UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
Form 10-K/A
Amendment No. 1
(Mark One)
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| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
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For the fiscal year ended December 31, 2008 | ||
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| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
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| For the transition period from to |
Commission file number: 001-33291
Optimer Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware | 33-0830300 |
(State or Other Jurisdiction of | (I.R.S. Employer |
Incorporation or Organization) | Identification No.) |
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10110 Sorrento Valley Road, Suite C, San Diego, California, 92121 | |
(Address of principal executive offices and zip code) | |
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Registrant’s telephone number, including area code: (858) 909-0736 | |
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class |
| Name of Each Exchange on Which Registered |
Common Stock, par value $0.001 per share |
| Nasdaq Global Market |
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No x.
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o No x.
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No 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. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See 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 o | Accelerated filer x | Non-accelerated filer o | Smaller reporting company o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No x.
The aggregate market value of the registrant’s common stock held by non-affiliates as of June 30, 2008 (without admitting that any person whose shares are not included in such calculation is an affiliate), computed by reference to the price at which the common stock was last sold as of such date on the Nasdaq Global Market, was $226,483,907.
The number of outstanding shares of the registrant’s common stock, par value $0.001 per share, as of March 11, 2009 was 33,037,661.
Explanatory Note
Optimer Pharmaceuticals, Inc. (the “Company”) is filing this Amendment No. 1 to its Annual Report on Form 10-K for the year ended December 31, 2008, as filed with the Securities and Exchange Commission on March 12, 2009 (the “Original Filing”), to amend the certifications of the Company’s Chief Executive Officer and Chief Financial Officer pursuant to Rule 13a-14 of the Securities Exchange Act of 1934, as amended (the “Certifications”), to correct an inadvertent omission of a portion of paragraph 4 of the Certifications. The Certifications are included herewith as Exhibits 31.1 and 31.2. Item 15 and the Exhibit Index of the Original Filing are being amended to reflect the filing of the amended Certifications.
Except for the filing of the amended Certifications and the amendments to Item 15 and the Exhibit Index as described above, this Form 10-K/A does not modify or update any previously reported financial statements or other disclosures in, or exhibits to, the Original Filing.
Item 15. Exhibits and Financial Statement Schedules
1. Financial Statements
See Index to Consolidated Financial Statements in Item 8 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2008.
2. Financial Statement Schedules
None
3. Exhibits
Exhibit No. |
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| Description of Document |
3.1 | (3) |
| Certificate of Incorporation of Optimer Pharmaceuticals, Inc., as amended and restated. |
3.2 | (7) |
| Bylaws of Optimer Pharmaceuticals, Inc., as amended. |
4.1 | (4) |
| Common Stock Certificate of Optimer Pharmaceuticals, Inc. |
4.2 | (1) |
| Investors’ Rights Agreement by and among Optimer Pharmaceuticals, Inc. and certain stockholders of the registrant dated November 30, 2005, as amended and restated. |
4.3 | (6) |
| Registration Rights Agreement, dated October 23, 2007, by and between Optimer Pharmaceuticals, Inc. and the purchasers listed on the signature pages thereto. |
4.4 | (11) |
| Form of Warrant. |
10.1 | (1)* |
| Master Service Agreement between Optimer Pharmaceuticals, Inc. and Advanced Biologics, LLC (subsequently INC Research, Inc.), dated November 16, 2005, as amended. |
10.2 | (12)* |
| Collaboration Research and Development and License Agreement between Optimer Pharmaceuticals, Inc. and Cempra Pharmaceuticals, Inc., dated March 31, 2006, as amended. |
10.3 | (4)* |
| Agreement between Optimer Pharmaceuticals, Inc. and Sloan-Kettering Institute for Cancer Research dated July 31, 2002, as amended. |
10.4 | (3)* |
| License Agreement between Optimer Pharmaceuticals, Inc. and Nippon Shinyaku Co., Ltd., dated June 10, 2004. |
10.5 | (1)* |
| License Agreement between Optimer Pharmaceuticals, Inc. and The Scripps Research Institute dated July 23, 1999. |
10.6 | (1)* |
| License Agreement between Optimer Pharmaceuticals, Inc. and The Scripps Research Institute dated May 30, 2001. |
10.7 | (1)* |
| License Agreement between Optimer Pharmaceuticals, Inc. and The Scripps Research Institute dated May 30, 2001. |
10.8 | (1)* |
| License Agreement between Optimer Pharmaceuticals, Inc. and The Scripps Research Institute dated June 1, 2004. |
10.9 | (3) |
| Building Lease between Optimer Pharmaceuticals, Inc. and Pacific Sorrento Technology Park dated May 1, 2001, as amended by the First Amendment to Building Lease between Optimer Pharmaceuticals, Inc. and Pacific Sorrento Technology Park dated July 12, 2001. |
10.10 | (1)+ |
| Form of Employee Proprietary Information Agreement of Optimer Pharmaceuticals, Inc. |
10.11 | (12)+ |
| Employment Agreement between Optimer Pharmaceuticals, Inc. and Michael N. Chang dated June 17, 2005, as amended on October 2, 2008. |
10.12 | (1)+ |
| Offer letter between Optimer Pharmaceuticals, Inc. and Sherwood L. Gorbach dated October 6, 2005. |
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10.13 | (12)+ |
| Offer letter between Optimer Pharmaceuticals, Inc. and Kevin P. Poulos dated June 15, 2006, as amended on October 2, 2008. |
10.14 | (12)+ |
| Offer letter between Optimer Pharmaceuticals, Inc. and John D. Prunty dated May 10, 2006, as amended on October 2, 2008. |
10.15 | (1)+ |
| Offer letter between Optimer Pharmaceuticals, Inc. and Tessie M. Che dated August 30, 2001. |
10.16 | (1)+ |
| Offer letter between Optimer Pharmaceuticals, Inc. and Youe-Kong Shue dated February 18, 2000. |
10.17 | (1)+ |
| Form of Indemnification Agreement between Optimer Pharmaceuticals, Inc. and its directors and officers. |
10.18 | (1)+ |
| 1998 Stock Plan of Optimer Pharmaceuticals, Inc. |
10.19 | (1)+ |
| Stock Plan Stock Option Agreement of Optimer Pharmaceuticals, Inc. |
10.20 | (3)+ |
| 2006 Equity Incentive Plan of Optimer Pharmaceuticals, Inc. |
10.21 | (7)+ |
| Employee Stock Purchase Plan of Optimer Pharmaceuticals, Inc., as amended. |
10.22 | (3) |
| Prospective Buy-Back Agreement between Optimer Pharmaceuticals, Inc. and Par Pharmaceutical, Inc. dated January 19, 2007. |
10.23 | (5)* |
| Supply Agreement with Biocon Limited dated August 29, 2005, as amended. |
10.24 | (5)* |
| Assignment letter between Par Pharmaceutical, Inc. and Biocon Limited dated January 16, 2007. |
10.25 | (8)+ |
| Summary of Optimer Pharmaceuticals, Inc. 2009 Incentive Compensation Plan. |
10.26 | (9) |
| Office Lease, dated August 18, 2008, by and between Optimer Pharmaceuticals, Inc. and Trizec Sorrento Towers, LLC. |
10.27 | (10)+ |
| Optimer Pharmaceuticals, Inc. Severance Benefit Plan |
23.1 | (12) |
| Consent of Independent Registered Public Accounting Firm. |
31.1 |
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| Certification of principal executive officer required by Rule 13a-14(a) or Rule 15d-14(a). |
31.2 |
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| Certification of principal financial officer required by Rule 13a-14(a) or Rule 15d-14(a). |
32 | (12) |
| Certification by the Chief Executive Officer and the Chief Financial Officer of Optimer Pharmaceuticals, Inc., as required by Rule 13a-14(b) or 15d-14(b) and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. 1350). |
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| Indicates management contract or compensatory plan. |
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| Confidential treatment has been granted with respect to certain portions of this exhibit. Omitted portions have been filed separately with the Securities and Exchange Commission. |
(1) |
| Filed with Registrant’s Registration Statement on Form S-1 on November 9, 2006. |
(2) |
| Filed with Registrant’s Amendment No. 2 to Registration Statement on Form S-1 on January 5, 2007. |
(3) |
| Filed with Registrant’s Amendment No. 3 to Registration Statement on Form S-1 on January 22, 2007. |
(4) |
| Filed with Registrant’s Amendment No. 4 to Registration Statement on Form S-1 on February 5, 2007. |
(5) |
| Filed with the Registrant’s Current Report on Form 8-K on February 26, 2007. |
(6) |
| Filed with the Registrant’s Current Report on Form 8-K on October 29, 2007. |
(7) |
| Filed with the Registrant’s Current Report on Form 8-K on September 18, 2007. |
(8) |
| Filed with the Registrant’s Current Report on Form 8-K on January 13, 2009. |
(9) |
| Filed with the Registrant’s Current Report on Form 8-K on August 21, 2008. |
(10) |
| Filed with the Registrant’s Current Report on Form 8-K on October 8, 2008. |
(11) |
| Filed with the Registrant’s Current Report on Form 8-K on March 5, 2009. |
(12) |
| Filed with the Company’s Annual Report on Form 10-K for the year ended December 31, 2008. |
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this Annual Report on Form 10-K/A to be signed on its behalf by the undersigned, thereunto duly authorized.
| OPTIMER PHARMACEUTICALS, INC. | |
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| By: | /s/ MICHAEL N. CHANG |
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| Michael N. Chang |
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| President and Chief Executive Officer |
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| (Principal Executive Officer) |
Dated: April 1, 2009
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EXHIBIT INDEX
Exhibit No. |
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| Description of Document |
3.1 | (3) |
| Certificate of Incorporation of Optimer Pharmaceuticals, Inc., as amended and restated. |
3.2 | (7) |
| Bylaws of Optimer Pharmaceuticals, Inc., as amended. |
4.1 | (4) |
| Common Stock Certificate of Optimer Pharmaceuticals, Inc. |
4.2 | (1) |
| Investors’ Rights Agreement by and among Optimer Pharmaceuticals, Inc. and certain stockholders of the registrant dated November 30, 2005, as amended and restated. |
4.3 | (6) |
| Registration Rights Agreement, dated October 23, 2007, by and between Optimer Pharmaceuticals, Inc. and the purchasers listed on the signature pages thereto. |
4.4 | (11) |
| Form of Warrant. |
10.1 | (1)* |
| Master Service Agreement between Optimer Pharmaceuticals, Inc. and Advanced Biologics, LLC (subsequently INC Research, Inc.), dated November 16, 2005, as amended. |
10.2 | (12)* |
| Collaboration Research and Development and License Agreement between Optimer Pharmaceuticals, Inc. and Cempra Pharmaceuticals, Inc., dated March 31, 2006, as amended. |
10.3 | (4)* |
| Agreement between Optimer Pharmaceuticals, Inc. and Sloan-Kettering Institute for Cancer Research dated July 31, 2002, as amended. |
10.4 | (3)* |
| License Agreement between Optimer Pharmaceuticals, Inc. and Nippon Shinyaku Co., Ltd., dated June 10, 2004. |
10.5 | (1)* |
| License Agreement between Optimer Pharmaceuticals, Inc. and The Scripps Research Institute dated July 23, 1999. |
10.6 | (1)* |
| License Agreement between Optimer Pharmaceuticals, Inc. and The Scripps Research Institute dated May 30, 2001. |
10.7 | (1)* |
| License Agreement between Optimer Pharmaceuticals, Inc. and The Scripps Research Institute dated May 30, 2001. |
10.8 | (1)* |
| License Agreement between Optimer Pharmaceuticals, Inc. and The Scripps Research Institute dated June 1, 2004. |
10.9 | (3) |
| Building Lease between Optimer Pharmaceuticals, Inc. and Pacific Sorrento Technology Park dated May 1, 2001, as amended by the First Amendment to Building Lease between Optimer Pharmaceuticals, Inc. and Pacific Sorrento Technology Park dated July 12, 2001. |
10.10 | (1)+ |
| Form of Employee Proprietary Information Agreement of Optimer Pharmaceuticals, Inc. |
10.11 | (12)+ |
| Employment Agreement between Optimer Pharmaceuticals, Inc. and Michael N. Chang dated June 17, 2005, as amended on October 2, 2008. |
10.12 | (1)+ |
| Offer letter between Optimer Pharmaceuticals, Inc. and Sherwood L. Gorbach dated October 6, 2005. |
10.13 | (12)+ |
| Offer letter between Optimer Pharmaceuticals, Inc. and Kevin P. Poulos dated June 15, 2006, as amended on October 2, 2008. |
10.14 | (12)+ |
| Offer letter between Optimer Pharmaceuticals, Inc. and John D. Prunty dated May 10, 2006, as amended on October 2, 2008. |
10.15 | (1)+ |
| Offer letter between Optimer Pharmaceuticals, Inc. and Tessie M. Che dated August 30, 2001. |
10.16 | (1)+ |
| Offer letter between Optimer Pharmaceuticals, Inc. and Youe-Kong Shue dated February 18, 2000. |
10.17 | (1)+ |
| Form of Indemnification Agreement between Optimer Pharmaceuticals, Inc. and its directors and officers. |
10.18 | (1)+ |
| 1998 Stock Plan of Optimer Pharmaceuticals, Inc. |
10.19 | (1)+ |
| Stock Plan Stock Option Agreement of Optimer Pharmaceuticals, Inc. |
10.20 | (3)+ |
| 2006 Equity Incentive Plan of Optimer Pharmaceuticals, Inc. |
10.21 | (7)+ |
| Employee Stock Purchase Plan of Optimer Pharmaceuticals, Inc., as amended. |
10.22 | (3) |
| Prospective Buy-Back Agreement between Optimer Pharmaceuticals, Inc. and Par Pharmaceutical, Inc. dated January 19, 2007. |
10.23 | (5)* |
| Supply Agreement with Biocon Limited dated August 29, 2005, as amended. |
10.24 | (5)* |
| Assignment letter between Par Pharmaceutical, Inc. and Biocon Limited dated January 16, 2007. |
10.25 | (8)+ |
| Summary of Optimer Pharmaceuticals, Inc. 2009 Incentive Compensation Plan. |
10.26 | (9) |
| Office Lease, dated August 18, 2008, by and between Optimer Pharmaceuticals, Inc. and Trizec Sorrento Towers, LLC. |
10.27 | (10)+ |
| Optimer Pharmaceuticals, Inc. Severance Benefit Plan |
23.1 | (12) |
| Consent of Independent Registered Public Accounting Firm. |
31.1 |
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| Certification of principal executive officer required by Rule 13a-14(a) or Rule 15d-14(a). |
��
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31.2 |
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| Certification of principal financial officer required by Rule 13a-14(a) or Rule 15d-14(a). |
32 | (12) |
| Certification by the Chief Executive Officer and the Chief Financial Officer of Optimer Pharmaceuticals, Inc., as required by Rule 13a-14(b) or 15d-14(b) and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. 1350). |
+ |
| Indicates management contract or compensatory plan. |
* |
| Confidential treatment has been granted with respect to certain portions of this exhibit. Omitted portions have been filed separately with the Securities and Exchange Commission. |
(1) |
| Filed with Registrant’s Registration Statement on Form S-1 on November 9, 2006. |
(2) |
| Filed with Registrant’s Amendment No. 2 to Registration Statement on Form S-1 on January 5, 2007. |
(3) |
| Filed with Registrant’s Amendment No. 3 to Registration Statement on Form S-1 on January 22, 2007. |
(4) |
| Filed with Registrant’s Amendment No. 4 to Registration Statement on Form S-1 on February 5, 2007. |
(5) |
| Filed with the Registrant’s Current Report on Form 8-K on February 26, 2007. |
(6) |
| Filed with the Registrant’s Current Report on Form 8-K on October 29, 2007. |
(7) |
| Filed with the Registrant’s Current Report on Form 8-K on September 18, 2007. |
(8) |
| Filed with the Registrant’s Current Report on Form 8-K on January 13, 2009. |
(9) |
| Filed with the Registrant’s Current Report on Form 8-K on August 21, 2008. |
(10) |
| Filed with the Registrant’s Current Report on Form 8-K on October 8, 2008. |
(11) |
| Filed with the Registrant’s Current Report on Form 8-K on March 5, 2009. |
(12) |
| Filed with the Company’s Annual Report on Form 10-K for the year ended December 31, 2008. |
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