UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2008
OR
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Commission File No. 000-30334
Angiotech Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified in its Charter)
British Columbia, Canada |
| 98-0226269 |
(State or Other Jurisdiction of Incorporation or Organization) |
| (I.R.S. Employer Identification No.) |
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1618 Station Street, Vancouver, BC, Canada |
| V6A 1B6 |
(Address of principal executive offices) |
| (Zip Code) |
Registrant’s telephone number, including area code: (604) 221-7676
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
| Name of each exchange on which registered |
Common shares, without par value |
| The NASDAQ Global Select Market |
Class I preference shares, without par value |
| The NASDAQ Global Select Market |
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
Yes o No þ
Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.
Yes o No þ
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 and (2) has been subject to such filing requirements for the past 90 days. 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 registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. 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 definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ¨
Accelerated filer x
Non-accelerated filer ¨ (Do not check if a smaller reporting company)
Smaller reporting company¨
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes o No þ
The aggregate market value of the common shares held by non-affiliates as of June 30, 2008 of the registrant (based on the last reported sale price of the common shares of U.S. $2.98, as reported on The NASDAQ Global Select Market) was approximately U.S. $253,663,509.
As of March 12, 2009 the registrant had 85,121,983 outstanding common shares.
DOCUMENTS INCORPORATED BY REFERENCE
Part III of this Annual Report on Form 10-K incorporates by reference information from the definitive Proxy Statement for the registrant’s 2009 annual general meeting of shareholders.
EXPLANATORY NOTE
We are filing this Amendment No. 1 on Form 10-K/A (this “Amendment”) to our Annual Report on Form 10-K for the year ended December 31, 2008, which was filed March 16, 2009 (the “Form 10-K”), to:
(i)
refile our financial statements and notes thereto as Exhibit 13 to this Amendment to correct the table in paragraph (c) of Footnote 14 because the original table was incorrect due to an html conversion error;
(ii)
incorporate by reference into Part II, Item 8 the financial statements and notes thereto included in Exhibit 13 to this Amendment; and
(iii)
make minor revisions to the Exhibit list.
In addition, the registrant’s principal executive officer and principal financial officer are providing new Rule 13a-14 certifications in connection with this Amendment and are also furnishing, but not filing, written statements pursuant to Title 18 United States Code Section 1350, as added by Section 906 of the Sarbanes-Oxley Act of 2002. Except as described above, no other changes have been made to the Form 10-K. This Amendment does not reflect events that have occurred after the original filing of the Form 10-K on March 16, 2009, and does not update the disclosures in the Form 10-K in any way except as specifically described in this Explanatory Note.
Item 8.
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The consolidated financial statements and notes thereto, together with the report of independent registered public accounting form, are incorporated herein by reference to Exhibit 13 hereto.
Item 15.
EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a)
The following documents are included as part of this Annual Report on Form 10-K.
(1)
Financial Statements:
| Page† | ||
| Report of Independent Registerd Public Accounting Firm | 13-1 | |
| Consolidated Balance Sheets as of December 31, 2008 and 2007 | 13-2 | |
| Consolidated Statements of Operations for the years ended December 31, 2008, 2007 and 2006. | 13-3 | |
| Consolidated Statements of Shareholders’ (Deficit) Equity as of December 31, 2008, 2007 and 2006 | 13-4 | |
| Consolidated Statements of Cash Flows for the years ended December 31, 2008, 2007 and 2006 | 13-5 | |
| Notes to Consolidated Financial Statements | 13-6 | |
| †Page numbers refer to Exhibit 13 of this Annual Report on Form 10-K. |
(2)
Financial Statement Schedule:
| Page† | ||
| Report of Independent Registerd Public Accounting Firm | 13-44 | |
| Schedule II – Valuation of Qualifying Accounts for the years ended December 31, 2008, 2007 and 2006 | 13-45 | |
| †Page numbers refer to Exhibit 13 of this Annual Report on Form 10-K. |
All other schedules are omitted as the information required is inapplicable or the information is presented in the consolidated financial statements or related notes.
(3)
Exhibits:
The exhibits listed below are filed as part of this Annual Report on Form 10-K. References under the caption “Location” to exhibits or other filings indicate that the exhibit or other filing has been filed, that the indexed exhibit and the exhibit or other filing referred to are the same and that the exhibit or other filing referred to is incorporated by reference. Management contracts and compensatory plans or arrangements filed as exhibits to this Annual Report on Form 10-K are identified by an asterisk. The Commission file number for our Exchange Act filings referenced below is 000-30334.
| Exhibit | Description | Location | ||
| 3.1 | Notice of Articles of Angiotech Pharmaceuticals, Inc. | Exhibit 3.1, Form 10-K filed March 16, 2009 | ||
| 3.2 | Articles of Angiotech Pharmaceuticals, Inc. | Exhibit 3, Form 6-K filed March 31, 2005 | ||
| 4.1 | Indenture dated March 23, 2006 among Angiotech Pharmaceuticals, Inc., certain of its subsidiaries and Wells Fargo Bank N.A., for 7.75% Senior Subordinated Notes due 2014 | Exhibit 99.2, Form 6-K filed April 3, 2006 | ||
| 4.2 | Indenture dated December 11, 2006 among Angiotech Pharmaceuticals, Inc., certain of its subsidiaries and Wells Fargo Bank N.A., for Senior Floating Rate Notes due 2013 | Exhibit 2, Form 6-K filed December 15, 2006 | ||
| 4.3 | Shareholder Rights Plan Agreement between Angiotech Pharmaceuticals, Inc. and Computershare Trust Company of Canada as Rights Agent, Amended and Restated as of October 30, 2008 | Exhibit 4.3, Form 10-K filed March 16, 2009 | ||
| 10.1 | Credit Agreement, dated as of February 27, 2009, by and among Angiotech Pharmaceuticals, Inc., as Parent, the subsidiaries of Parent listed as borrowers on the signature pages thereto, as Borrowers, the lenders signatory thereto, as Lenders, and Wells Fargo Foothill, LLC, as Arranger and Administrative Agent. | Exhibit 10.1, Form 8-K filed March 5, 2009 | ||
| 10.2 | License Agreement by and among Angiotech Pharmaceuticals, Inc., Boston Scientific Corporation and Cook Incorporated, dated as of July 9, 1997 | Exhibit, Form 20-FR filed October 5, 1999 | ||
| 10.3 | September 24, 2004 Amendment Between Angiotech Pharmaceuticals, Inc. and Cook Incorporated Modifying July 9, 1997 License Agreement Among Angiotech Pharmaceuticals, Inc., Boston Scientific Corporation, and Cook Incorporated** | Exhibit 10.3, Form 10-K filed March 16, 2009 | ||
| 10.4 | Amendment Between Angiotech Pharmaceuticals, Inc. and Boston Scientific Corporation Modifying July 9, 1997 License Agreement Among Angiotech Pharmaceuticals, Inc., Boston Scientific Corporation, and Cook Incorporated | Exhibit 10.2, Form 6-K filed March 31, 2005 | ||
| 10.5 | Distribution and License Agreement by and among Angiodevice International GmbH (as assignee of Angiotech Pharmaceuticals, Inc., Angiotech International, GmbH, and Cohesion Technologies, Inc.), Baxter Healthcare Corporation and Baxter Healthcare, S.A., dated April 1, 2003** | Exhibit 10.5, Form 10-K filed March 16, 2009 | ||
| 10.6 | Manufacturing and Supply Agreement, by and among Angiodevice International GmbH (as assignee of Angiotech Pharmaceuticals, Inc., Angiotech International, GmbH, and Cohesion Technologies, Inc.), Baxter Healthcare Corporation and Baxter Healthcare, S.A., dated April 1, 2003** | Exhibit 10.6, Form 10-K filed March 16, 2009 | ||
| 10.7 | Amendment No. 1 dated December 23, 2004 to Distribution and License Agreement, by and among Angiodevice International GmbH (as assignee of Angiotech Pharmaceuticals, Inc., Angiotech International, GmbH, and Cohesion Technologies, Inc.), Baxter Healthcare Corporation and Baxter Healthcare, S.A., dated April 1, 2003 | Exhibit 1, Form 6-K filed March 28, 2008 | ||
| 10.8 | Amendment No. 1 dated January 21, 2005 to Manufacturing and Supply Agreement, by and among Angiodevice International GmbH (as assignee of Angiotech Pharmaceuticals, Inc., Angiotech International, GmbH, and Cohesion Technologies, Inc.), Baxter Healthcare Corporation and Baxter Healthcare, S.A., dated April 1, 2003 | Exhibit 2, Form 6-K filed March 28, 2008 | ||
| 10.9 | Amendment No. 2 dated October 8, 2007 to Distribution and License Agreement, by and among Angiodevice International GmbH (as assignee of Angiotech Pharmaceuticals, Inc., Angiotech International, GmbH, and Cohesion Technologies, Inc.), Baxter Healthcare Corporation and Baxter Healthcare, S.A., dated April 1, 2003** | Exhibit 10.9, Form 10-K filed March 16, 2009 | ||
| 10.10 | Agreement and Plan of Merger among Angiotech Pharmaceuticals, Inc., Angiotech Pharmaceuticals (US), Inc., Quaich Acquisition, Inc. and Quill Medical, Inc. dated May 25, 2006 ** | Exhibit 10.10, Form 10-K filed March 16, 2009 | ||
| 10.11 | License Agreement between Public Health Service (through the Office of Technology Transfer, National Institutes of Health) and Angiotech Pharmaceuticals, Inc., dated November 19, 1997** | Exhibit 10.11, Form 10-K filed March 16, 2009 | ||
| 10.12 | First Amendment between Public Health Service (through the Office of Technology Transfer, National Institutes of Health) and Angiotech Pharmaceuticals, Inc., dated March 28, 2002 modifying the License Agreement between Public Health Service (through the Office of Technology Transfer, National Institutes of Health) and Angiotech Pharmaceuticals, Inc., dated November 19, 1997** | Exhibit 10.12, Form 10-K filed March 16, 2009 | ||
| 10.13 | Second Amendment between Public Health Service (through the Office of Technology Transfer, National Institutes of Health) and Angiotech Pharmaceuticals, Inc., dated May 23, 2007 modifying the License Agreement between Public Health Service (through the Office of Technology Transfer, National Institutes of Health) and Angiotech Pharmaceuticals, Inc., dated November 19, 1997** | Exhibit 10.13, Form 10-K filed March 16, 2009 | ||
| 10.14 | License Agreement between Angiotech Pharmaceuticals, Inc. and The University of British Columbia, dated August 1, 1997** | Exhibit 10.14, Form 10-K filed March 16, 2009 | ||
| 10.15 | Amendment to Licence Agreement between Angiotech Pharmaceuticals, Inc. and The University of British Columbia, dated February 27, 2004, modifying the License Agreement between Angiotech Pharmaceuticals, Inc. and The University of British Columbia, dated August 1, 1997** | Exhibit 10.15, Form 10-K filed March 16, 2009 | ||
| 10.16* | Form of Indemnification Agreement for Officers – US | Exhibit 10.16, Form 10-K filed March 16, 2009 | ||
| 10.17* | Form of Indemnification Agreement for Officers – Canada | Exhibit 10.17, Form 10-K filed March 16, 2009 | ||
| 10.18* | Form of Indemnification Agreement for Directors | Exhibit 10.18, Form 10-K filed March 16, 2009 | ||
| 10.19* | Executive Employment Agreement between Angiotech Pharmaceuticals, Inc. and William L. Hunter, dated April 23, 2004 | Exhibit 10.19, Form 10-K filed March 16, 2009 | ||
| 10.20* | Executive Employment Agreement between Angiotech Pharmaceuticals, Inc. and K. Thomas Bailey, dated August 8, 2007 ** | Exhibit 10.20, Form 10-K filed March 16, 2009 | ||
| 10.21* | Executive Employment Agreement between Angiotech Pharmaceuticals, Inc. and David D. McMasters, dated October 30, 2007 ** | Exhibit 10.21, Form 10-K filed March 16, 2009 | ||
| 10.22* | Executive Employment Agreement between Angiotech Pharmaceuticals, Inc. and Rui Avelar, dated October 15, 2007 | Exhibit 10.22, Form 10-K filed March 16, 2009 | ||
| 10.23* | Executive Employment Agreement between Angiotech Pharmaceuticals, Inc. and Jeffrey Walker, dated October 15, 2007 ** | Exhibit 10.23, Form 10-K filed March 16, 2009 | ||
| 10.24* | Executive Employment Agreement between Angiotech Pharmaceuticals, Inc. and Chris J.W. Dennis, dated December 17, 2007 (as amended)** | Exhibit 10.24, Form 10-K filed March 16, 2009 | ||
| 10.25* | Executive Employment Agreement between Angiotech Pharmaceuticals, Inc. and Gary Ingenito, dated November 26, 2007 ** | Exhibit 10.25, Form 10-K filed March 16, 2009 | ||
| 10.26* | Angiotech Pharmaceuticals, Inc. 2001 Stock Option Plan | Exhibit to Form S-8, filed September 27, 2001 | ||
| 10.27* | Angiotech Pharmaceuticals, Inc. 2004 Stock Option Plan | Exhibit 10.27, Form 10-K filed March 16, 2009 | ||
| 10.28* | Angiotech Pharmaceuticals, Inc. 2006 Stock Incentive Plan | Exhibit 10.28, Form 10-K filed March 16, 2009 | ||
| 10.29* | American Medical Instruments Holdings, Inc. 2003 Stock Option Plan | Exhibit 10.29, Form 10-K filed March 16, 2009 | ||
| 13 | Disclosure incorporated by reference into Part II of this Annual Report on Form 10-K. | Filed herewith | ||
| 14.1 | Code of Ethics for Chief Executive Officer | Exhibit 14.1, Form 10-K filed March 16, 2009 | ||
| 14.2 | Code of Ethics for Chief Financial Officer | Exhibit 14.2, Form 10-K filed March 16, 2009 | ||
| 14.3 | Code of Ethics for Directors and Officers | Exhibit 14.3, Form 10-K filed March 16, 2009 | ||
| 14.4 | Guide of Standards and Business Conduct | Exhibit 1, Form 6-K filed April 18, 2007 | ||
| 21 | List of Worldwide Subsidiaries | Exhibit 21, Form 10-K filed March 16, 2009 | ||
| 24.1 | Power of Attorney | Signature page to Form 10-K filed March 16, 2009 | ||
| 31.1 | Certification of CEO Pursuant to Securities Exchange Act Rules 13a-14 and 15d-14 as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | Filed herewith | ||
| 31.2 | Certification of CFO Pursuant to Securities Exchange Act Rules 13a-14 and 15d-14 as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | Filed herewith | ||
| 32.1 | Certification of CEO and CFO Pursuant to 18 U.S.C. Section 1350 as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | Filed herewith | ||
** portions of this exhibit have been omitted and filed separately with the Commission pursuant to a request for confidential treatment
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized.
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| Angiotech Pharmaceuticals, Inc.
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Date: March 23, 2009 | By: | /s/ K. Thomas Bailey | ||
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| K. Thomas Bailey Chief Financial Officer | ||
