x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)OF THE SECURITIES EXCHANGE ACT OF 1934 |
Delaware |
20-3174202 |
(State or other jurisdiction of
|
(I.R.S. Employer Identification No.)
|
incorporation or organization)
|
|
Title of each class
|
|
Name of each exchange on which registered
|
Common Stock, $0.0001 Par Value
|
|
Nasdaq Capital Market
|
|
Large accelerated filer ¨
|
Accelerated filer x
|
|
Non-accelerated filer ¨
|
Smaller reporting company ¨
|
|
|
Page
|
|
|
|
PART I
|
|
|
|
|
|
Item 1.
|
Business
|
1
|
|
|
|
Item 1A.
|
Risk Factors
|
16
|
|
|
|
Item 1B.
|
Unresolved Staff Comments
|
31
|
|
|
|
Item 2.
|
Properties
|
31
|
|
|
|
Item 3.
|
Legal Proceedings
|
31
|
|
|
|
Item 4.
|
Mine Safety Disclosures
|
32
|
|
|
|
PART II
|
|
|
|
|
|
Item 5.
|
Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
|
32
|
|
|
|
Item 6.
|
Selected Consolidated Financial Data
|
33
|
|
|
|
Item 7.
|
Management's Discussion and Analysis of Financial Condition and Results of Operations
|
34
|
|
|
|
Item 7A.
|
Quantitative and Qualitative Disclosures about Market Risk
|
49
|
|
|
|
Item 8.
|
Financial Statements and Supplementary Data
|
50
|
|
|
|
Item 9.
|
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
|
50
|
|
|
|
Item 9A.
|
Controls and Procedures
|
51
|
|
|
|
Item 9B.
|
Other Information
|
52
|
|
|
|
PART III
|
|
|
|
|
|
Item 10.
|
Directors, Executive Officers and Corporate Governance
|
53
|
|
|
|
Item 11.
|
Executive Compensation
|
53
|
|
|
|
Item 12.
|
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
|
53
|
|
|
|
Item 13.
|
Certain Relationships and Related Transactions, and Director Independence
|
53
|
|
|
|
Item 14.
|
Principal Accounting Fees and Services
|
53
|
|
|
|
PART IV
|
|
|
|
|
|
Item 15.
|
Exhibits and Financial Statement Schedules
|
54
|
|
|
|
SIGNATURES
|
57
|
1 | ||
2 | ||
3 | ||
4 | ||
5 | ||
6 | ||
7 | ||
8 | ||
9 | ||
10 | ||
· | preclinical laboratory tests, animal pharmacology and toxicology studies, and formulation studies; |
· | submission to the FDA of an investigational new drug application, or IND, for human clinical testing, which must be cleared by the FDA before human clinical trials can begin in the United States; |
· | adequate and well-controlled human clinical trials to establish the safety and efficacy of the drug for each indication; |
· | submission to the FDA of a new drug application, or NDA; |
· | satisfactory completion of any FDA inspections of the manufacturing facility or facilities at which the drug is produced to assess compliance with current good manufacturing practices, or cGMPs; |
· | FDA review and approval of the NDA; and |
· | the completion of any contingent requirements of the FDA as a condition to maintaining marketing approval should it be granted. |
11 | ||
· | Phase I usually involves the initial introduction of the investigational drug into healthy volunteers to evaluate its short-term safety, dosage tolerance, metabolism, pharmacokinetics and pharmacologic actions, and, if possible, to gain an early indication of its effectiveness. |
· | Phase II usually involves trials in a small patient population to evaluate dosage tolerance and appropriate dosage, identify possible adverse effects and safety risks, and evaluate preliminarily the efficacy of the drug for specific indications. |
· | Phase III trials usually involve further evaluation of clinical safety and efficacy by using the drug in its final form in a larger patient population. |
12 | ||
· | report certain adverse reactions to the FDA; |
· | comply with certain requirements concerning advertising and promotional labeling for their products; and |
· | continue to have quality control and manufacturing procedures conform to cGMP after approval. |
13 | ||
14 | ||
Name
|
|
Age
|
|
Position
|
|
|
|
|
|
Joseph Oliveto
|
|
46
|
|
President and Chief Executive Officer
|
|
|
|
|
|
J. Nick Riehle
|
|
61
|
|
Vice President, Administration and Chief Financial Officer
|
|
|
|
|
|
William D. Schwieterman
|
|
56
|
|
Vice President, Chief Medical Officer
|
|
|
|
|
|
L. Arthur Hewitt
|
|
60
|
|
Vice President, Chief Scientific Officer
|
|
|
|
|
|
Michael J. Roberts
|
|
44
|
|
Vice President, Business Development
|
|
|
|
|
|
Keith W. Schmidt
|
|
63
|
|
Vice President, Chief Commercial Officer
|
15 | ||
ITEM 1A. | RISK FACTORS. |
16 | ||
•
|
the cost, pace and level of success of commercialization and marketing efforts for Northera in the U.S ;
|
|
|
|
• | the timing and amount of revenue generated from any sales of Northera; | |
• | the possible out-licensing or other strategic partnering opportunities for our product candidates; | |
• | the requirements of the FDA for post-approval trials for Northera and the related costs thereof; | |
• | the costs and requirements to seek regulatory approval for Nothera in additional markets outside the U.S.; | |
• | seeking additional regulatory approvals for any of our other product candidates, formulations and indications; | |
• | the pace of development of new intellectual property for our existing product candidates; | |
• | in-licensing and development of additional product candidates; | |
• | implementing additional internal systems and infrastructure; and | |
• | changes in existing staffing levels. |
17 | ||
|
•
|
formulating and manufacturing products;
|
|
|
|
|
•
|
developing appropriate administration and compliance processes; and
|
|
|
|
|
•
|
conducting sales, marketing and distribution activities.
|
18 | ||
|
•
|
perceptions by members of the healthcare community, including physicians, about the safety and effectiveness of our drug candidates;
|
|
|
|
|
•
|
cost-effectiveness of our product relative to competing products;
|
|
|
|
|
•
|
understanding by prescribing physicians of the medical conditions we are attempting to address;
|
|
|
|
|
•
|
availability of reimbursement for our product from government or other healthcare payers; and
|
|
|
|
|
•
|
effectiveness of marketing and distribution efforts by us and our licensees and distributors, if any.
|
19 | ||
|
·
|
We might not be able to identify manufacturers on acceptable terms or at all because the number of potential manufacturers is limited and the FDA must approve any replacement contractor. This approval would require new testing and compliance inspections. In addition, a new manufacturer would have to be educated in, or develop substantially equivalent processes for, production of our products after receipt of FDA approval, if any.
|
20 | ||
|
·
|
Our third-party manufacturers might be unable to formulate and manufacture our drugs in the volume and of the quality required to meet our clinical needs and commercial needs, if any, or limitations in their capacity could limit the timely availability of our product, which could alienate prescribing physicians and/or their patients if we cannot meet their demand for our drugs.
|
|
·
|
Our contract manufacturers might not perform as agreed or might not remain in the contract manufacturing business for the time required to supply our clinical trials or to successfully produce, store and distribute our products.
|
|
·
|
Our contract manufacturers might require financial assistance to increase their capacity levels required for our markets.
|
|
·
|
Our contract manufacturers have competing clients and/or competing products that vie for production scheduling. Drug manufacturing lead times for droxidopa are long. The increased risk associated with not securing timely production scheduling slots could lead to not having adequate supplies for launch should Northera be approved or facing gaps in commercial supply and “stock outs” after launch.
|
|
·
|
Drug manufacturers are subject to ongoing periodic unannounced inspection by the FDA, the Drug Enforcement Administration, or DEA, and corresponding state agencies to ensure strict compliance with good manufacturing practice and other government regulations and corresponding foreign standards. We do not have control over third-party manufacturers’ compliance with these regulations and standards.
|
21 | ||
|
•
|
delay commercialization of, and our ability to derive product revenue from, a product candidate;
|
|
|
|
|
•
|
reduce available time during which our intellectual property is protected under various U.S. and foreign patents;
|
|
|
|
|
•
|
impose costly procedures on us; and
|
|
|
|
|
•
|
diminish any competitive advantages that we might otherwise enjoy.
|
22 | ||
|
•
|
unforeseen safety issues;
|
|
|
|
|
•
|
clarification of dosing issues;
|
|
|
|
|
•
|
lack of effectiveness during clinical trials;
|
|
|
|
|
•
|
slower than expected clinical site recruitment;
|
|
|
|
|
•
|
slower than expected rates of patient recruitment;
|
23 | ||
|
•
|
inability to monitor patients adequately during or after treatment;
|
|
|
|
|
•
|
inability or unwillingness of medical investigators to follow our clinical protocols; and
|
|
|
|
|
•
|
unexpected emergence of competitive drugs against which our compounds might compete for clinical trial resources or need to be tested.
|
|
•
|
developing drugs;
|
|
|
|
|
•
|
undertaking preclinical testing and human clinical trials;
|
|
|
|
|
•
|
obtaining FDA and other regulatory approvals of drugs;
|
|
|
|
|
•
|
formulating and manufacturing drugs;
|
24 | ||
|
•
|
launching, marketing and selling drugs; and
|
|
|
|
|
•
|
post-marketing safety surveillance.
|
|
•
|
government and health administration authorities;
|
|
|
|
|
•
|
private health maintenance organizations and health insurers; and
|
|
|
|
|
•
|
other healthcare payers.
|
25 | ||
26 | ||
27 | ||
• | obtain licenses, which might not be available on commercially reasonable terms, if at all; | |
• | abandon an infringing drug candidate; | |
• | redesign our products or processes to avoid infringement; | |
• | stop using the subject matter claimed in the patents held by others; | |
• | pay damages; or | |
• | defend litigation or administrative proceedings, which might be costly whether we win or lose, and which could result in a substantial diversion of valuable management resources. |
28 | ||
29 | ||
• | publicity regarding actual or potential clinical results relating to products under development by our competitors or us; |
• | delays or failures in initiating, completing or analyzing preclinical or clinical trials or the unsatisfactory design or results of these trials; |
• | success or delays in commercialization of our product candidates; |
• | market acceptance of our product candidates; |
• | obtaining, delays in or rejection of regulatory approvals for our products or our competitor’s products by U.S. or foreign regulators; |
• | announcements of technological innovations or new commercial products by our competitors or us; |
• | developments concerning proprietary rights, including patents; |
• | developments concerning our collaborations; |
• | regulatory developments in the United States and foreign countries; |
• | economic or other crises and other external factors; |
• | period-to-period fluctuations in our results of operations; |
• | changes in financial estimates by securities analysts; |
• | should the market price of our shares drop below $5 per share, stock exchange rules that prevent our stockholders from using shares of our common stock as collateral for borrowing in margin accounts or certain institutional investors’ restrictions against investing in our shares; and |
• | sales of our common stock. |
30 | ||
ITEM 1B. | UNRESOLVED STAFF COMMENTS. |
ITEM 2. | PROPERTIES. |
ITEM 3. | LEGAL PROCEEDINGS. |
31 | ||
ITEM 4. | MINE SAFETY DISCLOSURES. |
ITEM 5. | MARKET FOR THE REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES. |
|
|
High
|
|
Low
|
|
||
Fiscal year ended December 31, 2012
|
|
|
|
|
|
|
|
First Quarter
|
|
$
|
5.40
|
|
$
|
2.18
|
|
Second Quarter
|
|
$
|
2.56
|
|
$
|
1.05
|
|
Third Quarter
|
|
$
|
1.50
|
|
$
|
0.70
|
|
Fourth Quarter
|
|
$
|
1.97
|
|
$
|
0.73
|
|
|
|
|
|
|
|
|
|
Fiscal year ended December 31, 2013
|
|
|
|
|
|
|
|
First Quarter
|
|
$
|
2.17
|
|
$
|
0.76
|
|
Second Quarter
|
|
$
|
2.76
|
|
$
|
1.68
|
|
Third Quarter
|
|
$
|
3.30
|
|
$
|
2.28
|
|
Fourth Quarter
|
|
$
|
4.53
|
|
$
|
2.57
|
|
32 | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Period from
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
April 3, 2002
|
|
|
|
|
Years ended December 31,
|
|
(inception) through
|
|
||||||||||||||
|
|
2013
|
|
2012
|
|
2011
|
|
2010
|
|
2009
|
|
December 31, 2013
|
|
||||||
|
|
(In thousands, except share and per share data)
|
|
||||||||||||||||
Statement of Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development
|
|
$
|
10,368
|
|
$
|
16,744
|
|
$
|
37,270
|
|
$
|
30,871
|
|
$
|
23,985
|
|
$
|
172,873
|
|
Sales and marketing
|
|
|
1,089
|
|
|
7,222
|
|
|
8,068
|
|
|
2,476
|
|
|
2,289
|
|
|
25,335
|
|
General and administrative
|
|
|
4,978
|
|
|
5,680
|
|
|
5,276
|
|
|
4,155
|
|
|
4,076
|
|
|
35,881
|
|
Restructuring
|
|
|
-
|
|
|
2,158
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
2,158
|
|
Total operating expenses
|
|
|
16,435
|
|
|
31,804
|
|
|
50,614
|
|
|
37,502
|
|
|
30,350
|
|
|
236,247
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating loss
|
|
|
(16,435)
|
|
|
(31,804)
|
|
|
(50,614)
|
|
|
(37,502)
|
|
|
(30,350)
|
|
|
(236,247)
|
|
Interest income, net of expense
|
|
|
18
|
|
|
68
|
|
|
162
|
|
|
172
|
|
|
188
|
|
|
4,769
|
|
Other income (expense)
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
4,390
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
$
|
(16,417)
|
|
$
|
(31,736)
|
|
$
|
(50,452)
|
|
$
|
(37,330)
|
|
$
|
(25,772)
|
|
$
|
(231,478)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss per basic and diluted
share of common stock |
|
$
|
(0.24)
|
|
$
|
(0.47)
|
|
$
|
(0.84)
|
|
$
|
(0.91)
|
|
$
|
(0.82)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number
of basic and diluted common shares outstanding |
|
|
68,825,944
|
|
|
66,892,982
|
|
|
60,136,326
|
|
|
41,184,623
|
|
|
31,549,739
|
|
|
|
|
|
|
As of December 31,
|
|
|||||||||||||
|
|
2013
|
|
2012
|
|
2011
|
|
2010
|
|
2009
|
|
|||||
|
|
(in thousands)
|
|
|||||||||||||
Balance Sheet Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
45,323
|
|
$
|
28,425
|
|
$
|
41,106
|
|
$
|
47,593
|
|
$
|
22,295
|
|
Short-term investments, net
|
|
|
-
|
|
|
-
|
|
|
4,500
|
|
|
-
|
|
|
11,450
|
|
Working capital
|
|
|
43,211
|
|
|
25,765
|
|
|
33,336
|
|
|
34,970
|
|
|
12,671
|
|
Total assets
|
|
|
46,503
|
|
|
28,928
|
|
|
46,903
|
|
|
48,374
|
|
|
34,349
|
|
Line of credit payable
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
11,466
|
|
Deficit accumulated during the
development stage |
|
|
(231,478)
|
|
|
(215,061)
|
|
|
(183,326)
|
|
|
(132,873)
|
|
|
(95,543)
|
|
Total stockholders' equity
|
|
|
43,256
|
|
|
25,916
|
|
|
33,665
|
|
|
35,188
|
|
|
12,852
|
|
33 | ||
34 | ||
35 | ||
36 | ||
37 | ||
|
|
|
|
|
|
|
|
|
|
|
Period from
|
|
|
|
|
|
|
|
|
|
|
|
|
|
April 3, 2002
|
|
|
(in thousands)
|
|
Years ended December 31,
|
|
(inception) through
|
|
||||||||
|
|
2013
|
|
2012
|
|
2011
|
|
December 31, 2013
|
|
||||
Antifolates
|
|
$
|
-
|
|
$
|
4,000
|
|
$
|
7,350
|
|
$
|
43,000
|
|
Droxidopa
|
|
|
10,400
|
|
|
12,700
|
|
|
29,950
|
|
|
127,400
|
|
I-3D
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
2,500
|
|
|
|
$
|
10,400
|
|
$
|
16,700
|
|
$
|
37,300
|
|
$
|
172,900
|
|
38 | ||
(in thousands, except percentages)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the
|
|
For the
|
|
|
|
|
|
|
|
||
|
|
year ended
|
|
year ended
|
|
|
|
|
|
|
|
||
|
|
December 31,
|
|
December 31,
|
|
$
|
|
%
|
|
|
|||
|
|
2013
|
|
2012
|
|
Decrease
|
|
Change
|
|
|
|||
Research and development expense
|
|
$
|
10,368
|
|
$
|
16,744
|
|
$
|
(6,376)
|
|
-38
|
|
%
|
Sales and marketing expense
|
|
|
1,089
|
|
|
7,222
|
|
|
(6,133)
|
|
-85
|
|
%
|
General and administrative expense
|
|
|
4,978
|
|
|
5,680
|
|
|
(702)
|
|
-12
|
|
%
|
Restructuring
|
|
|
-
|
|
|
2,158
|
|
|
(2,158)
|
|
-100
|
|
%
|
Interest income
|
|
|
18
|
|
|
68
|
|
|
(50)
|
|
-74
|
|
%
|
39 | ||
40 | ||
(in thousands, except percentages)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the
|
|
For the
|
|
|
|
|
|
|
||
|
|
year ended
|
|
year ended
|
|
$
|
|
|
|
|||
|
|
December 31,
|
|
December 31,
|
|
Increase
|
|
%
|
|
|||
|
|
2012
|
|
2011
|
|
(Decrease)
|
|
Change
|
|
|||
Research and development expense
|
|
$
|
16,744
|
|
$
|
37,270
|
|
$
|
(20,526)
|
|
-55
|
%
|
Sales and marketing expense
|
|
|
7,222
|
|
|
8,068
|
|
|
(846)
|
|
-10
|
%
|
General and administrative expense
|
|
|
5,680
|
|
|
5,276
|
|
|
404
|
|
8
|
%
|
Restructuring
|
|
|
2,158
|
|
|
-
|
|
|
2,158
|
|
100
|
%
|
Interest income
|
|
|
68
|
|
|
162
|
|
|
(94)
|
|
-58
|
%
|
41 | ||
• | the cost, pace and level of success of commercialization and marketing efforts for Northera in the U.S.; |
• | the timing and amount of revenue generated from Northera and the pace of revenue growth; |
• | the possible out-licensing or other strategic partnering opportunities for our product candidates; |
• | the requirements of the FDA for post-approval trials for Northera and the related costs thereof; |
• | the costs, requirements and timing for possible regulatory approval for Northera in additional markets outside the U.S.; |
• | seeking additional regulatory approvals for any of our other product candidates, formulations and indications; |
• | the pace of development of new intellectual property for our existing product candidates; |
• | changes in existing staffing levels; |
• | implementing additional internal systems and infrastructure; and |
• | in-licensing and development of additional product candidates. |
42 | ||
43 | ||
44 | ||
45 | ||
46 | ||
|
|
Payments due by period
|
|
|||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
More than
|
|
|
Category
|
|
Total
|
|
< 1 Year
|
|
1-3 Years
|
|
3-5 Years
|
|
5 Years
|
|
|||||
Operating lease obligations
|
|
$
|
882,839
|
|
$
|
394,869
|
|
$
|
487,970
|
|
$
|
-
|
|
$
|
-
|
|
Purchase obligations
|
|
|
23,690,835
|
|
|
9,258,397
|
|
|
14,432,438
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
24,573,673
|
|
$
|
9,653,266
|
|
$
|
14,920,408
|
|
$
|
-
|
|
$
|
-
|
|
47 | ||
48 | ||
49 | ||
|
|
|
Year ended December 31, 2012
|
|
|||||||||
|
|
First
|
|
Second
|
|
|
Third
|
|
Fourth
|
|
|||
|
|
Quarter
|
|
Quarter
|
|
|
Quarter
|
|
Quarter
|
|
|||
Operating expenses
|
|
$
|
15,587,992
|
|
$
|
7,889,879
|
|
$
|
6,088,374
|
|
$
|
2,237,258
|
|
Loss from operations
|
|
|
(15,587,992)
|
|
|
(7,889,879)
|
|
|
(6,088,374)
|
|
|
(2,237,258)
|
|
Other income (expense)
|
|
|
28,774
|
|
|
17,594
|
|
|
12,076
|
|
|
9,150
|
|
Net loss
|
|
|
(15,559,218)
|
|
|
(7,872,285)
|
|
|
(6,076,298)
|
|
|
(2,228,108)
|
|
Basic and diluted net loss per share (a)
|
|
|
(0.23)
|
|
|
(0.13)
|
|
|
(0.09)
|
|
|
(0.03)
|
|
|
|
Year ended December 31, 2013
|
|
||||||||||
|
|
First
|
|
Second
|
|
Third
|
|
Fourth
|
|
||||
|
|
Quarter
|
|
Quarter
|
|
Quarter
|
|
Quarter (b)
|
|
||||
Operating expenses
|
|
$
|
3,923,314
|
|
$
|
3,340,160
|
|
$
|
3,845,922
|
|
$
|
5,324,960
|
|
Loss from operations
|
|
|
(3,923,314)
|
|
|
(3,340,160)
|
|
|
(3,845,922)
|
|
|
(5,324,960)
|
|
Other income (expense)
|
|
|
6,095
|
|
|
4,276
|
|
|
3,239
|
|
|
4,514
|
|
Net loss
|
|
|
(3,917,219)
|
|
|
(3,335,884)
|
|
|
(3,842,683)
|
|
|
(5,320,446)
|
|
Basic and diluted net loss per share (a)
|
|
|
(0.06)
|
|
|
(0.05)
|
|
|
(0.06)
|
|
|
(0.07)
|
|
(a) | Basic and diluted net loss per share for each of the quarters presented above is based on the respective weighted average number of common shares for the quarters. As such, the sum of the quarters may not necessarily be equal to the full year loss per share amount. Basic and diluted net loss per share are identical since potentially dilutive securities are excluded from the calculations, as the effect would be anti-dilutive for all periods presented. |
ITEM 9. | CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE. |
50 | ||
ITEM 9A. | CONTROLS AND PROCEDURES. |
51 | ||
ITEM 9B. | OTHER INFORMATION. |
52 | ||
53 | ||
|
Page
|
|
|
Reports of Independent Registered Public Accounting Firms.
|
F-1
|
Consolidated Balance Sheets
|
F-3
|
Consolidated Statements of Operations
|
F-4
|
Consolidated Statements of Stockholders' Equity
|
F-5
|
Consolidated Statements of Cash Flows
|
F-10
|
Notes to Consolidated Financial Statements.
|
F-12
|
Exhibit
|
|
|
|
Registrant’s
|
|
|
|
Exhibit
|
|
Filed
|
Number
|
|
Description of Document
|
|
Form
|
|
Dated
|
|
Number
|
|
Herewith
|
|
|
|
|
|
|
|
|
|
|
|
3.1
|
|
Certificate of Incorporation for Chelsea Therapeutics International, Ltd., as amended on June 1, 2010
|
|
10-Q
|
|
11/01/11
|
|
3.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.2
|
|
Certificate of Amendment to Certificate of Incorporation of Chelsea Therapeutics Internationl, Ltd.
|
|
8-K
|
|
06/11/13
|
|
3.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.3
|
|
Amended and Restated Bylaws of Chelsea Therapeutics International, Ltd.
|
|
|
|
|
|
X
|
54 | ||
Exhibit
|
|
|
|
Registrant’s
|
|
|
|
Exhibit
|
|
Filed
|
Number
|
|
Description of Document
|
|
Form
|
|
Dated
|
|
Number
|
|
Herewith
|
|
|
|
|
|
|
|
|
|
|
|
10.1*
|
|
License Agreement dated as of March 24, 2004 between M. Gopal Nair and Chelsea Therapeutics, Inc. (f/k/a Aspen Therapeutics, Inc.)
|
|
8-K+
|
|
02/16/05
|
|
10.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.3
|
|
Chelsea Therapeutics International, Ltd. 2004 Stock Plan, as amended, and forms of Notice of Stock Option Grant and Stock Option Agreement, as amended January 25, 2012.
|
|
10-K
|
|
03/07/12
|
|
10.3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.6
|
|
Employment Agreement between Chelsea Therapeutics International, Ltd. and Dr. Simon Pedder, dated March 2, 2012.
|
|
10-K
|
|
03/07/12
|
|
10.6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.7*
|
|
Development and Commercialization Agreement dated as of May 5, 2006 between Active Biotech AB and Chelsea Therapeutics International, Ltd.
|
|
10-Q
|
|
08/14/06
|
|
10.8
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.8*
|
|
Exclusive License Agreement effective May 26, 2006 between Dainippon Sumitomo Pharma Co., Ltd. and Chelsea Therapeutics, Inc.
|
|
10-Q
|
|
08/14/06
|
|
10.9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.9*
|
|
Finder’s Agreement dated May 26, 2006 between Paramount BioCapital, Inc. and Chelsea Therapeutics International, Ltd.
|
|
10-Q
|
|
08/14/06
|
|
10.10
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.14
|
|
Sales Agreement, dated July 2, 2010, between Chelsea Therapeutics, Ltd. and Cantor Fitzgerald & Co.
|
|
S-3
|
|
01/10/11
|
|
10.16
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.15
|
|
Amendment No. 1, dated July 26, 2011, to Sales Agreement, dated July 2, 2010, between Chelsea Therapeutics International, Ltd. and Cantor Fitzgerald & Co.
|
|
8-K
|
|
07/26/11
|
|
10.15
|
|
|
55 | ||
Exhibit
|
|
|
|
Registrant’s
|
|
|
|
Exhibit
|
|
Filed
|
Number
|
|
Description of Document
|
|
Form
|
|
Dated
|
|
Number
|
|
Herewith
|
|
|
|
|
|
|
|
|
|
|
|
10.16
|
|
Amendment No. 2, dated December 28, 2011, to Sales Agreement, dated July 2, 2010, as amended July 26, 2011, between Chelsea Therapeutics International, Ltd. and Cantor Fitzgerald & Co.
|
|
8-K
|
|
12/29/11
|
|
10.16
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.17*
|
|
Manufacturing Services Agreement, dated November 7, 2011, between Chelsea Therapeutics, Inc. and Patheon Inc.
|
|
10-K
|
|
03/07/12
|
|
10.17
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.18
|
|
Severance and Release Agreement, dated as of July 9, 2012, between Chelsea Therapeutics International, Ltd. and Dr. Simon Pedder
|
|
8-K
|
|
07/13/12
|
|
10.17
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.19
|
|
Severance Agreement, dates as of October 16, 2012, between Chelsea Therapeutics International, Ltd. And Joseph Oliveto
|
|
8-K
|
|
10/16/12
|
|
10.19
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.20
|
|
Amendment No. 3, dated November 26, 2012, to Sales Agreement, dated July 2, 2010, as amended July 26, 2011 and December 28, 2011, between Chelsea Therapeutics International, Ltd. and Cantor Fitzgerald & Co.
|
|
8-K
|
|
11/26/12
|
|
10.20
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.21
|
|
Chelsea Therapeutics International, Ltd. Executive Severance Plan |
|
8-K
|
|
04/19/13
|
|
10.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.22
|
|
Chelsea Therapeutics International, Ltd. Executive Retention Bonus Plan |
|
8-K
|
|
04/19/13
|
|
10.2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
21.1
|
|
Subsidiaries of Chelsea Therapeutics International, Ltd.
|
|
10-K
|
|
03/12/07
|
|
21.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23.1
|
|
Consent of Independent Registered Public Accounting Firm.
|
|
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
23.2
|
|
Consent of Independent Registered Public Accounting Firm.
|
|
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
31.1
|
|
Certification by the Chief Executive Officer pursuant to Section 240.13a-14 or section 240.15d-14 of the Securities and Exchange Act of 1934, as amended.
|
|
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
31.2
|
|
Certification by the Chief Financial Officer pursuant to Section 240.13a-14 or section 240.15d-14 of the Securities and Exchange Act of 1934, as amended.
|
|
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
32.1
|
|
Certification by the Chief Executive Officer pursuant to 18 U.S.C. 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
|
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
32.2
|
|
Certification by the Chief Financial Officer pursuant to 18 U.S.C. 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
|
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
101
|
|
Financials submitted in XBRL format.
|
|
|
|
|
|
|
|
X
|
56 | ||
|
CHELSEA THERAPEUTICS INTERNATIONAL, LTD.
|
|
|
|
|
|
By:
|
/s/ Joseph Oliveto
|
|
|
Joseph Oliveto
|
|
|
President, Chief Executive Officer and Director
|
|
Name
|
|
Title
|
|
|
|
|
|
/s/ Joseph Oliveto
|
|
President, Chief Executive Officer and Director
|
|
Joseph Oliveto
|
|
(Principal Executive Officer)
|
|
|
|
|
|
/s/ J. Nick Riehle
|
|
Vice President, Administration and Chief Financial
|
|
J. Nick Riehle
|
|
Officer (Principal Financial and Accounting Officer)
|
|
|
|
|
|
/s/ Michael Weiser
|
|
Director
|
|
Michael Weiser, M.D., Ph.D.
|
|
|
|
|
|
|
|
/s/ Kevan Clemens
|
|
Director
|
|
Kevan Clemens, Ph.D.
|
|
|
|
|
|
|
|
/s/ William Rueckert
|
|
Director
|
|
William D. Rueckert
|
|
|
|
|
|
|
|
/s/ Roger Stoll
|
|
Director
|
|
Roger Stoll, Ph.D.
|
|
|
57 | ||
F-1 | ||
/s/ CohnReznick LLP
|
|
|
|
Roseland, New Jersey
|
|
March 10, 2008
|
|
F-2 | ||
|
|
December 31,
|
|
December 31,
|
|
||
|
|
2013
|
|
2012
|
|
||
|
|
|
|
|
|
|
|
Assets
|
|
|
|
|
|
|
|
Current assets:
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
45,323,062
|
|
$
|
28,424,631
|
|
Prepaid contract research and manufacturing
|
|
|
915,222
|
|
|
175,192
|
|
Other prepaid expenses and other current assets
|
|
|
219,660
|
|
|
176,181
|
|
Total current assets
|
|
|
46,457,944
|
|
|
28,776,004
|
|
Property and equipment, net
|
|
|
44,578
|
|
|
151,544
|
|
|
|
$
|
46,502,522
|
|
$
|
28,927,548
|
|
|
|
|
|
|
|
|
|
Liabilities and Stockholders' Equity
|
|
|
|
|
|
|
|
Current liabilities:
|
|
|
|
|
|
|
|
Accounts payable
|
|
$
|
1,363,485
|
|
$
|
788,073
|
|
Accrued compensation and related expenses
|
|
|
213,313
|
|
|
199,935
|
|
Accrued restructuring
|
|
|
270,419
|
|
|
841,184
|
|
Accrued contract research and manufacturing
|
|
|
372,239
|
|
|
496,901
|
|
Other accrued expenses
|
|
|
1,027,394
|
|
|
685,305
|
|
Total current liabilities
|
|
|
3,246,850
|
|
|
3,011,398
|
|
Commitments
|
|
|
|
|
|
|
|
Stockholders' equity:
|
|
|
|
|
|
|
|
Preferred stock, $0.0001 par value, 5,000,000 shares authorized,
no shares issued and outstanding |
|
|
-
|
|
|
-
|
|
Common stock, $0.0001 par value, 200,000,000 and 100,000,000
shares authorized, 78,433,916 and 67,075,779 shares issued amd outstanding, respectively |
|
|
7,843
|
|
|
6,708
|
|
Additional paid-in capital
|
|
|
274,725,472
|
|
|
240,970,852
|
|
Deficit accumulated during the development stage
|
|
|
(231,477,643)
|
|
|
(215,061,410)
|
|
Total stockholders' equity
|
|
|
43,255,672
|
|
|
25,916,150
|
|
|
|
$
|
46,502,522
|
|
$
|
28,927,548
|
|
F-3 | ||
|
|
|
|
|
|
|
|
|
|
|
Period from
|
|
|
|
|
|
|
|
|
|
|
|
|
|
April 3, 2002
|
|
|
|
|
For the years ended December 31,
|
|
(inception) through
|
|
||||||||
|
|
2013
|
|
2012
|
|
2011
|
|
December 31, 2013
|
|
||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development
|
|
$
|
10,367,757
|
|
$
|
16,744,423
|
|
$
|
37,270,138
|
|
$
|
172,872,603
|
|
Sales and marketing
|
|
|
1,089,053
|
|
|
7,221,800
|
|
|
8,067,709
|
|
|
25,335,429
|
|
General and administrative
|
|
|
4,977,546
|
|
|
5,679,485
|
|
|
5,276,146
|
|
|
35,880,704
|
|
Restructuring
|
|
|
-
|
|
|
2,157,795
|
|
|
-
|
|
|
2,157,795
|
|
Total operating expenses
|
|
|
16,434,356
|
|
|
31,803,503
|
|
|
50,613,993
|
|
|
236,246,531
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating loss
|
|
|
(16,434,356)
|
|
|
(31,803,503)
|
|
|
(50,613,993)
|
|
|
(236,246,531)
|
|
Interest income
|
|
|
18,123
|
|
|
67,594
|
|
|
161,828
|
|
|
5,027,236
|
|
Interest expense
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(258,348)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
$
|
(16,416,233)
|
|
$
|
(31,735,909)
|
|
$
|
(50,452,165)
|
|
$
|
(231,477,643)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss per basic and diluted share of
common stock |
|
$
|
(0.24)
|
|
$
|
(0.47)
|
|
$
|
(0.84)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of basic and
diluted common shares outstanding |
|
|
68,825,944
|
|
|
66,892,982
|
|
|
60,136,326
|
|
|
|
|
F-4 | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred
|
|
Deficit
|
|
|
|
|
||
|
|
|
|
|
|
|
|
|
|
Unpaid
|
|
stock-
|
|
accumulated
|
|
Total
|
|
||||
|
|
|
|
|
|
|
Additional
|
|
Subscription
|
|
based
|
|
during the
|
|
stock-
|
|
|||||
|
|
Common stock
|
|
Paid-In
|
|
on common
|
|
compen-
|
|
development
|
|
holders'
|
|
||||||||
|
|
Shares
|
|
Amount
|
|
Capital
|
|
stock
|
|
sation
|
|
stage
|
|
equity
|
|
||||||
Issuance of common stock to founders in April 2002
|
|
5,428,217
|
|
$
|
542
|
|
$
|
4,083
|
|
$
|
(4,625)
|
|
$
|
-
|
|
$
|
-
|
|
$
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2003
|
|
5,428,217
|
|
|
542
|
|
|
4,083
|
|
|
(4,625)
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued in March 2004, at approximately $0.0009 per share, for license fee
|
|
471,816
|
|
|
47
|
|
|
355
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
402
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale and issuance of common stock in April 2004, at approximately $0.0009 per share to chief executive
|
|
478,330
|
|
|
48
|
|
|
360
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
408
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Receipt of cash for stock subscription receivable
|
|
-
|
|
|
-
|
|
|
-
|
|
|
4,625
|
|
|
-
|
|
|
-
|
|
|
4,625
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale and issuance of common stock in December 2004 at approximately $2.45 per share, net of issuance costs
|
|
5,532,994
|
|
|
554
|
|
|
13,550,255
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
13,550,809
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred stock-based compensation
|
|
-
|
|
|
-
|
|
|
33,525
|
|
|
-
|
|
|
(33,525)
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization of deferred stock- based compensation
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
1,529
|
|
|
-
|
|
|
1,529
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(3,016,559)
|
|
|
(3,016,559)
|
|
Balance at December 31, 2004
|
|
11,911,357
|
|
|
1,191
|
|
|
13,588,578
|
|
|
-
|
|
|
(31,996)
|
|
|
(3,016,559)
|
|
|
10,541,214
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Recapitalization of the Company (See Note 1)
|
|
457,168
|
|
|
46
|
|
|
(400,046)
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(400,000)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Employee stock options exercised
|
|
14,663
|
|
|
1
|
|
|
998
|
|
|
-
|
|
|
|
|
|
|
|
|
999
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adoption of SFAS 123R
|
|
-
|
|
|
-
|
|
|
(31,996)
|
|
|
-
|
|
|
31,996
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization of deferred stock- based compensation
|
|
-
|
|
|
-
|
|
|
99,319
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
99,319
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Variable accounting for stock options granted to third party
|
|
-
|
|
|
-
|
|
|
58,594
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
58,594
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(7,915,722)
|
|
|
(7,915,722)
|
|
Balance at December 31, 2005
|
|
12,383,188
|
|
|
1,238
|
|
|
13,315,447
|
|
|
-
|
|
|
-
|
|
|
(10,932,281)
|
|
|
2,384,404
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale and issuance of common stock with detachable warrants in February 2006 at approximately $2.77 per share, net of issuance costs
|
|
7,166,666
|
|
|
717
|
|
|
19,854,935
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
19,855,652
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued in March 2006, at par, pursuant to net-share (cashless) exercise of common stock warrants
|
|
15,461
|
|
|
2
|
|
|
(2)
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued in May 2006, at approximately $4.35 per share, for license fee
|
|
63,131
|
|
|
6
|
|
|
274,615
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
274,621
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Employee stock options exercised
|
|
78,683
|
|
|
8
|
|
|
5,072
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
5,080
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based compensation
|
|
-
|
|
|
-
|
|
|
283,983
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
283,983
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Variable accounting for stock options granted to third party
|
|
-
|
|
|
-
|
|
|
4,192
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
4,192
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(8,671,376)
|
|
|
(8,671,376)
|
|
Balance at December 31, 2006
|
|
19,707,129
|
|
|
1,971
|
|
|
33,738,242
|
|
|
-
|
|
|
-
|
|
|
(19,603,657)
|
|
|
14,136,556
|
|
F-5 | ||
|
|
|
|
|
|
|
|
|
|
Deferred
|
|
Deficit
|
|
|
|
|
|
|
|
|
|
|
|
Unpaid
|
|
stock-
|
|
accumulated
|
|
Total
|
|
|
|
|
|
|
|
Additional
|
|
Subscription
|
|
based
|
|
during the
|
|
stock-
|
|
|
|
Common stock
|
|
Paid-In
|
|
on common
|
|
compen-
|
|
development
|
|
holders'
|
|
||
|
|
Shares
|
|
Amount
|
|
Capital
|
|
stock
|
|
sation
|
|
stage
|
|
equity
|
|
Balance at December 31, 2006
|
|
19,707,129
|
|
1,971
|
|
33,738,242
|
|
-
|
|
-
|
|
(19,603,657)
|
|
14,136,556
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued during 2007, at par, pursuant to net-share (cashless) exercises of common stock warrants
|
|
68,136
|
|
6
|
|
(6)
|
|
-
|
|
-
|
|
-
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair value of warrants issued in May 2006 in consideration of finders fee at approximately $1.75 per share for which vesting was conditioned on an even that occurred in January 2007
|
|
-
|
|
-
|
|
433,750
|
|
-
|
|
-
|
|
-
|
|
433,750
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale and issuance of common stock with detachable warrants in March 2007 at approximately $4.33 per share, net of issuance costs
|
|
2,648,306
|
|
265
|
|
11,476,412
|
|
-
|
|
-
|
|
-
|
|
11,476,677
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued in April 2007, at approximately $5.63 per share, for license fee
|
|
26,643
|
|
3
|
|
149,997
|
|
-
|
|
-
|
|
-
|
|
150,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued in June 2007, at $4.20 per share, pursuant to exercise of common stock warrants, net of fees
|
|
60,000
|
|
6
|
|
246,994
|
|
-
|
|
-
|
|
-
|
|
247,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued in October 2007, at $4.20 per share, pursuant to exercise of common stock warrants
|
|
1,200
|
|
-
|
|
5,040
|
|
-
|
|
-
|
|
-
|
|
5,040
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale and issuance of common stock in November 2007 at approximately $6.19 per share, net of issuance costs
|
|
7,388,172
|
|
739
|
|
45,754,030
|
|
-
|
|
-
|
|
-
|
|
45,754,769
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Employee stock options exercised
|
|
17,868
|
|
2
|
|
15,704
|
|
-
|
|
-
|
|
-
|
|
15,706
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based compensation
|
|
-
|
|
-
|
|
828,626
|
|
-
|
|
-
|
|
-
|
|
828,626
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
-
|
|
-
|
|
-
|
|
-
|
|
-
|
|
(15,081,545)
|
|
(15,081,545)
|
|
Balance at December 31, 2007
|
|
29,917,454
|
|
2,992
|
|
92,648,789
|
|
-
|
|
-
|
|
(34,685,202)
|
|
57,966,579
|
|
F-6 | ||
|
|
|
|
|
|
|
|
|
|
Deferred
|
|
Deficit
|
|
|
|
|
|
|
|
|
|
|
|
Unpaid
|
|
stock-
|
|
accumulated
|
|
Total
|
|
|
|
|
|
|
|
Additional
|
|
Subscription
|
|
based
|
|
during the
|
|
stock-
|
|
|
|
Common stock
|
|
Paid-In
|
|
on common
|
|
compen-
|
|
development
|
|
holders'
|
|
||
|
|
Shares
|
|
Amount
|
|
Capital
|
|
stock
|
|
sation
|
|
stage
|
|
equity
|
|
Balance at December 31, 2007
|
|
29,917,454
|
|
2,992
|
|
92,648,789
|
|
-
|
|
-
|
|
(34,685,202)
|
|
57,966,579
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued during 2008, at par, pursuant to net-share (cashless) exercises of common stock warrants
|
|
57,983
|
|
6
|
|
(6)
|
|
-
|
|
-
|
|
-
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued in 2008, at $4.20 per share, pursuant to exercise of common stock warrants
|
|
11,200
|
|
1
|
|
47,039
|
|
-
|
|
-
|
|
-
|
|
47,040
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Final adjustment to issuance costs accrued in conjunction with the sale and issuance of common stock in November 2007 at approximately $6.19 per share
|
|
-
|
|
-
|
|
5,733
|
|
-
|
|
-
|
|
-
|
|
5,733
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued in April 2008, at approximately $4.90 per share, for license fee
|
|
30,612
|
|
3
|
|
149,997
|
|
-
|
|
-
|
|
-
|
|
150,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Employee stock options exercised
|
|
94,230
|
|
9
|
|
58,935
|
|
-
|
|
-
|
|
-
|
|
58,944
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based compensation
|
|
-
|
|
-
|
|
1,405,752
|
|
-
|
|
-
|
|
-
|
|
1,405,752
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
-
|
|
-
|
|
-
|
|
-
|
|
-
|
|
(35,086,151)
|
|
(35,086,151)
|
|
Balance at December 31, 2008
|
|
30,111,479
|
|
3,011
|
|
94,316,239
|
|
-
|
|
-
|
|
(69,771,353)
|
|
24,547,897
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued during 2009, at par, pursuant to net-share (cashless) exercises of common stock warrants
|
|
63,927
|
|
6
|
|
(6)
|
|
-
|
|
-
|
|
-
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale and issuance of common stock in July 2009 at approximately $3.73 per share, net of issuance costs
|
|
3,325,000
|
|
333
|
|
12,402,425
|
|
-
|
|
-
|
|
-
|
|
12,402,758
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based compensation
|
|
-
|
|
-
|
|
1,673,165
|
|
-
|
|
-
|
|
-
|
|
1,673,165
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
-
|
|
-
|
|
-
|
|
-
|
|
-
|
|
(25,771,914)
|
|
(25,771,914)
|
|
Balance at December 31, 2009
|
|
33,500,406
|
|
3,350
|
|
108,391,823
|
|
-
|
|
-
|
|
(95,543,267)
|
|
12,851,906
|
|
F-7 | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred
|
|
Deficit
|
|
|
|
|
||
|
|
|
|
|
|
|
|
|
|
Unpaid
|
|
stock-
|
|
accumulated
|
|
Total
|
|
||||
|
|
|
|
|
|
|
Additional
|
|
Subscription
|
|
based
|
|
during the
|
|
stock-
|
|
|||||
|
|
Common stock
|
|
Paid-In
|
|
on common
|
|
compen-
|
|
development
|
|
holders'
|
|
||||||||
|
|
Shares
|
|
Amount
|
|
Capital
|
|
stock
|
|
sation
|
|
stage
|
|
equity
|
|
||||||
Balance at December 31, 2009
|
|
33,500,406
|
|
|
3,350
|
|
|
108,391,823
|
|
|
-
|
|
|
-
|
|
|
(95,543,267)
|
|
|
12,851,906
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale and issuance of common stock with detachable warrants in March 2010 at approximately $2.50 per share, net of issuance costs
|
|
6,700,000
|
|
|
670
|
|
|
16,762,253
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
16,762,923
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale and issuance of common stock in controlled at-the-market equity offering in September 2010 at approximately $4.49 per share, net of issuance costs
|
|
634,500
|
|
|
63
|
|
|
2,851,313
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
2,851,376
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale and issuance of common stock in in October 2010 at approximately $4.60 per share, net of issuance costs
|
|
8,214,286
|
|
|
821
|
|
|
37,788,721
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
37,789,542
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued in 2010 at par, pursuant to net-share (cashless) exercises of common stock warrants
|
|
676,228
|
|
|
68
|
|
|
(68)
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued in 2010 at $4.20 per share pursuant to exercise of common stock warrants
|
|
65,555
|
|
|
7
|
|
|
275,324
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
275,331
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based compensation
|
|
-
|
|
|
-
|
|
|
1,986,755
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
1,986,755
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(37,330,069)
|
|
|
(37,330,069)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2010
|
|
49,790,975
|
|
$
|
4,979
|
|
$
|
168,056,121
|
|
$
|
-
|
|
$
|
-
|
|
$
|
(132,873,336)
|
|
$
|
35,187,764
|
|
F-8 | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deficit
|
|
|
|
|
||
|
|
|
|
|
|
|
|
|
|
Unpaid
|
|
Deferred
|
|
accumulated
|
|
|
|
||||
|
|
|
|
|
|
|
Additional
|
|
Subscription
|
|
stock-
|
|
during the
|
|
Total
|
|
|||||
|
|
Common stock
|
|
Paid-In
|
|
on common
|
|
based
|
|
development
|
|
stockholders'
|
|
||||||||
|
|
Shares
|
|
Amount
|
|
Capital
|
|
stock
|
|
compensation
|
|
stage
|
|
equity
|
|
||||||
Balance at December 31, 2010
|
|
49,790,975
|
|
|
4,979
|
|
|
168,056,121
|
|
|
-
|
|
|
-
|
|
|
(132,873,336)
|
|
|
35,187,764
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale and issuance of common stock in February 2011 at approximately $3.75 per share, net of issuance costs
|
|
10,062,500
|
|
|
1,006
|
|
|
37,725,532
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
37,726,538
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Recovery of short-swing profits, net of expenses
|
|
-
|
|
|
-
|
|
|
73,797
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
73,797
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued in 2011 at $4.20 per share pursuant to cash exercises of common stock warrants
|
|
1,993,444
|
|
|
199
|
|
|
8,372,265
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
8,372,464
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued in 2011 at $2.88 per share pursuant to cash exercises of common stock warrants
|
|
37,277
|
|
|
4
|
|
|
107,667
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
107,671
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued in 2011 at par, pursuant to net-share (cashless) exercises of common stock warrants
|
|
149,950
|
|
|
15
|
|
|
(15)
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based compensation
|
|
-
|
|
|
-
|
|
|
2,648,741
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
2,648,741
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(50,452,165)
|
|
|
(50,452,165)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2011
|
|
62,034,146
|
|
$
|
6,203
|
|
$
|
216,984,108
|
|
$
|
-
|
|
$
|
-
|
|
$
|
(183,325,501)
|
|
$
|
33,664,810
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based compensation
|
|
-
|
|
|
-
|
|
|
1,828,204
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
1,828,204
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale and issuance of common stock in January 2012 at approximately $4.44 per share, net of issuance costs
|
|
4,989,275
|
|
|
499
|
|
|
22,151,352
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
22,151,851
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued in 2012 at par, pursuant to net-share (cashless) exercises of common stock warrants
|
|
17,148
|
|
|
2
|
|
|
(2)
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock options exercised
|
|
35,210
|
|
|
4
|
|
|
7,190
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
7,194
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(31,735,909)
|
|
|
(31,735,909)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2012
|
|
67,075,779
|
|
$
|
6,708
|
|
$
|
240,970,852
|
|
$
|
-
|
|
$
|
-
|
|
$
|
(215,061,410)
|
|
$
|
25,916,150
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based compensation
|
|
-
|
|
|
-
|
|
|
1,847,076
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
1,847,076
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale and issuance of common stock in November 2013 at approximately $2.79 per share, net of issuance costs
|
|
7,666,667
|
|
|
767
|
|
|
21,358,612
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
21,359,379
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock issued under at-the-market equity offering program at an average sales price of approximately $3.02 per share
|
|
3,609,595
|
|
|
360
|
|
|
10,407,928
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
10,408,288
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock options exercised
|
|
81,875
|
|
|
8
|
|
|
141,004
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
141,012
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(16,416,233)
|
|
|
(16,416,233)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2013
|
|
78,433,916
|
|
$
|
7,843
|
|
$
|
274,725,472
|
|
$
|
-
|
|
$
|
-
|
|
$
|
(231,477,643)
|
|
$
|
43,255,672
|
|
F-9 | ||
|
|
|
|
|
|
|
|
|
|
|
Period from
|
|
|
|
|
|
|
|
|
|
|
|
|
|
April 3, 2002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(inception)
|
|
|
|
|
For the years ended December 31,
|
|
through
|
|
||||||||
|
|
2013
|
|
2012
|
|
2011
|
|
December 31, 2013
|
|
||||
Operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
$
|
(16,416,233)
|
|
$
|
(31,735,909)
|
|
$
|
(50,452,165)
|
|
$
|
(231,477,643)
|
|
Adjustments to reconcile net loss to net cash used in
operating activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-cash stock-based compensation
|
|
|
1,847,076
|
|
|
1,828,204
|
|
|
2,648,741
|
|
|
12,665,936
|
|
Depreciation and amortization
|
|
|
109,960
|
|
|
127,350
|
|
|
116,465
|
|
|
659,290
|
|
Stock issued for license fee
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
575,023
|
|
Non-cash interest expense
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
34,020
|
|
Loss (gain) on disposition of fixed assets
|
|
|
-
|
|
|
25,158
|
|
|
-
|
|
|
22,951
|
|
Fair value of warrants for finder's fee
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
433,750
|
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Prepaid contract research and manufacturing
expenses, other prepaid expenses and other assets |
|
|
(783,509)
|
|
|
615,740
|
|
|
(404,377)
|
|
|
(1,134,883)
|
|
Accounts payable, accrued contract research
and manufacturing expenses and other accrued expenses |
|
|
792,839
|
|
|
(9,848,177)
|
|
|
(200,603)
|
|
|
2,763,118
|
|
Accrued restructuring
|
|
|
(570,765)
|
|
|
841,184
|
|
|
-
|
|
|
270,419
|
|
Accrued compensation and related expenses
|
|
|
13,378
|
|
|
(1,219,502)
|
|
|
252,355
|
|
|
213,313
|
|
Net cash used in operating activities
|
|
|
(15,007,254)
|
|
|
(39,365,952)
|
|
|
(48,039,584)
|
|
|
(214,974,706)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Investing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Acquisitions of property and equipment
|
|
|
(2,994)
|
|
|
(25,260)
|
|
|
(227,468)
|
|
|
(742,725)
|
|
Proceeds from sale of assets
|
|
|
-
|
|
|
12,230
|
|
|
-
|
|
|
15,907
|
|
Purchases of short-term investments
|
|
|
-
|
|
|
-
|
|
|
(65,605,570)
|
|
|
(115,143,906)
|
|
Redemptions of short-term investments
|
|
|
-
|
|
|
4,500,000
|
|
|
61,105,570
|
|
|
115,143,906
|
|
Security deposits
|
|
|
-
|
|
|
38,267
|
|
|
(172)
|
|
|
-
|
|
Net cash (used in) provided by investing activities
|
|
|
(2,994)
|
|
|
4,525,237
|
|
|
(4,727,640)
|
|
|
(726,818)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from borrowings from affiliate
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
1,745,000
|
|
(Repayment of) borrowings from line of credit
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Proceeds from exercise of stock options
|
|
|
141,012
|
|
|
7,194
|
|
|
-
|
|
|
228,935
|
|
Proceeds from exercise of common stock warrants
|
|
|
-
|
|
|
-
|
|
|
8,480,135
|
|
|
9,054,546
|
|
Proceeds from sales of equity securities, net of
issuance costs |
|
|
31,767,667
|
|
|
22,151,851
|
|
|
37,726,538
|
|
|
250,317,683
|
|
Receipt of recovery of short-swing profits
|
|
|
-
|
|
|
-
|
|
|
73,797
|
|
|
73,797
|
|
Recapitalization of the Company
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(400,000)
|
|
Receipt of cash for stock subscription receivable
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
4,625
|
|
Net cash provided by financing activities
|
|
|
31,908,679
|
|
|
22,159,045
|
|
|
46,280,470
|
|
|
261,024,586
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net increase (decrease) in cash and cash equivalents
|
|
|
16,898,431
|
|
|
(12,681,670)
|
|
|
(6,486,754)
|
|
|
45,323,062
|
|
Cash and cash equivalents, beginning of period
|
|
|
28,424,631
|
|
|
41,106,301
|
|
|
47,593,055
|
|
|
-
|
|
Cash and cash equivalents, end of period
|
|
$
|
45,323,062
|
|
$
|
28,424,631
|
|
$
|
41,106,301
|
|
$
|
45,323,062
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosure of cash flow information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash paid for interest
|
|
$
|
-
|
|
$
|
-
|
|
$
|
-
|
|
$
|
224,328
|
|
F-10 | ||
F-11 | ||
F-12 | ||
F-13 | ||
F-14 | ||
F-15 | ||
|
|
For the years ended December 31,
|
|
||||
|
|
2013
|
|
2012
|
|
2011
|
|
Weighted-average risk-free interest rate
|
|
0.69
|
%
|
0.74
|
%
|
1.83
|
%
|
Weighted-average expected life of options
|
|
4.4 years
|
|
5 years
|
|
5 years
|
|
Expected dividend yield
|
|
0
|
%
|
0
|
%
|
0
|
%
|
Weighted-average expected volatility
|
|
105.48
|
%
|
89.73
|
%
|
87.82
|
%
|
|
|
For the year ended December 31,
|
|
|||||||
|
|
2013
|
|
2012
|
|
2011
|
|
|||
Stock-based compensation expense recorded during period
|
|
$
|
1,847,076
|
|
$
|
1,828,203
|
|
$
|
2,648,741
|
|
Total unrecognized compensation expense remaining
|
|
$
|
2,952,464
|
|
$
|
4,173,830
|
|
$
|
5,724,738
|
|
Remaining average recognition period (in years)
|
|
|
1.88
|
|
|
2.81
|
|
|
1.95
|
|
Year ending December 31, 2014
|
|
$
|
1,731,814
|
|
Year ending December 31, 2015
|
|
|
876,035
|
|
Year ending December 31, 2016
|
|
|
290,407
|
|
Year ending December 31, 2017
|
|
|
54,208
|
|
|
|
$
|
2,952,464
|
|
F-16 | ||
|
|
December 31,
|
|
||||
|
|
2013
|
|
2012
|
|
||
Furniture and fixtures
|
|
$
|
285,987
|
|
$
|
285,987
|
|
Software
|
|
|
57,563
|
|
|
57,563
|
|
Leasehold improvements
|
|
|
39,909
|
|
|
39,909
|
|
Computer and office equipment
|
|
|
248,572
|
|
|
245,578
|
|
|
|
|
632,031
|
|
|
629,037
|
|
Less - accumulated depreciation and amortization
|
|
|
(587,453)
|
|
|
(477,493)
|
|
|
|
$
|
44,578
|
|
$
|
151,544
|
|
F-17 | ||
F-18 | ||
F-19 | ||
F-20 | ||
F-21 | ||
F-22 | ||
F-23 | ||
F-24 | ||
F-25 | ||
|
|
For the years ended December 31,
|
|
|||||||
|
|
2013
|
|
2012
|
|
2011
|
|
|||
Options granted during period
|
|
|
985,500
|
|
|
2,136,000
|
|
|
1,190,500
|
|
Weighted average exercise price
|
|
$
|
1.10
|
|
$
|
3.26
|
|
$
|
6.91
|
|
Weighted average grant date fair value
|
|
$
|
0.77
|
|
$
|
2.21
|
|
$
|
4.60
|
|
Total options outstanding under the Plan
|
|
|
7,156,709
|
|
Weighted average remaining contractual life (in years)
|
|
|
5.76
|
|
Weighted average exercise price per share
|
|
$
|
3.52
|
|
Total options oustanding and vested
|
|
|
4,728,834
|
|
Total in-the-money options oustanding
|
|
|
4,452,709
|
|
Aggregate intrinsic value of in-the-money options outstanding
|
|
$
|
10,638,099
|
|
Total in-the-money options vested and outstanding
|
|
|
2,784,459
|
|
Aggregate intrinsic value of in-the-money options outstanding and vested
|
|
$
|
5,369,137
|
|
F-26 | ||
|
|
Available
|
|
Activity/
|
|
Wtd Avg
|
|
|
|
|
For Grant
|
|
Balance
|
|
Exercise Price
|
|
|
Establish 2002 Option Plan
|
|
1,085,648
|
|
-
|
|
$
|
0.00
|
|
Balance at December 31, 2002
|
|
1,085,648
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2003 Activity
|
|
-
|
|
-
|
|
$
|
0.00
|
|
Balance at December 31, 2003
|
|
1,085,648
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cancel 2002 Stock Option Plan
|
|
(1,085,648)
|
|
-
|
|
$
|
0.00
|
|
Establish 2004 Stock Option Plan
|
|
1,085,648
|
|
-
|
|
$
|
0.00
|
|
2004 Option grants
|
|
(363,835)
|
|
363,835
|
|
$
|
0.56
|
|
Balance at December 31, 2004
|
|
721,813
|
|
363,835
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2005 Plan Amendment
|
|
410,784
|
|
-
|
|
|
|
|
2005 Option grants
|
|
(761,451)
|
|
761,451
|
|
$
|
2.66
|
|
2005 Cancellations
|
|
58,683
|
|
(58,683)
|
|
$
|
2.62
|
|
2005 Exercises
|
|
-
|
|
(14,663)
|
|
$
|
0.07
|
|
Balance at December 31, 2005
|
|
429,829
|
|
1,051,940
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006 Plan Amendments
|
|
1,148,568
|
|
-
|
|
|
|
|
2006 Option grants
|
|
(668,085)
|
|
668,085
|
|
$
|
3.61
|
|
2006 Cancellations
|
|
8,802
|
|
(8,802)
|
|
$
|
2.62
|
|
2006 Exercises
|
|
-
|
|
(78,683)
|
|
$
|
0.06
|
|
Balance at December 31, 2006
|
|
919,114
|
|
1,632,540
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007 Plan Amendments
|
|
1,500,000
|
|
-
|
|
|
|
|
2007 Option grants
|
|
(665,500)
|
|
665,500
|
|
$
|
5.72
|
|
2007 Exercises
|
|
-
|
|
(17,868)
|
|
$
|
0.88
|
|
Balance at December 31, 2007
|
|
1,753,614
|
|
2,280,172
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008 Option grants
|
|
(837,500)
|
|
837,500
|
|
$
|
6.11
|
|
2008 Cancellations
|
|
148,802
|
|
(148,802)
|
|
$
|
4.95
|
|
2008 Exercises
|
|
-
|
|
(94,230)
|
|
$
|
0.63
|
|
Balance at December 31, 2008
|
|
1,064,916
|
|
2,874,640
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009 Plan Amendments
|
|
855,000
|
|
-
|
|
|
|
|
2009 Option grants
|
|
(938,290)
|
|
938,290
|
|
$
|
1.99
|
|
Balance at December 31, 2009
|
|
981,626
|
|
3,812,930
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2010 Plan Amendments
|
|
1,200,000
|
|
-
|
|
|
|
|
2010 Option grants
|
|
(861,000)
|
|
861,000
|
|
$
|
3.10
|
|
2010 Cancellations
|
|
12,000
|
|
(12,000)
|
|
$
|
2.93
|
|
Balance at December 31, 2010
|
|
1,332,626
|
|
4,661,930
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2011 Plan Amendments
|
|
1,200,000
|
|
-
|
|
|
|
|
2011 Option grants
|
|
(1,190,500)
|
|
1,190,500
|
|
$
|
6.91
|
|
2011 Cancellations
|
|
40,000
|
|
(40,000)
|
|
$
|
5.07
|
|
Balance at December 31, 2011
|
|
1,382,126
|
|
5,812,430
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2012 Plan Amendments
|
|
3,000,000
|
|
-
|
|
|
|
|
2012 Option grants
|
|
(2,136,000)
|
|
2,136,000
|
|
$
|
3.26
|
|
2012 Exercises
|
|
-
|
|
(35,210)
|
|
$
|
0.20
|
|
2012 Cancellations
|
|
-
|
|
(837,150)
|
|
$
|
4.74
|
|
Balance at December 31, 2012
|
|
2,246,126
|
|
7,076,070
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2013 Option grants
|
|
(985,500)
|
|
985,500
|
|
$
|
1.10
|
|
2013 Exercises
|
|
-
|
|
(81,875)
|
|
$
|
1.72
|
|
2013 Cancellations
|
|
-
|
|
(822,986)
|
|
$
|
4.71
|
|
Balance at December 31, 2013
|
|
1,260,626
|
|
7,156,709
|
|
|
|
|
F-27 | ||
|
|
December 31,
|
|
||
|
|
2013
|
|
2012
|
|
Common stock warrants outstanding
|
|
-
|
|
2,023,530
|
|
Common stock options outstanding
|
|
7,156,709
|
|
7,076,070
|
|
Common stock options available for future grants
|
|
1,260,626
|
|
2,246,126
|
|
|
|
8,417,335
|
|
11,345,726
|
|
|
|
December 31,
|
|
||||
|
|
2013
|
|
2012(1)
|
|
||
Deferred tax assets:
|
|
|
|
|
|
|
|
Net operating loss carryforward - Federal
|
|
$
|
71,092,552
|
|
$
|
65,943,411
|
|
Net operating loss carryforward - State
|
|
|
9,618,404
|
|
|
8,921,756
|
|
Licensing costs, net of amortization
|
|
|
797,329
|
|
|
878,519
|
|
Compensation costs and deferred stock compensation
|
|
|
1,633,267
|
|
|
1,683,583
|
|
Inventory purchases prior to commercialization
|
|
|
2,671,034
|
|
|
2,671,034
|
|
Other temporary differences
|
|
|
248,677
|
|
|
202,462
|
|
|
|
|
86,061,263
|
|
|
80,300,765
|
|
Less valuation allowance
|
|
|
(86,061,263)
|
|
|
(80,300,765)
|
|
|
|
$
|
-
|
|
$
|
-
|
|
F-28 | ||
|
|
December 31,
|
|
||
|
|
2013
|
|
2012
|
|
Rate reconciliation:
|
|
|
|
|
|
Statutory federal rate
|
|
-34.00
|
%
|
-34.00
|
%
|
State income tax rate (net of federal benefit)
|
|
-4.60
|
%
|
-4.60
|
%
|
Certain non-deductible expenses
|
|
3.51
|
%
|
1.61
|
%
|
Effect of increase in valuation allowance
|
|
35.09
|
%
|
36.99
|
%
|
Effective tax rate
|
|
0.00
|
%
|
0.00
|
%
|
F-29 | ||
|
|
Restructuring
|
|
|
|
|
|
|
|
Adjustments,
|
|
Restructuring
|
|
|||
|
|
Liabilities as of
|
|
|
|
|
|
|
|
Non-cash items
|
|
Liabilities as of
|
|
|||
|
|
December 31,
|
|
Charges to the
|
|
Cash
|
|
and Changes
|
|
December 31,
|
|
|||||
|
|
2012
|
|
Reserve
|
|
Payments
|
|
to Estimates
|
|
2013
|
|
|||||
Employee related costs:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Severance and salary continuation
|
|
$
|
814,028
|
|
$
|
-
|
|
$
|
(543,396)
|
|
$
|
(11,493)
|
|
$
|
259,139
|
|
Related payroll taxes
|
|
|
19,926
|
|
|
-
|
|
|
(18,876)
|
|
|
10,230
|
|
|
11,280
|
|
Benefits
|
|
|
7,230
|
|
|
-
|
|
|
(8,493)
|
|
|
1,263
|
|
|
-
|
|
Other costs
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Totals
|
|
$
|
841,184
|
|
$
|
-
|
|
$
|
(570,765)
|
|
$
|
-
|
|
$
|
270,419
|
|
F-30 | ||
F-31 | ||
AMENDED AND RESTATED BYLAWS
OF
CHELSEA THERAPEUTICS INTERNATIONAL, LTD.
I. CORPORATE OFFICES
1.1 | Registered Office |
The registered office of the Corporation shall be in the City of Dover, County of Kent, State of Delaware. The name of the registered agent of the Corporation at such location is Incorporating Services, Ltd.
1.2 | Other Offices |
The Board of Directors may at any time establish other offices at any place or places where the Corporation is qualified to do business.
II. MEETINGS OF STOCKHOLDERS
2.1 | Place of Meetings |
Meetings of stockholders shall be held at any place, within or outside the State of Delaware, as may be designated from time to time by the Board of Directors, or, if not so designated, at the registered office of the Corporation.
2.2 | Annual Meeting |
The annual meeting of the stockholders shall be held each year on a date and at a time designated by the Board of Directors. At the meeting, directors shall be elected and any other proper business may be transacted. Any previously scheduled annual meeting of the stockholders may be postponed by resolution of the Board of Directors upon public notice given prior to the date previously scheduled for such annual meeting of the stockholders.
2.3 | Special Meeting |
Special meetings of the stockholders may be called, at any time for any purpose or purposes, by the Board of Directors, by the holders of a majority of the outstanding voting stock, by such person or persons as may be authorized by the Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”) or these Bylaws or by such person or persons duly designated by the Board of Directors whose powers and authority, as expressly provided in a resolution of the Board of Directors, include the power to call such meetings, but such special meetings may not be called by any other person or persons.
2.4 | Notice of Stockholders’ Meetings |
All notices of meetings with stockholders shall be in writing and shall be sent or otherwise given in accordance with Section 2.5 of these Bylaws not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. The notice shall specify the place, if any, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called.
2.5 | Manner of Giving Notice; Affidavit of Notice |
Written notice of any meeting of stockholders, if mailed, is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his, her or its address as it appears on the records of the Corporation. An affidavit of the secretary or an assistant secretary or of the transfer agent or other agent of the Corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
2.6 | Quorum; Manner of Acting |
Subject to the provisions of these Bylaws, the Certificate of Incorporation and provisions of applicable law as to the vote that is required for a specified action, the holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. The vote of the holders of a majority of the shares of the Corporation’s stock entitled to vote on the proposal, present in person or represented by proxy, at a meeting at which a quorum is present, shall be binding on all stockholders of the Corporation, unless the vote of a greater number or voting by classes is required by law, these Bylaws or the Certificate of Incorporation. If, however, such quorum is not present or represented at any meeting of the stockholders, then the stockholders entitled to vote thereat, present in person or represented by proxy, regardless of whether they constitute a quorum, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present or represented. At such adjourned meeting at which a quorum is present or represented, any business may be transacted that might have been transacted at the meeting as originally noticed.
2.7 | Adjourned Meeting; Notice |
When a meeting is adjourned to another time or place, unless these Bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place thereof, and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business that might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
2 |
2.8 | Waiver of Notice |
Whenever notice is required to be given under any provision of the General Corporation Law of Delaware or of the Certificate of Incorporation or these Bylaws, a written waiver thereof, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver or any waiver by electronic transmission of notice unless so required by the Certificate of Incorporation or these Bylaws.
2.9 | Stockholder Action by Written Consent Without a Meeting |
Unless otherwise provided in the Certificate of Incorporation, any action required by the General Corporation Law of Delaware to be taken at any annual or special meeting of stockholders of the Corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice, as required by the General Corporation Law of Delaware, of the taking of the corporate action without a meeting by written consent shall be given to those stockholders who have not consented in writing. If the action that is consented to is such as would have required the filing of a certificate under any section of the General Corporation Law of Delaware if such action had been voted on by stockholders at a meeting thereof, then the certificate filed under such section shall state, in lieu of any statement required by such section concerning any vote of stockholders, that written notice and written consent have been given as provided in Section 228 of the General Corporation Law of Delaware.
2.10 | Record Date for Stockholder Notice; Voting; Giving Consents |
In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporation action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date that shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. In any such case, those stockholders, and only those stockholders, who are stockholders of record on the date fixed by the Board of Directors, or, if no such date has been fixed by the Board of Directors, on the date fixed in accordance with this section, shall, notwithstanding any subsequent transfer of shares on the books of the Corporation, be entitled to notice of and to vote at such meeting of stockholders, or any adjournment thereof, or be entitled to receive payment of such dividend or other distribution or allotment of rights, or entitled to exercise rights in respect of any such change, conversion or exchange of shares or to participate in any such other lawful action.
3 |
If the Board of Directors does not so fix a record date:
(a) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; and
(b) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the board of directors is necessary, shall be the day on which the first written consent is delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the books in which proceedings of meetings of stockholders are recorded; and
(c) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
2.11 | Proxies |
Each stockholder entitled to vote at a meeting of stockholders or to express consent to Corporation action in writing without a meeting may authorize another person or persons to act for such stockholder by a written proxy, signed by the stockholder and filed with the Secretary of the Corporation, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A proxy shall be deemed signed if the stockholder’s name is placed on the proxy (whether by manual signature, typewriting, telegraphic transmission or otherwise) by the stockholder or the stockholder’s attorney-in-fact. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212(e) of the General Corporation Law of Delaware.
2.12 | List of Stockholders Entitled to Vote |
A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock and showing the address of each such stockholder and the number of shares registered in his name, shall be open to the examination of any such stockholder for a period of at least ten (10) days prior to the meeting in the manner provided by law. The stock list shall also be open to the examination of any stockholder during the whole time of the meeting as provided by law. The list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.
4 |
2.13 | Stockholder Proposals |
Any stockholder wishing to bring any business before a meeting of stockholders, including, but not limited to, the nomination of persons for election as directors, must provide notice to the Corporation not more than seventy-five (75) and not less than forty-five (45) days before the anniversary of the first mailing of proxy solicitation materials for the prior years’ meeting; provided, however, that if the date of the annual meeting is advanced more than 30 days prior to or delayed by more than 30 days after the date of the prior years’ meeting, notice by the stockholder must be delivered not later than the close of business on the later of (i) the 90th day prior to such annual meeting or (ii) the 10th day following the day on which public announcement of the date of such meeting is first made. The notice shall be in writing by registered mail, return receipt requested, to the Secretary at the principal executive offices of the Corporation, setting forth the business to be presented by the stockholders at the stockholders’ meeting. Any such notice shall set forth the following as to each matter the stockholder proposes to bring before the meeting: (a) as to each person whom the stockholder proposes to nominate for election or re-election as a director, all information relating to such person that is required to be disclosed in solicitations of proxies for elections of directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected; (b) a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting and, if such business includes a proposal to amend the Bylaws of the Corporation, the language of the proposed amendment; (c) the name and address, as they appear on the Corporation’s books, of the stockholder proposing such business; (d) the class and number of shares of the Corporation that are beneficially owned by such stockholder; (e) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business; and (f) any material interest of the stockholder in such business. In the absence of such notice to the Corporation meeting the above requirements, a stockholder shall not be entitled to present any business at any meeting of stockholders.
Except as set forth in Section 3.4 of Article III and subject to the Corporation’s Certificate of Incorporation, only such persons who are nominated in accordance with the procedures set forth in this Section 2.13 shall be eligible to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.13. The presiding officer of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 2.13 and, if any proposed nomination or business is not in compliance with this Section 2.13, to declare that such defective nomination or proposal be disregarded.
Notwithstanding the foregoing provisions of this Section 2.13, a stockholder shall also comply with all applicable requirements of state law and of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.13. Nothing in this Section 2.13 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
5 |
III. DIRECTORS
3.1 | Powers |
Subject to the provisions of the General Corporation Law of Delaware and any limitations in the Certificate of Incorporation or these Bylaws relating to action required to be approved by the stockholders or by the outstanding shares, the business and affairs of the Corporation shall be managed and all corporate powers shall be exercised by or under the direction of the Board of Directors.
3.2 | Number of Directors |
The number of directors constituting the Board of Directors shall be not less than five (5) nor more than nine (9), and the exact number of directors may be fixed or changed, within this minimum and maximum, by resolution adopted by the affirmative vote of a majority of the directors then in office. The number of directors constituting the initial Board of Directors shall be fixed at seven (7).
No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office expires.
3.3 | Election and Qualification of Directors |
Except as otherwise provided in these Bylaws, the Directors shall be elected at the annual meeting of the stockholders; and those persons who received the highest number of votes shall be deemed to have been elected.
Directors need not be stockholders unless so required by the Certificate of Incorporation or these Bylaws, wherein other qualifications for directors may be prescribed. Each director shall be a natural person.
Elections of directors need not be by written ballot.
3.4 | Resignation and Vacancies |
Any director may resign at any time upon notice given in writing or electronic transmission to the Chairman of the Board of Directors, the Chief Executive Officer or the President of the Corporation. When one or more directors so resigns and the resignation is effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in this section in the filling of other vacancies.
Unless otherwise provided in the Certificate of Incorporation or these Bylaws:
(a) vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all of the stockholders having the right to vote as a single class may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director.
6 |
(b) whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of the directors elected by such class or classes or series thereof then in office, or by a sole remaining director so elected.
(c) if any vacancy was caused by an action of the stockholders, the vacancy shall be filled only by the affirmative vote of holders of at least a majority of the votes entitled to be cast by shares actually present in person or represented by proxy at the meeting and entitled to vote on the matter; and
(d) any director so chosen shall hold office until the next annual meeting of the stockholders and until a successor has been elected and qualified.
3.5 | Place of Meetings; Meetings by Telephone |
The Board of Directors of the Corporation may hold meetings, both regular and special, either within or outside the State of Delaware.
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
3.6 | Regular Meetings |
Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the board.
3.7 | Special Meetings; Notice |
Special meetings of the Board of Directors for any purpose or purposes may be called at any time by the Chairman of the Board, the President or a majority of the directors then in office.
Notice of the time and place of special meetings shall be delivered either, personally or by mail, telex, facsimile, telephone or electronic transmission to each director, addressed to each director at such director’s address and/or phone number and/or electronic transmission address as it is shown on the records of the Corporation. If the notice is mailed, it shall be deposited in the United States mail at least five (5) days before the time of the holding of the meeting. If the notice is delivered personally or by telex, facsimile, telephone or electronic transmission, it shall be delivered by telephone or transmitted at least forty-eight (48) hours before the time of the holding of the meeting. The notice need not specify the purpose of the meeting. Notice may be delivered by any person entitled to call a special meeting or by an agent of such person.
7 |
3.8 | Quorum |
At all meetings of the Board of Directors, a majority of the authorized number of directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as otherwise specifically provided by statute or by the Certificate of Incorporation.
3.9 | Waiver Of Notice |
Whenever notice is required to be given under any provision of the General Corporation Law of Delaware or of the Certificate of Incorporation or these Bylaws, a written waiver thereof, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the directors, or meeting of a committee of directors, need be specified in any written waiver of notice unless so required by the Certificate of Incorporation or these Bylaws.
3.10 | Adjourned Meeting; Notice |
If a quorum is not present at any meeting of the Board of Directors, then the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.
3.11 | Board Action by Written Consent Without a Meeting |
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board or committee.
3.12 | Removal of Directors |
Any director or the entire Board of Directors may be removed at any time with or without cause, but only by the affirmative vote of holders of at least a majority of the voting rights of the shares then entitled to vote at an election of directors, unless otherwise provided under Delaware Law or the Certificate of Incorporation.
No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of such director’s term of office.
8 |
3.13 | Records |
The Board of Directors shall cause to be kept a record containing the minutes of the proceedings of the meetings of the Board and of the stockholders, appropriate stock books and registers and such books of records and accounts as may be necessary for the proper conduct of the business of the Corporation.
IV. COMMITTEES
4.1 | Committees of Directors |
The Board of Directors may, by resolution passed by a majority of the whole board, designate one or more committees, with each committee to consist of one or more of the directors of the Corporation. In the event that any director serving on any committee of the Board of Directors ceases to be a director of the Corporation, such former director shall immediately cease to be a member of such committee. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member, provided that such appointed member would constitute a qualified member of such committee. Any such committee, to the extent provided in the resolution of the Board of Directors or in the Bylaws of the Corporation, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it; but no such committee shall have the power or authority to (i) approve or adopt, or recommend to the stockholders, any action or matter expressly required by these Bylaws or the Certificate of Incorporation to be submitted to stockholders for approval, or (ii) adopt, amend or repeal any Bylaws of the Corporation.
4.2 | Committee Minutes |
Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.
4.3 | Meetings and Action of Committees |
Meetings and actions of committees shall be governed by, and be held and taken in accordance with, the provisions of Article III of these bylaws, Section 3.5 (place of meetings and meetings by telephone), Section 3.6 (regular meetings), Section 3.7 (special meetings and notice), Section 3.8 (quorum), Section 3.9 (waiver of notice), Section 3.10 (adjourned meeting and notice), and Section 3.11 (board action by written consent without a meeting), with such changes in the context of those bylaws as are necessary to substitute the committee and its members for the Board of Directors and its members; provided, however, that the time of regular meetings of committees may also be called by resolution of the Board of Directors and that notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The Board of Directors may adopt rules for the government of any committee not inconsistent with the provisions of these Bylaws.
9 |
V. OFFICERS
5.1 | Officers |
The officers of the Corporation shall be a Chairman of the Board of Directors, a Chief Executive Officer, a President, one or more Vice Presidents, a Secretary, and a Treasurer. The Corporation may also have, at the discretion of the Board of Directors, the Chairman of the Board or the Chief Executive Officer, any such other officers as may be appointed in accordance with the provisions of Section 5.3 of these Bylaws. Any number of offices may be held by the same person.
5.2 | Election and Term of Office of Officers |
The officers of the Corporation, except such officers as may be appointed in accordance with the provisions of Sections 5.3 of these Bylaws, shall be chosen by the Board of Directors annually at the regular meeting of the Board of Directors held after the annual meeting of stockholders, subject to the rights, if any, of an officer under any contract of employment. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as convenient. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or be removed, subject to the provisions of this Article V. The Chairman of the Board may or may not be an officer of the Corporation, as determined by the Board of Directors.
5.3 | Subordinate Officers |
The Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President may appoint such other officers and agents as the business of the Corporation may require, each of whom shall hold office for such period, have such authority, and perform such duties as are provided in these Bylaws or as the Board of Directors may from time to time determine.
5.4 | Removal and Resignation of Officers |
Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by an affirmative vote of the majority of the Board of Directors at any regular or special meeting of the board or by any officer upon whom such power of removal may be conferred by the Board of Directors or, except in the case of an officer or agent elected by the Board, by the Chairman of the Board, the Chief Executive Officer or the President.
Any officer may resign at any time by giving written notice or electronic transmission to the Chairman of the Board, the Chief Executive Officer or the President. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice; and, unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party.
10 |
5.5 | Vacancies in Offices |
Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors or any duly designated officer.
5.6 | Chairman of the Board |
The Chairman of the Board shall, if present, preside at meetings of the Board of Directors and stockholders and exercise and perform such other powers and duties as may from time to time be assigned to him by the Board of Directors or as may be prescribed by these Bylaws. The Chairman of the Board shall make reports to the Board of Directors and the stockholders. If there is no Chief Executive Officer, then the Chairman of the Board shall also be the Chief Executive Officer of the Corporation and shall have the powers and duties prescribed in Section 5.7 of these Bylaws. The Chairman of the Board of Directors shall be chosen by the Board of Directors.
5.7 | Chief Executive Officer |
Subject to such powers, if any, as may be given by the Board of Directors to the Chairman of the Board, the Chief Executive Officer of the Corporation shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and the officers of the Corporation. The Chief Executive Officer shall, in the absence or nonexistence of a chairman of the board, preside at all meetings of the Board of Directors. The Chief Executive Officer shall have the general powers and duties of management usually vested in the office of Chief Executive Officer of a Corporation and shall have such other powers and duties as may be prescribed by the Board of Directors or these Bylaws. If there is no President, then the Chief Executive Officer shall also be the President of the Corporation and shall have the powers and duties prescribed in Section 5.8.
5.8 | President |
Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board or the Chief Executive Officer, if there be such officers, the president shall, subject to the control of the Board of Directors, have general supervision, direction, and control of the business and the officers of the Corporation. In the absence or nonexistence of the Chief Executive Officer, he shall preside at all meetings of the stockholders and, in the absence or nonexistence of a Chairman of the Board and Chief Executive Officer, at all meetings of the Board of Directors. He shall have the general powers and duties of management usually vested in the office of president of a Corporation and shall have such other powers and duties as may be prescribed by the Board of Directors or these Bylaws.
5.9 | Vice Presidents |
In the absence or disability of the Chief Executive Officer and president, the vice presidents, if any, in order of their rank as fixed by the Board of Directors or, if not ranked, a vice president designated by the Board of Directors, shall perform all the duties of the president and when so acting shall have all the powers of, and be subject to all the restrictions upon, the president. The vice presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them by the Board of Directors, these Bylaws, the president or the Chairman of the Board.
11 |
5.10 | Secretary |
The Secretary or an agent of the Corporation shall keep or cause to be kept, at the principal executive office of the Corporation or such other place as the Board of Directors may direct, a book of minutes of all meetings and actions of directors, committees of directors, and stockholders. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at directors’ meetings or committee meetings, the number of shares present or represented at stockholders’ meetings, and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal executive office of the Corporation or at the office of the Corporation’s transfer agent or registrar, as determined by resolution of the Board of Directors, a share register, or a duplicate share register, showing the names of all stockholders and their addresses, the number and classes of shares held by each, the number and date of certificates evidencing such shares, and the number and date of cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors required to be given by law or by these Bylaws. The Secretary shall keep the seal of the Corporation, if one be adopted, in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or by these Bylaws.
5.11 | Treasurer |
The Treasurer shall exercise general supervision over the receipt, custody and disbursement of corporate funds. The Treasurer shall cause the funds of the Corporation to be deposited in such banks as may be authorized by the Board of Directors, or in such banks as may be designated as depositaries in the manner provided by resolution of the Board of Directors. The Treasurer shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or by these Bylaws.
5.12 | Assistant Secretary |
The assistant secretary, or, if there is more than one, the assistant secretaries in the order determined by the stockholders or Board of Directors (or if there be no such determination, then in the order of their election) shall, in the absence of the Secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.
5.13 | Representation of Shares of Other Corporations |
The Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Treasurer, the Secretary or Assistant Secretary of this Corporation, or any other person authorized by the Board of Directors or the Chief Executive Officer, president or a vice president, is authorized to vote, represent, and exercise on behalf of this Corporation all rights incident to any and all shares of any other Corporation or Corporations standing in the name of this Corporation. The authority granted herein may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority.
12 |
5.14 | Authority and Duties of Officers |
In addition to the foregoing authority and duties, all officers of the Corporation shall respectively have such authority and perform such duties in the management of the business of the Corporation as may be designated from time to time by the Board of Directors.
VI. INDEMNIFICATION AND INSURANCE
6.1 | Indemnification |
(a) Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit, or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she or a person of whom he or she is the legal representative is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another Corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by the Corporation, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his heirs, executors and administrators; provided, however, that except as provided in paragraph (c) of this Section 6.1, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors. The right to indemnification conferred in this Section 6.1 shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition, such advances to be paid by the Corporation within 20 days after the receipt by the Corporation of a statement or statements from the claimant requesting such advance or advances from time to time; provided, however, that if the General Corporation Law of the State of Delaware requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section 6.1 or otherwise.
13 |
(b) To obtain indemnification under this Section 6.1, a claimant shall submit to the Corporation a written request, including therein or therewith such documentation and information as is reasonably available to the claimant and is reasonably necessary to determine whether and to what extent the claimant is entitled to indemnification. Upon written request by a claimant for indemnification pursuant to the first sentence of this paragraph (b), a determination, if required by applicable law, with respect to the claimant’s entitlement thereto shall be made as follows: (1) if requested by the claimant, by Independent Counsel (as hereinafter defined), or (2) if no request is made by the claimant for a determination by Independent Counsel, (i) by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors (as hereinafter defined), or (ii) if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the claimant, or (iii) if a quorum of Disinterested Directors so directs, by the stockholders of the Corporation. In the event the determination of entitlement to indemnification is to be made by Independent Counsel at the request of the claimant, the Independent Counsel shall be selected by the Board of Directors unless there shall have occurred within two years prior to the date of the commencement of the action, suit or proceeding for which indemnification is claimed a Change of Control (as hereinafter defined), in which case the Independent Counsel shall be selected by the claimant unless the claimant shall request that such selection be made by the Board of Directors. If it is so determined that the claimant is entitled to indemnification, payment to the claimant shall be made within 20 days after such determination.
(c) If a claim under paragraph (a) of this Section 6.1 is not paid in full by the Corporation within thirty days after a written claim pursuant to paragraph (b) of this Section 6.1 has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standard of conduct which makes it permissible under the General Corporation Law of the State of Delaware for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, Independent Counsel or stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the Corporation (including its Board of Directors, Independent Counsel or stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
14 |
(d) If a determination shall have been made pursuant to paragraph (b) of this Section 6.1 that the claimant is entitled to indemnification, the Corporation shall be bound by such determination in any judicial proceeding commenced pursuant to paragraph (c) of this Section 6.1.
(e) he Corporation shall be precluded from asserting in any judicial proceeding commenced pursuant to paragraph (c) of this Section 6.1 that the procedures and presumptions of this Section 6.1 are not valid, binding and enforceable and shall stipulate in such proceeding that the Corporation is bound by all the provisions of this Section 6.1.
(f) The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section 6.1 shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote of stockholders or Disinterested Directors or otherwise. No repeal or modification of this Section 6.1 shall in any way diminish or adversely affect the rights of any director, officer, employee or agent of the Corporation hereunder in respect of any occurrence or matter arising prior to any such repeal or modification.
(g) The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification, and rights to be paid by the Corporation the expenses incurred in defending any proceeding in advance of its final disposition, to any employee or agent of the Corporation to the fullest extent of the provisions of this Section 6.1 with respect to the indemnification and advancement of expenses.
(h) If any provision or provisions of this Section 6.1 shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (1) the validity, legality and enforceability of the remaining provisions of this Section 6.1 (including, without limitation, each portion of any paragraph of this Section 6.1 containing any such provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (2) to the fullest extent possible, the provisions of this Section 6.1 (including, without limitation, each such portion of any paragraph of this Section 6.1 containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
(i) For purposes of this Section 6.1:
(1) “Disinterested Director” means a director of the Corporation who is not and was not a party to the matter in respect of which indemnification is sought by the claimant.
(2) “Independent Counsel” means a law firm, a member of a law firm, or an independent practitioner, that is experienced in matters of Corporation law and shall include any person who, under the applicable standards of professional conduct then prevailing, would not have a conflict of interest in representing either the Corporation or the claimant in an action to determine the claimant’s rights under this Section 6.1.
15 |
(3) A “Change in Control” shall be deemed to occur (a) upon the consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Corporation with or to another legal entity as a result of which (i) the stockholders of the Corporation immediately prior to such transaction will not, directly or indirectly, beneficially own, immediately after such transaction, at least fifty percent (50%) of the combined voting power of the surviving entity’s then-outstanding securities, or (ii) members of the Board of Directors of the Corporation immediately prior to such transaction constitute less than a majority of the members of the Board of Directors of the surviving Corporation immediately after such transaction; (b) upon the acquisition by any “person” (within the meaning of Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), of beneficial ownership (within the meaning of Rule 13d-3 promulgated under such Act) of more than 50% of the combined voting power of the Corporation’s then-outstanding securities; or (c) if the Corporation is a party to a proxy contest, as a consequence of which, members of the Board of Directors of the Corporation immediately prior to such event constitute less than a majority of the members of the Board of Directors of the surviving Corporation immediately thereafter.
(j) Any notice, request or other communication required or permitted to be given to the Corporation under this Section 6.1 shall be in writing and either delivered in person or sent by telecopy, telex, telegram, overnight mail or courier service, or certified or registered mail, postage prepaid, return receipt requested, to the Secretary of the Corporation and shall be effective only upon receipt by the Secretary.
6.2 | Insurance |
The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another Corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of the State of Delaware. To the extent that the Corporation maintains any policy or policies providing such insurance, each such director or officer, and each such agent or employee to which rights to indemnification have been granted as provided in paragraph (g) of Section 6.1, shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage thereunder for any such director, officer, employee or agent.
VII. RECORDS AND REPORTS
7.1 | Maintenance and Inspection of Records |
The Corporation shall, either at its principal executive office or at such place or places as designated by the board of Directors, keep a record of its stockholders listing their names and addresses and the number and class of shares held by each stockholder, a copy of these bylaws as amended to date, accounting books, and other records.
16 |
Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the Corporation’s stock ledger, a list of its stockholders, and its other books and records and to make copies or extracts therefrom. A proper purpose shall mean a purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent is the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing that authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in Delaware or at its principal place of business.
Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to any provision of the Certificate of Incorporation, these Bylaws or the General Corporation Law of Delaware. When records are kept in such manner, a clearly legible paper from or by means of the information storage device or method shall be admissible in evidence, and accepted for all other purposes, to the same extent as an original paper record of the same information would have been, provided the paper form accurately portrays the record.
7.2 | Inspection by Directors |
Any director shall have the right to examine the Corporation’s stock ledger, a list of its stockholders, and its other books and records for a purpose reasonably related to his position as a director. The Court of Chancery is hereby vested with the exclusive jurisdiction to determine whether a director is entitled to the inspection sought. The Court may summarily order the Corporation to permit the director to inspect any and all books and records, the stock ledger, and the stock list and to make copies or extracts therefrom. The Court may, in its discretion, prescribe any limitations or conditions with reference to the inspection, or award such other and further relief as the Court may deem just and proper.
VIII. GENERAL MATTERS
8.1 | Checks |
From time to time, the Board of Directors shall determine by resolution which person or persons may sign or endorse all checks, drafts, other orders for payment of money, notes or other evidences of indebtedness that are issued in the name of or payable to the Corporation, and only the persons so authorized shall sign or endorse those instruments.
8.2 | Execution of Corporate Contracts and Instruments |
The Board of Directors, except as otherwise provided in these Bylaws, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the Corporation; such authority may be general or confined to specific instances. Unless so authorized or ratified by the Board of Directors or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.
17 |
8.3 | Stock Certificates; Partly Paid Shares |
The shares of the Corporation shall be represented by certificates, provided that the Board of Directors of the Corporation may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Notwithstanding the adoption of such a resolution by the Board of Directors, every holder of stock represented by certificates and upon request every holder of uncertificated shares shall be entitled to have a certificate signed by, or in the name of the Corporation by the chairman or vice-chairman of the Board of Directors, or the president or vice president, and by the treasurer or an assistant treasurer, or the Secretary or an assistant secretary of such Corporation representing the number of shares registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.
The Corporation may issue the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor. Upon the face or back of each stock certificate issued to represent any such partly paid shares, and upon the books and records of the Corporation in the case of uncertificated partly paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated. Upon the declaration of any dividend on fully paid shares, the Corporation shall declare a dividend upon partly paid shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.
8.4 | Special Designation on Certificates |
If the Corporation is authorized to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate that the Corporation shall issue to represent such class or series of stock; provided, however, that, except as otherwise provided in Section 202 of the General Corporation Law of Delaware, in lieu of the foregoing requirements there may be set forth on the face or back of the certificate that the Corporation shall issue to represent such class or series of stock a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, the designations, the preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
18 |
8.5 | Lost, Stolen or Destroyed Certificates |
Except as provided in this Section 8.5, no new certificates for shares shall be issued to replace a previously issued certificate unless the latter is surrendered to the Corporation and cancelled at the same time. The Corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.
8.6 | Construction; Definitions |
Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the General Corporation Law of Delaware shall govern the construction of these Bylaws. Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular, and the term “person” includes both a Corporation and a natural person.
8.7 | Dividends |
The directors of the Corporation, subject to any rights or restrictions contained in the Certificate of Incorporation, may declare and pay dividends upon the shares of its capital stock pursuant to the General Corporation Law of Delaware. Dividends may be paid in cash, in property, or in shares of the Corporation’s capital stock.
The directors of the Corporation may set apart out of any of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or maintaining any property of the Corporation, and meeting contingencies.
8.8 | Fiscal Year |
The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors and may be changed by the Board of Directors.
8.9 | Seal |
The Corporation may adopt a corporate seal which may be altered as desired, and may use the same by causing it or a facsimile thereof, to be impressed or affixed or in any other manner reproduced.
8.10 | Transfer of Stock |
Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate, and record the transaction in its books.
19 |
8.11 | Stock Transfer Agreements and Restrictions |
The Corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes of stock of the Corporation to restrict the transfer of shares of stock of the Corporation of any one or more classes owned by such stockholders in any manner not prohibited by the General Corporation Law of Delaware.
8.12 | Electronic Transmission |
For purposes of these Bylaws, “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
8.13 | Facsimile Signatures |
In addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile signatures of any officer or officer of the Corporation may be used whenever and as authorized by the Board of Directors or a committee thereof.
8.14 | Reliance upon Books, Reports and Records |
Each director, each member of any committee designated by the Board of Directors, and each officer of the Corporation shall, in the performance of his duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation and upon such information, opinions, reports or garments presented to the Corporation by any of its officers or employees, or committees of the Board of Directors so designated, or by any other person as to matters which such director or committee member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.
20 |
IX. AMENDMENTS
The original or other Bylaws of the Corporation may be adopted, amended or repealed by the stockholders entitled to vote; provided, however, that the Corporation may, in its Certificate of Incorporation, confer the power to adopt, amend or repeal Bylaws upon the directors, other than with respect to Sections 3.4 and 3.12 of these Bylaws. The fact that such power has been so conferred upon the directors shall not divest the stockholders of the power, nor limit their power to adopt, amend or repeal Bylaws.
X. EXCLUSIVE FORUM
Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (the “Court of Chancery”) shall be the sole and exclusive forum, from and after the adoption of this Article X, for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation, its directors, officers or employees arising pursuant to any provision of the General Corporation Law of the State of Delaware or the Corporation’s Certificate of Incorporation or bylaws, or (iv) any action asserting a claim against the Corporation, its directors, officers or employees governed by the internal affairs doctrine, except as to each of (i) through (iv) above, for any claim as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination), which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction. If any provision or provisions of this Article X shall be held to be invalid, illegal or unenforceable as applied to any person or entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article X (including, without limitation, each portion of any sentence of this Article X containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby.
21 |
EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the following Registration Statements:
(1) | Registration Statement (Form S-3 No. 333-132330) of Chelsea Therapeutics International, Ltd. and Subsidiary, |
(2) | Registration Statement (Form S-3 No. 333-141964) of Chelsea Therapeutics International, Ltd. and Subsidiary, |
(3) | Registration Statement (Form S-3 No. 333-171628) of Chelsea Therapeutics International, Ltd. and Subsidiary, |
(4) | Registration Statement (Form S-3 No. 333-179183) of Chelsea Therapeutics International, Ltd. and Subsidiary, |
(5) | Registration Statement (Form S-8 No. 333-137782) of Chelsea Therapeutics International, Ltd. and Subsidiary, |
(6) | Registration Statement (Form S-8 No. 333-144061) of Chelsea Therapeutics International, Ltd. and Subsidiary, |
(7) | Registration Statement (Form S-8 No. 333-160256) of Chelsea Therapeutics International, Ltd. and Subsidiary, and |
(8) | Registration Statement (Form S-8 No. 333-171627) of Chelsea Therapeutics International, Ltd. and Subsidiary; |
of our reports dated March 11, 2014, with respect to the consolidated financial statements of Chelsea Therapeutics International, Ltd. and Subsidiary and the effectiveness of internal control over financial reporting of Chelsea Therapeutics International, Ltd. and Subsidiary included in this Annual Report (Form 10-K) of Chelsea Therapeutics International, Ltd. and Subsidiary for the year ended December 31, 2013.
/s/ Ernst & Young LLP |
Charlotte, North Carolina
March 11, 2014
EXHIBIT 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the registration statement on Forms S-3 (Nos. 333-132330, 333-141964, 333-171628 and 333-179183) and Forms S-8 (Nos. 333-137782, 333-144061, 333-160256 and 333-171627) of Chelsea Therapeutics International, Ltd., of our report dated March 10, 2008 on the consolidated statements of operations (not presented separately therein), changes in stockholders’ equity and cash flows (not presented separately therein) for the period from April 3, 2002 (inception) to December 31, 2007. The statement of operations and cash flow information comprise a portion of the cumulative from inception information covering the period from April 3, 2002 (inception) through December 31, 2013 appearing in the Chelsea Therapeutics International, Ltd. Annual Report on Form 10-K for the year ended December 31, 2013.
/s/ CohnReznick LLP | |
Roseland, New Jersey | |
March 11, 2014 |
EXHIBIT 31.1
CERTIFICATION
I, Joseph Oliveto, certify
that:
1. | I have reviewed this Annual Report on Form 10-K of Chelsea Therapeutics International, Ltd.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a. | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b. | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c. | evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d. | disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. | The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
a. | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
b. | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Date: March 11, 2014 | By: | /s/ Joseph Oliveto | |
Joseph Oliveto | |||
President, Chief Executive Officer and Director |
EXHIBIT 31.2
CERTIFICATION
I, J. Nick Riehle, certify that:
1. | I have reviewed this Annual Report on Form 10-K of Chelsea Therapeutics International, Ltd.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a. | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b. | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c. | evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d. | disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. | The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
a. | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
b. | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Date: March 11, 2014 | By: | /s/ J. Nick Riehle | |
J. Nick Riehle | |||
Vice President, Administration and Chief Financial Officer |
EXHIBIT 32.1
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report on Form 10-K of Chelsea Therapeutics International, Ltd. (the “Company”) for the period ended December 31, 2013 as filed with the Securities and Exchange Commission on or about the date hereof (the “Report”), I, Joseph Oliveto, Interim President and Chief Executive Officer, hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge:
(1) | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
(2) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company as of, and for, the periods presented in the Report. |
/s/ Joseph Oliveto | |||
Joseph Oliveto | |||
President, Chief Executive Officer and Director | |||
March 11, 2014 |
EXHIBIT 32.2
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report on Form 10-K of Chelsea Therapeutics International, Ltd. (the “Company”) for the period ended December 31, 2013 as filed with the Securities and Exchange Commission on or about the date hereof (the “Report”), I, J. Nick Riehle, Vice President, Administration and Chief Financial Officer, hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge:
(1) | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
(2) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company as of, and for, the periods presented in the Report. |
/s/ J. Nick Riehle | |||
J. Nick Riehle | |||
Vice President, Administration and Chief Financial Officer | |||
March 11, 2014 |
Stockholders' Equity (Details 3)
|
Dec. 31, 2013
|
Dec. 31, 2012
|
---|---|---|
Share-based Compensation Arrangement by Share-based Payment Award [Line Items] | ||
Common Stock, Capital Shares Reserved for Future Issuance | 8,417,335 | 11,345,726 |
Warrant [Member]
|
||
Share-based Compensation Arrangement by Share-based Payment Award [Line Items] | ||
Common Stock, Capital Shares Reserved for Future Issuance | 0 | 2,023,530 |
Stock Option [Member]
|
||
Share-based Compensation Arrangement by Share-based Payment Award [Line Items] | ||
Common Stock, Capital Shares Reserved for Future Issuance | 7,156,709 | 7,076,070 |
Stock Options Available For Future Grants [Member]
|
||
Share-based Compensation Arrangement by Share-based Payment Award [Line Items] | ||
Common Stock, Capital Shares Reserved for Future Issuance | 1,260,626 | 2,246,126 |
`R=YK'FC_V%7\2-OQ-LBI_"O'Z_!EYB=4SY1TCREAH
M.KOQ=GKK; .:;KKSY$M:X-0%NQO\>[
M'IOO+O43MK@+:XRZUUHR4@EE(S>2T/2"B"1BDDA((B6)C"1RDBA(HB2)2A*:
MF-8Z'T#X$`FO%US06'"TX%Y+1B/G9B14@UICBT?;AX,R(8F4)+*14+0NU]@*
MC:W4V*K1]N%;U3H"B,GXB/T_AG%_&Y85[[0&2-/I-A"Q/-.S4.>(`&)9CL ([]I\AH4310&0D(4,$R4@
M'"ODBP7HHP*$;[&`H51?`P)G4=@%1-5EFLGU`YK)(@W< 2J-&$%(J5981)A$M<2-37$
M!-X-5Q$Y[Z=TL8;D;FHD/BG.\Z@V12`Q<10+$QN3"28.)BXF4TQFF'B8^)C,
M,0DP66"RS$G>WZX:!PAQE!4F$29Q+5'30TSHW9`> Z8I,4H/4O'ZMP&Y)RI#
MXIU(YI#]:=VSO*7O^L%_L$"\+A5X]RR+:U.QC:S.I80HLEX)?D1P\B!QV1)]
MCMT(B'M[C)C!L'_Y!49IDCO-$F-H&;!"0HV?UGXP7]E/4)CTA-E,,>X8L>T1
MN@J:-KF_=\#G+0Y'![Q@/+MO_@<``/__`P!02P,$%``&
M``@````A`*+-/66^`P``&0T``!D```!X;"]W;W)K$C!9(XP![4E53"N"Q^5*1C<6W(%
MXZ*W*E0,ZB_EG/$8ZG75G&&N#=M
M*+PSG5=+,A+JAT)MHV5Q`LA)(K(#4(H]&B7]"Q2H*LD4H8.6$H2-_R7)51BX
MOUDM";QW&S'RG&.C) I=CNY\2Y7"34IA!ZR2502@CA<
MR7,OAH>%V/B6CI4JJ!,4,(C!LB`VYI>D"*2SE"YC3,R0=,8P/=^$JS=V*808
M-QQVLBLR:MT/F@T6(O&KGC>0E(,BK)&F;)
\?>^:/*R4\JO=*I+]\#!9T.XVDF?^3PH6Z^GU:.UN'\H][1
MP3[^^3#1B8Z=3OSS8 84/?5=YW?_V7OS';KNM+\_BH'#1MVHRD5!XWIM`&:D@P%
M=DD0Z:J+0BXX26*;)@D.EO4VOLM='D)/EM___WUKV,,YI%Q53@=(DD[+/'NO
MO=8WSZOGU1`>=6SCEI:C)Z)TU:5P($=4_-]7"$;23;I.8<$H!_]]J-3*20-<
M'3'][$P?2H/4CVH`#8]Z/H&4Q <_]@Z0'4EUQ+2=50
M7!^;N0<+$*)C8OVZ5DS!@?TI*#$P=K+FI%%3W>]]ERXWX7\E)#EI6LC?1[
M]@5?"@4B8L;5$UNC*7Y1@EAG.`!V$*%PF)C'0LK5&C(BV9RT>@U#\'U4N_'E
M_0P@[&U&F=#CM8V'W!>Z_G2-%O_UIT_7'M%%+X`]67OTY/':`UW/QI&63_Y[
M6:_2^IS4Q5XG?DO$1!9E?P-% !9PY_1F(-U)V[Q?JO'[Z'F7U/P```/__`P!02P,$%``&``@`
M```A`/MBI6V4!@``IQL``!,```!X;"]T:&5M92]T:&5M93$N>&UL[%E/;]LV
M%+\/V'<@=&]M)[8;!W6*V+&;K4T;Q&Z''FF9EEA3HD#227T;VN.``<.Z89UC1"SF67"72(6=L#
M/F-^-"0/E(<8E@HFVE[5_+S*UM4*WDP7,;5B;6%=W_S2=>F"\73-\!3!*&=:
MZ]=;5W9R^@;`U#*NU^MU>[6 2!=(.SB"
MQLD.VF#2I*QIT]9)6RW;K"^XT\WYGC"VENPL_CZGL?/FS&7GY.)%&CNUL&-K
M.[;2U.#9DRD*0Y/L(&,<8[Z4%3]F\=%]0.?#:8,25-,,&G*H&AAQZ8/(#D
MMQS-TJV_````__\#`%!+`P04``8`"````"$`L`K<:58%``!X%P``&0```'AL
M+W=O \7,[F#_20SN`?5[79V$'L-WKZI$=P*ZOJR_M`#9_73VV`]@#
M=O7$#F`KV-57=@`[0M#-^X3AW/.:'NDV+8_YI=+.]`"Q@J CR5M#2;1LL,T26_)-IA[LCN$+3O]'=GH9,M>6+(-QLC.
M;HHVB'NB.X0M.OL=T>ADB8ZM\F\-QHB>W6P0@[@GND/8HO&0'FQJ'^MK=+)%
M6UO7UF!,7\_3(`VC-!X78S>"!'$09*FU1>8&LAA&EH5O11WM)XMI*.F[2Q2=
M[%"L/6YK,",-L1W+%&,OT0YA5R`$C<,2W-]2-!KVGMG;)CTU[::F?&0:Y0UF
MAY$`[($9K,Q?/#PTC97*0:GT^;6]@F*@[_>R++(2OGM#0;*N!Y\Y^<"QSY\9
M6,P175-QI#M:5=(I^!F'$5PNO;4?E!XB]+?L.QR@;MFC)1Q>4_Q#&("#'IHL
M)HBOF\7\_A7,0BTYTA]$'%DCG8H>0%[@X?0AS#1E'A1O]9"QYPJF('U[@JF7
MPKD?>``^<*ZZ!TQ"/T=O?@(``/__`P!02P,$%``&``@````A`%J]4Y1%!```
M#!$``!@```!X;"]W;W)KO)-+`;T:<$-<)U&8*:D182V9@'\.W[,CF:E.6NT.U(N
M*;BP;.X(\58]]/KG.ON`]Z^;A)G46UEUA8#VZW>#"TA27K9+<-B:,>P*XV<:
MX7O:]FAZM1.)]&D`PSDTZ1E0"TX_N[R
M_#L?'-Z5UT`UH:J0BX^NH[[Y&HG5+RC4U_NK.N@DT#1(R1=%>T*P((9=+O=$
M\4Q2ENHT\[:/?I0Z#Q1)8];8`4:"Y_@35P*F==>#A->$#0I!,ER7N*:6QJUC
M.Z6V)(:[RZQV9*)TJ(^%V>/AI,W*=(.9!R;^>4K,+YH+E_F[_:\Y\L0&N![7
M>8#3SN'7=J>M@)]73^=:$3\5ZAI;#R21_,6'&PY"/P4KH[)7GW"5$3M?V;E9
MP8>FUL91XGYY-1Z_JNV-LA=V<">!AO&5321JSMR*"+4'V&>WK(T<$>WJ,'&"
M5@)/7.RS.YX3\G0="X!5BD60]5.T%%EBJ(R9\*P6P7%=[LMQ"
`1#\A^)KJW[M3H8ZUR=UF%-I:DT0)/.9`=[YL(D
M,6R`T&%6")4^$U3G_'4CYC\G\G[5H,TKCPT&C)]]?])11"BULPSZ"#KX%\)K
M-X*]C?@L"0QA0)4=W@J>@5X@GD1V\PY7,57BJY'`#F\;:YM/'JT]?O2@PYLV
MN-.%X\,)J[G$;N1,[,=3V^&<(:UM33@;$RQ#/1XKL)P2F5GTNEZGTW3"0Y1;
MM[=P*XF:K;H`[/'3!VL/GFYVIUM"E4M%,%]$ZM>/5(-Z-H,H9M\#?/7QH%*%
M[K7SWT6HC$Q^U&[R^D<0H@A!MU=$`<#__2N]?KGE&J\[5=YJ@#VZ&@]9WB5"
MY0L"Y.O='&3++:4-[WB=5V4"1S.O%H_^4;=K.<59*02V$6FTN[6LJ]AFFP+8
M+K)=1?
M'B>4.&U28;ZMZ5%,#7.B+2]I7;6S!@EWWL68OBC)BMIYO%MD+&<=$6
MT4>Z8I=QY1WV]RSL-@FLS_$YA[JM"+<>E9^!Q.7(>I6>9OE`2L_PE<;1FK\>
M*UV#="[YA>)FA1=RZ^/^2)1!-VD^?JMGM1[NRQ"T$C\EG(46^POZ1%M'9C_O
M8AKZ,T]U"9';26Z%")U1]92N)Y"Q7\L6ZE!7N348]LJ.1'PF_*T)TTWUD[.<
M9>G.M.CZ1\518_A.D-C:@'"N7*<@;6^7^VO4L(EV,F1KLLJ0%)SMNA+7C#_O
M*945(E2LE#R4$!,`FG_EY(SRBN-[T:#9CEW>'[^T_8Z99AJ$-@$PC+]DK9H4
M&R\6FYY]J\-IAX/Q`G_7;DRS\Z"Y"[-,+(?M0[PKN?FW4_IV&FLK(@N!"AF)
M.>,6/);H=U
.9\7Y&A%3
M?D['FM1*-V:6';F"^6DN
M"_A<4I@BG@MPQKEJ%_!@W'V`M_\!``#__P,`4$L#!!0`!@`(````(0#Q0H\+
MHP,``(P+```9````>&PO=V]R:W-H965T