x
QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
|
SECURITIES
EXCHANGE ACT OF 1934
|
For
the quarterly period ended September 30, 2005
|
OR
|
o
TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
|
SECURITIES
EXCHANGE ACT OF 1934
|
For
the transition period from
to
.
|
Delaware
(State
or other jurisdiction of incorporation or organization)
|
13-4087132
(I.R.S.
Employer Identification No.)
|
Page
|
||
SPECIAL
CAUTIONARY NOTICE REGARDING FORWARD-LOOKING STATEMENTS
|
1
|
|
PART
I
|
FINANCIAL
INFORMATION
|
|
Item
1
|
Financial
Statements
|
2
|
Consolidated
Balance Sheets as of September 30, 2005 (unaudited) and
December
31, 2004 (audited)
|
2
|
|
Interim
Consolidated Statements of Operations for the three and nine months
ended
September 30, 2005 and 2004 (unaudited)
|
3
|
|
Interim
Consolidated Statements of Cash Flows for the nine months
ended
September 30, 2005 and 2004 (unaudited)
|
4
|
|
Notes
to Interim Consolidated Financial Statements as of September 30,
2005
(unaudited)
|
6
|
|
Item
2
|
Management's
Discussion and Analysis of Financial Condition and
Results
of Operations
|
10
|
Item
3
|
Quantitative
and Qualitative Disclosures About Market Risk
|
29
|
Item
4
|
Controls
and Procedures
|
29
|
PART
II
|
OTHER
INFORMATION
|
|
Item
1
|
Legal
Proceedings
|
29
|
Item
6
|
Exhibits
|
30
|
·
|
expectations
for increases or decreases in expenses;
|
·
|
expectations
for the development, manufacturing, and approval of KRX-101, KRX-0401,
and
our additional product candidates or any other products we may
acquire or
in-license;
|
·
|
expectations
for incurring additional capital expenditures to expand our research
and
development and manufacturing capabilities;
|
·
|
expectations
for generating revenue or becoming profitable on a sustained basis;
|
·
|
expectations
or ability to enter into marketing and other partnership agreements;
|
·
|
expectations
or ability to enter into product acquisition and in-licensing
transactions;
|
·
|
expectations
or ability to build our own commercial infrastructure to manufacture,
market and sell our drug
candidates;
|
·
|
estimates
of the sufficiency of our existing cash and cash equivalents and
investments to finance our business strategy;
|
·
|
expected
losses; and
|
·
|
expectations
for future capital requirements.
|
September
30, 2005
|
December
31, 2004
|
||||||
(Unaudited)
|
(Audited)
|
||||||
Assets
|
|||||||
Current
assets
|
|||||||
Cash
and cash equivalents
|
$
|
87,220
|
$
|
29,699
|
|||
Short-term
investment securities
|
8,855
|
20,035
|
|||||
Accrued
interest receivable
|
180
|
144
|
|||||
Other
receivables and prepaid expenses
|
1,725
|
622
|
|||||
Total
current assets
|
97,980
|
50,500
|
|||||
Long-term
investment securities
|
13,870
|
--
|
|||||
Property,
plant and equipment, net
|
753
|
145
|
|||||
Other
assets (primarily intangible assets), net
|
129
|
217
|
|||||
Total
assets
|
$
|
112,732
|
$
|
50,862
|
|||
Liabilities
and stockholders’ equity
|
|||||||
Current
liabilities
|
|||||||
Accounts
payable and accrued expenses
|
$
|
5,027
|
$
|
3,079
|
|||
Accrued
compensation and related liabilities
|
31
|
743
|
|||||
Deferred
revenue
|
148
|
140
|
|||||
Total
current liabilities
|
5,206
|
3,962
|
|||||
Contingent
equity rights
|
4,004
|
4,004
|
|||||
Other
liabilities
|
327
|
92
|
|||||
Total
liabilities
|
9,537
|
8,058
|
|||||
Stockholders’
equity
|
|||||||
Common
stock, $0.001 par value per share (60,000,000 and
60,000,000
shares authorized, 37,729,922 and 31,373,280 shares
issued,
37,673,822 and 31,317,180 shares outstanding at
September
30, 2005, and December 31, 2004, respectively)
|
38
|
31
|
|||||
Additional
paid-in capital
|
210,686
|
132,643
|
|||||
Treasury
stock, at cost, 56,100 shares at September 30, 2005 and
December
31, 2004, respectively
|
(89
|
)
|
(89
|
)
|
|||
Unearned
compensation
|
(2,155
|
)
|
(2,228
|
)
|
|||
Deficit
accumulated during the development stage
|
(105,285
|
)
|
(87,553
|
)
|
|||
Total
stockholders’ equity
|
103,195
|
42,804
|
|||||
Total
liabilities and stockholders’ equity
|
$
|
112,732
|
$
|
50,862
|
Three
months ended
September
30,
|
Nine
months ended
September
30,
|
Amounts
accumulated during the development
|
||||||||||||||
|
|
2005
|
|
2004
|
|
2005
|
|
2004
|
|
stage
|
|
|||||
Revenue:
|
||||||||||||||||
Service
revenue
|
$
|
82
|
$
|
397
|
$
|
365
|
$
|
642
|
$
|
1,174
|
||||||
Management
fees from related party
|
--
|
--
|
--
|
--
|
300
|
|||||||||||
Total
revenue
|
82
|
397
|
365
|
642
|
1,474
|
|||||||||||
Operating
expenses:
|
||||||||||||||||
Cost
of services
|
197
|
416
|
539
|
619
|
1,374
|
|||||||||||
Research
and development:
|
||||||||||||||||
Non-cash
compensation
|
226
|
70
|
539
|
295
|
7,679
|
|||||||||||
Non-cash
acquired in-process research
and
development
|
--
|
--
|
--
|
18,800
|
18,800
|
|||||||||||
Other
research and development
|
6,501
|
2,594
|
15,723
|
6,313
|
55,435
|
|||||||||||
Total
research and development expenses
|
6,727
|
2,664
|
16,262
|
25,408
|
81,914
|
|||||||||||
General
and administrative:
|
||||||||||||||||
Non-cash
compensation
|
258
|
161
|
611
|
967
|
5,277
|
|||||||||||
Other
general and administrative
|
671
|
596
|
2,015
|
2,434
|
23,685
|
|||||||||||
Total
general and administrative expenses
|
929
|
757
|
2,626
|
3,401
|
28,962
|
|||||||||||
Total
operating expenses
|
7,853
|
3,837
|
19,427
|
29,428
|
112,250
|
|||||||||||
Operating
loss
|
(7,771
|
)
|
(3,440
|
)
|
(19,062
|
)
|
(28,786
|
)
|
(110,776
|
)
|
||||||
Interest
and other income, net
|
823
|
187
|
1,330
|
452
|
5,982
|
|||||||||||
Net
loss before income taxes
|
(6,948
|
)
|
(3,253
|
)
|
(17,732
|
)
|
(28,334
|
)
|
(104,794
|
)
|
||||||
Income
taxes
|
--
|
--
|
--
|
1
|
491
|
|||||||||||
Net
loss
|
$
|
(6,948
|
)
|
$
|
(3,253
|
)
|
$
|
(17,732
|
)
|
$
|
(28,335
|
)
|
$
|
(105,285
|
)
|
|
Basic
and diluted loss per common share
|
$
|
(0.19
|
)
|
$
|
(0.11
|
)
|
$
|
(0.53
|
)
|
$
|
(0.95
|
)
|
$
|
(6.02
|
)
|
|
Weighted
average shares used in
computing
basic and diluted net
loss
per common share
|
36,721,122
|
30,743,132
|
33,261,801
|
29,683,258
|
17,489,330
|
Nine
months ended
September
30,
|
Amounts
accumulated
during
the
development
stage
|
|||||||||
2005
|
2004
|
|||||||||
CASH
FLOWS FROM OPERATING ACTIVITIES
|
||||||||||
Net
loss
|
$
|
(17,732
|
)
|
$
|
(28,335
|
)
|
$
|
(105,285
|
)
|
|
Adjustments
to reconcile cash flows used in operating
activities:
|
||||||||||
Acquired
in-process research and development
|
--
|
18,800
|
18,800
|
|||||||
Stock
compensation expense
|
1,150
|
1,262
|
12,956
|
|||||||
Issuance
of common stock to technology licensor
|
--
|
--
|
359
|
|||||||
Interest
on convertible notes settled through issuance of
preferred
shares
|
--
|
--
|
253
|
|||||||
Depreciation
and amortization
|
136
|
116
|
2,557
|
|||||||
Loss
on disposal of property, plant and equipment
|
2
|
--
|
172
|
|||||||
Impairment
charges
|
--
|
--
|
2,482
|
|||||||
Exchange
rate differences
|
--
|
(3
|
)
|
94
|
||||||
Changes
in assets and liabilities, net of effects of acquisitions:
|
||||||||||
(Increase)
in other receivables and prepaid expenses
|
(1,103
|
)
|
(233
|
)
|
(1,354
|
)
|
||||
(Increase)
decrease in accrued interest receivable
|
(36
|
)
|
67
|
(180
|
)
|
|||||
Increase
in accounts payable and accrued expenses
|
1,948
|
147
|
3,714
|
|||||||
(Decrease)
in accrued compensation and related liabilities
|
(712
|
)
|
(647
|
)
|
(541
|
)
|
||||
Increase
(decrease) in other liabilities
|
235
|
(46
|
)
|
172
|
||||||
Increase
(decrease) in deferred revenue
|
8
|
(244
|
)
|
(308
|
)
|
|||||
Net
cash used in operating activities
|
(16,104
|
)
|
(9,116
|
)
|
(66,109
|
)
|
||||
CASH
FLOWS FROM INVESTING ACTIVITIES
|
||||||||||
Purchases
of property, plant and equipment
|
(682
|
)
|
(18
|
)
|
(5,109
|
)
|
||||
Proceeds
from disposals of property, plant and equipment
|
1
|
--
|
425
|
|||||||
(Increase)
in note and accrued interest receivable from related
party
|
--
|
(4
|
)
|
(356
|
)
|
|||||
(Increase)
in other assets
|
(4
|
)
|
(4
|
)
|
(1,200
|
)
|
||||
Proceeds
from maturity of (investment in) held-to-maturity
short-term
securities
|
11,205
|
(1,048
|
)
|
(3,805
|
)
|
|||||
(Investment
in) available-for-sale short-term securities
|
(25
|
)
|
(5,000
|
)
|
(6,050
|
)
|
||||
Proceeds
from sale of available-for-sale short-term securities
|
--
|
--
|
1,000
|
|||||||
(Investment
in) held-to-maturity long-term securities
|
(13,870
|
)
|
--
|
(13,870
|
)
|
|||||
Net
cash used in investing activities
|
(3,375
|
)
|
(6,074
|
)
|
(28,965
|
)
|
Nine
months ended
September
30,
|
Amounts
accumulated
during
the
development
stage
|
|||||||||
2005
|
2004
|
|||||||||
CASH
FLOWS FROM FINANCING ACTIVITIES
|
||||||||||
Proceeds
from short-term loans
|
$
|
--
|
$
|
--
|
$
|
500
|
||||
Proceeds
from long-term loans
|
--
|
--
|
3,251
|
|||||||
Payment
of assumed notes payable and accrued interest in
connection
with the ACCESS Oncology acquisition
|
--
|
(6,322
|
)
|
(6,322
|
)
|
|||||
Issuance
of convertible note, net
|
--
|
--
|
2,150
|
|||||||
Issuance
of preferred shares, net
|
--
|
--
|
8,453
|
|||||||
Receipts
on account of shares previously issued
|
--
|
--
|
7
|
|||||||
Proceeds
from initial public offering, net
|
--
|
--
|
46,298
|
|||||||
Proceeds
from secondary public offering, net
|
75,843
|
--
|
75,843
|
|||||||
Proceeds
from private placements, net
|
--
|
31,707
|
45,795
|
|||||||
Proceeds
from exercise of options and warrants
|
1,157
|
3,726
|
6,408
|
|||||||
Purchase
of treasury stock
|
--
|
--
|
(89
|
)
|
||||||
Net
cash provided by financing activities
|
77,000
|
29,111
|
182,294
|
|||||||
Cash
acquired in acquisition
|
--
|
94
|
94
|
|||||||
Effect
of exchange rate on cash
|
--
|
3
|
(94
|
)
|
||||||
NET
INCREASE (DECREASE) IN CASH AND CASH
EQUIVALENTS
|
57,521
|
14,018
|
87,220
|
|||||||
Cash
and cash equivalents at beginning of year
|
29,699
|
21,672
|
--
|
|||||||
CASH
AND CASH EQUIVALENTS AT END OF PERIOD
|
$
|
87,220
|
$
|
35,690
|
$
|
87,220
|
||||
NON
- CASH TRANSACTIONS
|
||||||||||
Issuance
of common stock in connection with acquisition
|
$
|
--
|
$
|
6,325
|
$
|
6,325
|
||||
Issuance
of contingent equity rights in connection with
acquisition
|
--
|
$
|
4,003
|
4,004
|
||||||
Assumption
of liabilities in connection with acquisition
|
--
|
$
|
8,724
|
8,723
|
||||||
Conversion
of short-term loans into contributed capital
|
--
|
--
|
500
|
|||||||
Conversion
of long-term loans into contributed capital
|
--
|
--
|
2,681
|
|||||||
Conversion
of long-term loans into convertible notes of Partec
|
--
|
--
|
570
|
|||||||
Conversion
of convertible notes of Partec and accrued interest
into
stock in Keryx
|
--
|
--
|
2,973
|
|||||||
Issuance
of warrants to related party as finder’s fee in private
placement
|
--
|
--
|
114
|
|||||||
Declaration
of stock dividend
|
--
|
--
|
3
|
|||||||
SUPPLEMENTARY
DISCLOSURES OF CASH FLOW
INFORMATION
|
||||||||||
Cash
paid for interest
|
$
|
--
|
$
|
1,026
|
$
|
1,166
|
||||
Cash
paid for income taxes
|
$
|
--
|
$
|
1
|
$
|
432
|
Three
months ended
September
30,
|
Nine
months ended
September
30,
|
Amounts
accumulated during the development
|
||||||||||||||
(in
thousands, except per share amounts)
|
|
2005
|
|
2004
|
|
2005
|
|
2004
|
|
stage
|
|
|||||
Net
loss, as reported
|
$
|
(6,948
|
)
|
$
|
(3,253
|
)
|
$
|
(17,732
|
)
|
$
|
(28,335
|
)
|
$
|
(105,285
|
)
|
|
Add:
Stock-based compensation expense
to
employees and directors determined
under
the intrinsic value-based
method,
as included in reported net
loss
|
111
|
111
|
334
|
556
|
10,068
|
|||||||||||
Deduct:
Stock-based compensation
expense
to employees and directors
determined
under fair value based
method
|
(931
|
)
|
(267
|
)
|
(2,853
|
)
|
(3,223
|
)
|
(19,272
|
)
|
||||||
Pro
forma net loss
|
$
|
(7,768
|
)
|
$
|
(3,409
|
)
|
$
|
(20,251
|
)
|
$
|
(31,002
|
)
|
$
|
(114,489
|
)
|
|
Basic
and diluted loss per common share:
|
||||||||||||||||
As
reported
|
$
|
(0.19
|
)
|
$
|
(0.11
|
)
|
$
|
(0.53
|
)
|
$
|
(0.95
|
)
|
$
|
(6.02
|
)
|
|
Pro
forma
|
$
|
(0.21
|
)
|
$
|
(0.11
|
)
|
$
|
(0.61
|
)
|
$
|
(1.04
|
)
|
$
|
(6.55
|
)
|
· |
500,000
shares of the Company’s common stock upon enrollment of the first patient
in a Keryx-sponsored Phase III (or other pivotal) clinical trial
for any
of the acquired ACCESS Oncology drug
candidates;
|
· |
750,000
shares of the Company’s common stock upon the first new drug application
acceptance by the Food and Drug Administration, or FDA, for any
of the
acquired ACCESS Oncology drug candidates;
|
· |
1,750,000
shares of the Company’s common stock upon the first FDA approval of any of
the acquired ACCESS Oncology drug candidates;
and
|
· |
372,422
shares of the Company’s common stock following the first 12-month period
that sales of all of the acquired ACCESS Oncology drug candidates
combined
exceeds $100 million.
|
(in
thousands, except per share amounts)
|
Nine
months ended
September
30, 2004
|
|||
Revenue
|
$
|
744
|
||
Net
loss
|
$
|
(9,478
|
)
|
|
Basic
and diluted loss per common share
|
$
|
(0.32
|
)
|
Payment
due by period
|
||||||||||||||||
Contractual
obligations
|
Total
|
Less
than
1
year
|
1-3
years
|
3-5
years
|
More
than
5
years
|
|||||||||||
Research
and development agreements
|
$
|
86,982,000
|
$
|
27,425,000
|
$
|
41,676,000
|
$
|
17,881,000
|
$
|
--
|
||||||
Operating
leases
|
3,030,000
|
631,000
|
1,193,000
|
1,193,000
|
13,000
|
|||||||||||
Total
|
$
|
90,012,000
|
$
|
28,056,000
|
$
|
42,869,000
|
$
|
19,074,000
|
$
|
13,000
|
· |
revenue
that is likely to result from specific in-process research and
development
projects, including estimated patient populations, estimated selling
prices, estimated market penetration and estimated market share
and
year-over-year growth rates over the product life
cycles;
|
· |
cost
of sales related to the potential products using industry data
or other
sources of market data;
|
· |
sales
and marketing expense using industry data or other market
data;
|
· |
general
and administrative expenses; and
|
· |
research
and development expenses.
|
●
|
manufacture
our product candidates;
|
●
|
assist
us in developing, testing and obtaining regulatory approval for
and
commercializing some of our compounds and technologies;
and
|
●
|
market
and distribute our drug products.
|
● |
perceptions
by members of the health care community, including physicians,
of the
safety and efficacy of our product
candidates;
|
● |
the
rates of adoption of our products by medical practitioners and
the target
populations for our products;
|
● |
the
potential advantages that our products offer over existing treatment
methods;
|
● |
the
cost-effectiveness of our products relative to competing
products;
|
● |
the
availability of government or third-party payor reimbursement for
our
products;
|
● |
the
side effects or unfavorable publicity concerning our products or
similar
products; and
|
● |
the
effectiveness of our sales, marketing and distribution efforts.
|
● |
difficulty
and expense of assimilating the operations, technology and personnel
of
the acquired business;
|
● |
our
inability to retain the management, key personnel and other employees
of
the acquired business;
|
● |
our
inability to maintain the acquired company's relationship with
key third
parties, such as alliance partners;
|
● |
exposure
to legal claims for activities of the acquired business prior to
the
acquisition;
|
● |
the
diversion of our management's attention from our core business;
and
|
● |
the
potential impairment of goodwill and write-off of in-process research
and
development costs, adversely affecting our reported results of
operations.
|
● |
government
and health administration authorities;
|
● | private health insurers; |
● | managed care programs; and |
● | other third-party payors. |
● |
decreased
demand for a product;
|
● | injury to our reputation; |
● | our inability to continue to develop a drug candidate; |
● | withdrawal of clinical trial volunteers; and |
● | loss of revenues. |
● |
the
timing of expenses associated with manufacturing and product development
of the proprietary drug candidates within our portfolio and those
that may
be in-licensed, partnered or
acquired;
|
● |
the
timing of the in-licensing, partnering and acquisition of new product
opportunities;
|
● |
the
progress of the development efforts of parties with whom we have
entered,
or may enter, into research and development
agreements;
|
● |
our
ability to achieve our milestones under our licensing arrangements;
and
|
● |
the
costs involved in prosecuting and enforcing patent claims and other
intellectual property rights.
|
●
|
the
progress of our development activities;
|
● |
the
progress of our research activities;
|
● | the number and scope of our development programs; |
● | the costs associated with commercialization activities, including manufacturing, marketing and sales; |
● | our ability to establish and maintain current and new licensing or acquisition arrangements; |
● | our ability to achieve our milestones under our licensing arrangements; |
● | the costs involved in enforcing patent claims and other intellectual property rights; and |
● | the costs and timing of regulatory approvals. |
● |
developments
concerning our drug candidates;
|
● | announcements of technological innovations by us or our competitors; |
● | introductions or announcements of new products by us or our competitors; |
● | announcements by us of significant acquisitions, strategic partnerships, joint ventures or capital commitments; |
● | changes in financial estimates by securities analysts; |
● | actual or anticipated variations in quarterly operating results; |
● | expiration or termination of licenses, research contracts or other collaboration agreements; |
● | conditions or trends in the regulatory climate and the biotechnology and pharmaceutical industries; |
● | changes in the market valuations of similar companies; and |
● | additions or departures of key personnel. |
3.1
|
Amended
and Restated Certificate of Incorporation of Keryx Biopharmaceuticals,
Inc., filed as Exhibit 3.1 to the Registrant's Annual Report on
Form 10-Q
for the quarter ended June 30, 2004, filed on August 12, 2004,
and
incorporated herein by reference.
|
|
3.2
|
Amended
and Restated Bylaws of Keryx Biopharmaceuticals, Inc., filed as
Exhibit
3.2 to the Registrant’s Annual Report on Form 10-K for the year ended
December 31, 2001, filed on March 26, 2002 (File No. 000-30929),
and
incorporated herein by reference.
|
|
31.1
|
Certification
of Chief Executive Officer pursuant to Rule 13a-14(a)/15d-14(a),
as
adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002,
dated
November 4, 2005.
|
|
|
|
|
31.2
|
Certification
of Chief Financial Officer pursuant to Rule 13a-14(a)/15d-14(a),
as
adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002,
November 4, 2005.
|
|
|
|
|
32.1
|
Certification
of Chief Executive Officer pursuant to 18 U.S.C. §1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, November
4,
2005.
|
|
|
|
|
32.2
|
Certification
of Chief Financial Officer pursuant to 18 U.S.C. §1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, dated
November
4, 2005.
|
KERYX
BIOPHARMACEUTICALS, INC.
|
||
|
|
|
Date:
November 4, 2005
|
By: |
/s/
Ron Bentsur
|
Ron
Bentsur
|
||
Vice
President, Finance and Investor Relations
(Principal
Financial and Accounting
Officer)
|
31.1
|
Certification
of Chief Executive Officer pursuant to Rule 13a-14(a)/15d-14(a),
as
adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002,
dated
November 4, 2005.
|
|
|
31.2
|
Certification
of Chief Financial Officer pursuant to Rule 13a-14(a)/15d-14(a),
as
adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002,
dated
November 4, 2005.
|
|
|
32.1
|
Certification
of Chief Executive Officer pursuant to 18 U.S.C. §1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, dated
November
4, 2005.
|
|
|
32.2
|
Certification
of Chief Financial Officer pursuant to 18 U.S.C. §1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, dated
November
4, 2005.
|