UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2010
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number: 000-51665
Somaxon Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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20-0161599
(I.R.S. Employer
Identification No.) |
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3570 Carmel Mountain Road, Suite 100, San Diego, CA
(Address of principal executive offices)
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92130
(Zip Code) |
(858) 876-6500
(Registrants telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
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Title of Each Class
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Name of Each Exchange on Which Registered |
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Common Stock, par value $0.0001 per share
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Nasdaq Capital Market |
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule
405 of the Securities Act.
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Indicate by check mark if the registrant is not required to file reports pursuant to Section
13 or Section 15(d) of the Act.
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Indicate by check mark whether the registrant (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months
(or for such shorter period that the registrant was required to submit and post such files).
Yes þ No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation
S-K is not contained herein, and will not be contained, to the best of the registrants knowledge,
in definitive proxy or information statements incorporated by reference in Part III of this Form
10-K or any amendment to this Form 10-K. o
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):
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Large accelerated filer o
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Accelerated filer þ
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Non-accelerated filer o
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(Do not check if a smaller reporting company) |
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of
the Act).
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As of June 30, 2010, the aggregate market value of the registrants common stock held by
non-affiliates of the registrant was approximately $108.3 million, based on the closing price of
the registrants common stock on the Nasdaq Capital Market of $3.60 per share.
The number of outstanding shares of the registrants common stock, par value $0.0001 per
share, as of February 15, 2011 was 45,004,991.
SOMAXON PHARMACEUTICALS, INC.
FORM 10-K ANNUAL REPORT
For the Fiscal Year Ended December 31, 2010
Table of Contents
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PART I
Forward-Looking Statements
Any statements in this report and the information incorporated herein by reference about our
expectations, beliefs, plans, objectives, assumptions or future events or performance that are not
historical facts are forward-looking statements. You can identify these forward-looking statements
by the use of words or phrases such as believe, may, could, will, estimate, continue,
anticipate, intend, seek, plan, expect, should, or would. Among the factors that
could cause actual results to differ materially from those indicated in the forward-looking
statements are risks and uncertainties inherent in our business including, without limitation, our
ability to successfully commercialize Silenor; our reliance on our co-promotion partner, P&G, and
our contract sales force provider, Publicis, for critical aspects of the commercial sales process
for Silenor; the performance of P&G and Publicis and their adherence to the terms of their
contracts with us; our ability to ensure adequate and continued supply of Silenor to successfully
meet anticipated market demand; our ability to achieve market acceptance of Silenor; the ability of
our sales management personnel to effectively manage the sales representatives employed by
Publicis; our ability to raise sufficient capital to fund our operations, including patent
infringement litigation, and the impact of any financing activity on the level of our stock price;
our ability to comply with the covenants under our secured loan agreement with Comerica Bank; the
potential for an event of default under the secured loan agreement, and the corresponding risk of
acceleration of repayment and potential foreclosure on the assets pledged to secure the line of
credit; changes in healthcare regulation and reimbursement policies; our ability to successfully
enforce our intellectual property rights and defend our patents, including any developments
relating to the recent submission of abbreviated new drug applications for generic versions of
Silenor 3 mg and 6 mg tablets and related patent litigation; the scope, validity and duration of
patent protection and other intellectual property rights for Silenor; whether the approved label
for Silenor is sufficiently consistent with such patent protection to provide exclusivity for
Silenor; the possible introduction of generic competition of Silenor; our ability to operate our
business without infringing the intellectual property rights of others; estimates of the potential
markets for Silenor and our ability to compete in these markets; inadequate therapeutic efficacy or
unexpected adverse side effects relating to Silenor that could result in recalls or product
liability claims; other difficulties or delays in development, testing, manufacturing and marketing
of Silenor; the timing and results of post-approval regulatory requirements for Silenor, and the
FDAs agreement with our interpretation of such results; and other risks detailed below in Part I
Item 1A Risk Factors.
Although we believe that the expectations reflected in our forward-looking statements are
reasonable, we cannot guarantee future results, events, levels of activity, performance or
achievement. We undertake no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise, unless required by
law.
Corporate Information
We were incorporated in Delaware in August 2003. Our principal executive offices are located
at 3570 Carmel Mountain Road, Suite 100, San Diego, CA 92130, and our telephone number is (858)
876-6500. Our website address is www.somaxon.com. The information on, or accessible
through, our website is not part of this report. Unless the context requires otherwise, references
in this report and the information incorporated herein by reference to Somaxon, we, us and
our refer to Somaxon Pharmaceuticals, Inc.
We have received a trademark registration from the U.S. Patent and Trademark Office, or USPTO,
for our corporate name, SOMAXON PHARMACEUTICALS, for use in connection with pharmaceutical
preparations for the treatment of neurological, psychiatric and rheumatologic disorders. We have
obtained foreign trademark registrations for the trademark SOMAXON PHARMACEUTICALS in Europe,
Canada, Japan and Australia. We have received trademark registrations for the trademark SILENOR in
the U.S., Europe and Canada. All other trademarks, trade names and service marks appearing in this
report are the property of their respective owners. Use or display by us of other parties
trademarks, trade dress or products is not intended to and does not imply a relationship with, or
endorsement or sponsorship of, us by the trademark or trade dress owners.
Overview
We are a specialty pharmaceutical company focused on the in-licensing, development and
commercialization of proprietary branded products and late-stage product candidates to treat
important medical conditions where there is
an unmet medical need and/or high-level of patient dissatisfaction, currently in the central
nervous system therapeutic area. In March 2010, the U.S. Food and Drug Administration, or FDA,
approved our New Drug Application, or NDA, for Silenor® 3 mg and 6
mg tablets for the treatment of insomnia characterized by difficulty with sleep maintenance.
Silenor was made commercially available by prescription in the United States in September 2010.
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Our principal focus is on commercial activities relating to Silenor. We have increased our
headcount from five employees as of March 2010 to 40 employees as of February 15, 2011. We
commercially launched Silenor in September 2010 with 110 sales representatives provided to us on an
exclusive basis under our contract sales agreement with Publicis Touchpoint Solutions, Inc., or
Publicis, and an additional 105 sales representatives provided to us under our co-promotion
agreement with The Procter & Gamble Distributing Company LLC, or P&G. In February 2011, we engaged
Publicis to provide us with an additional 35 sales representatives. As a result, we believe that
as of the early second quarter of 2011 Silenor will be supported by 250 sales representatives, all
of whom will promote Silenor in the primary detail position. We have also established the
manufacturing and distribution channel for Silenor through agreements with third-party suppliers
and service providers, and we have established reimbursement coverage for Silenor with numerous
private and government payors.
We believe that Silenor is highly differentiated from other available insomnia treatments, and
could have significant advantages in the large insomnia market. Based on data from IMS Health, in
2010 the prescription market for the treatment of insomnia grew
approximately 6% compared to 2009
to more than 71 million prescriptions. According to IMS Health, the insomnia market accounted for
approximately $2 billion in sales in 2010.
Silenor for Insomnia
It is estimated that approximately one-third, or 70 million, of adult Americans are affected
by insomnia. One study has found that approximately 20% of those who suffer from insomnia are
treated with prescription medications. Silenor was approved by the FDA for the treatment of
insomnia characterized by difficulty with sleep maintenance in March 2010, and we commercially
launched the product in the United States in September 2010. We believe that Silenor has the
potential to offer significant benefits to patients with insomnia.
Silenor is an oral tablet formulation of doxepin at dosages of 3 mg and 6 mg. Doxepin has been
marketed and used for over 35 years at dosages from 75 mg to 300
mg per day and is indicated for
the treatment of depression and anxiety. However, the available dosages of doxepin for the
treatment of depression and anxiety have historically been seldom used in the treatment of insomnia as they
leave many patients reporting next-day residual effects and other undesirable side effects.
According to IMS Health data, doxepin accounted for less than 0.1% of the insomnia prescriptions
written during 2010.
We believe that Silenor, which utilizes doxepin at low dosages of 3 mg and 6 mg, does not
exhibit the same pharmacologic effects as high-dose doxepin. Our clinical development program for
Silenor included four Phase 3 clinical trials, and the primary efficacy endpoint achieved
statistical significance in each trial. Our clinical trials for Silenor also demonstrated a
favorable safety and tolerability profile, including a low dropout rate, an adverse event profile
comparable to placebo, no clinically meaningful next-day residual effects and no evidence of
amnesia, complex sleep behaviors, hallucinations, tolerance or withdrawal effects.
Silenor binds to H1 receptors in the brain and blocks histamine, which is believed to play an
important role in the regulation of sleep. The leading approved insomnia medications, Ambien,
Lunesta and Sonata, work by binding and activating a different set of brain receptors known as
gamma aminobutyric acid, or GABA, receptors. Currently approved GABA receptor-activating drugs are
designated by the Drug Enforcement Administration, or DEA, as Schedule IV controlled substances,
which require additional registration and administrative controls. Silenor is not designated as a
controlled substance, and according to its FDA-approved labeling, Silenor does not appear to have
any potential for dependency, addiction or abuse.
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Our Strategy
Our goal is to become a leading specialty pharmaceutical company dedicated to creating value
for our shareholders through maximizing the potential of our marketed product Silenor
and commercializing promising
products that treat medical conditions where there is an unmet
medical need or a high level of
patient dissatisfaction. Specifically, we intend to:
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Maximize the value of Silenor. Silenor was approved by the FDA for the treatment of
insomnia characterized by difficulty with sleep maintenance in March 2010, and we
commercially launched the product in the U.S. in September 2010. We believe that Silenor is
highly differentiated from currently available insomnia treatments and could have
significant advantages in a large market. We continue to strategically invest in sales and
marketing activities to maximize revenue growth and market share, and we intend to engage
in life cycle management activities relating to Silenor, including potential
over-the-counter, or OTC, opportunities. |
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Selectively evaluate other products and late-stage product candidates that are
differentiated. We intend to selectively evaluate products and product candidates that are
differentiated and meet unmet medical needs or address areas of patient dissatisfaction. To
reduce risks, costs and time-to-market, we intend to focus our efforts on
currently-marketed products and late-stage product candidates. |
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Fully leverage our commercial organization. We intend to fully utilize the
capacity we have within our existing sales force or any future expansion of our sales force
with the goal of maximizing its productivity and profitability for the benefit of our
promoted brand(s) and shareholder value. |
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Establish collaborations and outsourcing arrangements. We have entered into strategic
collaborations and outsourcing arrangements to drive growth and profitability. We believe
that leveraging the capabilities of third parties will allow us to add efficiency to our
operations and expand our commercial reach, including potentially outside of the United
States. |
Silenor Market and Commercialization
Disease Background and Market Opportunity
Sleep is essential for human performance, general health and well-being. Insomnia, the most
common sleep complaint across all stages of adulthood, is a condition characterized by difficulty
falling asleep, waking frequently during the night or too early, or waking up feeling unrefreshed.
It is estimated that approximately one-third, or 70 million, of adult Americans are affected by
insomnia. One study has found that only approximately 20% of those who suffer from insomnia are
currently treated with prescription medications. Chronic insomnia, insomnia lasting more than four
weeks, is often associated with a wide range of adverse conditions, including mood disturbances,
difficulties with concentration and memory, and certain cardiovascular, pulmonary and
gastrointestinal disorders. Chronic sleep deprivation has also been associated with an increased
risk of depression, diabetes and obesity, among other disorders. The National Institutes of Health
2005 State-of-the-Science Conference statement on the treatment of insomnia stated that estimates
placed the direct and indirect annual costs of chronic insomnia at tens of billions of dollars, but
cautioned that such estimates were based on many assumptions and varied extensively.
The U.S. market for prescription products to treat insomnia grew to approximately 64 million
prescriptions in 2010 according to IMS Health, a growth rate of 2% for the year. According to IMS
Health, the insomnia market accounted for approximately $2 billion in sales in 2010.
Limitations of Current Therapies
According to a recent Sleep in America Poll, 65% of respondents reported experiencing insomnia
symptoms a few nights a week. In addition, 42% of respondents often experienced awakenings during
the night or waking up too early without being able to go back to sleep, which is referred to as
sleep maintenance, and 29% had difficulty falling asleep, which is referred to as sleep onset.
Historically, insomnia therapies have addressed sleep onset rather than sleep maintenance and
duration. Only recently have therapies been approved with indications for sleep maintenance,
although the ability of previously-available drugs to maintain sleep throughout the night without
unwanted next-day residual effects remains limited.
The current market-leading prescription products for the treatment of insomnia include
GABA-receptor agonists such as Ambien, zolpidem, the generic form of Ambien, in various
formulations, Ambien CR, a controlled-release formulation of Ambien, zolpidem ER, the generic form
of Ambien CR, Lunesta, Sonata and zaleplon, the generic
form of Sonata, in various formulations, melatonin agonists such as Rozerem, several hypnotic
benzodiazepines such as temazapam (Restoril) and flurazepam (Dalmane), and sedating antidepressants
such as trazodone (Desyrel).
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According to physicians that we surveyed in our market research, one of the primary reasons
they prescribe sedating antidepressants for the treatment of insomnia is that they generally are
not associated with the risk of dependency such as that associated with GABA-receptor agonists. As
a result, sedating antidepressants are not Schedule IV controlled substances, and there are no
restrictions on their duration of use. As an example, it is estimated that the majority of
trazodone prescriptions are prescribed off-label for the treatment of insomnia.
With respect to patients, our pre-launch market research indicated that the market is still
underserved due in large part to characteristics associated with many of the then-marketed
products. For example, 41% of patients claimed that their medication did not provide them with a
full nights sleep, almost one-third of patients claimed they woke feeling groggy, and 33% claimed
to have suffered from memory impairment at some time after taking medication, with almost 80%
reporting that they found memory lapse somewhat or very scary. Additionally, 24% of patients on
prescription insomnia medication claimed that they were dependent on their medication and could not
sleep without it.
In addition, drugs prescribed for insomnia have been associated with many other unwanted
side effects, such as dry mouth, unpleasant taste, blurred vision, residual next-day effects,
amnesia, hallucinations, physical and psychological dependence, complex sleep behaviors such as
sleep driving, hormonal changes and gastrointestinal effects. We believe that drugs with improved
tolerability would be well received by both physicians and patients and will have the potential to
accelerate the growth in the market.
Silenor and its Benefits
We believe that Silenor offers a number of benefits:
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Non-scheduled. Because Silenor is not a Schedule IV controlled substance, it can be
made available to physicians, facilitating initial physician and patient trial without the
additional sampling regulation that applies to controlled substances. |
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Safety and tolerability. In our clinical trials for Silenor, there was a low dropout
rate, an adverse event profile comparable to placebo and no clinically meaningful next-day
residual effects, and we did not observe any amnesia, complex sleep behaviors,
hallucinations, tolerance or withdrawal effects or any effect on QT interval prolongation.
In addition, high-dose doxepin has been prescribed for over 40 years for depression at up
to 50 times our proposed maximum dosage for the treatment of insomnia. |
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Efficacy. Silenor is indicated for the treatment of insomnia characterized by
difficulty with sleep maintenance. Silenor is the first and only non-scheduled prescription
sleep medication approved by the FDA for the treatment of the most commonly reported
nighttime symptoms of insomnia: waking frequently during the night and/or waking too early
and being unable to return to sleep. Silenor is approved for the treatment of both
transient, or short term, and chronic, or long term, insomnia characterized by difficulty
with sleep maintenance in both adults and elderly patients. |
Commercialization
Our commercial strategy is multi-faceted and geared toward maximizing the value of products we
commercialize. We are committed to driving prescription growth and market share through
experienced sales representatives providing in-person promotion to high-prescribing physicians.
These efforts are complemented by on-line and other non-personal promotional initiatives that
target both physicians and patients. We are also focused on ensuring broad patient access to our
products by negotiating agreements with leading commercial managed care organizations and with
government payors. The goals of these efforts are to achieve preferred formulary status relative
to our branded competitors and to minimize patients out-of-pocket costs.
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We believe that the commercial success of Silenor largely depends on gaining access to the
highest prescribing physicians of insomnia treatments. We have built a sales and marketing
infrastructure focused on timely and
informative education of these physicians and their office personnel in the effective and
appropriate use of Silenor. We accomplish this through in-person promotional and educational
programs, product sampling, and other non-personal promotional activities such as telemarketing,
e-detailing and web-based programs. The field sales representatives each undergo a rigorous
training program focused on our product attributes, disease background, competitive products and
our sales techniques, as well as compliance with applicable laws.
We commercially launched Silenor in September 2010 with 110 sales representatives provided to
us on an exclusive basis under our contract sales agreement with Publicis and managed by our sales
management personnel, and an additional 105 sales representatives provided to us under our
co-promotion agreement with P&G. The Somaxon-managed field-based sales force promotes Silenor
primarily to psychiatrists, neurologists, sleep specialists, pain and addiction specialists and
other high prescribing physicians of insomnia products. The P&G sales force promotes Silenor
primarily to primary care physicians.
In February 2011, we engaged Publicis to provide us with an additional 35 sales
representatives. As a result, we believe that as of the early second quarter of 2011, Silenor will
be supported by 250 sales representatives, all of whom will promote Silenor in the primary detail
position.
We also have contracted with a third party national account management firm with extensive
experience in reimbursement contracting to engage in discussions with managed care plans and
government sponsored systems such as Medicare Part D, the VA/ DOD and Medicaid, where they will be
seeking favorable managed care formulary treatment for Silenor. Our goal in this effort is to
achieve a formulary position on commercial payor and government sponsored plans that will make
Silenor available to patients at a lower out-of-pocket cost, and/or on a less restrictive basis.
Publicis Contract Sales Agreements
In July 2010, we entered into a Professional Detailing Services Agreement with Publicis and a
Supplement to the Services Agreement, and we entered into an amendment to the Supplement in
February 2011. Under these agreements, Publicis provides sales support to promote Silenor in the
United States through 110 full-time sales representatives, one regional field coordinator and one
national business director, all of whom are employees of Publicis. Publicis is in the process of
recruiting an additional 35 full-time sales representatives and an additional regional field
coordinator, and we expect all of these additional people to be deployed as of the early second
quarter of 2011.
In consideration for Publicis services under the Publicis agreements, we paid Publicis a
portion of the fees for the start-up and additional recruiting phases of the engagements upon
signing and the remainder upon completion of the applicable services. We also pay Publicis a fixed
monthly fee, which fee is subject to certain quarterly adjustments based on actual staffing levels.
During the term of the Publicis agreements, a portion of Publicis management fee is subject to
payment by us only to the extent that specified performance targets are achieved. The performance
targets relate to the initial scale-up activities and recruiting, turnover and vacancy rates, call
attainment rates and specified sales goals. In addition, we are obligated to reimburse Publicis for
approved pass-through costs, which primarily include bonus, meeting and travel costs and certain
administrative expenses.
We may hire representatives of Publicis upon 30 days notice to Publicis by paying certain fees
to Publicis.
The initial term of the Publicis agreements runs through August 29, 2012. We may extend the
term of the agreements by providing Publicis with written notification no later than 90 days prior
to the expiration of the initial term, subject to agreement on compensation terms with Publicis.
Prior to the first anniversary of the deployment of Publicis sales representatives, we have the
right to terminate the agreements upon 90 days written notice and payment to Publicis of a
termination fee in a specified amount. We have the right to terminate the Publicis agreements at
any time after the one year anniversary of the deployment of Publicis sales representatives
without paying a termination fee. Somaxon may also terminate the agreements by hiring a specified
number of sales representatives without paying a termination fee. In addition, either party may
terminate the agreements upon an uncured material breach by the other party, upon the bankruptcy or
insolvency of the other party or if a change in law renders the performance of a material
obligation of the agreements unlawful.
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P&G Co-Promotion Agreement
In August 2010, we entered into a Co-Promotion Agreement with P&G. Under the agreement, P&G
provides primary care physician sales support to promote Silenor in the
United States through its team of full-time sales representatives. P&G is required to provide a
minimum number of primary details each quarter to certain primary care healthcare professionals and
a minimum number of calls to pharmacists each year during the term of the agreement. Beginning as
of January 1, 2011, P&G is also providing us with certain managed care support services. We have
also granted to P&G a right of first negotiation relating to rights to develop and market Silenor
as an OTC medication in the U.S.
In consideration for P&Gs services under the co-promotion agreement, we pay P&G a fixed fee
and a royalty fee as a percentage of U.S. net sales on a quarterly basis during the term of the
agreement. The agreement also provides for financial penalties in the event that either party fails
to deliver specified minimum detailing requirements under certain circumstances. Each party will be
responsible for the costs of maintaining and operating its own sales force, and we are responsible
for all other costs pertaining to the commercialization of Silenor.
The term of the agreement runs through December 31, 2012, and we will pay P&G a reduced
royalty fee based on U.S. net sales of Silenor for a period of one year after the expiration of the
agreement or its earlier termination under certain circumstances. Beginning as of June 30, 2012,
the parties will discuss in good faith the continuation of the collaboration upon mutually-agreed
terms and conditions. We have the right to terminate the agreement upon 90 days written notice if
P&G fails to provide at least 75% of its minimum detailing obligations. P&G may cure such shortfall
within the 90 days following the written notice provided there is no other breach of the minimum
detailing obligations within the prior 12 month period. Either party may terminate the agreement
upon 90 days written notice to the other party, although no such termination may be effective prior
to December 31, 2011. P&G may terminate the agreement if Silenor is withdrawn from the market for
longer than three months as the result of a legal requirement or 30 days after the end of a
calendar quarter in which the market share for Silenor is less than 75% of the Silenor market share
immediately prior to the loss of Silenors market exclusivity in the United States.
In addition, either party may terminate the agreement upon a large scale recall or withdrawal
of Silenor from the U.S. market resulting from a significant safety risk that is not due to
tampering, a remediable manufacturing problem or other defect that can be cured after such risk is
discovered. Either party may also terminate the agreement upon an uncured material breach by the
other party, upon the bankruptcy or insolvency of the other party or a force majeure event that
lasts for at least six months.
Technology In-Licenses
In a license agreement entered into in August 2003, which was amended and restated in
September 2010, we acquired the exclusive, worldwide license from ProCom One, Inc., or ProCom, to
certain patents to develop and commercialize low dosages of doxepin for the treatment of insomnia.
Although our license to the low-dose doxepin patents is a worldwide license, we currently intend to
develop and commercialize Silenor in the United States only, since patent protection for the
current dosage form is limited to the United States. The term of the license extends until the last
licensed patent expires, which is expected to occur no earlier than 2020. The license agreement is
terminable at any time by us with 30 days notice if we believe that the use of the product poses an
unacceptable safety risk or if it fails to achieve a satisfactory level of efficacy. Either party
may terminate the agreement with 30 days notice if the other party commits a material breach of its
obligations and fails to remedy the breach within 90 days, or upon the filing of bankruptcy,
reorganization, liquidation, or receivership proceedings relating to the other party.
As consideration for the license, we have paid an aggregate of $2.5 million in combined
upfront and milestone payments. We are also obligated to pay a royalty on worldwide net sales of
the licensed products. We have the right to grant sublicenses to third parties. We also issued
84,000 shares of common stock to ProCom One contemporaneously with our Series A preferred stock
financing.
In October 2006, we entered into a supply agreement pertaining to a certain ingredient used in
our formulation for Silenor. In August 2008, we amended our supply agreement to provide us with the
exclusive right to use this ingredient in combination with doxepin. As part of the amendment, we
made an upfront license payment of $0.2
million and are obligated to pay a royalty on worldwide net sales of Silenor beginning as of
the expiration of the statutory exclusivity period for Silenor in each country in which Silenor is
marketed. Such royalty is only payable if one or more patents under the license agreement continue
to be valid in each such country and a patent relating to our formulation for Silenor has not
issued in such country.
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Intellectual Property
Silenor Patents and Patent Applications
We are the exclusive licensee of four U.S. patents from ProCom claiming the use of low dosages
of doxepin and other antidepressants. U.S. Patent No. 6,211,229, Treatment of Transient and Short
Term Insomnia, covers dosages of doxepin from 0.5 mg to 20 mg for use in the treatment of
transient insomnia and expires in February 2020.
U.S. Patent No. 5,502,047, Treatment for Insomnia, claims the treatment of chronic insomnia
using doxepin and expires in March 2013. Due to some prior art that we identified, we initiated a
reexamination of our Treatment for Insomnia patent. The reexamination proceedings terminated and
the United States Patent and Trademark Office, or USPTO, issued a reexamination certificate
narrowing certain claims, so that the broadest dosage ranges claimed by us are 0.5 mg to 20 mg for
otherwise healthy patients with chronic insomnia and for patients with chronic insomnia resulting
from depression, and 0.5 mg to 4 mg for all other chronic insomnia patients. We also requested
reissue of this same patent to consider some additional prior art and to add intermediate dosage
ranges below 10 mg. In two office actions relating to this reissue request, the USPTO raised no
prior art objections to 32 of the 34 claims we were seeking and raised a prior art objection to the
other two, as well as some technical objections. Each of the claims objected to by the USPTO
related to dosage ranges having an upper limit of approximately 10 mg or higher. After further
review of the prior art submitted, the USPTO withdrew all of its prior art objections. We then
determined that the proposed addition of the intermediate dosage ranges and the resolution of the
technical objections no longer warranted continuation of the reissue proceeding. As a result, we
elected not to continue that proceeding. Because Silenors approved indication is consistent with
the subject matter of our patent claims, we believe that our licensed patents will restrict the
ability of competitors to market doxepin with identical drug labeling.
Additionally, we have the exclusive license from ProCom to a third patent in the series, U.S.
Patent No. 5,643,897, which is a divisional of the 047 patent and claims the treatment of chronic
insomnia using amitriptyline, trimipramine, trazodone and mixtures thereof in a daily dosage of 0.5
mg to 20 mg. This patent expires in March 2013. A fourth patent to which we have an exclusive
license from ProCom, U.S. Patent No. 6,344,487, claims a method of treating insomnia with low
dosage forms (0.5 mg to 10 mg) of nortriptyline. This patent expires in June 2020.
In addition, pursuant to our agreement with a supplier for a key ingredient used in our
formulation of Silenor, we have the exclusive right to use this ingredient in combination with
doxepin, and the exclusive license to the related patents and patent applications. We submitted for
listing six of these issued patents in the FDAs publication Approved Drug Product with
Therapeutic Equivalence Evaluations, commonly known as the Orange Book.
In addition in February 2011, we received a Notice of Allowance from the USPTO for claims
under U.S. patent application no. 11/781,165, which application is exclusively assigned to us.
This patent application generally relates to dosing Silenor 3mg and 6mg tablets at least three
hours after a meal to promote faster onset of action and reduce the potential for next-day residual
sedation. A Notice of Allowance is the official notification that the USPTO finds the claimed
subject matter allowable and intends to issue the patent pending payment of the issue fee. Given
this action, we expect the patent to issue in the second quarter of 2011. If the patent is
ultimately issued as we expect, this patent will expire no earlier than July 2027. The
pharmacokinetic changes that result from dosing Silenor within three hours after a meal have
important implications relating to both the efficacy and safety of the product that are described
in the Silenor prescribing information. As a result, we plan to list the patent in the Orange Book
once it is issued.
7
We have filed multiple other patent applications resulting from unexpected findings from
our development program. A brief summary of the content of these patent applications includes:
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Formulations and manufacturing processes, |
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Methods of preventing early awakenings and improving sleep efficiency, |
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Methods of treating insomnia without sedative tolerance, rebound insomnia or weight
gain, and |
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Methods of treating insomnia in the elderly. |
We have included these findings in our approved prescribing information and, if the patents
issue, we intend to list them in the Orange Book. The combination of these patents, if issued, and
our label could result in our patent protection being extended to 2028.
We have also filed multiple patent applications relating to potential future products
containing doxepin for the treatment of insomnia. A brief summary of the content of these patent
applications includes:
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Orally disintegrating formulations, |
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Combination drug formulations, and |
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Method of treating insomnia with ultra low dose doxepin. |
Silenor Patent Litigation
On November 3, 2010, we received a notice from each of Actavis Elizabeth LLC and Mylan
Pharmaceuticals Inc. that each had filed with the FDA an Abbreviated New Drug Application, or ANDA,
for a generic version of Silenor 3 mg and 6 mg tablets. Each of the notices included a paragraph
IV certification with respect to seven of the eight patents listed in the Orange Book for Silenor.
A paragraph IV certification is a certification by a generic applicant that in the opinion of that
applicant, the patents listed in the Orange Book for a branded product are invalid, unenforceable,
and/or will not be infringed by the manufacture, use or sale of the generic product.
On December 15, 2010, we, together with ProCom, filed suit in the United States
District Court for the District of Delaware against each of Actavis Elizabeth LLC and Actavis Inc.,
or collectively, Actavis, and Mylan Pharmaceuticals Inc. and Mylan, Inc., or collectively, Mylan.
The lawsuit alleges that Actavis and Mylan have each infringed U.S. Patent No. 6,211,229 by filing
their ANDAs relating to Silenor prior to the expiration of this patent. Pursuant to the
provisions of the Hatch-Waxman Act, FDA final approval of each of the Actavis and Mylan ANDAs can
occur no earlier than May 3, 2013, unless there is an earlier court decision that the 229 patent
is not infringed and/or invalid or unless any party to the action is found to have failed to
cooperate reasonably to expedite the infringement action. At this time, other patents listed in the
Orange Book for Silenor have not been asserted against either Mylan or Actavis.
On December 23, 2010, we received a notice from Par Pharmaceutical, Inc. that it had filed
with the FDA an ANDA for a generic version of Silenor 3 mg and 6 mg tablets. This notice included a
paragraph IV certification with respect to seven of the eight patents listed in the Orange Book
for Silenor.
On February 2, 2011, we, together with ProCom, filed suit in the United States District Court
for the District of Delaware against Par Pharmaceutical, Inc. and Par Pharmaceutical Companies,
Inc., or collectively, Par. The lawsuit alleges that Par has infringed U.S. Patent No. 6,211,229 by
filing its ANDA relating to Silenor prior to the expiration of this patent. Pursuant to the
provisions of the Hatch-Waxman Act, FDA final approval of the Par ANDA can occur no earlier than
June 23, 2013, unless there is an earlier court decision that the 229 patent is not infringed
and/or invalid or unless any party to the action is found to have failed to cooperate reasonably to
expedite the infringement action. At this time, other patents listed in the Orange Book for
Silenor have not been asserted against Par.
We intend to vigorously enforce our intellectual property rights relating to Silenor, but we
cannot predict the outcome of these matters. Any adverse outcome in this litigation could result
in one or more generic versions of Silenor being launched before the expiration of the listed
patents, which could adversely affect our ability to successfully execute our business strategy to
increase sales of Silenor and would negatively impact our financial condition and results of
operations, including causing a significant decrease in our revenues and cash flows.
8
Other Intellectual Property
Although we have taken steps to protect our trade secrets and unpatented know-how, including
entering into confidentiality agreements with third parties and confidential information and
inventions agreements with employees, consultants and advisors, third parties may still obtain this
information or we may be unable to protect our rights. Enforcing a claim that a third party
illegally obtained and is using our trade secrets or unpatented know-how is expensive and time
consuming, and the outcome is unpredictable. In addition, courts outside the United States may be
less willing to protect trade secret information. Moreover, our competitors may independently
develop equivalent knowledge, methods and know-how, and we would not be able to prevent their use.
Third Party Intellectual Property
Numerous U.S. and foreign issued patents and pending patent applications, which are owned by
third parties, exist in the fields in which we are operating. Because patent applications
can take many years to issue, there may be currently pending applications, unknown to us, which may
later result in issued patents that our products or product candidates may infringe.
We may be exposed to, or threatened with, future litigation by third parties having patent or
other intellectual property rights alleging that our products or product candidates infringe their intellectual
property rights. If any of these intellectual property rights was found to cover our products or product
candidates or their uses, we could be required to pay damages and could be restricted from
commercializing our products or from using our proprietary technologies unless we
obtained a license to the intellectual property rights. A license may not be available to us on
acceptable terms, if at all. In addition, during litigation, the patent holder could obtain a
preliminary injunction or other equitable right, which could prohibit us from making, using or
selling our products.
There is a substantial amount of litigation involving patent and other intellectual property
rights in the biotechnology and pharmaceutical industries generally. If a third party claims that
we or our collaborators infringe its intellectual property rights, we may face a number of issues,
including but not limited to:
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infringement and other intellectual property claims which, with or without merit, may
be expensive and time-consuming to litigate and may divert our managements attention from
our core business; |
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substantial damages for infringement, including treble damages and attorneys fees,
which we may be required to pay if a court decides that the product or product candidate at issue
infringes on or violates the third partys rights; |
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a court prohibiting us from selling or licensing the product or product candidate or using the
proprietary technology unless the third party licenses its technology to us, which it is
not required to do; |
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if a license is available from the third party, we may have to pay substantial
royalties or fees or grant cross-licenses to our technology; and |
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redesigning our products or product candidates so they do not infringe, which may not be possible
or may require substantial funds and time. |
No assurance can be given that patents issued to third-parties do not exist, have not been
filed, or could not be filed or issued, which contain claims covering our products or product
candidates or methods. Because of the number of patents issued and patent applications filed in our
technical areas or fields, we believe there is a risk that third parties may allege that they have
patent rights encompassing our products or product candidates or methods.
Research and Development
To date, our research and development expenses have consisted primarily of costs associated
with our clinical trials managed by contract research organizations, or CROs, our non-clinical
development program for Silenor, submitting and seeking approval of the NDA for Silenor, regulatory
expenses, drug development costs, salaries and related employee benefits, and share-based
compensation expense. During 2010, our most significant research and
development costs were salaries, benefits, and share-based compensation expense and costs
associated with our development program for Silenor. During 2009, our most significant research
and development costs were salaries, benefits, and share-based compensation expense, costs
associated with the conduct of the continuing two-year carcinogenicity study for Silenor, costs
associated with the resubmission of the Silenor NDA to the FDA and drug development costs
pertaining to Silenor. In 2008, our most significant costs were associated with our non-clinical
development program for Silenor, a standard clinical trial that we voluntarily conducted during
2008 to evaluate the potential for ECG effects of doxepin and
the preparation and submission of our NDA for Silenor.
9
Silenor Competition
The FDA-approved products that are currently available for the treatment of insomnia consist
of sedative hypnotics, including GABA-receptor agonists, hypnotic benzodiazepines and a melatonin
agonist. In addition, products such as sedating antidepressants and other products which are not
approved for the treatment of insomnia are sometimes prescribed for such use.
Ambien, a GABA-receptor agonist, and its generic equivalents have historically been the market
share leaders in the insomnia segment. Generic versions of Ambien (zolpidem) entered the market in
April 2007. According to data obtained from IMS Health, generic versions of Ambien accounted for
nearly 60% of insomnia prescriptions in 2010. In September 2005, Sanofi-Synthélabo, Inc. launched
Ambien CR, a controlled-release version of Ambien. Unlike Ambien, Ambien CR is indicated for the
treatment of sleep maintenance insomnia and does not have a label restriction limiting the length
of time of its use. Generic versions of Ambien CR, called zolpidem ER, entered the market in
October 2010. Ambien CR accounted for approximately 7% of insomnia prescriptions in 2010, zolpidem
ER contributed less than 1% and branded Ambien accounted for approximately 1% of insomnia
prescriptions in 2010, according to data obtained from IMS Health.
Lunesta, marketed by Sunovion Pharmaceuticals Inc., a wholly-owned subsidiary of Dainippon
Sumitomo Pharma Co., Ltd., is a GABA-receptor agonist that was approved in December 2004 by the FDA
and was launched in the second quarter of 2005. Lunesta accounted for approximately 7% of insomnia
prescriptions in 2010 according to data obtained from IMS Health. Lunesta is indicated for the
treatment of insomnia and has been shown to decrease sleep latency and increase sleep maintenance.
It was the first of several products to have the short-term use restriction removed from its label.
Sonata, a GABA-receptor agonist sold by Pfizer Inc. for the treatment of insomnia, and its
generic equivalents accounted for less than 1% of insomnia prescriptions in 2010 according to data
obtained from IMS Health.
Rozerem was launched by Takeda Pharmaceuticals North America, Inc. in September 2005 and
accounted for nearly 1% of insomnia prescriptions in 2010 according to data obtained from IMS
Health. Rozerem is indicated for the treatment of insomnia characterized by difficulty with sleep
onset. It was the first drug approved for the treatment of insomnia that is not a Schedule IV
controlled substance. With the exception of Rozerem, the approved medications for the treatment of
insomnia all act on GABA receptors and are designated as Schedule IV controlled substances. Takeda
Pharmaceuticals North America, Inc. conducted a clinical trial to evaluate the administration of a
combination of Takedas product Rozerem and 3 mg of doxepin in patients with insomnia. We are
unaware of the results of this trial.
A number of companies are marketing reformulated versions of previously approved GABA-receptor
agonists. In March 2009, Meda AB and Orexo AB received approval from the FDA for Edluar, formerly
known as Sublinox, a sublingual tablet formulation of zolpidem, for the short-term treatment of
insomnia. Meda and Orexo launched this product in the U.S. in September of 2009.
In December 2008, NovaDel Pharma, Inc. received approval from the FDA for ZolpiMist, an oral
mist formulation of zolpidem for the short-term treatment of insomnia characterized by difficulties
with sleep initiation. In November 2009, NovaDel and ECR Pharmaceuticals Company, Inc., a wholly
owned subsidiary of Hi-Tech Pharmacal Co., Inc., entered into an exclusive license and distribution
agreement to commercialize and manufacture ZolpiMist in the United States and Canada. ECR
Pharmaceuticals launched the product in the United States in February 2011.
10
The remaining market is comprised of older generic benzodiazepines and sedative
antidepressants. In addition to the currently approved or off-label products for the treatment of
insomnia, a number of new products may enter the insomnia market over the next several
years. While the new entrants would bring additional competition to the insomnia market, they would also
increase the awareness of insomnia and further expand the market. Additionally, we
believe market growth will also be driven by the aging of the population and emerging awareness of
the links between sleep, health and overall well-being.
Transcept Pharmaceuticals, Inc. submitted an NDA for Intermezzo, a low-dose sublingual tablet
formulation of zolpidem, in 2008, and in October 2009, Transcept announced that it received a
complete response letter from the FDA relating to such NDA. Transcept held a meeting with the FDA
in January 2010 to discuss the implications of the complete response letter, and resubmitted its
NDA for the product in January 2011. The FDA assigned a Prescription Drug User Fee Act of 1992, or
PDUFA, action date of July 14, 2011 for completion of the NDA review. Transcept and Purdue
Pharmaceutical Products L.P. have entered into an exclusive license and collaboration agreement to
commercialize Intermezzo in the United States.
Alexza Pharmaceuticals, Inc. has announced positive results from a Phase 1 clinical trial of
an inhaled formulation of zaleplon, the active pharmaceutical ingredient in Sonata. In July 2010,
Alexza announced that it was advancing this product candidate into Phase 2 clinical trials during
the first half of 2011 for the treatment of insomnia in patients who have difficulty falling
asleep, including those patients who awaken in the middle of the night and have difficulty falling
back asleep. Somnus Therapeutics, Inc. has announced positive results from two Phase 1 clinical
trials of a delayed-release formulation of zaleplon and has initiated Phase 2 clinical trials of
that product candidate.
Vanda Pharmaceuticals Inc. has completed two Phase 3 insomnia clinical trials of tasimelteon,
a melatonin receptor agonist. Tasimelteon received orphan drug designation status for non-24 hour
sleep/wake disorder in blind individuals with no light perception. Vanda has initiated a Phase 3
clinical trial for tasimelteon to treat this disorder. Vanda has announced that it plans to
conduct additional clinical trials and plans to file an NDA with the FDA by the first quarter of
2013.
Merck & Co., Inc. has MK-4305, an orexin antagonist, in Phase 3 clinical trials for the
treatment of insomnia and MK-6096 in Phase 2 clinical trials for the treatment of insomnia. Merck
has announced that it plans to file regulatory applications for MK-4305 in 2012.
Several other companies, including Sunovion Pharmaceuticals, are evaluating 5HT2 antagonists
as potential hypnotics, and Eli Lilly and Company is evaluating a potential hypnotic that is a dual
histamine/5HT2 antagonist. Additionally, several companies are evaluating new formulations of
existing compounds and other compounds for the treatment of insomnia.
Upon the expiration of, or successful challenge to, our patents covering Silenor, generic
competitors may introduce a generic version of Silenor at a lower price. Some generic
manufacturers have also demonstrated a willingness to launch generic versions of branded products
before the final resolution of related patent litigation (known as an at-risk launch).
On December 15, 2010, we, together with ProCom, filed suit in the United States
District Court for the District of Delaware against each of Actavis and Mylan. The lawsuit alleges
that Actavis and Mylan have each infringed U.S. Patent No. 6,211,229 by filing their ANDAs relating
to Silenor prior to the expiration of this patent. Pursuant to the provisions of the
Hatch-Waxman Act, FDA final approval of each of the Actavis and Mylan ANDAs can occur no earlier
than May 3, 2013, unless there is an earlier court decision that the 229 patent is not infringed
and/or invalid or unless any party to the action is found to have failed to cooperate reasonably to
expedite the infringement action. At this time, other patents listed in the Orange Book for Silenor
have not been asserted against either Mylan or Actavis.
On February 2, 2011, we, together with ProCom, filed suit in the United States District Court
for the District of Delaware against Par. The lawsuit alleges that Par has infringed U.S. Patent No. 6,211,229 by
filing its ANDA relating to Silenor prior to the expiration
of this patent. Pursuant to the provisions of the Hatch-Waxman Act, FDA final approval of the
Par ANDA can occur no earlier than June 23, 2013, unless there is an earlier court decision that
the 229 patent is not infringed and/or invalid or unless any party to the action is found to have
failed to cooperate reasonably to expedite the infringement action. At this time, other patents
listed in the Orange Book for Silenor have not been asserted against Par.
11
We intend to vigorously enforce our intellectual property rights relating to Silenor, but
given the unpredictability of patent litigation, we cannot predict the outcome of these matters.
Manufacturing
We have entered into a non-exclusive manufacturing services agreement with Patheon for the
manufacture of commercial quantities of our Silenor 3 mg and 6 mg tablets. Although we are not
required to purchase any minimum quantity of Silenor under the agreement, we have agreed to
purchase from Patheon not less than specified percentages of our total annual commercial
requirements from all suppliers of Silenor, which vary depending upon annual volume. The agreement
provides for an initial five-year term that began upon commencement of the manufacturing services,
and thereafter automatically continues for successive twelve-month terms unless terminated by
written notice at least eighteen months prior to the end of the then-current term. Either party may
terminate the agreement upon written notice if the other party has failed to remedy a material
breach of any of its representations, warranties or other obligations under the agreement within 60
days following receipt of written notice of such breach. In addition, either party may immediately
terminate the agreement upon written notice if (1) the other party is declared insolvent or
bankrupt by a court of competent jurisdiction, (2) a voluntary petition of bankruptcy is filed in
any court of competent jurisdiction by such other party or (3) the agreement is assigned by such
other party for the benefit of creditors. We have the right to terminate the agreement upon 30 days
prior written notice in the event that any governmental agency takes any action, or raises any
objection, that prevents us from importing, exporting, purchasing or selling the product candidate.
In addition, we have the right to terminate the agreement upon twelve months prior written notice
in connection with our partnering, collaboration, licensing, sublicensing, co-promotion, sale or
divestiture of rights to the product candidate, provided that no such termination shall be
effective before the third anniversary of the commencement date.
We have also entered into agreements with Plantex USA, Inc. to manufacture our supply of
doxepin active pharmaceutical ingredient and with Anderson Packaging, Inc. to package Silenor
finished products, and we have another agreement in place for the supply of a key ingredient
contained in our formulation for Silenor. In August 2008, we entered into an amendment to our
supply agreement providing us with the exclusive right to use this ingredient in combination with
doxepin. Pursuant to the amended supply agreement, we made an upfront license payment of $0.2
million and are obligated to pay a royalty on worldwide net sales of Silenor beginning as of the
expiration of the statutory exclusivity period for Silenor in each country in which Silenor is
marketed. This royalty is only payable if one or more patents under the license agreement continue
to be valid in each such country and a patent relating to our formulation for Silenor has not
issued in such country.
We sell Silenor through pharmaceutical wholesalers, who in turn distribute the products to
retail pharmacies, mail order pharmacies, hospitals and other institutional customers. We have
retained third-party service providers to perform a variety of functions related to the
distribution of our products, including logistics management, sample accountability, storage and
transportation.
Government Regulation
Governmental authorities in the United States and other countries extensively regulate the
testing, manufacturing, labeling, storage, record-keeping, advertising, promotion, export,
marketing and distribution, among other things, of pharmaceutical products. In the United States,
the FDA, under the Federal Food, Drug, and Cosmetic Act and other federal statutes and regulations,
subjects pharmaceutical products to rigorous review. If we do not comply with applicable
requirements, we may be fined, the government may refuse to approve our marketing applications or
allow us to manufacture or market our products, and we may be criminally prosecuted.
We and our manufacturers and CROs may also be subject to regulations under other federal,
state, and local laws, including the Occupational Safety and Health Act, the Environmental
Protection Act, the Clean Air Act and import, export and customs regulations as well as the laws
and regulations of other countries.
12
FDA Approval Process
To obtain approval of a new product from the FDA, we must, among other requirements, submit
data supporting safety and efficacy as well as detailed information on the manufacture and
composition of the product and proposed labeling, including a proposed proprietary name for the
product. The testing and collection of data and the preparation of necessary applications are
expensive and time-consuming. The FDA may not act quickly or favorably in reviewing these
applications, and we may encounter significant difficulties or costs in our efforts to obtain FDA
approvals that could delay or preclude us from marketing our products.
The process required by the FDA before a new drug may be marketed in the United States
generally involves the following: completion of non-clinical laboratory and animal testing in
compliance with FDA regulations, submission of an IND, which must become effective before human
clinical trials may begin, performance of adequate and well-controlled human clinical trials to
establish the safety and efficacy of the proposed drug for its intended use, and submission and
approval by the FDA of an NDA. The sponsor typically conducts human clinical trials in three
sequential phases, but the phases may overlap. In Phase 1 clinical trials, the product is tested in
a small number of patients or healthy volunteers, primarily for safety at one or more dosages. In
Phase 2 clinical trials, in addition to safety, the sponsor evaluates the efficacy of the product
on targeted indications, and identifies possible adverse effects and safety risks in a patient
population. Phase 3 clinical trials typically involve testing for safety and clinical efficacy in
an expanded population at geographically-dispersed test sites.
Clinical trials must be conducted in accordance with the FDAs good clinical practices
requirements. The FDA may order the partial, temporary or permanent discontinuation of a clinical
trial at any time or impose other sanctions if it believes that the clinical trial is not being
conducted in accordance with FDA requirements or presents an unacceptable risk to the clinical
trial patients. The institutional review board, or IRB, generally must approve the clinical trial
design and patient informed consent at each clinical site and may also require the clinical trial
at that site to be halted, either temporarily or permanently, for failure to comply with the IRBs
requirements, or may impose other conditions.
The applicant must submit to the FDA the results of the non-clinical and clinical trials,
together with, among other things, detailed information on the manufacture and composition of the
product and proposed labeling, in the form of an NDA, including payment of a user fee, unless the
applicant qualifies for a waiver of the user fee. The FDA reviews all NDAs submitted before it
accepts them for filing and may request additional information rather than accepting an NDA for
filing. Once the submission is accepted for filing, the FDA begins an in-depth review of the NDA.
Under the policies agreed to by the FDA under PDUFA, the FDA has ten months in which to complete
its review of a standard NDA and respond to the applicant. The review process and the PDUFA goal
date may be extended by three months if the FDA requests or the NDA sponsor otherwise provides
additional information or clarification regarding information already provided in the submission
within the three months prior to the PDUFA goal date. If the FDAs evaluations of the NDA and the
clinical and manufacturing procedures and facilities are favorable, the FDA may issue an approval
letter, authorizing commercial marketing of the drug for a specified indication. If the FDA is not
sufficiently satisfied with the information in the NDA to issue an approval letter, the FDA may
issue a complete response letter, which usually will describe all of the specific deficiencies that
the FDA has identified in the NDA and when possible, recommend actions that the NDA sponsor may
take to address the identified deficiencies.
On March 18, 2010, the FDA notified us that it approved our NDA for Silenor 3 mg and 6 mg
tablets for the treatment of insomnia characterized by difficulty with sleep maintenance.
Section 505(b)(1) New Drug Applications
The approval process described above is premised on the applicant being the owner of, or
having obtained a right of reference to, all of the data required to prove the safety and
effectiveness of a drug product. This type of marketing application, sometimes referred to as a
full or stand-alone NDA, is governed by Section 505(b)(1) of the Federal Food, Drug, and
Cosmetic Act. A Section 505(b)(1) NDA contains full reports of investigations of safety and
effectiveness, which includes the results of non-clinical studies and clinical trials, together
with detailed information on the manufacture and composition of the product, in addition to other
information.
13
Section 505(b)(2) New Drug Applications
As an alternate path to FDA approval for new indications, formulations or strengths of
previously-approved products, a company may file a Section 505(b)(2) NDA, instead of a
stand-alone or full NDA filing under Section 505(b)(1) as described above. Section 505(b)(2) of
the Federal Food, Drug, and Cosmetic Act was enacted as part of the Drug Price Competition and
Patent Term Restoration Act of 1984, otherwise known as the Hatch-Waxman Amendments. Section
505(b)(2) permits the submission of an NDA where at least some of the information required for
approval comes from studies not conducted by or for the applicant and for which the applicant has
not obtained a right of reference. The Hatch-Waxman Amendments permit the applicant to rely upon
the FDAs findings of safety and effectiveness for an approved product or on published information.
We submitted our NDA for Silenor under Section 505(b)(2), and as such it relied, in part, on the
FDAs previous findings of safety and effectiveness for doxepin.
To the extent that the Section 505(b)(2) applicant is relying on the FDAs findings for an
already-approved product, the applicant is required to certify to the FDA concerning any patents
listed for the approved product in the FDAs Orange Book publication. Specifically, the applicant
must certify that: (1) the required patent information relating to the listed patent has not been
filed in the NDA for the approved product; (2) the listed patent has expired; (3) the listed patent
has not expired, but will expire on a particular date and approval is sought after patent
expiration; or (4) the listed patent is invalid or will not be infringed by the manufacture, use or
sale of the new product. A certification that the new product will not infringe the already
approved products Orange Book-listed patents or that such patents are invalid is called a
paragraph IV certification. If the applicant does not challenge the listed patents, the Section
505(b)(2) application will not be approved until all the listed patents claiming the referenced
product have expired. The Section 505(b)(2) application may also not be approved until any
non-patent exclusivity, such as exclusivity for obtaining approval of a new chemical entity, listed
in the Orange Book for the referenced product has expired.
Notwithstanding the approval of many products by the FDA pursuant to Section 505(b)(2), over
the last few years, certain brand-name pharmaceutical companies and others have objected to the
FDAs interpretation of Section 505(b)(2). If these companies successfully challenge the FDAs
interpretation of Section 505(b)(2), the FDA may be required to change its interpretation of
Section 505(b)(2). This could delay or even prevent the FDA from approving any Section 505(b)(2)
NDA that we submit.
Regulatory Status and Requirements
In connection with the approval of our NDA for Silenor, the FDA imposed certain requirements
upon us. The FDA has required us to implement a risk evaluation and mitigation strategy, or REMS,
consisting of a medication guide and a timetable for assessment of its effectiveness. We are also
required to complete a standard clinical trial assessing the safety and efficacy of Silenor in
children aged 6 to 16 pursuant to the Pediatric Research Equity Act of 2003, or PREA, and to submit
the final results of this trial by March 2015.
The Hatch-Waxman Act
Under the Hatch-Waxman Act, newly-approved drugs and indications benefit from a statutory
period of non-patent marketing exclusivity. The Hatch-Waxman Act provides five-year marketing
exclusivity to the first applicant to gain approval of an NDA for a new chemical entity, meaning
that the FDA has not previously approved any other new drug containing the same active moiety.
Hatch-Waxman prohibits the submission of an ANDA, or a Section 505(b)(2) NDA for another version of
such drug during the five-year exclusive period; however, as explained above, submission of an ANDA
or Section 505(b)(2) NDA containing a paragraph IV certification is permitted after four years,
which may trigger a 30-month stay of approval of the ANDA or Section 505(b)(2) NDA. Protection
under Hatch-Waxman will not prevent the submission or approval of another full NDA; however, the
subsequent applicant would be required to conduct its own non-clinical and adequate and
well-controlled clinical trials to demonstrate safety and effectiveness. The Hatch-Waxman Act also
provides three years of marketing exclusivity for the approval of new and supplemental NDAs,
including Section 505(b)(2) NDAs, for, among other things, new indications, formulations, or
strengths of an existing drug, if new clinical investigations that were conducted or sponsored by
the
applicant are essential to the approval of the application. We received three years of
marketing exclusivity for Silenor.
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On December 15, 2010, we, together with ProCom, filed suit in the United States
District Court for the District of Delaware against each of Actavis and Mylan. The lawsuit alleges
that Actavis and Mylan have each infringed U.S. Patent No. 6,211,229 by filing their ANDAs relating
to Silenor prior to the expiration of this patent. Pursuant to the provisions of the
Hatch-Waxman Act, FDA final approval of each of the Actavis and Mylan ANDAs can occur no earlier
than May 3, 2013, unless there is an earlier court decision that the 229 patent is not infringed
and/or invalid or unless any party to the action is found to have failed to cooperate reasonably to
expedite the infringement action. At this time, other patents listed in the Orange Book for Silenor
have not been asserted against either Mylan or Actavis.
On February 2, 2011, we, together with ProCom, filed suit in the United States District Court
for the District of Delaware against Par. The lawsuit alleges that Par has infringed U.S. Patent No. 6,211,229 by
filing its ANDA relating to Silenor prior to the expiration of this patent. Pursuant to the
provisions of the Hatch-Waxman Act, FDA final approval of the Par ANDA can occur no earlier than
June 23, 2013, unless there is an earlier court decision that the 229 patent is not infringed
and/or invalid or unless any party to the action is found to have failed to cooperate reasonably to
expedite the infringement action. At this time, other patents listed in the Orange Book for
Silenor have not been asserted against Par.
We intend to vigorously enforce our intellectual property rights relating to Silenor, but
given the unpredictability of patent litigation, we cannot predict the outcome of these matters.
Pediatric Exclusivity
The Best Pharmaceuticals for Children Act, which was signed into law January 4, 2002, and
which reauthorized Section 111 of the 1997 FDA Modernization Act, provides in some cases an
additional six months of exclusivity for new or marketed drugs for specific pediatric studies
conducted at the written request of the FDA. PREA authorizes the FDA to require pediatric studies
for drugs to ensure the drugs safety and efficacy in children. PREA requires that certain NDAs or
supplements to NDAs contain data assessing the safety and effectiveness for the claimed indication
in all relevant pediatric subpopulations. Dosing and administration must be supported for each
pediatric subpopulation for which the drug is safe and effective. The FDA may also require this
data for approved drugs that are used in pediatric patients for the labeled indication, or where
there may be therapeutic benefits over existing products. The FDA may grant deferrals for
submission of data, or full or partial waivers from PREA. We received a waiver from PREA
requirements for children below age 6, and a deferral of submission of final pediatric study data
until March 2015 for children aged 6 to 16.
Other Regulatory Requirements
Any approved product that we market may also be subject to a number of post-approval
regulatory requirements. If we seek to make certain changes to an approved product, such as
promoting or labeling a product for a new indication, making certain manufacturing changes or
product enhancements or adding labeling claims, we will need FDA review and approval before the
change can be implemented. While physicians may use products for indications that have not been
approved by the FDA, we may not label or promote the product for an indication that has not been
approved. Securing FDA approval for new indications or product enhancements and, in some cases, for
manufacturing and labeling claims, is generally a time-consuming and expensive process that may
require us to conduct clinical trials under the FDAs IND regulations. Even if such studies are
conducted, the FDA may not approve any change in a timely fashion, or at all. In addition, adverse
experiences associated with use of the products must be reported to the FDA, and FDA rules govern
how we can label, advertise or otherwise commercialize our products.
There are post-marketing safety surveillance requirements that we will need to meet to
continue to market an approved product. The FDA also may, in its discretion, require additional
post-marketing testing and surveillance to monitor the effects of approved products or place
conditions on any approvals that could restrict the sale or use of these products. The FDA has
required us to develop a REMS, to ensure that the benefits of Silenor outweigh its risks. A REMS
can include information to accompany the product, such as a patient package insert or a medication
guide, a communication plan, elements to assure safe use, and an implementation system, and
must include a timetable for assessment of the REMS. Our REMS for Silenor consists of a medication
guide and a timetable for assessment of its effectiveness. In addition, the FDA may require
modifications to the REMS at a later date if warranted by new safety information. Any future
requirements imposed by the FDA may require substantial expenditures.
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The FDA has also requested that all manufacturers of sedative-hypnotic drug products modify
their product labeling to include stronger language concerning potential risks. These risks include
severe allergic reactions and complex sleep-related behaviors, which may include sleep-driving. The
FDA also recommended that the drug manufacturers conduct clinical studies to investigate the
frequency with which sleep-driving and other complex behaviors occur in association with individual
drug products. Our approved label for Silenor includes warnings relating to risks of complex sleep
behaviors.
In addition to FDA restrictions on marketing of pharmaceutical products, several other types
of state and federal laws have been applied to restrict certain marketing practices in the
pharmaceutical industry in recent years. These laws include anti-kickback statutes and false claims
statutes. The federal health care program anti-kickback statute prohibits, among other things,
knowingly and willfully offering, paying, soliciting or receiving remuneration to induce or in
return for purchasing, leasing, ordering or arranging for the purchase, lease or order of any
health care item or service reimbursable under Medicare, Medicaid or other federally financed
health care programs. This statute has been interpreted to apply to arrangements between
pharmaceutical manufacturers on the one hand and prescribers, purchasers and formulary managers on
the other. Violations of the anti-kickback statute are punishable by imprisonment, criminal fines,
civil monetary penalties and exclusion from participation in federal health care programs. Although
there are a number of statutory exemptions and regulatory safe harbors protecting certain common
activities from prosecution or other regulatory sanctions, the exemptions and safe harbors are
drawn narrowly, and practices that involve remuneration intended to induce prescribing, purchases
or recommendations may be subject to scrutiny if they do not qualify for an exemption or safe
harbor.
Federal false claims laws prohibit any person from knowingly presenting, or causing to be
presented, a false claim for payment to the federal government, or knowingly making, or causing to
be made, a false statement to have a false claim paid. Recently, several pharmaceutical and other
health care companies have been prosecuted under these laws for allegedly inflating drug prices
they report to pricing services, which in turn are used by the government to set Medicare and
Medicaid reimbursement rates, and for allegedly providing free product to customers with the
expectation that the customers would bill federal programs for the product. In addition, certain
marketing practices, including off-label promotion, may also violate false claims laws. The
majority of states also have statutes or regulations similar to the federal anti-kickback law and
false claims laws, which apply to items and services reimbursed under Medicaid and other state
programs, or, in several states, apply regardless of the payor.
In addition, we and the
manufacturers upon which we rely for the manufacture of our products are subject to requirements
that drugs be manufactured, packaged and labeled in conformity with current good manufacturing
practice, or cGMP. To comply with cGMP requirements, manufacturers must continue to spend time,
money and effort to meet requirements relating to personnel, facilities, equipment, production and
process, labeling and packaging, quality control, record-keeping and other requirements. The FDA
periodically inspects drug manufacturing facilities to evaluate compliance with cGMP requirements.
Also, as part of the sales and marketing process, pharmaceutical companies frequently provide
samples of approved drugs to physicians. This practice is regulated by the FDA and other
governmental authorities, including, in particular, requirements concerning record-keeping and
control procedures.
The U.S. Congress recently enacted legislation to reform the healthcare system. A major goal
of the new healthcare reform law was to provide greater access to healthcare coverage for more
Americans. Accordingly, the new healthcare reform law requires individual U.S. citizens and legal
residents to maintain qualifying health coverage, imposes certain requirements on employers with
respect to offering health coverage to employees, amends insurance regulations regarding when
coverage can be provided and denied to individuals, and expands existing government healthcare
coverage programs to more individuals in more situations. Among other things, the new healthcare
reform law specifically:
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established annual, non-deductible fees on any entity that manufactures or
imports certain branded prescription drugs, beginning in 2011; |
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increased minimum Medicaid rebates owed by manufacturers under the Medicaid Drug
Rebate Program, retroactive to January 1, 2010; |
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redefined a number of terms used to determine Medicaid drug rebate liability,
including average manufacturer price and retail community pharmacy, effective October
2010; |
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extended manufacturers Medicaid rebate liability to covered drugs dispensed to
individuals who are enrolled in Medicaid managed care organizations, effective March
2010; |
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expanded eligibility criteria for Medicaid programs by, among other things,
allowing states to offer Medicaid coverage to additional individuals beginning April
2010 and by adding new mandatory eligibility categories for certain individuals with
income at or below 133 percent of the Federal Poverty Level beginning 2014, thereby
potentially increasing manufacturers Medicaid rebate liability; |
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established a new Patient-Centered Outcomes Research Institute to oversee,
identify priorities in and conduct comparative clinical effectiveness research; |
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required manufacturers to participate in a coverage gap discount program, under
which they must agree to offer 50 percent point-of-sale discounts off negotiated prices
of applicable brand drugs to eligible beneficiaries during their coverage gap period, as
a condition for the manufacturers outpatient drugs to be covered under Medicare Part D,
beginning 2011; and |
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increased the number of entities eligible for discounts under the Public Health
Service pharmaceutical pricing program, effective January 2010. |
Some states are also considering legislation that would control the prices of drugs, and state
Medicaid programs are increasingly requesting manufacturers to pay supplemental rebates and/or
requiring prior authorization by the state program. It is likely that federal and state
legislatures and health agencies will continue to focus on additional healthcare reform in the
future.
There have been a number of other legislative and regulatory proposals aimed at changing the
healthcare system and pharmaceutical industry, including reductions in the cost of prescription
products, changes in the levels at which consumers and healthcare providers are reimbursed for
purchases of pharmaceutical products, proposals concerning reimportation of pharmaceutical products
and proposals concerning safety matters. For example, in an attempt to protect against counterfeit
drugs, the federal government and numerous states have enacted pedigree legislation. In particular,
California has enacted legislation that requires development of an electronic pedigree to track and
trace each prescription drug at the saleable unit level through the distribution system.
Californias electronic pedigree requirement is scheduled to take effect beginning in January 2015.
Outside of the United States, our ability to market our products will also depend on receiving
marketing authorizations from the appropriate regulatory authorities. The foreign regulatory
approval process includes all of the risks associated with the FDA approval process described
above. The requirements governing the conduct of clinical trials and marketing authorization vary
widely from country to country.
Third-Party Reimbursement and Pricing Controls
In the United States and elsewhere, sales of pharmaceutical products depend in significant
part on the availability of reimbursement to the consumer from third-party payors, such as
government and private insurance plans. Third-party payors are increasingly challenging the prices
charged for medical products and services. It is and will continue to be time-consuming and
expensive for us or our strategic collaborators to go through the process of seeking reimbursement
from Medicare and private payors. Our products may not be considered cost effective, and coverage
and reimbursement may not be available or sufficient to allow us to sell our products on a
competitive and profitable basis.
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In many foreign markets, including the countries in the European Union, pricing of
pharmaceutical products is subject to governmental control. In the United States, there have been,
and we expect that there will continue to be, a number of federal and state proposals to implement
similar governmental pricing control.
While we cannot predict whether such legislative or regulatory proposals will be adopted, the
adoption of such proposals could have a material adverse effect on our business, financial
condition and profitability.
Employees
As of February 15, 2011, we had 40 employees, consisting of drug development and
manufacturing, regulatory affairs, marketing and administration. We believe our relations with our
employees are good.
Available Information
We make available free of charge on or through our internet website our Annual Reports on Form
10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and all amendments to those
reports as soon as reasonably practicable after such material is electronically filed with or
furnished to the Securities and Exchange Commission. Our internet address is
www.somaxon.com. Information is also available through the Securities and Exchange
Commissions website at www.sec.gov or is available at the Securities and Exchange
Commissions Public Reference Room located at 100 F Street, NE, Washington DC, 20549. Information
on the operation of the Public Reference Room is available by calling the Securities and Exchange
Commission at 800-SEC-0330.
Investing in our common stock involves a high degree of risk. You should carefully consider
the following risk factors, as well as the other information in this report, before deciding
whether to invest in shares of our common stock. The occurrence of any of the following risks could
harm our business, financial condition, results of operations or growth prospects. In that case,
the trading price of our common stock could decline, and you may lose all or part of your
investment.
Risks Related to Our Business
Our success is dependent on the success of Silenor (doxepin).
To date, the majority of our resources have been focused on the development of Silenor, and
substantially all of our resources are now focused on the commercialization of Silenor. Our ability
to generate revenue in the near term will depend solely on the success of this product.
Accordingly, any disruption in our ability to generate revenues from the sale of Silenor or lack of
success in its commercialization will have a substantial adverse impact on our business.
We may require substantial additional funding and may be unable to raise capital when needed,
which could force us to delay, reduce or eliminate planned activities.
We began generating revenues from the commercialization of Silenor late in the third quarter
of 2010, and our operations to date have generated substantial needs for cash. We expect our
negative cash flows from operations to continue until we are able to generate significant cash
flows from the commercialization of Silenor.
In November 2010, we completed a public offering of 8,800,000 shares of our common stock at a
public offering for aggregate net proceeds of approximately $24.8 million, and at December 31, 2010
we had cash, cash equivalents, and short-term investments totaling $54.8 million. We believe, based
on our current operating plan, that our cash, cash equivalents and short-term investments as of December 31, 2010 will be
sufficient to fund our operations through at least the first quarter of 2012; however, our
financial resources may not be adequate through such period due to many factors, including but not
limited to the rate of growth of Silenor sales and the actual cost of commercial activities.
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We are responsible for the costs relating to the commercialization of Silenor. As a result,
commercial activities relating to Silenor are likely to result in the need for substantial
additional funds. Our future capital requirements will depend on, and could increase significantly
as a result of, many factors, including:
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our success in generating cash flows from the commercialization of Silenor,
together with our co-promotion partner P&G; |
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the costs of establishing or contracting for commercial programs and resources; |
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the terms and timing of any future collaborative, licensing and other
arrangements that we may establish; |
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the costs of filing, prosecuting, defending and enforcing any patent claims and
other intellectual property rights; |
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the extent to which we acquire or in-license new products, technologies or
businesses; |
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the rate of progress and cost of our non-clinical studies, clinical trials and
other development activities; |
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the scope, prioritization and number of development programs we pursue; and |
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the effect of competing technological and market developments. |
In February 2011, we entered into a loan agreement with Comerica Bank, or Comerica, pursuant
to which we may request advances in an aggregate outstanding amount not to exceed $15.0 million.
Amounts borrowed under the loan agreement may be repaid and re-borrowed at any time prior to
February 7, 2013. We have no amounts outstanding under the loan agreement. Our ability to borrow
under the loan agreement depends upon a number of conditions and restrictions, and we cannot be
certain that we will satisfy all borrowing conditions at a time when we desire to borrow such
amounts. For example, our ability to borrow at any given time is subject to the representations and
warranties we made to Comerica under the loan agreement being generally true and correct at such
time. Furthermore, we are subject to a number of affirmative and negative covenants, each of which
we must be in compliance with at the time of any proposed borrowing. If we have not satisfied these
various conditions, or an event of default otherwise has occurred, we may be unable to borrow
amounts under the loan agreement, and may be required to repay any amounts previously borrowed.
In addition to the amounts available under our Comerica facility, we intend to obtain any
additional funding we may require through strategic relationships, public or private equity or debt
financings, assigning receivables or royalty rights, or other arrangements and cannot assure that
such funding will be available on reasonable terms, or at all.
If we are unsuccessful in raising additional required funds, we may be required to delay,
scale-back or eliminate plans or programs relating to our business, relinquish some or all rights
to Silenor, or renegotiate less favorable terms with respect to such rights than we would otherwise
choose. In addition, if we do not meet our payment obligations to third parties as they come due,
we may be subject to litigation claims. Even if we are successful in defending against these
claims, litigation could result in substantial costs and be a distraction to management, and may
result in unfavorable results that could further adversely impact our financial condition. If we
raise additional funds by issuing equity securities, substantial dilution to existing stockholders
would result. If we raise additional funds by incurring debt financing, the terms of the debt may
involve significant cash payment obligations as well as covenants and specific financial ratios
that may restrict our ability to operate our business.
We, our co-promotion partner, P&G, and our contract sales force provider, Publicis, will need to
retain qualified sales and marketing personnel and collaborate in order to successfully
commercialize Silenor.
In
August 2010, we entered into a co-promotion agreement with P&G, under which its sales
representatives will provide a minimum number of primary details to certain healthcare
professionals and a minimum number of calls to pharmacists promoting Silenor. In addition, in July
2010, we retained Publicis to provide 110 sales representatives to promote Silenor under the terms
of a contract sales agreement. In February 2011 we engaged Publicis to provide an
additional 35 sales representatives to promote Silenor that we expect to be fully deployed in
the early second quarter of 2011. These representatives are employees of Publicis but will be
hired to our specifications and will be managed by our team of Somaxon sales management personnel.
As a result, Silenor is now supported by 215 field sales representatives who promote Silenor in the
primary detail position, and this will be increased to 250 sales representatives once the
deployment of the additional sales representatives is complete. However, there can be no assurance
that we and Publicis will be able to identify suitable candidates to fill the additional 35
positions on this timeframe, which may result in delaying our ability to increase in-person
promotional efforts for Silenor. To the extent we, P&G and Publicis are not
successful in retaining qualified sales and marketing personnel, we may not be able to effectively
market Silenor.
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We and P&G each have the right to terminate the co-promotion agreement at any time following
December 31, 2011 by providing at least 90 days prior written notice, as well as other more limited
termination rights. While our agreement with P&G requires its field sales representatives to
promote our products in a minimum number of primary details to target physicians and a minimum
number of pharmacy calls, we cannot be sure that P&Gs efforts will be successful.
Our agreement with Publicis will cause us to incur significant costs, and we cannot be sure
that the efforts of the contract sales force, together with any efforts made by P&G to promote our
products, will generate sufficient awareness or demand for our products. If we determine that the
contract sales force is not successful and we decide to terminate our agreement with Publicis prior
to the one-year anniversary of the deployment of the contract sales force, we will incur
termination fees.
Any revenues we receive from sales of Silenor will largely depend upon the efforts P&G and
Publicis, which in many instances will not be within our control. If we are unable to maintain our
co-promotion agreement with P&G, to maintain our contract sales agreement with Publicis or to
effectively establish alternative arrangements to market our products, our business could be
adversely affected. In addition, despite our arrangements with P&G and Publicis, we still may not
be able to cover all of the prescribing physicians for insomnia at the same level of reach and
frequency as our competitors, and we ultimately may need to further expand our selling efforts in
order to effectively compete.
If Silenor or any other product we commercialize does not achieve broad market acceptance, the
revenues that we generate from its sale will be limited.
The commercial success of Silenor or any other product which we commercialize will depend upon
the acceptance of the product by the medical community and reimbursement of the product by
third-party payors, including government payors. The degree of market acceptance of any approved
product will depend on a number of factors, including:
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the scope and effectiveness of our sales, marketing and distribution resources
and strategies, or those of our collaborators, if any; |
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our ability to provide acceptable evidence of safety and efficacy and physician
and patient understanding of differential indications for use, such as sleep
maintenance; |
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pricing and cost effectiveness; |
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availability of alternative treatments, including, in the case of Silenor, a
number of competitive products already approved for the treatment of insomnia or
expected to be commercially launched in the future; |
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off-label substitution by chemically similar or equivalent products, including
for Silenor the off-label use of higher-dose generic formulations of doxepin approved
and available for the treatment of depression and anxiety; |
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prevalence and severity of any adverse side effects; |
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limitations or warnings contained in the FDA-approved labeling of Silenor or any
other product that we commercialize; |
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relative convenience and ease of administration; and |
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our ability to obtain sufficient third-party coverage or reimbursement. |
If Silenor or any other product that we commercialize does not achieve an adequate level of
acceptance by physicians, health care payors and patients, or adequate payment and reimbursement
levels are not provided, or if those policies increasingly favor generic products, we may not
generate sufficient revenue from the product, and we may not become or remain profitable. In
addition, our efforts to educate the medical community and third-party payors on the benefits of
Silenor or any other product that we commercialize may require significant resources and may never
be successful.
Restrictions on or challenges to our patent rights relating to our products and limitations on
or challenges to our other intellectual property rights may limit our ability to prevent third
parties from competing against us.
Our success will depend on our ability to obtain and maintain patent protection for Silenor
and any other product candidate we develop or commercialize, preserve our trade secrets, prevent
third parties from infringing upon our proprietary rights and operate without infringing upon the
proprietary rights of others. The patent rights that we have in-licensed relating to Silenor are
limited in ways that may affect our ability to exclude third parties from competing against us. In
particular, we do not hold composition of matter patents covering the active pharmaceutical
ingredient of Silenor. Composition of matter patents on active pharmaceutical ingredients are a
particularly effective form of intellectual property protection for pharmaceutical products as they
apply without regard to any method of use or other type of limitation. As a result, competitors who
obtain the requisite regulatory approval can offer products with the same active ingredients as our
products so long as the competitors do not infringe any method of use or formulation patents that
we may hold.
The principal patent protection that covers, or that we expect will cover, Silenor consists of
method of use patents. This type of patent protects the product only when used or sold for the
specified method. However, this type of patent does not limit a competitor from making and
marketing a product that is identical to our product for an indication that is outside of the
patented method. Moreover, physicians may prescribe such a competitive identical product for
off-label indications that are covered by the applicable patents. Although such off-label
prescriptions may induce or contribute to the infringement of method of use patents, the practice
is common and such infringement is difficult to prevent or prosecute.
Because products with active ingredients identical to ours have been on the market for many
years, there can be no assurance that these other products were never used off-label or studied in
such a manner that such prior usage would not affect the validity of our method of use patents. Due
to some prior art that we identified, we initiated a reexamination of one of the patents we have
in-licensed covering Silenor, (specifically, U.S. Patent No. 5,502,047, Treatment for Insomnia)
which claims the treatment of chronic insomnia using doxepin in a daily dosage of 0.5 mg to 20 mg
and expires in March 2013. The reexamination proceedings terminated and the USPTO issued a reexamination certificate narrowing certain claims, so that
the broadest dosage ranges claimed by us are 0.5 mg to 20 mg for otherwise healthy patients with
chronic insomnia and for patients with chronic insomnia resulting from depression, and 0.5 mg to 4
mg for all other chronic insomnia patients. We also requested reissue of this same patent to
consider some additional prior art and to add intermediate dosage ranges below 10 mg. In two office
actions relating to this reissue request, the USPTO raised no prior art objections to 32 of the 34
claims we were seeking and raised a prior art objection to the other two, as well as some technical
objections. Each of the claims objected to by the USPTO related to dosages above 10 mg. After
further review of the prior art submitted, the USPTO withdrew all of its prior art objections. We
then determined that the proposed addition of the intermediate dosage ranges and the resolution of
the technical objections no longer warranted continuation of the reissue proceeding. As a result,
we elected not to continue that proceeding.
We also have multiple internally developed pending patent applications. No assurance can be
given that the USPTO or other applicable regulatory authorities will allow pending applications to
result in issued patents with the claims we are seeking, or at all.
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Patent applications in the United States are confidential for a period of time until they are
published, and publication of discoveries in scientific or patent literature typically lags actual
discoveries by several months. As a result, we cannot be certain that the inventors of the issued
patents that we in-licensed were the first to conceive of inventions covered by pending patent
applications or that the inventors were the first to file patent applications for such inventions.
In addition, third parties may challenge our in-licensed patents and any of our own patents
that we may obtain, which could result in the invalidation or unenforceability of some or all of
the relevant patent claims, or could attempt to develop products utilizing the same active
pharmaceutical ingredients as our products that do not infringe the claims of our in-licensed
patents or patents that we may obtain.
When a third party files an ANDA for a product containing doxepin for the treatment of
insomnia at any time during which we have patents listed for Silenor in the FDAs Orange Book
publication, the applicant will be required to certify to the FDA concerning the listed patents.
Specifically, the applicant must certify that: (1) the required patent information relating to the
listed patent has not been filed in the NDA for the approved product; (2) the listed patent has
expired; (3) the listed patent has not expired, but will expire on a particular date and approval
is sought after patent expiration; or (4) the listed patent is invalid or will not be infringed by
the manufacture, use or sale of the new product. A certification that the new product will not
infringe the Orange Book-listed patents for Silenor or that such patents are invalid is called a
paragraph IV certification.
On November 3, 2010, we received a notice from each of Actavis Elizabeth LLC and Mylan
Pharmaceuticals Inc. that each had filed with the FDA an ANDA for a generic version of Silenor 3 mg
and 6 mg tablets. Each of the notices included a paragraph IV certification with respect to seven
of the eight patents listed in the Orange Book for Silenor.
On December 15, 2010, we, together with ProCom, filed suit in the United States
District Court for the District of Delaware against each of Actavis and Mylan. The lawsuit alleges
that Actavis and Mylan have each infringed U.S. Patent No. 6,211,229 by filing their ANDAs relating
to Silenor prior to the expiration of this patent. Pursuant to the provisions of the
Hatch-Waxman Act, FDA final approval of each of the Actavis and Mylan ANDAs can occur no earlier
than May 3, 2013, unless there is an earlier court decision that the 229 patent is not infringed
and/or invalid or unless any party to the action is found to have failed to cooperate reasonably to
expedite the infringement action. At this time, other patents listed in the Orange Book for Silenor
have not been asserted against either Mylan or Actavis.
On December 23, 2010, we received a notice from Par Pharmaceuticals, Inc. that it had filed
with the FDA an ANDA for a generic version of Silenor 3 mg and 6 mg tablets. This notice included a
paragraph IV certification with respect to seven of the eight patents listed in the Orange Book for
Silenor.
On February 2, 2011, we, together with ProCom, filed suit in the United States District Court
for the District of Delaware against Par. The lawsuit alleges that Par has infringed U.S. Patent
No. 6,211,229 by filing its ANDA relating to Silenor prior to the expiration of this patent.
Pursuant to the provisions of the Hatch-Waxman Act, FDA final approval of the Par ANDA can occur no
earlier than June 23, 2013, unless there is an earlier court decision that the 229 patent is not
infringed and/or invalid or unless any party to the action is found to have failed to cooperate
reasonably to expedite the infringement action. At this time, other patents listed in the Orange
Book for Silenor have not been asserted against Par.
We intend to vigorously enforce our intellectual property rights relating to Silenor, but we
cannot predict the outcome of these matters. Any adverse outcome in this litigation could result
in one or more generic versions of Silenor being launched before the expiration of the listed
patents, which could adversely affect our ability to successfully execute our business strategy to
increase sales of Silenor and would negatively impact our financial condition and results of
operations, including causing a significant decrease in our revenues and cash flows.
Certain pharmaceutical companies patent settlement agreements with generic pharmaceutical
companies have been challenged by the U.S. Federal Trade Commission alleging a violation of Section
5(a) of the Federal Trade Commission Act, and any patent settlement agreement that we may enter
into with any generic pharmaceutical
company may be subject to similar challenges, which will be both expensive and time consuming
and may render such settlement agreements unenforceable.
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We also rely upon unpatented trade secrets and improvements, unpatented know-how and
continuing technological innovation to develop and maintain our competitive position, which we seek
to protect, in part, by confidentiality agreements with our collaborators, employees and
consultants. We also have invention or patent assignment agreements with our employees and certain
consultants. There can be no assurance that inventions relevant to us will not be developed by a
person not bound by an invention assignment agreement with us. There can be no assurance that
binding agreements will not be breached, that we would have adequate remedies for any breach, or
that our trade secrets will not otherwise become known or be independently discovered by our
competitors.
Litigation or other proceedings to enforce or defend intellectual property rights is often
very complex in nature, expensive and time-consuming, may divert our managements attention from
our core business and may result in unfavorable results that could adversely impact our ability to
prevent third parties from competing with us.
The patent rights that we have in-licensed covering Silenor are limited to certain low-dosage
strengths in the United States, and our market opportunity for this product may be limited by
the lack of patent protection for higher dosage strengths for which generic formulations are
available and the lack of patent protection in other territories.
Although we have an exclusive, worldwide license for Silenor for the treatment of insomnia
through the life of the last issued patent to expire, we do not have patent protection for Silenor
in any jurisdiction outside the United States. In addition, although our in-licensed patent for the
treatment of transient insomnia is scheduled to expire in 2020 and our patent that is expected to
issue relating to the food effect of Silenor would expire in 2027, our in-licensed patent for the
treatment of chronic insomnia is scheduled to expire in March 2013. Accordingly, in the absence of
additional patents or other alternatives to obtain additional exclusivity rights for Silenor, a
competitor could attempt to market doxepin for a chronic insomnia indication as early as March
2013. Furthermore, the patent protection in the United States for Silenor for the treatment of
insomnia is limited to dosages ranging from a lower limit of 0.5 mg to various upper limits up to
20 mg of the active ingredient, doxepin. Doxepin is prescribed at dosages ranging from 75 mg to 300
mg daily for the treatment of depression and anxiety and is available in generic form in strengths
as low as 10 mg in capsule form, as well as in a concentrated liquid form dispensed by a marked
dropper and calibrated for 5 mg. As a result, we may face competition from the off-label use of
these or other dosage forms of generic doxepin. Off-label use occurs when a drug that is approved
by the FDA for one indication is prescribed by physicians for a different, unapproved indication.
In addition, we do not have patent protection for Silenor in any jurisdiction outside the
United States. Others may attempt to commercialize low-dose doxepin in the European Union, Canada,
Mexico or other markets where we do not have patent protection for Silenor. Due to the lack of
patent protection for doxepin in territories outside the United States and the potential for
correspondingly lower prices for the drug in those markets, it is possible that patients will seek
to acquire low-dose doxepin in those other territories. The off-label use of generic doxepin in the
United States or the importation of doxepin from foreign markets could adversely affect the
commercial potential for Silenor and adversely affect our overall business and financial results.
We have submitted additional patent applications for Silenor in the United States and outside the
United States, but we cannot assure that these will result in issued patents or additional
protection in the United States or other jurisdictions.
We are subject to uncertainty relating to healthcare reform measures, reimbursement policies and
regulatory proposals which, if not favorable to Silenor or any other product that we
commercialize, could hinder or prevent our commercial success.
Our ability to successfully commercialize Silenor and any other product to which we obtain
rights will depend in part on the extent to which governmental authorities, private health insurers
and other organizations establish appropriate coverage and reimbursement levels for the cost of our
products and related treatments. The continuing efforts of the government, insurance companies,
managed care organizations and other payors of healthcare services to contain or reduce costs of
healthcare may adversely affect:
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the ability to obtain a price we believe is fair for our products; |
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the ability to generate revenues and achieve or maintain profitability; |
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the future revenues and profitability of our potential customers, suppliers and
collaborators; and |
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the availability of capital. |
The U.S. Congress recently enacted legislation to reform the healthcare system. A major goal
of the new healthcare reform law was to provide greater access to healthcare coverage for more
Americans. Accordingly, the new healthcare reform law required individual U.S. citizens and legal
residents to maintain qualifying health coverage, imposed certain requirements on employers with
respect to offering health coverage to employees, amended insurance regulations regarding when
coverage can be provided and denied to individuals, and expanded existing government healthcare
coverage programs to more individuals in more situations. Among other things, the new healthcare
reform law specifically:
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established annual, non-deductible fees on any entity that manufactures or
imports certain branded prescription drugs, beginning in 2011; |
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increased minimum Medicaid rebates owed by manufacturers under the Medicaid Drug
Rebate Program, retroactive to January 1, 2010; |
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redefined a number of terms used to determine Medicaid drug rebate liability,
including average manufacturer price and retail community pharmacy, effective October
2010; |
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extended manufacturers Medicaid rebate liability to covered drugs dispensed to
individuals who are enrolled in Medicaid managed care organizations, effective March
2010; |
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expanded eligibility criteria for Medicaid programs by, among other things,
allowing states to offer Medicaid coverage to additional individuals beginning April
2010 and by adding new mandatory eligibility categories for certain individuals with
income at or below 133 percent of the Federal Poverty Level beginning 2014, thereby
potentially increasing manufacturers Medicaid rebate liability; |
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established a new Patient-Centered Outcomes Research Institute to oversee,
identify priorities in and conduct comparative clinical effectiveness research; |
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required manufacturers to participate in a coverage gap discount program, under
which they must agree to offer 50 percent point-of-sale discounts off negotiated prices
of applicable brand drugs to eligible beneficiaries during their coverage gap period, as
a condition for the manufacturers outpatient drugs to be covered under Medicare Part D,
beginning 2011; and |
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increased the number of entities eligible for discounts under the Public Health
Service pharmaceutical pricing program, effective January 2010. |
While this legislation will, over time, increase the number of patients who have insurance
coverage for our products, it also is likely to adversely affect our results of operations. Some
states are also considering legislation that would control the prices of drugs, and state Medicaid
programs are increasingly requesting manufacturers to pay supplemental rebates and/or requiring
prior authorization by the state program. It is likely that federal and state legislatures and
health agencies will continue to focus on additional healthcare reform in the future.
As a result of these or other reform measures, we may determine to change our current manner
of operation or change our contract arrangements, any of which could harm our ability to operate
our business efficiently or on the scale we would like and our ability to raise capital. In
addition, in certain foreign markets, the pricing of prescription drugs is subject to government
control and reimbursement may in some cases be unavailable or insufficient.
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Current healthcare reform measures and any future legislative proposals to reform healthcare
or reduce government insurance programs may result in lower prices for Silenor and any other
product that we commercialize or exclusion of Silenor or any such other product from coverage and
reimbursement programs. Either of those could harm our ability to market our products and
significantly reduce our revenues from the sale of our products.
Managed care organizations are increasingly challenging the prices charged for medical
products and services and, in some cases, imposing restrictions on the coverage of particular
drugs. Many managed care organizations negotiate the price of medical services and products and
develop formularies which establish pricing and reimbursement levels. Exclusion of a product from a
formulary can lead to its sharply reduced usage in the managed care organizations patient
population. The process for obtaining coverage can be lengthy and costly, and we expect that it
could take several months before a particular payor initially reviews our product and makes a
decision with respect to coverage. For example, third-party payors may require cost-benefit
analysis data from us in order to demonstrate the cost-effectiveness of any product we might bring
to market. For any individual third-party payor, we may not be able to provide data sufficient to
gain reimbursement on a similar or preferred basis to competitive products, or at all.
In addition, many insurers and other healthcare payment organizations encourage the use of
less expensive alternative generic brands and OTC products through their prescription benefits
coverage and reimbursement policies. The availability of generic prescription and OTC products for
the treatment of insomnia has created, and will continue to create, a competitive reimbursement
environment. Insurers and other healthcare payment organizations frequently make the generic or
OTC alternatives more attractive to the patient by providing different amounts of reimbursement so
that the net cost of the generic or OTC product to the patient is less than the net cost of a
prescription branded product to the patient. Aggressive pricing policies by our generic or OTC
product competitors and the prescription benefit policies of insurers could have a negative effect
on our product revenues and profitability.
The competition among pharmaceutical companies to have their products approved for
reimbursement also results in downward pricing pressure in the industry and in the markets where
our products compete. In some cases, we may discount our products in order to obtain reimbursement
coverage, and we may not be successful in any efforts we take to mitigate the effect of a decline
in average selling prices for our products. Declines in our average selling prices would also
reduce our gross margins.
In addition, once reimbursement at an agreed level is approved by a third-party payor, we may
lose that reimbursement entirely. As reimbursement is often approved for a period of time, this
risk is greater at the end of the time period, if any, for which the reimbursement was approved.
We may face additional challenges with regard to reimbursement which could affect our ability
to successfully commercialize Silenor or any other product candidate that we commercialize,
including:
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the variability of reimbursement rates likely to be caused by the use of
miscellaneous drug codes and procedure codes may discourage physicians from providing
Silenor or any other product candidate that we commercialize to certain or all patients
depending on their insurance coverage; |
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the initial use of miscellaneous drug codes for billing Silenor or any other
product candidate that we commercialize until such time as specific drug codes are
approved could result in slow and/or inaccurate reimbursement and thereby discourage
product use; |
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an increase in insurance plans that place more cost liability onto patients may
limit patients willingness to pay for Silenor or any other product candidate that we
commercialize and thereby discourage uptake; and |
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unforeseen changes in federal health care policy guidelines may negatively impact
a physician practices willingness to provide novel treatments. |
If our products are not included within an adequate number of formularies or adequate
reimbursement levels are not provided, or if those policies increasingly favor generic or OTC
products, our overall business and financial condition would be adversely affected.
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Further, there have been a number of legislative and regulatory proposals concerning
reimportation of pharmaceutical products and safety matters. For example, in an attempt to protect
against counterfeit drugs, the federal government and numerous states have enacted pedigree
legislation. In particular, California has enacted legislation that requires development of an
electronic pedigree to track and trace each prescription drug at the saleable unit level through
the distribution system. Californias electronic pedigree requirement is scheduled to take effect
beginning in January 2015. Compliance with California and future federal or state electronic
pedigree requirements will likely require an increase in our operational expenses and will likely
be administratively burdensome.
Generic pricing plans, such as those implemented by Wal-Mart, CVS, Rite Aid and Walgreens, may
affect the market for our products.
In September 2006, Wal-Mart began offering certain generic drugs at $4 per prescription, and
various other retailers including CVS, Rite Aid and Walgreens currently offer generic drugs at
similar prices. Some retailers have also offered certain generic drugs for free on a limited
basis. These and many other retailers have significant market presence, and any decision by them to
make generic analogs of our products available at substantially lower prices may have a material
adverse effect on the market for our products and our ability to generate revenues from their sale.
Even though Silenor received regulatory approval, it will still be subject to substantial
ongoing regulation.
Even though U.S. regulatory approval has been obtained for Silenor, the FDA has imposed
restrictions on its indicated uses or marketing and imposed ongoing requirements for post-approval
studies or other activities. For example, the approved use of Silenor is limited to the treatment
of insomnia characterized by sleep maintenance difficulty. In addition, the FDA has required us to
implement a REMS consisting of a medication guide and a timetable for assessment of its
effectiveness. We are also required to complete a standard clinical trial assessing the safety and
efficacy of Silenor in children aged 6 to 16 pursuant to PREA, and to submit final results of this
trial by March 2015. Any issues relating to these restrictions or requirements could have an
adverse impact on our ability to achieve market acceptance of Silenor and generate revenues from
its sale.
The FDA has also requested that all manufacturers of sedative-hypnotic drug products modify
their product labeling to include stronger language concerning potential risks. These risks include
severe allergic reactions and complex sleep-related behaviors, which may include sleep-driving. The
FDA also recommended that the drug manufacturers conduct clinical studies to investigate the
frequency with which sleep-driving and other complex behaviors occur in association with individual
drug products. Our approved label for Silenor includes warnings relating to risks of complex sleep
behaviors.
Silenor is also subject to ongoing FDA requirements for the labeling, packaging, storage,
advertising, promotion, record-keeping and submission of safety and other post-market information.
For example, the FDA may require modifications to our REMS for Silenor at a later date if warranted
by new safety information. Any future requirements imposed by the FDA may require substantial
expenditures.
In addition, all marketing activities associated with Silenor, as well as marketing activities
related to any other products that we promote, are subject to numerous federal and state laws
governing the marketing and promotion of pharmaceutical products. The FDA regulates post-approval
promotional labeling and advertising to ensure that such activities conform to statutory and
regulatory requirements. Such regulation and FDA review could require us to alter our marketing
materials or strategy, incur additional costs or delay certain of our promotional activities.
In addition to FDA restrictions, the marketing of prescription drugs is subject to laws and
regulations prohibiting fraud and abuse under government healthcare programs. For example, the
federal health care program anti-kickback statute prohibits, among other things, knowingly and
willfully offering, paying, soliciting or receiving remuneration to induce or in return for
purchasing, leasing, ordering or arranging for the purchase, lease or order of any health care item
or service reimbursable under Medicare, Medicaid or other federally financed health care programs.
This statute has been interpreted to apply to arrangements between pharmaceutical manufacturers on
the one hand and prescribers, purchasers and formulary managers on the other. Although there are a
number of statutory exemptions and regulatory safe harbors protecting certain common activities
from prosecution or other regulatory sanctions,
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the exemptions and safe harbors are drawn narrowly,
and practices that involve remuneration intended to induce prescribing, purchases or recommendations may be subject to scrutiny if they do not qualify
for an exemption or safe harbor. Federal false claims laws prohibit any person from knowingly
presenting, or causing to be presented, a false claim for payment to the federal government, or
knowingly making, or causing to be made, a false statement to have a false claim paid. Recently,
several pharmaceutical and other health care companies have been prosecuted under these laws for
allegedly inflating drug prices they report to pricing services, which in turn are used by the
government to set Medicare and Medicaid reimbursement rates, and for allegedly providing free
product to customers with the expectation that the customers would bill federal programs for the
product. In addition, certain marketing practices, including off-label promotion, may also violate
false claims laws. The majority of states also have statutes or regulations similar to the federal
anti-kickback law and false claims laws, which apply to items and services reimbursed under
Medicaid and other state programs, or, in several states, which apply regardless of the payor. If
we fail to comply with applicable FDA regulations or other laws or regulations relating to the
marketing of Silenor or any other product, we could be subject to criminal prosecution, civil
penalties, seizure of products, injunction, or exclusion of such products from reimbursement under
government programs, as well as other regulatory actions.
Approved products, manufacturers and manufacturers facilities are subject to continual review
and periodic inspections. If a regulatory agency discovers previously unknown problems with a
product, such as adverse events of unanticipated severity or frequency, or problems with the
facility where the product is manufactured, a regulatory agency may impose restrictions on that
product or on us, including requiring withdrawal of the product from the market.
The distribution of pharmaceuticals is also regulated by state regulatory agencies, including
the requirement to obtain and maintain distribution permits or licenses in many states. Compliance
with these requirements may require the expenditure of substantial resources and could impact the
manner and scope of our distribution operations. If we fail to comply with applicable state
regulations relating to the distribution of Silenor or any other product we market, we could be
subject to criminal prosecution, civil penalties, seizure of products, injunctions, or other
regulatory actions.
We have implemented a comprehensive compliance program and related infrastructure, but we
cannot provide absolute assurance that we are or will be in compliance with all potentially
applicable laws and regulations. If our operations relating to Silenor fail to comply with
applicable regulatory requirements, a regulatory agency may:
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issue warning letters or untitled letters; |
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impose civil or criminal penalties, including fines; |
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suspend regulatory approval; |
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impose requirements to conduct additional clinical, non-clinical or other
studies; |
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suspend any ongoing clinical trials; |
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refuse to approve pending applications or supplements to approved applications
filed by us; |
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impose restrictions on operations, including costly new manufacturing
requirements; or |
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seize or detain products or require a product recall. |
In addition to P&G and Publicis, we rely on other third parties to perform many other necessary
services for our commercial products, including services related to the storage and distribution
of our products.
We have retained third-party service providers to perform a variety of functions related to
the sale and distribution of our products, key aspects of which are out of our direct control. For
example, we rely on one third-party service provider to provide key services related to warehousing
and inventory management, distribution, contract administration and chargeback processing, accounts
receivable management and call center management, and, as a result, most of our inventory is stored
at a single warehouse maintained by the service provider. We also utilize third parties to perform
various other services for us relating to e-detailing, sample processing, and regulatory
monitoring, including adverse event reporting, safety database management and other product
maintenance services.
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We place substantial reliance on the third-party providers that perform services for us. If
these third-party service providers fail to effectively provide services to us, fail to comply with
applicable laws and regulations, fail to meet expected deadlines, or otherwise do not carry out
their contractual duties to us, or encounter physical or natural damage at their facilities, our
ability to successfully commercialize Silenor would be significantly impaired, or we could be
subject to regulatory sanctions. We do not currently have the internal capacity to perform these
important commercial functions, and we may not be able to maintain commercial arrangements for
these services on reasonable terms.
Our future reporting and payment obligations under governmental purchasing and rebate programs
will be complex and may involve subjective decisions, and any failure to comply with those
obligations could subject us to penalties and sanctions, which in turn could have a material
adverse effect on our business and financial condition.
As a condition of reimbursement by various federal and state healthcare programs, we will need
to calculate and report certain pricing information to federal and state healthcare agencies. The
regulations regarding the reporting of such pricing information are complex. Our calculations and
methodologies will be subject to review and challenge by the applicable governmental agencies, and
it is possible that such reviews could result in material changes to our calculations. In addition,
because our calculations and the judgments involved in making these calculations will involve
subjective decisions and complex methodologies, these calculations are subject to the risk of
errors. Any failure to comply with governmental reporting and payment obligations could result in
civil and/or criminal sanctions.
We expect intense competition in the marketplace for Silenor and any other product to
which we acquire rights, and new products may emerge that provide different and/or better
therapeutic alternatives for the disorders that our products are intended to treat.
Silenor competes with well established drugs approved for the treatment of insomnia, including
the branded and generic versions of Sanofi-Synthélabo, Inc.s Ambien and Ambien CR, Pfizers
Sonata, and Lunesta, marketed by Sunovion Pharmaceuticals Inc., a wholly-owned subsidiary of
Dainippon Sumitomo Pharma Co., Ltd., all of which are GABA-receptor agonists, and Takeda
Pharmaceuticals North America, Inc.s Rozerem, a melatonin receptor antagonist.
A number of companies are marketing reformulated versions of previously approved GABA-receptor
agonists. For example, Meda AB and Orexo AB launched Edluar, formerly known as Sublinox, a
sublingual tablet formulation of zopidem in the third quarter of 2009. ECR Pharmaceuticals
Company, Inc., a wholly owned subsidiary of Hi-Tech Pharmacal Co., Inc., launched NovaDel Pharma,
Inc.s ZolpiMist, an oral mist formulation of zolpidem, in the United States in February 2011.
In addition to the currently approved products for the treatment of insomnia, a number of new
products may enter the insomnia market over the next several years. Transcept
Pharmaceuticals, Inc. submitted an NDA for Intermezzo, a low-dose sublingual tablet formulation of
zolpidem in 2008, and in October 2009, Transcept announced that
it received a complete response letter from the FDA relating to such
NDA. Transcept resubmitted its NDA for the product in January
2011. The FDA assigned a PDUFA action date of July 14, 2011 for completion of the NDA review.
Transcept and Purdue Pharmaceutical Products L.P. have entered into an exclusive license and
collaboration agreement to commercialize Intermezzo in the United States.
Alexza Pharmaceuticals, Inc. has announced positive results from a Phase 1 clinical trial of
an inhaled formulation of zaleplon, the active pharmaceutical ingredient in Sonata. In July 2010,
Alexza announced that it was advancing this product candidate into Phase 2 clinical trials during
the first half of 2011 for the treatment of insomnia in patients who have difficulty falling
asleep, including those patients who awake in the middle of the night and have difficulty falling
back asleep. Somnus Therapeutics, Inc. has announced positive results from two Phase 1 clinical
trials of a delayed-release formulation of zaleplon and has initiated Phase 2 clinical trials of
that product candidate.
Vanda Pharmaceuticals Inc. has completed two Phase 3 clinical trials of tasimelteon, a
melatonin receptor agonist. Tasimelteon received orphan drug designation status for non-24 hour
sleep/wake disorder in blind
individuals with no light perception. Vanda has initiated a Phase 3 clinical trial for
tasimelteon to treat this disorder. Vanda has announced that it plans to conduct additional
clinical trials and plans to file an NDA with the FDA by the first quarter of 2013.
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Merck & Co., Inc. has MK-4305, an orexin antagonist, in Phase 3 clinical trials for the
treatment of insomnia and MK-6096 in Phase 2 clinical trials for the treatment of insomnia. Merck
has announced that it plans to file regulatory applications for MK-4305 in 2012.
Several other companies, including Sunovion Pharmaceuticals, are evaluating 5HT2 antagonists
as potential hypnotics, and Eli Lilly and Company is evaluating a potential hypnotic that is a dual
histamine/5HT2 antagonist. Additionally, several other companies are evaluating new formulations of
existing compounds and other compounds for the treatment of insomnia.
Furthermore, generic versions of Ambien, Ambien CR and Sonata have been launched and are
priced significantly lower than approved, branded insomnia products. Sales of all of these drugs
may reduce the available market for, and could put downward pressure on, the price we are able to
charge for Silenor, which could ultimately limit our ability to generate significant revenues.
Upon the expiration of, or successful challenge to, our patents covering Silenor, generic
competitors may introduce a generic version of Silenor at a lower price. Some generic
manufacturers have also demonstrated a willingness to launch generic versions of branded products
before the final resolution of related patent litigation (known as an at-risk launch). A launch
of a generic version of Silenor could have a material adverse effect on our business and we could
suffer a significant loss of sales and market share in a short period of time.
On November 3, 2010, we received a notice from each of Actavis Elizabeth LLC and Mylan
Pharmaceuticals Inc. that each had filed with the FDA an ANDA for a generic version of Silenor 3 mg
and 6 mg tablets. Each of the notices included a paragraph IV certification with respect to seven
of the eight patents listed in the Orange Book for Silenor.
On December 15, 2010, we, together with ProCom, filed suit in the United States
District Court for the District of Delaware against each of Actavis and Mylan. The lawsuit alleges
that Actavis and Mylan have each infringed U.S. Patent No. 6,211,229 by filing their ANDAs relating
to Silenor prior to the expiration of this patent. Pursuant to the provisions of the
Hatch-Waxman Act, FDA final approval of each of the Actavis and Mylan ANDAs can occur no earlier
than May 3, 2013, unless there is an earlier court decision that the 229 patent is not infringed
and/or invalid or unless any party to the action is found to have failed to cooperate reasonably to
expedite the infringement action. At this time, other patents listed in the Orange Book for Silenor
have not been asserted against either Mylan or Actavis.
On December 23, 2010, we received a notice from Par Pharmaceuticals, Inc. that it had filed
with the FDA an ANDA for a generic version of Silenor 3 mg and 6 mg tablets. This notice included a
paragraph IV certification with respect to seven of the eight patents listed in the Orange Book for
Silenor.
On February 2, 2011, we, together with ProCom, filed suit in the United States District Court
for the District of Delaware against Par. The lawsuit alleges that Par has infringed U.S. Patent
No. 6,211,229 by filing its ANDA relating to Silenor prior to the expiration of this patent.
Pursuant to the provisions of the Hatch-Waxman Act, FDA final approval of the Par ANDA can occur no
earlier than June 23, 2013, unless there is an earlier court decision that the 229 patent is not
infringed and/or invalid or unless any party to the action is found to have failed to cooperate
reasonably to expedite the infringement action. At this time, other patents listed in the Orange
Book for Silenor have not been asserted against Par.
We intend to vigorously enforce our intellectual property rights relating to Silenor, but we
cannot predict the outcome of these matters. Any adverse outcome in this litigation could result
in one or more generic versions of Silenor being launched before the expiration of the listed
patents, which could adversely affect our ability to successfully execute our business strategy to
increase sales of Silenor and would negatively impact our financial condition and results of
operations, including causing a significant decrease in our revenues and cash flows.
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The biotechnology and pharmaceutical industries are subject to rapid and intense technological
change. We face, and will continue to face, competition in the development and marketing of Silenor
or any other product candidate to which we acquire rights from academic institutions, government
agencies, research institutions and biotechnology and pharmaceutical companies. There can be no
assurance that developments by others, including the development of other drug technologies and
methods of preventing the incidence of disease, will not render Silenor or any other product
candidate that we develop obsolete or noncompetitive.
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Compared to us, many of our potential competitors have substantially greater: |
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manufacturing, distribution and sales and marketing resources and experience; |
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research and development resources, including personnel and technology; |
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experience conducting non-clinical studies and clinical trials, and related
resources; and |
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expertise in prosecution of intellectual property rights. |
As a result of these factors, our competitors may develop drugs that are more effective and
less costly than ours and may be more successful than we are in manufacturing, marketing and
selling their products. Our competitors may also obtain patent protection or other intellectual
property rights or seek to invalidate or otherwise challenge our intellectual property rights,
limiting our ability to successfully commercialize products.
In addition, manufacturing efficiency and selling and marketing capabilities are likely to be
significant competitive factors. We currently have no commercial manufacturing capability and more
limited sales and marketing infrastructure than many of our competitors and potential competitors.
If the manufacturers upon whom we rely fail to produce our products in the volumes that we
require on a timely basis, or to comply with stringent regulations applicable to pharmaceutical
drug manufacturers, we may face delays in the development and commercialization of, or be unable
to meet demand for, our products and may lose potential revenues.
We do not manufacture Silenor, and we do not plan to develop any capacity to do so. We have a
contract with Patheon Pharmaceuticals Inc. to manufacture our future required clinical supplies, if
any, of Silenor, and we have entered into a manufacturing and supply agreement with Patheon to
manufacture our commercial supply of Silenor. We have also entered into agreements with Plantex
USA, Inc. to manufacture our supply of doxepin active pharmaceutical ingredient and with Anderson
Packaging, Inc. to package Silenor finished products, and we have another agreement in place for
the supply of a key ingredient contained in our formulation for Silenor.
The manufacture of pharmaceutical products requires significant expertise and capital
investment, including the development of advanced manufacturing techniques and process controls.
Manufacturers of pharmaceutical products often encounter difficulties in production, particularly
in scaling up and validating initial production. These problems include difficulties with
production costs and yields, quality control, including stability of the product and quality
assurance testing, shortages of qualified personnel, as well as compliance with strictly enforced
federal, state and foreign regulations. Our manufacturers may not perform as agreed or may
terminate their agreements with us. Additionally, our manufacturers may experience manufacturing
difficulties due to resource constraints or as a result of labor disputes or unstable political
environments. If our manufacturers were to encounter any of these difficulties, or otherwise fail
to comply with their contractual obligations, our ability to sell Silenor or any other product
candidate that we commercialize or provide any product candidates to patients in our clinical
trials would be jeopardized. Any delay or interruption in the supply of clinical trial supplies
could delay the completion of our clinical trials, increase the costs associated with maintaining
our clinical trial program and, depending upon the period of delay, require us to commence new
clinical trials at significant additional expense or terminate the clinical
trials completely. In addition, any delay or interruption in our ability to meet commercial
demand for Silenor will result in the loss of potential revenues.
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In addition, all manufacturers of pharmaceutical products must comply with current good
manufacturing practice, or cGMP, requirements enforced by the FDA through its facilities inspection
program. The FDA is also likely to conduct inspections of our manufacturers facilities as part of
their review of any marketing applications we submit. These cGMP requirements include quality
control, quality assurance and the maintenance of records and documentation. Manufacturers of our
products may be unable to comply with these cGMP requirements and with other FDA, state and foreign
regulatory requirements. A failure to comply with these requirements may result in fines and civil
penalties, suspension of production, suspension or delay in product approval, product seizure or
recall, or withdrawal of product approval. If the safety of any quantities supplied is compromised
due to our manufacturers failure to adhere to applicable laws or for other reasons, we may not be
able to obtain regulatory approval for or successfully commercialize our products.
Moreover, our manufacturers and suppliers may experience difficulties related to their overall
businesses and financial stability, which could result in delays or interruptions of our supply of
Silenor. We do not have alternate manufacturing plans in place at this time. If we need to change
to other manufacturers, the FDA and comparable foreign regulators must approve these manufacturers
facilities and processes prior to our use, which would require new testing and compliance
inspections, and the new manufacturers would have to be educated in or independently develop the
processes necessary for production.
Any of these factors could adversely affect the commercial activities for Silenor or suspend
clinical trials, regulatory submissions, and required approvals for any other product candidate
that we develop, or entail higher costs or result in our being unable to effectively commercialize
our products. Furthermore, if our manufacturers failed to deliver the required commercial
quantities of raw materials, including bulk drug substance, or finished product on a timely basis
and at commercially reasonable prices, we would likely be unable to meet demand for our products
and we would lose potential revenues.
Our failure to successfully acquire, develop and market additional product candidates or
approved products and integrate them into our operations may impair our ability to grow.
As part of our growth strategy, we intend to selectively evaluate products and product
candidates that we believe may be a strategic fit with our business. Because we neither have, nor
currently intend to establish, internal research capabilities, we would be dependent upon
pharmaceutical and biotechnology companies, university scientists and other researchers to sell or
license products to us. The success of this strategy will depend upon our ability to identify,
select and acquire promising pharmaceutical product candidates and
products. However, future
acquisitions may entail numerous operational and financial risks, including:
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exposure to unknown liabilities; |
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disruption of our business and diversion of our managements time and attention
to develop acquired products or technologies; |
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incurrence of substantial debt or dilutive issuances of securities to pay for
acquisitions; |
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higher than expected acquisition and integration costs; |
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increased amortization expenses; |
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difficulty and cost in combining the operations and personnel of any acquired
businesses with our operations and personnel; |
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impairment of relationships with key suppliers or customers of any acquired
businesses due to changes in management and ownership; and |
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inability to retain key employees of any acquired businesses. |
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We have limited resources to identify and execute the evaluation, acquisition or in-licensing
of third-party products, businesses and technologies and integrate them into our current
infrastructure. In particular, we may compete with larger pharmaceutical companies and other
competitors in our efforts to establish new collaborations and in-licensing opportunities. These
competitors likely will have access to greater financial resources than us and may have greater
expertise in identifying and evaluating new opportunities. Moreover, we may devote resources to
potential acquisitions or in-licensing opportunities that are never completed, or we may fail to
realize the anticipated benefits of such efforts.
Further, any product candidate that we acquire may require additional development efforts
prior to commercial sale, including extensive clinical testing and approval by the FDA and
applicable foreign regulatory authorities. All product candidates are prone to risks of failure
typical of pharmaceutical product development, including the possibility that a product candidate
will not be shown to be sufficiently safe and effective for approval by regulatory authorities. In
addition, we cannot assure you that any products that we develop or approved products that we
acquire will be manufactured or produced profitably, successfully commercialized or widely accepted
in the marketplace.
If we are sued for infringing intellectual property rights of third parties, it will be costly
and time consuming, and an unfavorable outcome in that litigation would have a material adverse
effect on our business.
Our commercial success depends upon our ability, together with our collaborators, to
manufacture, market and sell Silenor or any other product candidates that we develop and use our
proprietary technologies without infringing the proprietary rights of third parties. Numerous U.S.
and foreign issued patents and pending patent applications, which are owned by third parties, exist
in the fields in which we and our collaborators are operating. As the biotechnology and
pharmaceutical industry expands and more patents are issued, the risk increases that our operations
may give rise to claims that our products infringe the patent rights of others. Because patent
applications can take many years to issue, there may be currently pending applications, unknown to
us, which may later result in issued patents that our products or proprietary technologies may
infringe.
We may be exposed to, or threatened with, future litigation by third parties having patent or
other intellectual property rights alleging that our products and/or proprietary technologies
infringe their intellectual property rights. If our products, proprietary technologies or their
uses infringe any of these intellectual property rights, we or our collaborators could be required
to pay damages and could be unable to commercialize our products or use our proprietary
technologies unless we or they obtained a license. A license may not be available to us or our
collaborators on acceptable terms, or at all. In addition, during litigation, the intellectual
property rights holder could obtain a preliminary injunction or other equitable right which could
prohibit us from making, using or selling our products, technologies or methods.
There is a substantial amount of litigation involving patent and other intellectual property
rights in the biotechnology and pharmaceutical industries generally. If a third party claims that
we or our collaborators infringe its intellectual property rights, we may face a number of issues,
including, but not limited to:
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infringement and other intellectual property claims which, with or without merit,
may be expensive and time-consuming to litigate and may divert our managements
attention from our core business; |
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substantial damages for infringement, including treble damages and attorneys
fees, which we may have to pay if a court decides that the product at issue infringes on
or violates the third partys rights; |
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a court prohibiting us from selling or licensing the product unless the third
party licenses its product rights to us, which it is not required to do; |
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if a license is available from the third party, we may have to pay substantial
royalties, fees and/or grant cross-licenses to our products; and |
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redesigning our products or processes so they do not infringe, which may not be
possible or may require substantial funds and time. |
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No assurance can be given that patents do not exist, have not been filed, or could not be
filed or issued, which contain claims covering our products, technology or methods. Because of the
substantial number of patents issued and patent applications filed in our field, we believe there
is a risk that third parties may allege they have patent rights encompassing our products,
technology or methods.
We depend on a limited number of wholesaler customers for the retail distribution of Silenor,
and if we lose significant wholesaler customers, our business could be harmed.
Our customers for our Silenor product include some of the nations leading wholesale
pharmaceutical distributors, such as Cardinal Health, Inc., McKesson Corporation and
AmerisourceBergen Corporation, and major drug chains. The loss of any of these companies as a
wholesaler customer or a material reduction in their purchases or in the prices they are willing to
pay for our products could harm our business, financial condition and results of operations.
Materials necessary to manufacture Silenor or any other product candidate that we develop or
commercialize may not be available on commercially reasonable terms, or at all, which may delay
development and commercialization.
Although we have contracted with suppliers of doxepin and other key raw materials for Silenor,
we largely rely on our manufacturers to purchase from third-party suppliers the other materials
necessary to produce our product candidates. Suppliers may not sell these materials to our
manufacturers at the time we need them or on commercially reasonable terms. We do not have any
control over the process or timing of the acquisition of these materials by our manufacturers. If
our manufacturers or we are unable to purchase these materials for Silenor or any other product
candidate that we commercialize, there would be a
shortage in supply, which would materially affect our ability to generate sales revenues. If our
manufacturers are unable to obtain these materials for our non-clinical studies or clinical trials
of any other product candidate that we develop, product testing and potential regulatory approval
could be delayed or suspended, significantly impacting our development programs.
Silenor or any other product candidate that we develop may cause undesirable side effects or
have other properties that could delay or prevent their regulatory approval or
commercialization.
Undesirable side effects caused by Silenor or any other product candidate that we develop
could interrupt, delay or halt clinical trials, result in the denial or suspension of regulatory
approval by the FDA or other regulatory authorities for any or all targeted indications, or cause
us to evaluate the future of our development programs. Any of these occurrences could delay or
prevent us from continuing to sell Silenor or from commercializing any product candidate that we
develop. In addition, the FDA may require, or we may undertake, additional clinical trials to
support the safety profile of Silenor or any proposed changes to the labeling for Silenor.
Silenor will be subject to continual review by the FDA, and we cannot assure you that newly
discovered or developed safety issues will not arise. With the use of any marketed drug by a wide
patient population, serious adverse events may occur from time to time that initially do not appear
to relate to the drug itself, and only if the specific event occurs with some regularity over a
period of time does the drug become suspect as having a causal relationship to the adverse event.
Any safety issues could cause us to suspend or cease marketing of our approved products, cause us
to modify how we market our approved products, subject us to substantial liabilities, and adversely
affect our revenues and financial condition.
In addition, if we or others identify undesirable side effects caused by Silenor or any other
product candidate that we commercialize:
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regulatory authorities may require the addition of labeling statements, such as a
black box warning or a contraindication; |
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regulatory authorities may withdraw their approval of the product or place
restrictions on the way it is prescribed;
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we may be required to change the way the product is administered, conduct
additional clinical trials, change the labeling of the product or implement a new or amended REMS; |
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we may be subject to related liability; and |
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our reputation may suffer. |
Any of these events could prevent us from achieving or maintaining market acceptance of the
affected product or could substantially increase the costs and expenses of commercializing the
affected product, which in turn could delay or prevent us from generating significant revenues from
its sale.
We may never receive approval or commercialize our products outside of the United States.
In order to market any products outside of the United States, we must establish and comply
with numerous and varying regulatory requirements of other countries regarding safety and efficacy.
Approval procedures vary among countries and can involve additional product testing and additional
administrative review periods. The time required to obtain approval in other countries might differ
from that required to obtain FDA approval. The regulatory approval process in other countries may
include all of the risks regarding FDA approval in the United States as well as other risks.
Regulatory approval in one country does not ensure regulatory approval in another, but a failure or
delay in obtaining regulatory approval in one country may have a negative effect on the regulatory
process in others. Failure to obtain regulatory approval in other countries or any delay or setback
in obtaining such approval could limit the uses of the product candidate and have an adverse effect
on potential royalties and product sales. Such approval may be subject to limitations on the
indicated uses for which the product may be marketed or require costly, post-marketing follow-up
studies.
We have licensed Silenor from a third party. If we default on any of our obligations under that
license, or if the licensor exercises a right to terminate the license, we could lose rights to
Silenor.
We in-licensed rights to Silenor through an exclusive licensing arrangement, and we may enter
into similar licenses in the future. Under our license agreement for Silenor, we are required to
use commercially reasonable efforts to commercialize Silenor. In addition, our licensor for Silenor
has the contractual right to terminate the license agreement upon the breach by or a specified
insolvency event involving us. In the event that our licensor for Silenor terminates the license
agreement, even though we would maintain ownership of our clinical data and the other intellectual
property we have developed relating to Silenor, we would be unable to continue our
commercialization activities relating to Silenor and our business and financial condition would be
materially harmed.
We will need to increase the size of our organization, and we may experience difficulties in
managing growth.
We have increased our headcount from 5 full-time employees at January 1, 2010 to 40 full-time
employees as of February 15, 2011. Our management and personnel, systems and facilities currently
in place may not be adequate to support the growth required to support our commercialization
efforts. Our need to effectively manage our operations, growth and various projects requires that
we:
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manage our commercial efforts effectively while carrying out our contractual
obligations to collaborators and other third parties and complying with all applicable
laws, rules and regulations; |
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continue to improve our operational, financial and management controls, reporting
systems and procedures; and |
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attract, train and retain sufficient numbers of talented employees. |
We may be unable to successfully implement these tasks on a larger scale and, accordingly, may
not achieve our commercial goals.
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We face potential product liability exposure, and, if successful claims are brought against us,
we may incur substantial liability for a product and may have to limit its commercialization.
The sale of approved products and the use of product candidates by us in clinical trials
expose us to the risk of product liability claims. Product liability claims might be brought
against us by consumers, health care providers, pharmaceutical companies or others selling our
products. If we cannot successfully defend ourselves against these claims, we will incur
substantial liabilities. Regardless of merit or eventual outcome, liability claims may result in:
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decreased demand for our products; |
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impairment of our business reputation; |
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withdrawal of clinical trial participants; |
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costs of related litigation; |
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substantial monetary awards to patients or other claimants; |
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the inability or lack of commercial rationale to continue development or
commercial activities relating to Silenor or any other product candidate we develop. |
We have obtained product liability insurance coverage for commercial product sales of Silenor,
including coverage for product liability claims, but our insurance coverage may not reimburse us at
all or may not be sufficient to reimburse us for any expenses or losses we may suffer. Moreover,
insurance coverage is becoming increasingly expensive, and, in the future, we may not be able to
maintain insurance coverage at a reasonable cost or in sufficient amounts to protect us against
losses due to liability. On occasion, large judgments have been awarded in class action lawsuits
based on drugs that had unanticipated side effects. A successful product liability claim or series
of claims brought against us could cause our stock price to fall and, if judgments exceed our
insurance coverage, could decrease our cash and adversely affect our business.
We may not be able to manage our business effectively if we are unable to attract and retain
key personnel.
We may not be able to attract or retain qualified management, scientific, clinical and
commercial personnel in the future due to the intense competition for qualified personnel among
biotechnology, pharmaceutical and other businesses, particularly in the San Diego, California area.
If we are not able to attract and retain necessary personnel to accomplish our business objectives,
we may experience constraints that will significantly impede the achievement of our development or
commercialization objectives, our ability to raise additional capital and our ability to implement
our business strategy. In particular, if we lose any members of our senior management team, we may
not be able to find suitable replacements, and our business may be harmed as a result.
We are highly dependent on the product acquisition, development, regulatory and
commercialization expertise of our senior management. If we lose one or more of the members of our
senior management team or other key employees, our ability to implement our business strategy
successfully could be seriously harmed. Replacing key employees may be difficult and may take an
extended period of time because of the limited number of individuals in our industry with the
breadth of skills and experience required to develop, gain regulatory approval of and commercialize
products successfully. Competition to hire from this limited pool is intense, and we may be unable
to hire, train, retain or motivate these additional key personnel.
In addition, we have advisors who assist us in formulating our product development, clinical,
regulatory and commercialization strategies. These advisors are not our employees and may have
commitments to, or consulting or advisory contracts with, other entities that may limit their
availability to us, or may have arrangements with other companies to assist in the development or
commercialization of products that may compete with ours.
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Our clinical trials may fail to demonstrate the safety and efficacy of our product candidates,
which could prevent or significantly delay their regulatory approval.
Even though Silenor has received regulatory approval, before obtaining regulatory approvals
for the commercial sale of any other product candidate we develop, we must demonstrate through
clinical trials that the product candidate is safe and effective for use in each target indication.
The results from clinical trials that we complete may not be predictive of results obtained in
future clinical trials, and there can be no assurance that we will demonstrate sufficient safety
and efficacy to obtain the requisite regulatory approvals or result in marketable products. A
number of companies in the biotechnology and pharmaceutical industries have suffered significant
setbacks in advanced clinical trials, even after promising results in earlier studies. If any
product candidate that we develop is not shown to be safe and effective in clinical trials, or if
the FDA does not deem the product candidate to be sufficiently safe and effective to warrant
marketing approval, our business, financial condition and results of operations would be materially
harmed.
We may be subject to claims that we or our employees have wrongfully used or disclosed alleged
trade secrets of their former employers.
As is commonplace in our industry, we employ individuals who were previously employed at other
biotechnology, specialty pharma or pharmaceutical companies, including our competitors or potential
competitors. Although no claims against us are currently pending, we may be subject to claims that
these employees or we have inadvertently or otherwise used or disclosed trade secrets or other
proprietary information of their former employers. Litigation may be necessary to defend against
these claims. Even if we are successful in defending against these claims, litigation could result
in substantial costs and be a distraction to management.
Risks Related to Our Finances and Capital Requirements
Capital raising activities, such as issuing securities, incurring debt, assigning receivables or
royalty rights or entering into collaborations or other strategic transactions, may cause
dilution to existing stockholders or a reduction in our stock price, restrict our operations or
require us to relinquish proprietary rights and may be limited by applicable laws and
regulations.
Based on our recurring losses, negative cash flows from operations and working capital levels,
we may need to raise substantial additional funds. If we are unable to maintain sufficient
financial resources, including by raising additional funds when needed, our business, financial
condition and results of operations will be materially and adversely affected.
Because we may need to raise additional capital to fund our business, among other things, we
may conduct substantial equity offerings. For example, in November 2010, we completed a public
offering of 8,800,000 shares of our common stock for aggregate net proceeds of approximately $24.8
million, and in March 2010, we completed a public offering of 6,900,000 shares of our common stock
for aggregate net proceeds of approximately $52.7 million. In July 2009, we completed a private
placement of 5.1 million shares of our common stock at a price of $1.05 per share and seven-year
warrants to purchase up to 5.1 million additional shares of our common stock, exercisable in cash
or by net exercise at a price of $1.155 per share, for aggregate net proceeds of $5.7 million. We
also have two effective shelf registration statements on Form S-3 filed with the SEC under which we
may offer from time to time up to an aggregate of approximately $67.1 million in any combination of
debt securities, common and preferred stock and warrants.
To the extent that we raise any required additional capital by issuing equity securities, our
existing stockholders ownership will be diluted. Any such dilution of the holdings of our current
stockholders may result in downward pressure on the price of our common stock.
Any debt, receivables or royalty financing we enter into may involve covenants that restrict
our operations. These restrictive covenants may include limitations on additional borrowing and
specific restrictions on the use of our assets as well as prohibitions on our ability to create
liens, pay dividends, redeem our stock or make investments. For example, our ability to borrow
under our loan agreement with Comerica depends upon a number of conditions and restrictions, and we
cannot be certain that we will satisfy all borrowing conditions at a time when we desire to borrow
such amounts under the loan agreement. Our ability to borrow under our Comerica loan agreement at
any given time is subject to the representations and warranties we made to Comerica under such loan
agreement being generally true and correct at such time. Furthermore, we are subject to a
number of affirmative and negative covenants, each of which we must be in compliance with at the
time of any proposed borrowing.
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Debt financing, receivables assignments, royalty interest assignments and other types of
financing are often coupled with an equity component, such as warrants to purchase stock. For
example, in connection with our July 2009 private placement of equity securities, we issued to the
investors warrants to purchase 5.1 million shares of our common stock, 2.3 million of which have
not been exercised as of December 31, 2010. To the extent that any of these warrants, or any
additional warrants that are outstanding or that we issue in the future, are exercised by their
holders, dilution of our existing stockholders ownership interests will result.
If we raise additional funds through collaborations or other strategic transactions, it may be
necessary to relinquish potentially valuable rights to our potential products or proprietary
technologies, or grant licenses on terms that are not favorable to us.
In addition, rules and regulations of the SEC or other regulatory agencies may restrict our
ability to conduct certain types of financing activities, or may affect the timing of and the
amounts we can raise by undertaking such activities. For example, under current SEC regulations, if
the aggregate market value of our common stock held by non-affiliates, or our public float, is less
than $75 million, the amount that we can raise through primary public offerings of securities in
any twelve-month period using one or more registration statements on Form S-3 may be limited to an
aggregate of one-third of our public float. As of December 31, 2010, our public float was greater
than $75 million.
Any future indebtedness under our loan agreement with Comerica could adversely affect our
financial health.
Under our loan agreement with Comerica, we may incur up to $15 million of indebtedness. Such
indebtedness could have important consequences. For example, it could:
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impair our ability to obtain additional financing in the future for working capital needs,
capital expenditures and general corporate purposes; |
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increase our vulnerability to general adverse economic and industry conditions; |
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make it more difficult for us to satisfy other debt obligations we may incur in the future; |
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require us to dedicate a substantial portion of our cash flows from operations to the
payment of principal and interest on our indebtedness, thereby reducing the availability
of our cash flows to fund working capital needs, capital expenditures and other general
corporate purposes; |
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limit our flexibility in planning for, or reacting to, changes in our business and the
industry in which we operate; |
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place us at a disadvantage compared to our competitors that have less indebtedness; and |
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expose us to higher interest expense in the event of increases in interest rates because
our indebtedness under the loan agreement with Comerica may bear interest at a variable
rate. |
Covenants in our loan agreement with Comerica may limit our ability to operate our business.
Under our loan agreement with Comerica, we are subject to specified affirmative and negative
covenants, including limitations on our ability: to undergo certain change of control events; to
convey, sell, lease, license, transfer or otherwise dispose of assets, other than in certain
specified circumstances; to create, incur, assume, guarantee or be liable with respect to certain
indebtedness; to grant liens; to pay dividends and make certain other restricted payments; and to
make certain investments. In addition, under the loan agreement we are required to maintain a
balance of cash with Comerica in an amount of not less than $5.0 million and to maintain 50% of any
other cash balances with Comerica, and any other cash and investments must be covered by a control
agreement for the benefit of Comerica. We are also subject to specified financial covenants with
respect to a minimum liquidity
ratio and, once we have two consecutive quarters of profitability, minimum EBITDA requirements, as
defined in the loan agreement.
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Although we believe we were in compliance with all of our non-financial and financial
covenants as of entering into the loan agreement, our future ability to comply with these covenants
may be affected by events beyond our control, including prevailing economic, financial, and
industry conditions. If we default under the loan agreement because of a covenant breach or
otherwise, any outstanding amounts could become immediately due and payable, which would negatively
impact our liquidity and reduce the availability of our cash flows to fund working capital needs,
capital expenditures and other general corporate purposes.
We have never been profitable and we may not be able to generate revenues sufficient to achieve
profitability.
We only began generating revenues from the commercialization of Silenor late in the third
quarter of 2010, we have not been profitable since inception, and it is possible that we will not
achieve profitability. We incurred net losses of $38.8 million for the year ended December 31,
2010, and have accumulated losses totaling $216.9 million since inception. We expect to continue
to incur significant operating losses and capital expenditures. As a result, we will need to
generate significant revenues to achieve and maintain profitability. We cannot assure you that we
will achieve significant revenues, or that we will ever achieve profitability. Even if we do
achieve profitability, we cannot assure you that we will be able to sustain or increase
profitability on a quarterly or annual basis in the future. If revenues grow more slowly than we
anticipate or if operating expenses exceed our expectations or cannot be adjusted accordingly, our
business, results of operations and financial condition will be materially and adversely affected.
Our quarterly operating results may fluctuate significantly.
We expect our operating results to be subject to quarterly fluctuations. The revenues we
generate, if any, and our operating results will be affected by numerous factors, including:
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the scope and effectiveness of commercial activities relating to Silenor or any
other product that we may commercialize, alone or with a collaborator; |
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commercial activities of our competitors; |
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our entering into collaborations; |
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developments in our current intellectual property lawsuits with Actavis, Mylan
and Par; |
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any other intellectual property infringement lawsuit in which we may become
involved; |
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our addition or termination of development programs or funding support; |
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variations in the level of expenses related to development of any product
candidate that we develop; |
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non-cash charges which we incur, including relating to share-based compensation;
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regulatory developments. |
If our quarterly operating results fall below the expectations of investors or securities
analysts, the price of our common stock could decline substantially. Furthermore, any quarterly
fluctuations in our operating results may, in turn, cause the price of our stock to fluctuate
substantially. We believe that quarterly comparisons of our financial results are not necessarily
meaningful and should not be relied upon as an indication of our future performance.
The use of our net operating loss and tax credit carryforwards may be limited.
Net operating loss carryforwards and research and development credits may expire and not be
used. As of December 31, 2010, we had generated federal net operating loss carryforwards of
approximately $181.8 million and state net operating loss carryforwards of approximately $176.6
million, the majority of which were generated in
California. As of December 31, 2010, we had generated federal research and development tax
credits of $4.3 million and California research and development tax credits of $2.0 million. Both
federal net operating loss carryforwards and federal research and development tax credits have a
20-year carryforward period and begin to expire in 2023 and 2024, respectively. California net
operating loss carryforwards have a ten year carryforward period and begin to expire in 2013;
however, California has currently suspended the use of net operating loss carryforwards to offset
taxable income. California research and development tax credits have no expiration.
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Pursuant to Sections 382 and 383 of the Internal Revenue Code, annual use of our net operating
loss and credit carryforwards will be limited in the event a cumulative change in ownership of more
than 50 percent occurs within a three-year period. We determined that such an ownership change
occurred as of March 31, 2010 as a result of various stock issuances used to finance our
development activities. This ownership change resulted in limitations on the utilization of our tax
attributes, including our net operating loss carryforwards and tax credits. A portion of the
remaining net operating losses limited by Section 382 becomes available for use each year.
If additional changes in ownership occur as a result of future financing events, then
additional net operating loss carryforwards and research and development credit carryovers could be
eliminated or restricted.
Negative conditions in the global credit markets may have an impact on the value of our
investment securities.
Our investment securities consist primarily of money market funds and corporate and United
States government agency notes. We do not have any auction rate securities. In recent years there
has been concern in the credit markets regarding the value of a variety of mortgage-backed
securities and the resultant effects on various securities markets. While we do not believe that
our investment securities have significant risk of default or illiquidity, we cannot provide
absolute assurance that our investments are not subject to adverse changes in market value. If the
credit ratings of the security issuers deteriorate and any decline in market value is determined to
be other-than-temporary, we would be required to adjust the carrying value of the investments
through impairment charges.
Risks Relating to Securities Markets and Investment in Our Stock
There may not be a viable public market for our common stock, and market volatility may affect
our stock price and the value of your investment.
Our common stock had not been publicly traded prior to our initial public offering, which was
completed in December 2005, and an active trading market may not develop or be sustained. We have
never declared or paid any cash dividends on our capital stock. We currently intend to retain all
available funds and any future earnings to support operations and finance the growth and
development of our business. We do not intend to pay cash dividends on our common stock for the
foreseeable future. Therefore, investors will have to rely on appreciation in our stock price and a
liquid trading market in order to achieve a gain on their investment. The market prices for
securities of biotechnology and pharmaceutical companies have historically been highly volatile,
and the market has from time to time experienced significant price and volume fluctuations that are
unrelated to the operating performance of particular companies. Since our initial public offering
on December 15, 2005 through December 31, 2010, the trading prices for our common stock have ranged
from a high of $21.24 to a low of $0.18.
The market price of our common stock may fluctuate significantly in response to a number of
factors, most of which we cannot control, including:
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variations in our quarterly operating results; |
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events affecting our existing in-license agreements, our co-promotion agreement
with P&G, our contract sales agreement with Publicis, and any future collaborations or
other strategic transactions, commercial agreements and grants; |
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announcements of new products or technologies, commercial relationships or other
events by us or our competitors; |
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developments in our current intellectual property lawsuits with Actavis, Mylan
and Par;
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any other intellectual property infringement lawsuit in which we may become
involved; |
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regulatory approval or other changes in the regulatory status of our products or
product candidates; |
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decreased coverage and changes in securities analysts estimates of our financial
performance; |
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regulatory developments in the United States and foreign countries; |
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fluctuations in stock market prices and trading volumes of similar companies; |
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sales of large blocks of our common stock, including sales by our executive
officers, directors and significant stockholders; |
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announcements concerning financing activities; |
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additions or departures of key personnel; and |
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discussion of us or our stock price by the financial and scientific press and in
online investor communities. |
The realization of any of the risks described in these Risk Factors could have a dramatic and
material adverse impact on the market price of our common stock. In addition, class action
litigation has often been instituted against companies whose securities have experienced periods of
volatility or declines in market price. Any such litigation brought against us could result in
substantial costs and a diversion of managements attention and resources, which could hurt our
business, operating results and financial condition.
If we
are unable to comply with the minimum requirements for listing on the Nasdaq Capital
Market, we may be delisted from the Nasdaq Capital Market, which would likely cause the
liquidity and market price of our common stock to decline.
Our stock is listed on the Nasdaq Capital Market. In order to continue to be listed on the
Nasdaq Capital Market, we must meet specific quantitative standards, including maintaining a
minimum bid price of $1.00 for our common stock, a public float of $1.0 million, and either $2.5
million in stockholders equity or a market capitalization of $35 million. We are currently in
compliance with these standards, but it is possible that we may fail to be in compliance in the
future.
If the Nasdaq Stock Market provides us with a notice of non-compliance, we may provide a plan
to achieve and sustain compliance with continued listing requirements. If we submit the plan and it
is accepted by Nasdaq, Nasdaq may grant us a period of up to 105 days from the date of the notice
of non-compliance within which to regain compliance with the listing requirements. If Nasdaq
determines that our plan is not sufficient to achieve and sustain compliance, or if we are unable
to achieve compliance within such period, Nasdaq will provide written notice that our securities
will be delisted. At such time, we may appeal the decision to a Nasdaq Listing Qualifications
Panel. If that appeal is unsuccessful, our securities would be delisted.
If we were to be delisted from the Nasdaq Capital Market, trading, if any, in our shares may
continue to be conducted on the Over-the-Counter Bulletin Board or in a non-Nasdaq over-the-counter
market, such as the pink sheets. Delisting of our shares would result in limited release of the
market price of those shares and limited analyst coverage and could restrict investors interest in
our securities. Also, a delisting could have a material adverse effect on the trading market and
prices for our shares and our ability to issue additional securities or to secure additional
financing. In addition, if our shares were not listed and the trading price of our shares was less
than $5.00 per share, our shares could be subject to Rule 15g-9 under the Exchange Act which, among
other things, requires that broker/dealers satisfy special sales practice requirements, including
making individualized written suitability determinations and receiving a purchasers written
consent prior to any transaction. In such case, our securities could also be deemed to be a penny
stock under the Securities Enforcement and Penny Stock Reform Act of 1990, which would require
additional disclosure in connection with trades in those shares, including the delivery of a
disclosure schedule explaining the nature and risks of the penny stock market. Such requirements
could severely limit the liquidity of our securities and our ability to raise additional capital in
an already challenging capital market.
40
If our executive officers, directors and largest stockholders choose to act together, they may
be able to control our operations and act in a manner that advances their best interests and not
necessarily those of other stockholders.
As of February 15, 2011, our executive officers, directors and holders of 5% or more of our
outstanding common stock beneficially owned approximately 50.8% of our common stock. As a result,
these stockholders, acting together, would likely be able to control all matters requiring approval
by our stockholders, including the election of directors and the approval of mergers or other
business combination transactions. The interests of this group of stockholders may not always
coincide with our interests or the interests of other stockholders, and they may act in a manner
that advances their best interests and not necessarily those of other stockholders.
If we are unable to maintain an effective registration statement for the resale of shares under
our July 2009 private placement, or if we are delisted from the Nasdaq Capital Market, Nasdaq
Global Market, the New York Stock Exchange or the American Stock Exchange, we may be required to
pay liquidated damages.
In July 2009, we issued 5.1 million shares of common stock at $1.05 per share and seven-year
warrants to purchase up to 5.1 million additional shares of common stock, exercisable in cash or by
net exercise at a price of $1.155 per share, for aggregate gross proceeds of $6.0 million and net
proceeds of $5.7 million after deducting offering costs of $0.3 million. In connection with the
private placement, we agreed to register for resale both the shares of common stock purchased by
the investors and the shares of common stock issuable upon exercise of the warrants. The resale
registration statement was filed and declared effective by the SEC in August 2009. We also agreed
to other customary obligations regarding registration, including matters relating to
indemnification, maintenance of the registration statement and payment of expenses.
We may be liable for liquidated damages if we do not maintain the effectiveness of the
registration statement or the listing of our common stock on the Nasdaq Capital Market, the Nasdaq
Global Market, the New York Stock Exchange or the American Stock Exchange, in each case for a
period of ten consecutive days or for more than thirty days in any 365-day period. The amount of
the liquidated damages is one percent per applicable ten or thirty day period, subject to an
aggregate maximum of eight percent per calendar year, of the aggregate purchase price of the common
stock purchased in the private placement then held by each investor that are registrable
securities.
Anti-takeover provisions in our charter documents and under Delaware law could make an
acquisition of us, which may be beneficial to our stockholders, more difficult and may prevent
attempts by our stockholders to replace or remove our current management.
Provisions in our amended and restated certificate of incorporation and amended and restated
bylaws may delay or prevent an acquisition of us or a change in our management. These provisions
include a classified board of directors, a prohibition on actions by written consent of our
stockholders, and the ability of our board of directors to issue preferred stock without
stockholder approval. In addition, because we are incorporated in Delaware, we are governed by the
provisions of Section 203 of the Delaware General Corporation Law, which prohibits stockholders
owning in excess of 15 percent of our outstanding voting stock from merging or combining with us.
Although we believe these provisions collectively provide for an opportunity to receive higher bids
by requiring potential acquirors to negotiate with our board of directors, they would apply even if
an offer may be considered beneficial by some stockholders. In addition, these provisions may
frustrate or prevent any attempts by our stockholders to replace or remove our current management
by making it more difficult for stockholders to replace members of our board of directors, which is
responsible for appointing the members of our management.
We expend substantial costs and management resources as a result of laws and regulations
relating to corporate governance matters.
As a public reporting company, we must comply with the Sarbanes-Oxley Act of 2002 and the
related rules and regulations adopted by the SEC and by the Nasdaq Stock Market, including expanded
disclosures, accelerated reporting requirements and more complex accounting rules. Compliance with
Section 404 of the Sarbanes-Oxley Act of 2002, or Section 404, and other requirements has caused us
to expend substantial costs and management resources and will continue to do so. Additionally,
these laws and regulations could make it more difficult or more costly for us to obtain certain
types of insurance, including director and officer liability insurance, and we may be
forced to accept reduced policy limits and coverage or incur substantially higher costs to
obtain the same or similar coverage. The impact of these events could also make it more difficult
for us to attract and retain qualified persons to serve on our board of directors or board
committees or as executive officers. In June 2007, the Public Company Accounting Oversight Board
approved Auditing Standard No. 5, and at the same time, the SEC issued guidance for management for
complying with the requirements of Section 404. This auditing standard and the related management
guidance provides a more risk-based approach to compliance and testing under Section 404. However,
we still do and expect to continue to incur substantial costs and to devote significant resources
to corporate governance matters.
41
We are also subject to changing rules and regulations of federal and state government as well
as the stock exchange on which our common stock is listed. These entities, including the Public
Company Accounting Oversight Board, the SEC and the Nasdaq Stock Market, have issued a significant
number of new and increasingly complex requirements and regulations over the course of the last
several years and continue to develop additional regulations and requirements in response to laws
enacted by Congress. On July 21, 2010, the Dodd-Frank Wall Street Reform and Protection Act, or the
Dodd-Frank Act, was enacted. There are significant corporate governance and executive
compensation-related provisions in the Dodd-Frank Act that require the SEC to adopt additional
rules and regulations in these areas such as say on pay and proxy access, and the SEC has since
issued final rules implementing say on pay measures. Our efforts to comply with corporate
governance and related requirements have resulted in, and are likely to continue to result in, an
increase in expenses and a diversion of managements time from other business activities.
If we, or the third-party service providers on which we rely, fail to comply with Section 404
and the other corporate governance laws and regulations applicable to us, or if our independent
registered public accounting firm cannot complete any required attestation of our evaluation of our
internal controls in a timely manner, we could be subject to regulatory scrutiny and a loss of
public confidence in our corporate governance or internal controls, which could have an adverse
effect on our business and our stock price.
|
|
|
Item 1B. |
|
Unresolved Staff Comments |
We do not have any unresolved staff comments relating to our periodic or current reports.
We lease approximately 6,000 square feet of space for our headquarters in San Diego,
California subject to a lease arrangement that will expire in May 2011. We have no
laboratory, research or manufacturing facilities.
|
|
|
Item 3. |
|
Legal Proceedings |
On December 15, 2010, we, together with ProCom, filed suit in the United States
District Court for the District of Delaware against each of Actavis and Mylan. The lawsuit alleges
that Actavis and Mylan have each infringed U.S. Patent No. 6,211,229 by filing their ANDAs relating
to Silenor prior to the expiration of this patent.
On February 2, 2011, we, together with ProCom, filed suit in the United States District
Court for the District of Delaware against Par. The lawsuit alleges that Par has infringed U.S.
Patent No. 6,211,229 by filing its ANDA relating to Silenor prior to the expiration of this patent.
Pursuant to the provisions of the Hatch-Waxman Act, FDA final approval of each of the Actavis
and Mylan ANDAs can occur no earlier than May 3, 2013, and FDA final approval of the Par ANDA can
occur no earlier than June 23, 2013, unless in either case there is an earlier court decision that
the 229 patent is not infringed and/or invalid or unless any party to the action is found to have
failed to cooperate reasonably to expedite the infringement action. At this time, other patents
listed in the Orange Book for Silenor have not been asserted against Mylan, Actavis or Par.
42
PART II
|
|
|
Item 5. |
|
Market for Registrants Common Equity, Related Stockholder Matters and Issuer Purchases of
Equity Securities |
Market Information
Our common stock has been traded on the Nasdaq Stock Market since December 15, 2005 under the
symbol SOMX. Prior to such time, there was no public market for our common stock. The following
table sets forth the high and low sales prices per share of our common stock as reported on the
Nasdaq Stock Market for the period indicated.
|
|
|
|
|
|
|
|
|
|
|
Price Range |
|
|
|
High |
|
|
Low |
|
Year Ended December 31, 2009 |
|
|
|
|
|
|
|
|
First Quarter |
|
$ |
2.50 |
|
|
$ |
0.18 |
|
Second Quarter |
|
$ |
1.65 |
|
|
$ |
0.32 |
|
Third Quarter |
|
$ |
4.78 |
|
|
$ |
0.70 |
|
Fourth Quarter |
|
$ |
4.80 |
|
|
$ |
0.90 |
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, 2010 |
|
|
|
|
|
|
|
|
First Quarter |
|
$ |
10.60 |
|
|
$ |
1.10 |
|
Second Quarter |
|
$ |
9.10 |
|
|
$ |
3.41 |
|
Third Quarter |
|
$ |
5.48 |
|
|
$ |
2.65 |
|
Fourth Quarter |
|
$ |
3.98 |
|
|
$ |
2.52 |
|
As
of February 25, 2011, there were approximately 11,247 holders of record of our common stock.
Performance Graph
The following graph illustrates a comparison of the total cumulative stockholder return on our
common stock to two indices: the Nasdaq Composite Index and the Nasdaq Pharmaceuticals Index. The
graph assumes an initial investment of $100 on January 1, 2006.
43
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
Somaxon Pharmaceuticals, Inc. |
|
$ |
31.65 |
|
|
$ |
10.85 |
|
|
$ |
13.87 |
|
|
$ |
52.36 |
|
|
$ |
142.61 |
|
Nasdaq Composite Index |
|
$ |
125.92 |
|
|
$ |
106.57 |
|
|
$ |
73.31 |
|
|
$ |
122.14 |
|
|
$ |
110.38 |
|
Nasdaq Pharmaceutical Index |
|
$ |
116.66 |
|
|
$ |
107.62 |
|
|
$ |
95.78 |
|
|
$ |
102.94 |
|
|
$ |
97.88 |
|
The foregoing graph and table are furnished solely with this report, and are not filed with
this report, and shall not be deemed incorporated by reference into any other filing under the
Securities Act or the Exchange Act, whether made by us before or after the date hereof, regardless
of any general incorporation language in any such filing, except to the extent we specifically
incorporate this material by reference into any such filing.
Dividend Policy
We have never declared or paid any cash dividends on our capital stock. We currently intend to
retain all available funds and any future earnings to support operations and finance the growth and
development of our business and do not intend to pay cash dividends on our common stock for the
foreseeable future. Any future determination related to our dividend policy will be made at the
discretion of our board of directors.
Securities Authorized for Issuance under Equity Compensation Plans
The following table summarizes securities available under our equity compensation plans as of
December 31, 2010 (in thousands, except per share data).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
Shares |
|
|
Total shares |
|
|
|
|
|
|
average per |
|
|
Shares |
|
|
issuable upon |
|
|
issuable |
|
|
Number of |
|
|
|
share |
|
|
issuable upon |
|
|
vesting of |
|
|
under |
|
|
securities |
|
|
|
exercise price |
|
|
exercise of |
|
|
outstanding |
|
|
current |
|
|
available for |
|
|
|
of stock |
|
|
outstanding |
|
|
restricted |
|
|
outstanding |
|
|
future |
|
|
|
options |
|
|
stock options |
|
|
stock units |
|
|
awards |
|
|
issuance |
|
Equity compensation plans
approved by security holders: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2004 Equity Incentive Award Plan |
|
$ |
4.28 |
|
|
|
143 |
|
|
|
|
|
|
|
143 |
|
|
|
|
|
2005 Equity Incentive Award Plan |
|
|
3.85 |
|
|
|
3,239 |
|
|
|
125 |
|
|
|
3,364 |
|
|
|
2,131 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Equity Incentive Award
Plans |
|
$ |
3.86 |
|
|
|
3,382 |
|
|
|
125 |
|
|
|
3,507 |
|
|
|
2,131 |
|
2005 Employee Stock Purchase
Plan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,102 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Equity compensation
plans approved by security
holders |
|
$ |
3.86 |
|
|
|
3,382 |
|
|
|
125 |
|
|
|
3,507 |
|
|
|
3,233 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity compensation plans not
approved by security holders: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
None. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
We have share-based awards outstanding under the Somaxon Pharmaceuticals, Inc. 2004 Equity
Incentive Award Plan and the 2005 Equity Incentive Award Plan for the benefit of our eligible
employees, consultants, and directors. The 2004 Equity Incentive Award Plan was discontinued in
November 2005 upon the adoption of the 2005 Equity Incentive Award Plan. No additional share-based
awards will be granted under the 2004 Equity Incentive Award Plan and all share-based awards that
are repurchased, forfeited, cancelled or expire will become available for grant under the 2005
Equity Incentive Award Plan. The 2005 Employee Stock Purchase Plan was adopted at the time of our
initial public offering.
Stock options granted under the 2005 Equity Incentive Award Plan have an exercise price equal
to the fair market value of the underlying common stock at the date of grant, have a ten year life
and generally vest over a period of between one and four years for our employees and between one
and three years for members of our board of directors, with some awards vesting upon the
achievement of certain performance conditions. The vesting of the stock options issued pursuant to
our one-time stock option exchange program which was completed in June 2009 is such that one-third
vested immediately upon issuance of the replacement awards and the remaining two-thirds vest in
equal monthly installments over the following two year period such that all the shares will be
fully vested in June 2011.
44
Restricted shares of our common stock have also been granted under the 2005 Equity Incentive
Award Plan, a portion of which vested upon the acceptance of our NDA for Silenor and the remainder
of which vested upon approval of our NDA for Silenor.
Awards of restricted stock units, or RSUs, have also been granted under the 2005 Equity
Incentive Award Plan. With respect to unvested RSUs held by our employees as of December 31, 2009,
half vested upon the approval by the FDA of our NDA for Silenor,
and the
remainder vested on December 1, 2010. Members of our board of directors received their quarterly
retainers for service on the Board of Directors, or committees thereof, and their fees for
attending meetings of the Board, and committees thereof, through March 2010 in RSUs. All of these
RSUs vested on December 1, 2010.
The 2005 Equity Incentive Award Plan and 2005 Employee Stock Purchase Plan contain evergreen
provisions which allow for annual increases in the number of shares available for future issuance.
The 2005 Equity Incentive
Award Plans evergreen provision provides for annual increases in the number of shares
available for grant equal to the lesser of: (i) 2,000,000 shares, (ii) 5% of the then-total
outstanding shares of capital stock (45,004,000 shares were outstanding at December 31, 2010), or
(iii) such lesser amount as determined by the board of directors. Pursuant to this evergreen
provision, on January 1, 2011, the number of shares available for grant under the 2005 Equity
Incentive Award Plan increased by 2,000,000 shares, resulting in a total of 4,131,000 shares
available for grant at that time. The 2005 Employee Stock Purchase Plans evergreen provision
provides for annual increases in the number of shares available for grant equal to the lesser of:
(i) 300,000 shares, (ii) 1% of the then-total outstanding shares of capital stock (45,004,000
shares were outstanding at December 31, 2010), or (iii) such lesser amount as determined by the
board of directors. Pursuant to this evergreen provision, on January 1, 2011, the number of shares
available for grant under the 2005 Employee Stock Purchase Plan increased by 300,000 shares,
resulting in a total of 1,402,000 shares available for grant at that time.
Recent Sales of Unregistered Securities
None.
Issuer Repurchases of Equity Securities
None.
45
|
|
|
Item 6. |
|
Selected Financial Data |
The selected statement of operations data for the years ended December 31, 2010, 2009 and
2008, and the balance sheet data as of December 31, 2010 and 2009 have been derived from our
audited financial statements included elsewhere in this annual report. The selected statement of
operations data for the years ended December 31, 2007 and 2006, and the balance sheet data as of
December 31, 2008, 2007 and 2006 have been derived from audited financial statements which are not
included in this Form 10-K. Historical results are not necessarily indicative of future results.
The selected financial data should be read in conjunction with Managements Discussion and
Analysis of Financial Condition and Results of Operations and our financial statements and related
notes included elsewhere in this annual report (amounts in thousands, except per share data).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
Statement of Operations Data: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net product sales |
|
$ |
1,382 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
Cost of sales |
|
|
244 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
1,138 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating Expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative |
|
|
36,579 |
|
|
|
10,874 |
|
|
|
18,809 |
|
|
|
15,614 |
|
|
|
11,744 |
|
Research and development |
|
|
3,566 |
|
|
|
4,337 |
|
|
|
16,546 |
|
|
|
12,694 |
|
|
|
37,462 |
|
License fees |
|
|
|
|
|
|
(999 |
) |
|
|
165 |
|
|
|
490 |
|
|
|
1,165 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
|
40,145 |
|
|
|
14,212 |
|
|
|
35,520 |
|
|
|
28,798 |
|
|
|
50,371 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from operations |
|
|
(39,007 |
) |
|
|
(14,212 |
) |
|
|
(35,520 |
) |
|
|
(28,798 |
) |
|
|
(50,371 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest and other income |
|
|
262 |
|
|
|
30 |
|
|
|
903 |
|
|
|
2,387 |
|
|
|
3,961 |
|
Interest and other (expense) |
|
|
(68 |
) |
|
|
(261 |
) |
|
|
(2,610 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(38,813 |
) |
|
$ |
(14,443 |
) |
|
$ |
(37,227 |
) |
|
$ |
(26,411 |
) |
|
$ |
(46,410 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted net loss per share |
|
$ |
(1.16 |
) |
|
$ |
(0.69 |
) |
|
$ |
(2.04 |
) |
|
$ |
(1.45 |
) |
|
$ |
(2.58 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares used to calculate net loss per share |
|
|
33,593 |
|
|
|
20,952 |
|
|
|
18,281 |
|
|
|
18,187 |
|
|
|
17,981 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
Balance Sheet Data: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash, cash equivalents
and short-term
investments |
|
$ |
54,817 |
|
|
$ |
5,165 |
|
|
$ |
14,290 |
|
|
$ |
37,100 |
|
|
$ |
57,914 |
|
Working capital |
|
|
52,407 |
|
|
|
3,404 |
|
|
|
4,258 |
|
|
|
34,385 |
|
|
|
51,334 |
|
Total assets |
|
|
65,131 |
|
|
|
6,411 |
|
|
|
23,717 |
|
|
|
38,717 |
|
|
|
59,452 |
|
Total debt |
|
|
|
|
|
|
|
|
|
|
15,000 |
|
|
|
|
|
|
|
|
|
Accumulated deficit |
|
|
(216,852 |
) |
|
|
(178,039 |
) |
|
|
(163,596 |
) |
|
|
(126,369 |
) |
|
|
(99,958 |
) |
Total stockholders equity |
|
|
54,264 |
|
|
|
4,241 |
|
|
|
5,106 |
|
|
|
35,176 |
|
|
|
52,357 |
|
46
|
|
|
Item 7. |
|
Managements Discussion and Analysis of Financial Condition and Results of Operations |
The following discussion and analysis of our financial condition and results of operations
should be read in conjunction with Selected Financial Data and our financial statements and
related notes appearing elsewhere in this annual report. In addition to historical information,
this discussion and analysis contains forward-looking statements that involve risks, uncertainties,
and assumptions. Our actual results may differ materially from those anticipated in these
forward-looking statements as a result of certain factors, including but not limited to those set
forth under the caption Risk Factors in this annual report.
Overview
Background
We are a specialty pharmaceutical company focused on the in-licensing, development and
commercialization of proprietary branded products and late-stage product candidates to treat
important medical conditions where there is an unmet medical need and/or high-level of patient
dissatisfaction, currently in the central nervous system therapeutic area. In March 2010, the
FDA approved our NDA for Silenor 3 mg and 6 mg tablets for the treatment of insomnia characterized by
difficulty with sleep maintenance. Silenor was made commercially available by prescription in the
United States in September 2010.
Our principal focus is on commercial activities relating to Silenor. We have increased
our headcount from 5 employees as of March 2010 to 40 employees as of February 15, 2011. We
commercially launched Silenor in September 2010 with 110 sales representatives provided to us on an
exclusive basis under our contract sales agreement with Publicis, and an additional 105 sales
representatives provided to us under our co-promotion agreement with P&G. In February 2011, we
engaged Publicis to provide us with an additional 35 sales representatives. As a result, we
believe that as of the early second quarter of 2011 Silenor will be supported by 250 sales
representatives, all of whom will promote Silenor in the primary detail position.
We have also established the manufacturing and distribution channel for Silenor through
agreements with third-party suppliers and service providers, and we have established reimbursement
coverage for Silenor with numerous private and government payors.
Critical Accounting Policies and Estimates
Managements discussion and analysis of our financial condition and results of operations is
based on our financial statements, which have been prepared in accordance with accounting
principles generally accepted in the United States. The preparation of these financial statements
requires us to make estimates and assumptions that affect the reported amounts of assets,
liabilities, expenses and related disclosures. Actual results could differ from those estimates. We
believe the following accounting policies to be critical to the judgments and estimates used in the
preparation of our financial statements.
Revenue Recognition
We recognize revenue from product sales when it is realized or realizable and earned. Revenue
is realized or realizable and earned when all of the following criteria are met: (1) persuasive
evidence of an arrangement exists; (2) delivery has occurred or services have been rendered; (3)
our price to the buyer is fixed or determinable; and (4) collectability is reasonably assured.
Revenue from sales transactions where the buyer has the right to return the product is recognized
at the time of sale only if (1) our price to the buyer is substantially fixed or determinable at
the date of sale, (2) the buyer has paid us, or the buyer is obligated to pay us and the obligation
is not contingent on resale of the product, (3) the buyers obligation to us would not be changed
in the event of theft or physical destruction or damage of the product, (4) the buyer acquiring the
product for resale has economic substance apart from that provided by us, (5) we do not have
significant obligations for future performance to directly bring about resale of the product by the
buyer, and (6) the amount of future returns can be reasonably estimated.
47
We sell Silenor to wholesale pharmaceutical distributors. Our returned goods policy generally
permits our customers to return products up to six months before and up to twelve months after the
expiration date of the product. We authorize returns for expired or damaged products in accordance
with our returned goods policy and issue credit to our customers for expired or damaged returned
product. We do not exchange product from inventory for returned product. As of December 31, 2010,
we have not received any returns.
We are unable to reliably estimate returns at this time. Therefore, we have determined that
shipment of product to wholesale distributors does not meet the criteria for revenue recognition at
the time of shipment. Until we are able to reliably estimate returns, we will defer revenue
recognition until the right of return no longer exists, which is the earlier of Silenor being
dispensed through patient prescriptions or the expiration of the right of return. We estimate
patient prescriptions dispensed using an analysis of third-party information. For the year ended
December 31, 2010, we recognized product revenue of $1.4 million, which was net of estimated
product sales discounts and allowances. At December 31, 2010, we had a deferred revenue balance of
$3.5 million which was also recorded net of estimated product sales discounts and allowances. We
have also deferred the related cost of product sales and recorded such amount as finished goods
inventory held by others, which was $0.3 million as of December 31, 2010.
Until we can reliably estimate product returns, we will continue to recognize revenue upon the
earlier to occur of prescription units dispensed or the expiration of the right of return. In
order to develop a methodology and provide a basis for estimating future product returns on sales
to customers at the time of product shipment, we are analyzing many factors, including industry
data of product return rates, and tracking the Silenor product return history, taking into account
product expiration dating at the time of shipment and levels of inventory in the wholesale channel.
We may use some or all of these factors in establishing a basis for estimating future product returns on sales to customers at the time of product shipment.
Product Sales Discounts and Allowances
We record product sales discounts and allowances at the time of sale and report revenue net of
such amounts in the same period that product sales are recorded. In determining the amount of
product sales discounts and allowances, we must make significant judgments and estimates. If
actual results vary from our estimates, we may need to adjust these estimates, which could have an
effect on product revenue in the period of adjustment. Our product sales discounts and allowances
and the specific considerations we use in estimating these amounts include:
Prompt Pay Discounts. As an incentive for prompt payment, we offer a 2% cash discount to
customers. We expect that all customers will comply with the contractual terms to earn the
discount. We recorded the discount as an allowance against accounts receivable and a reduction of
revenue. At December 31, 2010 and 2009, the allowance for prompt pay discounts was $114,000 and
$0, respectively.
Product Launch Discounts. For a limited time that ended September 30, 2010, we offered
additional discounts to wholesale distributors for product purchased. We recorded the discount as
an allowance against accounts receivable and a reduction of revenue based on orders placed. At
December 31, 2010 and 2009, the allowance for product launch discounts was $277,000 and $0,
respectively.
Patient Discount Programs. We offer discount card programs to patients who are prescribed
Silenor under which the patient receives a discount on his or her prescription. We reimburse
pharmacies for this discount through a third-party vendor. We estimate the total amount that will
be redeemed based on the dollar amount of the discount, the timing and quantity of distribution and
historical redemption rates. We accrued the discount and recognized a reduction of revenue. At
December 31, 2010 and 2009, the accrual for patient discount programs was $182,000 and $0,
respectively.
Distribution Service Fees. We pay distribution service fees to each wholesaler for
distribution and inventory management services. We accrued for the fees based on contractually
defined terms with each wholesaler and recognized a reduction of revenue. At December 31, 2010 and
2009, the accrual for distribution service fees was $276,000 and $0, respectively.
48
Chargebacks. We provide discounts to federal government qualified entities with whom we have
contracted. These federal entities purchase products from the wholesalers at a discounted price,
and the wholesalers then charge back to us the difference between the current retail price and the
contracted price the federal entity paid for the product. We accrued chargebacks based on contract
prices and sell-through sales data obtained from third-party information. At December 31, 2010 and
2009, the accrual for chargebacks was $9,000 and $0, respectively.
Rebates. We participate in certain rebate programs, which provide discounted prescriptions to
qualified insured patients. Under these rebate programs, we pay a rebate to the third-party
administrator of the program. We accrued rebates based on contract prices, estimated percentages of
product sold to qualified patients and estimated levels of inventory in the distribution channel.
At December 31, 2010 and 2009, the accrual for rebates was $6,000 and $0, respectively.
The following table summarizes the activity for the year ended December 31, 2010 associated
with product sales discounts and allowances, with amounts shown in thousands. There was no
activity in 2009 for product sales discounts and allowances.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrued |
|
|
|
Prompt |
|
|
Product |
|
|
Patient |
|
|
|
|
|
|
Charge- |
|
|
Sales |
|
|
|
Pay |
|
|
Launch |
|
|
Discount |
|
|
Distribution |
|
|
backs and |
|
|
Discounts |
|
|
|
Discounts |
|
|
Discounts |
|
|
Fees |
|
|
Service Fees |
|
|
Rebates |
|
|
and Allowances |
|
Balance at January 1, 2010 |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
Provision made for sales during period |
|
|
114 |
|
|
|
277 |
|
|
|
214 |
|
|
|
410 |
|
|
|
15 |
|
|
|
1,030 |
|
Payments |
|
|
|
|
|
|
|
|
|
|
(32 |
) |
|
|
(134 |
) |
|
|
|
|
|
|
(166 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2010 |
|
$ |
114 |
|
|
$ |
277 |
|
|
$ |
182 |
|
|
$ |
276 |
|
|
$ |
15 |
|
|
$ |
864 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For a limited time that ended September 30, 2010, we offered stocking allowances on the
first order made by wholesale distributors and retail pharmacies. As of December 31, 2010, we had
no remaining obligations for stocking allowances.
Cost of Sales
Cost of sales include the costs to manufacture, package, and ship Silenor, including personnel
costs associated with manufacturing oversight, as well as royalties associated with our license
agreement with ProCom.
Inventory
Our inventories are valued at the lower of cost, on a FIFO basis, or net realizable value. We
analyze our inventory levels quarterly and write down inventory that has become obsolete, or has a
cost basis in excess of its expected net realizable value, as well as any inventory quantities in
excess of expected requirements. Expired inventory is disposed of and the related costs are written
off. We did not record a reserve for expired inventory as of December 31, 2010.
Capitalized License Fees
License fees related to our intellectual property are capitalized once technological
feasibility has been established. Costs incurred to in-license our product candidates subsequent to
FDA approval of our NDA for Silenor have been capitalized and recorded as an intangible asset.
Capitalized amounts are amortized on a straight line basis over the expected life of the
intellectual property commencing with the commercial launch of the related product. Determining
when technological feasibility has been achieved, and determining the related amortization period
for capitalized intellectual property, requires the use of estimates and subjective judgment.
49
Share-based Compensation
Share-based compensation expense for employees and directors is recognized in the statement of
operations based on estimated amounts, including the grant date fair value, the probability of
achieving performance conditions and the expected service period for awards with conditional
vesting provisions. For stock options, we estimate the
grant date fair value using the Black-Scholes valuation model which requires the use of
multiple subjective inputs including an estimate of future volatility, expected forfeitures and the
expected term of the awards. Our stock did not have a readily available market prior to our
initial public offering in December 2005, creating a relatively short history from which to obtain
data to estimate volatility for our stock price. Consequently, we estimate our expected future
volatility based on a combination of both comparable companies and our own stock price volatility
to the extent such history is available. Our future volatility may differ from our estimated
volatility at the grant date. We estimate the expected term of our options using guidance provided
by the SECs Staff Accounting Bulletin, or SAB, No. 107 and SAB No. 110. This guidance provides a
formula-driven approach for determining the expected term. Share-based compensation recorded in our
statement of operations is based on awards expected to ultimately vest and has been reduced for
estimated forfeitures. Our estimated forfeiture rates may differ from actual forfeiture rates which
would affect the amount of expense recognized during the period. Estimated forfeitures are adjusted
to actual amounts as they become known.
We recognize the value of the portion of the awards that are expected to vest on a
straight-line basis over the awards requisite service periods. The requisite service period is
generally the time over which our share-based awards vest. Some of our share-based awards vested
upon achieving certain performance conditions, generally pertaining to approval of the Silenor NDA
by the FDA, the commercial launch of Silenor, or the achievement of other strategic objectives.
Share-based compensation expense for awards with performance conditions is recognized over the
period from the date the performance condition are determined to be probable of occurring through
the time the applicable condition is met. If the performance condition is not considered probable
of being achieved, then no expense is recognized until such time the performance condition is
considered probable of being met. At that time, expense is recognized over the period during which
the performance condition is likely to be achieved.
Determining the likelihood and timing of achieving performance conditions is a subjective
judgment made by management which may affect the amount and timing of expense related to these
share-based awards. Share-based compensation is adjusted to reflect the value of options which
ultimately vest as such amounts become known in future periods. As a result of these subjective and
forward-looking estimates, the actual value of our stock options realized upon exercise could
differ significantly from those amounts recorded in our financial statements.
Income Taxes
Our income tax expense consists of current and deferred income tax expense or benefit. Current
income tax expense or benefit is the amount of income taxes expected to be payable or refundable
for the current year. A deferred income tax asset or liability is recognized for the future tax
consequences attributable to tax credits and loss carryforwards and to differences between the
financial statement carrying amounts of existing assets and liabilities and their respective tax
bases. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management,
it is more likely than not that some portion or all of the deferred tax assets will not be
realized. As of December 31, 2010, we have established a valuation allowance to fully reserve our
net deferred tax assets. Tax rate changes are reflected in income during the period such changes
are enacted. Changes in ownership may limit the amount of net operating loss carryforwards that can
be utilized in the future to offset taxable income. In addition, the state of California has
currently suspended the use of net operating loss carryforwards to offset taxable income.
50
Results of Operations
Comparisons of the Years Ended December 31, 2010, 2009 and 2008
Product Sales. Net product sales for 2010, 2009, and 2008 are summarized in the following
table (in thousands, except percentages).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dollar Change |
|
|
Percent Change |
|
|
|
Years Ended December 31, |
|
|
2010 vs. |
|
|
2009 vs. |
|
|
2010 vs. |
|
|
2009 vs. |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
Gross product sales |
|
$ |
1,704 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
1,704 |
|
|
$ |
|
|
|
|
N/A |
|
|
|
N/A |
|
Discounts and allowances |
|
|
(322 |
) |
|
|
|
|
|
|
|
|
|
|
(322 |
) |
|
|
|
|
|
|
N/A |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net product sales |
|
$ |
1,382 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
1,382 |
|
|
$ |
|
|
|
|
N/A |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product sales represent sales of Silenor for which we have recognized revenue. We recognized
net product sales of $1,382,000 for 2010 and had no product sales in 2009 and 2008 as sales of
Silenor commenced in the third
quarter of 2010. Reductions from gross to net product sales, which include allowances for
discounts, stocking incentives, patient discount programs, distribution service fees, chargebacks
and rebates, totaled $322,000 for 2010, compared to $0 in the same period in 2009 and 2008. As a
percentage of gross sales, the reductions were 18.9% for 2010.
Net product sales are expected to increase in 2011 over 2010 primarily due to Silenor being
commercially available for all of 2011 and our continuing marketing efforts.
Cost of Sales. Cost of sales includes the costs to manufacture, package, and ship Silenor,
including personnel costs associated with manufacturing oversight, as well as royalties associated
with our license agreement. Cost of sales for 2010, 2009, and 2008 are summarized in the following
table (in thousands, except percentages).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dollar Change |
|
|
Percent Change |
|
|
|
Years Ended December 31, |
|
|
2010 vs. |
|
|
2009 vs. |
|
|
2010 vs. |
|
|
2009 vs. |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
Cost of sales |
|
$ |
244 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
244 |
|
|
$ |
|
|
|
|
N/A |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
We recognized cost of sales of $244,000 for 2010 relating to product dispensed through
prescriptions, which we estimated using an analysis of third-party information. We had no cost of
sales in 2009 and 2008 as sales of Silenor commenced in the third quarter of 2010. Gross profit
was $1,138,000 for 2010. Expressed as a percentage of net product sales, gross margin was 82.3% in
2010.
Selling, General and Administrative Expense. Our selling, general and administrative expenses
consist primarily of salaries, benefits, share-based compensation expense, advertising and market
research costs, insurance and facility costs, and professional fees related to our marketing,
administrative, finance, human resources, legal and internal systems support functions. Selling,
general and administrative expense for 2010, 2009 and 2008 are summarized in the following tables
(in thousands, except percentages).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dollar Change |
|
|
Percent Change |
|
|
|
Years Ended December 31, |
|
|
2010 vs. |
|
|
2009 vs. |
|
|
2010 vs. |
|
|
2009 vs. |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
Marketing, personnel and
other costs |
|
$ |
31,167 |
|
|
$ |
6,237 |
|
|
$ |
14,555 |
|
|
$ |
24,930 |
|
|
$ |
(8,318 |
) |
|
|
400 |
% |
|
|
(57 |
)% |
Share-based compensation |
|
|
5,412 |
|
|
|
4,637 |
|
|
|
4,254 |
|
|
|
775 |
|
|
|
383 |
|
|
|
17 |
% |
|
|
9 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total selling, general
and administrative
expenses |
|
$ |
36,579 |
|
|
$ |
10,874 |
|
|
$ |
18,809 |
|
|
$ |
25,705 |
|
|
$ |
(7,935 |
) |
|
|
236 |
% |
|
|
(42 |
)% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales and marketing |
|
$ |
24,591 |
|
|
$ |
1,461 |
|
|
$ |
6,388 |
|
|
$ |
23,130 |
|
|
$ |
(4,927 |
) |
|
|
1,583 |
% |
|
|
(77 |
)% |
General and administrative |
|
|
11,988 |
|
|
|
9,413 |
|
|
|
12,421 |
|
|
|
2,575 |
|
|
|
(3,008 |
) |
|
|
27 |
% |
|
|
(24 |
)% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total selling, general
and administrative
expenses |
|
$ |
36,579 |
|
|
$ |
10,874 |
|
|
$ |
18,809 |
|
|
$ |
25,705 |
|
|
$ |
(7,935 |
) |
|
|
236 |
% |
|
|
(42 |
)% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling and marketing expenses increased $23.1 million for 2010 compared to 2009 due to the
costs associated with the commercial activities and launch of Silenor. Launch costs included the
training and deployment of Somaxons sales representatives, sample distribution, and other
promotional spending and consulting costs. General and administrative expenses increased $2.6
million for 2010 compared to 2009 primarily due to an increase in salary and benefits expense
resulting from an increase in overall headcount in 2010 compared to 2009.
51
Selling and marketing expenses decreased $4.9 million for 2009 compared to 2008 primarily due
to a reduction in market preparation activities as a result of the delay in the FDA approval
process for Silenor. Personnel and related costs also decreased as a result of our cost reduction
measures, including a reduction in headcount. The decrease in personnel costs from the reduction in
workforce was partially offset by expenses incurred in conjunction with severance arrangements
entered into during 2009. General and administrative expenses decreased $3.0 million for 2009
compared to 2008 primarily due to a reduction in personnel and related costs as a result of our
cost reduction measures, including a reduction in headcount and lower legal, audit and consulting
fees during 2009. The decrease in personnel costs from the reduction in workforce was partially
offset by expenses incurred in conjunction with severance arrangements entered into during 2009.
We expect our selling, general and administrative expenses to increase in 2011 over 2010
levels as we focus on sales and marketing activities for Silenor throughout the full year and as we
expect to have an overall increase in headcount for 2011 compared to 2010. We are unable to
estimate with certainty our future selling, general and administrative expenses, in part because we
cannot forecast with any degree of certainty the cost of commercial activities, the
likelihood of commercial success, and to what degree such activities would affect our capital
requirements.
Research and Development Expense. Our most significant research and development costs
during 2010 were salaries, benefits, and share-based compensation expense related to our research
and development personnel while our most significant external costs were associated with our
development program for Silenor. Research and development expense for 2010, 2009 and 2008 are
summarized in the following table (in thousands, except percentages).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dollar Change |
|
|
Percent Change |
|
|
|
Years Ended December 31, |
|
|
2010 vs. |
|
|
2009 vs. |
|
|
2010 vs. |
|
|
2009 vs. |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
Personnel and other costs |
|
$ |
1,824 |
|
|
$ |
1,732 |
|
|
$ |
6,190 |
|
|
$ |
92 |
|
|
$ |
(4,458 |
) |
|
|
5 |
% |
|
|
(72 |
)% |
Silenor development work |
|
|
448 |
|
|
|
1,079 |
|
|
|
8,311 |
|
|
|
(631 |
) |
|
|
(7,232 |
) |
|
|
(58 |
)% |
|
|
(87 |
)% |
Share-based compensation |
|
|
1,294 |
|
|
|
1,526 |
|
|
|
2,045 |
|
|
|
(232 |
) |
|
|
(519 |
) |
|
|
(15 |
)% |
|
|
(25 |
)% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total research and
development expense |
|
$ |
3,566 |
|
|
$ |
4,337 |
|
|
$ |
16,546 |
|
|
$ |
(771 |
) |
|
$ |
(12,209 |
) |
|
|
(18 |
)% |
|
|
(74 |
)% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development expense decreased $0.8 million for 2010 compared to 2009 primarily
due to lower development expenses and share-based compensation expense. Silenor development
expenses decreased because of the lower level of activity relating to both the NDA and non-clinical
studies during 2010 as compared to 2009. Share-based compensation was lower in 2010 as 2009
included the additional cost of our one-time stock option exchange program that was completed in
June 2009 and the impact of accelerated option vesting arrangements under severance-related
agreements.
Research and development expense decreased $12.2 million for 2009 compared to 2008 primarily
due to a decrease in drug development activities for Silenor as a result of the completion during
2008 of our cardiac study for Silenor and the delay in the FDA approval process for Silenor.
Offsetting these reductions in expense was a payment to our Silenor packaging supplier for purchase
authorizations for certain expired raw materials. Personnel and other costs decreased as a result
of a reduction in headcount, which occurred as part of our cost reduction measures. This reduction
in headcount also caused a decrease in share-based compensation expense, but this decrease was
partially offset by accelerated vesting and continued vesting under consulting arrangements for
certain employees whose employment was terminated. The consulting arrangements were considered
non-substantive for accounting purposes, and the full value of the awards expected to vest over the
consulting arrangement was expensed at the time employment was terminated. The decrease in
share-based compensation expense was further offset by share-based compensation expense incurred in
conjunction with our one-time stock option exchange program in June 2009.
We expect our research and development expenses to decrease in 2011 over 2010 levels as we
focus on commercial activities relating to Silenor. We are unable to estimate with certainty our future
research and development expenses in part because we cannot forecast with any degree of certainty
whether we will potentially pursue the development of other product candidates, when such
arrangements will be secured, if at all, and to what degree such arrangements would affect our
development plans and capital requirements.
52
License fees.
License fees for 2010, 2009 and 2008 are summarized in the following table (in
thousands, except percentages).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dollar Change |
|
|
Percent Change |
|
|
|
Years Ended December 31, |
|
|
2010 vs. |
|
|
2009 vs. |
|
|
2010 vs. |
|
|
2009 vs. |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
License fees |
|
$ |
|
|
|
$ |
(999 |
) |
|
$ |
165 |
|
|
$ |
999 |
|
|
$ |
(1,164 |
) |
|
|
(100 |
)% |
|
|
(705 |
)% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
We had no license fees expense in 2010. In March 2009, we entered into an agreement with a
third party to mutually terminate our license for nalmefene. Pursuant to the termination agreement,
the third party paid us a $1.0 million termination fee which we included as a reduction of license
fees for 2009.
License fees decreased $1.2 million for 2009 compared to 2008 primarily due to the termination
payment relating to our nalmefene license agreement. Also contributing to the decrease was a
payment we made of $0.2 million during the third quarter of 2008 under a license arrangement for
the exclusive rights to purchase a certain ingredient used in our formulation for Silenor.
Interest and Other Income. Interest and other income for 2010, 2009 and 2008 are summarized in
the following table (in thousands, except percentages).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dollar Change |
|
|
Percent Change |
|
|
|
Years Ended December 31, |
|
|
2010 vs. |
|
|
2009 vs. |
|
|
2010 vs. |
|
|
2009 vs. |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
Interest and other income |
|
$ |
262 |
|
|
$ |
30 |
|
|
$ |
903 |
|
|
$ |
232 |
|
|
$ |
(873 |
) |
|
|
773 |
% |
|
|
(97 |
)% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest and other income increased $0.2 million for 2010 compared to 2009 primarily due to
the $0.2 million one-time grant that we were awarded under the Qualifying Therapeutic Discovery
Project program included in the Patient Protection and Affordable Health Care Act of 2010.
Interest and other income decreased $0.9 million for 2009 compared to 2008 due to lower
average cash and marketable security balances as well as lower interest rates compared to the prior
year.
Interest and Other (Expense). Interest and other (expense) for 2010, 2009 and 2008 are
summarized in the following table (in thousands, except percentages).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dollar Change |
|
|
Percent Change |
|
|
|
Years Ended December 31, |
|
|
2010 vs. |
|
|
2009 vs. |
|
|
2010 vs. |
|
|
2009 vs. |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
Interest and other (expense) |
|
$ |
(68 |
) |
|
$ |
(261 |
) |
|
$ |
(2,610 |
) |
|
$ |
193 |
|
|
$ |
2,349 |
|
|
|
(74 |
)% |
|
|
(90 |
)% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest and other (expense) decreased $0.2 million for 2010 compared to 2009 due to the
repayment in full of our debt obligations in March 2009.
Interest and other (expense) decreased $2.3 million for 2009 compared to 2008 due to our March
2009 debt repayment.
Liquidity and Capital Resources
As of December 31, 2010, we had $54.8 million in cash, cash equivalents and short-term
investments, representing an increase of $49.7 million from December 31, 2009. The increase was
due to two public offerings of our common stock we conducted in 2010. In March 2010, we completed
a public offering of 6,900,000 shares of our common stock for aggregate net proceeds of
approximately $52.7 million. In November 2010, we completed a public offering of 8,800,000 shares
of our common stock for aggregate net proceeds of approximately $24.8 million.
We have invested a substantial portion of our available cash in marketable securities. The
capital markets have recently been highly volatile and there has been a lack of liquidity for
certain financial instruments, especially those with exposure to mortgage-backed securities and
auction rate securities. All of our investments in marketable securities and money market funds
continue to be highly rated, highly liquid and have readily determinable fair values. As a result,
none of our securities are considered to be impaired.
53
We expect to continue to incur losses and have negative cash flows from operations in the
foreseeable future as we continue our commercial activities for Silenor, commercialize any other
products to which we obtain rights and potentially pursue the development of other product
candidates. As a result, we may need to obtain additional funds to finance our operations in the
future. Until we can generate significant cash from our operations, we intend to obtain any
additional funding we require through strategic relationships, public or private equity or debt
financings,
assigning receivables or royalty rights, or other arrangements and we cannot assure such
funding will be available on reasonable terms, or at all.
We believe, based on our current operating plan, that our cash, cash equivalents and
short-term investments as of December 31, 2010 will be sufficient to fund our operations through at
least the first quarter of 2012. The actual period of time through which our
financial resources will be adequate to support our operations could vary based upon many factors,
including but not limited to the rate of growth of Silenor sales and the actual cost of commercial
activities.
Our future capital uses and requirements depend on numerous forward-looking factors. These
factors include but are not limited to the following:
|
|
|
our success in generating cash flows from the commercialization of Silenor, together
with our co-promotion partner P&G; |
|
|
|
the costs of establishing or contracting for commercial programs and resources; |
|
|
|
the costs of filing, prosecuting, defending and enforcing any patent claims and other
intellectual property rights; |
|
|
|
the extent to which we acquire or in-license new products, technologies or businesses; |
|
|
|
the rate of progress and cost of our non-clinical studies, clinical trials and other
development activities; |
|
|
|
the scope, prioritization and number of development programs we pursue; and |
|
|
|
the effect of competing technological and market developments. |
We may not be successful in obtaining additional financing when needed. If available,
financing may not be obtained on terms favorable to us or our stockholders. If we are unsuccessful
in raising sufficient additional funds, our growth plans and our financial condition or results of
operations could be materially adversely impacted, and we may be required to delay, scale-back or
eliminate plans or programs relating to our business, relinquish some or all of our rights to
Silenor, renegotiate less favorable terms with respect to such rights than we would otherwise
choose or cease operating as a going concern. If we are unable to continue as a going concern, we
may have to liquidate our assets and may receive less than the value at which those assets are
carried on our financial statements, and it is likely that investors will lose all or a part of
their investment.
If we raise additional funds by issuing equity securities, substantial dilution to existing
stockholders would likely result. If we raise additional funds by incurring debt financing, the
terms of the debt may involve significant cash payment obligations as well as covenants and
specific financial ratios that may restrict our ability to operate our business.
We have two effective shelf registration statements on Form S-3 filed with the SEC under which
we may offer from time to time up to an aggregate of approximately $67.1 million in any combination
of debt securities, common and preferred stock and warrants. These registration statements could
allow us to seek additional financing, subject to the SECs rules and regulations relating to
eligibility to use Form S-3.
As a result of recent volatility in the capital markets, the cost and availability of credit
has been and may continue to be adversely affected. Concern about the stability of the markets in
general and the strength of counterparties specifically has led many lenders and institutional
investors to reduce, and in some cases, cease to provide funding to borrowers. Continued turbulence
in the United States and international markets and economies may adversely affect our ability to
obtain additional financing on terms acceptable to us, or at all. If these market conditions
continue, they may limit our ability to timely replace maturing liabilities and to access the
capital markets to meet liquidity needs.
54
In March 2010, the President signed the Patient Protection and Affordable Care Act, which
makes extensive changes to the delivery of health care in the United States. This act includes
numerous provisions that affect pharmaceutical companies, some of which are effective immediately
and others of which will be taking effect over the next several years. For example, the act seeks
to expand health care coverage to the uninsured through private health insurance reforms and an
expansion of Medicaid. The act will also impose substantial costs on pharmaceutical manufacturers,
such as an increase in liability for rebates paid to Medicaid, new drug discounts that must be
offered to certain enrollees in the Medicare prescription drug benefit, an annual fee imposed on
all manufacturers of brand prescription drugs in the United States, and an expansion of an existing
program requiring pharmaceutical discounts to certain types of hospitals and federally subsidized
clinics. The act also contains cost-containment measures that could reduce reimbursement levels for
health care items and services generally, including pharmaceuticals. It also will require reporting
and public disclosure of payments and other transfers of value provided by pharmaceutical companies
to physicians and teaching hospitals. These measures could result in decreased potential returns
from our pharmaceutical products and any development efforts.
Cash Flows
Net cash used in operations was $29.7 million for 2010 compared to $9.6 million in 2009. The
increase in net cash used in operating activities was primarily due to an increase in our net loss
in 2010 as compared to 2009.
Net cash used in investing activities was $35.7 million for 2010 compared to net cash provided
by investing activities of $11.2 million in 2009. Results for 2010 reflect purchases of $46.5
million of marketable securities, proceeds from the sale of marketable securities of $12.3 million,
and a $1.0 million milestone payment to ProCom under our license agreement which became due as a
result of the approval by the FDA of our NDA for Silenor. Results for 2009 reflect purchases of
marketable securities of $2.5 million, proceeds from the sale of marketable securities of $5.6
million, and the release of restricted cash of $8.1 million in connection with the repayment of our
bank debt. The increase in purchases of marketable securities is due to the investment of proceeds
received from our public offerings in 2010.
Net cash provided by financing activities was $81.3 million for 2010 compared to net cash used
in financing activities of $7.6 million in 2009. Our 2010 results reflect cash proceeds of $77.6
million from our public offerings and proceeds of $3.8 million from the exercise of warrants and
stock options. Results for 2009 reflect the repayment of $15.0 million of our bank debt and cash
proceeds of $5.7 million from the issuance of common stock and warrants in July 2009.
Loan Agreement
On February 7, 2011, we entered into a loan agreement with Comerica, pursuant to which we may
request advances in an aggregate outstanding amount not to exceed $15.0 million. The revolving
loan bears interest at a variable rate of interest, per annum, at our option of either LIBOR plus
3.00% or Comericas prime rate plus 0.50%, which as of February 2011 were 3.26% and 3.75%,
respectively. Interest payments on advances made under the loan agreement are due and payable in
arrears on the first business day of each month during the term of the loan agreement. Amounts
borrowed under the loan agreement may be repaid and re-borrowed at any time prior to February 7,
2013, subject to certain conditions. Once we have two consecutive quarters of profitability, the
amounts we borrow are limited to a percentage of our accounts receivable. There is a non-refundable
unused commitment fee equal to 0.25% per annum on the difference between the amount of the
revolving line and the average daily balance outstanding thereunder during the term of the loan
agreement, payable quarterly in arrears. The loan agreement will remain in full force and effect
for so long as any obligations remain outstanding or Comerica has any obligation to make credit
extensions under the loan agreement.
Amounts borrowed under the loan agreement are secured by substantially all of our personal
property, excluding intellectual property. Under the loan agreement, we are subject to certain
affirmative and negative covenants, including limitations on our ability to: undergo certain change
of control events; convey, sell, lease, license, transfer or otherwise dispose of assets, other
than in certain specified circumstances; create, incur, assume, guarantee or be liable with respect
to certain indebtedness; grant liens; pay dividends and make certain other restricted payments; and
make certain investments. In addition, under the loan agreement, we are required to maintain a cash
balance with Comerica in an amount of not less than $5.0 million and to maintain 50% of any other
cash balances with
Comerica and any other cash or investments must be covered by a control agreement for the benefit
of Comerica. We are also subject to specified financial covenants with respect to a minimum
liquidity ratio and, once we have two consecutive quarters of profitability, minimum EBITDA
requirements. We have currently met all of our obligations under the loan agreement.
55
Litigation
On November 3, 2010, we received a notice from each of Actavis Elizabeth LLC and Mylan
Pharmaceuticals Inc. that each had filed with the FDA an ANDA for a generic version of Silenor 3 mg
and 6 mg tablets. Each of the notices included a paragraph IV certification with respect to seven
of the eight patents listed in the Orange Book for Silenor.
On December 15, 2010, we, together with ProCom, filed suit in the United States
District Court for the District of Delaware against each of Actavis and Mylan. The lawsuit alleges
that Actavis and Mylan have each infringed U.S. Patent No. 6,211,229 by filing their ANDAs relating
to Silenor prior to the expiration of this patent. Pursuant to the provisions of the
Hatch-Waxman Act, FDA final approval of each of the Actavis and Mylan ANDAs can occur no earlier
than May 3, 2013, unless there is an earlier court decision that the 229 patent is not infringed
and/or invalid or unless any party to the action is found to have failed to cooperate reasonably to
expedite the infringement action. At this time, other patents listed in the Orange Book for Silenor
have not been asserted against either Mylan or Actavis.
On December 23, 2010, we received a notice from Par Pharmaceuticals, Inc. that it had filed
with the FDA an ANDA for a generic version of Silenor 3 mg and 6 mg tablets. This notice included a
paragraph IV certification with respect to seven of the eight patents listed in the Orange Book for
Silenor.
On February 2, 2011, we, together with ProCom, filed suit in the United States District Court
for the District of Delaware against Par. The lawsuit alleges that Par has infringed U.S. Patent
No. 6,211,229 by filing its ANDA relating to Silenor prior to the expiration of this patent.
Pursuant to the provisions of the Hatch-Waxman Act, FDA final approval of the Par ANDA can occur no
earlier than June 23, 2013, unless there is an earlier court decision that the 229 patent is not
infringed and/or invalid or unless any party to the action is found to have failed to cooperate
reasonably to expedite the infringement action. At this time, other patents listed in the Orange
Book for Silenor have not been asserted against Par.
We intend to vigorously enforce our intellectual property rights relating to Silenor, but we
cannot predict the outcome of these matters.
The prosecution of the lawsuits against Actavis, Mylan and Par will increase our cash
expenditures. Any adverse outcome in this litigation could result in one or more generic versions
of Silenor being launched before the expiration of the listed patents, which could adversely affect
our ability to successfully execute our business strategy to increase sales of Silenor and would
negatively impact our financial condition and results of operations, including causing a
significant decrease in our revenues and cash flows.
56
Contractual Obligations
The following table describes our commitments to settle contractual obligations in cash as of
December 31, 2010 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payments Due By Period |
|
|
|
|
|
|
|
2012 |
|
|
2014 |
|
|
|
|
|
|
|
|
|
|
|
|
|
through |
|
|
through |
|
|
After |
|
|
|
|
|
|
2011 |
|
|
2013 |
|
|
2015 |
|
|
2015 |
|
|
Total |
|
Non-cancellable purchase orders |
|
$ |
2,273 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
2,273 |
|
Other contractual obligations |
|
|
6,426 |
|
|
|
250 |
|
|
|
|
|
|
|
|
|
|
|
6,676 |
|
Operating lease obligations |
|
|
65 |
|
|
|
21 |
|
|
|
4 |
|
|
|
|
|
|
|
90 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
8,764 |
|
|
$ |
271 |
|
|
$ |
4 |
|
|
$ |
|
|
|
$ |
9,039 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
We entered into a license agreement with ProCom to acquire the rights to develop and
commercialize Silenor. Pursuant to this agreement, we obtained exclusive, sub-licensable rights to
the patents and know-how for certain indications. This license agreement required us to pay an
upfront payment as well as additional payments upon the achievement of specific development and
regulatory approval milestones. We are also obligated to pay royalties under the agreement until
the expiration of the applicable patents. Royalty payments due under the terms of the in-license
agreement are recorded as an accrued liability as of December 31, 2010. The royalty payments will
be recognized as an expense when the related shipment is recognized as revenue. Future royalty
payments are not included in the table above because we cannot reasonably estimate them at this
time.
In July 2010, we entered into a professional detailing services agreement with Publicis, under
which Publicis has agreed to provide sales support to promote Silenor in the U.S.
through 110 full-time sales representatives, one regional field coordinator and one national
business director, all of whom will be employees of Publicis. In February 2011 we entered into an
amendment with Publicis, under which Publicis has agreed to provide sales support to promote
Silenor in the U.S. through an additional 35 full-time sales representatives and one
additional regional field coordinator, all of whom will be employees of Publicis. Prior to the
first anniversary of the deployment of Publicis initial 110 sales representatives, we have the
right to terminate the services agreement upon 90 days written notice and payment to Publicis of a
termination fee in a specified amount. We have estimated this specified amount as of December 31,
2010 and included this amount in the table above.
In August 2010, we entered into a co-promotion agreement with P&G, under which P&G will
provide sales support to promote Silenor in the U.S. through its team of full-time sales
representatives. Beginning in January 2011, P&G will also provide certain managed care support
services. We will recognize the revenue from Silenor product sales generated by the promotional
efforts of P&G. Under the terms of the agreement, we are required to pay P&G a fixed fee and a
royalty fee as a percentage of U.S. net sales, in each case on a quarterly basis during the term of
the agreement. We have included the amounts of the fixed fees in the table above. At December 31,
2010, fixed fees due amounted to $1.4 million, which is recorded as an accrued liability and is not
reflected in the table above. Future royalty payments are not included in the table above because
we cannot reasonably estimate them at this time.
We have contracted with various consultants and other vendors to assist in clinical trial
work, pre-clinical studies, data analysis, and activities to support the marketing of Silenor. The
contracts are generally terminable at any time, but obligate us to reimburse the providers for any
time or costs incurred through the date of termination. We also have employment agreements with
each of our current executive officers that provide for severance payments and accelerated vesting
for certain share-based awards if their employment with us is terminated under specified
circumstances.
Off-Balance Sheet Arrangements
We do not have any relationships with unconsolidated entities or financial partnerships, such
as entities often referred to as structured finance or special purpose entities, which would have
been established for the purpose of facilitating off-balance sheet arrangements or other
contractually narrow or limited purposes.
57
Recent Accounting Pronouncements
In October 2009, the Financial Accounting Standard Board, or FASB, issued Accounting Standards
Update, or ASU, No. 2009-13 Revenue Recognition, which provides guidance on recognizing revenue
in arrangements with
multiple deliverables. This standard impacts the determination of when the individual
deliverables included in a multiple element arrangement may be treated as a separate unit of
accounting. It also modifies the manner in which the consideration received from the transaction is
allocated to the multiple deliverables and no longer permits the use of the residual method of
allocating arrangement consideration. This accounting standard is effective for the first reporting
period beginning on or after June 15, 2010, with early adoption permitted. We do not expect the
adoption of ASU 2009-13 to have a material impact on the financial statements.
|
|
|
Item 7A. |
|
Quantitative and Qualitative Disclosures about Market Risk |
Our cash and cash equivalents at December 31, 2010 consists primarily of money market funds
and available-for-sale securities. The primary objective of our investment activities is to
preserve principal while maximizing the income we receive from our investments without
significantly increasing risk. We also periodically invest in U.S. government debt securities. To
the extent we hold securities other than money market funds, our primary exposure to market risk is
interest rate sensitivity. This means that a change in prevailing interest rates may cause the
value of the investment to fluctuate. For example, if we purchase a security that was issued with a
fixed interest rate and the prevailing interest rate later rises, the value of our investment will
probably decline. To minimize this risk, we intend to continue to maintain our portfolio of cash,
cash equivalents and marketable securities in a variety of securities consisting of money market
funds and United States government debt securities, all with various maturities. In general, money
market funds are not subject to market risk because the interest paid on such funds fluctuates with
the prevailing interest rate. We also generally time the maturities of our investments to
correspond with our expected cash needs, allowing us to avoid realizing any potential losses from
having to sell securities prior to their maturities.
Recently, there has been concern in the credit markets regarding the value of a variety of
mortgage-backed securities and the resultant effect on various securities markets. Our cash is
invested in accordance with a policy approved by our board of directors which specifies the
categories, allocations, and ratings of securities we may consider for investment. We do not
believe our cash and cash equivalents have significant risk of default or illiquidity. We made this
determination based on discussions with our treasury managers and a review of our holdings. While
we believe our cash and cash equivalents are well diversified and do not contain excessive risk, we
cannot provide absolute assurance that our investments will not be subject to future adverse
changes in market value.
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Item 8. |
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Financial Statements and Supplementary Data |
See the list of financial statements filed with this report under Part IV Item 15 below.
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Item 9. |
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Changes in and Disagreements with Accountants on Accounting and Financial Disclosure |
Not applicable.
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Item 9A. |
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Controls and Procedures |
Evaluation of Disclosure Controls and Procedures
We maintain disclosure controls and procedures that are designed to ensure that information
required to be disclosed in our Exchange Act reports is recorded, processed, summarized and
reported within the time periods specified in the Securities and Exchange Commissions rules and
forms and that such information is accumulated and communicated to our management, including our
Chief Executive Officer and Chief Financial Officer, to allow for timely decisions regarding
required disclosure. In designing and evaluating the disclosure controls and procedures, management
recognizes that any controls and procedures, no matter how well designed and operated, can provide
only reasonable assurance of achieving the desired control objectives, and management is required
to apply its judgment in evaluating the cost-benefit relationship of possible controls and
procedures.
58
As required by Securities and Exchange Commission Rule 13a-15(b), we carried out an
evaluation, under the supervision and with the participation of our management, including our Chief
Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of
our disclosure controls and procedures as of the end of the period covered by this report. Based on
the foregoing, our Chief Executive Officer and Chief Financial Officer concluded that our
disclosure controls and procedures were effective at the reasonable assurance level as of December
31, 2010.
Managements Report on Internal Control over Financial Reporting
Internal control over financial reporting refers to the process designed by, or under the
supervision of, our Chief Executive Officer and Chief Financial Officer, and effected by our board
of directors, management and other personnel, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. Internal control over
financial reporting includes those policies and procedures that: (1) pertain to the maintenance of
records that in reasonable detail accurately and fairly reflect the transactions and dispositions
of our assets; (2) provide reasonable assurance that transactions are recorded as necessary to
permit preparation of financial statements in accordance with generally accepted accounting
principles, and that our receipts and expenditures are being made in accordance with authorizations
of our management and directors; and (3) provide reasonable assurance regarding prevention or
timely detection of unauthorized acquisition, use or disposition of the companys assets that could
have a material effect on the financial statements.
Internal control over financial reporting cannot provide absolute assurance of achieving
financial reporting objectives because of its inherent limitations. Internal control over financial
reporting is a process that involves human diligence and compliance and is subject to lapses in
judgment and breakdowns resulting from human failures. Internal control over financial reporting
also can be circumvented by collusion or improper management override. Because of such limitations,
there is a risk that material misstatements may not be prevented or detected on a timely basis by
internal control over financial reporting. However, these inherent limitations are known features
of the financial reporting process. Therefore, it is possible to design into the process safeguards
to reduce, though not eliminate, this risk.
Management is responsible for establishing and maintaining adequate internal control over our
financial reporting, as such term is defined in Rule 13a-15(f) under the Exchange Act. Under the
supervision and with the participation of our management, including our Chief Executive Officer and
Chief Financial Officer, we conducted an evaluation of the effectiveness of our internal control
over financial reporting. Management has used the framework set forth in the report entitled
Internal ControlIntegrated Framework published by the Committee of Sponsoring Organizations of
the Treadway Commission to evaluate the effectiveness of our internal control over financial
reporting. Based on its evaluation, management has concluded that our internal control over
financial reporting was effective as of December 31, 2010, the end of our most recent fiscal year.
This effectiveness of internal control over financial reporting as of December 31, 2010 has been
audited by PricewaterhouseCoopers LLP, an independent registered public accounting firm.
Changes in Internal Control Over Financial Reporting
There have been no changes in our internal control over financial reporting during our most
recent fiscal quarter that have materially affected, or are reasonably likely to materially affect,
our internal control over financial reporting.
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Item 9B. |
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Other Information |
Not applicable.
59
PART III
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Item 10. |
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Directors, Executive Officers and Corporate Governance |
Board of Directors
At March 3, 2011, our board of directors consisted of the following members:
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Name |
|
Age |
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Position with the Company |
David F. Hale
|
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62 |
|
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Chairman of the Board |
Richard W. Pascoe
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47 |
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Director, President and Chief Executive Officer |
Erle T. Mast
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48 |
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Director, Chairman of the Audit Committee |
Kurt von Emster
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43 |
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Director, Chairman of the Nominating/Corporate Governance Committee |
Terrell A. Cobb
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61 |
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|
Director |
Michael L. Eagle
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63 |
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Director |
Faheem Hasnain
|
|
52 |
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Director |
Thomas G. Wiggans
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|
59 |
|
|
Director, Chairman of the Compensation Committee |
David F. Hale is one of our co-founders and has served as Chairman of the Board of Directors
since our founding in August 2003. He also served as our interim Chief Executive Officer from
January 2008 until August 2008. Mr. Hale has served as Chairman and Chief Executive Officer of Hale
BioPharma Ventures since May 2006. Mr. Hale served as President and Chief Executive Officer of
CancerVax Corporation, a biotechnology company, from October 2000 until it merged with Micromet AG
in 2006. He served as a director of CancerVax from December 2000 until the merger with Micromet
Inc., and he currently serves as Chairman of Micromets board of directors. Prior to joining
CancerVax, he was President and Chief Executive Officer of Women First HealthCare, Inc., a
specialty pharmaceutical company, from January 1998 to May 2000. Mr. Hale served as President,
Chief Executive Officer and Chairman of Gensia Inc., a pharmaceutical company which became Gensia
Sicor, from May 1987 to November 1997. Prior to joining Gensia, Mr. Hale was President, Chief
Operating Officer and Chief Executive Officer of Hybritech Inc. Mr. Hale serves as Chairman of the
Board of Santarus, Inc. and the privately held companies SkinMedica, Inc., Ridge Diagnostics,
Automedics, Inc., Advantar Laboratories, Crisi Medical Systems and Neurelis, Inc. He also was a
founder and serves as a member of the Board of Directors of Conatus Pharmaceuticals, Inc., and
served on the Board of Directors of Verus Pharmaceuticals, Inc. Mr. Hale was formerly a director
of Metabasis Therapeutics, Inc. from 1998 through January 2010, including its Chairman of the Board
from 2006 through January 2010.
Mr. Hale is a member of the boards of directors of industry organizations including BIOCOM/San
Diego and the Biotechnology Industry Organization (BIO), is a member of the board of directors of
Rady Childrens Hospital and Health Center and the Sanford-Burnham Medical Research Institute and
was Chairman of CONNECT from July 2004 to January 2011. Mr. Hale received a B.A. degree in Biology and
Chemistry from Jacksonville State University. Mr. Hales depth and diversity of experience on
boards of directors and in senior management of public and private specialty pharmaceutical
companies, as well as his personal and professional integrity, ethics and values, led the board of
directors to conclude that Mr. Hale should serve as a director of the company and as its
non-executive chairman of the board.
Richard W. Pascoe joined as our President and Chief Executive Officer in August 2008.
Before joining us, Mr. Pascoe was the Chief Operating Officer at ARIAD Pharmaceuticals, an emerging
oncology company, where he led commercial operations, manufacturing, information services, program
and alliance management and business development. Mr. Pascoe held a series of senior management
roles at King Pharmaceuticals, Inc., including senior vice president of neuroscience marketing and
sales and vice president positions in both international sales and marketing and hospital sales. He
also held positions in the commercial groups at Medco Research, Inc. (which was acquired by King),
COR Therapeutics, Inc. (where he helped lead the successful launch of eptifibatide
[Integrilin®]), B. Braun Interventional and the BOC Group. Mr. Pascoe served as a
commissioned officer in the United States Army following his graduation from the United States
Military Academy at West Point where he received a B.S degree in Leadership. Mr. Pascoes
appointment as our President and Chief Executive Officer and the boards belief that the companys
chief executive officer should serve on the board, as well as Mr. Pascoes depth and diversity of
experience in senior management of public specialty pharmaceutical companies and his personal and
professional integrity, ethics and values, led the board of directors to conclude that Mr. Pascoe
should serve as a director of the company.
60
Erle T. Mast has served on our board of directors since June 2008. Mr. Mast currently
serves as Executive Vice President and Chief Financial Officer and is a co-founder of Clovis
Oncology, Inc., an emerging biopharmaceutical company. Previously, Mr. Mast was Chief Financial
Officer of Pharmion Corporation from 2002 until its acquisition by Celgene Corporation in March
2008. Mr. Mast was also an Executive Vice President of Pharmion from February 2007 until the
acquisition. He was Vice President of Finance for Dura Pharmaceuticals, Inc. from 1997 until its
acquisition by Elan Corporation, plc in 2000, and thereafter he was Chief Financial Officer of
Elans Global Biopharmaceuticals business until 2002. Prior to that, Mr. Mast was a partner with
Deloitte & Touche, LLP. Mr. Mast has been a director of Zogenix, Inc. since 2008 and was a director
of Verus Pharmaceuticals, Inc. from 2007 to 2009. Mr. Mast graduated from California State
University, Bakersfield with a degree in business administration. Mr. Masts depth and diversity of
experience on boards of directors and in senior management of public and private specialty
pharmaceutical companies, including his specific experience and skills that qualify Mr. Mast to be
our audit committee financial expert as that term is defined in the rules and regulations
established by the SEC, as well as his personal and professional
integrity, ethics and values, led the board of directors to conclude that Mr. Mast should serve as
a director of the company.
Kurt von Emster, CFA has served as a member of our board of directors since August 2005. Mr.
von Emster is currently Managing Director of venBio LLC. From November 2000 through February 2009,
Mr. von Emster was a General Partner and Portfolio Manager for the MPM BioEquities Fund. Prior to
joining MPM, Mr. von Emster spent 11 years with Franklin Templeton Group as a Vice President and
Portfolio Manager where he managed over $2 billion in health and biotech funds. In his tenure at
Franklin, Mr. von Emster was responsible for building the health care group and was responsible for
conceiving and developing seven different life science investment products for Franklin. Mr. von
Emster holds the Chartered Financial Analyst designation (CFA), is a member of the Association for
Investment Management and Research and is a member of the Security Analysts of San Francisco. Mr.
von Emster currently serves on the board of directors of Metabolex, a private drug development
company. Mr. von Emster is a past director of Facet Biotech
Corporation, a public biotech company sold
to Abbott Labs in 2010 and past Board Observer at Acceleron Pharmaceuticals, a private
biotechnology company. He has a degree from the University of California at Santa Barbara in
Business and Economics and in 2010, completed the Director College Executive Education Program at
the Rock Center for Corporate Governance at Stanford University. Mr. von Emsters depth and
diversity of experience on boards of directors of public and private biotechnology companies and in
evaluating and investing in biotech companies, as well as his personal and professional integrity,
ethics and values, led the board of directors to conclude that Mr. von Emster should serve as a
director of the company.
Terrell A. Cobb has served as a member of our board of directors since August 2003. Mr. Cobb
is the founder and currently serves as President of ProCom One, a drug development company, a
position he has held since 1998. We license Silenor from ProCom One, Inc. as described in further
detail under Part III Item 13, Certain Relationships and Related Transactions, and Director
Independence of this report. From 1995 to the present, Mr. Cobb has served as a consultant
focusing on business development activities in the pharmaceutical industry. Mr. Cobb previously
spent 15 years in various positions at Johnson and Johnson. Mr. Cobb has founded four specialty
pharmaceutical companies, has held senior management positions in several start-up organizations,
including Pharmaco and Scandipharm, and has acted as an advisor and consultant to other drug
development companies. He received a B.A. degree from Mercer University in Chemistry and
Psychology. Mr. Cobbs depth and diversity of experience on boards of directors and in senior
management of public and private specialty pharmaceutical companies, as well as his personal and
professional integrity, ethics and values, led the board of directors to conclude that Mr. Cobb
should serve as a director of the company. In addition, ProCom One has the right to designate one
member of our board of directors, and ProCom One has designated Mr. Cobb to serve in such role.
Michael L. Eagle has served on our board of directors since May 2007. Mr. Eagle served as Vice
President of Manufacturing for Eli Lilly and Company from 1994 through 2001 and held a number of
executive management positions with Eli Lilly and its subsidiaries throughout his career there.
Since retiring from Eli Lilly, he has served as a founding member of Barnard Life Sciences, LLC.
Mr. Eagle earned his B. S. degree in mechanical engineering from Kettering University and an M.B.A.
from the Krannert School of Management at Purdue University. He serves on the board of directors of
Cadence Pharmaceuticals and on the Board of Trustees of the La Jolla Playhouse and Futures for
Children. Mr. Eagles depth and diversity of experience on boards of directors and in senior
management of public and private pharmaceutical and medical device companies, as well as his
personal and professional integrity, ethics and values, led the board of directors to conclude that
Mr. Eagle should serve as a director of the company.
61
Faheem Hasnain has served on our board of directors since September 2010. Mr. Hasnain is
currently president, chief executive officer and a director of Receptos, Inc., a position he has
held since December 2010. Previously, Mr. Hasnain was president, chief executive officer and a
director of Facet Biotech Corporation from December 2008 until its acquisition by Abbott
Laboratories in April 2010. Mr. Hasnain was president, chief executive officer and a director of
PDL BioPharma, Inc. from October 2008 until Facet Biotech was spun off from PDL BioPharma in
December 2008. From October 2004 to September 2008, Mr. Hasnain served at Biogen Idec Inc., most
recently as executive vice president in charge of the oncology/rheumatology strategic business
unit. Prior to Biogen Idec, Mr. Hasnain was president of Oncology Therapeutics Network, a
subsidiary of Bristol-Myers Squibb Company, from March 2002 to September 2004. From 2000 to 2002,
Mr. Hasnain served as vice president, global eBusiness, at GlaxoSmithKline and, from 1988 to 2000,
he served in key commercial and entrepreneurial roles within GlaxoSmithKline and its predecessor
organizations, spanning global eBusiness, international commercial operations, sales and marketing.
Mr. Hasnain received a B.H.K. and B.Ed. from the University of Windsor Ontario in Canada. Mr.
Hasnains depth and diversity of experience on boards of directors and in senior management of
public and private specialty and non-specialty pharmaceutical companies, as well as his personal
and professional integrity, ethics and values, led the board of directors to conclude that Mr.
Hasnain should serve as a director of the company.
Thomas G. Wiggans has served on our board of directors since June 2008. Mr. Wiggans served as
Chief Executive Officer of Peplin, Inc. from August 2008 until Peplins acquisition by LEO Pharma
A/S in November 2009, and as Chairman of Peplins Board of Directors from October 2007 until such
acquisition. Mr. Wiggans served as Chief Executive Officer of Connetics Corporation from 1994 until
December 2006 when Connetics was acquired by Stiefel Laboratories, Inc. Mr. Wiggans was also
Chairman of the Board of Connetics from January 2006 until the acquisition. From 1992 to 1994, Mr.
Wiggans served as President and Chief Operating Officer of CytoTherapeutics Inc. He served in
various positions at Ares-Serono Group from 1980 to 1992, including President of its U.S.
pharmaceutical operations and Managing Director of its U.K. pharmaceutical operations. Mr. Wiggans
currently serves on the boards of directors of Sangamo Biosciences, Inc., Onyx Pharmaceuticals,
Inc. and Victory Pharma Inc. Mr. Wiggans also serves as Chairman of the Board of Excaliard
Pharmaceuticals, Inc. He is also on the Board of Trustees of the University of Kansas Endowment
Association. In addition, Mr. Wiggans is Chairman of the Biotechnology Institute, a non-profit
educational organization. Mr. Wiggans holds a B.S. in Pharmacy from the University of Kansas and an
M.B.A. from Southern Methodist University. Mr. Wiggans depth and diversity of experience on boards
of directors and in senior management of public and private specialty pharmaceutical companies, as
well as his personal and professional integrity, ethics and values, led the board of directors to
conclude that Mr. Wiggans should serve as a director of the company.
Director Nomination Process and Other Corporate Governance Matters
Director Qualifications
In evaluating director nominees, the nominating/corporate governance committee considers the
following factors:
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|
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personal and professional integrity, ethics and values; |
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|
experience in corporate management, such as serving as an officer or former officer of
a publicly held company; |
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|
|
experience in our industry and with relevant social policy concerns; |
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|
|
experience as a board member of another publicly held company; |
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diversity of expertise and experience in substantive matters pertaining to our business
relative to other board members; and |
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practical and mature business judgment. |
62
The nominating/corporate governance committees goal is to assemble a board of directors that
brings to our company a variety of perspectives and skills derived from high quality business and
professional experience.
Other than the foregoing, there are no stated minimum criteria for director nominees, although
the nominating/corporate governance committee may also consider such other factors as it may deem
to be in the best interests of our company and our stockholders. The nominating/corporate
governance committee does, however, believe it appropriate for at least one, and preferably,
several, members of our board of directors to meet the criteria for an audit committee financial
expert as defined by SEC rules, and that a majority of the members of our board of directors meet
the definition of independent director under the Nasdaq Stock Market qualification standards. The
nominating/corporate governance committee also believes it appropriate for our President and Chief
Executive Officer to serve as a member of our board of directors.
Identification and Evaluation of Nominees for Directors
The nominating/corporate governance committee identifies nominees for director by first
evaluating the current members of our board of directors willing to continue in service. Current
members with qualifications and skills that are consistent with the nominating/corporate governance
committees criteria for board service and who are willing to continue in service are considered
for re-nomination, balancing the value of continuity of service by existing members of our board of
directors with that of obtaining a new perspective.
If any member of our board of directors does not wish to continue in service or if our board
of directors decides not to re-nominate a member for re-election, the nominating/corporate
governance committee identifies the desired skills and experience of a new nominee in light of the
criteria above. The nominating/corporate governance committee generally polls our board of
directors and members of management for their recommendations. The nominating/corporate governance
committee may also review the composition and qualification of the boards of directors of our
competitors, and may seek input from industry experts or analysts. The nominating/corporate
governance committee reviews the qualifications, experience and background of the candidates. In
making its determinations, the nominating/corporate governance committee evaluates each individual
in the context of our board of directors as a whole, with the objective of assembling a group that
can best perpetuate the success of our company and represent stockholder interests through the
exercise of sound business judgment. After review and deliberation of all feedback and data, the
nominating/corporate governance committee makes its recommendation to our board of directors.
Historically, the nominating/corporate governance committee has not relied on third-party search
firms to identify director candidates. The nominating/corporate governance committee may in the
future choose to do so in those situations where particular qualifications are required or where
existing contacts are not sufficient to identify an appropriate candidate.
We have not received director candidate recommendations from our stockholders, and we do not
have a formal policy regarding consideration of such recommendations. However, any recommendations
received from stockholders will be evaluated in the same manner that potential nominees suggested
by board members, management or other parties are evaluated.
Board Leadership and Risk Oversight
We believe it is the chief executive officers responsibility to manage the company and the
chairmans responsibility to lead the board. As directors continue to have more oversight
responsibilities than ever before, we believe it is beneficial to have an independent chairman
whose sole job is leading the board. By having another director serve as chairman of the board, Mr.
Pascoe will be able to focus his entire energy on managing the company.
We believe our chief executive officer and our chairman have an excellent working relationship. By clearly delineating the role of the
chairman position in our corporate governance guidelines, we ensure there is no duplication of
effort between the chief executive officer and the chairman. We believe this provides strong
leadership for our board, while also positioning Mr. Pascoe as the leader of the company in the
eyes of our collaborators, vendors, employees and other stakeholders.
63
Our board has five independent members and three non-independent members. A number of our
independent board members are currently serving or have served as members of senior management of
other public companies and have served as directors of other public companies. We have three board
committees comprised solely of independent directors, each with a different independent director
serving as chair of the committee. We believe that the number of independent, experienced directors
that make up our board, along with the independent oversight of the board by the non-executive
chairman, benefits our company and our stockholders.
Our audit committee is primarily responsible for overseeing the companys risk management
processes on behalf of the full board. The audit committee receives reports from management at
least quarterly regarding the companys assessment of risks. In addition, the audit committee
reports regularly to the full board of directors, which also considers the companys risk profile.
The audit committee and the full board of directors focus on the most significant risks facing the
companys business and the companys general risk management strategy, and also ensure that risks
undertaken by the company are consistent with the boards appetite for risk. While the board
oversees the companys risk management, company management is responsible for day-to-day risk
management processes. We believe this division of responsibilities is the most effective approach
for addressing the risks facing our company and that our board leadership structure supports this
approach.
Pursuant to our bylaws and our corporate governance guidelines, our board determines the best
board leadership structure for our company from time to time. As part of our annual board
self-evaluation process, we evaluate our leadership structure to ensure that the board continues to
believe that it provides the optimal structure for our company and stockholders. We recognize that
different board leadership structures may be appropriate for companies in different situations. We
believe our current leadership structure, with Mr. Pascoe serving as chief executive officer and
Mr. Hale serving as chairman of the board, is the optimal structure for our company at this time.
Audit Committee and Financial Expert
Our audit committee currently consists of Mr. Mast (chair), Mr. Eagle, and Mr. von Emster,
each of whom our board of directors has determined is independent within the meaning of the
independent directors standards of the SEC and the Nasdaq Stock
Market, Inc. Our board of directors has determined that Mr. Mast qualifies as an audit committee
financial expert as that term is defined in the rules and
regulations established by the SEC.
Audit Committee Report
The audit committee oversees our financial reporting process on behalf of our board of
directors. Management has the primary responsibility for the financial statements and the reporting
process, including the systems of internal controls. In fulfilling its oversight responsibilities,
the audit committee reviewed the audited financial statements in our annual report with management,
including a discussion of any significant changes in the selection or application of accounting
principles, the reasonableness of significant judgments, the clarity of disclosures in the
financial statements and the effect of any new accounting initiatives.
The audit committee reviewed with PricewaterhouseCoopers LLP, who are responsible for
expressing an opinion on the conformity of these audited financial statements with generally
accepted accounting principles, their judgments as to the quality, not just the acceptability, of
our accounting principles and such other matters as are required to be discussed with the audit
committee under generally accepted auditing standards, including the matters required to be
discussed by Statement on Auditing Standards No. 61, as amended, Communication with Audit
Committees. In addition, the audit committee has discussed with PricewaterhouseCoopers LLP their
independence from management and our company, has received from PricewaterhouseCoopers LLP the
written disclosures and the letter required by the Public Company Accounting Oversight Board, Rule
3526 Communication with Audit Committees Concerning Independence, and has considered the
compatibility of non-audit services with the independence of our registered public accounting firm.
The audit committee met with PricewaterhouseCoopers LLP to discuss the overall scope of their
audit. The meetings with PricewaterhouseCoopers LLP were held, with and without management present,
to discuss the results of their examination, their comments on our internal controls and the
overall quality of our financial reporting.
64
Based on the reviews and discussions referred to above, the audit committee has recommended to
our board of directors that the audited financial statements be included in our annual report for
the year ended December 31, 2010.
This Audit Committee Report is furnished solely with this report, and is not filed with this
report, and shall not be deemed incorporated by reference into any other filing under the
Securities Act or the Exchange Act, whether made by us before or after the date hereof, regardless
of any general incorporation language in any such filing, except to the extent we specifically
incorporate this material by reference into any such filing.
The foregoing report has been furnished by the audit committee.
Erle T. Mast, Chairman
Michael L. Eagle
Kurt von Emster
Executive Officers
At March 3, 2011, our executive officers consisted of the following:
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|
|
|
|
|
Name |
|
Age |
|
|
Position with the Company |
Richard W. Pascoe |
|
47 |
|
|
President and Chief Executive Officer |
Tran B. Nguyen |
|
37 |
|
|
Senior Vice President and Chief Financial Officer |
Jeffrey W. Raser |
|
50 |
|
|
Senior Vice President, Chief Commercial Officer |
Brian T. Dorsey |
|
42 |
|
|
Senior Vice President, Technical Operations |
Matthew W. Onaitis |
|
40 |
|
|
Senior Vice President, General Counsel and Secretary |
See Board of Directors for the biography of Mr. Pascoe.
Tran B. Nguyen has served as our Vice President and Chief Financial Officer since April 2010
and as our Senior Vice President and Chief Financial Officer since February 2011. Mr. Nguyen brings
to the Company more than 10 years of finance experience primarily focused in the life science
industry. Previously, Mr. Nguyen was Vice President and Chief Financial Officer at Metabasis
Therapeutics, Inc., a biopharmaceutical company, where he was responsible for managing all finance
and accounting activities, and played a significant role in strategic and operating decisions from
March 2009 until the company was sold to Ligand Pharmaceuticals Incorporated in January 2010. Prior
to joining Metabasis, Mr. Nguyen was a Vice President in the Healthcare Investment Banking group at
Citi Global Markets, Inc. from May 2007 until January 2009, where he was responsible for senior and
junior relationship management of small-to-large-cap biotechnology and specialty pharma companies
on the West Coast. Mr. Nguyen served in the Healthcare Investment Banking group at Lehman Brothers,
Inc. as a Vice President from January 2006 until April 2007, and as an associate from July 2004
until December 2005 where he was responsible for executing various transactions including equity,
equity-linked, debt, and mergers and acquisitions for small-to-large-cap biotechnology and
specialty pharma companies. Mr. Nguyen received a B.A. in Economics and Psychology from Claremont
McKenna College, and an M.B.A. from the Anderson School of Management at U.C.L.A.
Jeffrey W. Raser is one of our co-founders and served as our Senior Vice President, Sales
and Marketing since our inception in August 2003 until April 2010, when Mr. Raser was named our
Senior Vice President, Chief Commercial Officer. From 2000 to 2003, Mr. Raser was the Senior Vice
President, Corporate Development and Marketing for CancerVax Corporation, a biopharmaceutical
company focused on the development of immunotherapeutic products for the treatment of cancer. Prior
to CancerVax, from 1998 to 2000 he served as Senior Vice President of Sales and Marketing for Women
First HealthCare, a specialty pharmaceutical company. Mr. Raser also held a variety of positions at
Roche Laboratories, a pharmaceutical company, in sales, marketing and strategic planning and at
Lederle Laboratories, a pharmaceutical company, in government and corporate affairs. Mr. Raser
holds a B.A. from Franklin and Marshall College.
65
Brian T. Dorsey joined us as Executive Director, Manufacturing and Program Management in March
2005. He was later promoted to Vice President, Manufacturing and Program Management in November
2006, named Vice
President, Product Development in January 2007 and named Senior Vice President, Technical
Operations in April 2010. From April 2002 to March 2005, Mr. Dorsey served as Head of Project
Management, Medical Writing and Library Services at Maxim Pharmaceuticals Inc., a biopharmaceutical
company. From May 2001 to April 2002, Mr. Dorsey served as Director, Head of Biopharmaceutical
Project Management at Baxter Bioscience, a division of Baxter Healthcare Corporation. Previously,
Mr. Dorsey served as a Global Project Leader / Project Director at Pfizer Global Research and
Development (Agouron). Mr. Dorsey received his B.S. in chemistry and his Masters degree in
executive leadership, both from the University of San Diego.
Matthew W. Onaitis joined us as Vice President, Legal Affairs and Secretary in May 2006. He
was later promoted to Vice President, General Counsel and Secretary in January 2007 and named
Senior Vice President, General Counsel and Secretary in April 2010. From January 2006 to May 2006,
Mr. Onaitis served as Associate General Counsel at Biogen Idec Inc., a biopharmaceutical company.
From June 2004 to December 2005, Mr. Onaitis was Director, Legal Affairs at Elan Corporation plc, a
biopharmaceutical company. Mr. Onaitis practiced corporate and
commercial law in private practice from 1998 to June 2004, which included a secondment to Elan from
October 2003 to June 2004. Mr. Onaitis holds a J.D. from
Stanford Law School and a B.S. in mechanical engineering from Carnegie Mellon University.
Section 16(a) Beneficial Ownership Reporting Compliance
Under Section 16(a) of the Exchange Act, directors, officers and beneficial owners of 10% or
more of our common stock are required to file with the SEC on a
timely basis initial reports of beneficial ownership and reports of changes regarding their
beneficial ownership of our common stock. Officers, directors and 10% beneficial owners are
required by SEC regulations to furnish us with copies of all Section
16(a) forms that they file.
Based solely on our review of the copies of such forms received and the written
representations from certain reporting persons, we have determined that no officer, director or 10%
beneficial owner known to us was delinquent with respect to their reporting obligations as set
forth in Section 16(a) of the Exchange Act during the fiscal year ended December 31, 2010, except
for one Form 4 by Mr. Dorsey that was one day late.
Code of Ethics
We have established a Code of Business Conduct and Ethics that applies to our officers,
directors and employees which is available on our internet website at www.somaxon.com. The
Code of Ethics contains general guidelines for conducting the business of our company consistent
with the highest standards of business ethics, and is intended to qualify as a code of ethics
within the meaning of Section 406 of the Sarbanes-Oxley Act of 2003 and Item 406 of Regulation S-K.
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Item 11. |
|
Executive Compensation |
Compensation Discussion and Analysis
Executive Summary
This Compensation Discussion and Analysis describes our overall compensation policies and
practices and specifically analyzes the total compensation for the following executive officers,
also referred to herein as our Named Executive Officers:
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Richard W. Pascoe, President, Chief Executive Officer and Director, |
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Tran B. Nguyen, Senior Vice President and Chief Financial Officer, |
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Jeffrey W. Raser, Senior Vice President and Chief Commercial Officer, |
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Brian T. Dorsey, Senior Vice President, Technical Operations, and |
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Matthew W. Onaitis, Senior Vice President and General Counsel. |
66
All of our compensation programs are designed to attract and retain key employees and to
motivate them to achieve key strategic performance measures to create long-term shareholder value.
With respect to the compensation of our Named Executive Officers, we believe that their
compensation should largely reflect their success as a management team in meeting key corporate
objectives, rather than as individual contributors. As a result, we believe that the performance of
the executives in managing our company, considered in light of general economic and specific
company, industry and competitive conditions, should be the main basis for determining their
overall compensation.
Our compensation program is designed to achieve these objectives through a combination of the
following types of compensation: base salary, performance-based cash bonus awards,
performance-based equity awards and time-based equity awards. Base salary is intended to provide a
baseline level of compensation for our Named Executive Officers. The remaining types of
compensation, which in the aggregate represent the majority of our Named Executive Officers total
compensation as shown in our Summary Compensation Table below, tie compensation directly to the
achievement of corporate objectives, increases in our stock price or both. Each element of our
executive compensation program is discussed in greater detail below.
We believe that the total compensation received by our Named Executive Officers relating to
2010 was appropriate when viewed in light of the following key corporate achievements during 2010:
|
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|
On March 17, 2010, the FDA approved our
NDA for Silenor for the treatment of insomnia
characterized by difficulty with sleep maintenance. |
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|
On March 31, 2010, we completed a public offering of common stock to fund the
commercialization of Silenor, the net proceeds from the sale of which, after
underwriting discounts and commissions and estimated offering expenses, were
approximately $52.7 million. |
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|
On August 25, 2010, we entered into a co-promotion agreement with P&G relating to
Silenor, which included a right of first negotiation for P&G
regarding OTC
rights to Silenor. |
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|
On September 20, 2010, full-scale, field-based promotion of Silenor began with the
deployment of our 110 contract sales representatives and P&Gs 105 sales
representatives, targeting approximately 35,000 physicians and 25,000 pharmacies across
the U.S. |
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|
In November 2010, we completed an additional public offering of common stock to fund
the commercialization of Silenor, the net proceeds of which, after underwriting
discounts and commissions and estimated offering expenses, were approximately $24.8
million. |
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|
Our stock price increased 192% from December 31, 2009 to December 31, 2010. |
Overview of Total Compensation and Process
Elements of total compensation for our Named Executive Officers include:
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base salary, which is initially negotiated with the executive when the executive
is hired and is reviewed by the compensation committee annually, |
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|
annual cash bonus awards, which reward annual company performance based on
pre-determined objectives, |
67
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|
performance-based equity awards, which reward company performance based on
pre-determined criteria for key corporate objectives, |
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time based equity awards, which reward company performance as reflected in its
stock price over time, and |
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other benefits, such as health insurance benefits. |
Each of these is described in more detail below.
The compensation committee has the primary authority to determine our companys compensation
philosophy and to establish compensation for our Named Executive Officers. Each year, generally in
the first quarter, the compensation committee, which consists entirely of independent members of
our board of directors, reviews the performance of each of our Named Executive Officers during the
previous year. In connection with this review, the compensation committee typically reviews and
resets base salaries for our Named Executive Officers, determines their annual cash bonuses
relating to prior year performance, approves elements of the incentive bonus plan for the current
year, including target bonuses and corporate objectives, and grants equity awards to our Named
Executive Officers and certain other eligible employees. The compensation committee also has the
discretion to make adjustments to executive compensation at other times during the year.
In making these compensation decisions, it has been the practice of our compensation committee
to review the historical levels of each element of each Named Executive Officers total
compensation (salary, bonus, equity awards and other benefits) and to compare each element with
that of the executive officers in an appropriate group of comparable specialty pharmaceutical
companies.
With respect to the compensation committees executive compensation review in early 2010, the
committee authorized management to engage Barney & Barney Compensation Consulting, or Barney &
Barney, to perform an assessment of our group of comparable specialty pharmaceutical companies. Our
management reviewed with Barney & Barney the comparison group that we used in 2009, and this review
resulted in a new comparison group for 2010 that possessed the following characteristics at the
time of selection:
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market capitalizations below $350 million, |
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most advanced product in Phase 2b or with a product approved or commercialized in
the last 24 months, |
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less than 175 employees, and |
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a reasonable expectation that we could compete with these companies to fill
senior management positions. |
The compensation committee then approved the companies comprising the comparison group. The
companies in the group were:
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Acadia Pharmaceuticals Inc.
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Neurocrine BioSciences, Inc. |
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Alexza Pharmaceuticals, Inc.
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NeurogesX, Inc. |
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ARIAD Pharmaceuticals, Inc.
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Orexigen Therapeutics, Inc. |
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Biocryst Pharmaceuticals Inc.
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Pain Therapeutics, Inc. |
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Bionovo Inc.
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Poniard Pharmaceuticals, Inc. |
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Cypress Bioscience Inc.
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Questcor Pharmaceuticals, Inc. |
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Dyax Corp.
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Telik, Inc. |
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Dynavax Technologies Corp.
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Transcept Pharmaceuticals Inc. |
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Ligand Pharmaceuticals, Inc.
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Trubion Pharmaceuticals, Inc. |
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MDRNA, Inc.
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Vanda Pharmaceuticals Inc. |
68
The changes made to the selection criteria for the 2010 comparison group reflected a desire on
the part of the compensation committee to include for their consideration on a forward-looking
basis, in advance of the commercialization of Silenor, a small number of companies having
commercial operations. The committee reviewed compensation information relating to this sub-group
both separately and as part of the entire comparison group, in each case in light of the companys
status with respect to commercialization efforts, in connection with determining 2010 compensation.
Barney & Barney compiled competitive executive compensation information from each of the
companies in this comparison group for the compensation committee to review and analyze in making
executive compensation decisions during 2010.
With respect to the compensation committees executive compensation review in early 2011, the
committee authorized management to engage Barney & Barney to perform another assessment of our
group of comparable specialty pharmaceutical companies. Our management reviewed with Barney &
Barney the comparison group that we used in 2010, and this review resulted in a new comparison
group for 2011 that possessed the following characteristics at the time of selection:
|
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market capitalizations between $100 and $500 million, |
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most advanced product in a pivotal clinical trial, NDA filed, FDA approved but
awaiting launch, or marketed, |
|
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less than 250 employees, and |
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a reasonable expectation that we could compete with these companies to fill
senior management positions. |
The compensation committee then approved the companies comprising the comparison group. The
companies in the group were:
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Affymax Inc.
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Ligand Pharmaceuticals, Inc. |
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Allos Therapeutics, Inc.
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MAP Pharmaceuticas, Inc. |
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Arena Pharmaceuticals, Inc.
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Neurocrine Biosciences, Inc. |
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Avanir Pharmaceuticals, Inc.
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Neurogesx Inc. |
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Biocryst Pharmaceuticals, Inc.
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Optimer Pharmaceuticals, Inc. |
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Cadence Pharmaceuticals Inc.
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Orexigen Therapeutics, Inc. |
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Columbia Laboratories Inc.
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Pain Therapeutics, Inc. |
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Cornerstone Therapeutics, Inc.
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Santarus, Inc. |
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Dyax Corp.
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Spectrum Pharmaceuticals, Inc. |
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Dynavax Technologies Corp.
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Sunesis Pharmaceuticals, Inc. |
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GTX Inc.
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Transcept Pharmaceuticals, Inc. |
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Idenix Pharmaceuticals, Inc.
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Vanda Pharmaceuticals, Inc. |
69
The changes made to the selection criteria for the 2011 comparison group reflect a desire on
the part of the compensation committee to include additional companies having commercial operations
as a result of the launch of Silenor. The committee intends to review compensation information
relating to this sub-group both separately and as part of the entire comparison group, in each case
in light of the companys status with respect to commercialization efforts, in considering future
compensation determinations.
Barney & Barney compiled competitive executive compensation information from each of the
companies in this comparison group for the compensation committee to review and analyze in making
executive compensation decisions during 2011.
With respect to Named Executive Officers for which the publicly available competitive
information from the comparison group was not sufficient to provide meaningful analysis in 2010 and
2011, Barney & Barney provided the compensation committee with competitive information relating to
such officers positions from one or more executive compensation surveys.
With respect to survey data not relating to our comparison groups that was reviewed by the
compensation committee in 2010 and 2011, the identities of the individual companies included in the
surveys were not provided to the compensation committee, and the compensation committee did not
refer to individual compensation information for such companies. Instead, the compensation
committee only referred to statistical summaries of such surveys.
While we believe that comparisons to market data are a useful tool, we do not believe that it
is appropriate to establish executive compensation levels based solely on a comparison to
competitive data. While compensation paid by other companies is a factor that the compensation
committee considers in assessing the reasonableness of compensation, the compensation committee
does not rely entirely on that data to determine executive officer compensation. Instead, the
compensation committee incorporates flexibility into our compensation programs and in the
assessment process to respond to and adjust for the evolving business environment. As a result of
this approach, there are no comparative guidelines, such as percentiles, used by our compensation
committee in making compensation determinations relative to the compensation data from our
comparison group. In addition, the compensation committee has discretion to make stock awards to
executive officers that are outside of the ranges in previously-approved stock option grant
guidelines. Our compensation committee relies upon the judgment of its members in making executive
compensation decisions, after reviewing the following factors:
|
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our performance against corporate objectives for the previous year, |
|
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difficulty in achieving desired results in the previous year and the current
year, |
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the value of the executives unique leadership and other skills and capabilities to
support our long-term performance, |
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historical compensation versus performance, |
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status relative to similarly-situated executives from our comparison group or
from compensation surveys, |
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the executives performance generally, including against individual objectives,
if any, for the previous year, and |
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the impact that any compensation awards that are payable in cash would have on
our cash position. |
The data regarding the compensation history and the relevant comparison group for each Named
Executive Officer are provided to our Chief Executive Officer, the Chairman of the Board and the
compensation committee. Our Chief Executive Officer then makes compensation recommendations to the
compensation committee with respect to the executive officers who report to him. Our Chairman of
the Board makes compensation recommendations to the compensation committee with respect to the
Chief Executive Officer. The compensation committee considers, but is not bound to accept, these
recommendations with respect to executive officer compensation. No executive officer is present at
the time that his or her compensation is being discussed or determined.
70
Our policy for allocating between long-term and currently paid compensation is to ensure
adequate base compensation to attract and retain personnel, while providing incentives to maximize
long-term value for our company and our stockholders. A significant percentage of total
compensation is allocated to incentive compensation as a result of
this philosophy.
We have no pre-established policy or target for the allocation between either cash and non-cash or
short-term and long-term incentive compensation. Rather, the compensation committee reviews
historical and competitive information and applies its judgment in light of the companys
then-current circumstances regarding current and long-term goals to determine the appropriate level
and mix of incentive compensation.
Elements of Executive Compensation
Summary Compensation Table
The following Summary Compensation Table summarizes the compensation received by the Named
Executive Officers in the fiscal years ended December 31, 2010, 2009 and 2008. This table provides
an all-inclusive presentation of the various cash and non-cash elements that comprise total
compensation for each of the Named Executive Officers. Except as set forth below, no Named
Executive Officer earned any pension or other nonqualified deferred compensation, or perquisites
exceeding $10,000 during 2010, 2009 or 2008.
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Non-Equity |
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Salary |
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Bonus |
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Stock |
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Option |
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Incentive Plan |
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All Other |
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Name and Principal Position |
|
Year |
|
|
($) |
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|
($) (1) |
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Awards ($) (2) |
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Awards ($) (3) |
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Compensation ($) (4) |
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Compensation ($) |
|
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Total ($) |
|
Richard W. Pascoe,
President, Chief Executive
Officer and Director (5) |
|
|
2010 |
|
|
$ |
456,250 |
|
|
$ |
112,050 |
|
|
$ |
429,500 |
|
|
$ |
1,283,536 |
|
|
$ |
209,875 |
|
|
$ |
|
|
|
$ |
2,491,211 |
|
|
|
2009 |
|
|
$ |
415,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
1,461,045 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
1,876,045 |
|
|
|
2008 |
|
|
$ |
163,484 |
|
|
$ |
|
|
|
$ |
24,200 |
|
|
$ |
1,313,800 |
|
|
$ |
|
|
|
$ |
206,845 |
|
|
$ |
1,708,329 |
|
|
|
|
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|
|
|
|
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|
|
|
|
|
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Tran B. Nguyen, Senior
Vice President and Chief
Financial Officer (6) |
|
|
2010 |
|
|
$ |
206,193 |
|
|
$ |
|
|
|
$ |
206,500 |
|
|
$ |
1,234,226 |
|
|
$ |
66,394 |
|
|
$ |
42,163 |
|
|
$ |
1,755,476 |
|
|
|
|
|
|
|
|
|
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|
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|
|
|
|
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|
|
|
|
|
|
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Jeffrey W. Raser, Senior
Vice President and Chief
Commercial Officer |
|
|
2010 |
|
|
$ |
300,038 |
|
|
$ |
56,732 |
|
|
$ |
343,600 |
|
|
$ |
962,652 |
|
|
$ |
96,612 |
|
|
$ |
|
|
|
$ |
1,759,634 |
|
|
|
2009 |
|
|
$ |
270,150 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
831,989 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
1,102,139 |
|
|
|
2008 |
|
|
$ |
268,484 |
|
|
$ |
38,588 |
|
|
$ |
15,125 |
|
|
$ |
293,166 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
615,363 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
Brian T. Dorsey, Senior
Vice President, Technical
Operations |
|
|
2010 |
|
|
$ |
284,500 |
|
|
$ |
53,130 |
|
|
$ |
257,700 |
|
|
$ |
641,768 |
|
|
$ |
91,609 |
|
|
$ |
|
|
|
$ |
1,328,707 |
|
|
|
2009 |
|
|
$ |
253,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
786,025 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
1,039,025 |
|
|
|
2008 |
|
|
$ |
250,029 |
|
|
$ |
34,500 |
|
|
$ |
15,125 |
|
|
$ |
244,305 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
543,959 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
Matthew W. Onaitis, Senior
Vice President and General
Counsel |
|
|
2010 |
|
|
$ |
280,313 |
|
|
$ |
49,613 |
|
|
$ |
257,700 |
|
|
$ |
641,768 |
|
|
$ |
90,261 |
|
|
$ |
|
|
|
$ |
1,319,655 |
|
|
|
2009 |
|
|
$ |
236,250 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
957,609 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
1,193,859 |
|
|
|
2008 |
|
|
$ |
234,797 |
|
|
$ |
33,750 |
|
|
$ |
15,125 |
|
|
$ |
244,305 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
527,977 |
|
|
|
|
(1) |
|
Amounts listed under the Bonus column for 2010 reflect the discretionary bonuses paid to
each of the Named Executive Officers in April 2010. Amounts listed under the Bonus column
for 2008 reflect the amounts paid to each of the Named Executive Officers in April 2008
related to the acceptance by the FDA of our NDA for Silenor. |
|
(2) |
|
The Stock Awards column is the grant date fair value of stock awards issued during each
respective year, adjusted where applicable for our assessment of the probability that
performance conditions will be achieved. The grant date fair value was determined in
accordance with the provisions of FASB ASC Topic 718. For information about the assumptions
used in the calculation of grant date fair value, see the notes to our audited financial
statements included in this report. The RSUs with performance conditions granted during 2010
were considered probable of achieving their vesting conditions at the date of grant and the
full grant date fair value of such RSUs is included in the Stock Awards column above. The
stock awards with performance conditions granted during 2008 and 2009 were not considered
probable of achieving their vesting conditions at the date of grant. Therefore the grant date
fair value of such performance awards for purposes of the Summary Compensation Table was zero.
The full grant date fair value of all stock awards granted during 2008 and 2009 which vested
upon achieving performance conditions is, however, provided in the table following the
footnotes to this Summary Compensation Table. |
71
|
|
|
(3) |
|
The Option Awards column is the grant date fair value of stock options granted during each
respective year, adjusted where applicable for our assessment of the probability that
performance conditions will be achieved.
The grant date fair value was determined in accordance with the provisions of FASB ASC Topic 718
using the Black-Scholes valuation model with assumptions described in more detail in the notes
to our audited financial statements included in this report. None of the stock options with
performance conditions that were granted in 2009 and 2008 were considered probable of achieving
their vesting conditions at the date of grant. Therefore the grant date fair value of such
performance awards for purposes of the Summary Compensation Table was zero. No
performance-based stock options were granted during 2010. The full grant date fair value of
stock options which vested upon achieving performance conditions is, however, provided in the
table following the footnotes to the Summary Compensation Table. Amounts included in the
Option Awards column for 2009 include the fair value of replacement awards granted in our
stock option exchange program which was completed in June 2009. The fair value of the
replacement awards granted in the stock option exchange program is the sum of the unrecognized
expense from the original award at the time of the exchange, plus the incremental value from the
replacement award. The incremental value is the difference between the fair value of the
replacement award and the fair value of the original award at the time of exchange. |
|
(4) |
|
Amounts reflect the bonuses earned during 2010 under our 2010 Incentive Plan. Such bonuses
were paid in February 2011. |
|
(5) |
|
Mr. Pascoe became our President and Chief Executive Officer in August 2009. Amounts included
in All Other Compensation reflect the sum of: (a) a $25,000 signing bonus paid at the time
Mr. Pascoe joined us, plus the gross-up for taxes of $18,668 on such signing bonus, and (b)
amounts reimbursed to Mr. Pascoe of $102,276 incurred in connection with his relocation to San
Diego, California from Massachusetts, plus $60,901 for the gross-up for taxes on these
reimbursed expenses to the extent such amounts were taxable. Amounts reimbursed for his
relocation include reimbursement for temporary living expenses in San Diego, reasonable
expenses relating to the sale of Mr. Pascoes home in Massachusetts, closing costs associated
with the purchase of a primary residence in San Diego and moving of household goods. |
|
(6) |
|
Mr. Nguyen became our Vice President and Chief Financial Officer in April, 2010, and Mr.
Nguyen was promoted to Senior Vice President and Chief Financial Officer in February 2011.
Amounts included in All Other Compensation reflect amounts reimbursed to Mr. Nguyen of
$34,672 incurred in connection with his relocation to San Diego, California from San Mateo,
California, plus $7,491 for the gross-up for taxes on these reimbursed expenses to the extent
such amounts were taxable. Amounts reimbursed for his relocation include reimbursement for
temporary living expenses in San Diego and moving of household goods. |
The following table provides the full grant date fair values for all share-based awards that
were excluded from the Summary Compensation Table (see footnotes 2 and 3 above) that were granted
with performance-based vesting conditions, assuming that the highest level of performance would be
achieved in each case.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Grant Date |
|
|
|
|
|
|
Grant Date |
|
|
Option |
|
|
|
|
|
|
|
Fair Value |
|
|
Stock Award |
|
|
Fair Value |
|
|
Award |
|
|
|
|
|
|
|
of Stock |
|
|
Vesting |
|
|
of Option |
|
|
Vesting |
|
Name |
|
Year |
|
|
Awards $ (1) |
|
|
Conditions |
|
|
Awards (2) |
|
|
Conditions |
|
Richard W. Pascoe |
|
|
2010 |
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
2009 |
|
|
$ |
100,001 |
(3) |
|
|
|
|
|
$ |
119,947 |
(4) |
|
|
|
|
|
|
|
2008 |
|
|
$ |
228,400 |
(5) |
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tran B. Nguyen |
|
|
2010 |
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jeffrey W. Raser |
|
|
2010 |
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
2009 |
|
|
$ |
47,219 |
(3) |
|
|
|
|
|
$ |
79,965 |
(4) |
|
|
|
|
|
|
|
2008 |
|
|
$ |
30,250 |
(5) |
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Brian T. Dorsey |
|
|
2010 |
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
2009 |
|
|
$ |
43,864 |
(3) |
|
|
|
|
|
$ |
79,965 |
(4) |
|
|
|
|
|
|
|
2008 |
|
|
$ |
30,250 |
(5) |
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Matthew W. Onaitis |
|
|
2010 |
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
2009 |
|
|
$ |
41,089 |
(3) |
|
|
|
|
|
$ |
79,965 |
(4) |
|
|
|
|
|
|
|
2008 |
|
|
$ |
30,250 |
(5) |
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
(1) |
|
The Grant Date Fair Value of Stock Awards is based on the closing stock price of our
common stock on the date of grant and is determined in accordance with the provisions of FASB
ASC Topic 718. For information about the assumptions used in the calculation of grant date
fair value, see the notes to our audited financial statements included in this report. |
72
|
|
|
(2) |
|
The Grant Date Fair Value of Option Awards is the grant date fair value of stock options
granted during each respective year. The grant date fair value was determined in accordance
with the provisions of FASB ASC Topic 718 using the Black-Scholes valuation model with
assumptions described in more detail in the notes to our audited financial statements included
in this report. |
|
(3) |
|
Amounts reflect the value of RSUs which would have vested upon completion of financing
activities resulting in at least $25 million of non-restricted cash proceeds by December 31,
2009. This financing goal was not achieved, and all of the listed stock awards granted during
2009 were subsequently forfeited. |
|
(4) |
|
Amounts reflect the value of stock options of which 50% vested upon FDA approval of the
Silenor NDA and 50% vested upon the completion of a strategic relationship with regards to the
commercialization of Silenor. |
|
(5) |
|
Amounts reflect the value of RSUs of which 50% vested upon FDA approval of the Silenor NDA
and 50% vested in connection with the first commercial sale of Silenor in the United States. |
Base Salary
Base salary is intended to provide a baseline of compensation that does not fluctuate, absent
merit-based increases. As a general matter, the base salary for each Named Executive Officer is
initially established through negotiation at the time the officer is hired, taking into account the
officers qualifications, experience, prior salary and competitive salary information. Each of our
Named Executive Officers has entered into an employment agreement with us that prohibits the
compensation committee from decreasing his base salary as part of this annual review process.
Each year, the compensation committee reviews the base salary levels of each of the Named
Executive Officers, which includes an analysis of the prior years individual and corporate
performance, historical compensation awards, our budget for merit increases, anticipated
contribution to the current years corporate goals and comparisons to data from the companies in
our comparison group and compensation surveys, if applicable, with respect to each such executive
officer. Salaries are also reviewed in the case of promotions or other significant changes in
responsibilities.
In April 2010, following approval of the NDA for Silenor, the compensation committee
determined to increase salaries based on the criteria set forth above. In February 2011, the
compensation committee again determined to increase salaries based on the criteria set forth above.
The base salaries for each of 2010 and 2011 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Base Salary |
|
Named Executive Officer |
|
2009 |
|
|
2010 |
|
|
2011 |
|
Richard W. Pascoe |
|
$ |
415,000 |
|
|
$ |
470,000 |
|
|
$ |
484,100 |
|
Tran B. Nguyen |
|
$ |
|
|
|
$ |
285,000 |
|
|
$ |
303,850 |
|
Jeffrey W. Raser |
|
$ |
270,150 |
|
|
$ |
310,000 |
|
|
$ |
319,300 |
|
Brian T. Dorsey |
|
$ |
253,000 |
|
|
$ |
295,000 |
|
|
$ |
303,850 |
|
Matthew W. Onaitis |
|
$ |
236,250 |
|
|
$ |
295,000 |
|
|
$ |
303,850 |
|
The percentage increase in base salaries for our Named Executive Officers from 2009 to 2010
ranged from 13% to 16% and reflected the compensation committees acknowledgement that the Named
Executive Officers did not receive a base salary adjustment during 2009 due to the companys
then-current cash position. As a result, following the FDAs approval of our NDA for Silenor, the
compensation committee, after reviewing comparable company information provided by our compensation
consultant and the individual contributions of our Named Executive Officers during 2009, determined
to approve the foregoing increases.
The percentage increase in base salaries for each of Messrs. Pascoe, Raser, Dorsey and Onaitis
from 2010 to 2011 was 3%, reflecting the compensation committees determination that the base
salaries for these Named Executive Officers were generally appropriate, subject to a merit increase
that is consistent with industry averages
provided by our compensation consultant. Mr. Nguyens base salary increased 6.6% from 2010 to
2011, reflecting an increase as a result of his promotion in February 2011 to Senior Vice President
and Chief Financial Officer.
73
Bonus Awards
It is the compensation committees objective to have a significant percentage of each Named
Executive Officers total compensation be contingent upon our performance and his contribution
toward our performance. This allows our Named Executive Officers to receive bonus compensation in
the event certain specified corporate performance objectives are achieved.
2010 Discretionary Bonuses. While the compensation committee established a formal incentive
plan for 2009, due to the delay in the approval by the FDA of our NDA for Silenor, none of the
corporate objectives under the 2009 bonus program were achieved during 2009. However, in light of
the approval of Silenor in March 2010, the completion of a financing in March 2010 to fund
commercialization activities for Silenor and the efforts of the Named Executive Officers in
achieving these important corporate objectives, the compensation committee determined that some
form of cash bonus compensation was appropriate. As a result, in April 2010, as part of the
compensation committees annual review of the compensation levels of our Named Executive Officers,
the compensation committee approved the discretionary bonuses to be paid to our executive officers
that are listed in the Summary Compensation Table above.
2010 Incentive Plan. Also in April 2010, our compensation committee adopted the 2010
Incentive Plan. This plan was designed to reward our Named Executive Officers for the achievement
of annual performance goals during 2010. Pursuant to the 2010 Incentive Plan, the Named Executive
Officers were eligible to receive bonuses ranging from zero to 150% of their target bonuses based
entirely on the achievement of corporate performance goals. For 2010, the target bonus percentage
for our Chief Executive Officer was 50% of his base salary, and the target bonus percentage for
each other Named Executive Officer was 35% of his base salary. Our 2010 corporate performance
goals were established by our board of directors and included objectives relating to: (1)
establishing a strategic collaboration regarding Silenor, which was weighted at 40% of our overall
strategic objectives, (2) our financing activities, which was weighted at 20% of our overall
strategic objectives, and (3) commercializing Silenor, which was weighted at 40% of our overall
strategic objectives.
With respect to establishing a strategic collaboration regarding Silenor, our goal was to
complete a collaboration approved by our board of directors by the end of 2010. Our financial
objectives primarily related to completing one or more financings in 2010 to generate sufficient
cash to meet our cash needs for the initial commercialization of Silenor. Our objective relating
to commercializing Silenor was primarily to establish a commercial organization, commercially
launch Silenor and generate prescriptions.
With respect to our corporate goals, under the 2010 Incentive Plan, our compensation committee
places performance into one of four categories: excellent in view of prevailing conditions,
acceptable in view of prevailing conditions, meeting some but not all objectives, or not acceptable
in view of prevailing conditions. Each of these categorizations results in a range of multipliers
to the target amount of the bonus. The compensation committee has discretion with respect to the
actual multiplier to apply in each case. For 2010, the ranges were 75% to 150% for excellent
performance, 50% to 75% for acceptable performance, 25% to 50% for performance meeting some but not
all objectives and 0% for unacceptable performance. The primary factor in the determination of the
bonus is the achievement of corporate objectives, but the compensation committee may also take
other factors into account, such as individual contribution to corporate goals, historical
compensation awards, anticipated contribution to future corporate goals and the impact that the
payment of bonuses in cash would have on our cash position. As a result, the ultimate payment of
bonuses is within the subjective discretion of our compensation committee, notwithstanding
performance relating to pre-established corporate objectives.
In February 2011, the compensation committee undertook its annual review of the compensation
levels and performance of the company and each of the Named Executive Officers. In connection with
this process, the committee assessed our overall performance and determined that we met our
corporate objectives at the 92% level. This was based upon the determinations of the committee
that each of our corporate goals relating to a strategic partnership relating to Silenor and
financing activities were met at the 100% level, and our corporate goal relating to
the commercialization of Silenor was met at the 80% level. Based upon this analysis, the
compensation committee granted bonuses pursuant to the 2010 Incentive Plan as listed in the Summary
Compensation Table above.
74
In February 2011, our compensation committee adopted the 2011 Incentive Plan. This plan is
designed to reward our Named Executive Officers for the achievement of annual performance goals.
Pursuant to the 2011 Incentive Plan, the Named Executive Officers are eligible to receive bonuses
ranging from zero to 150% of their target bonuses based entirely on the achievement of corporate
performance goals. For 2011, the target bonus percentage for our Chief Executive Officer was
increased to 55% of his base salary, and the target bonus percentage for each other Named Executive
Officer was increased to 40% of his base salary. Our 2011 corporate performance goals were
established by our board of directors and include objectives relating to: (1) the commercial
success of Silenor, (2) securing an additional product candidate, (3) extending the Silenor
franchise, and (4) effectively managing corporate resources.
Equity-Based Awards
We generally provide equity-based incentive award compensation to our Named Executive Officers
through grants of stock options and RSUs. We have also previously
awarded restricted stock to our Named Executive Officers. Stock awards allow us to:
|
|
|
enhance the link between the creation of stockholder value and long-term
executive incentive compensation, |
|
|
|
provide an opportunity for increased equity ownership by executives, and |
|
|
|
maintain competitive levels of total compensation. |
Stock award grant levels are determined based on market data and vary among the Named
Executive Officers based on their positions and performance. Newly hired or promoted Named
Executive Officers also typically receive stock option grants in connection with those events. We
have guidelines that provide ranges of options to be granted to our employees, including our Named
Executive Officers, based on their positions and whether the grants are being made in connection
with hiring or on a performance basis thereafter. These guidelines were adopted by our compensation
committee after considering recommendations provided by our independent compensation consultant
that were based upon option grant data from our comparison group and the statistical summaries of
compensation data presented to them based on available surveys. Our compensation committee
considers the ranges contained in our guidelines in making determinations regarding the size of
option grants, but it is not bound to comply with these ranges.
In making determinations relating to the size of equity awards, the compensation committee
takes into account a number of factors, such as the relative performance of the executive,
individual scope of duties, the value of existing long-term incentive awards, prior contributions
to company performance, the importance to the company of anticipated future performance, the size
of prior grants and competitive market data. Based upon these factors, the compensation committee
determines the size of equity awards at levels it considers appropriate to create a meaningful
opportunity for reward predicated on the creation of long-term stockholder value.
In addition, the board of directors has implemented a policy regarding the grant of equity
awards. With respect to equity awards that may be granted to our Named Executive Officers, this
policy provides that:
|
|
|
equity awards may be granted only at meetings of the compensation committee or
the board of directors, |
|
|
|
the grant date shall be the date that the meeting approving the equity award was
held, or if later, the date of commencement of employment of a newly-hired executive
officer, |
|
|
|
the exercise price of a stock option may not be less than the fair market value
of a share of our common stock on the grant date, |
75
|
|
|
grants of equity awards to executive officers shall not be permitted if the
compensation committee determines that at the time of grant its members are in
possession of material, non-public information concerning the company, and |
|
|
|
the material terms of each equity award are communicated to the executive officer
in a timely manner. |
The policy also provides that equity awards can be granted outside the terms of the policy in
the event of unique circumstances or when time is of the essence, but that we shall not have any
program, plan or practice to coordinate the timing of equity awards with the release by us of
material non-public information or any other investor relations activities.
The stock options that have been granted to our executive officers typically have a ten year
term and vest over four years, with 25% vesting after one year and the remainder vesting in equal
monthly installments over the subsequent three years. Prior to the exercise of an option, the
holder has no rights as a stockholder with respect to the shares subject to such option, including
voting rights and the right to receive dividends or dividend equivalents.
We do not have any security ownership requirements for our executive officers.
In April 2010, in connection with its annual review of the compensation levels and performance
of the company and our Named Executive Officers, the compensation committee granted RSUs and stock
options to each of our executive officers. These RSUs and options are listed in the Grants of
Plan-Based Awards table below. The awards of the options and RSUs to the Named Executive Officers
in April 2010 reflected a desire on the part of the compensation committee to motivate the Named
Executive Officers to drive the creation of stockholder value, and the vesting schedules of the
awards generally were intended to provide incentive for the Named Executive Officers to maintain
their employment with the company. The performance based vesting trigger on the RSUs was intended
to motivate the Named Executive Officers to effectuate the commercial launch of Silenor in a timely
manner.
In February 2011, in connection with its annual review of the compensation levels and
performance of the company and our Named Executive Officers, on February 18, 2011, the compensation
committee approved awards of stock options to the Named Executive Officers, which stock option
awards will be granted effective March 7, 2011. The exercise price per share of such stock options
will be the closing price per share of our common stock on March 7, 2011. The number of
stock options to be received by each Named Executive Officer is as follows:
|
|
|
|
|
|
|
Number of Stock |
|
Named Executive Officer |
|
Options Received |
|
Richard W. Pascoe |
|
|
250,000 |
|
Tran B. Nguyen |
|
|
100,000 |
|
Jeffrey W. Raser |
|
|
100,000 |
|
Brian T. Dorsey |
|
|
100,000 |
|
Matthew W. Onaitis |
|
|
100,000 |
|
All of such stock options will vest based on our standard four-year vesting schedule described
above.
Also in February 2011, the compensation committee approved two sets of RSU awards to each of
our Named Executive Officers, which RSU awards will be awarded effective March 7, 2011. One set of
RSUs will be subject to time-based vesting and will vest as follows: one third of such RSUs will
vest on December 31, 2011, another one third of such RSUs will vest on December 31, 2012 and the
remaining one-third of such RSUs will vest on December 31, 2013. The number of such time-based
RSUs to be received by each Named Executive Officer is as follows:
|
|
|
|
|
|
|
Number of RSUs |
|
Named Executive Officer |
|
Received |
|
Richard W. Pascoe |
|
|
75,000 |
|
Tran B. Nguyen |
|
|
30,000 |
|
Jeffrey W. Raser |
|
|
30,000 |
|
Brian T. Dorsey |
|
|
30,000 |
|
Matthew W. Onaitis |
|
|
30,000 |
|
76
The second set of RSUs will be subject to performance-based vesting and will vest during the
first quarter of 2012 on the second business day following the public release of our audited
financial statements for the fiscal year ended December 31, 2011, subject to attainment of certain
corporate performance objectives during 2011. The number of such performance-based RSUs to be
received by each Named Executive Officer is as follows:
|
|
|
|
|
|
|
Number of RSUs |
|
Named Executive Officer |
|
Received |
|
Richard W. Pascoe |
|
|
50,000 |
|
Tran B. Nguyen |
|
|
50,000 |
|
Jeffrey W. Raser |
|
|
50,000 |
|
Brian T. Dorsey |
|
|
50,000 |
|
Matthew W. Onaitis |
|
|
50,000 |
|
The awards of the options and RSUs to the Named Executive Officers in February 2011 reflect a
desire on the part of the compensation committee to motivate the Named Executive Officers to drive
the creation of stockholder value, and the vesting schedules of the
awards are intended to provide
incentive for the Named Executive Officers to maintain their employment with the company. In
addition, the awards of the performance-based RSUs reflect a desire on the part of the compensation
committee to provide incentive for the Named Executive Officers to cause us to achieve key
corporate objectives.
For a description of the change of control provisions applicable to the stock awards granted
to our Named Executive Officers, see Severance Benefits and Change of Control Arrangements below.
77
Outstanding Equity Awards at Fiscal Year End
The following table summarizes the outstanding stock options and RSUs as of December 31, 2010
held by our Named Executive Officers.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards |
|
|
Stock Awards |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity |
|
|
Equity |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive Plan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive Plan |
|
|
Incentive Plan |
|
|
|
|
|
|
|
Number of |
|
|
Number of |
|
|
Awards: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards: |
|
|
Awards: |
|
|
|
|
|
|
|
Securities |
|
|
Securities |
|
|
Number of |
|
|
|
|
|
|
|
|
|
|
Number of |
|
|
|
|
|
|
Number of |
|
|
Market or Payout |
|
|
|
|
|
|
|
Underlying |
|
|
Underlying |
|
|
Securities |
|
|
|
|
|
|
|
|
|
|
Shares or |
|
|
Market |
|
|
Unearned Shares, |
|
|
Value of Unearned |
|
|
|
|
|
|
|
Unexercised |
|
|
Unexercised |
|
|
Underlying |
|
|
|
|
|
|
|
|
|
|
Units of |
|
|
Value of |
|
|
Units or Other |
|
|
Shares, Units or |
|
|
|
|
|
|
|
Options (# |
|
|
Options (# |
|
|
Unexercised |
|
|
|
|
|
|
Option |
|
|
Stock that |
|
|
Stock that |
|
|
Rights that |
|
|
Other Rights |
|
|
|
Award |
|
|
Exercisable) |
|
|
Unexercisable) |
|
|
Unearned |
|
|
Option Exercise |
|
|
Expiration |
|
|
Have Not |
|
|
Has Not |
|
|
Have not |
|
|
that Have |
|
Name |
|
Grant Date |
|
|
(1) |
|
|
(1) |
|
|
Options (#) |
|
|
Price ($/Share) |
|
|
Date |
|
|
Vested (#)(2) |
|
|
Vested ($)(3) |
|
|
Vested (#) |
|
|
not Vested ($) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Richard W. Pascoe |
|
|
6/9/2009 |
(4) |
|
|
171,110 |
|
|
|
72,223 |
|
|
|
|
|
|
$ |
1.23 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7/16/2009 |
(5) |
|
|
150,000 |
|
|
|
|
|
|
|
|
|
|
$ |
1.17 |
|
|
|
7/15/2019 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
200,000 |
|
|
|
|
|
|
$ |
8.59 |
|
|
|
3/31/2020 |
|
|
|
33,334 |
|
|
|
105,002 |
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
321,110 |
|
|
|
272,223 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33,334 |
|
|
$ |
105,002 |
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tran B. Nguyen |
|
|
4/12/2010 |
|
|
|
|
|
|
|
200,000 |
|
|
|
|
|
|
$ |
8.26 |
|
|
|
4/11/2020 |
|
|
|
25,000 |
|
|
$ |
78,750 |
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jeffrey W. Raser |
|
|
3/2/2005 |
|
|
|
7,500 |
|
|
|
|
|
|
|
|
|
|
$ |
2.40 |
|
|
|
3/1/2015 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7/19/2005 |
|
|
|
83,333 |
|
|
|
|
|
|
|
|
|
|
$ |
3.00 |
|
|
|
7/18/2015 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6/9/2009 |
(4) |
|
|
97,665 |
|
|
|
36,334 |
|
|
|
|
|
|
$ |
1.23 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7/16/2009 |
(5) |
|
|
60,000 |
|
|
|
|
|
|
|
|
|
|
$ |
1.17 |
|
|
|
7/15/2019 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
150,000 |
|
|
|
|
|
|
$ |
8.59 |
|
|
|
3/31/2020 |
|
|
|
26,667 |
|
|
|
84,001 |
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
248,498 |
|
|
|
186,334 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
26,667 |
|
|
$ |
84,001 |
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Brian T. Dorsey |
|
|
6/9/2009 |
(4) |
|
|
42,087 |
|
|
|
32,621 |
|
|
|
|
|
|
$ |
1.23 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7/16/2009 |
(5) |
|
|
100,000 |
|
|
|
|
|
|
|
|
|
|
$ |
1.17 |
|
|
|
7/15/2019 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
100,000 |
|
|
|
|
|
|
$ |
8.59 |
|
|
|
3/31/2020 |
|
|
|
20,000 |
|
|
|
63,000 |
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
142,087 |
|
|
|
132,621 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000 |
|
|
$ |
63,000 |
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Matthew W. Onaitis |
|
|
6/9/2009 |
(4) |
|
|
51,209 |
|
|
|
34,136 |
|
|
|
|
|
|
$ |
1.23 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7/16/2009 |
(5) |
|
|
100,000 |
|
|
|
|
|
|
|
|
|
|
$ |
1.17 |
|
|
|
7/15/2019 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
100,000 |
|
|
|
|
|
|
$ |
8.59 |
|
|
|
3/21/2020 |
|
|
|
20,000 |
|
|
|
63,000 |
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
151,209 |
|
|
|
134,136 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000 |
|
|
$ |
63,000 |
|
|
|
|
|
|
$ |
|
|
|
|
|
(1) |
|
Except as described under footnotes 4 and 5 below, all of the stock options in this column vest such that
25% are vested one year after the vesting commencement date and 1/48th vest on the first
day of each calendar month thereafter until all options are fully vested on the first day of the
48th month after grant. |
|
(2) |
|
Except for Mr. Nguyen, stock included under equity incentive plan awards include RSUs in which 50%
of the amount included in the table above will vest on January 1, 2012 and 50% will vest on January
1, 2013. For Mr. Nguyen, one third of the RSUs will vest on April 12, 2011, one third will vest on
January 1, 2012, and the remaining one third will vest on January 1, 2013. |
|
(3) |
|
The value of stock awards is based on a closing stock price of $3.15 per share on December 31, 2010. |
|
(4) |
|
Denotes stock options that were granted under our stock option exchange program which was completed
in June 2009. Such stock options vest such that one-third were vested at grant, with the remaining
two-thirds vesting over the subsequent two years. The expiration dates for these stock options
range between March 15, 2015 and February 16, 2019. |
|
(5) |
|
Denotes stock options that vested 50% upon FDA approval of
our NDA for Silenor and 50% upon the completion of a strategic
relationship regarding the commercialization of Silenor. |
78
Grants of Plan-Based Awards Table
The following table summarizes equity-based and incentive plan awards granted to our Named
Executive Officers during the last fiscal year.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other |
|
|
All Other |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock |
|
|
Option |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards: |
|
|
Awards: |
|
|
Exercise or |
|
|
Grant Date |
|
|
|
|
|
|
|
Estimated Future Payouts Under |
|
|
Estimated Future Payouts Under |
|
|
Number of |
|
|
Number of |
|
|
Base Price of |
|
|
Fair Value |
|
|
|
|
|
|
|
Non-Equity Incentive Plan Awards (1) |
|
|
Equity Incentive Plan Awards |
|
|
Shares of |
|
|
Securities |
|
|
Option |
|
|
of Stock |
|
|
|
|
|
|
|
Threshold |
|
|
Target |
|
|
Maximum |
|
|
Threshold |
|
|
Target |
|
|
Maximum |
|
|
Stock or |
|
|
Underlying |
|
|
Awards |
|
|
and Option |
|
Name |
|
Grant Date |
|
|
($) |
|
|
($) |
|
|
($) |
|
|
(#) |
|
|
(#) (2) |
|
|
(#) |
|
|
Units (#) (3) |
|
|
Options (#) |
|
|
($/Share) |
|
|
Awards (4) |
|
Richard W. Pascoe |
|
|
N/A |
|
|
|
|
|
|
$ |
235,000 |
|
|
$ |
352,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16,666 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
143,161 |
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33,334 |
|
|
|
|
|
|
|
|
|
|
$ |
286,339 |
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
200,000 |
|
|
$ |
8.59 |
|
|
$ |
1,283,536 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tran B. Nguyen |
|
|
N/A |
|
|
|
|
|
|
$ |
71,875 |
(5) |
|
$ |
107,813 |
(5) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25,000 |
|
|
|
|
|
|
|
|
|
|
$ |
206,500 |
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
200,000 |
|
|
$ |
8.26 |
|
|
$ |
1,234,226 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jeffrey W. Raser |
|
|
N/A |
|
|
|
|
|
|
$ |
108,500 |
|
|
$ |
162,750 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13,333 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
114,530 |
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
26,667 |
|
|
|
|
|
|
|
|
|
|
$ |
229,070 |
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
150,000 |
|
|
$ |
8.59 |
|
|
$ |
962,652 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Brian T. Dorsey |
|
|
N/A |
|
|
|
|
|
|
$ |
103,250 |
|
|
$ |
154,875 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
85,900 |
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000 |
|
|
|
|
|
|
|
|
|
|
$ |
171,800 |
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100,000 |
|
|
$ |
8.59 |
|
|
$ |
641,768 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Matthew W. Onaitis |
|
|
N/A |
|
|
|
|
|
|
$ |
103,250 |
|
|
$ |
154,875 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
85,900 |
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000 |
|
|
|
|
|
|
|
|
|
|
$ |
171,800 |
|
|
|
|
4/1/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100,000 |
|
|
$ |
8.59 |
|
|
$ |
641,768 |
|
|
|
|
(1) |
|
Amount represents potential target and maximum bonus payments under our 2010 Incentive Plan.
For more information about the 2010 Incentive Plan, please see the discussion under Bonus
Awards above. |
|
(2) |
|
Represents RSUs that were scheduled to vest upon the first open
trading window under our insider trading policy after the first commercial sale of Silenor in
the United States. All of these awards vested on December 1, 2010. |
|
(3) |
|
Other than for Mr. Nguyen, represents RSUs that will vest 50%
on January 1, 2012 and 50% on January 1, 2013.
For Mr. Nguyen, one-third will vest on April 12, 2011, one-third
will vest on January 1, 2012 and one-third will vest on January 1,
2013. |
|
(4) |
|
For RSUs, the grant date fair value is calculated as the number of shares multiplied the
stock price at the date of grant. For stock options, the grant date fair value is calculated
using the Black-Scholes valuation model with the assumptions outlined in our audited financial
statements included in this report. In this table, the full grant-date fair value of
share-based awards having performance-based vesting conditions is listed without adjusting for
the probability of achieving the applicable vesting conditions as the RSUs with performance
conditions granted during 2010 were considered probable of achieving their vesting conditions
at the date of grant. |
|
(5) |
|
Mr. Nguyens target and maximum bonus amounts represent prorated amounts, as Mr. Nguyen
joined the company on April 12, 2010. |
79
Stock Option Exercises and Stock Vested Table
The following table summarizes the exercises of stock options and the vesting of restricted
stock and RSUs for our Named Executive Officers during our last fiscal year.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards |
|
|
Stock Awards |
|
|
|
Number of Shares |
|
|
|
|
|
Number of |
|
|
|
|
|
|
Acquired on |
|
|
Value Realized |
|
|
Shares Acquired |
|
|
Value Realized |
|
Name |
|
Exercise (#) |
|
|
on Exercise ($) (1) |
|
|
on Vesting (#) |
|
|
on Vesting ($) (2) |
|
Richard W. Pascoe |
|
|
190,000 |
|
|
$ |
674,564 |
|
|
|
56,666 |
|
|
$ |
177,432 |
|
Tran B. Nguyen |
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
Jeffrey W. Raser |
|
|
174,000 |
|
|
$ |
575,377 |
|
|
|
53,333 |
|
|
$ |
289,741 |
|
Brian T. Dorsey |
|
|
121,000 |
|
|
$ |
483,986 |
|
|
|
50,000 |
|
|
$ |
280,775 |
|
Matthew W. Onaitis |
|
|
119,454 |
|
|
$ |
384,010 |
|
|
|
50,000 |
|
|
$ |
280,775 |
|
|
|
|
(1) |
|
The Value Realized on Exercise for an option award represents the
stock price per share on the date of exercise less the exercise price
per share of such option award multiplied by the number of shares for
which such option award was exercised. |
|
(2) |
|
The Value Realized on Vesting for stock awards is based on a stock
price on the date that the RSUs and restricted stock vested. |
Other Benefits
In order to attract, retain and pay market levels of compensation, we provide our Named
Executive Officers and our other employees the following benefits and perquisites.
Medical Insurance
The company provides to each Named Executive Officer and their spouses and children such
health, dental and vision insurance coverage as the company may from time to time make available to
its other eligible employees.
Life, Disability and Long-term Care Insurance
We provide each Named Executive Officer such disability, life and/or long-term care insurance
as we may from time to time make available to our other eligible employees.
Pension Benefits
We do not provide pension arrangements or post-retirement health coverage for our executives
or employees. Our Named Executive Officers and other eligible employees are eligible to participate
in our 401(k) defined contribution plan. We currently do not make matching contributions to the
401(k) plan.
Nonqualified Deferred Compensation
We do not provide any nonqualified defined contribution or other deferred compensation plans.
Perquisites
We generally limit the perquisites that we make available to our Named Executive Officers,
particularly in light of recent developments with respect to corporate crime and abuse involving
perquisites. Our executives are entitled to few benefits with de minimis value that are not
otherwise available to all of our employees.
Post-Termination Benefits
Severance Benefits and Change of Control Arrangements
We believe that reasonable severance benefits for our Named Executive Officers are important
because it may be difficult for our Named Executive Officers to find comparable employment within a
short period of time. We also believe that it is important to protect our Named Executive Officers
in the event of a change of control transaction involving us. In addition, it is our belief that
the interests of stockholders will be best served if the interests of our senior management are
aligned with them, and providing change of control benefits should eliminate, or at least reduce,
the reluctance of senior management to pursue potential change of control transactions that may be
in the best interests of stockholders. Accordingly, the employment agreements we have entered into
with each of our Named Executive Officers provide for severance benefits in specified
circumstances, as well as benefits in connection with a change of control.
80
Richard W. Pascoe:
Mr. Pascoe entered into an employment agreement with us in August 2008. The employment
agreement provides Mr. Pascoe with certain severance benefits in the event his employment is
terminated as a result of his disability. Specifically, in the event of such a termination, Mr.
Pascoe will receive any accrued but unpaid base salary and
unused paid time-off as of the date of termination, a lump-sum severance payment equal to 12
months of base salary, and, in the discretion of our board of directors, a pro-rated bonus for the
year in which the termination occurs.
The employment agreement also provides Mr. Pascoe with certain severance benefits in the event
his employment is terminated by us other than for cause or if he resigns with good reason.
Specifically, in the event of such a termination or resignation, Mr. Pascoe will receive any
accrued but unpaid base salary and unused paid time-off as of the date of termination, a lump-sum
severance payment equal to 12 months of base salary, 12 months of health care benefits continuation
at our expense, in the discretion of our board of directors, a pro-rated bonus for the year in
which the termination or resignation occurs and 12 months of the portion of the monthly premiums
for his life insurance and disability insurance coverage that are borne by us. In addition, that
portion of the Mr. Pascoes stock awards, and any unvested shares issued upon the exercise of such
stock awards, which would have vested if Mr. Pascoe had remained employed for an additional 12
months, will immediately vest on the date of termination or resignation and Mr. Pascoe will be
entitled to exercise such stock awards for 180 days following the date of termination.
In the event of a change of control of the company, 50% of Mr. Pascoes unvested stock awards
will immediately become vested and exercisable on the date of the change of control and any
remaining unvested stock awards will become vested and exercisable on the one year anniversary of
the date of the change of control. In addition, in the event Mr. Pascoes employment is terminated
by us other than for cause or if he resigns with good reason, in each case within 12 months of a
change of control, all of Mr. Pascoes unvested stock awards will immediately become vested and
exercisable on the date of termination and Mr. Pascoe will be entitled to exercise such stock
awards for 180 days following the date of termination.
Named Executive Officers other than Mr. Pascoe:
Messrs. Nguyen, Raser, Dorsey and Onaitis entered into employment agreements with us upon
joining the company.
The employment agreements, as amended to date, provide each executive with certain severance
benefits in the event his employment is terminated as a result of his disability. Specifically, in
the event of such a termination, each executive will receive any accrued but unpaid base salary and
unused paid time-off as of the date of termination, a lump-sum severance payment equal to 12 months
of base salary, and, in the discretion of our board of directors, a pro-rated bonus for the year in
which the termination occurs.
The employment agreements also provide each executive with certain severance benefits in the
event his employment is terminated by us other than for cause or if the executive resigns with good
reason. Specifically, in the event of such a termination or resignation, each executive will
receive any accrued but unpaid base salary and unused paid time-off as of the date of termination,
a lump-sum severance payment equal to 12 months of base salary, 12 months of health care benefits
continuation at our expense, and in the discretion of our board of directors a pro-rated bonus for
the year in which the termination or resignation occurs. In addition, that portion of the
executives stock awards, and any unvested shares issued upon the exercise of such stock awards,
which would have vested if the executive had remained employed for an additional 12 months, will
immediately vest on the date of termination or resignation and the executive will be entitled to
exercise such stock awards for 180 days following the date of termination.
In the event of a change of control of the company, 50% of each executives unvested stock
awards will immediately become vested and exercisable on the date of the change of control and any
remaining unvested stock awards will become vested and exercisable on the one year anniversary of
the date of the change of control. In addition, in the event an executives employment is
terminated by us other than for cause or if the executive resigns with good reason, in each case
within 12 months of a change of control, all of such executives unvested stock awards will
immediately become vested and exercisable on the date of termination and the executive will be
entitled to exercise such stock awards for 180 days following the date of termination.
81
Definitions Applicable to All Executive Employment Agreements:
For purposes of all of the employment agreements with our Named Executive Officers, cause
means, generally, the executives breach of the non-solicitation, nondisparagement or
confidentiality provisions of the employment agreement, the executives conviction by, or entry of
a plea of guilty or nolo contendere in, a court of competent and final jurisdiction for any crime
involving moral turpitude or punishable by imprisonment in the jurisdiction involved, the
executives commission of an act of fraud, the executives continuing, willful failure or refusal
to perform his or her duties as required by the employment agreement, the executives gross
negligence, insubordination or material violation of any duty of loyalty to us or any other
material misconduct on the part of the executive, the executives commission of any act which is
detrimental to our business or goodwill, or the executives breach of any other provision of the
employment agreement after he or she has been afforded a specified period to correct the alleged
breach.
For purposes of all of the employment agreements with our Named Executive Officers, good
reason means, generally, a material diminution in the executives base compensation, a material
diminution in the executives authority, duties or responsibilities, a material diminution in the
authority, duties or responsibilities of the supervisor to whom the executive is required to report
(or, in the case of Mr. Pascoe, a requirement that he reports to an employee rather than our board
of directors), a material change in the geographic location at which the executive must perform his
or her duties, or any other action or inaction that constitutes a material breach by us of our
obligations to the executive under the employment agreement.
For purposes of all of the employment agreements with our Named Executive Officers, change in
control has the same meaning as given to that term in our 2005 Equity Incentive Award Plan.
Potential
Payments Upon Termination or Change in Control:
If the employment of each of our Named Executive Officers was terminated due to disability or
was terminated without cause, or if each resigned for good reason, the estimated benefits that each
would receive under their employment agreements as of December 31, 2010 would be as follows:
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Received if Terminated Without Cause or |
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|
Received if Terminated due to Disability |
|
|
Resigned for Good Reason |
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Intrinsic |
|
|
Intrinsic |
|
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Value of |
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Value of |
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Additional |
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Additional |
|
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|
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|
|
|
|
|
|
Unused Paid |
|
|
|
|
|
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|
|
|
|
Unused Paid |
|
|
Health Care |
|
|
Vested Stock |
|
|
Vested |
|
|
|
|
Name |
|
Salary ($) |
|
|
Time-off ($) |
|
|
Total ($) |
|
|
Salary ($) |
|
|
Time-off ($) |
|
|
Benefits ($) |
|
|
Options ($) (1) |
|
|
Shares ($) (2) |
|
|
Total ($) |
|
Richard W. Pascoe |
|
$ |
470,000 |
|
|
$ |
47,605 |
|
|
$ |
517,605 |
|
|
$ |
470,000 |
|
|
$ |
47,605 |
|
|
$ |
24,992 |
|
|
$ |
138,668 |
|
|
$ |
|
|
|
$ |
681,265 |
|
Tran B. Nguyen |
|
$ |
285,000 |
|
|
$ |
7,681 |
|
|
$ |
292,681 |
|
|
$ |
285,000 |
|
|
$ |
7,681 |
|
|
$ |
21,362 |
|
|
$ |
|
|
|
$ |
26,249 |
|
|
$ |
340,292 |
|
Jeffrey W. Raser |
|
$ |
310,000 |
|
|
$ |
26,034 |
|
|
$ |
336,034 |
|
|
$ |
310,000 |
|
|
$ |
26,034 |
|
|
$ |
25,471 |
|
|
$ |
69,761 |
|
|
$ |
|
|
|
$ |
431,266 |
|
Brian T. Dorsey |
|
$ |
295,000 |
|
|
$ |
30,447 |
|
|
$ |
325,447 |
|
|
$ |
295,000 |
|
|
$ |
30,447 |
|
|
$ |
24,945 |
|
|
$ |
62,632 |
|
|
$ |
|
|
|
$ |
413,024 |
|
Matthew W. Onaitis |
|
$ |
295,000 |
|
|
$ |
34,039 |
|
|
$ |
329,039 |
|
|
$ |
295,000 |
|
|
$ |
34,039 |
|
|
$ |
24,938 |
|
|
$ |
65,541 |
|
|
$ |
|
|
|
$ |
419,518 |
|
|
|
|
(1) |
|
The intrinsic value of additional vested stock options shown above is
the difference between the closing stock price of $3.15 per share at
December 31, 2010 and the exercise price. A portion of options that
would vest within 12 months of December 31, 2010 have an exercise
price that exceeds the underlying stock price. For those options, the
intrinsic value at December 31, 2010 is zero and not reflected in the
table above. |
|
(2) |
|
The intrinsic value of additional vested shares shown above is the
number of shares that would vest within 12 months of December 31,
2010, multiplied by the closing stock price of $3.15 per share at
December 31, 2010. All of our outstanding RSUs are time-based and vest
upon continued service. As of December 31, 2010, only Mr. Nguyen
had unvested RSUs that will
vest in 2011 and therefore only the value of those RSUs is included in
the table above. |
82
If a change in control was consummated at December 31, 2010 and the employment of each of our
Named Executive Officers was terminated without cause, or if an executive resigned for good reason,
the estimated benefits that each would receive under their employment agreements would be as
follows:
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Received if Terminated Without Cause |
|
|
|
or Resigned for Good Reason in Connection with a Change of Control |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Intrinsic Value |
|
|
Intrinsic Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
of Additional |
|
|
of Additional |
|
|
|
|
|
|
|
|
|
|
Unused Paid |
|
|
Health Care |
|
|
Vested Stock |
|
|
Vested Shares |
|
|
|
|
Name |
|
Salary ($) |
|
|
Time-off ($) |
|
|
Benefits ($) |
|
|
Options ($) (1) |
|
|
($) (2) |
|
|
Total ($) |
|
Richard W. Pascoe |
|
$ |
470,000 |
|
|
$ |
47,605 |
|
|
$ |
24,992 |
|
|
$ |
138,668 |
|
|
$ |
105,002 |
|
|
$ |
786,267 |
|
Tran B. Nguyen |
|
$ |
285,000 |
|
|
$ |
7,681 |
|
|
$ |
21,362 |
|
|
$ |
|
|
|
$ |
78,750 |
|
|
$ |
392,793 |
|
Jeffrey W. Raser |
|
$ |
310,000 |
|
|
$ |
26,034 |
|
|
$ |
25,471 |
|
|
$ |
69,761 |
|
|
$ |
84,001 |
|
|
$ |
515,267 |
|
Brian T. Dorsey |
|
$ |
295,000 |
|
|
$ |
30,447 |
|
|
$ |
24,945 |
|
|
$ |
62,632 |
|
|
$ |
63,000 |
|
|
$ |
476,024 |
|
Matthew W. Onaitis |
|
$ |
295,000 |
|
|
$ |
34,039 |
|
|
$ |
24,938 |
|
|
$ |
65,541 |
|
|
$ |
63,000 |
|
|
$ |
482,518 |
|
|
|
|
(1) |
|
The intrinsic value of additional vested stock options shown above is
the difference between the closing stock price of $3.15 per share at
December 31, 2010 and the exercise price. A portion of options that
would vest within 12 months of December 31, 2010 have an exercise
price that exceeds the underlying stock price. For those options, the
intrinsic value at December 31, 2010 is zero and not reflected in the
table above. |
|
(2) |
|
The intrinsic value of additional vested restricted shares, RSUs and
stock options is based on a closing stock price of $3.15 per share at
December 31, 2010. |
Policy Regarding Tax Deductibility of Compensation
Section 162(m) of the Internal Revenue Code of 1986, as amended, or the code, generally
disallows a tax deduction to public companies for compensation in excess of $1 million paid to the
corporations Chief Executive Officer and four other most highly paid executive officers.
Qualifying performance-based compensation will not be subject to the deduction limitation if
certain requirements are met.
The non-performance based compensation paid in cash to our executive officers in 2010 did not
exceed the $1 million limit per officer, and the compensation committee does not anticipate that
the non-performance based compensation to be paid in cash to our executive officers for 2011 will
exceed that limit. In addition, our 2005 Equity Incentive Award Plan has been structured so that
any compensation paid in connection with the exercise of option grants under that plan with an
exercise price equal to the fair market value of the option shares on the grant date will qualify
as performance-based compensation and it will not be subject to the $1 million deduction
limitation.
83
We periodically review the potential consequences of Section 162(m) and may structure the
performance-based portion of our executive compensation to comply with certain exemptions in
Section 162(m). However, we reserve the right to use our judgment to authorize compensation
payments that do not comply with the exemptions in Section 162(m) when we believe that such
payments are appropriate and in the best interests of the stockholders, after taking into
consideration changing business conditions or the officers performance.
Compensation Committee Report
We have reviewed and discussed with management the Compensation Discussion and Analysis
provisions to be included in this report. Based on the reviews and discussions referred to above,
we recommend to the board of directors that the Compensation Discussion and Analysis referred to
above be included in this report.
Compensation Committee
Thomas G. Wiggans (Chair)
Michael L. Eagle
Kurt von Emster
Compensation of our Board of Directors
We compensate non-employee directors for their service on our board of directors under our
Director Compensation Policy.
Under the current Director Compensation Policy, each non-employee director is eligible to
receive a quarterly retainer of $6,250, or $25,000 annually, for service on our board of directors.
Our non-employee directors also receive retainers for their service on board committees. The
Chairman of the audit committee of the board of directors receives a quarterly retainer of $2,500,
or $10,000 per year. Each other member of our audit committee receives a quarterly retainer of
$750, or $3,000 per year. Each member of the compensation committee of our board of directors
receives a quarterly retainer of $625, or $2,500 per year, and each member of the
nominating/corporate governance committee of our board of directors receives a quarterly retainer
of $250, or $1,000 per year.
Each non-employee director is also eligible to receive an incremental stipend of $1,500 for
each board meeting attended in person, or $750 for each board meeting attended by telephone, and
$1,000 for each committee meeting attended in person, or $500 for each committee meeting attended
by telephone. We reimburse our non-employee directors for their reasonable expenses incurred in
attending meetings of our board of directors and committees of the board of directors.
In November 2008 our board of directors, upon the recommendation of the compensation
committee, amended our Director Compensation Policy to provide that non-employee directors would
receive their quarterly retainers for service on the board of directors or committees of the board
and their fees for attending meetings of the board and committees of the board in RSUs. After each
calendar quarter, each director received a number of RSUs calculated by dividing the total amount
of such retainers and fees due to such director relating to such quarter by the closing price of
our common stock on the Nasdaq Capital Market on the last trading day of such quarter. We
discontinued this process in April 2010 and again began paying retainers and per-meeting fees in
cash. All of the RSUs granted in lieu of cash retainers and meeting fees vested on December 1,
2010.
In April 2010, the compensation committee reviewed compensation levels of our board of
directors. The compensation committee recommended to the board of directors that the quarterly
retainer of our non-Executive Chairman of the Board be increased from $25,000, or $100,000 per
year, to $28,000, or $112,000 per year, effective retroactively to April 1, 2010. The board of
directors adopted this change to the Director Compensation Policy in April 2010.
Our directors may participate in our stock incentive plans and employee-directors may
participate in our employee stock purchase plan. Any non-employee director who is elected to our
board of directors is granted an option to purchase 35,000 shares of our common stock on the date
of his or her initial election to our board of directors. In addition, on the date of each annual
meeting of our stockholders, (1) each continuing non-employee director will be eligible to receive
an option to purchase 15,000 shares of common stock, (2) the non-Executive Chairman of the Board
will be eligible to receive an additional annual option to purchase 25,000 shares of common stock
(for a total of 40,000 shares), (3) the Chairman of our audit committee will be eligible to receive
an additional
annual option to purchase 5,000 shares of common stock (for a total of 20,000 shares) and (4)
the Chairmen of our nominating/corporate governance committee and our compensation committee will
be eligible to receive an additional annual option to purchase 2,500 shares of common stock (for a
total of 17,500 shares each). Such options will have an exercise price per share equal to the fair
market value of our common stock on such date. The initial options granted to non-employee
directors described above will vest over three years in 36 equal monthly installments on each
monthly anniversary of the date of grant, subject to the directors continuing service on our board
of directors on those dates. The annual options granted to non-employee directors described above
will vest in 12 equal monthly installments on each monthly anniversary of the date of grant,
subject to the directors continuing service on our board of directors (and, with respect to grants
to a Chairman of the Board or board committee, service as Chairman of the Board or a committee) on
those dates. The term of each option granted to a non-employee director shall be ten years.
84
Director Compensation Table
The following table summarizes our director compensation for each of our directors except Mr.
Pascoe for the year ended December 31, 2010. Please see the tables relating to our Named Executive
Officers for information relating to Mr. Pascoe.
|
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|
|
|
|
|
|
|
|
|
|
Fees Earned |
|
|
|
|
|
|
|
|
|
|
All Other |
|
|
|
|
|
|
or Paid in |
|
|
Stock Awards |
|
|
Option Awards |
|
|
Compensation |
|
|
|
|
Name and Principal Position |
|
Cash ($) |
|
|
($) (1) |
|
|
($) (2) |
|
|
($) |
|
|
Total ($) |
|
David F. Hale, Chairman of the Board |
|
$ |
96,000 |
|
|
$ |
28,500 |
|
|
$ |
132,116 |
|
|
$ |
|
|
|
$ |
256,616 |
|
Erle T. Mast, Director, Chairman of
the Audit Committee |
|
$ |
41,000 |
|
|
$ |
13,284 |
|
|
$ |
66,058 |
|
|
$ |
|
|
|
$ |
120,342 |
|
Kurt von Emster, Director, Chairman
of the Nominating / Corporate
Governance Committee |
|
$ |
36,151 |
|
|
$ |
11,111 |
|
|
$ |
57,801 |
|
|
$ |
|
|
|
$ |
105,063 |
|
Terrell A. Cobb, Director |
|
$ |
27,750 |
|
|
$ |
9,249 |
|
|
$ |
49,543 |
|
|
$ |
|
|
|
$ |
86,542 |
|
Michael L. Eagle, Director |
|
$ |
34,875 |
|
|
$ |
13,622 |
|
|
$ |
49,543 |
|
|
$ |
|
|
|
$ |
98,040 |
|
Kurt C. Wheeler, former Director (4) |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
Faheem Hasnain, Director (5) |
|
$ |
9,451 |
|
|
$ |
|
|
|
$ |
105,086 |
|
|
$ |
|
|
|
$ |
114,537 |
|
Thomas G. Wiggans, Director,
Chairman of the Compensation
Committee |
|
$ |
32,375 |
|
|
$ |
12,618 |
|
|
$ |
57,801 |
|
|
$ |
|
|
|
$ |
102,794 |
|
Jesse I. Treu, Ph.D., former
Director, former Chairman of
Compensation Committee (3) |
|
$ |
|
|
|
$ |
11,873 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
11,873 |
|
|
|
|
(1) |
|
From November 2008 through March 2010, members of our board of directors
received RSUs in lieu of cash compensation. The RSUs vested on the first
open trading window under our insider trading policy following the first
commercial sale of Silenor in the United States, which occurred on December
1, 2010. The Stock Awards column is the grant date fair value of these
RSUs issued to our non-employee directors during 2010. Although these RSUs
vested based on performance conditions, those performance conditions were
considered probable of being achieved at the date of grant and the full grant
date fair value of such RSUs is included in the Stock Awards column above.
The grant date fair value was determined in accordance with the provisions
of FASB ASC Topic 718. For information about the assumptions used in the
calculation of grant date fair value, see the notes to our audited financial
statements included in this report. As of December 31, 2010, none of our
non-employee directors held any outstanding stock awards. |
|
(2) |
|
The Option Awards column is the grant date fair value of option awards
issued to our non-employee directors during 2010, calculated in accordance
with the provisions of FASB ASC Topic 718. See the assumptions used in the
Black-Scholes model in the notes to our audited financial statements
included in this report. During 2010, our non-employee directors were
granted stock options to purchase the following numbers of shares of our
common stock: Mr. Hale, 40,000 shares; Mr. Mast, 20,000 shares; Mr. von
Emster, 17,500 shares; Mr. Cobb, 15,000 shares; Mr. Eagle, 15,000 shares;
Mr. Wiggans, 17,500 shares; and Mr. Hasnain, 35,000 shares. |
|
(3) |
|
Dr. Treu did not stand for re-election at the Annual Meeting on June 9, 2010. |
|
(4) |
|
Mr. Wheeler resigned from our board of directors and the compensation and nominating/corporate governance committees thereof effective as of March 18,
2010. |
|
(5) |
|
Mr. Hasnain became a director in September 2010. |
85
Compensation Committee Interlocks and Insider Participation
Mr. Wiggans (chair) and Messrs. Eagle and von Emster served on our compensation committee
during the 2010 fiscal year. Dr. Treu and Mr. Wheeler also served on our compensation committee
for part of 2010. No member of the compensation committee was at any time during the 2010 fiscal
year or at any other time an officer or employee of the company. None of our executive officers
serve, or in the past year has served as a member of the board of directors or compensation
committee of any entity that has one or more executive officers serving on our compensation
committee. None of our executive officers serve, or in the past year has served, as a member of the
compensation committee of any entity that has one or more executives serving on our board of
directors.
|
|
|
Item 12. |
|
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder
Matters |
The following table sets forth information regarding the beneficial ownership of our common
stock as of February 15, 2011 for:
|
|
|
each of our Named Executive Officers as defined in Part III Item 11, Executive
Compensation of this report; |
|
|
|
each person known by us to beneficially own more than 5% of our common stock; and |
|
|
|
all of our Named Executive Officers and directors as a group. |
Beneficial ownership is determined in accordance with the rules of the Securities and Exchange
Commission and includes voting and investment power with respect to the securities. Except as
indicated by footnote, and subject to applicable community property laws, the persons named in the
table have sole voting and investment power with respect to all shares of common stock shown as
beneficially owned by them. The number of shares of common stock used to calculate the percentage
ownership of each listed person includes the shares of common stock underlying options held by such
persons that are exercisable as of April 16, 2011, which is 60 days after February 15, 2011.
Percentage of beneficial ownership is based on 45,004,991 shares of common stock outstanding
as of February 15, 2011. Unless otherwise indicated, the address for the following stockholders is
c/o Somaxon Pharmaceuticals, Inc., 3570 Carmel Mountain Road, Suite 100, San Diego, CA 92130.
|
|
|
|
|
|
|
|
|
|
|
Shares |
|
|
Percent |
|
|
|
Beneficially |
|
|
Beneficially |
|
Name and Address of Beneficial Owner |
|
Owned |
|
|
Owned |
|
5% Stockholders: |
|
|
|
|
|
|
|
|
Funds affiliated with MPM Capital, L.P. (1)
601 Gateway Boulevard, Suite 350
South San Francisco, CA 94080 |
|
|
5,909,155 |
|
|
|
12.8 |
% |
Ingalls & Snyder, LLC (2)
61 Broadway
New York, NY 10006 |
|
|
5,016,000 |
|
|
|
11.1 |
% |
Federated Investors, Inc. (3)
5800 Corporate Drive
Pittsburgh, PA 15222 |
|
|
3,816,535 |
|
|
|
8.5 |
% |
Scale Venture Management I, LLC, (formerly BAVP, L.P.) (4)
950 Tower Lane, Suite 700
Foster City, CA 94404 |
|
|
3,002,858 |
|
|
|
6.6 |
% |
Funds affiliated with Putnam, LLC d/b/a Putnam Investments (5)
One Post Office Square
Boston, MA 02109 |
|
|
2,818,431 |
|
|
|
6.3 |
% |
Directors and Named Executive Officers: |
|
|
|
|
|
|
|
|
David F. Hale (6) |
|
|
685,494 |
|
|
|
1.5 |
% |
Erle T. Mast (7) |
|
|
108,479 |
|
|
|
* |
|
Faheem Hasnain (8) |
|
|
6,805 |
|
|
|
* |
|
Kurt von Emster (9) |
|
|
156,802 |
|
|
|
* |
|
Terrell A. Cobb (10) |
|
|
148,732 |
|
|
|
* |
|
Michael L. Eagle (11) |
|
|
96,293 |
|
|
|
* |
|
Thomas G. Wiggans (12) |
|
|
78,145 |
|
|
|
* |
|
Richard W. Pascoe (13) |
|
|
457,633 |
|
|
|
* |
|
Tran B. Nguyen (14) |
|
|
60,833 |
|
|
|
* |
|
Matthew W. Onaitis (15) |
|
|
243,002 |
|
|
|
* |
|
Brian T. Dorsey (16) |
|
|
212,284 |
|
|
|
* |
|
Jeffrey W. Raser (17) |
|
|
310,219 |
|
|
|
* |
|
Named Executive Officers and directors as a group (12 persons) (18) |
|
|
2,564,721 |
|
|
|
5.5 |
% |
|
|
|
* |
|
Indicates beneficial ownership of less than 1% of the total outstanding common stock. |
86
|
|
|
(1) |
|
Funds affiliated with MPM Capital L.P. include the following holdings: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number |
|
|
|
|
|
|
|
of Warrants |
|
|
|
Number |
|
|
Exercisable within 60 |
|
Shareholder Name |
|
of Shares |
|
|
days of February 15, 2011 |
|
MPM Asset Management Investors 2006 BVIII LLC |
|
|
68,399 |
|
|
|
18,848 |
|
MPM BioVentures III GmbH & Co. Beteiligungs KG |
|
|
326,317 |
|
|
|
89,923 |
|
MPM BioVentures III Parallel Fund, L.P. |
|
|
116,646 |
|
|
|
32,144 |
|
MPM BioVentures III, L.P. |
|
|
259,654 |
|
|
|
71,553 |
|
MPM BioVentures III-QP, L.P. |
|
|
3,861,546 |
|
|
|
1,064,125 |
|
|
|
|
|
|
|
|
Total |
|
|
4,632,562 |
|
|
|
1,276,593 |
|
|
|
|
|
|
|
|
|
|
|
|
|
MPM BioVentures III GP, L.P. and MPM BioVentures III LLC are the direct and indirect
general partners of MPM BioVentures III-QP, L.P., MPM BioVentures III GmbH & Co. Beteiligungs
KG, MPM BioVentures III, L.P. and MPM BioVentures III Parallel Fund, L.P. The members of MPM
BioVentures III LLC and MPM Asset Management Investors 2006 BVIII LLC are Luke Evnin, Ansbert
Gadicke, Nicholas Galakatos, Dennis Henner, Nicholas Simon III, Michael Steinmetz and Mr.
Wheeler, who disclaim beneficial ownership of these shares except to the extent of their
pecuniary interest therein. |
|
(2) |
|
The voting and disposition of the shares held by Ingalls & Snyder was obtained from the
Schedule 13-G/A filed by Ingalls & Snyder on February 14, 2011. |
|
(3) |
|
The voting and disposition of the shares held by Federated Investors,
Inc. was obtained from the Schedule 13-G/A filed by Federated
Investors, Inc. on February 9, 2011. |
|
(4) |
|
Shares held by Scale Venture Management I, LLC include warrants to
purchase 510,638 shares of our common stock within 60 days of February
15, 2011. The voting and disposition of the shares held by Scale
Venture Management I, LLC was obtained from the Schedule 13-G/A filed
by BAVP, L.P. on July 8, 2010. |
|
(5) |
|
The voting and disposition of the shares held by Putnam, LLC d/b/a
Putnam Investments was obtained from the Schedule 13-G/A filed by
Putnam, LLC d/b/a Putnam Investments on February 14, 2011. |
|
(6) |
|
Shares held by David F. Hale include 347,507 shares of common stock
subject to outstanding options which are exercisable within 60 days of
February 15, 2011. |
|
(7) |
|
Shares held by Erle T. Mast include 61,849 shares of common stock
subject to outstanding options which are exercisable within 60 days of
February 15, 2011. |
|
(8) |
|
Shares held by Faheem Hasnain include 6,805 shares of common stock
subject to outstanding options which are exercisable within 60 days of
February 15, 2011. |
|
(9) |
|
Shares held by Kurt von Emster include 87,170 shares
of common stock subject to outstanding options which
are exercisable within 60 days of February 15, 2011
and warrants to purchase 42,553 shares of our common
stock within 60 days of February 15, 2011. |
|
(10) |
|
Shares held by Terrell A. Cobb include 105,428 shares
of common stock subject to outstanding options which
are exercisable within 60 days of February 15, 2011. |
|
(11) |
|
Shares held by Michael L. Eagle include 58,980 shares
of common stock subject to outstanding options which
are exercisable within 60 days of February 15, 2011. |
|
(12) |
|
Shares held by Thomas G. Wiggans include 51,619 shares
of common stock subject to outstanding options which
are exercisable within 60 days of February 15, 2011. |
|
(13) |
|
Shares held by Richard W. Pascoe include 419,258
shares of common stock subject to outstanding options
which are exercisable within 60 days of February 15,
2011. |
|
(14) |
|
Shares held by the Tran B. Nguyen include 50,000
shares of common stock subject to outstanding options
which are exercisable within 60 days of February 15,
2011 and 8,333 RSUs which vest within 60 days of February 15, 2011. |
|
(15) |
|
Shares held by Matthew W. Onaitis include 198,965
shares of common stock subject to outstanding options
which are exercisable within 60 days of February 15,
2011. |
|
(16) |
|
Shares held by Brian T. Dorsey include 188,832 shares
of common stock subject to outstanding options which
are exercisable within 60 days of February 15, 2011. |
|
(17) |
|
Shares held by Jeffrey W. Raser include 310,219 shares
of common stock subject to outstanding options which
are exercisable within 60 days of February 15, 2011. |
|
(18) |
|
Includes 1,886,632 shares of common stock subject to
outstanding options and 42,553 warrants which are
exercisable within 60 days of February 15, 2011. |
87
|
|
|
Item 13. |
|
Certain Relationships and Related Transactions, and Director Independence |
We describe below transactions and series of similar transactions, since the beginning of
fiscal year 2010, with respect to which we were a party, will be a party, or otherwise benefited,
in which:
|
|
|
the amounts involved exceeded or will exceed $120,000; and |
|
|
|
a director, executive officer, holder of more than 5% of our common stock or any member
of their immediate family had or will have a direct or indirect material interest. |
We also describe below certain other transactions with our directors, executive officers and
stockholders. We believe that the terms obtained or consideration that we paid or received, as
applicable, in connection with the transactions described below were comparable to terms available
or the amounts that would be paid or received, as applicable, in arms-length transactions.
Pursuant to our Audit Committee Charter, the audit committee of our board of directors is
responsible for reviewing and approving all transactions with related parties. We have not adopted
written procedures for review of, or standards for approval of, these transactions, but instead the
audit committee of our board of directors intends to review such transactions on a case by case
basis. In addition, the compensation committee of our board of directors and/or our board of
directors will review and approve all compensation-related policies involving our directors and
executive officers.
Our board of directors has determined that the members of our board of directors, with the
exception of Mr. Hale, Mr. Cobb and Mr. Pascoe, none of whom serve on our audit committee,
compensation committee, or nominating and corporate governance committee, are independent within
the meaning of the independent director standards of the SEC and the
Nasdaq Stock Market, Inc. Additional information concerning the independence of the members of our
board of directors and the committees of the board of directors is set forth under Part III Item
10, Directors, Executive Officers and Corporate Governance.
Employment Agreements and Change of Control Arrangements
We have entered into employment agreements, which are described in Part III Item 11,
Executive Compensation of this report, with our executive officers.
Indemnification of Officers and Directors
Our restated certificate of incorporation and our bylaws provide that we will indemnify each
of our directors and officers to the fullest extent permitted by the Delaware General Corporation
Law. Further, we have entered into indemnification agreements with each of our directors and
officers, and we have purchased a policy of directors and officers liability insurance that
insures our directors and officers against the cost of defense, settlement or payment of a judgment
under certain circumstances.
Other Transactions
The approval of the NDA for Silenor in March 2010 triggered a $1,000,000 milestone payment
obligation to ProCom One. Mr. Cobb, a member of our board of directors, is a co-founder and
President of ProCom One. Pursuant to the Amended and Restated License Agreement with ProCom One,
ProCom also receives a royalty on the sales of Silenor. Mr. Cobb received 1,000 RSUs during 2010
as compensation for his services on our board of directors. These RSUs vested on December 1, 2010.
88
|
|
|
Item 14. |
|
Principal Accountant Fees and Services |
Audit and All Other Fees
The following table presents fees for services rendered by PricewaterhouseCoopers LLP, our
independent registered public accounting firm, for 2010 and 2009 in the following categories:
|
|
|
|
|
|
|
|
|
|
|
2010 |
|
|
2009 |
|
Audit fees (1) |
|
$ |
315,000 |
|
|
$ |
325,000 |
|
Audit related fees (2) |
|
|
|
|
|
|
|
|
Tax fees (3) |
|
|
51,000 |
|
|
|
13,000 |
|
All other fees (4) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
366,000 |
|
|
$ |
338,000 |
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Audit fees consist of fees for professional services performed by
PricewaterhouseCoopers LLP for the audit of our annual financial
statements, review of our quarterly financial statements, review of
our registration statements on Forms S-3 and related services that are
normally provided in connection with statutory and regulatory filings
or engagements. |
|
(2) |
|
Audit related fees consist of fees billed for assurance and related
services performed by PricewaterhouseCoopers LLP that are reasonably
related to the performance of the audit or review of our financial
statements. |
|
(3) |
|
Tax fees consist of fees for professional services performed by
PricewaterhouseCoopers LLP with respect to tax compliance, tax advice
and tax planning. |
|
(4) |
|
All other fees consist of fees for other permissible work performed by
PricewaterhouseCoopers LLP that is not included within the above
category descriptions. There were no such fees incurred during 2010 or
2009. |
The audit committee has considered whether the provision of non-audit services is compatible
with maintaining the independence of PricewaterhouseCoopers LLP, and has concluded that the
provision of such services is compatible with maintaining the independence of our registered public
accounting firm.
Audit Committee Policy Regarding Pre-Approval of Audit and Permissible Non-Audit Services of Our
Independent Registered Public Accounting Firm
The audit committee has established a policy that all audit and permissible non-audit services
provided by our independent registered public accounting firm will be pre-approved by the audit
committee, and all such services were pre-approved in accordance with this policy during the fiscal
years ended December 31, 2010 and 2009. These services may include audit services, audit-related
services, tax services and other services. The audit committee considers whether the provision of
each non-audit service is compatible with maintaining the independence of our registered public
accounting firm. Pre-approval is detailed as to the particular service or category of services and
is generally subject to a specific budget. Our independent registered public accounting firm and
management are required to periodically report to the audit committee regarding the extent of
services provided by the independent registered public accounting firm in accordance with this
pre-approval, and the fees for the services performed to date.
89
PART IV
|
|
|
Item 15. |
|
Exhibits and Financial Statement Schedules |
|
(a) |
|
Documents filed as part of this report. |
1. The following financial statements of Somaxon Pharmaceuticals, Inc. and Report of
PricewaterhouseCoopers LLP, independent registered public accounting firm, are included in this
report:
|
|
|
Report of PricewaterhouseCoopers LLP, Independent Registered Public Accounting
Firm |
|
|
|
Balance Sheets as of December 31, 2010 and 2009 |
|
|
|
Statements of Operations for the years ended December 31, 2010, 2009 and 2008 |
|
|
|
Statements of Cash Flows for the years ended December 31, 2010, 2009 and 2008 |
|
|
|
Statements of Stockholders Equity and Comprehensive Loss for years ended
December 31, 2010, 2009 and 2008 |
|
|
|
Notes to Financial Statements |
2. List of financial statement schedules. All schedules are omitted because they are not
applicable or the required information is shown in the financial statements or notes thereto.
3. List of exhibits required by Item 601 of Regulation S-K. See part (b) below.
|
|
|
|
|
Exhibit |
|
|
Number |
|
Description |
|
|
|
|
|
|
3.1 |
(1) |
|
Amended and Restated Certificate of Incorporation of the Registrant |
|
|
|
|
|
|
3.2 |
(2) |
|
Amended and Restated Bylaws of the Registrant |
|
|
|
|
|
|
4.1 |
(3) |
|
Form of the Registrants Common Stock Certificate |
|
|
|
|
|
|
4.2 |
(4) |
|
Amended and Restated Investor Rights Agreement dated June 2, 2005 |
|
|
|
|
|
|
4.3 |
(5) |
|
Warrant issued to Silicon Valley Bank dated May 21, 2008 |
|
|
|
|
|
|
4.4 |
(5) |
|
Warrant issued to Oxford Finance Corporation dated May 21, 2008 |
|
|
|
|
|
|
4.5 |
(5) |
|
Warrant issued to Kingsbridge Capital Limited dated May 21, 2008 |
|
|
|
|
|
|
4.6 |
(6) |
|
Form of Warrant issued to certain Purchasers under the Securities Purchase Agreement
dated July 2, 2009 |
|
|
|
|
|
|
10.1 |
(1) |
|
Form of Director and Executive Officer Indemnification Agreement |
|
|
|
|
|
|
10.2 |
#(1) |
|
Director Compensation Policy |
|
|
|
|
|
|
10.3 |
#(4) |
|
2004 Equity Incentive Award Plan and forms of option agreements thereunder |
|
|
|
|
|
|
10.4 |
#(7) |
|
Amended and Restated 2005 Equity Incentive Award Plan |
|
|
|
|
|
|
10.5 |
#(8) |
|
2005 Employee Stock Purchase Plan and form of Offering Document thereunder |
|
|
|
|
|
|
10.6 |
#(9) |
|
2010 Incentive Plan |
|
|
|
|
|
|
10.7 |
#(10) |
|
2011 Incentive Plan |
|
|
|
|
|
|
10.8 |
#(11) |
|
Form of Amended and Restated Employment Agreement |
90
|
|
|
|
|
Exhibit |
|
|
Number |
|
Description |
|
|
|
|
|
|
10.9 |
#(12) |
|
Employment Agreement between the Registrant and Richard W. Pascoe dated August 7, 2008 |
|
|
|
|
|
|
10.10 |
#(13) |
|
Employment Agreement between the Registrant and Tran Nguyen dated April 12, 2010 |
|
|
|
|
|
|
10.11 |
#(14) |
|
Amendment to Employment Agreement between the Registrant and Tran Nguyen dated
September 15, 2010 |
|
|
|
|
|
|
10.12 |
#(15) |
|
Form of Director Restricted Stock Unit Award Grant Notice and Restricted Stock Unit
Award Agreement |
|
|
|
|
|
|
10.13 |
#(15) |
|
Form of Employee Restricted Stock Unit Award Grant Notice and Restricted Stock Unit
Award Agreement |
|
|
|
|
|
|
10.14 |
#(15) |
|
Restricted Stock Unit Award Grant Notice and Restricted Stock Unit Award Agreement
between the Registrant and David F. Hale dated November 28, 2008 |
|
|
|
|
|
|
10.15 |
#(11) |
|
Form of Restricted Stock Purchase Agreement |
|
|
|
|
|
|
10.16 |
#(11) |
|
Restricted Stock Purchase Agreement between the Registrant and David F. Hale dated
October 8, 2007 |
|
|
|
|
|
|
10.17 |
(6) |
|
Securities Purchase Agreement between the Registrant and the Purchasers identified
therein dated July 2, 2009 |
|
|
|
|
|
|
10.18 |
(14) |
|
Amended and Restated License Agreement by and between the Registrant and ProCom One,
Inc. dated September 15, 2010 |
|
|
|
|
|
|
10.19 |
(4) |
|
Common Stock Purchase Agreement by and among the Registrant, ProCom One, Inc. and
Terrell A. Cobb dated April 15, 2004 |
|
|
|
|
|
|
10.20 |
(16) |
|
Manufacturing Services Agreement between the Registrant and Patheon Pharmaceuticals
Inc. dated February 1, 2006 |
|
|
|
|
|
|
10.21 |
(17) |
|
Professional Detailing Services Agreement between the Registrant and Publicis
Touchpoint Solutions, Inc. dated July 14, 2010 |
|
|
|
|
|
|
10.22 |
(18) |
|
Supplement No. 1 to the Professional Detailing Services Agreement between the
Registrant and Publicis Touchpoint Solutions, Inc. dated February 7, 2011 |
|
|
|
|
|
|
10.23 |
(19) |
|
Co-Promotion Agreement between the Registrant and The Procter & Gamble Distributing
Company, LLC dated August 24, 2010 |
|
|
|
|
|
|
10.24 |
(20) |
|
Loan and Security Agreement by and between the Registrant and Comerica Bank dated as
of February 7, 2011 |
|
|
|
|
|
|
10.25 |
(20) |
|
LIBOR Addendum to Loan and Security Agreement by and between the Registrant and
Comerica Bank dated as of February 7, 2011 |
|
|
|
|
|
|
10.26 |
(21) |
|
Agreement of Termination between the Registrant and BioTie Therapies Corp. dated
March 12, 2009 |
|
|
|
|
|
|
10.27 |
(22) |
|
Separation Agreement between the Registrant and Susan E. Dubé dated April 14, 2009 |
|
|
|
|
|
|
10.28 |
(22) |
|
Separation Agreement between the Registrant and James J. LItalien dated May 1, 2009 |
|
|
|
|
|
|
10.29 |
(22) |
|
Separation Agreement between the Registrant and Meg M. McGilley dated May 14, 2009 |
91
|
|
|
|
|
Exhibit |
|
|
Number |
|
Description |
|
|
|
|
|
|
10.30 |
(23) |
|
Lease Agreement between the Registrant and PRII Gateway Torrey Hills LLC dated as of
April 22, 2010 |
|
|
|
|
|
|
10.31 |
(24) |
|
Sublease between the Registrant and aAd Capital Management, L.P. dated April 22, 2009 |
|
|
|
|
|
|
10.32 |
(24) |
|
Sublease Amendment and Termination Agreement between the Registrant and Avnet, Inc.
dated April 23, 2009 |
|
|
|
|
|
|
23.1 |
|
|
Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm |
|
|
|
|
|
|
31.1 |
|
|
Certification of Chief Executive Officer pursuant to Rule 13a-14 and Rule 15d-14 of
the Securities Exchange Act of 1934, as amended |
|
|
|
|
|
|
31.2 |
|
|
Certification of Chief Financial Officer pursuant to Rule 13a-14 and Rule 15d-14 of
the Securities Exchange Act of 1934, as amended |
|
|
|
|
|
|
32.1 |
* |
|
Certification of Chief Executive Officer pursuant to 18 U.S.C. 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2003 |
|
|
|
|
|
|
32.2 |
* |
|
Certification of Chief Financial Officer pursuant to 18 U.S.C. 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2003 |
|
|
|
# |
|
Indicates management contract or compensatory plan. |
|
|
|
Confidential treatment has been granted as to certain portions, which portions have
been omitted and filed separately with the Securities and Exchange Commission. |
|
* |
|
These certifications are being furnished solely to accompany this annual report
pursuant to 18 U.S.C. Section 1350, and are not being filed for purposes of Section
18 of the Securities Exchange Act of 1934, as amended, and are not to be
incorporated by reference into any filing of Somaxon Pharmaceuticals, Inc., whether
made before or after the date hereof, regardless of any general incorporation
language in such filing. |
|
(1) |
|
Filed with Amendment No. 3 to the Registrants Registration Statement on Form S-1
on November 30, 2005. |
|
(2) |
|
Filed with Registrants Current Report on Form 8-K on December 6, 2007. |
|
(3) |
|
Filed with Amendment No. 4 to the Registrants Registration Statement on Form S-1
on December 13, 2005. |
|
(4) |
|
Filed with the Registrants Registration Statement on Form S-1 on October 7, 2005. |
|
(5) |
|
Filed with Registrants Current Report on Form 8-K on May 22, 2008. |
|
(6) |
|
Filed with Registrants Current Report on Form 8-K on July 8, 2009. |
|
(7) |
|
Filed with Registrants Definitive Proxy Statement on April 30, 2009. |
|
(8) |
|
Filed with the Registrants Registration Statement on Form S-8 on December 15, 2005. |
|
(9) |
|
Filed with Registrants Current Report on Form 8-K on April 7, 2010. |
|
(10) |
|
Filed with Registrants Current Report on Form 8-K on February 14, 2011. |
|
(11) |
|
Filed with Registrants Annual Report on Form 10-K on March 12, 2008. |
|
(12) |
|
Filed with Registrants Current Report on Form 8-K on August 7, 2008. |
|
(13) |
|
Filed with Registrants Current Report on Form 8-K on April 14, 2010. |
|
(14) |
|
Filed with the Registrants Quarterly Report on Form 10-Q on November 10, 2010. |
|
(15) |
|
Filed with Registrants Annual Report on Form 10-K on March 13, 2009. |
|
(16) |
|
Filed with the Registrants Quarterly Report on Form 10-Q on May 11, 2006 |
|
(17) |
|
Filed with Registrants Current Report on Form 8-K/A on July 21, 2010. |
|
(18) |
|
Filed with Registrants Current Report on Form 8-K/A on February 11, 2011. |
|
(19) |
|
Filed with Registrants Current Report on Form 8-K on August 25, 2010. |
|
(20) |
|
Filed with Registrants Current Report on Form 8-K on February 8, 2011. |
|
(21) |
|
Filed with Registrants Current Report on Form 10-Q on May 8, 2009. |
|
(22) |
|
Filed with Registrants Current Report on Form 10-Q on August 7, 2009. |
|
(23) |
|
Filed with Registrants Current Report on Form 8-K on April 28, 2010. |
|
(24) |
|
Filed with Registrants Current Report on Form 8-K on April 24, 2009. |
|
(c) |
|
Financial Statement Schedule. See Item 15(a)(2) above. |
92
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities and Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
|
|
|
|
|
|
SOMAXON PHARMACEUTICALS, INC.
|
|
Dated: March 4, 2011 |
By: |
/s/ Richard W. Pascoe
|
|
|
|
Richard W. Pascoe |
|
|
|
President and Chief Executive Officer |
|
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been
signed below by the following persons on behalf of the registrant and in the capacities and on the
dates indicated.
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ Richard W. Pascoe
Richard W. Pascoe
|
|
President and Chief Executive Officer
|
|
March 4, 2011 |
|
|
|
|
|
/s/ Tran B. Nguyen
Tran B. Nguyen
|
|
Senior Vice President and Chief
Financial Officer
|
|
March 4, 2011 |
|
|
|
|
|
/s/ David F. Hale
David F. Hale
|
|
Chairman of the Board of Directors
|
|
March 4, 2011 |
|
|
|
|
|
/s/ Terrell A. Cobb
Terrell A. Cobb
|
|
Director
|
|
March 4, 2011 |
|
|
|
|
|
/s/ Michael L. Eagle
Michael L. Eagle
|
|
Director
|
|
March 4, 2011 |
|
|
|
|
|
/s/ Erle T. Mast
Erle T. Mast
|
|
Director
|
|
March 4, 2011 |
|
|
|
|
|
/s/ Faheem Hasnain
Faheem Hasnain
|
|
Director
|
|
March 4, 2011 |
|
|
|
|
|
/s/ Kurt von Emster
Kurt von Emster
|
|
Director
|
|
March 4, 2011 |
|
|
|
|
|
/s/ Thomas G. Wiggans
Thomas G. Wiggans
|
|
Director
|
|
March 4, 2011 |
93
EXHIBIT INDEX
|
|
|
|
|
Exhibit |
|
|
Number |
|
Description |
|
3.1 |
(1) |
|
Amended and Restated Certificate of Incorporation of the Registrant |
|
|
|
|
|
|
3.2 |
(2) |
|
Amended and Restated Bylaws of the Registrant |
|
|
|
|
|
|
4.1 |
(3) |
|
Form of the Registrants Common Stock Certificate |
|
|
|
|
|
|
4.2 |
(4) |
|
Amended and Restated Investor Rights Agreement dated June 2, 2005 |
|
|
|
|
|
|
4.3 |
(5) |
|
Warrant issued to Silicon Valley Bank dated May 21, 2008 |
|
|
|
|
|
|
4.4 |
(5) |
|
Warrant issued to Oxford Finance Corporation dated May 21, 2008 |
|
|
|
|
|
|
4.5 |
(5) |
|
Warrant issued to Kingsbridge Capital Limited dated May 21, 2008 |
|
|
|
|
|
|
4.6 |
(6) |
|
Form of Warrant issued to certain Purchasers under the Securities Purchase Agreement
dated July 2, 2009 |
|
|
|
|
|
|
10.1 |
(1) |
|
Form of Director and Executive Officer Indemnification Agreement |
|
|
|
|
|
|
10.2 |
#(1) |
|
Director Compensation Policy |
|
|
|
|
|
|
10.3 |
#(4) |
|
2004 Equity Incentive Award Plan and forms of option agreements thereunder |
|
|
|
|
|
|
10.4 |
#(7) |
|
Amended and Restated 2005 Equity Incentive Award Plan |
|
|
|
|
|
|
10.5 |
#(8) |
|
2005 Employee Stock Purchase Plan and form of Offering Document thereunder |
|
|
|
|
|
|
10.6 |
#(9) |
|
2010 Incentive Plan |
|
|
|
|
|
|
10.7 |
#(10) |
|
2011 Incentive Plan |
|
|
|
|
|
|
10.8 |
#(11) |
|
Form of Amended and Restated Employment Agreement |
|
|
|
|
|
|
10.9 |
#(12) |
|
Employment Agreement between the Registrant and Richard W. Pascoe dated August 7, 2008 |
|
|
|
|
|
|
10.10 |
#(13) |
|
Employment Agreement between the Registrant and Tran Nguyen dated April 12, 2010 |
|
|
|
|
|
|
10.11 |
#(14) |
|
Amendment to Employment Agreement between the Registrant and Tran Nguyen dated
September 15, 2010 |
|
|
|
|
|
|
10.12 |
#(15) |
|
Form of Director Restricted Stock Unit Award Grant Notice and Restricted Stock Unit
Award Agreement |
|
|
|
|
|
|
10.13 |
#(15) |
|
Form of Employee Restricted Stock Unit Award Grant Notice and Restricted Stock Unit
Award Agreement |
|
|
|
|
|
|
10.14 |
#(15) |
|
Restricted Stock Unit Award Grant Notice and Restricted Stock Unit Award Agreement
between the Registrant and David F. Hale dated November 28, 2008 |
94
|
|
|
|
|
Exhibit |
|
|
Number |
|
Description |
|
10.15 |
#(11) |
|
Form of Restricted Stock Purchase Agreement |
|
|
|
|
|
|
10.16 |
#(11) |
|
Restricted Stock Purchase Agreement between the Registrant and David F. Hale dated
October 8, 2007 |
|
|
|
|
|
|
10.17 |
(6) |
|
Securities Purchase Agreement between the Registrant and the Purchasers identified
therein dated July 2, 2009 |
|
|
|
|
|
|
10.18 |
(14) |
|
Amended and Restated License Agreement by and between the Registrant and ProCom One,
Inc. dated September 15, 2010 |
|
|
|
|
|
|
10.19 |
(4) |
|
Common Stock Purchase Agreement by and among the Registrant, ProCom One, Inc. and
Terrell A. Cobb dated April 15, 2004 |
|
|
|
|
|
|
10.20 |
(16) |
|
Manufacturing Services Agreement between the Registrant and Patheon Pharmaceuticals
Inc. dated February 1, 2006 |
|
|
|
|
|
|
10.21 |
(17) |
|
Professional Detailing Services Agreement between the Registrant and Publicis
Touchpoint Solutions, Inc. dated July 14, 2010 |
|
|
|
|
|
|
10.22 |
(18) |
|
Supplement No. 1 to the Professional Detailing Services Agreement between the
Registrant and Publicis Touchpoint Solutions, Inc. dated February 7, 2011 |
|
|
|
|
|
|
10.23 |
(19) |
|
Co-Promotion Agreement between the Registrant and The Procter & Gamble Distributing
Company, LLC dated August 24, 2010 |
|
|
|
|
|
|
10.24 |
(20) |
|
Loan and Security Agreement by and between the Registrant and Comerica Bank dated as
of February 7, 2011 |
|
|
|
|
|
|
10.25 |
(20) |
|
LIBOR Addendum to Loan and Security Agreement by and between the Registrant and
Comerica Bank dated as of February 7, 2011 |
|
|
|
|
|
|
10.26 |
(21) |
|
Agreement of Termination between the Registrant and BioTie Therapies Corp. dated
March 12, 2009 |
|
|
|
|
|
|
10.27 |
(22) |
|
Separation Agreement between the Registrant and Susan E. Dubé dated April 14, 2009 |
|
|
|
|
|
|
10.28 |
(22) |
|
Separation Agreement between the Registrant and James J. LItalien dated May 1, 2009 |
|
|
|
|
|
|
10.29 |
(22) |
|
Separation Agreement between the Registrant and Meg M. McGilley dated May 14, 2009 |
|
|
|
|
|
|
10.30 |
(23) |
|
Lease Agreement between the Registrant and PRII Gateway Torrey Hills LLC dated as of
April 22, 2010 |
|
|
|
|
|
|
10.31 |
(24) |
|
Sublease between the Registrant and aAd Capital Management, L.P. dated April 22, 2009 |
|
|
|
|
|
|
10.32 |
(24) |
|
Sublease Amendment and Termination Agreement between the Registrant and Avnet, Inc.
dated April 23, 2009 |
95
|
|
|
|
|
Exhibit |
|
|
Number |
|
Description |
|
23.1 |
|
|
Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm |
|
|
|
|
|
|
31.1 |
|
|
Certification of Chief Executive Officer pursuant to Rule 13a-14 and Rule 15d-14 of
the Securities Exchange Act of 1934, as amended |
|
|
|
|
|
|
31.2 |
|
|
Certification of Chief Financial Officer pursuant to Rule 13a-14 and Rule 15d-14 of
the Securities Exchange Act of 1934, as amended |
|
|
|
|
|
|
32.1 |
* |
|
Certification of Chief Executive Officer pursuant to 18 U.S.C. 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2003 |
|
|
|
|
|
|
32.2 |
* |
|
Certification of Chief Financial Officer pursuant to 18 U.S.C. 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2003 |
|
|
|
# |
|
Indicates management contract or compensatory plan. |
|
|
|
Confidential treatment has been granted as to certain portions, which portions have
been omitted and filed separately with the Securities and Exchange Commission. |
|
* |
|
These certifications are being furnished solely to accompany this annual report
pursuant to 18 U.S.C. Section 1350, and are not being filed for purposes of Section
18 of the Securities Exchange Act of 1934, as amended, and are not to be
incorporated by reference into any filing of Somaxon Pharmaceuticals, Inc., whether
made before or after the date hereof, regardless of any general incorporation
language in such filing. |
|
(1) |
|
Filed with Amendment No. 3 to the Registrants Registration Statement on Form S-1
on November 30, 2005. |
|
(2) |
|
Filed with Registrants Current Report on Form 8-K on December 6, 2007. |
|
(3) |
|
Filed with Amendment No. 4 to the Registrants Registration Statement on Form S-1
on December 13, 2005. |
|
(4) |
|
Filed with the Registrants Registration Statement on Form S-1 on October 7, 2005. |
|
(5) |
|
Filed with Registrants Current Report on Form 8-K on May 22, 2008. |
|
(6) |
|
Filed with Registrants Current Report on Form 8-K on July 8, 2009. |
|
(7) |
|
Filed with Registrants Definitive Proxy Statement on April 30, 2009. |
|
(8) |
|
Filed with the Registrants Registration Statement on Form S-8 on December 15, 2005. |
|
(9) |
|
Filed with Registrants Current Report on Form 8-K on April 7, 2010. |
|
(10) |
|
Filed with Registrants Current Report on Form 8-K on February 14, 2011. |
|
(11) |
|
Filed with Registrants Annual Report on Form 10-K on March 12, 2008. |
|
(12) |
|
Filed with Registrants Current Report on Form 8-K on August 7, 2008. |
|
(13) |
|
Filed with Registrants Current Report on Form 8-K on April 14, 2010. |
|
(14) |
|
Filed with the Registrants Quarterly Report on Form 10-Q on November 10, 2010. |
|
(15) |
|
Filed with Registrants Annual Report on Form 10-K on March 13, 2009. |
|
(16) |
|
Filed with the Registrants Quarterly Report on Form 10-Q on May 11, 2006 |
|
(17) |
|
Filed with Registrants Current Report on Form 8-K/A on July 21, 2010. |
|
(18) |
|
Filed with Registrants Current Report on Form 8-K/A on February 11, 2011. |
|
(19) |
|
Filed with Registrants Current Report on Form 8-K on August 25, 2010. |
|
(20) |
|
Filed with Registrants Current Report on Form 8-K on February 8, 2011. |
|
(21) |
|
Filed with Registrants Current Report on Form 10-Q on May 8, 2009. |
|
(22) |
|
Filed with Registrants Current Report on Form 10-Q on August 7, 2009. |
|
(23) |
|
Filed with Registrants Current Report on Form 8-K on April 28, 2010. |
|
(24) |
|
Filed with Registrants Current Report on Form 8-K on April 24, 2009. |
96
SOMAXON PHARMACEUTICALS, INC.
INDEX TO FINANCIAL STATEMENTS
|
|
|
|
|
|
|
|
F-1 |
|
|
|
|
|
|
Financial Statements |
|
|
|
|
|
|
|
|
|
|
|
|
F-2 |
|
|
|
|
|
|
|
|
|
F-3 |
|
|
|
|
|
|
|
|
|
F-4 |
|
|
|
|
|
|
|
|
|
F-5 |
|
|
|
|
|
|
|
|
|
F-6 |
|
97
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
Somaxon Pharmaceuticals, Inc.
In our opinion, the accompanying balance sheets and the related statements of operations,
of stockholders equity and comprehensive loss and of cash flows present fairly, in all material
respects, the financial position of Somaxon Pharmaceuticals, Inc. at December 31, 2010 and 2009,
and the results of its operations and its cash flows for each of the three years in the period
ended December 31, 2010 in conformity with accounting principles generally accepted in the United
States of America. Also in our opinion, the Company maintained, in all material respects,
effective internal control over financial reporting as of December 31, 2010, based on criteria
established in Internal Control Integrated Framework issued by the Committee of Sponsoring
Organizations of the Treadway Commission (COSO). The Companys management is responsible for these
financial statements, for maintaining effective internal control over financial reporting and for
its assessment of the effectiveness of internal control over financial reporting, included in
accompanying Managements Report on Internal Control over Financial Reporting. Our responsibility
is to express opinions on these financial statements and on the Companys internal control over
financial reporting based on our audits (which were integrated audits
for 2010 and 2008). We conducted our
audits in accordance with the standards of the Public Company Accounting Oversight Board (United
States). Those standards require that we plan and perform the audits to obtain reasonable
assurance about whether the financial statements are free of material misstatement and whether
effective internal control over financial reporting was maintained in all material respects. Our
audits of the financial statements included examining, on a test basis, evidence supporting the
amounts and disclosures in the financial statements, assessing the accounting principles used and
significant estimates made by management, and evaluating the overall financial statement
presentation. Our audit of internal control over financial reporting included obtaining an
understanding of internal control over financial reporting, assessing the risk that a material
weakness exists, and testing and evaluating the design and operating effectiveness of internal
control based on the assessed risk. Our audits also included performing such other procedures as
we considered necessary in the circumstances. We believe that our audits provide a reasonable basis
for our opinions.
A companys internal control over financial reporting is a process designed to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting principles. A
companys internal control over financial reporting includes those policies and procedures that (i)
pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that
transactions are recorded as necessary to permit preparation of financial statements in accordance
with generally accepted accounting principles, and that receipts and expenditures of the company
are being made only in accordance with authorizations of management and directors of the company;
and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use, or disposition of the companys assets that could have a material effect on the
financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or
detect misstatements. Also, projections of any evaluation of effectiveness to future periods are
subject to the risk that controls may become inadequate because of changes in conditions, or that
the degree of compliance with the policies or procedures may deteriorate.
PricewaterhouseCoopers LLP
San Diego, California
March 4, 2011
F-1
SOMAXON PHARMACEUTICALS, INC.
BALANCE SHEETS
(in thousands, except par value)
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2010 |
|
|
2009 |
|
ASSETS |
|
|
|
|
|
|
|
|
Current assets |
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
21,008 |
|
|
$ |
5,165 |
|
Short-term investments |
|
|
33,809 |
|
|
|
|
|
Accounts receivable, net |
|
|
5,584 |
|
|
|
|
|
Inventory |
|
|
991 |
|
|
|
|
|
Other current assets |
|
|
1,882 |
|
|
|
409 |
|
|
|
|
|
|
|
|
Total current assets |
|
|
63,274 |
|
|
|
5,574 |
|
Property and equipment, net |
|
|
755 |
|
|
|
777 |
|
Intangibles, net |
|
|
1,102 |
|
|
|
|
|
Other assets |
|
|
|
|
|
|
60 |
|
|
|
|
|
|
|
|
Total assets |
|
$ |
65,131 |
|
|
$ |
6,411 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS EQUITY |
|
|
|
|
|
|
|
|
Current liabilities |
|
|
|
|
|
|
|
|
Accounts payable |
|
$ |
1,709 |
|
|
$ |
355 |
|
Accrued liabilities |
|
|
5,699 |
|
|
|
1,815 |
|
Deferred revenue |
|
|
3,459 |
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities |
|
|
10,867 |
|
|
|
2,170 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitments and contingencies: (Notes 4 and 5) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity |
|
|
|
|
|
|
|
|
Preferred stock, $0.0001 par value; 10,000
shares authorized, none issued and
outstanding |
|
|
|
|
|
|
|
|
Common stock and additional paid-in
capital; $0.0001 par value; 100,000 shares
authorized; 45,004 and 25,248 shares
outstanding at December 31, 2010 and 2009,
respectively |
|
|
271,117 |
|
|
|
182,280 |
|
Accumulated deficit |
|
|
(216,852 |
) |
|
|
(178,039 |
) |
Accumulated other comprehensive loss |
|
|
(1 |
) |
|
|
|
|
|
|
|
|
|
|
|
Total stockholders equity |
|
|
54,264 |
|
|
|
4,241 |
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity |
|
$ |
65,131 |
|
|
$ |
6,411 |
|
|
|
|
|
|
|
|
The Accompanying Notes are an Integral Part of these Financial Statements
F-2
SOMAXON PHARMACEUTICALS, INC.
STATEMENTS OF OPERATIONS
(in thousands, except per share amounts)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
Net product sales |
|
$ |
1,382 |
|
|
$ |
|
|
|
$ |
|
|
Cost of sales |
|
|
244 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
1,138 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses |
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative |
|
|
36,579 |
|
|
|
10,874 |
|
|
|
18,809 |
|
Research and development |
|
|
3,566 |
|
|
|
4,337 |
|
|
|
16,546 |
|
License fees |
|
|
|
|
|
|
(999 |
) |
|
|
165 |
|
|
|
|
|
|
|
|
|
|
|
Total operating costs and expenses |
|
|
40,145 |
|
|
|
14,212 |
|
|
|
35,520 |
|
|
|
|
|
|
|
|
|
|
|
Loss from operations |
|
|
(39,007 |
) |
|
|
(14,212 |
) |
|
|
(35,520 |
) |
Interest and other income |
|
|
262 |
|
|
|
30 |
|
|
|
903 |
|
Interest and other expense |
|
|
(68 |
) |
|
|
(261 |
) |
|
|
(2,610 |
) |
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(38,813 |
) |
|
$ |
(14,443 |
) |
|
$ |
(37,227 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted net loss per share |
|
$ |
(1.16 |
) |
|
$ |
(0.69 |
) |
|
$ |
(2.04 |
) |
|
|
|
|
|
|
|
|
|
|
Shares used to calculate net loss per share |
|
|
33,593 |
|
|
|
20,952 |
|
|
|
18,281 |
|
|
|
|
|
|
|
|
|
|
|
The Accompanying Notes are an Integral Part of these Financial Statements
F-3
SOMAXON PHARMACEUTICALS, INC.
STATEMENTS OF CASH FLOWS
(in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
Cash flows from operating activities |
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(38,813 |
) |
|
$ |
(14,443 |
) |
|
$ |
(37,227 |
) |
Adjustments to reconcile net loss to net cash used in operating
activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Share-based expense |
|
|
6,706 |
|
|
|
6,163 |
|
|
|
6,299 |
|
Depreciation and amortization |
|
|
392 |
|
|
|
83 |
|
|
|
115 |
|
Amortization of investment discount or premium |
|
|
132 |
|
|
|
(38 |
) |
|
|
196 |
|
Accretion of debt discount and issuance costs |
|
|
|
|
|
|
|
|
|
|
1,145 |
|
Loss on disposal of equipment and technology development costs |
|
|
119 |
|
|
|
2 |
|
|
|
|
|
Changes in operating assets and liabilities |
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable |
|
|
(5,584 |
) |
|
|
|
|
|
|
|
|
Inventory |
|
|
(991 |
) |
|
|
|
|
|
|
|
|
Other current and non-current assets |
|
|
(1,213 |
) |
|
|
70 |
|
|
|
287 |
|
Accounts payable |
|
|
1,354 |
|
|
|
(1,470 |
) |
|
|
651 |
|
Accrued current liabilities |
|
|
4,743 |
|
|
|
73 |
|
|
|
(581 |
) |
Deferred revenue |
|
|
3,459 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in operating activities |
|
|
(29,696 |
) |
|
|
(9,560 |
) |
|
|
(29,115 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities |
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of property and equipment |
|
|
(392 |
) |
|
|
(74 |
) |
|
|
(712 |
) |
Payments for technology rights |
|
|
(1,000 |
) |
|
|
|
|
|
|
|
|
Payments for technology development costs |
|
|
(200 |
) |
|
|
|
|
|
|
|
|
Purchases of marketable securities |
|
|
(46,457 |
) |
|
|
(2,505 |
) |
|
|
(13,090 |
) |
Sales and maturities of marketable securities |
|
|
12,317 |
|
|
|
5,639 |
|
|
|
34,296 |
|
Restricted cash |
|
|
|
|
|
|
8,100 |
|
|
|
(7,500 |
) |
|
|
|
|
|
|
|
|
|
|
Net cash (used in) provided by investing activities |
|
|
(35,732 |
) |
|
|
11,160 |
|
|
|
12,994 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities |
|
|
|
|
|
|
|
|
|
|
|
|
Issue common stock, net of costs |
|
|
77,556 |
|
|
|
5,732 |
|
|
|
|
|
Exercise of stock options |
|
|
2,285 |
|
|
|
173 |
|
|
|
25 |
|
Exercise of warrants |
|
|
1,474 |
|
|
|
1,475 |
|
|
|
|
|
Purchase of treasury stock |
|
|
(44 |
) |
|
|
|
|
|
|
(50 |
) |
Repayment of debt |
|
|
|
|
|
|
(15,000 |
) |
|
|
|
|
Net proceeds from issuance of debt |
|
|
|
|
|
|
|
|
|
|
14,777 |
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in) financing activities |
|
|
81,271 |
|
|
|
(7,620 |
) |
|
|
14,752 |
|
|
|
|
|
|
|
|
|
|
|
Increase (decrease) in cash and cash equivalents |
|
|
15,843 |
|
|
|
(6,020 |
) |
|
|
(1,369 |
) |
Cash and cash equivalents at beginning of the period |
|
|
5,165 |
|
|
|
11,185 |
|
|
|
12,554 |
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of the period |
|
$ |
21,008 |
|
|
$ |
5,165 |
|
|
$ |
11,185 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-cash investing and financing activities |
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued to settle severance obligation |
|
$ |
860 |
|
|
$ |
|
|
|
$ |
|
|
Warrants related to Loan Agreement |
|
|
|
|
|
|
44 |
|
|
|
922 |
|
Committed Equity Financing Facility Warrant |
|
|
|
|
|
|
|
|
|
|
389 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental cash flow information |
|
|
|
|
|
|
|
|
|
|
|
|
Cash paid for interest |
|
$ |
|
|
|
$ |
984 |
|
|
$ |
762 |
|
The Accompanying Notes are an Integral Part of these Financial Statements
F-4
SOMAXON PHARMACEUTICALS, INC.
STATEMENTS OF STOCKHOLDERS EQUITY AND COMPREHENSIVE LOSS
(In thousands, except per share amounts)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Stock and |
|
|
|
|
|
|
Other |
|
|
|
|
|
|
Additional Paid-in |
|
|
|
|
|
|
Accumulated |
|
|
|
|
|
|
Capital |
|
|
Accumulated |
|
|
Comprehensive |
|
|
|
|
|
|
# Shares |
|
|
$ Amount |
|
|
Deficit |
|
|
Income (Loss) |
|
|
Total |
|
Balance at January 1, 2008 |
|
|
18,433 |
|
|
$ |
161,497 |
|
|
$ |
(126,369 |
) |
|
$ |
48 |
|
|
$ |
35,176 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
|
|
|
|
|
|
|
|
|
(37,227 |
) |
|
|
|
|
|
|
(37,227 |
) |
Unrealized loss on available-for-sale
securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(39 |
) |
|
|
(39 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive loss |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(37,266 |
) |
Warrants issued pursuant to Loan Agreement |
|
|
|
|
|
|
922 |
|
|
|
|
|
|
|
|
|
|
|
922 |
|
Warrants issued pursuant to the Committed
Equity Financing Facility |
|
|
|
|
|
|
389 |
|
|
|
|
|
|
|
|
|
|
|
389 |
|
Financing cost of Committed Equity
Financing Facility Warrant |
|
|
|
|
|
|
(389 |
) |
|
|
|
|
|
|
|
|
|
|
(389 |
) |
Exercise of stock options |
|
|
8 |
|
|
|
25 |
|
|
|
|
|
|
|
|
|
|
|
25 |
|
Repurchase of restricted stock |
|
|
(11 |
) |
|
|
(50 |
) |
|
|
|
|
|
|
|
|
|
|
(50 |
) |
Share-based compensation |
|
|
|
|
|
|
6,299 |
|
|
|
|
|
|
|
|
|
|
|
6,299 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2008 |
|
|
18,430 |
|
|
|
168,693 |
|
|
|
(163,596 |
) |
|
|
9 |
|
|
|
5,106 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
|
|
|
|
|
|
|
|
|
(14,443 |
) |
|
|
|
|
|
|
(14,443 |
) |
Unrealized loss on available-for-sale
securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(9 |
) |
|
|
(9 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive loss |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(14,452 |
) |
Warrants issued pursuant to loan payoff |
|
|
|
|
|
|
44 |
|
|
|
|
|
|
|
|
|
|
|
44 |
|
Issue common stock |
|
|
5,106 |
|
|
|
5,732 |
|
|
|
|
|
|
|
|
|
|
|
5,732 |
|
Issue common stock pursuant to vesting of
restricted stock units |
|
|
166 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercise of warrants for cash |
|
|
1,277 |
|
|
|
1,475 |
|
|
|
|
|
|
|
|
|
|
|
1,475 |
|
Net share settlement of warrants |
|
|
183 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercise of stock options |
|
|
116 |
|
|
|
173 |
|
|
|
|
|
|
|
|
|
|
|
173 |
|
Repurchase of restricted stock |
|
|
(30 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Share-based compensation |
|
|
|
|
|
|
6,163 |
|
|
|
|
|
|
|
|
|
|
|
6,163 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2009 |
|
|
25,248 |
|
|
|
182,280 |
|
|
|
(178,039 |
) |
|
|
|
|
|
|
4,241 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
|
|
|
|
|
|
|
|
|
(38,813 |
) |
|
|
|
|
|
|
(38,813 |
) |
Unrealized loss on available-for-sale
securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1 |
) |
|
|
(1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive loss |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(38,814 |
) |
Issue common stock |
|
|
15,700 |
|
|
|
77,556 |
|
|
|
|
|
|
|
|
|
|
|
77,556 |
|
Issue common stock to settle severance
obligations |
|
|
111 |
|
|
|
860 |
|
|
|
|
|
|
|
|
|
|
|
860 |
|
Exercise of warrants for cash |
|
|
1,278 |
|
|
|
1,474 |
|
|
|
|
|
|
|
|
|
|
|
1,474 |
|
Net share settlement of warrants |
|
|
330 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercise of stock options |
|
|
1,610 |
|
|
|
2,285 |
|
|
|
|
|
|
|
|
|
|
|
2,285 |
|
Issue common stock pursuant to vesting of
restricted stock units |
|
|
738 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Repurchase of restricted stock |
|
|
(11 |
) |
|
|
(44 |
) |
|
|
|
|
|
|
|
|
|
|
(44 |
) |
Share-based compensation |
|
|
|
|
|
|
6,706 |
|
|
|
|
|
|
|
|
|
|
|
6,706 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2010 |
|
|
45,004 |
|
|
$ |
271,117 |
|
|
$ |
(216,852 |
) |
|
$ |
(1 |
) |
|
$ |
54,264 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Accompanying Notes are an Integral Part of these Financial Statements
F-5
SOMAXON PHARMACEUTICALS, INC.
Notes to Financial Statements
Note 1. Organization and Summary of Significant Accounting Policies
Business
Somaxon Pharmaceuticals, Inc. (Somaxon, the Company, we, us or our), is specialty
pharmaceutical company focused on the in-licensing, development and commercialization of
proprietary branded products and late-stage product candidates to treat important medical
conditions where there is an unmet medical need and/or high-level of patient dissatisfaction,
currently in the central nervous system therapeutic area. In March 2010, the U.S. Food and Drug
Administration, or FDA, approved our New Drug Application, or NDA, for
Silenor® 3 mg and 6 mg tablets for the treatment of insomnia characterized by difficulty
with sleep maintenance. Silenor was made commercially available by prescription in the United
States in September 2010.
Capital Resources
Since inception, our operations have been financed primarily through the sale of equity
securities and the proceeds from the exercise of warrants and stock options. We have incurred
losses from operations and negative cash flows since inception, and we expect to continue to incur
substantial losses for the foreseeable future as we continue our commercial activities for Silenor,
commercialize any other products to which we obtain rights and potentially pursue the development
of other product candidates. As a result, we may need to obtain additional funds to finance our
operations in the future. Until we can generate significant cash from our operations, we intend to
obtain any additional funding we require through strategic relationships, public or private equity
or debt financings, assigning receivables or royalty rights, or other arrangements and we cannot
assure such funding will be available on reasonable terms, or at all.
We believe, based on our current operating plan, that our cash, cash equivalents and
short-term investments as of December 31, 2010 will be sufficient to fund our operations through at
least the first quarter of 2012. The actual period of time through which our
financial resources will be adequate to support our operations could vary based upon many factors,
including but not limited to the rate of growth of Silenor sales and the actual cost of commercial
activities.
If we are unsuccessful in raising sufficient additional funds, our growth plans and our
financial condition or results of operations could be materially adversely impacted, and we may be
required to delay, scale-back or eliminate plans or programs relating to our business, relinquish
some or all of our rights to Silenor, renegotiate less favorable terms with respect to such rights
than we would otherwise choose or cease operating as a going concern. If we are unable to continue
as a going concern, we may have to liquidate our assets and may receive less than the value at
which those assets are carried on our financial statements, and it is likely that investors will
lose all or a part of their investment. These financial statements do not include any adjustments
that might result from the outcome of this uncertainty.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally
accepted in the United States requires management to make estimates and assumptions that affect the
reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at
the date of the financial statements and the reported amounts of revenue and expenses during the
reporting period. Actual results could differ from these estimates.
Cash and Cash Equivalents
All highly liquid investments with maturities of three months or less at the time of purchase
are considered to be cash equivalents. Investments with maturities at the date of purchase greater
than three months are classified as marketable securities. At December 31, 2009, our cash and cash
equivalents consisted primarily of money market funds. At December 31, 2010, our cash and cash
equivalents consisted primarily of available-for-sale securities that
have an original maturity date of three months or less. All of our cash equivalents have
liquid markets and high credit ratings.
F-6
Marketable Securities
Our investments in marketable securities are classified as available-for-sale securities.
Available-for-sale securities are carried at fair market value, with unrealized gains and losses
reported as a component of stockholders equity in accumulated other comprehensive income/loss.
Interest and dividend income is recorded when earned and included in interest income. Premiums and
discounts on marketable securities are amortized and accreted, respectively, to maturity and
included in interest income. Marketable securities with a maturity date of less than one year as of
the balance sheet date are classified as short-term investments, and investments with a maturity of
three months or less from date of purchase are classified as cash equivalents. Marketable
securities with a maturity of more than one year as of the balance sheet date are classified as
long-term investments. We assess the risk of impairment related to securities held in our
investment portfolio on a regular basis and noted no impairment during the year ended December 31,
2010.
Concentration of Credit Risk, Significant Customers and Sources of Supply
Financial instruments that potentially subject us to concentrations of credit risk consist
primarily of cash and cash equivalents, short-term investments, and accounts receivable. We
maintain accounts in federally insured financial institutions in excess of federally insured
limits. We also maintain investments in money market funds and similar short-term investments that
are not federally insured. However, management believes we are not exposed to significant credit
risk due to the financial positions of the depository institutions in which these deposits are held
and of the money market funds and other entities in which these investments are made. Additionally,
we have established guidelines regarding the diversification of our investments and their
maturities that are designed to maintain safety and liquidity.
We sell our product primarily to established wholesale distributors in the pharmaceutical
industry.
The following table sets forth customers who represented 10% or more of our revenues for the
years ended December 31, 2010, 2009 and 2008.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Integrated Commercialization Solutions, Inc. |
|
|
100 |
% |
|
|
|
|
|
|
|
|
All of the accounts receivable balance as of December 31, 2010 represents amounts due
from one wholesale distributor. Credit is extended based on an evaluation of the customers
financial condition. We evaluate the collectability of our accounts receivable based on a variety
of factors, including the length of time the receivables are past due and the financial health of
the customer, and we will use our historical experience in the future. Based upon the review of
these factors, we did not record an allowance for doubtful accounts at December 31, 2010.
We rely on third-party manufacturers for the production of Silenor and single source
third-party suppliers to manufacture key components of Silenor. If our third-party manufacturers
are unable to continue manufacturing Silenor, or if we lost our single source suppliers used in the
manufacturing process, we may not be able to meet market demand for our product.
Inventory
Our inventories are valued at the lower of cost (FIFO) or net realizable value. We analyze our
inventory levels quarterly and write down inventory that has become obsolete or has a cost basis in
excess of its expected net realizable value, as well as any inventory quantities in excess of
expected requirements. We did not record a reserve for inventory as of December 31, 2010.
F-7
Intangible Assets
Our intangible assets consist of the costs incurred to in-license our product and technology
development costs relating to our websites. Prior to the FDA approval of our NDA for Silenor, we
had expensed all license fees and milestone payments for acquired development and commercialization
rights to operations as incurred since the underlying technology associated with these expenditures
related to our research and development efforts and had no alternative future use at the time.
Costs related to our intellectual property are capitalized once technological feasibility has been
established. Capitalized amounts are amortized on a straight line basis over the expected life of
the intellectual property. Licenses fees began being amortized upon the first sales of Silenor to
wholesalers in August 2010 and are being amortized over the expected life of the intellectual
property, which we estimate to be approximately ten years. Costs incurred in the planning stage of
a website are expensed, while costs incurred in the development stage are capitalized and will be
amortized over the expected life of the product associated with the website once the asset is
placed in service.
The carrying values of our intangible assets are periodically reviewed to determine if the
facts and circumstances suggest that a potential impairment may have occurred. We had no impairment
of our intangible assets for the year ended December 31, 2010.
Property and Equipment
Property and equipment is stated at cost less accumulated depreciation. Depreciation is
accounted for using the straight-line method over the estimated useful life of the asset or the
shorter of the lease term or the estimated useful life for leasehold improvements. Useful lives
generally range from three years for computer equipment to five years for furniture, equipment and
tooling.
Impairment of Long-Lived Assets
We assess the recoverability of our long-lived assets by determining whether the carrying
value of such assets can be recovered through undiscounted future operating cash flows. If
impairment is indicated, we measure the amount of such impairment by comparing the fair value to
the carrying value. We did not consider our long-lived assets to be impaired as of December 31,
2010.
Revenue Recognition
We recognize product revenue from product sales when it is realized or realizable and earned.
Revenue is realized or realizable and earned when all of the following criteria are met: (1)
persuasive evidence of an arrangement exists; (2) delivery has occurred or services have been
rendered; (3) our price to the buyer is fixed or determinable; and (4) collectability is reasonably
assured. Revenue from sales transactions where the buyer has the right to return the product is
recognized at the time of sale only if (1) our price to the buyer is substantially fixed or
determinable at the date of sale, (2) the buyer has paid us, or the buyer is obligated to pay us
and the obligation is not contingent on resale of the product, (3) the buyers obligation to us
would not be changed in the event of theft or physical destruction or damage of the product, (4)
the buyer acquiring the product for resale has economic substance apart from that provided by us,
(5) we do not have significant obligations for future performance to directly bring about resale of
the product by the buyer, and (6) the amount of future returns can be reasonably estimated.
We sell Silenor to wholesale pharmaceutical distributors. Our returned goods policy generally
permits our customers to return products up to six months before and up to twelve months after the
expiration date of the product. We authorize returns for expired or damaged products in accordance
with our returned goods policy and issue credit to our customers for expired or damaged returned
product. We do not exchange product from inventory for returned product. As of December 31, 2010,
we have not received any returns.
We are unable to reliably estimate returns at this time. Therefore, we have determined that
shipment of product to wholesale distributors does not meet the criteria for revenue recognition at
the time of shipment. Until we are able to reliably estimate returns, we defer revenue recognition
until the right of return no longer exists, which is the earlier of Silenor being dispensed through
patient prescriptions or the expiration of the right of return. We estimate patient prescriptions
dispensed using an analysis of third-party information. For the year ended December 31, 2010, we
recognized product revenue of $1.4 million, which was net of estimated product sales discounts and
allowances. At December 31, 2010, we had a deferred revenue balance of $3.5 million which was also
recorded net of estimated
product sales discounts and allowances. We have also deferred the related cost of product
sales and recorded such amount as finished goods inventory held by others, which was $0.3 million
as of December 31, 2010.
F-8
Until we can reliably estimate product returns, we will continue to recognize revenue upon the
earlier to occur of prescription units dispensed or the expiration of the right of return. In
order to develop a methodology and provide a basis for estimating future product returns on sales
to customers at the time of product shipment, we are analyzing many factors, including industry
data of product return rates, and tracking the Silenor product return history, taking into account
product expiration dating at the time of shipment and levels of inventory in the wholesale channel.
We may use some or all of these factors in establishing a basis for estimating future product returns
on sales to customers at the time of product shipment.
Product Sales Discounts and Allowances
We record product sales discounts and allowances at the time of sale and report revenue net of
such amounts in the same period that product sales are recorded. In determining the amount of
product sales discounts and allowances, we must make significant judgments and estimates. If
actual results vary from our estimates, we may need to adjust these estimates, which could have an
effect on product revenue in the period of adjustment. Our product sales discounts and allowances
and the specific considerations we use in estimating these amounts include:
Prompt Pay Discounts. As an incentive for prompt payment, we offer a 2% cash discount to
customers. We expect that all customers will comply with the contractual terms to earn the
discount. We recorded the discount as an allowance against accounts receivable and a reduction of
revenue. At December 31, 2010 and 2009, the allowance for prompt pay discounts was $114,000 and
$0, respectively.
Product Launch Discounts. For a limited time that ended September 30, 2010, we offered
additional discounts to wholesale distributors for product purchased. We recorded the discount as
an allowance against accounts receivable and a reduction of revenue based on orders placed. At
December 31, 2010 and 2009, the allowance for product launch discounts was $277,000 and $0,
respectively.
Patient Discount Programs. We offer discount card programs to patients of Silenor under which
the patient receives a discount on his or her prescription. We reimburse pharmacies for this
discount through a third-party vendor. We estimate the total amount that will be redeemed based on
the dollar amount of the discount, the timing and quantity of distribution and historical
redemption rates. We accrued the discount and recognized a reduction of revenue. At December 31,
2010 and 2009, the accrual for patient discount programs was $182,000 and $0, respectively.
Distribution Service Fees. We pay distribution services fees to each wholesaler for
distribution and inventory management services. We accrued for the fees based on contractually
defined terms with each wholesaler and recognized a reduction of revenue. At December 31, 2010 and
2009, the accrual for distribution service fees was $276,000 and $0, respectively.
Chargebacks. We provide discounts to federal government qualified entities with whom we have
contracted. These federal entities purchase products from the wholesalers at a discounted price,
and the wholesalers then charge back to us the difference between the current retail price and the
contracted price the federal entity paid for the product. We accrued chargebacks based on contract
prices and sell-through sales data obtained from third party information. At December 31, 2010 and
2009, the accrual for chargebacks was $9,000 and $0, respectively.
Rebates. We participate in certain rebate programs, which provide discounted prescriptions to
qualified insured patients. Under these rebate programs, we pay a rebate to the third-party
administrator of the program. We accrued rebates based on contract prices, estimated percentages of
product sold to qualified patients and estimated levels of inventory in the distribution channel.
At December 31, 2010 and 2009, the accrual for rebates was $6,000 and $0, respectively.
F-9
Cost of Sales
Cost of sales includes the costs to manufacture, package, and ship Silenor, including
personnel costs associated with manufacturing oversight, as well as royalties associated with our
license agreement with ProCom One, Inc. (ProCom).
Share-Based Compensation Expense
Share-based expense for employees and directors is recognized in the statement of operations
based on estimated amounts, including the grant date fair value, the probability of achieving
performance conditions and the expected service period for awards with conditional vesting
provisions. We estimate the grant date fair value for our stock option awards using the
Black-Scholes valuation model which requires the use of multiple subjective inputs including
estimated future volatility, expected forfeitures and the expected term of the stock option award.
Our stock did not have a readily available market prior to our initial public offering in December
2005, creating a relatively short history from which to obtain data to estimate the volatility of
our stock price. Consequently, we estimate expected future volatility based on a combination of
both comparable companies and our own stock price volatility to the extent such history is
available. The expected term for stock options is estimated using guidance provided by the
Securities and Exchange Commission (SEC) in Staff Accounting Bulletin (SAB) No. 107 and SAB
110. This guidance provides a formula-driven approach for determining the expected term.
Share-based compensation is based on awards expected to ultimately vest and has been reduced for
estimated forfeitures. The estimated forfeiture rates may differ from actual forfeiture rates which
would affect the amount of expense recognized during the period. Estimated forfeitures are adjusted
to actual amounts as they become known.
We recognize the value of the portion of the awards that are ultimately expected to vest on a
straight-line basis over the awards requisite service period. The requisite service period is
generally the time over which our share-based awards vest. Some of our share-based awards vested
upon achieving certain performance conditions, generally pertaining to the commercial launch of
Silenor or the achievement of other strategic objectives. Share-based compensation expense for
awards with performance conditions is recognized over the period from the date the performance
condition is determined to be probable of occurring through the time the applicable condition is
met. If the performance condition is not considered probable of being achieved, no expense is
recognized until such time the performance condition is considered probable of being met.
Income Taxes
Our income tax expense consists of current and deferred income tax expense or benefit. Current
income tax expense or benefit is the amount of income taxes expected to be payable or refundable
for the current year. A deferred income tax asset or liability is recognized for the future tax
consequences attributable to tax credits and loss carryforwards and to differences between the
financial statement carrying amounts of existing assets and liabilities and their respective tax
bases. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management,
it is more likely than not that some portion or all of the deferred tax assets will not be
realized. As of December 31, 2010, we have established a valuation allowance to fully reserve our
net deferred tax assets. Tax rate changes are reflected in income during the period such changes
are enacted. Changes in ownership may limit the amount of net operating loss carryforwards that can
be utilized in the future to offset taxable income.
Comprehensive Income (Loss)
Comprehensive income (loss) is net income (loss) plus certain other items that are recorded
directly to stockholders equity, which for Somaxon consists of changes in unrealized gains and
losses on marketable securities classified as available-for-sale. We report comprehensive income
(loss) in the Statement of Stockholders Equity and Comprehensive Loss. In the event an
available-for-sale security is sold prior to its maturity, the related unrealized gain or loss on
the investment is recognized in the income statement on a specific identification basis. We did not
have any realized gains or losses on sales of available-for-sale securities for the year ended 2010
and had insignificant realized gains and losses on sales of available-for-sale securities for each
of the years ended 2009 and 2008.
Net Loss per Share
Basic earnings per share (EPS) excludes the effects of common stock equivalents. It is
calculated by dividing net income or loss applicable to common stockholders by the weighted average
number of common shares
outstanding for the period, which is net of the weighted average number of unvested common
shares outstanding that are subject to repurchase. Diluted EPS is computed in the same manner as
basic EPS, but includes the effects of common stock equivalents to the extent they are dilutive,
using the treasury-stock method. For Somaxon, basic and diluted EPS are equivalent because we
incurred a net loss in all periods presented, causing any potentially dilutive securities to be
anti-dilutive.
F-10
Net loss per share was determined as follows (in thousands, except per share amounts):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
Numerator |
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(38,813 |
) |
|
$ |
(14,443 |
) |
|
$ |
(37,227 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Denominator |
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average common shares outstanding |
|
|
33,615 |
|
|
|
21,077 |
|
|
|
18,427 |
|
Weighted average unvested common shares subject to repurchase |
|
|
(22 |
) |
|
|
(125 |
) |
|
|
(146 |
) |
|
|
|
|
|
|
|
|
|
|
Denominator for basic and diluted net loss per share |
|
|
33,593 |
|
|
|
20,952 |
|
|
|
18,281 |
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted net loss per share |
|
$ |
(1.16 |
) |
|
$ |
(0.69 |
) |
|
$ |
(2.04 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average anti-dilutive securities not included in
diluted net loss per share |
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average stock options outstanding |
|
|
3,566 |
|
|
|
4,496 |
|
|
|
4,234 |
|
Weighted average warrants outstanding |
|
|
3,028 |
|
|
|
2,903 |
|
|
|
248 |
|
Weighted average restricted stock units outstanding |
|
|
715 |
|
|
|
1,198 |
|
|
|
57 |
|
Weighted average unvested common shares subject to repurchase |
|
|
22 |
|
|
|
125 |
|
|
|
146 |
|
|
|
|
|
|
|
|
|
|
|
Total weighted average anti-dilutive securities not
included in diluted net loss per share |
|
|
7,331 |
|
|
|
8,722 |
|
|
|
4,685 |
|
|
|
|
|
|
|
|
|
|
|
Recent Accounting Pronouncements
In October 2009, the Financial Accounting Standards Board (FASB) issued Accounting Standards
Update (ASU) No. 2009-13 Revenue Recognition, which provides guidance on recognizing revenue in
arrangements with multiple deliverables. This standard impacts the determination of when the
individual deliverables included in a multiple element arrangement may be treated as a separate
unit of accounting. It also modifies the manner in which the consideration received from the
transaction is allocated to the multiple deliverables and no longer permits the use of the residual
method of allocating arrangement consideration. This accounting standard is effective for the first
year beginning on or after June 15, 2010, with early adoption permitted. We do not expect the
adoption of ASU 2009-13 to have a material impact on our financial statements.
Note 2. Fair Value of Financial Instruments
Cash and investment holdings, accounts receivable, accounts payable and accrued liabilities
are presented in the financial statements at their carrying amounts, which are reasonable estimates
of fair value due to their short maturities.
The fair value of financial assets and liabilities is measured under a framework that
establishes levels which are defined as follows: Level 1 fair value is determined from
observable, quoted prices in active markets for identical assets or liabilities. Level 2 fair value
is determined from quoted prices for similar items in active markets or quoted prices for identical
or similar items in markets that are not active. Level 3 fair value is determined using the
entitys own assumptions about the inputs that market participants would use in pricing an asset or
liability. The fair value of our investment holdings is summarized in the following tables (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2010 |
|
|
|
Total Fair |
|
|
Fair Value Determined Under: |
|
|
|
Value |
|
|
(Level 1) |
|
|
(Level 2) |
|
|
(Level 3) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commercial paper |
|
$ |
18,415 |
|
|
$ |
|
|
|
$ |
18,415 |
|
|
$ |
|
|
U.S.
government agency securities |
|
|
30,628 |
|
|
|
|
|
|
|
30,628 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
49,043 |
|
|
$ |
|
|
|
$ |
49,043 |
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-11
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2009 |
|
|
|
Total Fair |
|
|
Fair Value Determined Under: |
|
|
|
Value |
|
|
(Level 1) |
|
|
(Level 2) |
|
|
(Level 3) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Money market funds |
|
$ |
4,627 |
|
|
$ |
4,627 |
|
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
4,627 |
|
|
$ |
4,627 |
|
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commercial paper and U.S. government agency securities are classified as part of either cash
and cash equivalents or short-term investments in the balance sheets. The carrying value of
short-term investments consisted of the following as of December 31, 2010 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortized |
|
|
Unrealized |
|
|
Unrealized |
|
|
Fair Market |
|
|
|
Cost |
|
|
Gains |
|
|
Losses |
|
|
Value |
|
Commercial paper |
|
$ |
18,415 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
18,415 |
|
U.S. government agency securities |
|
|
30,629 |
|
|
|
2 |
|
|
|
(3 |
) |
|
|
30,628 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
49,044 |
|
|
$ |
2 |
|
|
$ |
(3 |
) |
|
$ |
49,043 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Available-for-sale marketable securities with maturities of three months or less from date of
purchase have been classified as cash equivalents, and amounted to $15.2 million as of December 31,
2010. As of December 31, 2009, we did not hold any available-for-sale marketable securities.
Note 3. Composition of Certain Balance Sheet Items
Accounts Receivable
Accounts receivable, net consisted of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2010 |
|
|
2009 |
|
Accounts receivable for product sales, gross |
|
$ |
5,975 |
|
|
$ |
|
|
Allowances for discounts |
|
|
(391 |
) |
|
|
|
|
|
|
|
|
|
|
|
Total accounts receivable |
|
$ |
5,584 |
|
|
$ |
|
|
|
|
|
|
|
|
|
Inventory
Inventory consisted of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2010 |
|
|
2009 |
|
Raw materials |
|
$ |
45 |
|
|
$ |
|
|
Work in process |
|
|
162 |
|
|
|
|
|
Finished goods inventory held by the Company |
|
|
515 |
|
|
|
|
|
Finished goods inventory held by others |
|
|
269 |
|
|
|
|
|
|
|
|
|
|
|
|
Total inventory |
|
$ |
991 |
|
|
$ |
|
|
|
|
|
|
|
|
|
Other Current Assets
Other current assets consisted of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2010 |
|
|
2009 |
|
Deposits and other prepaid expenses |
|
$ |
641 |
|
|
$ |
352 |
|
Prepaid sales and marketing expenses |
|
|
529 |
|
|
|
|
|
Other miscellaneous receivable |
|
|
274 |
|
|
|
|
|
Interest receivable |
|
|
206 |
|
|
|
|
|
Other current assets |
|
|
232 |
|
|
|
57 |
|
|
|
|
|
|
|
|
Total other current assets |
|
$ |
1,882 |
|
|
$ |
409 |
|
|
|
|
|
|
|
|
F-12
Property and Equipment
Property and equipment consisted of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2010 |
|
|
2009 |
|
Tooling |
|
$ |
832 |
|
|
$ |
772 |
|
Computer equipment |
|
|
354 |
|
|
|
147 |
|
Furniture and equipment |
|
|
66 |
|
|
|
58 |
|
|
|
|
|
|
|
|
Property and equipment, at cost |
|
|
1,252 |
|
|
|
977 |
|
Less: accumulated depreciation |
|
|
(497 |
) |
|
|
(200 |
) |
|
|
|
|
|
|
|
Property and equipment, net |
|
$ |
755 |
|
|
$ |
777 |
|
|
|
|
|
|
|
|
Depreciation expense was $347,000, $83,000 and $115,000 for the years ended 2010, 2009 and
2008, respectively.
Intangible Assets
Intangible assets consisted of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2010 |
|
|
2009 |
|
License fees |
|
$ |
1,000 |
|
|
$ |
|
|
Technology development costs relating to websites |
|
|
147 |
|
|
|
|
|
Less: accumulated amortization |
|
|
(45 |
) |
|
|
|
|
|
|
|
|
|
|
|
Total intangible assets, net |
|
$ |
1,102 |
|
|
$ |
|
|
|
|
|
|
|
|
|
Amortization expense was $45,000 for the year ended 2010 and $0 for the years ended 2009 and
2008. We estimate the aggregate amortization expense for the next five years to be $120,000 per
year.
Accrued Liabilities
Accrued liabilities consisted of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2010 |
|
|
2009 |
|
Accrued fees and royalties |
|
$ |
1,566 |
|
|
$ |
|
|
Accrued compensation and benefits |
|
|
1,329 |
|
|
|
156 |
|
Accrued severance |
|
|
293 |
|
|
|
1,659 |
|
Accrued liability to third party sales organization |
|
|
842 |
|
|
|
|
|
Accrued product discounts and allowances |
|
|
473 |
|
|
|
|
|
Other accrued expenses |
|
|
1,196 |
|
|
|
|
|
|
|
|
|
|
|
|
Total accrued liabilities |
|
$ |
5,699 |
|
|
$ |
1,815 |
|
|
|
|
|
|
|
|
From March through May 2009, we terminated the employment of thirteen employees as part of a
general cost reduction initiative resulting from ongoing delays in the Silenor NDA approval
process. Each of the terminated employees entered into a separation agreement and a separate
consulting arrangement with us. We paid $513,000 to these former employees during 2009 under these
separation agreements, and had a remaining deferred severance obligation of $1,659,000 as of
December 31, 2009. During 2010, we settled $860,000 of this deferred severance obligation through
the issuance of common stock and paid $506,000 to these former employees. The remaining deferred
severance obligation was settled in January 2011.
F-13
Note 4. License Agreements
In August 2003, we entered into an exclusive worldwide in-license agreement with ProCom to
develop and commercialize Silenor for the treatment of insomnia. This agreement was amended and
restated in September 2010. The term of the license extends until the last licensed patent
expires, which is expected to occur no earlier than 2020. The license agreement is terminable by us
at any time with 30 days notice if we believe that the use of the product poses an unacceptable
safety risk or if it fails to achieve a satisfactory level of efficacy. Either party may terminate
the agreement with 30 days notice if the other party commits a material breach of its obligations
and fails to remedy the breach within 90 days, or upon the filing of bankruptcy, reorganization,
liquidation, or receivership proceedings. Costs related to the licensed intellectual property made
after approval of the Silenor NDA by the FDA in March 2010 have been capitalized and included in
intangibles in our balance sheet as of December 31, 2010. Capitalized amounts are amortized on a
straight line basis over the expected life of the intellectual property which we estimate to be
approximately 10 years. Royalty payments due under the terms of the agreement are recorded in
accrued liabilities as of December 31, 2010. The royalty payments will be recognized as an expense
in cost of sales when the related shipments of product are recognized as revenue.
In October 2006, we entered into a supply agreement pertaining to a certain ingredient used in
the formulation for Silenor. In August 2008, this supply agreement was amended to provide us with
the exclusive right to use this ingredient in combination with doxepin. Pursuant to the amendment,
we are obligated to pay a royalty on worldwide net sales of Silenor beginning as of the expiration
of the statutory exclusivity period for Silenor in each country in which Silenor is marketed. Such
royalty is only payable if one or more patents under the license agreement continue to be valid in
each such country and a patent relating to our formulation for Silenor has not issued in such
country.
Note 5. Commitments and contingencies
Commitments
In July 2010, we entered into a professional detailing services agreement with Publicis
Touchpoint Solutions, Inc. (Publicis), under which Publicis will provide sales support to promote
Silenor in the U.S. through 110 full-time sales representatives, one regional field
coordinator and one national business director, all of whom will be employees of Publicis. We will
recognize the revenue from Silenor product sales generated by the promotional efforts of the sales
organization. Under the terms of the agreement, we were required to pay a one-time start up fee,
and we are required to pay a fixed monthly fee, which is subject to certain quarterly adjustments
based on actual staffing and spending levels. During the term of the agreement, a portion of
Publicis management fee will be subject to payment by us only to the extent that specified
performance targets are achieved. The performance targets relate to initial scale-up activities,
turnover and vacancy rates, call attainment and specified sales goals. In addition, we are
obligated to reimburse the sales organization for approved pass-through costs, which primarily
include bonuses, meeting and travel costs and certain administrative expenses.
The services agreement has an initial two-year term, and may be extended by us by providing
Publicis with written notification no later than 90 days prior to the expiration of the initial
term, subject to agreement on compensation terms with Publicis. Prior to the first anniversary of
the deployment of Publicis sales representatives, we have the right to terminate the services
agreement upon 90 days written notice and payment to Publicis of a termination fee in a specified
amount. We have the right to terminate the services agreement upon 90 days written notice after the
one year anniversary of the deployment of Publicis sales representatives without paying a
termination fee. We may also terminate the services agreement without paying a termination fee by
hiring a specified number of sales representatives. In addition, either party may terminate the
services agreement upon an uncured material breach by the other party, upon the bankruptcy or
insolvency of the other party or if a change in law renders the performance of a material
obligation of the services agreement unlawful. If termination occurs during the initial two-year
term, we assume financial responsibility for the remaining lease payments for the sales
representatives vehicles which have a two-year lease term.
We entered into an amended and restated agreement with Publicis in February 2011, as discussed
in Note 11 Subsequent Events.
F-14
In August 2010, we entered into a co-promotion agreement with P&G under which P&G will provide
sales support to promote Silenor in the U.S. through its team of full-time sales representatives.
Beginning in January 2011, P&G will also provide certain managed care support
services. We will recognize the revenue from Silenor product sales generated by the promotional
efforts of P&G. Under the terms of the agreement, we are
required to pay P&G a fixed fee and a royalty fee as a percentage of U.S. net sales, in each case on a quarterly
basis during the term of the agreement. The fees are recognized as a sales, general, and
administrative expense and are recorded in accrued liabilities as of December 31, 2010. The
agreement also provides for financial penalties in the event that either party fails to deliver
specified minimum detailing requirements under certain circumstances. Each party will be
responsible for the costs of training, maintaining and operating its own sales force, and we are
responsible for all other costs pertaining to the commercialization of Silenor.
The term of the agreement is from August 2010 through December 2012, and we will pay P&G a reduced royalty fee based on U.S. net sales of Silenor for one year after the expiration
of the agreement or its earlier termination under certain circumstances. Beginning as of June 30,
2012, the parties will discuss in good faith the continuation of the collaboration upon
mutually-agreed terms and conditions. We have the right to terminate the agreement upon 90 days
written notice if P&G fails to provide at least 75% of its minimum detailing
obligations. Beginning October 1, 2011, P&G may cure such shortfall for a calendar
quarter one time each calendar year during the calendar quarter immediately following such
shortfall. Either party may terminate the agreement upon 90 days written notice to the other party,
although no such termination may be effective prior to December 31, 2011. P&G may
terminate the agreement if Silenor is withdrawn from the market for longer than three months as the
result of a legal requirement or 30 days after the end of a calendar quarter in which the market
share for Silenor is less than 75% of the Silenor market share immediately prior to the loss of
Silenors market exclusivity in the U.S. In addition, either party may terminate the agreement upon
a large scale recall or withdrawal of Silenor from the U.S. resulting from a significant safety
risk that is not due to tampering, a remediable manufacturing problem or other defect that can be
cured after such risk is discovered. Either party may also terminate the agreement upon an uncured
material breach by the other party, upon the bankruptcy or insolvency of the other party or a force
majeure event that lasts for at least six months.
We have contracted with various consultants, drug manufacturers, wholesalers, and other
vendors to assist in clinical trial work, data analysis, and commercialization activities for
Silenor. The contracts are terminable at any time, but obligate us to reimburse the providers for
any time or costs incurred through the date of termination. At December 31, 2010, we had $2.3
million of non-cancellable purchase orders outstanding.
We have employment agreements with certain of our current employees that provide for severance
payments and accelerated vesting for certain share-based awards if their employment is terminated
under specified circumstances.
Leasing arrangements
In April 2010, we entered into a new lease arrangement to rent approximately 6,000 square feet
of office space for 12 months beginning on May 1, 2010 for a monthly rental of $18,000 plus other
pass-through charges. Rent expense for
2010, 2009, and 2008 was $178,000, 88,000, and $1,371,000, respectively.
Litigation
In November 2010, we received a notice from each of Actavis Elizabeth LLC and Mylan
Pharmaceuticals Inc. that each has filed with the FDA an Abbreviated New Drug Application (ANDA)
for a generic version of Silenor 3 mg and 6 mg tablets. The notices each included a paragraph IV
certification with respect to seven of the eight patents listed in the FDAs Approved Drug
Products with Therapeutic Equivalence Evaluations, commonly known as the Orange Book, for Silenor.
A paragraph IV certification is a certification by a generic applicant that in the opinion of that
applicant, the patent(s) listed in the Orange Book for a branded product are invalid,
unenforceable, and/or will not be infringed by the manufacture, use or sale of the generic product.
F-15
On December 15, 2010, we, together with ProCom, filed suit in the United States
District Court for the District of Delaware against each of Actavis Elizabeth LLC and Actavis Inc.
(collectively, Actavis), and Mylan Pharmaceuticals Inc. and Mylan, Inc., (collectively, Mylan).
The lawsuit alleges that Actavis and Mylan have each infringed U.S. Patent No. 6,211,229 by filing
ANDAs seeking approval from the FDA to market generic versions of Silenor 3 mg and 6 mg tablets
prior to the expiration of this patent. Pursuant to the provisions of the Hatch-Waxman Act, FDA
final approval of each of the Actavis and Mylan ANDAs can occur no earlier than May 3, 2013, unless
there is an earlier court decision that the 229 patent is not infringed and/or invalid or unless
any party to the action is found to have failed to cooperate reasonably to expedite the
infringement action. At this time, other patents listed in the Orange Book for Silenor have not
been asserted against either Mylan or Actavis.
On December 23, 2010, we received a notice from Par Pharmaceuticals, Inc. that it has filed
with the FDA an ANDA for a generic version of Silenor 3 mg and 6 mg tablets. This notice included a
paragraph IV certification with respect to seven of the eight patents listed in the Orange Book
for Silenor.
We filed suit against Par in February 2011 as discussed in Note 11 Subsequent Events.
We intend to vigorously enforce our intellectual property rights relating to Silenor, but
cannot predict the outcome of these matters.
Note 6. Stockholders Equity
Public Offerings of Common Stock
In March 2010, we issued 6,900,000 shares of common stock in a public offering of our stock.
The net proceeds from the offering, after underwriting discounts and commissions and offering costs
of $4,180,000, were approximately $52,745,000.
In November 2010, we issued 8,800,000 shares of common stock in a public offering of our
stock. The net proceeds from the offering, after underwriting discounts and commissions and
offering costs of $1,149,000, were approximately $24,811,000.
Private Placement of Common Stock
In July 2009, we issued in a private placement 5,106,000 shares of common stock at $1.05 per
share and warrants to purchase up to 5,106,000 shares of common stock at $0.125 per share for
aggregate combined gross proceeds of $6,000,000. Net proceeds from the offering were $5,732,000
after deducting financing costs of $268,000. The warrants have seven-year terms, an exercise price
of $1.155, are immediately exercisable, and expire in July 2016. The warrants do not include a net
cash settlement provision or any other provisions that would create liability classification and
are included in stockholders equity. In connection with the private placement, we filed a
registration statement with the SEC for the resale of both the shares of common stock purchased by
the investors and the shares of common stock issuable upon exercise of the warrants. The resale
registration statement was declared effective by the SEC in August 2009. We also agreed to other
customary obligations regarding registration, including matters relating to indemnification,
maintenance of the registration statement and payment of expenses.
We may be liable for liquidated damages if we do not maintain the effectiveness of the
registration statement or the listing of its common stock on the Nasdaq Capital Market, the Nasdaq
Global Market, the New York Stock Exchange or the American Stock Exchange, in each case for a
period of ten consecutive days or for more than thirty days in any 365-day period. The amount of
the liquidated damages is one percent per applicable ten or thirty day period, subject to an
aggregate maximum of eight percent per calendar year, of the aggregate purchase price of the common
stock purchased in the private placement then held by each investor that are registrable
securities. We do not believe it is probable that it will be required to pay liquidated damages and
have not recognized any amounts in the financial statements related to such potential liquidated
damages.
F-16
Warrants
At December 31, 2010, we have warrants outstanding to purchase 2,417,632 shares of our common
stock. These warrants are immediately exercisable, have remaining terms of three to eight years,
exercise prices ranging from $1.155 to $5.4175 per share, and a weighted average exercise price of
$1.41 per share.
Preferred Stock
Concurrent with our initial public offering in December 2005, 10,000,000 shares of preferred
stock were authorized, none of which have been issued or are outstanding as of December 31, 2010.
Note 7. Share-Based Compensation
We have issued and intend to continue to issue stock options, restricted stock units (RSUs)
and restricted stock awards under our equity incentive award plans. We have equity awards
outstanding under both our 2004 Equity Incentive Award Plan (the 2004 Plan) and our 2005 Equity
Incentive Award Plan (the 2005 Plan). During 2010, we had the following types of equity awards
outstanding:
|
|
|
Stock Options: Stock options generally have ten-year terms and vest over a period of
between one and four years and are service-based. The exercise price for our stock
options is generally equal to the closing stock price at the date of grant. |
|
|
|
Restricted Stock Units: RSUs, which are convertible into an equivalent number of
shares of common stock upon vesting, have been granted to employees and members of our
board of directors. The majority of our outstanding RSUs vested during 2010 upon
achieving certain criteria relating to matters such as approval of the NDA for Silenor by the FDA and the
commercialization of Silenor. |
|
|
|
Restricted Stock: All of our restricted stock awards were initially granted to
employees and members of our board of directors, but certain former employees continued
to vest in their restricted stock awards under consulting agreements entered into upon
termination of their employment. All of our restricted stock vested during 2010. |
We issue equity awards under our 2005 Plan. The 2005 Plan contains an evergreen provision
that allows annual increases in the number of shares available for issuance on the first day of
each year through January 1, 2015 in an amount equal to the lesser of: (i) 2,000,000 shares, (ii)
5% of the outstanding capital stock on each January 1, or (iii) an amount determined by our board
of directors. As of December 31, 2010, an aggregate of 2,131,000 shares of common stock were
authorized and available for issuance under the 2005 Plan. Under the evergreen provision, on
January 1, 2011, an additional 2,000,000 shares became available for issuance under the 2005 Plan.
We also have an employee stock purchase plan (ESPP) which allows employees to contribute up
to 20% of their cash earnings, subject to certain maximums, to be used to purchase shares of our
common stock on each semi-annual purchase date. The purchase price is equal to 95% of the market
value per share on each purchase date. Our ESPP is non-compensatory pursuant to the provisions of
generally accepted accounting principles for share-based compensation expense. The ESPP contains an
evergreen provision with annual increases in the number of shares available for issuance on the
first day of each year through January 1, 2015 equal to the lesser of: (i) 300,000 shares, (ii) 1%
of the outstanding capital stock on each January 1, or (iii) an amount determined by our board of
directors. As of December 31, 2010, an aggregate of 1,102,000 shares of common stock were
authorized and available for issuance under the ESPP. Under the evergreen provision, on January 1,
2011, an additional 300,000 shares were authorized under our ESPP. No shares have been issued under
the ESPP through December 31, 2010.
Share-Based Compensation Expense
The following table summarizes share-based compensation expense recognized in 2010, 2009, and
2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
Share-based compensation expense included in selling, general and
administrative expense |
|
$ |
5,412 |
|
|
$ |
4,637 |
|
|
$ |
4,254 |
|
Share-based compensation expense included in research and development expense |
|
|
1,294 |
|
|
|
1,526 |
|
|
|
2,045 |
|
|
|
|
|
|
|
|
|
|
|
Total share-based compensation expense |
|
$ |
6,706 |
|
|
$ |
6,163 |
|
|
$ |
6,299 |
|
|
|
|
|
|
|
|
|
|
|
F-17
Included in the table for 2009 is the effect of the termination of employment for certain
individuals which created an acceleration of share-based compensation expense. During 2009, fifteen
employees ceased employment and entered into a consulting agreement with us. Also, in 2009 upon
separation from the Company, certain individuals received accelerated vesting of their share-based
awards. As a result of such non-substantive consulting arrangements and accelerated vesting, we
recognized $2,360,000 of share-based compensation expense during 2009 on the dates of termination.
The table above also includes compensation costs of $658,000 in 2009 from our one-time stock
option exchange program that was completed in June 2009. Under the program, employees and
directors as of March 1, 2009 were eligible to exchange their stock options having exercise prices
above $1.00 for the grant of a lesser number of replacement awards having an exercise price of
$1.23. In total, 4,320,000 stock options were tendered in exchange for 2,880,000 replacement
awards. One-third of the replacement awards vested upon grant and the remaining two-thirds vest in
equal monthly installments over the following two year period such that all the shares will be
fully vested in June 2011, subject to the participants continued service.
Stock Options
We use the Black-Scholes model to estimate the grant date fair value of stock options. To
calculate these fair values, the following assumptions were used:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
Risk free interest rate |
|
|
2.5% to 3.0% |
|
|
|
1.9% to 2.9% |
|
|
|
2.6% to 3.6% |
|
Expected term |
|
|
5.25 to 6.25 years |
|
|
|
5.25 to 6.25 years |
|
|
|
5.25 to 6.25 years |
|
Expected volatility |
|
|
86% to 88% |
|
|
|
74% to 84% |
|
|
|
64% to 74% |
|
Weighted average volatility |
|
|
87% |
|
|
|
78% |
|
|
|
69% |
|
Expected dividend yield |
|
|
0% |
|
|
|
0% |
|
|
|
0% |
|
Fair value of underlying stock |
|
|
$2.69 to $8.59 |
|
|
|
$1.17 to $2.18 |
|
|
|
$0.98 to $4.93 |
|
Weighted average fair value
of stock options granted |
|
|
$4.89 |
|
|
|
$1.19 |
|
|
|
$2.85 |
|
The following table summarizes our stock options as of December 31, 2010 and the activity for
the year then ended (share and dollar amounts in thousands, except per-share exercise prices):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
Average |
|
|
Aggregate |
|
|
|
|
|
|
|
Average |
|
|
Contractual |
|
|
Intrinsic Value |
|
|
|
Shares |
|
|
Exercise Price |
|
|
Term (in years) |
|
|
(in thousands) |
|
Outstanding at December 31, 2009 |
|
|
3,828 |
|
|
$ |
1.45 |
|
|
|
|
|
|
|
|
|
Granted |
|
|
1,591 |
|
|
|
6.58 |
|
|
|
|
|
|
|
|
|
Exercised |
|
|
(1,610 |
) |
|
|
1.45 |
|
|
|
|
|
|
$ |
5,883 |
|
Forfeited |
|
|
(427 |
) |
|
|
1.48 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2010 |
|
|
3,382 |
|
|
$ |
3.86 |
|
|
|
8.3 |
|
|
$ |
3,200 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vested and exercisable at December 31, 2010 |
|
|
1,574 |
|
|
$ |
1.66 |
|
|
|
7.48 |
|
|
$ |
2,637 |
|
The intrinsic value of an equity award is the difference between the fair value of the
underlying stock and its exercise price. If the exercise price equals or exceeds the fair value of
the underlying stock, then the award is considered to have a zero intrinsic value. The following
table summarizes certain information for options (in thousands).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
Fair value of vested stock options |
|
$ |
1,563 |
|
|
$ |
|
|
|
$ |
20 |
|
Intrinsic value of exercised stock options |
|
$ |
5,883 |
|
|
$ |
225 |
|
|
$ |
8 |
|
F-18
Unrecognized compensation expense related to non-vested stock options totaled $7.1 million as
of December 31, 2010. Such compensation expense is expected to be recognized over a
weighted-average period of 1.65 years.
We did not realize any tax benefits from option exercises during 2010, 2009 and 2008.
Restricted Stock Units and Awards
Restricted Stock Units The following table summarizes our restricted stock units as of December
31, 2010 and the activity during the year then ended (share numbers in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Employee and Director |
|
|
|
|
|
|
|
|
|
Awards |
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
|
|
|
|
|
|
|
Average |
|
|
|
|
|
|
|
|
|
|
|
|
|
Grant Date |
|
|
Consultant |
|
|
Total |
|
|
|
|
|
|
|
Fair Value |
|
|
Awards |
|
|
Awards |
|
|
|
# Shares |
|
|
per Share |
|
|
# Shares |
|
|
# Shares |
|
December 31, 2009 |
|
|
740 |
|
|
$ |
0.87 |
|
|
|
107 |
|
|
|
847 |
|
Granted |
|
|
187 |
|
|
|
8.55 |
|
|
|
|
|
|
|
187 |
|
Vested |
|
|
(679 |
) |
|
|
1.56 |
|
|
|
(59 |
) |
|
|
(738 |
) |
Forfeited |
|
|
(123 |
) |
|
|
0.96 |
|
|
|
(48 |
) |
|
|
(171 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2010 |
|
|
125 |
|
|
$ |
8.52 |
|
|
|
|
|
|
|
125 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The intrinsic value of an RSU is equal to our stock price. The intrinsic value of vested RSUs
was $2,161,000, $235,000, and zero during 2010, 2009, and 2008, respectively. The weighted average
grant date fair value per share for RSUs granted in 2009 and 2008 was $1.28 and $1.21,
respectively. Unrecognized compensation expense related to non-vested RSUs totaled $0.7 million as
of December 31, 2010. Such compensation expense is expected to be recognized over a
weighted-average period of 1.42 years.
Restricted Stock Awards At December 31, 2009, there were 60,000 nonvested restricted stock awards
for employees and directors and 45,000 nonvested restricted stock awards for consultants. The
weighted average grant date fair value per share, which is used in recording share-based
compensation expense for employees and directors, was $11.40 for nonvested restricted stock awards
as of December 31, 2009. (Share-based expense for consultant awards is measured using the stock
price at the date of vesting and therefore there is no weighted average grant date fair value per
share.) During 2010, all of these outstanding restricted stock awards vested, resulting in
compensation expense of $861,000. In connection with the settlement of the tax obligations
associated with the vesting of these awards, certain shareholders surrendered 11,000 shares with a
fair value of $44,000. At December 31, 2010, we do not have any non-vested restricted stock
awards outstanding. The intrinsic value of restricted stock is equal to our stock price. The intrinsic value
of vested restricted stock awards was $414,000, zero, and $210,000 in 2010, 2009, and 2008,
respectively.
Note 8. Income taxes
We have incurred losses since inception, so no current income tax provision or benefit has
been recorded. Significant components of our net deferred tax assets are shown in the table below
(amounts are in thousands).
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2010 |
|
|
2009 |
|
Deferred Tax Assets: |
|
|
|
|
|
|
|
|
Net operating loss carryforwards |
|
$ |
71,038 |
|
|
$ |
56,657 |
|
Research and development credits |
|
|
4,752 |
|
|
|
4,738 |
|
Capitalized research and development |
|
|
360 |
|
|
|
495 |
|
Non-cash compensation expense |
|
|
3,270 |
|
|
|
6,607 |
|
Other, net |
|
|
1,982 |
|
|
|
922 |
|
|
|
|
|
|
|
|
Total deferred tax assets |
|
|
81,402 |
|
|
|
69,419 |
|
Valuation allowance |
|
|
(81,402 |
) |
|
|
(69,419 |
) |
|
|
|
|
|
|
|
Net deferred tax assets |
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
F-19
At December 31, 2010, we had generated federal net operating loss carryforwards of
$181,843,000 and state net operating loss carryforwards of $176,628,000 on the respective tax
return bases. We have generated windfall tax benefits from the settlement of certain share-based
awards. These tax benefits have not been reflected in the table of deferred tax assets presented
above since the tax deduction increases our net operating loss carryforward and does not result in
a cash tax savings in the current year. The tax benefit will be recorded as a credit to additional
paid-in capital in the year the deduction reduces income taxes payable. However, the net operating
loss carryforwards related to these windfall tax benefits of approximately $1,199,000 are included
in the federal and state net operating loss carryforward amounts of $181,843,000 and $176,628,000,
respectively. Unless previously utilized, the federal and state tax loss carryforwards will begin
to expire in 2023 and 2013, respectively.
We have federal and state research and development tax credit carryforwards at December 31,
2010 of $4,282,000 and $1,954,000, respectively. The federal research and development credits will
begin to expire in 2024 and the state research and development credits do not expire.
Pursuant to Sections 382 and 383 of the Internal Revenue Code (IRC), annual use of our net
operating loss and credit carryforwards may be limited in the event a cumulative change in
ownership of more than 50% occurs within a three-year period. We determined that such an ownership
change occurred as of March 31, 2010 as defined in the provisions of Section 382 of the IRC as a
result of various stock issuances used to finance our operations. Such ownership change resulted in annual
limitations on the utilization of tax attributes, including net operating loss carryforwards and
tax credits.
We have not performed a Section 382 analysis since March 31, 2010. There is a risk that
additional changes in ownership could have occurred since that date. If a change in ownership were
to have occurred, additional net operating loss carryforwards and research and development credit
carryovers could be eliminated or restricted. If eliminated, the related asset would be removed
from the deferred tax asset with a corresponding reduction in the valuation allowance.
The following table provides a reconciliation between income taxes computed at the federal
statutory rate and our provision for income taxes (amounts are in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, |
|
|
|
2010 |
|
|
2009 |
|
|
2008 |
|
Federal income taxes at 34% |
|
$ |
(13,231 |
) |
|
$ |
(4,911 |
) |
|
$ |
(12,657 |
) |
State income taxes, net of federal benefit |
|
|
(1,779 |
) |
|
|
(15 |
) |
|
|
(2,246 |
) |
Research and development credits |
|
|
|
|
|
|
(116 |
) |
|
|
(517 |
) |
Share-based compensation expense |
|
|
(1,741 |
) |
|
|
5,069 |
|
|
|
552 |
|
Tax effect of non-deductible expenses and credits |
|
|
44 |
|
|
|
(3 |
) |
|
|
(7 |
) |
Increase in valuation allowance |
|
|
16,707 |
|
|
|
(24 |
) |
|
|
14,875 |
|
|
|
|
|
|
|
|
|
|
|
Provision for income taxes |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
Income tax accounting and reporting may contain uncertain income tax positions. The accounting
for uncertain income taxes recognized in an entitys financial statements requires a recognition
threshold and measurement of uncertain tax positions taken or expected to be taken on a tax return.
The impact of an uncertain income tax position on the income tax return is recognized at the
largest amount that is cumulatively more-likely-than-not to be sustained upon audit by the relevant
taxing authority. An uncertain income tax position will not be recognized if it has less than a 50%
likelihood of being sustained.
The following table summarizes our unrecognized tax benefit activity (amounts are in
thousands):
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, |
|
|
|
2010 |
|
|
2009 |
|
Unrecognized tax benefits at the beginning of the year |
|
$ |
910 |
|
|
$ |
877 |
|
Gross decreases related to prior year tax positions |
|
|
0 |
|
|
|
0 |
|
Gross increases related to current year tax positions |
|
|
0 |
|
|
|
33 |
|
Settlements |
|
|
None |
|
|
|
None |
|
Lapse of statute of limitations |
|
|
None |
|
|
|
None |
|
|
|
|
|
|
|
|
Unrecognized tax benefits at year end |
|
$ |
910 |
|
|
$ |
910 |
|
|
|
|
|
|
|
|
F-20
The unrecognized tax benefits have been recorded as a reduction of the related deferred tax
asset. Because our deferred tax assets are fully reserved, none of the amount included in the
balance of unrecognized tax benefits would affect the effective tax rate if recognized. We are
subject to taxation in each of the jurisdictions in which we operate. We are currently not under
examination by the Internal Revenue Service or any other taxing authority. Our tax years from
inception in 2003 and forward can be subject to examination by the tax authorities due to the
carryforward of net operating losses and research and development credits. Our accounting policy is
to record interest and penalties related to unrecognized tax benefits in income tax expense. No
interest or penalties have been accrued as of December 31, 2010.
Note 9. Related Party Transactions
We have in-licensed certain intellectual property from ProCom (see Note 3, License
Agreements). As part of the license agreement, ProCom has the right to designate one nominee for
election to our board of directors. ProCom designated Terrell A. Cobb, a principal of ProCom, for
nomination as a member of our board of directors. In 2010, we paid ProCom $1,000,000 for license
fees and $235,000 for royalty payments pursuant to the terms of this agreement. At December 31,
2010, $16,000 is recorded in accrued liabilities for ProCom royalty payments.
The license agreement also provided a consulting arrangement for Mr. Cobb and Dr. Neil Kavey,
who is the other principal of ProCom. Under the consulting agreements, we paid an aggregate of
$59,000, $135,000, and $170,000 for consulting services for the years ended 2010, 2009 and 2008,
respectively. Pursuant to the consulting arrangements, payments ceased for Mr. Cobb in April 2008.
Payments to Dr. Kavey under that consulting arrangement ended in April 2010 and a subsequent
consulting agreement was entered into which terminates in September 2011.
Mr. Cobb and Dr. Kavey have an aggregate of 134,000 stock options outstanding of which 116,000
were vested as of December 31, 2010. The weighted average exercise price of the outstanding options
was $3.70 and the weighted average exercise price of the vested stock options was $3.86. None of
the stock options had been exercised as of December 31, 2010. In addition, 49,000 RSUs granted to
Mr. Cobb vested in 2010 in connection with the first commercial sale of Silenor in the United
States.
In July 2009, we raised $6,000,000 through a private placement of 5,106,000 shares of our
common stock and seven-year warrants to purchase up to 5,106,000 additional shares of our common
stock. Among the investors in the private placement were: (1) a trust of which Kurt von Emster, a
member of our board of directors, is a trustee and beneficiary; (2) investment funds affiliated
with Jesse I. Treu, Ph.D., a member of our board of directors through June 2010, and (3) investment
funds affiliated with Kurt C. Wheeler, a member of our board of directors through March 2010.
Note 10. Selected Quarterly Financial Information (Unaudited)
The following table presents our unaudited quarterly results of operations for 2010 and 2009
(in thousands, except per share data). The sum of the quarterly per share amounts may not equal the
amounts presented for the full year due to differences in the weighted average number of shares
outstanding as calculated on a quarterly compared to an annual basis.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First Quarter |
|
|
Second Quarter |
|
|
Third Quarter |
|
|
Fourth Quarter |
|
|
Year |
|
2010: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net product sales |
|
$ |
|
|
|
$ |
|
|
|
$ |
38 |
|
|
$ |
1,344 |
|
|
$ |
1,382 |
|
Gross profit |
|
$ |
|
|
|
$ |
|
|
|
$ |
35 |
|
|
$ |
1,103 |
|
|
$ |
1,138 |
|
Loss from operations |
|
$ |
(4,165 |
) |
|
$ |
(5,716 |
) |
|
$ |
(12,902 |
) |
|
$ |
(16,224 |
) |
|
$ |
(39,007 |
) |
Net loss |
|
$ |
(4,165 |
) |
|
$ |
(5,721 |
) |
|
$ |
(12,900 |
) |
|
$ |
(16,027 |
) |
|
$ |
(38,813 |
) |
Basic and diluted
net loss per share |
|
$ |
(0.16 |
) |
|
$ |
(0.16 |
) |
|
$ |
(0.37 |
) |
|
$ |
(0.42 |
) |
|
$ |
(1.16 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net product sales |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
Gross profit |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
Loss from operations |
|
$ |
(4,308 |
) |
|
$ |
(6,138 |
) |
|
$ |
(1,845 |
) |
|
$ |
(1,921 |
) |
|
$ |
(14,212 |
) |
Net loss |
|
$ |
(4,544 |
) |
|
$ |
(6,137 |
) |
|
$ |
(1,843 |
) |
|
$ |
(1,919 |
) |
|
$ |
(14,443 |
) |
Basic and diluted
net loss per share |
|
$ |
(0.25 |
) |
|
$ |
(0.33 |
) |
|
$ |
(0.08 |
) |
|
$ |
(0.08 |
) |
|
$ |
(0.69 |
) |
F-21
Note 11. Subsequent Events
Loan Agreement
On February 7, 2011, we entered into a loan agreement with Comerica, pursuant to which we may
request advances in an aggregate outstanding amount not to exceed $15.0 million. The revolving
loan bears interest at a variable rate of interest, per annum, at our option of either LIBOR plus
3.00% or Comericas prime rate plus 0.50%, which as of February 2011 was 3.75%. Interest payments
on advances made under the loan agreement are due and payable in arrears on the first business day
of each month during the term of the loan agreement. Amounts borrowed under the loan agreement may
be repaid and re-borrowed at any time prior to February 7, 2013, subject to certain conditions.
Once we have two consecutive quarters of profitability, the amounts we borrow are limited to a
percentage of our accounts receivable. There is a non-refundable unused commitment fee equal to
0.25% per annum on the difference between the amount of the revolving line and the average daily
balance outstanding thereunder during the term of the loan agreement, payable quarterly in arrears.
The loan agreement will remain in full force and effect for so long as any obligations remain
outstanding or Comerica has any obligation to make credit extensions under the loan agreement.
Amounts borrowed under the loan agreement are secured by substantially all of our personal
property, excluding intellectual property. Under the loan agreement, we are subject to certain
affirmative and negative covenants, including limitations on our ability to: undergo certain change
of control events; convey, sell, lease, license, transfer or otherwise dispose of assets, other
than in certain specified circumstances; create, incur, assume, guarantee or be liable with respect
to certain indebtedness; grant liens; pay dividends and make certain other restricted payments; and
make certain investments. In addition, under the loan agreement, we are required to maintain a cash
balance with Comerica in an amount of not less than $5.0 million and to maintain 50% of any other
cash balances with Comerica and any other cash or investments must be covered by a control
agreement for the benefit of Comerica. We are also subject to specified financial covenants with
respect to a minimum liquidity ratio and, once we have two consecutive quarters of profitability,
minimum EBITDA requirements. We have currently met all of our obligations under the loan agreement.
Amended and Restated Supplement with Publicis
On February 7, 2011 we entered into an amended and restated agreement with under which
Publicis will recruit and deploy for us an additional 35 sales representatives that will
exclusively promote Silenor, as well as one additional regional field coordinator. In consideration
for Publicis services under the Publicis agreements, we paid Publicis a portion of the fees for
the start-up and additional recruiting phases of the engagements upon signing and the remainder
upon completion of the applicable services. We also pay Publicis a fixed monthly fee, which fee is
subject to certain quarterly adjustments based on actual staffing levels. During the term of the
Publicis agreements, a portion of Publicis management fee is subject to payment by us only to the
extent that specified performance targets are achieved. The performance targets relate to initial
scale-up and recruiting activities, turnover and vacancy rates, call attainment and specified sales
goals. In addition, we are obligated to reimburse the sales organization for approved pass-through
costs, which primarily include bonuses, meeting and travel costs and certain administrative
expenses.
The services agreement has an initial two-year term, and may be extended by us by providing
Publicis with written notification no later than 90 days prior to the expiration of the initial
term, subject to agreement on compensation terms with Publicis. Prior to the first anniversary of
the deployment of Publicis sales representatives, we have the right to terminate the services
agreement upon 90 days written notice and payment to Publicis of a termination fee in a specified
amount. We have the right to terminate the services agreement upon 90 days written notice after the
one year anniversary of the deployment of Publicis sales representatives without paying a
termination fee. We may also terminate the services agreement without paying a termination fee by
hiring a specified number of sales representatives. In addition, either party may terminate the
services agreement upon an uncured material breach by the other party, upon the bankruptcy or
insolvency of the other party or if a change in
law renders the performance of a material obligation of the services agreement unlawful. If
termination occurs during the initial two-year term, we assume financial responsibility for the
remaining lease payments for the sales representatives vehicles which have a two-year lease term.
Litigation
On February 2, 2011, we together with Pro Com One, Inc., filed suit in the United States
District Court for the District of Delaware against Par Pharmaceutical, Inc. and Par Pharmaceutical
Companies, Inc. (collectively, Par). The lawsuit alleges that Par has infringed U.S. Patent No.
6,211,229 by filing an ANDA seeking approval from the FDA to market generic versions of Silenor 3
mg and 6 mg tablets prior to the expiration of this patent. Pursuant to the provisions of the
Hatch-Waxman Act, FDA final approval of the Par ANDA can occur no earlier than June 23, 2013,
unless there is an earlier court decision that the 229 patent is not infringed and/or invalid or
unless any party to the action is found to have failed to cooperate reasonably to expedite the
infringement action. At this time, other patents listed in the Orange Book for Silenor have not
been asserted against Par. We intend to vigorously enforce our intellectual property rights
relating to Silenor, but cannot predict the outcome of this matter.
F-22