SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 2)
(Mark One)
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| þ | | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2007
OR
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| o | | 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: 001-33882
ONCOTHYREON INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization) | | 26-0868560
(I.R.S. Employer
Identification Number) |
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110 — 110th Avenue NE, Suite 685
Bellevue, Washington
(Address of principal executive offices) | | 98004
(Zip Code) |
Registrant’s telephone number, including area code: (425) 450-0370
Securities registered pursuant to Section 12(b) of the Act:
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| Title of Each Class | | Name of Exchange on Which Registered |
| Common Stock, $0.0001 par value | | The NASDAQ Stock Market LLC
(The NASDAQ Global Market) |
Securities registered pursuant to Section 12(b) 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 (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such 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 registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of the 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 | | Accelerated filer þ | | Non-accelerated filer o | | Smaller reporting company o |
| | | (Do not check if a 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 voting and non-voting stock held by non-affiliates of the Registrant, based on the closing sale price of the Registrant’s common stock on the last day of its most recently completed second fiscal quarter, as reported on the NASDAQ Global Market, was approximately $120 million. Shares of common stock held by each executive officer and director and by each person who owns 5% or more of the outstanding common stock, based on filings with the Securities and Exchange Commission, have been excluded from this computation since such persons may be deemed affiliates of the Registrant. The determination of affiliate status for this purpose is not necessarily a conclusive determination for other purposes.
There were 19,485,889 shares of the Registrant’s common stock, $0.0001 par value, outstanding on February 29, 2008.
DOCUMENTS INCORPORATED BY REFERENCE
None.
ONCOTHYREON INC.
ANNUAL REPORT ON FORM 10-K
FOR THE FISCAL YEAR ENDED DECEMBER 31, 2007
TABLE OF CONTENTS
EXPLANATORY NOTE
This Amendment No. 2 to our annual report on Form 10-K (filed with the Securities and Exchange Commission on March 17, 2008) is being filed to correct certain information required by Part III of Form 10-K, which information was previously included in Amendment No. 1 to the Form 10-K. Such information will also be included in our definitive proxy statement to be filed with the Securities and Exchange Commission on or about April 29, 2008.
Except for the specific information included herein, this Amendment No. 2 does not modify, amend or update in anyway the financial statements or any other items or disclosures contained in our annual report on Form 10-K (which continues to speak as of the date the filing thereof), as amended.
PART III
ITEM 10.Directors, Executive Officers and Corporate Governance
The “Fiscal Year 2007 Director Compensation” table is amended in its entirety to read as follows:
Fiscal Year 2007 Director Compensation
The following table sets forth compensation information for our directors for the year ended December 31, 2007. The table excludes Dr. Kirkman who did not receive any compensation from us in his role as director in the year ended December 31, 2007. All compensation numbers are expressed in U.S. dollars. For currency translation purposes, we used the average of the Bank of Canada daily noon exchange rate for 2007, or U.S. $1.00: Cdn. $1.0740 when translating (a) 2007 cash compensation and (b) 2007 stock compensation under SFAS 123(R). The Bank of Canada “noon exchange rate” is a benchmark rate established by the Bank of Canada.
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| | | Fees earned or Paid | | Stock Awards | | Option Awards | | All Other | | |
| Name | | in Cash ($) | | ($)(1)(8) | | ($)(1)(8)(9) | | Compensation ($) | | Total ($) |
| Christopher S. Henney (2) | | | 75,000 | | | | 7,408 | | | | 79,944 | | | | — | | | | 162,352 | |
| Michael C. Welsh (3) | | | 26,071 | | | | 7,408 | | | | 9,609 | | | | — | | | | 43,088 | |
| Richard L. Jackson (4) | | | 28,000 | | | | 7,408 | | | | 2,161 | | | | — | | | | 37,569 | |
| S. Robert Blair (5) | | | 23,277 | | | | 7,408 | | | | 5,497 | | | | — | | | | 36,182 | |
| W. Vickery Stoughton (6) | | | 35,000 | | | | 7,408 | | | | 6,872 | | | | — | | | | 49,280 | |
| Eric E. Baker (7) | | | 1,940 | | | | 7,408 | | | | — | | | | — | | | | 9,348 | |
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| (1) | | Amounts in these columns represent the aggregate expense recognized for financial statement reporting purposes in 2007 with respect to restricted stock units (“RSUs”), and options granted to our directors, calculated in accordance with Statement of Financial Accounting Standards (“SFAS”) No. 123 (revised 2004), Share Based Payment, (“SFAS 123(R)”) without regard to estimated forfeitures. See Note 14 of Notes to Consolidated Financial Statements contained in our 2007 Annual Report on Form 10-K for a discussion of assumptions made in determining these values. |
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| (2) | | On May 7, 2007, Dr. Henney was granted 989 RSUs. The grant date fair value of such RSU, computed in accordance with SFAS 123(R) was $7,408. |
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| (3) | | On May 7, 2007, Mr. Welsh was granted 989 RSUs. The grant date fair value of such RSU, computed in accordance with SFAS 123(R) was $7,408. |
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| (4) | | On May 7, 2007, Dr. Jackson was granted 989 RSUs. The grant date fair value of such RSU, computed in accordance with SFAS 123(R) was $7,408. |
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| (5) | | On May 7, 2007, Dr. Blair was granted 989 RSUs. The grant date fair value of such RSU, computed in accordance with SFAS 123(R) was $7,408. |
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| (6) | | On May 7, 2007, Mr. Stoughton was granted 989 RSUs. The grant date fair value of such RSU, computed in accordance with SFAS 123(R) was $7,408. |
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| (7) | | On May 7, 2007, Mr. Baker was granted 989 RSUs. The grant date fair value of such RSU, computed in accordance with SFAS 123(R) was $7,408. |
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| (8) | | As of December 31, 2007, our non-employee directors held RSUs and outstanding options to purchase the number of shares of common stock as follows: Dr. Henney (53,602 options, 56,543 RSUs); Dr. Blair (3,333 options, 3,377 RSUs); Dr. Jackson (9,362 options, 6,543 RSUs); Mr. Stoughton (15,467 options, 6,543 RSUs); Mr. Welsh (14,727 options, 6,543 RSUs). |
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| (9) | | Each RSU may be converted into one share of our common stock at the end of the grant period, which has been five years for each of the RSUs we have granted. |
ITEM 11.Executive Compensation
Footnotes 1 and 2 to “Summary Compensation Table — 2007 and 2006” are amended in their entirety to read as follows:
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| (1) | | Other than our chief executive officer and chief scientific officer, all of the named executive officers receive their cash compensation denominated in Canadian dollars. For currency translation purposes, we used the average of the Bank of Canada daily noon exchange rate for 2006, or U.S. $1.00: Cdn. $1.1343 when translating cash compensation and when translating 2006 stock compensation under SFAS 123(R), we used an exchange rate of U.S. $1.00: Cdn. $1.1653, the Bank of Canada daily noon exchange rate for December 29, 2006, the last trading day of 2006. For currency translation purposes, we used the average of the Bank of Canada daily noon exchange rate for 2007, or U.S. $1.00: Cdn. $1.0740 when translating (a) 2007 cash compensation and when translating compensation earned under the 2007 Variable Pay Plan in 2007 and paid in 2008 and (b) 2007 stock compensation under SFAS 123(R). The Bank of Canada “noon exchange rate” is a benchmark rate established by the Bank of Canada. |
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| (2) | | Amounts represent the aggregate expense recognized for financial statement purposes, calculated in accordance with SFAS No. 123(R). See Note 14 of Notes to the Consolidated Financial Statements contained in our 2007 annual report on Form 10-K filed with the Securities and Exchange Commission on March 17, 2008 for a discussion of assumptions made in determining the compensation expense of our stock options. |
PART IV
ITEM 15.Exhibits and Financial Statement Schedules
(a) The following documents are filed as part of this Annual Report on Form 10-K:
1. Financial Statements:
The consolidated financial statements of the Company are contained in Item 8 of the annual report on Form 10-K filed with the Securities and Exchange Commission on March 17, 2008.
2. Financial Statement Schedules:
All financial statement schedules have been omitted because the required information is either included in the financial statements or notes thereto, or is not applicable.
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3. Exhibits:
The exhibits required by Item 601 of Regulation S-K are listed in paragraph (b) below.
(b) Exhibits:
The following exhibits are filed herewith or are incorporated by reference to exhibits previously filed with the SEC:
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| Exhibit | | |
| Number | | Description |
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| | 31.1 | | | Certification of CEO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
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| | 31.2 | | | Certification of CFO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
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| | 32.1 | | | Certification of CEO pursuant to 18 U.S.C. § 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
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| | 32.2 | | | Certification of CFO pursuant to 18 U.S.C. § 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
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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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| | ONCOTHYREON INC
| |
| | By: | /s/ Robert L. Kirkman | |
| | | Robert L. Kirkman | |
| | | President, CEO and Director | |
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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.
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| Signature | | Title | | Date |
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/s/ Robert L. Kirkman Robert L. Kirkman | | President, Chief Executive Officer and Director
(Principal Executive Officer) | | April 24, 2008 |
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/s/ Edward A. Taylor Edward A. Taylor | | Chief Financial Officer and Vice President of Finance
(Principal Accounting and Financial Officer) | | April 24, 2008 |
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/s/ Christopher S. Henney Christopher S. Henney | | Chairman and Director | | April 24, 2008 |
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/s/ Michael C. Welsh Michael C. Welsh | | Director | | April 24, 2008 |
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/s/ Richard L. Jackson Richard L. Jackson | | Director | | April 24, 2008 |
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| | Director | | April 24, 2008 |
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/s/ W. Vickery Stoughton W. Vickery Stoughton | | Director | | April 24, 2008 |
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