Attached files
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________________________
FORM 10-K/A
(Amendment No. 1)
____________________________________________
(Mark One)
ý | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Commission file number: 001-35318
____________________________________________
ZELTIQ Aesthetics, Inc.
(Exact name of registrant as specified in its charter)
____________________________________________
Delaware | 27-0119051 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. employer identification no.) | |
4698 Willow Road, Suite 100
Pleasanton, CA 94588
(Address of principal executive offices and Zip Code)
(925) 474-2500
(Registrant’s telephone number, including area code)
____________________________________________
Securities registered pursuant to Section 12(b) of the Act:
Title of each class: Common Stock
Name of each exchange on which registered: The NASDAQ Global Select Market
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes ¨ No x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ý No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ý No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (check one):
Large accelerated filer | ¨ | Accelerated filer | ý | |||
Non-accelerated filer | ¨ | Smaller reporting company | ¨ | |||
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act.): Yes ¨ No ý
Aggregate market value of registrant's common stock held by non-affiliates of the registrant, based upon the closing price of a share of the registrant's common stock on June 29, 2012 (the last business day of the registrant's most recently completed second quarter) as reported by NASDAQ Global Select Market on that date: $77,215,130. Shares of the registrant's common stock held by each executive officer, director and person who owns 15% or more of the outstanding common stock of the registrant have been excluded in that such persons may be deemed to be affiliates. This determination of affiliate status is not necessarily a conclusive determination for other purposes.
As of March 6, 2013, there were 35,896,740 shares of the registrant’s common stock, par value $0.001 per share, outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
None
EXPLANATORY NOTE
On March 13, 2013, we filed our Form 10-K for the period ended December 31, 2012 (“Original Annual Report”). This Amendment No. 1 to Form 10-K is filed solely to refile corrected Exhibits 31.1 and 31.2 (which corrected exhibits filed herewith are dated as of the date of the original exhibits) to the Form 10-K in accordance with Item 601(b)(31) of Regulation S-K.
Except as described above, no attempt has been made in this Amendment to modify or update any disclosures presented in the Original Annual Report other than as revised in the Exhibit Index. This Amendment No.1 does not reflect events occurring after the filing of the Original Annual Report or modify or update any disclosures therein. Accordingly, this Amendment should be read in conjunction with the Company's filings with the Securities and Exchange Commission subsequent to the filing of the Original Annual Report, including any amendments to those filings.
Pursuant to Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company has filed the certifications required by Rule 13a-14(a) or 15d-14(a) of the Exchange Act.
ZELTIQ Aesthetics, Inc.
FORM 10-K/A
(Amendment No. 1)
For the Year Ended December 31, 2012
TABLE OF CONTENTS
PAGE NUMBER | ||
2
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
ZELTIQ Aesthetics, Inc. | |||
Date: | August 7, 2013 | By: | /s/ Mark J. Foley |
Mark J. Foley | |||
President and Chief Executive Officer | |||
(Principal Executive Officer) | |||
3
EXHIBIT INDEX
(To Original Filing)
Incorporated by Reference | ||||||||||||||
Exhibit No. | Description | Filed with Original Filing | Form | File No. | Exhibit No. | Date Filed | ||||||||
3.1 | Amended and Restated Certificate of Incorporation of ZELTIQ Aesthetics, Inc. | S-1 | 333-175514 | 3.2 | 7/13/2011 | |||||||||
3.2 | Amended and Restated Bylaws of ZELTIQ Aesthetics, Inc. | S-1 | 333-175514 | 3.4 | 7/13/2011 | |||||||||
4.1 | Reference is made to Exhibits 3.1 and 3.2. | |||||||||||||
4.2 | Form of Stock Certificate. | S-1/A | 333-175514 | 4.1 | 9/23/2011 | |||||||||
4.3 | Warrant to Purchase Stock, dated as of January 14, 2009, by and between ZELTIQ Aesthetics, Inc. and Silicon Valley Bank. | S-1 | 333-175514 | 4.2 | 7/13/2011 | |||||||||
10.1 | # | Amended and Restated Exclusive License Agreement, dated September 21, 2011, by and between ZELTIQ Aesthetics, Inc. (as successor in interest to Juniper Medical, Inc.) and The General Hospital Corporation d/b/a Massachusetts General Hospital. | S-1/A | 333-175514 | 10.4 | 10/11/2011 | ||||||||
10.2 | Office Building Lease, dated December 22, 2006, by and between ZELTIQ Aesthetics, Inc. (as successor in interest to Juniper Medical, Inc.) and Hacienda Portfolio Venture LLC (as successor in interest to Crosstown Ventures II, LLC). | S-1/A | 333-175514 | 10.4 | 8/17/2011 | |||||||||
10.3 | First Amendment to Office Building Lease, dated December 22, 2006, by and between ZELTIQ Aesthetics, Inc. (as successor in interest to Juniper Medical, Inc.) and Hacienda Portfolio Venture LLC (as successor in interest to Crosstown Ventures II, LLC). | S-1/A | 333-175514 | 10.5 | 8/17/2011 | |||||||||
10.4 | Second Amendment to Office Building Lease, dated September 24, 2010, by and between ZELTIQ Aesthetics, Inc. (as successor in interest to Juniper Medical, Inc.) and Hacienda Portfolio Venture LLC (as successor in interest to Crosstown Ventures II, LLC). | S-1/A | 333-175514 | 10.6 | 8/17/2011 | |||||||||
10.5 | Loan and Security Agreement, dated January 14, 2009, by and between ZELTIQ Aesthetics, Inc. and Silicon Valley Bank. | S-1 | 333-175514 | 10.7 | 7/13/2011 | |||||||||
10.6 | First Amendment to Loan and Security Agreement, dated July 28, 2009, by and between ZELTIQ Aesthetics, Inc. and Silicon Valley Bank. | S-1 | 333-175514 | 10.8 | 7/13/2011 | |||||||||
10.8 | Manufacturing Services Agreement, dated April 16, 2010, by and between ZELTIQ Aesthetics, Inc. and ONCORE Manufacturing, LLC. | S-1/A | 333-175514 | 10.9 | 8/17/2011 | |||||||||
10.9 | Third Amended and Restated Investor Rights Agreement, dated May 26, 2010, by and among ZELTIQ Aesthetics, Inc. and the individuals and entities listed on Exhibit A attached thereto. | S-1 | 333-175514 | 10.23 | 7/13/2011 | |||||||||
10.10 | Manufacturing Services Agreement, dated December 7, 2010, by and between ZELTIQ Aesthetics, Inc. and UNICEP Packaging Inc. | S-1 | 333-175514 | 10.10 | 7/13/2011 | |||||||||
4
10.11 | Form of Purchase Order (used for each of Katecho, Inc., Coastline International, Inc., Renesas Electronics Corporation, and Hypertronics Corporation). | S-1/A | 333-175514 | 10.2 | 8/17/2011 | |||||||||
10.13 | * | Form of Indemnification Agreement, by and between ZELTIQ Aesthetics, Inc. and each of its directors and officers. | S-1 | 333-175514 | 10.17 | 7/13/2011 | ||||||||
10.14 | * | Offer Letter Agreement, dated April 29, 2010, by and between ZELTIQ Aesthetics, Inc. and Gordon E. Nye. | S-1/A | 333-175514 | 10.19 | 9/7/2011 | ||||||||
10.15 | * | Amendment to Nye Employment Agreement, dated July 11, 2011, by and between ZELTIQ Aesthetics, Inc. and Gordon E. Nye. | S-1/A | 333-175514 | 10.34 | 9/7/2011 | ||||||||
10.16 | * | Offer Letter Agreement, dated November 20, 2009, by and between ZELTIQ Aesthetics, Inc. and Joshua T. Brumm. | S-1/A | 333-175514 | 10.29 | 9/7/2011 | ||||||||
10.17 | * | Offer Letter Agreement, dated February 21, 2011, by and between ZELTIQ Aesthetics, Inc. and Dr. Ian P. West. | S-1/A | 333-175514 | 10.30 | 9/7/2011 | ||||||||
10.18 | * | Offer Letter Agreement, dated March 24, 2011, by and between ZELTIQ Aesthetics, Inc. and Dr. Kristine N. Tatsutani. | S-1/A | 333-175514 | 10.31 | 9/7/2011 | ||||||||
10.19 | * | Promotion Letter, dated August 8, 2011, by and between ZELTIQ Aesthetics, Inc. and Dr. Ian P. West. | S-1/A | 333-175514 | 10.38 | 9/7/2011 | ||||||||
10.20 | * | Offer Letter Agreement, dated April 29, 2010, by and between ZELTIQ Aesthetics, Inc. and John F. Howe. | S-1 | 333-175514 | 10.20 | 7/13/2011 | ||||||||
10.21 | * | Promotion Letter, dated August 8, 2011, by and between ZELTIQ Aesthetics, Inc. and John F. Howe. | S-1/A | 333-175514 | 10.36 | 9/7/2011 | ||||||||
10.22 | * | 2005 Stock Incentive Plan. | S-1/A | 333-175514 | 10.11 | 8/17/2011 | ||||||||
10.23 | * | Form of Stock Option Agreement under 2005 Stock Incentive Plan. | S-1/A | 333-175514 | 10.12 | 8/17/2011 | ||||||||
10.24 | * | Amendment to 2005 Stock Incentive Plan. | S-1/A | 333-175514 | 10.13 | 8/17/2011 | ||||||||
10.25 | * | 2011 Equity Incentive Plan. | S-1/A | 333-175514 | 10.14 | 9/23/2011 | ||||||||
10.26 | * | Form of Stock Option Agreement under 2011 Equity Incentive Plan. | S-1/A | 333-175514 | 10.15 | 9/23/2011 | ||||||||
10.27 | * | Form of Restricted Stock Unit Agreement under the 2011 Stock Incentive Plan. | S-1/A | 333-175514 | 10.16 | 9/23/2011 | ||||||||
10.28 | * | Form of Restricted Stock Agreement under the 2011 Stock Incentive Plan. | S-1/A | 333-175514 | 10.17 | 9/23/2011 | ||||||||
10.29 | * | Form of Notice of Grant of Restricted Stock Unit under the 2011 Stock Incentive Plan. | S-1/A | 333-175514 | 10.18 | 9/23/2011 | ||||||||
10.30 | * | Form of Notice of Grant of Restricted Stock under the 2011 Stock Incentive Plan. | S-1/A | 333-175514 | 10.19 | 9/23/2011 | ||||||||
10.31 | * | Form of Notice of Grant of Stock Option under the 2011 Stock Incentive Plan. | S-1/A | 333-175514 | 10.20 | 9/23/2011 | ||||||||
10.32 | * | 2011 Employee Stock Purchase Plan. | S-1/A | 333-175514 | 10.21 | 9/23/2011 | ||||||||
10.33 | * | Employment Offer Letter, dated February 20, 2012, by and between ZELTIQ Aesthetics, Inc. and Michael C. Genau. | 8-K | 001-35318 | 10.1 | 3/19/2012 | ||||||||
10.34 | * | Employment Offer Letter, dated February 9, 2012, by and between ZELTIQ Aesthetics, Inc. and Sergio Garcia. | 10-Q | 001-35318 | 10.2 | 5/11/2012 | ||||||||
10.35 | * | Severance Agreement, dated January 18, 2012, by and between ZELTIQ Aesthetics, Inc. and John F. Howe. | 10-Q | 001-35318 | 10.3 | 5/11/2012 | ||||||||
5
10.36 | * | Promotion letter, dated February 10, 2012, by and between ZELTIQ Aesthetics, Inc. and Joshua Brumm. | 10-Q | 001-35318 | 10.5 | 5/11/2012 | ||||||||
10.37 | * | Cash Compensation Arrangements with Named Executive Officers. | 10-Q | 001-35318 | (1) | 5/11/2012 | ||||||||
10.38 | * | Transition Agreement, dated April 18, 2012, by and between ZELTIQ Aesthetics, Inc. and Gordie Nye. | 10-Q | 001-35318 | 10.7 | 8/7/2012 | ||||||||
10.39 | * | Separation Agreement, dated June 8, 2012, by and between ZELTIQ Aesthetics, Inc. and Gordie Nye. | 10-Q | 001-35318 | 10.8 | 8/7/2012 | ||||||||
10.40 | * | Separation Agreement, dated May 25, 2012, by and between ZELTIQ Aesthetics, Inc. and Dennis J. Jarvis. | 10-Q | 001-35318 | 10.9 | 8/7/2012 | ||||||||
10.41 | * | Separation Agreement, dated May 3, 2012, by and between ZELTIQ Aesthetics, Inc. and Ian P. West. | 10-Q | 001-35318 | 10.10 | 8/7/2012 | ||||||||
10.42 | * | Consulting Agreement, dated April 18, 2012, by and between ZELTIQ Aesthetics, Inc. and Mark J. Foley. | 10-Q | 001-35318 | 10.11 | 8/7/2012 | ||||||||
10.43 | * | Employment Offer Letter Agreement, dated August 23, 2012, by and between ZELTIQ Aesthetics, Inc. and Mark J. Foley. | 10-Q | 001-35318 | 10.12 | 11/8/2012 | ||||||||
10.44 | * | Employment Offer Letter, dated September 18, 2012, by and between ZELTIQ Aesthetics, Inc. and Len DeBenedictis. | 10-Q | 001-35318 | 10.13 | 11/8/2012 | ||||||||
10.45 | * | Employment Offer Letter, dated October 1, 2012, by and between ZELTIQ Aesthetics, Inc. and Keith Sullivan. | 10-Q | 001-35318 | 10.14 | 11/8/2012 | ||||||||
10.46 | Third Amendment to Office Building Lease dated August 7, 2012 by and between ZELTIQ Aesthetics, Inc. and Hacienda Portfolio Venture LLC. | 10-Q | 001-35318 | 10.15 | 11/8/2012 | |||||||||
10.47 | * | ZELTIQ Aesthetics, Inc. 2012 Stock Plan. | S-8 | 333-183131 | 99.1 | 8/7/2012 | ||||||||
10.48 | * | Compensation Arrangement with Kristine Tatsutani. | 8-K | 001-35318 | (2) | 11/19/2012 | ||||||||
10.49 | * | 2012 Bonus Plan for Executive Officers. | 8-K | 001-35318 | (2) | 8/29/2012 | ||||||||
10.50 | * | Form of Stock Option Agreement Under 2012 Stock Plan. | X | |||||||||||
10.51 | * | Form of Restricted Stock Units Agreement Under 2012 Stock Plan. | X | |||||||||||
10.52 | * | Form of Restricted Stock Agreement Under 2012 Stock Plan. | X | |||||||||||
10.53 | * | Form of Notice of Grant of Stock Option Under 2012 Stock Plan. | X | |||||||||||
10.54 | * | Form of Notice of Grant of Restricted Stock Units Under 2012 Stock Plan. | X | |||||||||||
10.55 | * | Form of Notice of Grant of Restricted Stock Under 2012 Stock Plan. | X | |||||||||||
10.56 | * | Employment Offer Letter dated November 13, 2012 by and between ZELTIQ Aesthetics, Inc. and Patrick Williams. | X | |||||||||||
10.57 | * | Compromise Agreement dated October 26, 2012 by and between ZELTIQ Aesthetics, Inc. and Stephen Atkinson | X | |||||||||||
10.58 | * | Separation Agreement dated October 6, 2012 by and between ZELTIQ Aesthetics, Inc. and Richard W. Poinsett. | X | |||||||||||
10.59 | * | Directors Compensation Arrangements. | X | |||||||||||
21.1 | List of subsidiaries. | X | ||||||||||||
6
23.1 | Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm. | X | ||||||||||||
24.1 | Power of Attorney (see signature page to this Form 10-K). | X | ||||||||||||
31.1 | Certification of Principal Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | X** | ||||||||||||
31.2 | Certification of Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | X** | ||||||||||||
32.1 | Certification of Principal Executive Officer and Principal Financial Officer pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | X | ||||||||||||
101.INS | XBRL Instance Document | X | ||||||||||||
101.SCH | XBRL Taxonomy Extension Schema | X | ||||||||||||
101.CAL | XBRL Taxonomy Extension Calculation Linkbase | X | ||||||||||||
101.DEF | XBRL Taxonomy Extension Definition Linkbase | X | ||||||||||||
101.LAB | XBRL Taxonomy Extension Label Linkbase | X | ||||||||||||
101.PRE | XBRL Taxonomy Extension Presentation Linkbase | X | ||||||||||||
______________________
# | Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. |
* | Management Compensation Plan or Arrangement |
** | Corrected exhibits filed herewith are dated as of the date of the original exhibits |
(1) | As described in Item 5 of the Form 10-Q |
(2) | As described in Item 5.02 of the Form 8-K |
EXHIBIT INDEX
(To Form 10-K/A)
Exhibit No. | Description | |
31.1.1 | Certification of Principal Executive Officer Required Under Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as amended. | |
31.1.2 | Certification of Principal Financial Officer Required Under Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as amended. | |
7