Arena Pharmaceuticals, Inc.
ARENA PHARMACEUTICALS INC (Form: 10-Q, Received: 08/13/2003 17:14:55)

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 10-Q

 

 

ý

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934

FOR THE QUARTERLY PERIOD ENDED JUNE 30, 2003

 

OR

 

 

o

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934

 

FOR THE TRANSITION PERIOD FROM              TO             .

 

COMMISSION FILE NUMBER 000-31161

 

ARENA PHARMACEUTICALS, INC.

(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)

 

DELAWARE

 

23-2908305

(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)

 

(I.R.S. EMPLOYER
IDENTIFICATION NO.)

 

 

 

6166 Nancy Ridge Drive, San Diego, CA

 

92121

(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)

 

(ZIP CODE)

 

(858) 453-7200

(REGISTRANT’S TELEPHONE NUMBER, INCLUDING AREA CODE)

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

 

Yes ý No o

 

Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act).

 

Yes ý No o

 

The number of shares of common stock outstanding as of the close of business on July 31, 2003:

 

Class

 

Number of Shares Outstanding

 

 

 

 

 

Common Stock, $0.0001 par value

 

28,568,530

 

 

 



 

ARENA PHARMACEUTICALS, INC.

 

INDEX

 

PART I. FINANCIAL INFORMATION

 

 

Item 1.

Unaudited Consolidated Financial Statements

 

 

 

Condensed Consolidated Balance Sheets - As of June 30, 2003, and December 31, 2002

 

 

 

Condensed Consolidated Statements of Operations – Three and six months ended June 30, 2003 and 2002

 

 

 

Condensed Consolidated Cash Flow Statements – Six months ended June 30, 2003 and 2002

 

 

 

Notes to Unaudited Condensed Consolidated Financial Statements

 

 

Item 2.

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

 

Item 3.

Quantitative and Qualitative Disclosures About Market Risk

 

 

Item 4.

Controls and Procedures

 

 

PART II. OTHER INFORMATION

 

 

Item 4.

Submission of Matters to a Vote of Security Holders

 

 

Item 6.

Exhibits and Reports on Form 8-K

 

 

Signatures

 

 

Arena Pharmaceuticals®, Arena®, Aressa Pharmaceuticals® and our corporate logo are registered service marks of Arena.  CART™ and BRL Screening™ are unregistered service marks of Arena.

 

In this report, “Arena Pharmaceuticals,” “Arena,” “we,” “us” and “our” refer to Arena Pharmaceuticals, Inc. and/or our wholly owned subsidiary, BRL Screening, Inc., unless the context otherwise provides.

 



 

PART I.   FINANCIAL INFORMATION

ITEM 1 .  Unaudited Consolidated Financial Statements

 

Arena Pharmaceuticals, Inc.

Condensed Consolidated Balance Sheets

 

 

 

June 30,
2003

 

December 31,
2002

 

 

 

(Unaudited)

 

(Note)

 

Assets

 

 

 

 

 

Current assets:

 

 

 

 

 

Cash and cash equivalents

 

$

31,847,959

 

$

61,871,305

 

Short-term investments, available-for-sale

 

128,243,340

 

123,271,580

 

Accounts receivable

 

41,186

 

3,519,209

 

Prepaid expenses and other current assets

 

5,266,735

 

4,647,558

 

Total current assets

 

165,399,220

 

193,309,652

 

 

 

 

 

 

 

Land, property and equipment, net

 

52,959,857

 

44,073,365

 

Acquired technology, net

 

11,791,710

 

12,560,208

 

Other non-current assets

 

4,228,253

 

4,946,822

 

Total assets

 

$

234,379,040

 

$

254,890,047

 

 

 

 

 

 

 

Liabilities and Stockholders’ Equity

 

 

 

 

 

Current liabilities:

 

 

 

 

 

Accounts payable and accrued expenses

 

$

3,206,742

 

$

4,010,513

 

Accrued compensation

 

1,103,519

 

912,906

 

Current portion of deferred revenues

 

3,829,279

 

4,148,492

 

Current portion of obligations under capital leases

 

142,742

 

363,311

 

Total current liabilities

 

8,282,282

 

9,435,222

 

 

 

 

 

 

 

Obligations under capital leases, less current portion

 

534

 

45,737

 

Deferred rent

 

925,872

 

912,941

 

Deferred revenues, less current portion

 

1,777,779

 

2,444,446

 

 

 

 

 

 

 

Commitments

 

 

 

 

 

 

 

 

 

 

 

Stockholders’ equity:

 

 

 

 

 

Common stock

 

2,855

 

2,775

 

Additional paid-in capital

 

305,991,857

 

300,887,917

 

Accumulated other comprehensive income

 

2,382,287

 

2,625,363

 

Deferred compensation

 

(4,007,011

)

(1,060,689

)

Accumulated deficit

 

(80,977,415

)

(60,403,665

)

Total stockholders’ equity

 

223,392,573

 

242,051,701

 

Total liabilities and stockholders’ equity

 

$

234,379,040

 

$

254,890,047

 

 

Note:                    The balance sheet at December 31, 2002, has been derived from audited financial statements at that date, but, since it is included in this interim statement, it does not include all of the information and notes required by accounting principles generally accepted in the United States for complete financial statements.

 

See accompanying notes to unaudited condensed consolidated financial statements.

 

1



 

Arena Pharmaceuticals, Inc.

Condensed Consolidated Statements of Operations

(Unaudited)

 

 

 

Three months ended
June 30,

 

Six months ended
June 30,

 

 

 

2003

 

2002

 

2003

 

2002

 

 

 

 

 

 

 

 

 

 

 

Revenues:

 

 

 

 

 

 

 

 

 

Total revenues

 

$

2,973,770

 

$

5,829,496

 

$

8,349,210

 

$

10,069,800

 

 

 

 

 

 

 

 

 

 

 

Expenses:

 

 

 

 

 

 

 

 

 

Research and development

 

13,131,197

 

10,296,001

 

25,197,309

 

19,137,061

 

General and administrative

 

2,081,980

 

1,851,731

 

3,967,171

 

3,621,484

 

Amortization of deferred compensation

 

828,684

 

600,872

 

1,862,650

 

1,356,481

 

Amortization of acquired technology

 

405,305

 

391,268

 

810,610

 

775,517

 

Total operating expenses

 

16,447,166

 

13,139,872

 

31,837,740

 

24,890,543

 

 

 

 

 

 

 

 

 

 

 

Interest income and other, net

 

1,711,081

 

1,696,738

 

2,914,780

 

2,737,371

 

Investment writedown

 

 

(1,700,000

)

 

(1,700,000

)

Net loss

 

$

(11,762,315

)

$

(7,313,638

)

$

(20,573,750

)

$

(13,783,372

)

 

 

 

 

 

 

 

 

 

 

Net loss per share, basic and diluted

 

$

(0.42

)

$

(0.27

)

$

(0.74

)

$

(0.50

)

 

 

 

 

 

 

 

 

 

 

Shares used in calculating net loss per share, basic and diluted

 

27,718,235

 

27,445,282

 

27,703,961

 

27,413,696

 

 

See accompanying notes to unaudited condensed consolidated financial statements.

 

2



 

Arena Pharmaceuticals, Inc.

Condensed Consolidated Cash Flow Statements

(Unaudited)

 

 

 

Six months ended June 30,

 

 

 

2003

 

2002

 

Operating Activities

 

 

 

 

 

Net loss

 

$

(20,573,750

)

$

(13,783,372

)

 

 

 

 

 

 

Adjustments to reconcile net loss to net cash used in operating activities:

 

 

 

 

 

Depreciation and amortization

 

2,735,200

 

1,465,603

 

Equity in losses of TaiGen

 

572,660

 

377,853

 

Amortization of acquired technology

 

810,610

 

775,517

 

Amortization of deferred compensation

 

1,862,650

 

1,356,481

 

Amortization/accretion of short-term investment premium /discount

 

882,337

 

634,915

 

Deferred rent

 

12,931

 

16,643

 

Loss on disposal of equipment

 

15,543

 

7,066

 

Investment writedown

 

 

1,700,000

 

Changes in operating assets and liabilities:

 

 

 

 

 

Accounts receivable

 

3,478,023

 

977,545

 

Prepaid expenses and other current assets

 

(661,289

)

(2,692,304

)

Deferred revenues

 

(985,880

)

(965,633

)

Accounts payable and accrued expenses

 

(613,158

)

32,123

 

Net cash used in operating activities

 

(12,464,123

)

(10,097,563

)

 

 

 

 

 

 

Investing Activities

 

 

 

 

 

Purchases of short-term investments, available-for-sale

 

(74,368,090

)

(128,923,426

)

Proceeds from sales/maturities of short-term investments

 

68,177,580

 

72,792,094

 

Purchases of land, property and equipment

 

(11,648,920

)

(7,253,244

)

Proceeds from sale of equipment

 

11,687

 

5,900

 

Deposits, restricted cash and other assets

 

239,246

 

(727,443

)

Net cash used in investing activities

 

(17,588,497

)

(64,106,119

)

 

 

 

 

 

 

Financing Activities

 

 

 

 

 

Principal payments under capital lease obligations

 

(265,772

)

(238,193

)

Proceeds from issuance of common stock

 

295,046

 

292,171

 

Net cash provided by financing activities

 

29,274

 

53,978

 

Net decrease in cash and cash equivalents

 

(30,023,346

)

(74,149,704

)

Cash and cash equivalents at beginning of period

 

61,871,305

 

176,676,669

 

Cash and cash equivalents at end of period

 

$

31,847,959

 

$

102,526,965

 

 

See accompanying notes to unaudited condensed consolidated financial statements.

 

3



 

Notes to Unaudited Condensed Consolidated Financial Statements

 

1.  Basis of Presentation

 

The accompanying unaudited condensed consolidated financial statements of Arena Pharmaceuticals, Inc. (together with its wholly owned subsidiary BRL Screening, Inc., the “Company”) should be read in conjunction with the audited financial statements and notes thereto included in the Company’s annual report on Form 10-K for the year ended December 31, 2002 (the “2002 Annual Report”), as filed with the Securities and Exchange Commission (the “SEC”).  The accompanying financial statements have been prepared in accordance with accounting principles generally accepted in the United States (“GAAP”) for interim financial information and in accordance with the instructions to Form 10-Q and Article 10 of Regulation S-X.  Accordingly, since they are interim statements, the accompanying financial statements do not include all of the information and notes required by GAAP for complete financial statements.  The accompanying financial statements reflect all adjustments, consisting of normal recurring adjustments, that are, in the opinion of management, necessary for a fair statement of the results of operations for the interim periods presented.  Interim results are not necessarily indicative of results for a full year.

 

The preparation of financial statements in accordance with GAAP requires management to make estimates and assumptions that affect amounts reported in the financial statements and notes thereto.  A discussion of the Company’s critical accounting policies and management estimates is described in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included elsewhere in this quarterly report on Form 10-Q.

 

2.  Net Loss Per Share

 

The Company calculates basic and diluted net loss per share for all periods presented in accordance with the Statement of Financial Accounting Standards (“SFAS”) No. 128, “Earnings Per Share.” Basic net loss per share was calculated by dividing the net loss for the period by the weighted-average number of common shares outstanding during the period, excluding contingently issuable shares because including them would be antidilutive.  Diluted net loss per share was calculated by dividing the net loss for the period by the weighted-average number of common shares outstanding during the period, excluding contingently issuable shares and outstanding options under the Company’s equity compensation plans because including them would be antidilutive.  “Contingently issuable shares” consist of, among other things, unvested restricted shares and common shares issued upon the exercise of unvested stock options that are subject to repurchase by the Company.

 

3.  Comprehensive Loss

 

Comprehensive loss is comprised of net loss adjusted for changes in market values in available-for-sale securities and other investments.  Below is a reconciliation of net loss to comprehensive loss for the periods presented.

 

 

 

Three months ended June 30,

 

Six months ended June 30,

 

 

 

2003

 

2002

 

2003

 

2002

 

 

 

 

 

 

 

 

 

 

 

Net loss

 

$

(11,762,315

)

$

(7,313,638

)

$

(20,573,750

)

$

(13,783,372

)

Unrealized gain (loss) on available-for-sale securities and other investments

 

(216,292

)

1,079,591

 

(243,076

)

566,024

 

Comprehensive loss

 

$

(11,978,607

)

$

(6,234,047

)

$

(20,816,826

)

$

(13,217,348

)

 

4.  Stock-based Compensation

 

The Company accounts for stock-based compensation in accordance with the provisions of Accounting Principles Board Opinion No. 25, “Accounting for Stock Issued to Employees” and its related Interpretations, which state that no compensation expense is recorded for stock options or other stock-based awards to employees that are granted with an exercise price equal to or above the fair value per share of the Company’s common stock per share on the grant date. In the event that stock options are granted with an exercise price below the fair value of the Company’s common stock on the grant date, the difference between the fair value of the Company’s common stock and the exercise price of the stock option is recorded as deferred compensation.  Deferred compensation is amortized to compensation expense over the vesting period of the stock option.  For stock options granted to its employees, the Company has adopted the disclosure-only requirements of SFAS No. 123 “Accounting for Stock-Based Compensation” and SFAS No. 148, “Accounting for Stock Based Compensation - Transition and Disclosure - an Amendment of FASB Statement No.

 

4



 

123,” which require compensation expense to be disclosed in the notes to the financial statements based on the fair value of the options granted at the date of the grant.  Compensation expense for options granted to consultants has been determined in accordance with SFAS No. 123 and Emerging Issue Task Force (“EITF”) Issue No. 96-18, “Accounting for Equity Instruments that are Issued to Other than Employees for Acquiring, or in Conjunction with Selling Goods or Services.” Such expense is based on the fair value of the options issued using the Black-Scholes method and is periodically remeasured as the underlying options vest in accordance with EITF Issue No. 96-18.  Deferred compensation for restricted stock granted to employees has been determined as the quoted market value on the date the restricted stock was granted.  Subsequent to Biotechnology Value Fund, L.P., Biotechnology Value Fund II, L.P., BVF Investments, L.L.C., BVF Partners L.P., and BVF Inc. (collectively, “BVF”) increasing their ownership in the Company’s stock in October 2002, in January, March and April 2003, the Company issued an aggregate of 750,500 shares of restricted common stock to key employees.  The restricted stock vests over a two or four-year period.  For the six months ended June 30, 2003, the Company recorded amortization of deferred compensation related to equity grants of $1.9 million.  For the six months ended June 30, 2002, the Company recorded amortization of deferred compensation related to equity grants of $1.4 million.  The Company expects that charges to be recognized in future periods from amortization of deferred compensation related to equity grants will be  $1.3 million for the remaining six months of 2003 and $1.7 million, $545,000, $429,000 and $36,000 for the years ending December 31, 2004, 2005, 2006 and 2007, respectively.

 

The following pro forma information regarding net loss and net loss per share has been determined as if the Company had accounted for its employee stock options under the fair value method prescribed by SFAS No. 123.  The fair value of options was estimated at the date of grant using a Black-Scholes option valuation model using the assumptions stated below.

 

 

 

Three months ended June 30,

 

Six months ended June 30,

 

 

 

2003

 

2002

 

2003

 

2002

 

 

 

 

 

 

 

 

 

 

 

Net loss

 

$

(11,762,315

)

$

(7,313,638

)

$

(20,573,750

)

$

(13,783,372

)

Fair value of stock-based employee compensation

 

(1,210,288

)

(1,845,052

)

(1,569,515

)

(3,624,381

)

Pro forma net loss

 

$

(12,972,603

)

$

(9,158,690

)

$

(22,143,265

)

$

(17,407,753

)

Net loss per share:

 

 

 

 

 

 

 

 

 

Basic and diluted - as reported

 

$

(0.42

)

$

(0.27

)

$

(0.74

)

$

(0.50

)

Basic and diluted - pro forma

 

$

(0.47

)

$

(0.33

)

$

(0.80

)

$

(0.64

)

 

 

 

 

 

 

 

 

 

 

Assumptions used:

 

 

 

 

 

 

 

 

 

Risk-free interest rate

 

2.5

%

4.1

%

2.5

%

4.1

%

Dividend yield

 

0

%

0

%

0

%

0

%

Volatility factors of the expected market price of the Company’s common stock

 

86

%

100

%

86

%

100

%

Weighted-average expected life of option (years)

 

5

 

5

 

5

 

5

 

 

The effects of applying SFAS No. 123 for providing pro forma disclosures may not be representative of the effect on reported net income (loss) for future years.

 

5.  Short-Term Investments, Available-for-Sale

 

At June 30, 2003, the Company held securities, classified as available-for-sale, with a market value of $128.2 million.  These securities consist primarily of investment-grade mortgage-backed and corporate debt securities, federal agency notes and U.S. Treasury securities.  The Company’s primary interest rate exposure results from changes in short-term and intermediate-term interest rates.  The Company does not purchase financial instruments for trading or speculative purposes.

 

6.  Concentration of Credit Risk

 

Financial instruments, which potentially subject the Company to concentrations of credit risk, consist primarily of cash, cash equivalents and short-term investments.  The Company limits its exposure to credit loss by placing its cash with high credit quality financial institutions and, in accordance with the Company’s investment policy, debt that is

 

5



 

rated investment grade.

 

The Company has earned a substantial portion of its revenues for the six months ended June 30, 2003, and 2002, from one or two collaborators.  For the six months ended June 30, 2003, Merck & Co., Inc. and Eli Lilly and Company (“Eli Lilly”) accounted for 51.1% and 34.5% of total revenues, respectively. For the six months ended June 30, 2002, Eli Lilly accounted for 79.9% of total revenues.

 

7.  Recent Accounting Pronouncement

 

In January 2003, the Financial Accounting Standards Board (“FASB”) issued FASB Interpretation No. 46 (“FIN 46”), “Consolidation of Variable Interest Entities.”  FIN 46 requires a variable interest entity to be consolidated by a company if that company is subject to a majority of the risk of loss from the variable interest entity’s activities or entitled to receive a majority of the entity’s residual returns or both.  A variable interest entity either (i) does not have equity investors with voting rights or (ii) has equity investors that do not provide sufficient financial resources to the entity to support its activities.  FIN 46 is effective immediately for all new variable interest entities created or acquired after January 31, 2003.  For variable interest entities created or acquired prior to February 1, 2003, the provisions of FIN 46 must be applied for the first interim or annual period beginning after June 15, 2003.  The adoption of FIN 46 has not had a material impact on the Company’s consolidated financial statements.

 

ITEM 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

This discussion and analysis should be read in conjunction with our financial statements and notes thereto included in this quarterly report on Form 10-Q (this “Quarterly Report”) and the audited financial statements and notes thereto included in our annual report on Form 10-K for the year ended December 31, 2002 (the “2002 Annual Report”), as filed with the Securities and Exchange Commission (the “SEC”).  Operating results are not necessarily indicative of results that may occur in future periods.

 

This Quarterly Report includes forward-looking statements.  These forward-looking statements involve a number of risks and uncertainties.  Such forward-looking statements include statements about our strategies, objectives, discoveries, collaborations, internal programs, and other statements that are not historical facts, including statements which may be preceded by the words “intend,” “will,” “plan,” “expect,” “anticipate,” “estimate,” “aim,” “believe,” “hope” or similar words.  For such statements, we claim the protection of the Private Securities Litigation Reform Act of 1995.  Readers of this Quarterly Report are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date on which they are made.  We undertake no obligation to update publicly or revise any forward-looking statements.  Actual events or results may differ materially from our expectations.  Important factors that could cause actual results to differ materially from those stated or implied by our forward-looking statements include, but are not limited to, the risk factors identified in our SEC reports, including this Quarterly Report.

 

OVERVIEW AND RECENT DEVELOPMENTS

 

We incorporated on April 14, 1997, in the state of Delaware and commenced operations in July 1997.  We are a biopharmaceutical company focused on discovering and developing drugs that act on an important class of drug targets called G protein-coupled receptors, or GPCRs.

 

In the six months ended June 30, 2003, we recorded revenues of $8.3 million from research and development collaborations with pharmaceutical companies.  Our revenues have historically fluctuated.  We expect that our revenues will continue to fluctuate significantly from quarter to quarter, depending on a variety of factors, including the timing of milestone achievements as evidenced by acknowledgment from our collaborators.  Research and development expenses totaled $25.2 million for the six months ended June 30, 2003.  We believe that continued investment in research and development is critical to attaining our strategic objectives.

 

In July 2003, we jointly agreed with Ferring Pharmaceuticals, Inc. to discontinue work under our collaboration.  We recognized revenues of $934,000 for the six months ended June 30, 2003, and $1.3 million for the year ended December 31, 2002, from this collaboration.  Unless we are successful in establishing new revenue generating collaborations in 2003, we expect substantially all of our revenues for the remaining six months of 2003 will be derived from our collaboration with Merck & Co., Inc. (“Merck”).

 

6



 

AVAILABLE INFORMATION

 

Our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, Section 16 reports and our other filings with the SEC, and any amendments to such reports, filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 are available free of charge on our Web site (www.arenapharm.com) as soon as reasonably practicable after they are filed with, or furnished to, the SEC.

 

CRITICAL ACCOUNTING POLICIES AND MANAGEMENT ESTIMATES

 

The SEC defines critical accounting policies as those that are, in management’s view, important to the portrayal of our financial condition and results of operations and demanding of management’s judgment.  Our discussion and analysis of our financial condition and results of operations are based on our consolidated financial statements, which have been prepared in accordance with accounting standards generally accepted in the United States (“GAAP”).  The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses.  We base our estimates on experience and on various assumptions that we believe are reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources.  Under different assumptions, actual results may differ from these estimates.

 

Our critical accounting policies include:

 

Revenue recognition .  Our revenue recognition policies are in accordance with the SEC Staff Accounting Bulletin No. 101, “Revenue Recognition in Financial Statements,” which provides guidance on revenue recognition in financial statements, and are based on the interpretations and practices developed by the SEC.  Many of our agreements contain multiple elements, including technology access fees, research funding, milestones and royalty obligations.

 

Revenue from a milestone is recognized when earned, as evidenced by acknowledgment from our collaborator, provided that (i) the milestone event is substantive and its achievability was not reasonably assured at the inception of the agreement, (ii) the milestone represents the culmination of an earnings process, and (iii) our performance obligations after the milestone achievement will continue to be funded by our collaborator at a comparable level to the level before the milestone achievement.  If all of these criteria are not met, the milestone payment is recognized over the remaining minimum period of our performance obligations under the agreement.  Upfront fees under our collaborations are deferred and recognized over the period the related services are provided.  Amounts received for research funding for a specified number of full-time researchers are recognized as revenue as the services are performed, as long as the amounts received are not refundable based on the results of the research project.  Advance payments received in excess of amounts earned are classified as deferred revenue until earned.

 

In November 2002, the Emerging Issues Task Force (“EITF”) finalized its tentative consensus on EITF Issue No. 00-21, “Revenue Arrangements with Multiple Deliverables,” which provides guidance on the timing and method of revenue recognition for sales arrangements that include the delivery of more than one product or service.  EITF Issue No. 00-21 is effective prospectively for arrangements we enter into after June 30, 2003.  We are evaluating the impact of EITF Issue No. 00-21 on revenue arrangements we enter into in the future, which will need to comply with EITF Issue No. 00-21.

 

Intangibles .  Purchase accounting requires estimates and judgments to allocate the purchase price to the fair market value of the assets received and liabilities assumed.  In February 2001, we acquired Bunsen Rush, Inc. for $15.0 million in cash and assumed $400,000 in liabilities.  We allocated $15.4 million to the patented Melanophore technology acquired in such transaction.  The Melanophore technology is being amortized over its estimated useful life of 10 years, which was determined based on an analysis, as of the acquisition date, of the conditions in, and the economic outlook for, the pharmaceutical and biotechnology industries and the patent life of the technology.  As with any intangible asset, we will continue to evaluate the value of the Melanophore technology, and we will record a future writedown of the carrying value of the technology if we determine that the technology has become impaired or we will accelerate the amortization if we determine that the technology life has been shortened.

 

Income taxes .  We record a valuation allowance to reduce our deferred tax assets to the amount that is more likely than not to be realized.  While we have considered future taxable income and prudent and feasible tax planning strategies in assessing the need for the valuation allowance, in the event we were to determine that we would be able to realize our deferred tax assets in the future in excess of their net recorded amount, an adjustment to the deferred tax assets would increase income in the period such determination was made.

 

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Stock-based compensation .  As permitted by the Statement of Financial Accounting Standards (“SFAS”) No. 123, “Accounting for Stock-Based Compensation,” we account for stock options granted to employees using the intrinsic value method in accordance with Accounting Principles Board (“APB”) Opinion No. 25, “Accounting for Stock Issued to Employees,” and the Financial Accounting Standards Board (“FASB”) Interpretation No. 44, “Accounting for Certain Transactions Involving Stock Compensation— An Interpretation of APB 25.”  Pursuant to these guidelines, we measure the intrinsic value of the option on its grant date as the difference between the exercise price of the option and the fair market value of our stock.  We then expense the difference, if any, over the vesting period of the option, on an accelerated basis, in accordance with FASB Interpretation No. 28, “Accounting for Stock Appreciation Rights and Other Variable Stock Option or Award Plans.”

 

If we had adopted SFAS No. 123 to account for options granted to employees under our stock-based compensation plans, our earnings would have been materially impacted.  The impact of this method is disclosed in the notes to the unaudited condensed consolidated financial statements earlier in this Quarterly Report.

 

Options issued to non-employees are accounted for under the fair value method in accordance with SFAS No. 123 and EITF Issue No. 96-18, “Accounting for Equity Instruments that are Issued to Other than Employees for Acquiring, or in Conjunction with Selling Goods or Services.”  Under the fair value method, compensation cost is measured at the grant date of the option based on the value of the award using the Black-Scholes method.  Compensation cost is periodically remeasured as the underlying options vest in accordance with EITF Issue No. 96-18 and is recognized over the service period, which is usually the vesting period.

 

The above listing is not intended to be a comprehensive list of all of our accounting policies.  In many cases, the accounting treatment of a particular transaction is specifically dictated by GAAP.  There are also areas in which management’s judgment in selecting any available alternative would not produce a materially different result.  Please refer to our audited consolidated financial statements and notes thereto included in our 2002 Annual Report, which contains accounting policies and other disclosures required by GAAP.

 

RESULTS OF OPERATIONS

 

THREE MONTHS ENDED JUNE 30, 2003 AND 2002

 

Revenues .  We recorded revenues of $3.0 million during the three months ended June 30, 2003, compared to $5.8 million in revenues during the three months ended June 30, 2002.  Seventy-two percent of our revenues during the three months ended June 30, 2003, were from our collaboration with Merck, which included research funding and the amortization of technology access and development fees.  Under our collaboration, Merck has the right to reduce research funding after the first year, and they have expressed their intention do so.  Eighty-two percent of our revenues during the three months ended June 30, 2002, were from our collaboration with Eli Lilly and Company (“Eli Lilly”), which included research funding, milestone achievements, and technology access and development fees.  Our collaborators often pay us before we recognize the revenues and these payments are deferred until earned.  As of June 30, 2003, we had deferred revenues totaling approximately $5.6 million.

 

Research and development expenses .  Research and development expenses increased $2.8 million to $13.1 million for the three months ended June 30, 2003, from $10.3 million for the three months ended June 30, 2002.  The increase was due primarily to (i) personnel and consulting expenses increasing by $1.1 million, (ii) lab supplies and depreciation and maintenance of laboratory and computer equipment increasing by $1.3 million, and (iii) pre-clinical study costs increasing by $374,000.  As of June 30, 2003, all research and development costs have been expensed as incurred.  Our research and development employees increased from 240 at June 30, 2002, to 296 at June 30, 2003.

 

General and administrative expenses .  General and administrative expenses increased $200,000 to $2.1 million for the three months ended June 30, 2003, from $1.9 million for the three months ended June 30, 2002.  The increase was a result of increasing our general and administrative employees from 41 at June 30, 2002, to 47 at June 30, 2003, to support our growth and to meet our obligations as a public company.  General and administrative expenses consist primarily of salaries and related personnel expenses for executive, legal, business development, finance and administrative personnel, professional fees, and other general corporate expenses.

 

Amortization of deferred compensation .  Subsequent to Biotechnology Value Fund, L.P., Biotechnology Value Fund II, L.P., BVF Investments, L.L.C., BVF Partners L.P., and BVF Inc. (collectively, “BVF”) increasing their ownership in our stock in October 2002, in January, March and April 2003, we issued an aggregate of 750,500 shares

 

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of restricted common stock to key employees.  The restricted stock vests over a two or four-year period.  For the three months ended June 30, 2003, we recorded amortization of deferred compensation of $829,000, compared to $601,000 for the three months ended June 30, 2002.  We expect charges to be recognized in future periods from the amortization of deferred compensation related to equity grants will be  $1.3 million for the remaining six months of 2003 and $1.7 million, $545,000, $429,000 and $36,000 for the years ending December 31, 2004, 2005, 2006 and 2007, respectively.

 

Interest income and other, net .  Interest income and other, net, was $1.7 million for the three months ended June 30, 2003, compared to $1.7 million for the three months ended June 30, 2002.  Interest income and other, net for the three months ended June 30, 2003 was primarily comprised of interest income of $978,000 and gains on sales of investments of $952,000, offset by $206,000 attributable to our share of the net loss of TaiGen Biotechnology Co., Ltd. (“TaiGen”), a related party which we have accounted for by the equity method of accounting.  Interest income and other, net for the three months ended June 30, 2002, was primarily comprised of interest income of $1.5 million, gain on sale of investments of $115,000, rental income of $144,000, offset by $69,000 attributable to our share of the net loss of TaiGen.

 

Investment writedown .  In June 2002, we recorded a $1.7 million writedown of our investment in Axiom Biotechnologies, Inc. (“Axiom”), which was acquired by Sequenom, Inc. (“Sequenom”) subsequent to our investment.  At June 30, 2002, following the writedown, the carrying value of our investment in Axiom was $300,000, based on management’s estimate.

 

SIX MONTHS ENDED JUNE 30, 2003 AND 2002

 

Revenues .  We recorded revenues of $8.3 million during the six months ended June 30, 2003, compared to $10.1 million in revenues during the six months ended June 30, 2002.  Eighty-six percent of our revenues during the six months ended June 30, 2003, were from our collaborations with Merck and Eli Lilly, which included research funding, milestone achievements, and the amortization of technology access and development fees.  Eighty percent of our revenues during the six months ended June 30, 2002, were from our collaboration with Eli Lilly, which included research funding, milestone achievements, and technology access and development fees.  TaiGen, a related party, accounted for $708,000 in non-cash revenues during the six months ended June 30, 2002.  We recorded $30,000 in royalty cash revenues from TaiGen in the six months ended June 30, 2003.

 

Research and development expenses .  Research and development expenses increased $6.1 million to $25.2 million for the six months ended June 30, 2003, from $19.1 million for the six months ended June 30, 2002.  The increase was due primarily to (i) personnel and consulting expenses increasing by $3.0 million, (ii) lab supplies and depreciation and maintenance of laboratory and computer equipment increasing by $2.3 million, (iii) pre-clinical study costs increasing by $490,000, and (iv) rent and utilities expense increasing by $190,000.  As of June 30, 2003, all research and development costs have been expensed as incurred.  Our research and development employees increased from 240 at June 30, 2002, to 296 at June 30, 2003.

 

General and administrative expenses .  General and administrative expenses increased $400,000 to $4.0 million for the six months ended June 30, 2003, from $3.6 million for the six months ended June 30, 2002.  The increase was a result of increasing our general and administrative employees from 41 at June 30, 2002, to 47 at June 30, 2003, to support our growth and to meet our obligations as a public company.  General and administrative expenses consist primarily of salaries and related personnel expenses for executive, legal, business development, finance and administrative personnel, professional fees, and other general corporate expenses.

 

Amortization of deferred compensation .  Subsequent to BVF increasing their ownership in our stock in October 2002, in January, March and April 2003, we issued an aggregate of 750,500 shares of restricted common stock to key employees.  The restricted stock vests over a two or four-year period.  For the six months ended June 30, 2003, we recorded amortization of deferred compensation of $1.9 million, compared to $1.4 million for the six months ended June 30, 2002.

 

Interest income and other, net .  Interest income and other, net, increased $200,000 to $2.9 million for the six months ended June 30, 2003, from $2.7 million for the six months ended June 30, 2002.  The increase was primarily due to (i) $1.2 million more in gains on our investments, (ii) $619,000 less interest income as a result of lower cash and cash equivalent balances as well as declining interest rates, (iii) $195,000 more in expenses attributable to our share of the net loss of TaiGen, which we have accounted for by the equity method of accounting, and (iv) $191,000 less in rental income due to the end of lease agreements.

 

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Investment writedown .  In June 2002, we recorded a $1.7 million writedown of our investment in Axiom, which was acquired by Sequenom subsequent to our investment.  At June 30, 2002, following the writedown, the carrying value of our investment in Axiom was $300,000, based on management’s estimate.

 

LIQUIDITY AND CAPITAL RESOURCES

 

Liquidity refers to our ability to generate adequate amounts of cash to meet our needs.

 

We believe we have sufficient cash to meet our near-term objectives, including progressing our lead internal development projects toward the initiation of clinical trials, which in the United States would require filing an investigational new drug application, or IND, and continuing multiple internal drug discovery programs and building and improving our infrastructure.

 

Our near-term sources of liquidity include cash balances and short-term investments.  As of June 30, 2003, we had $160.1 million in cash and cash equivalents and short-term investments.  Other potential sources of liquidity are the sale of real estate that we own, the sale of additional shares of our stock and the license of our technologies and internal drug programs.  In March 2003, we entered into an agreement to sell one of our occupied facilities for $13.0 million and to lease it back from the purchaser.  The agreement has been terminated.  We have engaged a national real estate brokerage company to seek other interested parties for a sale and leaseback transaction on this property.  We may not be able to find a party to purchase and lease back the property on acceptable terms.

 

We have incurred a loss in each year since our inception, and we expect to incur substantial losses for at least the next several years.  Such losses may fluctuate, and the fluctuations may be substantial.  At June 30, 2003, we had an accumulated deficit of $81.0 million.  We have funded our operations primarily through public and private equity financings, and, to a lesser extent, from cash we have received from our collaborators, interest income and gains from our investments.  For the near-term, we expect our expenses and capital expenditures will significantly exceed the cash received from our collaborators, interest income and gains from our investments.

 

Our cash and cash equivalents and short-term investments decreased $25.0 million for the six-month period from December 31, 2002, to June 30, 2003.

 

Net cash used in operating activities was approximately $12.5 million during the six months ended June 30, 2003, and was used to fund our net loss in the period, adjusted for non-cash expenses, including $2.7 million in depreciation and amortization expense, $1.9 million in amortization of deferred compensation, $811,000 in amortization of acquired technology and other purchased intangibles, $573,000 for our minority interest in TaiGen’s operations, and changes in operating assets and liabilities.  Net cash used in operating activities was $10.1 million during the six months ended June 30, 2002, and was used to fund our net loss in the period, adjusted for non-cash expenses, including $1.5 million in depreciation and amortization expense, $1.4 million in amortization of deferred compensation, $776,000 in amortization of acquired technology, $378,000 for our minority interest in TaiGen’s operations, $1.7 million related to our Axiom investment writedown and changes in operating assets and liabilities.

 

Net cash used in investing activities was approximately $17.6 million during the six months ended June 30, 2003, and was primarily the result of purchases of short-term investments (offset by the proceeds received from the sale and maturities of short-term investments), as well as the purchase of equipment, leasehold improvements to the facilities we lease and capital improvements to the facilities we own.  We expect capital expenditures, including the capital expenditures for the completion of our chemical development facility, will be significantly less in the remaining six months of 2003.  Net cash used in investing activities was $64.1 million during the six months ended June 30, 2002.  Net cash used in investing activities for the six months ended June 30, 2002, was primarily the result of purchases of short-term investments (offset by the proceeds received from the sale and maturities of short-term investments), and the acquisition of laboratory and computer equipment and furniture and fixtures.

 

Net cash provided by financing activities was $29,000 during the six months ended June 30, 2003, and was attributable to the net proceeds from the issuance of common stock upon exercise of options offset by principal payments on our capital leases.  Net cash provided by financing activities was $54,000 during the six months ended June 30, 2002, and was attributable to the net proceeds from the issuance of common stock upon exercise of options offset by principal payments on our capital leases.

 

Aggregate annual future minimum lease obligations on our 6124-6126 Nancy Ridge Drive facility, our 6166 Nancy Ridge Drive facility and other operating leases we have on equipment totaled approximately $11.1 million at

 

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December 31, 2002.  We have also entered into capital lease agreements for various lab and office equipment.  The terms of these capital lease agreements range from 48 to 60 months.  At December 31, 2002, current total minimum annual payments under these capital leases are $382,000 in 2003 and $49,000 in 2004.

 

In the short-term, certain known possible events could occur which could affect our liquidity.  On January 17, 2003, we entered into a Stockholders Agreement with BVF and Investment 10, L.L.C. (the “Stockholders Agreement”).  Under the Stockholders Agreement, from July 1, 2003, through October 15, 2003, we have the right to offer to purchase from BVF and Investment 10, L.L.C. (collectively with BVF, the “BVF Stockholders”) at least three million (3,000,000) shares of our stock at a 10% discount to the market value (as defined in the Stockholders Agreement).  We also have the right to offer to purchase those shares at a price that is $8.00 or more per share.  The BVF Stockholders have the right to accept or reject any offer by us.  If our offer is for $8.00 or more per share, then the terms of the standstill described in the Stockholders Agreement are extended to December 31, 2004.  The standstill includes prohibitions against (i) acquiring any of our stock or assets, (ii) soliciting proxies or submitting stockholder proposals except as provided in the Stockholders Agreement, and (iii) engaging in any of the actions set forth in paragraphs (a) through (j) of Item 4 of Schedule 13D.  The BVF Stockholders also have the right to a board seat and have agreed to vote in favor of our Board of Directors’ nominees during the term of the Stockholders Agreement.  If we exercise our right to offer to purchase the BVF Stockholders’ shares, and the BVF Stockholders accept, we will need to immediately pay the purchase price.  We believe that the BVF Stockholders favor a strategic direction for the company that is different than the one favored by management, and we may make one or both of the above offers.

 

We continue to regularly evaluate potential acquisitions and in-licensing opportunities.  Any such transaction may impact our liquidity as well as affect our revenues and expenses if, for example, our operating expenses increase as a result of such license or acquisition or we use our cash to finance the license or acquisition.

 

Our revenues for 2003 are expected to be substantially dependent on one collaborator, Merck.  The loss of this collaborator would significantly increase our expected operating losses and could have a significant effect on our plans.  The research portion of our collaboration with Eli Lilly, which accounted for a significant portion of our revenues since our inception, was completed on April 14, 2003.

 

Looking beyond 2003, we will need to raise or generate significant amounts of cash to execute our objective of internally developing drug products, which take many years and potentially hundreds of millions of dollars to develop.  We do not currently have adequate internal liquidity to meet this long-term goal.  In order to do so, we will need to substantially increase our out-licensing activities and look to external sources of liquidity, including the public or private financial markets and strategic partners, if available.

 

The length of time that our current cash and cash equivalents, short-term investments and available borrowings will sustain our operations will be based on, among other things, the scientific progress in our research and development programs, our research and development costs (including personnel costs), progress in pre-clinical and clinical testing, the time and costs related to proposed clinical studies and regulatory approvals, if any, costs associated with securing in-licensing opportunities, if any, and costs associated with intellectual property.  We do not know whether adequate funding will be available to us or, if available, that such funding will be available on acceptable terms.  Any shortfall in funding could result in the partial or full curtailment of our research and development efforts.

 

RISK FACTORS

 

An investment in our stock involves a high degree of risk.  Investors evaluating us should carefully consider the factors described below and all other information contained in this Quarterly Report and in our public filings made after the date of this Quarterly Report before making investment decisions regarding our stock.  Any of the following factors could materially harm our business, operating results and financial condition.  Additional factors and uncertainties not currently known to us or that we currently consider immaterial could also harm our business, operating results and financial condition. Investors could lose all or part of their investment as a result of these factors.

 

Our largest stockholders may take actions that are contrary to your interests

 

A small number of our stockholders hold a majority of the voting power of our outstanding stock, and BVF owns or controls approximately 27% of our outstanding stock.  These stockholders’ interests could differ from the interests of other stockholders, and they could be in a position to affect us in a way that is detrimental to the interests of other stockholders.  Their actions and votes would be important, and possibly determinative, in the event we consider a

 

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transaction that requires stockholder approval or in the event a third party makes a tender offer and/or a hostile take-over offer for outstanding shares.  In addition, sales by these stockholders of a large number of shares of our common stock could adversely affect our stock’s market price.  On January 17, 2003, we entered into an agreement with the BVF Stockholders, which provides for, among other things, a time-limited standstill that provides that the BVF Stockholders will not, on their own or as part of a larger group, (i) acquire any of our stock or assets, (ii) solicit proxies or submit stockholder proposals except as provided in such agreement, or (iii) engage in any of the actions set forth in paragraphs (a) through (j) of Item 4 of Schedule 13D.  Under the agreement, the standstill will last at least until October 31, 2003, but may be extended if we exercise certain rights to purchase a portion of their stock at prices that may be above market before October 15, 2003.  If we do not exercise such rights, the BVF Stockholders will have the right to call a Special Meeting of Arena stockholders.  Given the BVF Stockholders’ percentage of ownership, it is likely that they along with a small number of other stockholders would be able to determine the results of any vote at such meeting.  We believe that the BVF Stockholders favor a strategic direction for the company that is different than the one favored by management.

 

We have a history of losses and limited revenues

 

We incorporated in April 1997.  We had losses of $20.6 million for the six months ended June 30, 2003.  Through June 30, 2003, we had an accumulated deficit of $81.0 million.  Our losses have resulted in large part from the significant research and development expenditures we have made in seeking to identify and validate new drug targets and new drug leads.  We rely on our collaborative and license agreements for our revenues, and we expect to continue to experience significant operating losses in the near-term even if we or our collaborators successfully identify potential drug targets and drug leads.  If the time required to generate revenues and to achieve sustained profitability is longer than we anticipate, or if we are unable to obtain necessary funds, we may never achieve sustained profitability and may have to discontinue, or significantly curtail, our operations.

 

Our revenues are contingent upon the decisions of our collaborators

 

Our ability to generate revenues depends on our ability to enter into additional collaborative and license agreements with other parties and to maintain our existing agreements.  We will receive little or no revenues under our agreements if our own or our collaborators’ research, development or marketing efforts are unsuccessful, or if our agreements are terminated early.  Absent any new collaborations, we expect substantially all of our revenues for the remaining six months of 2003 to be derived from our collaboration with Merck.

 

The term of the collaborative research program with Merck is three years from October 21, 2002.  Merck can terminate this program for any of the following reasons: (i) without cause, at any time on or after the second anniversary of October 21, 2002, by giving notice at least 90 days prior to such termination date, if certain milestones have been achieved and paid; (ii) without cause, at any time after the second anniversary of October 21, 2002, by giving notice on or after such anniversary, and at least 180 days prior to such termination date; (iii) for certain technical grounds, at any time by giving 30 days prior notice; and (iv) in the event of a change in control of Arena, by giving 30 days prior notice.  Merck can terminate the agreement at any time after the third anniversary of October 21, 2002.  Either party can terminate the agreement at any time for cause if the other party breaches its material obligations under the agreement by causes and reasons within its control, has not cured such breach and there is no dispute as to whether such breach has occurred.  Additionally, in lieu of terminating the agreement, Merck can terminate certain aspects of the agreement by giving 90 days prior notice if we materially breach our obligations at any time during the period from October 21, 2002, to the third anniversary of such date (or such earlier date of termination) and fail to cure such breach, if such default can be cured but not within a certain period, or if we do not commence and diligently continue good faith efforts to cure such default during such period.  In the event of any such termination, our revenues would be materially adversely affected.

 

Our revenues from collaborative arrangements will be significantly affected by the amount of time and effort expended by our collaborators, the timing of the identification of useful drug targets, the timing of the discovery of drug leads, the development of drug candidates and by new revenue recognition guidelines under accounting principles generally accepted in the United States.  We may not achieve any additional milestones under our collaborations, and we will not earn most of the significant milestone payments under our collaborations until our collaborators have advanced products into clinical testing, which may not occur for many years, if ever.  We do not control the amount and timing of resources that our collaborators devote to our collaborative programs, potential products or product rights, and there is no assurance that research funding will continue at the current level or at all.  Furthermore, we lack sales and marketing experience and may depend on our collaborators to market any drugs that we jointly develop.

 

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Conflicts may arise between us and our collaborators, such as conflicts concerning ownership rights to particular receptor targets, drug leads or drug candidates.  While our existing collaborative agreements typically provide that we receive milestone and royalty payments with respect to drugs developed from our collaborative programs, disputes may arise over the application of payment provisions to these drugs and any royalty payments may be at reduced rates.  If any of our collaborators breach, terminate or fail to renew their collaborative agreements with us, the pre-clinical or clinical development or commercialization of the affected drug candidates or research programs could be delayed or terminated.  Our collaborative agreements generally include circumstances that would allow either party to terminate the agreements with advance written notice of that party’s intent to terminate.  In addition, our collaborators have the right to terminate the collaborative agreements under some circumstances in which we do not.  In some circumstances, our collaborators can continue to use our technology after our agreements are terminated.

 

Our collaborators may choose to use alternative technologies or develop alternative drugs either on their own or with other collaborators, including our competitors, in order to treat diseases that are targeted by collaborative arrangements with us.  Our collaborative agreements typically do not prohibit these activities.

 

Consolidation in the pharmaceutical or biotechnology industry could have an adverse effect on us by reducing the number of potential collaborators or jeopardizing our existing relationships.  We may not be able to enter into any new collaborative agreements.  Also, our existing and potential collaborators may decide to reduce their research and development budgets, which may adversely affect our ability to generate revenues from collaborators.

 

We are in the very early stage of drug discovery and development, and if problems arise in the testing and approval process, our drug development efforts may not be successful

 

Developing drug leads, drug candidates and drugs is highly uncertain and subject to significant risks.

 

In order to receive some of the milestone payments under our collaborative agreements, we or our collaborators must successfully complete pre-clinical and clinical trials of drug candidates discovered using our technologies.  We have identified only a few drug leads, all of which are in the very early stages of development and none of which have completed the development process.

 

Our access to and use of some human or other tissue samples in our research and development efforts is subject to government regulation in the United States and abroad.  United States and foreign government agencies may also impose restrictions on the use of data derived from human or other tissue samples.

 

We or our collaborators may rely on third-party clinical investigators at medical institutions to conduct our clinical trials, and may rely on other third-party organizations to perform data collection and analysis.  As a result, we may face delays outside of our control.  It may take us or our collaborators many years to complete any pre-clinical or clinical trials, and failure can occur at any stage of testing.  Interim results of trials do not necessarily predict final results, and acceptable results in early trials may not be repeated in later trials.  Moreover, if and when our programs reach clinical trials, we or our collaborators may decide to, or be required to, discontinue development of any or all of these projects at any time for commercial, scientific or other reasons.

 

In order to receive royalty payments from our collaborators, we or our collaborators must receive approval from regulatory agencies to market drugs discovered using our technologies.  A new drug may not be sold in the United States until the Food and Drug Administration (the “FDA”) has approved a New Drug Application, or an NDA, and there are similar requirements in other countries.  When an NDA is approved, the approval is limited to the labeling approved in the NDA for those disease states and conditions for which the drug candidate has been demonstrated through clinical trials to be safe and effective.  Drug candidates developed by us or our collaborators may not prove to be safe and effective in clinical trials and may not meet all of the applicable regulatory requirements necessary to receive marketing approval.  We do not expect any drugs resulting from our own or our collaborators’ research to be commercially available for many years, if ever.

 

Drug discovery and development is an intensely competitive business that could render our technologies obsolete or noncompetitive

 

The main focus of our efforts is GPCRs.  Because GPCRs are an important target class for drug discovery efforts, we believe that most pharmaceutical companies, several biotechnology companies, and other organizations have internal drug discovery programs focused on GPCRs.  Another company, an organization or an individual could have, or could

 

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develop, a technology using GPCRs to discover and develop drug leads or drug candidates more effectively, more efficiently or at a lower cost than our technologies.  Such a technology could render our technologies, in particular our constitutively activated receptor technology, or CART, and Melanophore technology, obsolete or noncompetitive.

 

Many of the drugs that we or our collaborators are attempting to discover and develop would compete with existing therapies.  In addition, many companies are pursuing the development of drugs that target the same diseases and conditions that we are targeting such as metabolic diseases, cardiovascular diseases, central nervous system disorders and inflammatory diseases.  Our competitors may use discovery technologies and techniques or partner with collaborators in order to develop drug leads, drug candidates and drugs more efficiently or successfully, or with less cost, than we or our collaborators are able to do.  Many of our competitors, particularly large pharmaceutical companies, have substantially greater research and development capabilities and greater financial, scientific and human resources than we do.  Companies that complete clinical trials, obtain required regulatory agency approvals and commence commercial sale of their drugs before we do may achieve a significant competitive advantage, including certain patent and FDA marketing exclusivity rights.  We have not achieved any of these competitive advantages.  Any results from our research and development efforts, or from our joint efforts with our existing or any future collaborators, may not compete successfully with existing products or therapies.

 

A dispute regarding the infringement or misappropriation of our proprietary rights or the proprietary rights of others could be costly and result in delays in our research and development activities

 

Our success depends, in part, on our ability to operate without infringing on or misappropriating the proprietary rights of others.  There are many issued patents and patent applications filed by third parties relating to our drug discovery and development programs that could be determined to be similar or identical to ours or our licensors, and others may be filed in the future.  Our activities, or those of our licensors or collaborators, may infringe patents owned by others.  Although the government sponsored project to sequence the human genome has made genomics information freely available to the public, other organizations, companies and individuals are seeking proprietary positions on genomics information that overlap with the government sponsored project.  Our activities, or those of our licensors or collaborators, could be affected by conflicting positions that may exist between any overlapping genomics information made available publicly as a result of the government sponsored project and genomics information that other organizations, companies or individuals consider to be proprietary.

 

There could be significant litigation and other administrative proceedings in our industry regarding patent and other intellectual property rights.  Any legal action against us, or our collaborators, claiming damages or seeking to enjoin commercial activities relating to our drug discovery and development programs could:

 

                  require us, or our collaborators, to obtain a license to continue to use, manufacture or market the affected products, methods or processes, which may not be available on commercially reasonable terms, if ever

 

                  prevent us from importing, making, using, selling or offering to sell the subject matter claimed in patents held by others and subject us to potential liability for damages

 

                  consume a substantial portion of our managerial, scientific and financial resources

 

                  result in litigation or administrative proceedings that may be costly, regardless of the outcome

 

In addition, third parties may infringe on or misappropriate our proprietary rights, and we may have to institute costly legal action to protect our intellectual property rights.  We may not be able to afford the costs of enforcing our intellectual property rights against third parties.

 

Our success is dependent on intellectual property rights held by us and third parties and our interest in these rights is complex and uncertain

 

Our success will depend on our own and on our collaborators’ abilities to obtain, secure and defend patents.  We have numerous United States and foreign patent applications pending for our technologies, including patent applications on drug lead discovery techniques using CART, genetically altered GPCRs, GPCRs that we have discovered, new uses for previously discovered GPCRs, compounds discovered using CART, and Melanophore technology.  The procedures for obtaining an issued patent in the United States and in most foreign countries are complex.  These procedures require an analysis of the scientific technology related to the invention and many legal issues.  Consequently, we expect that the analysis of our patent applications will be complex and time consuming.  Therefore, our patent position

 

14



 

is very uncertain and we do not know when, or if, we will obtain additional issued patents for our technologies.

 

More consistent policies regarding the breadth of claims allowed in biotechnology patents have begun to emerge in the last few years.  For example, on January 5, 2001, the United States Patent and Trademark Office issued finalized Utility Examination Guidelines to its patent examiners that focus on what can be patented under United States patent law.  These guidelines are beginning to be implemented in a more consistent fashion and primarily impact the procedures that are used in determining the types of inventions that can be patented and the minimum threshold of information necessary to patent inventions in the fields of biotechnology and chemistry.  We still do not completely know to what extent these guidelines will ultimately affect our patents or those of our competitors and collaborators as the application of these guidelines have yet to be challenged in the courts.

 

We also rely on trade secrets to protect our technologies.  However, trade secrets are difficult to protect.  We require all of our employees to contractually agree not to improperly use our trade secrets or disclose them to others, but we may be unable to determine if our employees have conformed or will conform with their legal obligations under these agreements.  We also require collaborators and consultants to enter into confidentiality agreements, but we may not be able to adequately protect our trade secrets or other proprietary information in the event of any unauthorized use or disclosure or the lawful development by others of this information.  Many of our employees and consultants were, and many of them may currently be, parties to confidentiality agreements with other pharmaceutical and biotechnology companies, and the use of our technologies could violate these agreements.  In addition, third parties may independently discover our trade secrets or proprietary information.

 

Technology licensed to us by others, or in-licensed technology, is important to some aspects of our business.  With a few exceptions, we generally do not control the patent prosecution, maintenance or enforcement of in-licensed technology.  Accordingly, we are unable to exercise the same degree of control over in-licensed technology as we do over our internally developed technologies.  Moreover, some of our academic institution licensors, research collaborators and scientific advisors have rights to publish data and information to which we have rights.  If we cannot maintain the confidentiality of our technologies and other confidential information in connection with our collaborations, then our ability to receive patent protection or protect our proprietary information will be impaired.

 

We may not be able to protect our intellectual property rights outside the United States

 

Patent law outside the United States is uncertain and in many countries is currently undergoing review and revision, particularly with respect to biotechnology-related and pharmaceutical inventions.  The laws of some countries do not protect our intellectual property rights to the same extent as United States laws.  It may be necessary or useful for us to participate in proceedings to determine the validity of our, or our competitors’, foreign patents, which could result in substantial cost and divert our efforts and attention from other aspects of our business.

 

Our quarterly operating results may fluctuate and may cause our stock price to decline

 

Our revenues and results of operations may fluctuate significantly from quarter to quarter, depending on a variety of the factors described in this Quarterly Report including:

 

                  entering into a new collaboration or modifying or terminating an existing collaboration

 

                  the timing of and receipt by us of milestone and royalty payments

 

                  the timing of discovery of drug leads and the development of drug candidates, if any

 

                  changes in the research and development budgets of our existing collaborators or potential collaborators

 

                  others introducing new drug discovery techniques or new drugs that target the same diseases and conditions that we or our collaborators target

 

                  regulatory actions

 

                  changes in accounting principles generally accepted in the United States

 

                  expenses related to, and the results of, litigation and other proceedings relating to intellectual property rights or

 

15



 

other matters

 

We are not able to control these factors.  Period-to-period comparisons of our financial results are not necessarily indicative of our future performance.  If our revenues in a particular period do not meet stockholders’ or analysts’ expectations, our stock price may decline and such decline could be significant.

 

We will need additional capital in the future to sufficiently fund our operations and research and development and we may not be able to obtain additional capital on terms favorable to us

 

We have consumed substantial amounts of capital to date and we expect our operating expenses over the next several years will be significant and increase as we continue to build our facilities and infrastructure and pursue our research and development activities.  Although we believe that our current funds will be sufficient to support our current operating plan through at least the next two years, we may require additional financing sooner.  For example, we may use a portion of our funds to acquire businesses or technologies.  In addition, if we are successful in developing drug leads, our capital requirements will be much greater than our current capital.  Financing may not be available or may not be available on terms that are favorable to us.  To the extent that we raise additional funds through collaborative and licensing arrangements, we may be required to relinquish some rights to our technologies or drug leads, or grant licenses on terms that are unfavorable to us.  Any further equity financing we do obtain would result in dilution to our then existing stockholders.  We may also raise additional funds through the incurrence of debt, and the holders of any debt we may issue would have rights superior to your rights.  If adequate funds are not available, we may be required to significantly curtail or eliminate one or more of our drug development programs, or to completely discontinue our operations.

 

We may not be able to successfully develop and commence operations of, or may encounter significant delays with, our new chemical development facility

 

We are currently building a chemical development facility that we intend to use for process scale up, manufacture of intermediates and compounds for research purposes, and the manufacture of active pharmaceutical ingredients and finished drug products that meet the requirements of current good manufacturing practices, or cGMPs, for use in clinical trials.

 

We may encounter delays in designing, constructing and operating our chemical development facility due to:

 

                  governmental regulation of the facility

 

                  construction issues, including obtaining necessary governmental approvals and permits

 

                  cost overruns

 

                  design, shipment and installation of equipment for the facility

 

                  natural or other disasters

 

                  public opinion regarding the impact of the facility

 

                  other factors inherent in the construction process and operation

 

Even if we are able to successfully complete our chemical development facility, we may not be able to do so in a cost-effective manner or in a time frame that is consistent with our expected future manufacturing needs or our future manufacturing needs may not be sufficient to allow the facility to be fully operational, any of which could harm our business.

 

The FDA and other regulatory authorities require that clinical and commercial products be manufactured according to cGMP regulations.  In addition, drug-manufacturing facilities in the state of California must be inspected and licensed by the California Department of Health Services in compliance with state regulatory requirements.  California law prohibits the shipment of product from a manufacturing facility for any clinical testing or commercial use prior to satisfaction of licensing requirements.  We are in the process of preparing for an inspection later this year by the state

 

16



 

of California; however, there can be no assurance that we will obtain a license, or obtain it in a timely manner.  In this regard, our inspection may be delayed due to the California budget crisis.

 

We may engage in strategic transactions that could impact our liquidity

 

From time to time we consider strategic transactions, such as acquisitions of companies, asset purchases and/or out-licensing or in-licensing compounds developed by us or others.  These additional potential transactions may include a variety of different business arrangements, including spin-offs, acquisitions, strategic partnerships, joint ventures, restructurings, divestitures, business combinations and investments.  Any such transaction may require us to incur non-recurring or other charges, may increase our near and long-term expenditures and may pose significant integration challenges or disrupt our management or business, which could harm our operations and financial results.

 

Anti-takeover provisions in our rights agreement and charter documents and under Delaware law could delay or prevent a change in management or a takeover attempt that you may consider to be in your best interest

 

We have adopted certain anti-takeover provisions, including a stockholders’ rights plan, dated as of October 30, 2002, between us and Computershare Trust Company, Inc., as Rights Agent (the “Rights Agreement”).  The Rights Agreement is not intended to prevent an acquisition of us at a full and fair price.  Rather, it is intended to deter an attempt to acquire us in a manner or on terms not approved by our Board of Directors, and will cause substantial dilution to any person who attempts to acquire us in a manner or on terms not so approved.  The issuance of preferred stock under the terms of the Rights Agreement may make it more difficult for a third party to acquire us.  Additionally, provisions in our certificate of incorporation and by-laws, as well as some provisions of Delaware law, could delay or prevent the removal of directors and could make more difficult a merger, tender offer or proxy contest involving us.

 

Our research and development efforts will be seriously jeopardized if we are unable to retain and attract key employees

 

Our success depends, in part, on the continued contributions of our principal management and scientific personnel, and we face intense competition for such personnel.  In particular, our research programs depend on our ability to retain and attract highly skilled scientists.  If we lose the services of any of our key personnel as well as other principal members of our scientific or management staff, our research and development or management efforts could be interrupted or significantly delayed.  We could also encounter increasing difficulty in attracting enough qualified personnel, and this difficulty could impede the attainment of our research and development objectives.

 

We use biological and hazardous materials

 

Our research and development activities involve the use of potentially harmful biological materials as well as hazardous materials, chemicals and various radioactive compounds.  For example, we use radioactive phosphorous-32 and sodium cyanide on a regular basis.  In addition, the impact of exposure to compounds that may be processed in our chemical development facility is unknown.  We cannot completely eliminate the risk of accidental contamination, which could cause:

 

                  an interruption of our research and development efforts

 

                  injury to our employees and others resulting in the payment of damages

 

                  environmental damage resulting in costly clean up

 

                  liabilities under federal, state and local laws and regulations governing the use, storage, handling and disposal of these materials and specified waste products

 

Our operations might be interrupted by the occurrence of a natural disaster, war, terrorist attack or other catastrophic event

 

We depend on our customers and our laboratories and other facilities for the continued operation of our business.  Natural disasters or other catastrophic events, including wars, terrorist attacks and earthquakes, could disrupt our operations or those of our customers.  Even though we carry business interruption insurance, and our contractors may carry liability insurance, that protect us in certain events, we might suffer losses as a result of business interruptions that exceed the coverage available under our and our contractors’ insurance policies or for which we or our contractors

 

17



 

do not have coverage.  Any natural disaster or catastrophic event could have a significant negative impact on our operations and financial results.

 

ITEM 3 . Quantitative and Qualitative Disclosures About Market Risk

 

Our management establishes and oversees the implementation of board-approved policies covering our investments.  We manage our market risk in accordance with our investment guidelines, which: (i) emphasize preservation of principal over other portfolio considerations; (ii) require investments to be placed with high credit quality institutions; (iii) establish guidelines for the diversification of our investment portfolio; and (iv) require investments to be placed with maturities or durations that reduce the risk of the principal invested to changes in interest rates.  We target our portfolio to have an average duration of approximately three years with no one instrument having a duration exceeding five years.  We do not invest in derivative instruments, or any financial instruments for trading purposes.  Our primary market risk exposure as it affects our cash equivalents, short-term investments, and securities held for sale is interest rate risk.  We monitor our interest rate risk on a periodic basis and we ensure that our cash equivalents and short-term investments, available-for-sale are invested in accordance with our investment guidelines.  Managing credit ratings and the duration of our financial investments enhances the preservation of our capital.

 

We model interest rate exposure by a sensitivity analysis that assumes a hypothetical parallel shift downwards in the U.S. Treasury yield curve of 100 basis points.  Under these assumptions, if the yield curve were to shift lower by 100 basis points from the level existing at June 30, 2003, we would expect future interest income from our portfolio to decline by $1.6 million over the next 12 months.

 

As of December 31, 2002, our estimate for the effect of this same hypothetical reduction in interest rates was a decline in interest income of less than $1.9 million over the next 12 months.  The difference in these two estimates is due to the difference in the gross amount of our cash and cash equivalents and short-term investments, available-for-sale between the two periods.

 

The model we use is not intended to forecast actual declines in interest income, but is used as a risk estimation and investment management tool.  The hypothetical changes and assumptions are likely to be different from what actually occurs in the future.  Furthermore, the computations do not incorporate actions our management could take if the hypothetical interest rate changes actually occur.  As a result, actual interest income results will likely differ from those quantified herein.

 

ITEM 4. Controls and Procedures

 

Evaluation of Disclosure Controls and Procedures

 

Based on an evaluation (the “Evaluation”) carried out as of the end of the period covered by this quarterly report, under the supervision and with the participation of our management, including our Chief Executive Officer (“CEO”), Chief Financial Officer (“CFO”) and Vice President, Finance (“VP, Finance”), our CEO, CFO, and VP, Finance have concluded that our disclosure controls and procedures (as defined in Rule 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934 (the “Exchange Act”)) are effective and designed to ensure that information required to be disclosed in our periodic reports filed with the Se curities and Exchange Commission (the “SEC”) under the Exchange Act is recorded, processed, summarized and reported within the time periods specified by the SEC's rules and regulations.

 

Changes in Internal Control Over Financial Reporting

 

There were no significant changes in our internal control over financial reporting or in other factors could significantly affect our internal control over financial reporting subsequent to the date of the Evaluation, and, during the period covered by this quarterly report, there have been no changes in our internal control over financial reporting that have materially affected or are reasonably likely to materially affect our internal control over financial reporting.

 

PART II. OTHER INFORMATION

 

ITEM 4.  Submission of M atters to a Vote of Security Holders

 

The annual meeting of our stockholders was held on June 11, 2003, for the purpose of (i) electing six directors to hold office until the next annual meeting of stockholders or until their respective successors have been elected or appointed and (ii) ratifying the appointment of independent auditors.  Proxies for the meeting were solicited pursuant to Section 14(a) of the Securities Exchange Act of 1934 and there was no solicitation in opposition to the director nominees.  All of the director nominees listed in the proxy statement dated April 23, 2003, were elected.  The votes

 

18



 

cast by proxy or in person with respect to the election of directors, as determined by the final report of the inspectors are set forth below.  There were no broker non-votes with respect to any director nominee.

 

Director Nominee

 

“FOR”

 

“WITHHELD”

 

Jack Lief

 

22,364,540

 

433,658

 

Dominic P. Behan, Ph.D.

 

22,369,338

 

428,860

 

Duke K. Bristow, Ph.D.

 

22,369,338

 

428,860

 

Derek T. Chalmers, Ph.D.

 

22,369,338

 

428,860

 

J. Clayburn La Force, Jr., Ph.D.

 

22,369,338

 

428,860

 

Mark N. Lampert

 

21,757,317

 

1,040,881

 

 

Stockholders ratified the selection of Ernst & Young LLP as our independent auditors for the fiscal year ending December 31, 2003.  22,335,956 shares were voted in favor of the ratification of the selection of Ernst & Young LLP; 151,071 shares were voted against the ratification of the selection of Ernst & Young LLP; and the holders of 311,171 shares abstained from voting on the ratification of the selection of Ernst & Young LLP.  There were no broker non-votes with respect to this matter.

 

ITEM 6.  Exhibits and Reports on Form 8-K

 

(a) Exhibits

 

EXHIBIT
NO.

 

DESCRIPTION

 

3.1

 

Fifth Amended and Restated Certificate of Incorporation of Arena Pharmaceuticals, Inc. (incorporated by reference to Exhibit 3.1 to Arena’s quarterly report on Form 10-Q for the period ended June 30, 2002, filed with the Securities and Exchange Commission on August 14, 2002, Commission File No. 000-31161)

 

3.2

 

Amended and Restated By-Laws of Arena (incorporated by reference to Exhibit 3.2 to Arena’s report on Form 8-K filed with the Securities and Exchange Commission on January 21, 2003, Commission File No. 000-31161)

 

3.3

 

Certificate of Designations of Series A Junior Participating Preferred Stock of Arena, dated November 4, 2002 (incorporated by reference to Exhibit 3.3 to Arena’s quarterly report on Form 10-Q for the period ended September 30, 2002, filed with the Securities and Exchange Commission on September 30, 2002, Commission File No. 000-31161 )

 

10.1*

 

Form of Termination Protection Agreement, dated December 20, 2002, by and among Arena and the employees listed on Schedule 1 thereto

 

10.2*

 

Form of Termination Protection Agreement, dated December 20, 2002, by and among Arena and the employees listed on Schedule 1 thereto

 

31.1

 

Section 302 Certification by Arena’s President and Chief Executive Officer

 

31.2

 

Section 302 Certification by Arena’s Chief Financial Officer

 

31.3

 

Section 302 Certification by Arena’s VP, Finance and Chief Accounting Officer

 

32

 

Section 906 Certification by Arena’s Chief Executive Officer and Chief Financial Officer

 

 


*                  Originally filed on March 28, 2003, with our Form 10-K for the year ended December 31, 2002, we are refiling these forms of agreements because they have been amended to clarify that “Option Plan” (as defined in the agreements) means any equity compensation plan of Arena.

 

(b) Reports on Form 8-K

 

On April 23, 2003, we filed a Report on Form 8-K, under Item 7. Financial Statements and Exhibits and Item 9. Regulation FD Disclosure, incorporating by reference a press release we issued on that day, announcing financial results for the first quarter of 2003.  We attached the press release as an exhibit to the report.

 

SIGNATURES

 

Pursuant to the requirements 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.

 

19



 

Date: August 13, 2003

ARENA PHARMACEUTICALS, INC.

 

 

 

 

 

By:

/s/ Jack Lief

 

 

Jack Lief

 

President and Chief Executive Officer

 

 

 

 

 

By:

/s/ Robert E. Hoffman

 

 

Robert E. Hoffman, CPA

 

Vice President, Finance and Chief
Accounting Officer

 

20



 

EXHIBIT INDEX

 

EXHIBIT
NO.

 

DESCRIPTION

3.1

 

Fifth Amended and Restated Certificate of Incorporation of Arena Pharmaceuticals, Inc. (incorporated by reference to Exhibit 3.1 to Arena’s quarterly report on Form 10-Q for the period ended June 30, 2002, filed with the Securities and Exchange Commission on August 14, 2002, Commission File No. 000-31161)

3.2

 

Amended and Restated By-Laws of Arena (incorporated by reference to Exhibit 3.2 to Arena’s report on Form 8-K filed with the Securities and Exchange Commission on January 21, 2003, Commission File No. 000-31161)

3.3

 

Certificate of Designations of Series A Junior Participating Preferred Stock of Arena, dated November 4, 2002 (incorporated by reference to Exhibit 3.3 to Arena’s quarterly report on Form 10-Q for the period ended September 30, 2002, filed with the Securities and Exchange Commission on September 30, 2002, Commission File No. 000-31161)

10.1*

 

Form of Termination Protection Agreement, dated December 20, 2002, by and among Arena and the employees listed on Schedule 1 thereto

10.2*

 

Form of Termination Protection Agreement, dated December 20, 2002, by and among Arena and the employees listed on Schedule 1 thereto

31.1

 

Section 302 Certification by Arena’s President and Chief Executive Officer

31.2

 

Section 302 Certification by Arena’s Chief Financial Officer

31.3

 

Section 302 Certification by Arena’s VP, Finance and Chief Accounting Officer

32

 

Section 906 Certification by Arena’s Chief Executive Officer and Chief Financial Officer


*                  Originally filed on March 28, 2003, with our Form 10-K for the year ended December 31, 2002, we are refiling these forms of agreements because they have been amended to clarify that “Option Plan” (as defined in the agreements) means any equity compensation plan of Arena.

 

21


Exhibit 10.1

 

T1

 

TERMINATION PROTECTION AGREEMENT

 

AGREEMENT effective December 20, 2002, between Arena Pharmaceuticals, Inc. (the “Company”) and [NAME] (“Executive”).

 

WHEREAS, Executive has important management responsibilities and talents which benefit the Company and its affiliates; and

 

WHEREAS, the Company believes that its best interests are served if Executive is encouraged to remain with the Company and the Company has determined that Executive’s ability to perform Executive’s responsibilities and utilize Executive’s talents for the benefit of the Company, and the Company’s ability to retain Executive as an employee, will be significantly enhanced if Executive is provided with fair and reasonable protection from the risks associated with a change in ownership or control of the Company; and

 

WHEREAS, the Board has approved and authorized this Agreement at its meeting on November 14, 2002,

 

NOW, THEREFORE, the Company and Executive hereby agree as follows:

 

1.                                        Defined Terms .

 

Unless otherwise indicated, capitalized terms used in this Agreement which are defined in Schedule A shall have the meanings set forth in Schedule A.

 

2.                                        Effective Date; Term .

 

This Agreement shall commence on December 20, 2002 (the “Effective Date”) and shall continue in effect through December 31, 2005; provided , however , the term of this Agreement shall automatically be extended for one additional year beyond December 31, 2005 and for successive one year periods thereafter, unless, not later than January 30 of each calendar year, commencing in 2003 for the 2006 calendar year (e.g., 2004 for the 2007 calendar year, 2005 for the 2008 calendar year, etc.), the Company shall have given written notice that it does not wish to extend this Agreement for an additional year, in which event this Agreement shall continue to be effective until December 31 of the applicable calendar year; provided , further , that, notwithstanding any such notice by the Company not to extend, if a Change in Control shall have occurred during the original or any extended term of this Agreement, this Agreement shall remain in effect for a period of two (2) years after such Change in Control.

 

3.                                        Change in Control Benefits .

 

If Executive’s employment with the Company or its affiliates is terminated at any time within two (2) years following a Change in Control by the Company or its affiliates without

 



 

Cause, or by Executive for Good Reason (the effective date of either such termination hereafter referred to as the “Termination Date”), Executive shall be entitled to the benefits provided hereafter in this Section 3 and as otherwise set forth in this Agreement.  If Executive’s employment is terminated within one (1) year prior to a Change in Control, and Executive reasonably demonstrates after such Change in Control that such termination was at the request or suggestion of any individual or entity who or which ultimately effects a Change in Control (an “Anticipatory Termination”), this Agreement shall become effective upon such Change in Control involving such individual or entity, and Executive’s Termination Date shall be deemed to have occurred immediately following the Change in Control, and therefore Executive shall be entitled to the benefits provided hereafter in this Section 3 and as otherwise set forth in this Agreement.  In the event that Executive’s employment is terminated as a result of death or Disability, Executive shall not be entitled to the benefits provided in this Section 3.

 

(a)                                   Severance Benefits .  Within five business days after the Termination Date, the Company shall pay Executive a lump sum amount, in cash, equal to Executive’s Annual Compensation.

 

(b)                                  Continued Health Insurance Coverage .  Until the second anniversary of the Termination Date, the Company shall, at its expense, provide Executive with medical and dental insurance at the highest level provided to Executive during the period beginning immediately prior to the Change in Control and ending on the Termination Date; provided , however , that if Executive becomes employed by a new employer, the coverages provided by the Company pursuant to this sentence shall become secondary to those coverages provided by the new employer.  In addition, Executive will be entitled to full COBRA continuation coverage commencing on the second anniversary of the Termination Date.

 

(c)                                   Full Vesting of All Stock Options and Restricted Shares . Notwithstanding any provision to the contrary in any equity compensation plan of the Company (the “Option Plan”) or any award agreement under the Option Plan, (i) any outstanding, unexercisable stock options or unvested restricted shares shall become fully exercisable and vested as of the Termination Date and (ii) any stock options shall remain exercisable until the first anniversary of the Termination Date; provided , however , that (x) in no event shall any stock option continue to be exercisable after the expiration of the 10 th anniversary of the grant date of any such option and (y) this section shall not restrict the Company’s ability to adjust stock options pursuant to Section 3(b) of the Option Plan (or any successor provision under the Option Plan or any similar provision in any other Company option plan) or to require that optionees surrender their stock option pursuant to Section 10(b) of the Option Plan (or any successor provision under the Option Plan or any similar provision in any other Company option plan), so long as, in any such adjustment or surrender, Executive is treated no less favorably than any other employee of the Company.

 

(d)                                  Other Payments And Benefits .  Executive shall also be entitled to receive any other payments or benefits Executive is entitled to pursuant to the terms of any Company plans, programs or arrangements (other than severance benefits).

 

2



 

4.                                        Mitigation .

 

Executive shall not be required to mitigate damages or the amount of any payment provided for under this Agreement by seeking other employment or otherwise, and compensation earned from such employment or otherwise shall not reduce the amounts otherwise payable under this Agreement.  No amounts payable under this Agreement shall be subject to reduction or offset in respect of any claims which the Company (or any other person or entity) may have against Executive.

 

5.                                        Severance Benefit Cap .

 

In the event that any payment or benefit (the “Payments”) received or to be received by Executive pursuant to the terms of this Agreement or in connection with Executive’s termination of employment or contingent upon a change in control of the Company pursuant to any plan or arrangement or other agreement with the Company (or any affiliate) would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code, then Executive will receive whichever of the following provides a greater after-tax benefit to Executive: (i) the Payments, reduced by the minimum amount necessary so as not to be subject to the Excise Tax, or (ii) the full amount of the Payments, with Executive liable for any Excise Tax.

 

6.                                        Employment Status; No Effect Prior to Change in Control; Termination for Cause .

 

Executive and the Company acknowledge and agree that prior to a Change in Control, Executive’s employment is “at will” and may be terminated at any time, by the Company or by Executive, with or without Cause, subject to applicable law.  In the event Executive’s employment is terminated for any reason prior to a Change in Control, other than in the case of an Anticipatory Termination, Executive shall have no rights to any payments or benefits under this Agreement and after any such termination, this Agreement shall be of no further force or effect.

 

Following a Change in Control, nothing in this Agreement shall be construed to prevent the Company from terminating Executive’s employment for Cause.  In the event Executive is terminated for Cause following a Change in Control, Executive shall have no rights to any payments or benefits under this Agreement and after such termination, this Agreement shall be of no further force or effect.

 

7.                                        Indemnification; Director’s and Officer’s Liability Insurance .

 

Until the sixth anniversary of the Termination Date and for so long thereafter as any claim for indemnification asserted on or prior to such date has not been fully adjudicated (the “Indemnification Period”), the Company shall indemnify, defend, and hold harmless Executive against all losses, claims, damages, costs, expenses (including attorneys’ fees) or liabilities (including attorneys’ fees) arising out of actions or omissions or alleged actions or omissions which have occurred on or prior to the Termination Date to the same extent and on the same

 

3



 

terms and conditions (including with respect to advancement of expenses) as permitted under applicable law and the Company’s certificate of incorporation and by-laws as in effect immediately prior to the Change in Control.  In addition, the Company shall maintain Director’s and Officer’s liability insurance on behalf of Executive, at the level in effect immediately prior to the Change in Control, for the Indemnification Period.

 

8.                                        Confidential Information .

 

Executive acknowledges that the Proprietary Information and Inventions Agreement previously entered into by Executive and the Company remains in full force and effect and survives the termination of his or her employment with the Company; provided that nothing contained in such agreement or this Section 8 shall prevent Executive from being employed by a competitor of any of the Company or utilizing Executive’s general skills, experience, and knowledge, including those developed while employed by any of the Company or its affiliates.

 

9.                                        Disputes .

 

Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in San Diego, California or, at the option of Executive, in the county where Executive then resides, in accordance with the Rules of the American Arbitration Association then in effect, except that Executive may, at Executive’s option, bring that action in a court of competent jurisdiction, even if the Company has earlier instituted an action hereunder.  Judgment may be entered on an arbitrator’s award relating to this Agreement in any court having jurisdiction.

 

10.                                  Costs of Proceedings .

 

The Company shall pay for all costs and expenses of Executive, at least monthly, including attorneys’ fees and disbursements, in connection with any legal proceeding (including arbitration), whether instituted by the Company or by Executive, relating to the interpretation or enforcement of any provision of this Agreement, except that if Executive instituted the proceeding and the judge, arbitrator or other individual presiding over the proceeding affirmatively finds that Executive instituted the proceeding in bad faith, then Executive shall be required to pay all costs and expenses of Executive, including attorney’s fees and disbursements, and shall not be entitled to reimbursement.  The Company shall pay prejudgment interest on any money judgment obtained by Executive as a result of such a proceeding, calculated at the prime rate of interest as reported in the Wall Street Journal, as in effect from time to time, from the date that payment should have been made to Executive under this Agreement.

 

11.                                  Successors And Assigns .

 

Except as otherwise provided herein, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the Company and Executive and their respective heirs, legal representatives, successors and assigns.  If the Company shall be merged into or

 

4



 

consolidated with another entity, the provisions of this Agreement shall be binding upon and inure to the benefit of the entity surviving such merger or resulting from such consolidation.  The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by agreement in form and substance satisfactory to Executive, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place.  The provisions of this Section 11 shall continue to apply to each subsequent employer of Executive in the event of any subsequent merger, consolidation or transfer of assets of such subsequent employer.

 

12.                                  Withholding .

 

Notwithstanding the provisions of Sections 4 and 5 hereof, the Company may, to the extent required by law, withhold applicable federal, state and local income and other taxes from any payments due to Executive hereunder.

 

13.                                  Applicable Law .

 

This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts made and to be performed therein.

 

14.                                  Entire Agreement .

 

This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof.  This Agreement may be changed only by a written agreement executed by the Company and Executive.

 

15.                                  Notice .  Notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered, delivered by a nationally recognized overnight delivery service, or sent by certified mail, return receipt requested, postage prepaid, addressed to the respective addresses last given by each party to the other, provided that all notices to the Company shall be directed to the attention of the Board with a copy to the Secretary of the Company.  All notices and communications shall be deemed to have been received on the date of delivery thereof or on the third business day after the mailing thereof, except that notice of change of address shall be effective only upon receipt.

 

16.                                  Severability .  The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any provision hereof shall not affect the validity or enforceability of the other provisions hereof.

 

5



 

IN WITNESS WHEREOF , the parties have executed this Agreement on the dates set forth below.

 

 

 

ARENA PHARMACEUTICALS, INC.

 

 

 

 

 

 

 

By:

 

 

 

Dated:  December 20, 2002

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Dated:                   , 200  

 

Executive

 

 

 

 

6



 

Schedule A

 

CERTAIN DEFINITIONS

 

As used in this Agreement, and unless the context requires a different meaning, the following terms, when capitalized, have the meaning indicated:

 

Annual Compensation ” means the sum of (i) Executive’s annual rate of base salary in effect on the date of the Change in Control or the Termination Date, whichever is higher, and (ii) any bonus paid or payable to Executive for the year preceding the Change in Control or the year preceding the Termination Date, whichever is higher.

 

Board ” means the Company’s Board of Directors.

 

Cause ” shall mean Executive’s termination of employment due to:

 

(i) the willful and continued failure of Executive to substantially perform Executive’s duties with the Company (other than any such failure resulting from incapacity due to physical or mental illness), after a written demand for substantial performance is delivered to Executive by the Board which specifically identifies the manner in which the Board believes that Executive has not substantially performed Executive’s duties; or

 

(ii) (A) Executive’s conviction of, or plea of guilty or nolo contendere to, a felony or (B) the willful engaging by Executive in gross misconduct which is materially and demonstrably injurious to the Company.

 

In each of (i) and (ii) above, for a termination of employment to be for Cause: (a) Executive must receive a written notice which indicates in reasonable detail the facts and circumstances claimed to provide a basis for the termination of Executive’s employment for Cause; (b) Executive must be provided with an opportunity to be heard no earlier than 30 days following the receipt of such notice (during which notice period Executive has the opportunity to cure and has failed to cure or resolve the behavior in question); and (c) there must be a good faith determination of Cause by at least three-quarters of the non-employee outside director members of the Board.

 

Change in Control ” shall mean any of the following events:

 

(i) any person or group of persons acting in concert (excluding Company benefit plans) becoming the beneficial owner of securities of the Company having at least 30% of the voting power of the Company’s then outstanding securities (unless the event causing the 30% threshold to be crossed is an acquisition of voting common securities directly from the Company); or

 

A-1



 

(ii) any merger or other business combination of the Company, any sale or lease of the Company’s assets or any combination of the foregoing transactions (the “ Transactions ”) other than a Transaction immediately following which the shareholders of the Company immediately prior to the Transaction own at least 60% of the voting power, directly or indirectly, of (A) the surviving corporation in any such merger or other business combination; (B) the purchaser or lessee of the Company’s assets; or (C) both the surviving corporation and the purchaser or lessee in the event of any combination of Transactions; or

 

(iii) within any 24 month period, the persons who were directors immediately before the beginning of such period (the “ Incumbent Directors ”) shall cease to constitute at least a majority of the Board or the board of directors of a successor to the Company.  For this purpose, any director who was not a director at the beginning of such period shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of or with the approval of, at least three-quarters of the directors who then qualified as Incumbent Directors (so long as such director was not nominated by a person who has expressed an intent to effect a Change in Control or engage in a proxy or other control contest).

 

Code ” means the Internal Revenue Code of 1986, as amended.

 

Company ” means Arena Pharmaceuticals, Inc. and its successors and assigns.

 

Disability ” means an illness or injury which prevents Executive from performing his or her duties, as they existed immediately prior to the illness or injury, on a full time basis for 180 consecutive business days.

 

Good Reason ” means any of the following actions, without Executive’s express prior written approval, other than due to Executive’s permanent disability or death:

 

(i)  any reduction in Executive’s annual base salary;

 

(ii)  any material reduction in Executive’s target bonus level or bonus opportunities;

 

(iii)  Executive’s duties, titles or responsibilities are materially diminished in comparison to the duties, titles and responsibilities enjoyed by Executive immediately prior to the Change in Control;

 

(iv)  the assignment to Executive of any duties materially inconsistent with his position;

 

(v)  in the event Executive is a member of the Board, any failure to elect Executive to or Executive’s removal from the Board or, if the Company is not publicly-

 

A-2



 

held following a Change in Control, to the board of directors of the Company’s ultimate publicly-held parent;

 

(vi)  any significant reduction, in the aggregate, in the employee benefit programs made available to Executive other than a reduction in such employee benefit programs affecting all employees of the Company substantially equally;

 

(vii)  the relocation of Executive’s principal place of business to a location outside the San Diego, California metropolitan area; or

 

(viii)  the failure of the Company to obtain a satisfactory agreement from any successor to assume and agree to perform the Agreement, as contemplated in Section 11 of the Agreement.

 

Executive’s continued employment shall not constitute consent to, or a waiver of rights with respect to, any circumstances constituting Good Reason hereunder.

 

A-3



 

Schedule 1

 

Participating Officers:

 

1.

Jack Lief

2.

Derek Chalmers

3.

Dominic Behan

4.

Robert Hoffman

5.

Joseph Mooney

6.

Louis Scotti

7.

Steven Spector

8.

Joyce Williams

 


Exhibit 10.2

 

T2

 

TERMINATION PROTECTION AGREEMENT

 

AGREEMENT effective December 20, 2002, between Arena Pharmaceuticals, Inc. (the “Company”) and [NAME] (“Executive”).

 

WHEREAS, Executive has important management responsibilities and talents which benefit the Company and its affiliates; and

 

WHEREAS, the Company believes that its best interests are served if Executive is encouraged to remain with the Company and the Company has determined that Executive’s ability to perform Executive’s responsibilities and utilize Executive’s talents for the benefit of the Company, and the Company’s ability to retain Executive as an employee, will be significantly enhanced if Executive is provided with fair and reasonable protection from the risks associated with a change in ownership or control of the Company; and

 

WHEREAS, the Board has approved and authorized this Agreement at its meeting on November 14, 2002,

 

NOW, THEREFORE, the Company and Executive hereby agree as follows:

 

1.                                        Defined Terms .

 

Unless otherwise indicated, capitalized terms used in this Agreement which are defined in Schedule A shall have the meanings set forth in Schedule A.

 

2.                                        Effective Date; Term .

 

This Agreement shall commence on December 20, 2002 (the “Effective Date”) and shall continue in effect through December 31, 2005; provided , however , the term of this Agreement shall automatically be extended for one additional year beyond December 31, 2005 and for successive one year periods thereafter, unless, not later than January 30 of each calendar year, commencing in 2003 for the 2006 calendar year (e.g., 2004 for the 2007 calendar year, 2005 for the 2008 calendar year, etc.), the Company shall have given written notice that it does not wish to extend this Agreement for an additional year, in which event this Agreement shall continue to be effective until December 31 of the applicable calendar year; provided , further , that, notwithstanding any such notice by the Company not to extend, if a Change in Control shall have occurred during the original or any extended term of this Agreement, this Agreement shall remain in effect for a period of two (2) years after such Change in Control.

 

3.                                        Change in Control Benefits .

 

If Executive’s employment with the Company or its affiliates is terminated at any time within two (2) years following a Change in Control by the Company or its affiliates without

 



 

Cause, or by Executive for Good Reason (the effective date of either such termination hereafter referred to as the “Termination Date”), Executive shall be entitled to the benefits provided hereafter in this Section 3 and as otherwise set forth in this Agreement.  If Executive’s employment is terminated within one (1) year prior to a Change in Control, and Executive reasonably demonstrates after such Change in Control that such termination was at the request or suggestion of any individual or entity who or which ultimately effects a Change in Control (an “Anticipatory Termination”), this Agreement shall become effective upon such Change in Control involving such individual or entity, and Executive’s Termination Date shall be deemed to have occurred immediately following the Change in Control, and therefore Executive shall be entitled to the benefits provided hereafter in this Section 3 and as otherwise set forth in this Agreement.  In the event that Executive’s employment is terminated as a result of death or Disability, Executive shall not be entitled to the benefits provided in this Section 3.

 

(a)                                   Severance Benefits .  Within five business days after the Termination Date, the Company shall pay Executive a lump sum amount, in cash, equal to Executive’s Annual Compensation.

 

(b)                                  Continued Health Insurance Coverage .  Until the second anniversary of the Termination Date, the Company shall, at its expense, provide Executive with medical and dental insurance at the highest level provided to Executive during the period beginning immediately prior to the Change in Control and ending on the Termination Date; provided , however , that if Executive becomes employed by a new employer, the coverages provided by the Company pursuant to this sentence shall become secondary to those coverages provided by the new employer.  In addition, Executive will be entitled to full COBRA continuation coverage commencing on the second anniversary of the Termination Date.

 

(c)                                   Full Vesting of All Stock Options and Restricted Shares . Notwithstanding any provision to the contrary in any equity compensation plan of the Company (the “Option Plan”) or any award agreement under the Option Plan, (i) any outstanding, unexercisable stock options or unvested restricted shares shall become fully exercisable and vested as of the Termination Date and (ii) any stock options shall remain exercisable until the first anniversary of the Termination Date; provided , however , that (x) in no event shall any stock option continue to be exercisable after the expiration of the 10 th anniversary of the grant date of any such option and (y) this section shall not restrict the Company’s ability to adjust stock options pursuant to Section 3(b) of the Option Plan (or any successor provision under the Option Plan or any similar provision in any other Company option plan) or to require that optionees surrender their stock option pursuant to Section 10(b) of the Option Plan (or any successor provision under the Option Plan or any similar provision in any other Company option plan), so long as, in any such adjustment or surrender, Executive is treated no less favorably than any other employee of the Company.

 

(d)                                  Other Payments And Benefits .  Executive shall also be entitled to receive any other payments or benefits Executive is entitled to pursuant to the terms of any Company plans, programs or arrangements (other than severance benefits).

 

2



 

4.                                        Mitigation .

 

Executive shall not be required to mitigate damages or the amount of any payment provided for under this Agreement by seeking other employment or otherwise, and compensation earned from such employment or otherwise shall not reduce the amounts otherwise payable under this Agreement.  No amounts payable under this Agreement shall be subject to reduction or offset in respect of any claims which the Company (or any other person or entity) may have against Executive.

 

5.                                        Severance Benefit Cap .

 

In the event that any payment or benefit (the “Payments”) received or to be received by Executive pursuant to the terms of this Agreement or in connection with Executive’s termination of employment or contingent upon a change in control of the Company pursuant to any plan or arrangement or other agreement with the Company (or any affiliate) would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code, then Executive will receive whichever of the following provides a greater after-tax benefit to Executive: (i) the Payments, reduced by the minimum amount necessary so as not to be subject to the Excise Tax, or (ii) the full amount of the Payments, with Executive liable for any Excise Tax.

 

6.                                        Employment Status; No Effect Prior to Change in Control; Termination for Cause .

 

Executive and the Company acknowledge and agree that prior to a Change in Control, Executive’s employment is “at will” and may be terminated at any time, by the Company or by Executive, with or without Cause, subject to applicable law.  In the event Executive’s employment is terminated for any reason prior to a Change in Control, other than in the case of an Anticipatory Termination, Executive shall have no rights to any payments or benefits under this Agreement and after any such termination, this Agreement shall be of no further force or effect.

 

Following a Change in Control, nothing in this Agreement shall be construed to prevent the Company from terminating Executive’s employment for Cause.  In the event Executive is terminated for Cause following a Change in Control, Executive shall have no rights to any payments or benefits under this Agreement and after such termination, this Agreement shall be of no further force or effect.

 

7.                                        Indemnification; Director’s and Officer’s Liability Insurance .

 

Until the sixth anniversary of the Termination Date and for so long thereafter as any claim for indemnification asserted on or prior to such date has not been fully adjudicated (the “Indemnification Period”), the Company shall indemnify, defend, and hold harmless Executive against all losses, claims, damages, costs, expenses (including attorneys’ fees) or liabilities (including attorneys’ fees) arising out of actions or omissions or alleged actions or omissions which have occurred on or prior to the Termination Date to the same extent and on the same

 

3



 

terms and conditions (including with respect to advancement of expenses) as permitted under applicable law and the Company’s certificate of incorporation and by-laws as in effect immediately prior to the Change in Control.  In addition, the Company shall maintain Director’s and Officer’s liability insurance on behalf of Executive, at the level in effect immediately prior to the Change in Control, for the Indemnification Period.

 

8.                                        Confidential Information .

 

Executive acknowledges that the Proprietary Information and Inventions Agreement previously entered into by Executive and the Company remains in full force and effect and survives the termination of his or her employment with the Company; provided that nothing contained in such agreement or this Section 8 shall prevent Executive from being employed by a competitor of any of the Company or utilizing Executive’s general skills, experience, and knowledge, including those developed while employed by any of the Company or its affiliates.

 

9.                                        Disputes .

 

Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in San Diego, California or, at the option of Executive, in the county where Executive then resides, in accordance with the Rules of the American Arbitration Association then in effect, except that Executive may, at Executive’s option, bring that action in a court of competent jurisdiction, even if the Company has earlier instituted an action hereunder.  Judgment may be entered on an arbitrator’s award relating to this Agreement in any court having jurisdiction.

 

10.                                  Costs of Proceedings .

 

The Company shall pay for all costs and expenses of Executive, at least monthly, including attorneys’ fees and disbursements, in connection with any legal proceeding (including arbitration), whether instituted by the Company or by Executive, relating to the interpretation or enforcement of any provision of this Agreement, except that if Executive instituted the proceeding and the judge, arbitrator or other individual presiding over the proceeding affirmatively finds that Executive instituted the proceeding in bad faith, then Executive shall be required to pay all costs and expenses of Executive, including attorney’s fees and disbursements, and shall not be entitled to reimbursement.  The Company shall pay prejudgment interest on any money judgment obtained by Executive as a result of such a proceeding, calculated at the prime rate of interest as reported in the Wall Street Journal, as in effect from time to time, from the date that payment should have been made to Executive under this Agreement.

 

11.                                  Successors And Assigns .

 

Except as otherwise provided herein, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the Company and Executive and their respective heirs, legal representatives, successors and assigns.  If the Company shall be merged into or

 

4



 

consolidated with another entity, the provisions of this Agreement shall be binding upon and inure to the benefit of the entity surviving such merger or resulting from such consolidation.  The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by agreement in form and substance satisfactory to Executive, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place.  The provisions of this Section 11 shall continue to apply to each subsequent employer of Executive in the event of any subsequent merger, consolidation or transfer of assets of such subsequent employer.

 

12.                                  Withholding .

 

Notwithstanding the provisions of Sections 4 and 5 hereof, the Company may, to the extent required by law, withhold applicable federal, state and local income and other taxes from any payments due to Executive hereunder.

 

13.                                  Applicable Law .

 

This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts made and to be performed therein.

 

14.                                  Entire Agreement .

 

This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof.  This Agreement may be changed only by a written agreement executed by the Company and Executive.

 

15.                                  Notice .  Notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered, delivered by a nationally recognized overnight delivery service, or sent by certified mail, return receipt requested, postage prepaid, addressed to the respective addresses last given by each party to the other, provided that all notices to the Company shall be directed to the attention of the Board with a copy to the Secretary of the Company.  All notices and communications shall be deemed to have been received on the date of delivery thereof or on the third business day after the mailing thereof, except that notice of change of address shall be effective only upon receipt.

 

16.           Severability .  The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any provision hereof shall not affect the validity or enforceability of the other provisions hereof.

 

5



 

IN WITNESS WHEREOF , the parties have executed this Agreement on the dates set forth below.

 

 

 

ARENA PHARMACEUTICALS, INC.

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

Dated:  December 20, 2002

 

Jack Lief

 

 

 

President and CEO

 

 

 

 

 

 

 

 

 

 

Dated:                         , 200  

 

Executive

 

 

 

6



 

Schedule A

 

CERTAIN DEFINITIONS

 

 

As used in this Agreement, and unless the context requires a different meaning, the following terms, when capitalized, have the meaning indicated:

 

Annual Compensation ” means the sum of (i) Executive’s annual rate of base salary in effect on the date of the Change in Control or the Termination Date, whichever is higher, and (ii)  any bonus paid or payable to Executive for the year preceding the Change in Control or the year preceding the Termination Date, whichever is higher.

 

Board ” means the Company’s Board of Directors.

 

Cause ” shall mean Executive’s termination of employment due to:

 

(i) the willful and continued failure of Executive to substantially perform Executive’s duties with the Company (other than any such failure resulting from incapacity due to physical or mental illness), after a written demand for substantial performance is delivered to Executive by the Chief Executive Officer of the Company which specifically identifies the manner in which the Chief Executive Officer believes that Executive has not substantially performed Executive’s duties; or

 

(ii) (A) Executive’s conviction of, or plea of guilty or nolo contendere to, a felony or (B) the willful engaging by Executive in gross misconduct which is materially and demonstrably injurious to the Company.

 

Change in Control ” shall mean any of the following events:

 

(i) any person or group of persons acting in concert (excluding Company benefit plans) becoming the beneficial owner of securities of the Company having at least 30% of the voting power of the Company’s then outstanding securities (unless the event causing the 30% threshold to be crossed is an acquisition of voting common securities directly from the Company); or

 

(ii) any merger or other business combination of the Company, any sale or lease of the Company’s assets or any combination of the foregoing transactions (the “ Transactions ”) other than a Transaction immediately following which the shareholders of the Company immediately prior to the Transaction own at least 60% of the voting power, directly or indirectly, of (A) the surviving corporation in any such merger or other business combination; (B) the purchaser or lessee of the Company’s assets; or (C) both the surviving corporation and the purchaser or lessee in the event of any combination of Transactions; or

 

A-1



 

(iii) within any 24 month period, the persons who were directors immediately before the beginning of such period (the “ Incumbent Directors ”) shall cease to constitute at least a majority of the Board or the board of directors of a successor to the Company.  For this purpose, any director who was not a director at the beginning of such period shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of or with the approval of, at least three-quarters of the directors who then qualified as Incumbent Directors (so long as such director was not nominated by a person who has expressed an intent to effect a Change in Control or engage in a proxy or other control contest).

 

Code ” means the Internal Revenue Code of 1986, as amended.

 

Company ” means Arena Pharmaceuticals, Inc. and its successors and assigns.

 

Disability ” means an illness or injury which prevents Executive from performing his or her duties, as they existed immediately prior to the illness or injury, on a full time basis for 180 consecutive business days.

 

Good Reason ” means any of the following actions, without Executive’s express prior written approval, other than due to Executive’s permanent disability or death:

 

(i)  any reduction in Executive’s annual base salary;

 

(ii)  any material reduction in Executive’s target bonus level or bonus opportunities;

 

(iii)  Executive’s duties, titles or responsibilities are materially diminished in comparison to the duties, titles and responsibilities enjoyed by Executive immediately prior to the Change in Control;

 

(iv)  the assignment to Executive of any duties materially inconsistent with his position;

 

(v)  in the event Executive is a member of the Board, any failure to elect Executive to or Executive’s removal from the Board or, if the Company is not publicly-held following a Change in Control, to the board of directors of the Company’s ultimate publicly-held parent;

 

(vi)  any significant reduction, in the aggregate, in the employee benefit programs made available to Executive other than a reduction in such employee benefit programs affecting all employees of the Company substantially equally;

 

(vii)  the relocation of Executive’s principal place of business to a location outside the San Diego, California metropolitan area; or

 

A-2



 

(viii)  the failure of the Company to obtain a satisfactory agreement from any successor to assume and agree to perform the Agreement, as contemplated in Section 11 of this Agreement.

 

Executive’s continued employment shall not constitute consent to, or a waiver of rights with respect to, any circumstances constituting Good Reason hereunder.

 

A-3



 

Schedule 1

 

Participating Officers:

 

1.

Nigel Beeley

2.

Paul Maffuid

3.

Michael Lerner

 


Exhibit 31.1

 

CERTIFICATION

 

I, Jack Lief, certify that:

 

1.                                        I have reviewed this quarterly report on Form 10-Q of Arena Pharmaceuticals, Inc.;

 

2.                                        Based on my knowledge, this quarterly 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 quarterly report;

 

3.                                        Based on my knowledge, the financial statements, and other financial information included in this quarterly 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 quarterly report;

 

4.                                        The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:

 

a)               designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared;

 

b)              evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this quarterly report based on such evaluation; and

 

c)               Disclosed in this quarterly report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.                                        The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a)               all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

b)              any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

 

Date: August 13, 2003

 

 

 

 

 

 

 

 

 

 

 

 

 

 

/s/ Jack Lief

 

 

 

 

Jack Lief, President and Chief

 

 

 

Executive Officer

 


Exhibit 31.2

CERTIFICATION

 

I, Joseph F. Mooney, certify that:

 

1.                                        I have reviewed this quarterly report on Form 10-Q of Arena Pharmaceuticals, Inc.;

 

2.                                        Based on my knowledge, this quarterly 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 quarterly report;

 

3.                                        Based on my knowledge, the financial statements, and other financial information included in this quarterly 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 quarterly report;

 

4.                                        The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:

 

a)               designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared;

 

b)              evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this quarterly report based on such evaluation; and

 

c)               Disclosed in this quarterly report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s  most recent fiscal quarter (the registrant’s  fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.                                        The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a)               all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

b)              any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

 

Date: August 13, 2003

 

 

 

 

 

 

 

 

 

 

 

 

 

 

/s/ Joseph F. Mooney

 

 

 

 

Joseph F. Mooney, Chief Financial Officer

 


Exhibit 31.3

CERTIFICATION

 

I, Robert E. Hoffman, CPA, certify that:

 

1.                                        I have reviewed this quarterly report on Form 10-Q of Arena Pharmaceuticals, Inc.;

 

2.                                        Based on my knowledge, this quarterly 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 quarterly report;

 

3.                                        Based on my knowledge, the financial statements, and other financial information included in this quarterly 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 quarterly report;

 

4.                                        The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:

 

a)               designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared;

 

b)              evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this quarterly report based on such evaluation; and

 

c)               Disclosed in this quarterly report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.                                        The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a)               all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

b)              any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

 

Date: August 13, 2003

 

 

 

 

 

 

 

 

 

 

 

 

 

 

/s/ Robert E. Hoffman

 

 

 

 

Robert E. Hoffman, CPA, VP, Finance
and Chief Accounting Officer

 


Exhibit 32

 

CERTIFICATION OF CEO AND CFO PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the Quarterly Report on Form 10-Q of Arena Pharmaceuticals, Inc. (the “Company”) for the period ended June 30, 2003, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), Jack Lief, as President and Chief Executive Officer of the Company, and Joseph F. Mooney, as Chief Financial Officer of the Company, each hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

 

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.

 

 

/s/  Jack Lief

 

/s/  Joseph F. Mooney

 

Jack Lief

Joseph F. Mooney

President and Chief Executive Officer

Chief Financial Officer

Date: August 13, 2003

Date: August 13, 2003