UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2012
or
¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to .
Commission file number 000-27436
TITAN PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
400 Oyster Point Blvd., Suite 505,
South San Francisco, California
(Address of principal executive offices)
94-3171940
(I.R.S. Employer
Identification Number)
94080
(Zip code)
Registrant’s telephone number, including area code: (650) 244-4990
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $0.001 par value
Indicate by check mark if the registrant is a well-known seasoned issuer as defined in Rule 405 of the Securities Act. Yes ¨ No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange
Act. Yes ¨ No x
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and
(2) has been subject to the filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every interactive
Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12
months (or for such shorter period that the registrant was required to submit and post such files). x Yes ¨ No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not
contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by
reference in Part III of this Form 10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act. (Check one):
Large accelerated filer
Non-accelerated filer
¨
¨
Accelerated filer
Smaller Reporting Company
x
¨
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x
The aggregate market value of the 64,592,330 shares of voting and non-voting common equity held by non-affiliates of the registrant
based on the closing price on June 30, 2012 was $45.2 million.
As of March 11, 2013, 81,811,489 shares of common stock, $.001 par value, of the registrant were issued and outstanding.
DOCUMENTS INCORPORATED BY REFERENCE:
NONE
NOTE REGARDING FORWARD-LOOKING STATEMENTS
PART I
Statements in this Annual Report on Form 10-K or in the documents incorporated by reference herein may contain “forward-looking
statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934.
Reference is made in particular to the description of our plans and objectives for future operations, assumptions underlying such plans and
objectives and other forward-looking terminology such as “may,” “expects,” “believes,” “anticipates,” “intends,” “expects,” “projects,” or
similar terms, variations of such terms or the negative of such terms. Forward-looking statements are based on management’s current
expectations. Actual results could differ materially from those currently anticipated due to a number of factors, including but not limited to,
uncertainties relating to financing and strategic agreements and relationships; difficulties or delays in the regulatory approval process;
uncertainties relating to sales, marketing and distribution of our drug candidates that may be successfully developed and approved for
commercialization; adverse side effects or inadequate therapeutic efficacy of our drug candidates that could slow or prevent product
development or commercialization; dependence on third party suppliers; the uncertainty of protection for our patents and other intellectual
property or trade secrets; and competition.
We expressly disclaim any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements
contained herein to reflect any change in our expectations or any changes in events, conditions or circumstances on which any such statement
is based.
References herein to “we,” “us,” “Titan,” and “our company” refer to Titan Pharmaceuticals, Inc. unless the context otherwise requires.
Probuphine and ProNeura™ are trademarks of our company. This Annual Report on Form 10-K also includes trade names and
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trademarks of companies other than Titan.
Item 1.
Business
Overview
We are a biopharmaceutical company developing proprietary therapeutics for the treatment of serious medical disorders. Our product
development programs focus primarily on important pharmaceutical markets with significant unmet medical needs and commercial potential.
We are directly developing our product candidates and also utilize corporate, academic and government partnerships as appropriate. Such
collaborations have helped to fund product development and have enabled us to retain significant economic interest in our products.
Our principal asset is Probuphine , the first slow release implant formulation of buprenorphine, designed to maintain a stable, around the
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clock blood level of the medicine in patients for six months following a single treatment. The clinical and manufacturing development of
Probuphine for the treatment of opioid dependence in adult patients is complete. The New Drug Application (“NDA”) seeking approval for
treatment of opioid dependence has been accepted by the United States Food and Drug Administration (“FDA”) for a Priority Review.
Priority Review designation is given to therapies that offer potential major advances in treatment, including improved safety, or provide a
treatment where no adequate therapy exists. Based upon the Prescription Drug User Fee Act (“PDUFA”), the FDA has set a target date of
April 30, 2013 for FDA action on the NDA. An FDA advisory committee review has been scheduled for March 21, 2013.
Probuphine is inserted subdermally in a patient’s upper arm providing continuous medication, and has the potential to enhance patient
compliance to treatment, and limit diversion for illicit use and accidental exposure to the daily dosed formulations. The outpatient treatment of
opioid addiction with daily dosed sublingual buprenorphine formulations represents a $1.3 billion market in the U.S., which continues to
grow. A transdermal formulation of buprenorphine for the treatment of chronic pain entered the U.S. market in 2011 and Probuphine has the
potential to be developed for treating chronic pain as well.
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In December 2012, we entered into a license agreement with Braeburn Pharmaceuticals Sprl (“Braeburn”) that grants Braeburn exclusive
commercialization rights to Probuphine in the United States and Canada. We received a non-refundable up-front license fee of $15.75 million
and will receive a $50 million milestone payment upon the approval of the NDA by the FDA. Additionally, we will be eligible to receive up to
$130 million upon achievement of specified sales milestones and up to $35 million in regulatory milestones in the event of future NDA
submissions and approvals for additional indications, including chronic pain. Titan will receive tiered royalties on net sales of Probuphine
ranging from the mid-teens to the low twenties. In addition to the potential milestone payments, Apple Tree Partners IV, Braeburn’s parent
company, has allocated in excess of $75 million to launch, commercialize and continue the development of Probuphine.
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Probuphine is the first product to utilize ProNeura™, our novel, proprietary, continuous drug delivery technology. Our ProNeura
technology has the potential to be used in developing products for the treatment of other chronic conditions, such as Parkinson’s disease,
where maintaining stable, around the clock blood levels of a drug can benefit the patient and improve medical outcomes.
Under a sublicense agreement with Novartis Pharma AG (“Novartis”), we are entitled to royalty revenue of 8-10% of net sales of
Fanapt (iloperidone), an atypical antipsychotic compound being marketed in the U.S. by Novartis for the treatment of schizophrenia, based on
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a licensed U.S. patent that expires in October 2016 (excluding the potential of a six month pediatric extension). We have entered into several
agreements with Deerfield Management (“Deerfield), a healthcare investment fund, which entitle Deerfield to most of the future royalty
revenues related to Fanapt in exchange for cash and debt considerations, the proceeds from which we have been using to advance the
development of Probuphine and for general corporate purposes. We have retained a portion of the royalty revenue from the net sales of Fanapt
in excess of specified annual threshold levels; however, based on sales levels to date, it is unlikely that we will receive any revenue from
Fanapt in the next several years, if ever.
We operate in only one business segment, the development of pharmaceutical products.
Our Products
Probuphine
We are developing Probuphine for the treatment of opioid dependence. Probuphine is the first product specifically designed for the long-
term treatment of opioid dependence and it utilizes ProNeura, our novel, proprietary, long-term drug delivery technology. See “Continuous
Drug Delivery Technology (ProNeura)” below. Probuphine is designed to maintain a stable, around the clock blood level of the drug
buprenorphine, an approved agent for the treatment of opioid dependence. If approved, Probuphine is expected to provide six months of
medication following a single treatment. Probuphine has been shown to be effective with an acceptable safety profile in the following Phase 3
clinical studies:
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Two six-month, double-blind, placebo-controlled safety and efficacy trials; one of which included an open label, active control
(Suboxone). In both studies, Probuphine demonstrated superiority to placebo implants, and in the second study, established non-
inferiority in comparison to Suboxone;
Two six-month, open-label re-treatment safety trials; and
A pharmacokinetic (relative bioavailability) safety study.
The goal of any therapy for an addictive disorder is to reduce the use of the addictive substance over time and to engage the patient in
treatment long enough for therapeutic gains to be consolidated. In a clinical study, the effectiveness of a treatment for opioid dependence is
primarily evaluated by testing a patient’s urine samples for the presence of illicit opioids over the treatment period. In both placebo-controlled
Phase 3 studies of Probuphine, every participant was required to provide urine samples three times a week, essentially on alternate days. Any
missed sample was considered a positive result (i.e. urine testing positive for illicit opioid). In these
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studies, the primary effectiveness of the treatment with Probuphine (i.e. the primary endpoint) was established by comparing the negative urine
results (i.e. urine testing negative for illicit opioid) between the Probuphine and placebo arms using a statistical technique, specifically ‘the
cumulative distribution function of negative urines’, which basically performs a comparative analysis on the relative proportions of negative
urines between treatment groups over the time period of treatment. The patients in the Probuphine arm showed clinically meaningful and a
statistically significant difference in the negative urines as compared to the placebo arm in both studies, i.e. the Probuphine patients had
statistically more negative results than the placebo arm, demonstrating that the treatment with Probuphine was successful in reducing their
usage of illicit opioids as compared to the treatment with placebo. These favorable results for Probuphine were also confirmed by a significant
difference over the placebo arm in other secondary measures such as retention in treatment, withdrawal symptoms and craving for opioids, all
of which are monitored by clinicians to see if a treatment is providing clinically meaningful benefit to the patients.
Results for the first double-blind, placebo-controlled safety and efficacy study have been published in the Journal of the American
Medical Association (JAMA, October 2010).
Patients who completed the controlled studies were eligible for enrollment in the six-month re-treatment studies, which provided data on
up to one full year of treatment. The pharmacokinetic safety study has provided important data on the level of buprenorphine in the blood
during the treatment period and gives a good profile of the safety of Probuphine. Data from all of these studies was presented at several
scientific meetings, including the International Society of Addiction Medicine Annual Meetings in November 2008 and September 2011, the
American Society of Addiction Medicine Annual Meetings in May 2009 and 2012, American Society of Addiction Medicine Education
Forum in October 2011, and the American College of Neuropharmacology in November 2009 and 2012.
These studies are part of a registration directed program intended to obtain marketing approval of Probuphine for the treatment of opioid
dependence in the U.S. and in Europe. We met with the FDA in October 2011 for a pre-NDA meeting and reviewed the clinical development
program as well as the chemistry, manufacturing and controls (“CMC”) aspects of the NDA. Based on this interaction we completed the
requirements for an NDA and submitted it to the FDA in October 2012. The NDA seeking approval for the maintenance treatment of opioid
dependence has been accepted by the FDA for a Priority Review. Priority Review designation is given to therapies that offer potential major
advances in treatment, including improved safety, or provide a treatment where no adequate therapy exists. Based upon the PDUFA
requirements, an FDA advisory committee review has been scheduled for March 21, 2013 and the FDA has set a target date of April 30, 2013
for FDA action on the NDA. If approved, Probuphine will be commercialized in the U.S. and Canada by Braeburn. We will seek appropriate
commercial partners for Probuphine in other countries, particularly where therapy with daily dosed buprenorphine is already approved.
Continuous Drug Delivery Technology (ProNeura)
Our continuous drug delivery system consists of a small, solid rod made from a mixture of ethylene-vinyl acetate (“EVA”) and a drug
substance. The resulting product is a solid matrix that is placed subcutaneously, normally in the upper arm in a simple office procedure, and is
removed in a similar manner at the end of the treatment period. The drug substance is released slowly, at continuous levels, through the
process of dissolution. This results in a steady rate of release similar to intravenous administration. We believe that such long-term, linear
release characteristics are desirable by avoiding peak and trough level dosing that may pose problems for many disease settings.
Our ProNeura technology was developed to address the need for a simple, practical method to achieve continuous long-term drug
delivery, and potentially can provide steady drug release on an outpatient basis over extended periods of up to 6-12 months. This technology
has been validated with the successful development of Probuphine, and its potential commercialization in the near term is likely to further
strengthen the appeal of this
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continuous drug delivery system. We continue to seek opportunities to develop this drug delivery technology for other potential treatment
applications in which conventional treatment is limited by variability in blood drug levels and poor patient compliance (e.g. treatment of
Parkinson disease with dopamine agonists). During 2012, with the support of an SBIR grant, we completed a non-clinical study with long-
term delivery of dopamine agonists which supports the potential to develop an implant delivering ropinirole for treating Parkinson’s disease.
Additional non clinical testing will be required to develop an optimal formulation and evaluating toxicity prior to any clinical testing. We are
also evaluating other drugs and disease settings to establish product development programs during 2013.
Fanapt (iloperidone)
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Fanapt (iloperidone) is an atypical antipsychotic approved by the FDA for the treatment of schizophrenia currently being marketed by
Novartis in the U.S. Under a sublicense agreement with Novartis, we are entitled to a royalty of 8-10% of net sales, based on a U.S. patent
that we licensed from Sanofi-Aventis. The U.S. patent expires in October 2016 (excluding a six-month pediatric extension). Vanda
Pharmaceuticals, Inc. (“Vanda”) owns the development and commercialization rights to the oral and depot formulations of this product for the
rest of the world. However, because patent coverage on the compound has now expired in the significant markets outside of the U.S. and no
patent term extensions are possible since the product was not approved in these countries prior to patent expiration, we do not expect any
royalties on any future sales in such markets.
We have entered into several agreements with Deerfield, which entitle Deerfield to most of the future royalty revenues related to Fanapt
in exchange for cash and debt considerations, the proceeds of which have been used to advance the development of Probuphine and for
general corporate purposes. We have retained a portion of the royalty revenue from net sales of Fanapt in excess of specified annual threshold
levels; however, based on sales levels to date, it is unlikely that we will receive any revenue from Fanapt in the next several years, if ever. We
do not incur any ongoing expenses associated with this product.
License Agreements
In December 2012, we entered into a license agreement with Braeburn pursuant to which we granted Braeburn an exclusive right and
license to commercialize Probuphine in the United States of America and its territories, including Puerto Rico, and Canada (the “Territory”).
Under the agreement, Braeburn made a non-refundable up-front license fee payment of $15.75 million and agreed to pay us tiered royalties on
net sales of Probuphine ranging from the mid-teens to the low twenties. Additionally, we will receive $50 million upon FDA approval of the
NDA for Probuphine and at such time ownership of the NDA will transfer to Braeburn. We are also eligible to receive up to an additional
$130 million upon the achievement of specified sales milestones and up to $35 million in regulatory milestones. We will retain all of the rights
to Probuphine outside the Territory.
In January 1997, we acquired an exclusive worldwide license under U.S. and foreign patents and patent applications relating to the use
of iloperidone for the treatment of psychiatric and psychotic disorders and analgesia from Sanofi-Aventis SA (“Sanofi-Aventis”) (formerly
Hoechst Marion Roussel, Inc.). The Sanofi-Aventis agreement provides for the payment of royalties on future net sales and requires us to
satisfy certain other terms and conditions, specifically continued diligent product development and commercialization efforts standard for these
types of agreements, in order to retain our rights. In November 1997, we granted a worldwide sublicense, exclusive of Japan, to Novartis
under which Novartis continued, at its expense, all further development of iloperidone. In April 2001, that sublicense was extended to include
Japan. Under this agreement, Novartis agreed to pay Titan a royalty on future net sales of the product equal to 8% of annual worldwide net
sales up to $200 million and 10% of annual worldwide net sales above $200 million, in addition to royalty payments owed by us to Sanofi-
Aventis. In June 2004, Novartis granted Vanda the worldwide rights to develop and commercialize iloperidone. In October 2009, Vanda and
Novartis amended and restated their sub-license agreement whereby Novartis acquired the U.S. and Canadian rights to commercialize Fanapt,
the oral formulation of iloperidone approved in the U.S. Novartis also acquired the U.S. and Canadian development and
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commercialization rights to the depot formulation previously under development by Vanda and retained the right of first negotiation to co-
market Fanapt and the depot formulation in the rest of the world. All of our rights and economic interests in iloperidone, including royalties on
sales, remained essentially unchanged under these agreements and, as previously stated, we have entered into several agreements with
Deerfield, which entitle Deerfield to the future royalty revenues related to Fanapt in exchange for cash and debt considerations.
In October 1995, we acquired from the Massachusetts Institute of Technology (“MIT”) an exclusive worldwide license to certain U.S.
and foreign patents relating to our continuous drug delivery system that provided for the payment of certain royalties and other payments with
respect to based the licensed technology. Because the patent terms have expired, this license was terminated on July 31, 2012 and we have no
continuing obligations to MIT with respect to our ProNeura technology.
In July 2005, we entered into an agreement with the University of Iowa Research Foundation. Under this agreement, we received an
exclusive worldwide license to patent rights held by the University of Iowa Research Foundation covering the methods of treating biofilm
formation, pseudomonas aeruginosa growth, human deficiency virus, and intracellular pathogens and pathogens causing chronic pulmonary
infection using gallium maltolate. Under this agreement, we are required to pay a license issuance fee and certain minimum annual royalty
payments. In addition, we are required to pay royalties based on net sales of products and processes incorporating the licensed technology. We
will evaluate the utility of this license with respect to future product development programs and take action as appropriate.
Patents and Proprietary Rights
Four patent applications have been filed which incorporate the use of specific compounds with the continuous delivery technology,
including two applications related to Probuphine for the potential treatment of opioid addiction and chronic pain. In June 2010, the United
States Patent and Trademark Office (“USPTO”) issued a patent covering Probuphine for the treatment of opiate addiction. Titan is the assignee
of this patent which claims a method for treating opiate addiction with a subcutaneously implanted device comprising buprenorphine and
EVA, a biocompatible copolymer that releases buprenorphine continuously for extended periods of time. This patent will expire in April 2024.
Patents have issued in Australia, India, Japan, Mexico and New Zealand. Further prosecution of these applications is currently proceeding at
the USPTO and corresponding agencies in Europe, Canada, India and Hong Kong. Patents covering certain dopamine agonist implants have
already been issued or allowed in Europe, Japan, Australia, Canada, South Korea, Mexico, New Zealand, South Africa, and Hong Kong,
while prosecution of the patent application continues in the U.S., Israel, India and China.
We hold a license from Sanofi-Aventis under certain issued U.S. patents and certain issued foreign patents relating to iloperidone and its
methods of use in the treatment of psychiatric disorders, psychotic disorders and analgesia. The term of the U.S. patent that covers certain
aspects of our iloperidone product expires in October 2016, excluding a six month extension possible if an approval of pediatric indication is
obtained. Limited foreign patent protection remains in Lichtenstein, Georgia, Korea and the Philippines, although no royalty payments are
expected from these patents.
We are the licensee from the University of Iowa Research Foundation (“UIRF”) of two issued U.S. patents (expiring in 2016) relating to
methods of use of gallium compounds to inhibit the growth of P. aeruginosa, and the treatment of infections by pathogens causing chronic
pulmonary infection. We are also the licensee from UIRF of certain rights to patent applications covering the use of gallium complexes in
preventing and also treating bacterial biofilm-based infections, for which patents have issued in Australia, Japan, Mexico, New Zealand, and
South Africa, and prosecution in the U.S., Canada, Europe, China, Hong Kong, and India continues.
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Competition
The pharmaceutical and biotechnology industries are characterized by rapidly evolving technology and intense competition. Many
companies of all sizes, including major pharmaceutical companies and specialized biotechnology companies, are engaged in the development
and commercialization of therapeutic agents designed for the treatment of the same diseases and disorders that we target. Many of our
competitors have substantially greater financial and other resources, larger research and development staff and more experience in the
regulatory approval process. Moreover, potential competitors have or may have patents or other rights that conflict with patents covering our
technologies. For risks we face with respect to competition, see “Risk Factors—We face intense competition.”
With respect to Probuphine, Reckitt Benckiser Group, PLC (“Reckitt”) markets globally a sublingual buprenorphine product (tablet and
film formulations) for the treatment of opioid dependence. This product (Subutex , Suboxone ) which is administered daily, will compete with
our six-month implantable product for treating opioid dependence. Reckitt recently announced the discontinuation of the sublingual tablet
formulation of Suboxone in favor of the sublingual film formulation which they will continue to market aggressively. In addition, in February
2013, two generic sublingual tablet formulations of Suboxone were approved by the FDA which are expected to compete with Suboxone.
Other forms of buprenorphine are also in development by other companies, including intramuscular injections, buccal delivery and intranasally
delivered buprenorphine, which also might compete with our product. In 2010, Alkermes, Inc. received FDA approval to market Vivitrol , a
one month depot injection of naltrexone as a maintenance treatment for opioid dependent patients who have successfully achieved abstinence.
We are aware of one month depot formulations of buprenorphine in early clinical development for the treatment of opioid dependence, but we
are not aware of any six-month formulations being developed other than Probuphine.
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Manufacturing
The manufacturing of Probuphine has primarily been conducted at DPT Laboratories, Inc., and we have expanded the manufacturing
facility at this contract manufacturer to establish commercial scale capability to support the potential market launch of Probuphine, and ongoing
demand following potential approval by the FDA.
Government Regulation
FDA Approval Process
In the United States, pharmaceutical products are subject to extensive regulation by the FDA. The Federal Food, Drug, and Cosmetic
Act, or the FDC Act, and other federal and state statutes and regulations, govern, among other things, the research, development, testing,
manufacture, storage, recordkeeping, approval, labeling, promotion and marketing, distribution, post-approval monitoring and reporting,
sampling, and import and export of pharmaceutical products. Failure to comply with applicable U.S. requirements may subject a company to a
variety of administrative or judicial sanctions, such as FDA refusal to approve pending new drug applications, or NDAs, warning letters,
product recalls, product seizures, total or partial suspension of production or distribution, injunctions, fines, civil penalties, and criminal
prosecution.
Pharmaceutical product development in the U.S. typically involves preclinical laboratory and animal tests, the submission to the FDA of
either a notice of claimed investigational exemption or an investigational new drug application, or IND, which must become effective before
clinical testing may commence, and adequate and well-controlled clinical trials to establish the safety and effectiveness of the drug for each
indication for which FDA approval is sought. Satisfaction of FDA pre-market approval requirements typically takes many years and the actual
time required may vary substantially based upon the type, complexity, and novelty of the product or disease.
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Preclinical tests include laboratory evaluation of product chemistry, formulation, and toxicity, as well as animal trials to assess the
characteristics and potential safety and efficacy of the product. The conduct of the preclinical tests must comply with federal regulations and
requirements, including good laboratory practices. The results of preclinical testing are submitted to the FDA as part of an IND along with
other information, including information about product chemistry, manufacturing and controls, and a proposed clinical trial protocol. Long
term preclinical tests, such as animal tests of reproductive toxicity and carcinogenicity, may continue after the IND is submitted.
Clinical trials involve the administration of the investigational new drug to healthy volunteers or patients under the supervision of a
qualified investigator. Clinical trials must be conducted: (i) in compliance with federal regulations; (ii) in compliance with good clinical
practice, or GCP, an international standard meant to protect the rights and health of patients and to define the roles of clinical trial sponsors,
administrators, and monitors; as well as (iii) under protocols detailing the objectives of the trial, the parameters to be used in monitoring safety,
and the effectiveness criteria to be evaluated. Each protocol involving testing on U.S. patients and subsequent protocol amendments must be
submitted to the FDA as part of the IND.
The FDA may order the temporary, or permanent, discontinuation of a clinical trial at any time, or impose other sanctions if it believes
that the clinical trial either is not being conducted in accordance with FDA requirements or presents an unacceptable risk to the clinical trial
patients. The study protocol and informed consent information for patients in clinical trials must also be submitted to an institutional review
board, or IRB, for approval. An IRB may also require the clinical trial at the site to be halted, either temporarily or permanently, for failure to
comply with the IRB’s requirements, or may impose other conditions.
Clinical trials to support NDAs for marketing approval are typically conducted in three sequential phases, but the phases may overlap. In
Phase 1, the initial introduction of the drug into healthy human subjects or patients, the drug is tested to assess metabolism, pharmacokinetics,
pharmacological actions, side effects associated with increasing doses, and, if possible, early evidence on effectiveness. Phase 2 usually
involves trials in a limited patient population to determine the effectiveness of the drug for a particular indication, dosage tolerance, and
optimum dosage, and to identify common adverse effects and safety risks. If a compound demonstrates evidence of effectiveness and an
acceptable safety profile in Phase 2 evaluations, Phase 3 trials are undertaken to obtain the additional information about clinical efficacy and
safety in a larger number of patients, typically at geographically dispersed clinical trial sites, to permit FDA to evaluate the overall benefit-risk
relationship of the drug and to provide adequate information for the labeling of the drug.
After completion of the required clinical testing, an NDA is prepared and submitted to the FDA. FDA approval of the NDA is required
before marketing of the product may begin in the U.S. The NDA must include the results of all preclinical, clinical, and other testing and a
compilation of data relating to the product’s pharmacology, chemistry, manufacture, and controls. The cost of preparing and submitting an
NDA is substantial.
Once the submission is accepted for filing, the FDA begins an in-depth review. Priority review can be applied to drugs that the FDA
determines offer major advances in treatment, or provide a treatment where no adequate therapy exists. The FDA may refer applications for
novel drug products, or drug products which present difficult questions of safety or efficacy, to an advisory committee – typically a panel that
includes clinicians and other experts – for review, evaluation, and a recommendation as to whether the application should be approved. The
FDA is not bound by the recommendation of an advisory committee, but it generally follows such recommendations. Before approving an
NDA, the FDA will typically inspect one, or more, clinical sites to assure compliance with GCP. Additionally, the FDA will inspect the
facility or the facilities at which the drug is manufactured. FDA will not approve the product unless compliance with current good
manufacturing practice, or GMP – a quality system regulating manufacturing – is satisfactory and the NDA contains data that provide
substantial evidence that the drug is safe and effective in the indication studied.
After the FDA evaluates the NDA and the manufacturing facilities, it issues either an approval letter or a complete response letter. A
complete response letter generally outlines the deficiencies in the submission and
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may require substantial additional testing, or information, in order for the FDA to reconsider the application. If, or when, those deficiencies
have been addressed to the FDA’s satisfaction in a resubmission of the NDA, the FDA will issue an approval letter.
An approval letter authorizes commercial marketing of the drug with specific prescribing information for specific indications. As a
condition of NDA approval, the FDA may require a risk evaluation and mitigation strategy, or REMS, to help ensure that the benefits of the
drug outweigh the potential risks. REMS can include medication guides, communication plans for healthcare professionals, and elements to
assure safe use, or ETASU. ETASU can include, but are not limited to, special training or certification for prescribing or dispensing,
dispensing only under certain circumstances, special monitoring, and the use of patient registries. The requirement for a REMS can materially
affect the potential market and profitability of the drug. Moreover, product approval may require substantial post-approval testing and
surveillance to monitor the drug’s safety or efficacy. Once granted, product approvals may be withdrawn if compliance with regulatory
standards is not maintained or problems are identified following initial marketing.
The Hatch-Waxman Act
In seeking approval for a drug through an NDA, applicants are required to list with the FDA each patent whose claims cover the
applicant’s product. Upon approval of a drug, each of the patents listed in the application for the drug is then published in the FDA’s
Approved Drug Products with Therapeutic Equivalence Evaluations, commonly known as the Orange Book. Drugs listed in the Orange Book
can, in turn, be cited by potential competitors in support of approval of an abbreviated new drug application, or ANDA. An ANDA provides
for marketing of a drug product that has the same active ingredients in the same strengths and dosage form as the listed drug and has been
shown through bioequivalence testing to be therapeutically equivalent to the listed drug. Other than the requirement for bioequivalence testing,
ANDA applicants are not required to conduct, or submit results of, pre-clinical or clinical tests to prove the safety or effectiveness of their
drug product. Drugs approved in this way are commonly referred to as “generic equivalents” to the listed drug, and can often be substituted by
pharmacists under prescriptions written for the original listed drug.
The ANDA applicant is required to certify to the FDA concerning any patents listed for the approved product in the FDA’s Orange
Book. Specifically, the applicant must certify that: (i) the required patent information has not been filed; (ii) the listed patent has expired;
(iii) the listed patent has not expired, but will expire on a particular date and approval is sought after patent expiration; or (iv) the listed patent is
invalid or will not be infringed by the new product. A certification that the new product will not infringe the already approved product’s listed
patents, or that such patents are invalid, is called a Paragraph IV certification. If the applicant does not challenge the listed patents, the ANDA
application will not be approved until all the listed patents claiming the referenced product have expired. The ANDA application also will not
be approved until any non-patent exclusivity listed in the Orange Book for the referenced product has expired. Federal law provides a period
of five years following approval of a drug containing no previously approved active ingredients during which ANDAs for generic versions of
those drugs cannot be submitted, unless the submission contains a Paragraph IV challenge to a listed patent - in which case the submission
may be made four years following the original product approval. Federal law provides for a period of three years of exclusivity during which
the FDA cannot grant effective approval of an ANDA based on the approval of a listed drug that contains previously approved active
ingredients but is approved in a new dosage form, route of administration or combination, or for a new use; the approval of which was
required to be supported by new clinical trials conducted by, or for, the applicant.
Section 505(b)(2) New Drug Applications
Most drug products obtain FDA marketing approval pursuant to an NDA or an ANDA. A third alternative is a special type of NDA,
commonly referred to as a Section 505(b)(2) NDA, enables the applicant to rely, in part, on the FDA’s previous approval of a similar product,
or published literature, in support of its application. Section 505(b)(2) permits the filing of an NDA where at least some of the information
required for approval comes from studies not conducted by, or for, the applicant and for which the applicant has not obtained a right of
9
reference. If the 505(b)(2) applicant can establish that reliance on the FDA’s previous approval is scientifically appropriate, it may eliminate
the need to conduct certain preclinical or clinical studies of the new product. The FDA may also require companies to perform additional
studies or measurements to support the change from the approved product. The FDA may then approve the new product candidate for all, or
some, of the label indications for which the referenced product has been approved, as well as for any new indication sought by the
Section 505(b)(2) applicant.
Advertising and Promotion
Once an NDA is approved, a product will be subject to certain post-approval requirements. For instance, the FDA closely regulates the
post-approval marketing and promotion of drugs, including standards and regulations for direct-to-consumer advertising, off-label promotion,
industry-sponsored scientific and educational activities and promotional activities involving the internet.
Drugs may be marketed only for the approved indications and in accordance with the provisions of the approved labeling. Changes to
some of the conditions established in an approved application, including changes in indications, labeling, or manufacturing processes or
facilities, require submission and FDA approval of a new NDA or NDA supplement before the change can be implemented. An NDA
supplement for a new indication typically requires clinical data similar to that in the original application, and the FDA uses the same
procedures and actions in reviewing NDA supplements as it does in reviewing NDAs.
Adverse Event Reporting and GMP Compliance
Adverse event reporting and submission of periodic reports is required following FDA approval of an NDA. The FDA also may require
post-marketing testing, known as Phase 4 testing, risk minimization action plans, and surveillance to monitor the effects of an approved
product, or the FDA may place conditions on an approval that could restrict the distribution or use of the product. In addition, quality-control,
drug manufacture, packaging, and labeling procedures must continue to conform to current good manufacturing practices, or cGMPs, after
approval. Drug manufacturers and certain of their subcontractors are required to register their establishments with FDA and certain state
agencies. Registration with the FDA subjects entities to periodic unannounced inspections by the FDA, during which the agency inspects
manufacturing facilities to assess compliance with cGMPs. Accordingly, manufacturers must continue to expend time, money, and effort in
the areas of production and quality-control to maintain compliance with cGMPs. Regulatory authorities may withdraw product approvals or
request product recalls if a company fails to comply with regulatory standards, if it encounters problems following initial marketing, or if
previously unrecognized problems are subsequently discovered.
Pediatric Information
Under the Pediatric Research Equity Act, or PREA, NDAs or supplements to NDAs must contain data to assess the safety and
effectiveness of the drug for the claimed indications in all relevant pediatric subpopulations and to support dosing and administration for each
pediatric subpopulation for which the drug is safe and effective. The FDA may grant full or partial waivers, or deferrals, for submission of
data. Unless otherwise required by regulation, PREA does not apply to any drug for an indication for which orphan designation has been
granted.
The Best Pharmaceuticals for Children Act, or BPCA, provides NDA holders a six-month extension of any exclusivity – patent or non-
patent – for a drug if certain conditions are met. Conditions for exclusivity include the FDA’s determination that information relating to the use
of a new drug in the pediatric population may produce health benefits in that population, the FDA making a written request for pediatric
studies, and the applicant agreeing to perform, and reporting on, the requested studies within the statutory timeframe. Applications under the
BPCA are treated as priority applications, with all of the benefits that designation confers.
10
Physician Drug Samples
As part of the sales and marketing process, pharmaceutical companies frequently provide samples of approved drugs to physicians. The
Prescription Drug Marketing Act, or the PDMA, imposes requirements and limitations upon the provision of drug samples to physicians, as
well as prohibits states from licensing distributors of prescription drugs unless the state licensing program meets certain federal guidelines that
include minimum standards for storage, handling, and record keeping. In addition, the PDMA sets forth civil and criminal penalties for
violations.
Controlled Substances
Manufacturers of controlled substances, including buprenorphine, are also subject to the licensing, quota, and regulatory requirements of
the Controlled Substances Act. Failure to comply with the Controlled Substances Act and the regulations promulgated thereunder could
subject companies to loss or suspension of those licenses and to civil or criminal penalties.
Anti-Kickback, False Claims Laws & The Prescription Drug Marketing Act
In addition to FDA restrictions on marketing of pharmaceutical products, several other types of state and federal laws have been applied
to restrict certain marketing practices in the pharmaceutical industry in recent years. These laws include anti-kickback statutes and false claims
statutes. The federal healthcare program anti-kickback statute prohibits, among other things, knowingly and willfully offering, paying,
soliciting or receiving remuneration to induce; or in return for; purchasing, leasing, ordering or arranging for the purchase, lease or order of
any healthcare item or service reimbursable under Medicare, Medicaid, or other federally financed healthcare programs. This statute has been
interpreted to apply to arrangements between pharmaceutical manufacturers on the one hand and prescribers, purchasers, and formulary
managers on the other. Violations of the anti-kickback statute are punishable by imprisonment, criminal fines, civil monetary penalties, and
exclusion from participation in federal healthcare programs. Although there are a number of statutory exemptions and regulatory safe harbors
protecting certain common activities from prosecution or other regulatory sanctions, the exemptions and safe harbors are drawn narrowly, and
practices that involve remuneration intended to induce prescribing, purchases, or recommendations may be subject to scrutiny if they do not
qualify for an exemption or safe harbor.
Federal false claims laws prohibit any person from knowingly presenting, or causing to be presented, a false claim for payment to the
federal government, or knowingly making, or causing to be made, a false statement to have a false claim paid. Recently, several pharmaceutical
and other healthcare companies have been prosecuted under these laws for allegedly inflating drug prices they report to pricing services, which
in turn were used by the government to set Medicare and Medicaid reimbursement rates, and for allegedly providing free product to customers
with the expectation that the customers would bill federal programs for the product. In addition, certain marketing practices, including off-label
promotion, may also violate false claims laws. The majority of states also have statutes or regulations similar to the federal anti-kickback law
and false claims laws, which apply to items and services reimbursed under Medicaid and other state programs, or, in several states, apply
regardless of the payor.
Foreign Regulatory Issues
Sales of pharmaceutical products outside the United States are subject to foreign regulatory requirements that vary widely from country
to country. Whether or not FDA approval has been obtained, approval of a product by a comparable regulatory authority of a foreign country
must generally be obtained prior to the commencement of marketing in that country. Although the time required to obtain such approval may
be longer or shorter than that required for FDA approval, the requirements for FDA approval are among the most detailed in the world and
FDA approval generally takes longer than foreign regulatory approvals.
Employees
At December 31, 2012, we had 13 full-time employees, 2 part-time employees and several consultants.
11
Item 1A. Risk Factors
FDA approval of Probuphine may be delayed.
At December 31, 2012, we had cash of approximately $18.1 million, which, together with the FDA’s reimbursement of the $2.0 million
NDA filing fee, we believe is sufficient to fund our current operations through June 2014. In the event that the FDA issues a complete
response letter requiring additional clinical and manufacturing development prior to approval that would require expenditures in excess of
certain amounts specified in our agreement with Braeburn, Braeburn will have the right to either terminate the agreement or, in the event the
FDA ultimately approves Probuphine for sale in the U.S., reduce the amount of the $50 million milestone payment payable to us by the
amount of our obligations for the additional development expenses.
If Braeburn were to terminate the agreement, we would not have sufficient funds available to us to complete the FDA approval process
and commercialize Probuphine and, as a result, our business and prospects would be materially adversely impacted. Furthermore, continuation
of our current Parkinson’s disease development program and the initiation of any additional programs will depend upon our receipt of the $50
million milestone payment and if such payment is not received or is significantly reduced our ability to fund any new product development
programs will be materially impaired.
FDA approval of Probuphine may be denied.
The FDA has targeted April 30, 2013 for FDA action on the Probuphine NDA that we submitted in October 2012. The FDA may deny
approval of Probuphine for many reasons, including:
•
•
•
•
we may be unable to demonstrate to the satisfaction of the FDA that Probuphine is safe and effective for the treatment of opioid
dependence in adults;
the FDA may disagree with our interpretation of data from non-clinical studies or clinical trials;
we may be unable to demonstrate that Probuphine’s clinical and other benefits outweigh any safety or other perceived risks; or
the FDA may fail to approve the manufacturing processes or facilities of the third-party manufacturers with which we have
contracted.
If Probuphine fails to receive FDA approval, our business and prospects will be materially adversely impacted.
The timing and amount of revenues from Probuphine, if any, will be wholly dependent on the efforts of third parties.
We have granted an exclusive license to Braeburn for the commercialization of Probuphine in the United States and Canada. If approved
by the FDA, Braeburn will be solely responsible for the marketing, manufacture and commercialization of Probuphine in the Territory and,
accordingly, the timing and amount of any royalty revenues or sales milestones we receive from this product will be wholly dependent upon
Braeburn’s ability to successfully launch and commercialize this product in the Territory. Braeburn is a recently formed company and does not
have a track record upon which investors can rely on making an investment decision. Additionaly, our ability to generate revenues in the
Territory from any additional indications for Probuphine, including chronic pain, depends on Braeburn’s ability to successfully develop,
obtain regulatory approvals for and commercialize the product for additional indications. We do not have control over the amount and timing
of resources that Braeburn will dedicate to these efforts, none of which have commenced to date. We will be similarly dependent on the
development, regulatory and marketing efforts of third parties with respect to revenues, if any, from sales of Probuphine outside the Territory.
To date, we have not entered into any collaborative arrangements or granted any rights with respect to Probuphine in the rest of the world.
12
If Probuphine or any other product candidate that we may successfully develop does not achieve broad market acceptance among
physicians, patients, healthcare payors and the medical community, the revenues that it generates from their sales will be limited.
Even if Probuphine or any other product candidate we may in the future develop receives regulatory approval, they may not gain market
acceptance among physicians, patients, healthcare payors and the medical community. Coverage and reimbursement of our product candidates
by third-party payors, including government payors, generally is also necessary for commercial success. The degree of market acceptance of
any approved products will depend on a number of factors, including:
•
•
•
•
•
•
•
•
•
•
the efficacy and safety as demonstrated in clinical trials;
the clinical indications for which the product is approved;
acceptance by physicians, operators of hospitals and clinics and patients of the product as a safe and effective product;
the potential and perceived advantages of the product over alternative treatments;
the safety of the product in broader patient groups, including its use outside of approved indications;
the cost of treatment in relation to alternative treatments;
the availability of adequate reimbursement and pricing by third parties and government authorities;
the prevalence and severity of adverse events;
the effectiveness of sales and marketing efforts; and
unfavorable publicity relating to the product.
If any product candidate is approved but does not achieve an adequate level of acceptance by physicians, hospitals and clinics, healthcare
payors and patients, we may not generate significant revenue from such products.
We must comply with extensive government regulations.
The research, development, manufacture labeling, storage, record-keeping, advertising, promotion, import, export, marketing and
distribution of pharmaceutical products are subject to an extensive regulatory approval process by the FDA in the U.S. and comparable health
authorities in foreign markets. The process of obtaining required regulatory approvals for drugs is lengthy, expensive and uncertain. Approval
policies or regulations may change and the FDA and foreign authorities have substantial discretion in the pharmaceutical approval process,
including the ability to delay, limit or deny approval of a product candidate for many reasons. Despite the time and expense invested in clinical
development of product candidates, regulatory approval is never guaranteed. Regulatory approval may entail limitations on the indicated usage
of a drug, which may reduce the drug’s market potential. Even if regulatory clearance is obtained, post-market evaluation of the products, if
required, could result in restrictions on a product’s marketing or withdrawal of the product from the market, as well as possible civil and
criminal sanctions. Of the large number of drugs in development, only a small percentage successfully complete the regulatory approval
process and are commercialized.
We are dependent upon key collaborative relationships and license agreements.
We will rely significantly on the resources of third parties to market and commercialize Probuphine, if approved, as well as any other
products we may develop. For example, our ability to ultimately derive revenues from Probuphine in the Territory is dependent upon Braeburn
implementing a successful marketing program for the treatment of opioid dependence in adults and pursuing development and
commercialization of the product for other indications. Beyond any contractual rights, we cannot control the amount or timing of resources that
any
13
existing or future corporate partner devotes to product development and commercialization efforts for our product candidates. We depend on
our ability to maintain existing collaborative relationships, to develop new collaborative relationships with third parties and potentially to
acquire or in-license additional products and technologies for the development of new product candidates.
Our dependence on third party collaborators and license agreements subjects us to a number of risks, including:
•
•
•
our collaborators may not comply with applicable regulatory guidelines with respect to developing or commercializing our
products, which could adversely impact sales or future development of our products;
we and our collaborators could disagree as to future development plans and our collaborators may delay, fail to commence or stop
future clinical trials or other development; and
there may be disputes between us and our collaborators, including disagreements regarding the license agreements, that may result
in the delay of or failure to achieve developmental, regulatory and commercial objectives that would result in milestone or royalty
payments and/or the delay or termination of any future development or commercialization of our products.
In addition, collaborators may, to the extent permitted by our agreements, develop products that divert resources from our products,
preclude us from entering into collaborations with their competitors or terminate their agreements with us prematurely. Moreover,
disagreements could arise with our collaborators or strategic partners over rights to our intellectual property and our rights to share in any of
the future revenues from products or technologies resulting from use of our technologies, or our activities in separate fields may conflict with
other business plans of our collaborators.
We face risks associated with third parties conducting preclinical studies and clinical trials of our products; as well as our dependence
on third parties to manufacture any products that we may successfully develop.
We depend on third-party laboratories and medical institutions to conduct preclinical studies and clinical trials for our products and other
third-party organizations to perform data collection and analysis, all of which must maintain both good laboratory and good clinical practices.
We also depend upon third party manufacturers for the production of any products we may successfully develop to comply with current Good
Manufacturing Practices of the FDA, which are similarly outside our direct control. If third party laboratories and medical institutions
conducting studies of our products fail to maintain both good laboratory and clinical practices, the studies could be delayed or have to be
repeated. Similarly, if the manufacturers of any products we develop in the future fail to comply with current Good Manufacturing Practices of
the FDA, we may be forced to cease manufacturing such product until we have found another third party to manufacture the product.
We face risks associated with product liability lawsuits that could be brought against us.
Our liability insurance coverage may not be sufficient to cover claims that may be made against us in the event that the use or misuse of
our product candidates causes, or merely appears to have caused, personal injury or death. Any claims against us, regardless of their merit,
could severely harm our financial condition, strain our management and other resources or destroy the prospects for commercialization of the
product which is the subject of any such claim.
We may be unable to protect our patents and proprietary rights.
Our future success will depend to a significant extent on our ability to:
•
•
obtain and keep patent protection for our products and technologies on an international basis;
enforce our patents to prevent others from using our inventions;
14
•
•
maintain and prevent others from using our trade secrets; and
operate and commercialize products without infringing on the patents or proprietary rights of others.
We cannot assure you that our patent rights will afford any competitive advantages, and these rights may be challenged or circumvented
by third parties. Further, patents may not be issued on any of our pending patent applications in the U.S. or abroad. Because of the extensive
time required for development, testing and regulatory review of a potential product, it is possible that before a potential product can be
commercialized, any related patent may expire or remain in existence for only a short period following commercialization, reducing or
eliminating any advantage of the patent. If we sue others for infringing our patents, a court may determine that such patents are invalid or
unenforceable. Even if the validity of our patent rights is upheld by a court, a court may not prevent the alleged infringement of our patent
rights on the grounds that such activity is not covered by our patent claims.
In addition, third parties may sue us for infringing their patents. In the event of a successful claim of infringement against us, we may be
required to:
•
•
•
•
•
pay substantial damages;
stop using our technologies and methods;
stop certain research and development efforts;
develop non-infringing products or methods; and
obtain one or more licenses from third parties.
If required, we cannot assure you that we will be able to obtain such licenses on acceptable terms, or at all. If we are sued for
infringement, we could encounter substantial delays in development, manufacture and commercialization of our product candidates. Any
litigation, whether to enforce our patent rights or to defend against allegations that we infringe third party rights, will be costly, time
consuming, and may distract management from other important tasks.
We also rely in our business on trade secrets, know-how and other proprietary information. We seek to protect this information, in part,
through the use of confidentiality agreements with employees, consultants, advisors and others. Nonetheless, we cannot assure you that those
agreements will provide adequate protection for our trade secrets, know-how or other proprietary information and prevent their unauthorized
use or disclosure. To the extent that consultants, key employees or other third parties apply technological information independently developed
by them or by others to our proposed products, disputes may arise as to the proprietary rights to such information, which may not be resolved
in our favor.
We face intense competition.
Competition in the pharmaceutical and biotechnology industries is intense. We face, and will continue to face, competition from
numerous companies that currently market, or are developing, products for the treatment of the diseases and disorders we have targeted. Many
of these entities have significantly greater research and development capabilities, experience in obtaining regulatory approvals and
manufacturing, marketing, financial and managerial resources than we have. We also compete with universities and other research institutions
in the development of products, technologies and processes, as well as the recruitment of highly qualified personnel. Our competitors may
succeed in developing technologies or products that are more effective than the ones we have under development or that render our proposed
products or technologies noncompetitive or obsolete. In addition, our competitors may achieve product commercialization or patent protection
earlier than we will.
Healthcare reform and restrictions on reimbursements may limit our financial returns.
Braeburn’s ability to commercialize Probuphine in the Territory and our ability or the ability of any future collaborators to commercialize
Probuphine outside the Territory or to commercialize any other products we may
15
successfully develop will depend in part on the extent to which government health administration authorities, private health insurers and other
organizations will reimburse consumers for the cost of these products. These third parties are increasingly challenging both the need for and
the price of new drug products. Significant uncertainty exists as to the reimbursement status of newly approved therapeutics. Adequate third
party reimbursement may not be available for our own or our collaborator’s drug products to enable us or them to maintain price levels
sufficient to realize an appropriate return on their and our investments in research and product development.
We may not be able to retain our key management and scientific personnel.
As a company with a limited number of personnel, we are highly dependent on the services of our executive management and scientific
staff, in particular Sunil Bhonsle and Marc Rubin, our President and Executive Chairman, respectively, and our Executive Vice President and
Chief Development Officer, all of whom are parties to employment agreements with us. The loss of one or more of such individuals could
substantially impair ongoing research and development programs and could hinder our ability to obtain corporate partners. Our success
depends in large part upon our ability to attract and retain highly qualified personnel. We compete in our hiring efforts with other
pharmaceutical and biotechnology companies, as well as universities and nonprofit research organizations, and we may not be successful in
our efforts to attract and retain personnel.
Our stock price has been and will likely continue to be volatile.
Our stock price has experienced substantial fluctuations and could continue to fluctuate significantly due to a number of factors,
including:
•
•
•
•
•
•
•
variations in our anticipated or actual operating results or prospects;
sales of substantial amounts of our common stock;
announcements about us or about our competitors, including introductions of new products;
litigation and other developments relating to our patents or other proprietary rights or those of our competitors;
conditions in the pharmaceutical or biotechnology industries;
governmental regulation and legislation; and
change in securities analysts’ estimates of our performance, or our failure to meet analysts’ expectations.
Our common stock is deemed to be a “penny stock,” which may make it more difficult for investors to sell their shares due to suitability
requirements.
Our common stock is subject to Rule 15g-1 through 15g-9 under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), which imposes certain sales practice requirements on broker-dealers which sell our common stock to persons other than established
customers and “accredited investors” (generally, individuals with a net worth in excess of $1,000,000 or annual incomes exceeding $200,000
(or $300,000 together with their spouses)). For transactions covered by this rule, a broker-dealer must make a special suitability determination
for the purchaser and have received the purchaser’s written consent to the transaction prior to the sale. This rule adversely affects the ability of
broker-dealers to sell our common stock and the ability of our stockholders to sell their shares of common stock.
Additionally, our common stock is subject to the SEC regulations for “penny stock.” Penny stock includes any equity security that is not
listed on a national exchange and has a market price of less than $5.00 per share, subject to certain exceptions. The regulations require that
prior to any non-exempt buy/sell transaction in a penny stock, a disclosure schedule set forth by the SEC relating to the penny stock market
must be delivered to the
16
purchaser of such penny stock. This disclosure must include the amount of commissions payable to both the broker-dealer and the registered
representative and current price quotations for the common stock. The regulations also require that monthly statements be sent to holders of
penny stock that disclose recent price information for the penny stock and information of the limited market for penny stocks. These
requirements adversely affect the market liquidity of our common stock.
Our net operating losses and research and development tax credits may not be available to reduce future federal and state income tax
payments.
At December 31, 2012, we had federal net operating loss and tax credit carryforwards of $215.7 million and $7.6 million, respectively,
and state net operating loss and tax credit carryforwards of $146.7 million and $7.8 million, respectively, available to offset future taxable
income, if any. Current federal and state tax laws include substantial restrictions on the utilization of net operating loss and tax credits in the
event of an ownership change and we cannot assure you that our net operating loss and tax carryforwards will continue to be available.
17
Item 2.
Properties
Our executive offices are located in approximately 9,255 square feet of office space in South San Francisco, California that we occupy
under a three-year operating lease expiring in June 2013. It is our intention to renew this lease for a multi-year period prior to June 2013, and
continue to be based in South San Francisco.
Item 3.
Legal Proceedings
We are currently not a party to any material legal or administrative proceedings and are not aware of any pending or threatened legal or
administrative proceedings against us.
18
PART II
Item 5.
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
(a) Price Range of Securities
Since June 2, 2010, our common stock has been quoted on the OTC Bulletin Board under the symbol TTNP.OB. The following table
sets forth, for the periods indicated, the high and low sales prices per share of our common stock as reported by the OTC Bulletin Board. The
quotations reflect inter-dealer prices without retail markups, markdowns, or commissions and may not represent actual transactions. For
current price information, stockholders are urged to consult publicly available sources.
Fiscal 2012
Fourth Quarter
Third Quarter
Second Quarter
First Quarter
Fiscal 2011
Fourth Quarter
Third Quarter
Second Quarter
First Quarter
High
Low
$1.23
$1.05
$1.13
$1.40
$1.78
$2.08
$2.22
$1.81
$0.76
$0.65
$0.65
$1.05
$1.06
$1.30
$1.30
$1.17
(b) Approximate Number of Equity Security Holders
As of March 15, 2013, there were approximately 141 record holders of our common stock.
(c) Dividends
We have never paid a cash dividend on our common stock and anticipate that for the foreseeable future any earnings will be retained for
use in our business and, accordingly, do not anticipate the payment of cash dividends.
19
Performance Graph
The information contained in the Performance Graph shall not be deemed to be “soliciting material” or “filed” with the SEC or
subject to the liabilities of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), except to the extent that we
specifically incorporate it by reference into a document filed under the Securities Act of 1933, as amended (the “Securities Act”), or the
Exchange Act.
The following graph compares the cumulative total stockholder return on our common stock with the cumulative total stockholder return
of (i) the NYSE MKT Index, and (ii) a peer group index consisting of companies reporting under the Standard Industrial Classification Code
2834 (Pharmaceutical Preparations). The graph assumes $100 invested on December 31, 2007 and assumes dividends reinvested.
Measurement points are at the last trading day of the fiscal years ended December 31, 2008, 2009, 2010, 2011 and 2012. The stock price
performance on the following graph is not necessarily indicative of future stock price performance.
COMPARE CUMULATIVE TOTAL RETURN
AMONG TITAN PHARMACEUTICALS, INC., NYSE MKT INDEX AND
SIC CODE INDEX
20
Item 6.
Selected Financial Data.
The selected financial data presented below summarizes certain financial data which has been derived from and should be read in
conjunction with our consolidated financial statements and notes thereto included in the section beginning on page F-1. See also “Item 7.
Management’s Discussion and Analysis of Financial Condition and Results of Operations.”
Statement of Operations Data:
Total revenue
Operating expenses:
Research and development
General and administrative
Other income (expense), net
Net loss
Gain on retirement of preferred stock upon dissolution of
subsidiary
Net loss applicable to common stockholders
Basic and diluted net loss per common share
Shares used in computing:
2012
Years Ended December 31,
2011
2009
2010
(in thousands, except per share data)
2008
$ 7,117
$ 4,068
$10,093
$
79
$
73
10,610
4,877
(6,810)
(15,180)
11,206
3,368
(4,697)
(15,203)
12,855
3,263
(809)
(6,834)
2,456
3,438
(71)
(5,886)
16,235
9,756
484
(25,434)
—
$(15,180)
(0.23)
$
—
$(15,203)
(0.26)
$
1,241
$ (5,593)
$ (0.09)
—
$ (5,886)
$ (0.10)
—
$(25,434)
(0.44)
$
Basic and diluted net loss per common share
66,509
59,324
59,248
58,473
58,285
Balance Sheet Data:
Cash
Working capital (deficit)
Total assets
Total stockholders’ (deficit) equity
2012
2011
As of December 31,
2010
(in thousands)
2009
2008
$ 18,102
2,042
24,827
(23,128)
$ 5,406
4,839
10,217
(20,079)
$ 3,180
(706)
4,752
(6,053)
$ 3,300
2,069
3,726
(1,448)
$ 4,672
2,759
5,668
1,793
21
Item 7.
Management’s Discussion and Analysis of Financial Condition and Results of Operations.
Forward-Looking Statements
Statements in the following discussion and throughout this report that are not historical in nature are “forward-looking statements”
within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. You can identify forward-looking statements
by the use of words such as “expect,” “anticipate,” “estimate,” “may,” “will,” “should,” “intend,” “believe,” and similar expressions. Although
we believe the expectations reflected in these forward-looking statements are reasonable, such statements are inherently subject to risk and we
can give no assurances that our expectations will prove to be correct. Actual results could differ from those described in this report because of
numerous factors, many of which are beyond our control. These factors include, without limitation, those described under Item 1A “Risk
Factors.” We undertake no obligation to update these forward-looking statements to reflect events or circumstances after the date of this report
or to reflect actual outcomes. Please see “Note Regarding Forward-Looking Statements” at the beginning of this Annual Report on Form 10-
K.
The following discussion of our financial condition and results of operations should be read in conjunction with our consolidated
financial statements and the related notes thereto and other financial information appearing elsewhere in this Annual Report on Form 10-K.
Overview
We are a biopharmaceutical company developing proprietary therapeutics for the treatment of serious medical disorders. Our product
development programs focus primarily on important pharmaceutical markets with significant unmet medical needs and commercial potential.
We are directly developing our product candidates and also utilize corporate, academic and government partnerships as appropriate. Such
collaborations have helped to fund product development and have enabled us to retain significant economic interest in our products.
Our principal asset is Probuphine , the first slow release implant formulation of buprenorphine, designed to maintain a stable, around the
®
clock blood level of the medicine in patients for six months following a single treatment. The clinical and manufacturing development of
Probuphine for the treatment of opioid dependence in adult patients is complete. The NDA seeking approval for treatment of opioid
dependence has been accepted by the FDA for a Priority Review. Priority Review designation is given to therapies that offer potential major
advances in treatment, including improved safety, or provide a treatment where no adequate therapy exists. Based upon the PDUFA, the FDA
has set a target date of April 30, 2013 for FDA action on the NDA. An FDA advisory committee review has been scheduled for March 21,
2013.
In December 2012, we entered into a license agreement with Braeburn that grants Braeburn exclusive commercialization rights to
®
Probuphine in the United States and Canada. We received a non-refundable up-front license fee of $15.75 million (approximately $15.0
million, net of expenses) and will receive a $50 million milestone payment upon the approval of the NDA by the FDA. Additionally, we will
be eligible to receive up to $130 million upon achievement of specified sales milestones and up to $35 million in regulatory milestones in the
event of future NDA submissions and approvals for additional indications, including chronic pain. We will receive tiered royalties on net sales
of Probuphine ranging from the mid-teens to the low twenties. In addition to the potential milestone payments, Apple Tree Partners IV,
Braeburn’s parent company, has allocated in excess of $75 million to launch, commercialize and continue the development of Probuphine.
Probuphine is the first product to utilize ProNeura™, our novel, proprietary, continuous drug delivery technology. Our ProNeura
technology has the potential to be used in developing products for the treatment of other chronic conditions, such as Parkinson’s disease,
where maintaining stable, around the clock blood levels of a drug can benefit the patient and improve medical outcomes.
Under a sublicense agreement with Novartis, we are entitled to royalty revenue of 8-10% of net sales of Fanapt (iloperidone), an
®
atypical antipsychotic compound being marketed in the U.S. by Novartis for the
22
treatment of schizophrenia, based on a licensed U.S. patent that expires in October 2016 (excluding the potential of a six month pediatric
extension). We have entered into several agreements with Deerfield, a healthcare investment fund, which entitle Deerfield to most of the future
royalty revenues related to Fanapt in exchange for cash and debt considerations, the proceeds from which we have been using to advance the
development of Probuphine and for general corporate purposes. We have retained a portion of the royalty revenue from the net sales of Fanapt
in excess of specified annual threshold levels; however, based on sales levels to date, it is unlikely that we will receive any revenue from
Fanapt in the next several years, if ever.
Critical Accounting Policies and the Use of Estimates
The preparation of our financial statements in conformity with accounting principles generally accepted in the United States requires
management to make estimates and assumptions that affect the amounts reported in our consolidated financial statements and accompanying
notes. Actual results could differ materially from those estimates. We believe the following accounting policies for the years ended
December 31, 2012 and 2011 to be applicable:
Revenue Recognition
We generate revenue principally from royalty payments, collaborative research and development arrangements, technology licenses, and
government grants. Consideration received for revenue arrangements with multiple components is allocated among the separate units of
accounting based on their respective selling prices. The selling price for each unit is based on vendor-specific objective evidence, or VSOE, if
available, third party evidence if VSOE is not available, or estimated selling price if neither VSOE nor third party evidence is available. The
applicable revenue recognition criteria are then applied to each of the units.
Revenue is recognized when the four basic criteria of revenue recognition are met: (1) a contractual agreement exists; (2) transfer of
technology has been completed or services have been rendered; (3) the fee is fixed or determinable; and (4) collectibility is reasonably assured.
For each source of revenue, we comply with the above revenue recognition criteria in the following manner:
•
•
Royalties earned are based on third-party sales of licensed products and are recorded in accordance with contract terms when third-
party results are reliably measurable and collectibility is reasonably assured. Pursuant to certain license agreements, we earn
royalties on the sale of Fanapt
on such sales to Sanofi-Aventis and Deerfield. As we have no performance obligations under the license agreements, we have
recorded the royalties earned, net of royalties we are obligated to pay, as revenue in our Consolidated Statement of Operations.
by Novartis in the U.S. As described in Note 8, Royalty Liability, we are obligated to pay royalties
™
Collaborative arrangements typically consist of non-refundable and/or exclusive technology access fees, cost reimbursements for
specific research and development spending, and various milestone and future product royalty payments. If the delivered
technology does not have stand-alone value or if we do not have objective or reliable evidence of the fair value of the undelivered
component, the amount of revenue allocable to the delivered technology is deferred. Non-refundable upfront fees with stand-alone
value that are not dependent on future performance under these agreements are recognized as revenue when received, and are
deferred if we have continuing performance obligations and have no evidence of fair value of those obligations. Cost
reimbursements for research and development spending are recognized when the related costs are incurred and when collections are
reasonably expected. Payments received related to substantive, performance-based “at-risk” milestones are recognized as revenue
upon achievement of the clinical success or regulatory event specified in the underlying contracts, which represent the culmination
of the earnings process. Amounts received in advance are recorded as deferred revenue until the technology is transferred, costs are
incurred, or a milestone is reached.
23
•
•
Technology license agreements typically consist of non-refundable upfront license fees, annual minimum access fees or royalty
payments. Non-refundable upfront license fees and annual minimum payments received with separable stand-alone values are
recognized when the technology is transferred or accessed, provided that the technology transferred or accessed is not dependent on
the outcome of our continuing research and development efforts.
Government grants, which support our research efforts in specific projects, generally provide for reimbursement of approved costs
as defined in the notices of grants. Grant revenue is recognized when associated project costs are incurred.
Share-Based Payments
We recognize compensation expense for all share-based awards made to employees and directors. The fair value of share-based awards
is estimated at the grant date based on the fair value of the award and is recognized as expense, net of estimated pre-vesting forfeitures, ratably
over the vesting period of the award. We use the Black-Scholes option pricing model to estimate the fair value method of our awards.
Calculating stock-based compensation expense requires the input of highly subjective assumptions, including the expected term of the share-
based awards, stock price volatility, and pre-vesting forfeitures. We estimate the expected term of stock options granted for the years ended
December 31, 2012, 2011 and 2010 based on the historical experience of similar awards, giving consideration to the contractual terms of the
share-based awards, vesting schedules and the expectations of future employee behavior. We estimate the volatility of our common stock at the
date of grant based on the historical volatility of our common stock. The assumptions used in calculating the fair value of stock-based awards
represent our best estimates, but these estimates involve inherent uncertainties and the application of management judgment. As a result, if
factors change and we use different assumptions, our stock-based compensation expense could be materially different in the future. In
addition, we are required to estimate the expected pre-vesting forfeiture rate and only recognize expense for those shares expected to vest. We
estimate the pre-vesting forfeiture rate based on historical experience. If our actual forfeiture rate is materially different from our estimate, our
stock-based compensation expense could be significantly different from what we have recorded in the current period.
Income Taxes
We make certain estimates and judgments in determining income tax expense for financial statement purposes. These estimates and
judgments occur in the calculation of certain tax assets and liabilities, which arise from differences in the timing of recognition of revenue and
expense for tax and financial statement purposes.
As part of the process of preparing our consolidated financial statements, we are required to estimate our income taxes in each of the
jurisdictions in which we operate. This process involves us estimating our current tax exposure under the most recent tax laws and assessing
temporary differences resulting from differing treatment of items for tax and accounting purposes.
We assess the likelihood that we will be able to recover our deferred tax assets. We consider all available evidence, both positive and
negative, expectations and risks associated with estimates of future taxable income and ongoing prudent and feasible tax planning strategies in
assessing the need for a valuation allowance. If it is not more likely than not that we will recover our deferred tax assets, we will increase our
provision for taxes by recording a valuation allowance against the deferred tax assets that we estimate will not ultimately be recoverable.
Clinical Trial Accrual
We also record accruals for estimated ongoing clinical trial costs. Clinical trial costs represent costs incurred by clinical research
organizations, (“CROs”), and clinical sites. These costs are recorded as a component of research and development expenses. Under our
agreements, progress payments are typically made to
24
investigators, clinical sites and CROs. We analyze the progress of the clinical trials, including levels of patient enrollment, invoices received
and contracted costs when evaluating the adequacy of accrued liabilities. Significant judgments and estimates must be made and used in
determining the accrued balance in any accounting period. Actual results could differ from those estimates under different assumptions.
Revisions are charged to expense in the period in which the facts that give rise to the revision become known. The actual clinical trial costs for
the Probuphine studies conducted in the past three years have not differed materially from the estimated projection of expenses.
Warrants Issued in Connection with Equity Financing
We generally account for warrants issued in connection with equity financings as a component of equity, unless there is a deemed
possibility that we may have to settle warrants in cash. For warrants issued with deemed possibility of cash settlement, we record the fair value
of the issued warrants as a liability at each reporting period and record changes in the estimated fair value as a non-cash gain or loss in the
Condensed Consolidated Statements of Operations and Comprehensive Loss.
Liquidity and Capital Resources
As of December 31:
Cash
Working capital
Current ratio
Years Ended December 31:
Cash (used in) provided by operating activities
Cash used in investing activities
Cash provided by financing activities
2012
2011
(in thousands)
2010
$18,102
$ 2,042
1.1:1
$ 5,406
$ 4,839
1.9:1
$ 3,180
$ (706)
0.9:1
$ 1,830
$ (1,154)
$12,020
$(14,476)
$
(234)
$ 16,936
$(4,657)
$
(28)
$ 4,565
We have funded our operations since inception primarily through sales of our debt and equity securities, as well as with proceeds from
warrant and option exercises, corporate licensing and collaborative agreements, and government-sponsored research. At December 31, 2012,
we had approximately $18.1 million of cash compared to approximately $5.4 million at December 31, 2011.
Our operating activities provided approximately $1.8 million during the year ended December 31, 2012. This consisted primarily of the
net loss for the period of approximately $15.2 million, approximately $0.3 million related to the non-cash interest expense on our royalty
liability and approximately $1.4 million related to net changes in operating assets and liabilities. This was offset in part by approximately $14.4
million related to deferred revenue in connection with the license agreement with Braeburn, approximately $1.8 million related to net non-cash
losses on changes in the fair value of warrants, non-cash charges of approximately $17,000 related to depreciation, and approximately $2.6
million related to stock-based compensation expenses. Uses of cash in operating activities were primarily to fund product development
programs and administrative expenses. The license agreement with Sanofi-Aventis require us to pay royalties on future product sales. In
addition, in order to maintain license and other rights while products are under development, we must comply with customary licensee
obligations, including the payment of patent-related costs, annual minimum license fees, meeting project-funding milestones and diligent
efforts in product development. The aggregate commitments we have under these agreements, including minimum license payments, for the
next 12 months is approximately $3,000. See “Item 1. Business—License Agreements.”
Net cash used in investing activities of approximately $1.2 million during the year ended December 31, 2012 primarily related to
purchases of equipment.
25
Net cash provided by financing activities of approximately $12.0 million during the year ended December 31, 2012 consisted of
approximately $7.5 million of net proceeds from the sale of common stock and warrants, net of issuance costs and $4.9 million of net
proceeds from the exercise of warrants to purchase common stock. This was offset in part by payments of approximately $0.4 million related
to payments on our long-term debt.
On March 15, 2011, we entered into several agreements with entities affiliated with Deerfield pursuant to which Deerfield agreed to
provide $20.0 million in funding to us. Funding occurred on April 5, 2011. Pursuant to the terms of a facility agreement, we issued Deerfield
8.5% promissory notes in the aggregate principal amount of $20.0 million. We paid Deerfield a facility fee of $0.5 million and issued them
warrants to purchase 6,000,000 shares of our common stock (the “Deerfield Warrants”). Deerfield has the right to have the long-term debt
repaid at 110% of the principal amount in the event we complete a major transaction, which includes, but is not limited to, a merger or sale of
our company or the sale of Fanapt or Probuphine. Under a royalty agreement, in exchange for $3.0 million that was recorded as royalty
liability, we agreed to pay Deerfield 2.5% of the aggregate royalties on net sales of Fanapt, subsequent to the funding date, constituting a
portion of the royalty revenue we receive from Novartis. The agreements with Deerfield also provide us with the option to repurchase the
royalty rights for $40.0 million.
On April 5, 2011, we used approximately $7.6 million of proceeds from the Deerfield funding to repay Oxford Financing Corporation
in full, including required final payments aggregating $480,000.
On November 14, 2011, we entered into several agreements with Deerfield pursuant to which we agreed to pay them a substantial
portion of the remaining future royalties on the sales of Fanapt in exchange for $5.0 million in cash that was recorded as royalty liability, a
$10.0 million reduction in the principal amount owed to Deerfield under the existing facility agreement and a revised principal repayment
schedule of $2.5 million per year for four years commencing in April 2013 to retire the remaining long-term debt of $10.0 million. Deerfield is
entitled to the balance of our portion of the royalties on Fanapt (5.5% to 7.5% of net sales, net of the 2.5% we previously agreed to pay to
Deerfield) up to specified threshold levels of net sales of Fanapt and 40% of the royalties above the threshold level. We retain 60% of the
royalties on net sales of Fanapt above the threshold levels, subject to an agreement that half of any such retained royalties will go towards
repayment of our outstanding debt to Deerfield. Funding of the transaction took place on November 25, 2011.
In February 2013, we amended the terms of the Deerfield Warrants, which are currently exercisable at $1.25 per share, to permit
payment of the exercise price through the reduction of the outstanding loan. In February and March 2013, Deerfield exercised an aggregate of
6,000,000 warrants resulting in a reduction of our outstanding indebtedness to Deerfield of $7.5 million and, accordingly, the Deerfield debt
will be fully repaid upon payment of $2.5 million in April 2013.
On April 9, 2012, we entered into subscription agreements with certain institutional investors for the purchase and sale, in a registered
direct offering, of (i) 6,517,648 shares of our common stock (the “Shares”), (ii) six-year warrants to purchase 6,517,648 shares of common
stock (the “Series A Warrants”) and (iii) six-month warrants to purchase 6,517,648 shares of common stock (the “Series B Warrants” and,
together with the Series A Warrants, the “Warrants”) for gross proceeds of $5,540,000. The closing of the sale of the Shares and Warrants
occurred on April 13, 2012 and April 18, 2012. Net proceeds were approximately $5.0 million. Prior to their expiration, Series B Warrants to
purchase 5,761,765 shares of our common stock were exercised resulting in gross proceeds to us of approximately $4.9 million.
On September 12, 2012, we entered into a stock purchase and option agreement with an affiliate of Braeburn pursuant to which we sold
3,400,000 shares of our common stock for an aggregate purchase price of $4.25 million, or $1.25 per share, and agreed to an exclusive option
period for execution of the proposed license agreement.
26
On December 13, 2012, we entered into a license agreement with Braeburn pursuant to which we granted Braeburn an exclusive right
®
and license to commercialize Probuphine in the Territory. We will retain all of the rights to Probuphine outside the Territory. In
consideration of the rights granted to Braeburn under the license agreement, Braeburn paid to us an upfront, non-refundable license fee of
$15.75 million (approximately $15.0 million, net of expenses). Upon FDA approval of the NDA for Probuphine , Braeburn will be required
to make a $50 million milestone payment to us and ownership of the NDA will transfer to Braeburn. We are also eligible to receive up to an
additional $130 million upon the achievement of specified sales milestones and up to $35 million in regulatory milestones. Braeburn will also
pay us tiered royalties ranging from the mid-teens to the low twenties.
®
®
We believe that our working capital at December 31, 2012, together with the FDA’s reimbursement of the NDA filing fee, is sufficient
to fund our planned operations through June 2014. In the event that the FDA issues a complete response letter requiring us to conduct
additional clinical studies that would require expenditures in excess of certain amounts specified in our agreement with Braeburn, Braeburn
will have the right to either terminate the agreement or reduce the amount of the $50 million milestone payment payble to us in the event the
FDA ultimately approves Probuphine. If Braeburn were to terminate the agreement, we would not have sufficient funds available to us to
complete the FDA approval process and commercialize Probuphine and, as a result, our business and prospects would be materially adversely
impacted. Furthermore, continuation of our current Parkinson’s disease development program and the initiation of any additional programs
will depend upon our receipt of the $50 million milestone payment and if such payment is not received or is significantly reduced our ability to
fund any new product development programs will be materially impaired and we may need to obtain additional financing, either through the
sale of debt or equity securities, to continue our Probuphine program and other product development activities. If we are unable to complete a
debt or equity offering, or otherwise obtain sufficient financing when and if needed, we may be required to reduce, defer or discontinue one or
more of our product development activities.
The following table sets forth the aggregate contractual cash obligations as of December 31, 2012 (in thousands):
Contractual obligations
Operating leases
Debt obligation(1)
Total contractual cash obligations
Payments Due by Period
Total
$
121
11,771
$11,892
< 1 year
$ 121
3,262
$3,383
1-3 years
$ —
5,885
$ 5,885
3-5 years
$ —
2,624
$ 2,624
5 years+
$ —
—
$ —
(1) Excludes payments related to the royalty liability with Deerfield under the March 2011 and November 2011 Royalty Agreements.
Results of Operations
Year Ended December 31, 2012 Compared to Year Ended December 31, 2011
Our net loss applicable to common stockholders for 2012 was approximately $15.2 million, or approximately $0.23 per share, compared
to our net loss applicable to common stockholders of approximately $15.2 million, or approximately $0.26 per share, for 2011. Our net loss
for 2012 includes a non-cash loss of approximately $1.8 million resulting from increases in the fair value of warrants issued as part of the
March 2011 Deerfield transaction and the April 2012 financing transaction.
We generated royalty revenues during 2012 of approximately $4.8 million compared to approximately $3.6 million during 2011. We
generated grant revenues during 2012 of approximately $42,000 compared to approximately $0.5 million during 2011. We generated licensing
revenues of approximately $2.3 million during 2012. The licensing revenue consisted of approximately $1.7 million related to the premium
paid on our common
27
stock as part of the September 2012 stock purchase and option agreement with an affiliate of Braeburn and approximately $0.6 million related
to the amortization of the non-refundable up-front license fee of $15.75 million (approximately $15.0 million, net of expenses) related to our
licensing agreement with Braeburn. There were no revenues from licensing agreements in 2011. Royalty revenues during 2012 and 2011
consisted of royalties on sales of Fanapt. Grant revenues during 2012 and 2011 consisted of proceeds from NIH grants related to our
Probuphine and ProNeura related programs.
Research and development expenses for 2012 were approximately $10.6 million compared to approximately $11.2 million in 2011, a
decrease of approximately $0.6 million, or 5%. The decrease in research and development costs was primarily associated with a decrease in
external research and development expenses related to the Phase 3 clinical trials of our Probuphine product which were completed in 2011.
This was offset by expenses related to the preparation and submission of an NDA for a Probuphine product with the FDA in October 2012.
External research and development expenses include direct expenses such as clinical research organization charges, investigator and review
board fees, patient expense reimbursements and contract manufacturing expenses. During 2012, our external research and development
expenses relating to our Probuphine product development program were approximately $5.4 million compared to approximately $7.7 million
for 2011. Other research and development expenses include internal operating costs such as clinical research and development personnel-
related expenses, clinical trials-related travel expenses, and allocation of facility and corporate costs. As a result of the risks and uncertainties
inherently associated with pharmaceutical research and development activities described elsewhere in this report, we are unable to estimate the
specific timing and future costs of our clinical development programs or the timing of material cash inflows, if any, from our products or
product candidates.
General and administrative expenses for 2012 were approximately $4.9 million, compared to approximately $3.4 million in 2011, an
increase of approximately $1.5 million, or 44%. The increase in general and administrative expenses was primarily related to increases in non-
cash stock compensation costs of approximately $0.8 million, employee-related costs of approximately $0.3 million, consulting and
professional fees of approximately $0.3 million, fees paid to members of our board of Directors of approximately $0.1 million and facilities-
related costs of approximately $0.1 million. This was offset in part by decreases in travel-related costs of approximately $0.1 million.
Net other expense for 2012 was approximately $6.8 million, compared to approximately $4.7 million in 2011. The increase in net other
expense during 2012 was primarily related to interest expense, net of approximately $4.9 million on the Deerfield long-term debt and a $1.8
million non-cash loss related to increases in the fair value of the warrants issued to Deerfield and the warrants issued as part of the April 2012
financing transaction.
Year Ended December 31, 2011 Compared to Year Ended December 31, 2010
Our net loss applicable to common stockholders for 2011 was approximately $15.2 million, or approximately $0.26 per share, compared
to our net loss applicable to common stockholders of approximately $5.6 million, or approximately $0.09 per share, for 2010. Our net loss for
2011 includes a non-cash gain of $1.9 million resulting from changes in the fair value of warrants issued as part of the March 2011 Deerfield
transaction.
We generated royalty revenues during 2011 of approximately $3.6 million compared to approximately $2.5 million during 2010. We
generated grant revenues during 2011 of approximately $0.5 million compared to approximately $7.6 million during 2010. We generated no
revenues from licensing agreements in 2011 compared to approximately $24,000 during 2010. Royalty revenues during 2011 and 2010
consisted of royalties on sales of Fanapt. Grant revenues during 2011 and 2010 consisted of proceeds from the NIH grants related to our
Probuphine and ProNeura related programs.
28
Research and development expenses for 2011 were approximately $11.2 million compared to approximately $12.9 million in 2010, a
decrease of approximately $1.7 million, or 13%. The decrease in research and development costs was primarily associated with a decrease in
external research and development expenses related to the Phase 3 clinical trials of our Probuphine product which were completed in 2011.
External research and development expenses include direct expenses such as clinical research organization charges, investigator and review
board fees, patient expense reimbursements and contract manufacturing expenses. During 2011, our external research and development
expenses relating to our Probuphine product development program were approximately $7.7 million compared to approximately $10.1 million
for 2010. Other research and development expenses include internal operating costs such as clinical research and development personnel-
related expenses, clinical trials-related travel expenses, and allocation of facility and corporate costs. As a result of the risks and uncertainties
inherently associated with pharmaceutical research and development activities described elsewhere in this report, we are unable to estimate the
specific timing and future costs of our clinical development programs or the timing of material cash inflows, if any, from our products or
product candidates.
General and administrative expenses for 2011 were approximately $3.4 million, compared to approximately $3.3 million in 2010, an
increase of approximately $0.1 million, or 3%. The increase in general and administrative expenses was primarily related to increases in non-
cash stock compensation costs of approximately $0.3 million, employee-related costs of approximately $0.3 million, marketing-related costs of
approximately $0.2 million . This was offset in part by decreases in legal fees of approximately $0.3 million, consulting and professional fees
of approximately $0.3 million, and facilities-related costs of $0.1 million.
Net other expense for 2011 was approximately $4.7 million, compared to approximately $0.8 million in 2010. The increase in net other
expense during 2011 was primarily related to interest expense of approximately $6.2 million on the Deerfield long-term debt and $0.2 million
of interest expense related to the Oxford loans. This was offset in part by a $1.9 million non-cash gain related to decreases in the fair value of
the Deerfield warrants.
Year Ended December 31, 2010 Compared to Year Ended December 31, 2009
Our net loss applicable to common stockholders for 2010 was approximately $5.6 million, or approximately $0.09 per share, compared
to our net loss applicable to common stockholders of approximately $5.9 million, or approximately $0.10 per share, for 2009. Our net loss for
2010 includes a non-cash gain of $1.2 million resulting from the retirement of preferred stock upon dissolution of Ingenex, Inc., our majority-
owned subsidiary.
We generated royalty revenues during 2010 of approximately $2.5 million. We had no royalty revenue during 2009. We generated grant
revenues during 2010 of approximately $7.6 million. We had no grant revenue during 2009. We generated revenues of $24,000 from licensing
agreements in 2010 compared to approximately $79,000 during 2009. Royalty revenues during 2010 consisted of royalties on sales of Fanapt.
Grant revenues during 2010 consisted of proceeds from the NIH grants related to our Probuphine and ProNeura related programs.
Research and development expenses for 2010 were approximately $12.9 million compared to approximately $2.5 million in 2009, an
increase of approximately $10.4 million, or 416%. The increase in research and development costs was primarily associated with an increase
in external research and development expenses related to the initiation and ongoing expenses of the Phase 3 clinical trials related to our
Probuphine product. External research and development expenses include direct expenses such as clinical research organization charges,
investigator and review board fees, patient expense reimbursements and contract manufacturing expenses. During 2010, our external research
and development expenses relating to our Probuphine product development program were approximately $10.1 million compared to
approximately $0.7 million for 2009. Other research and development expenses include internal operating costs such as clinical research and
development personnel-related expenses, clinical trials-related travel expenses, and allocation of facility and corporate costs. As a result of the
risks and uncertainties inherently associated with pharmaceutical research and development
29
activities described elsewhere in this report, we are unable to estimate the specific timing and future costs of our clinical development programs
or the timing of material cash inflows, if any, from our products or product candidates.
General and administrative expenses for 2010 were approximately $3.3 million, compared to approximately $3.4 million in 2009, a
decrease of approximately $0.1 million, or 3%. The decrease in general and administrative expenses was primarily related to decreases in non-
cash stock compensation costs of approximately $0.7 million and facilities-related costs of $0.5 million. This was offset in part by increases in
employee-related costs of approximately $0.2 million, legal fees of approximately $0.5 million, and consulting and professional fees of
approximately $0.3 million.
Net other expense for 2010 was approximately $0.8 million compared to approximately $71,000 in 2009. Net other expense in 2010
consisted primarily of interest expense of approximately $0.7 million and loan fees of approximately $0.1 million resulting from our loans
with Oxford and tax-related expenses of approximately $6,000. Net other expense in 2009 consisted primarily of financing-related expenses
of approximately $60,000, interest expense of approximately $9,000 and tax-related expenses of approximately $10,000 offset by interest
income of approximately $2,000 and net gain of approximately $6,000 resulting from the sale of certain assets.
Off-Balance Sheet Arrangements
We have never entered into any off-balance sheet financing arrangements and we have never established any special purpose entities. We
have not guaranteed any debt or commitments of other entities or entered into any options on non-financial assets.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
We held no marketable securities at December 31, 2012 and 2011.
Item 8.
Consolidated Financial Statements and Supplementary Data.
The response to this item is included in a separate section of this Report. See “Index to Consolidated Financial Statements” on Page F-1.
Item 9.
Changes and Disagreements with Accountants on Accounting and Financial Disclosure.
None.
Item 9A. Controls and Procedures.
(a) Evaluation of Disclosure Controls and Procedures: Our principal executive and financial officers reviewed and evaluated the
effectiveness of our disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) as of the end of the period covered by
this Annual Report on Form 10-K. Based on that evaluation, our principal executive and financial officers concluded that our disclosure
controls and procedures are effective in timely providing them with material information relating to the Company, as required to be disclosed
in the reports we file under the Exchange Act.
(b) Management’s Annual Report on Internal Control Over Financial Reporting:
Internal control over financial reporting refers to the process designed by, or under the supervision of, our Principal Executive Officer
and Principal Financial Officer, and effected by our board of directors, management and other personnel, 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, and includes those policies and procedures that:
(1) Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of our
assets;
30
(2) Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles, and that our receipts and expenditures are being made only in accordance with
authorization of our management and directors; and
(3) Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisitions, use or disposition of our
assets that could have a material effect on the financial statements.
Internal control over financial reporting cannot provide absolute assurance of achieving financial reporting objectives because of its
inherent limitations. Internal control over financial reporting is a process that involves human diligence and compliance and is subject to lapses
in judgment and breakdowns resulting from human failures. Internal control over financial reporting also can be circumvented by collusion or
improper management overrides. Due to such limitations, there is a risk that material misstatements may not be prevented or detected on a
timely basis by internal control over financial reporting. However, these inherent limitations are known features of the financial reporting
process. Therefore, it is possible to design into the process safeguards to reduce, though not eliminate, this risk. Management is responsible
for establishing and maintaining adequate internal control over financial reporting for the company.
Management has used the framework set forth in the report entitled Internal Control—Integrated Framework published by the
Committee of Sponsoring Organizations of the Treadway Commission, known as COSO, to evaluate the effectiveness of the Company’s
internal control over financial reporting. Based on this assessment, management has concluded that our internal control over financial reporting
was effective as of December 31, 2012.
The attestation report concerning the effectiveness of our internal controls over financial reporting as of December 31, 2012 issued by
OUM & Co. LLP, an independent registered public accounting firm, appears in Item 8 of this Annual Report on Form 10-K.
(c) Changes in Internal Control Over Financial Reporting: There were no changes in our internal control over financial reporting (as
defined in Rules 13(a)-15(f) and 15(d)-15(f) under the Securities Act of 1934) during our most recent fiscal quarter that have materially
affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information.
None.
31
Item 10.
Directors; Executive Officers and Corporate Governance
Set forth below are the name, age and position and a brief account of the business experience of each of our executive officers and
PART III
directors:
Name
Marc Rubin (1)
Sunil Bhonsle
Victor J. Bauer (2)(3)
Eurelio M. Cavalier (1)(3)(4)
Hubert E. Huckel (1)(2)(3)
M. David MacFarlane (2)(4)
Ley S. Smith (1)(2)(4)
(1) Member of Executive Committee
(2) Member of Audit Committee
(3) Member of Compensation Committee
(4) Member of Nominating Committee
Age
58
63
77
80
81
72
78
Office
Executive Chairman of the Board
President and Director
Director
Director
Director
Director
Director
Director Since
November 2007
February 2004
November 1997
September 1998
October 1995
May 2002
July 2000
Marc Rubin, M.D. served as our President and Chief Executive from October 2007 until December 2008 and was re-engaged as our
Executive Chairman in May 2009. Until February 2007, Dr. Rubin served as Head of Global Research and Development for Bayer Schering
Pharma, as well as a member of the Executive Committee of Bayer Healthcare and the Board of Management of Bayer Schering Pharma. Prior
to the merger of Bayer Pharmaceuticals and Schering AG in June 2006, Dr. Rubin was a member of the Executive Board of Schering AG
since joining the Company in October 2003, as well as Chairman of Schering Berlin Inc. and President of Berlex Pharmaceuticals, a division
of Schering AG. From 1990 until August 2003, Dr. Rubin was employed by GlaxoSmithKline where he held positions of increasing
responsibility in global clinical and commercial development overseeing programs in the United States, Europe, Asia and Latin America. From
2001 through 2003, he was Senior Vice President of Global Clinical Pharmacology & Discovery Medicine. Dr. Rubin holds an M.D. from
Cornell University Medical College. Dr. Rubin currently serves on the board of directors of Curis Inc. and Galectin Therapeutics.
Sunil Bhonsle served as our Executive Vice President and Chief Operating Officer from September 1995 until December 2008 and was
re-engaged as our President in May 2009. Mr. Bhonsle served in various positions, including Vice President and General Manager—Plasma
Supply and Manager—Inventory and Technical Planning, at Bayer Corporation from July 1975 until April 1995. Mr. Bhonsle holds an
M.B.A. from the University of California at Berkeley and a B.Tech. in chemical engineering from the Indian Institute of Technology.
Victor J. Bauer, Ph.D. serves as the Executive Vice President of Concordia Pharmaceuticals, LLC, a biopharmaceutical company he
co-founded in 2004. From February 1997 through March 2003, Dr. Bauer was employed by Titan, most recently as our Executive Director of
Corporate Development. From April 1996 until its merger into Titan, Dr. Bauer also served as a director and Chairman of Theracell. From
December 1992 until February 1997, Dr. Bauer was a self-employed consultant to companies in the pharmaceutical and biotechnology
industries. Prior to that time, Dr. Bauer was with Hoechst-Roussel Pharmaceuticals Inc., where he served as President from 1988 through
1992.
Eurelio M. Cavalier was employed in various capacities by Eli Lilly & Co. from 1958 until his retirement in 1994, serving as Vice
President Sales from 1976 to 1982 and Group Vice President U.S. Pharmaceutical Business Unit from 1982 to 1993.
32
Hubert E. Huckel, M.D. served in various positions with The Hoechst Group from 1964 until his retirement in December 1992. At the
time of his retirement, Dr. Huckel was Chairman of the Board of Hoechst-Roussel Pharmaceuticals, Inc., Chairman and President of Hoechst-
Roussel Agri-Vet Company and a member of the Executive Committee of Hoechst Celanese Corporation. Dr. Huckel co-founded Concordia
Pharmaceuticals, LLC, a biopharmaceutical company, in 2004. He currently serves on the board of directors of Catalyst Pharmaceuticals, Inc.
and Concordia Pharmaceuticals, LLC.
M. David MacFarlane, Ph.D. served as Vice President and Responsible Head of Regulatory Affairs of Genentech, Inc. from 1989
until his retirement in August 1999. Prior to joining Genentech, Inc., he served in various positions with Glaxo Inc., last as Vice President of
Regulatory Affairs.
Ley S. Smith served in various positions with The Upjohn Company and Pharmacia & Upjohn from 1958 until his retirement in
November 1997. From 1991 to 1993 he served as Vice Chairman of the Board of The Upjohn Company, and from 1993 to 1995 he was
President and Chief Operating Officer of The Upjohn Company. At the time of his retirement, Mr. Smith was Executive Vice President of
Pharmacia & Upjohn, and President of Pharmacia & Upjohn’s U.S. Pharma Product Center.
As indicated above, each of our directors has extensive management and operational experience in one or more facets of the
pharmaceutical industry, including research, product development, clinical and regulatory affairs, manufacturing and sales and marketing,
providing our company with the leadership needed by a biotechnology company in all stages of its development.
Directors serve until the next annual meeting or until their successors are elected and qualified. Officers serve at the discretion of the
board of directors, subject to rights, if any, under contracts of employment. See “Item 6. Executive Compensation—Employment
Agreements.”
Board Leadership Structure
Currently, our principal executive officer and chairman of the board positions are held separately by Sunil Bhonsle and Marc Rubin,
respectively.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), requires our executive officers, directors and
persons who beneficially own more than 10% of a registered class of our equity securities to file with the Securities and Exchange
Commission initial reports of ownership and reports of changes in ownership of our common stock and other equity securities. Such
executive officers, directors, and greater than 10% beneficial owners are required by SEC regulation to furnish us with copies of all
Section 16(a) forms filed by such reporting persons.
Based solely on our review of such forms furnished to us and written representations from certain reporting persons, we believe that all
filing requirements applicable to our executive officers, directors and greater than 10% beneficial owners were complied with during 2012.
Code of Ethics
We have adopted a Code of Business Conduct and Ethics (the “Code”) that applies to our directors, officers and employees, including
our principal executive officer and principal financial and accounting officer, respectively. The Code is filed as Exhibit 14.1 here to and is
incorporated by reference into this annual report. A written copy of the Code will be provided upon request at no charge by writing to our
Chief Financial Officer, Titan Pharmaceuticals, Inc., 400 Oyster Point Boulevard, Suite 505, South San Francisco, California 94080.
Changes in Director Nomination Process for Stockholders
None.
33
Formation of Audit Committee and Financial Expert
The Audit Committee (which is formed in compliance with Section 3(a)(58)(A) of the Securities Exchange Act of 1934) consists of Ley
S. Smith, M. David MacFarlane, Victor J. Bauer and Hubert E. Huckel, each of whom meets the independence requirements and standards
currently established by the NYSE Amex (formerly the American Stock Exchange) and the SEC. In addition, the Board of Directors has
determined that Mr. Ley Smith is an “audit committee financial expert” and “independent” as defined under the relevant rules of the SEC and
the NYSE Amex.
Item 11.
Executive Compensation
Compensation Committee Report
The Compensation Committee has reviewed and discussed with management the following discussion and analysis of our executive
compensation included in this Annual Report on Form 10-K. Based on such review and discussion with management, the Compensation
Committee recommended to the board of directors that the following disclosure be included in this Annual Report on Form 10-K for the fiscal
year ended December 31, 2012.
The Compensation Committee:
Eurelio M. Cavalier
Hubert E. Huckel
Victor J. Bauer
Overview
During 2010, 2011 and 2012, Dr. Rubin and Mr. Bhonsle continued as our Executive Chairman and President, respectively, with
compensation packages structured to reflect our current level of operations and resources. This compensation discussion describes the material
elements of compensation awarded to, earned by, or paid to each of our executive officers who served as named executive officers during the
year ended December 31, 2012. This compensation discussion focuses on the information contained in the following tables and related
footnotes and narrative for primarily the last completed fiscal year; however, we also describe compensation actions taken before or after the
last completed fiscal year to the extent it enhances the understanding of our executive compensation disclosure.
Compensation Program Objectives and Philosophy
Our Compensation Committee currently oversees the design and administration of our executive compensation program. It reviews and
approves all elements of compensation for each of our named executive officers taking into consideration recommendations from our principal
executive officer (for compensation other than his own), as well as competitive market guidance. We define our competitive markets for
executive talent to be the pharmaceutical and biotechnology industries in northern California. To date, we have utilized the Radford
Biotechnology Surveys, a third party market specific compensation survey, and, when applicable, other independent third-party compensation
consultants to benchmark our executive compensation.
The principal elements of our executive compensation program have historically been base salary, annual cash incentives, long-term
equity incentives in the form of stock options, other benefits and perquisites, post-termination severance and acceleration of stock option
vesting for certain named executive officers upon termination and/or a change in control. Our other benefits and perquisites have consisted of
life, health and disability insurance benefits, and a qualified 401(k) savings plan. Our philosophy has been to position the aggregate of these
elements at a level that is competitive within the industry and commensurate with our size and performance. During 2012, our compensation
philosophy has continued to evolve to accommodate our changing circumstances, operational needs and limited financial resources during this
period.
34
During 2012, our operations continued to focus on efforts to realize maximum shareholder value from activities associated with our
Probuphine and ProNeura development programs. Accordingly, our Compensation Committee continued a compensation plan which provides
base salary and potential earnings through stock option and restricted stock awards.
During 2011and 2010, our operations continued to focus on efforts to realize maximum shareholder value from both Fanapt and
activities associated with our Probuphine development program. Accordingly, our Compensation Committee implemented a compensation
plan which provides base salary and potential earnings through stock option and restricted stock awards.
Base Salaries
During 2012, the base salary of our named executives was reflective of the availability of resources and level of continuing operations.
Dr. Rubin continues to receive an annual salary of $210,000 and Mr. Bhonsle continues to receive an annual salary of $300,000 through
December 31, 2013, at which time we expect to have new compensation arrangements in place. In the event new compensation arrangements
with Dr. Rubin and Mr. Bhonsle have not been determined prior to December 31, 2013, Dr. Rubin and Mr. Bhonsle will either (i) make a
determination to continue their employment at their then existing respective compensation levels or (ii) terminate their employment
arrangements with our company. See “Employment Agreements” below. In December 2012, following the completion of the License
Agreement, Dr. Rubin and Mr. Bhonsle received cash bonuses of $53,000 and 75,000, respectively.
During 2011, the base salary of our named executives was reflective of the availability of resources and level of continuing operations.
As a result of an amendment to his employment agreement, effective January 1, 2011, Dr. Rubin began receiving an annual salary of $210,000
and Mr. Bhonsle continued to receive an annual salary of $300,000 through December 31, 2011.
During 2010, the base salary of our named executives was reflective of the availability of resources and level of continuing operations.
Dr. Rubin did not receive a cash salary during 2010. As a result of an amendment to his employment agreement, effective March 1, 2010,
Mr. Bhonsle’s base annual salary was set at $300,000, essentially his 2008 level.
As we continue to evaluate the strategic alternatives for us going forward and our related human resource requirements, our
Compensation Committee will continue to review appropriate base salaries for our executive officers. In making its determination, the
Compensation Committee will consider the time commitment necessary and the roles our executives will play in implementing our plans.
Long-term Equity Incentives
We provide the opportunity for our named executive officers and other executives to earn a long-term equity incentive award. Long-term
incentive awards provide employees with the incentive to stay with us for longer periods of time, which in turn, provides us with greater
stability. Equity awards also are less costly to us in the short term than cash compensation. We review long-term equity incentives for our
named executive officers and other executives annually.
Historically, for our named executive officers, our stock option grants were of a size and term determined and approved by the
Compensation Committee in consideration of the range of grants in the Radford Survey, generally falling within the 50-75% range outlined in
the survey. We have traditionally used stock options as our form of equity compensation because stock options provide a relatively
straightforward incentive for our executives, result in less immediate dilution of existing shareholders’ interests and, prior to our adoption of
FAS 123(R), resulted in less compensation expense for us relative to other types of equity awards. Generally, all grants of stock options to
our employees were granted with exercise prices equal to or greater than the fair
35
market value of our common stock on the respective grant dates. For a discussion of the determination of the fair market value of these grants,
see “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Critical Accounting Policies and the Use of
Estimates.”
We do not time stock option grants to executives in coordination with the release of material non-public information. Our stock option
grants have a 10-year contractual exercise term. In general, the option grants are also subject to the following post-termination and change in
control provisions:
Event
• Termination by us for Reason Other than
Award Vesting
• Forfeit Unvested Options
Cause, Disability or Death
Exercise Term
• Earlier of: (1) 90 days or (2) Remaining
Option Period
• Termination for Disability, Death or
• Forfeit Unvested Options
• Earlier of: (1) 2 years or (2) Remaining
Retirement
Option Period
• Termination for Cause
• Forfeit Vested and Unvested Options
• Expire
• Other Termination
• Forfeit Unvested Options
• Earlier of: (1) 90 days or (2) Remaining
Option Period
• Change in Control
• Accelerated*
• *
* The Compensation Committee may provide that, in the event of a change in control, any outstanding awards that are unexercisable or
otherwise unvested will become fully vested and immediately exercisable. If there is a termination of employment, the applicable termination
provisions regarding exercise term will apply.
The vesting of certain of our named executive officers’ stock options is accelerated pursuant to the terms of their employment agreements
in certain change in control or other material events. These terms are more fully described in “—Employment Agreements” and “—Potential
Payments upon Termination or Change in Control.”
In May 2009, Dr. Rubin was awarded a stock option grant of 1,000,000 shares with immediate vesting of 25% of the grant and the
remainder to vest monthly over four years. This was the only compensation provided to Dr. Rubin during 2009. During 2010, Dr. Rubin was
awarded 36,000 and 82,800 shares of restricted stock in May and July 2010, respectively. These awards vested over four and six month
periods with all restricted shares fully vested by December 31, 2010. Similarly, upon the confirmation of Mr. Bhonsle as the President, he was
awarded a stock option grant to purchase 700,000 shares of common stock with immediate vesting of 25% and the remainder to vest monthly
over four years. During 2011, Dr. Rubin was awarded a stock option grant to purchase 150,000 shares of common stock with the vesting of
25% after six months and the remainder to vest monthly over the following 18 months. During 2011, Mr. Bhonsle was awarded a stock
option grant to purchase 200,000 shares of common stock with the vesting of 25% after six months and the remainder to vest monthly over
the following 18 months. During 2012, Dr. Rubin was awarded a fully vested stock option grant to purchase 250,000 shares of common
stock. During 2012, Mr. Bhonsle was awarded a fully vested stock option grant to purchase 300,000 shares of common stock.
Compensation Committee Interlocks and Insider Participation
Members of our Compensation Committee of the board of directors were Eurelio M. Cavalier, Hubert E. Huckel and Victor J. Bauer.
No member of our Compensation Committee was, or has been, an officer or employee of Titan or any of our subsidiaries, except for Victor J.
Bauer, who was employed by Titan from February 1997 through March 2003 as our Executive Director of Corporate Development and from
April 1996 until its merger into Titan, Dr. Bauer also served as a Director and Chairman of a former subsidiary.
No member of the Compensation Committee has a relationship that would constitute an interlocking relationship with executive officers
or directors of the Company or another entity.
36
The following table shows information concerning the annual compensation for services provided to us by our Chief Executive Officer,
our Chief Financial Officer and our other executive officers for the periods set forth.
SUMMARY COMPENSATION TABLE
Name and Principal Position(1)
Marc Rubin, M.D.(3)(4) Executive Chairman
Bonus
($)
Options(2)
($)
Awards(2)
($)
Salary ($)
Year
2012 $210,000 $53,000 $273,450 $
2011
2010
210,000
—
201,015
—
—
—
— $
—
152,982
All Other
Compensation
($)
Total
Compensation
($)
536,450
411,015
152,982
— $
—
—
Louis R. Bucalo, M.D.(5) Former Executive
Chairman
Sunil Bhonsle
President and Chief Financial Officer
2012
2011
2010
2012
2011
2010
—
—
70,312
—
—
—
—
—
—
300,000
300,000
277,473
75,000
—
—
328,140
268,020
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
70,312
703,140
568,020
277,473
(1) The positions listed are the most recent held by such individuals.
(2) Amounts shown represent the grant date fair value computed in accordance with FASB ASC 718. The assumptions used by us with
respect to the valuation of option grants and stock awards are set forth in “Titan Pharmaceuticals, Inc. Consolidated Financial Statements
—Notes to Consolidated Financial Statements—Note 12—Stock Plans.”
(3) Dr. Rubin did not receive a salary during 2010.
(4) Dr. Rubin was awarded 36,000 and 82,800 shares of restricted stock on March 1, 2010 and July 1, 2010, respectively, instead of a cash
salary. These shares were fully vested as of December 31, 2010.
(5) Dr. Bucalo’s employment was terminated in April 2008 and he received salary continuation payments until April 2010. During 2010,
Dr. Bucalo received salary continuation payments of $70,312, respectively. His outstanding options continued to vest under the terms of
his severance agreement through April 2010, at which time they were cancelled unexercised.
For a description of the material terms of employment agreements with our current and former named executive officers, see “—
Employment Agreements.”
37
Name
Marc Rubin, M.D.
Sunil Bhonsle
GRANTS OF PLAN-BASED AWARDS
Grant
Date
1/3/2012
1/3/2012
Approval
Date(1)
12/28/2011
12/28/2011
Number of
Shares of
Common Stock
Underlying
Options (#)
Exercise or
Base Price of
Option
Awards
($/Sh)
250,000(3)
300,000(3)
$
$
1.15
1.15
Grant Date
Fair Value
of Stock
and Option
Awards($)(2)
$ 273,450
$ 328,140
(1) All grants were approved by the Compensation Committee on the dates indicated.
(2) Valuation assumptions are found under “Titan Pharmaceuticals, Inc. Consolidated Financial Statements—Notes to Consolidated Financial
Statements—Note 12—Stock Plans.”
(3) These options were 100% vested on the grant date.
Employee Benefits Plans
The principal purpose of our stock incentive plans is to attract, motivate, reward and retain selected employees, consultants and directors
through the granting of stock-based compensation awards. The stock option plans provides for a variety of awards, including non-qualified
stock options, incentive stock options (within the meaning of Section 422 of the Code), stock appreciation rights, restricted stock awards,
performance-based awards and other stock-based awards.
2002 Stock Incentive Plan
In July 2002, we adopted the 2002 Stock Incentive Plan, or the 2002 Plan. Under the 2002 Plan, as amended, a total of approximately
7.4 million shares of our common stock were authorized for issuance to employees, officers, directors, consultants, and advisers.
The 2002 Plan expired by its terms in July 2012. Options to purchase an aggregate of 4,280,153 shares of our common stock are
currently outstanding under the 2002 Plan.
2001 Stock Option Plan
In August 2001, we adopted the 2001 Employee Non-Qualified Stock Option Plan, or the 2001 NQ Plan, pursuant to which 1,750,000
shares of common stock were authorized for issuance for option grants to employees and consultants who are not officers or directors of
Titan. The 2001 Stock Option Plan expired by its terms in August 2011. Options to purchase an aggregate of 1,199,500 shares of our
common stock are currently outstanding under the 2001 NQ Plan.
38
OUTSTANDING EQUITY AWARDS AT FISCAL YEAR-END
The following table summarizes the number of securities underlying outstanding plan awards for each named executive officer as of
December 31, 2012.
Name
Marc Rubin, M.D.
Sunil Bhonsle
Number of
Securities Underlying
Unexercised Options (#)
Exercisable
Number of
Securities Underlying
Unexercised Options
(#) Unexercisable
Option Awards
Option Exercise
Price ($)
Option Expiration
Date
437,500
2,500
5,000
550,937
100,000
5,000
10,000
270,938
125,000
250,000
50,000
60,000
70,000
80,137
11,250
76,666
5,000
277,710
100,000
10,000
367,604
166,667
300,000
$
—
—
—
64,063(1)
—
—
—
14,062(1)
25,000(3)
—
—
—
—
—
—
—
—
32,290(2)
—
—
22,396(2)
33,333(3)
—
2.40
1.52
1.52
0.79
0.79
0.79
0.79
0.79
1.40
1.15
1.50
3.69
2.62
1.40
2.35
3.13
1.52
0.79
0.79
0.79
0.79
1.40
1.15
10/01/2017
5/30/2018
5/30/2018
5/17/2019
5/17/2019
5/17/2019
5/17/2019
5/17/2019
4/15/2021
1/3/2022
3/1/2013
2/9/2014
2/7/2015
1/3/2016
8/29/2016
1/3/2017
5/30/2018
5/17/2019
5/17/2019
5/17/2019
5/17/2019
4/15/2021
1/3/2022
(1) These options vest in 48 equal monthly installments beginning on May 17, 2009.
(2) These options vest in 48 equal monthly installments beginning on May 17, 2009, with the vesting of 100,000 shares contingent upon the
sale or partnering of the Probuphine program.
(3) These options vest over a 24 month period beginning on April 15, 2011 with 25% vesting after six months and the balance vesting in 18
monthly installments over the remaining vesting period.
No options were exercised by our named executive officers during 2012.
Pension Benefits
We do not sponsor any qualified or non-qualified defined benefit plans.
Nonqualified Deferred Compensation
We do not maintain any non-qualified defined contribution or deferred compensation plans. The Compensation Committee, which is
comprised solely of “outside directors” as defined for purposes of Section 162(m) of the Code, may elect to provide our officers and other
employees with non-qualified defined contribution or deferred compensation benefits if the Compensation Committee determines that doing so
is in our best interests. We sponsor a tax qualified defined contribution 401(k) plan in which Dr. Rubin, Mr. Bhonsle and Dr. Bucalo
participated.
39
Employment Agreements
Marc Rubin
In May 2009, in connection with our re-engagement of our executive officers following the FDA’s approval of Fanapt™, we entered
into a new employment agreement with Dr. Rubin to serve as our Executive Chairman (the “Rubin Agreement”). Pursuant to the Rubin
Agreement, as such agreement was amended effective March 1, 2010, June 15, 2010 and December 27, 2010, he received no cash salary
through December 2010. In May 2009, we granted Dr. Rubin options to purchase 1,000,000 shares of our common stock that vest as follows:
25% immediately and the balance monthly over a four-year period. Notwithstanding the foregoing, all unvested options held by Dr. Rubin
automatically will become vested and exercisable immediately prior to the occurrence of a change of control. One half of the options will
accelerate in the event we sell or transfer all or substantially all of our rights in iloperidone. In addition, in the event that we declare a dividend
or similar distribution following such sale or transfer, we have agreed to retain for Dr. Rubin’s benefit an amount equal to the dividend amount
for distribution to him only upon the actual vesting and exercise by him of the unvested options. In consideration for entering into the
March 1, 2010 amendment agreement, we issued Dr. Rubin 36,000 restricted shares that vested in four monthly installments through June 30,
2010. In consideration for entering into the June 15, 2010 amendment agreement, we issued Dr. Rubin 82,800 restricted shares that vested in
six monthly installments through December 31, 2010. In consideration for entering into the December 27, 2010 amendment agreement, we
agreed to pay Dr. Rubin an annual salary of $210,000 for the period of January 1, 2011 through December 31, 2011. On December 30, 2011,
we agreed to extend the term of Dr. Rubin’s employment with us through December 31, 2012 at an annual salary of $210,000 for the period
of January 1, 2012 through December 31, 2012. On December 31, 2012, we agreed to extend the term of Dr. Rubin’s employment with us
through December 31, 2013 at an annual salary of $210,000 for the period of January 1, 2013 through December 31, 2013. The Rubin
Agreement contains non-competition provisions applicable during the term of employment.
Sunil Bhonsle
In May 2009, in connection with our re-engagement of our executive officers following the FDA’s approval of Fanapt™, we entered
into a new employment agreement with Mr. Bhonsle to serve as our President (the “Bhonsle Agreement”). The Bhonsle Agreement provided
that until February 28, 2010, he was entitled to a cash salary of $200,000 per annum, payment of which was deferred until we began receiving
royalty payments from Fanapt. Mr. Bhonsle was granted options to purchase 700,000 shares of our common stock that vest as follows: 25%
immediately and the balance monthly over a four-year period; provided, however, that the vesting of 100,000 shares is also contingent upon
the sale or partnering of the Probuphine program. Notwithstanding the foregoing, all unvested options held by Mr. Bhonsle automatically will
become vested and exercisable immediately prior to the occurrence of a change of control. Effective March 1, 2010, we amended the Bhonsle
Agreement to provide that from the effective date through June 30, 2010, he was entitled to a salary of $300,000 per annum. The amendment
also provides that one half of the options will accelerate in the event we sell or transfer all or substantially all of our rights in iloperidone. In
addition, in the event that we declare a dividend or similar distribution following such sale or transfer, we have agreed to retain for
Mr. Bhonsle’s benefit an amount equal to the dividend amount for distribution to him only upon the actual vesting and exercise by him of the
unvested options. Effective July 1, 2010, as further amended effective December 27, 2010 and December 30, 2011, we amended the Bhonsle
Agreement to provide that Mr. Bhonsle would continue to be entitled to a salary of $300,000 per annum through December 31, 2012. On
December 31, 2012, we agreed to extend the term of Mr. Bhonsle’s employment with us through December 31, 2013 at an annual salary of
$300,000 for the period of January 1, 2013 through December 31, 2013. The Bhonsle Agreement contains non-competition provisions
applicable during the term of employment.
40
POTENTIAL PAYMENTS UPON TERMINATION OR CHANGE IN CONTROL
Pursuant to the Rubin Agreement and the Bhonsle Agreement, assuming a change of control had taken place as of December 31, 2012,
Dr. Rubin and Mr. Bhonsle would have been entitled to accelerated vesting of their outstanding stock options described in the table below:
Marc Rubin, M.D.
Sunil Bhonsle.
Value of Equity Awards:
Termination Without
Cause or For Good Reason(1)
None
None
Value of Equity Awards:
In Connection With a Change in Control(1)
Fully Vested. 103,125 options with value of $16,408
Fully Vested. 88,019 options with value of $11,486
(1) Value is based on the aggregate difference between the respective exercise prices and the closing sale price of our common stock on
December 31, 2012, which was $1.10 per share.
41
DIRECTOR COMPENSATION
Summary of Director Compensation
Non-employee directors are entitled to receive a fee for each meeting attended and all directors are entitled to receive stock options
pursuant to our stockholder-approved stock option plans, including an initial grant of 10,000 options upon becoming a director, an annual
grant of 20,000 options thereafter, and an annual grant of 5,000 options for each committee on which they serve. Directors are not precluded
from serving us in any other capacity and receiving compensation therefor. Non-employee directors have also historically received an annual
retainer fee of $15,000 in addition to the fee received for each meeting attended. Non-employee directors receive $500 for each telephonic
board meeting attended.
The following table summarizes compensation that our directors earned during 2012 for services as members of our board.
Non-Equity
Incentive Plan
Compensation
($)
Options
Awards ($)
Change in
Pension Value
and
Nonqualified
Deferred
Compensation
Earnings ($)
All Other
Compensation
($)
Stock
Awards ($)
— $ 32,889 $
—
—
—
—
38,370
38,370
32,889
38,370
— $
—
—
—
—
— $
—
—
—
—
Total ($)
— $62,389
67,370
—
67,870
—
62,389
—
67,870
—
Fees
Earned or
Paid in
Cash ($)
$29,500 $
29,000
29,500
29,500
29,500
Name
Victor J. Bauer, Ph.D.
Eurelio M. Cavalier
Hubert E. Huckel, M.D.
M. David MacFarlane, Ph.D.
Ley S. Smith
Item 12.
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
The following table sets forth, as of March 11, 2013, certain information concerning the beneficial ownership of our common stock by
(i) each stockholder known by us to own beneficially five percent or more of our outstanding common stock; (ii) each director; (iii) each
named executive officer; and (iv) all of our executive officers and directors as a group, and their percentage ownership and voting power.
Name and Address of Beneficial Owner(1)
Marc Rubin, M.D.
Victor J. Bauer, Ph.D.
Sunil Bhonsle
Eurelio M. Cavalier
Hubert E. Huckel, M.D.
M. David MacFarlane, Ph.D.
Ley S. Smith
First Eagle Investment Management, LLC
All executive officers and directors as a group (7) persons
Shares
Beneficially
Owned(2)
2,376,575(3)
286,144(4)
1,968,373(5)
437,500(6)
449,835(7)
317,500(8)
367,500(9)
7,446,205(10)
6,203,427
Percent of Shares
Beneficially
Owned
2.8%
*
2.4%
*
*
*
*
9.1%
7.2%
Less than one percent.
*
(1) Unless otherwise indicated, the address of such individual is c/o Titan Pharmaceuticals, Inc., 400 Oyster Point Boulevard, Suite 505,
(2)
South San Francisco, California 94080.
In computing the number of shares beneficially owned by a person and the percentage ownership of a person, shares of our common
stock subject to options held by that person that are currently exercisable or exercisable within 60 days of March 11, 2013 are deemed
outstanding. Such shares, however, are not deemed outstanding for purposes of computing the percentage ownership of each other
person. Except as
42
(3)
(4)
(5)
indicated in the footnotes to this table and pursuant to applicable community property laws, the persons named in the table have sole
voting and investment power with respect to all shares of common stock.
Includes 1,844,375 shares issuable upon exercise of outstanding options.
Includes 250,000 shares issuable upon exercise of outstanding options.
Includes (i) 1,602,116 shares issuable upon exercise of outstanding options and (ii) 300,757 shares held in a family trust for which he
serves as trustee.
Includes 255,000 shares issuable upon exercise of outstanding options.
Includes (i) 265,000 shares issuable upon exercise of outstanding options and (ii) 789 shares held by his wife.
Includes 195,000 shares issuable upon exercise of outstanding options.
Includes 255,000 shares issuable upon exercise of outstanding options.
(6)
(7)
(8)
(9)
(10) Derived from a Schedule 13G/A filed by First Eagle Investment Management, LLC on February 11, 2013. Includes warrants to purchase
1,562,500 shares of common stock. The holder’s address is 1345 Avenue of the Americas, New York, New York 10105.
The following table sets forth aggregate information regarding our equity compensation plans in effect as of December 31, 2012:
Equity Compensation Plan Information
Weighted-
average
exercise
price of
outstanding
options,
warrants
and rights
(b)
$
$
$
1.35
1.34
1.35
Number of securities
remaining available for
future issuance under
equity compensation
plans
(c)
—
—
—
Number of securities to
be issued upon exercise
of outstanding options,
warrant and rights
(a)
4,280,153
2,562,000
6,842,153
Plan category
Equity compensation plans approved by security
holders
Equity compensation plans not approved by
security holders(1)(2)(3)
Total
(1)
(2)
(3)
In August 2002, we amended our 2001 Employee Non-Qualified Stock Option Plan. Pursuant to this amendment, a total of 1,750,000
shares of common stock were reserved and authorized for issuance for option grants to employees and consultants who are not officers or
directors of Titan. At December 31, 2012, 1,199,500 of these non-qualified stock options remained outstanding.
In October 2007, we granted 1,500,000 non-qualified stock options outside of our stock option plans to our Chief Executive Officer, at an
exercise price of $2.40, vesting equally over 48 months from the date of grant. At December 31, 2012, 437,500 of these non-qualified
stock options remained outstanding.
In May 2009, we granted 615,000 and 310,000 non-qualified stock options outside of our stock option plans to our Executive Chairman
and President, respectively, at an exercise price of $0.79, vesting equally over 48 months from the date of grant.
43
Item 13.
Certain Relationships and Related Transactions, and Director Independence
The following members of our board of directors, representing a majority of our board, meet the independence requirements and
standards currently established by the NYSE MKT: Victor J. Bauer, Eurelio M. Cavalier, Hubert E. Huckel, M. David MacFarlane and Ley
S. Smith.
Certain Relationships and Related Transactions. None.
Director Independence. The following members of our Board of Directors meet the independence requirements and standards currently
established by the NYSE MKT: Victor J. Bauer, Eurelio M. Cavalier, Hubert E. Huckel, M. David MacFarlane, and Ley S. Smith.
During the fiscal year ended December 31, 2012, the Board of Directors met nine times and no director attended fewer than 75% of the
meetings of the Board of Directors and Board of Directors committees of which the director was a member.
Compensation Committee. The Compensation Committee makes recommendations to the Board of Directors concerning salaries and
incentive compensation for our officers, including our Chief Executive Officer, and employees and administers our stock option plans. The
Compensation Committee consists of Eurelio M. Cavalier, Hubert E. Huckel and Victor J. Bauer, each of whom meets the independence
requirements and standards currently established by the NYSE MKT. The Compensation Committee did not meet or take action by written
consent during the fiscal year ended December 31, 2012.
Nominating Committee. The purpose of the Nominating Committee is to assist the Board of Directors in identifying qualified individuals
to become board members, in determining the composition of the Board of Directors and in monitoring the process to assess Board
effectiveness. The Nominating Committee consists of Eurelio M. Cavalier, M. David MacFarlane and Ley S. Smith, each of whom meets the
independence requirements and standards currently established by the NYSE MKT. The Nominating Committee did not meet or take action by
written consent during the fiscal year ended December 31, 2012.
Audit Committee. The Audit Committee (which is formed in compliance with Section 3(a)(58)(A) of the Securities Exchange Act of
1934) consists of Ley S. Smith, M. David MacFarlane, Victor J. Bauer and Hubert E. Huckel, each of whom meets the independence
requirements and standards currently established by the NYSE MKT and the SEC. In addition, the Board of Directors has determined that
Mr. Ley S. Smith is an “audit committee financial expert” and “independent” as defined under the relevant rules of the SEC and the NYSE
MKT. The Audit Committee assists the Board by overseeing the performance of the independent auditors and the quality and integrity of
Titan’s internal accounting, auditing and financial reporting practices. The Audit Committee is responsible for retaining (subject to stockholder
ratification) and, as necessary, terminating, the independent auditors, annually reviews the qualifications, performance and independence of the
independent auditors and the audit plan, fees and audit results, and pre-approves audit and non-audit services to be performed by the auditors
and related fees. During the fiscal year ended December 31, 2012, the Audit Committee met four times.
Item 14.
Principal Accounting Fees and Services.
Aggregate fees billed by OUM & Co. LLP, an independent registered public accounting firm, during the fiscal years ended
December 31, 2012 and 2011 were as follows:
Audit Fees
Audit-Related Fees
Tax Fees
All Other Fees
Total
2012
$177,000
50,000
36,395
—
$263,395
2011
$142,000
51,400
39,835
—
$233,235
44
Audit Fees—This category includes aggregate fees billed by our independent auditors for the audit of our annual financial statements,
audit of management’s assessment and effectiveness of internal controls over financial reporting, review of financial statements included in our
quarterly reports on Form 10-Q and services that are normally provided by the auditor in connection with statutory and regulatory filings for
those fiscal years.
Audit-Related Fees—This category consists of services by our independent auditors that, including accounting consultations on
transaction related matters, are reasonably related to the performance of the audit or review of our financial statements and are not reported
above under Audit Fees.
Tax Fees—This category consists of professional services rendered for tax compliance and preparation of our corporate tax returns and
other tax advice.
All Other Fees—During the years ended December 31, 2012 and 2011, OUM & Co. LLP did not incur any fees for other professional
services.
The Audit Committee reviewed and approved all audit and non-audit services provided by OUM & Co. LLP and concluded that these
services were compatible with maintaining its independence. The Audit Committee approved the provision of all non-audit services by
OUM & Co. LLP. Of the total number of hours expended during OUM & Co. LLP’s engagement to audit the Company’s financial statements
for the year ended December 31, 2012, none of the hours were attributed to work performed by persons other than permanent, full-time
employees of OUM & Co. LLP.
Pre-Approval Policies and Procedures
In accordance with the SEC’s auditor independence rules, the Audit Committee has established the following policies and procedures by
which it approves in advance any audit or permissible non-audit services to be provided to us by our independent auditor.
Prior to the engagement of the independent auditors for any fiscal year’s audit, management submits to the Audit Committee for approval
lists of recurring audit, audit-related, tax and other services expected to be provided by the independent auditors during that fiscal year. The
Audit Committee adopts pre-approval schedules describing the recurring services that it has pre-approved, and is informed on a timely basis,
and in any event by the next scheduled meeting, of any such services rendered by the independent auditor and the related fees.
The fees for any services listed in a pre-approval schedule are budgeted, and the Audit Committee requires the independent auditor and
management to report actual fees versus the budget periodically throughout the year. The Audit Committee will require additional pre-approval
if circumstances arise where it becomes necessary to engage the independent auditor for additional services above the amount of fees originally
pre-approved. Any audit or non-audit service not listed in a pre-approval schedule must be separately pre-approved by the Audit Committee
on a case-by-case basis.
Every request to adopt or amend a pre-approval schedule or to provide services that are not listed in a pre-approval schedule must
include a statement by the independent auditors as to whether, in their view, the request is consistent with the SEC’s rules on auditor
independence.
The Audit Committee will not grant approval for:
•
•
any services prohibited by applicable law or by any rule or regulation of the SEC or other regulatory body applicable to us;
provision by the independent auditors to us of strategic consulting services of the type typically provided by management
consulting firms; or
45
•
the retention of the independent auditors in connection with a transaction initially recommended by the independent auditors, the tax
treatment of which may not be clear under the Internal Revenue Code and related regulations and which it is reasonable to conclude
will be subject to audit procedures during an audit of our financial statements.
Tax services proposed to be provided by the auditor to any director, officer or employee of Titan who is in an accounting role or
financial reporting oversight role must be approved by the Audit Committee on a case-by-case basis where such services are to be paid for by
us, and the Audit Committee will be informed of any services to be provided to such individuals that are not to be paid for by us.
In determining whether to grant pre-approval of any non-audit services in the “all other” category, the Audit Committee will consider all
relevant facts and circumstances, including the following four basic guidelines:
•
•
•
•
whether the service creates a mutual or conflicting interest between the auditor and us;
whether the service places the auditor in the position of auditing his or her own work;
whether the service results in the auditor acting as management or an employee of our company; and
whether the service places the auditor in a position of being an advocate for our company.
PART IV
Item 15.
Exhibits and Financial Statements Schedules.
(a) 1. Financial Statements
An index to Consolidated Financial Statements appears on page F-1.
2. Schedules
All financial statement schedules are omitted because they are not applicable, not required under the instructions or all the information
required is set forth in the financial statements or notes thereto.
46
TITAN PHARMACEUTICALS, INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Reports of Independent Registered Public Accounting Firm
Consolidated Balance Sheets as of December 31, 2012 and 2011
Consolidated Statements of Operations and Comprehensive Loss for the years ended December 31, 2012, 2011 and 2010
Consolidated Statements of Stockholders’ Deficit for the years ended December 31, 2012, 2011 and 2010
Consolidated Statements of Cash Flows for the years ended December 31, 2012, 2011 and 2010
Notes to Consolidated Financial Statements
Page
F-2
F-4
F-5
F-6
F-7
F-8
F-1
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors and Stockholders of
Titan Pharmaceuticals, Inc.
We have audited the accompanying consolidated balance sheets of Titan Pharmaceuticals, Inc. as of December 31, 2012 and 2011, the
related consolidated statements of operations and comprehensive loss, stockholders’ deficit and cash flows for each of the three years in the
period ended December 31, 2012. These financial statements are the responsibility of the Company’s management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material
misstatement. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the
overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements audited by us present fairly, in all material respects, the consolidated financial
position of Titan Pharmaceuticals, Inc. at December 31, 2012 and 2011, and the consolidated results of its operations and its cash flows for
each of the three years in the period ended December 31, 2012, in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Titan
Pharmaceuticals, Inc.’s internal control over financial reporting as of December 31, 2012, based on criteria established in Internal Control-
Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated March 14,
2013 expressed an unqualified opinion thereon.
/s/ OUM & Co. LLP
San Francisco, California
March 14, 2013
F-2
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors and Stockholders of
Titan Pharmaceuticals, Inc.
We have audited Titan Pharmaceuticals, Inc.’s internal control over financial reporting as of December 31, 2012, based on criteria
established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission
(the COSO criteria). Titan Pharmaceuticals, Inc.’s management is responsible for maintaining effective internal control over financial reporting
and for its assessment of the effectiveness of internal control over financial reporting included in Management’s Annual Report on Internal
Control Over Financial Reporting included in Item 9A. Our responsibility is to express an opinion on the Company’s internal control over
financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial
reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting,
assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the
assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a
reasonable basis for our opinion.
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with U.S. generally accepted accounting
principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of
records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide
reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with U.S. generally
accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of
management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of
any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions,
or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, Titan Pharmaceuticals, Inc. maintained, in all material respects, effective internal control over financial reporting as of
December 31, 2012, based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the
consolidated balance sheets of Titan Pharmaceuticals, Inc. as of December 31, 2012 and 2011, and the related consolidated statements of
operations and comprehensive loss, stockholders’ deficit, and cash flows for each of the three years in the period ended December 31, 2012,
and our report dated March 14, 2013, expressed an unqualified opinion thereon.
/s/ OUM & Co. LLP
San Francisco, California
March 14, 2013
F-3
TITAN PHARMACEUTICALS, INC.
CONSOLIDATED BALANCE SHEETS
Current assets:
Cash
Receivables
Prepaid expenses and other current assets
Assets
Total current assets
Property and equipment, net
Total Assets
Current liabilities:
Liabilities and Stockholders’ Deficit
Accounts payable
Accrued clinical trials expenses
Other accrued liabilities
Deferred contract revenue
Current portion of long-term debt
Total current liabilities
Warrant liability
Royalty liability
Long-term debt, net of discount
Total Liabilities
Commitments and contingencies
Stockholders’ deficit:
Preferred stock, $0.001 par value per share; 5,000,000 shares authorized, none issued and
outstanding:
Common stock, at amounts paid in, $0.001 par value per share; 125,000,000 shares authorized,
75,215,713 and 59,386,542 shares issued and outstanding at December 31, 2012 and 2011,
respectively.
Additional paid-in capital
Accumulated deficit
Total stockholders’ deficit
Total Liabilities and Stockholders’ Deficit
December 31,
2012
2011
(in thousands, except
share and per share data )
$ 18,102
4,646
687
23,435
1,392
$ 24,827
$
3,767
532
219
14,375
2,500
21,393
8,240
8,962
9,360
47,955
$
5,406
3,720
836
9,962
255
$ 10,217
$
4,789
161
173
—
—
5,123
3,611
9,309
12,253
30,296
—
—
265,986
21,014
(310,128)
(23,128)
$ 24,827
256,436
18,433
(294,948)
(20,079)
$ 10,217
See accompanying notes to consolidated financial statements.
F-4
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
TITAN PHARMACEUTICALS, INC.
2012
Years ended December 31,
2011
(in thousands, except per share
amount)
2010
Revenue:
Royalty revenue
License revenue
Grant revenue
Total revenue
Operating expenses:
Research and development
General and administrative
Total operating expenses
Loss from operations
Other income (expense):
Interest expense, net
Other expense, net
Non-cash gain (loss) on changes in the fair value of warrants
Other expense, net
Net loss and comprehensive loss
Gain on retirement of preferred stock upon dissolution of subsidiary
Net loss applicable to common stockholders
Basic and diluted net loss per common share
Weighted average shares used in computing basic and diluted net loss per common share
$ 4,750
2,325
42
7,117
10,610
4,877
15,487
(8,370)
(4,861)
(183)
(1,766)
(6,810)
(15,180)
—
$(15,180)
(0.23)
$
66,509
$ 3,585
—
483
4,068
11,206
3,368
14,574
(10,506)
(6,430)
(129)
1,862
(4,697)
(15,203)
—
$(15,203)
(0.26)
$
59,324
$ 2,512
24
7,557
10,093
12,855
3,263
16,118
(6,025)
(678)
(131)
—
(809)
(6,834)
1,241
$ (5,593)
$ (0.09)
59,248
See accompanying notes to consolidated financial statements.
F-5
TITAN PHARMACEUTICALS, INC
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ DEFICIT
(in thousands)
Balances at December 31, 2009
Comprehensive loss:
Net loss
Unrealized gain or loss on marketable securities
Comprehensive loss
Retirement of preferred stock upon dissolution of
Ingenex, Inc.
Issuance of warrants to purchase common stock
Compensation related to stock options
Balances at December 31, 2010
Comprehensive loss:
Net loss
Unrealized gain or loss on marketable securities
Comprehensive loss
Issuance of common stock upon vesting of
restricted stock awards
Compensation related to stock options
Balances at December 31, 2011
Comprehensive loss:
Net loss
Unrealized gain or loss on marketable securities
Comprehensive loss
Issuance of common stock, net of issuance costs
Issuance of common stock upon exercise of
warrants
Issuance of common stock upon vesting of
restricted stock awards, net
Compensation related to stock options
Balances at December 31, 2012
Common Stock
Shares
59,248
Amount
$256,436
Additional
Paid-In
Capital
$ 15,027
Accumulated
Deficit
$ (272,911)
(6,834)
Accumulated
Other
Comprehensive
Income (Loss)
—
$
Total
Stockholders’
Deficit
$
(1,448)
1,241
255
733
17,256
59,248
256,436
(279,745)
—
(15,203)
139
59,387
256,436
1,177
18,433
(294,948)
—
(15,180)
9,917
4,653
5,762
4,897
150
75,216
$265,986
2,581
$ 21,014
$ (310,128)
$
—
$
(6,834)
—
(6,834)
1,241
255
733
(6,053)
(15,203)
—
(15,203)
—
1,177
(20,079)
(15,180)
—
(15,180)
4,653
4,897
—
2,581
(23,128)
See accompanying notes to consolidated financial statements.
F-6
TITAN PHARMACEUTICALS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
Cash flows from operating activities:
Net loss
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation and amortization
Amortization of discount on long-term debt
Interest on royalty liability
Non-cash (gain) loss on changes in fair value of warrants
Stock-based compensation
Changes in operating assets and liabilities:
Receivables
Prepaid expenses and other assets
Accounts payable
Other accrued liabilities
Deferred contract revenue
Net cash provided by (used in) operating activities
Cash flows from investing activities:
Purchases of furniture and equipment
Disposals of furniture and equipment
Net cash used in investing activities
Cash flows from financing activities:
Proceeds from issuance of common stock and warrants, net of issuance costs
Proceeds from the exercise of warrants, net of issuance costs
Proceeds from royalty financing
Proceeds from long-term debt, net
Payments on long-term debt
Net cash provided by financing activities
Net increase (decrease) in cash
Cash at beginning of period
Cash at end of period
Supplemental disclosure of cash flow information
Interest paid
Schedule of non-cash transactions
Retirement of preferred stock upon dissolution of Ingenex, Inc.
2012
Years ended December 31,
2011
(in thousands)
2010
$(15,180)
$(15,203)
$(6,834)
17
—
(347)
1,766
2,581
32
1,520
1,309
(1,862)
1,177
(926)
149
(1,022)
417
14,375
1,830
(2,495)
(542)
2,332
(744)
—
(14,476)
85
132
—
—
733
(1,159)
(44)
2,122
308
—
(4,657)
(1,154)
—
(1,154)
7,516
4,897
—
—
(393)
12,020
12,696
5,406
(236)
2
(234)
(28)
—
(28)
—
—
8,000
16,500
(7,564)
16,936
2,226
3,180
—
—
—
5,000
(435)
4,565
(120)
3,300
$ 18,102
$ 5,406
$ 3,180
$ 2,576
$ 1,652
$
678
$
—
$
—
$ 1,241
See accompanying notes to consolidated financial statements.
F-7
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Organization and Summary of Significant Accounting Policies
The Company and its Subsidiaries
We are a biopharmaceutical company developing proprietary therapeutics for the treatment of serious medical disorders. Our product
development programs focus primarily on important pharmaceutical markets with significant unmet medical needs and commercial potential.
We are directly developing our product candidates and also utilize corporate, academic and government partnerships as appropriate. Such
collaborations have helped to fund product development and have enabled us to retain significant economic interest in our products. We
operate in only one business segment, the development of pharmaceutical products.
Our principal asset is Probuphine , the first slow release implant formulation of buprenorphine, designed to maintain a stable, round the
®
clock blood level of the medicine in patients for six months following a single treatment. An NDA seeking approval of Probuphine for the
treatment of opioid dependence in adult patients has been accepted by the FDA for a Priority Review. Based upon the Prescription Drug User
Fee Act (PDUFA), the FDA has set a target date of April 30, 2013 for FDA action on the NDA.
In December 2012, we entered into a license agreement with Braeburn Pharmaceuticals Sprl that grants Braeburn exclusive
commercialization rights to Probuphine in the United States and Canada. We received a non-refundable up-front license fee of $15.75 million
(approximately $15.0 million, net of expenses) and will receive a $50 million milestone payment upon approval by the FDA of the NDA.
Additionally, we will be eligible to receive up to $130 million upon achievement of specified sales milestones and up to $35 million in
regulatory milestones for additional indications, including chronic pain. We will receive tiered royalties on net sales of Probuphine ranging
from the mid-teens to the low twenties. In addition to the potential milestone payments, Apple Tree Partners IV, Braeburn’s parent company,
has allocated in excess of $75 million to launch, commercialize and continue the development of Probuphine.
The accompanying financial statements have been prepared assuming we will continue as a going concern. We believe that our working
capital at December 31, 2012, together with the FDA’s reimbursement of the NDA filing fee, is sufficient to fund our planned operations
through June 2014. In the event that the FDA issues a complete response letter requiring us to conduct additional clinical studies that would
require expenditures in excess of certain amounts specified in our agreement with Braeburn, Braeburn will have the right to either terminate the
agreement or reduce the amount of the $50 million milestone payment payble to us in the event the FDA ultimately approves of Probuphine. If
Braeburn were to terminate the agreement, we would not have sufficient funds available to us to complete the FDA approval process and
commercialize Probuphine and, as a result, our business and prospects will be materially adversely impacted. Furthermore, continuation of our
current Parkinson’s disease development program and the initiation of any additional programs will depend upon our receipt of the $50 million
milestone payment and if such payment is not received or is significantly reduced our ability to fund any new product development programs
will be materially impaired and we may need to obtain additional financing, either through the sale of debt or equity securities, to continue our
Probuphine program and other product development activities. If we are unable to complete a debt or equity offering, or otherwise obtain
sufficient financing when and if needed, we may be required to reduce, defer or discontinue one or more of our product development activities.
Basis of Presentation and Consolidation
The accompanying consolidated financial statements have been prepared in accordance with accounting principles generally accepted in
the United States and include the accounts of Titan Pharmaceuticals, Inc. and its former majority-owned subsidiary. All significant
intercompany balances and transactions are eliminated.
F-8
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires
management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying
notes. Actual results could differ from those estimates.
Stock-Based Compensation
We recognize compensation expense using a fair-value based method, for all stock-based payments including stock options and
restricted stock awards and stock issued under an employee stock purchase plan. These standards require companies to estimate the fair value
of stock-based payment awards on the date of grant using an option pricing model. See Note 12 “Stock Plans,” for a discussion of our stock-
based compensation plans. Our non-cash stock-based compensation expense related to employees and non-employee members of our board of
directors totaled $2.6 million, $1.2 million and $0.7 million for the years ended December 31, 2012, 2011 and 2010, respectively.
Warrants Issued in Connection with Equity Financing
We generally account for warrants issued in connection with equity financings as a component of equity, unless there is a deemed
possibility that we may have to settle warrants in cash. For warrants issued with deemed possibility of cash settlement, we record the fair value
of the issued warrants as a liability at each reporting period and record changes in the estimated fair value as a non-cash gain or loss in the
Consolidated Statements of Operations and Comprehensive Loss.
Cash, Cash Equivalents and Marketable Securities
Our investment policy emphasizes liquidity and preservation of principal over other portfolio considerations. We select investments that
maximize interest income to the extent possible given these two constraints. We satisfy liquidity requirements by investing excess cash in
securities with different maturities to match projected cash needs and limit concentration of credit risk by diversifying our investments among a
variety of high credit-quality issuers and limit the amount of credit exposure to any one issuer. The estimated fair values have been determined
using available market information. We do not use derivative financial instruments in our investment portfolio.
All investments with original maturities of three months or less are considered to be cash equivalents. Our marketable securities,
consisting primarily of high-grade debt securities including money market funds, U.S. government and corporate notes and bonds, and
commercial paper, are classified as available-for-sale at time of purchase and carried at fair value. If the fair value of a security is below its
amortized cost and we plan to sell the security before recovering its cost, the impairment is considered to be other-than-temporary. Other-than-
temporary declines in fair value of our marketable securities are charged against interest income. We did not have cash equivalents or
marketable securities as of December 31, 2012 and 2011 and for any of the periods presented.
Property and Equipment
Property and equipment are recorded at cost and depreciated using the straight-line method over the estimated useful lives of the assets
ranging from three to five years. Leasehold improvements are amortized over the shorter of the lease term or the estimated useful life of the
assets.
F-9
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
Revenue Recognition
We generate revenue principally from collaborative research and development arrangements, technology licenses, and government
grants. Consideration received for revenue arrangements with multiple components is allocated among the separate units of accounting based
on their respective selling prices. The selling price for each unit is based on vendor-specific objective evidence, or VSOE, if available, third
party evidence if VSOE is not available, or estimated selling price if neither VSOE nor third party evidence is available. The applicable
revenue recognition criteria are then applied to each of the units.
Revenue is recognized when the four basic criteria of revenue recognition are met: (1) a contractual agreement exists; (2) transfer of
technology has been completed or services have been rendered; (3) the fee is fixed or determinable; and (4) collectibility is reasonably assured.
For each source of revenue, we comply with the above revenue recognition criteria in the following manner:
•
•
•
•
Collaborative arrangements typically consist of non-refundable and/or exclusive technology access fees, cost reimbursements for
specific research and development spending, and various milestone and future product royalty payments. If the delivered
technology does not have stand-alone value, the amount of revenue allocable to the delivered technology is deferred. Non-
refundable upfront fees with stand-alone value that are not dependent on future performance under these agreements are recognized
as revenue when received, and are deferred if we have continuing performance obligations and have no evidence of fair value of
those obligations. Cost reimbursements for research and development spending are recognized when the related costs are incurred
and when collectability is reasonably assured. Payments received related to substantive, performance-based “at-risk” milestones are
recognized as revenue upon achievement of the clinical success or regulatory event specified in the underlying contracts, which
represent the culmination of the earnings process. Amounts received in advance are recorded as deferred revenue until the
technology is transferred, costs are incurred, or a milestone is reached.
Technology license agreements typically consist of non-refundable upfront license fees, annual minimum access fees or royalty
payments. Non-refundable upfront license fees and annual minimum payments received with separable stand-alone values are
recognized when the technology is transferred or accessed, provided that the technology transferred or accessed is not dependent on
the outcome of our continuing research and development efforts.
Government grants, which support our research efforts in specific projects, generally provide for reimbursement of approved costs
as defined in the notices of grants. Grant revenue is recognized when associated project costs are incurred.
Royalties earned are based on third-party sales of licensed products and are recorded in accordance with contract terms when third-
party results are reliably measurable and collectibility is reasonably assured. Pursuant to certain license agreements, we earn
royalties on the sale of Fanapt™ by Novartis in the U.S. As described in Note 7, Commitments and Contingencies, we are
obligated to pay royalties on such sales to Sanofi-Aventis and another third party. As we have no performance obligations under
the license agreements, we have recorded the royalties earned, net of royalties we are obligated to pay, as revenue in our
consolidated statement of operations.
Research and Development Costs and Related Accrual
Research and development expenses include internal and external costs. Internal costs include salaries and employment related expenses,
facility costs, administrative expenses and allocations of corporate costs. External expenses consist of costs associated with outsourced clinical
research organization activities, sponsored research studies, product registration, patent application and prosecution, and investigator
sponsored trials. We also record
F-10
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
accruals for estimated ongoing clinical trial costs. Clinical trial costs represent costs incurred by CROs, and clinical sites. These costs are
recorded as a component of research & development expenses. Under our agreements, progress payments are typically made to investigators,
clinical sites and CROs. We analyze the progress of the clinical trials, including levels of patient enrollment, invoices received and contracted
costs when evaluating the adequacy of accrued liabilities. Significant judgments and estimates must be made and used in determining the
accrued balance in any accounting period. Actual results could differ from those estimates under different assumptions. Revisions are charged
to expense in the period in which the facts that give rise to the revision become known.
Net Loss Per Share
We calculate basic net loss per share using the weighted average common shares outstanding for the period. Diluted net income per share
would include the impact of other dilutive equity instruments, primarily our options and warrants. For the years ended December 31, 2012,
2011 and 2010, options and warrants totaled 19.7 million, 18.6 million and 12.1 million shares, respectively. We reported net losses for all
years presented and, therefore, options and warrants were excluded from the calculation of diluted net loss per share as they were anti-dilutive.
Comprehensive Income (Loss)
Comprehensive income (loss) is comprised of net loss and other comprehensive income (loss). We had no unrealized gains or losses at
December 31, 2012 and 2011. Comprehensive loss for the years ended December 31, 2012, 2011 and 2010 was $15.2 million, $15.2 million
and $6.8 million, respectively.
Recent Accounting Pronouncements
In June 2011, the FASB issued Accounting Standards Update (“ASU”) No. 2011-05 Presentation of Comprehensive Income that
improves the comparability, consistency, and transparency of financial reporting and increases the prominence of items reported in other
comprehensive income by eliminating the option to present components of other comprehensive income as part of the statement of changes in
stockholders’ equity. The amendments in this standard require that all non-owner changes in stockholders’ equity be presented either in a
single continuous statement of comprehensive income or in two separate but consecutive statements. Under either method, adjustments must
be displayed for items that are reclassified from other comprehensive income (“OCI”) to net income, in both net income and OCI. The
standard does not change the current option for presenting components of OCI gross or net of the effect of income taxes, provided that such
tax effects are presented in the statement in which OCI is presented or disclosed in the notes to the financial statements. Additionally, the
standard does not affect the calculation or reporting of earnings per share. For public entities, the amendments in this ASU are effective for
fiscal years, and interim periods within those years, beginning after December 15, 2011 and are to be applied retrospectively, with early
adoption permitted. In December 2011, the FASB issued ASU No. 2011-12 to defer the effective date of certain amendments to the
presentation of reclassifications of items out of the accumulated other comprehensive income in ASU No 2011-05 to allow the FASB time to
redeliberate on the matter. ASU No. 2011-12 is effective at the same time as the amendments in ASU No. 2011-05. The adoption of this
standard did not have a material impact on our consolidated financial statements.
F-11
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
In May 2011, the FASB issued ASU No. 2011-04 which amends GAAP to conform to the measurement and disclosure requirements in
International Financial Reporting Standards (“IFRS”). The amendments in this ASU change the wording used to describe the requirements in
U.S. GAAP for measuring fair value and for disclosing information about fair value measurements. The amendments include the following:
•
•
Those that clarify the FASB’s intent regarding the application of existing fair value measurement and disclosure requirements; and
Those that change a particular principle or requirement for measuring fair value or for disclosing information about fair value
measurements.
In addition, to improve consistency in application across jurisdictions some changes in wording are necessary to ensure that GAAP and
IFRS fair value measurement and disclosure requirements are described in the same way (for example, using the word shall rather than should
to describe the requirements in GAAP). The amendments in this ASU are to be applied prospectively and are effective during interim and
annual periods beginning after December 15, 2011. We will evaluate the requirements and do not believe that the adoption of this update will
have a material impact on our consolidated financial statements at this time.
Subsequent Events
We have evaluated events that have occurred subsequent to December 31, 2012 and through the date that the financial statements are
issued.
Fair Value Measurements
We measure the fair value of financial assets and liabilities based on authoritative guidance which defines fair value, establishes a
framework consisting of three levels for measuring fair value, and requires disclosures about fair value measurements. Fair value is defined as
the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market
for the asset or liability in an orderly transaction between market participants on the measurement date. There are three levels of inputs that may
be used to measure fair value:
Level 1 – quoted prices in active markets for identical assets or liabilities
Level 2 – quoted prices for similar assets and liabilities in active markets or inputs that are observable;
Level 3 – inputs that are unobservable (for example cash flow modeling inputs based on assumptions).
Financial instruments, including cash, receivables, accounts payable and accrued liabilities are carried at cost, which we believe
approximates fair value due to the short-term nature of these instruments. Our warrant liabilities are classified within level 3 of the fair value
hierarchy because the value is calculated using significant judgment based on our own assumptions in the valuation of these liabilities.
During the years ended December 31, 2012 and 2011, as a result of the fair value adjustment of the warrant liabilities, we recorded a
non-cash loss on an increase in the fair value of $1,766,000 and a non-cash gain on a decrease in the fair value of $1,862,000, respectively, in
our statements of operations and comprehensive loss. See Note 9, “Warrant Liabilities” for further discussion on the calculation of the fair
value of the warrant liabilities.
F-12
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
The following table rolls forward the fair value of the Company’s warrant liabilities, the fair value of which is determined by Level 3
inputs for the years ended December 31, 2012 and 2011 (in thousands):
Fair value, beginning of period
Issuance of warrants
Change in fair value
Fair value, end of period
2. Property and Equipment
Property and equipment consisted of the following at December 31, 2012 and 2011 (in thousands):
Furniture and office equipment
Leasehold improvements
Laboratory equipment
Computer equipment
Less accumulated depreciation and amortization
Property and equipment, net
December 31,
2012
$3,611
2,863
1,766
$8,240
2011
$ —
5,473
(1,862)
$ 3,611
2012
$
388
408
2,047
996
3,839
(2,447)
$ 1,392
2011
$
388
408
922
967
2,685
(2,430)
255
$
Depreciation and amortization expense was $17,000, $32,000 and $85,000 for the years ended December 31, 2012, 2011 and 2010,
respectively.
3. Research and License Agreements
We have entered into various agreements with research institutions, universities, clinical research organizations and other entities for the
performance of research and development activities and for the acquisition of licenses related to those activities. Expenses under these
agreements totaled approximately $3,000, $36,000, and $61,000 in the years ended December 31, 2012, 2011 and 2010, respectively.
We make no annual payments to maintain our current licenses after 2015. Certain licenses provide for the payment of royalties by us on
future product sales, if any. In addition, in order to maintain these licenses and other rights during product development, we must comply with
various conditions including the payment of patent-related costs.
4. Agreement with Sanofi-Aventis SA
In 1997, we entered into an exclusive license agreement with Sanofi-Aventis. The agreement gave us a worldwide license to the patent
rights and know-how related to the antipsychotic agent iloperidone, including the ability to develop, use, sublicense, manufacture and sell
products and processes claimed in the patent rights. We are required to make additional benchmark payments as specific milestones are met.
Upon commercialization of the product, the license agreement provides that we will pay royalties based on net sales.
F-13
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
5. Iloperidone Sublicense to Novartis Pharma AG
We entered into an agreement with Novartis in 1997 pursuant to which we granted Novartis a sublicense for the worldwide (with the
exception of Japan) development, manufacturing and marketing of iloperidone. In April 2001, we entered into an amendment to the agreement
for the development and commercialization of iloperidone in Japan. Under the amendment, in exchange for rights to iloperidone in Japan, we
received a $2.5 million license fee in May 2001. Novartis will make our milestone payments to Sanofi-Aventis during the life of the Novartis
agreement, and will also pay to Sanofi-Aventis and us a royalty on future net sales of the product, providing us with a net royalty of 8% on the
first $200.0 million of sales annually and 10% on all sales above $200.0 million on an annual basis. Novartis has assumed the responsibility
for all clinical development, registration, manufacturing and marketing of iloperidone, and we have no remaining obligations under the terms
of this agreement, except for maintaining certain usual and customary requirements, such as confidentiality covenants.
In June 2004, we announced that Vanda had acquired from Novartis the worldwide rights to develop and commercialize iloperidone, our
proprietary antipsychotic agent in Phase 3 clinical development for the treatment of schizophrenia and related psychotic disorders. All of our
rights and economic interests in iloperidone, including royalties on sales of iloperidone, remain essentially unchanged under this agreement.
In May 2009, iloperidone (Fanapt) was approved by the FDA for the treatment of schizophrenia. In October 2009, Novartis acquired
from Vanda the rights to commercialize Fanapt in the United States and Canada.
In October 2012, we were notified by Novartis that it had decided to cease further development of the long-acting injectable, or depot,
formulation of iloperidone. Novartis will continue to commercialize Fanapt , the oral formulation of iloperidone, in the U.S. and under the
terms of the sublicense agreement. In November 2011, we sold substantially all of our remaining future royalties on the sales of Fanapt to
Deerfield, and accordingly the future royalty payments owed to us by Novartis will continue to be transmitted to Deerfield upon receipt from
Novartis per the terms of the agreement with Deerfield. See Note 8, “Royalty Liability” for further discussion of our royalty liabilities.
®
®
6. Braeburn License
In December 2012, we entered into a license agreement with Braeburn granting Braeburn exclusive commercialization rights to
Probuphine in the United States and Canada. As part of the agreement, we received a non-refundable up-front license fee of $15.75 million
(approximately $15.0 million, net of expenses), and will receive a $50.0 million milestone payment upon approval by the FDA of the NDA.
We will be eligible to receive up to $130.0 million upon achievement of specified sales milestones and up to $35.0 million in regulatory
milestones for additional indications, including chronic pain. We will receive tiered royalties on net sales of Probuphine ranging from the mid-
teens to the low twenties. In addition, Apple Tree Partners IV, Braeburn’s parent company, has allocated in excess of $75.0 million to launch,
commercialize and continue the development of Probuphine.
We have evaluated the revenue components of this license agreement, which includes multiple elements, to determine whether the
components of the arrangement represent separate units of accounting.
We have determined that the non-refundable, up-front license fee of $15.75 million (approximately $15.0 million, net of expenses) and
our costs up to the PDUFA date to be one deliverable which will be accounted for as a single unit of accounting. This amount will be
recognized on a straight-line basis over the estimated period to reach FDA approval and meet the contract deliverables, including the transition
of production and supply services of the product to Braeburn. Based on our understanding of subsequent steps to be performed
F-14
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
following the PDUFA date related to the completion of the transition of production and supply services to Braeburn, we estimate the revenue
recognition period for the up-front payment to be approximately 12 months from the date of this agreement. Accordingly, we will recognize
revenue for the up-front payment ratably from December 14, 2012, the date of the agreement, through December 14, 2013 at an amount equal
to approximately $1.25 million per month. As of December 31, 2012, we have recognized approximately $0.6 million in license revenue and
recorded deferred revenues of $14.4 million related to the up-front payment. Internal and external research and development costs related to
this product will be expensed in the period incurred.
Under the license agreement, we will receive a $50.0 million milestone payment from Braeburn within 10 days following the
achievement of FDA approval of the product NDA. As such, upon receipt of FDA approval our obligation will be fulfilled. As the milestone
payment relates solely to past performance, i.e. FDA approval, we will recognize the $50.0 million regulatory milestone payment from
Braeburn on the date of achievement of FDA approval in accordance with the milestone method of revenue recognition. Following FDA
approval, we will be reimbursed by Braeburn for any development services and activities performed by us at Braeburn’s request.
The license agreement also provides for a development committee. The duties of the development committee are to periodically report to
each other, exchange information, and confer with and review the clinical development of the product and matters pertaining to regulatory
approval. The development committee has no authority to approve or direct either party to take action, approve or withhold approval for any
plan, budget, timeline or strategies, amend, modify or waive compliance with the license agreement, create new obligations or alter, increase or
expand, or waive compliance with the license agreement, create new obligations not specified in the license agreement, or alter, increase or
expand, or waive compliance by a party with obligations under the license agreement. The development committee can be disbanded upon
mutual agreement of the parties and shall automatically disband six years after the NDA transfer date. Based on the above, we have determined
that participation in the development committee is perfunctory and inconsequential, and is not considered a separate deliverable in the license
agreement.
7. Commitments and Contingencies
Financing Agreements
In December 2009, we entered into a loan and security agreement with Oxford Capital Financing (“Oxford”) pursuant to which we
received a three-year term loan in the principal amount of $3.0 million that bears interest at the rate of 13% per annum. We paid Oxford an
initial facility fee of $60,000 and are obligated to make a final payment fee of $180,000. Commencing in January 2010, the loan is repayable in
monthly interest payments of $32,500 through June 2010 followed by monthly interest and principal installments of $117,665 commencing in
July 2010 through December 2012. The loan is secured by our assets and has a provision for pre-payment. We also issued to Oxford, in
connection with the loan and security agreement, five-year warrants to purchase 42,254 shares of our common stock at an exercise price of
$2.13 per share. The relative fair value attributable to the warrants of $88,995 was recorded as a discount to the debt and corresponding credit
to additional paid-in capital. The debt discount will be amortized to interest expense over the life of the debt. Interest on the term loan,
consisting of the stated interest rate, initial facility fee, final payment fee and amortization of the discount, is being recognized using the interest
method. The effective annual interest rate on the loan is approximately 21.1%.
In September 2010, we amended our loan and security agreement with Oxford pursuant to which we received a 39 month term loan in
the principal amount of $5.0 million that bears interest at the rate of 13% per annum. We paid Oxford an initial facility fee of $125,000 and are
obligated to make a final payment fee of
F-15
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
$300,000. Commencing in October 2010, the loan is repayable in monthly interest payments of $54,167 through June 2011 followed by
monthly interest and principal installments of $196,108 commencing in July 2011 through December 2013. The loan is secured by our assets
and has a provision for pre-payment. We also issued to Oxford, in connection with the loan and security agreement, five-year warrants to
purchase 287,356 shares of our common stock at an exercise price of $0.87 per share. The relative fair value attributable to the warrants of
$254,580 was recorded as a discount to the debt and corresponding credit to additional paid-in capital. The debt discount is being amortized to
interest expense over the life of the debt. Interest on the term loan, consisting of the stated interest rate, initial facility fee, final payment fee and
amortization of the discount, is being recognized using the interest method. The effective annual interest rate on the loan is approximately
22.6%.
On March 15, 2011, we entered into several agreements pursuant to which Deerfield agreed to provide $20.0 million in funding to us.
Funding occurred on April 5, 2011 and we used approximately $7.6 million of proceeds from the Deerfield funding to repay Oxford in full,
including required final payments aggregating $480,000. Pursuant to the terms of a facility agreement, we issued Deerfield promissory notes
in the aggregate principal amount of $20.0 million. The long-term debt bears interest at 8.5% per annum, payable quarterly, and was originally
repayable over five years, with 10% of the principal amount due on the first anniversary, 15% due on the second anniversary, and 25% due on
each of the next three anniversaries. We paid Deerfield a facility fee of $0.5 million. The long-term debt is secured by our assets and has a
provision for pre-payment. Deerfield has the right to have the long-term debt repaid at 110% of the principal amount in the event we complete
a major transaction, which includes, but is not limited to, a merger or sale of our company or the sale of Probuphine. In connection with the
facility agreement, we issued Deerfield six-year warrants to purchase 6,000,000 shares of our common stock at an exercise price of $1.57 per
share (See Note 9, “Warrant Liabilities” for further discussion). As a result of our April 2012 subscription agreements, and pursuant to the
terms of the Deerfield Warrants, the exercise price of the Deerfield Warrants was adjusted to $1.25 per share. (see Note 11, “Stockholders’
Deficit” for further discussion). We also entered into a royalty agreement with Deerfield in exchange for $3.0 million (see Note 8, “Royalty
Liability” for further discussion).
We recorded the promissory notes with an aggregate principal amount of $20.0 million at its face value less a note discount consisting of
(i) $3.0 million cash discount, (ii) a $500,000 loan fee, and (iii) the $5.5 million fair value of the associated warrants. The note discount
totaling $9.0 million is being amortized using the interest method. The effective annual interest rate on the note was 33% based on the note
discount amortization, stated interest rate and note term.
On November 14, 2011, we entered into several agreements with Deerfield pursuant to which we agreed to pay a substantial portion of
the remaining future royalties on the sales of Fanapt to Deerfield in exchange for $5.0 million in cash that was recorded as royalty liability (see
Note 8, “Royalty Liability” for further discussion), a $10.0 million reduction in the principal amount owed to Deerfield under the existing
facility agreement and a revised principal repayment schedule of $2.5 million per year for four years commencing in April 2013 to retire the
remaining long-term debt of $10.0 million. We evaluated the November 2011 principal reduction and other amendments to the $20.0 million
facility agreement and determined that the modifications should be accounted for as a troubled debt restructuring on a prospective basis. As a
result, we will recognize the difference between the carrying value of the long-term debt and the total required future principal and interest
payments as interest expense over the remaining term using the interest method.
F-16
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
The following is a schedule of future minimum long-term debt payments at December 31, 2012 (in thousands):
2013
2014
2015
2016
2017 and thereafter
$ 3,262
3,049
2,836
2,624
—
$11,771
These future minimum long-term debt payments exclude payments related to the royalty liability with Deerfield under the March 2011
and November 2011 royalty agreements. (see Note 16. “Subsequent Events” for further discussion).
Lease Commitments
We lease facilities under operating leases that expire at various dates through June 2013. We also lease certain office equipment under
operating leases that expire at various dates through December 2013. Rent expense was $203,000, $214,000, and $257,000 for years ended
December 31, 2012, 2011, and 2010, respectively.
The following is a schedule of future minimum lease payments at December 31, 2012 (in thousands):
2013
2014 and thereafter
$121
—
$121
Legal Proceedings
There are no ongoing legal proceedings against the Company.
8. Royalty Liability
On March 15, 2011, under a royalty agreement, in exchange for $3.0 million that was recorded as royalty liability, we agreed to pay
Deerfield 2.5% of the net sales of Fanapt, constituting a portion of the royalty revenue that we are entitled to under our sublicense agreement
with Novartis. The agreements with Deerfield also provide us with the option to repurchase the royalty rights for $40.0 million.
The $3.0 million received under the March 2011 royalty agreement was recorded as a royalty liability in accordance with the appropriate
accounting guidance as the related agreement includes a provision which allows us to repurchase the royalty rights from Deerfield through a
payment of a lump sum. Interest on the royalty liability is being recognized using the interest method based on the estimated future royalties
expected to be paid under the royalty agreement. The current effective annual interest rate is 43.1%.
F-17
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
Under the November 14, 2011 royalty agreement, in exchange for additional $5.0 million royalty liability Deerfield is entitled to the
balance of our portion of the royalties on Fanapt (5.5% to 7.5% of net sales, net of the 2.5% previously agreed to have been provided to
Deerfield) up to specified threshold levels of net sales of Fanapt and 40% of the royalties above the threshold level. We retain 60% of the
royalties on net sales of Fanapt above the threshold levels, subject to an agreement that half of any such retained royalties will go towards
repayment of our outstanding debt to Deerfield. Funding occurred on November 25, 2011. The proceeds of this transaction were used to
advance the development of Probuphine and for general corporate purposes.
The $5.0 million received under the November 2011 royalty agreement was recorded as a royalty liability in accordance with the
appropriate accounting guidance as the related agreement includes a provision which allows us to repurchase the royalty rights from Deerfield
through a payment of a lump sum. Interest on this royalty obligation is being recognized using the interest method based on the estimated
future royalties expected to be paid under the royalty agreement. The current effective annual interest rate is 67.3%.
9. Warrant Liability
On March 15, 2011, in connection with the Deerfield facility agreement, we issued Deerfield six-year warrants to purchase 6,000,000
shares of our common stock at an initial exercise price of $1.57 per share (“Deerfield Warrants”). As a result of our April 2012 subscription
agreements, and pursuant to the terms of the Deerfield Warrants, the exercise price of the Deerfield Warrants was adjusted to $1.25 per share.
(see Note 11, “Stockholders’ Deficit” for further discussion). The Deerfield Warrants were immediately exercisable and expire on March 15,
2017. The Deerfield Warrants contain a provision where the warrant holder has the option to receive cash, equal to the Black-Scholes fair
value of the remaining unexercised portion of the warrant, as cash settlement in the event that there is a fundamental transaction (contractually
defined to include various merger, acquisition or stock transfer activities). Due to this provision, ASC 480 Distinguishing Liabilities from
Equity requires that these warrants be classified as liabilities. The fair values of these warrants have been determined using the Binomial Lattice
(“Lattice”) valuation model, and the changes in the fair value are recorded in the Consolidated Statement of Operations and Comprehensive
Loss. The Lattice model provides for assumptions regarding volatility and risk-free interest rates within the total period to maturity.
The key assumptions used to value the Deerfield Warrants were as follows:
Assumption
Expected price volatility
Expected term (in years)
Risk-free interest rate
Dividend yield
Weighted-average fair value of warrants
December 31,
2012
80%
4.21
0.58%
0.00%
0.62
$
On April 9, 2012, in connection with subscription agreements with certain institutional investors for the purchase and sale of 6,517,648
shares of our common stock, we issued (i) six-year Series A Warrants to purchase 6,517,648 shares of common stock at an exercise price of
$1.15 per share and (ii) six-month Series B Warrants to purchase 6,517,648 shares of common stock at an exercise price of $0.85 per share.
The Series A and Series B Warrants contain a provision where the warrant holder has the option to receive cash, equal to the Black Scholes
fair value of the remaining unexercised portion of the warrant, as cash settlement in the event that there is a fundamental transaction
(contractually defined to include various merger, acquisition or stock transfer activities). Due to this provision, ASC 480 Distinguishing
Liabilities from Equity requires that these warrants be classified
F-18
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
as liabilities. The fair values of these warrants have been determined using the Lattice valuation model, and the changes in the fair value are
recorded in the Consolidated Statements of Operations and Comprehensive Loss. The Lattice model provides for assumptions regarding
volatility and risk-free interest rates within the total period to maturity.
During the year ended December 31, 2012, Series B Warrants to purchase 5,761,765 shares of common stock were exercised at a price
of $0.85 per share. The remaining Series B Warrants to purchase 755,883 shares of common stock expired in October 2012.
The key assumptions used to value the Series A Warrants were as follows:
Assumption
Expected price volatility
Expected term (in years)
Risk-free interest rate
Dividend yield
Weighted-average fair value of warrants
December 31,
2012
80%
5.27
0.78%
0.00%
0.69
$
10. Guarantees and Indemnifications
As permitted under Delaware law and in accordance with our Bylaws, we indemnify our officers and directors for certain events or
occurrences while the officer or director is or was serving at our request in such capacity. The term of the indemnification period is for the
officer’s or director’s lifetime. The maximum amount of potential future indemnification is unlimited; however, we have a director and officer
insurance policy that limits our exposure and may enable us to recover a portion of any future amounts paid. We believe the fair value of these
indemnification agreements is minimal. Accordingly, we have not recorded any liabilities for these agreements as of December 31, 2012.
In the normal course of business, we have commitments to make certain milestone payments to various clinical research organizations in
connection with our clinical trial activities. Payments are contingent upon the achievement of specific milestones or events as defined in the
agreements, and we have made appropriate accruals in our consolidated financial statements for those milestones that were achieved as of
December 31, 2012. We also provide indemnifications of varying scope to our CROs and investigators against claims made by third parties
arising from the use of our products and processes in clinical trials. Historically, costs related to these indemnification provisions were
immaterial. We also maintain various liability insurance policies that limit our exposure. We are unable to estimate the maximum potential
impact of these indemnification provisions on our future results of operations.
11. Stockholders’ Deficit
Common Stock
In October 2012, Series B Warrants to purchase 4,627,941 shares of common stock were exercised resulting in gross proceeds of
approximately $3,934,000.
In September 2012, Series B Warrants to purchase 1,133,824 shares of common stock were exercised resulting in gross proceeds of
approximately $964,000.
In September 2012, we entered into a stock purchase and option agreement with an affiliate of Braeburn pursuant to which we sold
3,400,000 shares of our common stock for an aggregate purchase price of
F-19
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
$4.25 million, or $1.25 per share, and agreed to an exclusive option period for execution of the proposed license agreement. The $1.7 million
premium, or $0.50 per share, has been allocated to the fair value of the option agreement and was recorded as license revenue in 2012.
In April 2012, we entered into subscription agreements with certain institutional investors for the purchase and sale, in a registered direct
offering, of (i) 6,517,648 shares of our common stock, (ii) 6,517,648 Series A Warrants and (iii) 6,517,648 Series B Warrants for gross
proceeds of $5,540,000 (the “Offering”). The Offering closed in April 2012. As a result of the Offering, and pursuant to the terms of the
Deerfield Warrants, the exercise price of the Deerfield Warrants (See Note 9, “Warrant Liabilities” for further discussion) was adjusted to
$1.25 per share.
We recorded the gross proceeds from the Offering, net of (i) issuance costs of $0.5 million and (ii) the fair value of the Warrants of $2.9
million (see Note 9, “Warrant Liabilities”), as common stock paid-in in the Consolidated Balance Sheets.
As of December 31, 2012, warrants to purchase shares of common stock consisted of the following (in thousands, except per share
price):
Date Issued
12/18/2009
09/27/2010
03/15/2011
04/13/2012
Expiration Date
12/18/2014
09/27/2015
03/15/2017
04/13/2018
Exercise Price
$ 2.13
$ 0.87
$ 1.25
$ 1.15
Outstanding at
December 31, 2012
42
288
6,000
6,517
12,847
Shares Reserved for Future Issuance
As of December 31, 2012, shares of common stock reserved by us for future issuance consisted of the following (in thousands):
Stock options outstanding
Shares issuable upon the exercise of warrants
6,842
12,847
19,689
12. Stock Plans
In July 2002, we adopted the 2002 Stock Incentive Plan (“2002 Plan”). The 2002 Plan assumed the options which remain available for
grant under our option plans previously approved by stockholders. Under the 2002 Plan and predecessor plans, a total of 7.4 million shares of
our common stock were authorized for issuance to employees, officers, directors, consultants, and advisers. In August 2005, we adopted an
amendment to the 2002 Stock Incentive Plan (“2002 Plan”) to (i) permit the issuance of shares of restricted stock and stock appreciation rights
to participants under the 2002 Plan, and (ii) increase the number of shares issuable pursuant to grants under the 2002 Plan from 2,000,000 to
3,000,000. Options granted under the 2002 Plan and predecessor plans may either be incentive stock options within the meaning of
Section 422 of the Internal Revenue Code and/or options that do not qualify as incentive stock options; however, only employees are eligible
to receive incentive stock options. Options granted under the option plans generally expire no later than ten years from the date of grant,
F-20
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
except when the grantee is a 10% shareholder, in which case the maximum term is five years from the date of grant. Options generally vest at
the rate of one fourth after one year from the date of grant and the remainder ratably over the subsequent three years, although options with
different vesting terms are granted from time-to-time. Generally, the exercise price of any options granted under the 2002 Plan must be at least
100% of the fair market value of our common stock on the date of grant, except when the grantee is a 10% shareholder, in which case the
exercise price shall be at least 110% of the fair market value of our common stock on the date of grant. The 2002 Plan expired by its terms in
July 2012. On December 31, 2012, options to purchase an aggregate of 4,280,153 shares of our common stock were outstanding under the
2002 Plan.
Commencing in 2008, non-employee directors are entitled to receive stock options including an initial grant of 10,000 options upon
becoming a director, an annual grant of 20,000 options thereafter, and an annual grant of 5,000 options for each committee on which they
serve.
In August 2001, we adopted the 2001 Employee Non-Qualified Stock Option Plan (“2001 NQ Plan”) pursuant to which 1,750,000
shares of common stock were authorized for issuance for option grants to employees and consultants who are not officers or directors of
Titan. Options granted under the option plans generally expire no later than ten years from the date of grant. Option vesting schedule and
exercise price are determined at time of grant by the board of directors. Historically, the exercise prices of options granted under the 2001 NQ
Plan were 100% of the fair market value of our common stock on the date of grant. The 2001 Stock Option Plan expired by its terms in
August 2011. On December 31, 2012, options to purchase an aggregate of 1,199,500 shares of our common stock were outstanding under the
2001 NQ Plan.
Activity under our stock plans, as well as non-plan activity, are summarized below (shares in thousands):
Balance at December 31, 2009
Options granted
Options cancelled and expired
Awards granted
Balance at December 31, 2010
Options granted
Options cancelled and expired
Options forfeited
Awards granted
Awards issued
Balance at December 31, 2011
Options granted
Options cancelled and expired
Awards issued
Expiration of option plan
Balance at December 31, 2012
Shares or
Awards
Available
For Grant
2,418
(150)
1,244
(119)
3,393
(734)
45
55
(181)
—
2,578
(1,718)
290
—
(1,150)
—
Number of
Options and
Awards
Outstanding
Weighted Average
Exercise Price
6,090
150
(1,243)
119
5,115
734
(241)
(55)
181
(139)
5,595
1,718
(290)
(181)
—
6,842
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
3.68
2.36
9.11
0.00
2.29
1.44
15.01
1.77
0.00
0.00
1.56
1.14
5.54
0.00
0.00
1.33
Our option plans allow for stock options issued as the result of a merger or consolidation of another entity, including the acquisition of
minority interest of our subsidiaries, to be added to the maximum number of shares
F-21
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
provided for in the plan (“Substitute Options”). Consequently, Substitute Options are not returned to the shares reserved under the plan when
cancelled. During 2012, 2011 and 2010, the number of Substitute Options cancelled was immaterial.
Options for 6.0 million and 4.3 million shares were exercisable at December 31, 2012 and 2011, respectively. The options outstanding at
December 31, 2012 have been segregated into four ranges for additional disclosure as follows (options in thousands):
Range of Exercise Prices
$0.69 - $1.53
$1.54 - $2.38
$2.39 - $3.22
$3.23 - $4.06
$0.69 - $4.06
Options Outstanding
Weighted
Average
Remaining
Life (Years)
7.22
4.85
4.27
1.01
6.65
Number
Outstanding
5,499
604
642
97
6,842
Options Exercisable
Weighted
Average
Exercise Price
1.05
$
$
2.19
2.52
$
3.55
$
1.33
$
Number
Exercisable
4,753
542
642
97
6,034
Weighted
Average
Exercise Price
1.04
$
2.19
$
2.52
$
3.55
$
1.35
$
In addition, Ingenex, Inc., a consolidated subsidiary, had a stock option plan under which options to purchase common stock of Ingenex
could have been granted. No options have been granted under such plan since 1997.
We use the Black-Scholes-Merton option-pricing model with the following assumptions to estimate the stock-based compensation
expense for the years ended December 31, 2012, 2011 and 2010:
Weighted-average risk-free interest rate
Expected dividend payments
Expected holding period (years)(1)
Weighted-average volatility factor(2)
Estimated forfeiture rates for options granted to management(3)
Estimated forfeiture rates for options granted to non-management(3)
2012
0.91%
—
5.1
1.75
23%
41%
Years Ended December 31,
2011
2.3%
—
5.4
1.71
23%
41%
2010
2.3%
—
4.2
1.89
23%
41%
(1) Expected holding period is based on historical experience of similar awards, giving consideration to the contractual terms of the stock-
based awards, vesting schedules and the expectations of future employee behavior.
(2) Weighted average volatility is based on the historical volatility of the Company’s common stock.
(3) Estimated forfeiture rates are based on historical data.
Based upon the above methodology, the weighted-average fair value of options and awards granted during the years ended
December 31, 2012, 2011 and 2010 was $1.09, $1.38 and $2.24, respectively.
F-22
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
The following table summarizes the stock-based compensation expense and impact on our basic and diluted loss per share for the years
ended December 31, 2012, 2011 and 2010:
(in thousands, except per share amounts)
Research and development
General and administrative
Total stock-based compensation expenses
Increase in basic and diluted net loss per share
2012
$ 1,560
1,021
$ 2,581
$ (0.04)
Years Ended December 31,
2011
$
371
806
$ 1,177
$ (0.02)
2010
202
$
531
$
733
$ (0.01)
No tax benefit was recognized related to stock-based compensation expense since we have incurred operating losses and we have
established a full valuation allowance to offset all the potential tax benefits associated with our deferred tax assets.
During the year ended December 31, 2012 we granted 1,718,000 options to employees, directors and consultants to purchase common
stock. The following table summarizes option activity for the year ended December 31, 2012:
(in thousands, except per share amounts)
Outstanding at January 1, 2012
Granted
Cancelled
Outstanding at December 31, 2012
Exercisable at December 31, 2012
Weighted
Average
Exercise
Price
$ 1.61
1.14
5.54
$ 1.33
$ 1.35
Shares
5,414
1,718
(290)
6,842
6,035
Weighted
Average
Remaining
Contractual
Term
Aggregate
Intrinsic
Value
6.65
6.44
$
$
722
675
As of December 31, 2012, there was approximately $0.3 million of total unrecognized compensation expense related to non-vested stock
options. This expense is expected to be recognized over a weighted-average period of 0.18 years.
There were no awards of restricted stock during the year ended December 31, 2012. The following table summarizes restricted stock
activity for the year ended December 31, 2012:
(in thousands, except per share amounts)
Outstanding at January 1, 2012
Shares issued
Outstanding at December 31, 2012
Vested at December 31, 2012
Weighted
Average
Exercise
Price
$ 0.00
0.00
$ 0.00
$ —
Shares
181
(181)
—
—
Weighted
Average
Remaining
Contractual
Term
Aggregate
Intrinsic
Value
—
—
$ —
$ —
As of December 31, 2012, there was no unrecognized compensation expense related to non-vested awards.
F-23
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
13. Non-controlling Interest
The $1.2 million received by Ingenex, Inc. upon the issuance of its Series B convertible preferred stock was classified as non-controlling
interest in the consolidated balance sheet prior to December 31, 2010. As a result of the Series B preferred stockholders’ liquidation
preference, the balance was not reduced by any portion of the losses of Ingenex, Inc.
In December 2010, Ingenex, Inc. was dissolved under the laws of Delaware. Upon dissolution, no amounts were distributed to the
Series B convertible preferred stockholders. The dissolution was accounted for as an equity transaction, and the preferred stock carrying value,
classified as a non-controlling interest, was reclassified to additional paid-in capital in the accompanying consolidated balance sheet at
December 31, 2010.
14. Income Taxes
As of December 31, 2012, we had net operating loss carryforwards for federal income tax purposes of approximately $215.7 million
that expire at various dates through 2032, and federal research and development tax credits of approximately $7.6 million that expire at various
dates through 2031. We also had net operating loss carryforwards for California income tax purposes of approximately $146.7 million that
expire at various dates through 2032 and state research and development tax credits of approximately $7.8 million which do not expire.
Approximately $12.4 million of federal and state net operating loss carryforwards represent stock option deductions arising from activity
under the Company’s stock option plan, the benefit of which will increase additional paid in capital when realized.
Current federal and California tax laws include substantial restrictions on the utilization of net operating losses and tax credits in the
event of an ownership change of a corporation. We have performed a change in ownership analysis through December 31, 2012 and,
accordingly, all of our net operating loss and tax credit carryforwards are available to offset future taxable income, if any.
Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for
financial reporting purposes and the amounts used for income tax purposes and operating loss and credit carryforwards. Significant
components of our deferred tax assets are as follows (in thousands):
Deferred tax assets:
Net operating loss carryforwards
Research credit carryforwards
Other, net
Deferred revenue
Total deferred tax assets
Valuation allowance
Net deferred tax assets
December 31,
2012
2011
$ 81,127
12,750
4,190
5,749
103,816
(103,816)
—
$
$ 84,328
12,484
3,883
—
100,695
(100,695)
—
$
Realization of deferred tax assets is dependent upon future earnings, if any, the timing and amount of which are uncertain. Accordingly,
the net deferred tax assets have been fully offset by a valuation allowance. The valuation allowance increased by $3.1 million during 2012,
decreased by $1.3 million during 2011 and increased by $0.8 million during 2010.
Under ASC 718, the deferred tax asset for net operating losses as of December 31, 2012 excludes deductions for excess tax benefits
related to stock based compensation.
F-24
TITAN PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)
The provision for income taxes consists of state minimum taxes due. The effective tax rate of our provision (benefit) for income taxes
differs from the federal statutory rate as follows (in thousands):
Computed at 34%
State taxes
Book gains (losses) not currently benefited
Other
Disallowed interest expense
Income from debt restructuring
Revaluation of warrant liability
Total
2012
$(5,134)
(234)
3,120
1,901
1,363
(1,615)
600
1
Year Ending December 31,
2011
$(5,168)
(228)
(1,264)
2,746
1,457
2,462
—
5
$
$
2010
$(2,265)
(1,347)
844
2,773
—
—
—
5
$
We had no unrecognized tax benefits or any amounts accrued for interest and penalties for the three year period ended December 31,
2012. Our policy will be to recognize interest and penalties related to income taxes as a component of income tax expense.
We file tax returns in the U.S. Federal jurisdiction and some state jurisdictions. We are subject to the U.S. federal and state income tax
examination by tax authorities for such years 1995 through 2012, due to net operating losses that are being carried forward for tax purposes.
The Credit for Increasing Research Activities expired for amounts incurred after December 31, 2011. However, The American Taxpayer
Relief Act of 2012, which was signed into law on January 2 2013, extended the credit for amounts incurred before January 1, 2014. The Act
also retroactively restored the credit for amounts incurred in 2012. However, since the Act was not signed until January 2, 2013 the amount of
credit generated in 2012 is not reflected in the deferred tax amounts as of December 31, 2012. The amount of this credit that was generated in
2012 was approximately $340,000. The deferred tax asset for this credit will be increased by this amount in 2013.
15. Quarterly Financial Data (Unaudited)
2012
Total revenue
Net loss
Basic and diluted net loss per share
2011
Total revenue
Net loss
Basic and diluted net loss per share
16. Subsequent events
First
Quarter
Second
Quarter
Third
Quarter
Fourth
Quarter
(in thousands, except per share amount)
$ 1,270
$(5,163)
$ (0.09)
$ 1,360
$(1,724)
$ (0.03)
$ 1,228
$(8,013)
$ (0.12)
$ 3,259
$ (280)
$ (0.00)
$
948
$(4,512)
$ (0.08)
$
695
$(6,989)
$ (0.12)
$ 1,012
$ (804)
$ (0.01)
$ 1,413
$(2,898)
$ (0.05)
In January 2013, Series A Warrants to purchase 520,776 shares of common stock were exercised resulting in gross proceeds of
approximately $599,000.
F-25
On February 6, 2013, the facility agreement dated as of March 11, 2011 with Deerfield was amended to provide that the exercise price of
the Deerfield Warrants may be satisfied through a reduction in the principal amount of our outstanding indebtedness to Deerfield. In February
and March 2013, Deerfield exercised an aggregate of 6,000,000 warrants resulting in a reduction of our outstanding indebtedness to Deerfield
of $7.5 million and, accordingly, cancellation of our obligation to make the 2014, 2015 and 2016 installment payments under the facility.
(b) Exhibits
No.
3.1
3.2
3.3
4.1
4.2
4.3
4.4
4.5
4.6
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8*
10.9*
10.10
10.11
10.12
Amended and Restated Certificate of Incorporation of the Registrant, as amended
9
By-laws of the Registrant
1
Certificate of Designations of Junior Participating Preferred Stock of Titan Pharmaceuticals, Inc.
15
Description
Registration Rights Agreement dated as of December 17, 2007
2
Registration Rights Agreement dated as of December 8, 2009
9
Warrant to Purchase Common Stock dated December 23, 2009 issued to Oxford Finance Corporation
9
Form of Warrant
13
Registration Rights Agreement, dated as of March 15, 2011
13
Form of Series A Warrant
18
1998 Stock Option Plan
3
2001 Non-Qualified Employee Stock Option Plan
4
2002 Stock Option Plan
5
Employment Agreement between the Registrant and Sunil Bhonsle, dated May 16, 2009, as amended by agreements dated
February 17, 2010, December 30, 2011 and December 31, 2012
9, 16, 19
Employment Agreement between the Registrant and Marc Rubin, dated May 16, 2009, as amended by agreements dated
February 17, 2010, December 30, 2011 and December 31, 2012
,9 16, 19
Lease for the Registrant’s facilities, amended as of October 1, 2004
6
Amendments to lease for Registrant’s facilities dated May 21, 2007 and March 12, 2009
9
License Agreement between the Registrant and Sanofi-Aventis SA effective as of December 31, 1996
7
Sublicense Agreement between the Registrant and Novartis Pharma AG dated November 20, 1997
8
Loan and Security Agreement between the Registrant and Oxford Finance Corporation dated December 18, 2009
9
Stock Purchase Agreement between the Registrant and certain investors dated December 8, 2009
9
Amendment to Employment Agreement dated June 15, 2010 between the Registrant and Marc Rubin
10
F-26
No.
10.13
10.14
10.15
10.16
10.17
10.18
10.19
10.20
10.21
10.22
10.23
10.24
10.25*
14.1
23.1
31.1
32.1
Description
Amendment to Employment Agreement dated June 15, 2010 between the Registrant and Sunil Bhonsle
10
Amendment to lease for Registrant’s facilities dated June 15, 2010
11
Amended and Restated Loan and Security Agreement between the Registrant and Oxford Finance Corporation dated
September 27, 2010
12
Facility Agreement, dated as of March 15, 2011, by and among the Company, Deerfield Private Design Fund II, L.P.,
Deerfield Private Design International II, L.P., Deerfield Special Situations Fund, L.P., and Deerfield Special Situations
Fund International Limited
13
Security Agreement, dated as of March 15, 2011, by and among the Company, Deerfield Private Design Fund II, L.P.,
Deerfield Private Design International II, L.P., Deerfield Special Situations Fund, L.P., and Deerfield Special Situations
Fund International Limited
13
Royalty Purchase Agreement, dated November 14, 2011, by and among the Company, Deerfield Private Design Fund II,
L.P., Deerfield Special Situations Fund, L.P. and Horizon Sante TTNP SARL
14
Amended and Restated Royalty Agreement, dated November 14, 2011 by and among the Company, Deerfield Private
Design Fund II, L.P., Deerfield Special Situations Fund, L.P. and Horizon Sante TTNP SARL
14
Amended and Restated Royalty Repurchase Agreement, dated November 14, 2011, by and among the Company, Deerfield
Private Design Fund II, L.P., and Horizon Sante TTNP SARL
14
Cash Management Agreement, dated November 14, 2011, by and among the Company, Deerfield Private Design Fund II,
L.P., Deerfield Special Situations Fund, L.P. and Horizon Sante TTNP SARL
14
Paying Agent Agreement, dated November 14, 2011, by and among the Company, Deerfield Management Company, L.P.
and U.S. Bank National Association
14
Agreement, dated as of November 14, 2011, by and among the Company, Deerfield Private Design Fund II, L.P.,
Deerfield Private Design International II, L.P., Deerfield Special Situations Fund, L.P., and Deerfield Special Situations
Fund International Limited
14
Form of Subscription Agreement dated April 9, 2012
18
License Agreement by and between Titan Pharmaceuticals, Inc. and Braeburn Pharmaceuticals Sprl, dated December 14,
2012
20
Code of Business Conduct and Ethics
Consent of OUM & Co., LLP, Independent Registered Public Accounting Firm
Certification of the Principal Executive and Financial Officer pursuant to Rule 13(a)-14(a) of the Securities Exchange Act
of 1934
Certification of the Principal Executive and Financial Officer pursuant to 18 U.S.C. 1350, as adopted pursuant to Section
906 of the Sarbanes-Oxley Act of 2002
101.INS**
XBRL Instance Document
101.SCH**
XBRL Taxonomy Extension Schema Document
101.CAL**
XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF**
XBRL Taxonomy Extension Definition Linkbase Document
101.LAB**
XBRL Taxonomy Extension Label Linkbase Document
101.PRE**
XBRL Taxonomy Extension Presentation Linkbase Document
F-27
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
*
**
Incorporated by reference from the Registrant’s Registration Statement on Form SB-2 (File No. 33-99386).
Incorporated by reference from the Registrant’s Current Report on Form 8-K dated December 27, 2007.
Incorporated by reference from the Registrant’s definitive Proxy Statement filed on July 28, 2000.
Incorporated by reference from the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2001.
Incorporated by reference from the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2002.
Incorporated by reference from the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2005.
Incorporated by reference from the Registrant’s Annual Report on Form 10-KSB for the year ended December 31, 1996.
Incorporated by reference from the Registrant’s Registration Statement on Form S-3 (File No. 333-42367).
Incorporated by reference from the Registrant’s Registration Statement on Form 10.
Incorporated by reference from the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2003.
Incorporated by reference from the Registrant’s Quarterly Report on Form 10-Q for the period ended June 30, 2010.
Incorporated by reference from the Registrant’s Quarterly Report on Form 10-Q for the period ended September 30, 2010.
Incorporated by reference from the Registrant’s Current Report on Form 8-K filed on March 18, 2011.
Incorporated by reference from the Registrant’s Current Report on Form 8-K filed on November 17, 2011.
Incorporated by reference from the Registrant’s Current Report on Form 8-K filed on December 21, 2011.
Incorporated by reference from the Registrant’s Current Report on Form 8-K filed on January 4, 2012.
Incorporated by reference from the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2011.
Incorporated by reference from the Registrant’s Current Report on Form 8-K filed on April 10, 2013.
Incorporated by reference from the Registrant’s Current Report on Form 8-K filed on January 2, 2013.
Incorporated by reference from the Registrant’s Current Report on Form 8-K/A filed on February 28, 2013.
Confidential treatment has been granted with respect to portions of this exhibit.
Pursuant to Rule 406T of Regulation S-T, the interactive files on Exhibit 101.1 hereto are deemed not filed or part of a registration
statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, are deemed not filed for purposes of
Section 18 of the Securities Exchange Act of 1934, as amended, and otherwise are not subject to liability under those sections.
F-28
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: March 18, 2013
TITAN PHARMACEUTICALS, INC.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons in the
capacities and on the dates stated.
By:
Name:
Title:
Sunil Bhonsle
President
/S/ SUNIL BHONSLE
Signature
/s/ Marc Rubin, M.D.
Marc Rubin, M.D.
/s/ Sunil Bhonsle
Sunil Bhonsle
/s/ Victor J. Bauer, Ph.D.
Victor J. Bauer, Ph.D.
/s/ Eurelio M. Cavalier
Eurelio M. Cavalier
/s/ Hubert E. Huckel, M.D.
Hubert E. Huckel, M.D.
/s/ M. David MacFarlane, Ph.D.
M. David MacFarlane, Ph.D.
/s/ Ley S. Smith
Ley S. Smith
/s/ Brian Crowley
Brian Crowley
Title
Executive Chairman
President and Director
(principal executive officer
and principal financial officer)
Director
Director
Director
Director
Director
Vice President, Finance
(principal accounting officer)
1
Date
March 18, 2013
March 18, 2013
March 18, 2013
March 18, 2013
March 18, 2013
March 18, 2013
March 18, 2013
March 18, 2013
EXHIBIT INDEX
Exhibits
Description
Amended and Restated Certificate of Incorporation of the Registrant, as amended
9
By-laws of the Registrant
1
Certificate of Designations of Junior Participating Preferred Stock of Titan Pharmaceuticals, Inc.
15
Registration Rights Agreement dated as of December 17, 2007
2
Registration Rights Agreement dated as of December 8, 2009
9
Warrant to Purchase Common Stock dated December 23, 2009 issued to Oxford Finance Corporation
9
Form of Warrant
13
Registration Rights Agreement, dated as of March 15, 2011
13
Form of Series A Warrant
18
1998 Stock Option Plan
3
2001 Non-Qualified Employee Stock Option Plan
4
2002 Stock Option Plan
5
Employment Agreement between the Registrant and Sunil Bhonsle, dated May 16, 2009, as amended by agreements dated
February 17, 2010, December 30, 2011 and December 31, 2012
9, 16, 19
Employment Agreement between the Registrant and Marc Rubin, dated May 16, 2009, as amended by agreements dated
February 17, 2010, December 30, 2011 and December 31, 2012
,9 16, 19
Lease for the Registrant’s facilities, amended as of October 1, 2004
6
Amendments to lease for Registrant’s facilities dated May 21, 2007 and March 12, 2009
9
License Agreement between the Registrant and Sanofi-Aventis SA effective as of December 31, 1996
7
Sublicense Agreement between the Registrant and Novartis Pharma AG dated November 20, 1997
8
Loan and Security Agreement between the Registrant and Oxford Finance Corporation dated December 18, 2009
9
Stock Purchase Agreement between the Registrant and certain investors dated December 8, 2009
9
Amendment to Employment Agreement dated June 15, 2010 between the Registrant and Marc Rubin
10
Amendment to Employment Agreement dated June 15, 2010 between the Registrant and Sunil Bhonsle
10
Amendment to lease for Registrant’s facilities dated June 15, 2010
11
Amended and Restated Loan and Security Agreement between the Registrant and Oxford Finance Corporation dated
September 27, 2010
12
No.
3.1
3.2
3.3
4.1
4.2
4.3
4.4
4.5
4.6
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8*
10.9*
10.10
10.11
10.12
10.13
10.14
10.15
No.
10.16
10.17
10.18
10.19
10.20
10.21
10.22
10.23
10.24
10.25*
14.1
23.1
31.1
32.1
Description
Facility Agreement, dated as of March 15, 2011, by and among the Company, Deerfield Private Design Fund II, L.P.,
Deerfield Private Design International II, L.P., Deerfield Special Situations Fund, L.P., and Deerfield Special Situations
Fund International Limited
13
Security Agreement, dated as of March 15, 2011, by and among the Company, Deerfield Private Design Fund II, L.P.,
Deerfield Private Design International II, L.P., Deerfield Special Situations Fund, L.P., and Deerfield Special Situations
Fund International Limited
13
Royalty Purchase Agreement, dated November 14, 2011, by and among the Company, Deerfield Private Design Fund II,
L.P., Deerfield Special Situations Fund, L.P. and Horizon Sante TTNP SARL
14
Amended and Restated Royalty Agreement, dated November 14, 2011 by and among the Company, Deerfield Private
Design Fund II, L.P., Deerfield Special Situations Fund, L.P. and Horizon Sante TTNP SARL
14
Amended and Restated Royalty Repurchase Agreement, dated November 14, 2011, by and among the Company, Deerfield
Private Design Fund II, L.P., and Horizon Sante TTNP SARL
14
Cash Management Agreement, dated November 14, 2011, by and among the Company, Deerfield Private Design Fund II,
L.P., Deerfield Special Situations Fund, L.P. and Horizon Sante TTNP SARL
14
Paying Agent Agreement, dated November 14, 2011, by and among the Company, Deerfield Management Company, L.P.
and U.S. Bank National Association
14
Agreement, dated as of November 14, 2011, by and among the Company, Deerfield Private Design Fund II, L.P.,
Deerfield Private Design International II, L.P., Deerfield Special Situations Fund, L.P., and Deerfield Special Situations
Fund International Limited
14
Form of Subscription Agreement dated April 9, 2012
18
License Agreement by and between Titan Pharmaceuticals, Inc. and Braeburn Pharmaceuticals Sprl, dated December 14,
2012
20
Code of Business Conduct and Ethics
Consent of OUM & Co., LLP, Independent Registered Public Accounting Firm
Certification of the Principal Executive and Financial Officer pursuant to Rule 13(a)-14(a) of the Securities Exchange Act
of 1934
Certification of the Principal Executive and Financial Officer pursuant to 18 U.S.C. 1350, as adopted pursuant to Section
906 of the Sarbanes-Oxley Act of 2002
101.INS**
XBRL Instance Document
101.SCH**
XBRL Taxonomy Extension Schema Document
101.CAL**
XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF**
XBRL Taxonomy Extension Definition Linkbase Document
101.LAB**
XBRL Taxonomy Extension Label Linkbase Document
101.PRE**
XBRL Taxonomy Extension Presentation Linkbase Document
(1)
(2)
(3)
(4)
Incorporated by reference from the Registrant’s Registration Statement on Form SB-2 (File No. 33-99386).
Incorporated by reference from the Registrant’s Current Report on Form 8-K dated December 27, 2007.
Incorporated by reference from the Registrant’s definitive Proxy Statement filed on July 28, 2000.
Incorporated by reference from the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2001.
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
*
**
Incorporated by reference from the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2002.
Incorporated by reference from the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2005.
Incorporated by reference from the Registrant’s Annual Report on Form 10-KSB for the year ended December 31, 1996.
Incorporated by reference from the Registrant’s Registration Statement on Form S-3 (File No. 333-42367).
Incorporated by reference from the Registrant’s Registration Statement on Form 10.
Incorporated by reference from the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2003.
Incorporated by reference from the Registrant’s Quarterly Report on Form 10-Q for the period ended June 30, 2010.
Incorporated by reference from the Registrant’s Quarterly Report on Form 10-Q for the period ended September 30, 2010.
Incorporated by reference from the Registrant’s Current Report on Form 8-K filed on March 18, 2011.
Incorporated by reference from the Registrant’s Current Report on Form 8-K filed on November 17, 2011.
Incorporated by reference from the Registrant’s Current Report on Form 8-K filed on December 21, 2011.
Incorporated by reference from the Registrant’s Current Report on Form 8-K filed on January 4, 2012.
Incorporated by reference from the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2011.
Incorporated by reference from the Registrant’s Current Report on Form 8-K filed on April 10, 2013.
Incorporated by reference from the Registrant’s Current Report on Form 8-K filed on January 2, 2013.
Incorporated by reference from the Registrant’s Current Report on Form 8-K/A filed on February 28, 2013.
Confidential treatment has been granted with respect to portions of this exhibit.
Pursuant to Rule 406T of Regulation S-T, the interactive files on Exhibit 101.1 hereto are deemed not filed or part of a registration
statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, are deemed not filed for purposes of
Section 18 of the Securities Exchange Act of 1934, as amended, and otherwise are not subject to liability under those sections.
TITAN PHARMACEUTICALS, INC.
CODE OF BUSINESS CONDUCT AND ETHICS
APPLICABLE TO DIRECTORS, OFFICERS AND EMPLOYEES
Exhibit 14.1
To promote the ethical conduct and integrity generally of Titan Pharmaceuticals, Inc. (the “Company”), and to promote accurate, fair and
timely reporting of the Company’s financial results and condition and other information the Company releases to the public market and include
in reports it files with the Securities and Exchange Commission (the “SEC”), all directors, officers and employees of the Company are bound
by the following Code of Ethics, under which each agrees that he or she shall:
•
•
•
•
•
•
Act with honesty and integrity, avoiding actual or apparent conflicts of interest in personal and professional relationships, including
disclosure to the Chairman of the Audit Committee of any material transaction or relationship that reasonably could be expected to
give rise to such a conflict.
Be prohibited from: personally taking advantage of business opportunities that are discovered through the use of corporate
property, information or his or her position with the Company; using corporate property, information or his or her position for
personal gain; or competing against the Company while an employee of the Company.
Provide information within the scope of his or her duties in a manner which promotes full, fair, accurate, timely and understandable
disclosure in reports and documents that the Company files with, or submits to, government agencies and in the Company’s other
public communications.
Comply with rules and regulations of foreign, federal, state, provincial and local governments, and other appropriate private and
public regulatory agencies, including insider trading laws and the Company’s insider trading policy.
Act in good faith, responsibly, with due care, competence and diligence, without misrepresenting material facts or allowing one’s
independent judgment to be subordinated.
Deal fairly with the Company’s customers, suppliers, competitors and employees, and not take unfair advantage of anyone through
manipulation, concealment, abuse of privileged information, misrepresentation of material facts, or any other unfair dealings.
1
•
•
•
•
Keep confidential all confidential information, as discussed in more detail below.
Proactively promote and be an example of ethical behavior.
Achieve responsible use of and control over all assets and resources employed or entrusted.
Promptly report to the Chairman of the Audit Committee any conduct that the individual believes to be or would give rise to a
violation of law or business ethics or of any provision of this Code of Ethics or the Company’s general code of conduct.
CONFIDENTIAL INFORMATION AND PUBLIC DISCLOSURES
As an employee of the Company, you may learn of information about the Company that is confidential and proprietary. You also may
learn of information before that information is released to the general public. Employees who have received or have access to confidential
information should take care to keep this information confidential. Confidential information includes non-public information that might be of
use to competitors or harmful to the Company or its suppliers, vendors or partners if disclosed, such as business, marketing and service plans,
financial information, product development, scientific data, manufacturing, clinical trial results, regulatory developments, databases, customer
lists, pricing strategies, personnel data, personally identifiable information pertaining to our employees, patients or other individuals (including,
for example, names, addresses, telephone numbers and social security numbers), and similar types of information provided to us by our
customers, suppliers and partners. This information may be protected by patent, trademark, copyright and trade secret laws. In addition,
because the Company interacts with other companies and organizations, there may be times when you learn confidential information about
other companies before that information has been made available to the public. You must treat this information in the same manner as you are
required to treat the Company’s confidential and proprietary information. There may even be times when you must treat as confidential the fact
that the Company has an interest in, or is involved with, another company.
You have a duty to keep confidential and proprietary information confidential unless and until that information is released to the public
through approved channels (usually through a press release, an SEC filing or a formal communication from a member of senior management,
as further described below). This policy requires you to refrain from discussing confidential or proprietary information with outsiders and
even with other Company employees, unless those fellow employees have a legitimate need to know the information in order to perform their
job duties. Unauthorized use or distribution of this information could also be illegal and result in civil liability and/or criminal penalties.
2
You should also take care not to inadvertently disclose confidential information. Materials that contain confidential information, such as
memos, notebooks, computer disks and laptop computers, should be stored securely. Unauthorized posting or discussion of any information
concerning the Company’s business, information or prospects on the Internet is prohibited. You may not discuss the Company’s business,
information or prospects in any “chat room,” regardless of whether you use your own name or a pseudonym. Be cautious when discussing
sensitive information in public places like elevators, airports, restaurants and “quasi-public” areas within the Company, or in and around the
Company’s facilities. All Company emails, voicemails and other communications are presumed confidential and should not be forwarded or
otherwise disseminated outside of the Company, except where required for legitimate business purposes.
In addition to the above responsibilities, if you are handling information protected by any privacy policy published by the Company, then
you must handle that information in accordance with the applicable policy.
It is the Company’s policy to disclose material information concerning the Company to the public only through specific limited channels
to avoid inappropriate publicity and to ensure that all those with an interest in the Company will have equal access to information. All inquiries
or calls from the press and financial analysts should be referred to the President or the Executive Chairman. The Company has designated our
President and Executive Chairman as our official spokespersons for questions concerning the financial performance, strategic direction or
operating performance of the Company, and operational issues such a research and development, regulatory developments, sales and
marketing, etc. You also may not provide any information to the media about us off the record, for background, confidentially or secretly,
including, without limitation, by way of postings on internet websites, chat rooms or “blogs.”
Action by members of your family, significant others or other persons who live in your household also may potentially result in ethical
issues to the extent that they involve the Company’s business. Consequently, in complying with the Code of Ethics, you should consider not
only your own conduct, but also that of your family members, significant others and other persons who live in your household.
It is against the Company’s policy to retaliate against any employee for good faith reporting of violations of this Code. Violations of this
Code of Ethics, including failures to report potential violations by others, will be viewed as a severe disciplinary matter that may result in
personnel action, including termination of employment. Any waiver of this Code for executive officers or directors may be made only by the
board of directors or an authorized committee of the board of directors and will be disclosed as required by applicable laws.
If you believe that a violation of the Code of Ethics has occurred, please contact the Chairman of the Audit Committee.
Dated : February 21, 2013
3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 (File No. 333-171181) and Form S-3 (File
Nos. 333-178656 and 333-173457) of our reports dated March 14, 2013 relating to the consolidated financial statements and the effectiveness
of internal control over financial reporting of Titan Pharmaceuticals, Inc. included in this Annual Report on Form 10-K for the year ended
December 31, 2012.
Exhibit 23.1
/s/ OUM & Co. LLP
San Francisco, California
March 14, 2013
Exhibit 31.1
I, Sunil Bhonsle, certify that:
1. I have reviewed this Annual Report on Form 10-K of Titan Pharmaceuticals, Inc.;
CERTIFICATION
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. I am 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 my
supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to
me 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
my 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. I have disclosed, based on my 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 18, 2013
/s/ Sunil Bhonsle
Name: Sunil Bhonsle
Title:
President
(Principal Executive Officer and Principal
Financial Officer)
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO SECTION 906
OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 32.1
In connection with this annual report on Form 10-K of Titan Pharmaceuticals, Inc. (the “Company”) for the period ended December 31,
2012, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned officer of the Company hereby
certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to the best of his
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.
Date: March 18, 2013
/s/ Sunil Bhonsle
Name: Sunil Bhonsle
Title:
President
(Principal Executive Officer and Principal
Financial Officer)