UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
on
FORM 10-K/A
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended
December 31, 1997 Commission File No. 0-14710
XOMA CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 94-2756657
(State of Incorporation) (I.R.S. Employer Identification No.)
2910 Seventh Street,
Berkeley, California 94710
(Address of principal (Zip Code)
executive offices)
Registrant's telephone number, including area code:
(510) 644-1170
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.0005 par value
Preferred Stock Purchase Rights
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 ______
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 this Form 10-K or any amendment to this
Form 10-K. [X]
The aggregate market value of voting stock held by nonaffiliates of the
registrant, as of February 28, 1998: $200,005,539.
Number of shares of Common Stock outstanding as of February 28, 1998:
40,524,221.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Company's Proxy Statement for the Company's 1998 Annual
Meeting of Stockholders are incorporated by reference into Part III of this
Report.
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PART II
Item 9. Change in Accountants
As previously reported, on March 19, 1998, XOMA Corporation (the "Company")
appointed Ernst & Young, LLP ("Ernst & Young") to serve as the Company's
independent accountants for 1998, the ratification of which appointment will be
submitted to the stockholders at the Company's 1998 annual meeting.
From fiscal 1983 through fiscal 1997, Arthur Andersen, LLP ("Arthur
Andersen") acted as the Company's independent accountants. Arthur Andersen was
dismissed on March 19, 1998. The decision to change accountants was approved by
the audit committee of the Board of Directors. The reports of Arthur Andersen on
the financial statements of the Company for the two most recent fiscal years did
not contain any adverse opinion or disclaimer of opinion and were not qualified
or modified as to uncertainty, audit scope or accounting principles. During the
Company's two most recent fiscal years and all subsequent interim periods
preceding such dismissal, there were no disagreements with Arthur Andersen on
any matter of accounting principles or practices, financial statement
disclosure, or auditing scope or procedure, which disagreements, if not resolved
to the satisfaction of Arthur Andersen, would have caused it to make a reference
to the subject matter of disagreements in connection with its reports; nor has
Arthur Andersen ever presented a written report, or otherwise communicated in
writing to the Company or Board of Directors or the audit committee thereof the
existence of any "disagreement" or "reportable event" within the meaning of Item
304 of Regulation S-K.
The Company has authorized Arthur Andersen to respond fully to the
inquiries of Ernst & Young. The letter from Arthur Andersen addressed to the
Securities and Exchange Commission, as required by Item 304 (a) (3) of
Regulation S-K, is filed as an exhibit to this Annual Report on Form 10-K, as
amended.
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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, on this 26th day of
March, 1998.
XOMA CORPORATION
By /s/ JOHN L. CASTELLO
---------------------------------
John L. Castello,
Chairman of the Board, 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/ JOHN L. CASTELLO Chairman of the Board, President
- - --------------------------- and Chief Executive Officer
(John L. Castello) March 26, 1998
/s/ PATRICK J. SCANNON Chief Scientific and Medical
- - --------------------------- Officer and Director
(Patrick J. Scannon) March 26, 1998
/s/ PETER B. DAVIS Vice President, Finance and Chief
- - --------------------------- Financial Officer (Principal
(Peter B. Davis) Financial and Accounting Officer) March 26, 1998
/s/ JAMES G. ANDRESS Director March 26, 1998
- - ---------------------------
(James G. Andress)
/s/ WILLIAM K. BOWES, JR. Director March 26, 1998
- - ---------------------------
(William K. Bowes, Jr.)
/s/ ARTHUR KORNBERG Director March 26, 1998
- - ---------------------------
(Arthur Kornberg)
/s/ STEVEN C. MENDELL Director March 26, 1998
- - ---------------------------
(Steven C. Mendell)
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/s/ W. DENMAN VAN NESS Director March 26, 1998
- - ---------------------------
(W. Denman Van Ness)
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INDEX TO EXHIBITS
Exhibit
Number
3.1 Restated Certificate of Incorporation, as amended.*
3.1A Certificate of Amendment of Restated Certificate of Incorporation
(Exhibit 4.2).1
3.2 Amended and Restated Bylaws.*
3.3 Stockholder Rights Agreement dated October 27, 1993 between the Company
and First Interstate Bank of California, as Rights Agent, including
Certificate of Designation of Preferences and Rights of Series A
Cumulative Preferred Stock (Exhibit 1).2
3.4 Certificate of Designation of Preferences and Rights of Senior
Convertible Preferred Stock, Series B.*
3.5 Certificate of Designation of Preferences and Rights of Convertible
Preferred Stock, Series C (Exhibit 3.4).3
3.6 Certificate of Designations of Non-Voting Cumulative Convertible
Preferred Stock, Series D (Exhibit 4.4).4
3.7 Certificate of Designation of Convertible Preferred Stock, Series E
(Exhibit 4.5).4
3.8 Amended Certificate of Designation of Convertible Preferred Stock,
Series E (Exhibit 4.7).1
3.9 Certificate of Designations of Non-Voting Cumulative Convertible
Preferred Stock, Series F (Exhibit 4.8).1
3.10 Form of Common Stock Purchase Warrant issued in connection with offering
of Series F Preferred Stock (Exhibit 4.9).1
3.11 Certificate of Designation of Convertible Preferred Stock, Series G
(Exhibit 2).5
3.12 Form of Common Stock Purchase Warrant issued in connection with offering
of Series G Preferred Stock (Exhibit 3).5
10.1 1981 Stock Option Plan as amended and restated.*
10.1A Form of Stock Option Agreement for 1981 Stock Option Plan.*
10.2 Restricted Stock Plan as amended and restated.*
10.2A Form of Stock Option Agreement for Restricted Stock Plan.*
10.2B Form of Restricted Stock Purchase Agreement for Restricted Stock Plan.*
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10.3 1985 Non-Qualified Stock Option Plan and form of Stock Option
Agreement.*
10.3A Form of Assumption Agreement for 1985 Non-Qualified Stock Option Plan.*
10.3B Amendment to 1985 Non-Qualified Stock Option Plan.*
10.4 1992 Directors Stock Option Plan as amended and restated.*
10.4A Form of Stock Option Agreement for 1992 Directors Stock Option Plan
(initial grants).*
10.4B Form of Stock Option Agreement for 1992 Directors Stock Option Plan
(subsequent grants).*
10.5 Management Incentive Compensation Plan.*
10.6 Form of indemnification agreement for officers.*
10.7 Form of indemnification agreement for employee directors.*
10.8 Form of indemnification agreement for non-employee directors.*
10.9 Employment Agreement dated April 29, 1992 between the Company and John
L. Castello.*
10.10 Employment Agreement dated April 1, 1994 between the Company and Peter
B. Davis (Exhibit 10.47).6
10.11 Employment Agreement dated March 29, 1997 between the Company and
Patrick J. Scannon, M.D., Ph.D.*
10.12 Lease of premises at 890 Heinz Street, Berkeley, California dated as of
July 22, 1987.*
10.13 Lease of premises at Building E at Aquatic Park Center, Berkeley,
California dated as of July 22, 1987 and amendment thereto dated as of
April 21, 1988.*
10.14 Lease of premises at Building C at Aquatic Park Center, Berkeley,
California dated as of July 22, 1987 and amendment thereto dated as of
August 26, 1987.*
10.15 Letter of Agreement regarding CPI adjustment dates for leases of
premises at Buildings C, E and F at Aquatic Park Center, Berkeley,
California dated as of July 22, 1987.*
10.16 Lease of premises at 2910 Seventh Street, Berkeley, California dated
March 25, 1992.*
10.17 Lease dated June 22, 1992, between the Company and Richard B. Gomez,
Josephine L. Gomez, TTEE-U/A/D, 10,31-90, FBO Gomez Family Trust.*
10.18 Sublease dated January 20, 1997, between the Company and UroGenesys,
Inc.*
10.19 Lease dated October 2, 1992, between the Company and Virginia Merritt,
as Trustee of the Bowman Merritt and Virginia Merritt Trust.*
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10.19A First Extension of Lease dated April 23, 1997, between the Company and
Virginia Merritt and Kim Merritt Campot, as Trustees of the Bowman
Merritt and Virginia Merritt 1987 Trust.*
10.20 License Agreement dated September 3, 1986 between the Company and the
Regents of the University of California (with certain confidential
information deleted).*
10.21 Research, Development and Option Agreement, License Agreement, Supply
Agreement, and Security Agreement all dated as of June 9, 1987 between
the Company and Pfizer, Inc. (with certain confidential information
deleted).*
10.22 Manufacturing Agreement dated as of January 1, 1991 between the Company
and Pfizer, Inc.*
10.23 Letter Agreement dated July 14, 1993 between the Company and Pfizer,
Inc. (with certain confidential information deleted) (Exhibit 10.41).7
10.24 Letter Agreement dated November 7, 1995 between the Company and Pfizer,
Inc. (with certain confidential information deleted) (Exhibit 10.48).3
10.25 Settlement Agreement for Litigation with Centocor dated July 28, 1992
(with certain confidential information deleted).*
10.26 Supply Agreement effective February 27, 1989 between the Company and
Charles River Biotechnical Services, Inc. (with certain confidential
information deleted).*
10.26A Amendment Agreement dated as of October 17, 1991 between the Company and
Charles River Laboratories, Inc. (with certain confidential information
deleted).*
10.27 License Agreement dated as of August 31, 1988 between the Company and
Sanofi (with certain confidential information deleted).*
10.28 Amended and Restated Research and License Agreement dated September 1,
1993 between the Company and New York University (with certain
confidential information omitted, which omitted information is the
subject of a confidential treatment request and has been filed
separately with the Securities and Exchange Commission).*
10.28A Third Amendment to License Agreement dated June 12, 1997 between the
Company and New York University (with certain confidential information
omitted, which omitted information is the subject of a confidential
treatment request and has been filed separately with the Securities and
Exchange Commission).*
10.29 Cross License Agreement dated December 15, 1993 between Research
Development Foundation and the Company (with certain confidential
information deleted) (Exhibit 10.42).7
10.30 Cross License Agreement dated December 15, 1993 between the Company and
Research Development Foundation (with certain confidential information
deleted) (Exhibit 10.43).7
-8-
10.31 Technology Acquisition Agreement dated June 3, 1994 between Connective
Therapeutics, Inc. (now called Connetics Corporation) and the Company
(with certain confidential information deleted) (Exhibit 10.46).6
10.32 Collaboration Agreement, dated as of April 22, 1996, between the Company
and Genentech, Inc. (with certain confidential information omitted,
which omitted information is the subject of a confidential treatment
request and has been filed separately with the Securities and Exchange
Commission (Exhibit 10.1).1
10.33 Common Stock and Convertible Note Purchase Agreement, dated as of April
22, 1996, between the Company and Genentech, Inc. (with certain
confidential information omitted, which omitted information is the
subject of a confidential treatment request and has been filed
separately with the Securities and Exchange Commission) (Exhibit 10.2).1
10.33 Convertible Subordinated Note Agreement, dated as of April 22, 1996,
between the Company and Genentech, Inc. (with certain confidential
information omitted, which omitted information is the subject of a
confidential treatment request and has been filed separately with the
Securities and Exchange Commission) (Exhibit 10.3).1
10.33A Amendment to Convertible Subordinated Note Agreement, dated as of June
13, 1996, between the Company and Genentech, Inc. (with certain
confidential information omitted, which omitted information is the
subject of a confidential treatment request and has been filed
separately with the Securities and Exchange Commission) (Exhibit 10.4).1
10.34 Form of Preferred Stock Subscription Agreement by and between the
Company and the purchasers of Series F Preferred Stock (Exhibit 10.5).1
10.35 Form of Registration Rights Agreement by and between the Company and the
purchasers of Series F Preferred Stock (Exhibit 10.6).1
10.36 Form of Convertible Preferred Stock Purchase Agreement by and between
the Company and the purchasers of Series G Preferred Stock (Exhibit 4).5
10.37 Form of Registration Rights Agreement by and between the Company and the
purchasers of Series G. Preferred Stock (Exhibit 5).5
10.38 Patent and Exclusive License Purchase Agreement by and between
Pharmaceutical Partners, L.L.C. and the Company dated as of December 30,
1997 (Exhibit 2).8
16.1 Letter re: change of certifying accountant.
23.1 Consent of Independent Public Accountants.*
27.1 Financial Data Schedule.*
- - -------------------------
Footnotes
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1 Incorporated by reference to the referenced exhibit to the Company's
Registration Statement on Form S-3 filed June 28, 1996 (File No.
333-07263).
2 Incorporated by reference to the referenced exhibit to the Company's
Current Report on Form 8-K dated October 27, 1993 (File No. 0-14710).
3 Incorporated by reference to the referenced exhibit to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1995
(File No. 0-14710).
4 Incorporated by reference to the referenced exhibit to the Company's
Registration Statement on Form S-3 filed April 12, 1996 (File
333-02493).
5 Incorporated by reference to the referenced exhibit to the Company's
Current Report on Form 8-K dated August 13, 1997 (File No. 0-14710).
6 Incorporated by reference to the referenced exhibit to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1994
(File No. 0-14710).
7 Incorporated by reference to the referenced exhibit to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1993
(File No. 0-14710).
8 Incorporated by reference to the referenced exhibit to the Company's
Current Report on Form 8-K dated December 30, 1997 (File No. 0-14710).
* Previously filed.