Amendment to Annual Report — [x] Reg. S-K Item 405 — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K405/A Cephalon, Inc. Form 10-K405/A Amendment No. 1 7 42K
2: EX-4.3(B) Form of Revenue Sharing Senior Secured Note 49 186K
7: EX-10.12 Toll Manufacturing and Packaging Agreement 30 99K
3: EX-10.5H Amendment No. 5 to License Agreement 3 16K
4: EX-10.5I Amendment No. 6 to License Agreement 3 15K
5: EX-10.5J Amendment No. 3 to Trademark Agreement 2 8K
6: EX-10.5K Amendment No. 4 to Trademark Agreement 2 10K
10-K405/A — Cephalon, Inc. Form 10-K405/A Amendment No. 1
Document Table of Contents
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
(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, 1998
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 0-19119
CEPHALON, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 23-2484489
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
145 BRANDYWINE PARKWAY, 19380
WEST CHESTER, PENNSYLVANIA (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code: (610) 344-0200
Securities registered pursuant to Section 12(b) of the Act:
Name of each
exchange
Title of each class on which registered
------------------- -------------------
None None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. YES [X]. No [_].
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
The aggregate market value of the voting stock held by non-affiliates of
the registrant is approximately $201,828,095. Such aggregate market value was
computed by reference to the closing price of the Common Stock as reported on
the Nasdaq National Market on February 19, 1999. For purposes of making this
calculation only, the registrant has defined affiliates as including all
directors and beneficial owners of more than ten percent of the Common Stock of
the Company.
The number of shares of the registrant's Common Stock outstanding as of
February 19, 1999 was 28,820,542.
The purpose of Amendment No. 1 is to refile Exhibits 4.3(b), 10.5(h),
10.5(i), 10.5(j) and 10.5(k). Portions of these Exhibits have been omitted and
have been filed separately with the Securities and Exchange Commission pursuant
to an application for confidential treatment filed with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Act of 1934, as
amended.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
FINANCIAL STATEMENTS
The Information required by this item was previously filed.
SCHEDULES
All schedules are omitted because they are not applicable or are not
required, or because the required information is included in the consolidated
financial statements or notes thereto.
Reports on Form 8-K
During the fiscal quarter ended December 31, 1998, the Company filed a
Current Report on Form 8-K on December 28, 1998 announcing approval from the
U.S. Food and Drug Administration to market PROVIGIL(R) (modafinil) Tablets for
the treatment of excessive daytime sleepiness associated with narcolepsy.
EXHIBITS
The following is a list of exhibits filed as part of this annual report on
Form 10-K. Where so indicated by footnote, exhibits which were previously filed
are incorporated by reference. For exhibits incorporated by reference, the
location of the exhibit in the previous filing is indicated in parenthesis.
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EXHIBIT
NO.
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3.1 Restated Certificate of Incorporation, as amended. (Exhibit 3.1)(19)
3.2 Bylaws of the Registrant, as amended. (Exhibit 3.1)(19)
4.1 Specimen copy of stock certificate for shares of Common Stock of the Registrant (Exhibit
4.1)(10).
4.2 Amended and Restated Rights Agreement, dated as of January 1, 1999, between Cephalon, Inc. and
StockTrans, Inc. as Rights Agent (Exhibit 1) (22).
**4.3(a) Form of Note Purchase Agreement dated as of February 24, 1999 by and
between Cephalon and Investor.
*4.3(b) Form of Revenue Sharing Senior Secured Note due 2002 dated March
1, 1999. (21)
**4.3(c) Form of Class A Warrant.
**4.3(d) Form of Class B Warrant.
*4.3(e) Security Agreement dated March 1, 1999 between Cephalon, Inc. and Delta Opportunity Fund,
Ltd., as collateral agent.
*4.3(f) Patent and Trademark Agreement dated March 1,1999 between Cephalon, Inc. and Delta
Opportunity Fund, Ltd., as collateral agent.
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EXHIBIT
NO.
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10.1 Letter agreement dated March 22, 1995, between Cephalon, Inc. and the Salk Institute for
Biotechnology Industrial Associates, Inc. (Exhibit 99.1)(15).
10.2 Deliberately omitted.
10.3 Stock Purchase Agreement dated July 28, 1995, between Cephalon, Inc. and Kyowa Hakko
Kogyo Co., Ltd. (Exhibit 99.3)(16).
10.4(a) License Agreement, dated May 15, 1992, between Cephalon, Inc. and Kyowa Hakko Kogyo Co.,
Ltd. (Exhibit 10.6)(4)(20).
10.4(b) Letter agreement dated March 6, 1995 amending License Agreement between Cephalon, Inc. and
Kyowa Hakko Kogyo Co., Ltd. (Exhibit 10.4(6))(14)(20).
10.5(a) Supply Agreement, dated January 20, 1993, between Cephalon, Inc. and Laboratoire L. Lafon
(Exhibit 10.1)(7)(20).
10.5(b) License Agreement, dated January 20, 1993, between Cephalon, Inc. and Laboratoire L. Lafon
(Exhibit 10.2)(7)(20).
10.5(c) Trademark Agreement, dated January 20, 1993, between Cephalon, Inc. and Genelco S.A.
(Exhibit 10.3)(7)(20).
10.5(d) Amendment to License Agreement and Supply Agreement, dated July 21, 1993, between
Cephalon, Inc. and Laboratoire L. Lafon (Exhibit 10.1)(10)(11).
10.5(e) Amendment to Trademark Agreement, dated July 21, 1993, between Cephalon, Inc. and
Genelco S.A. (Exhibit 10.2)(11)(20).
10.5(f) Amendment No. 3 to License Agreement dated June 8, 1995, between Cephalon, Inc. and
Laboratoire L. Lafon (Exhibit 99.2)(15).
10.5(g) Amendment No. 4 to License Agreement and Supply Agreement dated August 23, 1995,
between Cephalon, Inc. and Laboratoire L. Lafon (Exhibit 10.5(g))(17)(20).
*10.5(h) Amendment No. 5 to License Agreement and Supply Agreement dated January 21, 1998 between
Cephalon, Inc. and Laboratoire L. Lafon. (21)
*10.5(i) Amendment No. 6 to License Agreement and Supply Agreement dated February 2, 1998 between
Cephalon, Inc. and Laboratoire L. Lafon. (21)
*10.5(j) Amendment No. 3 to Trademark Agreement dated January 21, 1998 between Cephalon, Inc. and Genelco
S.A. (21)
*10.5(k) Amendment No. 4 to Trademark Agreement dated February 9, 1998 between Cephalon, Inc. and Genelco
S.A. (21)
+10.6(a) Cephalon, Inc. Amended and Restated 1987 Stock Option Plan (Exhibit 10.7)(4).
+10.6(b) Cephalon, Inc. Equity Compensation Plan (Exhibit 10.6(b))(17).
+10.6(c) Cephalon, Inc. Non-Qualified Deferred Compensation Plan (Exhibit 10.6(c))(10).
10.7 Form of Note Purchase Agreement, dated as of January 15, 1997, between Cephalon, Inc. and
the several purchasers of Cephalon's Senior Convertible Notes, without exhibits (10.1)(18).
10.8(a) Amended and Restated Agreement of Limited Partnership, dated as of June 22, 1992, by and
among Cephalon Development Corporation, as general partner, and each of the limited partners
of Cephalon Clinical Partners, L.P. (Exhibit 10.1)(6).
10.8(b) Amended and Restated Product Development Agreement, dated as of August 11, 1992, by and
between the Registrant and Cephalon Clinical Partners, L.P. (Exhibit 10.2)(6)(20).
10.8(c) Purchase Agreement, dated as of August 11, 1992, by and between the Registrant and each of
the limited partners of Cephalon Clinical Partners, L.P. (Exhibit 10.3)(6)(20).
10.8(d) Form of Series A Warrant to purchasers of Units including a limited partnership interest in
Cephalon Clinical Partners, L.P. (Exhibit 10.4)(6).
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EXHIBIT
No.
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10.8(e) Form of Series B Warrant to purchasers of Units including a limited partnership interest in
Cephalon Clinical Partners, L.P. (Exhibit 10.5)(6).
10.8(f) Incentive Warrant to purchase 115,050 shares of Common Stock of the Registrant issued to
PaineWebber Incorporated (Exhibit 10.6)(6).
10.8(g) Fund Warrant to purchase 19,950 shares of Common Stock of the Registrant issued to
PaineWebber R&D Partners III, L.P. (Exhibit 10.7)(6).
10.8(h) Pledge Agreement, dated as of August 11, 1992, by and between Cephalon Clinical Partners, L.P.
and the Registrant (Exhibit 10.8)(6).
10.8(i) Promissory Note, dated as of August 11, 1992, issued by Cephalon Clinical Partners, L.P. to the
Registrant (Exhibit 10.9)(6).
10.8(j) Form of Promissory Note, issued by each of the limited partners of Cephalon Clinical Partners,
L.P. to Cephalon Clinical Partners, L.P. (Exhibit 10.10)(6).
10.9 Supply, Distribution and License Agreement, dated as of July 27, 1993, by and between Kyowa
Hakko Kogyo Co., Ltd. and Cephalon, Inc. (Exhibit 10.3)(11)(20).
10.10(a) Agreement between Cephalon, Inc. and Chiron Corporation dated as of January 7, 1994
(Exhibit 10.1)(12)(20).
10.10(b) Letter agreement dated January 13, 1995 amending Agreement between Cephalon, Inc. and
Chiron Corporation (Exhibit 10.12(b))(14)(20).
10.10(c) Letter agreement dated May 23, 1995 amending Agreement between Cephalon, Inc. and Chiron
Corporation (Exhibit 10.12(c))(17)(20).
10.11(a) Agreement between Cephalon, Inc. and TAP Holdings Inc. (formerly TAP Pharmaceuticals
Inc.) dated as of May 17, 1994 (Exhibit 99.2)(13)(20).
10.11(b) Amendment dated June 28, 1996 amending Agreement between Cephalon, Inc. and TAP
Holdings Inc. (Exhibit 10.13(b))(19)(21)
*10.12 Toll Manufacturing and Packaging Agreement dated February 24, 1998 between Cephalon, Inc. and
Circa Pharmaceuticals, Inc. (21)
**21 Subsidiaries of Cephalon, Inc.
**23.1 Consent of Arthur Andersen LLP.
**24 Power of Attorney (included on the signature page to this Form 10-K Report).
**27 Financial Data Schedule
* Filed herewith.
** Previously filed
+ Compensation plans and arrangements for executives and others.
(1 ) Filed as an Exhibit to the Registration Statement on Form S-1 filed on
March 15, 1991.
(2) Filed as an Exhibit to Pre-Effective Amendment No. 1 to the Registration
Statement on Form S-1 (Registration No. 33-39413) filed on April 19, 1991.
(3) Filed as an Exhibit to Pre-Effective Amendment No. 2 to the Registration
Statement on Form S-1 (Registration No. 33-39413) filed on April 22, 1991.
(4) Filed as an Exhibit to the Transition Report on Form 10-K for transition
period from January 1, 1991 to December 31, 1991, as amended by Amendment
No. 1 filed on September 4, 1992 on Form 8.
(5) Filed as an Exhibit to the Company's Current Report on Form 8-K filed on
December 31, 1992.
(6) Filed as an Exhibit to the Registration Statement on Form S-3 (Registration
No. 33-56816) filed on January 7, 1993.
(7) Filed as an Exhibit to the Registration Statement on Form S-3 (Registration
No. 33-58006) filed on February 8, 1993.
(8) Filed as an Exhibit to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1992.
4
(9) Filed as an Exhibit to the Company's Current Report on Form 8-K dated June
8, 1993.
(10) Filed as an Exhibit to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1993.
(11) Filed as an Exhibit to the Registration Statement on Form S-3 (Registration
No. 33-73896) filed on January 10, 1994.
(12) Filed as an Exhibit to the Company's Current Report on Form 8-K dated
January 10, 1994.
(13) Filed as an Exhibit to the Company's Current Report on Form 8-K dated May
17, 1994.
(14) Filed as an Exhibit to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994.
(15) Filed as an Exhibit to the Registration Statement on Amendment No. 1 to
Form S-3 (Registration No. 33-93964) filed on June 30, 1995.
(16) Filed as an Exhibit to the Registration Statement on Amendment No. 2 to
Form S-3 (Registration No. 33-93964) filed on July 31, 1995.
(17) Filed as an Exhibit to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995.
(18) Filed as an Exhibit to the Registration Statement on Form S-3 (Registration
No. 333-20321) filed on January 24, 1997.
(19) Filed as an Exhibit to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996.
(20) Portions of the Exhibit have been omitted and have been filed separately
pursuant to an application for confidential treatment granted by the
Securities and Exchange Commission.
(21) Portions of the Exhibit have been omitted and have been filed separately
pursuant to an application for confidential treatment filed with the
Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended.
(22) Filed as an Exhibit to the Company's Form 8-A/A (12G) filed on January 20,
1999.
5
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934, THE REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED.
Date: May 24, 1999 Cephalon, Inc.
By: /s/ Frank Baldino, Jr., Ph.D.
---------------------------------------
Frank Baldino, Jr., Ph.D.
President and Chief Executive Officer
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Exhibit Index
The Exhibits that have been filed herewith this Form 10-K/A are summarized
as follows:
Exhibit No. Description
---------- -----------
*4.3(b) Form of Revenue Sharing Senior Secured Note due 2002
dated March 1, 1999.
*10.5(h) Amendment No. 5 to License Agreement and Supply
Agreement dated January 21, 1998 between Cephalon,
Inc. and Laboratoire L. Lafon.
*10.5(i) Amendment No. 6 to License Agreement and Supply
Agreement dated February 2, 199 between Cephalon, Inc.
and Laboratoire L. Lafon.
*10.5(j) Amendment No. 3 to Trademark Agreement dated January
21, 1998 between Cephalon, Inc. and Genelco S.A.
*10.5(k) Amendment No. 4 to Trademark Agreement dated February
9, 1998 between Cephalon, S.A.
*10.12 Toll Manufacturing and Packaging Agreement dated
February 24, 1998 between Cephalon, Inc. and Cirea
Pharmaceuticals, Inc.
*Portions of this Exhibit have been omitted and have
been filed separately with the Securities and Exchange
Commission pursuant to an application for confidential
treatment filed with the Securities and Exchange
Commission pursuant to Rule 246-2 under the Securities
Exchange Act of 1934, as amended
Dates Referenced Herein and Documents Incorporated by Reference
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