuing operations
Tax provision from discontinued operation
Total provision/(benefit) for income taxes
$
7,264 $
611
7,875
(1,468)
(409)
(1,877)
4,034 $
273
4,307
2,113
154
2,267
-
360
(16,726)
784
6,358
-
6,358 $
(9,368)
-
(9,368) $
$
20
-
20
635
(221)
414
(414)
-
20
38
58
The difference between our expected income tax provision/(benefit) from applying federal statutory tax rates to the pre-tax income/(loss) from continuing
operations and actual income tax provision/(benefit) from continuing operations relates primarily to the effect of the following:
US Federal statutory rate
State taxes, net of Federal benefit
Non-deductible expenses
Domestic production activities deduction
Change in valuation allowance
Change in tax rates and other
Stock-based compensation – windfall tax benefits
Other
Total income tax provision/(benefit)
2015
As of December 31,
2014
2013
35.0%
2.1%
0.1%
(5.3)%
-%
(1.6)%
1.7%
(2.7)%
29.3%
35.0%
1.0%
-%
-%
(86.5)%
(1.2)%
4.0%
(0.7)%
(48.4)%
35.0%
1.0%
245.9%
-%
(300.4)%
34.6%
-%
-%
16.1%
86
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
10. INCOME TAXES (Continued)
Deferred income taxes reflect the net tax effects of differences between the bases of assets and liabilities for financial reporting and income tax purposes. Our
deferred income tax assets and liabilities consisted of the following:
(in thousands)
Deferred tax assets:
Accruals and advances
Bond hedge
Accruals for chargebacks and returns
Inventory
Intangible Asset
Net operating loss carryforward
Other
Total deferred tax assets
Deferred tax liabilities:
Depreciation
Debt discount
Intangible assets
Other
Total deferred tax liabilities
Valuation allowance
Total deferred tax asset, net
As of December 31,
2014
2015
2,153 $
12,243
2,945
1,271
504
7,938
1,149
28,203 $
(700) $
(10,029)
-
(16)
(10,745) $
(142)
17,316 $
2,149
12,677
1,107
618
-
11,798
674
29,023
(587)
(11,892)
(467)
(496)
(13,442)
(142)
15,439
$
$
$
$
$
As of December 31, 2015, we had Federal net operating loss carryforwards of approximately $21.7 million, which expire beginning in 2018, and a portion of
which arose as a result of the Merger. The utilization of the net operating loss carryforwards are limited in future years as prescribed by Section 382 of the U.S.
Internal Revenue Code; our current annual limitation of the Federal net operating loss is approximately $11.3 million per year.
We are required to establish a valuation allowance for deferred tax assets if, based on the weight of available evidence, it is more likely than not that some
portion or all of the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable
income during the periods in which those temporary differences become deductible. We consider the projected future taxable income and tax planning strategies in
making this assessment. As of both December 31, 2015 and 2014, we have provided a valuation allowance against certain state net operating loss carryforwards of
approximately $0.1 million.
We are subject to income taxes in numerous jurisdictions in the U.S. Significant judgment is required in evaluating our tax positions and determining our
provision for income taxes. We establish liabilities for tax-related uncertainties based on estimates of whether, and the extent to which, additional taxes will be due.
These liabilities are established when we believe that certain positions might be challenged despite our belief that our tax return positions are fully supportable. We
adjust these liabilities in light of changing facts and circumstances, such as the outcome of a tax audit. The provision for income taxes includes the impact of
changes to the liability that is considered appropriate. We identified no material uncertain tax positions as of December 31, 2015 and 2014.
We are subject to income tax audits in all jurisdictions for which we file tax returns. Tax audits by their nature are often complex and can require several years
to complete. Neither ANI Pharmaceuticals, Inc. nor any of its subsidiaries is currently under audit in any jurisdiction. All of our income tax returns remain subject
to examination by tax authorities due to the availability of net operating loss carryforwards.
87
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
11. COLLABORATIVE ARRANGEMENTS
RiconPharma LLC
In July 2011, we entered into a collaborative arrangement with RiconPharma LLC (“RiconPharma”). Under the parties' master product development and
collaboration agreement (the “RiconPharma Agreement”), we and RiconPharma have agreed to collaborate in a cost, asset and profit sharing arrangement for the
development, manufacturing, regulatory approval and marketing of certain pharmaceutical products in the United States.
In general, RiconPharma is responsible for developing the products and we are responsible for manufacturing, sales, marketing and distribution of the
products. The parties are jointly responsible for directing any bioequivalence studies. We are responsible for obtaining and maintaining all necessary regulatory
approvals, including the preparation of all ANDAs.
Under the RiconPharma Agreement and unless otherwise specified in an amendment, the parties will own equally all the rights, title and interest in the
products. To the extent permitted by applicable law, we will be identified on the product packaging as the manufacturer and distributor of the product. During the
term of the agreement, both parties are prohibited from developing, manufacturing, selling or distributing any products that are identical or bioequivalent to
products covered under the RiconPharma Agreement.
We recognize the costs incurred with respect to this agreement as expense and classify the expenses based on the nature of the costs. In the year ended
December 31, 2015, 2014, and 2013, we incurred $31 thousand, $0.4 million, and $0.7 million in research and development expenses related to the RiconPharma
Agreement. No revenue has yet been recognized.
Sofgen Pharmaceuticals
August 2013 Sofgen Agreement
In August 2013, we entered into an agreement with Sofgen Pharmaceuticals (“Sofgen”) to develop an oral soft gel prescription product indicated for
cardiovascular health (the “August 2013 Sofgen Agreement”). The product will be subject to an ANDA filing once developed. In general, Sofgen will be
responsible for the development, manufacturing, and regulatory submission of the product, including preparation of the ANDA, and we will make payments based
on the completion of certain milestones. Upon approval, Sofgen will manufacture the drug and we will market and distribute the product under our label in the
United States, remitting a percentage of profits from sales of the drug to Sofgen.
Under the August 2013 Sofgen Agreement, Sofgen will own all the rights, title and interest in the products. During the term, both parties are prohibited from
developing, manufacturing, selling, or distributing any product that is identical or bioequivalent to the product covered under the agreement in the U.S. The
agreement may be terminated or amended under certain specified circumstances.
We recognize the costs incurred with respect to the August 2013 Sofgen Agreement as expense and classify the expenses based on the nature of the costs. In
the years ended December 31, 2015, 2014, and 2013, we incurred $0.4 million, $0.2 million, and $0.2 million in research and development expenses related to the
agreement. We recognized $7 thousand of net revenues related to the agreement in the year ended December 31, 2015.
April 2014 Sofgen Agreement
In April 2014, we entered into a second collaboration agreement with Sofgen to develop an oral soft gel prescription product (the “April 2014 Sofgen
Agreement”). The product will be subject to an ANDA filing once developed. In general, Sofgen will be responsible for the development, manufacturing, and
regulatory submission of the product, including preparation of the ANDA, and we will make payments based on the completion of certain milestones. Upon
approval, Sofgen will manufacture the drug and we will market and distribute the product under our label in the United States, remitting a percentage of profits
from sales of the drug to Sofgen.
88
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
11. COLLABORATIVE ARRANGEMENTS (Continued)
Under the April 2014 Sofgen Agreement, Sofgen will own all the rights, title, and interest in the product. During the term, both parties are prohibited from
developing, selling, or distributing any product in the United States that is identical or bioequivalent to the product covered under the agreement. The agreement
can be terminated or amended under certain specified circumstances. The agreement’s initial term is ten years from the launch of the product, which term will
automatically renew for two year terms until either party terminates the agreement.
We recognize the costs incurred with respect to the April 2014 Sofgen Agreement as expense and classify the expenses based on the nature of the costs. In the
years ended December 31, 2015 and 2014, we incurred $37 thousand and $0.1 million in research and development expenses related to the agreement. No revenue
has yet been recognized.
Dexcel Pharma Technologies Ltd
In June 2014, we entered into a collaboration agreement with Dexcel Pharma Technologies Ltd (“Dexcel”) to commercialize and sell a generic drug product
(the “June 2014 Dexcel Agreement”). The product is subject to FDA approval of an ANDA filing. In general, Dexcel will be responsible for the manufacturing and
regulatory submission of the product, including obtaining approval of the ANDA, and we will make payments based on the completion of certain milestones. Upon
approval, Dexcel will manufacture the drug and we will market and distribute the product under our label in the United States, remitting a percentage of profits
from sales of the drug to Dexcel.
Under the June 2014 Dexcel Agreement, Dexcel will own all the rights, title and interest in the product. During the term agreement, both parties are prohibited
from developing, selling, or distributing any product in the United States that is identical or bioequivalent to the product covered under the agreement. The
agreement can be terminated or amended under certain specified circumstances. The agreement’s initial term is five years from the launch of the product, which
term can be renewed for two year terms if both parties agree, until either party terminates the agreement.
We recognize the costs incurred with respect to the June 2014 Dexcel Agreement as expense and classify the expenses based on the nature of the costs. We
have not yet incurred any material expense related to the agreement and no revenue has yet been recognized.
12. COMMITMENTS AND CONTINGENCIES
Operating Leases
We lease equipment under operating leases that expire in May 2017 and September 2018. We also lease office space under operating leases that expire in
February 2016 and September 2018. We do not intend to renew the lease that expires in February 2016.
For the annual periods after December 31, 2015, approximate minimum annual rental payments under non-cancelable leases are presented below:
(in thousands)
Year
Minimum
Annual Rental
Payments
2016 $
2017
2018
2019
2020
Thereafter
Total $
55
46
31
-
-
-
132
In January 2016, we entered into a lease agreement beginning in March 2016 and ending in April 2021, averaging $3 thousand per month.
Rent expense for the years ended December 31, 2015, 2014, and 2013 totaled $74 thousand, $70 thousand, and $36 thousand, respectively.
89
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
12. COMMITMENTS AND CONTINGENCIES (Continued)
Vendor Purchase Minimums
We have supply agreements with four vendors that include purchase minimums. Pursuant to these agreements, we will be required to purchase a total of $7.8
million of API from these four vendors during the year ended December 31, 2016.
Monitoring and Advisory Fees
Prior to the Merger, we were required to pay monitoring and advisory fees to two investors. A total of $0.5 million was included in other expense in the
accompanying consolidated statements of earnings for the year ended December 31, 2013. These fees were paid quarterly in advance on the first business day of
each calendar quarter.
Included in the $0.5 million above and in conjunction with the Merger, we paid additional monitoring and advisory fees totaling $0.4 million to the same two
investors (Note 2). Upon completion of the Merger, our obligation to pay monitoring and advisory fees was terminated.
Government Regulation
Our products and facilities are subject to regulation by a number of federal and state governmental agencies. The Food and Drug Administration ("FDA"), in
particular, maintains oversight of the formulation, manufacture, distribution, packaging and labeling of all of our products. The Drug Enforcement Administration
("DEA") maintains oversight over our products that are considered controlled substances.
Unapproved Products
Two of our products, Esterified Estrogen with Methyltestosterone (“EEMT”) and Opium Tincture, are marketed without approved New Drug Applications
("NDAs") or Abbreviated New Drug Applications ("ANDAs"). During the years ended December 31, 2015, 2014, and 2013, net revenues for these products
totaled $44.3 million, $29.8 million, and $14.6 million, respectively.
The FDA's policy with respect to the continued marketing of unapproved products is stated in the FDA's September 2011 Compliance Policy Guide Sec.
440.100 titled “Marketed New Drugs without Approved NDAs or ANDAs.” Under this policy, the FDA has stated that it will follow a risk-based approach with
regard to enforcement against such unapproved products. The FDA evaluates whether to initiate enforcement action on a case-by-case basis, but gives higher
priority to enforcement action against products in certain categories, such as those marketed as unapproved drugs with potential safety risks or that lack evidence of
effectiveness. We believe that, so long as we comply with applicable manufacturing standards, the FDA will not take action against us under the current
enforcement policy. There can be no assurance, however, that the FDA will continue this policy or not take a contrary position with any individual product or
group of products. If the FDA were to take a contrary position, we may be required to seek FDA approval for these products or withdraw such products from the
market. If we decide to withdraw the products from the market, our net revenues for generic pharmaceutical products would decline materially, and if we decide to
seek FDA approval, we would face increased expenses and might need to suspend sales of the products until such approval was obtained, and there are no
assurances that we would receive such approval.
In addition, one group of products that we manufacture on behalf of a contract customer is marketed by that customer without an approved NDA. If the FDA
took enforcement action against such customer, the customer may be required to seek FDA approval for the group of products or withdraw them from the market.
Our contract manufacturing revenues for the group of unapproved products for the years ended December 31, 2015, 2014, and 2013 were $1.6 million,
$1.2 million, and $2.0 million, respectively.
We received royalties on the net sales of a group of contract-manufactured products, which are marketed by the contract customer without an approved NDA.
If the FDA took enforcement action against such customer, the customer may be required to seek FDA approval for the group of products or withdraw them from
the market. Our royalties on the net sales of these unapproved products were $0.3 million for each of the three years ended December 31, 2015, 2014, and 2013.
90
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
12. COMMITMENTS AND CONTINGENCIES (Continued)
Louisiana Medicaid Lawsuit
On September 11, 2013, the Attorney General of the State of Louisiana filed a lawsuit in Louisiana state court against numerous pharmaceutical companies,
including us, under various state laws, alleging that each defendant caused the state’s Medicaid agency to provide reimbursement for drug products that allegedly
were not approved by the FDA and therefore allegedly not reimbursable under the federal Medicaid program. The lawsuit relates to three cough and cold
prescription products manufactured and sold by our former Gulfport, Mississippi operation, which was sold in September 2010. Through its lawsuit, the state seeks
unspecified damages, statutory fines, penalties, attorneys’ fees and costs. While we cannot predict the outcome of the lawsuit at this time, we could be subject to
material damages, penalties and fines. We intend to vigorously defend against all claims in the lawsuit.
Other Commitments and Contingencies
All manufacturers of the drug Reglan and its generic equivalent metoclopramide, including ANI, are facing allegations from plaintiffs in various states,
including California, New Jersey, and Pennsylvania, claiming bodily injuries as a result of ingestion of metoclopramide or its brand name, Reglan, prior to the
FDA's February 2009 Black Box warning requirement. In August 2012, we were dismissed with prejudice from all New Jersey cases. We consider our exposure to
this litigation to be limited due to several factors: (1) the only generic metoclopramide that we manufactured prior to the implementation of the FDA's warning
requirement was an oral solution introduced after May 28, 2008; (2) our market share for the oral solution was a very small portion of the overall metoclopramide
market; and (3) once we received a request for change of labeling from the FDA, we submitted our proposed changes within 30 days, and such changes were
subsequently approved by the FDA.
At the present time, we are unable to assess the likely outcome of the cases in the remaining states. Our insurance company has assumed the defense of this
matter. We cannot provide assurances that the outcome of these matters will not have an adverse effect on our business, financial condition, and operating results.
Furthermore, like all pharmaceutical manufacturers, we may be exposed to other product liability claims in the future, which could limit our coverage under future
insurance policies or cause those policies to become more expensive, which could harm our business, financial condition, and operating results.
91
ANI Pharmaceuticals, Inc. and Subsidiaries
Notes to the Consolidated Financial Statements
For the years ended December 31, 2015, 2014, and 2013
13. QUARTERLY FINANCIAL DATA (unaudited)
The following table presents unaudited quarterly consolidated operating results for each of our last eight fiscal quarters. The information below has been
prepared on a basis consistent with our audited consolidated financial statements.
(in thousands, except per share data)
Net revenues
Total operating expenses
Operating income from continuing operations
Net income from continuing operations
Basic and diluted income from continuing operations per share:
Basic income per share from continuing operations
Diluted incomeper share from continuing operations
(in thousands, except per share data)
Net revenues
Total operating expenses
Operating income/(loss) from continuing operations
Net income/(loss) from continuing operations
Basic and diluted income/(loss) from continuing operations per share:
Basic income/(loss) per share from continuing operations
Diluted income/(loss) per share from continuing operations
First
2015 Quarters (unaudited)
Third
Second
Fourth
18,799 $
9,232
9,567
4,369 $
0.38 $
0.38 $
19,516 $
11,102
8,414
3,571 $
0.31 $
0.31 $
19,972 $
11,521
8,451
4,559 $
0.40 $
0.39 $
18,035
11,767
6,268
2,876
0.25
0.25
2014 Quarters (unaudited)
First
Second
Third
Fourth (1)
10,899 $
7,404
3,495
3,359 $
0.33 $
0.33 $
6,647 $
9,107
(2,460)
(2,363) $
(0.21) $
(0.21) $
17,387 $
9,188
8,199
6,746 $
0.59 $
0.59 $
21,037
10,265
10,772
21,005
1.85
1.82
$
$
$
$
$
$
$
$
(1) Net income from continuing operations, Basic income per share from continuing operations, and Diluted income per share from continuing operations for the
fourth quarter of 2014 include the impact of an income tax benefit to reverse $16.7 million of the valuation allowance preiously recorded against our deferred tax
assets.
14. SUBSEQUENT EVENTS
Purchase of Corticotropin and Corticotropin-Zinc NDAs
In September 2015, we entered into an asset purchase agreement with Merck Sharp & Dohme B.V. to purchase the right, title, and interest in the NDAs for
Corticotropin and Corticotropin-Zinc, as well as associated product rights and manufacturing licenses, for $75.0 million in cash and a percentage of future net sales
of the products under the NDAs. The asset acquisition closed in January 2016, and we made the $75.0 million cash payment using cash on hand. In addition, we
capitalized $0.3 million of costs directly related to the transaction. The $75.3 million NDA assets will be amortized over their 10 year useful lives, and will be
tested for impairment when events or circumstances indicate that the carrying value of the assets may not be recoverable.
Purchase of Distribution Rights and Early Stage Development Project
In January 2016, we entered into an agreement to purchase the exclusive U.S. distribution rights for three products from H2-Pharma, LLC, as well as an early
stage development project for a generic injectable drug product, for $10.0 million in consideration.
Purchases under Stock Repurchase Program
In January 2016, we purchased 65 thousand shares for $2.5 million under our stock repurchase program, which program was authorized by our Board of
Directors in October 2015.
92
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None.
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Disclosure controls and procedures are controls and other procedures that are designed to provide reasonable assurance that information required to be
disclosed in our reports filed or submitted under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is recorded, processed, summarized and
reported within the time periods specified in the Securities and Exchange Commission's rules and forms. Disclosure controls and procedures include, without
limitation, controls and procedures designed to provide reasonable assurance that information required to be disclosed in our reports filed under the Exchange Act
is accumulated and communicated to management, including our principal executive officer and principal financial officer, as appropriate, to allow timely
decisions regarding required disclosure.
Our management has carried out an evaluation, under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, of
the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act), as of
December 31, 2015. Based upon that evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that, as of the end of the period covered
by this report, our disclosure controls and procedures were effective.
Management’s Annual Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over our financial reporting. Internal control over financial reporting
is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act as a process designed by, or under the supervision of, a company’s principal executive and
principal financial officers and effected by a company’s board of directors, management, and other personnel to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. GAAP. Our internal control over
financial reporting includes those policies and procedures that:
·
pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect transactions and dispositions of its assets;
·
provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with U.S. GAAP, and
that receipts and expenditures are being made only in accordance with authorizations of management and directors; and
·
provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of assets that could have a material
effect on our consolidated financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with
the policies or procedures may deteriorate.
Management assessed the effectiveness of our internal control over financial reporting as of December 31, 2015. In making this assessment, management used
the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) in Internal Control — Integrated Framework (2013).
Based on this assessment, our management has concluded that, as of December 31, 2015, our internal control over financial reporting is effective based on
those criteria.
The effectiveness of our internal control over financial reporting as of December 31, 2015 has been audited by EisnerAmper LLP, an independent registered
public accounting firm, as stated in their attestation report, which is included herein.
93
Changes in Internal Control over Financial Reporting
There was no change in our internal control over financial reporting during the quarter ended December 31, 2015 that has materially affected, or is reasonably
likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information
None.
94
Item 10. Directors and Executive Officers of the Registrant
PART III
The text of our Code of Ethics, which applies to our principal executive officer, principal financial officer, principal accounting officer or controller, and
persons performing similar functions, is posted on our website, www.anipharmaceuticals.com, under the “Corporate Governance” subsection of the “Investors”
section of the site. We will disclose on our website amendments to, and, if any are granted, waivers of, our Code of Ethics for our principal executive officer,
principal financial officer, or principal accounting officer, controller, or persons performing similar functions.
Information required by this item with respect to our directors will be set forth under the caption “Election of Directors” in our definitive proxy statement for
our 2016 annual meeting, to be filed with the SEC pursuant to Regulation 14A no later than 120 days after the close of our fiscal year, and is incorporated herein
by reference.
Information required by this item with respect to our executive officers will be set forth under the caption “Executive Officers of the Company” in our
definitive proxy statement for our 2016 annual meeting, to be filed with the SEC pursuant to Regulation 14A no later than 120 days after the close of our fiscal
year, and is incorporated herein by reference.
Information required by this item with respect to compliance with Section 16(a) of the Exchange Act will be set forth under the caption “Section 16(a)
Beneficial Ownership Reporting Compliance” in our definitive proxy statement for our 2016 annual meeting, to be filed with the SEC pursuant to Regulation 14A
no later than 120 days after the close of our fiscal year, and is incorporated herein by reference.
Information required by this item with respect to our audit committee, our audit committee financial expert, and any material changes to the way in which our
security holders may recommend nominees to our Board of Directors will be set forth under the caption “Corporate Governance” in our definitive proxy statement
for our 2016 annual meeting, to be filed with the SEC pursuant to Regulation 14A no later than 120 days after the close of our fiscal year, and is incorporated
herein by reference.
Item 11. Executive Compensation
Information required by this item with respect to executive compensation will be set forth under the caption “Executive Compensation” in our definitive proxy
statement for our 2016 annual meeting, to be filed with the SEC pursuant to Regulation 14A no later than 120 days after the close of our fiscal year, and is
incorporated herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Information required by this item with respect to security ownership of certain beneficial owners and management will be set forth under the captions
“Security Ownership of Certain Beneficial Owners” and “Security Ownership of Directors and Executive Officers” in our definitive proxy statement for our 2016
annual meeting, to be filed with the SEC pursuant to Regulation 14A no later than 120 days after the close of our fiscal year, and is incorporated herein by
reference.
Item 13. Certain Relationships and Related Transactions, and Director Independence
Information required by this item with respect to certain relationships and related transactions and director independence will be set forth under the captions
“Certain Relationships and Related Transactions” and “Corporate Governance” in our definitive proxy statement for our 2016 annual meeting, to be filed with the
SEC pursuant to Regulation 14A no later than 120 days after the close of our fiscal year, and is incorporated herein by reference.
Item 14. Principal Accountant Fees and Services
Information required by this item with respect to principal accounting fees and services will be set forth under the caption “Ratification of Selection of
Independent Registered Public Accountants” in our definitive proxy statement for our 2016 annual meeting, to be filed with the SEC pursuant to Regulation 14A
no later than 120 days after the close of our fiscal year, and is incorporated herein by reference.
95
Item 15. Exhibits, Financial Statement Schedules
Documents filed as part of this report on Form 10-K:
(a) Financial Statements:
PART IV.
The consolidated balance sheets of the Registrant as of December 31, 2015 and 2014, the related consolidated statements of earnings, changes in stockholders'
equity, and cash flows for each of the years ended December 31, 2015, 2014, and 2013, the footnotes thereto, and the reports of EisnerAmper LLP,
independent registered public accounting firm, are filed herewith.
(b) Financial Statement Schedules:
All schedules have been omitted because they are not applicable or the required information is included in the consolidated financial statements or notes
thereto.
(c) Exhibits
Exhibits included or incorporated by reference herein: see Exhibit Index on page 98.
96
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its
SIGNATURES
behalf by the undersigned, thereunto duly authorized.
ANI PHARMACEUTICALS, INC.
By:
By:
/s/ Arthur S. Przybyl
Arthur S. Przybyl
President and Chief Executive Officer
(principal executive officer)
Date: February 23, 2016
/s/ Charlotte C. Arnold
Charlotte C. Arnold
Vice President, Finance and
Chief Financial Officer
(principal financial officer)
Date: February 23, 2016
Pursuant to the requirements the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the
capacities and on the dates indicated.
Name
Capacity
/s/ Arthur S. Przybyl
Arthur S. Przybyl
/s/ Robert E. Brown, Jr.
Robert E. Brown, Jr.
/s/ Fred Holubow
Fred Holubow
/s/ Peter A. Lankau
Peter A. Lankau
/s/ Tracy L. Marshbanks, Ph.D.
Tracy L. Marshbanks, Ph.D.
/s/ Thomas A. Penn
Thomas A. Penn
/s/ Daniel Raynor
Daniel Raynor
Director, President and
Chief Executive Officer
Director and Chairman of the Board of
Directors
Director
Director
Director
Director
Director
97
Date
February 23, 2016
February 23, 2016
February 23, 2016
February 23, 2016
February 23, 2016
February 23, 2016
February 23, 2016
ANI PHARMACEUTICALS, INC.
EXHIBIT INDEX TO ANNUAL REPORT ON FORM 10-K
FOR THE YEAR ENDED DECEMBER 31, 2015
Exhibit
No.
2.1
2.2
3.1
Exhibit
Method of Filing
Amended and Restated Agreement and Plan of Merger, dated as of April
12, 2013, by and among BioSante Pharmaceuticals, Inc., ANI Merger
Sub, Inc. and ANIP Acquisition Company (1)
Incorporated by reference to Exhibit 2.1 to ANI's Current Report on
Form 8-K as filed with the Securities and Exchange Commission on
April 12, 2013 (File No. 001-31812)
Asset Purchase Agreement, dated as of December 26, 2013, by and
between ANI Pharmaceuticals, Inc. and Teva Pharmaceuticals USA, Inc.
(2)
Incorporated by reference to Exhibit 2.2 to ANI's Annual Report on
Form 10-K as filed for the fiscal year ended December 31, 2013 (File
No. 001-31812)
Certificate of Amendment of the Restated Certificate of Incorporation of
BioSante Pharmaceuticals, Inc., dated as of July 17, 2013, Certificate of
Amendment of the Restated Certificate of Incorporation of BioSante
Pharmaceuticals, Inc., dated as of June 1, 2012, and Restated Certificate
of Incorporation of BioSante Pharmaceuticals, Inc.
Incorporated by reference to Exhibit 3.1 to ANI's Quarterly Report on
Form 10-Q for the fiscal quarter ended June 30, 2013 (File No. 001-
31812)
3.2
Amended and Restated Bylaws of BioSante Pharmaceuticals, Inc.
4.1
4.2
4.3
Form of Common Stock Purchase Warrant issued by BioSante
Pharmaceuticals, Inc. with an Initial Exercise Date of September 2010
Form of Common Stock Purchase Warrant issued by BioSante
Pharmaceuticals, Inc. with an Initial Exercise Date of June 2010
Form of Common Stock Purchase Warrant issued by BioSante
Pharmaceuticals, Inc. with an Initial Exercise Date of December 2010
Incorporated by reference to Exhibit 3.1 to ANI's Current Report on
Form 8-K as filed with the Securities and Exchange Commission on
June 11, 2010 (File No. 001-31812)
Incorporated by reference to Exhibit 4.1 to ANI's Current Report on
Form 8-K as filed with the Securities and Exchange Commission on
March 5, 2010 (File No. 001-31812)
Incorporated by reference to Exhibit 4.1 to ANI's Current Report on
Form 8-K as filed with the Securities and Exchange Commission on
June 21, 2010 (File No. 001-31812)
Incorporated by reference to Exhibit 4.1 to ANI's Current Report on
Form 8-K as filed with the Securities and Exchange Commission on
December 29, 2010 (File No. 001-31812)
98
Exhibit
No.
4.4
4.5
4.6
Exhibit
Method of Filing
Form of Common Stock Purchase Warrant issued by BioSante
Pharmaceuticals, Inc. with an Initial Exercise Date of August 2012
Incorporated by reference to Exhibit 4.1 to ANI's Current Report on
Form 8-K as filed with the Securities and Exchange Commission on
August 17, 2012 (File No. 001-31812)
Indenture, dated December 10, 2014, between ANI Pharmaceuticals, Inc.
and The Bank of New York Mellon
Incorporated by reference to Exhibit 4.1 to ANI's Current Report on
Form 8-K as filed with the Securities and Exchange Commission on
December 10, 2014 (File No. 001-31812)
First Supplemental Indenture, dated December 10, 2014, between ANI
Pharmaceuticals, Inc. and The Bank of New York Mellon (including the
form of the 3.00% Convertible Senior Note due 2019)
Incorporated by reference to Exhibit 4.2 to ANI's Current Report on
Form 8-K as filed with the Securities and Exchange Commission on
December 10, 2014 (File No. 001-31812)
4.7
Form of Note (included in Exhibit 4.10)
Incorporated by reference to Exhibit 4.2 to ANI's Current Report on
Form 8-K as filed with the Securities and Exchange Commission on
December 10, 2014 (File No. 001-31812)
10.1*
10.2*
10.3*
ANI Pharmaceuticals, Inc. Fourth Amended and Restated 2008 Stock
Incentive Plan
Incorporated by reference to Appendix A to ANI's Definitive Proxy
Statement on Schedule 14A as filed with the Securities and Exchange
Commission on April 11, 2014 (File No. 001-31812)
Form of Incentive Stock Option Agreement under the ANI
Pharmaceuticals, Inc. Fourth Amended and Restated 2008 Stock
Incentive Plan (included in Exhibit 10.1)
Incorporated by reference to Appendix A to ANI's Definitive Proxy
Statement on Schedule 14A as filed with the Securities and Exchange
Commission on April 11, 2014 (File No. 001-31812)
Form of Non-Statutory Option Agreement under the ANI
Pharmaceuticals, Inc. Fourth Amended and Restated 2008 Stock
Incentive Plan (included in Exhibit 10.1)
Incorporated by reference to Appendix A to ANI's Definitive Proxy
Statement on Schedule 14A as filed with the Securities and Exchange
Commission on April 11, 2014 (File No. 001-31812)
10.4*
BioSante Pharmaceuticals, Inc. Amended and Restated 1998 Stock Plan
10.5*
Form of Incentive Stock Option Agreement Under the BioSante
Pharmaceuticals, Inc. Amended and Restated 1998 Stock Plan
Incorporated by reference to Exhibit 10.1 to ANI's Current Report on
Form 8-K as filed with the Securities and Exchange Commission on
June 12, 2006 (File No. 001-31812)
Incorporated by reference to Exhibit 10.30 to ANI's Annual Report on
Form 10-KSB for the fiscal year ended December 31, 2003 (File
No. 001-31812)
99
Exhibit
No.
10.6*
Exhibit
Method of Filing
Form of Non-Statutory Stock Option Agreement Under the BioSante
Pharmaceuticals, Inc. Amended and Restated 1998 Stock Plan
Incorporated by reference to Exhibit 10.31 to ANI's Annual Report on
Form 10-KSB for the fiscal year ended December 31, 2003 (File
No. 001-31812)
10.7*
Form of Indemnification Agreement between BioSante
Pharmaceuticals, Inc. and each of its Directors and Executive Officers
Incorporated by reference to Exhibit 10.30 to ANI's Annual Report on
Form 10-K for the fiscal year ended December 31, 2007 (File No. 001-
31812)
10.8
10.9
10.10
10.11
10.12
10.13
10.14
License Agreement, dated June 13, 2000, between Permatec
Technologie, AG (renamed as Antares Pharma IPL AG) and BioSante
Pharmaceuticals, Inc. (2)
Incorporated by reference to Exhibit 10.27 to ANI's Annual Report on
Form 10-K for the fiscal year ended December 31, 2010 (File No. 001-
31812)
Amendment No. 1 to the License Agreement, dated May 20, 2001, by
and between Antares Pharma IPL AG and BioSante
Pharmaceuticals, Inc. (2)
Incorporated by reference to Exhibit 10.28 to ANI's Annual Report on
Form 10-K for the fiscal year ended December 31, 2010 (File No. 001-
31812)
Amendment No. 2 to the License Agreement, dated July 5, 2001,
between Antares Pharma IPL AG and BioSante Pharmaceuticals, Inc. (2)
Incorporated by reference to Exhibit 10.19 to ANI's Annual Report on
Form 10-KSB40 for the fiscal year ended December 31, 2001 (File
No. 0-28637)
Amendment No. 3 to the License Agreement, dated August 30,
2001, between Antares Pharma IPL AG and BioSante
Pharmaceuticals, Inc. (2)
Incorporated by reference to Exhibit 10.30 to ANI's Annual Report on
Form 10-K for the fiscal year ended December 31, 2010 (File No. 001-
31812)
Amendment No. 4 to the License Agreement, dated August 8, 2002,
between Antares Pharma IPL AG and BioSante Pharmaceuticals, Inc. (2)
Incorporated by reference to Exhibit 10.31 to ANI's Annual Report on
Form 10-K for the fiscal year ended December 31, 2010 (File No. 001-
31812)
Amendment No. 5 to the License Agreement, dated December 30, 2002,
between Antares Pharma IPL AG and BioSante Pharmaceuticals, Inc.
Incorporated by reference to Exhibit 10.32 to ANI's Annual Report on
Form 10-K for the fiscal year ended December 31, 2010 (File No. 001-
31812)
Amendment No. 6 to the License Agreement, dated October 20,
2006, between Antares Pharma IPL AG and BioSante
Pharmaceuticals, Inc. and Letters, dated October 27, 2006, November 6,
2006, and November 7, 2006, from BioSante Pharmaceuticals to Antares
Pharma IPL AG Regarding the License Agreement (2)
Incorporated by reference to Exhibit 10.33 to ANI's Annual Report on
Form 10-K for the fiscal year ended December 31, 2010 (File No. 001-
31812)
100
Exhibit
No.
10.15
10.16
10.17
10.18
10.19
10.20
10.21
10.22
Exhibit
Method of Filing
License Agreement, dated December 3, 2008, by and between BioSante
Pharmaceuticals, Inc. and Azur Pharma International II Limited (2)
Incorporated by reference to Exhibit 10.1 to ANI's Current Report on
Form 8-K/A as filed with the Securities and Exchange Commission on
June 7, 2010 (File No. 001-31812)
Amendment No. 1 to License Agreement and Asset Purchase Agreement,
dated November 30, 2009, by and between BioSante
Pharmaceuticals, Inc. and Azur Pharma International II Limited (2)
Incorporated by reference to Exhibit 10.2 to ANI's Current Report on
Form 8-K/A as filed with the Securities and Exchange Commission on
June 7, 2010 (File No. 001-31812)
Development and License Agreement, dated December 27, 2002,
between BioSante Pharmaceuticals, Inc. and Teva Pharmaceuticals
USA, Inc.
Incorporated by reference to Exhibit 10.2 to ANI's Quarterly Report on
Form 10-Q for the fiscal quarter ended September 30, 2012 (File
No. 001-31812)
First Amendment to Development and License Agreement, dated
March 13, 2003, between BioSante Pharmaceuticals, Inc. and Teva
Pharmaceuticals USA, Inc.
Incorporated by reference to Exhibit 10.3 to ANI's Quarterly Report on
Form 10-Q for the fiscal quarter ended September 30, 2012 (File
No. 001-31812)
Letter Agreement, dated June 4, 2007, between BioSante
Pharmaceuticals, Inc. and Teva Pharmaceuticals USA, Inc. Regarding
Development and License Agreement between Teva Pharmaceuticals
USA, Inc. and BioSante Pharmaceuticals, Inc. effective December 27,
2002
Incorporated by reference to Exhibit 10.4 to ANI's Quarterly Report on
Form 10-Q for the fiscal quarter ended September 30, 2012 (File
No. 001-31812)
Third Amendment to Development and License Agreement, effective
October 18, 2012, by and between Teva Pharmaceuticals USA, Inc. and
BioSante Pharmaceuticals, Inc.
Incorporated by reference to Exhibit 10.5 to ANI's Quarterly Report on
Form 10-Q for the fiscal quarter ended September 30, 2012 (File
No. 001-31812)
Department of Veterans Affairs Federal Supply Schedule Contract
Award to ANIP Acquisition Company, d/b/a ANI Pharmaceuticals, Inc.,
effective July 15, 2012, and Product Number Change Request, dated
August 22, 2012
Incorporated by reference to Exhibit 10.54 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
Sublicense Agreement, dated as of October 30, 2009, by and between
ANIP Acquisition Company, d/b/a ANI Pharmaceuticals, Inc., and Jazz
Pharmaceuticals, Inc. (2)
Incorporated by reference to Exhibit 10.55 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
101
Exhibit
No.
10.23
10.24
10.25
10.26
10.27
10.28*
10.29*
Exhibit
Method of Filing
Master Product Development and Collaboration Agreement, dated as of
July 11, 2011, by and among ANIP Acquisition Company d/b/a ANI
Pharmaceuticals, Inc. and RiconPharma LLC (2)
Incorporated by reference to Exhibit 10.57 to ANI's Amendment No. 1 to
Registration Statement on Form S-4 as filed with the Securities and
Exchange Commission on January 18, 2013 (File No. 333-185391)
Amended and Restated Manufacturing and Supply Agreement, dated as
of June 10, 2008, between ANIP Acquisition Company, d/b/a ANI
Pharmaceuticals, Inc., and Alaven Pharmaceuticals, LLC. and Addendum
No. 1 thereto, dated as of December 1, 2010, and Addendum No. 2
thereto, dated as of July 10, 2012 (2)
Generic Wholesale Service Agreement, dated as of May 1, 2006,
between ANI Pharmaceuticals, Inc. and Cardinal Health, First
Amendment to Generic Wholesale Service Agreement, dated as of July
10, 2008, Letter Agreement, dated as of July 10, 2008, regarding
assignment of the Generic Wholesale Service Agreement to ANIP
Acquisition Company, d/b/a ANI Pharmaceuticals, Inc., Letter from
Cardinal Health, dated December 22, 2008 Regarding Increase in Base
Service Fee, and Second Amendment to Generic Wholesale Service
Agreement, dated May 7, 2012 (2)
Incorporated by reference to Exhibit 10.58 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
Incorporated by reference to Exhibit 10.59 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
Development, Manufacturing and Supply Agreement, dated as of
February 5, 2009, by and between ANI Pharmaceuticals, Inc. and County
Line Pharmaceuticals, LLC, and Addendum to Development,
Manufacturing and Supply Agreement, dated as of June 12, 2012 (2)
Incorporated by reference to Exhibit 10.60 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
Manufacturing Transfer and Supply Agreement, dated March 31, 2010,
by and between ANIP Acquisition Company, d/b/a ANI Pharmaceuticals,
Inc., and County Line Pharmaceuticals, LLC, and Addendum to
Manufacturing Transfer and Supply Agreement, dated as of June 12,
2012 (2)
Incorporated by reference to Exhibit 10.61 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
Employment Letter Agreement, dated February 25, 2009, by and
between ANIP Acquisition Company, d/b/a ANI Pharmaceuticals,
Inc., and Arthur S. Przybyl
Incorporated by reference to Exhibit 10.62 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
Employment Letter Agreement, dated May 6, 2009, by and between
ANIP Acquisition Company, d/b/a ANI Pharmaceuticals, Inc., and
Charlotte C. Arnold
Incorporated by reference to Exhibit 10.63 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
102
Exhibit
No.
10.30*
Exhibit
Method of Filing
Employment Agreement, dated as of May 1, 2007, by and between ANIP
Acquisition Company and James Marken
10.31*
Transaction Bonus Agreement, dated September 22, 2012, by and
between ANIP Acquisition Company and Arthur Przybyl
10.32*
Transaction Bonus Agreement, dated September 22, 2012, by and
between ANIP Acquisition Company and Charlotte Arnold
10.33*
Transaction Bonus Agreement, dated September 22, 2012, by and
between ANIP Acquisition Company and James Marken
10.34*
Transaction Bonus Agreement, dated September 22, 2012, by and
between ANIP Acquisition Company and Robert Jamnick
Incorporated by reference to Exhibit 10.64 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
Incorporated by reference to Exhibit 10.65 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
Incorporated by reference to Exhibit 10.66 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
Incorporated by reference to Exhibit 10.67 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
Incorporated by reference to Exhibit 10.68 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
10.35
10.36
Letter Agreement regarding fee payment, dated as of October 3, 2012, by
and between ANIP Acquisition Company and MVP Management
Company
Incorporated by reference to Exhibit 10.69 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
Letter Agreement regarding fee payment, dated as of October 3, 2012, by
and between ANIP Acquisition Company and Healthcare Value Capital
LLC
Incorporated by reference to Exhibit 10.70 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
103
Exhibit
No.
Exhibit
Method of Filing
10.37
Loan and Security Agreement, dated June 6, 2012, between Alostar Bank
of Commerce and ANIP Acquisition Company
Incorporated by reference to Exhibit 10.71 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
10.38
Note Purchase Agreement, dated as of January 28, 2011, between ANIP
Acquisition Company, Meridian Venture Partners II, L.P. and the other
parties thereto
Incorporated by reference to Exhibit 10.72 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on December 11, 2012 (File No. 333-185391)
10.39*
Amendment No. 1 to Transaction Bonus Agreement, dated December 28,
2012, by and between ANIP Acquisition Company and Arthur S. Przybyl
10.40*
Amendment No. 1 to Transaction Bonus Agreement, dated December 28,
2012, by and between ANIP Acquisition Company and Charlotte Arnold
Incorporated by reference to Exhibit 10.73 to ANI's Amendment No. 1 to
Registration Statement on Form S-4 as filed with the Securities and
Exchange Commission on January 18, 2013 (File No. 333-185391)
Incorporated by reference to Exhibit 10.74 to ANI's Amendment No. 1 to
Registration Statement on Form S-4 as filed with the Securities and
Exchange Commission on January 18, 2013 (File No. 333-185391)
10.41*
Amendment No. 2 to Transaction Bonus Agreement, dated April 12,
2013, by and between ANIP Acquisition Company and Arthur Przybyl
10.42*
Amendment No. 2 to Transaction Bonus Agreement, dated April 12,
2013, by and between ANIP Acquisition Company and Charlotte Arnold
10.43*
Amendment No. 1 to Transaction Bonus Agreement, dated April 12,
2013, by and between ANIP Acquisition Company and James Marken
10.44*
Amendment No. 1 to Transaction Bonus Agreement, dated April 12,
2013, by and between ANIP Acquisition Company and Robert Jamnick
Incorporated by reference to Exhibit 10.81 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on April 26, 2013 (File No. 333-188174)
Incorporated by reference to Exhibit 10.82 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on April 26, 2013 (File No. 333-188174)
Incorporated by reference to Exhibit 10.83 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on April 26, 2013 (File No. 333-188174)
Incorporated by reference to Exhibit 10.84 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on April 26, 2013 (File No. 333-188174)
104
Exhibit
No.
10.45
Exhibit
Method of Filing
First Amendment to Loan and Security Agreement, dated as of April 11,
2013, between Alostar Bank of Commerce and ANIP Acquisition
Company
Incorporated by reference to Exhibit 10.85 to ANI's Registration
Statement on Form S-4 as filed with the Securities and Exchange
Commission on April 26, 2013 (File No. 333-188174)
10.46*
Amendment No. 3 to Transaction Bonus Agreement, dated as of June 18,
2013, by and between ANIP Acquisition Company and Arthur S. Przybyl
10.47*
Amendment No. 3 to Transaction Bonus Agreement, dated as of June 18,
2013, by and between ANIP Acquisition Company and Charlotte Arnold
Incorporated by reference to Exhibit 10.1 to ANI's Current Report on
Form 8-K as filed with the Securities and Exchange Commission on June
21, 2013 (File No. 001-31812)
Incorporated by reference to Exhibit 10.2 to ANI's Current Report on
Form 8-K as filed with the Securities and Exchange Commission on June
21, 2013 (File No. 001-31812)
10.48*
Employment Letter Agreement, dated July 12, 2013, by and between
ANIP Acquisition Company d/b/a ANI Pharmaceuticals, Inc. and Robert
Schrepfer
Incorporated by reference to Exhibit 10.52 to ANI's Annual Report on
Form 10-K for the fiscal year ended December 31, 2013 (File No. 001-
31812)
10.49
10.50
10.51
10.52
10.53
Asset Purchase Agreement between Noven Therapeutics, LLC and ANI
Pharmaceuticals, Inc., dated as of July 1, 2014 (2)
Incorporated by reference to Exhibit 10.1 to ANI's Quarterly Report on
Form 10-Q for the fiscal quarter ended September 30, 2014 (File
No. 001-31812)
Asset Purchase Agreement, dated as of August 1, 2014, among ANI
Pharmaceuticals, Inc. and Shire Viropharma Incorporated (2)
Incorporated by reference to Exhibit 10.2 to ANI's Quarterly Report on
Form 10-Q for the fiscal quarter ended September 30, 2014 (File
No. 001-31812)
Convertible note hedge transaction confirmation, dated December 4,
2014, by and between Nomura Global Financial Products Inc. and ANI
Warrant transaction confirmation, dated December 4, 2014, by and
between Nomura Global Financial Products Inc. and ANI
Incorporated by reference to Exhibit 10.1 to ANI's Current Report on
Form 8-K as filed with the Securities and Exchange Commission on
December 8, 2014 (File No. 001-31812)
Incorporated by reference to Exhibit 10.2 to ANI's Current Report on
Form 8-K as filed with the Securities and Exchange Commission on
December 8, 2014 (File No. 001-31812)
Additional convertible note hedge transaction confirmation, dated
December 5, 2014, by and between Nomura Global Financial Products
Inc. and ANI
Incorporated by reference to Exhibit 10.3 to ANI's Current Report on
Form 8-K as filed with the Securities and Exchange Commission on
December 10, 2014 (File No. 001-31812)
105
Exhibit
No.
10.54
10.55
10.56
21
23.1
31.1
31.2
32.1
101
Exhibit
Method of Filing
Additional warrant transaction confirmation, dated December 5, 2014, by
and between Nomura Global Financial Products Inc. and ANI
Incorporated by reference to Exhibit 10.4 to ANI's Current Report on
Form 8-K as filed with the Securities and Exchange Commission on
December 10, 2014 (File No. 001-31812)
Amendment No. 2 to Asset Purchase Agreement, dated as of July 10,
2015, between Teva Pharmaceuticals, Inc. and ANI Pharmaceuticals, Inc.
(2)
Incorporated by reference to Exhibit 10.1 to ANI's Quarterly Report on
Form 10-Q for the fiscal quarter ended September 30, 2015 (File No.
001-31812)
Asset Purchase Agreement, dated as of September 18, 2015, between
Merck Sharp & Dohme B.V. and ANI Pharmaceuticals, Inc. (2)
Incorporated by reference to Exhibit 10.2 to ANI's Quarterly Report on
Form 10-Q for the fiscal quarter ended September 30, 2015 (File No.
001-31812)
List of subsidiaries
Consent of EisnerAmper LLP
Filed herewith
Filed herewith
Certification of Chief Executive Officer Pursuant to SEC Rule 13a-14
Filed herewith
Certification of Chief Financial Officer Pursuant to SEC Rule 13a-14
Filed herewith
Certification of Chief Executive Officer and Chief Financial Officer
Pursuant to Rule 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
Furnished herewith
The following materials from ANI Pharmaceuticals, Inc.’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2015,
formatted in XBRL (Extensible Business Reporting Language): (i) the
audited consolidated Balance Sheets, (ii) the audited consolidated
Statements of Earnings, (iii) the audited consolidated Statements of
Stockholders’ Equity; (iv) the audited consolidated Statements of Cash
Flows, and (v) Notes to consolidated Financial Statements.
Filed herewith
(1) All exhibits to this exhibit have been omitted pursuant to Item 601(b)(2) of Regulation S-K. ANI will furnish the omitted exhibits to the SEC upon request by
the SEC.
(2) Confidential treatment has been granted with respect to redacted portions of this document.
* Management contract or compensatory plan or arrangement required to be filed as an exhibit to this Annual Report on Form 10-K pursuant to Item 15(a).
106
ANI PHARMACUTICALS, INC.
Exhibit 21
The following is a list of subsidiaries of ANI Pharmaceuticals, Inc., omitting subsidiaries which, considered in the aggregate as a single subsidiary, would not
constitute a significant subsidiary, as of December 31, 2015:
Name
ANIP Acquisition Company
State of Incorporation
Delaware
Consent of Independent Registered Public Accounting Firm
Exhibit 23.1
We consent to the incorporation by reference in the Registration Statements of ANI Pharmaceuticals, Inc. on Form S-8 (Nos. 333-53384, 333-100238, 333-109474,
333-151663, 333-168842, 333-174596, 333-182011, 333-151660, and 333-196518) and on Form S-3 (No. 333-195949) of our reports dated February 23, 2016, on
our audits of the consolidated financial statements as of December 31, 2015 and 2014 and for each of the years in the three-year period ended December 31, 2015,
and the effectiveness of ANI Pharmaceuticals, Inc. and Subsidiaries’ internal control over financial reporting as of December 31, 2015, which reports are included
in this Annual Report on Form 10-K to be filed on or about February 23, 2016.
/s/ EisnerAmper LLP
New York, New York
February 23, 2016
Exhibit 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Arthur S. Przybyl, certify that:
1.
2.
3.
4.
I have reviewed this Annual Report on Form 10-K of ANI Pharmaceuticals, Inc.;
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange
Act Rules 13a–15(e) and 15d–15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a–15(f) and 15d–15(f)) for the
registrant and have:
(a)
(b)
(c)
(d)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles;
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent
fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
(b)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control
over financial reporting.
Date: February 23, 2016
/s/ Arthur S. Przybyl
Arthur S. Przybyl
President and Chief Executive Officer
Exhibit 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Charlotte C. Arnold, certify that:
1.
2.
3.
4.
I have reviewed this Annual Report on Form 10-K of ANI Pharmaceuticals, Inc.;
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange
Act Rules 13a–15(e) and 15d–15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a–15(f) and 15d–15(f)) for the
registrant and have:
(a)
(b)
(c)
(d)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles;
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent
fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
(b)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control
over financial reporting.
Date: February 23, 2016
/s/ Charlotte C. Arnold
Charlotte C. Arnold
Vice President, Finance and Chief Financial Officer
CERTIFICATION
PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED
PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 32.1
In connection with the Annual Report on Form 10-K of ANI Pharmaceuticals, Inc. (the "Company") for the year ended December 31, 2015 (the "Report") as
filed with the Securities and Exchange Commission on the date hereof, the undersigned Chief Executive Officer and Chief Financial Officer of the Company
hereby certify that, to such officer’s knowledge:
(1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
This certification is provided solely pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
Dated: February 23, 2016
Dated: February 23, 2016
/s/ Arthur S. Przybyl
Arthur S. Przybyl
President and
Chief Executive Officer
(principal executive officer)
/s/ Charlotte C. Arnold
Charlotte C. Arnold
Vice President, Finance and
Chief Financial Officer
(principal financial officer)
A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to
the Securities and Exchange Commission or its staff upon request.