Attached files
| file | filename |
|---|---|
| EX-31.1 - SECTION 302 CEO CERTIFICATION - Diadexus, Inc. | dex311.htm |
| EX-10.27 - AGREEMENT, DATED AS OF AUGUST 1, 2006 - Diadexus, Inc. | dex1027.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A
(Amendment No. 1)
(Mark One)
| x | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended September 30, 2010
OR
| ¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Commission File Number 0-26483
diaDexus, Inc.
(Exact name of Registrant as Specified in its Charter)
| Delaware | 94-3236309 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
| 343 Oyster Point Boulevard South San Francisco, California |
94080 | |
| (Address of principal executive offices) | (Zip Code) | |
(650) 246-6400
(Registrant’s telephone number, including area code)
Indicate by check mark whether the issuer (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate website, 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 ¨ No ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one)
| Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
| Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller Reporting Company | x | |||
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x
The number of shares outstanding of the registrant’s common stock, $0.01 par value per share, was 53,067,057 as of October 31, 2010.
Explanatory Note
This Amendment No. 1 on Form 10-Q/A (“Amendment”) amends the Quarterly Report on Form 10-Q of diaDexus, Inc. (the “Company”) for the fiscal quarter ended September 30, 2010, which was originally filed on November 15, 2010 (the “Q3 2010 Form 10-Q”). The Company is filing this Amendment solely for the purpose of re-filing Exhibit 10.27 in connection with a request for extension of confidential treatment for certain of the terms in such exhibit. This amendment does not modify or update any part of or information set forth in the Q3 2010 Form 10-Q other than Exhibit 10.27.
PART II — OTHER INFORMATION
| Item 6. | Exhibits |
The following exhibits are filed as part of this report:
| Exhibit |
Description | |
| 2.1* | Agreement and Plan of Merger and Reorganization, dated May 28, 2010, by and among VaxGen, Inc., Violet Acquisition Corporation, Violet Acquisition LLC, diaDexus, Inc. and John E. Hamer, as the agent of diaDexus, Inc.’s stockholders (incorporated by reference to Exhibit 2.1 to the registrant’s Current Report on Form 8-K (file no. 0-26483), filed on June 1, 2010) | |
| 2.2 | Amendment No. 1 to Agreement and Plan of Merger and Reorganization, dated June 24, 2010, by and among VaxGen, Inc., Violet Acquisition Corporation, Violet Acquisition LLC, diaDexus, Inc., and John E. Hamer as the agent of diaDexus, Inc.’s stockholders (incorporated by reference to Exhibit 2.1 to the registrant’s Current Report on Form 8-K (file no. 0-26483), filed on June 28, 2010) | |
| 3.1+ | Restated Certificate of Incorporation of the registrant | |
| 3.2 | Amended and Restated Bylaws of the registrant (incorporated by reference to Exhibit 3.2 to the registrant’s Current Report on Form 8-K (file no. 0-26483), filed on November 5, 2010) | |
| 10.1# | Amended and Restated Employment Agreement, effective May 1, 2008, by and between diaDexus, Inc. and Patrick Plewman (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K (file no. 0-26483), filed on August 2, 2010) | |
| 10.2# | Guaranty, dated July 28, 2010, by VaxGen, Inc. in favor of Patrick Plewman (incorporated by reference to Exhibit 10.2 to the registrant’s Current Report on Form 8-K (file no. 0-26483), filed on August 2, 2010) | |
| 10.3# | Amended and Restated Employment Agreement, effective May 1, 2008, by and between diaDexus, Inc. and David Foster (incorporated by reference to Exhibit 10.3 to the registrant’s Current Report on Form 8-K (file no. 0-26483), filed on August 2, 2010) | |
| 10.4# | Amended and Restated Employment Agreement, effective May 1, 2008, by and between diaDexus, Inc. and Bernard M. Alfano (incorporated by reference to Exhibit 10.4 to the registrant’s Current Report on Form 8-K (file no. 0-26483), filed on August 2, 2010) | |
| 10.5# | Amended and Restated Employment Agreement, effective May 1, 2008, by and between diaDexus, Inc. and Robert Wolfert (incorporated by reference to Exhibit 10.5 to the registrant’s Current Report on Form 8-K (file no. 0-26483), filed on August 2, 2010) | |
| 10.6#+ | Amended and Restated 1996 Stock Option Plan, as amended and restated effective July 29, 2010 | |
| 10.7#+ | Form of Stock Option Agreement pursuant to the registrant’s Amended and Restated 1996 Stock Option Plan | |
| 10.8#+ | diaDexus, Inc. Retention Bonus Plan | |
| 10.9+ | Form of Indemnity Agreement by and between the registrant and the registrant’s directors and executive officers | |
| 10.10+ | SB/HGS Diagnostic License Agreement, effective as of July 24, 1997, by and among SmithKline Beecham Corp., SmithKline Beecham p.l.c. and Human Genome Sciences, Inc. | |
| 10.11** | Collaboration and License Agreement, dated as of September 2, 1997 (the “Collaboration Agreement”), by and among diaDexus, LLC, SmithKline Beecham Corp., SmithKline Beecham p.l.c., and Incyte Pharmaceuticals, Inc. (incorporated by reference to Exhibit 10.17 to diaDexus, Inc.’s Registration Statement on Form S-1/A (file no. 333-50318), filed April 9, 2001) | |
| 10.12 | Amendment No. 1 to the Collaboration Agreement, dated as of February , 1998 (incorporated by reference to Exhibit 10.18 to diaDexus, Inc.’s Registration Statement on Form S-1 (file no. 333-50318), filed November 20, 2000) | |
| 10.13** | Amendment No. 2 to the Collaboration Agreement, dated as of July , 1998 (incorporated by reference to Exhibit 10.19 to diaDexus, Inc.’s Registration Statement on Form S-1/A (file no. 333-50318), filed April 9, 2001) | |
| 10.14 | Amendment to the Collaboration Agreement, dated as of May 4, 1999 (incorporated by reference to Exhibit 10.20 to diaDexus, Inc.’s Registration Statement on Form S-1 (file no. 333-50318), filed November 20, 2000) | |
| 10.15** | Amendment No. 3 to the Collaboration Agreement, dated as of July 28, 1999 (incorporated by reference to Exhibit 10.21 to diaDexus, Inc.’s Registration Statement on Form S-1/A (file no. 333-50318), filed April 9, 2001) | |
| 10.16 | Amendment No. 4 to the Collaboration Agreement, dated as of February 17, 2000 (incorporated by reference to Exhibit 10.22 to diaDexus, Inc.’s Registration Statement on Form S-1 (file no. 333-50318), filed November 20, 2000) | |
| 10.17 | Letter Amendment to Collaboration Agreement, dated as of March 30, 2000 (incorporated by reference to Exhibit 10.23 to diaDexus, Inc.’s Registration Statement on Form S-1 (file no. 333-50318), filed November 20, 2000) | |
| 10.18**+ | Side Letter to License Agreement, dated February 28, 2005, by and between diaDexus, Inc. and SmithKline Beecham Corp. dba GlaxoSmithKline | |
| 10.19**+ | Diagnostics License Agreement, dated December 9, 2004, by and between diaDexus, Inc. and ICOS Corp. | |
| 10.20**+ | Development, Manufacturing, and Supply Agreement, effective as of March 27, 2007 (the “Denka Seiken Agreement”), by and between diaDexus, Inc. and Denka Seiken | |
| 10.21**+ | First Amendment to the Denka Seiken Agreement, effective as of July 21, 2008 | |
| 10.22**+ | Second Amendment to the Denka Seiken Agreement, effective as of June 1, 2009 | |
| 10.23**+ | Services and Supply Agreement, effective as of January 1, 2009 (the “Diazyme Agreement”), by and between diaDexus, Inc. and Diazyme Laboratories. | |
| 10.24**+ | Amendment No. 01 to the Diazyme Agreement, effective as of August 17, 2009 | |
| 10.25**+ | Amendment No. 2 to the Diazyme Agreement, effective as of January 15, 2010 | |
| 10.26**+ | Amended and Restated Supply Agreement, dated as of April 11, 2010, by and between diaDexus, Inc. and BioCheck, Inc | |
| 10.27† | Agreement, dated as of August 1, 2006, by and between diaDexus, Inc. and Dako North America, Inc. | |
| 10.28**+ | Distributor Agreement, effective as of January 30, 2007 (the “Binding Site Agreement”), by and between diaDexus, Inc. and The Binding Site Inc. | |
| 10.29+ | Addendum No. 1 to the Binding Site Agreement, dated as of February 1, 2007 | |
| 10.30**+ | Addendum No. 2 to the Binding Site Agreement, dated as of June 15, 2007 | |
| 10.31**+ | Addendum No. 3 to the Binding Site Agreement, dated as of October 28, 2008 | |
| 10.32**+ | Business Development Addendum to the Distributor Agreement, dated as of February 1, 2010, by and between diaDexus, Inc. and Inova Diagnostics, Inc | |
| 10.33**+ | Master Supply Agreement, dated as of April 1, 2009 (the “BHL Master Supply Agreement”), by and between diaDexus, Inc. and Berkeley HeartLab, Inc | |
| 10.34**+ | Addendum No. 1 to the BHL Master Supply Agreement, dated as of April 1, 2010 | |
| 10.35**+ | Addendum No. 2 to the BHL Master Supply Agreement, dated as of May 14, 2010 | |
| 10.36+ | Lease, dated as of November 23, 1999, by and between Trammell Crow Northern California Development, Inc. and ViroLogic, Inc | |
| 10.37+ | First Amendment to Lease Agreement, dated as of February , 2000, by and between ARE-Technology Center SSF, LLC and ViroLogic, Inc. | |
| 10.38+ | Acknowledgement of Term Commencement Date, dated November 1, 2001, by and between ARE-Technology Center SSF, LLC and ViroLogic, Inc. | |
| 10.39+ | Consent to Assignment and Modification of Lease, effective as of June 1, 2002, by and among diaDexus, Inc., ARE-Technology Center SSF, LLC and ViroLogic, Inc. | |
| 10.40+ | Sublease, dated June 1, 2002, by and between diaDexus, Inc. and ViroLogic, Inc. | |
| 10.41+ | First Amendment to Sublease, dated August 21, 2003, by and between diaDexus, Inc. and ViroLogic, Inc. | |
| 10.42+ | Second Amendment to Sublease, dated October 1, 2004, by and between diaDexus, Inc. and ViroLogic, Inc. | |
| 10.43+ | Third Amendment to Sublease, dated August 18, 2006, by and between diaDexus, Inc. and Monogram Biosciences, Inc. | |
| 10.44+ | Letter Agreement Regarding Sublease, dated October 10, 2007, by and between diaDexus, Inc. and Monogram Biosciences, Inc. | |
| 10.45+ | Fourth Amendment to Sublease, dated October 12, 2007, by and between diaDexus, Inc. and Monogram Biosciences, Inc. | |
| 31.1 | Certification of principal executive and financial officer pursuant to Exchange Act Rule 13a-14(a) | |
| 32.1+ | Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | |
| 32.2+ | Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | |
| * | Certain schedules referenced in the Agreement and Plan of Merger and Reorganization have been omitted in accordance with Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule will be furnished supplementally to the Securities and Exchange Commission upon request. |
| ** | Confidential treatment has been granted with respect to certain portions of this agreement. |
| + | Filed with the Q3 2010 Form 10-Q. |
| † | Certain portions have been omitted pursuant to a confidential treatment request. Omitted information has been filed separately with the SEC. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| diaDexus, Inc. | ||||||
| Date: August 15, 2011 | By: | /s/ James P. Panek | ||||
| James P. Panek | ||||||
| Interim President and Chief Executive Officer (Principal Executive and Financial Officer) | ||||||
EXHIBIT INDEX
| Exhibit |
Description | |
| 2.1* | Agreement and Plan of Merger and Reorganization, dated May 28, 2010, by and among VaxGen, Inc., Violet Acquisition Corporation, Violet Acquisition LLC, diaDexus, Inc. and John E. Hamer, as the agent of diaDexus, Inc.’s stockholders (incorporated by reference to Exhibit 2.1 to the registrant’s Current Report on Form 8-K (file no. 0-26483), filed on June 1, 2010) | |
| 2.2 | Amendment No. 1 to Agreement and Plan of Merger and Reorganization, dated June 24, 2010, by and among VaxGen, Inc., Violet Acquisition Corporation, Violet Acquisition LLC, diaDexus, Inc., and John E. Hamer as the agent of diaDexus, Inc.’s stockholders (incorporated by reference to Exhibit 2.1 to the registrant’s Current Report on Form 8-K (file no. 0-26483), filed on June 28, 2010) | |
| 3.1+ | Restated Certificate of Incorporation of the registrant | |
| 3.2 | Amended and Restated Bylaws of the registrant (incorporated by reference to Exhibit 3.2 to the registrant’s Current Report on Form 8-K (file no. 0-26483), filed on November 5, 2010) | |
| 10.1# | Amended and Restated Employment Agreement, effective May 1, 2008, by and between diaDexus, Inc. and Patrick Plewman (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K (file no. 0-26483), filed on August 2, 2010) | |
| 10.2# | Guaranty, dated July 28, 2010, by VaxGen, Inc. in favor of Patrick Plewman (incorporated by reference to Exhibit 10.2 to the registrant’s Current Report on Form 8-K (file no. 0-26483), filed on August 2, 2010) | |
| 10.3# | Amended and Restated Employment Agreement, effective May 1, 2008, by and between diaDexus, Inc. and David Foster (incorporated by reference to Exhibit 10.3 to the registrant’s Current Report on Form 8-K (file no. 0-26483), filed on August 2, 2010) | |
| 10.4# | Amended and Restated Employment Agreement, effective May 1, 2008, by and between diaDexus, Inc. and Bernard M. Alfano (incorporated by reference to Exhibit 10.4 to the registrant’s Current Report on Form 8-K (file no. 0-26483), filed on August 2, 2010) | |
| 10.5# | Amended and Restated Employment Agreement, effective May 1, 2008, by and between diaDexus, Inc. and Robert Wolfert (incorporated by reference to Exhibit 10.5 to the registrant’s Current Report on Form 8-K (file no. 0-26483), filed on August 2, 2010) | |
| 10.6#+ | Amended and Restated 1996 Stock Option Plan, as amended and restated effective July 29, 2010 | |
| 10.7#+ | Form of Stock Option Agreement pursuant to the registrant’s Amended and Restated 1996 Stock Option Plan | |
| 10.8#+ | diaDexus, Inc. Retention Bonus Plan | |
| 10.9+ | Form of Indemnity Agreement by and between the registrant and the registrant’s directors and executive officers | |
| 10.10+ | SB/HGS Diagnostic License Agreement, effective as of July 24, 1997, by and among SmithKline Beecham Corp., SmithKline Beecham p.l.c. and Human Genome Sciences, Inc. | |
| 10.11** | Collaboration and License Agreement, dated as of September 2, 1997 (the “Collaboration Agreement”), by and among diaDexus, LLC, SmithKline Beecham Corp., SmithKline Beecham p.l.c., and Incyte Pharmaceuticals, Inc. (incorporated by reference to Exhibit 10.17 to diaDexus, Inc.’s Registration Statement on Form S-1/A (file no. 333-50318), filed April 9, 2001) | |
| 10.12 | Amendment No. 1 to the Collaboration Agreement, dated as of February , 1998 (incorporated by reference to Exhibit 10.18 to diaDexus, Inc.’s Registration Statement on Form S-1 (file no. 333-50318), filed November 20, 2000) | |
| 10.13** | Amendment No. 2 to the Collaboration Agreement, dated as of July , 1998 (incorporated by reference to Exhibit 10.19 to diaDexus, Inc.’s Registration Statement on Form S-1/A (file no. 333-50318), filed April 9, 2001) | |
| 10.14 | Amendment to the Collaboration Agreement, dated as of May 4, 1999 (incorporated by reference to Exhibit 10.20 to diaDexus, Inc.’s Registration Statement on Form S-1 (file no. 333-50318), filed November 20, 2000) | |
| 10.15** | Amendment No. 3 to the Collaboration Agreement, dated as of July 28, 1999 (incorporated by reference to Exhibit 10.21 to diaDexus, Inc.’s Registration Statement on Form S-1/A (file no. 333-50318), filed April 9, 2001) | |
| 10.16 | Amendment No. 4 to the Collaboration Agreement, dated as of February 17, 2000 (incorporated by reference to Exhibit 10.22 to diaDexus, Inc.’s Registration Statement on Form S-1 (file no. 333-50318), filed November 20, 2000) | |
| 10.17 | Letter Amendment to Collaboration Agreement, dated as of March 30, 2000 (incorporated by reference to Exhibit 10.23 to diaDexus, Inc.’s Registration Statement on Form S-1 (file no. 333-50318), filed November 20, 2000) | |
| 10.18**+ | Side Letter to License Agreement, dated February 28, 2005, by and between diaDexus, Inc. and SmithKline Beecham Corp. dba GlaxoSmithKline | |
| 10.19**+ | Diagnostics License Agreement, dated December 9, 2004, by and between diaDexus, Inc. and ICOS Corp. | |
| 10.20**+ | Development, Manufacturing, and Supply Agreement, effective as of March 27, 2007 (the “Denka Seiken Agreement”), by and between diaDexus, Inc. and Denka Seiken | |
| 10.21**+ | First Amendment to the Denka Seiken Agreement, effective as of July 21, 2008 | |
| 10.22**+ | Second Amendment to the Denka Seiken Agreement, effective as of June 1, 2009 | |
| 10.23**+ | Services and Supply Agreement, effective as of January 1, 2009 (the “Diazyme Agreement”), by and between diaDexus, Inc. and Diazyme Laboratories. | |
| 10.24**+ | Amendment No. 01 to the Diazyme Agreement, effective as of August 17, 2009 | |
| 10.25**+ | Amendment No. 2 to the Diazyme Agreement, effective as of January 15, 2010 | |
| 10.26**+ | Amended and Restated Supply Agreement, dated as of April 11, 2010, by and between diaDexus, Inc. and BioCheck, Inc | |
| 10.27† | Agreement, dated as of August 1, 2006, by and between diaDexus, Inc. and Dako North America, Inc. | |
| 10.28**+ | Distributor Agreement, effective as of January 30, 2007 (the “Binding Site Agreement”), by and between diaDexus, Inc. and The Binding Site Inc. | |
| 10.29+ | Addendum No. 1 to the Binding Site Agreement, dated as of February 1, 2007 | |
| 10.30**+ | Addendum No. 2 to the Binding Site Agreement, dated as of June 15, 2007 | |
| 10.31**+ | Addendum No. 3 to the Binding Site Agreement, dated as of October 28, 2008 | |
| 10.32**+ | Business Development Addendum to the Distributor Agreement, dated as of February 1, 2010, by and between diaDexus, Inc. and Inova Diagnostics, Inc | |
| 10.33**+ | Master Supply Agreement, dated as of April 1, 2009 (the “BHL Master Supply Agreement”), by and between diaDexus, Inc. and Berkeley HeartLab, Inc | |
| 10.34**+ | Addendum No. 1 to the BHL Master Supply Agreement, dated as of April 1, 2010 | |
| 10.35**+ | Addendum No. 2 to the BHL Master Supply Agreement, dated as of May 14, 2010 | |
| 10.36+ | Lease, dated as of November 23, 1999, by and between Trammell Crow Northern California Development, Inc. and ViroLogic, Inc | |
| 10.37+ | First Amendment to Lease Agreement, dated as of February , 2000, by and between ARE-Technology Center SSF, LLC and ViroLogic, Inc. | |
| 10.38+ | Acknowledgement of Term Commencement Date, dated November 1, 2001, by and between ARE-Technology Center SSF, LLC and ViroLogic, Inc. | |
| 10.39+ | Consent to Assignment and Modification of Lease, effective as of June 1, 2002, by and among diaDexus, Inc., ARE-Technology Center SSF, LLC and ViroLogic, Inc. | |
| 10.40+ | Sublease, dated June 1, 2002, by and between diaDexus, Inc. and ViroLogic, Inc. | |
| 10.41+ | First Amendment to Sublease, dated August 21, 2003, by and between diaDexus, Inc. and ViroLogic, Inc. | |
| 10.42+ | Second Amendment to Sublease, dated October 1, 2004, by and between diaDexus, Inc. and ViroLogic, Inc. | |
| 10.43+ | Third Amendment to Sublease, dated August 18, 2006, by and between diaDexus, Inc. and Monogram Biosciences, Inc. | |
| 10.44+ | Letter Agreement Regarding Sublease, dated October 10, 2007, by and between diaDexus, Inc. and Monogram Biosciences, Inc. | |
| 10.45+ | Fourth Amendment to Sublease, dated October 12, 2007, by and between diaDexus, Inc. and Monogram Biosciences, Inc. | |
| 31.1 | Certification of principal executive and financial officer pursuant to Exchange Act Rule 13a-14(a) | |
| 32.1+ | Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | |
| 32.2+ | Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
| * | Certain schedules referenced in the Agreement and Plan of Merger and Reorganization have been omitted in accordance with Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule will be furnished supplementally to the Securities and Exchange Commission upon request. |
| ** | Confidential treatment has been granted with respect to certain portions of this agreement. |
| + | Filed with the Q3 2010 Form 10-Q. |
| † | Certain portions have been omitted pursuant to a confidential treatment request. Omitted information has been filed separately with the SEC. |