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As filed with the Securities and Exchange Commission on October 19, 2012.
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
UNIGENE LABORATORIES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 2833 22-2328609
(State or Other Jurisdiction of Incorporation (Primary Standard Industrial Classification (I.R.S. Employer Identification No.)
or Organization) Code Number)
81 Fulton Street
Boonton, New Jersey 07005
(973) 265-1100
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Ashleigh Palmer
Chief Executive Officer
Unigene Laboratories, Inc.
81 Fulton Street
Boonton, New Jersey 07005
(973) 265-1100
(Name, address including zip code, and telephone number, including area code, of agent for service)
With a copy to:
Edward P. Bromley III, Esq.
Reed Smith LLP
136 Main Street, Suite 250
Princeton, New Jersey 08540
(609) 987-0050
Approximate date of commencement of proposed sale to the public : From time to time after this Registration Statement becomes
effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box:
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering.
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the
Securities Act registration number of the earlier effective registration statement for the same offering.
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act. (Check one): Large accelerated filer Accelerated filer Non-accelerated filer (Do not check if a smaller reporting
company) Smaller reporting company
CALCULATION OF REGISTRATION FEE
Proposed Maximum
Title of Securities to be Amount to be Offering Price Proposed Maximum Aggregate Amount of
Registered Registered (2) Per Share Offering Price Registration Fee
Common Stock,
par value $.01 per share (1) 161,739,676 $0.27275 (3) $44,114,496.63 (3) $6,017.21 (4)
(1) Each share of common stock includes a right to purchase one ten-thousandth of a share of common stock.
(2) This Registration Statement registers the offer and sale of 161,739,676 shares of common stock, par value $.01 per share of the
Registrant, of which 153,093,862 will be issuable upon the conversion of senior secured convertible notes previously issued by the
Registrant. Pursuant to Rule 416 under the Securities Act of 1933, as amended, the number of shares registered hereby includes such
additional number of shares of common stock as are required to prevent dilution resulting from stock splits, stock dividends or similar
transactions.
(3) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) based on the average of the high and low
prices of the common stock reported on the OTC Bulletin Board on October 17, 2012.
(4) Pursuant to Rule 457(p) under the Securities Act of 1933, as amended, $2,006.93 in fees from a prior Registration Statement on Form
S-1 (Registration No. 333-166850) f iled on May 14, 2010 (which relates to $115.41 of the offset amount) and amended by Amendment
No.1 to Form S-1 filed on July 6, 2010 (which relates to $1,891.52 of the offset amount) of the registrant that was subsequently
converted by Post-Effective Amendment No. 1 to Form S-1 on Form S-3 into a Registration Statement on Form S-3 (the “Previous
Registration Statement”) , were used to offset the registration fee associated with this filing.
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the prospectus included in this Registration Statement is a combined
prospectus relating to 161,739,676 shares of common stock, including 80,979,026 shares of common stock which are registered hereby and
80,760,650 shares of common stock which were previously registered under the Previous Registration Statement. The Previous Registration
Statement was declared effective on July 13, 2010, and the registration fee for the shares covered by the Previous Registration Statement has
been previously paid. Upon effectiveness, this Registration Statement shall act as a post-effective amendment to the Previous Registration
Statement. This Registration Statement is also being filed to convert the Previous Registration Statement from a registration statement on Form
S-3 into a registration statement on Form S-1.
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until
the Registrant has filed a further amendment that specifically states that the Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on
such date as the Commission acting pursuant to said section 8(a), may determine.
EXPLANATORY NOTE
The registrant filed a registration statement on Form S-1 (Registration No. 333-166850) on July 6, 2010 (the “Previous Registration
Statement”) in order to register 80,760,650 shares of its common stock, which included the Shares, the Exchange Shares and the Other Shares
(each as defined herein) and 72,114,836 shares issuable upon the conversion of the 2010 Notes (as defined herein). The Previous Registration
Statement was declared effective on July 13, 2010. On March 23, 2011, the registrant filed a Post-Effective Amendment No. 1 to Form S-1 on
Form S-3 to convert the Previous Registration Statement from a Form S-1 into a registration statement on Form S-3.
This Registration Statement is being filed by the registrant to (i) register 80,979,026 additional shares of the registrant’s common stock issuable
upon the conversion of the Re-issued Notes and the First Amendment Note (each as defined herein), which were not registered pursuant to the
Previous Registration Statement; and (ii) to convert the Previous Registration Statement from a Form S-3 into a registration statement on Form
S-1.
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the prospectus included in this Registration Statement is a combined
prospectus relating to 161,739,676 shares of common stock, including 80,979,026 shares of common stock which are registered hereby and
80,760,650 shares of common stock which were previously registered under the Previous Registration Statement. Upon effectiveness, this
Registration Statement will act as a post-effective amendment to the Previous Registration Statement.
The information in this prospectus is not complete and may be changed. The selling stockholders may not sell these securities until the
registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these
securities and is not soliciting an offer to buy these securities in any state or jurisdiction where the offer or sale is not permitted.
Subject to completion, dated October 19, 2012
Prospectus
UNIGENE LABORATORIES, INC.
161,739,676 Shares of Common Stock
This prospectus relates to the sale of up to 161,739,676 shares of Unigene Laboratories, Inc. common stock, par value $.01 per share,
by the selling stockholders named in the “Selling Stockholders” section of this prospectus, of which 153,093,862 shares will be issuable upon
the conversion of senior secured convertible notes held by the selling stockholders and the balance of which are currently held of record by the
selling stockholders. The prices at which the selling stockholders may sell the shares will be determined by the prevailing market price for the
shares or in negotiated transactions. We will not receive any proceeds from the sale of our shares by the selling stockholders. All costs,
expenses and fees in connection with the registration of these shares will be borne by us.
Our common stock is quoted on the OTC Bulletin Board and the OTC Markets — OTCQB tier under the symbol “UGNE.” On
October 17, 2012, the last reported closing price of our common stock was $0.2945 per share. These over-the-counter quotations reflect
inter-dealer prices, without retail mark-up, mark-down or commission and may not necessarily represent actual transactions.
Pursuant to a Second Amended and Restated Registration Rights Agreement, dated as of September 21, 2012 (the “Second Restated
Registration Rights Agreement”), by and among us and the selling stockholders, we agreed to file the registration statements of which this
prospectus forms a part to cover the resale by the selling stockholders of the shares of our common stock registered thereunder, including those
shares issuable from time to time upon the conversion of senior secured convertible notes (pursuant to the terms and conditions set forth in such
notes) issued by us to the selling stockholders pursuant to an Amended and Restated Financing Agreement, dated as of March 16, 2010, by and
among us, Victory Park Management, LLC (the “Agent”) and the selling stockholders (the “Restated Financing Agreement”), as amended by a
Forbearance Agreement and First Amendment to Amended and Restated Financing Agreement, dated as of September 21, 2012, by and among
Unigene and the Agent, as administrative agent and collateral agent, and the selling stockholders (the “Forbearance Agreement”) (the Agent,
collectively with the selling stockholders, are hereinafter referred to as “Victory Park”).
You should read this prospectus carefully before you invest. Please refer to “Risk Factors” on page 6 of this prospectus for a discussion
of the material risks involved in investing in the shares.
Neither the Securities and Exchange Commission (the “SEC”) nor any state securities commission has approved or disapproved of
these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2012.
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS 1
PROSPECTUS SUMMARY 2
RISK FACTORS 6
FORWARD-LOOKING STATEMENTS 13
USE OF PROCEEDS 13
DESCRIPTION OF SECURITIES TO BE REGISTERED 13
SELLING STOCKHOLDERS 16
PLAN OF DISTRIBUTION 21
LEGAL MATTERS 22
EXPERTS 22
WHERE YOU CAN FIND MORE INFORMATION 22
MATERIAL CHANGES 23
INDEMNIFICATION 23
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS II-1
SIGNATURES S-1
i
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the SEC. The selling stockholders may sell up to 161,739,676 shares of
common stock described in this prospectus in one or more offerings. The exhibits to our registration statement contain the full text of certain
contracts and other important documents we have summarized in this prospectus. Since these summaries may not contain all the information
that you may find important in deciding whether to purchase the securities offered by the selling stockholders, you should review the full text
of these documents. The registration statement and the exhibits can be obtained from the SEC as indicated under the heading “Where You Can
Find More Information.”
This prospectus provides you with a general description of the offering of securities by the selling stockholders. Each time the selling
stockholders offer to sell securities, we may provide a prospectus supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this
prospectus, the applicable prospectus supplement and the additional information described below under the heading “Where You Can Find
More Information.”
You should rely only on the information contained or incorporated by reference in this prospectus and in any prospectus supplement. We have
not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information,
you should not rely on it. We are not making offers to sell or solicitations to buy the securities in any jurisdiction in which an offer or
solicitation is not authorized or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is
unlawful to make an offer or solicitation. You should not assume that the information in this prospectus or any prospectus supplement, as well
as the information we previously filed with the SEC that we incorporate by reference in this prospectus or any prospectus supplement, is
accurate as of any date other than its respective date. Our business, financial condition, results of operations and prospects may have changed
since those dates.
In this prospectus, “Unigene,” “we,” “our,” “ours,” and “us” refer to Unigene Laboratories, Inc., which is a Delaware corporation
headquartered in Boonton, New Jersey. Unless otherwise stated, the dollar amounts contained in this prospectus and any accompanying
prospectus supplement are presented in U.S. dollars.
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PROSPECTUS SUMMARY
The following summary highlights information contained elsewhere in this prospectus. It may not contain all of the information that is
important to you. You should read the entire prospectus carefully, especially the discussion regarding the risks of investing in Unigene
common stock under the heading “Risk Factors,” before investing in Unigene common stock. “Unigene®,” “Forcaltonin®,” and “Fortical®”
are registered trademarks of Unigene Laboratories, Inc.
Business
Introduction
Unigene Laboratories, Inc., a biopharmaceutical company, was incorporated in the State of Delaware in 1980. Our single business segment
focuses on the research, production and delivery of small proteins, referred to as peptides, for medical use. We have patented oral and nasal
drug delivery technologies that have been shown to deliver medically useful amounts of various peptides into the bloodstream and patented
manufacturing technologies for producing certain natural peptides cost-effectively. Collectively, we brand our patented peptide drug delivery
and manufacturing technologies as “Peptelligence™”. We have three operating locations: administrative and regulatory offices in Boonton,
New Jersey; a laboratory research facility in Fairfield, New Jersey; and a pharmaceutical production facility in Boonton, New Jersey.
As more fully described in this prospectus, in March 2010, we entered into the Restated Financing Agreement pursuant to which we issued
three-year senior secured convertible notes in the aggregate original principal amount of $33,000,000 due in March 2013 (the “2010
Notes”). The 2010 Notes were issued in exchange for then-existing outstanding notes in the aggregate principal amount of approximately
$19,360,000 and for a cash payment (before closing expenses) of approximately $13,640,000. Victory Park Credit Opportunities Master Fund,
Ltd. (“Credit Opportunities Fund”), was the sole investor in the transaction. Richard Levy, managing partner and founder of Victory Park
Capital, was appointed Chairman of our board of directors in connection with the restructuring. In September 2012, we entered into the
Forbearance Agreement with the Agent and the selling stockholders pursuant to which we issued to a selling stockholder a one-year senior
secured convertible note in the aggregate principal amount of $4,000,000 (the “First Amendment Note”) and re-issued to the selling
stockholders all four 2010 Notes (the 2010 Notes as so re-issued, the “Re-issued Notes” and, together with the First Amendment Note,
collectively, the “Notes”). Between the date of issuance of the 2010 Notes and the date of the re-issuance of the 2010 Notes, the 2010 Notes
were transferred by Credit Opportunities Fund to the selling stockholders, each of which is an affiliate of Credit Opportunities Fund, as set
forth in the Selling Stockholders section of this prospectus. All of the notes are convertible into shares of our common stock at the holder’s
option.
Strategy
Our three-step strategic intent is focused on: increasing available cash for operations by prudent cash conservancy and incremental revenue
generation; as resources permit, restructuring our debt and selectively investing in the advancement of existing core development programs;
and maximizing shareholder value by exploiting the full potential of our Peptelligence™ technologies platform.
Strategic Business Units
We are pursuing this strategic intent and, for marketing purposes only, we have focused our resources into two strategic business units:
Unigene Biotechnologies and Unigene Therapeutics.
Peptides are a rapidly growing therapeutic class with more than 150 programs currently in active development throughout the industry. To
date, more than fifty peptide-based therapeutics have reached the market. Our goal is to see our Peptelligence™ platform, which represents a
distinctive set of capabilities and assets, incorporated into as many peptide programs as possible as they advance through development towards
commercialization.
Our Peptelligence™ encompasses extensive intellectual property covering drug delivery and manufacturing technologies, peptide research and
development expertise, and proprietary know-how. Our core Peptelligence™ assets include proprietary oral and nasal peptide drug delivery
technologies, and proprietary, high-yield, scalable and reproducible recombinant manufacturing technologies.
We are focusing our Unigene Therapeutics development pipeline on metabolic and inflammatory diseases with significant unmet medical and
socioeconomic needs. Programs which do not fit our core focus will continue to be monetized, out-licensed or terminated. We also intend to
focus our Unigene Biotechnologies business unit on generating near-term fee-for-service revenues and longer-term milestone payments and
royalties by customizing drug delivery and manufacturing solutions for novel therapeutic peptides.
Our first product to market, Fortical®, a nasal calcitonin product, received approval from the United States Food and Drug Administration (the
“FDA”) in 2005 and is marketed in the United States by Upsher-Smith Laboratories, Inc. (“USL”) for the treatment of postmenopausal
osteoporosis. Other product development programs include oral calcitonin licensed to Tarsa Therapeutics, Inc. (“Tarsa”), which has completed
Phase 3 testing for the treatment of osteoporosis, and oral parathyroid hormone (“PTH”), which has successfully completed Phase 2 clinical
studies for the treatment of osteoporosis. Our oral PTH license with GlaxoSmithKline LLC (“GSK”) was terminated in December 2011 after
we received notification from GSK of its product portfolio decision not to proceed with the oral PTH program. As a result, we regained the
exclusive worldwide rights to the oral PTH program and are currently seeking a new licensee for this program.
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Unigene Biotechnologies Business Unit
We are expanding our Peptelligence™ platform of peptide oral drug delivery and manufacturing assets and capabilities with the goal of
establishing a portfolio of partnered opportunities. We plan to generate near-term revenue from fee-for-service feasibility studies and establish
a solid foundation for potential high-value milestone payments and royalties. We hope to apply our Peptelligence™ platform to as many
therapeutic peptide programs as possible and help our partners co-develop those peptides through advanced clinical testing and
commercialization. Since the formation of our Biotechnologies Business Unit, we have initiated 14 feasibility studies with various
bio-pharmaceutical partners.
Unigene Therapeutics Business Unit
Unigene Therapeutics constitutes our own pipeline of proprietary peptide development programs focused on metabolic disease and
inflammation. Currently, we are concentrating our peptide drug development expertise on the advancement of our lead proprietary preclinical
anorexigenic peptide UGP281 for obesity.
In 2009, we licensed our late-stage oral calcitonin formulation to Tarsa, a venture-financed company founded exclusively to conduct Phase 3
clinical testing and prepare our proprietary oral calcitonin formulation for commercialization. We currently own an approximately 16%
fully-diluted stake in Tarsa, subject to liquidating preferences and to possible future dilution. In March 2011, Tarsa announced positive Phase 3
study top-line results for its multinational, randomized, double-blind, placebo-controlled Phase 3 ORACAL trial in postmenopausal women
with osteoporosis. In October 2012, Tarsa also announced positive Phase 2 study top-line results for its 48-week oral calcitonin trial for
prevention of bone loss in postmenopausal women with low bone mass. In November 2011, we announced positive top-line results of our
Phase 2 clinical study evaluating an experimental oral PTH analog for the treatment of osteoporosis in 93 postmenopausal women. The study
achieved its primary endpoint of statistically significant percentage change from baseline of Bone Mineral Density (BMD). We sponsored the
Phase 2 study as part of the now terminated exclusive worldwide option and licensing agreement with GSK. We are actively seeking a
licensing partner for our oral PTH program. We expect to present the full data from the Phase 2 study in a peer review journal in the fourth
quarter of 2012.
In February 2011, we announced our plans to accelerate the development of our lead proprietary anorexigenic peptide, UGP281. An
anorexigenic peptide is one that diminishes or controls appetite and offers potential therapeutic benefit to obese patients. This program is
currently completing pre-clinical development and toxicology studies following which we will prepare to file an Investigational New Drug
(IND) application with the FDA to begin clinical testing.
In October 2011, Unigene and Nordic Bioscience announced our decision to establish a Joint Development Vehicle to progress up to three of
our internally developed, proprietary calcitonin analogs through Phase 2 proof-of-concept in humans for the treatment of Type 2 diabetes,
osteoarthritis and osteoporosis. In August 2012, we announced the preliminary selection of our lead compound for the Type 2 diabetes
indication (UGP302).
During 2010, our Annexin 1 analog and Site Directed Bone Growth (“SDBG”) programs were put on hold to conserve cash. In September
2011, we sold our SDBG program by assigning seven patent applications to Kieran Murphy, LLC, and, in connection with this sale, we
terminated an Exclusive License Agreement and Consulting Agreement with Kieran Murphy, LLC, as well as a License Option Agreement and
Research Agreement with Yale University. In exchange for the assignment of the patents and patent applications, we are eligible to receive
sales royalties and future licensing revenue and/or a percentage of all considerations received upon the subsequent sale of the SDBG patent
portfolio by Kieran Murphy, LLC. Our business strategy is to develop proprietary products and processes with applications in human health
care to generate revenues from license fees, royalties on third-party sales and direct sales of bulk or finished products. Generally, we fund our
internal research activities and, due to our limited financial resources, we rely on licensees, which are likely to be established pharmaceutical
companies, to provide development funding. We also generally expect to rely on these licensees to take responsibility for obtaining appropriate
regulatory approvals, human testing and marketing of products derived from our research activities. However, we may, in some cases, retain
the responsibility for human testing and for obtaining the required regulatory approvals for a particular product.
Our patented manufacturing and drug delivery technologies provide the technological foundation for our business strategy. The potential
pharmaceutical products that we are developing use one or, in some cases, both of these technologies. Our oral calcitonin and oral PTH
products would utilize our peptide production process, as well as our oral drug delivery system for peptides. These products are currently in
development and, if approved, they most likely would be introduced into the market years from now.
Our products, other than Fortical in the United States, will require clinical trials and/or approvals from regulatory agencies, and all of our
products will require acceptance in the marketplace. There are risks that these clinical trials will not be successful and that we will not receive
regulatory approval or significant revenue for these products. We compete with specialized biotechnology companies, major pharmaceutical
and chemical companies and universities and research institutions. Most of these competitors have substantially greater resources than we do.
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Corporate Information
Unigene is incorporated under the laws of the State of Delaware. Our executive offices are located at 81 Fulton Street, Boonton, New Jersey
07005, and our telephone number at this location is (973) 265-1100. The address of our website is www.unigene.com. Information on our
website is not part of this prospectus.
Unigene Common Stock
Unigene common stock trades on the OTC Bulletin Board and the OTC Markets — OTCQB tier under the symbol “UGNE.”
About This Offering
On September 30, 2008, we entered into a Financing Agreement (the “Original Financing Agreement”) with the Agent, Credit Opportunities
Fund and Victory Park Special Situations Master Fund, Ltd. (“Special Situations Fund,” and together with Credit Opportunities Fund,
collectively, the “Funds”), pursuant to which the Funds purchased $20,000,000 of three-year senior secured non-convertible term notes (the
“Original Notes”) from us and we issued 1,500,000 shares of common stock to the Funds at two closings (the “Shares”).
On October 19, 2009, in connection with the Omnibus Amendment Agreement that we entered into with the Funds, we issued 300,000 shares
of common stock (the “Exchange Shares”) to Special Situations Fund in exchange for Special Situations Fund’s surrender of a warrant to
purchase 1,000,000 shares of common stock pursuant to the terms of a Warrant Exchange Agreement. The Funds also had collectively
purchased an aggregate of 6,845,814 shares of our common stock in open market transactions and privately negotiated transactions (the “Other
Shares”). In March 2010, Special Situations Fund sold and assigned to Credit Opportunities Fund all of its rights, title and interest in and to the
Original Notes, the Shares, the Exchange Shares and the Other Shares. The Shares, the Exchange Shares and the Other Shares were
subsequently transferred by Credit Opportunities Fund to certain of the selling stockholders, each of which is an affiliate of Credit
Opportunities Fund, as set forth below in the Selling Stockholders section of this prospectus.
On March 16, 2010, we entered into the Restated Financing Agreement with Agent, as administrative agent and collateral agent, and Credit
Opportunities Fund, and, under the Restated Financing Agreement, we issued the 2010 Notes, in exchange for the Original Notes in the
outstanding aggregate principal amount of approximately $19,360,000 and for a cash payment (before closing expenses) of approximately
$13,640,000. On each of March 17, 2011 and March 17, 2012, pursuant to the terms of the 2010 Notes, accrued interest payable through such
date was capitalized and added to the outstanding principal balance of the respective 2010 Notes.
Between the date of issuance of the 2010 Notes and September 24, 2012, the 2010 Notes were transferred by Credit Opportunities Fund to the
selling stockholders, each of which is an affiliate of Credit Opportunities Fund, as set forth below in the Selling Stockholders section of this
prospectus.
On September 21, 2012, we entered into the Forbearance Agreement with Agent, as administrative agent and collateral agent, and the selling
stockholders, pursuant to which we issued the First Amendment Note to a selling stockholder, and, on September 24, 2012, we re-issued to the
selling stockholders the Re-issued Notes.
Of the 161,739,676 shares of common stock that we are registering on this registration statement, 153,093,862 shares will be issuable upon
conversion of the Notes. The total dollar value of these 153,093,862 Conversion Shares was $16,074,855.51 based on the $0.105 closing price
per share of our Common Stock on September 21, 2012, when the terms of the Notes were finalized upon execution of the Forbearance
Agreement.
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The table below more fully describes the net proceeds we received from the sale of the Original Notes, the 2010 Notes and the First
Amendment Note:
Net Proceeds From the Sale of the Original Notes
Related
Disbursements
and Value of Stock
Issued in Connection
with Sale of the
Gross Cash Original
Proceeds Notes Net Proceeds
Original Notes issued September 30, 2008 (1) $ 15,000,000 $ 1,779,250 (2) $ 13,220,750
Original Notes issued May 22, 2009 (1) $ 5,000,000 $ 621,750 (3) $ 4,378,250
Net Proceeds From the Sale of the 2010 Notes
Related
Disbursements
and Value of Stock
Issued in Connection
Gross Cash with Sale of the
Proceeds Notes Net Proceeds
2010 Notes issued March 17, 2010 $ 13,642,473 (1)(4) $ 2,007,534 (5) $ 11,634,939
Net Proceeds From the Sale of the First Amendment Note
Related
Disbursements
and Value of Stock
Gross Cash Issued in Connection
Proceeds with Sale of the Notes Net Proceeds
First Amendment Note issued September 21, 2012 $ 4,000,000 $ 500,000 (6) $ 3,500,000
Total Net Proceeds from Sale of Original Notes, the 2010 Notes
and the First Amendment Note $ 32,733,939
(1) The Original Notes were cancelled on March 17, 2010 pursuant to the terms of the Restated Financing Agreement and in connection with
the issuance of the 2010 Notes.
(2) Consisting of a $450,000 closing fee; the issuance of 1,125,000 shares of common stock (valued based on the $1.09 closing price per share
on the issuance date); and $103,000 in legal and due diligence fees. This does not include $1,050,000 of interest prepaid on September 30,
2008.
(3) Consisting of a $150,000 closing fee; the issuance of 375,000 shares of common stock (valued based on the $0.97 closing price per share
on the issuance date); and $108,000 in legal and due diligence fees. This does not include $358,000 of interest prepaid on May 22, 2009.
(4) The aggregate original principal amount of the 2010 Notes was $33,000,000, and the 2010 Notes were issued in exchange for cancellation
of the outstanding aggregate principal amount of $19,357,527 on the Original Notes, and for a cash payment (before closing expenses) of
$13,642,473.
(5) Consisting of:
• $714,274 in fees paid to RBC;
• $665,000 in fees paid to Victory Park Management, LLC;
• $1,987 in fees paid to Land Services USA, Inc.; and
• $626,273 in various legal fees paid.
(6) Consisting of a $500,000 deposit made by Unigene with the Agent on September 21, 2012 (out of the $4,000,000 purchase price for the
First Amendment Note) to reimburse the Agent and the selling stockholders for certain existing and future fees, costs and expenses
incurred by (or to be incurred by) the Agent and the selling stockholders in connection with the transactions contemplated by the Restated
Financing Agreement and the Forbearance Agreement.
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The Notes accrue interest at a rate per annum equal to the greater of (i) the prime rate plus 5% and (ii) 15%. The Notes are convertible into
shares of Unigene common stock (the “Conversion Shares”) at the holder’s option. The initial conversion rate for the First Amendment Note
is calculated by dividing the sum of the principal to be converted plus all accrued and unpaid interest thereon by $0.05 per share. The initial
conversion rate for the Re-issued Notes is calculated by dividing the sum of the principal to be converted, plus all accrued and unpaid interest
thereon, by $0.15 per share. If we subsequently make certain issuances of common stock or common stock equivalents at an effective purchase
price less than the then-applicable conversion price, the conversion price of the Notes will be reduced to such lower price.
In addition, subject to the terms and conditions of the Forbearance Agreement, each selling stockholder has agreed, with respect to its pro rata
share of the sum of the first $3,500,000 of mandatory prepayments received by the selling stockholders pursuant to the Restated Financing
Agreement (other than mandatory prepayments made with the proceeds of the sale of tax benefits resulting from net operating losses for prior
periods (“NOL Sale Proceeds”)) plus the amount of any mandatory prepayments received by the selling stockholders pursuant to the Restated
Financing Agreement on account of NOL Sale Proceeds (such sum, the “Re-Loan Amount”), such selling stockholder shall make available to
Unigene additional loans in an aggregate principal amount not to exceed such selling stockholder’s pro rata share of the Re-Loan
Amount. Upon selling stockholders funding such additional loans to Unigene, such amounts so funded to Unigene shall be deemed loans
funded under the Restated Financing Agreement and shall be evidenced by notes (“Re-Loan Notes”), all on the same terms as, and on a pari
passu basis with, the loans evidenced by the First Amendment Note issued on September 21, 2012, except that any Re-Loan Note shall have an
initial conversion price equal to the conversion price of the Re-issued Notes in effect on the date of issuance of such Re-Loan Note.
Assuming $47,816,609.39 aggregate principal amount of Notes together with accrued interest thereon of $10,704,410.41 is outstanding at
maturity of the Notes for the full term of the Notes, and assuming a conversion price of $0.15 for the Reissued Notes and a conversion price of
$0.05 for the First Amendment Note, the Notes will be convertible into approximately 451,584,576 Conversion Shares. Under the Second
Restated Registration Rights Agreement, we are required to file and must continue to maintain effective with the SEC a registration statement
covering the resale of all of the Shares, the Exchange Shares, the Other Shares and the Conversion Shares. However, the number of our
authorized shares of common stock is currently insufficient to cover all the Conversion Shares issuable if such Notes were converted in
full. This prospectus covers the Shares, the Exchange Shares, the Other Shares and a portion of the Conversion Shares issuable to the selling
stockholders upon conversion of the Notes, up to the number of shares of common stock that we have authorized, unissued and otherwise
unreserved. Currently, we have reserved for issuance and delivery, upon conversion of the Notes, 153,093,862 shares of authorized, unissued
and otherwise unreserved common stock.
As required under the Forbearance Agreement, we are seeking stockholder approval at our next meeting of stockholders to be held on or prior
to January 21, 2013 to increase the number of authorized shares of common stock to a number that will be sufficient to cover the full number of
Conversion Shares plus a buffer equal to an additional 10% of those shares. If stockholder approval is obtained, we intend to promptly file an
amendment to our Certificate of Incorporation to effect such increase in the number of authorized shares of our common stock (the
“Amendment”). If stockholder approval of the Amendment is not so obtained, we will be required to call a stockholders meeting every four
months to seek approval of the Amendment until the date on which such approval is obtained. Thereafter, we will be required to file with the
SEC a new registration statement covering the resale of Conversion Shares not then covered by an effective registration statement for resales
pursuant to Rule 415.
As of October 19, 2012, there were 95,586,644 shares of our common stock outstanding, including the Shares, the Exchange Shares and the
Other Shares. The number of shares outstanding does not include the additional 153,093,862 shares of common stock being registered
hereunder that the selling stockholders may acquire upon conversion of the Notes. The 161,739,676 shares offered by this prospectus
represent approximately 65.0% of the total common stock outstanding as of October 19, 2012, assuming the issuance of 153,093,862
Conversion Shares.
The shares offered by this prospectus may be sold by the selling stockholders from time to time in the open market, through negotiated
transactions or otherwise at market prices prevailing at the time of sale or at negotiated prices. We will receive none of the proceeds from the
sale of the shares by the selling stockholders. We will bear all expenses of registration incurred in connection with this offering, but all selling
and other expenses incurred by any selling stockholder will be borne by it.
RISK FACTORS
Investment in any securities offered pursuant to this prospectus involves risks and uncertainties. Before making an investment decision, you
should carefully review and consider the risks and uncertainties described under the heading “Risk Factors” in any of our filings with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), including but not
limited to our most recent Annual Report filed on Form 10-K, which is incorporated by reference in this prospectus.
In addition to the risk factors incorporated by reference in this prospectus, before you decide to invest in our securities, you should also
consider the following risks.
Our independent auditors have expressed substantial doubt about our ability to continue as a going concern.
Our independent registered public accounting firm added a paragraph to their opinion issued in connection with their audit of the financial
statements as of and for the year ended December 31, 2011 that emphasizes conditions that raise substantial doubt about our ability to continue
as a going concern. Our ability to generate additional revenue or obtain additional funding will determine our ability to continue as a going
concern for a reasonable period of time. Our financial statements do not include any adjustments that might result from the outcome of this
uncertainty.
6
We require additional cash to sustain our operations and our ability to secure additional cash is uncertain.
We had cash flow deficits from operations of $1,719,000 for the six months ended June 30, 2012, $6,766,000 for the year ended December 31,
2011, $1,669,000 for the year ended December 31, 2010, and $11,291,000 for the year ended December 31, 2009. We believe that, in the
near-term, we will generate cash to apply toward funding our operations through Fortical royalties and sales; from anticipated receipt of
licensing fees and revenue generated from fee-for-service feasibility studies; and from other corporate development activities. These funds
may not be adequate to fully support our operations in the near-term. Notwithstanding the refinancing arrangement with Victory Park we
entered into on September 21, 2012, we continue to need additional sources of cash in order to maintain all of our future operations. Based
upon management’s projections, we believe our current cash should be sufficient to support our current operations through at least the first half
of 2013. We may be unable to raise, on acceptable terms, if at all, the substantial capital resources necessary to conduct our operations. If we
are unable to raise the required capital, we may be forced to further limit some or all of our research and development programs and related
operations, curtail development of our product candidates and the ability to license our technologies, and, ultimately, cease operations. Our
future capital requirements will depend on many factors, including:
our ability to engage new partners for fee-for-service feasibility studies and licensing agreements;
the level of Fortical sales, particularly in light of new and potential competition;
our ability to successfully defend our Fortical patent against Apotex’s claim;
the generation of revenue from our Tarsa agreement;
continued scientific progress in our discovery and research programs;
progress with preclinical studies and clinical trials;
the magnitude and scope of our discovery, research and development programs;
our ability to maintain existing, and establish additional, corporate partnerships and licensing arrangements;
our partners’ ability to sell and market our products or their products utilizing our technologies;
the time and costs involved in obtaining regulatory approvals;
the time and costs involved in maintaining our production facility;
the costs involved in preparing, filing, prosecuting, maintaining, defending and enforcing patent claims; and
the pharmaceutical industry’s need to acquire or license new technologies and products.
Our success is dependent on our ability to establish and maintain commercial partnerships and currently we have only two significant
license agreements; we may not be able to relicense our oral PTH program.
We are pursuing additional opportunities to license or enter into distribution arrangements for products that utilize our oral and nasal delivery
technologies and/or our manufacturing technology, as well as our other technologies. Given the current state of our financial position, the
success of such commercial partnerships is important for us to maintain our current operations. However, we may not be successful in any of
these efforts.
We do not currently have, nor do we expect to have in the near future, sufficient financial resources and personnel to develop and market
products on our own. Accordingly, we expect to continue to depend on pharmaceutical companies for revenues from sales of products, research
sponsorship and distribution of our products.
The process of establishing partnerships is difficult and time-consuming. Our discussions with potential partners may not lead to the
establishment of new partnerships on favorable terms, if at all. If we successfully establish new partnerships, the partnerships may never result
in the successful development of our product candidates or the generation of significant revenue. Management of our relationships with these
partners would require:
significant time and effort from our management team;
coordination of our research with the research priorities of our corporate partners;
effective allocation of our resources to multiple projects; and
an ability to attract and retain key management, scientific, production and other personnel.
We may not be able to manage these relationships successfully.
We currently have significant license agreements with USL in the United States for Fortical and with Tarsa worldwide (except for China) for
oral calcitonin. Our oral PTH license with GSK was terminated in December 2011 after we received notification from GSK of its decision not
to proceed with the oral PTH program. As a result, we regained the exclusive worldwide rights to the oral PTH program and are currently
seeking a new licensee for this program. We do not currently have the resources to fund additional clinical development for oral PTH without
a new licensee.
7
There are numerous default provisions under the Restated Financing Agreement, as amended by the Forbearance Agreement. Unless
we are able to generate or raise cash, we will default under these agreements.
Under the Restated Financing Agreement, as amended by the Forbearance Agreement, future events of defaults include a quarterly cash flow
reconciliation that shows a negative variance of 10% or more of actual cash revenue minus actual cash expenses for an applicable quarter
versus the applicable quarterly cash flow forecast delivered by us; failure to maintain a cash balance in a specified account in excess of
$250,000; failure to pay principal or interest; filing for bankruptcy; breach of covenants, representations or warranties; the occurrence of a
material adverse effect (as defined in the Restated Financing Agreement); a change in control (as defined in the Restated Financing
Agreement); any material decline or depreciation in the value or market price of the collateral; the failure of any registration statement required
to be filed to be declared effective by the SEC, and maintained effective pursuant to the terms of the Second Restated Registration Rights
Agreement; failure to obtain the Amendment; a Conversion Failure (as defined in the Notes) and a breach of any agreement or covenant
contained in the Forbearance Agreement. Upon any default, among other remedies, both principal and interest would be accelerated and
additional charges would apply. In addition, there is no assurance that the Notes will be converted into common stock, in which case, we may
not have sufficient cash from operations or from new financings to repay the Notes when they come due. There can be no assurance that new
financings will be available on acceptable terms, if at all. In the event that we default, Victory Park could acquire control of the Company and
will have the ability to force us into involuntary bankruptcy and liquidate our assets.
If our stockholders do not approve the amendment to our certificate of incorporation, we may be in default under the terms of the
Restated Financing Agreement, as amended by the Forbearance Agreement.
At our next meeting of stockholders, we will seek stockholder approval of the Amendment to increase the total number of authorized shares of
common stock available for issuance from 275,000,000 to 650,000,000. Under the Forbearance Agreement, if stockholder approval of the
Amendment is not so obtained, we will be required to call a stockholders meeting every four months to seek approval of the Amendment until
the date on which such approval is obtained. This undertaking will be costly and will distract management from the business of running
Unigene.
In addition, in the event the Amendment is not approved by the stockholders, we will not have a sufficient number of shares of common stock
authorized and available for issuance upon conversion of the Notes. Pursuant to the terms of the Notes, if for any reason, the holders have not
received all of the Conversion Shares prior to the third business day after Unigene has received a notice for conversion of the Notes, such
failure will result in an event of default under the Restated Financing Agreement as amended by the Forbearance Agreement. Upon such an
event of default, in addition to all other available remedies that the holders of the Notes may pursue under the Notes and the Restated Financing
Agreement, as amended by the Forbearance Agreement, we are required to pay certain additional damages to such holders for each day after
the date on which such conversion is not timely effected, as set forth in the Notes. Furthermore, upon such an event of default, the holders may
require Unigene to redeem all or any portion of the Notes at the price equal to the greater of (i) an amount equal to the sum of one hundred
fifteen percent (115%) of the outstanding principal amount of the Notes, plus accrued and unpaid interest, plus accrued and unpaid late charges
and (ii) an amount equal to the product of (A) the number of shares into which the principal amount and all accrued and unpaid interest
outstanding under the Notes may be converted at the time of the default pursuant to the terms of the Notes, multiplied by (B) the market value
per share of common stock as determined under the Restated Financing Agreement, as amended by the Forbearance Agreement.
Notwithstanding the foregoing, prior to the filing of the Amendment, we are not obligated to issue Conversion Shares in excess of the number
of shares required to be reserved for issuance under the terms of the Restated Financing Agreement, as amended by the Forbearance
Agreement.
We have recommended that the stockholders vote in favor of the Amendment. However, we cannot guarantee if or when the Amendment will
be approved by our stockholders. If such Amendment is not approved by our stockholders, we may be in default under the terms of the
Forbearance Agreement and the holders could require mandatory redemption as described above. Such a mandatory redemption would likely
leave us with insufficient working capital to operate our business and would likely force us to seek additional financing to fund that redemption
and our operations on terms that could be unfavorable and that could materially and adversely affect the interests of our stockholders. There
can be no assurance given that we would have sufficient cash on hand or that we would be able to obtain such additional financing (on any
terms) to fund the mandatory redemption.
Recent developments in the European market may negatively impact our operations.
On July 20, 2012 the European Medicines Agency (“EMA”) issued a press release concerning the marketability of approved calcitonin
products in Europe, concluding there was evidence of a small increased risk of cancer with long-term use of current calcitonin medications
approved and commercially available in Europe since 1973, and calling for curtailment of calcitonin usage. On August 1, 2012, Health Canada
announced that it is reviewing whether to follow European medical authorities and restrict use of a nasal spray prescribed to prevent
osteoporosis because of the increased risk of cancer.
8
We licensed to USL our patented nasal formulation of calcitonin for commercialization in the United States and have licensed the development
and worldwide commercialization rights (except China) for our Phase 3 oral calcitonin to Tarsa. However, since neither the Company nor its
licensees are Market Authorization Holders in Europe, they do not have the right to appeal the EMA's recommendation. The potential
regulatory and commercial impact of this announcement on calcitonin related products marketed or under development by our licensees and
partners in Europe and other markets as well as the resulting financial impact on our future business operations is currently being
evaluated. There is a possibility that other regulatory authorities, including the FDA, could take actions as a result of the EMA
recommendation, including withdrawing calcitonin products from the market or limiting their use. This could materially adversely affect our
finances and operations by reducing or eliminating sales and royalties on Fortical, limiting the value of current calcitonin development projects
and limiting the potential value of our investment in Tarsa. Additionally, this could impact the carrying value of our assets, including fixed
assets, inventories and patents, as well as our ability to obtain adequate financing.
We are in default of our debt agreement with the Founders.
On May 29, 2012, we entered into an agreement with Jay Levy, the estate of Jean Levy, Warren Levy and Ronald Levy (the “Founders”) to
settle our debt obligations to the Founders. Pursuant to the settlement agreement, the Founders agreed to settle any and all outstanding
obligations due from us in exchange for (i) two installment payments of $150,000 due in May and June 2012, which were subsequently paid by
us; (ii) $7,700,000 payable on or before September 30, 2012; and (iii) the issuance of 5,000,000 shares of our common stock. In light of the
recent EMA recommendation, the expected financial impact on business operations and our inability to raise funds, we were not in a position to
fund the debt settlement with the Founders and as a result, we remain in debt to the Founders for a total of $22,990,000 in principal and accrued
interest as of September 30, 2012.
The conversion of the Notes will have a dilutive effect on our stock price and could lead to a change in control.
In March 2010, we issued the 2010 Notes to the selling stockholders which come due in March 2013 (which 2010 Notes were re-issued in
September 2012), and in September 2012, we issued the First Amendment Note to the selling stockholders. The initial conversion rate, which
is subject to adjustment as set forth in the Notes, is calculated by dividing the sum of the principal to be converted, plus all accrued and unpaid
interest thereon, by $0.15 per share for the Re-issued Notes and $0.05 for the First Amendment Note. If we subsequently make certain
issuances of common stock or common stock equivalents at an effective purchase price less than the then-applicable conversion price, the
conversion price of the Notes will be reduced to such lower price. Assuming that the Notes were converted in full on September 30, 2012 at the
current conversion prices (with conversion of the original principal amount plus interest thereon into the conversion shares), then, together with
the shares and other securities owned by them, the selling stockholders would beneficially own in the aggregate approximately 79% of our
outstanding common stock (as diluted by outstanding options) as of that date.
Our strategic realignment might not be successful.
In September 2010, we announced a realignment of our business and the creation of two new highly focused strategic business units. Our new
strategic business units may not be successful or effectively implemented. Also, we may be unable to enter into mutually acceptable
agreements with third party partners to use our peptide drug delivery platform and/or manufacturing capabilities. If we are unsuccessful, it
could have a material adverse effect on our financial condition, results of operations and cash flow.
Our operations for future years are highly dependent on the successful marketing and sales of Fortical and could be further impacted
by generic or other competition.
Fortical is our only product approved by the FDA. Any factors that adversely impact the marketing of Fortical including, but not limited to,
competition, including generic competition and/or product substitutions, acceptance in the marketplace, or delays related to production and
distribution or regulatory issues, will have a negative impact on our cash flow and operating results. For 2011, compared to 2010, Fortical sales
decreased 27% while Fortical royalties decreased 46%. We expect our revenues from Fortical to decrease in Q4 2012 and Q1 2013 because
sales of Fortical were brought forward at USL’s request. Fortical sales to USL are at a fixed transfer price, while Fortical royalties reflect both
declining unit sales as well as declining net selling price. In December 2008, Apotex and Sandoz launched nasal calcitonin products which are
generic to Novartis’ nasal calcitonin product, but not to Fortical. In June 2009, Par also launched a product generic to Novartis’ nasal calcitonin
product. Certain providers have substituted these products for Fortical, causing Fortical sales and royalties to decrease. Further decreases in
Fortical sales or royalties could have a material adverse effect on our business, financial condition and results of operations.
9
We have significant historical losses and may continue to incur losses in the future.
We have incurred annual losses since our inception, and we may never achieve profitability. As a result, at June 30, 2012, we had an
accumulated deficit of approximately $199,996,000. Our gross revenues for the six months ended June 30, 2012 were approximately
$4,489,000 and for the years ended December 31, 2011, 2010 and 2009 were $20,508,000, $11,340,000, and $12,792,000, respectively. Our
revenues have not been sufficient to sustain our operations. Revenue consisted primarily of Fortical sales and royalties, licensing revenue and
Peptelligence™ revenue. As of December 31, 2011, we had two material revenue generating license agreements. We believe that to achieve
profitability we will require at least the successful commercialization of one or more of our licensees’ oral or nasal calcitonin products, our oral
PTH product, our obesity program or another peptide product or biotechnology in the U.S. and/or abroad. However, our products or
technologies may never become commercially successful. For the six months ended June 30, 2012, we had losses from operations of
$4,643,000 and for 2011, 2010 and 2009, we had losses from operations of $3,466,000, $10,324,000, and $12,380,000, respectively. Our net
losses for the six months ended June 30, 2012 were $11,490,000 and for the years ended December 31, 2011, 2010 and 2009 were
$17,926,000, $27,868,000, and $13,380,000, respectively.
Most of our products are in early stages of development and we and our licensees may not be successful in efforts to develop a
calcitonin, PTH or other peptide product that will produce revenues sufficient to sustain our operations.
Our success depends on our and our licensees’ ability to commercialize a calcitonin, PTH or other peptide product that will generate revenues
sufficient to sustain our operations. Except for Fortical, most of our products are in early stages of development and we and our licensees may
never develop a calcitonin, PTH or other peptide product that makes us profitable. Our ability to achieve profitability is dependent on a number
of factors, including our and our licensees’ ability to complete development efforts, obtain regulatory approval for additional product
candidates and successfully commercialize those product candidates or our technologies. We believe that the development of more desirable
formulations is essential to expand consumer acceptance of peptide pharmaceutical products. However, we may not be successful in our
development efforts, or other companies may develop such products, or superior products, before we do.
We may not be successful in our efforts to gain regulatory approval for our products other than Fortical and, if approved, the
approval may not be on a timely basis.
Even if we or our licensees are successful in our development efforts, we may not be able to obtain the necessary regulatory approval for our
products other than Fortical. The FDA must approve the commercial manufacture and sale of pharmaceutical products in the United States.
Similar regulatory approvals are required for the sale of pharmaceutical products outside of the United States. None of our products other than
Fortical has been approved for sale in the United States, and our other products may never receive the approvals necessary for
commercialization. We must conduct further human testing on certain of our products before they can be approved for commercial sale and
such testing requires the investment of significant resources. Any delay in receiving, or failure to receive, these approvals would adversely
affect our ability to generate product revenues.
We may not be successful in efficiently developing, manufacturing or commercializing our products.
Because of our limited financial resources and our lack of a marketing organization, we are likely to rely on licensees or other parties to
perform one or more tasks for the commercialization of our pharmaceutical products, such as USL to market and distribute Fortical in the U.S.
If any of our products are approved for commercial sale, the product will need to be manufactured in commercial quantities at a reasonable cost
in order for it to be a successful product that can generate profits. We may incur additional costs and delays while working with these parties,
and these parties may ultimately be unsuccessful in the commercialization of a product.
Because we are a biopharmaceutical company, our operations are subject to extensive government regulation.
Our laboratory research, development and production activities, as well as those of our collaborators and licensees, are subject to significant
regulation by federal, state, local and foreign governmental authorities. In addition to obtaining FDA approval and other regulatory approvals
for our products, we must maintain approvals for our manufacturing facility to produce calcitonin, PTH and other peptides for human use. The
regulatory approval process for a pharmaceutical product requires substantial resources and may take many years. Our inability to obtain
approvals or delays in obtaining approvals would adversely affect our ability to continue our development program, to manufacture and sell our
products, and to receive revenue from milestone payments, product sales or royalties.
The FDA and other regulatory agencies may audit our production facility at any time to ensure compliance with cGMP guidelines. These
guidelines require that we conduct our production operation in strict compliance with our established rules for manufacturing and quality
controls. Any of these agencies can suspend production operations and product sales if they find significant or repeated deviations from these
guidelines. A suspension would likely cause us to incur additional costs or delays in product development. In addition, we are subject to the
U.S. Foreign Corrupt Practices Act, which prohibits corporations and individuals from engaging in certain activities to obtain or retain business
or to influence a person working in an official capacity. It is illegal to pay, offer to pay or authorize the payment of anything of value to any
foreign government official, government staff member, political party or political candidate in an attempt to obtain or retain business or to
otherwise influence a person working in an official capacity. Our present and future business is, and will continue to be, subject to various other
laws, rules and/or regulations applicable to us as a result of our international business.
10
Fortical currently faces competition from large pharmaceutical companies and, if our other products receive regulatory approval,
these other products would also face competition from large pharmaceutical companies with superior resources.
We are engaged in developing pharmaceutical products, which is a rapidly changing and highly competitive field. To date, we have
concentrated our efforts primarily on products to treat one indication — osteoporosis. Like the market for any pharmaceutical product, the
market for treating osteoporosis has the potential for rapid, unpredictable and significant technological change. Competition is intense from
specialized biotechnology and biopharmaceutical companies, major pharmaceutical and chemical companies and universities and research
institutions. In December 2008, Apotex and Sandoz launched nasal calcitonin products which are generic to Novartis’ nasal calcitonin product,
but not to Fortical. In June 2009, Par also launched a product generic to Novartis’ nasal calcitonin product. Certain providers have substituted
these products for Fortical, causing Fortical sales and royalties to decrease. There could also be future competition from products that are
generic to Fortical, including Apotex’s product that is the subject of our ANDA litigation. Fortical also faces competition from large
pharmaceutical companies that produce other osteoporosis products and, if any of our other products receive regulatory approval, these other
products likely would also face competition from large pharmaceutical companies with substantially greater financial resources, research and
development staffs and facilities, and regulatory experience than we have. Major companies in the field of osteoporosis treatment include
Novartis, Merck, Eli Lilly and Sanofi-Aventis. One or more of these potential competitors could, at any time, develop products or a
manufacturing process that could render our technology or products noncompetitive or obsolete.
Our success depends upon our ability to protect our intellectual property rights.
We filed applications for U.S. patents relating to proprietary peptide manufacturing technology and oral and nasal formulations that we have
invented in the course of our research. Our most important U.S. manufacturing and delivery patents expire from 2016 to 2026 and we have
applications pending that could extend that protection. To date, twenty-five U.S. patents have issued and other applications are pending. We
have also made patent application filings in selected foreign countries and seventy-six foreign patents have issued with other applications
pending. We face the risk that any of our pending applications will not be issued as patents. In addition, our patents may be found to be invalid
or unenforceable. Our business also is subject to the risk that our issued patents will not provide us with significant competitive advantages if,
for example, a competitor were to independently develop or obtain similar or superior technologies. To the extent we are unable to protect our
patents and patent applications, our investment in those technologies may not yield the benefits that we expect.
We also rely on trade secrets to protect our inventions. Our policy is to include confidentiality obligations in all research contracts, joint
development agreements and consulting relationships that provide access to our trade secrets and other know-how. However, parties with
confidentiality obligations could breach their agreements causing us harm. If a secrecy obligation were to be breached, we may not have the
financial resources necessary for a legal challenge. If licensees, consultants or other third parties use technological information independently
developed by them or by others in the development of our products, disputes may arise from the use of this information and as to the ownership
rights to products developed using this information. These disputes may not be resolved in our favor and could materially impact our business.
Our technology or products could give rise to product liability claims.
Our business exposes us to the risk of product liability claims from human testing, manufacturing and sale of pharmaceutical products. The
administration of drugs to humans, whether in clinical trials or commercially, can result in product liability claims even if our products are not
actually at fault for causing an injury. Furthermore, our products may cause, or may appear to cause, adverse side effects or potentially
dangerous drug interactions that we may not learn about or understand fully until the drug is actually manufactured and sold. Product liability
claims can be expensive to defend and may result in large judgments against us. Even if a product liability claim is not successful, the adverse
publicity, time and expense involved in defending such a claim may interfere with our business. We may not have sufficient resources to
defend against or satisfy these claims. We currently maintain $10,000,000 in product liability insurance coverage. However, this amount may
not be sufficient to protect us against losses or may be unavailable in the future on acceptable terms, if at all.
The global financial crisis may adversely affect our business and financial results.
The global credit crisis that began in 2007 was further exacerbated by events occurring in the financial markets in the fall of 2008, and has
continued into 2012. These events have negatively impacted the ability of corporations to raise capital through equity financings or borrowings.
The credit crisis may continue for the foreseeable future. Based upon management’s projections, we believe our current cash should be
sufficient to support our current operations through the first half of 2013. At that time, we may not be able to raise capital on reasonable terms,
if at all. In addition, uncertainty about current and future global economic conditions may impact our ability to license our products and
technologies to other companies and may cause consumers to defer purchases of prescription medicines, such as Fortical, in response to tighter
credit, decreased cash availability and declining consumer confidence. Accordingly, future demand for our product could differ from our
current expectations.
We may be unable to retain key employees and members of our board of directors or recruit additional qualified personnel.
Because of the specialized scientific nature of our business, we are highly dependent upon qualified scientific, technical, production and
managerial personnel. There is intense competition for qualified personnel in our business. Therefore, we may not be able to attract and retain
the qualified personnel necessary for the development of our business. To promote the retention of our employees and directors, and to
motivate them, on September 20, 2012, our board of directors approved the issuance of retention stock option grants outside of our existing
equity compensation plan to all of the existing employees and directors (except Richard Levy). There is no guarantee that these grants will
serve to prevent our employees, including our key employees, or directors from resigning. The loss of the services of existing personnel or
members of our board of directors, as well as the failure to recruit additional key personnel in a timely manner, could harm our programs and
our business.
11
Compliance with regulations governing public company corporate governance and reporting is complex and expensive.
Changing laws, regulations and standards relating to corporate governance and public disclosure, including the Sarbanes-Oxley Act of 2002
and related SEC regulations, have created uncertainty for public companies and significantly increased the costs and risks associated with
accessing the public markets and public reporting. For example, on January 30, 2009, the SEC adopted rules requiring companies to provide
their financial statements in interactive data format using the eXtensible Business Reporting Language, or XBRL. In addition, the Dodd-Frank
Wall Street Reform and Consumer Protection Act of 2010 was enacted into law. This legislation makes significant changes to corporate
governance and executive compensation rules for public companies across all industries. Our management team will need to invest significant
management time and financial resources to comply with both existing and evolving standards for public companies, which will lead to
increased general and administrative expenses and a diversion of management time and attention from revenue generating activities to
compliance activities.
The market price of our common stock is volatile.
The market price of our common stock has been, and we expect it to continue to be, highly unstable. Factors, including our announcement of
technological improvements or announcements by other companies, regulatory matters, research and development activities, new or existing
products or procedures, signing or termination of licensing agreements, concerns about competition, sales, our financial condition, operating
results, litigation, government regulation, developments or disputes relating to agreements, patents or proprietary rights, and public concern
over the safety of activities or products have had a significant impact on the market price of our stock. We expect such factors to continue to
impact our market price for the foreseeable future. In addition, future sales of shares of our common stock by us or our stockholders, and by the
exercise and subsequent sale of our common stock by the holders of outstanding and future warrants and options, could have an adverse effect
on the price of our stock.
Our common stock is classified as a “penny stock” under SEC rules, which may make it more difficult for our stockholders to resell
our common stock.
Our common stock is traded on the OTC Bulletin Board and the OTC Markets — OTCQB tier. As a result, the holders of our common stock
may find it more difficult to obtain accurate quotations concerning the market value of the stock. Stockholders also may experience greater
difficulties in attempting to sell the stock than if it was listed on a stock exchange. Because Unigene common stock is not traded on a stock
exchange and the market price of the common stock is less than $5.00 per share, the common stock is classified as a “penny stock.” Rule 15g-9
of the Exchange Act imposes additional sales practice requirements on broker-dealers that recommend the purchase or sale of penny stocks to
persons other than those who qualify as an “established customer” or an “accredited investor.” These include the requirement that a
broker-dealer must make a determination that investments in penny stocks are suitable for the customer and must make special disclosures to
the customer concerning the risks of penny stocks. Application of the penny stock rules to our common stock could adversely affect the market
liquidity of the shares, which in turn may affect the ability of holders of our common stock to resell the stock.
If provisions in our stockholder rights plan or Delaware law delay or prevent a change in control of Unigene, we may be unable to
consummate a transaction that our stockholders consider favorable.
In December 2002, we adopted a stockholder rights plan. This stockholder rights plan increases the costs that would be incurred by an
unwanted third party acquirer if such party owns or announces its intent to commence a tender offer for more than 15% of our outstanding
common stock. The plan is designed to assure our board of directors a full opportunity to review any proposal to acquire us. However, the plan
could prolong the take-over process and, arguably, deter a potential bidder. These provisions apply even if the offer may be considered
beneficial by some stockholders, and a takeover bid otherwise favored by a majority of our stockholders might be rejected by our board of
directors. In addition, specific sections of Delaware law may also discourage, delay or prevent someone from acquiring or merging with us.
Accounting for our revenues and costs involves significant estimates which, if actual results differ from estimates, could have a
material adverse effect on our financial position and results of operations.
Accounting for our contract related revenues and costs as well as other cost items requires management to make a variety of significant
estimates and assumptions. Although we believe we have sufficient experience and processes in place to enable us to formulate appropriate
assumptions and produce reliable estimates, these assumptions and estimates may change significantly in the future and these changes could
have a material adverse effect on our financial position and the results of our operations.
12
We may not be able to renew our Directors and Officers insurance policy, as well as our other insurance policies, including our
product liability insurance policy.
As a result of our financial condition, including lack of liquidity, we may not be able to renew our existing insurance on terms that are
acceptable to us, if at all. If we are unable to maintain adequate insurance coverage this would have a material adverse effect on our ability to
sustain operations. Furthermore, if we do not have an effective D&O insurance policy, it will be extremely difficult to attract qualified
directors and officers.
FORWARD-LOOKING STATEMENTS
Various statements that we make in this prospectus under the captions “Prospectus Summary” and “Risk Factors” and elsewhere in this
prospectus are “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These
forward-looking statements involve known and unknown risks, uncertainties and other factors, including those discussed in “Risk Factors”
above, that may cause the actual results, performance or activities of our business, or industry results, to be materially different from any future
results, performance or activities expressed or implied by the forward-looking statements. These factors include: general economic and
business conditions, our financial condition, the ability of our products to gain market acceptance and increase market share, product sales and
royalties, competition, our dependence on other companies to commercialize, manufacture and sell products using our technologies, the
uncertainty of results of animal and human testing, the risk of product liability and liability for human trials, our dependence on patents and
other proprietary rights and the risks associated with patent litigation, dependence on key management officials, the availability and cost of
capital, the availability of qualified personnel, changes in, or the failure to comply with, governmental regulations, the failure to obtain
regulatory approvals for our products, litigation and other factors discussed in this prospectus.
USE OF PROCEEDS
The proceeds from the sale of the shares covered by this prospectus will be received by the selling stockholders. We will not receive any of the
proceeds from the sales by the selling stockholders of the shares covered by this prospectus. However, if the selling stockholders convert all or
a portion of the Notes, this conversion will reduce our senior indebtedness to the selling stockholders and related payment obligations.
DESCRIPTION OF SECURITIES TO BE REGISTERED
Capital Stock
General
Our authorized capital stock consists of 275,000,000 shares of common stock, par value $0.01 per share. As of October 19, 2012 there
were 95,586,644 shares of common stock outstanding and held of record by approximately 500 stockholders .
Each holder of common stock is entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders. There
is no cumulative voting for the election of directors and, as a consequence, minority stockholders will not be able to elect directors on the basis
of their votes alone. Holders of common stock are entitled to receive ratably dividends as may be declared by the board of directors out of
funds legally available therefor. We have never paid and we do not anticipate declaring or paying any cash dividends on shares of our common
stock in the foreseeable future. Upon our liquidation, dissolution or winding up, the holders of common stock then outstanding are entitled to
share ratably in our assets remaining after the payment of liabilities, including our outstanding debt. All shares of common stock outstanding
and to be outstanding upon completion of this offering are and will be fully paid and nonassessable.
On December 30, 2002, pursuant to a rights agreement, we distributed common stock purchase rights to stockholders of record as a dividend at
the rate of one right for each share of common stock. Each share of common stock that we have issued since December 30, 2002 similarly has
been accompanied by a common stock purchase right. Each right entitles the holder to purchase from us one ten-thousandth of a share of
common stock at an exercise price of $4.00. Initially the rights are attached to the common stock and are not exercisable.
The rights become exercisable and will separate from the common stock:
• ten calendar days after a person or group acquires beneficial ownership of fifteen percent or more of our common stock, or
• ten business days (or a later date following such announcement as determined by our board of directors) after the announcement of a
tender offer or an exchange offer to acquire fifteen percent or more of our outstanding common stock.
The rights are redeemable for $.00001 per right at the option of the board of directors at any time prior to the close of business on the tenth
calendar day after a person or group acquires beneficial ownership of fifteen percent or more of our common stock. If not redeemed, the rights
will expire on December 30, 2012. Prior to the date upon which the rights would become exercisable under the rights agreement, our
outstanding stock certificates will represent both the shares of common stock and the rights, and the rights will trade only with the shares of
common stock.
13
Generally, if the rights become exercisable, then each stockholder, other than the stockholder whose acquisition has caused the rights to
become exercisable, is entitled to purchase, for the exercise price, that number of shares of common stock that, at the time of the transaction,
will have a market value of two times the exercise price of the rights. In addition, if, after the rights become exercisable, we are acquired in a
merger or other business combination, or fifty percent or more of our assets, cash flow or earning power are sold, each right will entitle the
holder to purchase, at the exercise price of the rights, that number of shares of common stock of the acquiring company that, at the time of the
transaction, will have a market value of two times the exercise price of the rights.
In connection with the Restated Financing Agreement, the rights agreement was amended to render the rights inapplicable to the restructuring
under the Restated Financing Agreement and the other transactions contemplated by or occurring concurrently with such restructuring.
In connection with the Forbearance Agreement, the rights agreement was further amended to render the rights inapplicable to the restructuring
under the Forbearance Agreement and the other transactions contemplated by or occurring concurrently with such restructuring.
The rights plan is intended to improve the ability of our board of directors to protect the interests of Unigene and our stockholders in the event
of an unsolicited proposal to acquire a significant interest in Unigene.
Common Stock Owned By the Selling Stockholders
On September 30, 2008, we entered into the Financing Agreement with Agent and the Funds, pursuant to which the Funds purchased
$20,000,000 of three-year senior secured non-convertible term notes from us and we issued the Shares. On October 19, 2009, in connection
with the Omnibus Amendment Agreement that we entered into with the Funds, we issued the Exchange Shares to Special Situations Fund in
exchange for Special Situations Fund’s surrender of a warrant to purchase 1,000,000 shares of common stock pursuant to the terms of a
Warrant Exchange Agreement. The Funds also had collectively purchased an aggregate of 6,845,814 Other Shares in open market transactions
and privately negotiated transactions. In March 2010, Special Situations Fund sold and assigned to Credit Opportunities Fund all of its rights,
title and interest in and to the Original Notes, the Shares, the Exchange Shares and the Other Shares. The Shares, the Exchange Shares and the
Other Shares were subsequently transferred by Credit Opportunities Fund to certain of the selling stockholders, each of which is an affiliate of
Credit Opportunities Fund, as set forth below in the Selling Stockholders section of this prospectus.
Common Stock to be Issued to the Selling Stockholders upon Conversion of the Notes
On March 16, 2010, we entered into the Restated Financing Agreement and, pursuant to the terms of the Restated Financing
Agreement, we issued the 2010 Notes in exchange for the Original Notes in the outstanding aggregate principal amount of approximately
$19,360,000 and for a cash payment (before closing expenses) of approximately $13,640,000. The 2010 Notes accrue interest at a rate per
annum equal to the greater of (i) the prime rate plus 5% and (ii) 15%. On each of March 17, 2011 and March 17, 2012, pursuant to the terms
of the 2010 Notes, accrued interest payable through such date was capitalized and added to the outstanding principal balance of the respective
2010 Notes. Between the date of issuance of the 2010 Notes and September 24, 2012, the 2010 Notes were transferred by Credit Opportunities
Fund to the selling stockholders, each of which is an affiliate of Credit Opportunities Fund, as set forth below in the Selling Stockholders
section of this prospectus.
On September 21, 2012, we entered into the Forbearance Agreement, pursuant to which we issued to the selling stockholders the First
Amendment Note, and, on September 24, 2012, re-issued to the selling stockholders the 2010 Note (as the Re-issued Notes).
The Notes are convertible into shares of common stock at the holder’s option. The initial conversion rate, for the First Amendment Note is
calculated by dividing the sum of the principal to be converted plus all accrued and unpaid interest thereon by $0.05 per share. The initial
conversion rate, for the Re-issued Notes, is calculated by dividing the sum of the principal to be converted, plus all accrued and unpaid interest
thereon, by $0.15 per share. If we subsequently make certain issuances of common stock or common stock equivalents at an effective purchase
price less than the then-applicable conversion price, the conversion price of the Notes will be reduced to such lower price.
Assuming $47,816,609.39 aggregate principal amount of Notes together with accrued interest thereon of $10,704,410.41 is outstanding at
maturity of the Notes for the full term of the Notes, and assuming a conversion price of $0.15 for the Reissued Notes and a conversion price of
$0.05 for the First Amendment Note, the Notes will be convertible into approximately 451,584,576 Conversion Shares. Under the Second
Restated Registration Rights Agreement, we are required to file and must continue to maintain effective with the SEC a registration statement
covering the resale of all of the Shares, the Exchange Shares, the Other Shares and the Conversion Shares. However, the number of our
authorized shares of common stock is currently insufficient to cover all the Conversion Shares issuable if such Notes were converted in
full. This prospectus covers the Shares, the Exchange Shares, the Other Shares and a portion of the Conversion Shares issuable to the selling
stockholders upon conversion of the Notes, up to the number of shares of common stock that we have authorized, unissued and otherwise
unreserved. Currently, we have reserved for issuance and delivery, upon conversion of the Notes, 153,093,862 shares of authorized, unissued
and otherwise unreserved common stock.
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As required under the Forbearance Agreement, we are seeking stockholder approval at our next meeting of stockholders to be held on or prior
to January 21, 2013 to increase the number of authorized shares of common stock to a number that will be sufficient to cover the full number of
Conversion Shares plus a buffer equal to an additional 10% of those shares. If stockholder approval is obtained, we intend to promptly file an
amendment to our Certificate of Incorporation to effect such increase in the number of authorized shares of our common stock (the
“Amendment”). If stockholder approval of the Amendment is not so obtained, we will be required to call a stockholders meeting every four
months to seek approval of the Amendment until the date on which such approval is obtained. Thereafter, we will be required to file with the
SEC a new registration statement covering the resale of Conversion Shares not then covered by an effective registration statement for resales
pursuant to Rule 415.
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SELLING STOCKHOLDERS
The shares of common stock being offered by the selling stockholders are: (i) the Shares issued by us pursuant to the Original
Financing Agreement; (ii) the Exchange Shares issued by us pursuant to the Warrant Exchange Agreement; (iii) the Other Shares acquired by
Credit Opportunities Fund in open market transactions and privately negotiated transactions; and (iv) a portion of the Conversion Shares
issuable to the selling stockholders upon conversion of the Notes, up to the number of shares of common stock that we have authorized,
unissued and otherwise unreserved. We are registering the shares of common stock in order to permit the selling stockholders to offer the
shares for resale from time to time. See the “Plan of Distribution” section of this prospectus, which follows. Under the terms of the Second
Restated Registration Rights Agreement, we have agreed to use our best efforts to maintain an effective registration statement for the period
beginning with the effectiveness of the registration statement of which this prospectus forms a part and ending with the earlier of (i) the date as
of which the selling stockholders may sell all of the Registrable Securities (as defined in the Second Restated Registration Rights Agreement)
without restriction or condition pursuant to Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”) (or successor thereto),
or (ii) the date on which the selling stockholders or any transferees to whom the selling stockholders have assigned their rights under, and in
accordance with the terms and conditions of, the Second Restated Registration Rights Agreement, have sold all of the Registrable Securities.
On March 16, 2010, we entered into the Restated Financing Agreement, and, under the Restated Financing Agreement, we issued the
2010 Notes in the aggregate original principal amount of $33,000,000. Effective as of July 28, 2010, pursuant to an Assignment and
Assumption Agreement, Credit Opportunities Fund sold and assigned a portion of the 2010 Notes to its affiliate, VPC Fund II, L.P., one of the
selling stockholders listed on the Selling Stockholder table in this prospectus. Effective as of December 22, 2010, pursuant to an Assignment
and Assumption Agreement, Credit Opportunities Fund sold and assigned an additional portion of the 2010 Notes to VPC Fund II,
L.P. Effective as of June 30, 2011, pursuant to an Assignment and Assumption Agreement, VPC Fund II, L.P. sold and assigned a portion of
the 2010 Notes to its affiliate, VPC Intermediate Fund II (Cayman), L.P., another entity listed on the Selling Stockholder table in this
prospectus. Effective as of July 16, 2012, pursuant to Redemption Agreements entered into by Credit Opportunities Fund and its shareholders
Victory Park Credit Opportunities, L.P. and Victory Park Credit Opportunities Intermediate Fund, L.P., all of the Shares, the Exchange Shares
and the Other Shares, together with the remaining portion of the 2010 Notes then held by Credit Opportunities Fund, were transferred by Credit
Opportunities Fund to Victory Park Credit Opportunities, L.P. and Victory Park Credit Opportunities Intermediate Fund, L.P.
In addition, on each of March 17, 2011 and March 17, 2012, pursuant to the terms of the 2010 Notes, accrued interest payable through
such date was capitalized and added to the outstanding principal balance of the respective 2010 Notes.
On September 21, 2012, we entered into the Forbearance Agreement, pursuant to which we issued to the selling stockholders the First
Amendment Note, and, on September 24, 2012, we re-issued to the selling stockholders the 2010 Note (as the Re-issued Notes).
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The table below details issuances of common stock prior to the sale of the Notes to the selling stockholders, their affiliates and any
person with whom selling stockholders had a contractual relationship in connection with the Notes:
Shares Issued to Selling
Stockholders or Affiliates of Selling
Stockholders in Connection with
the Transaction
As a Percentage
Shares of of Shares of
Common Stock Common Stock
Outstanding Outstanding
Prior to Prior to
Transaction Held Transaction Held
by Persons Other by Persons Other Current
Than Selling Than Selling Market Price
Shares of Stockholders, our Stockholders, our Market Price Per Share of
Common Stock Affiliates and Affiliates and Per Share of Common
Outstanding Affiliates of Affiliates of Common Stock Stock (as of
Date of Prior to Selling Selling Prior to the October 17,
Transaction Transaction Stockholders Shares Stockholders Transaction 2012)
September 30,
2008 89,025,520 78,971,843 1,125,000 1.42% $ 0.78(1) $ 0.2945
May 22, 2009 90,322,763 77,606,843 375,000 0.48% $ 0.99(2) $ 0.2945
October 19,
2009 91,029,656 78,108,093 300,000 0.38% $ 1.94(3) $ 0.2945
(1) Based on the closing price of our common stock as quoted on the Over-the-Counter Bulletin Board on September 29, 2008.
(2) Based on the closing price of our common stock as quoted on the Over-the-Counter Bulletin Board on May 21, 2009.
(3) Based on the closing price of our common stock as quoted on the Over-the-Counter Bulletin Board on October 16, 2009.
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In addition, the table below describes the value of payments made by us to the selling stockholders and their affiliates and to others on
behalf of the selling stockholders in connection with the applicable transaction:
Payments to the Selling Stockholders, their Affiliates and Others
Value of
Selling Stockholders, their Cash Payments in
Affiliates and Others Payments Common Stock Total
Victory Park Management, LLC $ 3,626,467 (1) -- $ 3,626,467
Victory Park Special Situations Master Fund, Ltd. $ 1,895,293 (2) $ 1,924,245 (3) $ 3,819,538
Victory Park Credit Opportunities Master Fund, Ltd. $ 1,152,392 (4) $ 238,755 (5) $ 1,391,147
Total $ 6,674,152 $ 2,163,000 $ 8,837,152
(1) Consisting of:
• Interest payments in 2009 under the Original Financing Agreement for an aggregate of $1,391,703;
• Legal and due diligence fees in 2008 and 2009 for an aggregate of $211,000;
• Interest payments in 2010 under the Original Financing Agreement (until the execution of the Restated Financing Agreement) for an
aggregate of $682,335;
• A $660,000 closing fee paid on March 17, 2010 under the Restated Financing Agreement;
• A payment of $5,000 in connection with out-of-pocket fees and expenses on March 17, 2010 under the Restated Financing
Agreement;
• Payments of legal fees and due diligence costs for the period June 2010 through the date of the Forbearance Agreement for an
aggregate of $176,429 incurred in connection with the Restated Financing Agreement and the Amended and Restated Registration
Rights Agreement, dated March 17, 2010 between us and Credit Opportunities Fund; and
• A $500,000 deposit made by us with Victory Park Management, LLC on September 21, 2012 to reimburse Victory Park
Management, LLC and the selling stockholders for certain existing and future fees, costs and expenses incurred by (or to be incurred
by) Victory Park Management, LLC and the selling stockholders in connection with the transactions contemplated by the Restated
Financing Agreement and the Forbearance Agreement.
(2) Consisting of:
• A $450,000 closing fee paid on September 30, 2008 under the Original Financing Agreement;
• Prepayment of $1,050,000 in interest on September 30, 2008 under the Original Financing Agreement;
• Interest payments in 2009 under the Original Financing Agreement for an aggregate of $122,943;
• A $51,545 closing fee paid on May 22, 2009 under the Original Financing Agreement; and
• Mandatory prepayments under the Original Financing Agreement in 2009 and 2010 in connection with proceeds received from the
sale of certain New Jersey tax benefits in the aggregate amounts of $159,062 and $61,743, respectively.
(3) Consisting of:
• 1,125,000 shares of common stock issued on September 30, 2008 under the Original Financing Agreement, valued based on the $1.09
closing price per share of common stock on that date;
• 128,861 shares of common stock issued on May 22, 2009 under the Original Financing Agreement, valued based on the $0.97 closing
price per share of common stock on that date; and
• 300,000 shares of common stock issued on October 19, 2009 in exchange for surrender of a warrant to purchase 1,000,000 shares of
common stock, valued based on the $1.91 closing price per share of common stock on that date.
(4) Consisting of:
• Interest payments in 2009 under the Original Financing Agreement for an aggregate of $234,835;
• A $98,455 closing fee paid on May 22, 2009 under the Original Financing Agreement;
• Mandatory prepayments under the Original Financing Agreement in 2009 and 2010 in connection with proceeds received from the
sale of certain New Jersey tax benefits in the aggregate amounts of $303,732 and $117,936, respectively;
• Payment on March 17, 2010 under the Restated Financing Agreement of $120,447 of accrued and unpaid interest;
• Payment on March 17, 2010 of legal fees incurred by Credit Opportunities Fund in connection with the Restated Financing
Agreement; and
• Payment on March 17, 2010 of fees to a title company in connection with the Restated Financing Agreement.
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(5) Consisting of 246,139 shares of common stock issued on May 22, 2009 under the Original Financing Agreement, valued based on the
$0.97 closing price per share of common stock on that date.
Except for (a) the transactions described in the Restated Financing Agreement, the Forbearance Agreement and the Second Restated
Registration Rights Agreement, including without limitation, the purchase of the Original Notes and the Notes (including the Re-issued Notes
and the First Amendment Note), and matters relating thereto, (b) the other transactions described in the tables above, and under “About This
Offering” and the selling stockholders’ resulting ownership of the Shares, the Exchange Shares and the Other Shares, (c) the appointment of
Richard Levy, the managing partner and founder of Victory Park Capital, as Chairman of the Board and a member of our Nominating and
Corporate Governance Committee in March 2010 and his service in such roles since that date, and (d) the Agent’s right, pursuant to the
Restated Financing Agreement, to designate, subject to certain conditions, an individual to fill the vacant seat on our board of directors, none of
the selling stockholders has had any material relationship with us within the past three years.
Following the issuance of the 2010 Notes on March 17, 2010 (and payment of certain related fees detailed above), we made no
payments to any of the selling stockholders or their affiliates through March 17, 2011, the first anniversary of the sale of the 2010 Notes. On
each of March 17, 2011 and March 17, 2012, pursuant to the terms of the 2010 Notes, accrued interest payable through such date was
capitalized and added to the outstanding principal balance of the respective 2010 Notes. On September 21, 2012, we deposited $500,000 with
the Agent (out of the $4,000,000 purchase price for the First Amendment Note) to reimburse the Agent and the selling stockholders for certain
existing and future fees, costs and expenses incurred by (or to be incurred by) the Agent and the selling stockholders in connection with the
transactions contemplated by the Restated Financing Agreement and the Forbearance Agreement. We may be required to make certain
payments to the selling stockholders and their affiliates if we are in default under the Restated Financing Agreement, the Forbearance
Agreement and/or the Second Restated Registration Rights Agreement and/or if we receive certain extraordinary payments. The table below
describes these potential payments, although it is not possible to quantify such payments at this time:
Possible Payments to the Selling Stockholders and their Affiliates Upon an Event of Default or the Occurrence of Certain Events
Payments upon an Event of Default under the Restated Financing Upon an event of default, we may be required to redeem all or a
Agreement or the Forbearance Agreement portion of the Notes and in connection therewith, we will be required
to pay the selling stockholders (i) the outstanding principal amount of
the Notes; (ii) accrued and unpaid interest and late charges; and (iii) a
premium equal to the greater of (x) 1% of the Notes prior to
redemption and (y) the excess of the present value of all scheduled
future interest payments and scheduled redemptions until the scheduled
maturity date, discounted by a published annual interest rate for
comparable treasury instruments, over the principal of the Notes at the
time of redemption. In addition, upon the occurrence of certain Events
of Default, we will be required to redeem the Notes by paying an
amount equal to the greater of (x) 115% of the outstanding Notes
principal plus accrued and unpaid interest and late charges and (y) the
number of common shares into which the Notes are then convertible,
multiplied by the weighted average price of our common stock.
Mandatory prepayments under the Restated Financing Agreement We must prepay the Notes if we receive certain cash proceeds outside
upon the occurrence of certain events of the ordinary course of our business, such as from asset sales,
incurrence of debt, milestone payments or extraordinary receipts.
Payments under the Second Restated Registration Rights Agreement With the exception of certain permitted grace periods, if we do not
keep the registration statement of which this prospectus forms a part
effective, including due to our failure to disclose such information
necessary to allow sales to be made pursuant to such registration
statement, a suspension or delisting of our common stock from the
OTC Bulletin Board (or the national stock exchange on which such
stock is then traded) or our failure to register a sufficient number of
shares of common stock for resale by the selling stockholders, we will
need to pay the selling stockholders damages in an amount equal to 2%
of the aggregate value of the registrable securities on the initial date of
such failure and on every 30th day thereafter (pro rated as appropriate)
until the failure is cured. The aggregate value will be determined by
multiplying, for certain days until the failure is cured, the number of
registrable securities by the greater of (x) the then-current market price
of the securities and (y) $0.70.
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The following table sets forth certain information known to us regarding the shares of our common stock held as of October 17, 2012
and to be offered from time to time by the entities listed on this Selling Stockholder table and as adjusted to give effect to the sale of certain
shares offered hereby. The information regarding shares owned both before and after the offering assumes that (i) the Amendment has not yet
been approved by our stockholders to increase the number of shares of common stock that we are authorized to issue and (ii) the Notes are
currently convertible into shares of our common stock at the applicable conversion rate, but only with respect to that number of shares of
common stock that we have authorized, unissued and otherwise unreserved (that is, the 153,093,862 shares of our common stock that we
have registered under the registration statement of which this prospectus forms a part). The initial conversion rate for the First Amendment
Note is calculated by dividing the sum of the principal to be converted plus all accrued and unpaid interest thereon by $0.05 per share. The
initial conversion rate for the Re-issued Notes is calculated by dividing the sum of the principal to be converted, plus all accrued and unpaid
interest thereon, by $0.15 per share. The information regarding shares owned after the offering assumes the sale of all those shares offered by
each of the selling stockholders and we cannot assure you that such selling stockholder will sell any or all of those shares. Accordingly, the
information included on the following table is provided subject to these assumptions. To the Company’s knowledge, none of the entities listed
on this Selling Stockholder table has an existing short position in the Company’s common stock.
Ownership Before
Offering Common Shares Ownership After Offering
Name of that May Be Percent of
Selling Sold Pursuant Common Common
Stockholder Common Shares to the Offering Shares Shares Held
Victory Park Credit
Opportunities, L.P. (1) 45,924,766 45,924,766 0 0%
Victory Park Credit
Opportunities Intermediate
Fund, L.P. (1) 40,572,409 40,572,409 0 0%
VPC Fund II, L.P. (1) 53,570,251 53,570,251 0 0%
VPC Intermediate Fund II
(Cayman), L.P. (1) 21,672,250 21,672,250 0 0%
(1) Victory Park GP, LLC (“GP I”) is the general partner of each of Victory Park Credit Opportunities, L.P. and Victory Park Credit
Opportunities Intermediate Fund, L.P. and consequently may be deemed to have the shared power to vote or direct the vote of (and the shared
power to dispose or direct the disposition of) the securities held by each of Victory Park Credit Opportunities, L.P. and Victory Park Credit
Opportunities Intermediate Fund, L.P. Victory Park GP II, LLC (“GP II”) is the general partner of each of VPC Fund II, L.P. and VPC
Intermediate Fund II (Cayman), L.P. and consequently may be deemed to have the shared power to vote or direct the vote of (and the shared
power to dispose or direct the disposition of) the securities held by each of VPC Fund II, L.P. and VPC Intermediate Fund II (Cayman), L.P.
Victory Park Capital Advisors, LLC (“Capital Advisors”) is the investment manager of each of the selling stockholders and consequently may
be deemed to have the shared power to vote or direct the vote of (and the shared power to dispose or direct the disposition of) the securities
held by the selling stockholders. As the manager of each of Capital Advisors, GP I and GP II, Jacob Capital, L.L.C. (“Jacob Capital”) may be
deemed to have the shared power to vote or direct the vote of (and the shared power to dispose or direct the disposition of) the securities held
by the selling stockholders. By virtue of Richard Levy’s position as sole member of Jacob Capital, Richard Levy may be deemed to have the
shared power to vote or direct the vote of (and the shared power to dispose or direct the disposition of) the securities held by the selling
stockholders. Therefore, (i) GP I may be deemed to be the beneficial owner of the securities held by each of Victory Park Credit Opportunities,
L.P. and Victory Park Credit Opportunities Intermediate Fund, L.P.; (ii) GP II may be deemed to be the beneficial owner of the securities held
by each of VPC Fund II, L.P. and VPC Intermediate Fund II (Cayman), L.P. and (iii) each of Capital Advisors, Jacob Capital and Richard Levy
may be deemed to be the beneficial owner of the securities held by each of the selling stockholders.
Richard Levy is a member of Unigene’s board of directors, and, by virtue of the service on Unigene’s board of directors of Richard Levy, who
has ultimate control over the investment decisions of each of the selling stockholders (including decisions with respect to the purchase, sale and
voting of the Notes, the Shares, the Exchange Shares and the Other Shares), as designee on Unigene’s board of directors of the Agent on behalf
of the selling stockholders pursuant to the Restated Financing Agreement, representing the interests of the selling stockholders and their
respective affiliates, each of the selling stockholders and their respective affiliates (including GP I, GP II, Capital Advisors and Jacob Capital,
but excluding Richard Levy (given his status as an actual director of Unigene)) that beneficially owns (for any purpose of Section 16 of the
Exchange Act) any shares of common stock (or any derivative securities with respect thereto), is a “director by deputization” for purposes of
Section 16 of the Exchange Act, including Rule 16b-3 thereunder and related guidance of the SEC.
Each of the selling stockholders has advised us that (i) it is not a registered broker-dealer, (ii) it does not control and is not controlled by a
registered broker-dealer, (iii) it is an affiliate of a registered broker-dealer due solely to its being under common control with a registered
broker-dealer, (iv) the broker-dealer that is an affiliate of such Fund was not involved in the purchase, and will not be involved in the ultimate
sale, of the shares, (v) it acquired the shares in the ordinary course of business, and (vi) at the time it acquired the shares, it was not a party to
any agreement or other understanding to distribute the shares, directly or indirectly.
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PLAN OF DISTRIBUTION
We are registering the shares of common stock to permit the resale of these shares of common stock by the selling stockholders from time to
time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling stockholders of the shares of common
stock. We will bear all fees and expenses incident to our obligation to register the shares of common stock.
The selling stockholders may sell all or a portion of the shares of common stock beneficially owned by them and offered hereby from time to
time directly or through one or more underwriters, broker-dealers or agents. If the shares of common stock are sold through underwriters or
broker-dealers, the selling stockholders will be responsible for underwriting discounts or commissions or agent’s commissions. The shares of
common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices
determined at the time of sale or at negotiated prices. These sales may be effected from time to time pursuant to one or more of the following
methods, which may involve crosses or block transactions:
on any national securities exchange or U.S. inter-dealer quotation system of a registered national securities association on
which the securities may be listed or quoted at the time of sale;
in the over-the-counter market;
in transactions otherwise than on these exchanges or systems or in the over-the-counter market;
through the writing of options, whether such options are listed on an options exchange or otherwise;
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
an exchange distribution in accordance with the rules of the applicable exchange;
public or privately negotiated transactions;
short sales;
broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per
share;
a combination of any such methods of sale; or
any other method permitted pursuant to applicable law.
If the selling stockholders effect such transactions by selling shares of common stock to or through underwriters, broker-dealers or agents, such
underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling
stockholders or commissions from purchasers of the shares of common stock for whom they may act as agent or to whom they may sell as
principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those
customary in the types of transactions involved). In connection with sales of the shares of common stock or otherwise, the selling stockholders
may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the shares of common stock in the course
of hedging in positions they assume. The selling stockholders may also sell shares of common stock short and deliver shares of common stock
covered by this prospectus to close out short positions, and to return borrowed shares in connection with such short sales, provided, that the
short sales are made after the registration statement is declared effective. The selling stockholders may also loan or pledge shares of common
stock to broker-dealers in connection with bona fide margin accounts secured by the shares of common stock, which shares broker-dealers
could in turn sell if the selling stockholders default in the performance of their respective secured obligations.
The selling stockholders may pledge or grant a security interest in some or all of the shares of common stock owned by them and, if any of
them defaults in the performance of its secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from
time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the
Securities Act, amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling
stockholders under this prospectus. The selling stockholders also may transfer and donate the shares of common stock in other circumstances in
which case the transferees, donees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
The selling stockholders and any broker-dealer participating in the distribution of the shares of common stock may be deemed to be
“underwriters” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such
broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the
shares of common stock is made, a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares
of common stock being offered and the terms of the offering, including the name or names of any underwriters, broker-dealers or agents, any
discounts, commissions and other terms constituting compensation from the selling stockholders and any discounts, commissions or
concessions allowed or reallowed or paid to underwriters or broker-dealers.
Under the securities laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or
dealers. In addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified for sale in
such state or an exemption from registration or qualification is available and is complied with.
21
There can be no assurance that any selling stockholder will sell any or all of the shares of common stock registered pursuant to the registration
statement of which this prospectus forms a part.
The selling stockholders and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act,
and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit the timing of
purchases and sales of any of the shares of common stock by the selling stockholders and any other participating person. Regulation M may
also restrict the ability of any person engaged in the distribution of the shares of common stock to engage in market-making activities with
respect to the shares of common stock. All of the foregoing may affect the marketability of the shares of common stock and the ability of any
person or entity to engage in market-making activities with respect to the shares of common stock.
We will pay all expenses of the registration of the shares of common stock pursuant to the registration rights agreement, including, without
limitation, SEC filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, that the selling stockholders
will pay all underwriting discounts and selling commissions, if any. We will indemnify the selling stockholders against liabilities, including
liabilities under the Securities Act, in accordance with the registration rights agreement, or the selling stockholders will be entitled to
contribution. We may be indemnified by the selling stockholders against civil liabilities, including liabilities under the Securities Act, that may
arise from any written information furnished to us by the selling stockholders specifically for use in this prospectus, in accordance with the
related registration rights agreement, or we may be entitled to contribution.
In compliance with the guidelines of the Financial Industry Regulatory Authority, or FINRA, the maximum commission or discount to be
received by any FINRA member or independent broker-dealer will not exceed 8% of the proceeds from any offering of the shares of our
common stock pursuant to this prospectus and any applicable prospectus supplement.
Once sold under the registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable in the
hands of persons other than our affiliates.
Any shares covered by this prospectus that qualify for sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144, rather than
pursuant to this prospectus.
LEGAL MATTERS
The validity of the Unigene common stock offered by this prospectus will be passed upon for Unigene by Reed Smith LLP, Princeton, New
Jersey.
EXPERTS
The financial statements, and management’s assessment of the effectiveness of internal control over financial reporting incorporated by
reference in this prospectus and elsewhere in the registration statement have been so incorporated by reference in reliance upon the reports of
Grant Thornton LLP, independent registered public accountants, upon the authority of said firm as experts in accounting and auditing in giving
said reports.
WHERE YOU CAN FIND MORE INFORMATION
The SEC allows us to “incorporate by reference” certain information we have filed with them, which means that we can disclose important
information to you by referring you to documents we have filed with the SEC. The information incorporated by reference is considered to be
part of the registration statement. We incorporate by reference the documents listed below:
• Our Annual Report on Form 10-K for the fiscal year ended December 31, 2011 filed on March 15, 2012;
• Our Amendment No. 1 to Annual Report on Form 10-K/A for the fiscal year ended December 31, 2011 filed on April 30, 2012;
• Our Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2012 filed on May 10, 2012, and June 30, 2012 filed on
August 9, 2012;
• Our Current Reports on Form 8-K filed on January 9, 2012 (as to those sections that are filed), January 23, 2012, March 5, 2012,
March 8, 2012 (regarding Items 2.02 and 9.01; as to those sections that are filed), March 8, 2012 (regarding Items 7.01 and 9.01; as
to those sections that are filed) March 16, 2012 (regarding Items 5.02 and 9.01), March 16, 2012 (regarding Item 8.01), March 22,
2012, April 2, 2012, April 3, 2012, April 9, 2012, May 7, 2012 (as to those sections that are filed), May 22, 2012, June 4, 2012, June
5, 2012 (as to those sections that are filed), June 6, 2012, June 12, 2012, July 26, 2012, August 9, 2012 (as to those sections that are
filed), August 15, 2012, August 16, 2012, September 7, 2012, September 19, 2012, September 26, 2012 and October 3, 2012,
October 16, 2012.
22
We will provide to each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all of the reports or
documents that have been incorporated by reference in this prospectus but not delivered with the prospectus. We will provide these reports or
documents upon written or oral request, at no cost to the requester. Request for these reports or documents may be made to Brian Zietsman,
Chief Financial Officer, Unigene Laboratories, Inc., 81 Fulton Street, Boonton, New Jersey 07005, (973) 265-1100,
bzietsman@unigene.com. These reports and documents also may be accessed at our website: www.unigene.com.
Federal securities law requires us to file information with the SEC concerning our business and operations. We file annual, quarterly and
current reports, proxy statements and other information with the SEC. You can read and copy these documents at the public reference room
maintained by the SEC at 100 F Street, NE, Room 1580, Washington, DC 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room. Our SEC filings are also available to the public on the SEC’s web site at http://www.sec.gov.
We have filed with the SEC a registration statement on Form S-1 to register the stock to be sold in connection with this prospectus. As
permitted by the rules and regulations of the SEC, this prospectus, which forms a part of the registration statement, does not contain all of the
information included in the registration statement. For further information pertaining to us and the securities offered under this prospectus,
reference is made to the registration statement and the attached exhibits and schedule. Although required material information has been
presented in this prospectus, statements contained in this prospectus as to the contents or provisions of any contract or other document referred
to in this prospectus may be summary in nature and in each instance reference is made to the copy of this contract or other document filed as an
exhibit to the registration statement and each statement is qualified in all respects by this reference, including the exhibits and schedule filed
therewith. You should rely only on the information incorporated by reference or provided in this prospectus or any supplement to this
prospectus. We have not authorized anyone else to provide you with different information. The selling stockholders should not make an offer
of these securities pursuant to this prospectus in any state where the offer is not permitted.
You should rely only on the information contained in this prospectus and those documents incorporated by reference. We have not authorized
anyone to provide you with information that is different. This prospectus is not an offer to sell nor is it seeking an offer to buy any securities in
any state where the offer or sale is not permitted.
MATERIAL CHANGES
Since December 31, 2011, there have been no material changes in our affairs which have not been described in our Annual Report on Form
10-K filed on March 15, 2012, our Amendment No. 1 to Annual Report on Form 10-K/A filed on April 30, 2012, our Quarterly Report on
Form 10-Q filed on August 9, 2012, our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2012 filed on May 10, 2012,
our Current Reports on Form 8-K filed on January 9, 2012 (as to those sections that are filed), January 23, 2012, March 5, 2012, March 8, 2012
(regarding Items 2.02 and 9.01; as to those sections that are filed), March 8, 2012 (regarding Items 7.01 and 9.01; as to those sections that are
filed) March 16, 2012 (regarding Items 5.02 and 9.01), March 16, 2012 (regarding Item 8.01), March 22, 2012, April 2, 2012, April 3, 2012,
April 9, 2012, May 7, 2012 (as to those sections that are filed), May 22, 2012, June 4, 2012, June 5, 2012 (as to those sections that are filed),
June 6, 2012, June 12, 2012, July 26, 2012, August 9, 2012 (as to those sections that are filed), August 15, 2012, August 16, 2012, September
7, 2012, September 19, 2012, September 26, 2012 and October 3, 2012, October 16, 2012 or this prospectus.
INDEMNIFICATION
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling Unigene
pursuant to the foregoing provisions, Unigene has been informed that in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
23
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution .
The expenses payable by Unigene in connection with the issuance and distribution of the securities being registered (other than underwriting
discounts and commissions, if any) are set forth below. Each item listed is estimated, except for the Securities and Exchange Commission
registration fee.
Securities and Exchange Commission registration fee $ 4,010.28
Blue Sky fees and expenses 30,000
Accounting fees and expenses 25,000
Legal fees and expenses 50,000
Printing expenses 700
Miscellaneous 500
Total expenses $ 110,210.28
All costs, expenses and fees in connection with the registration of these shares will be borne by Unigene.
Item 14 . Indemnification of Directors and Officers.
Unigene is incorporated under the laws of the State of Delaware. Section 145 (“Section 145”) of Title 8 of the Delaware Code gives a
corporation power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the
person’s conduct was unlawful.
Section 145 also gives a corporation power to indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person
is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees)
actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper. Section 145
further provides that, to the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in
defense of any such action, suit or proceeding, or in defense of any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
Section 145 also authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him and incurred by him in any such
capacity, arising out of his status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145.
Unigene currently maintains directors and officers liability insurance on behalf of and covering its officers and all members of its board of
directors against expenses, liabilities or losses asserted against or incurred by any such individual in such capacity or arising out of such
individual’s status as an officer or member of the board of directors, subject to customary exclusions.
II-1
Unigene’s Certificate of Incorporation provides that no director shall be liable to Unigene or its stockholders for monetary damages for breach
of his fiduciary duty as a director. However, a director will be liable for any breach of his duty of loyalty to Unigene or its stockholders, for acts
or omissions not in good faith or involving intentional misconduct or knowing violation of law, any transaction from which the director derived
an improper personal benefit, or payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law.
Item 15. Recent Sales of Unregistered Securities.
Since October 1, 2009, Unigene has made the following sales of securities that were not registered under the Securities Act:
(1) On October 19, 2009, in connection with the Omnibus Amendment Agreement that Unigene entered into with the Funds, Unigene issued
300,000 shares of common stock to Special Situations Fund in exchange for Special Situations Fund’s surrender of a warrant to purchase
1,000,000 shares of common stock pursuant to the terms of a Warrant Exchange Agreement. Unigene issued these securities in exchange for
the warrant pursuant to an exemption from the registration requirements under Section 3(a)(9) of the Securities Act and the rules promulgated
thereunder for certain exchange offers.
(2) On March 16, 2010, Unigene entered into the Restated Financing Agreement with Agent, as administrative agent and collateral agent, and
Credit Opportunities Fund, pursuant to which Unigene issued three-year senior secured convertible notes in the aggregate original principal
amount of $33,000,000 due in 2013 in exchange for three-year senior secured non-convertible term notes in the outstanding aggregate principal
amount of approximately $19,360,000 and for a cash payment of approximately $13,640,000 to Unigene. The Notes accrue interest at a rate
per annum equal to the greater of (i) the prime rate plus 5% and (ii) 15%. On each of March 17, 2011 and March 17, 2012, pursuant to the
terms of the 2010 Notes, accrued interest payable through such date was capitalized and added to the outstanding principal balance of the
respective 2010 Notes. The 2010 Notes were re-issued to the holders thereof on September 24, 2012, as described below. Unigene issued
these securities pursuant to an exemption from the registration requirements under Section 4(2) of the Securities Act and Rule 506 of
Regulation D promulgated thereunder for transactions by an issuer not involving any public offering.
(3) On October 5, 2011, we entered into a Common Stock Purchase and Option Agreement (the “Purchase Agreement”) with Den Danske
Forskiningsfond, a Danish Foundation (“DDF”). Pursuant to the Purchase Agreement, DDF acquired 1,691,729 shares of common stock, par
value $0.01 per share from us for an aggregate purchase price of $1,500,000. These securities were deemed exempt from registration under the
Securities Act in reliance upon Section 4(2) of the Securities Act.
(4) On September 21, 2012, we entered into the Forbearance Agreement with Agent as administrative agent and collateral agent, and the selling
stockholders pursuant to which we issued to the selling stockholders the First Amendment Note, and, on September 24, 2012, we re-issued to
the selling stockholders the Re-issued Notes. The Notes are convertible into shares of common stock at the holder’s option, which will be
registered from time to time in accordance with the terms of the Second Restated Registration Rights Agreement. The initial conversion rate,
for the First Amendment Note is calculated by dividing the sum of the principal to be converted plus all accrued and unpaid interest thereon by
$0.05 per share. The initial conversion rate, for the Re-issued Notes, is calculated by dividing the sum of the principal to be converted, plus all
accrued and unpaid interest thereon, by $0.15 per share. If we subsequently make certain issuances of common stock or common stock
equivalents at an effective purchase price less than the then-applicable conversion price, the conversion price of the Notes will be reduced to
such lower price. Unigene issued these securities pursuant to an exemption from the registration requirements under Section 4(2) of the
Securities Act and Rule 506 of Regulation D promulgated thereunder for transactions by an issuer not involving any public offering and under
Section 3(a)(9) of the Securities Act and the rules promulgated thereunder for certain exchange offers.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits
II-2
INDEX TO EXHIBITS
Exhibit Description
Number
3.1 Certificate of Incorporation of Unigene Laboratories, Inc., dated October 31, 1980, as filed with the Secretary of State in the
State of Delaware on November 3, 1980, and all amendments thereto through June 15, 2006 (incorporated by reference from
Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2006).
3.2 Certificates of Amendment to Certificate of Incorporation of Unigene Laboratories, Inc., dated June 16, 2010, as filed with
the Secretary of State in the State of Delaware on June 16, 2010 (incorporated by reference from Exhibit 3.2 to the
Registrant’s Annual Report on Form 10-K for the year ended December 31, 2010).
3.3 Amended By-Laws of Unigene Laboratories, Inc. (incorporated by reference from Exhibit 3.2 to the Registrant’s Annual
Report on Form 10-K for the year ended December 31, 2004).
4.1 Rights Agreement between Unigene Laboratories, Inc. and Registrar and Transfer Company, dated December 20, 2002
(incorporated by reference from Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, dated December 23, 2002).
4.2 Amendment to Rights Agreement, dated March 16, 2010 (incorporated by reference from Exhibit 4.1 to the Registrant’s
Current Report on Form 8-K, dated March 17, 2010 (the “March 2010 Form 8-K”)).
4.3 Specimen Certificate for Common Stock, par value $.01 per share (incorporated by reference from Exhibit 3.1.1 to the
Registrant’s Registration Statement No. 33-6877 on Form S-1, filed July 1, 1986).
5.1 Opinion of Reed Smith LLP as to the legality of the securities being registered.
10.1 Lease agreement between Unigene Laboratories, Inc. and Fulton Street Associates, dated May 20, 1993 (incorporated by
reference from Exhibit 10.1 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 1992).
10.2 First Amendment to Lease Agreement between Unigene Laboratories, Inc. and Fulton Street Associates, dated May 20, 1993
(incorporated by reference from Exhibit 10.2 to the Registrant’s Annual Report on Form 10-K for the year ended December
31, 2007).
10.3 Second Amendment to Lease between Fulton Street Associates and Unigene Laboratories, Inc., dated as of May 15, 2003
(incorporated by reference from Exhibit 10.48 to Post-Effective Amendment No. 1 to Registrant’s Registration Statement No.
333-75960, filed August 1, 2003).
10.4 Directors Stock Option Plan (incorporated by reference from Exhibit 10.4 to the Registrant’s Quarterly Report on Form 10-Q
for the quarter ended June 30, 1999).*
10.5 Amendment to Directors Stock Option Plan (incorporated by reference from Exhibit 10.1 to the Registrant’s Quarterly Report
on Form 10-Q for the quarter ended June 30, 2009).*
10.6 2000 Stock Option Plan (incorporated by reference from Attachment A to the Registrant’s Schedule 14A, filed April 28,
2000, containing the Registrant’s Definitive Proxy Statement for its 2000 Annual Meeting of Stockholders). *
10.7 Unigene Laboratories, Inc. 2006 Stock-Based Incentive Compensation Plan, as amended by Amendment No. 1 (incorporated
by reference from Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2009). *
10.8 Amendment No. 2 to the Unigene Laboratories, Inc. 2006 Stock-Based Incentive Compensation Plan (incorporated by
reference from Exhibit 10.8 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2010). *
10.9 Form of Incentive Stock Option Agreement under 2006 Stock-Based Incentive Compensation Plan (incorporated by reference
from Exhibit 10.8 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2007).*
10.10 Form of Non-qualified Stock Option Agreement under 2006 Stock-Based Incentive Compensation Plan (incorporated by
reference from Exhibit 10.9 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2007).*
10.11 Form of Restricted Stock Agreement under 2006 Stock-Based Incentive Compensation Plan (incorporated by reference from
Exhibit 10.11 to the Registrant's Annual Report of Form 10-K for the year ended December 31, 2009).*
10.12 Employment Agreement by and between Unigene Laboratories, Inc. and Ashleigh Palmer, dated June 9, 2010 (incorporated
by reference from Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, dated June 9, 2010).*
10.12(a) Employment Agreement by and between Unigene Laboratories, Inc. and Ashleigh Palmer, dated June 8, 2011 (incorporated
by reference from Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, dated June 8, 2011).*
10.13 Employment Agreement by and between the Company and Gregory T. Mayes, dated September 12, 2010 (incorporated by
reference from Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2010).*
10.14 Employment Agreement between Unigene Laboratories, Inc. and Warren P. Levy, dated January 1, 2000 (incorporated by
reference from Exhibit 10.6 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 1999).*
10.15 First Amendment to Employment Agreement between Unigene Laboratories, Inc. and Warren P. Levy, dated December 22,
2008 (incorporated by reference from Exhibit 10.12 to the Registrant’s Annual Report on Form 10-K for the year ended
December 31, 2008).*
10.16 Second Amendment to Employment Agreement, dated March 17, 2010, by and between the Company and Warren P.
Levy (incorporated by reference from Exhibit 10.11 to the Registrant’s Quarterly Report on Form 10-Q for the quarter
ended March 31, 2010).*
10.17 Employment Agreement between Unigene Laboratories, Inc. and Ronald S. Levy, dated January 1, 2000 (incorporated
by reference from Exhibit 10.7 to the Registrant’s Annual Report on Form 10-K for the year ended December 31,
1999).*
10.18 First Amendment to Employment Agreement between Unigene Laboratories, Inc. and Ronald S. Levy, dated December
22, 2008 (incorporated by reference from Exhibit 10.14 to the Registrant’s Annual Report on Form 10-K for the year
ended December 31, 2008).*
10.19 Second Amendment to Employment Agreement, dated March 17, 2010, by and between the Company and Ronald Levy
(incorporated by reference from Exhibit 10.12 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended
March 31, 2010). *
10.20 Employment Agreement between Unigene Laboratories, Inc. and Jay Levy, dated January 1, 2000 (incorporated by
reference from Exhibit 10.8 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 1999).*
10.21 First Amendment to Employment Agreement between Unigene Laboratories, Inc. and Jay Levy, dated December 22,
2008 (incorporated by reference from Exhibit 10.15.1 to the Registrant’s Annual Report on Form 10-K for the year
ended December 31, 2008).*
10.22 Separation Agreement, dated March 16, 2010, by and between the Company and Jay Levy (incorporated by reference
from Exhibit 10.13 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2010).*
10.23 Summary of Deferred Compensation Plan between Unigene Laboratories, Inc. and Dr. Warren P. Levy and Dr. Ronald
S. Levy, dated December 14, 2005 (incorporated by reference from Exhibit 10.1 to Registrant’s Current Report on Form
8-K, dated December 14, 2005).*
10.24 Non-qualified Deferred Compensation Agreement between Unigene Laboratories, Inc. and Dr. Warren P. Levy, dated
February 1, 2006 (incorporated by reference from Exhibit 10.17 to the Registrant’s Annual Report on Form 10-K for the
year ended December 31, 2008).*
II-3
Exhibit Description
Number
10.25 Non-qualified Deferred Compensation Agreement between Unigene Laboratories, Inc. and Dr. Ronald S. Levy, dated
February 1, 2006 (incorporated by reference from Exhibit 10.18 to the Registrant’s Annual Report on Form 10-K for the
year ended December 31, 2008).*
10.26 Amendment to Non-qualified Deferred Compensation Agreement between Unigene Laboratories, Inc. and Dr. Warren P.
Levy, dated December 19, 2008 (incorporated by reference from Exhibit 10.19 to the Registrant’s Annual Report on
Form 10-K for the year ended December 31, 2008).*
10.27 Amendment to Non-qualified Deferred Compensation Agreement between Unigene Laboratories, Inc. and Dr. Ronald S.
Levy, dated December 22, 2008 (incorporated by reference from Exhibit 10.20 to the Registrant’s Annual Report on
Form 10-K for the year ended December 31, 2008).*
10.28 Form of Amended and Restated Change in Control Agreement, by and between the Company and the vice president
named therein (incorporated by reference from Exhibit 10.8 to the March 2010 Form 8-K).*
10.29 Amended and Restated Change in Control Agreement, dated April 5, 2010, by and between the Company and Dr. James
P. Gilligan (incorporated by reference from Exhibit 10.15 to the Registrant’s Quarterly Report on Form 10-Q for the
quarter ended March 31, 2010).*
10.30 Director Stock Option Agreement between Allen Bloom and Unigene Laboratories, Inc., dated December 5, 2001
(incorporated by reference from Exhibit 10.45 to Registrant’s Annual Report on Form 10-K for the year ended December
31, 2002).*
10.31 Director Stock Option Agreement between J. Thomas August and Unigene Laboratories, Inc., dated December 5, 2001
(incorporated by reference from Exhibit 10.46 to Registrant’s Annual Report on Form 10-K for the year ended
December 31, 2002).**
10.32 Joint Venture Contract between Shijiazhuang Pharmaceutical Group Company, Ltd., and Unigene Laboratories, Inc.,
dated June 15, 2000 (incorporated by reference from Exhibit 10.1 to the Registrant’s Amended Quarterly Report on
Form 10-Q/A , filed April 2, 2008, for the quarter ended June 30, 2000).
10.33 Articles of Association of Shijiazhuang-Unigene Pharmaceutical Corporation Limited, dated June 15, 2000 (incorporated
by reference from Exhibit 10.2 to the Registrant’s Amended Quarterly Report on Form 10-Q/A, , filed April 2, 2008 for
the quarter ended June 30, 2000).
10.34 Agreement by and between Shijiazhuang Pharmaceutical Group Company, Ltd. and Unigene Laboratories, Inc., dated
April 23, 2008 (incorporated by reference from Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q for the
quarter ended June 30, 2008).**
10.35 Technology Transfer Agreement by and between Shijiazhuang Pharmaceutical Group Corporation and Unigene
Laboratories, Inc., dated April 23, 2008 (incorporated by reference from Exhibit 10.3 to the Registrant’s Quarterly Report
on Form 10-Q for the quarter ended June 30, 2008).**
10.36 Agreement of Assignment among Shijiazhuang Pharmaceutical Group Corporation, Unigene Laboratories Inc., and China
Pharmaceutical Group Limited, dated April 23, 2008 (incorporated by reference from Exhibit 10.4 to the Registrant’s
Quarterly Report on Form 10-Q for the quarter ended June 30, 2008).
10.37 Stock Purchase Agreement, dated as of May 10, 2008, between Unigene Laboratories, Inc. and Tin Lon Investment
Limited (incorporated by reference from Exhibit 10.1 to the Registrant’s Current Report on Form 8-K dated May 10,
2008).
10.38 Amended and Restated License Agreement, dated as of December 10, 2010, by and between Unigene Laboratories, Inc.
and GlaxoSmithKline LLC (incorporated by reference from Exhibit 10.38 to the Registrant’s Amended Annual Report on
Form 10-K/A for the year ended December 31, 2010).**
10.39 License and Development Agreement between Upsher-Smith Laboratories, Inc. and Unigene Laboratories, Inc., dated
November 26, 2002 (incorporated by reference from Exhibit 10.1 to Registrant’s Current Report on Form 8-K/A, dated
October 16, 2007). *
10.40 License Agreement, dated April 7, 2004, between Unigene Laboratories, Inc. and Novartis Pharma AG (incorporated by
reference from Exhibit 10.1 to Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2007).**
10.41 Supply Agreement, dated January 22, 2007, by and between Unigene Laboratories, Inc. and Novartis Pharma AG
(incorporated by reference from Exhibit 10.1 to the Registrant’s Amended Quarterly Report on Form 10-Q/A filed March
20, 2008, for the quarter ended March 31, 2007). *
10.42 Amended and Restated Security Agreement, dated May 10, 2007, by and between Unigene Laboratories, Inc. and Jay
Levy (incorporated by reference from Exhibit 10.3 to Registrant’s Current Report on Form 8-K, dated May 10, 2007). **
10.43 Patent Security Agreement, dated March 13, 2001, between Unigene Laboratories, Inc. and Jay Levy (incorporated by
reference from Exhibit 10.38 to Amendment No. 2 to Registrant’s Registration Statement No. 333-04557 on Form S-1,
filed December 12, 2001).
10.44 First Amendment to Patent Security Agreement, dated May 29, 2001, between Unigene Laboratories, Inc. and Jay Levy
(incorporated by reference from Exhibit 10.39 to Amendment No. 2 to Registrant’s Registration Statement No.
333-04557 on Form S-1, filed December 12, 2001).
10.45 Second Amendment to Patent Security Agreement, dated November 26, 2002, by and between Unigene Laboratories, Inc.
and Jay Levy (incorporated by reference from Exhibit 10.33 to the Registrant’s Annual Report on Form 10-K for the year
ended December 31, 2007).
10.46 Third Amendment to Patent Security Agreement, dated May 10, 2007, by and between Unigene Laboratories, Inc. and the
Jaynjean Family Limited Partnership (incorporated by reference from Exhibit 10.4 to Registrant’s Current Report on
Form 8-K, dated May 10, 2007).**
10.47 Mortgage and Security Agreement, dated July 13, 1999, by and between Unigene Laboratories, Inc. and Jay Levy
(incorporated by reference from Exhibit 10.4 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999).
10.48 Modification of Mortgage and Security Agreement, dated August 5, 1999, by and between Unigene Laboratories, Inc. and
Jay Levy (incorporated by reference from Exhibit 10.7 to the Registrant’s Quarterly Report on Form 10-Q for the quarter
ended September 30, 1999).
II-4
Exhibit Description
Number
10.49 Modification of Mortgage and Security Agreement, dated May 10, 2007, by and between Unigene Laboratories, Inc. and
Jay Levy (incorporated by reference from Exhibit 10.5 to Registrant’s Current Report on Form 8-K, dated May 10,
2007).**
10.50 Third Modification of Mortgage and Security Agreement, dated September 30, 2008, by and between Unigene
Laboratories, Inc. and Jay Levy (incorporated by reference from Exhibit 10.8 to the Company’s Current Report on Form
8-K filed on October 6, 2008 (the “October 2008 8-K Report”)).
10.51 Assignment of Mortgage by Jay Levy to Jean Levy, dated February 25, 2010 (incorporated by reference from Exhibit
10.56 to the Registrant's Annual Report on Form 10-K for the year ended December 31, 2009).
10.52 Senior Secured Term Note, dated May 22, 2009, issued by Unigene Laboratories, Inc. in favor of the Lenders signatory to
the Financing Agreement, dated as of September 30, 2008 (the "VPC Financing Agreement") by and among Unigene
Laboratories, Inc., the Lenders and Victory Park Management, LLC, as agent (incorporated by reference from Exhibit
10.1 to the Registrant’s Current Report on Form 8-K, dated May 29, 2009).
10.53 Pledge and Security Agreement, dated as of September 30, 2008, by and among Unigene Laboratories, Inc., Victory Park
Management, LLC, as agent, and the Secured Parties (incorporated by reference from Exhibit 10.3 to the October 2008
8-K Report).**
10.54 Amended and Restated Financing Agreement (the “Restated Financing Agreement”), dated as of March 16, 2010, by and
among the Company, the Lenders and Victory Park Management, LLC, as agent (incorporated by reference from Exhibit
10.1 to the March 2010 Form 8-K).
10.55 Master Reaffirmation and Amendment to Transaction Documents, dated as of March 17, 2010, by and among the
Company and Victory Park Management, LLC, as agent (incorporated by reference from Exhibit 10.2 to the March 2010
Form 8-K).**
10.56 Senior Secured Convertible Term Note, dated March 17, 2010, issued by the Company in favor of the Lenders signatory
to the Restated Financing Agreement (incorporated by reference from Exhibit 10.3 to the March 2010 Form 8-K).
10.57 Amended and Restated Registration Rights Agreement, dated as of March 17, 2010, by and among the Company and the
Lenders (incorporated by reference from Exhibit 10.4 to the March 2010 Form 8-K).
10.58 Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing, dated as of September 30, 2008, by
and between the Company and Victory Park Management, LLC, as agent (incorporated by reference from Exhibit 10.5 to
the October 2008 Form 8-K).
10.59 First Amendment to Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing, dated as of
March 17, 2010, by and between the Company and Victory Park Management, LLC, as agent (incorporated by reference
from Exhibit 10.6 to the October 2008 Form 8-K).
10.60 Affiliate Subordination Agreement, dated as of September 30, 2008, by and among Unigene Laboratories, Inc., Jay Levy,
Jaynjean Levy Family Limited Partnership and Victory Park Management, LLC, as agent for the Lenders signatory to the
VPC Financing Agreement (incorporated by reference from Exhibit 10.5 to the October 2008 8-K Report).
10.61 Assignment and Assumption Agreement, dated January 11, 2010, by and between Jay Levy and Jean Levy (incorporated
by reference from Exhibit 10.64 to the Company's Annual Report on Form 10-K for the year ended December 31, 2009).
10.62 Affiliate Subordination Reaffirmation, dated as of March 17, 2010, by and among the Company, Jean Levy, Jaynjean
Levy Family Limited Partnership and Victory Park Management, LLC, as agent for the Lenders (incorporated by
reference from Exhibit 10.7 to the March 2010 Form 8-K).
10.63 Amended and Restated Secured Promissory Note, dated March 17, 2010, issued by the Company in favor of Jean Levy
(incorporated by reference from Exhibit 10.8 to the Registrant’s quarterly report on Form 10-Q for the quarter ended
March 31, 2010).
10.64 Amended and Restated Secured Promissory Note, dated March 17, 2010, issued by the Company in favor of the Jaynjean
Levy Family Limited Partnership (incorporated by reference from Exhibit 10.9 to the Registrant’s quarterly report on
Form 10-Q for the quarter ended March 31, 2010).
10.65 Fourth Modification of Mortgage, in favor of Jean Levy, dated March 17, 2010 (incorporated by reference from Exhibit
10.10 to the Registrant’s quarterly report on Form 10-Q for the quarter ended March 31, 2010).
10.66 Forbearance Agreement, dated December 10, 2010, by and among Unigene Laboratories, Inc., Victory Park Management,
LLC, as agent, and the Secured Parties named therein (incorporated by reference from Exhibit 10.66 to the Registrant’s
Annual Report on Form 10-K for the year ended December 31, 2010).
10.67 Letter Agreement, dated as of December 10, 2010, by and among Unigene Laboratories, Inc., Victory Park Management,
LLC, as agent, and the Secured Parties named therein (incorporated by reference from Exhibit 10.67 to the Registrant’s
Annual Report on Form 10-K for the year ended December 31, 2010).
10.68 License Agreement, dated October 19, 2009, by and between Unigene Laboratories, Inc. and Tarsa Therapeutics, Inc.
(incorporated by reference from Exhibit 10.67 to the Company's Annual Report on Form 10-K for the year ended
December 31, 2009).**
10.69 Amendment to License Agreement, dated January 15, 2010, by and among Unigene Laboratories, Inc. and Tarsa
Therapeutics, Inc. (incorporated by reference from Exhibit 10.68 to the Company's Annual Report on Form 10-K for the
year ended December 31, 2009).**
10.70 Omnibus Amendment Agreement, dated October 19, 2009, by and among Unigene Laboratories, Inc., Victory Park
Management, LLC, as agent, and the holders signatory thereto (incorporated by reference from Exhibit 10.69 to the
Company's Annual Report on Form 10-K for the year ended December 31, 2009).
10.71 Collateral Assignment Agreement, dated October 19, 2009, by and between Unigene Laboratories, Inc. and Victory Park
Management, LLC, as agent (incorporated by reference from Exhibit 10.70 to the Company's Annual Report on Form
10-K for the year ended December 31, 2009).
10.72 Warrant Exchange Agreement, dated October 19, 2009, by and between Unigene Laboratories, Inc. and Victory Park
Special Situations Master Fund, Ltd. (incorporated by reference from Exhibit 10.71 to the Company's Annual Report on
Form 10-K for the year ended December 31, 2009).
II-5
Exhibit Description
Number
10.73 Master Agreement for Joint Development Vehicle by and between Unigene Laboratories, Inc., and Nordic Bioscience
Clinical Development A/S, dated as of October 5, 2011 (incorporated by reference from Exhibit 10.73 to the Company’s
Annual Report on Form 10-K for the year ended December 31, 2011).**
10.74 Common Stock Purchase and Option Agreement dated as of October 5, 2011, by and between Unigene Laboratories,
Inc., and Den Danske Forskningsfond (incorporated by reference from Exhibit 10.74 to the Company’s Annual Report
on Form 10-K for the year ended December 31, 2011).
10.75 Omnibus Amendment to the Note and Warrant Purchase Agreement, Notes and Warrants dated as of the 8 th day of
April, 2011, by and among Tarsa Therapeutics, Inc., and Purchasers including Unigene Laboratories, Inc. (incorporated
by reference from Exhibit 10.2 to the Company’s quarterly report on Form 10-Q for the quarter ended September 30,
2011).
10.76 Patent Assignment Agreement effective as of September 15, 2011 by and between Unigene Laboratories, Inc., and
Kieran Murphy, LLC (incorporated by reference from Exhibit 10.4 to the Company’s quarterly report on Form 10-Q for
the quarter ended September 30, 2011).
10.77 Agreement for Sale of Real Estate dated as of January 31, 2011 by and between the Company and RCP Birch Road,
L.L.C. (incorporated by reference from Exhibit 10.1 to the Company’s quarterly report on Form 10-Q for the quarter
ended March 31, 2011)
10.78 Settlement and Release Agreement and Amendments dated as of March 10, 2011 between the Company and the Estate
of Jean Levy; the Jaynjean Levy Family Limited Partnership; Warren P. Levy; and Ronald S. Levy (incorporated by
reference from Exhibit 10.2 to the Company’s quarterly report on Form 10-Q for the quarter ended March 31, 2011).
10.79 Master Services Agreement, effective as of April 7, 2011, by and between Unigene Laboratories, Inc. and Tarsa
Therapeutics, Inc. (incorporated by reference from Exhibit 10.4 to the Company’s quarterly report on Form 10-Q for the
quarter ended September 30, 2011).
10.80 Equity Sale and Purchase Agreement, dated July 2011, by and among the Company, China Pharmaceutical Group
Limited and China Charmaine Pharmaceutical Company Limited (incorporated by reference from Exhibit 10.3 to the
Company’s quarterly report on Form 10-Q for the quarter ended June 30, 2011).
10.81 Termination Agreement, effective as of June 4, 2011, by and among the Company, China Pharmaceutical Group Limited
and Unigene Biotechnology Company Limited (incorporated by reference from Exhibit 10.4 to the Company’s quarterly
report of Form 10-Q for the quarter ended June 30, 2011).
10.82 Lease for Real Property, dated May 24, 2011, by and between RCP Birch-Little Falls, LLC, 110 Little Falls DCLA,
LLC and the Company (incorporated by reference from Exhibit 10.5 to the Company’s quarterly report on Form 10-Q
for the quarter ended June 30, 2011).
10.83 Development Services and Clinical Supply Agreement, dated August 3, 2011, by and between GlaxoSmithKline LLC
and the Company* (incorporated by reference from Exhibit 10.3 to the Company’s quarterly report on Form 10-Q for
the quarter ended September 30, 2011).
10.84 Employment Agreement dated as of March 15, 2012, by and between Unigene Laboratories, Inc., and David Moskowitz
(incorporated by reference from Exhibit 10.1 to the Company’s quarterly report on Form 10-Q for the quarter ended
March 31, 2012).*
10.85 Offer Letter dated as of March 26, 2012, by and between Unigene Laboratories, Inc., and Brian Zietsman (incorporated
by reference from Exhibit 10.2 to the Company’s quarterly report on Form 10-Q for the quarter ended March 31,
2012).*
10.86 Separation Agreement and General Release dated as of April 4, 2012 by and between Unigene Laboratories, Inc. and
David Moskowitz (incorporated by reference from Exhibit 10.1 to the Company’s quarterly report on Form 10-Q for the
quarter ended June 30, 2012).*
10.87 Settlement and Release Agreement dated as of May 29, 2012 by and between Unigene Laboratories, Inc. and the Levys
(incorporated by reference from Exhibit 10.2 to the Company’s quarterly report on Form 10-Q for the quarter ended
June 30, 2012).
10.88 Side Letter Agreement dated as of May 29, 2012 by and between Unigene Laboratories, Inc. and Victory Park
Management LLC (incorporated by reference from Exhibit 10.3 to the Company’s quarterly report on Form 10-Q for the
quarter ended June 30, 2012).
10.89 Separation Agreement and General Release dated as of May 29, 2012 by and between Unigene Laboratories, Inc. and
William Steinhauer (incorporated by reference from Exhibit 10.1 to the Registrant’s Current Report on Form 8-K dated
June 6, 2012).*
10.90 Employment Agreement dated as of June 8, 2012 by and between Unigene Laboratories, Inc. and Ashleigh Palmer
(incorporated by reference from Exhibit 10.1 to the Registrant’s Current Report on Form 8-K dated June 12, 2012).*
10.91 Employment Agreement dated September 5, 2012 between Unigene Laboratories, Inc. and Greg Mayes.*
10.92 Amendment No. 1 to the By-Laws of Unigene Laboratories, Inc. (incorporated by reference from Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K dated September 7, 2012).
10.93 Form of 2012 Key Employee Performance and Incentive Agreement (incorporated by reference from Exhibit 10.1 to the
Registrant’s Current Report on Form 8-K dated October 3, 2012).*
10.94 Form of Stock Option Agreement (incorporated by reference from Exhibit 10.2 to the Registrant’s Current Report on
Form 8-K dated October 3, 2012).*
10.95 Employment Agreement dated September 27, 2012 between Unigene Laboratories, Inc. and Brian Zietsman (incorporated
by reference from Exhibit 10.3 to the Registrant’s Current Report on Form 8-K dated October 3, 2012).*
10.96 Stock Option Agreement dated September 27, 2012 between Unigene Laboratories, Inc. and Brian Zietsman
(incorporated by reference from Exhibit 10.4 to the Registrant’s Current Report on Form 8-K dated October 3, 2012).*
10.97 Employment Agreement dated September 27, 2012 between Unigene Laboratories, Inc. and Nozer Mehta (incorporated
by reference from Exhibit 10.5 to the Registrant’s Current Report on Form 8-K dated October 3, 2012).*
10.98 Second Amendment to Rights Agreement, dated September 21, 2012 (incorporated by reference from Exhibit 4.1 to the
Registrant’s Current Report on Form 8-K dated September 26, 2012).
II-6
Exhibit Description
Number
10.99 Forbearance Agreement and First Amendment to Amended and Restated Financing Agreement, dated as of September
21, 2012, by and among the Company, the Lenders and Victory Park Management, LLC, as agent (incorporated by
reference from Exhibit 10.1 to the Registrant’s Current Report on Form 8-K dated September 26, 2012).
10.100 Senior Secured Convertible Note, reissued by Company as of September 24, 2012 in favor of VPC Intermediate Fund II
(Cayman), L.P. (incorporated by reference from Exhibit 10.2 to the Registrant’s Current Report on Form 8-K dated
September 26, 2012).
10.101 Senior Secured Convertible Note, reissued by the Company as of September 24, 2012 in favor of VPC Fund II, L.P.
(incorporated by reference from Exhibit 10.3 to the Registrant’s Current Report on Form 8-K dated September 26, 2012).
10.102 Senior Secured Convertible Note, reissued by the Company as of September 24, 2012 in favor of Victory Park Credit
Opportunities Intermediate Fund, L.P. (incorporated by reference from Exhibit 10.4 to the Registrant’s Current Report on
Form 8-K dated September 26, 2012).
10.103 Senior Secured Convertible Note, reissued by the Company as of September 24, 2012 in favor of Victory Park Credit
Opportunities,
L.P. (incorporated by reference from Exhibit 10.5 to the Registrant’s Current Report on Form 8-K dated September 26,
2012).
10.104 Senior Secured Convertible Note, issued by the Company as of September 21, 2012 in favor of VPC Fund II, L.P.
(incorporated by reference from Exhibit 10.6 to the Registrant’s Current Report on Form 8-K dated September 26, 2012).
10.105 Second Amended and Restated Registration Rights Agreement, dated as of September 21, 2012, by and among the
Company and the Lenders (incorporated by reference from Exhibit 10.7 to the Registrant’s Current Report on Form 8-K
dated September 26, 2012).
10.106 Indemnification Agreement dated September 21, 2012 between the Company and Richard N. Levy (incorporated by
reference from Exhibit 10.8 to the Registrant’s Current Report on Form 8-K dated September 26, 2012).*
10.107 Patent Security Agreement, dated September 21, 2012 by the Company in favor of Victory Park Management, LLC, as
agent (incorporated by reference from Exhibit 10.9 to the Registrant’s Current Report on Form 8-K dated September 26,
2012).
10.108 Trademark Security Agreement, dated September 21, 2012 by the Company in favor of Victory Park Management, LLC,
as agent (incorporated by reference from Exhibit 10.10 to the Registrant’s Current Report on Form 8-K dated September
26, 2012).
10.109 Form of Indemnification Agreement dated September 21, 2012 between the Company and various directors (incorporated
by reference from Exhibit 10.11 to the Registrant’s Current Report on Form 8-K dated September 26, 2012).*
10.110 Separation Agreement dated September 28, 2012 between Unigene Laboratories, Inc. and Jenene Thomas.*
23.1 Consent of Reed Smith LLP (included in Exhibit 5.1).
23.2 Consent of Grant Thornton LLP.
23.3 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on signature pages to the Registration Statement)
*Management contract or compensation plan
**Confidential portions of this exhibit have been redacted and filed separately with the SEC pursuant to a confidential treatment request in
accordance with Rule 24b-2 of the Exchange Act.
(b) Financial Statement Schedules
No financial statement schedules are required.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in
the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b), if, in the
aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-7
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that, in the opinion of the SEC, such
indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in Boonton, New Jersey, on this 19th day of October, 2012.
UNIGENE LABORATORIES, INC.
By: /s/ Ashleigh Palmer
Ashleigh Palmer
Chief Executive Officer
S-1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Ashleigh Palmer
and Brian Zietsman, and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for
the undersigned and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective
amendments) to the Registration Statement and sign any registration statement for the same offering covered by the Registration Statement that
is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, and to file the same, with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, full
power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any
of them or their or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed on this 19th day of
October, 2012 by the persons and in the capacities indicated below.
Signature Title
/s/ Ashleigh Palmer
Chief Executive Officer (principal executive officer)
Ashleigh Palmer and Director
/s/ Richard Levy
Richard Levy Chairman of the Board and Director
/s/ Gregory Mayes
Gregory Mayes President and Director
/s/ Theron Odlaug
Theron Odlaug Director
/s/ Thomas Sabatino Jr.
Thomas Sabatino Jr. Director
/s/ Joel Tune
Joel Tune Director
/s/ Jack Wyszomierski
Jack Wyszomierski Director
/s/ Brian Zietsman
Brian Zietsman Chief Financial Officer (principal financial and
accounting officer)
S-2
EXHIBIT INDEX
Exhibit Description
Number
3.1 Certificate of Incorporation of Unigene Laboratories, Inc., dated October 31, 1980, as filed with the Secretary of State in the
State of Delaware on November 3, 1980, and all amendments thereto through June 15, 2006 (incorporated by reference from
Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2006).
3.2 Certificates of Amendment to Certificate of Incorporation of Unigene Laboratories, Inc., dated June 16, 2010, as filed with
the Secretary of State in the State of Delaware on June 16, 2010 (incorporated by reference from Exhibit 3.2 to the
Registrant’s Annual Report on Form 10-K for the year ended December 31, 2010).
3.3 Amended By-Laws of Unigene Laboratories, Inc. (incorporated by reference from Exhibit 3.2 to the Registrant’s Annual
Report on Form 10-K for the year ended December 31, 2004).
4.1 Rights Agreement between Unigene Laboratories, Inc. and Registrar and Transfer Company, dated December 20, 2002
(incorporated by reference from Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, dated December 23, 2002).
4.2 Amendment to Rights Agreement, dated March 16, 2010 (incorporated by reference from Exhibit 4.1 to the Registrant’s
Current Report on Form 8-K, dated March 17, 2010 (the “March 2010 Form 8-K”)).
4.3 Specimen Certificate for Common Stock, par value $.01 per share (incorporated by reference from Exhibit 3.1.1 to the
Registrant’s Registration Statement No. 33-6877 on Form S-1, filed July 1, 1986).
5.1 Opinion of Reed Smith LLP as to the legality of the securities being registered.
10.1 Lease agreement between Unigene Laboratories, Inc. and Fulton Street Associates, dated May 20, 1993 (incorporated by
reference from Exhibit 10.1 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 1992).
10.2 First Amendment to Lease Agreement between Unigene Laboratories, Inc. and Fulton Street Associates, dated May 20, 1993
(incorporated by reference from Exhibit 10.2 to the Registrant’s Annual Report on Form 10-K for the year ended December
31, 2007).
10.3 Second Amendment to Lease between Fulton Street Associates and Unigene Laboratories, Inc., dated as of May 15, 2003
(incorporated by reference from Exhibit 10.48 to Post-Effective Amendment No. 1 to Registrant’s Registration Statement No.
333-75960, filed August 1, 2003).
10.4 Directors Stock Option Plan (incorporated by reference from Exhibit 10.4 to the Registrant’s Quarterly Report on Form 10-Q
for the quarter ended June 30, 1999).*
10.5 Amendment to Directors Stock Option Plan (incorporated by reference from Exhibit 10.1 to the Registrant’s Quarterly Report
on Form 10-Q for the quarter ended June 30, 2009).*
10.6 2000 Stock Option Plan (incorporated by reference from Attachment A to the Registrant’s Schedule 14A, filed April 28,
2000, containing the Registrant’s Definitive Proxy Statement for its 2000 Annual Meeting of Stockholders). *
10.7 Unigene Laboratories, Inc. 2006 Stock-Based Incentive Compensation Plan, as amended by Amendment No. 1 (incorporated
by reference from Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2009). *
10.8 Amendment No. 2 to the Unigene Laboratories, Inc. 2006 Stock-Based Incentive Compensation Plan (incorporated by
reference from Exhibit 10.8 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2010). *
10.9 Form of Incentive Stock Option Agreement under 2006 Stock-Based Incentive Compensation Plan (incorporated by reference
from Exhibit 10.8 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2007).*
10.10 Form of Non-qualified Stock Option Agreement under 2006 Stock-Based Incentive Compensation Plan (incorporated by
reference from Exhibit 10.9 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2007).*
10.11 Form of Restricted Stock Agreement under 2006 Stock-Based Incentive Compensation Plan (incorporated by reference from
Exhibit 10.11 to the Registrant's Annual Report of Form 10-K for the year ended December 31, 2009).*
10.12 Employment Agreement by and between Unigene Laboratories, Inc. and Ashleigh Palmer, dated June 9, 2010 (incorporated
by reference from Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, dated June 9, 2010).*
10.12(a) Employment Agreement by and between Unigene Laboratories, Inc. and Ashleigh Palmer, dated June 8, 2011 (incorporated
by reference from Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, dated June 8, 2011).*
10.13 Employment Agreement by and between the Company and Gregory T. Mayes, dated September 12, 2010 (incorporated by
reference from Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2010).*
10.14 Employment Agreement between Unigene Laboratories, Inc. and Warren P. Levy, dated January 1, 2000 (incorporated by
reference from Exhibit 10.6 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 1999).*
10.15 First Amendment to Employment Agreement between Unigene Laboratories, Inc. and Warren P. Levy, dated December 22,
2008 (incorporated by reference from Exhibit 10.12 to the Registrant’s Annual Report on Form 10-K for the year ended
December 31, 2008).*
10.16 Second Amendment to Employment Agreement, dated March 17, 2010, by and between the Company and Warren P.
Levy (incorporated by reference from Exhibit 10.11 to the Registrant’s Quarterly Report on Form 10-Q for the quarter
ended March 31, 2010).*
10.17 Employment Agreement between Unigene Laboratories, Inc. and Ronald S. Levy, dated January 1, 2000 (incorporated
by reference from Exhibit 10.7 to the Registrant’s Annual Report on Form 10-K for the year ended December 31,
1999).*
10.18 First Amendment to Employment Agreement between Unigene Laboratories, Inc. and Ronald S. Levy, dated December
22, 2008 (incorporated by reference from Exhibit 10.14 to the Registrant’s Annual Report on Form 10-K for the year
ended December 31, 2008).*
10.19 Second Amendment to Employment Agreement, dated March 17, 2010, by and between the Company and Ronald Levy
(incorporated by reference from Exhibit 10.12 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended
March 31, 2010). *
10.20 Employment Agreement between Unigene Laboratories, Inc. and Jay Levy, dated January 1, 2000 (incorporated by
reference from Exhibit 10.8 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 1999).*
Exhibit Description
Number
10.21 First Amendment to Employment Agreement between Unigene Laboratories, Inc. and Jay Levy, dated December 22,
2008 (incorporated by reference from Exhibit 10.15.1 to the Registrant’s Annual Report on Form 10-K for the year
ended December 31, 2008).*
10.22 Separation Agreement, dated March 16, 2010, by and between the Company and Jay Levy (incorporated by reference
from Exhibit 10.13 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2010).*
10.23 Summary of Deferred Compensation Plan between Unigene Laboratories, Inc. and Dr. Warren P. Levy and Dr. Ronald
S. Levy, dated December 14, 2005 (incorporated by reference from Exhibit 10.1 to Registrant’s Current Report on Form
8-K, dated December 14, 2005).*
10.24 Non-qualified Deferred Compensation Agreement between Unigene Laboratories, Inc. and Dr. Warren P. Levy, dated
February 1, 2006 (incorporated by reference from Exhibit 10.17 to the Registrant’s Annual Report on Form 10-K for the
year ended December 31, 2008).*
10.25 Non-qualified Deferred Compensation Agreement between Unigene Laboratories, Inc. and Dr. Ronald S. Levy, dated
February 1, 2006 (incorporated by reference from Exhibit 10.18 to the Registrant’s Annual Report on Form 10-K for the
year ended December 31, 2008).*
10.26 Amendment to Non-qualified Deferred Compensation Agreement between Unigene Laboratories, Inc. and Dr. Warren P.
Levy, dated December 19, 2008 (incorporated by reference from Exhibit 10.19 to the Registrant’s Annual Report on
Form 10-K for the year ended December 31, 2008).*
10.27 Amendment to Non-qualified Deferred Compensation Agreement between Unigene Laboratories, Inc. and Dr. Ronald S.
Levy, dated December 22, 2008 (incorporated by reference from Exhibit 10.20 to the Registrant’s Annual Report on
Form 10-K for the year ended December 31, 2008).*
10.28 Form of Amended and Restated Change in Control Agreement, by and between the Company and the vice president
named therein (incorporated by reference from Exhibit 10.8 to the March 2010 Form 8-K).*
10.29 Amended and Restated Change in Control Agreement, dated April 5, 2010, by and between the Company and Dr. James
P. Gilligan (incorporated by reference from Exhibit 10.15 to the Registrant’s Quarterly Report on Form 10-Q for the
quarter ended March 31, 2010).*
10.30 Director Stock Option Agreement between Allen Bloom and Unigene Laboratories, Inc., dated December 5, 2001
(incorporated by reference from Exhibit 10.45 to Registrant’s Annual Report on Form 10-K for the year ended December
31, 2002).*
10.31 Director Stock Option Agreement between J. Thomas August and Unigene Laboratories, Inc., dated December 5, 2001
(incorporated by reference from Exhibit 10.46 to Registrant’s Annual Report on Form 10-K for the year ended
December 31, 2002).**
10.32 Joint Venture Contract between Shijiazhuang Pharmaceutical Group Company, Ltd., and Unigene Laboratories, Inc.,
dated June 15, 2000 (incorporated by reference from Exhibit 10.1 to the Registrant’s Amended Quarterly Report on
Form 10-Q/A , filed April 2, 2008, for the quarter ended June 30, 2000).
10.33 Articles of Association of Shijiazhuang-Unigene Pharmaceutical Corporation Limited, dated June 15, 2000 (incorporated
by reference from Exhibit 10.2 to the Registrant’s Amended Quarterly Report on Form 10-Q/A, , filed April 2, 2008 for
the quarter ended June 30, 2000).
10.34 Agreement by and between Shijiazhuang Pharmaceutical Group Company, Ltd. and Unigene Laboratories, Inc., dated
April 23, 2008 (incorporated by reference from Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q for the
quarter ended June 30, 2008).**
10.35 Technology Transfer Agreement by and between Shijiazhuang Pharmaceutical Group Corporation and Unigene
Laboratories, Inc., dated April 23, 2008 (incorporated by reference from Exhibit 10.3 to the Registrant’s Quarterly Report
on Form 10-Q for the quarter ended June 30, 2008).**
10.36 Agreement of Assignment among Shijiazhuang Pharmaceutical Group Corporation, Unigene Laboratories Inc., and China
Pharmaceutical Group Limited, dated April 23, 2008 (incorporated by reference from Exhibit 10.4 to the Registrant’s
Quarterly Report on Form 10-Q for the quarter ended June 30, 2008).
10.37 Stock Purchase Agreement, dated as of May 10, 2008, between Unigene Laboratories, Inc. and Tin Lon Investment
Limited (incorporated by reference from Exhibit 10.1 to the Registrant’s Current Report on Form 8-K dated May 10,
2008).
10.38 Amended and Restated License Agreement, dated as of December 10, 2010, by and between Unigene Laboratories, Inc.
and GlaxoSmithKline LLC (incorporated by reference from Exhibit 10.38 to the Registrant’s Amended Annual Report on
Form 10-K/A for the year ended December 31, 2010).**
10.39 License and Development Agreement between Upsher-Smith Laboratories, Inc. and Unigene Laboratories, Inc., dated
November 26, 2002 (incorporated by reference from Exhibit 10.1 to Registrant’s Current Report on Form 8-K/A, dated
October 16, 2007). *
10.40 License Agreement, dated April 7, 2004, between Unigene Laboratories, Inc. and Novartis Pharma AG (incorporated by
reference from Exhibit 10.1 to Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2007).**
10.41 Supply Agreement, dated January 22, 2007, by and between Unigene Laboratories, Inc. and Novartis Pharma AG
(incorporated by reference from Exhibit 10.1 to the Registrant’s Amended Quarterly Report on Form 10-Q/A filed March
20, 2008, for the quarter ended March 31, 2007). *
10.42 Amended and Restated Security Agreement, dated May 10, 2007, by and between Unigene Laboratories, Inc. and Jay
Levy (incorporated by reference from Exhibit 10.3 to Registrant’s Current Report on Form 8-K, dated May 10, 2007). **
10.43 Patent Security Agreement, dated March 13, 2001, between Unigene Laboratories, Inc. and Jay Levy (incorporated by
reference from Exhibit 10.38 to Amendment No. 2 to Registrant’s Registration Statement No. 333-04557 on Form S-1,
filed December 12, 2001).
10.44 First Amendment to Patent Security Agreement, dated May 29, 2001, between Unigene Laboratories, Inc. and Jay Levy
(incorporated by reference from Exhibit 10.39 to Amendment No. 2 to Registrant’s Registration Statement No.
333-04557 on Form S-1, filed December 12, 2001).
Exhibit Description
Number
10.45 Second Amendment to Patent Security Agreement, dated November 26, 2002, by and between Unigene Laboratories, Inc.
and Jay Levy (incorporated by reference from Exhibit 10.33 to the Registrant’s Annual Report on Form 10-K for the year
ended December 31, 2007).
10.46 Third Amendment to Patent Security Agreement, dated May 10, 2007, by and between Unigene Laboratories, Inc. and the
Jaynjean Family Limited Partnership (incorporated by reference from Exhibit 10.4 to Registrant’s Current Report on
Form 8-K, dated May 10, 2007).**
10.47 Mortgage and Security Agreement, dated July 13, 1999, by and between Unigene Laboratories, Inc. and Jay Levy
(incorporated by reference from Exhibit 10.4 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999).
10.48 Modification of Mortgage and Security Agreement, dated August 5, 1999, by and between Unigene Laboratories, Inc. and
Jay Levy (incorporated by reference from Exhibit 10.7 to the Registrant’s Quarterly Report on Form 10-Q for the quarter
ended September 30, 1999).
10.49 Modification of Mortgage and Security Agreement, dated May 10, 2007, by and between Unigene Laboratories, Inc. and
Jay Levy (incorporated by reference from Exhibit 10.5 to Registrant’s Current Report on Form 8-K, dated May 10,
2007).**
10.50 Third Modification of Mortgage and Security Agreement, dated September 30, 2008, by and between Unigene
Laboratories, Inc. and Jay Levy (incorporated by reference from Exhibit 10.8 to the Company’s Current Report on Form
8-K filed on October 6, 2008 (the “October 2008 8-K Report”)).
10.51 Assignment of Mortgage by Jay Levy to Jean Levy, dated February 25, 2010 (incorporated by reference from Exhibit
10.56 to the Registrant's Annual Report on Form 10-K for the year ended December 31, 2009).
10.52 Senior Secured Term Note, dated May 22, 2009, issued by Unigene Laboratories, Inc. in favor of the Lenders signatory to
the Financing Agreement, dated as of September 30, 2008 (the "VPC Financing Agreement") by and among Unigene
Laboratories, Inc., the Lenders and Victory Park Management, LLC, as agent (incorporated by reference from Exhibit
10.1 to the Registrant’s Current Report on Form 8-K, dated May 29, 2009).
10.53 Pledge and Security Agreement, dated as of September 30, 2008, by and among Unigene Laboratories, Inc., Victory Park
Management, LLC, as agent, and the Secured Parties (incorporated by reference from Exhibit 10.3 to the October 2008
8-K Report).**
10.54 Amended and Restated Financing Agreement (the “Restated Financing Agreement”), dated as of March 16, 2010, by and
among the Company, the Lenders and Victory Park Management, LLC, as agent (incorporated by reference from Exhibit
10.1 to the March 2010 Form 8-K).
10.55 Master Reaffirmation and Amendment to Transaction Documents, dated as of March 17, 2010, by and among the
Company and Victory Park Management, LLC, as agent (incorporated by reference from Exhibit 10.2 to the March 2010
Form 8-K).**
10.56 Senior Secured Convertible Term Note, dated March 17, 2010, issued by the Company in favor of the Lenders signatory
to the Restated Financing Agreement (incorporated by reference from Exhibit 10.3 to the March 2010 Form 8-K).
10.57 Amended and Restated Registration Rights Agreement, dated as of March 17, 2010, by and among the Company and the
Lenders (incorporated by reference from Exhibit 10.4 to the March 2010 Form 8-K).
10.58 Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing, dated as of September 30, 2008, by
and between the Company and Victory Park Management, LLC, as agent (incorporated by reference from Exhibit 10.5 to
the October 2008 Form 8-K).
10.59 First Amendment to Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing, dated as of
March 17, 2010, by and between the Company and Victory Park Management, LLC, as agent (incorporated by reference
from Exhibit 10.6 to the October 2008 Form 8-K).
10.60 Affiliate Subordination Agreement, dated as of September 30, 2008, by and among Unigene Laboratories, Inc., Jay Levy,
Jaynjean Levy Family Limited Partnership and Victory Park Management, LLC, as agent for the Lenders signatory to the
VPC Financing Agreement (incorporated by reference from Exhibit 10.5 to the October 2008 8-K Report).
10.61 Assignment and Assumption Agreement, dated January 11, 2010, by and between Jay Levy and Jean Levy (incorporated
by reference from Exhibit 10.64 to the Company's Annual Report on Form 10-K for the year ended December 31, 2009).
10.62 Affiliate Subordination Reaffirmation, dated as of March 17, 2010, by and among the Company, Jean Levy, Jaynjean
Levy Family Limited Partnership and Victory Park Management, LLC, as agent for the Lenders (incorporated by
reference from Exhibit 10.7 to the March 2010 Form 8-K).
10.63 Amended and Restated Secured Promissory Note, dated March 17, 2010, issued by the Company in favor of Jean Levy
(incorporated by reference from Exhibit 10.8 to the Registrant’s quarterly report on Form 10-Q for the quarter ended
March 31, 2010).
10.64 Amended and Restated Secured Promissory Note, dated March 17, 2010, issued by the Company in favor of the Jaynjean
Levy Family Limited Partnership (incorporated by reference from Exhibit 10.9 to the Registrant’s quarterly report on
Form 10-Q for the quarter ended March 31, 2010).
10.65 Fourth Modification of Mortgage, in favor of Jean Levy, dated March 17, 2010 (incorporated by reference from Exhibit
10.10 to the Registrant’s quarterly report on Form 10-Q for the quarter ended March 31, 2010).
10.66 Forbearance Agreement, dated December 10, 2010, by and among Unigene Laboratories, Inc., Victory Park Management,
LLC, as agent, and the Secured Parties named therein (incorporated by reference from Exhibit 10.66 to the Registrant’s
Annual Report on Form 10-K for the year ended December 31, 2010).
10.67 Letter Agreement, dated as of December 10, 2010, by and among Unigene Laboratories, Inc., Victory Park Management,
LLC, as agent, and the Secured Parties named therein (incorporated by reference from Exhibit 10.67 to the Registrant’s
Annual Report on Form 10-K for the year ended December 31, 2010).
10.68 License Agreement, dated October 19, 2009, by and between Unigene Laboratories, Inc. and Tarsa Therapeutics, Inc.
(incorporated by reference from Exhibit 10.67 to the Company's Annual Report on Form 10-K for the year ended
December 31, 2009).**
10.69 Amendment to License Agreement, dated January 15, 2010, by and among Unigene Laboratories, Inc. and Tarsa
Therapeutics, Inc. (incorporated by reference from Exhibit 10.68 to the Company's Annual Report on Form 10-K for the
year ended December 31, 2009).**
Exhibit Description
Number
10.70 Omnibus Amendment Agreement, dated October 19, 2009, by and among Unigene Laboratories, Inc., Victory Park
Management, LLC, as agent, and the holders signatory thereto (incorporated by reference from Exhibit 10.69 to the
Company's Annual Report on Form 10-K for the year ended December 31, 2009).
10.71 Collateral Assignment Agreement, dated October 19, 2009, by and between Unigene Laboratories, Inc. and Victory Park
Management, LLC, as agent (incorporated by reference from Exhibit 10.70 to the Company's Annual Report on Form
10-K for the year ended December 31, 2009).
10.72 Warrant Exchange Agreement, dated October 19, 2009, by and between Unigene Laboratories, Inc. and Victory Park
Special Situations Master Fund, Ltd. (incorporated by reference from Exhibit 10.71 to the Company's Annual Report on
Form 10-K for the year ended December 31, 2009).
10.73 Master Agreement for Joint Development Vehicle by and between Unigene Laboratories, Inc., and Nordic Bioscience
Clinical Development A/S, dated as of October 5, 2011 (incorporated by reference from Exhibit 10.73 to the Company’s
Annual Report on Form 10-K for the year ended December 31, 2011).**
10.74 Common Stock Purchase and Option Agreement dated as of October 5, 2011, by and between Unigene Laboratories,
Inc., and Den Danske Forskningsfond (incorporated by reference from Exhibit 10.74 to the Company’s Annual Report
on Form 10-K for the year ended December 31, 2011).
10.75 Omnibus Amendment to the Note and Warrant Purchase Agreement, Notes and Warrants dated as of the 8 th day of
April, 2011, by and among Tarsa Therapeutics, Inc., and Purchasers including Unigene Laboratories, Inc. (incorporated
by reference from Exhibit 10.2 to the Company’s quarterly report on Form 10-Q for the quarter ended September 30,
2011).
10.76 Patent Assignment Agreement effective as of September 15, 2011 by and between Unigene Laboratories, Inc., and
Kieran Murphy, LLC (incorporated by reference from Exhibit 10.4 to the Company’s quarterly report on Form 10-Q for
the quarter ended September 30, 2011).
10.77 Agreement for Sale of Real Estate dated as of January 31, 2011 by and between the Company and RCP Birch Road,
L.L.C. (incorporated by reference from Exhibit 10.1 to the Company’s quarterly report on Form 10-Q for the quarter
ended March 31, 2011)
10.78 Settlement and Release Agreement and Amendments dated as of March 10, 2011 between the Company and the Estate
of Jean Levy; the Jaynjean Levy Family Limited Partnership; Warren P. Levy; and Ronald S. Levy (incorporated by
reference from Exhibit 10.2 to the Company’s quarterly report on Form 10-Q for the quarter ended March 31, 2011).
10.79 Master Services Agreement, effective as of April 7, 2011, by and between Unigene Laboratories, Inc. and Tarsa
Therapeutics, Inc. (incorporated by reference from Exhibit 10.4 to the Company’s quarterly report on Form 10-Q for the
quarter ended September 30, 2011).
10.80 Equity Sale and Purchase Agreement, dated July 2011, by and among the Company, China Pharmaceutical Group
Limited and China Charmaine Pharmaceutical Company Limited (incorporated by reference from Exhibit 10.3 to the
Company’s quarterly report on Form 10-Q for the quarter ended June 30, 2011).
10.81 Termination Agreement, effective as of June 4, 2011, by and among the Company, China Pharmaceutical Group
Limited and Unigene Biotechnology Company Limited (incorporated by reference from Exhibit 10.4 to the Company’s
quarterly report of Form 10-Q for the quarter ended June 30, 2011).
10.82 Lease for Real Property, dated May 24, 2011, by and between RCP Birch-Little Falls, LLC, 110 Little Falls DCLA,
LLC and the Company (incorporated by reference from Exhibit 10.5 to the Company’s quarterly report on Form 10-Q
for the quarter ended June 30, 2011).
10.83 Development Services and Clinical Supply Agreement, dated August 3, 2011, by and between GlaxoSmithKline LLC
and the Company* (incorporated by reference from Exhibit 10.3 to the Company’s quarterly report on Form 10-Q for
the quarter ended September 30, 2011).
10.84 Employment Agreement dated as of March 15, 2012, by and between Unigene Laboratories, Inc., and David Moskowitz
(incorporated by reference from Exhibit 10.1 to the Company’s quarterly report on Form 10-Q for the quarter ended
March 31, 2012).*
10.85 Offer Letter dated as of March 26, 2012, by and between Unigene Laboratories, Inc., and Brian Zietsman (incorporated
by reference from Exhibit 10.2 to the Company’s quarterly report on Form 10-Q for the quarter ended March 31,
2012).*
10.86 Separation Agreement and General Release dated as of April 4, 2012 by and between Unigene Laboratories, Inc. and
David Moskowitz (incorporated by reference from Exhibit 10.1 to the Company’s quarterly report on Form 10-Q for the
quarter ended June 30, 2012).*
10.87 Settlement and Release Agreement dated as of May 29, 2012 by and between Unigene Laboratories, Inc. and the Levys
(incorporated by reference from Exhibit 10.2 to the Company’s quarterly report on Form 10-Q for the quarter ended
June 30, 2012).
10.88 Side Letter Agreement dated as of May 29, 2012 by and between Unigene Laboratories, Inc. and Victory Park
Management LLC (incorporated by reference from Exhibit 10.3 to the Company’s quarterly report on Form 10-Q for the
quarter ended June 30, 2012).
10.89 Separation Agreement and General Release dated as of May 29, 2012 by and between Unigene Laboratories, Inc. and
William Steinhauer (incorporated by reference from Exhibit 10.1 to the Registrant’s Current Report on Form 8-K dated
June 6, 2012).*
10.90 Employment Agreement dated as of June 8, 2012 by and between Unigene Laboratories, Inc. and Ashleigh Palmer
(incorporated by reference from Exhibit 10.1 to the Registrant’s Current Report on Form 8-K dated June 12, 2012).*
10.91 Employment Agreement dated September 5, 2012 between Unigene Laboratories, Inc. and Greg Mayes.*
10.92 Amendment No. 1 to the By-Laws of Unigene Laboratories, Inc. (incorporated by reference from Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K dated September 7, 2012).
10.93 Form of 2012 Key Employee Performance and Incentive Agreement (incorporated by reference from Exhibit 10.1 to the
Registrant’s Current Report on Form 8-K dated October 3, 2012).*
10.94 Form of Stock Option Agreement (incorporated by reference from Exhibit 10.2 to the Registrant’s Current Report on
Form 8-K dated October 3, 2012).*
10.95 Employment Agreement dated September 27, 2012 between Unigene Laboratories, Inc. and Brian Zietsman (incorporated
by reference from Exhibit 10.3 to the Registrant’s Current Report on Form 8-K dated October 3, 2012).*
10.96 Stock Option Agreement dated September 27, 2012 between Unigene Laboratories, Inc. and Brian Zietsman
(incorporated by reference from Exhibit 10.4 to the Registrant’s Current Report on Form 8-K dated October 3, 2012).*
10.97 Employment Agreement dated September 27, 2012 between Unigene Laboratories, Inc. and Nozer Mehta (incorporated
by reference from Exhibit 10.5 to the Registrant’s Current Report on Form 8-K dated October 3, 2012).*
10.98 Second Amendment to Rights Agreement, dated September 21, 2012 (incorporated by reference from Exhibit 4.1 to the
Registrant’s Current Report on Form 8-K dated September 26, 2012).
10.99 Forbearance Agreement and First Amendment to Amended and Restated Financing Agreement, dated as of September
21, 2012, by and among the Company, the Lenders and Victory Park Management, LLC, as agent (incorporated by
reference from Exhibit 10.1 to the Registrant’s Current Report on Form 8-K dated September 26, 2012).
10.100 Senior Secured Convertible Note, reissued by Company as of September 24, 2012 in favor of VPC Intermediate Fund II
(Cayman), L.P. (incorporated by reference from Exhibit 10.2 to the Registrant’s Current Report on Form 8-K dated
September 26, 2012).
10.101 Senior Secured Convertible Note, reissued by the Company as of September 24, 2012 in favor of VPC Fund II, L.P.
(incorporated by reference from Exhibit 10.3 to the Registrant’s Current Report on Form 8-K dated September 26, 2012).
10.102 Senior Secured Convertible Note, reissued by the Company as of September 24, 2012 in favor of Victory Park Credit
Opportunities Intermediate Fund, L.P. (incorporated by reference from Exhibit 10.4 to the Registrant’s Current Report on
Form 8-K dated September 26, 2012).
10.103 Senior Secured Convertible Note, reissued by the Company as of September 24, 2012 in favor of Victory Park Credit
Opportunities,
L.P. (incorporated by reference from Exhibit 10.5 to the Registrant’s Current Report on Form 8-K dated September 26,
2012).
10.104 Senior Secured Convertible Note, issued by the Company as of September 21, 2012 in favor of VPC Fund II, L.P.
(incorporated by reference from Exhibit 10.6 to the Registrant’s Current Report on Form 8-K dated September 26, 2012).
10.105 Second Amended and Restated Registration Rights Agreement, dated as of September 21, 2012, by and among the
Company and the Lenders (incorporated by reference from Exhibit 10.7 to the Registrant’s Current Report on Form 8-K
dated September 26, 2012).
10.106 Indemnification Agreement dated September 21, 2012 between the Company and Richard N. Levy (incorporated by
reference from Exhibit 10.8 to the Registrant’s Current Report on Form 8-K dated September 26, 2012).*
10.107 Patent Security Agreement, dated September 21, 2012 by the Company in favor of Victory Park Management, LLC, as
agent (incorporated by reference from Exhibit 10.9 to the Registrant’s Current Report on Form 8-K dated September 26,
2012).
10.108 Trademark Security Agreement, dated September 21, 2012 by the Company in favor of Victory Park Management, LLC,
as agent (incorporated by reference from Exhibit 10.10 to the Registrant’s Current Report on Form 8-K dated September
26, 2012).
10.109 Form of Indemnification Agreement dated September 21, 2012 between the Company and various directors (incorporated
by reference from Exhibit 10.11 to the Registrant’s Current Report on Form 8-K dated September 26, 2012).*
10.110 Separation Agreement dated September 28, 2012 between Unigene Laboratories, Inc. and Jenene Thomas.*
23.1 Consent of Reed Smith LLP (included in Exhibit 5.1).
23.2 Consent of Grant Thornton LLP.
23.3 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on signature pages to the Registration Statement)
*Management contract or compensation plan
**Confidential portions of this exhibit have been redacted and filed separately with the SEC pursuant to a confidential treatment request in
accordance with Rule 24b-2 of the Exchange Act.
EXHIBIT 5.1
October 19, 2012
Unigene Laboratories, Inc.
81 Fulton Street
Boonton, New Jersey 07005
Re: Unigene Laboratories, Inc. Registration Statement on Form S-1
Ladies and Gentlemen:
We have acted as counsel to Unigene Laboratories, Inc., a Delaware corporation (the “Company”), in connection with a
Registration Statement on Form S-1 (the “Registration Statement”) being filed by the Company with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), for the
registration for resale of up to 161,739,676 shares of the Company's common stock, par value $.01 per share (“Common
Stock”), by Victory Park Credit Opportunities L.P., VPC Fund II, L.P., VPC Intermediate Fund II (Cayman) L.P., and Victory
Park Credit Opportunities Intermediate Fund, L.P. (the “Selling Stockholders”), consisting of (i) up to 8,645,814 shares of
Common Stock owned of record by the Selling Stockholders, comprised of 1,500,000 shares issued by the Company pursuant
to the Financing Agreement, dated September 30, 2008, by and among the Company, the Victory Park Credit Opportunities
Master Fund, Ltd., Victory Park Special Situations Master Fund, Ltd. (“Special Situation Fund”), and Victory Park
Management, LLC (“Victory Park”), as agent (the “Original Shares”), 300,000 shares issued by the Company in exchange for
the surrender of a warrant to purchase 1,000,000 shares pursuant to the Warrant Exchange Agreement, dated October 19, 2009,
by and between the Company and Special Situation Fund (the “Exchange Shares”, and together with the Original Shares, the
“Shares”) and 6,845,814 shares purchased by the Selling Stockholders (and/or their affiliates, and subsequently transferred to
the Selling Stockholders) in open market transactions and privately negotiated transactions (the “Other Shares”); and (ii)
153,093,862 shares of Common Stock that will be issuable to the Selling Stockholders upon the conversion (the “Conversion
Shares”) of senior secured convertible notes (the “Notes”) issued to the Selling Stockholders pursuant to the Forbearance and
First Amendment to Amended and Restated Financing Agreement, dated September 21, 2012, by and among the Company, the
Selling Stockholders and Victory Park, as administrative agent and collateral agent. This opinion letter is being furnished to
the Company in accordance with the requirements of Section 601(b)(5) under Regulation S-K of the Securities Act, and no
opinion is expressed herein as to any matter other than as to the legality of the Shares, the Other Shares and the Conversion
Shares.
In connection with this opinion, we have examined and relied upon the originals, or copies certified to our satisfaction, of such
records, documents, certificates and other instruments as in our judgment are necessary or appropriate to enable us to render
the opinion expressed below. Insofar as this opinion relates to factual matters, we have assumed with your permission and
without independent investigation that the statements of the Company contained in the Registration Statement (including those
incorporated by reference therein) are true and correct as to all factual matters stated therein. As to certain addition factual
matters related to this opinion letter, we have relied upon the certificate of an officer of the Company. In rendering this
opinion, we have assumed the genuineness and authenticity of all signatures on original documents; the authenticity of all
documents submitted to us as originals; the conformity to originals of all documents submitted to us as copies; the accuracy,
completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all
documents where authorization, execution and delivery are prerequisites to the effectiveness of such documents.
Based on the foregoing, (i) subject to and in reliance upon the accuracy and completeness of the information relevant thereto
provided to us and (ii) subject to the assumptions and qualifications set forth herein, we are of the opinion that (a) the Shares
are validly issued, fully paid and non-assessable; (b) to our knowledge, the Other Shares are validly issued, fully paid and
non-assessable; and (c) the Conversion Shares have been duly authorized for issuance, and when issued and delivered by the
Company to the Selling Stockholder upon conversion as provided in the Notes, the Conversion Shares will be validly issued,
fully paid and non-assessable.
We express no opinion as to the applicability of, compliance with, or effect of federal law or the law of any jurisdiction other
than the General Corporation Law of the State of Delaware. As used herein, the “General Corporation Law of the State of
Delaware” includes applicable provisions of the Delaware constitution and reported judicial decisions interpreting those laws.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement in accordance
with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act and to the reference to this firm under the
caption “Legal Matters.” In giving such consent, we do not thereby admit that we are in the category of persons whose consent
is required under Section 7 of the Securities Act or under the rules and regulations promulgated by the Commission.
Very truly yours,
/s/ REED SMITH LLP
EXHIBIT 10.91
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (this “Amendment”), dated as of September 5, 2012 (the
“Amendment Date”), is entered into by and between Unigene Laboratories, Inc., a Delaware corporation (the “Company”), and Gregory T.
Mayes (the “Executive”).
WITNESSETH:
WHEREAS, the Executive is presently employed by the Company as its Vice President, Corporate Affairs and General
Counsel pursuant to an Employment Agreement, dated September 12, 2010 (the “Agreement”); and
WHEREAS, the Executive and the Company desire to enter into this Amendment and to amend the terms and provisions of
the Agreement as set forth below;
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions . Capitalized terms used, but not otherwise defined, in this Amendment shall have the meanings
ascribed to such terms in the Agreement, as amended by this Amendment.
2. Engagement . Section 1 of the Agreement shall be amended and restated in its entirety as follows:
The Company hereby employs the Executive as its President and General Counsel, and the Executive
hereby accepts such employment, on the terms and conditions hereinafter set forth.
3. Duties . Section 3 of the Agreement shall be amended and restated in its entirety as follows:
(a) During the Term of this Agreement, the Executive shall serve as the Company’s President and General
Counsel and shall have responsibility for all aspects of the Biotechnologies Business Unit, all legal
oversight and administration of the Company’s day to day business operations, as well as such duties and
responsibilities as are set forth in the Company’s Bylaws and such other responsibilities as may be assigned
to him from time to time by the Chief Executive Officer or the Board of Directors of the Company (the
“Board of Directors”). The Executive shall use his best efforts to perform, and shall act in good faith in
performing, all duties required to be performed by him under this Agreement.
(b) The Board of Directors will appoint the Executive to fill a vacancy on the Board of Directors and
during the period of the Executive’s employment hereunder, the Board of Directors will recommend to the
shareholders of the Company that the Executive be elected to the Board of Directors at all annual
shareholders meetings at which the Executive is subject to election. Upon any termination of the
Executive’s employment hereunder, including, without limitation, a termination without cause, the
Executive will concurrently resign from the Board of Directors, or should the Executive then be serving as
a director of any direct or indirect subsidiary or affiliate of the Company, he shall resign from all such
boards as well.
4. Compensation . Section 6 of the Agreement shall be amended by adding the following clause (e) in the correct
alphabetic order:
(e) Subject to approval by the Company’s Board of Directors, as of the Amendment Date, to grant the
Executive options to purchase 600,000 shares of the Common Stock, exercisable at the closing price per
share on the date of the First Amendment to Employment Agreement (the “Amendment Date”). The
options to be granted under this Section 6(e) will be evidenced by the Company’s standard form of stock
option agreement, except that one-third of the options granted under this Section 6(e) will vest upon the
six-month anniversary of the Amendment Date provided that Executive remains continuously employed by
Company from the Amendment Date through the six-month anniversary of the Amendment Date, one-third
of the options granted under this Section 6(e) will vest upon the twelve-month anniversary of the
Amendment Date provided that Executive remains continuously employed by Company from the
Amendment Date through the twelve-month anniversary of the Amendment Date, and one-third of the
options granted under this Section 6(e) will vest upon the eighteen-month anniversary of the Amendment
Date provided that Executive remains continuously employed by Company from the Amendment Date
through the eighteen-month anniversary of the Amendment Date.
5. Waiver . No act, delay, omission or course of dealing on the part of any party hereto in exercising any right, power
or remedy hereunder shall operate as, or be construed as, a waiver thereof or otherwise prejudice such party’s rights, powers and remedies
under this Amendment.
6. Governing Law . This Amendment shall be interpreted and construed under the laws of the State of New Jersey
without regard to principles of conflicts of law.
7. Arbitration . The Executive agrees to submit to binding arbitration all claims arising out of his employment with
the Company and/or this Amendment, including all claims under federal law (including but not limited to Title VII of the Civil Rights Act of
1964 as amended) as well as all claims under state law (including but not limited to claims under the New Jersey Law Against Discrimination
and the New Jersey Conscientious Employee Protection Act). This arbitration shall take place in New Jersey, under the then prevailing rules of
the American Arbitration Association.
8. Modification . This Amendment may not be modified, altered, or amended except by a writing signed by all parties
hereto.
9. Counterparts . This Amendment may be executed in multiple counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute one agreement binding on the parties hereto.
10. Severability . Each provision of this Amendment shall be considered severable and if for any reason any
provision that is not essential to the effectuation of the basic purpose of the Amendment is determined to be invalid or contrary to any existing
or future law, such provision shall be deemed to be omitted from this Amendment and such invalidity shall not impair the operation of or affect
those provisions of this Amendment that are valid.
11. Agreement; No Other Amendments . All references to the “Agreement” contained in the Agreement or otherwise,
shall mean the Agreement as modified by this Amendment. Except as expressly amended by this Amendment, all of the terms, conditions and
provisions of the Agreement are hereby ratified and continue unchanged and remain in full force and effect.
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12. Headings . Headings contained in this Amendment are inserted for reference and convenience only and in no way
define, limit, extend or describe the scope of this Amendment or the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have freely and voluntarily executed this Amendment on the day and year first
above written.
UNIGENE LABORATORIES, INC.
/s/ Gregory T. Mayes By: /s/ Ashleigh Palmer
Gregory T. Mayes Chief Executive Officer
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Exhibit 10.110
CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE (the “Separation Agreement”) is made and entered into
by and between Jenene Thomas (“Employee”) and Unigene Laboratories, Inc. (“Unigene” or the “Company”).
RECITALS
WHEREAS, Employee has been notified that the Company has decided to terminate her employment, effective September 28, 2012; and
WHEREAS, Unigene and Employee wish to confirm the terms of Employee’s separation from employment, and to settle, release and discharge
with prejudice, any and all claims, causes of action or disputes Employee has or may have against any of the Released Parties (defined in
Paragraph 3(a) below), including but not limited to those arising and/or which may be arising out of her employment with the Company and her
separation from that employment.
NOW, THEREFORE, Unigene and Employee understand and agree as follows:
1. Separation of Employment.
(a) Employee acknowledges that she will be completely separated from Unigene and her employment ended as of September 28, 2012
(the “Separation Date”). Except as expressly provided by this Separation Agreement or otherwise required by law, any and all duties or
obligations of Unigene pursuant to Employee’s employment and/or separation from that employment, whether by written agreement or
otherwise, will be and are completely extinguished as of her Separation Date.
(b) Likewise, all of Employee’s duties and obligations to Unigene will be and are extinguished as of her Separation Date, except as
otherwise provided by law.
2. Acknowledgment of Receipt of Previous Pay and Benefits; Payment of Allowable Business Expenses; No Other
Amounts Due and Owing .
(a) Employee represents and warrants that she has reported to Unigene all of her hours worked as of her Separation Date. She further
acknowledges, understands and agrees that, as of the date she executes this Separation Agreement, she has: (i) been paid and received full
compensation, less all applicable federal, state and local employment and income taxes and other required or elected withholdings, for all
accrued wages and other earnings due to her in connection with her work for the Company; and (ii) been paid in full, at her regular base salary
rate, for all accrued, unused vacation days existing under any Unigene policy or practice in her vacation bank as of her Separation Date (a total
of eighteen (18) days) the total gross amount of sixteen thousand, forty four 23/100 Dollars $16,044.23.
(b) Employee understands that she will receive payment for all reimbursable travel and other reasonable business expenses
under Unigene’s polices or practices, provided that she submits appropriate, written vouchers and receipts for the same to the Company no later
than September 30, 2012. All such reimbursements shall be made promptly and in all events no later than the end of the taxable year
following the year in which the expense was incurred.
(c) Employee represents and warrants that she has incurred no work-related injuries and, to the best of her knowledge, has
contracted no known occupational diseases. She acknowledges and agrees that she has previously been provided all family, medical and
disability leave and other benefits to which she was ever entitled under federal, state or local family or medical leave and disability
accommodations laws, including any rights to reinstatement upon the conclusion of any period of leave, if any.
(d) Unigene will accelerate the vesting of the Employee’s non-vested stock options, effective September 28, 2012. The exercise
period of the Employee’s vested stock options will terminate September 27, 2013, at which point the stock options will expire.
(e) Employee understands, acknowledges and agrees that except as provided in this Separation Agreement, she will not be entitled to
any payment or other benefit from the Released Parties, and the Released Parties shall never be required to make any further payment or
provide any further benefit, for any reason whatsoever, to her or any person regarding any claim, right or status she may have arising on or
before the Effective Date of this Separation Agreement (as defined in Paragraph 16(f), below).
3. Release of Claims and Covenant Not to Sue .
(a) In exchange for Unigene providing Employee with the payments and other benefits described within this Separation Agreement,
Employee on behalf of himself, her heirs, executors, personal representatives, administrators, agents and assigns, forever waives, releases,
gives up and discharges all waivable claims against Unigene, its parent, subsidiaries, and other related or affiliated corporations, their employee
benefit plans and trustees, fiduciaries, administrators and parties-in-interest of those plans, and all of their past and present employees,
managers, directors, officers, administrators, shareholders, members, agents, attorneys, insurers, re-insurers and contractors acting in any
capacity whatsoever, and all of their respective predecessors, heirs, personal representatives, successors and assigns (collectively, the “Released
Parties” as used throughout this Separation Agreement), whether accrued or unaccrued, liquidated or contingent, and now known or unknown,
based on, related to, or arising from any event that has occurred before she signs this Separation Agreement and based upon, related to or
arising out of or concerning her employment with Unigene, the termination of her employment by Unigene, the terms, benefits and attributes of
her employment with Unigene, and any and all violations and/or alleged violations of federal, state or local fair employment practices or laws
by any of the Released Parties for any reason and under any legal theory whatsoever including but not limited to the Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000(e), et seq . (“Title VII”), the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”),
the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f), et seq. (“OWBPA”), the Americans With Disabilities Act, 42 U.S.C. §12101, et
seq. (“ADA”), the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101, et seq. (“WARN”), the Occupational Safety and
Health Act, 29 U.S.C. 651, et seq. (“OSHA”), the Civil Rights Act of 1991, 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988, the Lilly Ledbetter
Fair Pay Act of 2009, H.R. 11 (“Fair Pay Act”), the Fair Credit Reporting Act, 15 U.S.C. 1681, et seq . (“FCRA”), the Family and Medical
Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”), the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. 1001, et seq.
(“ERISA”), the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206, et seq. (“EPA”), the Consolidated Omnibus Budget Reconciliation Act,
29 U.S.C. § 1161, et seq . (“COBRA”), the retaliation provisions of the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3), et seq. (“FLSA”), the
New Jersey Discrimination in Wages Law, N.J.S.A. 34:11-56.2, et seq. , the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12, et seq.
(“NJLAD”), the New Jersey Family Leave Act, N.J.S.A. 34:11B-1, et seq . (“NJFLA”), the New Jersey Temporary Disability Benefits and
Family Leave Insurance Law, N.J.S.A. 43:21-25, et seq ., the New Jersey Civil Rights Act, N.J.S.A. 10:6-1, et seq. (“NJCRA”), the New Jersey
Fair Credit Reporting Act, N.J.S.A. 56:-28, et seq. (“NJFCRA”), the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et
seq. (“CEPA”), the New Jersey Millville Dallas Airmotive Plant Job Loss Act, N.J.S.A. 34:21-1, et seq. , the retaliation provisions of the New
Jersey Wage and Hour Law, N.J.S.A. 34:11-56a, et seq ., the retaliation provisions of the New Jersey Workers’ Compensation Act, N.J.S.A.
34:15-1, et seq. , and all other federal, state and local regulations, rules, ordinances or orders, as they may be amended. She also forever
waives, releases, discharges and gives up all claims, whether accrued or unaccrued, liquidated or contingent, real or perceived, and known or
unknown, and all claims for breach of implied or express contract, breach of promise, breach of the covenant of good faith and fair dealing,
misrepresentation, negligence, fraud, estoppel, defamation, intentional infliction of emotional distress, violation of public policy, wrongful,
retaliatory or constructive discharge, or any other claim or tort arising under any federal, state, or local law, regulation, ordinance or judicial
decision and/or under the United States and New Jersey Constitutions.
(b) Employee understands that the laws described above give her important remedies that relate to claims that she has or may
have arising out of or in connection with her employment and/or separation from employment with Unigene and acknowledges and
agrees that she freely and voluntarily give up those remedies and claims. By signing this Separation Agreement, she also acknowledges
and agrees that her waivers and releases expressly include a waiver of all claims existing on or before the Effective Date of this Separation
Agreement which she knows about and those claims which she may not know about, and specifically includes an unconditional waiver of the
right to proceed with any discovery concerning any such claim in any future litigation with any Released Party, if any. Further, Employee
understands, acknowledges and agrees that her waivers and releases under this Separation Agreement include any and all claims for attorneys’
fees or other fees or costs incurred for any reason.
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(c) Employee warrants that she does not have any complaint, charge or grievance against any Released Party pending before any
federal, state or local court or administrative agency or arbitration panel. She further agrees not to file a lawsuit against any of the Released
Parties in any court of the United States or any state or local governmental subdivision thereof, or with any arbitration panel, concerning any
claim, demand, issue or cause of action covered by this Separation Agreement. Should Employee file a lawsuit with any court or arbitration
panel concerning any claim, demand, issue or cause of action waived through this Separation Agreement and not specifically excluded as
described in Section 4 and its subparagraphs below, she agrees that she will be responsible to pay the legal fees and costs incurred by the
Released Parties in defending any claims which are determined to be barred by this Separation Agreement. Further, she agrees that nothing in
this Separation Agreement shall limit the right of a court, tribunal or arbitration panel to determine, in its sole discretion, that the Released
Parties are entitled to restitution, recoupment or set off of any monies paid to her under this Separation Agreement should the release of any
claims in this Separation Agreement subsequently be found to be invalid.
4. Exclusions from Release of Claims and Covenant Not to Sue .
(a) Employee understands and agrees that nothing in this Separation Agreement limits her right to bring an action to enforce the terms
of this Separation Agreement.
(b) Employee understands and agrees that the Release contained in Section 3 and its subparagraphs above does not include a waiver of
any claims which cannot be waived by law, or any accrued, vested rights she may have in any existing Company tax-qualified retirement plan
or other benefit plans in accordance with the terms of such plans and applicable law. Furthermore, she understands that nothing in this
Separation Agreement will preclude her from purchasing continuation health benefits coverage under the Company’s group healthcare plans, to
the extent she is otherwise eligible and for the period provided by law under COBRA and/or any similar state law and that she will be provided
with continuation health benefits coverage information under separate cover letter following her Separation Date.
(c) Employee understands and agrees that this Separation Agreement does not limit her right to bring an action to contest the validity of
the release she has signed under the ADEA or the OWBPA.
(d) Employee understands and agrees that nothing in this Separation Agreement prevents her from filing, cooperating with, or
participating in any proceeding before the United States Equal Employment Opportunity Commission (“EEOC”) or any similar state or local
fair employment practices agency. However, Employee expressly waives her right to any individual monetary award, injunctive relief, or other
recovery should any federal, state or local administrative agency pursue any claims on her behalf arising out of or relating to her employment
with and/or separation from employment from any Released Party. This means that by signing this Separation Agreement, Employee will have
waived any right she had to bring a lawsuit or obtain an individual recovery if an administrative agency pursues a claim against any of the
Released Parties based on any actions taken by any of them up to the date she signs this Separation Agreement and, should she be awarded
money damages or any other remuneration or relief, she hereby unconditionally assigns to the Company any right or interest she may have to
receive the same.
(e) Employee understands and agrees that nothing in this Separation Agreement prohibits her from filing a claim to collect any benefits
available to her under the New Jersey Unemployment Compensation Law, or from collecting any award of benefits granted to her in
accordance with that law, following her Separation Date.
5. Non-Admission of Liability .
Employee acknowledges and agrees that this Separation Agreement shall not in any way be construed as an admission that any of the
Released Parties owe her any money or have acted wrongfully, unlawfully, or unfairly in any way towards her. In fact, Employee understands
that the Released Parties specifically deny that they have violated any federal, state or local law or ordinance, or any right or obligation that
they owe or might have owed to her at any time, and maintain that they have at all times treated her in a fair, lawful, non-discriminatory and
non-retaliatory manner.
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6. Payments and Other Benefits to be Provided to Employee in Exchange for her Release .
(a) In exchange for and in consideration of Employee’s promises set forth in this Separation Agreement, and contingent upon Unigene’s
receipt of a signed, unrevoked and effective original of this Separation Agreement in accordance with the provisions of Section 16 below,
Unigene agrees to provide the following payments and other benefits to Employee on behalf of all Released Parties:
(i) Unigene will pay Employee the total gross amount of seventy seven thousand two hundred fifty dollars
($77,250.00), which amount is the equivalent of four (4) months of Employee’s base salary in effect as of her Separation Date (the
“Severance Amount”). The Severance Amount, and Employee’s regular salary for the period August 13, 2012 through September 28,
2012, in the amount of thirty two thousand six hundred eighty two and 69/100 Dollars ($32,682.69) shall be paid in a lump sum
payment immediately following the execution of the Separation Agreement and the seven (7) day revocation period.
(ii) To the extent Employee is eligible for and has elected COBRA continuation coverage in accordance with
Unigene’s COBRA continuation health coverage policies, Unigene will pay Employee’s full monthly premiums due to purchase
COBRA continuation health coverage through February of 2013, subject to all required taxes, tax withholdings and other applicable
deductions (the “COBRA Subsidy” during the “COBRA Subsidy Period”).
(1) Notwithstanding the foregoing, Unigene has and will have no obligation to make any payments toward
COBRA continuation health coverage for Employee and her dependents extending beyond the COBRA Subsidy Period.
(2) Employee acknowledges and agrees that the Company’s COBRA Subsidy during the COBRA Subsidy
Period will not extend her and/or her eligible dependents’ eligibility for continuation health coverage under COBRA and
agrees to hold harmless the Released Parties from any and all claims arising directly or indirectly from the COBRA Subsidy
referenced above with the sole exception of claims arising from any failure by the Company to pay the COBRA Subsidy.
(3) Employee understands and agrees that, after expiration of the COBRA Subsidy Period, she and her eligible
dependents will be able to continue to receive the COBRA continuation health coverage for the remainder of the applicable
COBRA continuation period permitted by law provided that they remain eligible for and pay the full cost of such coverage in
accordance with Unigene’s COBRA continuation health coverage policies; and
(b) Employee acknowledges that the Severance Amount, the COBRA Subsidy, and the vesting of the stock options afforded to her
through this Separation Agreement constitutes good and adequate consideration in exchange for her promises and releases herein and is in
addition to anything of value to which she is presently entitled by virtue of any understandings, agreements or contracts between her and any of
the Released Parties, her employment with Unigene and her separation from that employment, and any of the Released Parties’ policies,
practices, plans or prior understandings with her including but not limited to compensation, vacation, bonus, severance, on-call, paid time off,
commission agreements, incentive compensation plans, equity incentives, stock options, offer letters, employment agreements, or any other
fringe benefit plans or policies.
7. No Reliance upon Verbal Representations.
Employee represents, acknowledges and agrees that no promises, statements or inducements have been made which caused her to sign this
Separation Agreement other than those expressly stated in writing within this Separation Agreement.
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8. Reference-Related Communications.
(a) Employee agrees that, should she or any prospective employer desire that Unigene engage in any reference-related communications,
she will direct such inquiries exclusively to Unigene’s Human Resources Department, for confirmation only of her: (i) dates of employment;
(ii) employment position; and (iii) base salary.
(b) Except with regard to verbal confirmation of her dates of employment, employment position, and base salary by Unigene as
expressly set forth above, Employee agrees that the Released Parties will have no obligation to engage in any reference-related communications
whatsoever with her past, existing or prospective employers unless compelled by a court order or other legal process.
(c) Notwithstanding the foregoing, Employee understands and agrees that the Released Parties will remain free to internally
communicate, to those with a business need to know, any and all information concerning her employment history with the Company.
9. Confidentiality of this Separation Agreement.
(a) Employee agrees to keep the fact, terms and amount of this Separation Agreement completely confidential, and not to disclose such
information to anyone other than to her spouse, civil union or legal domestic partner, her attorneys, and her licensed tax and/or professional
investment advisors (collectively, Employee’s “Confidants”), all of whom must first be informed by her of, and agree to be bound by, this
confidentiality provision. Neither Employee nor her Confidants shall disclose the fact, amount or terms of this Separation Agreement to anyone
including, but not limited to, any representative of any print, radio or television media; any past, present or prospective employee of or
applicant for employment with the Company; any executive recruiter or “headhunter”; any counsel for any current or former employee of the
Company; any other counsel or third party; or the public at large. Employee acknowledges and agrees that any breach of this provision by her
Confidants shall be treated as if she himself disclosed the information and breached this Separation Agreement.
(b) Should Employee or her Confidants receive or hereinafter be subjected to a subpoena, court order or other compulsory process
seeking to compel the disclosure of any of the information described in this Separation Agreement or any other confidential or proprietary
business information belonging to the Company, or be requested for the disclosure of same pursuant to an investigation conducted by a
governmental agency, Employee shall immediately, within forty-eight (48) hours upon receipt of such process or request, notify Unigene’s
General Counsel, in writing, and consent to the Released Parties’ immediate intervention in the matter. Notwithstanding the foregoing,
nothing contained in this Separation Agreement shall preclude Employee from discussing any matter concerning the Company with any
governmental regulatory or self-regulatory agency. Furthermore, Employee agrees that she will cooperate with any governmental regulatory or
self-regulatory agency that requests her to provide testimony or information regarding the Company; however her cooperation may not include
disclosing the terms of this Separation Agreement. If Employee is compelled to testify by a validly served subpoena or other compulsory
process in any legal proceeding or by regulatory authority, she will testify truthfully as to all matters concerning the Company.
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10. Continuing Obligation Not to Use Any Confidential Information; and Return of All Confidential Information and
Other Company Property.
(a) Employee acknowledge and agree that all confidential and proprietary business information (the “Confidential Information”)
belonging to the Company and/or the Released Parties, whether in tangible form or otherwise, including all documents and records, whether
printed, typed, handwritten, videotaped, transmitted or transcribed on data files or on any other type of media, and whether or not labeled or
identified as confidential and proprietary, made or compiled by her or made available to her during the period of her employment with the
Company, is and remains the sole property of the Company and the Released Parties. As used in this Agreement, “Confidential Information”
means, without limitation, all critical business information such as drug products in development, business models, business strategies,
product launch plans, CRO relationships, regulatory submissions, technology used by, or the therapeutic focus of, the Company, as well as all
clinical, methodologies, standard operating procedures, and technology used by the Company, the therapeutic focus of the Company and
strategic and business models, as well as all marketing and certain financial information, valuations, budgets, internal policies and
procedures, organization, business plans, analyses, forecasts, billing practices, pricing information and strategies, service offering strategies,
marketing plans and ideas, the identities or other information about customers, customer lists, suppliers and business partners (current and
prospective), the terms of current and pending deals, sales data, and sales projections, research, research proposals, unpublished results and
reports, and contact and other information regarding suppliers, vendors and consultants. “Confidential Information” also includes all tangible
and intangible property of the Company, its licensors, customers or clients, including intellectual property of the Company related to its
products, business or services, which is known, used or disclosed to Employee as a consequence of employment by the Company or discovered
or developed by Employee during her employment by the Company, including, but not limited to, trade secrets, designs, devices, techniques,
sketches, drawings, models, inventions, improvements, ideas, concepts, discoveries, processes, methods of operation, know-how, expressions
of ideas and systems, software, software source documents, microcode and source code, routines, sub-routes and algorithms, structure,
sequence and organization of computer programs, specifications, and information related to research, development, manufacturing, purchasing,
accounting, systems development, marketing, merchandising and selling, and other related data, whether or not patentable or
copyrightable. “Confidential Information” does not include information that (i) can be demonstrated by clear and convincing evidence to
have already been in Employee’s possession from a source other than the Company, provided that such information was not acquired through
any violation of law or other legal obligation, and provided that such information is not subject to another obligation of secrecy, and (ii)
becomes generally known to the public or in the industry other than as a result of a disclosure in violation of an obligation to keep such
information confidential.
(b) Employee agrees that she has an obligation to and warrants that, as of Unigene’s close of business on her Separation Date,
she has returned all originals and all copies of all documents and records made or compiled by her and/or made available to her or provided to
her during the period of her employment with Unigene that contain Confidential Information or other business information belonging to the
Company and/or any of the Released Parties, whether printed, typed, handwritten, videotaped, transmitted or transcribed on data files or on any
other type of media and whether or not labeled or identified as confidential, proprietary or trade secret. Employee further represents and
warrants that she has not, and will not, directly or indirectly, at any time, now or ever in the future, download, print, copy, electronically
transmit, disclose, release or retain any such information for her own personal use or any other purposes for her own benefit or the benefit of
any third party.
(c) In addition to returning all originals and copies (in whatever format) of all Confidential Information and other business
information belonging to the Company and/or any of the Released Parties, Employee agrees that she has an obligation to and warrants that she
has returned all Unigene property and materials including, but not limited to, credit cards, calling cards, keys, keyfobs, identification badges,
files, records, samples, computer disks, laptop computers, printers, personal digital assistants, and cellular telephones.
(d) To the extent that Employee has transferred any Confidential Information or other business information belonging to any of
the Released Parties to any personal computer equipment or any other personal electronic storage device, she warrants that she has returned to
Unigene true and complete copies of the same and has thereafter fully deleted and otherwise properly disposed of and appropriately removed
all electronic copies of the same from her personal computer equipment or other electronic devices in a manner reasonably performed to
effectively prevent the disclosure of any sensitive personal data and/or other Confidential Information belonging to the Company.
11. Non-Disparagement.
Employee represents, warrants and agrees that she has not and shall not, now or ever in the future, publicly or privately, make,
verbally or in writing, any false, disparaging, derogatory, defamatory, or otherwise inflammatory remarks about any of the Released Parties, or
the conduct, operations or financial condition or business practices, policies or procedures of any of the Released Parties or the Company’s
management personnel to any third party, and that she has not and will not make or solicit any comments, statements, or the like to the media
or to others that may be considered derogatory or detrimental to the good name and business reputation of Unigene, its management personnel,
and/or any of the other Released Parties.
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12. Cooperation .
Employee agrees to cooperate reasonably and in good faith with the Company as may be necessary to respond to any inquiries that may arise
with respect to matters that she was responsible for or involved with during her employment with Unigene. She further agrees to cooperate
reasonably and in good faith with the Released Parties in connection with any defense, prosecution or investigation concerning any actual or
potential litigation or administrative proceeding in which she may be involved or may become involved as a party, non-party or witness.
13. Responsibility for Taxes .
Employee acknowledges and agrees that she has not been provided any advice by any of the Released Parties regarding the tax or withholding
consequences of the payments and other benefits provided under this Separation Agreement under any federal, state or local tax or withholding
laws or regulations. She further agrees that she will be solely responsible for all of her own tax liabilities and consequences arising under all
federal, state or withholding laws or regulations which may result from her receipt of the Severance Amount and the COBRA Subsidy and
holds the Released Parties harmless from and indemnifies them for any costs, fines, interest or penalties resulting from such laws or
regulations. Additionally, she agrees that the Released Parties shall not be required to pay any further sum to her, even if such tax or
withholding consequences are not foreseeable to her at the time she signs this Separation Agreement or are ultimately assessed in a manner
which she does not anticipate at the time she signs this Separation Agreement.
14. Successors and Assigns.
This Separation Agreement shall not be assignable by Employee and will be binding upon and inure to the benefit of her and her heirs,
administrators, representatives, and executors. This Separation Agreement shall be freely assignable by Unigene without restriction and shall
be deemed automatically assigned by the Company with Employee’s consent in the event of any sale, merger, share exchange, consolidation or
other business reorganization. This Separation Agreement shall be binding upon, and shall inure to the benefit of, Unigene’s successors and
assigns.
15. Consultation With Counsel; Reasonable Time to Consider Separation Agreement During Review Period; Knowing
and Voluntary Acceptance of this Separation Agreement; Right and Time to Revoke; Effective Date.
(a) Employee acknowledges that, through this writing, Unigene has advised her to consult with an attorney of her own choosing before
signing this Separation Agreement, that the time afforded to her to consider the terms of this Separation Agreement provides her a full and fair
opportunity to thoroughly discuss all aspects of her rights and this Separation Agreement with her attorney to the extent she elects to do so, and
that she has, in fact, so consulted her attorney or knowingly waived the right to consult her attorney.
(b) Employee warrants that she has carefully read and fully understands all of the terms and provisions contained in this Separation
Agreement, she is physically and emotionally competent and of sound mind to execute this Separation Agreement, and she is knowingly and
voluntarily signing this Separation Agreement of her own free will, act and deed. She further represents and warrants that she has made such
investigation of the facts pertaining to this Separation Agreement and all matters contained herein as she deems necessary, desirable and
appropriate, and agrees that the release provided for herein shall remain in all respects effective and enforceable and not subject to termination
or rescission by reason of any later discovery of new, different or additional facts.
(c) Employee understands that she has twenty-one (21) calendar days from her receipt of this Separation Agreement to review and
consider this Separation Agreement before signing it, except that if the twenty-first (21 st ) calendar day after she received this Separation
Agreement falls on a Saturday, Sunday or holiday observed by Unigene, she shall have until the conclusion of the immediately next business
day (the “Review Period”). She further understands that she may use as much of the Review Period as she wishes before signing this
Separation Agreement and that she may use all of the Review Period . Employee additionally agrees that any material or immaterial changes
to this Separation Agreement will not restart the running of the Review Period.
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(d) Employee understands that she may elect to accept this Separation Agreement by sending a signed and dated and witnessed original to
the attention of Unigene’s Director, Human Resources, postmarked no later than the last day of the Review Period. To the extent that Employee
signs this Separation Agreement and returns it to the Company prior to the expiration of the Review Period, she warrants that she has
voluntarily and knowingly waived the remainder of the Review Period and that her decision to accept a shortened period of time was not
induced by any of the Released Parties through fraud, misrepresentation, a threat to withdraw the offer or alter the offer prior to the expiration
of the Review Period, or by providing different terms to workers who sign releases prior the expiration of such periods. If Employee fails to
sign this Separation Agreement and return the executed original by the close of business on the last day of the Review Period, this Separation
Agreement will be deemed null and void and Employee will not be entitled to receive any of the payments or other benefits offered to her
hereunder.
(e) Employee also understands that, following her execution of the Separation Agreement, she will have a period of seven (7) calendar
days to revoke this Separation Agreement by delivering written notification of any such revocation to Unigene’s General Counsel no later than
the close of business on the seventh (7 th ) calendar day after she signs it, except that if the seventh (7 th ) calendar day after she signs the
Separation Agreement falls on a Saturday, Sunday or holiday observed by Unigene, she shall have until the conclusion of the immediately next
business day (the “Revocation Period”). If Employee revokes this Separation Agreement during the Revocation Period, the Separation
Agreement will not be effective and enforceable and she will not be entitled to receive any of the payments or other benefits described in
Section 6 and its subparagraphs above.
(f) For purposes of this Separation Agreement, the “Effective Date” as used herein shall mean the first (1 st ) calendar day after the
Revocation Period expires, provided that a notice of revocation has not first been timely served upon the Company by Employee prior to that
date.
16. Governing Law and Venue.
This Separation Agreement shall in all respects be interpreted, enforced and governed under the laws of the State of New Jersey, exclusive of
any choice of law rules. Any dispute concerning this Separation Agreement shall be brought in, and the parties hereby consent to the personal
jurisdiction of, the state and federal courts of the State of New Jersey (to the extent that subject matter jurisdiction exists only).
17. Severability .
Employee agrees that the terms and provisions of this Separation Agreement are severable and shall be deemed to consist of a serious of
separate covenants. She further agrees that, should any separate term, covenant, word, clause, phrase, sentence, paragraph or provision of this
Separation Agreement be declared or found void, illegal, invalid or unenforceable by a court of competent jurisdiction, the same shall be
modified by the court to make it enforceable and/or severed from this Separation Agreement but all other terms, covenants words, clauses,
phrases, sentences, paragraphs and provisions shall remain in full force and effect.
18. Proper Construction.
(a) The language of all parts of this Separation Agreement shall in all cases be construed as a whole according to its fair meaning, and
not strictly for or against any of the parties.
(b) As used in this Separation Agreement, the term “or” shall be deemed to include the term “and/or” and the singular or plural number
shall be deemed to include the other whenever the context so indicates or requires.
(c) The paragraph headings used in this Separation Agreement are intended solely for convenience of reference and shall not in any
manner amplify, limit, modify or otherwise be used in the interpretation of any of the provisions hereof.
(d) The parties also agree that the terms of this Separation Agreement were reached following arms-length negotiations and shall not be
construed against the drafter in any respect.
8
19. Amendments .
This Separation Agreement may be modified, altered or terminated only by an express written agreement between Unigene and Employee
which agreement must be signed by both parties or their duly authorized agents, and expressly reference and attach a copy of this Separation
Agreement in order to be effective.
20. Entire Agreement.
This Separation Agreement comprises the entire agreement between Employee and the Company and fully supersedes any and all prior
agreements or understandings between the parties pertaining to its subject matter.
IN WITNESS WHEREOF, intending to be forever legally bound hereby, the parties have executed this Separation Agreement, being twelve
(12) pages in total length plus its Acknowledgment Page, on the dates set forth below:
Dated: A ugust 13, 2012 /s/ Jenene Thomas
Jenene Thomas
Unigene Laboratories, Inc.
Dated: A ugust 13, 2012 By: /s/ Pamela Cantor
Pamela Cantor
Vice President, Human Resources
and Business Administration
9
ACKNOWLEDGMENT
STATE OF New Jersey )
) SS.:
COUNTY OF Hunterdon )
On this 13 day of August, 2012, before me, the subscriber, a notary public in and for the above County and State, appeared Jenene Thomas,
known and identified to me to be the person described herein, and executed the foregoing Confidential Separation Agreement and General
Release, consisting of thirteen (13) pages (including this Acknowledgment Page), duly acknowledging to me that her execution of same was
knowing and voluntary and that she signed the same as her own free act and deed for the uses and purposes therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and seal at in person, the day and year aforesaid.
SEAL /s/ Justin Romanowski
NOTARY PUBLIC
[Seal of Justin E. Romanowski
Notary Public
State of New Jersey
My Commision expires Jan 30,
2013]
10
EXHIBIT 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our reports dated March 15, 2012 with respect to the financial statements and internal control over financial reporting included
in the Annual Report on Form 10-K for the year ended December 31, 2011 of Unigene Laboratories, Inc. which are incorporated by reference
in this Registration Statement. We consent to the incorporation by reference in the Registration Statement of the aforementioned reports, and
to the use of our name as it appears under the caption "Experts."
/s/ GRANT THORNTON LLP
New York, New York
October 19, 2012
EXHIBIT 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement on Form S-1 and related Prospectus of Unigene Laboratories, Inc.
for the registration of 161,739,676 shares of its common stock, of our report dated March 8, 2010, with respect to the financial statements of
Tarsa Therapeutics, Inc. for the period from March 13, 2009 (date of inception) to December 31, 2009 included in the Annual Report on Form
10-K of Unigene Laboratories, Inc. for the year ended December 31, 2011, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
October 19, 2012
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